<|"Marshall" -> {" \nOpinion \n\n \n \n  MARSHALL, Ch. J. delivered the opinion of the court, as follows, viz. \nIn the proceedings in this cause two errors are assigned by the plaintiff. \n1st. That the corporation had no power to assess the tax for which the judgment was rendered. \n2d. That the judgment is irregular, because rendered on motion. \n Both these points are to be decided by the several acts of the legislature of Virginia respecting the town of Alexandria. \nIn support of the first it is contended, \n1st. That the corporation has no power to tax property not belonging to an inhabitant of the town; and Charles Alexander was not an inhabitant. \n2d. That the property, on which this tax was assessed, was not within the corporation. \n The words of the act of 1779, which is the first act shown to the court that confers the power of taxation, are these \"The mayor, recorder, aldermen and common councilmen shall have power to erect and repair work-houses, houses of correction and prisons, or other public buildings, for the benefit of the  said town; and to make by-laws and ordinances for the regulation and good government of the said town; provided such by-laws or ordinances shall not be repugnant to, or inconsistent with, the laws and constitution of this commonwealth, and to assess the inhabitants for the charge of repairing the streets and highways.\" \nFor the plaintiff it is contended that the power of taxation, here given, is, in terms, confined to assessments made on the inhabitants. On the part of the defendants it is urged that the express power to assess the inhabitants is for the sole purpose of improving their streets, and that an express power is also given to make expensive establishments, the means of erecting which could be furnished only by taxes; that the power to make by-laws must therefore necessarily be construed to involve the power of taxing, at least for these objects. \nWithout deciding this question as depending merely on the original law, it is to be observed that acts in pari materia are to be construed together as forming one act. If in a subsequent clause of the same act provisions are introduced, which show  the sense in which the legislature employed doubtful phrases previously  used, that sense is to be adopted in construing those phrases. Consequently, if a subsequent act on the same subject affords complete demonstration of the legislative sense of its own language, the rule which has been stated, requiring that the subsequent should be incorporated into the foregoing act, is a direction to courts in expounding the provisions of the law. \nThe act of the 16th of December, 1796, contains this clause: \"It shall and may be lawful for the mayor and commonalty of the town of Alexandria to recover, of and from all and every person or persons holding land within the limits of the said town, and who have no other property within the said town on which the taxes or assessments imposed on such property for paving the streets therein can be levied, the amount of such taxes or assessments, by motion in the court of the county or corporation where such person or persons reside.\" \nThis clause most obviously contemplates a full right to assess taxes on property lying within the town and belonging to non-residents; for it gives a right to recover such assessment in the court of any county or corporation in which the owner of such property may reside. It is either a legislative  exposition of a power formerly granted, or the grant of a new power. \nIf the words of the enacting clause could admit of doubt, the proviso would remove that doubt. It is that the clause which has been recited should not \"be so construed as to empower the court to give judgment against any person or persons, residing out of the limits of the corporation of Alexandria, and owning ground therein, having no house on it, where the service, to compensate which the tax or assessment has been or may be imposed, has been or may be performed before the last day of February, 1797; but for the collection of such tax the same means may be used which would have been lawful before the passage of this act.\" \n This proviso shows, as clearly as words can show, the sense of the legislature in favour of taxing the land of non-residents. \nThe same act appears to the court to remove any doubt, which might otherwise exist, respecting the second branch of this question. \nUpon a critical examination of the act of the 13th of December, 1796, the court would feel much difficulty in declaring that it comprehended in the corporation of Alexandria only that ground which was actually divided into half-acre  lots, and the court would be the less inclined to take this distinction, because no inducement for making it is to be found in the nature of the thing, or could have existed with the legislature. \nThe preamble states the lots, represented as contiguous to the town of Alexandria, to have been laid off by the proprietors, in lots of half an acre each, within certain limits which are described by the law. The enacting clause drops the quantity of which a lot is to consist, and declares that every lot, or part of a lot, within the limits described, which had been or should be improved, should be made part of the town of Alexandria. The act of 1798 annexes to the town all the unimproved lots within those limits. The case finds that the property on which the tax for which the judgment is rendered was imposed, is within those limits, and was laid off as part of the town in squares of two acres, but these squares were not actually subdivided into half-acre lots. \nThe term half-acre used in the preamble of the act of 1796 is a description of a circumstance probably contained in the representation on which the law was founded. But it is impossible to consider that part of the representation  as material to the law. It the squares were regularly laid out, the subdivisions of those squares were unimportant, for that subdivision would always depend on the caprice of purchasers and sellers. Lots and parts of lots might  be separated, or annexed to each other, at will. The enacting clause, therefore, of the first act, comprehends every lot, or part of a lot, within the described limits which had been or should be improved; and the enacting clause of the act of 1798 comprehends every lot within those limits. That a square comprehended in those limits, laid off as part of the town, and containing precisely four half-acre lots, should be considered as excluded from the town, and not liable to taxation for the improvement of the streets, for the single reason that the proprietor had not marked thereon the lines of subdivision, would not be readily conceded. \nBut if a doubt respecting the sense of the legislature could otherwise be entertained, that doubt is removed by the act of the 16th of December, 1796, already recited, which particularly respects the power of taxation, and gives the remedy by motion. \nThat act drops the term \"lot,\" and uses the term \"land.\" It  authorizes the corporation to recover by motion against any person \"holding land within the limits of the town\" \"the taxes  or assessments imposed thereon.\" The proviso, which has been also recited, uses the term \"ground,\" and considers every person owning ground within those limits as liable to be taxed. The 3d section of the same act declares, \"that when the proprietor of any lot of ground within the said town shall fail to fill up any pond of water, or remove any nuisance,\" as directed by the corporation, the mayor and commonalty may exercise corporate powers in the case. If the squares in question do not consist of lots, because the subdivisions have not been actually marked, yet they consist of land, they consist of ground, and being within the limits of the town, they are, in the opinion of the court, within the corporation, and subject to taxation. \nBut the remedy in the actual case is not by motion. The act affording this remedy gives it only in a specified case. It is given only in the case of \"a person or persons holding land within the limits of  the said town, and who have no other property within the said town.\" This is not, as has been said, a direction  to the officer of the corporation, but is a description of the precise case in which alone the remedy by motion is allowed. It being found that Charles Alexander had property in the town from which the officer could have levied the tax assessed on him, a motion for that tax was not sustainable. If the corporation did not choose to risk levying the tax by seizure, they might have instituted a suit to determine their right. \nThis court is unanimously of opinion, that the circuit court erred in giving judgment for the plaintiff on motion, and therefore directs that the said judgment be reversed and annulled. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. after stating the facts of the case, delivered the opinion of the court, as follows, viz. \nIt has been decided in this court, that during the existence of such a detention as amounts to a technical total loss,  the assured may abandon; but it has also been decided that the stafe of the fact must concur with the state of information to make this abandonment effectual. The technical total loss, therefore, occasioned by the capture and detention at Mole St. Nicholas, must have existed in point of fact in December, when this abandonment was tendered, or the plaintiff cannot succeed in this action. \nPrevious to that time, the vessel had been restored to the captain; all actual restraint had been taken off; and it does not appear that her ability to prosecute her voyage was in any degree impaired. But her cargo had been taken by Monsieur de Noailles, the commandant at Mole St. Nicholas, and had not been paid for. The restoration of the vessel, without the cargo, is said not to terminate the technical total loss of the vessel. \nThe policy is upon the vessel alone, and contains no allusion to the cargo. Had she sailed in ballast, that circumstance would not have affected the policy. The  underwriters insure against the loss or any damage to the vessel, not against the loss or any damage to the cargo. They insure her ability to perform her voyage, not that she shall perform it. \n If, in such a case, a partial damage had been sustained by the cargo, no person would have considered the underwriters as liable for that partial damage; why then are they responsible for the total destruction of the cargo? It is said that, by taking out the cargo, the voyage is broken up. But the voyage of the vessel is not broken up; nor is the mercantile adventure destroyed from any default in the vessel. By this construction the underwriter of the vessel, who undertakes for the vessel only, is connected with the cargo, and made to undertake that the cargo shall reach the port of destination in a condition to answer the purposes of the assured.Yet of the cargo he knows nothing, nor does he make any inquiry respecting it. \nIf it be true that the technical total loss was not terminated until the cargo was paid for, because the voyage was broken up, then the underwriters would have been compellable to pay the amount of the policy, although the vessel had returned in safety to the United States. To prosecute the voyage, it is said, had become useless, and therefore the engagement of the underwriters was forfeited, although this state of things was not produced by any fault of the  vessel. If this be true, it would not be less true if, instead of proceeding to Cape Francois, the Henry and John had returned from Mole St. Nicholas to the port of Charleston. The contract, then, instead of being an insurance on the ability of the ship to perform her voyage, an insurance against the loss of the ship upon the voyage, would be a contract to purchase the vessel at the sum mentioned in the policy, if circumstances not produced by any fault or disability in the vessel, should induce the captain or the assured to discontinue the voyage after it had been undertaken. \nThis is termed pushing a principle to an absurdity, and therefore no test of the truth of the principle. But if it be a case which would occur as frequently as that which has occurred, and if the result which has been  stated flows inevitably from the principle insisted on, the case supposed merely presents that principle in its true point of view, deprived of the advantages it derives from its being adapted to the particular and single case under argument. Either the technical total loss of the ship did or did not terminate when she was restored to the master uninjured, and as capable of prosecuting   her voyage as when she sailed from the port of Charleston. If it was then terminated, this action cannot be sustained. If it was not then terminated, on what circumstance did its continuance depend? At one time it is said to depend on the ability or inability of the owner to employ her to advantage. But this position requires a very slight examination to be discarded entirely. So far as respected the vessel herself, and her crew, she was as capable of being employed to advantage as she had ever been. Only the funds were wanted to enable her to purchase a return cargo on the spot, or to proceed to her port of destination, and there purchase one. Or she might have returned immediately to the United States, and if any direct loss to the vessel was sustained, by being turned out of her way, that, after restoration, would be a partial, not a total loss. Besides, what dictum in the books will authorise this position? And what rule is afforded to ascertain the degree of inconvenience which, when in point of fact the vessel is in safety, in full possession of the master, and capable of prosecuting her voyage, shall warrant an abandonment? \nNo total loss of the vessel, then,  existed after her restoration, so far as that total loss depended on the incapacity of the owner to employ his vessel to advantage. If the total loss continued after the restoration, that continuance was produced singly by the non-payment for the cargo, which is said to have broken up the voyage. If, then, the vessel had returned to a port in the United States, the voyage would still have been broken up, and the right to abandon would have been the same as it was while she was on the ocean, in full possession of her captain. \n But it is apparent that the captain had terminated the voyage on which the vessel was insured. Had his contract with De Noailles been complied with at Mole St. Nicholas, or at Cape Francois, he would not have proceeded to the Bite of Leogane. Had it not been complied with, he would have had no more inducement to go to a port in the Bite of Leogane from Cape Francois, than from Mole St. Nicholas. The voyage to Port Republicain, then, which was the voyage insured, was completely terminated at Mole St. Nicholas; the voyage to Cape Francois, in making which she was captured, was a new voyage undertaken, not for the benefit of the underwriters of the  vessel, but for the benefit of the owners and underwriters of the cargo. Consequently, so far as respects the underwriters of the vessel, who insured only the voyage to the Bite of Leogane, the capture at Cape Francois is an immaterial circumstance, and the technical total loss produced by carrying the vessel into Mole St. Nicholas, was either terminated when she was restored without her cargo, or would have continued had she returned to an American port without her cargo. \nUpon principle, then, independent of authority, it is very clear that the underwriter of the vessel does not undertake for the cargo, but engages only for the ability of the vessel to perform her voyage, and to bear any damage which the vessel may sustain in making that voyage. \nBut it is contended that adjudged cases have settled this question otherwise. \nThe case has frequently occurred, and a direct decision might be expected on it, if a construction so foreign from the contract had really been made. It often happens that the cargo of a neutral vessel is condemned as enemy-property, and the vessel itself is discharged. Not an instance is recollected in which the right to abandon in such a case, after the vessel  was restored, has been claimed. Yet, if the loss of the cargo amounted to a destruction of the voyage, so far as respected the vessel, and thereby created a total loss of the vessel  herself, notwithstanding her restoration to the captain uninjured, and in a full capacity to prosecute her voyage, such claims would be frequently asserted, and vessels would be valued high in the policy, for the purpose of selling them on a contingency, which so often occurs. It would be strange, indeed, to admit, that if this cargo had been condemned in Mole St. Nicholas, and the vessel had been liberated, the right to abandon would not have been produced by the loss of the cargo, and yet to contend that non-payment for the cargo does produce that right. \nIn recurring to precedent, no direct decision by a court on the point, no direct affirmance of the principle has been adduced; but the counsel for the plaintiff relies on general dicta in the books which are used in reference to other principles. Thus, in 1 Term Rep. 191. Judge Buller says, \"It is an assurance on the ship for the voyage. If either the ship or the voyage be lost, it is a total loss.\" \nIn that case, the counsel for the plaintiff  contended that the insurance was on the ship, and on the voyage, and insisted, that as the vessel returned unfit for use, it was a total loss.The counsel for the defendants was stopped, and Judge Buller said, \"Allowing total loss to be a technical expression, the manner in which the plaintiff's counsel have stated it is rather too broad.\" Why too broad? Judge Buller answers, \"It has been said that the insurance must be taken to be on the ship as well as on the voyage, but the true way of considering it is this: It is an insurance on the ship for the voyage. If either the ship or the voyage be lost, that is a total loss.\" \nIn what consists the difference between an insurance on the ship and the voyage, which is laying down the principle too broad, and an insurance on the ship for the voyage, which is the true way of considering it?If the destruction of the voyage by the loss of the cargo is a loss of the ship, then it is an insurance on the ship and the voyage. But this, according to Judge Buller, is not the true principle. The true principle is, that \"it is an insurance on the ship for the voyage,\"  that is, that the voyage shall not be destroyed by the fault of the  ship, or in other words, that the ship shall be capable of making her voyage. And when he says that if either be lost it is a total loss, he must be understood to mean, if the voyage be lost by the happening to the ship of any of the perils insured against. To understand Judge Buller otherwise, would be to make him inconsistent with himself; to illustrate a proposition by cases incompatible with that proposition; and to support a distinction by cases which confound the principles intended to be distinguished from each other. But these  expressions are used in a case in which the whole contest respected the damage actually sustained by the ship insured, and must be understood in reference to such a case. \nSo in 1 Term Rep. 615. Mitchell v. Edie, Buller says, \"A total loss is of two sorts. One where in fact the whole of the property perishes;\" (that is, the property insured;) \"the other where the property exists, but the voyage is lost, or the expense of pursuing it exceeds the benefit arising from it.\" \nThis was a case in which the cargo, which was the thing insured, was, by one of the perils insured against, prevented from reaching its destined port, and was greatly damaged.  The expressions must be explained by the case, for the case itself is in view when the expressions are used. \nA dictum of Judge Boller in 1 Term Rep. 310. is more applicable to this case than either of those before quoted. He says, \"If the ship had arrived and the goods had been lost, the assured could not have recovered.\" That was an insurance on the arrival of the ship. It is said that dictum was founded on its being a wagering policy; but it appears to be a construction of the terms of the policy. He proceeds to say, that \"in policies on interest, if the voyage be lost, it is not necessary to proceed on with the hulk of the ship.\" But to what case does this apply? To an insurance on goods or on the ship? To a loss of the voyage by default of the thing insured and abandoned, or by default of the thing not insured? The dictum is too vague and too unsatisfactory to form the basis of a great  legal principle, of infinite importance in commercial transactions. If that case be read throughout, dicta may be found interspersed through it which militate against the doctrine this single sentence is supposed to support. \nIn the case of Goss v. Withers, there were two policies,  one on the ship and the other on the cargo. The language of Lord Mansfield, in delivering the opinion of the court with respect to the ship, does not even insinuate the idea that any damage sustained by the cargo would have affected the policy on the ship. \nIn deciding on the claim for the cargo, his language is to be considered with reference to the case itself. It does not appear whether, in the passage quoted from Le Guidon, the author of that work was treating of an abandonment as to the ship or the cargo, or both. Nor does it in any degree tend to establish the principle contended for, that after stating the actual total loss of the goods, Lord Mansfield mentions, as an additional circumstance, showing the complete destruction of the voyage, that the ship was lost also. \nIn the case of Hamilton v. Mendez, neither the ship nor cargo was lost. Lord Mansfield puts cases in which there might be a total loss, but those cases are not stated with such precision as to throw any light on the present question. He says it does not absolutely follow that, because there is a recapture, the loss ceases to be total. \"If the voyage is absolutely lost, or not worth pursuing,\" and in many  other instances, the owner may disentangle himself, and abandon, notwithstanding there has been a recapture. \nIt is extremely dangerous to take general Dicta upon supposed cases not considered in all their bearings, and, at best, inexplicitly stated as establishing important law principles. Let the dictum in the present case be examined. Suppose the ship and cargo to be owned by different persons, and insured by different underwriters. If the voyage be lost by the infirmity of the ship, the bandonment might unquestionably be made. If the goods be damaged or injured, so as to occasion a technical  total loss, so as to render the voyage not worth pursuing, the owner of the cargo may abandon; but how does this render the voyage not worth pursuing by the owner of the vessel? The value of the cargo does not affect him, or injure his vessel. With respect to him, the voyage is not destroyed. These dicta of Lord Mansfield are uttered in terms which demonstrate that no case like the present was in his view at the time, and they are not adapted to such a case. \nThe cases from Weskett are upon a peculiar kind of policy. They are in the nature of wager policies, and the nature  of the undertaking is said to be, that the ship shall perform her voyage in a reasonable time. \"In these two last kinds of policies,\" says Weskett, \"valued free from average\" and \"interest or no interest, it is manifest that the performance of the voyage or adventure venture in a reasonable time and manner, and not the bare existence of the ship or cargo, is the object of the insurance.\" This remark applies only to policies of the particular specified description; and even with respect to them it would not appear that the fate of the ship depended on that of the cargo. In illustration of this principle, he states the case of The Ludlow Castle, insured from Jamaica to England. She was compelled, by one of the perils insured against, to put into Antigua, where she was stopped from proceeding on her voyage, and her cargo was sent to England in another vessel. At the time of the abandonment, and enen at the time of the trial, the vessel had not arrived in England, and was not restored to the owner. In this case the voyage was lost by the inability of the vessel to prosecute it. \nThe case of The Sarah Galley bears a much stronger resemblance to that under consideration, but is not  so fully stated as to give the court all its circumstances. It does not precisely appear what damage was sustained by the seizure at Gibraltar, nor what effect that loss might have on the jury. Nor are we informed at what time, and for what cause the abandonment was made. \nBut the great objection to that case is, that it was the verdict of a jury, not the solemn decision of a court,  which verdict was rendered at a time when the law of insurance was not settled, and most probably on a point which has since been overruled in England and in this country. The loss of the ship on a voyage from Gibraltar to Dunkirk could not be the fact on which the plaintiff recovered, because that was a voyage not within the policy. The seizure at Gibraltar was the fact on which the jury founded their verdict. The defendant contended that this total loss was terminated by the restoration of the ship; \"yet as the taking at Gibraltar was a taking whereby the return voyage was prevented, a special jury gave the plaintiff a verdict for a total loss.\" The verdict,  then, is found, not on the subsequent actual loss of the vessel, but on the technical loss occasioned by the seizure.  This verdict was rendered in the reign of George II. At that time it was doubtful whether a technical total loss occasioned by capture did not vest in the assured a right to abandon, which right was not divested by restoration. In the case of Hamilton v. Mendez, which came on afterwards, this point was perseveringly maintained at the bar, and settled by the court.Had the case of The Sarah Galley been decided after the case of Hamilton v. Mendez, a different verdict must have been rendered. But this decision was given exclusively on the circumstances which had befallen the ship, without a view, so far as is stated, to any loss of the cargo, and is considered by Millar (288.) as not being law. \nThe case of The Anna turned entirely on the inability of the ship to prosecute her voyage. \nThe case of The Dispatch Galley, is a case in which we are not informed of the amount of loss occasioned by capture and recapture; and is also a case decided before Hamilton v. Mendez, most obviously upon the principle that the right to abandon, which was vested by the capture, was not divested by the restoration of the vessel. This case serves to show that the verdict in the case of The Sarah Galley,  did not turn on the subsequent loss of the vessel, for this vessel was not lost. There is in it no allusion to any influence which the loss of a cargo might have on the insurance of a vessel. \n The principles laid down by Millar do not militate against those which are contained in this opinion. When he speak, of a loss which defeats the voyage, he alludes to a loss which has befallen the thing insured. \nThe court can find in the books no case which would justify the establishment of the principle, that the loss of the cargo constitutes a technical loss of the vessel, and must therefore construe this contract according to its obvious import. It is an insurance on the ship for the voyage, not an insurance on the ship and the voyage. It is an undertaking for the ability of the ship to prosecute her voyage, and to bear any damage which she may sustain during the voyage, not an undertaking that she shall, in any event, perform the voyage. \nIt is the unanimous opinion of the court that the judgment must be affirmed, with costs. \nJudgment affirmed. \n \n\n ", " \nOpinion \n\n \n \n MARSHALL, Ch. J. delivered the opinion of the court as follows, viz. \nThe object of this suit is to obtain the direction of the court, for the distribution of certain funds in South Carolina, which were the property of a company trading, in England, under the firm of Bird, Savage & Bird, and in America, under the firm of Robert Bird & Co. The United States claim a preference to all other creditors, and their claim will be first considered. \nTwo points  have been suggested, as taking this case out of the operation of the preceding decisions of the court respecting the priority to which the United States are entitled. \n1. That the contract was made with foreigners, in a foreign country. \n2. That the United States have waived their privilege, by proving their debt under the commission of bankruptcy. \n1. The words of the act, which entitle the United States to a preference, do not restrain that privilege to contracts made within the United States, or with American citizens. To authorize this court to impose that limitation on them, there must be some principle in the nature of the case which requires it. The court can discern no such principle. The law of the place where a contract is made is, generally speaking, the law of the contract; i.e. it is the law by which the contract is expounded. But the right of priority forms no part of the contract  itself. It is extrinsic, and is rather a personal privilege dependent on the law of the place where the property lies, and where the court sits which is to decide the cause. In the familiar case of the administration of the estate of a deceased person, the assets are always  distributed according to the dignity of the debt, as regulated by the law of the country where the representative of the deceased acts, and from which he derives his powers; not by the law of the country where the contract was made. In this country, and in its courts, in a contest respecting property lying in this country, the United States are not deprived of that priority which the laws give them, by the circumstance that the contract was made in a foreign country, with a person resident abroad. \n2. Nor is this priority waived by proving the debt before the commissioners of the bankrupt. \nThe 62d section of the bankrupt act expressly declares, that \"nothing contained in that law shall, in any manner, affect the right of preference to prior satisfaction of debts due to the United States, as secured by any law heretofore passed.\" \nThere is nothing in the act which restrains the United States from proving their debt under the commission, and the 62d section controls, so far as respects the United States, the operation of those clauses in the law which direct the assignees to distribute the funds of the bankrupt equally among all those creditors who prove their debts under the commission.  Omit this section, and the argument of the counsel for the general creditors would be perfectly correct. The coming in as a creditor under the commission might then be considered as electing to be classed with other creditors. But the operation of this saving clause is not confined to cases in which the United States decline to prove their debt under the commission. It is universal. It introduces, then, an exception from the general rule laid down in the 29th and 30th sections of the  act, and leaves to the United States that right, to full satisfaction of their debts to the exclusion of other creditors, to which they would be entitled, had they not proved their debt, under the commission. \nThe priority of the United States is to be maintained in this case, unless some of the creditors can show a title to the property anterior to the time when this priority attaches. \nThe assignment made to Richard Harrison is, it is contended, such a title. \nTo this assignment several objections have been made. \n1. It is said that Robert Bird was not authorized to make it, because it is not a transaction within the usual course of trade. But this court is of opinion that it is such  a transaction. The whole commercial business of the company in the United States was necessarily committed to Robert Bird, the only partner residing in this country. He had the command of their funds in America, and could collect or transfer the debts due to them. The assignment under consideration is an act of this character, and is within the power usually exercised by a managing partner. In such a transaction he had a right to sign the name of both firms, and his act is the act of all the partners. \n2. It is the assignment of a chose in action; and is, therefore, to be considered rather as a contract than an actual transfer, and could be of no validity against the several claimants in this case. \nThe authorities cited at bar, especially those from 1 Atk . and Williams's Law Cases, are conclusive on this point, to prove that equity will support an equitable assignment. \n3. But a third exception has been taken to this instrument, which the court deems a substantial one.  It is made under circumstances which expose it to the charge of being a fraud on the bankrupt laws. \nConsidered as the act of Bird, Savage & Bird, it is dated but a few days before their bankruptcy;  and considered as the act of Robert Bird & Co. it is but a short time before they stopped payment, and is made at a time when there is much reason to believe, from the face of the deed, as well as from extrinsic circumstances, that such an event was in contemplation. \nMoney actually advanced upon the credit of this assignment, subsequent to its date, might perhaps be secured by it; but there is no evidence that any money was actually advanced upon it, and the face of the instrument itself would not encourage such an opinion. It might be caught at by those who were already creditors, but holds forth no inducements to become creditors. It was impossible for any person viewing it to judge of the sufficiency of the fund, or of the pre-existing liens on it. \nThis assignment, therefore, under all its circumstances, many of which are not here recited, is no bar to the claim of the United States, or of the attaching creditors. \nThis being the case, there exists no obstacle to the priority claimed by the United States, and their debt is to be first satisfied out of the fund to be distributed by the court. \n2. The attaching creditors are next in order. \nBy the bankrupt law of the United States,  their priority, as to the funds of the bankrupt, is lost. They can only claim a dividend with other creditors. So far, then, as the effects attached are the effects of the bankrupt, their lien is removed by the bankruptcy. \nRobert Bird alone has become a bankrupt under  the laws of the United States. Consequently, only his private property and his interest in the funds of the company pass to his assignees. This interest is subject to the claim of his copartners, and if, upon a settlement of accounts, Robert Bird should appear to be the creditor or the debtor of the company, his interest would be proportionably enlarged or diminished. But he is not alleged to be either a creditor or a debtor; and of consequence, the court consider his interest as being one undivided third of the fund. This third goes to his assignees. \nAs the bankrupt law of a foreign country is incapable of operating a legal transfer of property in the United States, the remaining two thirds of the fund are liable to the attaching creditors, according to the legal preference obtained by their attachments. \nThe court thinks it equitable to order that those creditors who claim under the deed of the 31st  of January, 1803, and who have not proved their debts under the commission of bankruptcy, should be now admitted to the same dividend out of the estate of the bankrupt as they would have received if, instead of relying on the deed, they had proved their debts. The assignees, therefore, take this fund subject to that equitable claim, and in making the dividend, those creditors are to receive, in the first instance, so much as will place them on an equal footing with the creditors who have proved their debts under the commission. \nWith respect to any surplus which may remain of the two thirds, after satisfying the United States, and the attaching creditors, it ought to be divided equally among all the creditors, so as to place them on an equal footing with each other. The dividends paid by the British assignees, and those made by the American assignees, being taken into consideration, this residuum is to be so divided between them as to produce equality between the respective creditors. \n \n\n ", " \nOpinion \n\n \n \n  August 11th. Marshall, Chief Justice, delivered the opinion of the court. \nThis is a writ of error to a decree of the circuit court for the district of New-York, by which the decree of the district court of that state, restoring the ship Amelia to her owner on the payment of one-half for salvage, was reversed, and a decree rendered, directing the restoration of the vessel without salvage. \n The facts agreed by the parties, and the pleadings in the cause, present the following case: \nThe ship Amelia sailed from Calcutta in Bengal, in April, 1799, loaded with a cargo of the product and  manufactory of that country, and was bound to Hamburgh. On the 6th September she was captured by the French national corvette La Diligente, commanded by L. J. Dubois, who took out the captain, part of the crew, and most of the papers of the Amelia, and putting a prize master and French sailors on board her, ordered her to St. Domingo to be judged according to the laws of war. \nOn the 15th of September she was re-captured by captain Talbot, commander of the Constitution, who ordered her into New-York for adjudication. \nAt the time of the re-capture, the Amelia had eight iron cannon, and eight wooden guns, with which she left Calcutta. From the ships papers,  and other testimony, it appeared that she was the property of Chapeau Rouge, a citizen and merchant of Hamburgh; and it was conceded by the council below, that France and Hamburgh were not in a state of hostility with each other, and that Hamburgh was to be considered as neutral between the present belligerent powers. \nThe district court of New-York, before whom the cause first came, decreed one-half of the gross amount of the ship and cargo as salvage to the re-captors. The circuit court of New-York reversed  this decree, from which reversal, the re-captors appealed to this court. \nThe Amelia was libelled as a French vessel, and the libellant prays that she may be condemned as prize; or, if restored to any person entitled to her as the former owner, that such restoration should be made on paying salvage. The claim and answer of Hans Frederick Seeman, discloses the neutral character of the vessel, and claims her on behalf of the owners. \nThe questions growing out of these facts, and to be decided by the court, are -- \n Is captain Talbot, the plaintiff in error, entitled to any, and if to any, to what salvage in the case which has been stated? \nSalvage is a compensation for actual service rendered to the property charged with it. \nIt is demandable of right for vessels saved from pirates, or from the enemy. \nIn order, however, to support the demand, two circumstances must concur. \n1st. The taking must be lawful. \n2d. There must be a meritorious service rendered to the re-captured. \n1st. The taking must be lawful -- for no claim can be maintained in a court of justice, founded on an act in itself tortious. On a re-capture, therefore, made by a neutral power, no  claim for salvage can arise, because the act of re-taking is a hostile act, not justified by the situation of the nation to which the vessel making the re-capture belongs, in relation to that from the possession of which such re-captured vessel was taken. The degree of service rendered the rescued vessel is precisely the same as if it had been rendered by a belligerent; yet the rights accruing to the re-captor are not the same, because no right can accrue from an act in itself unlawful. \nIn order then to decide on the right of captain Talbot it becomes necessary to examine the relative situation of the United States and France at the date of the re-capture \nThe whole powers of war being, by the constitution of the United States, vested in congress, the acts of that body can alone be resorted to as our guides in this enquiry. It is not denied, nor in the course of the argument has it been denied, that congress may authorize general hostilities, in which case the general laws of war apply to our situation; or partial hostilities, in which case the laws of war, so far as they actually apply to our situation, must be noticed. \n To determine the real situation of America  in regard to France, the acts of congress are to be inspected. \nThe first act on this subject passed on the 28th of May, 1798, and is entitled \"An act more effectually to protect the commerce and coasts of the United States.\" \nThis act authorizes any armed vessel of the United States to capture any armed vessel sailing under the authority, or pretence of authority, of the republic of France, which shall have committed depredations on vessels belonging to the citizens of the United States, or which shall be found hovering on the coasts for the purpose of committing such depredations. It also authorizes the re-capture of vessels belonging to the citizens of the United States. \nOn the 25th of June, 1798, an act was passed \"to authorize the defence of the merchant vessels of the United States against French depredations.\" \nThis act empowers merchant vessels, owned wholly by citizens of the United States, to defend themselves against any attack which may be made on them by the commander or crew of any armed vessel failing under French colours, or acting, or pretending to act, by or under the authority of the French republic; and to capture any such vessel. This act also authorizes  the re-capture of merchant vessels belonging to the citizens of the United States. By the 2d section, such armed vessel is to be brought in and condemned for the use of the owners and captors. \nBy the same section, re-captured vessels belonging to the citizens of the United States, are to be restored, they paying for salvage not less than one-eighth nor more than one-half of the true value of such vessel and cargo. \nOn the 28th of June, an act passed \"in addition to the act more effectually to protect the commerce and coasts of the United States.\" \nThis authorizes the condemnation of vessels brought in under the first act, with their cargoes, excepting only from such condemnation the goods of any citizen or person resident  within the United States, which shall have been before taken by the crew of such captured vessel. \nThe second section provides tht whenever any vessel or goods the property of any citizen of the United States or person resident therein, shall be re-captured, the same shall be restored, he paying for salvage one-eighth part of the value, free from all deductions. \nOn the 9th of July another law was enacted, \"further to protect the commerce of  the United States.\" \nThis act authorizes the public armed vessels of the United States to take any armed French vessel found on the high seas. It also directs such armed vessel, with her apparel, guns, &c. and the goods and efforts found on board, being French property, to be condemned as forfeited. \nThe same power of capture is extended to private armed vessels. \nThe 6th section provides, that the vessel or goods of any citizen of the United States, or person residing therein, shall be restored, on paying for salvage not less than one eighth, nor more than one half, of the value of such re-capture, without any deduction. \nThe 7th section of the act for the government of the navy, passed the 2d of march, 1799, enacts, \"That for the ships or goods belonging to the citizens of the United States, or to the citizens or subjects of any nation in amity with the United States, if re-taken within twenty-four hours, the owners are to allow one eighth part of the whole value for salvage,\" and if  they have remained above ninety-six hours in possession of the enemy, one half is to be allowed. \nOn the 3d of march 1800, congress passed \"an act providing for salvage in cases  of re-capture.\" \nThis law regulates the salvage to be paid \"when any vessels or goods, which shall be taken as prize as aforesaid, shall appear to have before belonged to any person or persons  permanently resident within the territory and under the protection of any foreign prince, government or state, in amity with the United States, and to have been taken by an enemy of the United States, or by authority, or pretence of authority from any prince, government, or state, against which the United States have authorised, or shall authorise defence or reprisals.\" \nThese are the laws of theUnited States, which define their situation in regard to France, and which regulate salvage to accrue on re-captures made in consequence of that situation. \nA neutral armed vessel which has been captured, and which is commanded and manned by Frenchmen, whether found cruizing on the high seas, or failing directly for a French port, does not come within the description of those which the laws authorise an American ship of war to capture, unless she be considered quoad hoc as a French vessel. \nVery little doubt can be entertained but that a vessel thus circumstances, encountering an American  unarmed merchantman, or one which should be armed, but of inferior force, would as readily capture such merchantman as if she had sailed immediately from the ports of France. One direct and declared object of the war then, which was the protection of the American commerce, would as certainly require the capture of such a vessel as of others more determinately specified. But the rights of a neutral vessel, which the government of the United States cannot be considered as having disregarded, here intervene; and the vessel certainly is not, correctly speaking, a French vessel. \nIf the Amelia was not, on the 15th September 1799, a French vessel within the description of the act of congress, could her capture be lawful? \nIt is, I believe, a universal principle, which applies to those engaged in a partial, as well as those engaged in a general war, that where there is probable cause to believe the vessel met with at sea, is in the condition of one  liable to capture, it is lawful to take her, and subject her to the examination and adjudication of the courts. \nThe Amelia was an armed vessel commanded and manned by Frenchmen. It does not appear that there was evidence on  board to ascertain her character. It is not then to be questioned, but that there was probable cause to bring her in for adjudication. \nThe re-capture then was lawful. \nBut it has been insisted that this re-capture was only lawful in consequence of the doubtful character of the Amelia, and that no right of salvage can accrue from an act which was founded in mistake, and which is only justified by the difficulty of avoiding error, arising from the doubtful circumstances of the case. \nThe opinion of the court is, that had the character of the Amelia been completely ascertained by capt. Talbot, yet as she was an armed vessel under French authority, and in a condition to annoy the American commerce, it was his duty to render her incapable of mischief. -- To have taken out the arms of the crew, was as little authorized by the construction of the act of congress contended for by the claimants, as to have taken possession of the vessel herself. \nIt has, I believe, been practised in the course of the present war, and if not, is certainly very practicable, to man a prize and cruise with her for a considerable time without sending her in for condemnation. The property of such vessel  would not, strictly speaking, be changed so as to become a French vessel, and yet it would probably have been a great departure from the real intent of congress, to have permitted such vessel to cruise unmolested. An armed ship under these circumstances might have attacked one of the public vessels of the United States. The acts which have been recited expressly authorise the capture of such vessel so commencing hostilities, by a private armed ship, but not by one belonging to the public. To suppose that a capture would in one case be lawful, and in the other unlawful; or to suppose ehtat even in the limited state of hostilities in which we were placed, two  vessels armed and manned by the enemy, and equally cruizing on American commerce, might the one be lawfully captured, while the other, though an actual assailant, could not, or if captured, that the act could only be justified from the probable cause of capture furnished by appearances; would be to attribute a capriciousness to our legislation on the subject of war, which can only be proper when inevitable. \nThere must then be incidents growing out of those acts of hostility specifically authorized, which a fair  construction of the acts will authorize likewise. \nThis was obviously the sense of congress. \nIf by the laws of congress on this subject, that body shall appear to have legislated upon a perfect conviction that the state of war in which this country was placed, was such as to authorize re-captures generally from the enemy; if one part of the system shall be manifestly founded on this construction of the other part, it would have considerable weight in rendering certain what might before have been doubtful. \nUpon a critical investigation of the acts of congress it will appear, that the right of re-capture is expressly given in no single instance, but that of a vessel or goods belonging to a citizen of the United States. \nIt will also appear that the quantum of salvage is regulated, as if the right to it existed previous to the regulation. \nAlthough no right of re-capture is given in terms for the vessels and goods belonging to persons residing within the United States not being citizens, yet an act, passed so early as the 28th of June 1798, declares, that vessels and goods of this description, when re-captured, shall be restored on paying salvage; thereby plainly indicating  that such re-capture was sufficiently warranted by law to be the fouandation of a claim for salvage. \nIf the re-capture of vessels of one description, not expressly authorized by the very terms of  the act of congress  be yet a rightful act, recognized by congress as the foundation for a claim to salvage, which claim congress proceeds to regulate, then it would seem that othere-captures from the same enemy are equally rightful; and where the claim they afford for salvage has not ben regulated by congress, such claim must be determined by the principles of general law. \nIn this situation remained the re-captured vessels of any other power also at war with France, until the act of the 2d of March, 1799, which regulates the salvage demandable from them. Neither by that act, nor by any previous act, was a power given in terms, to re-capture such vessels. But their re-capture was an incident which unavoidably grew out of the state of the war. On the capture of a French vessel, having with her as a prize, the vessel of such a power, the prize was inevitably re-captured. On the idea that the re-capture was lawful and that it was a foundation on which the right to  salvage could stand, the legislature in March 1799, declare what the amount of that salvage should be. \nThe expression of this act is by no means explicit. If it extends to neutrals then it governs in this case; if otherwise, the law respecting them continued still longer on the same ground with the law respecting a belligerent, prior to the passage of the act of the 2d of march, 1799. Thus it continued until the 3d of March 1800, when the legislature regulated the salvage to be paid by neutrals, re-captured from a power against which the United States have authorized defence or reprisals. \nThis act having passed subsequent to the re-capture of the Amelia, can certainly not affect that case as to the quantity of salvage, or give a right to salvage which did not exist before. But it manifests, in like manner with the laws already commented on, the system which congress considered itself as having established. This act was passed at a time when no additional hostility against France could have been contemplated. It was only designed to keep up the defensive system which had before been formed, and which it was deemed necessary to continue, till the negotiation then pending should  have a pacific termination. Accordingly there is no expression in the act extending  the power of re-capture, or giving it in the case of neutrals. This power is supposed to exist as an incident growing out of the state of war, and the right to salvage produced by that power is regulated in the act. \nIn case of a re-capture subsequent to the act, no doubt could be entertained, but that salvage, according to its terms, would be demandable. Yet there is not a syllable in it which would warrant an idea that the right of re-capture was extended by it, or did not exist before. \nIt must then have existed from the passage of the laws, which commenced a general resistance to the aggressions we had so long experienced and submitted to. \nIt is not unworthy of notice that the first regulation of the right of salvage in the case of a re-capture, not expressly enumerated among the specified acts of hostility warranted by the law, is to be found in one of those acts which constitute a part of the very system of defence determined on by congress, and is the first which subjects to condemnation the prizes made by our public ships of war. \nIt has not escaped the consideration of  the court that a legislative act, founded on a mistaken opinion of what was law, does not change the actual state of the law as to pre-existing cases. \nThis principle is not shaken by the opinion now given. The court goes no further than to use the provisions in one of several acts forming a general system, as explanatory of other parts of the same system; and this appears to be in obedience to the best established rules of explosition, and to be necessary to a found construction of the law. \nAn objection was made to the claim of salvage by one of the counsel for the defendant in error, unconnected with the acts of congress, and which it is proper here to notice. \nHe states that to give title to salvage the means used must not only have produced the benefit, but must have  been used with that sole view. For this he cites Beawes lex mercatoria 158. \nThe principle is applied by Beawes to the single case of a vessel saved at sea by throwing overboard a part of her cargo. In tht case the principle is unquestionably correct, and in the case of a re-capture it is as unquestionably incorrect. The re-captor is seldom actuated by the sole view of saving the vessel, and  in no case of the sort has the enquiry ever been made. \nIt is then the opinion of the court on a consideration of the acts of congress, and of the circumstances of the case, that the re-capture of the Amelia was lawful, and that, if the claim to salvage be in other respects well founded, there is nothing to defeat it in the character of the original taking. \nIt becomes then necessary to enquire -- \n2d. Whether there has been such a meritorious service rendered to the re-captured as entitles the re-captor to salvage. \nThe Amelia was a neutral ship, captured by a French cruizer, and re-captured while on her way to a French port, to be adjudged according to the laws of war. \nIt is stated to be the settled doctrine of the law of nations, that a neutral vessel captured by a belligerent is to be discharged without paying salvage: and for this several authorities have been quoted, and many more might certainly be cited. That such has been a general rule is not to be questioned. As little is it to be questioned that this rule is founded exclusively on the supposed safety of the neutral. It is expressly stated in the case of the War Onskan, cited from Robinson's reports, to be  founded on this plain principle, \"that the liberation of a clear neutral from the hand of the enemy, is no essential service rendered to him, in as much as that the same enemy would be compelled by the tribunals of his own country after he had carried the neutral into port, to release him with costs and damages for the injurious seizure and detention.\" It is not unfrequent to consider and speak of a  regular practice under a rule, as itself forming a rule. A regular course of decisions on the text of the law, constitutes a rule of construction by which that text is to be applied to all similar cases: But alter the text, and the rule no longer governs. So in the case of salvage. The general principle  is, that salvage is only payable where a meritorious service has been rendered. In the application of this principle, it has been decided that neutrals carried in by a belligerent for examination, being in no danger, receive no benefit from recapture; and ought not therefore to pay salvage. \nThe principle is that without benefit, salvage is not payable: and it is merely a consequence from this principle, which exempts re-captured neutrals from its payment.But  let a nation change its laws and its practice on this subject; let its legislation be such as to subject to condemnation all neutrals captured by its cruizers, and who will say that no benefit is conferred by a re-capture? In such a course of things the state of the neutral is completely changed. So far from being safe, he is in as much danger of condemnation as if captured by his own declared enemy. A series of decisions then, and of rules founded on his supposed safety, no longer apply. Only those rules are applicable, which regulate a situation of actual danger. This is not, as it has been termed, a change of principle, but a preservation of principle by a practical application of it according to the original substantial good sense of the rule. \nIt becomes then necessary to enquire whether the laws of France were such as to have rendered the condemnation of the Amelia so extremely probable, as to create a case of such real danger, that her re-capture by captain Talbot must be considered as a meritorious service entitling him to salvage. \nTo prove this the counsel for the plaintiff in error has offered several decrees of the French government, and especially one of the 18th  of January, 1798. \nObjections have been made to the reading of these decrees as being the laws of a foreign nation, and therefore facts, which like other facts, ought to have been  proved, and to have formed a part of the case stated for the consideration of the court. \nThat the laws of a foreign nation, designed only for the direction of its own affairs, are not to be noticed by the courts of other countries, unless proved as facts, and that this court, with respect to facts, is limited to the statement made in the court below, cannot be questioned. The real and only question is whether the public laws of a foreign nation, on a subject of common concern to all nations, promulgated by the governing powers of a country, can be noticed as law by a court of admiralty of that country, or must be still further proved as a fact. \nThe negative of this proposition has not been maintained in any of the authorities which have been adduced. On the contrary, several have been quoted, (and such seems to have been the general practice) in which the marine ordinances of a foreign nation are read as law without being proved as facts. It has been said that this is done by consent:  that it is a matter of general convenience not to put parties to the trouble and expense of proving permanent and well inown laws which it is in their power to prove; and this opinion is countenanced by the case cited from Douglas. If it be correct, yet this decree having been promulgated in the United States as the law of France, by the joint act of that department which is entrusted with foreign intercourse, and of that which is invested with the powers of war, seems to assume a character of notoriety which renders it admissible in our courts. \nIt is therefore the opinion of the court that the decree should be read as an authenticated copy of a public law of France interesting to all nations. \nThe decree ordains that \"the character of vessels, relative to their quality of neuter or enemy, shall be determined by their cargo; in consequence, every vessel found at sea, loaded in whole or in part with merchandize the production of England or her possessions, shall be declared good prize, whoever the owner of these goods or merchandize may be.\" \n This decree subjects to condemnation in the courts of France a neutral vessel laden, in whole or in part, with articles the  growth of England or any of its possessions. A neutral thus circumstanced cannot be considered as in a state of safety. His re-captor cannot be said to have rendered him no service. It cannot reasonably be contended that he would have been discharged in the ports of the belligerent, with costs and damages. \nLet us then enquire whether this was the situation of the Amelia. The first fact states her to have sailed from Calcutta in Bengal, in April, 1799, laden with a cargo of the product and manufactory of that country. Here it is contended that the whole of Bengal may possibly not be in possession of the English, and therefore it does not appear that the cargo was within the description of the decree. But to this it has been answered, that in enquiring whether the Amelia was in danger or not this court must put itself in the place of a French court of admiralty, and determine as such court would have determined. Doing this, there seems to be no reason to doubt that the cargo, without enquiring into the precise situation of the British power in every part of Bengal, being prima facie of the product and manufacture of a possession of England, would have been so considered, unless  the contrary could have been plainly shewn. \nThe next fact relied on by the defendant in error is, that the Amelia was sent to be adjudged according to the laws of war, and from thence it is inferred that she could not have been judged according to the decree of the 18th of January. \nIt is to be remembered that these are the orders of the captor, and without a question, in the language of a French cruizer, a law of his own country furnishing a rule of conduct in time of war, will be spoken of as one of the laws of war. \nBut the third and fourth facts in the statement admit the Amelia, with her cargo, to have belonged to a citizen of Hamburgh, which city was not in a state of hostility with the republic of France, but was to be considered as neutral between the then belligerent powers. \n It has been contended that these facts not only do not show the re-captured vessel to have been one on which the decree could operate, but positively show that the decree could not have affected her. \nThe whole statement taken together amounts to nothing more than that Hamburgh was a neutral city; and it is precisely against neutrals  that the decree is in terms directed.  To prove, therefore, that the Amelia was a neutral vessel, is to prove her within the very words of the decree, and consequently to establish the reality of her danger. \nAmong the very elaborate arguments which have been used in this case, there are some which the court deem it proper more particularly to notice. \nIt has been contended that this decree might have been merely in terrorem; that it might never have been executed; and that being in opposition to the law of nations, the court ought to presume it never would have been executed. \nBut the court cannot presume the laws of any country to have been enacted in terrorem, nor that they will be disregarded by its judicial authority. Their obligation on their own courts must be considered as complete; and without resorting either to public notoriety, or the declarations of our own laws on the subject, the decisions of the French courts must be admitted to have conformed to the rules prescribed by their government. \nIt has been contended that France is an independent nation, entitled to the benefits of the law of nations; and further, that if she has violated them, we ought not to violate them also, but ought to remonstrate  against such misconduct. \nThese positions have never been controverted; but they lead to a very different result from that which they have been relied on as producing. \nThe respect due to France is totally unconnected with the danger in which her laws had placed the Amelia; nor  is France in any manner to be affected by the decree this court may pronounce. Her interest in the vessel was terminated by the re-capture, which was authorized by the state of hostility then subsisting between the two nations. From that time it has been a question only between the Amelia and the re-captor, with which France has nothing to do. \nIt is true that a violation of the law of nations by one power does not justify its violation by another; but that remonstrance is the proper course to be pursued, and this is the course which has been pursued. America did remonstrate, most earnestly remonstrate to France against the injuries committed on her; but remonstrance having failed, she appealed to a higher tribunal, and authorized limited hostilities. This was not violating the law of nations, but conforming to it. In the course of these limited hostilities the Amelia has been re-captured,  and the enquiry now is, not whether the conduct of France would justify a departure from the law of nations, but what is the real law in the case. This depends on the danger from which she has been saved. \nMuch has been said about the general conduct of France and England on the seas, and it has been urged that the course of the latter has been still more injurious than that of the former. That is a consideration not to be taken up in this cause.Animadversions on either, in the present case, would be considered as extremely unbecoming the judges of this court, who have only to enquire what was the real danger in which the laws of one of the countries placed the Amelia, and from which she has been freed by her re-capture. \nIt has been contended that an illegal commission to take, given by France, cannot authorize our vessels to re-take; that we have no right by legislation to grant salvage out of the property of a citizen of Hamburgh, who might have objected to the condition of the service. \nBut it is not the authority given by the French government to capture neutrals, which is legalizing the re-capture made by capt. Talbot, it is the state of hostility between the two nations  which is considered as having authorized that act. The re-capture having been made lawfully, then the right to salvage, on general principles, depends  on the service rendered. We cannot presume this service to have been unacceptable to the Hamburgher, because it has bettered his condition; but a re-capture must always be made without consulting the re-captured. The act is one of the incidents of war, and is in itself only offensive as against the enemy. The subsequent fate of the re-captured depends on the service he has received, and on other circumstances. \nTo give a right to salvage, it is said there must be a contract either express or implied. \nHad Hamburgh been in a state of declared war with France, the re-captured vessels of that city would be admitted to be liable to pay salvage. If a contract be necessary, from what circumstances would the law, in that state of things imply it? Clearly from the benefit received, and the risk incurred. If in the actual state of things there was also benefit and risk, then the same circumstances concur, and they warrant the same result. \nIt is also urged that to maintain this right, the danger ought not to be merely  speculative, but must be imminent and the loss certain. \nThat a mere speculative danger will not be sufficient to entitle a person to salvage is unquestionably true. But that the danger must be such, that escape from it by other means was inevitable, can not be admitted. \nIn all the cases stated by the counsel for the defendant in error, safety by other means was possible, though not probable. The flames of a ship on fire might be extinguished by the crew, or by a sudden tempest. A ship on the rocks might possibly be got off by the aid of wind and tides without assistance from others. A vessel captured by an enemy might be separated from her captor, and if sailors had been placed on board the prize, a thousand accidents might possibly destroy them; or they might even be blown by a storm into a port of the country to which the prize vessel originally belonged. \nIt cannot therefore be necessary that the loss should be inevitably certain, but it is necessary that the danger should  be real and imminent. It is believed to have been so in this case. The captured vessel was of such description that the law by which she was to be tried, condemned her as good prize to  the captor. Her danger then was real and imminent. The service rendered her was an essential service, and the court is therefore of opinion that the re-captor is entitled to salvage. \nThe next object of enquiry, is, what salvage ought to be allowed? The captors claim one half the gross value of the ship and cargo. To  support this claim they rely on the act \"for the government of the navy of the United States,\" passed the 2d of March, 1799. This act regulates the salvage payable on the ships and goods belonging to the citizens of the United States, or to the citizens or subjects of any nation in amity with the United States, re-taken from the enemy. \nIt has been contended that the case before the court is in the very words of the act. That the owner of the Amelia is a citizen of a state in amity with the United States, re-taken from the enemy. That the description would have been more limited, had the intention of the act been to restrain its application to a re-captured vessel belonging to a nation engaged with the United States against the same enemy. \nThe words of the act would certainly admit of this construction. \nAgainst it, it has been urged, and we  think with great force, that the laws of the United States ought not, if it be avoidable, so to be construed as to infract the common principles and usages of nations, or the general doctrines of national law. If the construction contended for be given to the act, it subjects to the same rate of salvage a re-captured neutral, and a re-captured belligerent vessel. Yet, according to the law of nations, a neutral is generally to be restored without salvage. \nThis argument in the opinion of the court, derives great additional weight from the consideration that the act in question is not temporary, but permanent. It is not merely fitted to the then existing state of things, and  calculated to expire with them, but is a regulation applying to present and future times. \nWhenever the danger resulting to captured neutrals from the laws of France should cease, then, according to the principles laid down in this decree, the liability of re-captured neutrals to the payment of salvage, would, in conformity with the general law and usage of nations, cease also. This event might have happened, and probably did happen, before hostilities between the United States and France were  terminated by treaty. Yet, if this law applies to the case, salvage from a re-captured neutral would still be demandable. \nThis act then, if the words admit it, since it provides a permanent rule for the payment of salvage, ought to be construed to apply only to cases in which salvage is permanently payable. \nOn inspecting the clause in question, the court is struck with the description of those from whom the vessel is to be re-taken in order to come within the provisions of the act. The expression used is the enemy. A vessel re-taken from the enemy. The enemy of whom? The court thinks it not unreasonable to answer, of both parties. By this construction the act of congress will never ciolate those principles which we believe, and which it is our duty to believe, the legislature of the United States will always hold sacred. \nIf this act does not comprehend the case, then the court is to decide, on a ;just estimate of the danger from which the re-captured was saved, and of the risk attending the re-taking of the vessel, what is a reasonable salvage. Considering the circumstances, and considering also what rule has been adopted in other courts of admiralty, one-sixth appears  to be a reasonable allowance. \nIt is therefore the opinion of the court, that the decree of the circuit court, held for the district of New-York, was correct in reversing the decree of the district court, but not correct in decreeing the restoration of the Amelia without paying salvage. This court, therefore, is of opinion, that the decree so far as the restoration of the  Amelia without salvage is ordered, ought to be reversed, and taht the Amelia and her cargo ought to be restored to the claimant, on paying for salvage one-sixth part of the nett value, after deducting therefrom the charges which have been incurred. \n \n\n ", " \nOpinion \n\n \n \n  The court took time till this term to consider, and now the chief justice delivered the following opinion: \nOpinion of the Court. \nTHIS is a writ of error to a judgment of the court of the United States for the district of Kentucky, rendered on a caveat, and is governed by the land laws of Virginia. \n In the year 1779 the legislature of that commonwealth opened a land office and offered for sale, with some reservations, so much of that tract of country lying within its boundaries south-east of the river Ohio as was then  unappropriated: a part of which now constitutes the state of Kentucky. \nEvery person who would pay at the rate of forty pounds for one hundred acres into the treasury of the state, became entitled to such quantity of waste and unappropriated land as was, at that rate, equivalent to the money paid, for which a certificate was given to the register of the land office, whose duty it was on receipt thereof, to issue a warrant for the quantity of land purchased, authorizing any surveyor, qualified according to law, to lay off and survey the same. A warrant might also be issued on certain other rights. \nA chief surveyor was appointed for each county, whose duty it was to nominate a sufficient number of deputies for the business of his county, and the law proceeded to direct that \"every person, having a land warrant founded on any of the before mentioned rights, and being desirous of locating the same on any particular waste and unappropriated lands, shall lodge such warrants with the chief surveyor of the county wherein the said lands or the greater part of them lie, who shall give a receipt for the same if required. The party shall direct the location thereof so specially and precisely  as that other may be enabled with certainty to locate other warrants on the adjacent residuum; which location shall bear date on the day on which it shall be made, and shall be entered by the surveyor in a book to be kept for that purpose, in which there shall be left no blank leaves or spaces between the different entries.\" \nGeorge Mason was one of the earliest purchasers under this law. \nOn the 29th of April, 1780, he made the following entries: \n\"1780, 29th April, George Mason enters 8,400 acres of land to begin on Panther creek on the east side  thereof, opposite to a beech on the west side about four miles above the mouth of the west fork, and to run up and down the said creek and eastwardly for quantity.\" \n\"1780, April 29th, George Mason enters 8,300 acres, to begin at the upper corner of his 8,400 acre entry, and to run up the creek on the east side and back for quantity.\" \nPanther creek pursues a general westwardly course from its source till it empties into Green River. \nThe creek forks something more than twelve miles and one quarter of a mile in a straight line above its mouth; and one of those forks, the direction of which towards its source is northwardly,  has, from the beginning of the year 1780, been generally termed the west fork, and the other has been termed Panther creek. \nOn the 27th of October, 1780, Mr. Mason made the following entry with the same surveyor: \n\"1780, October the 27th, George Mason desires to make his entry of 8,400 acres, more special on Panther creek, viz. to begin four miles above the forks of Panther creek where it mouths into Green river on the east side running up and back for quantity.\" \nIn the months of September and October, 1783, these two entries of 8,400 and 8,300 acres were surveyed by James Hord, one of the deputy surveyors of the county of Jefferson, which surveys, as was the custom, were made comformably to the instructions given by Mr. Mason's agent. \nThe survey of the entry of 8,400 acres is supposed to conform to the explanation or amendment of that entry made in October, 1780. It begins four miles above the mouth of Panther creek and something more than eight miles below its forks. \nThe survey of 8,300 acre entry adjoins the survey of 8,400 acres on the upper side; and the plat was shown by the surveyor before he would return it to the then agent  of Mr. Mason, who, after its  supposed variance from the entry was suggested to him, approved it and directed it to be returned to the office. \nThese surveys were returned in the course of the fall, 1783. \nThe supposed variance between the survey and location of the 8,300 acres was afterwards, about the 12th of September, 1784, pointed out by the surveyor to a subsequent agent of Mr. Mason, who also approved of the manner in which the surveys were made, and returned them to the land office. \nOn the 9th of April, 1783, George Wilson enters with the surveyors of Jefferson county 40,926 acres of land on Panther creek, so as entirely to include George Mason's survey of 8,300 acres. \nThis entry, though in the name of George Wilson, was made by John Handley, a deputy surveyor for Jefferson county, for his own benefit and that of Christopher Greenup, as well as for the benefit of George Wilson, and at the time of making the entry, full knowledge of the previous survey made of the same land for George Mason, had been obtained by the said  Handley, who had seen the surveys in the office and had communicated this information to his two partners in the entry. \nIn the month of March, 1784, George Wilson  entered in the supreme court of the district of Kentucky a caveat to prevent a grant from issuing on George Mason's survey of 8,300 acres, because the survey was made contrary to location, and because the entry was vague, he claimed the same, and so much thereof as interferes with his entry made on treasury warrants for 40,926 acres on the 9th of April, 1784. \nPending the caveat, George Mason departed this life, and the suit was revived against Richard Mason, devisee of the said George, at whose petition it was removed into the court of the United States, held for the district of Kentucky. \n A cross caveat was entered in the same court on the part of Richard Mason, to prevent the issuing a patent to George Wilson, and these causes coming on to be heard, it was agreed that the judgment rendered in the caveat Wilson v. Mason, should be also entered in the case of Mason v. Wilson. \nIn June term 1800, the opinion of the court for the district of Kentucky was given that the defendant Mason had the better right, and it was ordered that the caveat entered by Wilson should be dismissed. \nTo this judgment the plaintiff Wilson has obtained a writ of error, and the principal  question now to be decided by this court is, which of the parties has the better right? \nBut before entering into the question it may be necessary to notice a preliminary point made by the counsel for the defendant in error. He contends that in a caveat the decision of the district court is final, and that the cause cannot be carried before a superior tribunal. \nTo maintain this proposition he relies on an act of the legislature of Virginia, making the judgments of the district courts of the state final over cases of caveat; and on the compact between Virginia and Kentucky, which stipulates that rights acquired under the commonwealth of Virginia shall be decided according to the then existing laws. \nThis argument would not appear to be well founded had Virginia and Kentucky even been for every purpose independent nations; because the compact must be considered as providing for the preservation of titles, not of the tribunals which should decide on those titles. But when their situation in regard to the United States is contemplated, the court cannot perceive how a doubt could have existed respecting this point. The constitution of the United States, to which the parties to  this compact had assented, gave jurisdiction to the federal courts in controversies between citizens of different states. The same constitution vested in this court an appellate jurisdiction in all cases where original jurisdiction was given to the  inferior courts, with only \"such exceptions and under such regulations as the congress shall make.\" Congress, in pursuance to the constitution, has passed a law on the subject, in which the appellate jurisdiction of this court is described in general terms so as to comprehend this case, nor is there in that law any exception or regulation which would exclude the case of a caveat from its general provisions. If then the compact between Virginia and Kentucky was even susceptible of the construction contended for, that construction could only be maintained on the principle that the legislatures of any two states might, by agreement between themselves, annul the constitution of the United States. \nThe jurisdiction of the court being perfectly clear, it remains to enquire which of the parties has the better right. \nThe title of Mason being eldest is of course the best if it be not in itself defective. \nIn the caveat of the  plaintiff in error two defects in the title of the defendant are assigned. \n1st. That his entry is vague. \n2dly. That he surveyed contrary to his location. \nThe first was abandoned in argument, and does not appear to the court to have been maintainable. \nThe second shall now be considered. \nTo support the allegation that the survey has been made contrary to the location, the entry and the survey are produced. \nThe entry calls for a beginning on the upper corner of George Mason's entry of 8,400 acres. To ascertain this spot reference must be had to the entry called for. That is to begin on Panther creek, on the east side thereof, opposite to a beech on the west side, about four miles above the mouth of the west fork, and to run up and down the said creek and eastwardly for quantity. \n The branch of Panther creek which was at the date of the entry generally denominated the west fork, is something more than twelve miles and one quarter of a mile above its mouth. The entry of 8,400 acres is to begin four miles above the west fork, and the land in controversy ought to be placed above that entry. Yet it is surveyed below the west fork. \nTo obviate this difficulty  the counsel for the defendant in error produces and relies upon the entry of October 27th, 1780. \nThat entry is in these words: \n\"George Mason desires to make his entry of 8,400 acres more special on Panther creek, viz. to begin four miles above the forks of Panther creek, where it mouths into Green river, on the east side, running up and back for quantity.\" \nThis entry is contended to be, not a removal, but an explanation of that which had been made on the 29th of April, 1780, and being merely an explanation, the survey of the land in controversy, beginning at the upper corner of the survey of the 8,400 acre tract, conforms to its original location, and is consequently free from the exception made to it. \nIf this position be true, the entry of the 27th of October, 1780, must describe the same land with that which is described, though with less certainty, by the entry of the 29th of April in the same year. \nBut the entry of the 29th of April, calls for a beginning four miles above the mouth of the west fork of Panther creek, which fork is more than twelve miles a straight line above the mouth of the creek, and the subsequent entry begins four miles above the forks of Panther  creek where it mouths into Green river. The west fork of Panther creek and the mouth of the same creek where it empties into the river are perfectly distinct and separate places and  were so understood at the time this location was made. \n It is however contended that in the extensive wilderness offered for sale, accuracy of description was not to be expected, and the point of union between a creek and a river might well be mistaken for the forks of a creek. \nThis would not be very probable in any case, but is totally inadmissible in this, because names of places which they were generally understood to possess have been used by the person locating for Mr. Mason, and as there are no other controlling boundaries referred to, they must be understood as designating the water courses which were commonly described by those names, and which any person inclined to locate the adjacent residuum, would necessarily suppose to have been referred to by them. \nBut if the location of October explains without removing that of April, then the original entry might without such explanation, have been there surveyed, and could not have been properly surveyed four miles above  the west fork. \nThis would scarcely have been attempted. \nIndeed the counsel for the appellee, in admitting that an entry made on the land in controversy, subsequent to Mason's entry, but before his survey, would have been good, seems to have disclosed an opinion that the original entry did not comprehend the land in question, and that not the entry, but the survey is to be relied on as the foundation of his title. \nTo the court it appears perfectly clear, that the entry of the 27th of October was a removal and not an explanation, of that of the 29th of April. \nIt has not been contended that the removal of the 8,400 acre entry has also removed that of 8,300 acres. \nhe title of Mason then if good, must be shewn to be so by establishing that a survey without an entry is a sufficient foundation for a title. \nWith a view to discover whether this question has been settled in Kentucky all the adjudications contained in the  book of reports furnished by the counsel for the plaintiff in error, have been examined. It is not perceived either that the question has been directly determined, or that any principles have been settled which govern it. \nThis case then is of  the first impression. \nThe act of the Virginia legislature must be expounded according to the opinion this court may entertain of its import, without deriving any aid from the decisions of the state tribunals. \nIn 1779, Virginia opened a land office for the sale of an extensive unsettled and almost unexplored country, the motives for which are stated in the preamble of the statute to have been, \"to encourage the migration of foreigners, promote population, increase the annual revenue, and create a fund for discharging the public debt.\" \nAny person whatever might become a purchaser of any portion of these lands by paying into the treasury of the commonwealth the purchase money required by law. By doing so he became intitled to a warrant authorizing any surveyor to lay off for him in one or more surveys the quantity of land purchased. It was apparently contemplated by the law that the number of purchasers would immediately become very considerable. The condition of these purchasers in this stage of the contract ought to be distinctly understood. They had acquired a right each to appropriate to himself so much of the vacant land belonging to the commonwealth as he had purchased,  but no right either in common or severally, to the whole or any particular part of the country, until such right should be acquired by further measures. \nThis was at the same time the situation of a great number of persons, and a prior was in no respect more eligibly circumstanced than a subsequent purchaser, except in the single case of both applying precisely at the same time, for the purpose of appropriating each to himself the same land. Had the purchaser of the first warrant been negligent enough to hold it up until the whole land was appropriated, the title of every subsequent purchaser would have been good against him, and he would have been  without remedy. The original purchase of a warrant then creating only a general claim which gave of itself only in a single case priority of right to the prior purchaser, it becomes indispensably necessary to prescribe a mode by which this general title should be satisfied by the appropriation of a particular tract of land. \nThis mode seems to have been prescribed by that part of the act which says that \"every person having a land warrant and being desirous of locating the same on any particular waste and unappropriate lands,  shall lodge such warrant with the surveyor of the country wherein the lands or the greater part of them lie.\" \"The party shall direct the location thereof so specially and precisely that others may be enabled with certainty, to locate other warrants on the adjacent residuum; which location shall bear date the day on which it shall be made, and shall be entered by the surveyor in a book to be kept for that purpose.\" \nThis mode of appropriation pointed out by the law as that which must be used by any person desirous of locating a warrant on any particular waste and unappropriated land, requires that the location shall be given to the surveyor with the warrant, in order to be entered in a book kept for that purpose, which is denominated the book of entries. \nIt is apparent throughout the whole act that the legislature never contemplated a survey as being in itself an appropriation of land, or supposed that one would be ever made, if not founded on a previous entry. \nSome few of the many passages which are found in various parts of the law will be selected to evince this position. \nThe surveyor is forbidden to admit the entry of any warrant on treasury rights, except pre-exemption  warrants, in his books before the first day of May next succeeding the passage of the act. But the prohibition does not extend to a survey, and yet this would have been equally necessary if land could have been appropriated by a survey without a previous location. \n It is delcared that no entry or location shall be admitted for certain lands which are described in the act and intended to be reserved: But there is no declaration and they shall not be surveyed. This omission manifests  an opinion that they could not be appropriated by survey alone. \nIn prescribing the duty of a surveyor the law enjoins him to proceed with all practicable dispatch to survey all lands entered in his office; and many rules are given to regulate the surveying of entries; but there is not a syllable in the act which contemplates or makes a single provision for surveys not founded on a prior entry made in the book of entries. \nThe mode of appropriation then which the law designates has not been pursued, but it is contended that another course has been adopted which equally produces all the objects designed to be effected by the location in the book of entries, and which therefore  ought to be received as a sufficient substitute for an entry. \nThe legislature of Virginia, when bringing her lands into the market, had undoubtedly a right to prescribe the terms on which she would sell, and the mode to be pursued by purchasers for the purpose of particularising the general title acquired by obtaining a land warrant. The court is by no means satisfied of its power to substitute any equivalent act for that required by the law. \nThe case of Blackwell v. Harper, reported in 2. Atkyns, 93, has been cited to show the authority of a court to dispense with part of a statute directing the mode of proceeding to be observed by a person who claims title under such statute. \nThat case arose under an act of parliament which directs that \"any person who shall invent, or design, engrave, &c. any historical or other print or prints, shall have the sole right and liberty of printing and re-printing the same for the term of fourteen years, to commence from the day of the first publishing thereof, which shall be truly engraved with the name of the proprietor on each plate, and printed on every such print or prints.\"  The plaintiff has engraved certain medicinal plants,  a work deemed within the act, and had brought a bill to establish her right to the sole property in them, and to restrain the defendant from copying and engraving them, upon the penalties within the act of parliament. \nIt was objected that the day of publication from which the term was to commence had not been engraved, and so the act had not been complied with and consequently the property had not vested. \nLord Hardwicke was of opinion that the property vested, although the day of publication was not engraved, and that the words directing the day of publication to be engraved on each print were only necessary to make the penalties incur, not to give the title. \n\"Here,\" said his lordship, \"the clause which vests the property is distinct.\" \nThis opinion however was given with great doubt, and only an injunction was granted without costs and without an order for an account. \nThe case of Blackwell v. Harper has, at the bar, been denied to be law. However this may be, it is certainly essentially variant from that before the court. \nThe opinion of lord Hardwicke was not that where any circumstance was required by a statute in order to vest a title, other equivalent acts might  be received as a substitute; but that the particular statute on which the case depended, did not require the omitted circumtance, since the property was vested by a distinct clause. \nBy a reference to the words themselves, it will be perceived that the expression of the act of parliament is such as might perhaps warrant this opinion. The property is completely vested before the direction concerning the date of the publication is given, and lord Hardwicke supposes it to be a question on which judges would differ whether the subsequent words were merely directory or descriptive. A perfect property in the specific thing was supposed by that judge to have been given by other words, and on that idea his decree is declared to have been formed. \n But in the case under consideration no property in the specific thing is supposed to have been given by other words. No title to it is created by any other part of the act. The purchase of the land warrant gave a power to appropriate, but was no appropriation, and the mode pointed out by the legislature would seem to the court to be that, which can alone give title to the particular lands. \nBut if this opinion should even be too  strict, if an act entirely equivalent to an entry could be received as a substitute for one, a survey does not appear to be such an act, nor does it seem to have been so considered by the legislature. \nFrom the circumstances under which the act for establishing the land office was passed, as well as from the expressions of that act, it is apparent that the entry was intended to give complete notice to other purchasers that the land located was already appropriated. The mode of giving this notice it was certainly proper to prescribe. By doing so, the numerous doubts and questions concerning the sufficiency of notice, which would inevitably arise from leaving that important fact to the discretion of individuals, in the first instance, and then to the discretion of courts to be exercised many years after all the lands should be located, would be in a considerable degree obviated. \nIt was doubtless an important object to obviate them. \nThe regulations therefore respecting entries are all calculated to make them as notorious as possible. -- Not so of surveys. \nThe entries and surveys are to be kept in separate books. Why so if a survey amounted to an entry? \nThe entry must  be dated when made by the locator; but the time of recording a survey may appear or not at the discretion of the surveyor, and a subsequent survey may be recorded before one of prior date. \nThere are to be no blanks in the book of entries, and this regulation is well calculated for the prevention of  frauds in the origin of titles. It does not apply to the books of survey. \nThe book of entries is open to the inspection of every person. The book of surveys cannot be looked into but at the discretion of the surveyor. \nIf a prior entry be alleged the person affected thereby has a right to demand a copy thereof; but no copy of a survey can be given to any other than the proprietor until twelve months after it shall have been made. \nFrom the whole act a legislative intention to make an entry, and an entry only, the foundation of title to any particular tract of land is  strongly to be inferred, and if even an equivalent act could be received, a survey does not appear to be such an act. In this particular case it is true that complete notice was obtained by it, but titles must rest on general principles, and in the general, a survey would not, without something  more than the law requires, be notice. The law, therefore, can not contemplate a survey as of equal operation with an entry. \nA question has been made at the bar, whether a caveat is in the nature of an equitable action, and on the supposition that it is of that nature, the counsel for the defendant in error has insisted that Wilson, having express notice of Mason's survey, was unable to acquire title to the land appropriated by that survey. \nThis would be true if the survey gave to Mason any title either in law or equity. But if a survey without an entry was no appropriation -- if it gave no title -- then notice of the survey could not create a title. \nThe doctrine of notice is well established. He who acquires a legal title, having notice of the prior equity of another, becomes a trustee for that other to the extent of his equity. But if he has no equity, then there is nothing for which the purchaser of the legal estate can be a trustee. \nA point in the case still remains which appears more doubtful, and concerning which very considerable difficulties have been felt. \n Although Mason's survey may give him no title, it is questioned whether Wilson can maintain  a caveat against it. \nThe caveat is a remedy given to prevent a patent from issuing in certain cases where the directions of the law have been violated to the injury of the commonwealth or where some other person hath a better right. The case before the court is that of a better right. The terms in which this remedy is accorded to the person who would avail himself of it for the purpose of asserting his own title are, \"or if any person shall obtain a survey of lands to which another hath by law a better right, the person having such better right may in like manner enter a caveat,\" &c. \nConsiderable doubts were entertained whether the word \"hath,\" in the description of the character by whom a caveat might be maintained, did not absolutely require that the better right should exist at the time the survey should be obtained. This construction, to which some of the court were at first greatly inclined, would have involved considerable inconvenience, and would have defeated what is deemed the essential object for which the remedy was given. \nIt has been already stated to the opinion of the court, that a survey not founded on an entry is a void act and constitutes no title whatever.  Consequently the land so surveyed remains vacant and liable to be appropriated by any person holding a land warrant. It is difficult to conceive that a remedy designed to enable an individual who has made his entry in conformity with the law, to prevent another from obtaining a grant for the land he has entered, should be withheld from any person whose entry entitles him to the land he has located. It is not less difficult to impute to the legislature an intention to protect a survey to which the law denies all power of appropriating the land it comprehends, or an intention of carrying such survey into grant, while another has legally appropriated to himself the land thus to be granted. It would be difficult to state a case to which the principle, that a remedy should be so extended as to meet the mischief, would apply more forcibly than to this. If however the  terms of the law had veen explicit, those terms must have controlled the subject. But the expression of the act is not if any person shall obtain a survey to which another at the time such survey may be obtained shall have by law a better right, the person having such better right may enter a caveat, &c. The  words of the law are not thus express. They are, if any person shall obtain a survey of land to which another hath by law a better right. The word hath in its most strict and rigid sense would refer neither to the time of making the survey, nor or of entering the caveat, but to the present moment when the word is used, and would require that the better right should exist at the time of the passage of the act. This construction would be universally rejected as absurd, and all would expect the court to understand the words more liberally, and to expound them so as to give some effect to the legislative will. Some latitude of construction then must be used, some words additional to those used by the legislature must be understood, and this being apparent, the court perceive no sufficient motive for extending the remedy to rights existing when the survey shall be made, and denying it to those which are equally valid and which exist when the caveat may be entered. \nThe caveat entered by Wilson is therefore maintainable under the land law of Virginia, since his title had accrued when it was entered. \nThe court is of opinion that the district court of Kentucky has erred in deciding  that the defendant in error hath the better right, and that their judgment ought to be reversed and annulled. In pursuance of this opinion I am directed to deliver the following judgment. \nJudgment of the court. \n\"Whereupon, it is considered by the court that the plaintiff Wilson hath by law the better right to the land in controversy, and that the judgment of the court of the United States for the district of Kentucky be reversed and annulled; and that the register of the land office in Kentucky do issue a grant to the said Wilson upon his survey of 30,000 acres of land registered in the said office, according to the metes and bounds thereof, and  that the said plaintiff do also recover his costs expended in this court and in the said district court, all which is ordered to be certified to the said district court, and the said register of the land office accordingly.\" \nIn the case of Mason v. Wilson, the judgment of the court was, \"that the defendant Wilson hath by law the better right to the land in controversy, and that the judgment of the court of the United States for the district of Kentucky be reversed and annulled; and that the said caveat be dismissed, and  that the defendant Wilson recover his costs, &c.\" 1 \n \n\n ", " \nOpinion \n\n \n \n  The Chief Justice delivered the opinion of the court. \nIn this case the court is of opinion that the schooner Peggy is within the provisions of the treaty entered into with France and ought to be restored. This vessel is not considered as being definitively condemned. The argument at the bar which contends that because the sentence of the circuit court is denominated a final sentence, therefore its condemnation is definitive in the sense in which that term is used in the treaty, is not deemed a correct argument. A decree or sentence may be interlocutory or final in the court which pronounces it, and receives its  appellation from its determining the power of that particular court over the subject to which it applies, or being only an intermediate order subject to the future control of the same court. The last decree of an inferior court is final in relation to the power of that court, but not in relation to the property itself, unless it be acquiesced under. The terms used in the treaty seem to apply to the actual condition of the property and to direct a restoration of that which is still in controversy between the parties.  On any other construction the word definitive would be rendered useless and inoperative. Vessels are seldom if ever condemned but by a final sentence. An interlocutory order for a sale is not a condemnation. A stipulation then for the restoration of vessels not yet condemned, would on this construction comprehend as many cases as a stipulation for the restoration of such as are not yet definitively condemned. Every condemnation is final as to the court which pronounces it, and no other difference is perceived between a condemnation and a final condemnation, than that the one terminates definitively the controversy between the parties and the other leaves that controversy still depending. In this case the sentence of condemnation was appealed from, it might have been reversed, and therefore was not such a sentence as in the contemplation of the contracting parties, on a fair and honest construction of the contract, was designed as a definitive condemnation. \nIt has been urged that the court take no notice of the stipulation for the restoration of property not yet definitively condemned, that the judges can only enquire whether the sentence was erroneous when delivered,  and that if the judgment was correct it cannot be made otherwise by any thing subsequent to its rendition. \nThe constitution of the United States declares a treaty to be the supreme law of the land.Of consequence its obligation on the courts of the United States must be admitted. It is certainly true that the execution of a contract between nations is to be demanded from, and, in the general, superintended by the executive of each nation, and therefore, whatever the decision of this court may be relative to the rights of parties litigating before it, the claim upon the nation is unsatisfied, may still be asserted.  But yet where a treaty is the law of the land, and as such affects the rights of parties litigating in court, that treaty as much binds those rights and is as much to be regarded by the court as an act of congress; and although restoration may be an executive, when viewed as a substantive, act independent of, and unconnected with, other circumstances, yet to condemn a vessel, the restoration of which is directed by a law of the land, would be a direct infraction of that law, and of consequence, improper. \nIt is in the general true that the province of an  appellate court is only to enquire whether a judgment when rendered was erroneous or not. But if subsequent to the judgment and before the decision of the appellate court, a law intervenes and positively changes the rule which governs, the law must be obeyed, or its obligation denied. If the law be constitutional, and of that no doubt in the present case, has been expressed, I know of no court which can contest its obligation. It is true that in mere private cases between individuals, a court will and ought to struggle hard against a construction which will, by a retrospective operation, affect the rights of parties, but in great national concerns where individual rights, acquired by war, are sacrificed for national purposes, the contract, making the sacrifice, ought always to receive a construction conforming to its manifest import; and if the nation has given up the vested rights of its citizens, it is not for the court, but for the government, to consider whether it be a case proper for compensation. In such a case the court must decide according to existing laws, and if it be necessary to set aside a judgment, rightful when rendered, but which cannot be affirmed but in violation  of law, the judgment must be set aside. \n \n\n ", " \nOpinion \n\n \n \n  The Chief Justice delivered the opinion of the court. \nThis was a motion made by the defendant in error against the now plaintiff in the circuit court at Alexandria, under an act of the Virginia assembly, which declares that \"if any sheriff, under sheriff or other officer, shall make kreturn on any writ of fieri facias or venditioni exponas, that he hath levied the debt, damages or costs as in such writ is required, or any part thereof, and shall not immediately pay the same to the party to whom the same is payable, or his attorney,\" \"it shall and may be lawful for the creditor at whose suit such writ of fieri facias or venditioni exponas,\" \"shall issue, upon a motion made at the next succeeding general court, or other court from whence such writ shall issue, to demand judgment against such sheriff, officer or under sheriff, or securities of such under sheriff, for the money or tobacco mentioned in such writ, or so much as shall be returned, levied on such writs,\" \"with interest thereon at the rate of 15 per centum per annum from the return  day of the execution,  until the judgment shall be discharged; and such court is hereby authorized and required to give judgment accordingly, and to award execution thereon; provided such sheriff or officer have ten days previous notice of such motion.\" That Turner had been sergeant of the town of Alexandria and had returned on a writ of fieri facias, issued on a judgment rendered by the court of hustings for that corporation,  in favour of Philip Richard Fendall, that he had made the debt and had levied thereon a writ of fieri facias issued on a judgment obtained by William Deneale against Robert Young and Philip R. Fendall, merchants, trading under the firm of Robert Young and Co. \nBefore the next succeeding term of the court of hustings would have arrived, that court was abolished, and all its powers and duties transferred to the circuit court of the district of Columbia for the county of Alexandria. \nTo the first term of the circuit court notice was given that a judgment would be moved for, and the notice was signed \"Philip Richard Fendall, for the trustees of the said Philip Richard Fendall.\" \nThe defendant did not appear to the notice, and it was continued  to the succeeding term, when the parties appeared, and the defendant, to prove that P. R. Fendall had taken the oath of an insolvent debtor and was thereupon discharged, offered in evidence a warrant signed William Herbert and R. West, discharging the said Philip R. Fendall out of custody, as an insolvent debtor, and further offered to prove the hand writing of the said Herbert and West, and also to prove, by oral testimony, that the said Philip Richard Fendall did take the oath of an insolvent debtor before the said William Herbert and Roger West, and that they were on the 21st of March, 1800, the time of administering the said oath and granting the said certificate, magistrates for the county of Fairfax. This testimony was rejected by the court as not being legal evidence to establish the fact, and to this opinion an exception was taken. \nThe defendant also offered to shew that the trustees of Philip R. Fendall were not entitled to the money levied by virtue of the execution mentioned in the notice, which testimony was likewise rejected by the court; and, to this opinion also, a bill of exceptions was taken. \nThe defendant then produced the execution issued in favour of Deneale  v. Robert Young and Philip R. Fendall, merchants, trading under the firm of Robert Young and Co. with the return thereon, showing that it had  been levied on the money of Philip R. Fendall then in his hands, and alleged that the officer had a right and was bound to levy the said execution on the said money, but the court was of opinion that he had not a right so to do, and to this opinion also an exception was taken. The court then proceeded to render judgment, on the notice, for the plaintiff; to which judgment a writ of error has been sued out of this court; and the errors assigned and relied on are, \n1st. That the court for the county of Alexandria was not empowered to render judgment in this case at any term subsequent to that next succeeding the return of the execution. \n2dly. That the testimony offered to the court to prove the insolvency of Philip R. Fendall, and rejected, was legal testimony to prove the fact for which it was adduced, and ought therefore to have been admitted. \n3dly.That the defendant in the court below ought to have been permitted to prove the trustees of Philip R. Fendall was entitled to receive the money to recover which the notice was  given, and, \n4thly. That the officer had a right to levy the execution of Deneale on the money of Philip R. Fendall in his hands. \nTo support the first error assigned, the words of the act of assembly giving the motion have been relied on as only empowering the court to render judgment in this summary mode, at the term next succeeding that to which the execution has been returned. \nThat is, that although the plaintiff has brought his case rightly into court, yet if, from any cause whatever, the court shall be unable to render judgment at the first term, the suit must be dismissed and the plaintiff must lose his remedy. The words must be very plain indeed which will force a court to put upon them so irrational a construction as this. On recurrence to the act relied on it does not appear that a restriction so unusual and so unjust in itself, has been imposed. The words \"such court,\" on fair construction, refer to the court in which  the motion has been made,, and not to the term to which notice was given. The difficulty therefore which would have presented itself, if the notice had been given to a term subsequent to the next succeeding the return of the execution,  has no existence in this case. \nIn considering the second error assigned, the court was satisfied that the proceedings before magistrates, in cases of insolvent debtors, are entirely matters in pais and are therefore to be proved by parol and other testimony. The evidence offered was certainly legal evidence to establish the fact for which it was adduced.The court however is not satisfied of its sufficiency; but without determining that question, and without determining whether in a case where there is no jury, a judgment ought, for the rejection of testimony which was admissible in law, to be reversed in any state of things, or the cause should be considered as if the testimony had been received; it is the opinion of all the judges, that the party is bound to show the relevancy of the fact intended to be established, to the case before the court. \nIn the present cause the fact to be established was the insolvency of endall, which insolvency is not shown to have been material in the case, since nothing appears in the record to induce an opinion that the proceeding could have been in any other name than his. \nAlthough then the testimony rejected was proper and legal evidence  towards establishing the fact, yet the court committed no error in rejecting that testimony, for which their judgment ought to be reversed, because the fact does not appear to have been relevant to the cause under their considerations. \nOn the third error assigned, the opinion of the court is, that whoever might in equity be entitled to the money, or to the use of Fendall's name, the notice as given could only be sustained by showing the legal right of Fendall to recover.A legal right in the trustees would have defeated the action, for it is instituted in  the name of Philip R. Fendall, although it may be for the benefit of his trustees, and neither the reversal or affirmance of this judgment would affect the right of the trustees to proceed in their own names. \n The fourth point is one of considerable importance and difficulty. In discussing it two questions have been made at the bar. \n1st. Can an execution be levied on money? \n2dly. Can it be levied on money in the hands of the officer? \nThe principle that an execution cannot be levied on money has been argued to be maintainable under the authority of adjudged cases, and under the letter and meaning  of the act of Virginia legislature on the subject of executions. \nYet no such adjudged case has been adduced. Lord Mansfield, in the case cited from Douglass 219, said \"he believed there were old cases where it had been held that the sheriff could not take money in execution even though found in the defendant's scrutoire, and that a quaint reason was given for it, viz. that money could not be sold,\" and it is believed that there may be such cases, but certainly there are also cases in which the contrary doctrine has been held. In 2d Shower 166, it is laid down expressly that money may be taken on a levari facias, and no difference in this respect is perceived between the two sorts of execution. In Dalton's Sheriff, 145, it is also stated in terms that money may be taken in execution on a fieri facias. The court can perceive no reason in the nature of the thing why an execution should not be levied on money, That given in the books, viz. that it cannot be sold, seems not to be a good one. The reason of a sale is that money only will satisfy the execution, and if any thing else be taken it must be turned into money; but surely, that the means of converting the thing into money  need not be used, can be no adequate reason for refusing to take the very article to produce which is the sole object of the execution. \nThe act of assembly concerning execution has also been relied on as showing that only such articles can be taken as may be sold. But the provisions of the act can only be considered as regulating the sale of such articles as in their nature require to be sold, and not as exempting  from execution such property as need not be sold.The object is not the sale but money, and if the money can be made without a sale it cannot be unlawful to do so. But in the case of an execution for tobacco money may be sold, and therefore may be executed, and it would be strange if by an execution ordering a sheriff to make money, money could not be taken, and yet might be taken on an execution ordering him to make some other article. \nIt is the opinion of the court that money may be taken in execution, if in the possession of the defendant; but the question of greater difficulty is, whether it may be taken by the officer before it has been paid to the person entitled to receive it. \nThe general rule of law is that all chattels, the property of the debtor,  may be taken in execution, and whenever an officer has it in his power to satisfy an execution in his hands, it is his duty to do so, and if he omits to perform his duty he must be accountable to those who may be injured by the omission. But has money, not yet paid to the creditor, become his property? That is, although his title to the sum levied may be complete, has he the actual legal ownership of the specific pieces of coin which the officer may have received? On principle the court conceives that he has not this ownership. The judgment to be satisfied is for a certain sum, not for the specific pieces which constitute that sum, and the claim of the creditor on the sheriff seems to be of the same nature with his claim under the judgment, and one which may be satisfied in the same manner. No right would exist to pursue the specific pieces received by the officer, although they should even have an ear mark, and an action of debt, not of detinue, may be brought against him if he fails to pay over the sum received, or converts it to his own use. It seems to the court that a right to specific pieces of money can only be acquired by obtaining the legal or actual possession of them,  and until this is done there can be no such absolute ownership as that an execution may be levied on them. A right to a sum of money in the hands of a sheriff can no more be seized than a right to a sum of money in the hands of any other person, and however wise or just it may be to give such a remedy the law does not appear yet to have given it. The dictum of judge Buller,  in the case in 1 Durnford and East 370, proves that the mere possession of money, as a trustee, does not give to the possessor, before a conversion, such a property in it, as to render it liable for his debts; but does not manifest an opinion that the person for whose use it was received, but to whose possession it has not come, is to be considered as the legal owner of the specific pieces themselves, so that they have become, in contemplation of law, his goods and chattels. Indeed it is observable in that case, that if the money had been due to the parish at the time the bankruptcy of the defendant, who was an overseer of the poor, took place, the parish would have been in no better condition than other creditors, and would have possessed no exclusive property in the money claimed. \nAlthough the  dictum of judge Buller may appear to militate somewhat against this position, yet the principle of the decision is in its favor, for the judgment of the court is declared to be founded on the fact that the debt was not a debt till after the bankruptcy. \nThe case cited from 3d Croke, 166, 176, expressly states the property of the money while in the hands of the sheriff, not to be in the creditor; and although the inference of the court from that principle does not appear to have been warranted, yet the principle itself is believed to be certainly correct. \nIn the case of Armistead v. Philpot, Doug. 219, the court directed the money of the debtor to be paid to the creditor, whose execution was in the hands of the sheriff holding that money also; but this direction would have been unnecessary if the sheriff had possessed a previous right to make the appropriation. \nIt is stated in Barnes' notes, 214, to have been adjudged in trinity term, 32d and 33d of George 2, in the case of Staple v. Bird, where a sheriff had levied an execution on money in his hands, that he should, notwithstanding this execution,  pay the money to the person entitled to the benefit of the first judgment.  It is true that in that case the person in whose name the judgment was rendered, was not entitled to the money received under it, but the case is not stated to have been decided on that principle; and  the very frequency of such a state of things furnishes an argument of no inconsiderable weight against the right to levy an execution on money so circumstanced. The equitable right of persons, whose names do not appear in the execution, ought to be preserved; and considerable injustice might result from imposing on the sheriff the duty of deciding at his peril on such rights. \nConsidering the case then either on principle or authority, it appears to the court that the creditor has not such a legal property in the specific pieces of money levied for him and in the hands of the sheriff, as to authorize that officer to take those pieces in execution as the goods and chattels of such creditor. \nBut the money becomes liable to such execution that instant it shall be paid into the hands of the creditor; and it then becomes the duty of the officer to seize it. It appears unreasonable that the law should direct a payment under such circumstances. If the money shall be seized  the instant of its being received by the creditor, then the payment to him seems a vain and useless ceremony which might well be dispensed with; and if the money should, by being so paid, be withdrawn from the power of the officer, then his own act would put beyond his reach, property rendered by law liable to his execution, and which of consequence the law made it his duty to seize. \nThe absurdity involved in such a construction led the court to a further consideration of the subject. \nThe mandate of a writ of fieri facias as originally formed, is that the officer have the money in court on the return day, there to be paid to the creditor. Forms of writs furnish strong evidence of what was law when they were devised, and of the duty of the officer to whom they are directed. Originally it was regularly the duty of the officer to have the money in court, and it has been held, that not even payment to the creditor himself could excuse the non-performance of this duty. The rigor of this rule has been considerably relaxed, but the form of the writ, as directed by a late act of the legislature of Virginia, yet is, that the money shall be in court on the return day, and there appears  no excuse for omitting this duty, unless  it shall have been paid to the creditor. The sheriff may certainly make such payment out of court, if no circumstance occurs which legally obstructs or opposes it, such as an injunction from the court of chancery, in which case, by the law of Virginia, the money must be returned; or an execution against the goods and chattels of the person to whom the money in his hands shall be payable. In the latter case it seems to the court still to be the duty of the sheriff to obey the order of the writ and to bring the money into court, there to be disposed of as the court may direct. This was done in the case of Armistead v. Philpot, and in that case the court directed the money to be paid in satisfaction of the second execution. This ought to be done whenever the legal and equitable right to the money is in the person whose goods and chattels are liable to such execution. \nIn the case of Turner and Fendall, the sheriff not having brought the money into court, but having levied an execution on it while in his hands, has not sufficiently justified the non-payment of it to the creditor; and therefore the court committed no error in rendering  judgment against him on the motion of that creditor. If the payment of the damages should be against equity, that was not a subject for the consideration of the court of law which rendered the judgment. \nJudgment affirmed. \n \n\n ", " \nOpinion \n\n \n \n Marshall, Chief justice. The law respecting the thirty days notice on a writ of error, and the ten days allowed for filing it, was predicated upon the existing state of things at the time of passing the act; at which time there was no circuit court whose term would not be finished more than forty days before the setting of the supreme court. The times of the session of the courts have been altered, but no alternation has been made in the law respecting the thirty days notice, which makes it difficult to form a rule in the case. \nAt present, if the citation has not been served thirty days, the court will not take up the cause until the thirty days have expired, unless the defendant in error shall appear. \nA citation not served is as no citation. \n \n\n ", " \nOpinion \n\n \n \n  Feb. 23d. The Chief Justice delivered the opinion of the court. \nThis is a writ of error to a judgment rendered in the circuit court of the district of  Columbia, sitting in Alexandria on the following case. \nA charter party was entered into between the parties on the tenth day of April, 1798, whereby Groverman let to Hooe and co. a vessel, of which he was owner, for a voyage to Havre de Grace. \nThe first article states the indenture to witness, \"that the said Groverman hath granted and to freight letten to the said R.T. Hooe and co. the brigantine Nancy, whereof he is owner, commanded by James Davidson, a citizen of the United States, now lying in the port of Alexandria, of the burthen of 197 tons, or thereabouts; and for and in consideration of the covenants herein after mentioned, doth grant and to freight let unto the said R. T. Hooe and co. their executors and administrators, the whole tonnage of the aforesaid vessel called the Nancy, from the port of Alexandria, in Virginia, to the port of Havre de Grace, in France, and back to the said port of Alexandria, in a voyage to be made by the said R.T. Hooe and co. with the said brigantine, in manner herein after mentioned; that is to say, to sail with the  first fair wind and weather that shall happen after she is completely laden, from the said port of Alexandria, with  a cargo of tobacco to be shipped by said R.T. Hooe and co. to the said port of Havre de Grace, and there deliver the said cargo to Messrs. Andrews and co. of that town, merchants, or to their assigns, in good order, the danger of the seas only excepted; and at the said port of Havre de Grace to take on board a full freight or lading of such goods as the said Andrews and co. may think proper to put on board said brigantine, as a return cargo, with which the said vessel is to make the best of her way directly back to the port of Alexandria, and there safely deliver such cargo to the said R.T. Hooe and co.\" \nGroverman further covenants with the said R.T. Hooe and co. that the vessel is and shall, during the voyage, be kept in good condition, and furnished with all manner of necessary and proper rigging, &c. and with mariners to navigate her. He further covenants to allow twenty-five running days for lading the vessel at the port of Alexandria, thirty days for discharging her cargo and taking on board the return cargo at Havre, and ten days for receiving her inward cargo at Alexandria. \nIn consideration of these covenants, R.T. Hooe and co. engage to pay the stipulated freight, and  # .8. 8. o. for every day's demurrage, if any there should be by their default at the port of Alexandria; and one hundred and fifty-one livres by the day for every day's demurrage, occasioned by their default at the port of Havre de Grace. \nOn the 11th day of April provisional articles were entered into between the same parties by which it was stipulated, that, \n1st. \"The captain or commander shall be instructed by his owner, previous to his sailing from Alexandria, to touch at Falmouth in such manner as shall appear to his crew, that there was a necessity for his so doing, there to lay off and on twenty-four hours (or longer if desired) in day light, during which time there will come off orders from Mr. Fox, the American consul, Mr. Thomas Wilson of London, or Messrs. Andrews and co. of Havre de Grace. \n 2dly. \"On receiving these orders the captain or commander must proceed directly for Havre de Grace, London, Hamburg, Bremen or Rotterdam, as he may be directed, and at one of these ports deliver his cargo, to such person or persons as the aforesaid orders may direct.\" \nThe third and fourth articles apply the covenants of the charter party, respecting the conduct  of the vessel in the port of Havre, to the contingency of her being ordered to some other port; and to the freight, and stipulate the demurrage to be # .6. 6. o. sterling by the day. \nThe fifth article is in these words. \n5th. \"If the vessel is detained over twenty-four hours at Falmouth, demurrage shall be paid for hetime at the rate stipulated in the charter party.\" On the 20th of June, 1798, the vessel arrived in Falmouth roads about three leagues from the port of Falmouth, where the master laid her to and immediately went on shore, and applied to Mr. Fox, the American consul, for orders where to proceed. Fox replied that he had received no orders for him and that therefore he must bring the vessel into the port of Falmouth, and there remain until orders were received for him to proceed to his port of discharge. \nThese orders were given to avoid the penalties of the British hovering act, which subjected to forfeiture the vessel and cargo if found in the situation in which the Nancy would have been, if she had waited for orders without entering the port. The captain immediately brought his vessel into port where she was seized on suspicion  of being French property,  and detained for nearly three months. \nAfter the seizure, on the 23d day of June, the captain received orders from Thomas Wilson, through Fox, to proceed with his vessel to London, there to deliver her cargo. \nThis suit is brought by Groverman to recover damages against R.T. Hooe and co. for this detention. \nThe declaration states the charter party and provisional agreement, and then assigns a breach of them in these  words. \"And the said plaintiff doth aver that the said brig arrived off Falmouth on the 19th day of June, 1798, when the captain, by the orders of the aforesaid Mr. Fox, the agent of the said defendants, conveyed her into the port of Falmouth, by means whereof the said brig was detained in the aforesaid port of Falmouth, more than twenty-four hours, to wit, from the 20th day of June last aforesaid, to the 11th day of September in the year 1798, when she failed by the orders of Andrews and co. the agents for the said defendants, for the Downs.\" And the declaration then charges that the defendant had not paid the demurrage stipulated in the charter party, or in the provisional articles. \nIssue was joined on the plea of conditions performed, and the jury  found a special verdict, containing the facts already stated, and further, that before the vessel sailed from Alexandria the captain was told by R.T. Hooe, that on his arrival off Falmouth he would receive instructions from Mr. Fox, the American consul, and that he must abode by such instructions; and that it was by the default of the defendants or their agents in sailing to have orders ready on the arrival of the said vessel off Falmouth as aforesaid, designating and directing to which of the ports of discharge mentioned in the second article of the provisional articles aforesaid, the said vessel was to proceed, and by the orders given to the said Davidson, (the master) by the said Mr. Fox, that the said Davidson did bring the said vessel to anchor in the said port of Falmouth, and that the said vessel and cargo were subjected to the seizure and detention aforesaid; if the law be for the plaintiff the jury find # .794. 19. 9. Virginia currency, damages; if the law be for the defendant, then they find for the defendants. \nThe circuit court was of opinion the law was for the plaintiff and rendered judgment in his favor. \nTo support this judgment the special verdict ought to shew  that R.T. Hooe and co. the defendants in the circuit court, have broken some covenant contained in the agreements between the parties; and that the breaches assigned in the declaration are upon the covenant so broken. \n The breach assigned is the non-payment of demurrage stipulated to be paid, for a longer detention than twenty-four hours at Falmouth; and it is to be enquired whether the declaration makes a case showing demurrage to be demandable, and how far the special verdict sustains that case. \nThe case made by the declaration is, \nThat on the arrival of the vessel off Falmouth the captain took her into port by order of Mr. Fox, by means whereof she was detained more than twenty-four hours. \nThe question arising out of this case for the consideration of the court, is, \nDoes it shew a breach of covenant on the part of R.T. Hooe and co. which subjects them to demurrage for the detention stated? \nThe fifth article is supposed to be broken. The words of the covenant are, \"if the vessel is detained over 24 hours at Falmouth, demurrage shall be paid for the time, at the rate stipulated in the charter-party.\" If this clause provides for every detention whatever,  however it may be occasioned, the enquiry is at an end, and the judgment should be affirmed. But on looking into the provisional articles, the general expressions, here used, will be found to be explained. \nThe first of these articles stipulates that the captain should touch at Falmouth, there to lay off and on for twenty-four hours (or longer if desired) in day light, during which time there will come off orders from Mr. Fox the American consul, Mr. Thomas Wilson of London, or Messrs. Andrews and co. of Havre de Grace. \nHere then is a power given to R.T. Hooe and co. to detain the vessel longer than twenty-four hours, lying off and on at the port of Falmouth, waiting for orders, and it is the only rational construction which can be given the contract to suppose that the fifth article refers to the first. \n A certain number of days are allowed for lading the vessel in Alexandria. But more days may be required, in which case demurrage is to be paid. So with respect to discharging and relading the vessel at the port of delivery in Europe; and so with respect to the return cargo in Alexandria: in each case demurrage is stipulated in the event of a longer detention  than is agreed on. \nWhen, then, a time is given to wait for orders at Falmouth, it is reasonable to suppose that the demurrage, which is to be paid, for a longer detention than the time given, relates to a detention occasioned by waiting for orders, or some breach of covenant by R.T. Hooe and co. \nThe declaration does not state the vessel to have waited, lying off and on, for orders, but to have been taken into port, by the orders of Mr. Fox, when she was seized and detained by the officers of the British government. \nThe covenant then was broken by taking the vessel into port, and it is to be enquired who is answerable for this breach. \nIt has been argued that R.T. Hooe and co. are answerable for it, because, \n1. Their orders for the further prosecution of the voyage ought to have been in readiness as stipulated. \n2. The vessel was taken into port by the orders of their agent, for whose acts they are accountable. \n3. The captain was, for the voyage, their captain; and the stipulation to lay off and on, therefore, being broken by him, was broken by them. \nTo the first argument, founded on the non-reception of orders, the observation already made may be repeated. The  declaration does not attribute the detention to that cause, but to a compliance with the orders of Fox in taking the vessel into port. \nIf, however, the charge in the declaration had been that orders were not ready on the arrival of the vessel,  that charge would have  been answered by the contract itself, which allows a delay of twenty-four hours for the reception of orders, without paying demurrage, and a longer time, if required, on paying therefor at the rate of #. 6. 6. o. sterling, by the day. \nThe failure then to have the orders, for the further destination of the vessel, in readiness on the arrival of the captain, or even within the twenty-four hours after his arrival, was no breach of contract on the part of R.T. Hooe and co. since it was an event contemplated and provided for by the parties; and the question whether in the actual case which has happened, that is of a delay longer than twenty-four hours in giving the orders, but of a seizure before that time elapsed, R.T. Hooe and co. are responsible for demurrage accruing between the termination of the twenty-four hours and the receipt of the orders, cannot be made in this case, because there is  no allegation in the declaration which puts that fact in issue. \nThe court will proceed then to consider whether, \n2dly. R.T. Hooe and co. are made accouantable for the vessel's being taken into port, since that measure was adopted in pursuance of the instructions of their agent, Mr. Fox. \nThe finding of the jury goes far to prove that the defendants in the court below have made themselves responsible for the conduct of Fox. They find that R.T. Hooe informed the captain before he sailed from Alexandria, that on his arrival off Falmouth, he would receive orders from Mr. Fox, and that he must abide by such instructions. This finding creates some difficulty in the case. But this communication from Mr. Hooe to the captain ought to be taken, it is conceived, in connection with the provisional articles. Those articles explain the nature of the orders to be received, and by which the captain was directed to abide. In them it is expressly stipulated that on receiving these instructions, the captain should proceed directly for Havre de Grace, London, Hamburg, Bremen, or Rotterdam, as he should be directed. The orders then which he was to receive and obey, must be supposed compatible  with this agreement.  This construction is the more reasonable, because, annexed to the provisional articles, is an acknowledgment on the part of the captain, that he was to act conformably to them. He ought not to have understood declarations of the kind stated in the verdict, as directing a departure from a written agreement entered into by the owner and freighters of the vessel, and to which he had bound himself to conform. \nThis article seems too to explain the power delegated by Hooe and co. to Fox; and to show that he was their agent for the purpose of directing the further destination of the vessel, but for no other purpose. \nIf this be the correct mode of understanding this part of the verdict, and it is believed to be so, then the particular conduct of Hooe and co. did not authorize the captain to obey the orders of the American consul in taking the vessel into port; nor are they responsible for the consequences of that measure, unless they could be considered as responsible for a violation of the covenant by the act of the captain. \nIf these facts are to be differently understood, and the communication made by Hooe to the captain is to be understood as  authorizing him to obey any order given by Fox, though that order should be directly repugnant to the provisional articles, still the liability of Hooe and co. in this suit, will depend on the question, whether the covenant to lay off and on at the port of Falmouth, was a covenant on the part of the owner, or of the freighters, of the vessel. This depends so much on the question whether Groverman or R.T. Hooe and co. were owners of the vessel for the voyage, that it will more properly be considered with that point. \n3. Was the captain under the direction of Groverman or Hooe and co. for the voyage? \nThis is to be determined by the whole charter party, and the provisional articles taken together. \nIt has been observed at the bar, and the observation has considerable weight, that Groverman lets the tonnage of  the vessel, and not the whole vessel, to the freighters. The expression of the charter party, it will be perceived, varies in the part descriptive of the agreement, from what is used in the part constituting the written agreement. The indenture witnesses, \"that the said Groverman hath granted, and to freight letten, to the said R. T. Hooe and co. the brigantine  Nancy, whereof he is owner,\" &c. but immediately proceeds to say, \"and for and in consideration of the covenants herein after mentioned, doth grant and to freight let to the said R.T. Hooe and co. the whole tonnage of the aforesaid vessel, from the port of Alexandria, in Virginia, to the port of Havre de Grace, in France,\" &c. As the latter are the operative words which really constitute the contract, it is conveived that they ought to prevail in construing that contract. Groverman, then, has only let to Hooe and co. the tonnage of the vessel, and therefore is the less to be considered as having relinquished ownership of her during the voyage. There are other circumstances which serve to show that the direction of the vessel, during the voyage, was intended to remain with Groverman. The cargo is to be delivered to Messrs. Andrews and co. of Havre de Grace, in good order, the danger of the seasonly excepted. This is an undertaking on the part of Groverman, which he certainly would not have made if he had relinquished the direction of the voyage to Hooe and co. If the vessel, pro bac vice, had been their vessel, Groverman would not have contracted for the delivery of the cargo;  and for the delivery to a specified person. \nIf the freighters had owned and commanded the vessel they might have delivered the cargo in Havre, to any other person, or have discharged at a port short of Havre, without injury to Groverman. So the cargo taken on board at havre is to be such as Andrews and co. may think proper; which return cargo is to be delivered to Hooe and co. in Alexandria. These stipulations all indicate that the voyage was to be performed under the orders of Groverman, because the acts stipulated are to be done by him, and the covenants are his covenants. \nThis is further evidenced by the subsequent language of the charter party. The succeeding sentence begins with the words, \"And the said Groverman doth further  \"covenant to and with the said R.T. Hooe and co.\" &c. showing  that the preceding covenants were all on the part of Groverman. This further covenant is not only for the present condition of the vessel, but that she shall be kept well apparelled and well manned by the said Groverman during the voyage. The captain, then, was Groverman's captain, the mariners were Groverman's mariners; and this furnishes an additional reason for  supposing the captain and mariners to be under his direction. \nAfter some further covenants on the part of Groverman the charter party proceeds thus, \"In consideration whereof the said R.T. Hooe and co. do covenant, &c. to and with the said W. Groverman, &c. that they will well and truly pay the freight stipulated therein.\" \nThus the whole language of the charter party goes to prove that the covenants respecting the voyage are on the part of Groverman, and on that account, as well as on the accoaunt of his letting only the tonnage of the vessel, and furnishing the captain and mariners, &c. he is to be considered as the owner of the vessel for the voyage, under the charter party. This opinion is strengthened rather than weakened by the provisional articles. \nThe first article stipulates that particular instructions respecting the voyage shall be given to the captain, by Groverman, before its commencement. The words are, \"The captain or commander shall be instructed by his owner, previous to his sailing from the port of Alexandria, to touch at Falmouth,\" \"there to lay off and on twenty-four hours (or longer if desired) in day light,\" &c. These orders, then, to the captain were  to be given by Groverman, and it was by his authority that the captain was to act on that occasion. This explains the doubt as to the person who was to be considered as covenanting that the vessel should lay off and on, for twenty-four hours, at the port of Falmouth, and tends to show who was responsible for the breach of that covenant. This too is in addition to covenants in the charter party which are plainly Groverman's, and is therefore the more to be considered as a covenant on his part. The act was to be performed by his authority, and the covenant was his covenant. \n On a consideration, then, of the whole contract between the parties, the court is of opinion that Groverman remained the owner of the vessel during the voyage, and is answerable for any misconduct of the captain. \nThe covenant to lay off and on at the port of Falmouth, being the covenant of Groverman, the freighters are not answerable in this action, for the breach of it, should the orders of Fox be understood as their orders. It is probable that the course taken by the captain was the most prudent course; but were it otherwise, the orders of Fox might excuse the owner from any action brought  by the freighters for loss sustained by them in consequence of going into Falmouth, but could not entitle him in this action against the freighters. \nIt is then the opinion of this court, that on this special verdict, the law is for the defendants. \nJudgment reversed, and the circuit court to enter judgment for the defendants. \n \n\n ", " \nOpinion \n\n \n \n  Feb. 23d. The Chief Justice  delivered the opinion of the court. \nThis is a writ of error to a judgment of the circuit court of the district of Columbia, sitting in the county of Alexandria, in the following case. \nBy an act of the legislature of Virginia a penalty of # .150 is imposed on any person who permits certain games, enumerated in the act, to be played in a house of which he is the proprietor. The penalty, by that act, is given to any person who will sue for the same. \nAfter the passage of this act, congress assumed the government of the district, and declared the laws of Maryland to remain in force in that part of the district which had been ceded by Maryland; and the laws of Virginia to remain in force in that part of the district which had been ceded by Virginia. \n Subsequent to the act of assumption an act passed, supplementary to the act entitled \"An act concerning the district of Columbia;\" the second section of which is in these words: (here the chief justice read the whole section, and the substance of the indictment.) \nIt is admitted that, under the laws of Virginia, an indictment for this penalty could not be sustained; but it is contended that the clause in the supplemental  act which has been recited, makes a new appropriation of the penalty, and gives a new remedy for its recovery. \nIt is insisted taht the words \"all fines, penalties and forfeitures accruing under the laws of Maryland and Virginia,\" &c. necessarily include this penalty, and by giving a recovery in the name of the United States by indictment, appropriate the penalty to the public treasury. On the part of the defendant in error it is contended that the words relied on do not change the law, further than to substitute in all actions heretofore carried on in the names of the states of Maryland and Virginia respectively, the name of the United States instead of those names; and that the provisions of the act apply only to  fines, penalties and forfeitures accruing to the government. \nThis subject will perhaps receive some elucidation from a review of the two acts of congress relative to the district of Columbia. \nThe first section of the first act, declaring that the laws of the two states respectively should remain in force in the parts of the territory ceded by each, was perhaps only declaratory of a principle which would have been in full operation without such declaration;  yet it manifests very clearly an intention in congress not to take up the subject of a review of the laws of the district at that time, but to leave things as they then were, only adapting the existing laws to the new situation of the people. \nEvery remaining section of the act to the 16th, is employed on subjects where the mere change of government required the intervention of the general legislature. \nThe sixteenth section continues still to manifest a solicitude for the preservation of the existing state of things, so far as was compatible with the change of government, by declaring that nothing contained in the act should be construed to affect rights granted by or derived from the acts of incorporation of Alexandria and Georgetown, or of any body politic or corporate within the said district, except so far as relates to their judicial powers. \nThis act had given to the circuit court, which it established, cognizance of all crimes committed in the district, and of all penalties and forfeitures accruing under the laws of the United States. \nIt was soon perceived that the criminal jurisdiction of the court could not be exercised in one part of the district, because by the  laws of Virginia, persons guilty of any offence, less than murder in the first degree, were only punishable in the penitentiary house, erected in the city of Richmond, which punishment the court of Columbia could not inflict. \n It was also perceived that some embarrassment would arise respecting the style in which suits, theretofore directed to be brought in the names of Maryland and Virginia, should thenceforth be prosecuted. The respective laws authorizing them, and which were considered as having been re-enacted by congress, totidem verbis, directed such suits to be prosecuted in the names of Maryland and Virginia, respectively. The continuance of this style in the courts of the United States was glaringly improper, and it was thought necessary to change it by express provision. These objects rendered the supplemental act necessary, which provides, that the criminal law of Virginia, as it existed before the establishment of a penitentiary system, should continue in force, and that all indictments shall run in the name of the United States; and all fines, penalties, and forfeitures, accruing under the laws of the states of Maryland and Virginia, shall be recovered  with costs, &c. \nThe residue of this supplemental act changes nothing, and only supplies provisions, required by the revolution in government, and which had been omitted in the original act. \nThis view of the two acts would furnish strong reasons for supposing the object of congress to have been, not to change, in any respect, the existing laws, further than the new situation of the district rendered indispensibly necessary; and that the fines, penalties, and forfeitures alluded to in the act, are those only which accrued by law, in the whole or in part, to government; and for the recovery of which the remedy was by indictment or information, in the name of the state in which the court fat, or by a qui tam action in which the name of the state was to be used. It can not be presumed that congress could have intended to use the words in the unlimited sense contended for. \nBy the laws of Virginia, an officer is liable to a heavy fine for not returning an execution which came to his hands to be served, or for retaining in his hands money levied on such execution. This goes to the party injured, and on his motion the judgment for the fine is to be rendered. It would be going a  great way to construe this act  of congress as making such a fine recoverable for the use of the United States; and yet, this would be the consequence of construing it to extend to fines and penalties accruing by law, not to government, but to individuals. \nIf a penalty recoverable by any individual, by action of debt, was to be considered as designed to be embraced by the second section of the supplemental act, still an action of debt in the name of the United States and of the informer, would seem to be the remedy given by the act. \nThe principle, reddenda singula singulis, would be applicable; and it would seem to the court more proper to suppose the qui tam action, given in this case, to be the remedy, than an indictment. \nThe court therefore is of opinion that there is no error in the judgment, and that it be affirmed. 1 \n \n \n\n ", " \nOpinion \n\n \n \n  Afterwards, on the 24th of February the following opinion of the court was delivered by the chief justice. \nOpinion of the court. \nAt the last term on the affidavits then read and filed with the clerk, a rule was granted in this case, requiring the secretary of state to show cause why a mandamus  should not issue, directing him to deliver to William Marbury his commission as a justice of the peace of the county of Washington, in the district of Columbia. \nNo cause has been shown, and the present motion is for a mandamus.  The peculiar delicacy of this case, the novelty of some of its circumstances, and the real difficulty attending the points which occur in it, require a complete exposition of the principles, on which the opinion to be given by the court, is founded. \nThese principles have been, on the side of the applicant, very ably argued at the bar. In rendering the opinion of the court, there will be some departure in form, though not in substance, from the points stated in that argument. \nIn the order in which the court has viewed this subject, the following questions have been considered and decided. \n1st. Has the applicant a right to the commission he demands? \n2dly. If he has a right, and that right has been violated, do the laws of his country afford him a remedy? \n3dly. If they do afford him a remedy, is it a mandamus issuing from this court? \nThe first object of enquiry is, \n1st. Has the applicant a right to the commission he demands? \nHis right originates in an act of congress passed in February, 1801, concerning the district of Columbia. \nAfter dividing the district into two counties, the 11th section of this law, enacts, \"that there shall be appointed in and for  each of the said counties, such number of discreet persons to be justices of the peace as the president of the United States shall, from time to time, think expedient, to continue in office for five years. \n It appears, from the affidavits, that in compliance with this law, a commission for William Marbury as a justice of peace for the county of Washington, was signed by John Adams, then president of the United States; after which the seal of the United States was affixed to it; but the commission has never reached the person for whom it was made out. \nIn order to determine whether he is entitled to this commission, it becomes necessary to enquire whether he has been appointed to the office. For if he has been appointed, the law continues him in office for five years, and he is entitled to the possession of those evidences of office, which, being completed, became his property. \nThe 2d section of the 2d article of the constitution, declares, that \"the president shall nominate, and, by and with the advice and consent of the senate, shall appoint ambassadors, other public ministers and consuls, and all other officers of the United States, whose appointments are not  otherwise provided for.\" \nThe third section declares, that \"he shall commission all the officers of the United States.\" \nAn act of congress directs the secretary of state to keep the seal of the United States, \"to make out and record, and affix the said seal to all civil commissions to officers of the United States, to be appointed by the President, by and with the consent of the senate, or by the President alone; provided that the said seal shall not be affixed to any commission before the same shall have been signed by the President of the United States.\" \nThese are the clauses of the constitution and laws of the United States, which affect this part of the case. They seem to contemplate three distinct operations: \n1st, The nomination. This is the sole act of the President, and is completely voluntary. \n2d. The appointment. This is also the act of the President, and is also a voluntary act, though it can only be performed by and with the advice and consent of the senate. \n 3d. The commission. To grant a commission to a person appointed, might perhaps be deemed a duty enjoined by the constitution. \"He shall,\" says that instrument, \"commission all the officers  of the United States.\" \nThe acts of appointing to office, and commissioning the person appointed, can scarcely be considered as one and the same; since the power to perform them is given in two separate and distinct sections of the constitution. The distinction between the appointment and the commission will be rendered more apparent, by  adverting to that provision in the second section of the second article of the constitution, which authorizes congress \"to vest, by law, the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments;\" thus contemplating cases where the law may direct the President to commission an officer appointed by the courts, or by the heads of departments. In such a case, to issue a commission would be apparently a duty distinct from the appointment, the performance of which, perhaps, could not legally be refused. \nAlthough that clause of the constitution which requires the President to commission all the officers of the United States, may never have been applied to officers appointed otherwise than by himself, yet it would be difficult to deny the legislative power  to apply it to such cases. Of consequence the constitutional distinction between the appointment to an office and the commission of an officer, who has been appointed, remains the same as if in practice the President had commissioned officers appointed by an authority other than his will. \nIt follows too, from the existence of this distinction, that, if an appointment was to be evidenced by any public act, other than the commission, the performance of such public act would create the officer; and if he was not removable at the will of the President, would either give him a right to his commission, or enable him to perform the duties without it. \nThese observations are premised solely for the purpose of rendering more intelligible those which apply more directly to the particular case under consideration. \n This is an appointment by the President, by and with the advice and consent of the senate, and is evidenced by no act but the commission itself. In such a case therefore the commission and the appointment seem inseparable; it being almost impossible to show an appointment otherwise than by proving the existence of a commission; still the commission is not necessarily  the appointment; though conclusive evidence of it. \nBut at what state does it amount to this conclusive evidence? \nThe answer to this question seems an obvious one. The appointment being the sole act of the President, must be completely evidenced, when it is shown that he has done every thing to be performed by him. \nShould the commission, instead of being evidence of an appointment, even be considered as constituting the appointment itself; still it would be made when the last act to be done by the President was performed, or, at furthest, when the commission was complete. \nThe last act to be done by the President, is the signature of the commission. He has then acted on the advice and consent of the senate to his own nomination. The time for deliberations has then passed. He has decided. His judgment, on the advice and consent of the senate concurring with his nomination, has been made, and the officer is appointed. This appointment is evidenced by an open, unequivocal act; and being the last act required from the person making it, necessarily excludes the idea of its being, so far as respects the appointment, an inchoate and incomplete transaction. \nSome point of  time must be taken when the power of the executive over an officer, not removable at his will, must cease. That point of time must be when the constitutional power of appointment has been exercised. And this power has been exercised when the last act, required from the person possessing the power, has been performed. This last act is the signature of the commission. This idea seems to have prevailed with the legislature, when the act passed, converting the department  of foreign affairs into the department of state. By that act it is enacted, that the secretary of state shall keep the seal of the United States, \"and shall make out and record, and shall affix the said seal to all civil commissions to officers of the United States, to be appointed by the President:\" \"Provided that the said seal shall not be affixed to any commission, before the same shall have been signed by the President of the United States; nor to any other instrument or act, without the special warrant of the President therefor.\" \nThe signature is a warrant for affixing the great seal to the commission; and the great seal is only to be affixed to an instrument which is complete. It asserts, by an  act supposed to be of public notoriety, the verity of the Presidential signature. \nIt is never to be affixed till the commission is signed, because the signature, which gives force and effect to the commission, is conclusive evidence that the appointment is made. \nThe commission being signed, the subsequent duty of the secretary of state is prescribed by law, and not to be guided by the will of the President. He is to affix the seal of the United States to the commission, and is to record it. \nThis is not a proceeding which may be varied, if the judgment of the executive shall suggest one more eligible; but is a precise course accurately marked out by law, and is to be strictly pursued. It is the duty of the secretary of state to conform to the law, and in this he is an officer of the United States, bound to obey the laws. He acts, in this regard, as has been very properly stated at the bar, under the authority of law, and not by the instructions of the President. It is a ministerial act which the law enjoins on a particular officer for a particular purpose. \nIf it should be supposed, that the solemnity of affixing the seal, is necessary not only to the validity of the  commission, but even to the completion of an appointment, still when the seal is affixed the appointment is made, and  the commission is valid. No other solemnity is required by law; no other act is to be performed on the part of government. All that the executive can do to invest the person with his office, is done; and unless the appointment be then made, the executive cannot make one without the co-operation of others. \nAfter searching anxiously for the principles on which a contrary opinion may be supported, none have been found which appear of sufficient force to maintain the opposite doctrine. \nSuch as the imagination of the court could suggest, have been very deliberately examined, and after allowing them all the weight which it appears possible to give them, they do not shake the opinion which has been formed. \nIn considering this question, it has been conjectured  that the commission may have been assimilated to a deed, to the validity of which, delivery is essential. \nThis idea is founded on the supposition that the commission is not merely evidence of an appointment, but is itself the actual appointment; a supposition by no means unquestionable.  But for the purpose of examining this objection fairly, let it be conceded, that the principle, claimed for its support, is established. \nThe appointment being, under the constitution, to be made by the President personally, the delivery of the deed of appointment, if necessary to its completion, must be made by the President also. It is not necessary that the livery should be made personally to the grantee of the office: It never is so made. The law would seem to contemplate that it should be made to the secretary of state, since it directs the secretary to affix the seal to the commission after it shall have been signed by the President. If then the act of livery be necessary to give validity to the commission, it has been delivered when executed and given to the secretary for the purpose of being sealed, recorded, and transmitted to the party. \nBut in all cases of letters patent, certain solemnities are required by law, which solemnities are the evidences  of the validity of the instrument. A formal delivery to the person is not among them. In cases of commissions, the sign manual of the President, and the seal of the United States, are those solemnities. This  objection therefore does not touch the case. \nIt has also occurred as possible, and barely possible, that the transmission of the commission, and the acceptance thereof, might be deemed necessary to complete the right of the plaintiff. \nThe transmission of the commission, is a practice directed by convenience, but not by law. It cannot therefore be necessary to constitute the appointment which must precede it, and which is the mere act of the President. If the executive required that every person appointed to an office, should himself take means to procure his commission, the appointment would not be the less valid on that account. The appointment is the sole act of the President; the transmission of the commission is the sole act of the officer to whom that duty is assigned, and may be accelerated or retarded by circumstances which can have no influence on the appointment. A commission is transmitted to a person already appointed; not to a person to be appointed or not, as the letter enclosing the commission should happen to get into the post-office and reach him in safety, or to miscarry. \nIt may have some tendency to elucidate this point, to enquire, whether the possession  of the original commission be indispensably necessary to authorize a person, appointed to any office, to perform the duties of that office. If it was necessary, then a loss of the commission would lose the office. Not only negligence, but accident or fraud, fire or theft, might deprive an individual of his office. In such a case, I presume it could not be doubted, but that a copy from the record of the office of the secretary of state, would be, to every intent and purpose, equal to the original. The act of congress has expressly made it so. To give that copy validity, it would not be necessary to prove that the original had been transmitted and afterwards lost. The copy would be complete evidence that the original had existed, and that the appointment had been made, but, not that the original had been transmitted. If indeed it should appear that  the original had been mislaid in the office of state, that circumstance would not affect the operation of the copy. When all the requisites have been performed which authorize a recording officer to record any instrument whatever, and the order for that purpose has been given, the instrument is, in law, considered as recorded,  although the manual labor of inserting it in a book kept for that purpose may not have been performed. \nIn the case of commissions, the law orders the secretary of state to record them. When therefore they are signed and sealed, the order for their being recorded is given; and whether inserted in the book or not, they are in law recorded. \nA copy of this record is declared equal to the original, and the fees, to be paid by a person requiring a copy, are ascertained by law. Can a keeper of a public record, erase therefrom a commission which has been recorded? Or can he refuse a copy thereof to a person demanding it on the terms prescribed by law? \nSuch a copy would, equally with the original, authorize the justice of peace to proceed in the performance of his duty, because it would, equally with the original, attest his appointment. \nIf the transmission of a commission be not considered as necessary to give validity to an appointment; still less is its acceptance. The appointment is the sole act of the President; the acceptance is the sole act of the officer, and is, in plain common sense, posterior to the appointment. As he may resign, so may he refuse to accept: but neither  the one, nor the other, is capable of rendering the appointment a non-entity. \nThat this is the understanding of the government, is apparent from the whole tenor of its conduct. \nA commission bears date, and the salary of the officer commences from his appointment; not from the transmission or acceptance of his commission. When a person, appointed to any office, refuses to accept the office, the successor is nominated in the place of the person who  has declined to accept, and not in the place of the person who had been previously in office, and had created the original vacancy. \nIt is therefore decidedly the opinion of the court, that when a commission has been signed by the President, the appointment is made; and that the commission is complete, when the seal of the United States has been affixed to it by the secretary of state. \nWhere an officer is removable at the will of the executive, the circumstance which completes his appointment is of no concern; because the act is at any time revocable; and the commission may be arrested, if still in the office. But when the officer is not removable at the will of the executive, the appointment is not revocable, and  cannot be annulled. It has conferred legal rights which cannot be resumed. \nThe discretion of the executive is to be exercised until the appointment has been made.  But having once made the appointment, his power over the office is terminated in all cases, where, by law, the officer is not removable by him. The right to the office is then in the person appointed, and he has the absolute, unconditional, power of accepting or rejecting it. \nMr. Marbury, then, since his commission was signed by the President, and sealed by the secretary of state, was appointed; and as the law creating the office, gave the officer a right to hold for five years, independent of the executive, the appointment was not revocable; but vested in the officer legal rights, which are protected by the laws of his country. \nTo withhold his commission, therefore, is an act deemed by the court not warranted by law, but violative of a vested legal right. \nThis brings us to the second enquiry; which is, \n2dly. If he has a right, and that right has been violated, do the laws of his country afford him a remedy? \n The very essence of civil liberty certainly consists in the right of every  individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection. In Great Britain the king himself is sued in the respectful form of a petition, and he never fails to comply with the judgment of his court. \nIn the 3d vol. of his commentaries, p. 23, Blackstone states two cases in which a remedy is afforded by mere operation of law. \n\"In all other cases,\" he says, \"it is a general and indisputable rule, that where there is a legal right, there is also a legal remedy by suit or action at law, whenever that right is invaded.\" \nAnd afterwards, p. 109, of the same vol. he says, \"I am next to consider such injuries as are cognizable by the courts of the common law. And herein I shall for the present only remark, that all possible injuries whatsoever, that did not fall within the exclusive cognizance of either the ecclesiastical, military, or maritime tribunals, are for that very reason, within the cognizance of the common law courts of justice; for it is a settled and invariable principle in the laws of England, that every right, when withheld, must have a remedy, and every injury its proper redress.\" \n The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right. \nIf this obloquy is to be cast on the jurisprudence of our country, it must arise from the peculiar character of the case. \nIt behooves us then to enquire whether there be in its composition any ingredient which shall exempt it from legal investigation, or exclude the injured party from legal redress. In pursuing this enquiry the first question which presents itself is, whether this can be arranged  with that class of cases which comes under the description of damnum absque injuria -- a loss without an injury. \nThis description of cases never has been considered, and it is believed never can be considered, as comprehending offices of trust, of honor or of profit. The office of justice of peace in the district of Columbia is such an office; it is therefore worthy of the attention and guardianship of the laws. It has received that attention and guardianship. It has been created by special act of congress, and has been secured, so far  as the laws can give security to the person appointed to fill it, for five years. It is not then on account of the worthlessness of the thing pursued, that the injured party can be alleged to be without remedy. \nIs it in the nature of the transaction? Is the act of delivering or withholding a commission to be considered as a mere political act, belonging to the executive department alone, for the performance of which, entire confidence is placed by our constitution in the supreme executive; and for any misconduct respecting which, the injured individual has no remedy. \nThat there may be such cases is not to be questioned; but that every act of duty, to be performed in any of the great departments of government, constitutes such a case is not to be admitted. \nBy the act concerning invalids, passed in June, 1794, vol. 3. p. 112, the secretary of war is ordered to place on the pension list, all persons whose names are contained in a report previously made by him to congress. If he should refuse to do so, would the wounded veteran be without remedy? Is it to be contended that where the law in precise terms, directs the performance of an act, in which an individual is interested,  the law is incapable of securing obedience to its mandate? Is it on account of the character of the person against whom the complaint is made? Is it to be contended that the heads of departments are not amenable to the laws of their country? \nWhatever the practice on particular occasions may be, the theory of this principle will certainly never be maintained.  No act of the legislature confers so extraordinary a privilege, nor can it derive countenance from the doctrines of the common law. After stating that personal injury from the king to a subject is presumed to be impossible, Blackstone, vol. 3. p. 255, says, \"but injuries to the rights of property can scarcely be committed by the crown without the intervention of its officers; for whom, the law, in matters of right, entertains no respect or delicacy; but furnishes various methods of detecting the errors and misconduct of those agents, by whom the king has been deceived and induced to do a temporary injustice.\" \nBy the act passed in 1796, authorizing the sale of the lands above the mouth of Kentucky river (vol. 3d. p. 299) the purchaser, on paying his purchase money, becomes completely entitled to the property  purchased; and on producing to the secretary of state, the receipt of the treasurer upon a certificate required by the law, the president of the United States is authorized to grant him a patent. It is further enacted that all patents shall be countersigned by the secretary of state, and recorded in his office. If the secretary of state should choose to withhold this patent; or the patent being lost, should refuse a copy of it; can it be imagined that the law furnishes to the injured person no remedy? \nIt is not believed that any person whatever would attempt to maintain such a proposition. \n It follows then that the question, whether the legality of an act of the head of a department be examinable in a court of justice or not, must always depend on the nature of that act. \nIf some acts be examinable, and others not, there must be some rule of law to guide the court in the exercise of its jurisdiction. \nIn some instances there may be difficulty in applying the rule to particular cases; but there cannot, it is believed, be much difficulty in laying down the rule. \nBy the constitution of the United States, the President is invested with certain important political  powers, in the  exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience. To aid him in the performance of these duties, he is authorized to appoint certain officers, who act by his authority and in conformity with his orders. \nIn such cases, their acts are his acts; and whatever opinion may be entertained of the manner in which executive discretion may be used, still there exists, and can exist, no power to control that discretion. The subjects are political. They respect the nation, not individual rights, and being entrusted to the executive, the decision of the executive is conclusive. The application of this remark will be perceived by adverting to the act of congress for establishing the department of foreign affairs. This office, as his duties were prescribed by that act, is to conform precisely to the will of the President. He is the mere organ by whom that will is communicated. The acts of such an officer, as an officer, can never be examinable by the courts. \nBut when the legislature proceeds to impose on that officer other duties; when he is directed peremptorily to  perform certain acts; when the rights of individuals are dependent on the performance of those acts; he is so far the officer of the law; is amenable to the laws for his conduct; and cannot at his discretion sport away the vested rights of others. \nThe conclusion from this reasoning is, that where the heads of departments are the political or confidential agents of the executive, merely to execute the will of the President, or rather to act in cases in which the executive possesses a constitutional or legal discretion, nothing can be more perfectly clear than that their acts are only politically examinable. But where a specific duty is assigned by law, and individual rights depend upon the performance of that duty, it seems equally clear that the individual who considers himself injured, has a right to resort to the laws of his country for a remedy. \nIf this be the rule, let us enquire how it applies to the case under the consideration of the court. \n The power of nominating to the senate, and the power of appointing the person nominated, are political powers, to be exercised by the President according to his own discretion. When he has made an appointment, he has  exercised his whole power, and his discretion has been completely applied to the case. If, by law, the officer be removable at the will of the President, then a new appointment may be immediately made, and the rights of the officer are terminated. But as a fact which has existed cannot be made never to have existed, the appointment cannot be annihilated; and consequently if the officer is by law not removable at the will of the President; the rights he has acquired are protected by the law, and are not resumeable by the President. They cannot be extinguished by executive authority, and he has the privilege of asserting them in like manner as if they had been derived from any other source. \nThe question whether a right has vested or not, is, in its nature, judicial, and must be tried by the judicial authority. If, for example, Mr. Marbury had taken the oaths of a magistrate, and proceeded to act as one; in consequence of which a suit had been instituted against him, in which his defence had depended on his being a magistrate; the validity of his appointment must have been determined by judicial authority. \nSo, if he conceives that, by virtue of his appointment, he has a legal  right, either to the commission which has been made out for him, or to a copy of that commission, it is equally a question examinable in a court, and the decision of the court upon it must depend on the opinion entertained of his appointment. \nThat question has been discussed, and the opinion is, that the latest point of time which can be taken as that at which the appointment was complete, and evidenced, was when, after the signature of the president, the seal of the United States was affixed to the commission. \nIt is then the opinion of the court, \n1st. That by signing the commission of Mr. Marbury, the president of the United States appointed him a justice  of peace, for the county of Washington in the district of Columbia; and that the seal of the United States, affixed thereto by the secretary of state, is conclusive testimony of the verity of the signature, and of the completion of the appointment; and that the appointment conferred on him a legal right to the office for the space of five years. \n2dly. That, having this legal title to the office, he has a consequent right to the commission; a refusal to deliver which, is a plain violation of that right, for  which the laws of his country afford him a remedy. \nIt remains to be enquired whether, \n3dly. He is entitled to the remedy for which he applies. This depends on, \n1st. The nature of the writ applied for, and, \n2dly. The power of this court. \n1st. The nature of the writ. \nBlackstone, in the 3d volume of his commentaries, page 110, defines a mandamus to be, \"a command issued in the King's name from the court of King's Bench, and directed to any person, corporation, or inferior court of judicature within the King's dominions, requiring them to do some particular thing therein specified, which appertains to their office and duty, and which the court of King's Bench has previously determined, or at least supposed, to be consonant to right and justice.\" \nLord Mansfield, in 3d Burrows 1266, in the case of the King v. Baker, et al. states with much precision and explicitness the cases in which this writ may be used. \n\"Whenever,\" says that very able judge, \"there  is a right to execute an office, perform a service, or exercise a franchise (more specifically if it be in a matter of public concern, or attended with profit) and a person is kept out of the possession,  or dispossessed of such right, and  has no other specific legal remedy, this court ought to assist by mandamus, upon reasons of justice, as the writ expresses, and upon reasons of public policy, to preserve peace, order and good government.\" In the same case he says, \"this writ ought to be used upon all occasions where the law has established no specific remedy, and where in justice and good government there ought to be one.\" \nIn addition to the authorities now particularly cited, many others were relied on at the bar, which show how far the practice has conformed to the general doctrines that have been just quoted. \nThis writ, if awarded, would be directed to an officer of government, and its mandate to him would be, to use the words of Blackstone, \"to do a particular thing therein specified, which appertains to his office and duty and which the court has previously determined, or at least supposes, to be consonant to right and justice.\" Or, in the words of Lord Mansfield, the applicant, in this case, has a right to execute an office of public concern, and is kept out of possession of that right. \nThese circumstances certainly concur in this case. \nStill, to render  the mandamus a proper remedy, the officer to whom it is directed, must be one to whom, on legal principles, such writ may be directed; and the person applying for it must be without any other specific and legal remedy. \n1st. With respect to the officer to whom it would be directed. The intimate political relation, subsisting between the president of the United States and the heads of departments, necessarily renders any legal investigation of the acts of one of those high officers peculiarly irksome, as well as delicate; and excites some hesitation with respect to the propriety of entering into such investigation. Impressions are often received without much reflection or examination, and it is not wonderful that in such a case as this, the assertion, by an individual, of his legal claims in a court of justice; to which claims it is the duty of that court to attend; should at first view be considered  by some, as an attempt to intrude into the cabinet, and to intermeddle with the prerogatives of the executive. \nIt is scarcely necessary for the court to disclaim all pretensions to such a jurisdiction. An extravagance, so absurd and excessive, could not have been entertained  for a moment. The province of the court is, solely, to decide on the rights of individuals, not to enquire how the executive, or executive officers, perform duties in which they have a discretion. Questions, in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court. \nBut, if this be not such a question; if so far from being an intrusion into the secrets of the cabinet, it respects a paper, which, according to law, is upon record, and to a copy of which the law gives a right, on the payment of ten cents; if it be no intermeddling with a subject, over which the executive can be considered as having exercised any control; what is there in the exalted station of the officer, which shall bar a citizen from asserting, in a court of justice, his legal rights, or shall forbid a court to listen to the claim; or to issue a mandamus, directing the performance of a duty, not depending on executive discretion, but on particular acts of congress and the general principles of law? \nIf one of the heads of departments commits any illegal act, under the color of his office, by which an individual sustains an injury, it cannot  be pretended that his office alone exempts him from being sued in the ordinary mode of proceeding, and being compelled to obey the judgment of the law. How then can his office exempt him from this particular mode of deciding on the legality of his conduct, if the case be such a case as would, were any other individual the party complained of, authorize the process? \nIt is not by the office of the person to whom the writ is directed, but the nature of the thing to be done that the propriety or impropriety of issuing a mandamus, is to be determined. Where the head of a department acts in a case, in which executive discretion is to be exercised; in which he is the mere organ of executive will; it is  again repeated, that any application to a court to control, in any respect, his conduct, would be rejected without hesitation. \nBut where he is directed by law to do a certain act affecting the absolute rights of individuals, in the performance of which he is not placed under the particular direction of the President, and the performance of which, the President cannot lawfully forbid, and therefore is never presumed to have forbidden; as for example, to record a commission,  or a patent for land, which has received all the legal solemnities; or to give a copy of such record; in such cases, it is not perceived on what ground the courts of the country are further excused from the duty of giving judgment, that right be done to an injured individual, than if the same services were to be performed by a person not the head of a department. \nThis opinion seems not now, for the first time, to be taken upon in this country. \nIt must be well recollected that in 1792, an act passed, directing the secretary at war to place on the pension list such disabled officers and soldiers as should be reported to him, by the circuit courts, which act, so far as the duty was imposed on the courts, was deemed unconstitutional; but some of the judges, thinking that the law might be executed by them in the character of commissioners, proceeded to act and to report in that character. \nThis law being deemed unconstitutional at the circuits, was repealed, and a different system was established; but this question whether those persons, who had been reported by the judges, as commissioners, were entitled, in consequence of that report, to be placed on the pension list, was a legal  question, properly determinable in the courts, although the act of placing such persons on the list was to be preformed by the head of a department. \nThat this question might be properly settled, congress passed an act in February, 1793, making  it the duty of the secretary of war, in conjunction with the attorney general, to take such measures, as might be necessary to obtain an adjudication of the supreme court of the United  States on the validity of any such rights, claimed under the act aforesaid. \nAfter the passage of this act, a mandamus was moved for, to be directed to the secretary at war, commanding him to place on the pension list, a person stating himself to be on the report of the judges. \nThere is, therefore, much reason to believe, that this mode of trying the legal right of the complainant, was deemed by the head of a department, and by the highest law officer of the United States, the most proper which could be selected for the purpose. \nWhen the subject was brought before the court the decision was, not that a mandamus would not lie to the head of a department, directing him to perform an act, enjoined by law, in the performance of which  an individual had a vested interest; but that a mandamus ought not to issue in that case -- the decision necessarily to be made if the report of the commissioners did not confer on the applicant a legal right. \nThe judgment in that case, is understood to have decided the merits of all claims of that description; and the persons on the report of the commissioners found it necessary to pursue the mode prescribed by the law subsequent to that which had been deemed unconstitutional, in order to place themselves on the pension list. \nThe doctrine, therefore, now advanced, is by no means a novel one. \nIt is true that the mandamus, now moved for, is not for the performance of an act expressly enjoined by statute. \nIt is to deliver a commission; on which subject the acts of Congress are silent. This difference is not considered as affecting the case. It has already been stated that the applicant has, to that commission, a vested legal right, of which the executive cannot deprive him. He has been appointed to an office, from which he is not removable at the will of the executive; and being so  appointed, he has a right to the commission which the secretary has received  from the president for his use. The act of congress does not indeed order the secretary of state to send it to him, but it is placed in his hands for the person entitled to it; and cannot be more lawfully withheld by him, than by any other person. \nIt was at first doubted whether the action of detinue was not a specified legal remedy for the commission which has been withheld from Mr. Marbury; in which case a mandamus would be improper. But this doubt has yielded to the consideration that the judgment in detinue is for the thing itself, or its value. The value of a public office not to be sold, is incapable of being ascertained; and the applicant has a right to the office itself, or to nothing. He will obtain the office by obtaining the commission, or a copy of it from the record. \nThis, then, is a plain case for a mandamus, either to deliver the commission, or a copy of it from the record; and it only remains to be enquired, \nWhether it can issue from this court. \nThe act to establish the judicial courts of the United States authorizes the supreme court \"to issue writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons  holding office, under the authority of the United States.\" \nThe secretary of state, being a person holding an office under the authority of the United States, is precisely within the letter of the description; and if this court is not authorized to issue a writ of mandamus to such an officer, it must be because the law is unconstitutional, and therefore absolutely incapable of conferring the authority, and assigning the duties which its words purport to confer and assign. \nThe constitution vests the whole judicial power of the United States in one supreme court, and such inferior courts as congress shall, from time to time, ordain and establish. This power is expressly extended to all cases arising under the laws of the United States; and consequently, in some form, may be exercised over the present  case; because the right claimed is given by a law of the United States. \nIn the distribution of this power it is declared that \"the supreme court shall have original jurisdiction in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party. In all other cases, the supreme court shall have appellate jurisdiction.\" \n It has been insisted, at the bar, that as the original grant of jurisdiction, to the supreme and inferior courts, is general, and the clause, assigning original jurisdiction to the supreme court, contains no negative or restrictive words; the power remains to the legislature, to assign original jurisdiction to that court in other cases than those specified in the article which has been recited; provided those cases belong to the judicial power of the United States. \nIf it had been intended to leave it to the discretion of the legislature to apportion the judicial power between the supreme and inferior courts according to the will of that body, it would certainly have been useless to have proceeded further than to have defined the judicial powers, and the tribunals in which it should be vested. The subsequent part of the section is mere surplusage, is entirely without meaning, if such is to be the construction. If congress remains at liberty to give this court appellate jurisdiction, where the constitution has declared their jurisdiction shall be original; and original jurisdiction where the constitution has declared it shall be appellate; the distribution of jurisdiction, made  in the constitution, is form without substance. \nAffirmative words are often, in their operation, negative of other objects than those affirmed; and in this case, a negative or exclusive sense must be given to them or they have no operation at all. \nIt cannot be presumed that any clause in the constitution is intended to be without effect; and therefore such a construction is inadmissible, unless the words require it. \n If the solicitude of the convention, respecting our peace with foreign powers, induced a provision that the supreme court should take original jurisdiction in cases which  might be supposed to affect them; yet the clause would have proceeded no further than to provide for such cases, if no further restriction on the powers of congress had been intended. That they should have appellate jurisdiction in all other cases, with such exceptions as congress might make, is no restriction; unless the words be deemed exclusive of original jurisdiction. \nWhen an instrument organizing fundamentally a judicial system, divides it into one supreme, and so many inferior courts as the legislature may ordain and establish; then enumerates its powers, and  proceeds so far to distribute them, as to define the jurisdiction of the supreme court by declaring the cases in which it shall take original jurisdiction, and that in others it shall take appellate jurisdiction; the plain import of the words seems to be, that in one class of cases its jurisdiction is original, and not appellate; in the other it is appellate, and not original. If any other construction would render the clause inoperative, that is an additional reason for rejecting such other construction, and for adhering to their obvious meaning. \nTo enable this court then to issue a mandamus, it must be shown to be an exercise of appellate jurisdiction, or to be necessary to enable them to exercise appellate jurisdiction. \nIt has been stated at the bar that the appellate jurisdiction may be exercised in a variety of forms, and that if it be the will of the legislature that a mandamus should be used for that purpose, that will must be obeyed. This is true, yet the jurisdiction must be appellate, not original. \nIt is the essential criterion of appellate jurisdiction, that it revises and corrects the proceedings in a cause already instituted, and does not create that cause. Although,  therefore, a mandamus may be directed to courts, yet to issue such a writ to an officer for the delivery of a paper, is in effect the same as to sustain an original action for that paper, and therefore seems not to belong to  appellate, but to original jurisdiction. Neither is it necessary in such a case as this, to enable the court to exercise its appellate jurisdiction. \nThe authority, therefore, given to the supreme court, by the act establishing the judicial courts of the United States, to issue writs of mandamus to public officers, appears not to be warranted by the constitution; and it becomes necessary to enquire whether a jurisdiction, so conferred, can be exercised. \nThe question, whether an act, repugnant to the constitution, can become the law of the land, is a question deeply interesting to the United States; but, happily, not of an intricacy proportioned to its interest. It seems only necessary to recognize certain principles, supposed to have been long and well established, to decide it. \nThat the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness,  is the basis, on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it, nor ought it to be frequently repeated. The principles, therefore, so established, are deemed fundamental. And as the authority, from which they proceed, is supreme, and can seldom act, they are designed to be permanent. \nThis original and supreme will organizes the government, and assigns, to different departments, their respective powers. It may either stop here; or establish certain limits not to be transcended by those departments. \nThe government of the United States is of the latter description. The powers of the legislature are defined, and limited; and that those limits may not be mistaken, or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction, between a government with limited and unlimited powers, is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited  and acts allowed, are of equal obligation.  It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act. \nBetween these alternatives there is no middle ground. The constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and like other acts, is alterable when the legislature shall please to alter it. \nIf the former part of the alternative be true, then a legislative act contrary to the constitution is not law: if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power, in its own nature illimitable. \nCertainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void. \nThis theory is essentially attached to a written constitution, and is consequently to be considered, by this court, as one of the fundamental principles of our society. It is not therefore to be  lost sight of in the further consideration of this subject. \nIf an act of the legislature, repugnant to the constitution, is void, does it, notwithstanding its invalidity, bind the courts, and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law? This would be to overthrow in fact what was established in theory; and would seem, at first view, an absurdity too gross to be insisted on. It shall, however, receive a more attentive consideration. \nIt is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. \n So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of  these conflicting rules governs the case. This is of the  very essence of judicial duty. \nIf then the courts are to regard the constitution; and the constitution is superior to any ordinary act of the legislature; the constitution, and not such ordinary act, must govern the case to which they both apply. \nThose then who controvert the principle that the constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the constitution, and see only the law. \nThis doctrine would subvert the very foundation of all written constitutions. It would declare that an act, which, according to the principles and theory of our government, is entirely void; is yet, in practice, completely obligatory. It would declare, that if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the legislature a practical and real omnipotence, with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure. \nThat it thus reduces to nothing what we have deemed the greatest improvement  on political institutions -- a written constitution -- would of itself be sufficient, in America, where written constitutions have been viewed with so much reverence, for rejecting the construction. But the peculiar expressions of the constitution of the United States furnish additional arguments in favor of its rejection. \nThe judicial power of the United States is extended to all cases arising under the constitution. \n Could it be the intention of those who gave this power, to say that, in using it, the constitution should not be looked into? That a case arising under the constitution should be decided without examining the instrument under which it arises? \nThis is too extravagant to be maintained. \nIn some cases then, the constitution must be looked into by the judges. And if they can open it at all, what part of it are they forbidden to read, or to obey? \nThere are many other parts of the constitution which serve to illustrate this subject. \nIt is declared that \"no tax or duty shall be laid on articles exported from any state.\" Suppose a duty on the export of cotton, of tobacco, or of flour; and a suit instituted to recover it. Ought judgment to be rendered  in such a case? ought the judges to close their eyes on the constitution, and only see the law. \nThe constitution declares that \"no bill of attainder or ex post facto law shall be passed.\" \nIf, however, such a bill should be passed and a person should be prosecuted under it; must the court condemn to death those victims whom the constitution endeavors to preserve? \n\"No person,\" says the constitution, \"shall be convicted of treason unless on the testimony of two witnesses to the fame overt act, or on confession in open court.\" \nHere the language of the constitution is addressed especially to the courts. It prescribes, directly for them, a rule of evidence not to be departed from. If the legislature should change that rule, and declare one witness, or a confession out of court, sufficient for conviction, must the constitutional principle yield to the legislative act? \nFrom these, and many other selections which might be made, it is apparent, that the framers of the constitution  contemplated that instrument, as a rule for the government of courts, as well as of the legislature. \nWhy otherwise does it direct the judges to take an oath to support it? This oath certainly  applies, in an especial manner, to their conduct in their official character. How immoral to impose it on them, if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support! \nThe oath of office, too, imposed by the legislature, is completely demonstrative of the legislative opinion on the subject. It is in these words, \"I do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich; and that I will faithfully and impartially discharge all the duties incumbent on me as according to the best of my abilities and understanding, agreeably to the constitution, and laws of the United States.\" \nWhy does a judge swear to discharge his duties agreeably to the constitution of the United States, if that constitution forms no rule for his government? if it is closed upon him, and cannot be inspected by him? \nIf such be the real state of things, this is worse than solemn mockery. To prescribe, or to take this oath, becomes equally a crime. \nIt is also not entirely unworthy of observation, that in declaring what shall be the supreme law of the land, the constitution  itself is first mentioned; and not the laws of the United States generally, but those only which shall be made in pursuance of the constitution, have that rank. \nThus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument. \nThe rule must be discharged. \n \n\n ", " \nOpinion \n\n \n \n Feb. 26. The Chief Justice delivered the opinion of the court. \nIn this case there was an objection taken to the plaintiffs' declaration, which was in debt on a protested bill of exchange. The declaration claims # 300 sterling, with damages, interest and charges of protest, on a protested bill of exchange, without stating, in any part of it, the amount of those charges. The verdict is for the debt in the declaration mentioned, on which judgment is rendered, to be discharged by a less sum. \nThe objection is, that the demand is uncertain, in as much as the amount of the charges of protest, which constitute a part of the debt claimed, is not stated. \nThe clause of the act on which this suit is  instituted is in these words, \"It shall be lawful for any person or \"persons,\" &c \"to prosecute an action of debt, for principal, damages, interest, and charges of protest against the drawers,\" &c. The charges of protest constitute an essential part of the debt, and the declaration would not pursue the act, if those charges should be omitted. This part therefore cannot be considered as surplussage. It is a component part of the debt for which the action is given. Being a necessary part, its amount ought to be stated with as much certainty as the amount of the bill. \nAs this is a mere technical objection, the court would disregard it, if it was not a principle, deemed essential in the action of debt, that the declaration should state the demand with certainty. \nThe cases cited by the counsel for the defendant in error, do not come up to this case. They relate to different debts; this to a single debt composed of different parts. \nJudgment reversed and arrested. \nSee the case of Rudder v. Price, 1 H. Bl. reports, 550. \n \n\n ", " \nOpinion \n\n \n \n  Marshall, chief justice. \nIt is decided in Virginia that an action is maintainable by the assignee against the assignor, and not under the act of assembly. \n February 26th. The chief justice delivered the opinions of the court. \nThe only question in this case is, Whether an action on indebitatus assumpsit can be maintained by the assignee of a promissory note made in Virginia, against a remote assignor. \nThe act of the Virginia assembly which makes notes assignable, gives the assignee an action of debt in his own name against the maker of the note, but is  silent with respect to the claim of the assignee against the assignor. It was therefore long a doubt whether the assignor became liable on his mere assignment, without any special agreement, for the contents of the note, in the event of the insolvency of the maker. This doubt has at length been settled in Virginia, so far as to declare the liability of the assignor on such assignment; but not the amount for which he is liable. It seems to be yet a question whether he is answerable for the sum mentioned in the note, or for only so much as he received for it, provided he shall be able to prove the sum actually received. It is also a question whether the assignee can have  recourse to any other than his immediate assignor. \n\"As the act of assembly gives no right to sue the assignor, such an action can only be maintained on the promise which the law implies from the assignment, and consequently can only be sustained by and against the persons to and from whom the law implies such a promise to have been made. As the assignment is made to a particular person, the law implies a promise to that person; but it raises no promise to any other. There is no fact on which to imply  such promise.\" \n\"In the language of the books, there is a privity between the assignor and his immediate assignee; but no privity is perceived between the assignor and his remote assignee. The implied promise growing out of the indorsement, is not considered as having been made assignable by the act of assembly, and therefore the assignee of that promise can not maintain an action of indebitatus assumpsit on it. \n \"It is therefore the opinion of the court that this action is not maintainable and that the judgment ought to be reversed.\" 1 \n \n\n ", " \nOpinion \n\n \n \n  Feb. 17th. The chief justice delivered the opinion of the court. \nThis was a suit brought by the defendants in error against the plaintiffs, in the circuit court of the district of Columbia sitting in the county of Alexandria, and the declaration contains two counts for goods, wares and merchandizes  sold and delivered, and one for money had and received to their use. The cause came on to be tried on the general issue and a verdict was found for the plaintiffs below, on which the court rendered judgment. \nAt the trial of the cause it appeared that the suit was brought for a quantity of salt sold and delivered by Robert Young and co. to Clark; after which Clark indorsed to Robert Young and co. a promissory note made by Mark Edgar to John  Pickersgill and co. which had been indorsed by them to the said Clark, and which was payable 60 days after date. \nThis note was protested for non-payment; after which a suit was brought thereon by Robert Young and co. in the county court of Fairfax against Clark; and the declaration contained two counts, one on the indorsement, and the other for money had and received to the use of the plaintiffs. In this suit verdict and judgment was given for the defendant Clark, the court of Fairfax being of opinion that a suit could not be maintained against the indorser  of the note, until a judgment had been first obtained against the drawer, and his insolvency made to appear. \nAfter the determination of that action, this suit was instituted on the original contract; and, at the trial, the counsel for the defendant moved the court to instruct the jury, that if from the evidence given in the cause, they should be of opinion that the promissory note aforesaid was indorsed by the defendant to the plaintiffs, in consequence of the goods, wares and merchandizes sold as aforesaid, although the said indorsement was not intended as an absolute payment for the said goods, wares and merchandizes,  or received as such by the plaintiffs, but merely as a conditional payment thereof, yet the receipt of the said note under such circumstances, and the institution of the aforesaid suit by the said plaintiffs against the said defendant, on his indorsement aforesaid, made the said note, so far a payment to the said plaintiffs, for the said goods, wares and merchandizes, as to preclude them from sustaining any action against the said defendant for the said goods, wares and merchandizes, until they had taken such measures against the said Mark Edgar, as were required by the laws of Virginia; and that the plaintiffs, having instituted the suit aforesaid upon the said note against the said defendant, and that having been decided against the said plaintiffs, they were barred from sustaining this action against the said defendant. \nThis instruction the court refused to give, but directed the jury, that if they were of opinion, from the evidence, that the salt was sold and delivered as alleged, and that the promissory note aforesaid was indorsed by the defendant to the plaintiffs in consequence of the salt sold as aforesaid, although the said indorsement was not intended as an absolute payment  for the said salt or received as such by the plaintiffs, but merely as a conditional payment thereof, the same is a discharge to the defendant for the salt sold to him, unless it is proved that due diligence has been used to receive the money due on the note; but that the bringing suit on the said note against Mark Edgar was not essentially necessary to constitute the said diligence; and that the said diligence may be proved by other circumstances, and their omitting to bring the said suit against Edgar may be accounted for by the insolvency of Edgar,  if proved, or any conduct of the defendant which may have prevented the bringing of the said suit. \nTo this opinion the counsel for the defendant excepted, and then prayed the court to direct the jury that the defendant was entitled to as a credit for the amount of the said note, unless the plaintiffs could shew that they had instituted a suit thereon against Edgar, or that Edgar had taken the oath of insolvency, or absconded at the time the note became payable, or unless the plaintiffs could shew that they had offered to return and re-assign the said note to the said defendant, previous to the institution of this suit. \n This direction the court refused to give, and referred the jury to their opinion already given on the principal points now stated and to which an exception had already been taken. This opinion was also excepted to. A verdict and judgment was then rendered for the plaintiff without giving credit for Edgar's note, which judgment is now brought into this court by writ of error. \nOn these exceptions it has been argued that the court has erred, because, \n1st. The conduct of the plaintiffs, Young and co. has disabled them from maintaining this action, and such ought to have been the direction to the jury. \n2dly. The verdict and judgment in Fairfax court is a bar to this action. \nThe conduct of the plaintiffs was entirely before the jury, to be judged of by them from the evidence, excepting only that part of it respecting which the court gave an opinion. We are therefore only to enquire whether the opinion given by the court be erroneous. \nIt is agreed on both sides that the note in this case was not received, as payment of the debt, and consequently did not extinguish the original contract. It was received as a conditional payment only, and the opinion of the court was,  that in such a case the want of due diligence to receive the money due thereon would discharge the defendant. But the court proceeded to state that due  diligence might be proved although no suit was instituted; and that circumstances, such as the known insolvency of Edgar, the drawer of the note, or any conduct of Clark, preventing a suit, would excuse Young and co. for not having instituted one. \nThis opinion of the court seems perfectly correct. The condition annexed to the receipt of the note can not be presumed to have required that a suit should be brought against a known insolvent, or that it should be brought against the will of the indorser; if he chose to dispense with it, or took means to prevent it, nothing can be more unreasonable than that he should be at liberty to avail himself of a circumstance occasioned by his own conduct. \nIt is not intended to say that the person receiving such a note is compellable, without special agreement, to sue upon it in any state of things. It is not designed to say that he may riot, on its being protested, return it to the indorser, and resort to his original cause of action; it is only designed to say, that under the   circumstances of this case, nothing can be more clear than that there was no obligation to sue. \nThe court gave no opinion that the suit in Fairfax was, or was not, a bar to that brought in the county of Alexandria. \nIt is however clear that no such bar was created. \nTo wave the question, whether in such a case as this, with declarations for such distinct causes, a verdict in a prior suit may be given in evidence as a bar to another suit really for the same cause of action: it is perfectly clear that in this case the same question was not tried in both causes. \nIn Fairfax the point decided was, that the suit against the indorser would not lie 'till a suit had been brought against the drawer; in the suit in Alexandria the point to be decided was whether the plaintiffs had loft their remedy on the original contract, by their conduct respecting the note. These were distinct points, and the merits of  the latter case, were not involved in the decision of the former. \nOn the second bill of exceptions, the only real new point made, is, whether the action is maintainable unless Robert Young and co. had offered to return and reassign the note before the institution  of the suit. \nUnquestionably Clark is entitled to the benefit of the note, but as it was no extinguishment of the original cause of action, there was no absolute necessity to prove an offer of the note before the institution of the suit. Indeed it does not appear, in this bill of exceptions, whether the note was merely a collateral security, or a conditional payment. This is no where stated positively. In the first opinion of the court it is stated hypothetically, and that opinion must be considered on the presumption that such was the fact. But no such presumption is raised respecting the second bill. \nJudgment affirmed with costs. \n \n\n ", " \nOpinion \n\n \n \n  February 28th. The Chief Justice delivered the opinion of the court. \nOn the 4th January, 1800, Robert Hamilton made to Thomas Hamilton an absolute bill of sale for a slave in the bill mentioned, which on the 14th of April, 1801, was acknowledged and recorded in the court of the county in which he resided. The slave continued in possession  of  the vendor; and some short time after the bill of sale was recorded, an execution on a judgment obtained against the vendor was levied on the slave, and on some other personal property also in possession of the vendor. In July, 1801, Thomas Hamilton, the vendee, brought trespass against the defendant Russell, by whose execution, and by whose direction, the property had been seized; and at the trial, the counsel for the defendant moved the court to instruct the jury, that if the slave, George, remained in the possession of the vendor, by the consent and permission of the vendee; and if by such consent and permission the vendor continued to exercise acts of ownership over him, the vendee under such circumstances could not protect the slave from the execution of the defendant. \nThe court gave the instruction required, to which a bill of exceptions was taken. \nThe counsel for the plaintiff then moved the court to instruct the jury that a plaintiff in trespass, whose property is loaned to a friend, and is in that friend's possession at the time it is seized by a sheriff in virtue of an execution against the person so in possession, can sustain an action of trespass for a seizure upon  such possession. \nThe court, being divided, refused to give the instruction required, and the jury found a verdict for the defendant. Judgment was accordingly rendered for the defendant, to which a writ of error has been sued out, and the question is, wheher the court below has erred in the instructions given or refused. \nIn the opinion to which the first bill of exceptions was taken, it is contended on two grounds that the circuit court has erred. \n1st. Because this sale is, under the act of the Virginia assembly against fraudulent sales, protected by being recorded. \n2dly. That if it be not protected by that act, still it is only evidence of fraud, and not in itself a fraud. \n On examining the act of assembly alluded to, the court is of opinion that it does not comprehend absolute bills of sale among those where the title may be separated from the possession, and yet the conveyance be a valid one, if recorded within eight months. On this point one judge doubted, but he is of opinion that this bill of sale was not recorded within the time required by the act, and that the decision in the case of Eppes v. Randolph, which was made by the court of appeals of  Virginia, on a different act of assembly, would not apply to this act. \nOn the second point there was more difficulty. The act of assembly, which governs the case, appears, as far as respects fraudulent conveyances, to be intended to be co-extensive with the acts of the 13th and 27th of Eliz. and those acts are considered as only declaratory of the principles of the common law. The decisions of the English judges therefore apply to this case. \nIn some cases a sale of chattel, unaccompanied by the delivery of possession, appears to have been considered as an evidence, or a badge, of fraud, to be submitted to the jury, under the direction of the court, and not as constituting in itself, in point of law, an actual fraud which rendered the transaction as to creditors entirely void. Modern decisions have taken this question up upon principle, and have determined, that an unconditional sale, where the possession does not \"accompany and follow the deed,\" is, with respect to creditors, on the sound construction of the statute of Elizabeth, a fraud, and  should be so determined by the court. The distinction they have taken is between a deed purporting on the face of it to  be absolute, so that the separation of the possession from the title is incompatible with the deed itself; and a deed made upon condition which does not entitle the vendor to the immediate possession. The cafe of Edwards v. Harbin, exr. of Tempest Mercer, 2 Term rep. 587, turns on this distinction, and is a very strong case. \nWilliam Tempest Mercer, on the 27th of March, 1786, offered to the defendant Harbin, a bill of sale of sundry chattels as a security for a debt due by Mercer to Harbin. This Harbin refused to take, unless he should be permitted, at the expiration of fourteen days, if the debt should  remain unpaid, to take possession of the goods and fell them, in satisfaction of the debt. The surplus money to be returned to Mercer. To this Mercer agreed, and a bill of sale, purporting on the face of it to be absolute, was executed, and a corkscrew delivered in the name of the whole. Mercer died within the fourteen days, and immediately after their expiration Harbin took possession of the goods specified in the bill of sale and sold them. A suit was then brought against him by Edwards, who was also a creditor of Mercer, charging Harbin as executor in his own  wrong, and the question was, whether this bill of sale was fraudulent and void, as being on its face absolute, and being unaccompanied by the delivery of possession. It was determined to be fraudulent; and in that case it is said that all the judges of England had been consulted on a motion for a new trial in the case of Bamford v. Baron, and were unanimously of opinion that \"unless possession accompanies and follows the deed, it is fraudulent and void;\" that is, that unless the possession remain with the person, shown by the deed to be entitled to it, such deed is void as to creditors within the statutes. This principle is said by judge Buller, to have been long settled and never to have been seriously questioned. He states it to have been established by lord Coke, in 2d Bulstrode, so far as to declare that an absolute conveyance or gift of a lease for years, unattended with possession, was fraudulent. \"But if the deed or conveyance be conditional, there the vendor's continuing in possession does not avoid it, because by the terms of the conveyance the vendee is not to have the possession till he has performed the condition.\" \"And that case, continues judge Buller, makes the distinction  between deeds or bills of sale which are to take place immediately, and those which are to take place at some future time. For in the latter case, the possession continuing with the vendor till such future time, or till that condition be performed, is consistent with the deed, and such possession comes within the rule as accompanying and following the deed. The case has been universally followed by all the cases since.\" \"This,\" continues the judge, \"has been argued by the defendant's counsel as being a case in which the want of possession is only evidence of fraud, and that it was not such a circumstance per se, as makes the transaction fraudulent in point of  law; that is the point which we have considered, and we are all of opinion, that if there is nothing but the absolute conveyance, without the possession, that in point of law is fraudulent.\" \nThis court is of the same opinion. We think that the intent of the statute is best promoted by that construction; and that fraudulent conveyances, which are made to secure to a debtor a beneficial interest while his property is protected from creditors, will be most effectually prevented by declaring that an absolute bill  of sale is itself a fraud, unless possession \"accompanies and follows the deed.\" This contribution too comports with the words of the act. Such a deed must be considered as made with an intent \"to delay, hinder, or defraud creditors.\" \nOn the second bill of exceptions the court did right in refusing to give the instruction required. The question propounded seems to have been an abstract question not belonging to the cause. \nJudgment affirmed with costs. \n \n\n ", ". \nOpinion \n\n \n \n  February 28th. The Chief Justice, after stating the case, delivered the opinion of the court. \nTo entitle themselves to the money for which this suit was instituted, it is incumbent on the plaintiffs to shew that they have performed the very act, on the performance of which the money became payable; or that they are excused by the conduct of the defendant for its nonperformance. The act itself has not been performed: but a tender and refusal is equal to a performance; and it is contended that there has been such a tender and refusal in this case. \nThe pleadings show that the tender was not unconditional; but the plaintiffs insist that the condition, annexed to the tender, was such as they had a right to annex to it, and on their correctness in this opinion, depends the judgment now to be rendered. \nThe plea does not contest the sufficiency of the deed of assignment and power of attorney which were tendered;  and consequently no question concerning their sufficiency can arise in the present case. \nThe only cause relied on, as doing away the operation of the  tender, is that it was made on condition that a release of all the claims and demands of the said John Dunlop and co. on the said Hepburn and Dundas, should first be signed, sealed and delivered to them by Colin Auld. \nThe only question in the case is, whether Hepburn and Dundas had a right to insist on this previous condition; and it is admitted that this question depends entirely on the agreement of the 27th of September 1799. \nThat an acquittance should be signed, sealed and delivered before the act itself was performed, which entitled the party to such acquittance, is a mode of proceeding very unusual, and which certainly could only be rendered indispensible by express stipulation. \nThere is in this case no such express stipulation. If the payment had been made in bills or money, the release of all the claims and demands of John Dunlop and co. against them was to have been given, not previous thereto, but upon receiving such payment. If then, as has been argued, the deed of assignment and power of attorney are substituted for the payment in money or in bills, and to be made on the same conditions on which payment, in either of those articles, was to have been made, yet there  could exist no right to demand a delivery of the receipt before the payment. \nIf we inspect those covenants which relate to the deed of assignment of Graham's contract, we find no stipulation respecting a release of any sort. The agreement is that he will receive  the said deed of assignment at 21,112 dollars, towards the discharge of the award, but he does not engage to give any release whatever. \nIt is contended that upon the general principles of justice and of law, Hepburn and Dundas had a right to the evidence of the payment they had made without expressly contracting for such evidence; and this is true, so far  as to entitle them to a receipt for the deed and power delivered; but neither the general principles of justice, nor of law, give Hepburn and Dundas a right to insist upon any release as a previous condition. \nThe case has been argued at bar, as if the condition of the tender of the deed of assignment and power of attorney had been a release of all claims and demands, to be given at one and the same time with the delivery of such deed and power, but this is not the case as presented in the pleadings. According to the plea, Hepburn and Dundas  required the delivery of the release as a condition precedent to their livery of the deed of assignment. \nThis demand seems not to have been countenanced by the contract; and of consequence the tender was not such as it was incumbent on Hepburn and Dundas to have made, in order to entitle themselves to the money for which they have brought this suit. \nJudgment affirmed with costs. \n \n\n ", " \nOpinion \n\n \n \n  March 1st. The chief justice delivered the opinion of the court: \nThis is a writ of error to a judgment of the circuit court of the fourth circuit sitting at Baltimore, in the following case. \nOn the 30th of May, 1800, William Robb, who was then a merchant carrying on trade  and merchandize, in the state of Maryland, signed, sealed and delivered to Gabriel Wood, an instrument of writing, purporting to convey  to the said Gabriel, his real and personal estate in trust, to secure him from certain notes and acceptances made by him, on account of the said Robb, and afterwards, in trust for other creditors in the deed mentioned. This deed was acknowledged on the 14th of June; and was then enrolled according to the laws of Maryland. \nOn the 12th of July, 1800, a commission of bankruptcy was sued out, founded on the execution of the deed above mentioned, and the said William Robb, being declared a bankrupt, his effects were assigned to William Owings and Job Smith, who brought this suit against Gabriel Wood, to recover the money received by him under the deed aforementioned. \nJudgment was contessed by the defendant below, subject to the opinion of the court on a case stated, of which the foregoing were the material facts. \nThe court gave judgment in favor of the assignees, to which judgment a writ of error was sued out by the present plaintiff. \nThe only question made by the counsel was, whether the deed, stated in the case, was an act of bankruptcy. \n On the 4th of April, 1800, congress passed an act to establish an uniform system of bankruptcy throughout  the United States, which declares, among other things, that any merchant who shall, after the first day of June next succeeding the passage of the act, with intent unlawfully to delay or defraud his creditors, make or cause to be made any fraudulent conveyance of his lands or chattels, shall be deemed and adjudged a bankrupt. \nIt was admitted, in the argument, that this deed, if executed after the 1st day of June, would have been an act of bankruptcy, but that being sealed and delivered on the 30th of May, it was not within the act, which only comprehends conveyances made after the 1st of June. \nFor the defendants in error, it was contended, that, by the laws of Maryland, a deed is not complete until it is acknowledged, and therefore this conveyance was made on the 14th of June, when it was acknowledged; and not on the 30th of May, when it was sealed and delivered. \nThe Maryland act alluded to was passed in 1766, and declares, \"that after the first day of May next, no estate of inheritance or freehold, or any declaration or limitation of use, or any estate  for above seven years, shall pass or take effect, except the deed or conveyance, by which the same shall be intended to pass or take effect, shall be acknowledged in the provincial court, or before one of the justices thereof, in the county court, or before two justices of the same county where the lands, tenements, or hereditaments, conveyed by such deed or conveyance do lie, and be also enrolled, &c. within six months after the date of such deed or conveyance.\" \nThe 5th section gives the conveyance, so acknowledged and enrolled, relation to the date thereof. \nIt is a well established doctrine of the common law, that a deed becomes complete, when sealed and delivered. It then becomes the act of the person who has executed it, and whatever its operation may be, it is his deed. The very act of livery, which puts the paper into the possession of the party for whose benefit it is made, seems to require the construction that it has become a deed. \n The question now made to the court is, whether the act of the legislature of Maryland has annexed other requisites to an instrument of writing conveying lands, without the performance of which, not only the passing of the estate,  intended to be conveyed, is arrested, but the instrument itself, is prevented from becoming the deed of the person who has executed it. \nUpon the most mature consideration of the subject, the opinion of the court is, that the words, used in the act of Maryland, which have been recited, consider the instrument as a deed, although inoperative 'till acknowledged and enrolled. \nThe words do not apply to the instrument, but to the estate that instrument is intended to convey. \nSince then the bankrupt law of the United States does not affect deeds made prior to the 1st of June, 1800, and this deed was made on the 30th of May, 1800, the court is of opinion, that the rights, vested by the deed, (whatever they might be) are not divested in favor of the assignees of the bankrupt, and therefore, that they ought not to have recovered in this case. \nJudgment reversed -- and judgment of non pros to be entered. \n \n\n ", " \nOpinion \n\n \n \n March 2d. The Chief Justice, after stating the terms of the lease, and the pleadings, delivered the unanimous opinion of the court. \nThe plaintiff in error has made two points. \n1st. That under this contract, the defendant was bound in his private capacity. \n2dly. That the matter, pleaded in his plea, did not shew the casualty, by which the buildings were destroyed, to have been inevitable. \n This court give no opinion on the second point, being unanimous in favor of the defendant on the first. \nIt appears, from the pleadings, that congress had passed a law authorizing and requiring the president to cause the public offices to be removed from Philadelphia to Washington; in pursuance of which law, instructions, by the president, were given, and the offices belonging to the department of war were removed; that it became necessary to provide a war office, and that for this purpose, and no other, the agreement was entered into by the defendant who was then at the head of this department. During the lease, the building was consumed by fire. \nIt is too clear to be controverted, that where a public agent acts in the line of his duty and by legal authority; his contracts made on account of the government, are public and not personal. \nThey enure to the benefit of, and are obligatory on the government; not the officer. \nA contrary doctrine would be productive of the most injurious consequences to the public, as well as to individuals. The government is incapable of acting otherwise than by its agents, and no prudent man would consent to become  a public agent,  if he should be made personally responsible for contracts on the public account. This subject was very fully discussed on the case of Macbeath v. Haldimand cited from first term reports; and this court considers the principles, laid down in that case, as consonant to policy, justice and law. \nThe plaintiff has not controverted the general principle, but has insisted, that, in this case, the defendant has, by the terms of his contract, bound himself personally. \nIt is admitted that the house was taken on account of the public, in pursuance of the proper authority; and that the contract was made by the person at the head of the department, for the use of which it was taken; nor is there any allegation, nor is there any reason to believe, that the plaintiff preferred the private responsibility of the defendant, to that of the government; or that he was unwilling to contract on the faith of government. Under these circumstances, the intent of the officer to bind himself personally must be very apparent indeed, to induce such a construction of the contract. \nThe court can perceive no such intent. On the contrary, the contract exhibits every appearance of being made with a view  entirely to the government. \nThe official character of the defendant is stated in the description of the parties. This, it has been said, might be occasioned by a willingness in the defendant to describe himself by the high and honorable office he then filled. This, unquestionably, is possible, but is not the fair construction to be placed on this part of the contract, because it is not usual for gentlemen, in their private concerns, to exhibit themselves in their official character. \nThe tenement is let to \"the said Samuel Dexter and \"his successors;\" an expression plainly evidencing that it was not for himself, otherwise than as secretary of war; and that the lessor so understood the contract. It is also evincive of the correctness of the observation of the defendant, that the words \"said Samuel Dexter,\" refer to him in his official character, as described in the premises. The habendum is \"to have and to hold the said demised  premises to him the said Samuel Dexter and his successors,\" &c. showing, that to the knowledge of the lessor, if Mr. Dexter should go out of office the next day, the successor to the war department would succeed also to the occupancy of the  office. \nThe covenant for quiet enjoyment during the term is with the said Samuel Dexter and his successors, and is, that they, as well as he, shall enjoy. \nThe covenant on the part of Mr. Dexter, on which the suit is brought, is for himself and his successors. \nThe whole face of the agreement then manifests very clearly a contract made entirely on public account, without a view, on the part of either the lessor or lessee, to the private advantage or responsibility of Mr. Dexter. \nThe only circumstance which could excite a doubt was produced by the technical operation of the seal.This, in plain reason and common sense, can make no difference in designating the person to be responsible for the contract; and so it has been determined in the case cited from the 1st Term rep. 674, (Unwin v. Wolseley.) \nThe court is unanimously and clearly of opinion, that this contract was entered into entirely on behalf of government, by a person properly authorized to make it, and that its obligation is on the government only. \nWhatever the claims of the plaintiff may be, it is to the government, and not to the defendant, he must resort to have them satisfied. \nJudgment affirmed with costs. \n \n\n ", " \nOpinion \n\n \n \n  The case, as stated by Marshall, ch. j. in delivering the opinion of the court, was as follows: \n in the month of May, 1779, the executors of John Alexander in pursuance of a power contained in the will of their testator, set up to the highest bidder on a ground rent for ever, certain lots of land lying in the town of Alexandria. \nOne of these lots containing half an acre, was struck off to a certain Peter Wise, at the rent of # 26 per annum, current money of Virginia. Wise bid for Jacob Sly, a citizen of Maryland, who transferred the lot to Abraham Faw, to whom the same was conveyed in feesimple, by a deed  bearing date the 5th of August, 1779, in which the said ground-rent of # 26 per annum, current money of Virginia, was reserved. \nIn the year 1784, Abraham Faw divided the said half acre of ground into eight smaller lots, five of which he has sold, reserving a ground-rent for ever, amounting to # 84 12s per annum. One of these lots was conveyed by Faw, to Jacob Hess, in the year 1784, at the ground-rent of # 25 16s per annum, which lot has been since purchased by Philip Marsteller, the appellee,  who has also purchased from the devisee of John Alexander, all his rights in, or issuing from the half-acre lot of ground conveyed to Abraham Faw. Thus Abraham Faw becomes liable to Philip Marsteller, for the rent accruing under the deed of August, 1799, who is himself liable to the said Faw, for the rent accruing on part of the same lot, under the deed executed by Faw to Hess, in November 1784. \nIn November, 1781, the legislature of Virginia, passed an act, calling paper money out of circulation: and also another act directing the mode for adjusting and settling contracts made in that currency. \nThe second section of this latter act, after stating, by way of preamble, that  \"the good people of the State would labour under many inconveniences for want of some rule, whereby to settle and adjust the payment of debts and contracts entered into, or made between the first day of January, 1777, and the first day of January, 1782, unless some rule should be by law established for liquidating and adjusting the same, so  as to do justice as well to the debtor as the creditor;\" enacts that from and after the passing of the act, \"all debt and contracts entered into or made in the current money of this State or the United States, excepting, at all times, contracts entered into for gold and silver coin, tobacco, or any other specific property, within the period aforesaid, now remaining due, and unfulfilled, or which may become due at any future day, or days, for the payment of any sum or sums of money, shall be liquidated, settled, and adjusted agreeably to a scale of depreciation herein after mentioned and contained; that is to say, by reducing the amount of all such debts and contracts to the true value in specie, at the days or times the same were incurred or entered into, and upon payment of said value so found, in specie or other money, equivalent thereto,  the debtors or contractors shall be forever discharged of and from the said debts or contracts, any law, custom, or usage to the contrary, in any wise notwithstanding.\" \nThe fourth section establishes the scale of depreciation which shall constitute the rule by which the value of the debts, contracts, and demands, in the act mentioned, shall be asce tamed; and the fifth section enacts, \"that where a suit shall be brought for the recovery of a debt, and it shall appear that the value thereof hath been tendered and refused; or where it shall appear that the non-payment thereof hath been owing to the creditor; or where other circumstances arise which, in the opinion of the court, before whom the cause is brought to issue, would render a determination agreeable to the above table unjust; in either case it shall and may be lawful for the court to award such judgment as to them shall appear just and equitable.\" \nThe act then empowers the court to direct at what depreciation any judgment shall be discharged on a verdict given for damages, between the first day of January, 1777, and the first day of January, 1782, having \"regard to the original injury or contract on which the damages are  founded, and any other proper circumstances that the nature of the case will admit.\" \n It was proved in the cause, that the contracts made by the executors of John Alexander excited at the time very great attention, and were the subject of general conversation. The prevailing opinion among the bidders was, that the rents would be paid in paper money so long as paper should be the circulating medium, after which they would be paid in specie. Such too was the opinion of Peter Wise, the purchaser of the particular lot which occasioned the existing controversy, and there is reason to suppose it was also the opinion of those who were disposing of the property; it was also thought the rent reserved was low, when considered as payable in paper, but high if to be paid in specie. \nIt was further proved, that a lot not more valuable than that which occasioned the present contest, was sold in 1774, on a ground-rent of # 13 5s per annum, for ever, and that a lot less valuable was sold in the year 1784, on a ground-rent of # 35 per annum. But it appeared from other parts of the testimony, that the lots which were sold in the year 1784, in Alexandria, on ground-rent, were contracted  for so much above the value they afterwards bore, that the lessors in very many instances, were under the necessity of reducing the rents one half below the sum originally stipulated, and in some instances the reduction was still greater. \nThe circuit court decreed, that the rents which accrued during the existence of paper money should be reduced according to the scale for the time when they became payable, but that the subsequent rents should be paid in specie. From this decree Faw appealed, and the case was now argued by Swann and Mason for the appellant; and by E. J. Lee, Jones, and Key, for the appellee. \nFor the appellant, it was conterded, \n1. That this was a contract within the letter and spirit of the 2d section of the act of assembly of Virginia before mentioned, passed in November 1781, c. 22, (Chancery revision of the laws, p. 147,) and entitled, \"an act directing the mode of adjusting and settling the payment of certain debts and contracts, and for other purposes;\" and therefore, \n 2. It was not within the 5th section of that act. \n1. This is a contract made in current money of the state, within the period contemplated by the act, payable at a future  day or days, for the payment of money, and is therefore within the very words of the 2d section of the act. This point was decided by the court of appeals in Virginia, in the case of Watson and Hartshorne v. Alexander, 1 Wash. 340. The object of that section was to provide for contracts in which the fact of depreciation had increased the ideal value of the consideration of the contract. It is proved in the present case, that the rent was high if payable in specie. It is therefore a case within the spirit as well as within the words of the section; for it is reasonable to presume that the high rent was agreed to be given in consequence of the depreciated state of the paper currency. \n2. The 5th section could not mean to provide for cases which were within the spirit of the 2d; because that would be to render the latter section a mere nullity. There would be no use in fixing a scale, if the court were to make a rule according to the circumstances of each particular case. \n But the 5th section was intended for the benefit of debtors only. Every case of equity in favour of creditors was provided for by the exception in the 2d. The only two cases particularly specified  in the 5th section to authorise the equitable interposition of the court, are, where the money has been tendered and refused, or where the non-payment is owing to the creditor. In both these cases, the equity is in favour of the debtor. The act then proceeds, \"or where other circumstances arise, which in the opinion of the court, would render a determination according to the above table unjust; in either case it shall be lawful for the court to award such judgment as to them shall appear just and equitable.\" The two cases are only put by way of example, to show the nature of those other circumstances which will justify the court in departing from the general rule. \n In the present case there are no such other circumstances as come within the intention of the legislature; nothing like the examples which they have stated. \nThe act of assembly is founded upon the idea that every contract for the payment of current money made within the period described, is to be considered prima facie, a contract for the payment of paper money. This idea is founded in reason, because during that period it was almost the only circulating medium. Gold and silver were scarcely known. \nBut  if the 5th section was intended for the benefit of creditors, as well as debtors, still it authorises the court to interfere only in cases attended with extraordinary circumstances. No such circumstances appear in the present case. It was an ordinary and a common contract not differing from the great mass of cases which the legislature interded to subject to the operation of the scale. \nAt the time when this contract was made, May, 1779, the parties could have had no idea of a scale of depreciation. It was even in a manner criminal to doubt the faith of the money. It might have appreciated until it gained the par of gold and silver. It was therefore natural that they should have had an expectation that the rents would at some future time be payable in specie. -- Such must also have been the expectation of all those who made contracts for the payment of current money at distant future periods, and therefore that circumstance cannot vary this case from all others where the money was to be paid in future. The injury arising from that expectation was the very evil which the Legislature intended to guard against. \nArgument, for the Appellee. \n1. This case is not within the letter  or the spirit of the 2d section of the act. \n2. It is within the 5th section. \n1. It is not within the spirit or letter of the 2d section. \n The object of the Legislature was to prevent injury arising from the depreciation of paper money in cases where the contract was made with a view to that currency, and where the parties had not guarded themselves from the effect of its depreciation. The act was not expected to do abstract justice in each case, but to fix a rule which should produce a general good effect. It was predicated upon the idea that an equivalent ought to be paid for the consideration received. The consideration was presumed to pass at the time when the obligation was given, or the contract entered into; and if entered into between certain periods, the value of the consideration was supposed to have been measured by the paper medium. But where any thing on the face of the contract showed that paper money was not in contemplation, then the rule was not to apply; as where the contract was made for gold and silver, tobacco, or other specific thing. A contract therefore in which the parties did not estimate the value of the consideration by the paper medium,  was not a contract within the spirit of the 2d section of this act of Assembly. So if the parties themselves had provided for the event of the depreciation and total failure of paper money, and had regulated the price accordingly, the case would be out of the spirit of the law; for the parties themselves had taken care to do the thing which the law supposed them to have neglected, and only for that reason provided a remedy. \nHence in the construction of this act, courts have always traced the contract up to the time when the consideration first moed from the plaintiff to the defendant, as in the case of Pleasants v. Bibb, 1 Wash. 8, where the bond was dated 1st of Feb. 1780, with condition to pay # 105 on or before Dec. 17, 1781, with interest thereon from the 16th of Feb. 1779, and it was decided that the debt arose in February 1779, and was to be reduced by the scale for that month. By the same reason, if the debt had been stated to have accrued before Jan. 1777, it would not have been reduced at all, yet it would, by the tender law, have been payable in paper money during its existence, but if not actually paid or tendered  in paper during that time, it would not come  within the act of Assembly of 1781. \nSuppose a contract made in 1779, when the depreciation was twenty for one, and a bond given to pay # 20 current money on delivery of a horse worth # 20 current money in 1785. This is another case not within the spirit of the act. \nAgain, suppose a contract made in 1777, when the market price of wheat was 20s. a bushel, payable in paper money, by which A. should bind himself and his heirs, to deliver to B. and his heirs, 1000 bushels of wheat per annum, for 1000 years, for which B. agrees for himself and his heirs, to pay ten shillings current money of Virginia per bushel on delivery. Would this contract be within the spirit of the act? \nIn the present case the lease creates no debt; it is only inducement. The debt arises only from the enjoyment of the property; and nil debet is a good plea, which it would not be if the debt was due by specialty. The consideration of the rent due at the end of any one year was the enjoyment for that year; and if the tenant should be evicted by a paramount title the rent would not be recoverable. The consideration for all the rents since 1781 has accrued since the passage of the law. If the debt in 1800  arises from the enjoyment of the preceding year, is it possible to measure the value of that enjoyment by the depreciated paper of 1779? \nNo consideration passed at the date of the deed, and no debt was then created. \nIt is impossible to conceive that an interminable contract, when a new debt is always rising  from a new enjoyment, should be measured by the paper money and the enjoyment of 1779. \nThe act must have meant temporary, and not interminable contracts. \nIt could not have been the understanding of the parties at the date of the deed, that the rent was forever  to be paid in the currency of 1779; which is the construction contended for by the appellant in his answer to the bill. No person had an expectation that paper money would last forever. It was not in the nature of things that it should. Nor is such a construction warranted by the expressions of the deed. The words are \"to have and to hold the said lot unto the said Abraham Faw, his heirs and assigns forever, yielding and paying for the same, on the 5th day of August next ensuing, and yearly and every year for ever on the same day unto the said William Thornton Alexander, his heirs and assigns,  the sum of twenty-six pounds current money of Virginia.\" And the covenant of Faw is that he will \"yearly and every year, forever, well and truly pay the aforesaid sum of twenty-six pounds Virginia currency.\" \nThis can only mean money current at the times the rents shall become payable. It cannot be contended, that he could satisfy the terms of the lease by paying the rents since 1782 in paper money. \nAs this case is not within the spirit, so neither is it within the letter of the second section of the act. \nThe words are \"all debts and contracts entered into or made in the current money of this state, or of the United States,\" \"within the period aforesaid, now remaining due and unfulfilled, or which may become due at any future day or days, for the payment of any sum or sums of money, &c. \nAt the date of the deed this was neither a debt nor a contract, in the sense in which those terms are used in the act. \nThe whole clause must be taken together. The subsequent words explain the kind of debts and contracts intended. \nThe word debts means debita in praesenti, solvenda in futuro; such as debts due by instalments. But in the present case there was no debt at the date of the  deed. If Faw had become bankrupt, the rents not accrued  at the time of the bankruptcy could not be proved under the commission; and the certificate would be no bar to the recovery of the future rents. The reason is because there is no debt until after enjoyment.Each gale of rent is as a new and separate contract, and constitutes a new and separate debt. \nThe words \"debts\" and \"contracts\" are not used synonimously, but in contradistinction to each other; and the subsequent epithets are to be applied distributively -- reddenda singula singulis. Thus the words \"now remaining due, or which may become due at any future day or days\" are to be referred only to the word \"debts\"; and the expressions \"unfulfilled\" and \"for the payment of any sum or sums of money\" are only applicable to the word \"contracts.\" The meaning therefore is \"debts now remaining due, or which may become due at any future day or days,\" and \"contracts, for the payment of any sum or sums of money, now remaining unfulfilled.\" \nIt is clear then that this was not a debt within the meaning of the act. \nThe word contract evidently means such a contract as might be fulfilled. This is implied by the words \"now  remaining unfulfilled.\" \nIt must not only be a contract which might be fulfilled, but it must be then remaining unfulfilled. Now this is not a contract which can ever be fulfilled, strictly speaking; and if the rents had been paid up to the time of passing the act, it would have been fulfilled as far as it was possible ever to fulfil it. If the rents should be paid for a thousand years, it would still be as far from being fulfilled as it was the day of its date. But as the rents were not paid up to the time of passing the act, there was something for the act to operate upon, if it is to be considered as affecting the case at all. The rents then accrued constituted a debt \"remaining due,\" and therefore, perhaps, they were properly subjest to the scale. But the future rents constituted no debt; and the contract was constantly renovating and never could be discharged. \n The case then is not within the statute. -- But if it is, it is within the fifth section. \nIt has been urged that this section is for the benefit of debtors only. But surely the legislature of Virginia would not so violate the principles of justice, as to provide for the equity of debtors, without also  providing for special cases in favour of creditors. The case of Watson & Hartshorne v. Alexander, 1 Wash. 340, is full in our favour upon this point. The judgment in that case was not reversed on the merits, but upon a supposed impropriety in the manner of bringing the special circumstances of the case before the court below. But here it is not contended that the facts did not come properly before the court. \nIt appears that the rent was high at that time if payable in specie, but low if payable in paper money. \nThe deposition of Wise, who purchased the lot for Slye, states, that he understood at the time that the rents would be payable in specie when paper should cease to circulate. \nWhat was the appellant's own opinion, appears by his having received from Saunders, # 400, in specie, for a breach of Saunders' covenant to extinguish the rent. If the rent is to be reduced to the sum of # 1, 3, 7, according to the appellant's idea, he will have received more than three hundred years purchase. \nBut the parties in this case, made their contract with a full knowledge of the depreciation of paper money. It had already greatly depreciated, and was continuing rapidly to depreciate. \n They knew they were forming a contract, which would extend far beyond the possible existence of paper money. That temporary medium therefore could not have had much influence upon either of them. The chance of paying his rent, for some time, in a depreciated currency might have been some small temptation to the appellant to give a little higher rent, but it does not appear to have been a very high rent even if payable in specie, provided specie had been as plenty as it was  before the existence of paper money. The small increase of the rent which the existence of paper money occasioned was compensated to the appellant by his right to pay it in a depreciated currency,  during the existence of that currency; while the same increase of rent was a compensation to Alexander for his loss by the depreciation. \nIt was therefore a fair and equitable bargain, in which the subject of depreciation was completely and fairly settled by the parties themselves. This court therefore, as a court of equity, has nothing more to do than to carry into effect, the contract as it was understood by the parties at the time, by reducing to the scale, the rents which accrued during  the existence of paper money, and by compelling a payment of the residue in specie. \nThe intention of the parties constitutes the contract; especially in equity. If it was their intention, (as seems to have been fully proved,) that the rent should be paid in paper money during its existence, and afterwards in specie, then it was a contract to pay the rent in gold and silver after a certain period; which period has by subsequent events been proved to be the 1st of January 1782. As to all the rents therefore which have since accrued it was a contract for gold and silver, and therefore expressly within the exception of the 2d section of the act. \nUpon these principles the decree of the court below is founded, and if the court is now to form an equitable adjustment of the contract, it cannot be formed on surer ground than the intentions of the parties themselves, deliberately entered into, with a full knowledge of all the circumstances, and without even an allegation of fraud, mistake, or accident. \nIn reply, it was observed that the nature of the consideration makes no difference. The case is not varied whether the consideration be a horse, or land;--or the use of a horse, or the  use of land -- or whether an annuity forever, be granted in consideration of # 1000 paid in hand -- or whether it be a perpetual rent. \n If the deed did not create a debt, yet it created a contract.It contains a covenant on the part of Faw to pay every year # 26 Virginia currency. This is a contract obligatory upon him without enjoyment. \nThe intention of the parties has been resorted to. That intention can be learned only from the instrument itself. But if we do resort to extraneous evidence, it appears that current money was intended, and that paper money was most naturally within the contemplation of the parties, because there was little specie in circulation. The law was intended to carry into effect the intention of the parties. \nIt has been said that the consideration must be past, and not an accruing consideration. \nBut here the consideration was past. The grantor had parted with his whole right and estate. \nIn an action of debt for rent upon a demise by deed, it is not necessary to aver occupation and enjoyment. The deed itself is the consideration. \nFebruary 14th. Marshall, Ch. J. After stating the facts of the case, delivered the opinion of the court. \n This suit was instituted to recover the rent in arrear, under the deed, executed in August 1779, a part of which rent had accrued during the circulation of paper money. \nThe circuit court decreed that the rents which became payable in the years 1780, and 1781, should be adjusted by the scale of depreciation, when they respectively became due, and that the rents accruing afterwards should be discharged in specie. \nFrom this decree Faw appealed to this court, and it is alleged that the decree of the court below, is erroneous, because, \n1st. The contract of August 1777, is within the 2d section of the act of the Virginia assembly, which has been cited. And if so, \n 2dly. That it is not within the 5th section of that act. \nThe descriptive words of the act of assembly are \"all debts and contracts entered into, or made, in the current money of this state, or of the United States,\" \"now remaining due and unfulfilled, or which may become due, at any future day or days, for the payment of any sum or sums of money.\" These words, it is urged, comprehend in express terms the very contract now before the court. That contract is an engagement entered into within the time specified  by the act to pay several sums of current money in future. To make the case still stronger, contracts for gold and silver coin, tobacco, or any other specific property are expressly excepted out of the operation of the law. When those who introduced these exceptions, were so very cautions as expressly to take a contract for tobacco, or other specific property, out of the operations of a law made solely for money contracts, there are additional inducements to believe that every possible contract, not included within the exceptions, was designed to be comprehended in the general rule. \nIt is admitted in argument, by the council for the appellee, that the terms used in the first part of the section are such, that if they stood alone, they would include, in their letter, the case at bar: but it is contended, that there are subsequent words which limit those just quoted, so as to restrain their operation to contracts capable of being extinguished. These words are, that upon payment of what was the value of the debt or contract at the time it was entered into, \"the debtors or contractors shall be forever discharged of, and from the said debts or contracts.\" These words, it is said, can  only apply to temporary contracts, such as may be completely fulfilled, and from which the debtors or contractors may, in the language of the law, \"be forever discharged.\" \nIt will not be denied that there is much weight in this argument; but it does not appear to the court to be strictly correct. In searching for the literal construction of an act, it would seem to be generally true, that positive and explicit provisions, comprehending in terms  a whole class of cases, are not to be restrained, by applying to those cases an implication drawn from subsequent words, unless that implication be very clear, necessary, and irresistible. In the present case, the implication does not appear to the court to be of that description. A contract for the payment of distinct sums of money, at different periods, is very much in the nature of distinct contracts. An action of debt lies for each sum as it becomes due, and when that sum is paid, the debtor or contractor is forever discharged from the contract to pay it. To understand in this sense the words of the act which are considered as restrictive, does not appear to the court to be such a violence  to their natural import  as to be inadmissible; and to understand them in this sense reconciles the different parts of the clause with each other. \nBut although the counsel for the appellee may not have established the literal construction for which they insist, yet so much weight is admitted to be in the argument, that if they succeed in showing the case to be out of the mischief intended to be guarded against, or out of the spirit of the law, the letter would not be deemed so unequivocal as absolutely to exclude the construction they contend for. \nIt is urged, that the mischief designed to be guarded against, is confined to temporary contracts, and that by the spirit of the law, and the construction it has received, the time when the consideration, on which the debt is founded, moved from the creditor, is the real date of contract. \nBut the court perceives no sufficient ground for saying that this case is taken out of the mischief or spirit of the law by either of the circumstances which have been relied on. \nThe only real reason for supposing that the law might not be designed to comprehend interminable contracts is, that as paper money must unavoidably cease to circulate during the continuance of the  contract, the parties must have measured their agreement by a more permanent standard. \n Very great respect, is certainly due to this argument, but it cannot be denied, that an agreement, which is to subsist for a very great length of time, as for a thousand years, would be entered into with precisely the same sentiments, as an agreement to subsist for ever. The contracting parties would be as confident in the one case, as in the other, that the agreement would subsist, after the paper currency would cease to circulate. Yet an agreement for a thousand years, would be within the very words and the spirit of the law, which plainly comprehends engagements for different sums of money, to become due in future at different periods. To suppose a distinction to have been contemplated between two such cases, is to suppose a course of reasoning too unsubstantial, and too finely drawn for the regulation of human action. It seems to be the date, and not the duration of the contract, which was regarded by the legislature. The act is applied directly to the date of contract, and the motive for making it, was, that contracts entered into during the circulation of paper money, ought  in justice to be discharged, by a sum differing in intrinsic value, from the nominal sum mentioned in the contract, and that when the legislature removed the delusive standard, by which the value of the thing acquired had been measured, they ought to provide that justice should be done to the parties. \nThat the time when the consideration was received, constitutes the date of contract, according to the intention of the act seems not to be a correct opinion; nor, if correct, would it affect the present case. \nIf, for example, a contract had been entered into, in 1779, to be executed in 1789, whereby a specific sum in current money, was to be given for property then to be delivered, no doubt would be entertained, but that the case would come within the law, although the thing sold, would pass out of the vendor after the first of January 1782; yet the contract to pay the money, was entered into in 1779, and in the general legislative view of the subject, the value of the money at the date of the contract, is supposed to have regulated the price of the article. \n If in the case of rents, this argument of the counsel for the appellees was correct, it would follow, that rents  accruing during the circulation of paper money, or leases made before the first of January, 1777, were within the operation of the act. If enjoyment is the consideration, for which the rent becomes payable, and the date of the consideration is in the spirit of the act the date of contract, then rents accruing between the first of January, 1777, and the first of January, 1782, or leases made prior to the former period, would be payable according to the scale of depreciation, and rents accruing after the first of January, 1782, or leases made for a short term of years, when depreciaation was actually at the rate of 500 for one, would be payable in specie at their nominal sum. These consequences follow inevitably, from the construction contended for, and yet it is believed, that no person would admit an exposition, which he acknowledged to involve them. \nThe position then, that the value of the money at the time of the consideration, for which it was to be paid, was received, if the standard by which the contract is to be measured, is not a correct one, and if correct, it would not apply to this case, because, the real consideration is found in the contract itself, by which the right  to enjoy the premises, is conveyed from the grantor to the grantee. This right was defeated by subsequent events, but does not originate in those events. \nThe case cited from 1st Washington 8, by no means conflicts with this opinion. In that case it was decided that where a written instrument discloses on its face any matter which proves that the contract itself was of a date anterior to the paper, by which it is evidenced, as when a bond carries interest from a past day, the contract shall be considered as of a date antecedent to its execution, and the scale of that antecedent date shall be applied to it. The reason of this decision is, that the price of the article sold, was measured in nominal money according to its value, at the date of the original contract, and not according to its value when the instrument of writing was executed. \n It is then the opinion of the court, that the contract of the 5th of August, 1779, comes within the second section of the act, \"directing the mode of adjusting and settling the payment of certain debts and contracts, and for other purposes.\" \nIt remains to imquire, whether it is a case proper for the interposition of that equitable  power which is conferred on the court by the fifth section of that act, and if so, in what manner, and to what extent that power ought to be interposed. \nIt is contended by the counsel for the appellant, that this case does not come within the fifth section of the act, because, \n1st. That section is designed only for the benefit of debtors. \n2d. No testimony out of a written contract can be admitted to explain it. \n3d. If the testimony be admitted, it does not  prove one of those extraordinary cases, which will be entitled to the benefits of that section. \n1st. The fifth section is designed only for the benefit of debtors. \nThat the provisions of an act, for the regulation of contracts, should be designed uniformly to benefit one of the parties only, is at first view a proposition replete with so much injustice, that the person who would maintain it must certainly show, either that the words of the act will admit fairly of no other construction, or that legislative aid on one side only, was requisite in order to do right between the parties. \nThe counsel for the appellants endeavour to maintain both these propositions, and if they succeed in either, the case is  clearly with them. \nIn reasoning from the words of the law, they say, that the two cases put, are by way of example, and as  they are both cases, where the scale established by the act is to be departed from, for the benefit of the debtor, the general power afterwards given to the court ought to be considered as designed to furnish a remedy in other similar cases not occurring at the time to the legislature. \nThe words of the section are, \"that where a suit shall be brought for the recovery of the debt, and it shall appear, that the value thereof hath been tendered and refused; or where it shall appear that the non-payment thereof hath been owing to the creditor; or where other circumstances arise, which in the opinion of the court, before whom the cause is brought to issue, would render a determination agreeable to the above table unjust; in either case it shall and may be lawful for the court to award such judgment as to them shall appear just and equitable.\" \nThe terms used in the third member of the sentence are certainly very comprehensive, and their general natural import does not appear to be so restrained by their connection with other parts of the section, as  necessarily to confine their operation to cases where debtors only can derive advantage from them. \nThe legislature was performing a very extraordinary act. It was interfering in the mass of contracts entered into between the first of January, 1777, and the first of January 1782, and ascertaining the value of those contracts, by a rule different from that which had been adopted by the parties themselves. Altho's the rule might in the general be a just one, yet that it would often produce excessive injury to one or other of the parties, must have been foreseen. It was therefore in some measure necessary to vest in the tribunals applying this rule a power to relax its rigor in such extraordinary cases. This sentiment might produce the fifth section, and if it did, the general terms used, ought to be applied to the relief of the injured party, whether he was the creditor or the debtor. \nThe opinion that the creditor could not in the contemplation of the legislature be the injured party, because  the scale of depreciation gave him the full value of his contract, does not seem to be perfectly correct. According to the law of the contract, all monies accruing under it, which  were not received during the currency of paper, would be payable in such other money as might be current at the time of payment. It is impossible to say by any general rule what influence the knowledge of this principle might have on the parties, in every case where the contract was continuing and was to be fulfilled at future very distant periods. Unless the rule applying to such cases, possessed some degree of flexibility, it is apparent that the one or the other of the parties would often be injured, by the interference of the legislature with their contract, and this injury would most generally be sustained by the creditor, in all cases like that at bar, because in all such cases the conviction that a more valuable medium than that circulating at the time, would return during the continuance of the contract, must have had considerable influence on the parties in fixing the sum of money agreed to be paid. \nThere appears, therefore, nothing in the state of the parties to be affected by the fifth section of the act, which should prevent its application, either to creditors or debtors, as the real justice of the case may require. \nBut admitting the correctness of this opinion,  it is contended that no circumstances can be given in evidence to explain a written contract, and therefore, it is said, that the judgment of the court in this case must be governed absolutely by the deed of August, 1779, unless other subsequent and independent events should control that deed. \nThe rule which forbids a deed to be contradicted, or explained by parol testimony, is a salutary one, and the court is not disposed to impair it. The application of that rule to this case, however, is not perceived. The testimony which brings this contract within the fifth section, neither contradicts nor explains the deed. It is not pretended that the deed was not executed on the consideration expressed on the face of it. But according  to the law which existed when the deed was executed, that consideration would be payable only in gold and silver coin, when gold and silver coin should become the only currency of the country. The law changing the nominal sum of money, by which the debt should be discharged, and giving a general rule, by which a different sum, from that agreed on by the parties, is to be paid and received, authorises a departure from the rule where circumstances  shall arise which render a determination agreeable to it unjust. The examination of these circumstances is not entered into for the purpose of contradicting or explaining the deed, but for the purpose of determining which of two rules given by the statute altering the law of the contract does really govern the case. \nThe argument, that the exception, if it receives the construction which the court seems inclined to give it, would destroy the rule, must be founded on a supposition that in every case the circumstances would be looked into, and a slight injustice in the application of the scale of depreciation to the contract, would be deemed a sufficient motive for departing from it. But this is not the opinion of the court, and it may very readily be perceived that the great mass of contracts made during the circulation of paper money, may be decided by a general scale estimating the value of those contracts, although there may be very strong features in some few cases, which distinguish them as of such peculiar character, that they are embraced by the clause which measures their value by the standard of justice. \nBut although the just construction of the  5th section  of the law, admits a creditor, who would be greatly injured by the application of the general rule to his case, to show circumstances which authorise a departure from that rule; it is contended that such circumstances have not been shown in the cause under consideration. \nIt is said that the case ought to be an extraordinary one, that the circumstances ought to be uncommon which would warrant a departure from the general principle established for the government of contracts generally. \n This is true, and the court would certainly not feel itself at liberty to exercise on a common occasion a discretionary power, limited only by the opinion entertained of the naked justice of the case. \nBut this appears to the court to be an extraordinary case. The evidence goes a great way in proving that the parties to the contract believed that the sums becoming due under it, would at no distant period be payable in specie only. This testimony is the more to be credited, because it is not easy to conceive any other motive for disposing of the property on the terms on which it was parted with; and still more, because such was the operation of the existing law on the contract when it  was entered into. Under this impression, an impression warranted by the law of the land, a very valuable property has been conveyed away for what would have been, under the then existing law, a full consideration, but which a subsequent act of the legislature has reduced certainly to a tenth, perhaps to a twentieth of the real value of the estate disposed of. \nSuch a case is in the opinion of the court an extraordinary case, which is completely entitled to the extraordinary relief furnished by the act which has occasioned the mischief. \nIn inquiring to what extent this relief ought to be afforded, or, in the words of the law, what \"judgment \"will be just and equitable,\" the court can perceive no other guide, by which its opinion ought, in this case, to be regulated, but the real value of the property at the time it was sold. The record does not furnish satisfactory evidence of this value. It is proved that a lot not superior to that which occasioned the present contest, rented in the year 1774, for # 13 5s per annum, and that other lots, perhaps not equal to it, rented in 1784, for # 25 per annum. It is even proved that a small part of the very lots, about the value of which  the inquiry is now to be made, rented in the year 1784, on a ground rent forever, for # 25 16s per annum. These are very strong circumstances in support of the decree of the circuit court, fixing the rent at # 26 per annum,  the nominal sum mentioned in the lease. But a majority of the judges are of opinion that the value must be ascertained by a less erring standard. \nNeither the value in 1774 nor in 1784, ought to regulate the rent. The value at the date of the contract, must be the sum which in equity and justice the lessee ought to pay, and as this value is not ascertained by the testimony in the record, it ought to be found by a jury. In finding this value however, the jury ought not to be governed by the particular difficulty of obtaining gold and silver coin at the time, but their conduct ought to be regulated by the real value of the property, if a solid equivalent for specie had been made receivable in lieu thereof. On these principles the court has directed the following decree. \nThis cause, which was abated by the death of the appellee and was revived in the name of his administrator, came on to be heard on the transcript of the record, and was fully argued  by counsel. On consideration whereof, the court is of opinion that there is error in the decree of the circuit court in this, that the rents reserved in the lease in the proceedings mentioned, bearing date the 5th day of August, in the year of our Lord one thousand seven hundred and seventy-nine, and which were in arrear and unpaid, were decreed to be paid at their value according to the scale of depreciation when the same became due; and that those rents which accrued after the first of January 1782, are decreed to be paid according to the nominal sum mentioned in the lease; whereas, the annual rent reserved in the said lease, ought to be reduced to such a sum in specie, as the property conveyed, was, at the date of the contract, actually worth; to ascertain which, the evidence of the cause not being sufficient for that purpose, an issue ought to have been directed, according to the verdict on which, if satisfactory to the court, the final decree ought to have been rendered. \nThis court is therefore of opinion, that the decree rendered in this cause, in the circuit court for the county  of Alexandria, ought to be reversed, and it is hereby reversed and annulled; and the  court proceeding to give such decree as the circuit court ought to have given, doth decree and order that an issue be directed between the parties, to be tried at the bar of the said circuit court, in order to ascertain what was the actual annual value in specie, or in other money equivalent thereto, of the half acre lot of ground which was conveyed, by the executors of John Alexander, deceased, to Abraham Faw, on the 5th day of August 1779, and that in the account between the parties, in order to a final decree, the representatives of said Phillip Marsteller be allowed a credit for the rent which has accrued and which remains unpaid, estimating the said annual rent at such as the verdict of a jury, to be approved of by the said circuit court, shall ascertain the half acre lot of ground before mentioned, to have been fairly worth at the date of the contract under which the same is claimed by the said Abraham Faw. \n \n\n ", " \nOpinion \n\n \n \n  Feb. 22d. Marshall, Chief Justice, delivered the opinion of the court: -- The Charming Betsy was an American built vessel, belonging to citizens of the United States, and sailed from Baltimore, under the name of the Jane, on the 10th of April, 1800, with a cargo of flour St. Bartholomew's; she was sent out for the purpose of being sold. The cargo was disposed of at St. Bartholomew's; but finding it impossible to sell the vessel at that place, the captain proceeded with her to the island of St. Thomas,  where she was disposed of to Jared Shattuck, who changed her name to that of the Charming Betsy, and  having put on board her a cargo consisting of American produce, cleared her out as a Danish vessel for the island of Guadaloupe. \nOn her voyage she was captured by a French privateer, and eight hands were put on board her for the purpose of taking her into Guadaloupe as a prize. She was afterwards recaptured by captain Murray, commander of the Constellation frigate, and carried into Martinique. It appears that the captain of the Charming Betsy was not willing to be taken into that island; but when there, he claimed to have his vessel and cargo restored, as being the property of Jared Shattuck, a Danish burgher. \nJared Shattuck was born in the United States, but had removed to the island of St. Thomas while an infant, and was proved to have resided there ever since the year 1789 or 1790. He had been accustomed to carry on trade as a Danish subject, had married a wife and acquired real property in the island, and also taken the oath of allegiance to the crown of Denmark in 1797. \nConsidering him as an American citizen who was violating the law prohibiting all intercourse  between the United States and France or its dependencies, or the sale of the vessel as a mere cover to evade that law, captain Murray sold the cargo of the Charming Betsy, which consisted of American produce, in Martinique, and brought the vessel into the port of Philadelphia, where she was libelled under what is termed the non-intercourse law. The vessel and cargo were claimed by the consul of Denmark as being the bona fide property of a Danish subject. \nThis cause came on to be heard before the  judge for the district of Pennsylvania, who declared the seizure to be illegal, and that the vessel ought to be restroed and the proceeds of the cargo paid to the claimant or his lawful agent, together with costs and such damages as should be assessed by the clerk of the court, who was directed to inquire into and report the amount thereof; for which purpose he was also directed to associate with himself two intelligent merchants of the district, and duly inquire what damage Jared Shattuck had sustained by reason of the premises. If they should be of opinion that the  officers of the Constellation had conferred any benefit on the owner of the Charming Betsy by rescuing  her out of the hands of the French captors, they were in the adjustment to allow reasonable compensation for the service. \nIn pursuance of this order the clerk associated with himself two merchants, and reported, that having examined the proofs and vouchers exhibited in the cause, they were of opinion that the owner of the vessel and cargo had sustained damage to the amount of 20,594 dollars and 16 cents, from which is to be deducted the sum of 4,363 dollars and 86 cents, the amount of monies paid into court arising from the sales of the cargo, and the further sum of 1,300 dollars, being the residue of the proceeds of the said sales remaining to be brought into court, 5,663 dollars and 86 cents. This estimate is exclusive of the value of the vessel, which was fixed at 3,000 dollars. \nTo this report an account is annexed, in which the damages, without particularizing the items on which the estimate was formed, were stated at 14,930 dollars and 30 cents. \nNo exceptions having been taken to this report, it was confirmed, and by the final sentence of the court captain Murray was ordered to pay the amount thereof. \nFrom this decree an appeal was prayed to the circuit court, where the  decree was affirmed so far as it directed restitution of the vessel and payment to the claimant of the net proceeds of the sale of the cargo in Martinique, and reversed for the residue. \nFrom this decree each party has appealed to this court. \nIt is contended on the part of the captors in substance, \n1st. That the vessel Charming Betsy and cargo are confiscable under the laws of the United States. If not so, \n2d. That the captors are entitled to salvage. If this is against them, \n3d. That they ought to be excused from damages,  because there was probable cause for seizing the vessel and bringing her into port. \n1st. Is the Charming Betsy subject to seizure and condemnation for having violated a law of the United States? \nThe libel claims this forfeiture under the act passed in February, 1800, further to suspend the commercial intercourse between the United States and France and the dependencies thereof. \nThat act declares \"that all commercial intercourse,\" &c. It has been very properly observed, in argument, that the building of vessels in the United States for sale to neutrals, in the islands, is, during war, a profitable business, which Congress cannot be  intended to have prohibited, unless that intent be manifested by express words or a very plain and necessary implication. \nIt has also been observed that an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains, and consequently can never be construed to violate neutral rights, or to affect neutral commerce, further than is warranted by the law of nations as understood in this country. \nThese principles are believed to be correct, and they ought to be kept in view in construing the act now under consideration. \nThe first sentence of the act which describes the persons whose commercial intercourse with France or her dependencies is to be prohibited, names any person or persons, resident within the United States or under their protection. Commerce carried on by persons within this description is declared to be-illicit. \nFrom persons the act proceeds to things, and declares explicitly the cases in which the vessels employed in this illicit commerce shall be forfeited. Any vessel owned, hired or employed wholly or in part by any person residing within the United States, or by any citizen thereof residing elsewhere, which  shall perform certain  acts recited in the law, becomes liable to forfeiture. It seems to the court to be a correct construction of these words to say, that the vessel must be of this description, not at the time of the passage of the law, but at the time when the act of forfeiture shall be committed. The cases of forfeiture are, 1st. A vessel of the description mentioned, which shall be voluntarily carried, or shall be destined, or permitted to proceed to any port within the French Republic. She must, when carried, or destined, or permitted to proceed to such port, be a vessel within the description of the act. \nThe second class of cases are those where vessels shall be sold, bartered, entrusted, or transferred, for the purpose that they may proceed to such port or place. This part of the section markes the crime of the sale dependent on the purpose for which it was made. If it was intended that any American vessel sold to a neurtral should, in the possession of that neutral, be liable to the commercial disabilities imposed on her while she belonged to citizens of the United States, such extraordinary intent ought to have been plainly expressed; and if it was designed  to prohibit the sale of American vessels to neutrals, the words placing the forfeiture on the intent with which the sale was made ought not to have been inserted. \nThe third class of cases are those vessels which shall be employed in any traffic by or for any person resident within the territories of the French Republic, or any of its dependencies. \nIn these cases too the vessels must be within the description of the act at the time the fact producing the forfeiture was committed. \nThe Jane having been completely transferred in the island of St. Thomas, by a bona fide sale to Jared Shattuck, and the forfeiture alleged to have accrued on a fact subsequent to that transfer, the liability of the vessel to forfeiture must depend on the inquiry whether the purchase was within the description of the act. \nJared Shattuck having been born within the United  States, and not being proved to  have expatriated himself according to any form prescribed by law, is said to remain a citizen, entitled to the benefit and subject to the disabilities imposed upon American citizens; and, therefore, to come expressly within the description of the act which comprehends American citizens  residing elsewhere. \nWhether a person born within the United States, or becoming a citizen according to the established laws of the country, can divest himself absolutely of that character otherwise than in such manner as may be prescribed by law, is a question which it is not necessary at present to decide. The cases cited at bar and the arguments drawn from the general conduct of the United States on this interesting subject, seem completely to establish the principle that an American citizen may acquire in a foreign country, the commercial privileges attached to his domicil, and be exempted from the operation of an act expressed in such general terms as that now under consideration. Indeed the very expressions of the act would seem to exclude a person under the circumstances of Jared Shattuck. He is not a person under the protection of the United States. The American citizen who goes into a foreign country, although he owes local and temporary allegiance to that country, is yet, if he performs no other act changing his condition, entitled to the protection of our government; and if, without the violation of any municipal law, he should be oppressed unjustly, he would have a right  to claim that protection, and the interposition of the American government in his favour, would be considered a justifiable interposition. But his situation is completely changed, where by his own act he has made himself the subject of a foreign power. Although this act may not be sufficient to rescue him from punishment for any crime committed against the United States, a point not intended to be decided, yet it certainly places him out of the protection of the United States while within the territory of the sovereign to whom he has sworn allegiance, and consequently takes him out of the description of the act. \nIt is therefore the opinion of the court, that the  Charming Betsy, with her cargo, being at the time of her recapture the bona fide property of a Danish Burgher, is not forfeitable, in consequence of her being employed in carrying on trade and commerce with a French island. \nThe vessel not being liable to confiscation, the court is brought to the second question, which is: \n2d. Are the recaptors entitled to salvage? \nIn the case of the Amelia 12 it was decided, on mature onsideration, that a neutral armed vessel in possession of the French might, in the  then existing state of hostilities between the two nations, be lawfully captured; and if there were well founded reasons for the opinion that she was in imminent hazard of being condemned as a prize, the recaptors would be entitled to salvage. The court is well satisfied with the decision given in that case, and considers it as a precedent not to be departed from in other cases attended with circumstances substantially similar to those of the Amelia. One of these circumstances is, that the vessel should be in a condition to annoy American commerce. \nThe degree of arming which should bring a vessel within this description has not been ascertained, and perhaps it would be difficult precisely to mark the limits, the passing of which would bring a captured vessel within the description of the acts of Congress on this subject. But although there may be difficulty in some cases, there appears to be none in this. According to the testimony of the case, there was on board but one musket, a few ounces of powder, and a few balls. The testimony respecting the cutlasses is not considered as shewing that they were in the vessel at the time of her recapture. The  capacity of this vessel for offence appears not sufficient to warrant the capture of her as an armed vessel. Neither is it proved to the satisfaction of the court, that the Charming Betsy was in such imminent hazard of being condemned as to entitle the recaptors to salvage. \n It remains to inquire whether there was in this case such probable cause for sending in the Charming Betsy for adjudication as will justify captain Murray for having broken up her voyage, and excuse him from the damages sustained thereby. \nTo effect this there must have been substantial reason for believing her to have been at the time wholly or in part an American vessel, within the description of the act, or hired, or employed by Americans, or sold, bartered, or trusted for the purpose of carrying on trade to some port or place belonging to the French Republic. \nThe circumstances relied upon are principally, \n1st. The proces verbal of the French captors. \n2d. That she was an American built vessel. \n3d. That the sale was recent. \n4th. That the captain was a Scotchman, and the muster roll shewed that the crew were not Danes. \n5th. The general practice in the Danish islands of covering  neutral property. \n1st. The proces verbal contains an assertion that the mate declared that he was an American, and that their flag had been American, and had been changed during the cruise to Danish, which declaration was confirmed by several of the crew. \nIf the mate had really been an American, the vessel would not on that account have been liable to forfeiture, nor should that fact have furnished any conclusive testimony of the character of the vessel. The proces verbal however ought for several reasons to have been suspected. The general conduct of the French West-India cruisers and the very circumstance of declaring that the Danish colors were made during the chase, were sufficient to destroy the credibility of the proces verbal. Captain Murray ought not to have believed that an American vessel trading to a French port in the assumed character of a Danish bottom, would have been without Danish colors, \n That she was an American vessel, and that the sale was recent, cannot be admitted to furnish just cause of suspicion, unless the sale of American built vessels had been an illegal or an unusual act. \nThat the captain was a Scotchman not that  the names  of the crew were not generally Danish, are circumstances of small import, when it is recollected that a very great proportion of the inhabitants of St. Thomas's are British and Americans. \nThe practice of covering American property in the islands might and would justify captain Murray in giving to other causes of suspicion more weight than they would otherwise be entitled to, but cannot be itself a motive for seizure. If it was, no neutral vessel could escape, for this ground of suspicion would be applicable to them all. \nThese causes of suspicion taken together ought not to have been deemed sufficient to counterbalance the evidence of fairness with which they were opposed. The ship's papers appear to have been perfectly correct, and the information of the captain uncontradicted by those belonging to the vessel who were taken with him, corroborated their verity. No circumstance existed, which ought to have discredited them. That a certified copy of Shattuck's oath, as a Danish subject, was not on board, is immaterial, because, being apparently on all the papers a burgher and it being unknown that he was born in the United States, the question, whether he had ceased to be a citizen  of the United States could not present itself. \nNor was it material that the power given by the owners of the vessel, to their captain to sell her in the West-Indies, was not exhibited. It certainly was not necessary to exhibit the instructions under which the vessel was acquired, when the fact of acquisition was fully proved by the documents on board and by other testimony. \nAlthough there does not appear to have been such cause to suspect the Charming Betsy and her cargo to have been American, as would justify captain Murray in bringing her in for adjudication, yet many other circumstances combine with the fairness of his character to produce  a conviction that he acted upon correct motives, from a sense of duty; for which reason this hard case ought not to be rendered still more so by a decision in any respect oppressive. \nHis orders were such as might well have induced him to consider this as an armed vessel within the law, sailing under authority from the French republic; and such too as might well have induced him to trust to very light suspicions respecting the real character of a vessel appearing to belong to one of the neutral islands. A public officer entrusted  on the high seas to perform a duty deemed necessary by his country, and executing according to the best of his judgment the orders he has received, if he is a victim of any mistake he commits, ought certainly never to be assessed with vindictive or speculative damages. It is not only the duty of the court to relieve him from such when they plainly appear to have been imposed on him, but no sentence against him ought to be affirmed where, from the nature of the proceedings, the whole case appears upon the record, unless those proceedings are such as to shew on what the decree has been founded, and to support that decree. \nIn the case at bar damages are assessed as they would be by the verdict of the jury, without any specifications of items which can shew how the account was made up, or on what principles the sum given as damages was assessed. This mode of proceeding would not be approved of if it was even probable from the testimony contained in the record that the sum reported by the commissioners of the district court was really the sum due. The district court ought not to have been satisfied with a report giving a gross sum in damages unaccompanied by any explanation, of the  principles on which that sum was given. It is true captain Murray ought to have excepted to this report. His not having done so however does not cure an error apparent upon it, and the omission to shew how the damages which were given had accrued, so as to enable the judge to decide on the propriety of the assessment of his commissioners, is such an error. \nAlthough the court would in any case disapprove of this mode of proceeding, yet in order to save the parties the costs of further prosecuting this business in the circuit  court, the error which has been stated might have been passed over, had it not appeared probable that the sum, for which the decree of the district court was rendered, is really greater than it ought to have been according to the principles by which the claim should be adjusted. \nThis court is not therefore satisfied with either the decree of the district or circuit court, and has directed me to report the following decree: \nDecree of the Court. \nTHIS cause came on to be heard on the transcript of the record of the circuit court, and was argued by counsel; on consideration whereof, it is adjudged, ordered, and decreed, as follows, to wit: That  the decree of the circuit court, so far as it affirms the decree of the district court, which directed restitution of the vessel, and payment to the claimant of the net proceeds of the sale of the cargo in Martinique, deducting the costs and charges there, according to amount exhibited by capt. Murray's agent, being one of the exhibits in the cause, and so far as it directs the parties to bear their own costs, be affirmed; and that the residue of the said decree, whereby the claim of the owner to damages for the seizure and detention of his vessel was rejected, be reversed. \nAnd the court, proceeding to give such further decree as the circuit court ought to have given, doth further adjudge, order, and decree, that so much of the decree of the district court as adjudges the libellant to pay costs and damages, be affirmed; but that the residue thereof, by which the said damages are estimated at 20,594 dollars, 16 cents, and by which the libellant was directed to pay that sum, be reversed and annulled. And this court does further order and decree, that the cause be remanded to the circuit court, with directions to refer it to commissioners, to ascertain the damages sustained by the  claimants, in consequence of the refusal of the libellant to restore the vessel and cargo at Martinique, and in consequence of his sending her into a port of the United States for adjudication; and that the said commissioners be instructed to take the actual prime cost of the cargo and vessel, with interest thereon, including  the insurance actually paid, and such expenses as were necessarily  sustained in consequence of bringing the vessel into the United States, as the standard by which the damages ought to be measured. Each party to pay his own costs in this court and in the circuit court.-- All which is ordered and decreed accordingly. \nA true copy. \nE. B. CALDWELL, Clerk, Sup. Court U. States. \nCaptain Murray was reimbursed his damages, interest and charges, out of the Treasury of the United States, by an act of Congress, January 31st, 1805. \n \n\n ", " \nOpinion \n\n \n \n  February 25th. MARSHALL, CH. J. delivered the opinion of the court. \nThis is a declaration on a policy of insurance, and the only question in the case is, whether the policy was vacated by a subsequent agreement between the parties. This question depends entirely on the legal operation of certain written communications between them, which appear in the record. \nMessrs. Head & Amory of Boston had obtained insurance through their correspondents, Messrs. Brown & Ives of Providence, on the cargo of the Spanish brig the Nueva Empressa, at and from Malaga to Vera Cruz, and at and from thence to her port of discharge in Spain. An insurance was afterwards  obtained on the brig, at and from Cuba, (she having been chased into the Havanna by British cruisers,) to her port of delivery in Spain. \nThe vessel having been detained in port, closely watched by cruisers till she was worm eaten, Head & Amory became desirous of terminating their risk at the Havanna,  which could only be effected by permission of the government at that place, which was not to be obtained but with considerable expense. They therefore applied to the insurance company, through their correspondents, Brown & Ives, by a letter dated Boston, the 21st August, 1800, to know whether a conditional permission could be obtained from the underwriters, to terminate the voyage at the Havanna, provided the consent of the government could be obtained; and if so, on what terms that conditional permission would be granted. \nThe underwriters refused to make any conditional agreement, but offered to vacate both policies on terms mentioned in a letter signed by their president. Misunderstanding the letter as a proposition for vacating the policy on the cargo only, the terms proposed were acceded to, and a letter was written from Head & Amory to Brown & Ives, declaring their  acceptance of the proposition, understood to be made by the insurance company, in such a manner as very clearly to shew the mistake under which it was written. On seeing this letter the misapprehension of the parties was discovered and explained, and the agreement considered as not being made; at the same time a new proposition was made for settling both policies. To this letter declining absolutely any agreement respecting either policy singly, and proposing specific terms on which they would settle both, Head & Amory returned an answer dated the 3d of September 1800, which was addressed to Brown & Ives, and is in these words. -- (See ante p. 131.) \nThis letter was laid by Brown & Ives before the company, and their secretary returned the following note without a signature. \n(See the note of September 6th, 1800 -- ante p. 132.) \nThis note was forwarded by Brown & Ives, to Messrs. Head & Amory, but before they received it, intelligence came to hand that the Nueva Empressa had sailed from the Havanna, and had been captured, and was condemned as a prize late in the month of August. Head & Amory therefore insisted on their policy. \n Every thing respecting the delays in  the communications, is laid out of the case, because they do not appear to the court in any manner to affect it. \nRichard Jackson the President of another Marine Insurance Company, was also examined and testified that in effecting insurance, or settling a policy, or making any adjustment or agreement about insurance, the assent of the parties to doing a thing was in all respects as binding on the parties, as the thing done, according to the usage and practice among underwriters. \nUpon this testimony, the court instructed the jury that the agreement to cancel the policy for the cargo, was fully proved, and they ought to find for the defendants on that count. The jury accordingly found for the defendants, and the plaintiffs have sued out a writ of error to bring the cause into this court. \nThe opinion and instructions of the judges of the circuit court to the jury are said to be erroneous, because, \nThe communications which have been cited, do not import a contract. They were negotiations preparatory to an agreement, but not an agreement itself. \nThe letter of the 3d of September, certainly manifests some degree of disappointment, at finding that the agreement supposed to have  been concluded, had not really been made; and also proves their opinion that the negotiation was not absolutely broken off, but was yet pending. \"If we make this settlement say they, we shall make every effort by money and interest to have the adventure terminated at the Havanna, and the sooner we know the better.\" \"The terms we acceded to were very favourable to the company, as it was paying them at the rate of 35 per cent for the outward premium.\" \nYet the letter contains no direction to make any specific proposition to the company, and may be construed either as a mere inquiry,  whether the company would cancel the policy for the insurance on the cargo singly, on the terms which had before been understood to have been offered, or as a new and positive proposition, the acceptance of which would complete the contract. \n It is also very questionable, whether the unsigned note delivered by the secretary is such an acceptance as to form, when taken with the letter of the 3d of September, an absolute agreement obligatory on the company. \nIt is a general rule that a corporation can only act in the manner prescribed by law. When its agents do not clothe their  proceedings with those solemnities which are required by the incorporating act, to enable them to bind the company, the informality of the transaction as has been very properly urged at the bar, is itself conducive to the opinion, that such act was rather considered as manifesting the terms on which they were willing to bind the company, as negotiations preparatory to a conclusive agreement, than as a contract obligatory on both parties. \nThe communications stated in the record, lead to an event which might have been so readily completed, that it might have been, and probably was, supposed unnecessary to pass through the previous solemnities of a contract binding themselves to do that which, if really the wish of both parties, might so speedily be accomplished; so short a space of time was requisite to have the policy delivered up and cancelled, that the forms of completing a contract to cancel it might have been deemed useless. On this account, and on account of the known incapacities of a body corporate to act or speak but in the manner prescribed by law, it may well be doubted, whether communications which between individuals would really constitute an agreement, were viewed by  the parties before the court in any other light, than as ascertaining the terms on which a contract might be formed. \nThis course of reasoning relative to the intent of the parties, is plainly founded on the idea that the note of the 6th of September, is in its legal operation a mere informal paper, which may perhaps amount to notice of an act, if such act was really performed, but which is not in itself an act of any legal obligation on the company. That if the proposition contained in the letter of the 3d of September, had been regularly accepted, this note might possibly have been considered as notice  of that acceptance, but is not in itself an acceptance. If this idea be incorrect, so is the reasoning founded on it. If it be correct, then it follows that no contract was made, because the proposition of the 3d of September, if it really was one, was not accepted by the company before it was withdrawn by Head & Amory. This leads us to inquire, \nWhether the unsigned note of the 6th of September, be a corporate act obligatory on the company. \nWithout ascribing to this body, which in its corporate capacity, is the mere creature of the act to which it owes its existence,  all the qualities and disabilities annexed by the common law to ancient institutions of this sort, it may correctly be said to be precisely what the incorporating act has made it, to derive all its powers from that act, and to be capable of exerting its faculties only in the manner which that act authorises. \nTo this source of its being, then, we must recur to ascertain its powers, and to determine whether it can complete a contract by such communications as are in this record. \nThe act after incorporating the stockholders, by the name of the Providence Insurance Company, and enabling them to perform by that name, those things which are necessary for a corporate body, proceeds to define the manner in which those things are to be performed. Their manner of acting is thus defined. \"Be it further enacted, that all policies of assurance and other instruments, made and signed by the president of the said company, or any other officer thereof, according to the ordinances, bye-laws and regulations of the said company, or of their board of directors shall be good and effectual in law, to bind and oblige the said company to the performance thereof, in manner as set forth in the constitution  of the said company, herein after recited and ratified.\" \nAn instrument then to bind the company, must be signed by the president or some other officer, according to the ordinances, bye-laws and regulations of the company, or board of directors. \n A contract varying a policy, is as much an instrument as the policy itself, and therefore can only be executed in the manner prescribed by law. The force of the policy might indeed have been terminated by actually cancelling it, but a contract to cancel it is as solemn an act as a contract to make it, and to become the act of the company, must be executed according to the forms in which by law they are enabled to act. \nThe original constitution of the company, which is engrafted into the act of incorporation, does not aid the defendants. That agreement does not appear to dispense with the solemnities which the law is supposed to require. It demands the additional circumstance that a policy should be countersigned by the secretary. \nIt appears to the court, that an act not performed according to the requisites of the law, cannot be considered as the act of the company, in a case relating to the formation or dissolution of  a policy. \nIf the testimony of Mr. Jackson is to be understood, as stating that an assent to the formation or dissolution of a policy, if manifested according to the forms required by law, is as binding as the actual performance of the act agreed to be done, it is probable that the practice he alludes to is correct. But if he means to say, that this assent may be manifested by parol, the practice cannot receive the sanction of this court. It would be to dispense with the formalities required by law for valuable purposes, and to enable these artificial bodies to act and to contract in a manner, essentially different from that prescribed for them by the legislature. \nNor do the cases which have been cited by the gentlemen of the bar appear to the court to apply in principle to this. \nAn individual has an original capacity to contract and bind himself in such manner as he pleases. For the general security of society, however, from frauds and perjuries, this general  power is restricted, and he is disabled from making certain contracts by parol. This disabling act has received constructions which take  out of its operation, several cases not within the mischief,  but which might very possibly be deemed within the strict letter of the law. He who acts by another acts for himself. He who authorises another to make a writing for him, makes it himself; but with these bodies which have only a legal existence, it is otherwise. The act of incorporation is to them an enabling act; it gives them all the power they possess; it enables them to contract, and when it prescribes to them a mode of contracting, they must observe that mode, or the instrument no more creates a contract than if the body had never been incorporated. \nIt is then the opinion of this court, that the circuit court erred in directing the jury that the communications contained in the record in this case, amounted to a contract obligatory on the parties, and therefore the judgment must be reversed, and the cause remanded for a new trial. \nConcur by:", " \nOpinion \n\n \n \n  February 27. MARSHALL, Chief Justice, now delivered the opinion of the Court. \nThe Flying-Fish a Danish vessel having on board Danish and neutral property, was captured on the 2d of December 1799, on a voyage from Jeremie to St. Thomas's, by the United States frigate Boston, commanded by Captain Little, and brought into the port of Boston, where she was libelled as an American vessel that had violated the non-intercourse law. \nThe judge before whom the cause was tried, directed a restoration of the vessel and cargo as neutral property, but refused to award damages for the capture and detention, because in his opinion, there was probable cause to suspect the vessel to be American. \nOn an appeal to the circuit court this sentence was reversed, because the Flying-Fish was on a voyage from, not to, a French port, and was therefore, had she even been an American vessel, not liable  to capture on the high seas. \n During the hostilities between the United States and France, an act for the suspension of all intercourse between the two nations was annually passed. That under which the Flying-Fish was condemned, declared every vessel, owned, hired or employed wholly or in part by an American, which should be employed in any traffic or commerce with or for any person resident within the jurisdiction or under the authority of the French republic, to be forfeited together with her cargo; the one half to accrue to the United States, and the other to any person or persons, citizens of the United States, who will inform and prosecute for the same. \nThe 5th section of this act authorises the president of the United States, to instruct the commanders of armed vessels, \"to stop and examine any ship or vessel of the United States on the high sea, which there may be reason to suspect to be engaged in any traffic or commerce contrary to the true tenor of the act, and if upon examination it should appear that such ship or vessel is bound or sailing to any port or place within the territory of the French republic or her dependencies, it is rendered lawful to seize  such vessel, and send her into the United States for adjudication. \nIt is by no means clear that the president of the United States whose high duty it is to \"take care that the laws be faithfully executed,\" and who is commander in chief of the armies and navies of the United States, might not, without any special authority for that purpose, in the then existing state of things, have empowered the officers commanding the armed vessels of the United States, to seize and send into port for adjudication, American vessels which were forfeited by being engaged in this illicit commerce. But when it is observed that the general clause of the first section of the \"act, which declares that such vessels may be seized, and may be prosecuted in any district or circuit court, which shall be holden within or for the dirstrict where the seizure shall be made,\" obviously contemplates a seizure within the United States; and that the 5th section  gives a special authority to seize on the high seas, and limits that authority to the seizure of vessels bound or sailing to a French port, the legislature seem to have prescribed  that the manner in which this law shall be carried into  execution, was to exclude a seizure of any vessel not bound to a French port. Of consequence, however strong the circumstances might be, which induced captain Little to suspect the Flying-Fish to be an American vessel, they could not excuse the detention of her, since he would not have been authorised to detain her had she been really American. \nIt was so obvious, that if only vessels sailing to a French port could be seized on the high seas, that the law would be very often evaded, that this act of congress appears to have received a different construction from the executive of the United States; a construction much better calculated to give it effect. \nA copy of this act was transmitted by the secretary of the navy, to the captains of the armed vessels, who were ordered to consider the 5th section as a part of their instructions. The same letter contained the following clause. \"A proper discharge of the important duties enjoined on you, arising out of this act, will require the exercise of a sound and an impartial judgment. You are not only to do all that in you lies, to prevent all intercourse, whether direct or circuitous, between the ports of the United States, and those  of France or her dependencies, where the vessels are apparently as well as really American, and protected by American papers only, but you are to be vigilant that vessels or cargoes really American, but covered by Danish or other foreign papers, and bound to or from Franch ports, do not escape you.\" \nThese orders given by the executive under the construction of the act of congress made by the department to which its execution was assigned, enjoin the seizure of American vessels sailing from a French port. Is the officer who obeys them liable for damages sustained by this misconstruction of the act, or will his orders excuse him? If his instructions afford him no protection, then the law must take its course, and he must pay such damages as are legally awarded against him; if they excuse an act not otherwise excusable, it would then be necessary to inquire whether this is a case in which the probable cause  which existed to induce a suspicion that the vessel was American, would excuse the captor from damages when the vessel appeared in fact to be neutral. \nI confess the first bias of my mind was very strong in favour of the opinion that though the instructions of the  executive could not give a right, they might yet excuse from damages. A was much inclined to think that a distinction ought to be taken between acts of civil and those of military officers; and between proceedings within the body of the country and those on the high seas. That implicit obedience which military men usually pay to the orders of their superiors, which indeed is indispensably necessary to every military system, appeared to me strongly to imply the principle that those orders, if not to perform a prohibited act, ought to justify the person whose general duty it is to obey them, and who is placed by the laws of his country in a situation which in general requires that he should obey them. I was strongly inclined to think that where, in consequence of orders from the legitimate authority, a vessel is seized with pure intention, the claim of the injured party for damages would be against that government from which the orders proceeded, and would be a proper subject for negotiation. But I have been convinced that I was mistaken, and I have receded from this first opinion. I acquiesce in that of my brethren, which is, that the instructions cannot change the nature of the  transaction, or legalize an act which without those instructions would have been a plain trespass. \nIt becomes therefore unnecessary to inquire whether the probable cause afforded by the conduct of the Flying-Fish to suspect her of being an American, would excuse Captain Little from damages for having seized and sent her into port, since had she actually been an American, the seizure would have been unlawful? \nCaptain Little then must be answerable in damages to the owner of this neutral vessel, and as the account taken by order of the circuit court is not objectionable on its face, and has not been excepted to by council before the proper tribunal, this court can receive no objection to it. \nThere appears then to be no error in the judgment of the circuit court, and it must be affirmed with costs. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. There can be no doubt of this fact. The only difficulty is to shew that it requires 20 years after the removal of the impediments, to create the presumption of payment. It may be a doubt, whether the same time after the removal of the impediments, is necessary to raise the presumption, as if the bond had borne date at the time of such removal. \n Swann, for defendant, contended that the time between the 19th of April, 1775, and Sept. 1783, being deducted from the age of the bond when put in suit, the residue being about 20 years, and 6 months, should be considered as the lapse of time which was to induce the presumption that the disability of the plaintiff ceased on the ratification of the treaty of peace. There are no cases decided in the superior courts of Virginia, in which the plea of disability of the plaintiff, as being a British subject, has been allowed since the peace. The cases cited are county court cases, and do not appear in the record.They are facts which this court cannot notice. \nBut if we travel out of the record, other cases may be cited from other counties, in which countrary decisions have taken place. It is a fact that in Fairfax county, where the defendant always resided, British debts could always be recovered since the year 1783. If the cases cited against us are admitted to rebut the presumption, this fact is equally strong, and ought to be admitted to support it. \nLee in reply. Although it was stipulated by the treaty  that all legal impediments to the recovery of debts should be  removed, yet that did not alter the existing state of things. The obnoxious laws remained in full force in practice. The fact was, that the legal impediments were not removed. We are not now to consider what the law ought to have been, but what it was in practice. For if the impossibility of recovering the debt still remained, it destroyed all presumption arising from the lapse of time. \nFeb. 28. MARSHALL, Ch. J. delivered the opinion of the court. The only circumstance which could create a question in this case is, that twenty years had not elapsed, exclusive of the period during which the plaintiffs were under a legal disability to recover, before the action was brought. \nThe principle, upon which the presumption of payment arises from the lapse of time, is a reasonable principle, and may be rebutted by any facts which destroy the reason of the rule. \nThat no presumption could arise during a state of war, in which the plaintiff was an alien enemy, is too clear to admit of doubt. But it is not so clear that upon a bond so old as this, the same length of time after the removal of the disability, is necessary to raise the presumption, as would be required if the bond had borne  date at the time of such removal. \nIt appears from the decisions of the courts of Virginia, from the pleas in bar in the federal courts, and particularly from the observations of the chancellor of Virginia, in the case cited, that it was the general understanding of the inhabitants of that state, that British debts could not be recovered: And, until the year 1793, there was no decision of the superior courts that such debts were recoverable. \nThe only question is, whether, in case of an old debt, the same time is required to raise the presumption, as in the case of a debt accruing since the impediments have been removed. \nIn such a case it is not easy to establish a new rule, and  the court think it best to adhere to the old decisions, that twenty years must have elapsed exclusive of the period of the plaintiff's disability; and are of opinion that the circuit court erred in directing the jury that payment ought to be presumed. \nThe judgment of the court is entered upon the minutes in the following terms: \nThe court having heard the arguments of counsel, and maturely considered the same, is of opinion (and do adjudge, order, and decree accordingly) that the circuit  court erred in instructing the jury \"that from the length of time they were to presume the bond, in the record mentioned, to be satisfied, unless they should find, from the evidence, that interest was paid on the bond within twenty years from the 5th of September 1775, (the time of the last payment) or that a suit or demand was made on said bond within twenty years from the last mentioned time, exclusive, in both cases, of five years, five months, and twenty days, taken out of the act of limitations;\" there being circumstances in this case which oppose the presumption which would have arisen from the length of time which has elapsed since the date of the bond. \nAnd this court doth further adjudge, order, and decree, that this cause be remanded to the said circuit court, to be there tried, with directions that there is no presumption of payment of the said bond, as directed by the said circuit court. \n \n\n ", " \nOpinion \n\n \n \n  March 5th. -- MARSHALL, C.J. delivered the opinion of the court. \nIf in this case the court had been of opinion, that the circuit court had erred in its construction of the policies, which constitute the ground of action; that is, if we had conceived that the defence set up, would have been insufficient, admitting it to have been clearly made out in point of fact, we should have deemed it right to have declared that opinion, although the case might  have gone off on other points; because it is desirable to terminate every cause upon its real merits, if those merits are fairly before the court, and to put an end to litigation where it is in the power of the court to do so. But no error is perceived in the opinion given on the construction of the policies. If the proof is sufficient to shew that the loss of the vessel and cargo, was occasioned by attempting an illicit trade with the Portuguese; that an offence was actually committed against the laws of that nation, and that they were condemned by the government on that account, the case comes fairly within the exception of the policies, and the risk was one not intended to be insured against. \nThe words of the exception in the first policy are, \"The insurers are not liable for seizure by the Portuguese for illicit trade.\" \nIn the second policy, the words are \"The insurers do not take the risk of illicit trade with the Portuguese.\" \nThe counsel on both sides, insist that these words ought to receive the same construction, and that each exception is substantially the same. \nThe court is of the same opinion. The words themselves are not essentially variant from each other, and  no reason is perceived for supposing any intention in the contracting parties to vary the risk. \nFor the plaintiff it is contended, that the terms used require an actual traffic between the vessel and inhabitants,  and a seizure in consequence of that traffic, or at least that the vessel should have been brought into port, in order to constitute a case which comes within the exception of the policy. But such does not seem to be the necessary import of the words. The more enlarged and liberal construction given to them by the defendants, is certainly warranted by common usage; and wherever words admit of a more extensive or more restricted signification, they must be taken in that sense which is required by the subject matter, and which will best effectuate what it is reasonable to suppose, was the real intention of the parties. \nIn this case, the unlawfulness of the voyage was perfectly understood by both parties. That the crown of Portugal excluded, with the most jealous watchfulness, the commercial intercourse of foreigners with their colonies, was probably a fact of as much notoriety as that foreigners had devised means to elude this watchfulness, and to carry on  a gainful but very hazardous trade with those colonies. If the attempt should succeed it would be very profitable, but the risk attending it was necessarily great. It was this risk which the underwriters, on a fair construction of their words, did not mean to take upon themselves. \"They are not liable.\" they say, \"for seizure by the Portuguese for illicit trade.\" \"They do not take the risk of illicit trade with the Portuguese,\" now this illicit trade was the sole and avowed object of the voyage, and the vessel was engaged in it from the time of her leaving the port of New-York. The risk of this illicit trade, is separated from the various other perils to which vessels are exposed at sea, and excluded from the policy. Whenever the risk commences the exception commences also, for it is apparent that the underwriters meant to take upon themselves no portion of that hazard which was occasioned by the unlawfulness of the voyage. \nIf it could have been presumed by the parties to this contract, that the laws of Portugal, prohibiting commercial intercourse between their colonies and foreign merchants, permitted vessels to enter their ports, or to hover off their coasts for the purposes  of trade, with impunity, and only subjected them to seizure and condemnation  after the very act had been committed, or if such are really their laws, then indeed the exception might reasonably be supposed to have been intended to be as limited in its construction as is contended for by the plaintiff. If the danger did not commence till the vessel was in port, or till the act of bargain and sale, without a permit from the governor, had been committed, then it would be reasonable to consider the exception as only contemplating that event. But this presumption is too extravagant to have been made. If indeed the fact itself should be so, then there is an end of presumption, and the contract will be expounded by the law; but as a general principle, the nation which prohibits commercial intercourse with its colonies, must be supposed to adopt measures to make that prohibition effectual. They msut therefore, be supposed to seize vessels coming into their harbours or hovering on their coasts, in a condition to trade, and to be afterwards governed in their proceedings with respect to those vessels by the circumstances which shall appear in evidence. That the officers of that  nation are induced occasionally to dispense with their laws, does not alter them, or legalize the trade they prohibit. As they may be executed at the will of the governor, there is always danger that they will be executed, and that danger the insurers have not chosen to take upon themselves. \nThat the law of nations prohibits the exercise of any act of authority over a vessel in the situation of the Aurora, and that this seizure is, on that account, a mere marine trespass, not within the exception, cannot be admitted. To reason from the extent of protection a nation will afford to foreigners to the extent of the means it may use for its own security does not seem to be perfectly correct. It is opposed by principles which are universally acknowledged. The authority of a nation within its own territory is absolute and exclusive. The seizure of a vessel within the range of its cannon by a foreign force is an invasion of that territory, and is a hostile act which it is its duty to repel. But its power to secure itself from injury, may certainly be exercised beyond the limits of its territory. Upon this principle the right of a belligerent to search a neutral vessel on the   high seas for contraband of war, is universally  admitted, because the belligerent has a right to prevent the injury done to himself by the assistance intended for his enemy: so too a nation has a right to prohibit any commerce with its colonies. Any attempt to violate the laws made to protect this right, is an injury to itself which it may prevent, and it has a right to use the means necessary for its prevention. These means do not appear to be limited within any certain marked boundaries, which remain the same at all times and in all situations. If they are such as unnecessarily to vex and harrass foreign lawful commerce, foreign nations will resist their exercise. If they are such as are reasonable and necessary to secure their laws from violation, they will be submitted to. \nIn different seas and on different coasts, a wider or more contracted range, in which to exercise the vigilance of the government, will be assented to. Thus in the channel, where a very great part of the commerce to and from all the north of Europe, passes through a very narrow sea, the seizure of vessels on suspicion of attempting an illicit trade, must necessarily be restricted to very narrow  limits, but on the coast of South America, seldom frequented by vessels but for the purpose of illicit trade, the vigilance of the government may be extended somewhat further; and foreign nations submit to such regulations as are reasonable in themselves, and are really necessary to secure that monopoly of colonial commerce, which is claimed by all nations holding distant possessions. \nIf this right be extended too far, the exercise of it will be resisted. It has occasioned long and frequent contests, which have sometimes ended in open war. The English, it will be well recollected, complained of the right claimed by Spain to search their vessels on the high seas, which was carried so far that the guarda costas of that nation, seized vessels not in the neighbourhoold of their coasts. This practice was the subject of long and fruitless negotiations, and at length of open war. The right of the Spaniards was supposed to be exercised unreasonably and vexatiously, but it never was contended that it could only be exercised within the range of the cannon from their butteries. Indeed the  right given to our own revenue cutters, to visit vessels four leagues from our coast,  is a declaration that in the opinion of the American government, no such principle as that contended for, has a real existence. \nNothing thereis to be drawn from the laws or usages of nations, which gives to this part of the contract before the court the very limited construction which the plaintiff insists on, or which proves that the seizure of the Aurora, by the Portuguese governor, was an act of lawless violence. \nThe argument that such act would be within the policy, and not within the exception, is admitted to be well founded. That the exclusion from the insurance of \"the risk of illicit trade with the Portuguese,\" is an exclusion only of that risk, to which such trade is by law exposed, will be readily conceded. \nIt is unquestionably limited and restrained by the terms \"illicit trade.\" No seizure, not justifiable under the laws and regulations established by the crown of Portugal, for the restriction of foreign commerce with its dependencies, can come within this part of the contract, and every seizure which is justifiable by those laws and regulations, must be deemed within it. \nTo prove that the Aurora and her cargo were sequestered at Para, in conformity with the laws  of Portugal, two edicts and the judgment of sequestration have been produced by the defendants in the Circuit Court. These documents were objected to on the principle that they were not properly authenticated, but the objection was overruled, and the judges permitted them to go to the jury. \nThe edicts of the crown are certified by the American consul at Lisbon to be copies from the original law of the realm, and this certificate is granted under his official seal. \nForeign laws are well understood to be facts which must, like other facts, be proved to exist before they can be received in a court of justice. The principle  that the best testimony shall be required which the nature of the thing admits of; or, in other words, that no testimony shall be received which presupposes better testimony attainable by the party who offers it, applies to foreign laws as it does to all other facts. The sanction of an oath is required for their establishment, unless they can be verified by some other such high authority that the law respects it not less than the oath of an individual. \nIn this case the edicts produced are not verified by an oath. The consul has not sworn; he has  only certified that they are truly copied from the originals. To give to this certificate the force of testimony it will be necessary to shew that this is one of those consular functions to which, to use its own language, the laws of this country attach full faith and credit. \nConsuls, it is said, are officers known to the law of nations, and are entrusted with high powers.This is very true, but they do not appear to be entrusted with the power of authenticating the laws of foreign nations. They are not the keepers of those laws.They can grant no official copies of them. There appears no reason for assigning to their certificate respecting a foreign law any higher or different degree of credit, than would be assigned to their certificates of any other fact. \nIt is very truly stated that to require respecting laws, or other transactions, in foreign countries that species of testimony which their institutions and usages do not admit of would be unjust and unreasonable. The court will never require such testimony. In this, as in all other cases, no testimony will be required which is shewn to be unattainable. But no civilized nation will be presumed to refuse those acts for authenticating  instruments which are usual, and which are deemed necessary for the purposes of justice. It cannot be presumed that an application to authenticate an edict by the seal of the nation would be rejected, unless the fact should appear to the court. Nor can it be presumed that any difficulty exists in obtaining a copy. Indeed in this very case the very testimony offered would contradict such a presumption. The paper offered to the  court is certified to be a copy compared with the original. It is impossible to suppose that this copy  might not have been authenticated by the oath of the consul as well as by his certificate. \nIt is asked in what manner this oath should itself have been authenticated, and it is supposed that the consular seal must ultimately have been resorted to for this purpose. But no such necessity exists. Commissions are always granted for taking testimony abroad, and the commissioners have authority to administer oaths and to certify the depositions by them taken. \nThe edicts of Portugal, then, not having been proved, ought not to have been laid before the jury. \nThe paper offered as a true copy from the original proceedings against the  Aurora, is certified under the seal of his arms by D. Jono de Almeida de Mello de Castro, who states himself to be the secretary of state for foreign affairs, and the consul certifies the English copy which accompanies it to be a true translation of the Portuguese original. \nForeign judgments are authenticated, \n1. By an exemplification under the great seal. \n2. By a copy proved to be a true copy. \n3. By the certificate of an officer authorised by law, which certificate must itself be properly authenticated. \nThese are the usual and appear to be the most proper, if not the only modes of verifying foreign judgments. If they be all beyond the reach of the party, other testimony inferior in its nature might be received. But it does not appear that there was any insuperable impediment to the use of either of these modes, and the court cannot presume such impediment to have existed. Nor is the certificate which has been obtained an admissible substitute for either of them. \nIf it be true that the decrees of the colonies are transmitted  to the seat of government, and registered in the department of state, a certificate of that fact under the great seal, with a copy  of the decree authenticated in the same manner, would be sufficient prima facie evidence of the verity of what was so certified; but the certificate offered to the court is under the private seal of the person giving it, which cannot be known to this court, and of consequence can authenticate nothing. The paper, therefore, purporting to be a sequestration of the Aurora and her cargo in Para ought not to have been laid before the jury \nAdmitting the originals in the Portuguese language to have been authenticated properly, yet there was error in admitting the translation to have heen read on the certificate of the consul. Interpreters are always sworn, and the translation of a consul not on oath can have no greater validity than that of any other respectable man. \nIf the court erred in admitting as testimony papers which ought not to have been received, the judgment is of course to be reversed and a new trial awarded.It is urged that there is enough in the record to induce a jury to find a verdict for the defendants, independent of the testimony objected to, and that, in saying what judgment the court below ought to have rendered, a direction to that effect might be given. If this  was even true in point of fact, the inference is not correctly drawn. -- There must be a new trial, and at that new trial each party is at liberty to produce new evidence. Of consequence this court can give no instructions respecting that evidence. \nThe judgment must be reversed with costs and the cause remanded to be again tried in the circuit court, with instructions not to permit the copies of the edicts of Portugal and the sentence in the proceedings mentioned, to go to the jury, unless they be authenticated according to law. 1 \n \n\n ", " \nOpinion \n\n \n \n  March 6th. Marshall, Chief Justice, delivered the opinion of the court. \n In this case, a preliminary question has been made, by the counsel for the plaintiffs, which ought not to be disregarded. As the parties interested except the owners of the cargo of the Firm, are not Americans, a doubt has been suggested, respecting the jurisdiction of the court, and upon a reference to authorities, the point does not appear to have been ever settled. These doubts seem rather founded on the idea, that upon principles of general policy, this court ought not to take cognizance of a case entirely between foreigners, than from any positive incapacity to do so. On weighing the considerations drawn from public convenience, those in favour of the jurisdiction, appear much to overbalance those against it, and it is the opinion of this court, that, whatever doubts may exist in a case, where the jurisdiction may be objected to, there ought to be none where the parties assent to  it. \nThe previous question being disposed of, the court will proceed to consider the several cases, which have grown out of the libel filed in the district court. \nThe first to be decided, is that of the captain of the Firm, who, by the sentence of the circuit court, was declared to have forfeited his right to salvage, by having embezzled a part of the cargo of the Blaireau. \nThe fact is not contested, but it is contended that the embezzlement proved in the cause does not affect the right of the captain to salvage. \nThe arguments in support of this position shall very briefly be reviewed. It is insisted that the embezzlement was made, after the vessel was brought into port, and this seems to be considered as a circumstance material to the influence which the embezzlement ought to have in the case. So far as respects the fact, the evidence is that the articles were brought on board the Firm, when the Blaireau was found at sea, and the fraud was detected in the port of Baltimore. When the concealment took place does not appear, but it would be straining very hard, to presume that it took place after arriving in port. It is not however, perceived that this need be the subject of  very minute  inquiry, since the fact must have occurred before he parted with the possession acquired by the act, on the merit of which his claim for salvage is founded. \nIt is also stated, that this court has no jurisdiction of the crime committed by the captain, and cannot notice it even incidentally. \nIf it was intended merely to prove, that this court could not convict captain Mason of felony, and punish him for that offence, there certainly could never have been a doubt entertained on the subject; but when it is inferred from thence, that the court can take no notice of the fact, the correctness of the conclusion is not perceived. It is believed to be universally true, that when a claim of any sort is asserted in court, all those circumstances which go to defeat the claim, and to show that the person asserting it has not a right to recover, may and ought to be considered. The real question, therefore, is whether the claim for salvage is affected by the act of embezzlement; and if it is, the incapacity of this court to proceed criminally against the captain, forms no objection to their examining a fact, which goes to the very foundation of his right. \nThe legal  right of the salvors is insisted on, and it is said, that in trover for the ship and cargo by the owners, salvage would be allowed to those who had rendered the service, and then openly converted them to their own use. \nYet the jury, trying the action, would determine on the right to salvage, and would inquire into any fact which went to defeat that right. \nWhatever shape then may be given to the question, it still resolves itself into the inquiry, whether the embezzlement of part of the cargo, does really intermingle itself with, and infect the whole transaction in such a manner, as to destroy any claim founded on it. \nThe counsel for this plaintiff contends, that the merits of Captain Mason as a salvor, are no impaired by the act charged upon him,  against a  debt, and the claim for salvage is in nature of a debt. \nThis leads to an inquiry into the principles on which salvage is allowed. If the property of an individual on land be exposed to the greatest peril, and be saved by the voluntary exertions of any person whatever; if valuable goods be rescued from a house in flames, at the imminent hazard of life by the salvor, no remuneration in the shape of  salvage is allowed. The act is highly meritorious, and the service is as great as if rendered at sea.Yet the claim for salvage could not, perhaps, be supported. It is certainly not made. Let precisely the same service, at precisely the same hazard, be rendered at sea, and a very ample reward will be bestowed in the courts of justice. \nIf we search for the motives producing this apparent prodigality, in rewarding services rendered at sea, we shall find them in a liberal and enlarged policy. The allowance of a very ample compensation for those services, (one very much exceeding the mere risk encountered, and labour employed in effecting them,) is intended as an inducement to render them, which it is for the public interests, and for the general interests of humanity, to hold forth to those who navigate the ocean. It is perhaps difficult, on any other principle, to account satisfactorily for the very great difference which is made between the retribution allowed for services at sea and on land: neither will a fair calculation of the real hazard or labour, be a foundation for such a difference; nor will the benefit received always account for it. \nIf a wise and humane policy be  among the essential principles, which induce a continuance in the allowance of that liberal compensation which is made for saving a vessel at sea, we must at once perceive the ground on which it is refused to the person whose conduct ought to be punished instead of being rewarded. That same policy which is so very influential, in producing the very liberal allowances made by way of salvage, requires that those allowances should be withheld from persons, who avail themselves of the opportunity, furnished  them by the possession of the property of another, to embezzle that property. While the general interests of society require that the most powerful inducements should be held forth to men, to save life and property about to perish at sea, they also require that those inducements should likewise be held forth to a fair and upright conduct, with regard to the objects thus preserved. This would certainly justify the reduction of the claim, to a bare compensation on the principles of a real quantum meruit, and the losses in the cargo, which may be imputed to the captain, would balance that account, if, as is contended by his counsel, the court could not, on principles generally  received, consider the act of embezzlement as a total forfeiture of all right to salvage. \nBut the case of a mariner, who forfeits his right to wages by embezzling any part of the cargo, is precisely in point. That case stands on the same principles with this, and is a full authority for this, since it cannot be denied, that the right to salvage is forfeited by the same act that would forfeit the right to wages. \nIn the case of Mr. Stevenson, the fact is not clearly ascertained. If the embezzlement was fixed upon him, he as well as the captain ought to forfeit his salvage. But it is not fixed. Yet there are circumstances in the case, which, if he stands acquitted of the charge of unfairness, do certainly so implicate him in that of carelessness as to destroy his pretensions to superior compensation, and reduce his claim to a level with that of a common mariner. \nThe decree of the circuit court, being approved so far as respects Captain Mason and Mr. Stevenson, the general rate of salvage allowed by that decree, is next to be considered. \nThere is certainly no positive rule, which governs absolutely the rate of salvage. Yet in fixing it, the common usage of commercial nations,  and especially of those whose subjects are interested in the particular case, ought unquestionably to be regarded. In France, it appears, that a service like that rendered the owners of the  Blaireau, would have been compensated with one-third of the value of the vessel and cargo. In England the principle of reciprocity, if not adopted, is much respected, and to judge from the tenor of their cases on this subject, it is fairly presumable that the salvage which would be allowed in an English court in a case like the present, would not greatly vary from that which appears to be made by the ordinances of France. \nThis is unquestionably a case of great merit and a very liberal salvage ought to be allowed. Yet that allowed both by the district and circuit courts, appears to exceed any sum which those principles, which ought to be resorted to as guides in the case, will justify. Among the various adjudications of the courts of admiralty in England, to which country the salvors belong, no one has been found where so large an allowance has been made; and in France the nation of the owners of the property saved, a positive ordinance is understood to regulate this subject, and  to fix the salvage at one-third of the gross value of what has been preserved. \nTaking the whole subject into consideration, the court is disposed to reduce the rate of salvage, and to allow about two-fifths instead of three-fifths to the salvors. The vessel and cargo will then be really charged, in consequence of the savings produced by the forfeiture of the captain's claim, and the reduction of those of the mate and Mr. Christie, with not more than one-third of the gross value of the property. \nIn the distribution of this sum, the court does not entirely approve the decree which has been rendered in the circuit court. \nThe proportion allowed the owners of the Firm, and her cargo, is not equal to the risk incurred, nor does it furnish an inducement to the owners of vessels to permit their captains to save those found in distress at sea, in any degree proportioned to the inducements offered to the captains and crew. The same policy ought to extend to all concerned, the same rewards for a service designed to be encouraged, and it is surely no reward to a man, made his own insurer without his own consent,  to return him very little more than the premium he had advanced. \n The common course of decisions, too, has established a very different ratio for the destribution of salvage money, and the court is of opinion, that those decisions are founded on substantial considerations. \n The owners of the vessel and cargo, in this case, will be allowed one-third of the whole amount of salvage decreed, which third is to be divided between them in the proportion established in the district court, it being in our opinion very clear, that the owner of the vessel continued to risk the freight, after as much as before the assent of Mr. Christie, to the measures necessary for saving the Blaireau. That assent could only be construed, to charge him with the hazards to be encountered by the cargo, and not to vary the contract respecting the freight. \nThe proportions established, by the decree of the circuit court, between those who navigated the Firm, and those who navigated the Blaireau, and between the individuals in each ship, are all approved with this exception. The case exhibits no peculiar merits in Mr. Christie, and therefore, his allowance is not to exceed that of a seaman on board that vessel. \nOn the rights of Toole and the apprentices, this  court entirely concurs in opinion with the district and circuit courts. \nThere was certainly no individual, who assisted in bringing in the Blaireau, that contributed so much to her preservation as Toole. Every principle of justice, and every feeling of the heart, must arrange itself on the side of his claim. \nBut it is contended, that the contract he had entered into bound him to continue his endeavours to bring the vessel into port, and that the principles of general policy, forbid the allowance of salvage to a mariner belonging to the ship which has been preserved. \n The claims upon him, on the ground of contract, are urged with a very ill grace indeed. It little becomes those who devoted him to the waves to set up a title to his further services. The captain, who was entrusted by the owner with power over the vessel and her crew, had discharged him from all further duty under his contract, as far as any act whatever could discharge him, and it is not for the owner now to revive this abandoned claim. \nThose principles of policy which withhold from the mariners of a ship their wages on her being lost, and which deny them salvage for saving their ship, however great  the peril may be, cannot apply to a case like this. -- There is no danger that a single seaman can be induced or enabled, by the prospect of the reward given to Toole, to prevail on the officers and crew of a vessel to abandon her to the mercy of the waves, for the purpose of entitling the person who remains in her to salvage, if she should be fortunately preserved. \nThe claim of the master to the salvage allowed his apprentices, is one which the court feels no disposition to support, unless the law of the case be clearly with him. The authorities, cited by his counsel, do not come up to this case. The right of the master to the earnings of his apprentice, in the way of his business, or of any other business which is substituted for it, is different from a right to his extraordinary earnings which do not interfere with the profits the master may legitimately derive from his service. Of this latter description is salvage. It is an extra benefit, the reception of which does not deduct from the profits the master is entitled to from his service. But the case cited from Robinson, where salvage was actually decreed to an apprentice, is in point. The counsel does not appear to the  court to construe that case correctly, when he says, that it does not determine the right as between the master and the apprentice. The fair understanding of the case is, that the money was decreed to the apprentice, and was to be paid for his benefit. \nConsidering the case strictly on principle, that portion of the salvage allowed ought to be paid to the master, which would compensate him for having risked the future service of his apprentice; but as this would not amount to a very considerable sum, and as a liberal salvage has  already been decreed to the master, this further allowance will not be made in this case. \nUpon these principles the following decree is to be entered. \n\"This cause came on to be heard on the transcript of the record of the circuit court, and was argued by counsel, on consideration whereof this court doth reverse the sentence of the circuit court, so far as the same is inconsistent with the principles and opinions herein after stated: \n\"This court is of opinion, that too large a proportion of the net proceeds of the ship Blaireau and her cargo, has been allowed to the salvors, and that 21,400 dollars is a sufficient retribution for the service  performed, which sum is decreed to the claimants, except captain Mason whose rights are forfeited by embezzling a part of the cargo, in full of their demands. In distributing the sum thus allowed, this court is of opinion, that the owners of the Firm and her cargo, ought to receive one-third of the whole amount thereof, of which one-third the proportion of the owner of the vessel ought to be to that of the owner of the cargo, as the value of the vessel and freight is to the value of the cargo -- that is, as 18 to 4. \n\"It is further the opinion of the court, that the remaining two-thirds of the salvage allowed, ought to be divided between those who navigated both the Firm and the Blaireau, excluding Captain Mason, in the proportions directed by the circuit court, with this exception, that the sum to be received by Charles Christie, is to be the same with that received by a seaman on board the Blaireau. \n\"In everything not contrary to the principles herein contained, the decree of the circuit court is affirmed, and the cause is remanded to the said circuit court to be further proceeded in, according to the directions given. The parties are to pay their own costs.\" \n \n\n ", " \nOpinion \n\n \n \n  Marshall, Ch. J. delivered the opinion of the court. -- \nThis is an action of debt brought to recover a penalty imposed by the act, entitled \"an act to prohibit the carrying on the slave trade from the United States to any foreign place or country.\" \nIt was pleaded in bar of the action, that the offence was not committed within two years previous to the institution of the suit. To this plea the plaintiff demurred, and the circuit court being divided on its sufficiency, the point has been certified to this court. \n In the argument, the plaintiff has rested his case on two points. He contends, \n1st. That the act of congress, pleaded by the defendant, is no bar to an action of debt. \n2d.That if it be a bar, it applies only to the recovery of penalties given by acts which existed at the time of its passage. \nThe words of the act are, \"nor shall any person be prosecuted,\" &c. vol. 1, p. 114. It is contended that the prosecutions limited by this law,  are those only which are carried on in the form of an indictment or information, and not those where the penalty is demanded by an action of debt. \nBut if the words of the act be examined, they will be found to apply not to any particular mode of proceeding, but generally to any prosecution, trial, or punishment  for the offence. It is not declared that no indictment shall be found, or information filed, for any offence not capital, or for any fine or forfeiture under any penal statute, unless the same be instituted within two years after the commission of the offence. In that case the act would be pleadable only in bar of the particular action. But it is declared, that \"no person shall be prosecuted, tried, or punished,\" -- words which shew an intention, not merely to limit any particular form of action, but to limit any prosecution whatever. \nIt is true that general expressions may be restrained by subsequent particular words, which shew that in the intention of the legislature, those general expressions are used in a particular sense: and the argument is a strong one, which contends that the latter words describing the remedy, imply a restriction on those which precede  them. Most frequently they would do so. But in the statute under consideration, a distinct member of the sentence, describing one entire class of offences, would be rendered almost totally useless by the construction insisted on by the attorney for the United States.Almost every fine or forfeiture under a penal statute, may be recovered by an action of debt as well as by information; and to declare that the information was barred while the action of debt was left without limitation, would be to attribute a capriciousness on this subject to the legislature, which could not be accounted for; and to declare that the law did not apply to cases on which an action of debt is maintainable, would be to overrule express words, and to give the statute almost the same construction which it would receive if one distinct member of the sentence was expunged from it. In this particular case the statute which creates the forfeiture does not prescribe the mode of demanding it; consequently, either debt or information would lie. It would be singular if the one remedy should be barred and the other left unrestrained. \nIn support of the opinion, that an act of limitations to criminal prosecutions  can only be used as a bar in cases declared by law to be criminal at the time the act of limitations was passed, unless there be express words extending it to crimes to be created in future, Cunningham's law dictionary has been cited. \n The case in Cunningham is reported in 1 Salk. and 5 Mod. and seems to be founded on the peculiar phraseology of the statute of the 21 of James 1. directing informations to be filed in the county in which the offences were committed. That statute was expounded to extend only to offences, which at the time of its passage were punishable by law. But the words of the act of congress plainly apply to all fines and forfeitures under any penal act, whenever that act might pass. They are the stronger because not many penal acts were at that time in the code. \nIn expounding this law, it deserves some consideration, that if it does not limit actions of debt for penalties, those actions might, in many cases, be brought at any distance of time. This would be utterly repugnant to the genius of our laws. In a country where not even treason can be prosecuted after a lapse of three years, it could scarcely be supposed that an individual would remain  forever liable to a pecuniary forfeiture. \nThe court is of opinion that it be certified to the circuit court for the district of Massachusetts, that the issue in law joined in this case, ought to be decided in favour of the defendant. \n \n\n ", " \nOpinion \n\n \n \n  Marshall, C.J. delivered the opinion of the court to the following effect: -- \nIn this case the court has attentively considered the record, proceedings, and evidence. The only equity of the complainant's bill as to Lamar & Beall, arises out of  the transactions between him and the defendant, Smith, and the court is of opinion that that equity is not supported; and that the material allegations of the bill as to the defendant, Smith, and which are denied by his answer, are also unsupported by the evidence. Nor are the allegations of the complainant respecting his certificate of discharge, sufficiently proved. \nBy the separation of the district of Columbia from  the state of Maryland, the complainant caused to be a citizen of that state, his residence being in the city of Washington at the time of that separation. \nAs the complainant was entitled to a discharge, upon executing the deed of assignment of all his effects to the trustee appointed by the chancellor, his certificate would relate back to the date of the deed.It has been said, that the true date of that deed was the 23d of December 1800, and that the certificate of the chancellor, which states the date to be the 23d day of March 1801, is incorrect. \nBut the certificate of the chancellor, is the only evidence before the court as to that subject, and we must take it to be true. It is therefore, not material to inquire whether the inhabitants of the city  of Washington, ceased to be citizens of Maryland on the 27th of February 1801, or on the first Monday of December 1800, as it is not contended that they were under the jurisdiction of Maryland so late as the 23d of March 1801. \nThe complainant, therefore, not being a citizen of Maryland at the time of executing the deed, did not bring himself within the provisions of the insolvent law, under which he claims relief. \nI was inclined at first to think, that an account might have been directed between the complainant and the defendant, Smith, but the court is of opinion, that if he has any remedy against Smith, it is at law and not in equity. The bill must be dismissed with costs, but without prejudice. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. delivered the opinion of the court. The question in this case is, whether the United States, as holders of a protested bill of exchange, which has been negotiated in the ordinary course of trade, are entitled to be preferred to the general creditors, where the debtor becomes bankrupt? \nThe claim to this preference is founded on the 5th section of the act, entitled \"an act to provide more effectually for the settlement of accounts between the United States, and receivers of public money,\" Vol. 3, P. 423. The section is in these words, \"and be it further enacted that where any revenue officer, or other person, hereafter becoming indebted to the United States, by bond or otherwise,  shall become insolvent, or where the estate of any deceased debtor, in the hands of executors or administrators, shall be insufficient to pay all the debts due from the deceased, the debt due to the United States shall be first satisfied; and the priority hereby established, shall be deemed to extend, as well to cases in which a debtor, not having sufficient property to pay all his debts, shall make a voluntary assignment thereof, or in which the estate and effects of an absconding, concealed, or absent debtor, shall be attached by process of law, as to cases in which an act of legal bankruptcy shall be committed.\" \nThat these words, taken in their natural and usual sense, would embrace the case before the court, seems not to be controverted. \"Any revenue officer, or other person, hereafter becoming indebted to the United States by bond or otherwise,\" is a description of persons, which, if neither explained nor restricted by other words or circumstances, would comprehend every debtor of the public, however his debt might have been contracted. \n But other parts of the act involve this question in much embarrassment. \nIt is undoubtedly a well established principle in the  exposition of statutes, that every part is to be considered, and the intention of the legislature to be extracted from the whole. It is also true, that where great inconvenience will result from a particular construction, that construction is to be avoided, unless the meaning of the legislature be plain; in which case it must be obeyed. \nOn the abstract principles which govern courts in construing legislative acts, no difference of opinion can exist. It is only in the application of those principles that the difference discovers itself. \nAs the enacting clause in this case, would plainly give the United States the preference they claim, it is Incumbent on those who oppose that preference, to shew an intent varying from that which the words import. In doing this, the whole act has been critically examined; and it has been contended with great ingenuity, that every part of it demonstrates the legislative mind to have been directed towards a class of debtors, entirely different from those who become so by drawing or indorsing bills, in the ordinary course of business. \nThe first part which has been resorted to is the title. On the influence which the title ought to have in construing  the enacting clauses, much has been said; and yet it is not easy to discern the point of difference between the opposing counsel in this respect. Neither party contends that the title of an act can controul plain words in the body of the statute; and neither denies that, taken with other parts, it may assist in removing ambiguities. Where the intent is plain, nothing is left to construction. Where the mind labours to discover the design of the legislature, it seizes every thing from which aid can be derived; and in such case the title claims a degree of notice, and will have its due share of consideration. \nThe title of the act is unquestionably limited to \"receivers  of public money;\" a term which undoubtedly excludes the defendants in the present case. \nThe counsel for the defendants have also completely succeeded in demonstrating that the four first sections of this act, relate only to particular classes of debtors, among whom the drawer and indorsor of a protested bill of exchange, would not be comprehended. Wherever general words have been used in these sections, they are restrained by the subject to which they relate, and by other words frequently in the   same sentence, to particular objects, so as to make it apparent that they were employed by the legislature in a limited sense. Hence it has been argued with great strength of reasoning, that the same restricted interpretation ought to be given to the fifth section likewise. \nIf the same reason for that interpretation exists; if the words of the act generally, or the particular provisions of this section, afford the same reason for limiting its operation which is afforded with respect to those which precede it, then its operation must be limited to the same objects. \nThe 5th section relates entirely to the priority claimed by the United States, in the payment of debts. \nOn the phraseology of this act it has been observed, that there is a circuity of expression, which would not have been used if the intention of the legislature had been to establish its priority in all cases whatever. Instead of saying \"any revenue officer or other person hereafter becoming indebted to the United States,\" the natural mode of expressing such an intent would have been \"any person indebted to the United States;\" and hence it has been inferred that debtors of a particular description only were in the  mind of the legislature. \nIt is true the mode of expression which has been suggested, is at least as appropriate as that which has been used; but between the two there is no difference of meaning; and it cannot be pretended that the natural sense of words is to be disregarded, because that which they import might have been better, or more directly expressed. \n As a branch of this argument, it has also been said that the description commences with the very words which are used in the beginning of the first section; and from that circumstance it has been inferred, that the same class of cases was still in view. The commencing words of each section are \"Any revenue officer or other \"person.\" But the argument drawn from this source, if the subject be pursued further, seems to operate against the defendants.In the first section the words are, \"Any revenue officer or other person accountable for public money.\" With this expression completely in view, and having used it in part, the description would probably have been adopted throughout, had it been the intention of the legislature to describe the same class of debtors. But it is immediately dropped, and more comprehensive  words are employed. For persons \"accountable for public money,\" persons \"hereafter becoming indebted to the United States, by bond or otherwise\" are substituted. This change of language strongly implies an intent to change the object of legislation. \nBut the great effort on the part of the defendants is to connect the fifth with the four preceeding sections; and to prove that as the general words in those sections are restricted to debtors of a particular description, the general words of the 5th section ought also to be restricted to debtors of the same description. On this point lies the stress of the cause. \nIn the analysis of the foregoing parts of the act, the counsel for the defendants have shewn that the general terms which have been used are uniformly connected with other words in the same section, and frequently in the same sentence, which necessarily restrict them. They have also shewn that the provisions of those parts of the act are of such a nature that the words, taking the natural import of the whole sentence together, plainly form provisions only adapted to a class of cases which those words describe if used in a limited sense. \nIt may be added that the four  first sections of the act are connected with each other, and plainly contain provisions on the same subject. They all relate to the  mode of proceeding on suits instituted in courts, and each section regulates a particular branch of that proceeding. Where the class of suits is described in the first section, it is natural to suppose that the subsequent regulations respecting suits apply to those which have been described. \nThe first section directs that suits shall be instituted against revenue officers and other persons accountable for public money, and imposes a penalty on delinquents, where a suit shall be commenced and prosecuted to judgment. \nThe second section directs that certain testimony shall be admitted at the trial of the cause. \nThe third section prescribes the condition under which a continuance may be granted: -- and \nThe fourth section respects the testimony which may be produced by the defendant. -- These are all parts of the same subject; and there is strong reason, independent of the language of the act, to suppose that the provisions respecing them were designed to the co-extensive with each other. \nBut the fifth section is totally unconnected  with those which precede it. Regulations of a suit in court no longer employ the mind of the legislature. The preference of the United States to other creditors, becomes the subject of legislation; and as this subject is unconnected with that which had been disposed of in the foregoing sections, so is the language employed upon it without reference to that which had been previously used. If this language was ambiguous, all the means recommended by the counsel for the defendants would be resorted to in order to remove the ambiguity. But it appears, to the majority of the court, to be too explicit to require the application of those principles which are useful in doubtful cases. \nThe mischiefs to result from the construction on which the United States insist, have been stated as strong motives for overruling that construction. That the consequences  are to be considered in expounding laws, where the intent is doubful, is a principle not to be controverted; but it is also true that it is a principle which must be applied with caution, and which has a degree of influence dependent on the nature of the case to which it is applied. Where rights are infringed, where fundamental  principles are overthrown, where the general system of the laws is departed from, the legislative intention must be expressed with irresistible clearness to induce a court of justice to suppose a design to effect such objects. -- But where only a political regulation is made, which is inconvenient, if the intention of the legislature be expressed in terms which are sufficiently intelligible to leave no doubt in the mind when the words are taken in their ordinary sense, it would be going a great way to say that a constrained interpretation must be put upon  them, to avoid an inconvenience which ought to have been contemplated in the legislature when the act was passed, and which, in their opinion, was probably overbalanced by the particular advantages it was calculated to produce. \nOf the latter description of inconveniences, are those occasioned by the act in question. It is for the legislature to appreciate them. They are not of such magnitude as to induce an opinion that the legislature could not intend to expose the citizens of the United States to them, when words are used which manifest that intent. \nOn this subject it is to be remarked, that no Lien is created  by this law. No bona fide transfer of property in the ordinary course of business is overreached. It is only a priority in payment, which, under different modifications, is a regulation in common use; and this priority is limited to a particular state of things, when the debtor is living; though it takes effect generally if he be dead. 3 \nPassing from a consideration of the act itself, and the consequences which flow from it, the counsel on each side have sought to strengthen their construction by other acts in pari materia. \n The act of the 3d of March, 1797, has been supposed to be a continuation of legislative proceeding on the subject which was commenced on the third of March, 1795, (vol. 3, p. 225.) by the act, \"for the more effectual recovery of debts due from individuals to the United States,\" which relates exclusively to the receivers of public money. \n Admitting the opinion, that the act of 1797 was particularly designed to supply the defects of that of 1795, to be correct, it does not seem to follow, that a substantive and independent section, having no connection with the provisions made in 1795, should be restricted by it. \nThe act of 1795 contains nothing relative to the priority of the United States, and therefore will not explain the 5th section of the act of 1797, which relates exclusively to that subject. But the act of 1797, neither in its title nor its enacting clauses, contains any words of reference to that act of 1795. The words which are supposed to imply this reference are, \"to provide more effectually,\" -- But these words have relation to the existing state of the law, on all the subjects to which the act of 1797 relates, not to those alone which are comprehended in the act of 1795. The title of the act of 1795 is also, \"for the more effectual recovery of debts,\" and consequently refers to certain pre-existing laws. The act of 1797, therefore, may be supposed to have in view the act of 1795, when providing for the objects contemplated in that act; but must be supposed to have other acts in view, when providing  for objects not contemplated in that act. \nAs, therefore, the act of 1795 contains nothing respecting the priority of the United States, but is limited to provisions respecting suits in court, the act of 1797 may be considered in connection with that act while on the subject of suits in court; but when on the subject of preference, must be considered in connection with acts which relate to the preference of the United States. \nThe first act on this subject passed on the 31st of July, 1789, § 21, and gave the United States a preference only in the case of bonds for duties. \n On the 4th of August, 1790, vol. 1, p. 221, an act was passed on the same subject with that of 1789, which repeals all former acts, and re-enacts, in substance, the 21st section, relative to the priority of the United States. \nOn the 2d of May, 1792, vol. 2, p. 78, the priority previously given to the United States is transferred to the sureties on duty bonds who shall themselves pay the debt; and the cases of insolvency, in which this priority is to take place, are explained to comprehend the case of a voluntary assignment, and the attached effects of an absconding, concealed, or absent debtor. \n Such was the title of the United States, to a preference in the payment of debts previous to the passage of the act of 1797. It was limited to bonds for the payment of duties on imported goods, and on the tonnage of vessels. An internal revenue had been established, and extensive transactions had taken place; in the course of which, many persons had necessarily become indebted to the United States. But no attempt to give them a preference in the collection of such debts had been made. \nThis subject is taken up in the 6th section of the act of 1797. The term \"revenue officer,\" which is used in that act, would certainly comprehend any persons employed in the collection of the internal revenue; yet it may be well doubted whether those persons are contemplated in the foregoing sections of the act. They relate to a suit in court, and are perhaps restricted to those receivers of public money who have accounts on the books of the treasury. The head of the department in each state most probably accounts with the treasury, and the sub-collectors account with him. \nIf this be correct, a class of debtors would be introduced into the 5th section by the term \"revenue officer,\" who are  indeed within the title but not within the preceding enacting clauses of the law. \nBut passing over this term, the succeeding words seem, to the majority of the court, certainly to produce this effect. They are \"or other person hereafter becoming indebted to the United States, by bond or otherwise.\" If this section was designed to place  the collection of the internal revenue on the same footing of security with the external revenue, as has been argued by one of the counsel for the defendants, a design so reasonable that it would naturally be attributed to the legislature, then the debtors for excise duties would be comprehended within it; yet those debtors cannot be brought within the title, or the previous enacting clauses of the bill. \nThe 5th sec. then would introduce a new class of debtors, and if it does so in any case, the act furnishes no principle which shall restrain the words of that section to every case to which they apply. \nThree acts of congress have passed, subsequent to that under particular consideration, which have been supposed to bear upon the case. \n The first passed on the 11th of July 1798, and is entitled \"an act to regulate and fix  the compensation of the officers employed in collecting the internal revenues of the United States, and to insure more effectually the settlement of their accounts.\" The 13th section of this act (vol. 4 p. 196) refers expressly to the provisions of the act of March 1797, on the subject of suits to be instituted on the bonds given by the officers collecting the internal revenue, and shows conclusively that in the opinion of the legislature the four first sections of that act did not extend to the case of those officers; consequently, if the 5th section extends to them, it introduces a class of debtors distinct from those contemplated in the clauses which respect suits in court. The 15th section of this act takes up the subject which is supposed to be contemplated by the 5th section of the act of 1797, and declares the debt due from these revenue officers to the United States to be a lien on their real estates, and on the real estates of their sureties from the institution of suit thereon. It can scarcely be supposed that the legislature would have given a lien on the real estate without providing for a preference out of the personal estate, especially where there was no real estate,  unless that preference was understood to be secured by a previous law. \nThe same observation applies to a subsequent act of the same session for laying a direct tax. A lien is reserved  on the real estate of the collector, without mentioning any claim to preference out of his personal estate. \nThe last law which contains any provision on the subject of preference passed on the 2d of March, 1799. The 65th section of that act has been considered as repealing the 5th section of the act of 1797, or of manifesting the limited sense in which it is to be understood. \nIt must be admitted that this section involves the subject in additional perplexity; but it is the opinion of the court, that on fair construction, it can apply only to bonds taken for those duties on imports and tonnage, which are the subject of the act. \nFrom the first law passed on this subject, every act respecting the collection of those duties, had contained a section giving a preference to the United States in case of the insolvency of the collectors of them. \nThe act of 1797, if construed as the United States would construe it, would extend to those collectors if there was no other provision in any other  act giving a priority to the United States in these cases. As there was such a previous act, it might be supposed that its repeal by a subsequent law, would create a doubt whether the act of 1797 would comprehend the case, and therefore from abundant caution it might to deemed necessary still to retain the section in the new act respecting those duties. The general repealing clause of the act of 1799 cannot be construed to repeal the act of 1797, unless it provides for the cases to which that act extends. \nIt has also been argued that the bankrupt law itself affords ground for the opinion that the United States do not claim a general preference. (vol. 5, p. 82.) The words of the 62d section of that law apply to debts generally as secured by prior acts. But as that section was not upon the subject of preference, but was merely designed to retain the right of the United States in their existing situation, whatever that situation might be, the question may well be supposed not be have bee investigated at that time, and the expressions of the section were probably not considered with a view to any influence they might have on those rights. \n After maturely considering this  doubtful statute, and comparing it with other acts in pari materia, it is the opinion of the majority of the court, that the preference given to the United States by the 5th section is not confined to revenue officers and persons accountable for public money, but extends to debtors generally. \nSupposing this distinction not to exist, it is contended that this priority of the United States cannot take effect in any case where suit has. not been instituted; and in support of this opinion several decisions of the English judges with respect to the prerogative of the crown have been quoted. \nTo this argument the express words of the act of congress seem to be opposed. The legislature has declared the time when this priority shall have its commencement; and the court think those words conclusive on the point.The cases certainly shew that a bona fide alienation of property before the right of priority attaches will be good, but that does not affect the present case. From the decisions on this subject a very ingenious argument was drawn by the counsel who made this point. The bankrupt law, he says, does not bind the king because he is not named in it; yet it has been adjudged that the  effects of a bankrupt are placed beyond the reach of the king by the assignment made under that law, unless they shall have been previously bound. He argues, that according to the understanding of the legislature, as proved by their acts relative to insolvent debtors, and according to the decisions in some of the inferior courts, the bankrupt law would not bind the United States although the 62d section had not been inserted. That section therefore is only an expression of what would be law without it, and consequently is an immaterial section: as the king, though not bound by the bankrupt law, is bound by the assignment made under it; so, he contended, that the United States, though not bound by the law, are bound by the assignment. \nBut the assignment is made under, and by the direction of the law; and a proviso that nothing contained in the law shall affect the right of preference claimed by the United States is equivalent to a proviso that the assignment shall not affect the right of preference claimed by the United States. \n If the act has attempted to give the United States a preference in the case before the court, it remains to inquire whether the constitution  obstructs its operation. \nTo the general observations made on this subject, it will only be observed, that as the court can never be unmindful of the solemn duty imposed on the judicial department when a claim is supported by an act which conflicts with the constitution, so the court can never be unmindful of its duty to obey laws which are authorised by that instrument. \nIn the case at bar, the preference claimed by the United States is not prohibited; but it has  been truly said that under a constitution conferring specific powers, the power contended for must be granted, or it cannot be exercised. \nIt is claimed under the authority to make all laws which shall be necessary and proper to carry into execution the powers vested by the constitution in the government of the United States, or in any department or officer thereof. \nIn construing this clause it would be incorrect and would produce endless difficulties, if the opinion should be maintained that no law was authorised which was not indispensably necessary to give effect to a specified power. \nWhere various systems might be adopted for that purpose it might be said with respect to each, that it was not necessary  because the end might be obtained by other means. Congress must possess the choice of means, and must be empowered to use any means which are in fact conducive to the exercise of a power granted by the constitution. \nThe government is to pay the debt of the union, and must be authorised to use the means which appear to itself most eligible to effect that object. It has consequently a right to make remittances by bills or otherwise, and to take those precautions which will render the transaction safe. \nThis claim of priority on the part of the United States  will, it has been said, interfere with the right of the state sovereignties respecting the dignity of debts, and will defeat the measures they have a right to adopt to secure themselves against delinquencies on the part of their own revenue officers. \nBut this is an objection to the constitution itself. The mischief suggested, so far as it can really happen, is the necessary consequence of the supremacy of the laws of the United States on all subjects to which the legislative power of congress extends. \nAs the opinion given in the court below was that the plaintiffs did not maintain their action on the whole testimony  exhibited, it is necessary to examine that testimony. \nIt appears that the plaintiffs have proceeded on the transcripts from the books of the treasury, under the idea that this suit is maintainable under the act of 1797. The court does not mean to sanction that opinion; but, as no objection was taken to the testimony, it is understood to have been admitted. It is also understood that there is no question to be made respecting notice; but that the existence of the debt is admitted, and the right of the United States to priority of payment is the only real point in the cause. \nThe majority of this court is of opinion that the United States are entitled to that priority, and therefore the judgment of the circuit court is to be reversed, and the cause to be remanded for further proceedings. \nJudgment reversed. \nWASHINGTON, J. Although I take no part in the decision of this cause, I feel myself justified by the importance of the question in declaring the reasons which induced the circuit court of Pennsylvania to pronounce the opinion which is to be re-examined here. \nIn any instance where I am so unfortunate as to differ with this court, I cannot fail to doubt the correctness of  my own opinion. But if I cannot feel convinced of the  error, I owe it in some measure to myself and to those who may be injured by the expense and delay to which they have been exposed to shew at least that the opinion was not hastily or inconsiderately given. \nThe question is, have the United States a right in all cases whatever to claim a preference of other creditors in the payment of debts. At the circuit court the counsel for the United States disclaimed all idea of founding this right upon prerogative principles, and yet, if I am not greatly mistaken, the doctrine contended for places this right upon ground at least as broad as would have been asserted in an English court. \nThe whole question must turn upon the construction of acts of congress, and particularly that of the 3d of March 1797. The title of the law is \"an act to provide more effectually for the settlement of accounts between the United States and receivers of public money.\" \nThe first section describes more specially the persons who are the objects of the law; points put the particular officer whose duty it shall be to institute suits against those public delinquents thus marked out; declares the  rate of interest to be recovered upon balances due to the United States, and imposes a forfeiture of commissions on the delinquent. \nThe 2d section defines the kind of evidence to be admitted on the part of the part of the United States, in the trial of suits in all cases of delinquency. \nThe 3d section gives to the United States in such actions, a preference of all other suitors in court, by directing the trial of such causes to take place at the return term upon motion, unless the defendant will make oath that he is entitled to credits which have been submitted to the consideration of the accounting officers of the treasury, and rejected. \nThe 4th section takes up the case of the defendant, and declares under what circumstances he shall be entitled to the benefit of off-sets. \n The 5th section brings us to an important part of the trial, and furnishes a rule to govern the court in the judgment it is to render, in cases where the claim of the United States might, by reason of the insolvency of the debtor, go unsatisfied, unless preferred to that of a private citizen. \nThe 6th section is general in its terms, and relates to executions where the defendant or his property  is to be found in any district other than in which the judgment was rendered. \nThis is a concise view of the different parts of this act, and I shall now examine more particularly the expressions of the 5th section, taken in connection with those which precede it. \nThe words are \"that where any revenue officer or other person hereafter becoming indebted to the United States by bond or otherwise, shall become insolvent, the debt due to the United States shall be first satisfied,\" &c. \nIt is conceded that the words \"or other person\" are broad enough to comprehend every possible case of debts due to the United States, and therefore a literal interpretation is contended for by those who advocate the interest of the United States. On the other side, a limitation of those expressions is said to be more consonant  with the obvious meaning of the legislature, which contemplates those debtors only who are accountable for public money. \nWhere a law is plain and unambiguous, whether it be expressed in general or limited terms, the legislature should be intended to mean what they have plainly expressed, and consequently no room is left for construction. But if, from a view of  the whole law, or from other laws in pari materia, the evident intention is different from the literal import of the terms employed to express it in a particular part of the law, that intention should prevail, for that in fact is the will of the legislature. \n If a section be introduced which is a stranger to and unconnected with the purview of the act, it must nevertheless take effect according to its obvious meaning, independent of all influence from other parts of the law. Nay, if it be a part of the same subject, and either enlarges or restrains the expressions used in other parts of the same act, it must be interpreted according to the import of the words used, if nothing can be gathered from such other parts of the law to change the meaning. But if in this latter case, general words are used which import more than seems to have been within the purview of the law, or of the other parts of the law, and those expressions can be restrained by others used in the same law, or in any other upon the same subject, they ought in my opinion to be restrained. \nSo if the literal expressions of the law would lead to absurd, unjust or inconvenient consequences,  such a construction should be given as to avoid such consequences, if, from the whole purview of the law, and giving effect to the words used, it may fairly be done. \nThese rules are not merely artificial; they are as clearly founded in plain sense, as they are certainly warranted by the principles of common law. \nThe subject intended tobe legislated upon is sometimes stated in a preamble, sometimes in the title to the law, and is sometimes, I admit, mistated, or not fully stated. The preamble of an act of parliament is said to be a key to the knowledge of it, and to open the intent of the law-makers: and so I say as to the title of a law of congress, which being the deliberate act of those who make the law, is not less to be respected as an expression of their intention, than if it preceded the enacting clause in the form of a preamble. But neither the title or preamble can be resorted to for the purpose of controuling the enacting clauses, except in cases of ambiguity, or where general expressions are used inconsistent or unconnected with the scope and purview of the whole law. \nThey are to be deemed true, unless contradicted by the enacting clauses, and it is fair in the cases  I have stated to argue from them. \n The object of this law then, as declared by the title, is to provide for the effectual settlement of debts due to the United States, from receivers of public money. To effect this, suits are directed, the species of evidence to support the claim on the part of the plaintiff is pointed out, and a speedy trial provided; on the part of the defendant, a limited right to oppose the claim by offsets is provided, and the claim of the United States is to have a preference of other creditors, where the debtor is unable to satisfy the whole. Here then is one entire connected subject -- the different provisions of the law constituting the links of the same chain, the members of the same body. It will not, I presume, be denied, that the three first sections of the law apply to those only who are declared by the title to be the objects of its provisions. The 4th section is the first which uses general expressions, without a reference to those who had before been spoken of; and yet I think it will hardly be contended that this section is not closely and intimately connected with the same subject. -- When we come to the 5th section the reference  to the three first sections is again resumed, with the addition of the words \"or any other person.\" So that instead of the words \"revenue officers or other persons accountable for public money,\" used in the first section, this section uses the words \"revenue officers or other persons indebted to the United States.\" \nNow it is obvious that these expressions may have precisely the same meaning, so as to comprehend the same persons, although the latter may be construed to include persons not within the meaning of the first section. For persons accountable for public money, are also other persons than revenue officers indebted to the United States; and the latter may, by a construction conformable to the other parts of the law, mean persons accountable for public money; and by an intended construction, they may comprehend others, who in no sense of the expressions used, can be said to be accountable for public money. \nIt is then to be inquired, is the court bound by any known rules of law to give to the words thus used in the 5th section a meaning extensive enough to comprehend persons never contemplated by the title of the law, and most  sedulously excluded by the three  first sections? Does justice to the public, or convenience to individuals demand it? Is such a construction necessary in order to give effect to any one expression used by the legislature? \nShall we violate the manifest intention of the legislature, if we stop short of the point to which we are invited to go in the construction of this section? \nTo all these questions I think myself warranted in answering in the negative. \nAs to the first. Do the principles of equity, or of strict justice discriminate between individuals standing in equali jure and claiming debts equal dignity? \nThe nature of the debt, may well warrant a discrimination; but not so, if the privilege be merely of a personal nature. The sovereign may in the exercise of his powers secure to himself this exclusive privilege of being preferred to the citizens, but this is no evidence that the claim is sanctioned by the principles of immutable justice. If this right is asserted, individuals must submit; but I do not find it in my conscience to go further in advancement of the claim, than the words of the law fairly interpreted, in relation to the whole law, comple me. But I do not think that congress meant to exercise  their power to the extent contended for. First, because in every other section of the law they have declared a different intent; and secondly, because it would not only be productive of the most cruel injustice to individuals,  but would tend to destroy more than any other act I can imagine all confidence between man and man.The perference claimed is not only unequal in respect to private citizens, but is of a nature against which the most prudent man cannot guard himself. As to public officers and receivers of public money of all descriptions, they are, or may be known as such; and any person dealing with them, does it at the peril of being postponed to any debts his debtor may owe to the United States, should he become unfortunate. He acts with his eyes open, and has it in his power to calculate the risk he is willing to run. \nBut if this preference exists in every possible case of contracts between the United States and an individual,  there is no means by which any man can be apprized of his danger, in dealing with the same person. \n2. Is this broad construction necessary in order to give effect to the expressions of the law? I have endeavoured to shew  that all accountable agents are other persons than revenue officers indebted to the United States. The words then \"other persons\" are satisfied by comprehending all those persons, to whom the first section extends. \n3. Is this construction rendered necessary to fulfil the manifest intent of the legislature? So far from it, that to my mind, it is in direct opposition to an intention plainly expressed by all the other parts of the law. To prove this I again refer to the title of the law; to the three first sections, which are in strict conformity with it, and that too by express words; and to the fourth section, which is so plainly a part of the same subject, that it cannot be construed to go farther than those which precede it. Is the fifth section a stranger to the others; unnaturally placed there without having a connection with the other sections? \nIf this be the case, I have already admitted rules of construction, strong enough to condemn the opinion I hold. But let us examine this point. \nThe object of the four first sections is to enforce by suit, where necessary, the payment of debts due to the United States from a particular class of debtors. It points out the officer  who is to order the suit, declares at what term the cause shall be tried, lays down rules of evidence to be regarded in support of the action, extends to the defendant the benefit of making offsets under certain qualifications, and then most naturally, as I conceive, comes the fifth section, relating to the judgment which the court is to render in case a contest should ensue between the United States and individual creditors on account of inability in the debtor to satisfy the whole. What if an individual creditor should at tach the property of the debtor before the United States had taken steps to recover their debt? Or if the debtor should assign away his property, or it should be claimed  by assigness under a commission of bankruptcy; or the defendant being an executor, should plead fully administered except so much as would be sufficient to satisfy judgments, bond debts, or other debts superior in dignity to that of the United States? This section establishes a plain rule by which the court must proceed in rendering its judgment whenever those case occur. -- What would have signified all the other provisions of the law, unless a rule of decision had been prescribed  in cases where otherwise the United States might never obtain the fruit of those steps which their officers were pursuing? \nCan a section in a law which professes to afford a remedy in a particular case by process of law, be said not to belong to the law, when it leads to the point of a judgment, which is the consummation of the proceedings in the case? I think not; and therefore I cannot acquiesce in the opinion that the 5th section is unconnected with the other parts of the law. \nI have before observed that the 4th section is the first which uses general expressions, without reference to those which had before been particularly mentioned; but that when we come to the 5th section the reference is again taken up, with the addition of those words which produce the difficulty of the case. \nNow I ask in the first place, what necessity was there for departing from the mode of expression used in the 4th section, which for the first time is general, without particular reference to any of the persons before described. Would it not have been as well in the 5th as in the 4th section, to say \"that where any individual becoming indebted to the United States, shall become insolvent, &c. What  reason can be assigned for the specification of revenue officers, one class of persons mentioned expressely in the 1st section, intended in the 2d and 3d by plain words of reference, and clearly meant in the 4th, when it must be admitted that the words used in the 4th section, or the words \"other persons,\" in the 5th would have comprehended revenue officers if they were broad enough to include every de scription of persons indebted to the United States.  Unless they are construed to limit and restrain the generality of the words \"other persons,\" they are absolutely without any use or meaning whatever. If the preceding sections had applied only to revenue officers, then from necessity we must have construed the words \"other persons,\" as broad as their natural import would warrant, because otherwise, they would have been nugatory, and we would have found no rule in the law itself, by which to limit the generality of the expression. \nBut when the law professes in its title to relate to all accountable agents besides revenue officers, and the first section specifies amongst these agents, \"revenue officers,\" we have a rule by which to restrain the sweeping expressions in the  5th section, viz. \"or other person accountable, or indebted as aforesaid.\" This construction renders the law uniform throughout, and consistent with what it professes in every other section. \n2d. In confirmation of this construction, the 62d section of the bankrupt law does, in my opinion, deserve attention. If the United States were, at the time that law passed, entitled to a preference in every possible case, by virtue of the general expressions in the law I have just been considering, what necessity was there for limiting the saving of the right of preference to debts due to the United States, \"as secured or provided by any law heretofore passed.\" This mode of expression leads me to conclude that the legislature supposed there were some cases where this preference had not been provided  for by law. If not, it would certainly have been sufficient to declare, that the bankrupt law should not extend to or affect the right of preference to prior satisfaction of debts due the United States. \n \n\n ", " \nOpinion \n\n \n \nMARSHALL, Ch. J. The only doubt which the court had, was, whether by the laws of Georgia, the land could be made liable unless the heir was a party to the suit. \nWe have received information as to the construction given by the courts of Georgia to the statute of 5 Geo. 2. making lands in the colonies liable for debts, and are satisfied that they are considered as chargeable without making the heir a party. \nDecrees affirmed. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. delivered the opinion of the court. \nThe points made by the plaintiffs in this case, are, \n1st. That the policy does  really insure their joint property on board the ship Northern Liberties, so far as the same was at the time uncovered by prior assurances. \n2d. That if the property be not insured at law, yet it was intended to be insured, and this court will relieve against the mistake in the agreement. \n1st. That the policy does really insure the joint property of Graves and Barnewall. \nThe words are \"the president and directors of the Boston Marine Insurance Company, do by these presents cause John Boonen Graves to be assured 10,000 dollars, on property on board the ship Northern Liberties, as property may appear.\" \nThese words, it is contended by the counsel for the plaintiffs, insure the joint property of Graves and Barnewall, so as to cover the interest of each. \nThe operation of the words themselves taken in their ordinary sense, would certainly not extend beyond the interest held by Graves in the cargo. The words \"as property  may appear,\" seem to restrict the general terms of the policy to the interest of the person named in it. Admitting this to be true, it is still contended that the interest of each partner, in the whole partnership-stock is an insurable interest; and  as it was obviously the intention of Graves to insure for his partner as well as for himself, the policy ought to receive a construction which will effect this intent. The reasoning in support of the power of each partner to insure the joint property is certainly strong and well founded. But the doubt in this case, is not whether Graves could have insured the interest of his partner, but whether he has insured it. \nIt is true that Barnewall need not have been named in the policy; but the contract ought to have been so expressed (since it is an open policy,) as to shew that the interest of some other person than Graves was secured, if such was to be the effect of the instrument. \nIt is a good general principle that written agreements ought to be expounded by themselves. But if the same words are to be considered as insuring the interest of Graves only,  or the interest of Graves and Barnewall, according to extrinsic circumstances, the certainty expected from a written agreement will be very much impaired. \nThe interest of Barnewall therefore cannot be considered as insured by this policy, under the power of one partner to insure the share of his co-partner. If it is  insured, it must be as the interest of Graves \nSeveral cases have been stated in which Graves might sustain a loss by the loss of Barnewall's part of the cargo, and therefore it has been contended that he may be indemnified against that risk, in a policy professing to cover only his own interest. \nThe case put, is that Graves might have paid for the whole cargo, and have retained a lien upon it for his reimbursement. But in that case his interest would not be the result of his character as a partner, but would be in the nature of a mortgage. The question would not be generally whether the interest of a copartner may be said to comprehend all the partnership effects, but whether a mortgagee, or other person having a lien upon property may be said to have an interest in the whole of it. As a claim so  founder, would rest, not on the general principles of partnership, but on the particular circumstances of the case, those circumstances ought to be made out, in order to entitle the plaintiffs to avail themselves of the argument. Not being made out they do not belong to the case. \nIf a suit at law had been brought on this policy, it would only have been brought in the  name of Graves, and he must have averred property on board the vessel. He could only have been entitled to recover to the amount of property uninsured. Would it have been sufficient under such an averment to have shewn that the interest of his partners and himself amounted to the sum he claimed, or if he had averred property in himself and another to the amount of 10,000 dollars, would such an averment have entitled him to a judgment for the whole sum. In ordinary transactions the plaintiff would certainly fail in an attempt founded on similar principles. \nA policy though construed liberally is still a special contract, and under no rule for proceedings on a special contract, could the interest of a copartnership be given in evidence on an averment of individual interest, or an averment of the interest of a company be supported by a special contract relating in its terms to the interest of an individual. \nBut it is contended that an insurable interest is distinct from interest in the ordinary acceptation of the word; and several cases have been cited in support of this doctrine. Those cases generally appear to be answered by a distinction taken by the defendants' counsel between  the interest and the power of a copartner. But the case of Page v. Fry reported in 2. Bosanquet and Pul. 240 certainly countenances the doctrine maintained by the plaintiffs, and ought to be particularly considered. But before that case is adverted to, it may be proper to mention what appeared to be the opinion of Judge Buller in the case of Perchard v. Whitmore, reported in the smae book in page 155. In that case it appears to have been considered as a clear principle that if in an action on a policy, and on an averment of interest in the plaintiffs, it should appear that the plaintiffs and another were interested, the action would not be maintainable. That opinion would apply to the case at bar; but as the question  was not directly decided, and was the opinion of a single judge, it may be supposed to yield to the case of Page & Fry, where it is said, that question came directly before the court. \nThe case of Page & Fry, was an action brought by an agent on a policy signed by himself, and in the declaration he averred an interest in the whole cargo insured in Messrs. Hyde and Hobbs. It appeared in evidence, that after the purchase of the cargo, and before the insurance  was made, a house by the name of Hacks had taken an interest in it, and for this variance between the averment and the proof the defendants moved for a nonsuit. \nIt is worthy of remark that no doubt was entertained of the right of the plaintiffs to recover the whole sum had the declaration stated the truth of the case. And that the counsel in support of the action did not allege that the interest of Hacks was insured as the interest of Hyde and Hobbs, or that on an averment of a particular interest a joint interest might be given in evidence; but, that the averment was immaterial under the acts of parliament, and being alleged under a scilicet would not vitiate. The invoices having been made out in the name of Hyde and Hobbs, who paid for the cargo, he also contended that the prima facie right was in them, and that Hacks had only an equitable interest. \nThe argument goes upon the admission that the variance under the circumstances which attend the case at bar would be fatal. \nThe same remark applies to the argument in support of the nonsuit. \nThis deserves consideration, since it certainly warrants an opinion that previous to that case the law was generally understood to require  that the averment of interest in an action on a policy should be supported by testimony corresponding with that interest according to the general acceptation of the term. \nLord Eldon certainly states his opinion in favor of the action to be founded on the interest of the plaintiffs in the entirety of the cargo. But in examining that opinion  it does not appear to be supported by the authorities he cites, and the words he uses in the conclusion would seem to im ply that, contrary to his reasoning, he paid some respect to the circumstances under which Hacks had become concer ned. \"I think,\" says his lordship, \"the plaintiff had a sufficient interest in the entirety of this cargo, notwithstanding other persons had a beneficial interest in a part.\" The word \"beneficial\" seems to imply something distinct from a legal interest, and to correspond with the terms equitable interest, which had been used by the plaintiffs' counsel. The opinions of justices Heath and Chambre seem to be founded on this being a valued policy, and on the plaintiff's having such an interest as would entitle him to insure under the act of parliament, and that the substance of the averment was nothing  more than that the plaintiffs had an interest in the cargo which would satisfy the act. The opinion of judge Rooke is accompanied with no explanation whatever. \n This case, even was the decision an authority, is too imperfectly reported to be permitted to overthrow a system which was previously established. \nIt is the opinion of the court that on the legal construction of this policy John Boonen Graves is insured to the extent of his own interest in the cargo, but that the interest of his copartner is not insured. \nWere it otherwise, the remedy would be complete at law, and of consequence the plaintiffs could not maintain their bill in a court of equity. \n2dly. It remains to inquire whether, under the circumstances of the case, a court of equity will relieve the plaintiffs against the mistake alleged to exist in the contract, and extend the insurance to the whole partnership interest. \nThat Graves intended to insure the whole is proved in a manner which is perfectly satisfactory. \nThat the company believed themselves to be insuring the property of Graves only is probable. Certainly such is the evidence in the cause. There is no ground for imputing to the company  a knowledge that the policy did not correspond with the intentions of the insured. \n If then the relief which they ask should be granted to the plaintiffs, it must be on the principle that the information laid before the insurance company was sufficient to apprise them of the fact, and to require that, on the principles of good faith, they should suggest to the agent of the plaintiffs the departure of their policy from the ancient form. \nThis information is in writing and is contained in the letter of the 5th of May, and in the representation of the risk which accompanied it. \nThe letter must be considered as having been seen by the officers of the company; but as it was shewn not for the purpose of commencing a contract but of inquiring into the terms on which a contract might probably be made, it is reasonable to suppose that the nature of the risk was the only subject of consideration, and that the question whether the property belonged to one or more persons never occurred. A month elapsed before a second application was made, and as the description of the risk was again laid before the president, it could not be required from him to retain in his mind a circumstance  casually suggested in a letter seen so long before, to which circumstance there was nothing to direct his particular attention. \nIt is then on the representation of the risk and on the verbal communications of Andrew Sigourney, that the case must depend. \nThe representation contains an averment that \"the ship and cargo really and truly belong to citizens of the United States.\" But as only a small part of the cargo was insured by the Boston company, this averment contains no information that any other than John Boonen Graves was interested in the particular policy then to be entered into. \nIn the letter there is another expression which has been much relied on. It is \"on this vessel's cargo we want insurance.\" This expression has been considered as sufficiently indicating that the application was made in behalf of more than one person; and this expression has produced the principal difficulty of the case;  but on reflection it has been thought too ambiguous to authorise a change in the legal import of a written contract. \nThe description obviously relates to the whole cargo; but the application for insurance was only for a part of it. If that application was made in  the name of Graves only, it was no unreasonable supposition that the other parties concerned might be separately insured, and that the policy then required was designed to cover Graves only. That the application was so made must be inferred from the circumstance that the policy was so framed at a time when there could be no motive for varying it from the insurance applied for; and that Sigourney does not allege himself to have made any communications to the president indicating a wish to insure others than Graves. \nThese grounds are too equivocal to warrant the court in varying a written contract in a case attended with the circumstances which appear in the present. \nThe policy was in the possession of the agent for the plaintiffs, and ought to have been understood by him before it was executed; he retained it in his possession for several months before a mistake was alleged. Under such circumstances the information given to the insurance company ought to be very clear to justify a court of equity in conforming the policy to the intention of one of the parties, which was not communicated to the other till the loss had happened. \nUnder the circumstances of the case a court of equity  cannot relieve against the mistake which has been committed; and as the remedy of the plaintiff, Graves, on the policy to the extent of his interest is complete at law, the decree of the circuit court dismissing his bill must be affirmed. \nJudgment affirmed. \n \n\n ", " \nOpinion \n\n \n \n  Marshall, Ch. J. delivered the opinion of the court. \nThe question in this case is whether the plaintiffs, as residents of the district of Columbia, can maintain an action in the circuit court of the United States for the district  of Virginia. \nThis depends on the act of congress describing the jurisdiction of that court. That act gives jurisdiction to the circuit courts in cases between citizen of the state in which the suit is brought, and a citizen of another state. To support the jurisdiction in this case therefore it must appear that Columbia is a state. \nOn the part of the plaintiffs it has been urged that Columbia is a distinct political society; and is therefore \"a \"state\" according to the definitions of writers on general law. \nThis is true. But as the act of congress obviously uses the word \"state\" in reference to that term as used in the constitution, it becomes necessary to inquire whether Columbia is a state in the sense of that instrument. The result of that examination is a conviction that the members of the American confederacy only are the states contemplated in the constitution. \nThe house of representatives is to be composed of members chosen by the people of the several states; and each state shall have at least one representative. \nThe senate of the United States shall be composed of two senators from each state. \nEach state shall appoint, for the election of the executive, a number  of electors equal to its whole number of senators and representatives. \nThese clauses show that the word state is used in the constitution as designating a member of the union, and excludes  from the term the signification attached to it by writers on the law of nations. When the same term which has been used plainly in this limited sense in the articles respecting the legislative and executive departments, is also employed in that which respects the judicial department, it must be understood as retaining the sense originally given to it. \nOther passages from the constitution have been cited by the plaintiffs to show that the term state is sometimes used in its more enlarged sense. But on examining the passages quoted, they do not prove what was to be shown by them. \nIt is true that as citizens of the United states, and of that particular district which is subject to the jurisdiction of congress, it is extraordinary that the courts of the United States, which are open to aliens, and to the citizens of every state in the union, should be closed upon, them. -- But this is a subject for legislative not for judicial consideration. \nThe opinion to be certified to the circuit  court is that that court has no jurisdiction in the case. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. delivered the opinion of the court as follows: \nThe questions which occurred in this case, in the circuit court of Pennsylvania, and on which the opinion of this court is required, grow out of the act passed by the legislature of that state, entitled \"an act for the sale of the vacant lands within this commonwealth.\" \nThe 9th section of that act, on which the case principally depends, is in these words, \"and be it further enacted,\" &c. \nThe questions to be considered, relate particularly to the proviso of this section; but to construe that correctly, it will be necessary to understand the enacting clause, which states what is to be performed by the purchaser of a warrant, before the title to the lands described therein, shall vest in him. \nTwo classes of purchasers are contemplated. \nThe one has already performed every condition of the sale, and is about to pay the consideration money; the other pays the consideration money in the first instance, and is  afterwards to perform the conditions. They are both described in the same sentence, and from each, an actual settlement is required as indispensable to the completion of the title. \nIn describing this actual settlement, it is declared that it shall be made, in the case of a warrant previously granted, within two years next after the date of such warrant, \"by clearing, fencing, and cultivating, at least, two acres for every hundred acres contained in one survey, erecting thereon, a messuage for the habitation of man, and residing, or causing a family to reside thereon, for the space of five years next following his first settling of the same, if he or she shall so long live.\" \n The manifest impossibility of completing a residence of five years, within the space of two years, would lead to an opinion, that the  part of the description relative to residence, applied to those only who had performed the condition before the payment of the purchase money; and not to those who were to perform it afterwards. But there are subsequent parts of the act which will not admit of this construction, and, consequently, residence is a condition required from the person who settles  under a warrant, as well as from one who entitles himself to a warrant by his settlement. \nThe law requiring two repugnant and incompatible things, is incapable of receiving a literal construction, and must sustain some change of language to be rendered intelligible.This change, however, ought to be as small as possible, and with a view to the sense of the legislature, as manifested by themselves. The reading suggested by the counsel for the plaintiff, appears to be most reasonable, and to comport best with the general language of the section, and with the nature of the subject. It is by changing the participle into the future tense of the verb, and instead of, \"and residing, or causing a family to reside there,\" and shall reside, &c. The effect of this correction of language, will be to destroy the repugnancy which exists in the act as it stands, and to reconcile this part of the sentence to that which immediately follows, and which absolutely demonstrates that in the view of the legislature, the settlement and the residence consequent thereon, were distinct parts of the condition; the settlement to be made within the space of two years from the date of the warrant, and the residence  in five years from the commencement of the settlement. \nThis construction is the more necessary, because the very words, \"such actual settlement and residence,\" which prove, that residence is required from the warrantee, prove also, that settlement and residence are, in contemplation of the law, distinct operations. In the nature of things, and from the usual import of words, they are also distinct. To make a  settlement, no more requires a residence of five, than a residence of five hundred years: and of consequence, it is much more reasonable to understand the legislature as requiring the residence for that term, in addition to a settlement, than as declaring it to be a component part of a settlement. \nThe meaning of the terms settlement and residence being understood, the court will proceed to consider the proviso. \nThat part of the act treats of an actual settler, (under which term is intended, as well the person who makes his settlement the foundation of his claim to a warrant, as a warrantee who had made an actual settlement in performance of the conditions annexed to his purchase) and of \"any grantee in any such original or succeeding warrant;\" who must be considered  as contradistinguished from one who had made an actual settlement. Persons thus distinctly circumstanced, are brought together in the same sentence, and terms are used appropriate to the situation of each, but not applicable to both. Thus, the idea of \"an actual settler,\" \"prevented from making an actual settlement,\" and after \"being driven therefrom,\" \"persisting in his endeavours,\" to make it, would be absurd. To apply to each class of purchasers, all parts of the proviso would involve a contradiction in terms. Under such circumstances, the plain and natural mode of construing the act, is to apply the provisions distributively to the description of persons to whom they are adapted, reddendo singula singulis. The proviso then would read thus, \"Provided always, nevertheless, that if any such actual settler shall be driven from his settlement, by force of arms of the enemies of the United States; or any grantee, in any such original or succeeding warrant, shall, by force of arms of the enemies of the United States, be prevented from making such actual settlement, and shall persist in his endeavours, to make such actual settlement as aforesaid, then, in either case, he and his heirs  shall be entitled to have and to hold the said lands, in the  same manner, as if the actual settlement had been made and continued.\" \nThe two cases are, the actual settler, who has been driven from his settlement, and the warrantee, who has been prevented from making a settlement, but has persisted in his endeavours to make one. \nIt is perfectly clear, that in each case, the proviso substitutes something for the settlement to be made, within two years, from the date of the warrant, and for the residence to continue five years from the commencement of the settlement, both of which were required in the enacting clause. \nWhat is that something? \nThe proviso answers, that in the case of an \"actual settler,\" it is his being \"driven from his settlement by force of arms of the enemies of the United States,\" and in case of his being a grantee of a warrant not having settled, it is \"persisting in his endeavours to make such actual settlement.\" In neither case, is residence or persisting in his endeavours, at residence required. Yet the legislature had not forgotten, that by the enacting clause, residence was to be added to settlement; for in the same sentence, they say, that the  person who comes within the proviso, shall hold the land \"as if the actual settlement had been made and continued.\" \nIt is contended on the part of the defendant, that as the time during which persistance shall continue, is not prescribed, the person claiming the land must persist until he shall have effected both his settlement and residence, as required by the enacting clause of the act. That is, that the proviso dispenses with the time, and only with the time, during which the condition is to be performed. \nBut the words are not only inapt for the expression of such an intent; they absolutely contradict it. \n If the proviso be read, so as to be intelligible, it requires nothing from the actual settler, who has been driven from his settlement. He is not to persist in his endeavours at residence, or, in other words, to continue his settlement, but is to hold the land. From the warrantee who has been prevented from making a settlement, no endeavours at residence are required. He is to \"persist in his endeavours,\" not to make, and to continue such actual settlement, but \"to make such actual settlement as aforesaid.\" And if he does persist in those endeavours, he is to  hold the land, \"as if the actual settlement had been made and continued.\" The construction of the defendant would make the legislature  say, in substance, that if the warrantee shall persist in endeavouring to accomplish a particular object, until he does accomplish it, he should hold the land as if he had accomplished it. But independent of the improbability, that the intention to dispense, only with the time in which the condition was to be performed, would be expressed in the language which has been noticed, there are terms used, which seem to restrict the time during which a persistance in endeavours is required. The warrantee is to persist in his endeavours, \"to make such actual settlement as aforesaid.\" Now, \"such actual settlement as afosesaid,\" is an actual settlement within two years from the date of the warrant. As it could only be made within two years, a persistance in endeavouring to make it, could only continue for that time. \nIf, after being prevented from making an actual settlement, and persisting in endeavours, those endeavours should be successful within the two years after which the person should be driven off, it is asked, what would be his situation? \n The answer is a plain one. By persisting, he has become an actual settler; and the part of the proviso which applies to actual settlers, protects him. \nIf, after the two years, he should be driven off, he is still protected. The application of external violence dispenses with residence.The court feels itself bound  to say so, because the proviso contains a substitute, which, in such a state of things, shall be received instead of a performance of the conditions required by the enacting clause; and of that substitute, residence forms no part. \nIn a great variety of forms, and with great strength, it has been argued, that the settlement of the country was the great object of the act; and that the construction of the plaintiff would defeat that object. \nThat the exclusive object of an act to give lands to settlers, would be the settlement of a country, will be admitted; but that an act to sell lands to settlers, must have for its exclusive object, the settlement of the country, cannot be so readily conceded. In attempting to procure settlements, the treasury was certainly not forgotten. How far those two objects might be consulted, or how far the one yielded to the other,  is only to be inferred from the words in which the legislative intention has been expressed. How far the legislature may have supposed the peopling of the district in question, to have been promoted by encouraging actual settlements, though a subsequent residence on them should be rendered impracticable by a foreign enemy, can only be shown by their own language. At any rate, if the legislature has used words, dispensing with residence, it is not for the court to say they could not intend it, unless there were concomitant expressions, which should explain those words in a manner different from their ordinary import. There are other considerations in favour of the construction, to which the court is inclined. \nThis is a contract; and although a state is a party it ought to be construed according to those well established principles, which regulate contracts generally. \nThe state is in the situation of a person who holds forth to the world, the conditions on which he is willing o sell his property. \n If he should couch his propositions in such ambiguous terms, that they might be understood differently, in consequence of which, sales were to be made, and the purchase money  paid, he would come with an ill grace into court, to insist on a latent and obscure meaning, which should give him back his property, and permit him to retain the purchase money. All those principles of equity, and of fair dealing, which constitute the basis of judicial proceedings, require that courts should lean against such a construction. \nIt being understood, that the opinion of the court on the two first questions, has rendered a decision of the third unnecessary, no determination respecting it has been made. \nIt is directed, that the following opinion be certified to the circuit court. \nCertificate of the Opinion. \n1st. That it is the opinion of this court, that under the act of the legislature of Pennsylvania, passed the 3d day of April, A.D. 1792, entitled \"An act for the sale of the vacant lands within this commonwealth,\" the grantee, by a warrant of a tract of land lying north and west of the rivers Ohio and Alleghany and Conewango creek, who, by force of arms of the enemies of the United States, was prevented from settling and improving the said land, and from residing thereon from the 10th of April, 1793, the date of the said warrant, until the 1st of January, 1796;  but who, during the said period, persisted in his endeavours to make such settlement and residence, is excused from making such actual settlement as the enacting clause of the 9th section of the said law prescribes to vest a title in the said grantee. \n2d. That it is the opinion of this court, that a warrant for a tract of land lying north and west of the rivers Ohio and Alleghany and Conewango creek, granted in the year 1793, under and by virtue of an act of the legislature of Pennsylvania, entitled \"An act for selling the vacant lands of this commonwealth,\" to a person, who, by force of arms of the enemies of the United States, was  prevented from settling and improving the said land, and from residing thereon from the date of the said warrant until the 1st of January, 1796, but who, during the said period, persisted in his endeavours to make such settlement and residence, vests in such grantee a fee simple in the said land, although, after the said prevention ceased, he did not commence, and within the space of two years thereafter, clear, fence and cultivate, at least two acres for every hundred acres contained in his survey for the said land, and erect thereon a messuage  for the habitation of man, and reside, or cause a family to reside thereon, for the space of five years next following his first settling of the same; the said grantee being yet in full life. \nConcur by:", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. delivered the opinion of the court. \nThe first point made in this case, by the attorney for the United States, is, that the deed of the 16th of January, 1799, is fraudulent as to creditors generally. \nIt is not alleged that the consideration was feigned, or that there was any secret trust between the parties. The transaction is admitted to have been, in truth, what it purports to be; but it is contended that the deed, on its face, is fraudulent as to creditors. \nThe deed is made to save Hooe harmless on account of his having become the security of Fitzgerald to the United States, and on account of notes to be indorsed by Hooe for the accommodation of Fitzgerald, in the bank of Alexandria. \nThese are purposes for which it is supposed this deed of trust could not lawfully have been executed; and the deed has been pronounced fraudulent under the statute of 13th of Elizabeth. \nThat statute contains a proviso, that it shall not extend to conveyances made upon good consideration, and bona  fide. The goodness of the consideration,  in the case at bar, has been admitted; but it is alleged that the conveyance is not bona fide; and for this, Twyne's case has been principally relied on.But in that case, the intent was believed by the court to be fraudulent, and in this case it is admitted not to have been fraudulent. It is contended, that all the circumstances from which fraud was inferred in that case, are to be found in this; but the court can find between them no trait of similtude. In that case the deed was of all the property; was secret; was of chattels, and purported to be absolute, yet the vendor remained in possession of them, and exercised marks of ownership over them.In this case the deed is of part of the property, is of record, is of lands, and purports to be a conveyance which, according to its legal operation, leaves the property conveyed in possession of the grantor. In the case of Hamilton v. Russel, this court declared an absolute bill of sale of a personal chattel, of which the vendor retained the possession, to be a fraud. But the difference is a marked one, between a conveyance which purports to be absolute, and a conveyance which, from its terms, is to leave the possession in the vendor.  If, in the latter case, the retaining of possession was evidence of fraud, no mortgage could be valid. The possession universally remains with the grantor, until the creditor becomes entitled to his money, and either chuses, or is compelled to exert his right. That the grantor is to receive the rents and profits, till the grantee shall become entitled to demand the money which the deed is intended to secure, is a usual covenant. \nThat the property stood bound for future advances, is, in itself, unexceptionable. It may, indeed, be converted to improper purposes, but it is not positively inadmissible. It is frequent for a person who expects to become more considerably indebted, to mortgage property to his creditor, as a security for debts to be contracted, as well as for that which is already due. All the covenants in this deed appear to the court to be fair, legitimate, and consistent with common usage. It will barely be observed, that the validity of this conveyance is to be tested by the statutes of Virginia, which embrace this subject. But this is not mentioned as having any influence in this case. \n The second point for which the plaintiffs contend is, that this  is a case in which the priority of payment claimed by the United States in cases of insolvency, intervenes and avoids the deed. \nThis claim is opposed on two grounds. It is contended, \n1st. That at the time of making this deed, Fitzgerald was not insolvent in point of fact; and, \n2d. That this deed was not a transaction which evidences insolvency under the act of congress. \nIn construing the statutes on this subject, it has been stated by the court, on great deliberation, that the priority to which the United States are entitled, does not partake of the character of a lien on the property of public debtors. This distinction is always to be recollected. \nIn the case at bar, it will be observed, on the first objection made by the defendants, that the insolvency, which is the foundation of the claim, must certainly be proved by the United States. It must appear that at the time of making the conveyance, Fitzgerald was \"a debtor not having sufficient property to pay all his debts.\" The abstract from the books of the treasury, is undoubtedly complete evidence as far as it goes; but it is not intended to show the state of Fitzgerald's accounts in January, 1799.If that had been its object,  it would have credited him for the bonds then reported to be on hand. If the case turned entirely on this point, the court would probably send it back for further explanation respecting it. But this would be unnecessary, as it is the opinion of the court that the decree is right, however this fact may stand. \nIf a debtor of the United States, who makes a bona fide conveyance of part of his property for the security of a creditor, is within the act which gives a preference to the government, then would that preference be in the nature of a lien from the instant he became indebted; the inconvenience of which, where the debtor continued to transact business with the world, would certainly be very great. \n The words of the act extend the meaning of the word insolvency, to cases where \"a debtor, not having sufficient property to pay all his debts, shall have made a voluntary assignment thereof, for the benefit of his or her creditors.\" The word \"property\" is unquestionably all the property which the debtor possesses; and the word \"thereof\" refers to the  word \"property\" as used, and can only be satisfied by an assignment of all the property of the debtor. Had the  legislature contemplared a partial assignment, the words \"or part thereof,\" or others of similar import, would have been added. \nIf a trivial portion of an estate should be left out, for the purpose of evading the act, it would be considered as a fraud upon the law, and the parties would not be enabled to avail themselves of such a contrivance. But where a bona fide conveyance of part is made, not to avoid the law, but to secure a fair creditor, the case is not within the letter or the intention of the act. \nIt is observable, that the term insolvency was originally used, and the subsequent sentence is designed to explain the meaning and intent of the term. The whole explanation relates to such a general divestment of property, as would, in fact, be equivalent to insolvency in its technical sense. \nIt is the opinion of the court, that there is no error in the decree of the circuit court, and that it be affirmed. \nAfter the opinion was given, it was stated, that the court below had decreed the United States to pay costs, and it was suggested that that circumstance might have escaped the notice of this court, in affirming the decree generally. \nMason observed, that costs were only given  by statute, and that the United States are not bound by a statute, unless they are expressly named in it. That there was no means of compelling the United States to pay them. \nMARSHALL, Ch. J. That would make no difference, because we are to presume they would pay them if bound by law so to do. \n Mason. There is no precedent of a judgment against the United States for costs. In the case of the United States v. La Vengeance, 3 Dal. 301, the decree of the circuit court was affirmed with costs. But the next day the Chief Justice directed the words \"with costs\" to be struck out, as there appeared to have been some cause for the prosecution. But he observed, in doing this, the court did not mean to be understood as at all deciding the question, whether, in any case, they could award costs against the United States, but left it entirely open for future discussion. \nThe court directed the decree of the court below to be affirmed, except as to costs, and reversed so much of the decree as awarded the United States to pay costs, and directed that no costs be allowed to either party in this court. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. The court is of opinion, that the act of assembly contemplates the case where the first execution is not returned nor executed; that is, where it is out and may be served. \nThe clerk was right in adding the costs of the alias ca. sa. The judgment is for costs, generally; which includes all the costs belonging to the suit, whether prior, or subsequent to the rendition of judgment. If new costs accrue, the judgment opens to receive them. \nJudgment affirmed with costs. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. delivered the opinion of the court. \nThis suit was instituted to recover the freight of a vessel of which the plaintiff was a mortgagee. Upon inspecting the deed, which is the foundation of the action, it appears to have been admitted to record, on the oath of only two subscribing  witnesses. This suggested the preliminary question, whether a deed of mortgage, so recorded, was not absolutely void as to creditors and subsequent purchasers? This question depends on the construction of two acts of the legislature of Virginia. The first is entitled, \"An act for regulating conveyances,\" The 4th section of that act is in these words;  \"All bargains, sales,\" &c. The first member of the sentence relates to lands only, the second to marriage settlements, wherein either lands or personal estate should be settled: and the third relates to deeds of trust and mortgages. Terms descriptive of personal estate are omitted, but the word \"whatsoever\" would certainly comprehend a mortgage of a personal chattel, as well as of lands, if not restrained by other words manifesting an intent to restrain them. \nIt is argued, that this intent is clearly manifested. The whole act relates to real estate, except that part of it which respects marriage settlements. Its title is \"an act concerning conveyances,\" and all its provisions are adapted to the conveyance of lands, except in the particular case of marriage settlements; and in that case, the act provides expressly for  recording a settlement of chattels. This act, it is said, contains no \"directions\" for recording a deed of trust or mortgage for a personal thing,  and, consequently, such deed cannot be within it. \nThe first section of the act respects conveyances of lands only, and directs, that they shall be acknowledged or proved by the oath of three witnesses in the general court, or court of the district, county, city, or corporation in which the lands lie. \nThe second respects marriage settlements, and directs, that if lands be conveyed or covenanted to be conveyed, they shall be proved and recorded in the same manner as had been prescribed in the first section; but if only slaves, money, or other personal thing be settled, the deed is to be proved and recorded before the court of the district, county, or corporation in which the party dwells, or as afterwards directed. \nThe third section relates only to the proving and recording of livery of seisin. \nThen follows the fourth section, which requires, among other enumerated conveyances, that \"all deeds of trust and mortgages whatsoever\" shall be void as to creditors and subsequent purchasers, if not acknowledged or proved, and recorded  \"according to the directions  of the act.\" There being no \"directions\" which are applied to mortgages, unless lands be conveyed in them, it has been argued, that such mortgages only, as convey lands, are comprehended within the act. \nThe act, it must be acknowledged, is very obscurely penned in this particular respect, and there is so much strength in the argument for confining it to mortgages of lands, that, if a mortgage of a personal chattel could be brought within the provisions of any other act, the court would be disposed to adopt the construction contended for. \nThe plaintiff insists, that such a mortgage is comprehended in the 2d section of the \"act to prevent frauds and perjuries.\" \nThat act avoids fraudulent conveyances; and declares, that deeds of personal chattels, not upon a valuable consideration, where the possession remains with the donor; or, a reservation of interest in the donor, where possession passes to the donee, shall be fraudulent and void, unless proved and recorded according to the directions of the act. A mortgage made on a valuable consideration, would be very clearly excluded from the 2d section, although the act contained nothing further on  the subject. But to remove the possibility of doubt, the 3d section declares, that the act shall not extend to any conveyance made \"upon good consideration and bona fide.\" \nThe meaning of the word \"good,\" in the statute of frauds, is settled to be the same with \"valuable.\" \nIt is, therefore, perfectly clear, that the case is altogether omitted, or is provided for in the act concerning conveyances. In a country where mortgages of a particular kind of personal property , are frequent, it can scarcely be supposed that no provision would be made for so important and interesting a subject. The inconvenience resulting from the total want of such a provision would certainly be great; and the court, therefore, ought not to suppose the case to be entirely omitted, if there be any legislative act which may fairly be construed  to comprehend it. The act concerning conveyances, although not penned with that clearness which is to be wished, does yet contain terms which are sufficient to embrace the case, and the best judicial opinions of that state concur in this exposition of it. \nAlthough the point was not directly decided in the case of Hill and Claiborne, the court of appeals  appear to have proceeded on this construction; and Judge Tucker, in discussing this subject, avows the same opinion. \nUpon a consideration of the acts on this subject, Butts being a creditor, it is the opinion of the court, that the deed of mortgage, in the proceedings mentioned, was void as to him. \nThe counsel for the plaintiff contends, that, although the mortgage-deed be void, yet Hodgson is entitled to recover, because he has paid money to the order of Butts, under the mistaken opinion that he was entitled to the freight. \nThis allegation is not made out in point of fact. Hodgson was in possession of the vessel as the absolute purchaser before he paid for the disbursements he is now endeavouring to recover. It does not appear that he paid these disbursements in the confidence of receiving the freight, or that he was not compellable to pay them as owner of the vessel.The freight had previously been applied by Butts, under the authority of the Hamiltons, to the payment of a debt due to himself. He had a right, as a general creditor, to retain that freight as against the original owners, or their assignee. \nThe court is of opinion, that the judgment of the circuit court is to  be affirmed with costs. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. 4 delivered the opinion of the court as follows: \nThis is an indictment against the defendant, for taking fees, under colour of his office, as a justice of the peace in the district of Columbia. \nA boubt has been suggested respecting the jurisdiction of this court, in appeals on writs of error, from the judgments of the circuit court for that district, in criminal  cases; and this question is to be decided before the court can inquire into the merits of the case. \nIn support of the jurisdiction of the court, the attorney-general has adverted to the words of the constitution, from which he seemed to argue, that as criminal jurisdiction was exercised by the courts of the United States, under the description of, \"all cases in law and equity arising under the laws of the United States,\" and as the appellate jurisdiction of this court, was extended to all enumerated cases, other than those  which might be brought on originally, \"with such exceptions, and under such regulations, as the congress shall make,\" that the supreme court possessed appellate jurisdiction in criminal, as well as civil cases, over the judgments of every court, whose decisions it would review, unless there should be some exception or regulation made by congress, which should circumscribe the jurisdiction conferred by the constitution. \nThis argument would be unanswerable, if the supreme court had been created by law, without describing its jurisdiction. The constitution would then have been the only standard by which its powers could be tested, since there would be  clearly no congressional regulation or exception on the subject. \nBut as the jurisdiction of the court has been described, it has been regulated by congress, and an affirmative description of its powers must be understood as a regulation, under the constitution, prohibiting the exercise of other powers than those described. \nThus the appellate jurisdiction of this court, from the judgments of the circuit courts, is described affirmatively. No restrictive words are used. Yet it has never been supposed, that a decision of a circuit court could be reviewed, unless the matter in dispute should exceed the value of 2,000 dollars. There are no words in the act restraining the supreme court from taking cognizance of causes under that sum; their jurisdiction is only limited by the legislative declaration, that they may re-examine the decisions of the circuit court, where the matter in dispute exceeds the value of 2,000 dollars. \nThis court, therefore, will only review those judgments of the circuit court of Columbia, a power to reexamine which, is expressly given by law. \nOn examining the act, \"concerning the district of Columbia,\" the court is of opinion, that the appellate jurisdiction, granted  by that act, is confined to civil cases. The words, \"matter in dispute,\" seem appropriated to civil cases, where the subject in contest has  a value beyodn the sum mentioned in the act. But, in criminal cases, the question is the guilt or innocence of the accusev. ROBERDEAU'S EXECUTOR. of 100 dolv. ROBERDEAU'S EXECUTOR. punishment for the offence committed, and not the particular object of the suit. \nThe writ of error, therefore, is to be dismissed, this court having no jurisdiction of the case. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. after stating the case, delivered the opinion of the court. There being a general verdict for the plaintiff, it is necessary, in order to justify a judgment for the defendant, that the statement of facts, upon which he relies, should contain all the circumstances necessary  to support such a judgment; otherwise the judgment must be rendered upon the verdict for the plaintiff. \nThe five years mentioned in the 56th section of the act of assembly, must have elapsed before the death of the testator. If they did not, no lapse of time after his death can bring the case within the purview of this act. In the present case, the five years had elapsed. But there is a saving  clause, in the following words: \"Saving to all persons non compos mentis, femes covert, infants, imprisoned, or out of this commonwealth, who may be plaintiffs in such suits, three years after their several disabilities removed.\" \nIt is one of the facts stated, that the plaintiff was within the commonwealth of Virginia, in the year 1786, after the cause of action accrued: and hence it is argued, that he is not within the saving clause of the section, and that, to exclude him from the benefit of that clause, it is not necessary that he should have become a resident of that state. \nThe court has not been able to find any case in which this question has been decided. We are, therefore, obliged to form an opinion from a consideration of the act itself. \nThe words of the act are, \"out of this commonwealth,\" and such persons may bring their actions within three years after their \"disability\" removed. \nThe court is of opinion, that the disability is removed at the moment when the person comes into the commonwealth; and he must bring his action within three years from that time. \nBut something further than this was necessary to authorise a judgment for the defendant.  It ought  to have appeared, that Roberdeau was a resident of the state of Virginia at the time the plaintiff came into that state in 1786; and that fact is not in the case stated. The judgment, therefore ought to have been for the plaintiff, and not for the defendant. \nJudgment reversed, with costs, and judgment entered for the plaintiff on the verdict. \n \n\n ", " \nOpinion \n\n \n \nMARSHALL, Ch. J. delivered the opinion of the court. \nIt was slightly contended by the counsel for the plaintiff in error, that when usury has been specially pleaded, and the evidence adduced to support such plea has been adjudged by the court to be inapplicable to the facts so pleaded, the same evidence cannot be admitted upon the plea of non assumpsit. No cases in support of this position have been cited, and it does not appear to be supported by reasoning from analogy. In cases where there are special and general counts in a declaration, and the evidence does  not support the special counts, the plaintiff is allowed to apply the same evidence in support of the general counts. On a parity of reasoning, the defendant should be permitted to give in evidence upon the plea of non assumpsit, the same facts which were adjudged inapplicable to the special pleas, but which might have been received on the general plea, if the special pleas had not been pleaded. \nThe counsel for the plaintiff has also contended, that although the paper-writing produced would, on the face of it, import a usurious contract, yet, as the jury might possibly have inferred from it certain extrinsic facts, which would have shown the contract not to have been within the act, the jury ought to have been left at liberty to infer those facts. But in this case the question arises upon, a written instrument, and no principle is more clearly settled, than that the construction of a written evidence is exclusively with the court. \nThis court is of opinion, that the court below has correctly construed the instrument upon which the question arose, and that, therefore, there is no error in the  judgment. \nJudgment affirmed, with costs. \n \n\n ", " \nOpinion \n\n \n \n MARSHALL, Ch. J. We can do nothing without seeing the record, and the papers offered cannot be considered by us as a record. \n The court, however, is of opinion, that a decree for a sale under a mortgage, is such a final decree as may be appealed from. We suppose, that when the court below understands that to be our opinion, it will allow an appeal, if it be a case to which this opinion applies. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. delivered the opinion of the court, to the following effect: \nThe court is of opinion, according to the best consideration they have been able to give the subject, that this  case is not within the act of congress of 1798, usually called  the non-intercourse law. \nIt is contended by the counsel for the defendant, that the circumstances, stated in the special verdict, do not show an absolute necessity for the trading therein described. And it is said, the plaintiff might have abandoned the property, and sought redress of his government; and that it was his duty to do so, rather than violate the laws of his country. But the court is of opinion, that the act of congress did not impose such terms upon a person who was forced by stress of weather to enter a French port, and land his cargo, and was prevented by the public officers of that port to relade and carry it away. \nEven if an actual and general war had existed between this country and France, and the plaintiff had been driven into a French port, a part of his cargo seized, and he had been permitted by the officers of the port to sell the residue, and purchase a new cargo, I am of opinion, that it would not have been deemed such a traffic with the enemy as would vitiate the policy upon such new cargo. \nThe terms of the act of congress seem to imply an intentional offence on the part of the owners. \nThe case put of a French agent goingGAN e purchasing the cargo for  the use of the French government, under a pre-concert with e owners, would certainly be an offence against the law; but when there is no such intention; when the vessel has been absolutely forced, by stress of weather, to go into a French port, and land her cargo; when part has been seized for the use of the government of France, and the master has been forbidden by the public officers of the port to relade the residue, and to sell it for any thing valuable, except the produce of the country, the mere taking away of such produce cannot be deemed such a traffic as is contemplated by the act of congress. \nJudgment affirmed, with costs. 3 \n \n\n ", " \nOpinion \n\n \n \n MARSHALL, Ch. J. The court is of opinion, that the court below erred in admitting the pleas, and dismissing the bill. \nJudgment reversed. 2 \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. delivered the opinion of the court, to the following effect: \nThe plaintiff declares upon a bond, dated the 3d of October; and upon oyer, the bond appears to bear date the 3d of January  preceding. \nBy the oyer, the bond is made a part of the declaration. There were several pleadings, and among the rest, a bad declaration, a bad rejoinder, and a special demurrer by the plaintiff to this bad rejoinder. When the whole pleadings are thus spread upon the record by a demurrer, it is the duty of the court to examine the whole, and go to the first error. When the special demurrer is by the plaintiff, his own pleadings are to be scrutinized, and the court will notice what would have been bad upon a general demurrer. The variance between the date of the bond declared upon, and that produced on oyer is fatal. \nUpon the second point the court is of opinion, that there is no error in the construction given by the court below to the condition of the bond. There are many cases on the construction of bonds, where the letter of the condition has been departed from, to carry into effect the intention of the parties. \nBut for the first error, the judgment must be reversed, and judgment entered for the plaintiff in error, on the demurrer. \nJudgment reversed, with costs. \n \n\n ", " \nOpinion \n\n \n \n MARSHALL, Ch. J. delivered the opinion of the court. \nThe essential difficulty in this cause, arises  from the consideration, that under the resolution of congDoman, which the vessel and cargo mentioned in the proceedings were condemened, a sanction is claimed to a breach of trust, and a violation of moral principle. In such a case, the mind submits reluctantly to the rule of law, and laboriously searches for something which shall reconcile that rule with what would seem to be the dictate of abstract justice. \nIt has been correctly argued by the plaintiff in error, that the captain was under obligations to the owners, from which, in a moral point of view, he could not be completely absolved.He was bound to save for them the ship and cargo by all fair means within his power; but he was no bound to employ fraud in order to effect the object. The situation of the vessel unquestionably justified her being carried into the the port of an enemy, and, perhaps, in the courts of England, the libelling of the vessel, by the captain and crew, might be construed to be an act which would enure solely to the benefit of the owners; but war certainly gives the right to annoy an enemy by means such as those which were employed by congress, and courts are bound to consider them as legitimate, and  to leave to them their full operation. \nThe agreement to save the ship and cargo, under the semblance of a condemnation, was not, in itself, an immoral act; it was, as has been truly said, a stratagem which the laws of war would authorise, but it was certainly a fraud upon the resolution of congress, and no principle can be more clear, than that the courts of the United States can furnish no aid in giving efficacy to it. Congress having a perfect right, in a state of open war, to tempt the navigators of enemy-vessels to bring them into the American ports, by making the vessel and cargo prize to the captors, the condemnation of a vessel so brought in amounted necessarily to an absolute transfer of the property, and to a complete annihilation, in a legal point of view, of the title of the owners, and of their  claim upon the captain. Had no communication taken place between the captain and his crew, whereby a portion of the prize-money was allotted to him in trust for the owners, which would not have been allotted to him as a captor, in virtue of his station in the vessel, it would have been a plain case of prize under the resolution of congress, and any intention under  which the capture was made, whether declared or not, would have been, like other acts of the will, controulable and alterable by the persons who had entertained it. But if, by a contract with the crew, stipulating certain advantages for the owners of the ship and cargo, the vessel has beeDoman, in when she would not otherwise have been carried in, or a larger proportion of the prize has been allowed to the captain than would have been allowed to him for his own use, a plain fraud has been committed by him, and the question, whether the trust which he assumed upon himself, and under which he obtained possession of the property, can be enforced in this court, is one of more difficulty, upon which a difference of opinion has prevailed. It has been thought by some of the judges, that the contract being in itself compatible with the strictest rules of morality, and being opposed by only a temporary and war regulation, which exists no longer, may now be enforced. But upon more mature consideration, the majority of the judges accede to the opinion, that the contract being clearly in fraud of the law, as existing at the time, a law to which, under the circumstances attending it, no just  exceptions can be taken, its execution cannot be compelled by the courts of that country, to evade whose laws it was made.The person in possession must be left in possession of that which the decree of a competent tribunal has given him. \nThis opinion seems completely to decide the point made under the treaty of peace. According to it, a debt never existed to which the treaty could apply. No debt was due from the captain to his owners, but in virtue of the confiscation of the ship and cargo, and it has never been alleged, that the treaty extended to captures made during the war, of property in the actual possession of the enemy, whatever might be the means employed in making them. \n If the allegations of the bill had stated any contract subsequent to the condemnation, by which captain Eve had made himself a trustee, the previous moral obligation might have furnished a sufficient consideration for that contract. But the allegations of the bill are not sufficiently explicit on this point. They do not make out such a case. His declarations appear to have been cotemporaneous with the transaction, and only to have manifested the intention under which he acted, an intention  which he was at liberty to change. \nJudgment affirmed. \n \n\n ", " \nOpinion \n\n \n \n MARSHALL, Ch. J. delivered the opinion of the court. \nThe court has considered this case, and is of opinion that the jurisdiction cannot be supported. \nThe words of the act of congress are, \"where an alien is a party; or the suit is between a citizen of a state where the suit is brought, and a citizen  of another state.\" \nThe court understands these expressions to mean that each distinct interest should be represented by persons, all of whom are entitled to sue, or may be sued, in the federal courts. That is, that where the interest is joint, each of the persons concerned in that interest must be competent to sue, or liable to be sued, in those courts. \nBut the court does not mean to give an opinion in the case where several parties represent several distinct interests,  and some of those parties are, and others are not, competent to sue, or liable to be sued, in the courts of the United States. \nDecree affirmed. \n \n\n ", " \nOpinion \n\n \n \n MARSHALL, Ch. J. after stating the case, delivered the opinion of the court. \nThis court has no jurisdiction, under the 25th section of the judiciary act of 1789, but in a case where a final judgment or decree has been rendered in the highest court of law or equity of a state, in which a decision in the suit could be had, where is drawn in question, the validity of a treaty or statute of, or an authority exercised under the United States, and the decision is against their validity, &c. or where is drawn in question, the construction of any clause of the constitution,  or of a treaty, or statute of, or commission  held under the United States, and the decision is against the title, right, privilege or exemption, specially set up or claimed by either party, under such clause of the said constitution, treaty, statute or commission. \nIn the present case, such of the defendants as were aliens, filed a petition to remove the cause to the federal circuit court, under the 12th section of the same act. The state court granted the prayer of the petition, and ordered the cause to be removed; the decision, therefore, was not against the privilege claimed under the statute; and, therefore, this court has no jurisdiction in the case. \nThe writ of error must be dismissed. \n \n\n ", " \nOpinion \n\n \n \n MARSHALL, Ch. J. delivered the opinion of the court. \nThe bill states the original contracts, and claims a specific performance, by permitting the plaintiff to elect the 500 acres to which he is entitled, out of the tract of 1,000 acres, which had been located on Paint Creek; and also contains a prayer for general relief. \nOn the specific object of the bill, the right to make an election out of the lands on Paint Creek, there can be no difficulty. One thousand acres, part of the original warrant, having been clearly withdrawn at the time of the contract, from the quantity out of which the 500 acres, sold by the defendant, were to be chosen, there can be no pretext for the claim set up in the bill. \nAs little foundation is there for the claim to damages, instead of the land itself, on account of the 500 acres stated in the answer to have been sold; which sale, the counsel for the complainant considers as a wrong which has put out of his client's reach a tract he had a right to elect, and has, consequently, disabled the defendant from complying  with his contract. \nTo this claim, two answers may be given, either of which would completely defeat it. \n1st. The fact found by the jury shows, that the defendant is still ready to convey this land. The attorney-general would exclude this finding from the case, because it contradicts the admission of the anwer; and it is a rule of law, that a finding which contradicts a fact admitted in the pleadings, is to be disregarded. \nThe principle of law is unquestionably laid down correctly; but the court can perceive no incompatibility between the admission of the answer, and the fact, as found by the jury. They may both be true; and, of consequence,  the court must consider both as true. After the answer was filed, the land may have been repurchased by Mr. Taylor, and such a repurchase would have been proper evidence to justify the fact found by the jury, and would put him in a situation to perform his contract, so far as respected this particular tract. But were it even otherwise -- \nThe 2d answer is, that the concession made by the defendant must be taken altogether. He states the complainant to have refused this particular tract of 500 acres before it was sold. The complainant  had, consequently, elected not to take it, and, of course, the defendant was at liberty to dispose of it. \nThe other point in the case is attended with more difficulty. It is, that the representation made by Taylor, at the time of the sale, was untrue in a material point. He represented the tract of 1,000 acres which had been located, and out of which the plaintiff would have a right to take the lands he purchased, to lie on Hingston's fork of Licking, when, in truth, it lay on Slate, another branch of the same river, where the lands prove to be less valuable than on Hingston. That this misrepresentation is material, cannot be denied; but it is contended by the defendant, that it originated in mistake, not in fraud; and as the country was at that time unknown to both the contracting parties, and the material object was to give the purchaser a right to take the land he had purchased out of the tract already located for the seller, an accidental error in the description of the place where the tract in contemplation of the parties lay; an error which could have had, at the time, no influence on the contract, ought not now to affect the person who has innocently committed it. \nFrom the  situation of the parties and of the country, and from the form of the entry, it is reasonable to presume, that this apology is true in point of fact; but the court does not conceive that the fact will amount to a legal justification of the person who has made the misrepresentation. He who sells property on a description given by himself, is bound to make good that description; and if it be untrue in a material point, although the variance be occasioned by a mistake, he must still remain  liable for that variance.In this case, the defendant has sold land on Hingston, and offers land on Slate. He has sold that which he cannot convey, and as he cannot execute his contract, he must answer in damages. \nIt is, therefore, the opinion of the court, that the plaintiff is entitled to an issue, to ascertain the damages he has sustained by the inability of the defendant to perform his contract, and to the damages which shall be found. \nAlthough, in the general principles laid down, the court was unanimous, I did not, in consequence of the particular circumstances of this case, concur in the opinion which has been delivered. I will briefly state those circumstances. \nIn his bill, the  plaintiff does not allege, that he was, in any degree, induced to make the contract, by supposing the land already located to lie on Hington's fork. This representation, then, was an accidental circumstance which has not, in the slightest degree, influenced his conduct. Nor does he now, in his bill, urge this variance in the description of the property as a reason for claiming damages, instead of the specific thing contracted to be sold. Nor does it appear, that this claim was set up in the district court. On the contrary, he alleges, that the land on Paint Creek is also in his power, and insists on making his election out of that tract. Under such a bill, in a case where the contract is a very advantageous one to the purchaser, I am not convinced that a court of equity ought to award him damages, on account of an error in the description of the appeared to be unimportant, and which most obviously did not conduce to, or in any manner affect, the contract. The person claiming damages in such a case should, I think, be left to his remedy at law. I should, therefore, have been disposed to affirm the decree of the district court.I am, however, perfectly content with that which I  have been directed to deliver. 1 \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. delivered the opinion of the court. \nIn this case, the errors assigned are, \n1. That testimony has been improperly rejected by the judge of the district court. \n2. That the caveat, as to that part of the land which was claimed in virtue of the survey on Wilson's settlement-right, was improperly dismissed. \nThe caveat, so far as respects the claim of Wilson, in virtue of the survey on his preemption-warrant, thus stated his title: \"John Wilson claims, by virtue of the survey,  made on the entry of his preemption-warrant, for Andrew Cowan, and assigned by him to William Dryden, for his use.\" \nThe preemption-warrant issued on Wilson's certificate to Andrew Cowan, as assignee thereof; the survey was made in Cowan's name, and is assigned to William Dryden, but the assignment does not purport to be for the use of John Wilson. \nAt the trial, the plaintiff offered to prove, that the assignment to Cowan was made in trust for himself, and that the assignment to Dryden was never made by Cowan. The witness, by whom these facts were to be substantiated, was Cowan himself. He was objected to by the counsel for the defendant, as incompetent, and the objection was sustained by the court. To this opinion of the district judge, an exception was taken, and the question proposed, is the competency of Cowan to prove the fact, that he never was entitled to the land in controversy, and did not make the assignment of the survey. \n We put the release out of the case, because it cannot affect the interest of Cowan, if he had any, that interest being a liability to the person appearing to be his assignee. \nUpon a consideration of this fact, and its connection with a  caveat brought by Wilson, the witness appears to the court, to stand free from any possible objection on the part of the defendant. It would not appear, that he could derive a benefit from proving in this cause, that he never was entitled to the land in dispute, and never assigned the survey. \nBut, from the facts proposed by the plaintiff, which were before the court, it appears that Dryden had sold to Buford, for whose benefit this caveat was really brought; and it is alleged by the counsel for the defendant, that if the testimony of the witness would establish the right of those who might ultimately resort to him, under his supposed assignment, and such a suit would be prevented by a decision of this caveat, in favour of Wilson, he is, therefore, an incompetent winess; but the court does not perceive, that this consequence would flow from the testimony; and if it is imagined, that Cowan might suspect it, this would constitute an objection, rather to his credit than his competency. Cowan, therefore, was competent to prove the facts, to establish which, his testimony was offered. But if he had been received, and had established those facts, what would have been their amount? They  are, \n\"That Cowan never did purchase the said preemption, did not make the entry on the preemption-warrant, or survey it, or procure it to be surveyed, and does not now, nor ever did, claim title to the same. \n\"That the plaintiff, claiming to own the land, did sell it to William Dryden, who sold the same to William Buford, for whose benefit the caveat was brought.\" \nThese are the facts, which the plaintiff proposed to prove, and which are stated on the record. Had they  been proved, it appears to the court, that the caveat ought to have been dismissed. These facts do not support the title set up in the caveat. \nIt is conceived by this court, that the statements made in the caveat could only be supported by an assignment, which, on the face of it, purported to be for the use of Wilson. That an assignment made to Dryden, whereby the legal ownership of the survey was conveyed to him, although, in fact, intended for the benefit of Wilson, would not enable Wilson to maintain a caveat in his own name. It would authorise him to use the name of Cowan, but not to prosecute the suit in his own name. If, however, a contrary practice has been firmly established in Kentucky, the  court would be very unwilling to shake that practice. But in this case, the assignment to Dryden was not, in fact, for the use of Wilson, but of Dryden himself. The testimony, therefore, if received, could only have defeated the plaintiff's action. It cannot be said, therefore, that the judge has erred in dismissing the caveat, as to the part claimed under the preemption-warrant. \nBut, with respect to so much of the caveat as was supported by the survey on the settlement-right, no exception of form, or to the testimony, has been taken, and it ought not, therefore, to have been dismissed, but on the merits. On this point, therefore, there is error in the judgment of the district court, for which it must be reversed. \nThis cause came on to be heard, on the transcript of the record of the proceedings of the court, for the district of Kentucky, and was argued by counsel, on consideration whereof, it seems to the court, that there is error in the judgment of the district court in this, that the caveat entered by the plaintiff was entirely dismissed,  whereas, it ought to have been decided on its merits, so far as respected that part of the land which was claimed by the plaintiff  under his survey of four hundred acres. It is, therefore, considered by the court, that the said judgment be reversed and annulled;  and that the defendant pay to the plaintiff, his costs. And the cause is remanded for further proceedings. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. The error complained of is, that the circuit court did not give an opinion on a point proposed. The court was certainly bound to give an opinion, if required, upon any point relevant to the issue. \nIt appears, from the facts stated, that the cause of action did  not accrue until the 19th of November, when the negotiation for a compromise was broken off. A tender of the flour at any time, after the 14th, and before the 19th, would have been a compliance with the contract. \nAs the plaintiff claimed no more than the price of \nDOUGLASS he jury, did not alter the verdict, which was \nJOHN MCALLISTER.\" as if the opinion had been given, there is no error of which the defendants could comlain. \nJudgment affirmed, with costs. \n \n\n ", " \nOpinion \n\n \n \n MARSHALL, Ch. J. delivered the opinion of the majority of the court. \nThis case depends on the construction of an act of the legislature of Virginia, which allows the prison-rules to a debtor whose body is in execution, on his giving bond, with sufficient security, not to go out of the rules or bounds of the  prison; that is, while a prisoner.The condition usually inserted is, not to depart therefrom till he shall be discharged by due course of law, or shall pay the debt. The act further provides, that the prisoner, on delivering a schedule of his property on oath, to a tribunal constituted for the purpose, and pursuing certain steps prescribed in the law, shall be discharged, and all his property shall be vested in the sheriff, for the benefit of the creditors at whose suit he is in execution. \nIn the case at bar, the forms of the law were observed, and a certificate of discharge obtained, after which the debtor departed from the rules. Conceiving this discharge to have been obtained by fraud, the creditor brought a suit upon the bond, and the court instructed the jury, that if a fraud had been practised by the debtor, although neither the justices who granted the certificate, nor the security, partook thereof, yet it avoided the discharge, and left the security liable in this action. To this opinion the defendants' counsel excepted, and upon that exception the cause is before this court. \nThe certificate of discharge may be granted either by the court sitting in its ordinary character  for the transaction of judicial business, or by two magistrates who are constituted by law an extraordinary court for this particular purpose. Whether granted in the one mode or the other, it is of equal validity. In either case, the judgment of discharge is the judgment of a court, and, as such, is of complete obligation. \nThe judgments of a court of competent jurisdiction, although obtained by fraud, have never been considered as absolutely void; and therefore, all acts performed under them are valid, so far as respects third persons. A  sheriff who levies an execution under a judgment fraudulently obtained, is not a trespasser, nor can the person who purchases at a sale under such an execution, be compelled to relinquish the property he has purchased. All acts performed under such a judgment are valid acts; all the legal consequences which follow a judgment are, with respect to third persons, precisely the same in one obtained by fraud, as if it had been obtained fairly. \nWhen the person who had committed the fraud attempts to avail himself of the act, so as to discharge himself from a previously existing obligation, or to acquire a benefit, the judgment thus obtained  is declared void as to that purpose; but it may well be doubted, whether a penalty would be incurred, even by the person committing the fraud, for an act which the judgment would sanction. Thus, if a debtor taken on mesne process escapes, he may be retaken by the authority of the sheriff, and if not retaken, the sheriff may be liable for an escape; but if he fraudulently obtains a judgment in his favour, in consequence of which he goes at large, it has never been imagined that the sheriff could retake him on suspicion that the judgment was fraudulent, or be liable for an escape on the proof of such fraud. \nThus too, where, as in Virginia, an injunction has been adjudged to discharge the body from confinement, if a debtor in execution, by false allegations, obtains an injunction whereby his body is discharged from prison, or from the rules, it has never been conjectured that the injunction thus awarded was void, and the acts performed under it were to be considered as if the injunction had not existed. In that case, it would not be alleged that there was an escape, and that the security to the bond for keeping the rules was liable for the debt, because the discharge was fraudulently  obtained; but the discharge would have all its legal effects, in like manner as if no imposition had been practised on the judge by whom it was granted. \nThe judgment rendered in his favour may not shield the fraudulent debtor from an original claim, but it is believed that no case can be adduced, where an act, which is the legal consequence of a judgment, has in itself created a new responsibility, even with respect to the party  himself, much less with respect to third persons, who de not participate in the fraud. \nIt would seem, then, upon general principles, that a debtor who has departed from the prison-rules under the authority of a judgment of discharge, granted in due form by a comperent tribunal, has not committed an escape even to charge himself, much less a third person. Such a discharge might not be permitted to protect him from the original debt, even if the case had not been particularly provided for by statute; but the act of departing from the rules, after being thus discharged, could not charge him with a new responsibility to which he was not before liable, much less will it impose on his security a liability for the debt. Departing from the rules, after  being discharged in due course of law, is not a breach of the condition of his bond. \nThis opinion receives great additional strength from those arguments, drawn from the objects and provisions of the act, which have been forcibly urged from the bar. \nThe objects of the act unquestionably are, not to increase the security of the creditor, but to relieve the debtor from close imprisonment in the confined jails of the country, and to consult his health, by giving him the benefit of fresh air. But as this indulgence would furnish the means of escaping from the custody of the officer, and thereby deprive the creditor of his person, it was thought necessary to guard against the danger which the indulgence itself created, not to guard against dangers totally unconnected with this indulgence. Security, therefore, ought, in reason, to be required against a departure from the rules without a lawful authority so to do, because the means of such departure were furnished by being allowed the use of the rules; but security against a fraud in obtaining such authority need not be required, because the means of practising that fraud are not facilitated by granting the rules. They may be used by  a debtor in close jail, as successfully as by a debtor admitted to the rules. \nIt is also a material circumstance in the construction of the act, that ample provision is made for the very case.  A new capias may be awarded to take the person of the debtor. This remedy is not allowed in the case of an escape; and it is strong evidence that the legislature did not contemplate a departure from the rules, under a certificate issued by proper authority, as an escape; that the remedy given the creditor is competent to a redress of the injury, replaces him in the situation in which he was before it was committed, and is not founded on the idea that there has been an escape. \nThe argument founded on the provisions respecting the property of the debtor, also bear strongly on the case. They confirm the opinion, that a departure from the rules, under a certificate of discharge granted by a proper tribunal, ought not to be considered as an escape. So, too, does that provision of the act which requires notice to the creditor and not to the security. \nWithout reviewing the various additional arguments which have been suggested at the bar, the court is of opinion, that upon general  principles, strengthened by a particular consideration of the act itself, a departure from the rules under such an authority as is stated in the proceedings, is not an escape which can charge the security in the bond for keeping the prison-rules, although that authority was obtained by a fraudulent representation on the part of the debtor, neither the magistrates nor the security having participated in that fraud. \nThere is error, therefore, in the instruction given to the jury, as stated in the third bill of exceptions, for which the judgment is to be reversed, and the cause remanded for further trial. \nJudgment reversed. \nDissent by:", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. delivered the opinion of the court. \nThis case comes up on two exceptions taken to opinions given in the circuit court. \nThe plaintiff in the court below had sold to the defendant in that court, certain goods, wares and merchandize, of which he had given him a bill, headed with the words, \"Mr. Theophilus Harris, bought of Dunlap & Johnston,\" &c. At the foot of this bill of parcels, was the following receipt: \"Received, Messrs. Clingman and Magaw's note for the above sum, payable to the order of John Towers or order, indorsed by John Towers and Theophilus Harris, payable 2d April, 1798, when paid, received in full.\" \nThis note was indorsed in blank by the defendant  in error, and a suit was instituted upon it by Dunlap against Harris, in which suit he ultimately failed, it being the law of Virginia, that on a note, an action by the indorsee can only be maintained against the drawer, or his immediate indorsor. \nThe defendant below objected, \n1st. That the bill of parcels was conclusive evidence of joint property in the goods sold and delivered, and, therefore, that the action was not maintainable in the name of  Johnston alone. \n2d. That no action was maintainable on the original contract, the plaintiff below having indorsed the note mentioned in the receipt, and not having re-acquired any property in it, so as to be able to restore it to Harris. \nNo laches are imputed, or are imputable to the holder of the note.  Both these points were decided against the defendant below, and a judgment was rendered against him, from which he has appealed to this court. \nOn the first point the court is of opinion, that there is no error. The written memorandum was not the contract, and was only given to show to what object the receipt at its foot applied. It is not, therefore, a bar to a disclosure of the real fact; it is not conclusive evidence of joint ownership in the property sold, and of a joint sale, but will admit of explanation. The court, therefore, did not err in allowing explanatory evidence to go to the jury, nor in allowing the jury to judge of the weight of that evidence. \nOn the 2d exception, the material point to be decided is, whether an action can be maintained on an original contract for goods sold and delivered, by a person who has received a note as a conditional payment,  and has passed away that note. \nUpon principle, it would appear that such an action could not be maintained. The indorsement of the note passes the property in it to another, and is evidence that it was sold for a valuable consideration. \nIf, after such indorsement, the seller of the goods could maintain an action on the original contract, he would receive double satisfaction. \nThe case cited from 5th Term Reports, appears to be precisely in point. The distinction taken by the counsel for the appellee, that in this case Harris can never be sued on the note, is not so substantial as it is ingenious. Harris has a right to the note, in order to have his recourse against his indorsee, and Johnston has not a right to obtain satisfaction for the goods from Harris, while he is in possession of the satisfaction received from Dunlap. In the case quoted from Durnford & East, the liability of the defendant to an action from the actual holder of the note, is not the sole ground on which a disability to sue on the original contract was placed. That disability was also occasioned  by the obvious injustice, of allowing to the same person a double satisfaction, and of withholding from  the debtor, who had paid for the note before he could indorse it, and who would be compelled, by the judgment, to pay for the goods, on account of which he had parted with it, the right of resorting to his indorsor. But, if it was indispensable to show, that Dunlap has a remedy against Harris, it is supposed, that the holder of a note may incontestibly sue a remote indorsor in chancery, and compel payment of it. \nThe case of Young & Clarke, decided in this court, does not apply, because, in that case, the plaintiff below had not parted with his property in the note. \nThe court does not think that the order (made after the judgment was rendered) for the rendition of the note to the defendant below, can correct the error committed in misdirecting the jury. \nThe judgment is to be reversed, for error in directing the jury that the action was maintainable on the original contract, after the note received as conditional payment had been indorsed. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. delivered the opinion of the court. \nThe question in this case is, whether the executor of a person who dies in a foreign country, can maintain an action in this, by virtue of letters testamentary, granted to him in his own country. \nIt is contended, that this case differs from that of an administrator, which was formerly decided in this court, because an administrator derives his power over the estate of his intestate, from the grant of the administration; but an executor derives it from the will of his testator, which has invested him with his whole personal estate, wherever it may be. \nThis distinction does certainly exist; but the consequences deduced from it, do not seem to follow. If an executor derived from the will of his testator, a power to maintain a suit, and  obtain a judgment for a debt due to his testator, it would seem reasonable that he should exercise that power, wherever the authority of the will was acknowledged; but if he maintains the  suit by virtue of his letters testamentary, he can only sue in courts to which the power of those letters extends. It is not, and  cannot be denied, that he sues by virtue of his letters testamentary; and consequently, in this particular, he comes within the principle which was decided by the court, in the case of an administrator. \nAll rights to personal property are admitted to be regulated by the laws of the country in which the testator lived; but the suits for those rights must be governed by the laws of that country in which the tribunal is placed. No man can sue in the courts of any country, whatever his rights may be, unless in conformity with the rules prescribed by the laws of that country. \nThe court can perceive the inconvenience which may often result from this principle, but it is an inconvenience for which no remedy is within the reach of this tribunal. \nJudgment affirmed. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. delivered the opinion of the court. \n This case arises under a clause, in an act of the Virginia assembly, giving freedom to slaves who shall be brought thereafter into that state, and kept therein one whole year together, or so long at different times as shall amount to one year; and under a proviso of the same act, that it shall not extend to any person who may incline to remove from any of the United States, and become citizens of this, if, within sixty days after such removal, he shall take an oath which is prescribed in the act. \nThe negro London was brought from Maryland into Alexandria, where he was hired out, in the year 1802; some months after which, his master; the plaintiff in error, also removed into Alexandria, and within the  year from the time the negro  was brought in, and alse within the sixty days from the time the plaintiff in error removed to Alexandria, the oath prescribed by the law was taken. \nNo right to freedom having vested in London at the time this oath was taken, the question is, has it brought the plaintiff within the proviso of the act? \nThat the plaintiff is within the letter of the proviso, is unquestionable. He is a person who inclined to remove from one of the United States, into Virginia, who actually did remove, and who took the requisite oath within the limited time. \nBut it is contended, in behalf of the defendant in error, that the acts of bringing the negro into the state, and; of removing into it, must be concomitant, in order to bring the case within the proviso: Or in other words, that the owner must be a person \"inclining to remove into the state,\" at the time the slave was brought in. This inaccuracy of construction seems to be founded on the idea, that the penalty of forfeiting the property, accrues on bringing the slave into the state, whereas, it attaches on his continuance in the state for twelve months. Till such continuance has taken place, the offence has not been committed. If then, all the  acts which bring a person within the proviso, are performed before the right to freedom is vested, and before the provisions of the act have been infracted, it seems to the court, that the rights of the party remain unaffected by the act. \nIf London had been ordered to Maryland for a day, and then brought with his master into Alexandria, the construction of his counsel would be satisfied; and it seems strange, where the letter of a law has not been violated, that such an unimportant circumstance should affect its spirit. \nUnless this mode be admitted, of coming within the proviso, a person inclining to remove into Virginia, whose slaves had preceded him, though not for one year, could not bring himself within, or avoid the forfeiture, although permitting them to come into that state was no  offence; a construction of the act which the court cannot think consistent with its spirit or letter. \nThis court is, therefore, of opinion, that the circuit court erred in directing the jury that, under the circumstances stated, the plaintiff below was entitled to his freedom, and doth reverse the judgment rendered by the circuit court, and remand the cause for further proceedings. \n Judgment reversed. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. delivered the opinion of the court. \nIn this case two points have been made by the plaintiff in error. \n1st. That a justice of the peace, in the district of Columbia, is, by the laws of the United States, exempt from militia duty. \n2d. That an action of trespass  lies against the officer who makes distress, in order to satisfy a fine assessed upon a justice of the peace, by a court-martial. \n1. Is a justice of the peace exempt from militia duty? \nThe militia law of the district refers to the general law of the United States, and adopts the enumeration there made, of persons who have this privilege. That enumeration commences with \"the Vice-President of the United States, and the officers judicial and executive of the government of the United States.\" \nIt is contended by the plaintiff, and denied by the defendant, that a justice of the peace, within the district, is either a judicial or an executive officer of the government, in the sense in which those terms are used in the law. \n It has been decided in this court, that a justice of the peace is an officer; nor can it be conceived, that the affirmative of this proposition, was it now undecided, could be controverted. Under the sanction of a law, he is appointed, by the president, by and with the advice and consent of the senate, and receives his commission from the president. We know  not by what terms an officer can be defined, which would not embrace this description  of persons. If he is an officer, he must be an officer under the government of the United States. Deriving all his authority from the legislature and president of the United States, he certainly is not the officer of any other government. \nBut it is contended, that he is not an officer in the sense of the militia law; that the meaning of the words \"judicial and executive officers of the government,\" must be restricted to the officers immediately employed in the high judicial and executive departments; and, in support of this construction, the particular enumeration which follows those words, is relied on; an enumeration which, it is said, would have been useless, had the legislature used the words in the extended sense contended for by the plaintiff. A distinction has also been attempted between an officer of the United States, and an officer of the government of the United States, confining the latter more especially to those officers who are considered as belonging to the high departments; but, in this distinction, there does not appear to the court to be a solid difference. They are erms which may be used indifferently to express the same idea. \nIf a justice of the peace is  an officer of the government of the United States, he must be either a judicial or an executive officer. In fact, his powers, as defined by law, seem partly judicial, and partly executive.He is, then, within the letter of the exemption, and of course must be considered as comprehended within its proper construction, unless there be something in the act which requires a contrary interpretation. The enumeration which follows this general description of officers, is urged as furnishing the guide which shall lead us to the more limited construction. But to this  argument, it has very properly been answered, by the counsel for the plaintiff, that the long enumeration of characters exempted from militia duty which follows, presents only one description of persons; custom-house officers, and those who hold a commission from the President, or are appointed by him; and of these, by far the greater number do not hold such commission. The argument, therefore, not being supported by the fact, is inapplicable to the case. \nThe law furnishing no justification for a departure from the plain and obvious import of the words, the court must, in conformity with that import, declare that  a justice of the peace, within the district of Columbia, is exempt from the performance of militia duty. \nIt follows, from this opinion, that a court martial has no jurisdiction over a justice of the peace, as a militiaman; he could never be legally enrolled: and it is a principle, that a decision of such a tribunal, in a case clearly without its jurisdiction, cannot protect the officer who executes it. The court and the officer are all trespassers. \nThe judgment is reversed, and the cause remanded for further proceedings. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. delivered the opinion of the court. \nThis action is brought to recover money, received by the defendants, for a ship sold by them as the assigness of Aquila Brown, a bankrupt: which ship is considered, in this cause, as having been liable to forfeiture, under the \"Act for registering and recording ships or vessels.\" It is founded on the idea that, at the time of sale, the ship was the property of the United States, in virtue of the act of forfeiture which had been committed, and of the proceedings of the United States in consequence of that act. \nIt appears that in 1801, Aquila Brown, jun. then carrying on trade in his own name, in Baltimore, obtained a register for the Anthony Mangin, as his sole property; having first taken the oath which the law requires, to enable him to obtainsuch register. He afterwards became a bankrupt, and  the Anthony Mangin passed, with his other effects, to his assignees, who sold her for the money now claimed by the United States. After  this sale, facts were discovered, inducing the opinion that a certain Harman Henry Hackman, a foreigner, was part owner of the vessel, a circumstance within the knowledge of Aquila Brown; and upon this ground she was seized and libelled in the court of admiralty. By the sentence of that court, the libel was adjudged not to be supported, and was dismissed. It is agreed, and is so stated in the reasoning of the judge, which accompanied his opinion, that this sentence was not intended to decide the question of forfeiture; but was founded on the alienation of the vessel before the forfeiture was claimed. Acquiescing in this decision, the United States brought the present action. At the trial, the judge instructed the jury that this action was not maintainable, although they should be of opinion that the fact alleged in the oath, which was taken to obtain the register, was untrue within the knowledge of the person taking the oath. To this instruction an exception was taken; and upon that, among other points, the cause comes into this court. \n The words of the act under which the right of the United States accrues are: \"And in case any of the matters of fact in the said oath or affirmation alleged, which shall be within the knowledge of the party so swearing, or affirming, shall not be true, there shall be a forfeiture of the ship or vessel, together with her tackle, furniture, and apparel, in respect to which the same shall have been made, or of the value thereof, to be recovered with costs of suit, of the person by whom such oath or affirmation shall have been made.\" \nThe question made at the bar is, whether, by virtue of this act, the absolute property in the ship or vessel, vests in the United States, either in fact or in contemplation of law, on the taking of the false oath; or remains in the owners until the United States shall perform some act, manifesting their election to take the ship and not the value. \nSo far as respects this question, the effect of the sentence in the court of admiralty is put out of the case, for the court has not decided what the effect of that sentence will be. \nIt has been proved, that in all forfeitures accruing at common law, nothing vests in the government until  some legal  step shall be taken for the assertion of its right, after which, for many purposes, the doctrine of relation carries back the title to the commission of the offence; but the distinction, taken by the counsel for the United States, between forfeitures at common law, and those accruing under a statute, is certainly a sound one. Where a forfeiture is given by a statute, the rules of the common law may be dispensed with, and the thing forfeited may either vest immediately, or on the performance of some particular act, shall be the will of the legislature. This must depend upon the construction of the statute. \nThe cases cited from 5th Mod. and 5th Durnford & East, are certainly strong cases. Whether they can be reconciled to the general principles of English law, need not be considered, because the present inquiry respects the construction of an act of Congress, containing words which vary essentially from those used in the acts of the British parliament, on which those decisions were made. \nThe question, therefore, does the ship vest absolutely in the United States, so as to make it their property, whether such be the choice of the government or not, or may they elect to reject the  ship and proceed for its value, must be decided by the particular words of the act. \n The words taken according to their natural import, certainly indicate that an alternative is presented to the United States. \"There shall be a forfeiture of the ship, or of the value thereof, to be recovered with costs of suit, of the person by whom such oath shall have been made.\" \nHad a special action on the case been brought against the person, by whom the oath was made, stating circumstances on which a forfeiture would arise, and averring an election on the part of the United States, to claim the value, it would be a very bold use of the power of construction which is placed in a court of justice, to say, that such an action could not be maintained, because the vessel itself was vested in the government, and the value was only given in the event of the vessel being withdrawn from its grasp. \n In addition to the obvious and natural import of the words used by the legislature, the opinion, that an alternative is given to the government, derves some strength from the consideration, that the forfeitures are claimed from distinct persons. If the ship be forfeited she is claimed  from all the owners. In an action for the Anthony Mangin, Harman Henry Hackman could not have defended himself by averring his interest in the vessel, and that only the share of Brown was forfeited; but in an action against Hackman, for the value, the declaration, or information, must have averred that he was the person who took the false oath, and proof that it was taken by his partner would not have supported that averment. They are, then, distinct forfeitures, claimed from different persons.The ship, from the owners; the value from the particular owner who has taken the false oath. \nThe United States are entitled to both, or to only one of them. A right to both has not, and certainly cannot, be asserted. If there be a right only to one, the government may elect to take either; but till the election be made, the title to the one is perfectly equal to the title to the other. \nIt seems to be of the very nature of a right to elect one of two things, that actual ownership is not acquired in either, until it be elected; and if the penalty of an offence, be not the positive forfeiture of a particular thing, but one of two things, at the choice of the person claiming the forfeiture,  it would seem to be altering, materially, the situation in which that person is placed, to say, that either is vested in him before he makes that choice. If both are vested in him, it is not an election which to take, but which to reject; it is not a forfeiture of one of two things, but a forfeiture of two things, of which one only can be retained. \nThat the legislature may pass such an act, is certain; but that the one under consideration, is such an act, is not admitted by the court. \nIf the property in the vessel was actually vested in the United States by the commission of the offence, then the judgment of a court, condemning the vessel,  or declaring it to belong to the government, would, in fact, do nothing more than ascertain that the offence had been committed; it would not vest the thing more completely in the government, in point of right, than it was vested by the commission of the offence. If, notwithstanding the complete ownership of the vessel, which the argument supposes in the government immediately upon the act of forfeiture, and in virtue of that act, a suit for the value might have been maintained, it would seem to follow that a judgment declaring the  vessel to be the property of the United States, would not bar an action for the value, provided the benefit of that judgment had not been received by the United States. -- The real principle on which an action for the value can be maintained would seem to be that the ship itself did not belong to the United States in consequence of the false oath, but in consequence of the election to take the ship. If this election be not made, and the government shall elect the value, then the property of the vessel remains in the original owners, and is no obstacle to a suit for the value. But if this opinion be mistaken; if the property in the ship be immediately invested in the government, notwithstanding which the value may be claimed, the court cannot distinctly perceive why the same action might not be maintained, notwithstanding the declaration of a court that the property was in the United States, provided the benefit of their judgment was not obtained. In this view of the case, if the court of admiralty had decreed in favor of the United States, and the Anthony Mangin had been destroyed before the benefit of that judgment had been received, the person who had taken the false oath, might  still have been sued for the value. This would never be contended; and yet if the absolute ownership of the vessel by the United States does not preclude a right to sue for the value before a judgment be rendered, there is some difficulty in discerning when it will preclude that right. In fact, the idea that one of two things is actually vested in government by an act to which forfeiture is attached, seems incompatible with the idea of a right to elect which of two things shall vest. \nIt seems, then, to be the necessary construction of the act of congress that the United States acquired no  property in the Anthony Mangin until they elected to pursue that part of the alternative given by the statute. Of consequence, the money for which that vessel was sold, was not, at the time, received for the use of the United States; but for the use of the creditors of the bankrupt. \nTo decide finally on the propriety of supporting the claim of the United States, as made in this action, under that branch of the statute which forfeits the vessel, another question still remains to be investigated. Has the doctrine of relation such an influence upon this case, that an election subsequent  to the sale shall carry back the title of the United States to the commission of the act of forfeiture, so as by this fiction of law to make them the real owners of the vessel at the time of sale, and consequently of the money for which she was sold? \nWithout a critical examination of the doctrine of relation, it would seem to be a necessary part of that doctrine, that the title to a thing which is to relate back to some former time, must exist against the thing itself, not against some other thing which the claimant may wish to consider as its substitute. To carry back the title to the Anthony Mangin to the act of forfeiture, the title to the Anthony  Mangin must have an actual existence. If no such title exists, then the right to elect the vessel is lost, and the statute has not forfeited the money for which she was sold in lieu of her. Suppose, instead of being sold by the defendants, she had been exchanged by Aquila Brown himself for another ship, would that other ship have been forfeitable by the doctrine of relation in lieu of the Anthony Mangin? -- Clearly not; for the statute gives no such forfeiture. The forfeiture attaches to the thing itself, not to any article  for which the thing may be exchanged. \nThe court will not inquire whether an action on the case against Grundy & Thornburgh, for money had and received to the use of the United States, be a proper action in which to establish a forfeiture for a fact committed by Aquila Brown. But some objections to it may be stated which deserve consideration. It certainly gives no notice of the nature of the claim, a circumstance  with which, in a case like this, the ordinary rules of justice ought not to dispense. It asserts a claim founded on a crime yet remaining to be proved, not against the person who has committed that crime, or against him who possesses the thing which is liable for it, but against those who, though the assignees of the effects, are not the assignees of the torts committed by the bankrupt. It may change the nature of the defence. \nThe court suggests these difficulties as probably constituting objections to the action, without deciding on them. The points previously determined show that it is not maintainable in this case, under that alternative of the statute which subjects the vessel to forfeiture. \nIt remains to be inquired whether it can be maintained under  the provision which gives a right to sue for the value. \nUpon this part of the case no doubt was ever entertained. Not only must the declaration specially set forth the facts on which the right of the United States accrued, and the law which gives their title, but the action must be brought against the person who has committed the offence. Discarding those words which relate to other objects, and reading those only on which the claim to the value is founded, the statute enacts that \"in case any of the matters of fact in the said oath alleged which shall be within the knowledge of the party so swearing, shall not be true, there shall be a forefeiture of the value of the vessel, in respect to which the same shall have been made, to be recovered, with costs of suit, of the person by whom such oath shall have been made.\" It certainly requires no commentary on these words to prove that an action for the value can only be supported against the person who has taken the oath. \nIt being the opinion of the court that this action is not maintainable under any proof offered by the plaintiffs, it was deemed unnecessary to inquire whether the other exceptions in the record be well or ill founded.  --  Without declaring any opinion respecting them, the judgment of the circuit court is affirmed. \nJudgment affirmed. 1 \n The opinion which I am now to give, though the result of more than usual investigation, is delivered with the diffidence which will ever attend the determination of an inferior court, upon a new, great, and important legal question, and which will probably receive, as it ought, the ultimate judgment of the supreme court. \nIt is necessary to keep in different views, the question of fact, in issue, the questions of law arising from those facts, and the Parties between whom they arise. \nIt is to be distinctly remembered, that A. Brown, whose wilful perjury is alleged to sustain the forfeiture sued for, is no party to this suit; neither are his assignees, in any shape, parties to this suit, to be directly affected by the judgment.Every consideration, therefore, which would support a prosecution against the actual offender, to recover the penalty of his wilful crime, or which might be alleged against those who stand in his situation, as privies in law quo ad the forfeiture, must be laid out of the case. \nThe only parties to this suit are, the United States and the informant, as libellants, and T. W. Norman, as claimant of the ship. \nI think it peculiarly necessary to confine my opinion  to the state of facts, and the questions of law applying to the parties in court, because it is not necessary for me to decide, whether the assignees of A. Brown are clothed with any of the essential characters of a fair purchaser, or have, so far as relates to the property, any privilege or exemption which Brown himself would not have had; and the question de bona fide emptoris, does arise directly upon captain Norman's claim, and will determine this case. To that I shall, therefore, immediately proceed. \nNo seizure was made, or libel filed against the ship, until after Brown's bankruptcy, and a sale by his assignees to the claimant, who is admitted to be an innocent purchaser for a valuable consideration; nor until after he had obtained a new register in his own name, upon that purchase. \nIt is argued by the libellants' counsel, that Brown was not competent to pass any property to his assignees, nor they to any purchaser under them, as the forfeiture relates back to vest the property from the time of the false oath, and that the claim of the libellants is paramount to that of the claimant. \nThe defendant's counsel argue in support of his claim, that the relation back to the time  of the offence, is never admitted to overreach rights intermediately acquired by third persons. \nIn commenting upon the case from 1 D. and E. 252, when the argument was first opened, Mr. Martin pressed very strongly the dictum of Lord Kenyon, that if the relation back to the time of an offence was admitted as to the property, it would, in every case, equally relate to the profits intermediately acquired. If the reason assigned was true, it certainly furnished one of the strongest cases for applying the argument ab inconvenienti, and as such I was forcibly struck with it when mentioned. \nThe manner in which Lord Kenyon is reported to have made this observation plainly shows it to be the declaration of a sudden impression, and which, though correct as applied to some special cases, is not so in the latitude reported, either at common law, the civil law, or in equity supported by policy. \n1. At common law, even as to the guilty party, no attainder whatsoever has relation, as to the mesne profits of land, but only from the time of the attainder. 3 Bac. 272. Co. Lit. 290. (b.) 118. (a.) \n2. By the civil law, and the rules of equity adopted from that code, a subsequent possessor is not  only, not in a worse situation than those from whom he derives his possession, but even in cases where the original possessor might be bound to restore profit, a bona fide possessor is exempt from any such obligation; as in the case of a bona fide purchaser. Bona fide emptor non dubie percipiendo fructus etiam ex re aliena, interim suos faciat, non tantum eos qui diligentia et opera ejus proveniunt, sed omnes; quia quod ad fructus attinet loco domini est. Zouch 2. J.C. 213. \n3. It would not be equitable or just in the abstract, to permit a legal owner to lay by, to avail himself of the ignorance of an innocent holder. And the same considerations of policy, which in England permit the offender and his family to enjoy the profits of lands forfeited for treason, which is a strong and acknowledged case of relation to the offence, least the land should be uncultivated, and the public interest thereby suffer, applies conclusively to every case where it may be doubtful whether the relation is to the offence, or only to the time of conviction. \nAs this reason against relation does not appear to have the force it carried at first view, we must have recourse, \n1st. To the principles of  decision in analogous cases; in their application, always having regard, (as was justly argued by Mr. Harper, on the motion to produce Brown's examination before the commissioners) \"that a relation back shall never be admitted to injure the rights of third persons, nor to protect or favour wrong.\" And \n2d. To the statute under which the forfeiture is claimed in this eause. \nThe adjudged cases on this subject, are six classes of offences, which incur a forfeiture of real estate; 2 B.C. 267, and seventeen which produce a forfeiture of personal property; 2 B. C. 421. In this numerous classification, the principle which governs each description of cases does not materially differ. I have, therefore, selected only, \n1st. The cases of outlawry, and attainder of crimes; and, (as illustrative of these cases) \n2d. Waived goods. \n3d. Relation of executions at common law, and since the statute of Charles, and, \n4th. (As involving the general doctrine of this case, and to explain the case of Roberts v. Withered, cited by Mr. Harper, from 5 Mod. 193. Salk. 223.) A case of villainage which governed that decision. \n1. Attainder, or conviction of crimes, and outlawry. \nOf this description there  are two classes, which are adjudged to have relation to the time of the offence committed, and overreach all intermediate alienations -- treason and felo de se. The case of treason, in which the forfeiture as to land relates to the time of the offence committed, depends upon feudal principles. As the land could not be aliened by the tenant voluntarily, it would be preposterous to admit that to be done, through the medium of a crime, which could not be done by a lawful act; and the power to sell, introduced by subsequent statutes, is construed as applying only to lawful alienations. The reason assigned in some books, that it shall relate to the offence, \"because the indictment contains the year and day when it was done,\" is by no means true or satisfactory, since that would apply equally to personal property, which, the same books admit, is only affected from the time of the conviction; and the time charged is traversable, even in the case of land, by third persons claiming an interest therein, 5 Bac. 228. H.H.P.C. 261, 262. 3 Bac. 271. Plow. 488. 8 Co. 170. H.H.P.C. 264, 270. 3 Inst. 230. \nIt is a proposition universally true, that the forfeiture, upon an attainder of treason, relates  but to the conviction as to chattels, unless the case of the offender killed in resisting, or flight, form an exception, which may well be doubted. Indeed, says Lord Coke, it hath always been holden, that any one indicted of treason or felony, may, bona fide, sell any of his chattels, real or personal, 3 Bac. 271, Perk. 29. 8 Rep. 171. Skinner, 357, Jones v. Ashhurst. 4 Com. Dig. Forfeiture, B. 4. 2 Inst. 48. \nIn the case of a felo de se, it is stated, that the forfeiture has relation to the time of the mortal wound given, so that all intermediate alienations are avoided, 3 Bac. 272. This is the only case I have ever discovered, in which the doctrine of relation has been so far extended. If the principle of that determination is sound, and it is applicable to other cases, it is a drag-net indeed. It may, perhaps, most correctly be considered as a case sui generis, and neither for the reasons which are assigned to maintain it, nor the doctrine it supports, applicable to other cases. \nThose who are curious on this subject, will be amused with the argument of Chief Justice Dyer, on the drowning of Sir J. Hales, and will, probably, be as much convinced by the reasoning of the Chief  Justice, as by the logic of the grave-digger in Hamlet, to prove that the drowning of Ophelia was se defendendo. Plow. 262. \nOutlawry subjects the party to forfeitures, which are well known to depend upon the nature of the suit on which they are prosecuted. Without inquiring when an office is necessary, or may be dispensed with by the crown, I shall mention one case, where, even after an outlawry, (of which purchasers might always have notice, as it is a matter of record) a fair purchaser was protected, even against the crown. It is from Hardress, 101, The Attorney-General v. Freeman. A. was outlawed, and afterwards made a lease of his lands, and afterwards, these lands, among others, were found by inquisition; and this case was pleaded in bar, to bind the king before the inquisition. The court held that a lease, or other estate made by the party after outlawry, and before an inquisition taken, will prevent the king's title, if it be made bona fide, and upon good consideration; but if it be in trust for the party only, it will not be a bar; but that no conveyance whatsoever, made after the inquisition, will take away or discharge the king's title, 5 Bac. 564. Salk. 395. Carth.  442. \nThese cases are strong to show the general protection afforded by law to fair purchasers, even where the forfeiture is in rem, and the offender is not actually divested of his possession, the necessity of which is directly affirmed in the second description of cases to which I have referred, viz. \n2. Waived goods. \n\"As to waived goods, these belong to the king, and are in him without any office, for the property is in nobody. They may belong in like manner to the lord of the manor by grant, but not by prescription,\" 5 Bac. 517. 5 Co. 109. \nThe general principle of these cases is conformable to that quoted by Mr. Harper from 12 Mod. 92, to show, that an offence like that charged against Brown, divested the property out of him, and left it, as it were, in abeyance until suit, which vested the property by relation from the act of forfeiture. \nA position of greater comprehension, or which, as a general one, should embrace the libellants' case, could scarcely be imagined. Waived goods are in the king without office; that is, even without seizure, the purpose of which, as to legal title to the king, is answered by the office; the property is, as it were, in abeyance; yet this case,  so completely applicable in its general principles, contains the strongest possible illustration of the doctrine, that a title by forfeiture, in the case of a personal chattel, begins from suit, seizure, or conviction; and has no relation back; for \"the owner may at any time retake the goods waived, if they are not seized by the king, or the lord of the manor; for the lord's property begins from the seizure,\" 5 Bac. 517. Kitchen, 82. \nThis case is conclusive against Mr. Hollingsworth's argument, that this question is a question of property only, since it proves that property only begins from the seizure, which cannot be lawfully made to affect an intermediately vested right of a third person. \n3. The relation of executions at common law, and since the statute -- considering this case as one between the government and the claimant, from analogy to cases of the King's precedency in execution. \nBy the statute of 33 H. 8, c. 9. it is enacted, that if any suit be commenced or taken -- or any process awarded for the recovery of any of the King's debts, then the same suit, or process, shall be preferred before any person or persons. \nAnd as to the King's execution of goods, the same relates  to the time of awarding thereof, which is the teste of the writ; as it was in the case of a common person at common law. 2. Bac. 734. \nNow to apply this doctrine to the case before the court, and even admitting to this libel the same extent of relation as is admitted at common law upon the King's execution against personal chattels, and as to real and personal by the above recited statute, will it overreach the sale to Captain Norman? \nIt is generally agreed that an execution, executed though posterior to the time to which the King's extent relates, bars the King's priority -- and in the case of Lechmere v. Thorowgood, 3 Mod. 236. Comb. 123, it was holden that if the King's extent be sued out posterior to a judgment recovered by the subject, and writ of execution thereon delivered to the sheriff, though not executed, the King shall be postponed -- for the property of the goods is changed by the subject's execution. \nHere then we advance one step farther in restricting the doctrine of relation, as it applies to individual interests. It is presumed that the principles of relation upon executions since the statute, are too familiar to require any reference to adjudged cases. \nThe case  of Roberts & Withered, as reported by Salkeld, and copied by Bacon, is in these words: \"By the act of navigation, 12 Car. 2, cap. 18, certain goods are prohibited to be imported here, under pain of forfeiting them, one part to the King, another to him or them that will inform, seize, or sue for the same.\" \nIt was adjudged that in this case the subject may bring detinue for such goods; as the lord may have replevin for the goods of his villain distrained; for the bringing of the action vests a property in the plaintiff. When this case was first referred to by Mr. Harper, I considered, as I believe he and the other counsel did, that it came nearer to the case before the court, than any which occurred in their researches. On a careful examination of that case, I now think it will be found, not to bear on the point now to be decided. \nIn the first case it may be observed, that the case as reported does not afford any ground to presume that any other person than he who unlawfully imported the goods was interested in that suit; but on the contrary it is presumable that it was a suit against the original importer. In that case, the question of relation could not have arisen, since it was  utterly unimportant to the plaintiff and to the defendant, whether the plaintiff recovered by a title which related to his writ, or to the time of the importation. And further it is to be remarked, that the question in that case seems to have been only upon the form of action. It was detinue which is founded on property; and all that that case decides is, that in a case of specific forfeiture, the bringing of a suit vests a property in the plaintiff sufficient to sustain that form of action; for the case to which it is likened, and on which the decision rests, is express to show it does not relate to the interests of others; for says the book, \"in this case the subject may bring detinue for such goods -- as the lord may have replevin for the goods of his villain,\" which case, as I will show, goes not only to the form of action, but to the full length of this case. I will read that case. [Vide Littleton, section 177, with Lord Coke's comment thereon.] So in this case the ship was liable to forfeiture and might have been specifically recovered from Brown by the government, or any prosecutor under its laws, before a bona fide alienation by him; but if they have waited until such  alienation by him; and a third person has honestly bought and paid for the property, they may be answered in the language of Littleton, \"that it shall be adjudged their folly that they did not enter when the offender was in possession;\" for according to Lord Coke, before such seizure they had neither jus in re, nor jus ad rem, but only a right to sue, which I understood to be Lord Coke's possibility above referred to. From all these cases and principles I infer that the relation of the forfeiture to the time of the offence, in cases of treason and felony, especially by selfmurder, is peculiar to those cases; that in cases of forfeiture of chattels, the relation is only to the time of conviction -- that the forfeiture to which a party is subjected, by statute, of a personal chattel, must be construed with relation to the continuance of his ownership in that chattel at the time of conviction; and cannot be prosecuted in rem to affect a bona fide purchaser for a valuable consideration; and this construction I think not only warranted by the statute on which this suit is founded, and which speaks of a recovery of the value of the ship, but also by sound legal principles. The value can  only be recovered against the actual offender, and never from a bona fide holder; for against the offender it is the value at the time of the offence; even against a mala fide holder it is only of the thing, be the value of that thing greater or less. If any holder bona fide was liable because of his possession, he would not be the less so after he had parted with his possession; but he might be made answerable for the value of the thing in the same manner as if the possession continue with him; but even where he was not strictly a bona fide holder, the remedy is lost if his possession is gone. And it is but just, when two remedies are given to punish an offence, one of which shows a plain intent of the legislature, that it shall follow the offender personally, or in his personal interests, so to construe the other remedies as not to permit them to be extended to involve others who are wholly innocent, in the same degree of punishment as would attach to the responsible offender. \nThe argument, that Brown, by his false-swearing, subjected the ship to forfeiture de facto, and that no alienation by him could vest a better title in the vendee than the vendor possessed; and that as he  held the ship subject to forfeiture, so any holder under him, or through him, must take subject to that forfeiture, is certainly a strong one. \nThe general principle is undoubtedly true, that a derivative title cannot be better than the original from which it is derived; but it is only true as a general principle; and the exceptions to its operation are those on which I rely to warrant my construction of the statute in providing for a recovery of the value of the ship, as well as to show that in some instances he who has no title at all may yet transfer a valid one to personal chattels. \nRobbery can give no title to goods, and upon conviction, there is a judgment of restitution, according to the statute, which fixes the remedy against any person in possession at the time of the conviction; and this is by the express provision of positive law. Yet the owner of goods stolen, who has prosecuted the thief to conviction, cannot recover the value of his goods from a person who has purchased and sold them again, even with notice of the theft, before conviction. And if the owner of goods loses them by a fraud, and not a felony, and afterwards convicts the offender, he is not entitled to restitution,  or to retain them against a person -- e. g. a pawnbroker, who has fairly acquired a new right of property in them. \nIf, therefore, he who hath no title at all, may in some cases, nevertheless, give a legal right, a fortiori he who holds by a title defeasible only within a limited time, (for by the statute of limitation, the prosecution, in cases like the present, must be within three years) may transfer a good title to a fair purchaser for a valuable consideration. \nThe language of Blackstone is very emphatic: \"the right of proprietors of personal chattels is preserved from being divested, only so far as is consistent with that other necessary policy, that purchasers bona fide, in a fair, open, and regular manner, should not be, afterwards, put to difficulties by reason of the previous knavery of the seller.\" \nThe statute provides, that in case of a wilful false oath in any of the matters required, previous to the obtaining of the registry, \"there shall be a forfeiture of the ship or vessel, together with her tackle, apparel and furniture, in respect to which, the same shall have been made, or the value thereof to be recovered,\" &c. \nIt seems to me, to be the plain and just construction  of this statute, that the wilful false swearing does not ex directo produce a forfeiture of the ship. The forfeiture is alternative, either of the ship, or the value of the ship, at the election of the government or persons suing; but not of both the ship and the value. \nIf the government had recovered the value from Brown, there would have been an end of proceeding against the ship. And if the offence charged against Brown, only produces a specific forfeiture by a subsequent election, the argument is cogent, that the relation consequent upon that election, should be restricted by the general rule, that it shall not overreach an antecedent equity; and conclusive, that Brown's title was not forfeited de facto, but forfeitable only, and, therefore, within the principles of the cases of villainage, and waived goods, before relied on by me, and expressly by Blackstone, 2 Com. 421. \nFurther, the forfeiture is of the ship or the value. I have construed this clause somewhat differently from all the counsel, and though this circumstance producedoubts of its correctness, yet as it has weight with me, and minds of less comprehension may sometimes embrace truths, which may escape superior understandings,  I think it my duty to mention it. It is this. That the ship is not liable to forfeiture in the hands of any holder, other than the persons false-swearing, in any case but where such holder would be liable to a suit for the value. \nThe words, that there shall be a forfeiture of the ship, &c. or of the value thereof, to be recovered, with the costs of suit, of the person by whom such oath or affirmation shall have been made, plainly show the intent of the legislature, that the penalty and punishment should attach to the offender only. \"To be recovered of the person,\" both grammatically and legally relate to the object to be recovered, to wit, the ship, or the value thereof; and to the person from whom, and from whom only, the one or the other is to be recovered. \nThe guilt of false-swearing forfeits only such interests as the offender possessed; for by the express provision of the 16th section of this statute, the rights of an innocent and unoffending owner are exempt from forfeiture; and the words of the statute which connect the recovery with the forfeiture in this case, exclude the idea of any recovery from an innocent holder. Expressio unius est exclusio alterius. \nIf the ship  is forfeited by the sole act of the false-swearing, then she is equally forfeited, not withstanding there may have been fifty fair transfers in public market. Every particular sale would be a particular conversion, and every one through whose hands she may have passed, might be sued for the value of the price; but the statute says, that the value shall only be recovered of the offender himself. A party having fairly obtained and fairly lost, or departed with his possession, would not, in such case, be liable for the thing or its value. 3 Com. Dig. 359. 2 T. R. 750. If not liable when his possession has honestly ceased neither can he be made so when it honestly continues, since his own act cannot vary his responsibility. \nDoes reason or policy require a different construction? \nThe government prohibits an act under a penalty against the party offending. They say, We, for this, forfeit the thing in respect to which you have sworn falsely, if it continues in existence, and is yours; but if lost, or destroyed, or other persons innocently acquire new rights in that thing, your guilt shall still be punished; if annihilated, if sold, pay the value; if you have fraudulently impaired the  thing, pay the value. The one or the other shall be recovered of you, of you the guilty party. But this prohibition contains no threat of punishment against an innocent holder. \nNo inconvenience arises from this construction. A purchaser can only look to the face of the documents, to the records of title which the law requires for this species of property. The knowledge of the cause of forfeiture rests generally in the bosom of the offender; and the law can never require of a purchsaser to examine into the secrets of the heart. \nIt is more the interest and policy of government to increase its wealth and strength by the employment of its ships in trade and commerce, than to augment its revenues by forfeitures. It therefore fore wisely protects the interests of fair ship-holders from forfeiture for the crimes of others, while it carefully provides for the punishment of fraudulent contraventions of its laws. Protection is not, by this construction, afforded to guilt or fraud; it is only a shield for innocence. \nThe remedy remains, as it ought, against him who committed the offence. Government cannot be deprived of its forfeiture by any fraudulent alienation. Such a sale would be  void. Skinner, 357, Jones v. Ashhurst. 3 Co. Twine's case. 2 Bl. Com. 421. \nThe possession is legally, and to effectuate the statutory provision, still in the vendor. Indeed, all the reasoning on this subject is contained in two axioms of the civil law, to which this court may be allowed to refer. In rem actione tenetur qui dolo desiit possidere. Zouch, Elem. 197. Et aliquando, quod fieri non debet, factum valet; firmum et probum quod sit bona fide, improbatur autem quod sit mala fide vel dolo. Zouch, Elem. 41. \nIf a contrary construction prevails, government may have greater security for a few specific penalties; but it is at the expense of the interests of commerce, and the security of all ship-holders. \nI do therefore order and decree, that the libel in this case filed shall stand dismissed, and that the ship, &c. be restored to the claimant. \nBut as the case involved questions of great difficulty, upon which eminent counsel have differed in opinion, and judges may differ, and it was proper, in every view of the case, to put those questions in a course of logal adjudication, I shall certify probable cause of seizure, and decree restitution, without costs. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, C. J. delivered the opinion of the court. \nThe court has endeavoured to bestow on this cause, the attention to which it is alike entitled, by its own importance, by the situation of one of the parties, who is a stranger to our languate and our laws, and by the ability and zeal with which it has been argued at the bar. \nThe action claims from the defendant, the value of three cargoes of tobacco, purchased by him as the agent of the plaintiffs, which were captured on a voyage to Europe, and condemned as prize. The foundation of the claim is, that he deviated from the instructions which were given for the government of his conduct, and is, therefore, liable for the loss which has been sustained. \nThat an agent is bound to pursue the orders of his principals, and is answerable for any injury consequent on his departing from them, however fair may have been his motives for such departure, is a plain principle of law which has not been drawn into question; and the only inquiry in this case is, has the defendant obeyed  or deviated from his instructions? The circuit court was of opinion that they sanctioned his conduct, and it is the propriety of that opinion which is now to be reviewed in this court. \nIt depends on the true construction of the letter of the 27th of January, 1798, written by Bernardo Lacosta, on behalf of the plaintiffs, of which Juan Alonzo Menendez Conde was the bearer, and on the testimony which is stated in the bills of exceptions. \n This letter introduces Menendez as the agent of the plaintiffs, who were principally concerned in the importation of tobacco into Spain, and declares a confidence that the defendant will embrace the business as his own, and execute it with his wonted attention. \nAfter some general observations which relate to the proposed transaction, and which seem to be founded on the idea that the defendant and Menendez are to be associated in the business, the letter becomes more definite. The writer says, \"with this the said Mr. Menendez takes an order for 20,000 quintals (of tobacco) to be shipped for this place in seven or eight vessels, and in not less than six, under which condition the insurance will be made here. You will take care to seek  captains of fidelity, American born, and that all the crews conform to the most rigorous ordinances. For greater clearness the shipments (las expediciones) will be made according to the following for malities: 1st. You will lade the vessels in your own name, stating that they are on your own account and risk as an American citizen, and consign them,\" &c. \nThis instruction is followed by ten others, which seem principally designed to conceal the real character of the cargoes, and to facilitate their escape from cruisers. \nAt the close of these instructions, the following words are added: \"I refer you to that which the bearer will communicate to you verbally, respecting this business, who is sent on purpose to superintend the shipment (va solo para presenciar la expedicion) and you will, upon the whole, act for the advantage of the interested, taking care to keep this business a secret, in order to prevent a rise in your market, and its being known that it is for foreigners, but always that it is on your own account as an American citizen.\" \nIn the execution of this commission, the defendant shipped two cargoes, the one on board a Danish and the other on board a Moorish vessel, each  of which was captured and condemned as prize, the one by the French, and the other by the English. \n These shipments were made with the full approbation of Menendez, and it is in proof that American vessels were not, at the time, to be procured. \nBefore the order was completed, the government of the United States, adopted such measures, for repelling the hostile aggressions of France, as to justify an opinion, that open and declared war between the two nations, would soon take place. Under the impression of these measures, Mr. Menendez considered the American name as no longer affording a neutral character to the cargo, and directed it to be shipped on account and risk of Charles Longhy, of Genoa, who was a correspondent of the plaintiffs. These instructions were complied with. \nThe tobacco so shipped, which came safe, was received without complaint; but a large quantity, shipped in the Henrietta, was captured by a British cruiser, carried into Halifax, and there condemned as prize. \nFor the price of these three cargoes this action is brought. The inquiry respecting the two first, will rest, both on the instructions given to the defendant, and on the power of Menendez:  that respecting the last, rests solely on the power of Menendez. \nIt is alleged, that the orders under which the defendant acted, enjoined him to employ only American vessels and that in employing those of other neutral powers, he violated these orders. But there is certainly not one syllable in the letter, which contains any instruction to the defendant, relative to the employment of vessels, or which confines the transportation of the tobacco to be purchased, to American vessels. The court thinks it a fair construction of the letter, that full powers, in this respect, were confided to Menendez, and that Barry  might counsel with him, but was to comply with his directions. Menendez is declared to be the agent of the plaintiffs, and the full extent of this term is not limited in any part of the letter. He brings with him an order for 20,000 quintals, to be shipped in six, seven, or eight vessels, under which condition the insurance is to be made in Spain. \n These are not instructions to Barry; they are communications to him of the instructions given to Menendez, so far as was necessary for his understanding the views of the plaintiffs, and facilitating those  views, under the authority of Menendez. The order, of which Menendez was the bearer, was for himself, and the degree of aid expected from Barry, is described in the letter. Barry might have been unable, or unwilling to undertake the business. In any event of that kind, the enterprise was not, certainly, at an end; but Menendez might obtain other assistance. From the nature of the case, therefore, as well as from the expression of the letter, the order was in the possession and power of Menendez, the agent, to whom directions relative to the shipment of the tobacco, in a certain number of vessels, had been given, and who is declared to have been sent to America, for the purpose of superintending those shipments. Having made this explanation of the business confided to Menendez, the letter adds, \"you will take care to seek captains of fidelity, American born,\" &c. Those inquiries, Barry, an American merchant, could make, much more successfully, than Menendez, a foreigner, and, therefore, was directed to make them. But respecting the character of the vessel to be employed, no agency, on the part of Barry, was necessary, further than to comply with such directions as he might receive,  and no directions respecting the vessels to be employed, were given him, because those directions were given to Menendez. The instructions to Barry, to seek for American captains, are founded not upon instructions to employ American vessels, which were given to him, for none such were given, but upon the instructions which were given to Menendez. They are founded on the idea, that American vessels would be employed; but as circumstances might render the employment of them ineligible, it was reasonable to suppose that some discretion would be allowed to Menendez in this respect; accordingly, the private instructions, as stated in the bill of exceptions, only directed him to employ neutral vessels. \nThe idea that the power on this subject was completely in Menendez, and not in Barry, is confirmed, by observing that in the extended and minute rules, which are, for greater clearness, laid dow for his government respecting the transportation of the tobacco, not one syllable  is said concerning the character of the vessels in which it was to be shipped, a direction which would certainly not have been omitted, had the subject not been confided to the general agent. It is also  apparent, from the letters in the bill of exceptions, that the subject was so understood by both Menendezand Barry. When to these circumstances it is added, that American vessels were sought for at the time, and could not be obtained, it seems to the court perfectly clear, that with respect to the tobacco shipped in the Moorish and Danish vessels, the conduct of the defendant being sanctioned by Menendez, was free from all exception. \nThe claim for the cargo of the Henrietta, stands on stronger ground, because the defendant was explicitly instructed to lade the vessels in his own name, stating that the cargoes were shipped on his own account and risk. On this part of the case, the defendant must seek for a justification in the full powers of Menendez, to vary the orders given to him. These orders have been said to be free from all obscurity, and in themselves they unquestionably are so. Barry could not have doubted the positiveness of his instructions, to ship the tobacco as his own property. The defence he sets up is, that he was justified in conforming to the directions of Menendez, varying those instructions. \nAn examination of this defence, leads to a still more critical investigation  of the letter of the 27th of January. \nIt has been already observed, that Menendez is stated in the letter, introducing him o Barry, to be the agent of the plaintiffs, and the bearer of their orders for the tobacco, which was to be purchased. As it was not unreasonable to expect that a person, crossing the Atlantic in this character, would have some discretionary power to change instructions with a change in circumstances, so as to be enabled to adapt his conduct to those circumstances, ready faith would be given to all expressions which would convey this idea; and if no such power was intended, no expressions ought to have been used, which could excite and cherish the idea. \nThe rules stated to Mr. Barry, as those by which his conduct would be governed, are declared to relate to the  part he was expected to take in the \"expedicion,\" which the court translate transportation, or conveyance of the tobacco to Europe. One of these being, that the tobacco was to be shipped in his own name, it follows that this part of the subject was included in the Spanish term \"expedicion.\" All these rules conclude with a reference to verbal communications, to be made by the agent himself,  who is expressly declared to go to the United States for the sole purpose of attending to this very part of the transaction, \"va solo para presenciar la expedicion.\" This reference to the verbal communications of Menendez, unqualified by any restriction whatever, is a declaration of complete confidence, placed at least in his veracity, by the plaintiffs, and is a full authority given by them to Barry, to credit the representations which he should make. How else is it to be understood? What right could Barry have to say to those who had referred him to the verbal communications which their agent should make to him on a particular subject, that he did not believe those communications? \nIt is argued, that although no limitation is expressed to the credit which Barry was to give to the representations of Menendez, yet it must be necessarily understood, that he could not change those things which were expressly directed; that the verbal communications referred to, were to be conformable to, not subversive of, the written instructions; that on the idea of a power to alter the written instructions, it was useless to give them, and was only  necessary to send out Menendez with  a full authority to govern the whole transaction. \nBut in the course of human affairs, it is not unusual for a principal to give, in detail, his ideas of the line of conduct to be observed by his agent, and yet to allow a departure from that line of conduct, under particular circumstances. \nIt would not have been extraordinary, had these rules, for the conduct of Barry, been followed by a declaration, that in a total change of circumstances, as in the event of America's becoming a belligerent, he was to ship the tobacco, not as American, but as neutral property. Had Barry been the sole agent, this right to exercise his discretion, if intended to be placed in him, would have  been mentioned in his letter. But Barry was neither the sole nor the principal agent. He was known to the plaintiffs only by recommendation, and while he was employed, because an American merchant could make the proposed purchases to greater advantage, and because an American name was required to cover the property. Menendez was the confidential agent, known to and trusted by the plaintiffs, who brought with him the order for the purchases, and came on purpose to attend to the conveyance of the tobacco  to Europe. In the instructions to Menendez, therefore, would any discretion relative to the transportation of the tobacco be found, and it was enough that Barry was referred to his verbal communications. \nThe words which follow the reference to the verbal communications of Menendez, though not those which decide the opinion of the court, are not absolutely unimportant: they are, \"and you will, upon the whole, act for the advantage of the parties interested.\" To what do these words, \"upon the whole,\" refer? Unquestionably to the verbal communications as well as to the written instructions. They were both to regulate the conduct of the defendant. The caution which follows these words, is understood by the counsel for the plaintiffs, to limit their extent, and to direct, that in acting for the advantage of the interested, he was yet to keep secret, that the tobacco belonged to foreigners. \nThere is, unquestionably, great force in this observation: and if the justification of Barry rested solely on the power given him in this clause, to act for the best, it would be doubtful how far it would avail him. The court, however, considers those words principally applying to the purchases,  and as indicative of an expectation that a state of things would remain, in which the tobacco was to retain the character of American property, rather than as limiting the powers of Menendez over this part of the subject, in the event of such a revolution as would make America a belligerent. The court forbears to make a critical examination of the words, because its opinion is formed on the character in which Menendez came to America, as stated in the letter introducing him to Barry. That letter warranted the belief that he was the principal  and confidential agent of the plaintiffs; that he had particular instructions for the government of his conduct, and that Barry was to receive and trust his verbal communications, especially on the subject of expediting the tobacco to Spain. It is impossible to read the letters from Menendez to Barry, which form a part of the bill of exceptions, without feeling a conviction that this was the understanding of the parties. He approves the conduct of the defendant, in the stile of a man whose approbation gave a sanction to it, and when he directs the shipments to be made in the name of Charles Longhy, of Genoa, he says, \"if you act  conformably to what I have here mentioned, as to further shipments, I, from this moment, approve thereof, and that it may appear, and to save you from any accident that may occur, as also, that such has been with my knowledge and approbation, you are to keep this letter in your possession, in order, that at no time whatever, you should be chargeable with the consequences.\" Such was the opinion which the confidential agent of the plaintiffs, in possession of their private instructions, entertained of his own powers. \nHe was not mistaken in their extent; at least, the defendant had no right to believe him mistaken. On his arrival, he declared to Barry, that he was in possession of private instructions, distinct from those which were contained in the letter of the 27th of January. He produced those instructions. The chief clerk of Barry read so much of them as related to vessels, and they did not require that the shipments should be made in American, but in neutral vessels; and in the letter of Menendez to the chief clerk, dated on the 14th June, and accompanying that of the same date, addressed to the defendant, directing him to ship the tobacco as the property of Charles Longhy,  of Genoa, he says, referring to a copy of his private instructions, \"you will see that I am expressly ordered to make the shipments in neutral vessels, and that the property shall appear as that of a neutral subject.\" What right had he to suspect that the confidential agent of the plaintiffs, to whose verbal communications they referred him, had forged instructions which he produced as those of his principals? \nThe counsel for the plaintiffs, question the existence of these private instructions, and demand their production.  But how were they to be authenticated? Only by Menendez himself. Are not then their contents to be proved by the declarations of Menendez, by his stating them, and by the chief clerk of Barry, who read a part of them? \nTo the court, it appears, that in such a case as this, the proof respecting them is as ample and satisfactory as ought to be required. \nAfter taking this extensive view of the case, of the powers of Menendez, and of the confidence the defendant was bound to repose in him, it only remains briefly to observe, that the directions he gave were not such as to awaken suspicion. \nOn the 14th June, 1798, when these instructions were given,  America had ceased to be a neutral power. War, it is true, was not formally declared, but it had commenced in fact, and hostilities were authorised by that department of the government which is invested with the power of making war. In such a state of things, the course which prudence would have dictated to the plaintiffs, had they been themselves in the United States, certainly was to cover the tobacco as neutral, not as American property, and when their agent, possessing private  instructions, directed the property to be shipped as neutral, not as American, the defendant would have been culpable in thwarting him. \nIt is scarcely necessary to add, that Menendez stated himself to be, and probably was, something more than an agent. He declared himself to be interested in the cargoes. This declaration, under all the circumstances of the case, was not to be discredited. Upon that, however, the judgment of the court is not founded. The letter of the 27th January, represented him as the principal and confidential agent of the plaintiffs, whose verbal communications were to be trusted. He declared himself to possess particular instructions respecting a transaction which  he came to superintend, and under those instructions he gave orders which the defendant has obeyed. The court is of opinion, that in so doing, the defendant is justifiable, and no error has been committed in the court below, in so instructing the jury. \n Upon the other part of the exceptions, the price given for the tobacco, it is unnecessary to say more, than that there is no error in the opinion of the court. \nAffirmed. \n \n\n ", " \nOpinion \n\n \n \n   MARSHALL, Ch. J. delivered the opinion of the court to the following effect: \nThis case comes up on two bills of exceptions. \n1st. As to the notice of taking the deposition; and, \n2d. As to its applicability. \n1. As to the notice. There are two modes of taking depositions under the act of Congress. By the first, notice in certain cases is not necessary, but the forms prescribed must be strictly pursued. This deposition is not taken under that part of the act. By a subsequent part of the section, depositions may be taken by dedimus potestatem, according to common usage. The laws of Virginia, therefore, are to be referred to on the subject of notice. Those laws do not authorise notice to an attorney at law. The word attorney, in the act of assembly, means attorney in fact. An attorney at law is not compellable to receive notice; but he may consent to receive, or he may waive it, and shall not afterwards be permitted to object the want of it. But this deposition was not taken agreeably to the notice received. The commissioners did not adjourn from day to day, but passed over the intermediate time between the 12th and the 19th of August. \nThis circumstance, however,  is not, by the court, deemed fatal, under the particular circumstances of this case, though without those circumstances it might, perhaps, be so considered. The agreement, that the deposition might be taken, whether the attorney were present or absent; his subsequent examination of the deposition, without objecting to the want of notice, and the death of the witness, were sufficient grounds for the defendant to believe, that the objection would be waived. \n2. The objection to the competency of McLain, is totally unfounded, as it does not appear, upon the record,  that he was the guardian; and especially, the defendant became of full age, before the trial. \n3. The objection to the applicability of the deposition, is also void of foundation. For, although it was not conclusive evidence, it was still admissible. \nThe court is, therefore, of opinion, that there is no error in the judgment below. \nJudgment affirmed. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. delivered the opinion of the court. \nIn this case each party has appealed from the sentence of the circuit court. Maley complains of that sentence because it subjects him to damages and costs for the value of the Mercator and her cargo, first captured by him, and afterwards taken out of his possession by a British privateer, and because, also, some items are admitted into the account, taken for the purpose of ascertaining the sum, for which he is liable, which ought to be excluded from it. Shattuck complains of the sentence because he was not allowed by the circuit court, all the items contained in the report, to the whole of which, he thinks himself entitled. \n In discussing the right of Shattuck to compensation for the Mercator  and her cargo, the first question which presents itself is, was that vessel and cargo really his property? \nWithout reciting the various documents filed in the cause, it will be admitted that they demonstrate the affirmative of this question, unless the court be precluded from looking into them by the sentence in Jamaica, condemning the ship and cargo as lawful prize. \nOn the conclusiveness of the sentence of a foreign court of admiralty, it is not intended now to decide. -- For the present, therefore, such sentence will be considered as conclusive, to the same extent which is allowed to it in the courts of Great Britain. But, in those courts, it has never been supposed to evidence more than its own correctness; it has consequently never been supposed to establish any particular fact, without which the sentence may have been rightly pronounced. If then, in the present case, the Mercator, with her cargo, may have been condemned as prize, although in fact they were both known to be the property of a neutral, the sentence of condemnation does not negative the averment that they both belonged to Jared Shattuck. \nIt is well known that a vessel libelled as enemy's property is condemned  as prize, if she act in such manner as to forfeit the protection to which she is entitled by her neutral character.  If, for example, a search be resisted, or an attempt be made to enter a blockaded port, the laws of war, as exercised by belligerents, authorise a condemnation as enemy's property, however clearly it may be proved that the vessel is, in truth, the vessel of a friend. Of consequence, this sentence, being only conclusive as to its own correctness, leaves the fact of real title open to investigation. This positive impediment to inquiry being removed, no doubt upon the subject can be entertained. \nIt being proved that the Mercator and her cargo belonged to Jared Shattuck, who, though born in the United States, had removed to the island of St. Thomas,  and had acquired all the commercial rights of his domicil before the occurrence of those circumstances which occasioned the acts of congress, under which this seizure is alleged to have been made, the case of the Charming Betsey determines that the vessel and cargo were not liable to forfeiture under those acts. \nIt remains, then, to inquire whether the Mercator appeared under such circumstances of  suspicion as to justify her seizure. \nOn this point, too, the authority of the Charming Betsey appears to be decisive. In each case the vessel was built in America, and had been recently sold to a person born in the United States, who had become a Danish burgher before the rupture between this country and France; and both cases present the same circumstances of suspicion, derived from the practice of the island to cover American as Danish property. -- The points of dissimilitude are, that in the Charming Betsey the captain and crew were of a description to give greater suspicion than the captain and crew of the Mercator; and in the Charming Betsey was found a proces verbal, which stated facts unfavourable to that vessel, whereas no similar paper was found in the Mercator. The only circumstance of suspicion attending the Mercator, which did not belong to the Charming Betsey, is that she was bound to Port-au-Prince, and was taken entering the port of Jacmel. This circumstance appears to be sufficiently accounted for, but if it was not, the court can perceive in it no evidence of her being American property which can weigh against the testimony offered by the papers that she was Danish.  The documents on this point which were thought decisive in the case of the Charming Betsey, exist in this case also. The information of the captain, uncontradicted by any of his crew, in this case, as in that, is corroborated and confirmed by the documents on board the vessel. \nThe only paper, the absence of which could be important, was an authenticated burgher's brief proving the captain to have been a Danish subject. How far  the absence of this paper might have justified a suspicion in a belligerent that she was enemy-property, so as to excuse from damages for capture and detention, according to the usages of belligerents, the court will not undertake to determine; but it was a casualty which is not sufficient to justify a suspicion that the vessel was American. The burgher's brief is stated to have been in possession of the captain; but is supposed not to have been produced, and consequently it could have no influence on lieutenant Maley. However this may be, no inquiry respecting it was made, and he does not appear to have suggested any difficulty on that ground. \nUnquestionably lieutenant Maley had a right to stop and to search the Mercator, and to exercise his  judgment on the propriety of detaining her; but, in the exercise of that judgment, he appears to have come to a decision not warranted by the testimony presented to him.The circumstances of suspicion arising in the case, were not sufficiently strong to justify the seizure which was made. \nBut it is obvious, that lieutenant Maley suspected the Mercator to be a French, not an American vessel. \nIn his answer he says, that he mistook the captain for a Frenchman; in his letter of instructions, he speaks of the vessel as a prize; and in the protest of the American prize-master, she is denominated \"a French prize.\" From these circumstances combined, it is supposed to be sufficiently apparent, that the mistake committed by lieutenant Maley, was in supposing the Mercator to be a French vessel liable to capture under the laws of the United States. \nThe argument of the attorney general, that lieutenant Maley is not liable for this loss, because it was produced by a superior force, which it was not in his power to resist, would have great weight, if the circumstances under which the Mercator appeared had been such as to justify her seizure. But the court is not of that opinion, and consequently  that argument loses its application to this case. \n Neither is it conceived that the failure of Shattuck to appeal in time, destroys his claim on lieutenant Maley.He had certainly a right to abandon if he chose to do so, and to resort to the captor for damages. \nIn the opinion given in the circuit court, that the libellant was entitled to compensation for the Mercator and her cargo, this court can perceive no error: but in so much of the report of the commissioners appointed to adjust the account as is affirmed, some unimportant inaccuracies appear. \nIn its circumstances, this case so strongly resembles that of the Charming Betsey, that the court will be governed by the rule there laid down. In pursuance of that rule, the rejection of the premium for insurance, that premium not having been paid, is approved; but the rejection of the claim for outfits of the vessel, and the necessary advance to the crew is disapproved. -- Although the general terms used in the case of the Charming Betsey would seem to exclude this item from the account, yet the particular question was not under the consideration of the court, and it is conceived to stand on the same principles with the premium  of insurance if actually paid, which was expressly allowed. But this claim is nearly balanced by two items in the account which were admitted, as this court thinks, improperly. \nOne is the charge of 540 dollars for the expense of soliciting compensation from the United States. The court can perceive no reason for charging this expense to lieutenant Maley. \nThe other is the charge of 326 dollars and twelve cents, the account of Ross and Hall, for expenses in England. \n Had the appeal been prosecuted in time by Shattuck, it is scarcely possible to doubt, but that the sentence of the court, in Jamaica, would have been reversed, in which case it would have been reasonable, that the expense of the prosecution should have been paid by Lieutenant Maley. But as it was not prosecuted in time, in consequence of which, the proceeds of the vessel and  cargo were lost, it is not conceived, that lieutenant Maley ought to be charged with the costs of a subsequent inoffectual attempt, not made at his instance, to repair the original neglect. \nWhat may be the claim of Shattuck, on the government of the United States, for this sum, is not for this court to inquire; but his claim  against lieutenant Maley is not admitted. \nThis court affirms so much of the sentence of the circuit court, as awards compensation for the Mercator and her cargo, to the libellant, and approves of the sentence on the report of the commissioners, except as to that part which rejects the claim for advances for the outfits of the vessel, and the wages of the crew, and which admits the charges of 540 dollars, on account of the expenses attending the application to the government of the United States, and of 326 dollars and twelve cents, on account of expenses attendant on the ineffectual attempt which was made to prosecute an appeal in England. In these respects, the account is to be reformed, for which purpose, so much of the sentence of the circuit court, as respects this part of the subject, is reversed, and the case is remanded to the circuit court to be further proceeded in, as to justice shall appertain. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. There is some obscurity in the act of congress, and some doubts were entertained by the court as to the construction of the constitution. The court, however, in favour of liberty, was willing to grant the habeas corpus. But the case of the United States v. Hamilton, 3 Dal. 17, is decisive. It was there determined that this court could grant a habeas corpus; therefore, let the writ issue, returnable immediately, together with a certiorari, as prayed. \nUpon the return of the habeas corbus, and certiorari, it appeared, that on the 28th of December, 1805, Burford was committed to the jail of Alexandria county, by a warrant under the hands and seals of Jonah Thompson, and ten other justices of the peace for that county; which warrant was in the following words: \nAlexandria County, ss. \nWhereas John A. Burford, of the county aforesaid, shopkeeper, has been brought before a meeting of many of the justices of the peace for the said county, and by them was required to find sufficient sureties to be bound  with him in a recognizance, himself in the sum of four thousand dollars, and securities for the like  sum, for his good behaviour towards the citizens of the United States, and their property; and whereas the said John A. Burford hath failed or refused to find such sureties; these are therefore in the name of the United States, to command you the said constables, forthwith to convey the said John A. Burford to the common jail of the said county, and to deliver him to the keeper thereof, together with this precept; and we do, in the name of the said United States, hereby command you, the said keeper, to receive the said John A. Burford into your custody, in the said jail, and him there safely keep, until he shall find such sureties as aforesaid, or be otherwise discharged by due course of law. Given under our hands and seals, this 28th day of December, 1805. \nTo any constable, and the jailor of the county of Alexandria. \nOn the 4th of January, 1806, the circuit court of the district of Columbia, sitting in the county of Washington, upon the petition of Burford, granted a habeas corpus, and upon the return, the marshal certified, in addition to the above warrant of commitment, that Burford was apprehended by warrant, under the hands and seals of Jonah Thompson, and thirteen other justices  of the county of Alexandria, a copy of which he certifies to be on file in his office, and is as follows: \n Alexandria County, ss. \nThe undersigned justices of the United States, assigned to keep the peace within the said county, to the marshal of the district, and all and singular the constables, and other officers of the said county, Greeting: \nForasmuch as we are given to understand, from the information, testimony and complaint of many credible persons, that John A. Burford, of the said county, shop-keeper, is not of good name and fame, nor of honest conversation, but an evil doer and disturber of the  peace of the United States, so that murder, homicide, strifes, discords, and other grievances and damages, amongst the citizens of the United States, concerning their bodies and property, are likely to arise thereby, Therefore, on the behalf of the United States, we command you, and every of you, that you omit not, by reason of any liberty within the county aforesaid, but that you attach, or one of you do attach, the body of the aforesaid John A. Burford, so that you have him before us, or other justices of the said county, as soon as he can be taken, to find  and offer sufficient surety and mainprize for his good behaviour towards the said United States, and the citizens thereof, according to the form of the statute in such case made and provided. \nAnd this you shall in no wise omit, on the peril that shall ensue thereon, and have you before us this precept. Given under our hands and seals, in the county aforesaid, this 21st day of December, 1805. \nThe circuit court, upon hearing, remanded the prisoner to jail, there to remain until he should enter into a recognizance for his good behaviour for one year, himself in the sum of 1,000 dollars, and sureties in the like sum. \nHiort, for the prisoner, contended, that the commitment was illegal, both under the constitution of Virginia, and that of the United States. It does not state a cause certain, supported by oath. \nBy the 10th article of the bill of rights, of Virginia, it is declared, that all warrants to seize any person whose offence is not particularly described, and supported by evidence, are grievous and oppressive, and ought not to be granted. \nBy the 6th article of the amendments to the constitution of the United States, it is declared, \"that on warrants shall issue but upon probable  cause, supported by oath or affirmation.\" \n By the 8th article it is declared, that in all criminal prosecutions, the prisoner shall enjoy the right to be informed of the nature and cause of his accusation, and to be confronted with the witnesses against him; and the 10th article declares, that excessive bail shall not be required. \nIn the present case, the marshal's return, so far as it stated the warrant upon which Burford was arrested and carried before the justices, was perfectly immaterial. He did not complain of that arrest, but of his commitment to prison. The question is, what authority has the jailor to detain him? To ascertain this, we must look to the warrant of commitment only. It is that only which can justify his detention. That warrant states no offence. It does not allege that he was convicted of any crime. It states merely that he had been brought before a meeting of many justices, who had required him to find sureties for his good behaviour. It does not charge him of their own knowledge, or suspicion, or upon the oath of any person whomsoever. \nIt does not allege that witnesses were examined in his presence, or any other matter whatever, which can  be the ground of their order to find sureties. If the charge against him was malicious, or grounded on perjury, whom could he sue for the malicious prosecution? or whom could he indict for perjury? \nThere ought to have been a conviction of his being a person of ill fame. The fact ought to have been established by testimony, and the names of the witnesses stated. Boscawen on Convictions, 7, 8, 10, 16, 110. Salk. 181. \nBut the order was oppressive, inasmuch as it required sureties in the enormous sum of 4,000 dollars, for his good behaviour for life. \nIf the prisoner had broken jail, it would have been no escape, for the marshal is not answerable, unless a cause certain be contained in the warrant, 2 Inst. 52, 53, and the reason given by Blackstone, 1 Com. 137, why  the warrant must state the cause of commitment, is, that it may be examined into upon habeas corpus. And in vol. 4, p. 256, speaking of the power of a justice to require sureties for good behaviour, he says, \"But if he commits a man for want of sureties, he must express the cause thereof with convenient certainty, and take care that such cause be a good one. Rudyard's case, 2 Vent. 22. \nSwann, on the same  side, was informed by the court, that he need not say any thing as to the original commitment by the justices, but might confine his observations to the re-commitment by the circuit court, upon the habeas corpus. \nHe observed, that the circuit court did not reverse nor annul the original proceeding by the magistrates. It only diminished the sum in which bail should be required, and limited its duration to one year. It passed no new judgment, but merely remanded the prisoner -- it heard no evidence -- it was not a proceeding de novo -- it gave no judgment -- it convicted the prisoner of no offence. He is, therefore, still detained under the authority of the warrant of the justices; and if that is defective, there is no just cause of detainer. But if the remanding by the circuit court is to be considered as a new commitment, it is still a commitment upon the old ground; and if that was illegal, the order of the circuit court has not cured its illegality. \nThe Judges of this court were unanimously of opinion, that the warrant of commitment was illegal, for want of stating some good cause certain, supported by oath. If the circuit court had proceeded de novo, perhaps it might have  made a difference. But this court is of opinion, that that court has gone only upon the proceedings before the justices. It has gone so far as to correct two of the errors committed, but the rest remain. If the prisoner is really a person of ill fame, and ought to find sureties for his good behaviour, the justices may proceed de novo, and take care that their proceedings are regular. \nThe prisoner is discharged. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. delivered the opinion of the court to the following effect: \nThis action is grounded upon a note in writing, which was certainly intended by the defendants to give a credit to M'Pherson. They are bound by every principle of moral rectitude and good faith to fuifil those expectations which they thus raised, and which induced the plaintiff to part with his property. The evidence was clear that the credit was given upon the faith of the letter. \nUnless, therefore, there is some plain and positive rule of law against it, the action ought to be supported. \nIn the case cited from Espinasse, the rule is laid down too broadly. If compared with analagous cases, it will be found to be considerably modified. \nThus, if money be delivered by A. to B. to be paid over to C. although no promise is made by B. to C. yet C. may recover the money from B. by an action of assumpsit. \nIf it be said that in such a case the law raises the assumpsit  from the facts, and if the facts do not imply  an assumpsit, no action will lay; -- it may be answered, that in the present case there is an actual assumpsit to all the world, and any person who trusts, in consequence of that promise, has a right of action. \nIt has been suggested by the counsel for the defendants, that, although an action of assumpsit will not lay, yet possibly the plaintiff might support an action for the deceit. But an action for the deceit must be grounded upon the breach of the promise. And if an action will lay in any form, the present seems to be at least as proper as any other. \nJudgement affirmed. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. \nIf the question is not involved, whether probable cause will justify the seizure and detention; if there are no facts in the pleadings which show a ground to suspect that there was no bona fide sale and transfer of the vessel, the court does not wish to hear any argument on the part of the defendant in error. \nIt considers the point as settled by the opinion given in the case of the Charming Betsey, with which opinion the court is well satisfied. \nThe law did not intend to affect the sale of vessels of the United States, or to impose  any disability on the vessel, after a bona fide sale and transfer to a foreigner. \nJudgment affirmed. \n \n\n ", " \nOpinion \n\n \n \n MARSHALL, Ch. J. delivered the opinion of the court. \nThe privateer Addition, cruising under a commission granted by the congress of these United States during the war between this country and Great Britain, captured the sloop George, brought her into port, and libelled her in the court of admiralty for the state of New-Jersey, where she was condemned as lawful prize by a sentence rendered on the 31st of October, 1778, and ordered to be sold by the marshal.From this  sentence Richard D. Jennings, the owner, prayed an appeal, which, on the 23d of December, 1780, came on to be heard before the court of appeals constituted by congress, when the sentence of the court of Jersey was reversed, and restitution of the vessel and cargo was awarded. Pending the appeal, on the 13th of November, 1778, the order of sale  was executed, and the proceeds of sale remained in possession of the marshal. It does not appear that any application was ever made to the court of New-Jersey to have execution of the decree of the court of appeals, and this suit is brought to carry it into execution, or on some other principle to recover from the estate of Joseph Carson, who was part owner of the privateer Addition, the value of the George and her cargo. \nSo far as this bill seeks to carry into effect the decree of the 23d of December, 1780, there is no doubt of the jurisdiction of the court; but the relief granted can only be commensurate with that decree. It is therefore all essential to the merits of this cause to inquire how far Joseph Carson, the testator of the defendants, was bound by the sentence which this court is asked to carry into effect. \nThe words  under which the plaintiffs claim are those which direct the restoration of the George and her cargo. As the captors are not ordered by name to effect this restoration, and as the order bound those in possession of the subject on which it must be construed to operate, it must be considered as affecting those who could obey it, not those who were not in possession of the thing to be restored, had no power over it, and were, consequently, unable to redeliver it. Had Richard D. Jennings appeared before the court of New-Jersey with this decree in his hand, and demanded its execution, the process of that court would have been directed to those who possessed the thing to be restored, not to those who held no power, over it, either in point of fact or law. \nThis position appears too plain to require the aid of precedent, but if such aid should be looked for, the case of Doane v. Penhallow unquestionably affords it. In that case a decree of reversal and restitution was satisfied by directing the proceeds of the sales to be paid; and even the judge who tried the cause at the circuit concurred with his brethren in reversing his own judgment, so far as it had decreed joint damages, and had  thereby rendered the defendant liable for more than he had received. The case of Doane v. Penhallow, therefore, which must be considered as expounding the decree  of the court of appeals now under consideration, has decided that Joseph Carson was bound to effect restitution by that decree so far only as he was, either in law or in fact, possessed of the George and her cargo, or of the proceeds. \nTo this point, therefore, the inquiries of the court will be directed. \nIn prosecuting them it will be necessary to ascertain whether, \n1st. The George and her cargo were, previous to the sentence, in the custody of the law, or of the captors. \n2d. Whether the court of admiralty, after an appeal from their sentence, possessed the power to sell the vessel and cargo, and to hold the proceeds for the benefit of those having the right. \nIt appears that the court of New-Jersey, which condemned and George and her cargo as prize, was established in pursuance of the recommendation of congress, and that no legislative act had prescribed its practice or defined its powers. The act produced in court was passed at a subsequent period, and consequently cannot govern the case. But the court  cannot admit the correctness of the argument drawn from this act by the counsel for the plaintiffs in error. It cannot be admitted that an act defining the powers and regulating the practice of a pre-existing court, contains provisions altogether new. The reverse of this proposition is generally true. Such an act may rather be expected to be confirmatory of the practice and of the powers really exercised. \nSince we find a court instituted and proceeding to act as a court, without a law defining its practice or its powers, we must suppose it to have exercised its powers in such mode as is employed by other courts instituted for the object, and as is consonant to the general principles on which it must act. \nThat by the practice of courts of admiralty a vessel when libelled is placed under the absolute controul of the  court, is not controverted; but the plaintiffs contend that this power over the subject is not inherent in a court of admiralty, but is given by statute, and in support of this opinion the prize acts of Great Britain have been referred to, which unquestionably contain regulations on this point. But the court is not of opinion that those acts confer entirely  new powers on the courts whose practice they regulate. In Browne's Civil and Admiralty Law, in his chapter on the jurisdiction of the prize courts, it is expressly stated that those courts exercised their jurisdiction anterior to the prize acts, and the same opinion is expressed by Lord Mansfield, in the case of Lindo v. Rodney, which is cited by Browne. The prize acts, therefore, most probably regulated pre-existing powers in the manner best adapted to the actual circumstances of the time. \nIt is conceived that the constitution and character of a court of admiralty, and the object it is to effect, will throw much light on this subject. \nThe proceedings of that court are in rem, and their sentences act on the thing itself. They decide who has the right, and they order its delivery to the party having the right. The libellant and the claimant are both actors. They both demand from the court the thing in contest. It would be repugnant to the principles of justice and to the practice of courts to leave the thing in possession of either of the parties, without security, while the contest is depending. If the practice of a court of admiralty should not place the thing in the custody  of its officers, it would be essential to justice that security should be demanded of the libellant to have it forthcoming to answer the order of the court. \nIf the captor should fail to libel the captured vessel, it has been truly stated in argument that the owner may claim her in the court of admiralty. How excessively defective would be the practice of that court, if, on receiving such a claim, it neither took possession of the vessel, nor required security that its sentence should be performed. Between the rights of a claimant where a libel is filed and where it is not filed, no distinction is perceived,  and the court conceives the necessary result of proceedings in rem to be that the thing in litigation must be placed in the custody of the law, and cannot be delivered to either party but on sufficient security. \nIN conformity with this opinion is the practice of the court of admiralty, not only when sitting for the trial of prizes, and acting in conformity with the directions of positive law, but when sitting as an instance court, and conforming to the original principles of a court of admiralty. In his chapter \"on the practice of the instance court,\" under the title  of \"proceedings, in rem,\" p. 397. Browne states explicitly, that when the proceeding is against a ship, the process commences with a warrant directing the arrest of the ship. In Browne, 405. the course of proceedings against a ship, not for a debt, but to obtain possession, is stated at length, and in that case too the court takes possession of the ship. \nIt must be supposed that a court of admiralty, having prize jurisdiction, and consequently proceeding in rem, and not having its practice precisely regulated by law, would conform to those principles which usually govern courts proceeding in rem, and which seem necessarily to belong to the proper exercise of their functions. If in proceeding against a ship to subject her to the payment of a debt, or to acquire the possession of her on account of title, the regular course is that the court takes the vessel into custody and holds her for the party having right, the conclusion seems irresistible, that in proceeding against a ship to condemn her as prize to the captor, or to restore her to the owner who has been ousted of his possession, the court will also take the vessel into custody, and hold her for the party having the right. \n This reasoning is illustrated, and its correctness in a great measure confirmed, by the legislation of the United States, and the judicial proceedings of our own country. By the judicial act the district courts are also courts of admiralty, and no law has regulated their practice. Yet they proceed according to the general rules of the admiralty, and a vessel libelled is always in possession of the law. \n An objection, however, to the application of this reasoning to the case before the court is drawn from the defectiveness of the record in the original cause, which does not exhibit a warrant to the officer to arrest the George.The first step which appears to have been taken by the court is an order to the marshal to summon a jury for the trial of the case. \nThe carelessness with which the papers of a court created for the purposes of the war, and which ceased to exist before the institution of this suit, have been kept, may perhaps account for this circumstance. At any rate the court of admiralty must be presumed to have done its duty, and to have been in possession of the thing in contest, if its duty required that possession. The proceedings furnish reasons for considering  this as the fact. \nThe libel does not state the George to have remained in possession of the captors, that the sale was made for them, or by their means, nor that the proceeds came to their hands. The answer of the defendants avers that on bringing the George into port, she was delivered up with all her pepers to the court of admiralty, and, although the answer is not testimony in this respect, yet the nature of the transaction furnishes ample reason to believe that this was the fact; and it is the duty of the plaintiff to show that the defendants are in a situation to be liable to his claim. If the process of the court of admiralty does not appear regular, this court, not sitting to reverse or affirm their judgment, but to carry a decree of reversal and restoration into effect, must suppose the property to be in the hands of those in whom the law places it, unless the contrary appears. The George and her cargo, therefore, must be considered as being in custody of the law, unless the contrary appears. \nIf this conclusion be right, it follows that the regularity of the sale is a question of no importance to the defendants, since that sale was the act of a court having legal possession  of the thing, and acting on its own authority. \n If the reasoning be incorrect, it then becomes necessary to inquire, \n2d. Whether the court of New-Jersey, after an appeal from its sentence, possessed the power of selling the George and her cargo, and holding the proceeds for the party having the right. \nThe the British courts possess this power is admitted, but the plaintiffs contend that it is conferred by statute, and is not incident to a prize court. \nThe the power exists while the cause is depending in court seems not to be denied, and indeed may be proved by the same authority and the same train of reasoning which has already been used to show the right to take possession of the thing whenever proceedings are in rem. Browne, in his chapter on the practice of the instance court, shows its regular course to be to decree a sale where the goods are in a perishable condition. \nThe plaintiffs allege that this power to decree a sale is founded on the possession of the cause, but the court can perceive no ground for such an opinion. It is supported by no principle of analogy, and is repugnant to the reason and nature of the thing. \nIn cases only where the subject itself is  in possession of the court, is the order of sale made. If it be delivered on security to either party, an order of sale pending the cause is unheard of in admiralty proceedings. The motive assigned for the order never is that the court is in possession of the cause, but that the property in possession of the court is in a perishable state. A right to order a sale is for the benefit of all parties, not because the case is depending in that particular court, but because the thing may perish while in its custody, and while neither party can enjoy its use. \nIf then the principle on which the power of the court to order a sale depends, is not that the cause is depending in court, but that perishable property is in its possession, this principle exists in as much force after as before an appeal. The property does not follow the appeal into the superior  court. It still remains in custody of the officer of that court in which it was libelled. The case of its preservation is not altered by the appeal. The duty to preserve it is still the same, and it would seem reasonable that the power consequent on that duty would be also retained. \nOn the principles of reason, therefore,  the court is satisfied that the tribunal whose officer retains possession of the thing retains the power of selling it when in a perishing condition, although the cause may be carried by appeal to a superior court. This opinion is not unsupported by authority. \nIn his chapter on the practice of the instance court, page 405. Browne says, \" If the ship or goods are in a state of decay, or of a perishable nature, the court is used, during the pendency of a suit, or sometimes after sentence, notwithstanding an appeal, to issue a commission of appraisement and sale, the money to be lodged with the registrar of the court, in usum jus habentis.\" \nThis practice does not appear to be established by statute, but to be incident to the jurisdiction of the court, and to grow out of the principles which form its law. A prize court not regulated by particular statute would proceed on the same principles -- at least there is the same reason for it. \nBut there is in this case no distinct order of sale. The order is a part of the sentence from which an appeal was prayed, and is therefore said to be suspended with the residue of that sentence. \nThe proceedings of the court of admiralty, if they are  all before this court, were certainly very irregular, and much of the difficulty of this case arises from that cause; but as this case stands, it would seem entirely unjust to decree the defendant to pay a heavy sum of money, because the court of admiralty has done irregularly that which it had an unquestionable right to do. \nSince the court of admiralty possessed the power of making a distinct order of sale immediately after the appeal was entered, and this, but for the depreciation, would  have been desirable by all, it is not unreasonable to suppose the practice to have been to consider the appeal as made from the condemnation, and not from the order of sale. The manner in which this appeal was entered affords some countenance to this opinion. In the recital of the matter appealed from, the condemnation alone, not the order of sale, is stated. \nThe court will not consider this irregularity of the admiralty, in ordering what was within its power, as charging the owners of the privateer, under the decree of the 23d of December, 1780, with the amount of the sales of the George and her cargo, which in point of fact never came to their hands, and over which they never possessed  a legal controul, for the marshal states himself to hold the net proceeds to the credit of the former owners. \nIt is therefore the unanimous opinion of this court that the decree of the 23d of December, 1780, does not require that the restoration and redelivery which it orders should be effected by the captors, but by those who in point of law and fact were in possession either of the George and her cargo, or of the money for which they were sold. As the officer of the court of New-Jersey, not the captors, held this possession, the decree operates upon him, not upon them. \nOn that part of the libel in this case which may be considered as supplemental, nd as asking relief in addition to that which was given by the decree of the 23d of December, 1780, the court deems it necessary to make but a very few observations. \nThe whole argument in favour of this part of the claim is founded on the idea that the captors were wrong doers, and are responsible for all the loss which has been produced by their tortious act. The sentence of reversal and restoration is considered by the plaintiffs as conclusive evidence that they were wrong doers. \nBut the court can by no means assent to this principle.A  belligerent cruizer who with probable cause seizes a neutral and takes her into port for adjudication,  and proceeds regularly, is not a wrong doer. The act is not tortious. The order of restoration proves that the property was neutral, not that is was taken without proable cause.Indeed, the decree of the court of appeals is in this respect in favour of the captors, since it does not award damages for the capture and detention, nor give dosts in the suit below. \nIf we pass by the decree, and examine the testimony on which it was founded, we cannot hesitate to admit that there was justifiable cause to seize and libel the vessel. \nUpon the whole case then, the court is unanimously of opinion that the decree of the circuit court ought to be affirmed. \nSentence affirmed. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. delivered the opinion of the court as follows. \nThe Manhattan, a neutral ship, while prosecuting the voyage insured, was captured by a belligerent cruiser, the second mate and twenty-one of the hands were taken out, and two British officers and fifteen seamen put on board, and she was ordered into a British port. The mate soon afterwards arrived in the United States in another vessel.On the 26th of February, 1805, he gave information of these facts to the owner of the Manhattan, who on the 28th of the same month communicated it to the insurers, and offered to abandon to them. On the 2d of April payment of the freight was demanded and refused. The Manhattan was carried into Bermudas, and libelled as prize of war. On the 20th of April in the same year, both vessel and cargo were acquitted. From this sentence, so far as respected the cargo only, an appeal was prayed, which does not appear to have been decided. The cargo was delivered to the owners on their giving  security, and on the 8th of July the vessel and cargo arrived at the port of destination. The underwriters having refused to give counter security, this action was brought on the 6th of June, after the vessel was liberated, and before her arrival at the port of destination. The policy is on the freight. \nThe question referred to this court is, whether the facts stated entitle the insured to recover against the underwriters for a total loss. \nIn examining this question, the material points to be determined are, \n1st. Had the insured a right to abandon when the offer was made? \n2dly. Have any circumstances since occurred which affect this right? \nThese are important questions to the commercial interest of the United States, and ought to be settled with, as much clearness as the case admits. \n It is universally agreed, that to constitute a right to abandon, there must have existed a total loss, occasioned by one of the perils insured against; but this total loss may be real, or legal. Where the loss is real, a controversy can only respect the fact; but the circumstances which constitute a legal, or technical loss, yet remain in many cases, open for consideration. \nIt has  been decided that a capture, by one belligerent from another, constitutes, in the technical sense of the word, a total loss, and gives an immediate right to the insured to abandon to the insurers, although the vessel may aftereards be recaptured and restored. \nIt has also been decided, that an embargo or detention by a foreign friendly power, constitutes a total loss, and warrants an immediate abandonment. But the capture, or taking at sea of a neutral vessel by a belligerent, is a case on which the courts of England, do not appear to have expressly decided, and which must depend on general principles, on analogy, and on a reasonable construction of the contract between the parties. \nA capture by an enemy is a total loss, although the property be not changed, because the taking is with an intent to deprive the owner of it, and because the hope of recovery is too small, and too remote to suspend the right of the insured, in expectation of that event. \nIf a neutral ship be captured as enemy-property, the taking is unquestionably with a design to deprive the owner of it; and the hope of recovery is in many cases remote, since it may often depend on an appellate court; and though not  equally improbable as in the case of capture by an enemy, is not so certain as is stated in argument by the counsel for the defendants. \nThe distinction between a capture by an enemy and by a belligerent not an enemy, has not been taken in the cases adjudged in England, so far as those cases have been laid before the court, and the best general writers seem to arrange them in the same class. 2 Marshall, 422. 435. \n It has been also determined, that a total loss existed in the case of an embargo, or the detention of a foreign prince. \nIn one case cited at the bar, (Saloucci v. Johnson,) the court of king's bench determined that an illegal arrest at sea amounted to a detention by a foreign prince, and although that case has since been overruled in England, so far as it decided that to resist a search did not justify a seizure, yet the principle that an arrest at sea was to be resolved into a detention by a foreign power, has not been denied. Marshall, (435.) after noticing the contrary decisions respecting the right of a neutral to resist a search, adds, \"yet the above case of Saloucci v. Johnson may nevertheless, I conceive, be considered as an authority to prove, that if  a neutral ship be unlawfully arrested and detained by a belligerent cruiser, for any pretended offence against the law of nations, this would be a detention of princes.\" \nThat a detention of a foreign power by embargo, or otherwise, warrants an abandonment, is well settled. 2 Marshall, 483. \nThe opinion given by the court of king's bench in the case of Soloucci v. Johnson, goes no further than to establish that an unlawful arrest at sea is to be considered as the detention of a foreign prince. Whether the arrest can only be considered as unlawful when the cause alleged, if true, is not in itself sufficient to justify a seizure, or when, if true, it would be sufficient, but is in reality contrary to the fact, is not stated. In point of reason, however, it would seem that when an arrest is made at sea by a person acting under the authority of a prince, the detention is as much the detention of princes in the one case as in the other. \nIn the case of an embargo, the detention is lawful. The right of any power to lay an embargo has not been questioned. Yet it is universally admitted, that an embargo constitutes a detention which amounts, at the time, to a total loss, and warrants  an abandonment. \n In what consists the difference between a detention occasioned by an embargo,  and a detention occasioned by an arrest at sea of a neutral by a belligerent power? \nAn cmbargo is not laid with a view to deprive the owner of his property, but the arrest is made with that view. In the first case, therefore, the property detained is not in hazard; in the last, it always is in hazard. So far the claim to abandon on an arrest is supported by stronger reason than the claim to abandon when detained by an embargo. \nBut it is argued that the duration of an embargo has no definite limitation, while a neutral vessel may count on being instantly discharged. Such is the rapidity of proceeding in a court of admiralty, that its mandate of restoration is figuratively said to be \"borne on the wings of the wind.\" \nCommercial contracts have but little connection with figurative language, and are seldom rightly expounded by a course of artificial reasoning. Merchants generally regard the fact itself; and if the fact be attended to, an embargo seldom continues as long as the trial of a prize cause, where an appeal is interposed. The history of modern Europe, it  is believed, does not furnish an instance of an embargo of equal duration with the question whether the cargo of the Manhattan be or be not lawful prize. The reasoning of the books in the case of a capture by an enemy, and of an embargo, applies in terms, but certainly in reason, to an arrest by a belligerent, not an enemv. 2 Marshall, 483. \nThe reasoning of the English judges in all the cases which have been read at bar, and their decisions on the question of abandonment, have received the attention of the court. To go through those cases would protract this opinion to a length unnecessarily tedious. With respect to them, therefore, it will only be observed, that the principles laid down appear to be applicable to an arrest as well as to a capture, or detention of foreign powers; and that a distinction between an arrest and such capture or detention, has never been taken. \n The contract of insurance is said to be a contract of indemnity, and therefore (it is urged by the underwriters, and has been repeatedly urged by them) the assured can only recover according to the damage he has sustained. This is true, and has uniformly been admitted. But if full compensation could  only be demanded where there was an actual total loss, an abandonment could only take place where there was nothing to abandon. \nThere are situations in which the delay of the voyage, the deprivation of the right to conduct it, produce inconveniences to the insured, for the calculation of which the law affords and can afford no standard. In such cases there is, for the time, a total loss: and in this state of things the insured may abandon to the underwriter, who stands in his place, and to whom justice is done, by enabling him to receive all that the insured might receive. A capture by an enemy and an embargo by a foreign power are admitted to be within this rule, and a complete arrest by a belligerent not an enemy, seems, in reason, to be equally within it. \nIt is, therefore, the unanimous opinion of the court, that where, as in this case, there is a complete taking at sea by a belligerent, who has taken full possession of the vessel as prize, and continues that possession to the time of the abandonment, there exists, in point of law, a total loss, and the act of abandonment vests the right to the thing abandoned in the underwriters, and the amount of insurance in the assured. \n 2. Have any circumstances occurred since the abandonment, which have converted this total into a partial loss? \nWithout reviewing the conduct of the assured subsequent to that period, it will be sufficient to observe that he has performed no act which can be construed into a rlinquishment of the right which was vested in him by the offer to abandon. \nIt only remains, then, to inquire whether the release and return of the Manhattan deprives the assured of  the right to resort to the underwriters for a total loss, which was given by the abandonment. \nThis point has never been decided in the courts of England. \nIn the case of Hamilton v. Mendez, Lord Mansfield leaves it completely undetermined, whether the state of loss at the time the abandonment is made, or at the time of action brought, or at the time of the verdict rendered, shall fix the right to recover for a partial or a total loss. \nA majority of the judges are of opinion that the state of loss at the time of the abandonment must fix the rights of the parties to recover on an action afterwards brought; and the judge who doubts respecting it, is of opinion that, in this case, counter security having been refused by  the underwriters, the question of freight is yet suspended. \nIt is to be certified to the circuit court of Pennsylvania, that in the case stated for the opinion of this court, the plaintiff is entitled to recover for a total loss. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. delivered the opinion of the court. 1 \nThe single question in this case is, whether an American registered vessel, in part transferred by parol while at sea to an American citizen, and resold  to the original owners on her return into port, before her entry, does by that operation lose her privileges as an American bottom, and become subject to foreign duties. \nThis question depends on the \"act concerning the registering and recording of ships and vessels,\" and more particularly on the 14th and 17th sections of that act. \nIn construing the 14th section, much depends on the true legislative meaning of the word \"when.\" The plaintiffs in error contend that it designates the precise time when a particular act must be performed in order to save a forfeiture; the defendants insist that it describes the occurrence which shall render that particular act necessary. That the term may be used, and, either in law or in common parlance, is frequently used in the one or the other of these senses, cannot be controverted; and, of course, the context must decide in which sense it is used in the law under consideration. \nThe particular act to the performed in order to save the forfeiture of the American character, and the privileges attached to it, is the obtaining a new register; and the first inquiry is, whether this new register must be obtained at the time of transfer, or at some other  convenient time on the event of a transfer. \nThis would seem to the court scarcely to admit of a doubt. It has been correctly argued that the precise  time to register the vessel anew cannot be prescribed by the word \"when,\" because the direction does not follow that word in the sentence so as to be limited by it with respect to time. It is not said that when a registered vessel shall be transferred or altered, she shall obtain a new register or cease to be an American vessel, but the continuity of the sentence is broken by interposing the words \"in every such case,\" thereby clearly making the forfeiture to depend on the failure to register on the event described, not on the failure to register at the precise time when the event described occurs. \nThis observation also applies to a subsequent part of the section, where the forfeiture is repeated, and depends on the failure to register, not on the failure to register at the precise time of transfer. \nBut this construction, which is the fair and natural exposition of the words themselves, is rendered still more obviously necessary by the nature of the case, and by the context. \n No man will contend that the transfer  or the change in a vessel, and the obtaining a new register, are to be simultaneous. The one must precede the other, the unless the transfer, or the repairs and alterations of the hulk or rigging are in all cases to be made in the office from which the new register is to be obtained, a reasonable interval between these acts must be allowed. This reasonable interval will depend on the nature of the case. \nWhen must a new register be obtained for a vessel which has been altered or partially transferred to a citizen while at sea? The act answers, at the time of delivering up her former certificate of registry. And when can this former certificate be delivered up? Certainly not till the return of the vessel, for the certificate is a paper necessary to the vessel, and is therefore always retained on board while at sea. \nThis construction is really so obvious and inevitable, that the endeavour to make it more clear would seem to be a total misapplication of time. \n The question, at what time the new register is to be obtained, and at what time the vessel shall be affected by the failure to obtain it, is susceptible of rather more doubt. There is no impossibility in obtaining  a new register before entry, and the necessity of doing so must depend upon the words of the act, and upon the nature of the case. \nIt is obvious that on her arrival in port the Missouri was an American vessel, and her cargo, when imported into the United States, was liable to the duties imposed on American, not on foreign bottoms. This is the clear consequence of establishing that a new register was not required before the arrival of the vessel. \nIf then the cargo when imported was liable only to the duties on goods imported in an American bottom, it would certainly require plain words to charge them, on any subsequent failure, with higher duties. \nIf the words of the section be examined, they are, as has been stated at the bar, prospective, not retrospective. They operate on future, not on past transactions. \"The vessel shall be registered anew, (otherwise she shall cease to be deemed a ship or vessel of the United States.\") That is, she shall cease after the lapse of the time when she ought to have been registered anew. But before that time had elapsed, she had as an American vessel actually imported a cargo whose liability to duties had commenced. \nSo in the subsequent clause:  \"And in every case in which a ship or vessel is hereby required to be registered anew, if she shall not be so registered anew, she shall not be entitled to any of the privileges or benefits of a ship or vessel of the United States.\" That is, her future earnings shall not be attended with the advantages annexed to American bottoms. \nThis construction derives some corroboration from the 17th section. This section provides for the oath which is to be taken by an owner on the entry of an American vessel. \"That upon the entry of every ship,\" &c. \n If upon the entry the owner shall refuse to take this oath, the vessel loses the privileges of an American bottom. If he takes it, and the oath discloses no fact which he already forfeited those privileges, she retains them. It is observable, that in order to retain them she is not required to take out a new register if an alienation has been made, and this strengthens the idea that if such an alienation be not in itself a forfeiture, a new register cannot be requisite so far as respects the voyage already concluded. \nIn the case of alienation to a foreigner, the privileges of an American bottom are ipso facto forfeited; but in the  case of an alienation to a citizen they are not forfeited until after she ought to have been registered anew, and the oath which entitles her to enter as an American bottom does not require such new register. \nBut it has been argued that the omission to execute a bill of sale in writing at the time of sale is in itself a forfeiture of the American character. \nThe words of the act are, \"And in every such case of sale or transfer,\" &c. \nThese words attach to the omission the penalty which the law annexes to it, and no other can be inflicted. This is not that the vessel shall lose her American character, but that she shall be incapable of being registered anew. The bill of sale, therefore, can only be required when the new register is to be obtained, and if it be then produced, the new register cannot be refused. \nAn opinion has already been indicated, that in the case of a transfer or alienation at sea, a new register is not necessary to protect from alien duties the vessel which arrives, and the cargo which was actually imported while the old register was in full force. But it is the opinion of the court that in the case under consideration no new register was requisite. \nThe new  register must be in every thing but its date a precise copy of the old one. The oath to be administered on the entry could be truly and fairly taken. The  names of all the persons who were at the time owners of the vessel were in the old register. The intermediate alienation and repurchase of part of the vessel had worked no forfeiture, and had created no necessity for a new register. The parties to whom the alienation had been made, not having property in the vessel at the time of entry, could not have taken the oath prescribed by law, which is in the present tense, and refers to the actual state of the property at the time of entry; nor could a new register have issued to them, in order to be delivered up for the purpose of making out another register for the original owners, who had become the present owners, without departing from the truth of the case, because the register also speaks in the present tense, and must recite the names of those who are the real owners at its date. Any new register which could have issued must have been, except in date, a duplicate of the old one, and must have been perfectly useless. Suppose the ship had been altered in a foreign port,  but before her arrival and entry had resumed the form and dimensions mentioned in her old register, would it be pretended that a new register was necessary? What would such new register be but a copy of the old one? It is believed that in such a case it would not be suspected that any forfeiture of the old register, or any necessity for a new one, was produced, and between the two cases there appears to be no difference made by the letter or the spirit of the act. \n The court is, therefore, unanimously of opinion, that the sentence of the circuit court be affirmed. \nJudgment affirmed. \n \n\n ", " \nOpinion \n\n \n \n MARSHALL, Ch. J. delivered the opinion of the court, that there was error in this, that the court below did not instruct the jury as prayed by the defendant. He observed, that the judges did not all agree upon the same grounds, some being of opinion that the bonds were void, by reason of the interlineation, and others that they were vacated by the rejection of them by the magistrate, and could not be set up again without a new delivery. \nJudgment reversed, with costs. \n \n\n ", " \nOpinion \n\n \n \n MARSHALL, Ch. J. delivered the opinion of the court. \nThis case comes up on exceptions to certain opinions given by the judges of the circuit court of Rhode-Island, at the trial of the cause before them. \nThe first exception is to the admission of Peleg Remington as a witness. \nThis exception appeared to be abandoned by the counsel in reply, and is, indeed, so perfectly untenable, that the court will only observe, that Peleg Remington does not appear to have been interested in the event of the cause in which he deposed, but certainly was not interested in the particular fact to which he was required to depose, and was therefore clearly a competent witness. \n The second exception is taken to the opinion of the court admitting as evidence  a paper purporting to be the copy of a letter written by the defendant, Carrington, to Smith & Ridgeway of Philadelphia, the correspondents of the plaintiffs, and also a letter from Smith & Ridgeway to the defendant, Carrington, purporting to be an answer to the said letter. \nTo the admission of the letter of Smith & Ridgeway, no just objection appears. The verity of that letter is acknowledged on the face of the bill of exceptions, and no cause is stated why it should not have been read to the jury. But the admission of the copy of a letter written by one of the defendants, stands upon totally different ground. \nTo introduce into a cause the copy of any paper, the truth of that copy must be established, and sufficient reasons for the non-production of the original must be shown. \nIf in this case the answer of Smith & Ridgeway had authenticated the whole letter of Carrington, the copy of that letter need not have been offered, since its whole contents would have been proved by the answer to it. If its shole contents were not proved by the answer, then the part not so proved was totally unauthenticated, and may have formed no part of the original letter. In this case, the answer  cannot have authenticated the copy, because the bill states that the defendants gave no proof of its being true. This copy, therefore, not being proved to be a true copy, ought not to have gone before the jury. Into its importance or operation, this court cannot inquire. It was improper testimony, and a verdict founded on improper testimony cannot stand. \nFor this error the judgment must be reversed, and the cause remanded to the circuit court of Rhode-Island, to be again tried. \nThe third exception is taken to the refusal of the court to give an opinion on a question stated by the counsel for the plaintiffs. The difficulty of deciding on this exception does not arise from any doubt which  ought to have been produced by the facts in the cause, but from the manner in which the question was propounded to the court. \nAfter a long and complex statement of the testimomy, the counsel for the plaintiffs requested the court to declare whether, \"if the plaintiffs had actually paid the said premium to the underwriters, before any notice of the change of the destination of the ship, they had a right, under the circumstances of the case, to recover the same of the defendant.\" \nTo  this question the court refused to give an answer. \nThere can be no doubt of the right of a party to require the opinion of the court on any point of law which is pertinent to the issue, nor that the refusal of the court to give such opinion furnshes cause for an exception; but it is equally clear that the court cannot be required to give to the jury an opinion on the truth of testimony in any case. \nHad the plaintiffs' counsel been content with the answer of the court to the question of law, he would have been entitled to that answer; but when he involved fact with law, and demanded the opinion of the court on the force and truth of the testimony, by adding the words \"under the circumstances of the case,\" the question is so qualified as to be essentially changed; and although the court might with propriety have separated the law from the fact, and have stated the legal principle, leaving the fact to the jury, there was no obligation to make this discrimination, and consequently no error was committed in refusing to answer the question propounded. \nThe record also exhibits a part of the charge given to the jury, on which the counsel for the plaintiffs have argued as if it composed  a part of the bill of exceptions. It is in these words: \"And the said court, prior to the request last mentioned, did deciare and give their opinion to said jury, that the case wholly turned upon the point whether or not the said defendants  had given due and seasonable notice of the change of the destination of said ship. That it was a question proper for the said jury to decide whether such due and seasonable notice had been given; and that if they were of opinion it had been so given, on considering the whole of the evidence, they ought not to allow the plaintiffs' said charge for said premium.\" \nThat a party has a right to except to a misdirection of the jury contained in the charge of the judge who tries the cause, is settled in this court. (Ante, vol, 2. p. 239. Church v. Hubbart.) \nThat the opinion which the record ascribes to the judge inthis case, is incorrect, unless some other part of the charge shall have so explained it as to give to the words a meaning different from that which is affixed to them taken by themselves, is the opinion of this court. \nThe judges instructed the jury, \"that the case wholly turned upon the point whether or not the defendants had  given due and seasonable notice of the change of the destination of the said ship,\" and that if they were of opinion that due and seasonable notice had been given, they ought to find against the plaintiffs, on the question of their right to recover the premium advanced by them for the defendants. \nDue and seasonable notice, must have been given as soom after the destination of the vessel was changed, as it would have been given, whether the premium had or had not been advanced by the plaintiffs before they received it; or this direction must have left it to the jury to determine whether notice was or was not due and seasonable, although it might not have been received by the plaintiffs before they had actually advanced for the defendants the sum in contest. \nOn the first exposition, these words would amount to a clear misdirection of the jury; because, if the plaintiffs had paid to the underwriters, at the request of the defendants, the premium of insurance, before they received notice countermanding the directions to make such payment, the right given by subsequent circumstances  to the insured to demand its return from the underwriters, could not affect the claim of the  plaintiffs on the defendants, for money fairly advanced by them for the use of the defendants. \nIf the latter construction be adopted, there was still a misdirection on the part of the court. The judge ought not to have left it expressly to the jury to decide whether notice given immediately after the change of the destination of the vessel could be due and seasonable notice, unless it was received before the premium was advanced. \nIt is, however, not material to the present cause to determine whether this exception does or does not exhibit a misdirection to the jury, since we are unanimously of opinion, that for admitting a paper purporting to be the copy of a letter from Edward Carrington to Smith & Ridgeway, to go to the jury, which was not proved to be a copy, the judgment must be reversed. \nJudgment reversed. \n \n\n ", " \nOpinion \n\n \n \n The Chief Justice stated that there had been some difference of opinion among the judges, which arose from their not understanding perfectly the facts of the case. \nIf the writ of error had been served when it was not in force, (that is, after its return day,) such service would have been void. But if served while in force, a return afterwards will be good. \nThe service or a writ of error is the lodging a copy thereof for the adverse party in the office of the clerk of the court where the judgment was rendered. 1 vol. Laws U.S. p. 63. S. 23 \nIf it be so served before the return day, the service is good. \nIn the case cited from 4 Dall. it does not appear  which party made the motion, nor whether there was an appearance for the opposite party. \nIn the present case, the writ of error having been served when in full force, and the writ of error returned, although not at the first term, the appearance of the defendant in error has waived all objection to the irregularity of the return. \nThe judgment was affirmed. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. 4 delivered the opinion of the court, as follows: \nAs preliminary to any investigation of the merits of this motion, this court deems it proper to declare that it disclaims all jurisdiction not given by the constitution, or by the laws of the United States. \nCourts which originate in the common law possess a jurisdiction which must be regulated by their common law, until some statute shall change their established principles; but courts which are created by written law, and whose jurisdiction is defined by written law, cannot transcend that jurisdiction. It is unnecessary to state the reasoning on which this opinion is founded, because it has been repeatedly  given by this court; and with the decisions heretofore rendered on this point, no member of the bench has, even for an instant, been dissatisfied. The reasoning from the bar, in relation to it, may be answered by the single observation, that for the meaning  of the term habeas corpus, resort may unquestionably be had to the common law; but the power to award the writ by any of the courts of the United States, must be given by written law. \nThis opinion is not to be considered as abridging the power of courts over their own officers, or to protect themselves, and their members, from being disturbed in the exercise of their functions. It extends only to the power of taking cognizance of any question between individuals, or between the government and individuals. \nTo enable the court to decide on such question, the power to determine it must he given by written law. \nThe inquiry therefore on this motion will be, whether by any statute, compatible with the constitution of the United States, the power to award a writ of habeas corpus, in such a case as that of Erick Bollman and Samuel Swartwout, has been given to this court. \nThe 14th section of the judicial act (Laws U.S. vol.  1. p. 58.) has been considered as containing a substantive grant of this power. \nIt is in these words: \"That all the before mentioned courts of the United States shall have power to issue writs of scire facias, habeas corpus, and all other writs, not specially provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law. And that either of the justices of the supreme court, as well as judges of the district courts, shall have power to grant writs of habeas corpus, for the purpose of an inquiry into the cause of commitment. Provided, that writs of habeas corpus shall in no case extend to prisoners in gaol, unless where they are in custody under or by colour of the authority of the United States, or are committed for trial before some court of the same, or are necessary to be brought into court to testify.\" \n The only doubt of which this section can be susceptible is, whether the restrictive words of the first sentence limit the power to the award of such writs of habeas corpus as are necessary to enable the courts of the United States to exercise their respective jurisdictions in some  cause which they are capable of finally deciding. \nIt has been urged, that in strict grammatical construction, these words refer to the last antecedent, which is, \"all other writs not specially provided for by statute.\" \nThis criticism may be correct, and is not entirely without its influence; but the sound construction which the court thinks it safer to adopt, is, that the true sense of the words is to be determined by the nature of the provision, and by the context. \nIt may be worthy of remark, that this act was passed by the first congress of the United States, sitting under a constitution which had declared \"that the privilege of the writ of habeas corpus should not be suspended, unless when, in cases of rebellion or invasion, the public safety might require it.\" \nActing under the immediate influence of this injunction, they must have felt, with peculiar force, the obligation of providing efficient means by which this great constitutional privilege should receive life and activity; for if the means be not in existence, the privilege itself would be lost, although no law for its suspension should be enacted. Under the impression of this obligation, they give, to all the courts,  the power of awarding writs of habeas corpus. \nIt has been truly said, that this is a generic term, and includes every species of that writ. To this it may be added, that when used singly -- when we say the writ of habeas corpus, without addition, we most generally mean that great writ which is now applied for; and in that sense it is used in the constitution. \n The section proceeds to say, that \"either of the justices of the supreme court, as well as judges of the district courts, shall have power to grant writs of habeas corpus for the purpose of an inquiry into the cause of commitment.\" \nIt has been argued that congress could never intend to give a power of this kind to one of the judges of this court, which is refused to all of them when assembled. \nThere is certainly much force in this argument, and it receives additional strength from the consideration, that if the power be denied to this court, it is denied to every other court of the United States; the right to grant this important writ is given, in this sentence, to every judge of the circuit, or district court, but can neither be exercised by the circuit nor district court. It would be strange if the judge, sitting  on the bench, should be unable to hear a motion for this writ where it might be openly made, and openly discussed, and might yet retire to his chamber, and in private receive and decide upon the motion. This is not consistent with the genius of our legislation, nor with the course of our judicial proceedings. It would be much more consonant with both, that the power of the judge at his  chambers should be suspended during his term, than that it should be exercised only in secret. \nWhatever motives might induce the legislature to withhold from the supreme court the power to award the great writ of habeas corpus, there could be none which would induce them to withhold it from every court in the United States: and as it is granted to all in the same sentence and by the same words, the sound construction would seem to be, that the first sentence vests this power in all the courts of the United States; but as those courts are not always in session, the second sentence vests it in every justice or judge of the United States. \nThe doubt which has been raised on this subject may be further explained by examining the character of the various writs of habeas corpus, and selecting  those to which this general grant of power must be restricted, if taken in the limited sense of being merely used to enable  the court to exercise its jurisdiction in causes which it is enabled to decide finally. \nThe various writs of habeas corpus, as stated and accurately defined by judge Blackstone, (3 Bl. Com. 129.) are, 1st. The writ of habeas corpus ad respondendum, \"when a man hath a cause of action against one who is confined by the process of some inferior court; in order to remove the prisoner and charge him with this new action in the court above.\" \nThis case may occur when a party having a right to sue in this court, (as a state at the time of the passage of this act, or a foreign minister,) wishes to institute a suit against a person who is already confined by the process of an inferior court. This confinement may be either by the process of a court of the United States, or of a state court. If it be in a court of the United States, this writ would be inapplicable, because perfectly useless, and consequently could not be contemplated by the legislature. It would not be required, in such case, to bring the body of the defendant actually into court, as he would  already be in the charge of the person who, under an original writ from this court, would be directed to take him into custody, and would already be confined in the same jail in which he would be confined under the process of this court, if he should be unable to give bail. \nIf the party should be confined by process from a state court, there are many additional reasons against the use of this writ in such a case. \nThe state courts are not, in any sense of the word, inferior courts, except in the particular cases in which an appeal lies from their judgment to this court; and in these cases the mode of proceeding is particularly prescribed, and is not by habeas corpus. They are not inferior courts because they emanate from a different authority, and are the creatures of a distinct government. \n2d. The writ of habeas corpus ad satisfaciendum, \"when a prisoner hath had judgment against him in an action, and the plaintiff is desirous to bring him up to  some superior court to charge him with process of execution.\" \nThis case can never occur in the courts of the United States. One court never awards execution on the judgment of another. Our whole juridical system forbids it. \n 3d. Ad prosequendum, testificandum, deliberandum, &c. \"which issue when it is necessary to remove a prisoner, in order to prosecute, or bear testimony, in any court, or to be tried in the proper jurisdiction wherein the fact was committed.\" \nThis writ might unquestionably be employed to bring up a prisoner to bear testimony in a court, consistently with the most limited construction of the words in the act of congress; but the power to bring a person up that he may be tried in the proper jurisdiction is understood to be the very question now before the court. \n4th, and last.The common writ ad faciendum et recipiendum, \"which issues out of any of the courts of West-minister-hall, when a person is sued in some inferior jurisdiction, and is desirons to remove the action into the superior court, commanding the inferior judges to produce the body of the defendant, together with the day and cause of his caption and detainer, (whence the writ is frequently denominated an habeas corpus cum causa,) to do and receive whatever the king's court shall consider in that behalf. This writ is grantable of common right, without any motion in court, and it instantly supersedes all proceedings in the  court below.\" \nCan a solemn grant of power to a court to award a writ be considered as applicable to a case in which that writ, if issuable at all, issues by law without the leave of the court? \nIt would not be difficult to demonstrate that the writ of habeas corpus cum causa cannot be the particular writ contemplated by the legislature in the section under consideration; but it will be sufficient to observe generally that the same act prescribes a different mode for bringing into the courts of the United States suits brought in a  state court against a person having a right to claim the jurisdiction of the courts of the United States. He may, on his first appearance, file his petition and authenticate the fact, upon which the cause is ipso facto removed into the courts of the United States. \nThe only power then, which on this limited construction would be granted by the section under consideration, would be that of issuing writs of habeas corpus ad testificandum. The section itself proves that this was not the intention of the legislature. It concludes with the following proviso, \"That writs of habeas corpus shall in no case extend to prisoners in jail, unless where they  are in custody under or by colour of the authority of the United States, or are committed for trial before some court of the same, or are necessary to be brought into court to testify.\" \nThis proviso extends to the whole section. It limits the powers previously granted to the courts, because it specifies a case in which it is particularly applicable to the use of the power by courts: -- where the person is necessary to be brought into court to testify. That construction cannot be a fair one which would make the legislature except from the operation of a proviso, limiting the express grant of a power, the whole power intended to be granted. \nFrom this review of the extent of the power of awarding writs of habeas corpus, if the section be construed in its restricted sense; from a comparison of the nature of the writ which the courts of the United States would, on that view  of the subject, be enabled to issue; from a comparison of the power so granted with the other parts of the section, it is apparent that this limited sense of the term cannot be that which was contemplated by the legislature. \nBut the 33d section throws much light upon this question. It contains these  words: \"And upon all arrests in criminal cases, bail shall be admitted, except where the punishment may be death; in which cases it shall not be admitted but by the supreme or a circuit court, or by a justice of the supreme court, or a judge of a district  court, who shall exercise their discretion therein, regarding the nature and circumstances of the offence, and of the evidence, and of the usages of law.\" \nThe appropriate process of bringing up a prisoner, not committed by the court itself, to be bailed, is by the writ now applied for. Of consequence, a court possessing the power to bail prisoners not committed by itself, may award a writ of habeas corpus for the exercise of that power. The clause under consideration obviously proceeds on the supposition that this power was previously given, and is explanatory of the 14th section. \nIf, by the sound construction of the act of congress, the power to award writs of habeas corpus in order to examine into the cause of commitment is given to this court, it remains to inquire whether this be a case in which the writ ought to be granted. \nThe only objection is, that the commitment has been made by a court having power to commit  and to bail. \nAgainst this objection the argument from the bar has been so conclusive that nothing can be added to it. \nIf then this were res integra, the court would decide in favour of the motion. But the question is considered as long since decided. The case of Hamilton is expressly in point in all its parts; and although the question of jurisdiction was not made at the bar, the case was several days under advisement, and this question could not have escaped the attention of the court. From that decision the court would not lightly depart. ( United States v. Hamilton, 3 Dall. 17.) \nIf the act of congress gives this court the power to award a writ of habeas corpus in the present case, it remains to inquire whether that act be compatible with the constitution. \nIn the mandamus case, (ante, vol. 1. p. 175. Marbury v. Madison,) it was decided that this court would not exercise original jurisdiction except so far as that jurisdiction was given by the constitution. But so far as that  case has distinguished between original and appellate jurisdiction, that which the court is now asked to exercise is clearly appellate. It is the revision of a decision of an inferior court,  by which a citizen has been committed to jail. \nIt has been demonstrated at the bar, that the question brought forward on a habeas corpus, is always distinct from that which is involved in the cause itself. The question whether the individual shall be imprisoned is always distinct from the question whether he shall be convicted or acquitted of the charge on which he is to be tried, and therefore these questions are separated, and may be decided in different courts. \nThe decision that the individual shall be imprisoned must always precede the application for a writ of habeas corpus, and this writ must always be for the purpose of revision that decision, and therefore appellate in its nature. \nBut this point also is decided in Hamilton's case and in Burford's case. 5 \nIf at any time the public safety should require the suspension of the powers vested by this act in the courts of the United States, it is for the legislature to say so. \nThat question depends on political considerations, on which the legislature is to decide. Until the legislative will be expressed, this court can only see its duty, and must obey the laws. \nThe motion, therefore,  must be granted. \n[*114contd]  [EDITOR'S NOTE: The page numbers of this document may appear to be out of sequence; however, this pagination accurately reflects the pagination of the original published document.] \nJones, attorney for the district of Columbia, mentioned to the court, that Hiort, being better prepared upon points of practice, would make some observations in support of the form of the commitment. \nMARSHALL, Ch. J. I understand the clear opinion of the court to be, (if I mistake it my brethren will correct me,) that it is unimportant whether the commitment be regular in point of form or not; for this court, having gone into an examination of the evidence upon which the commitment was grounded, will proceed to do that which the court below ought to have done. \nRodney, Attorney General. \nThe affidavit of General Wilkinson is sufficiently authenticated. The justices of peace in the territory of Orleans are officers of the United States -- they are appointed by the governor of the territory, who is appointed by the President of the United States; and the secretary of the territory is bound by law to transmit copies of all the executive proceedings  of the governor of the territory every six months to the President of the United States. (Laws U.S. vol. 7. p. 112, 113.) All the officers of the United States are bound to take notice of each other. \nThe act of congress respecting authentication of records, &c. is cumulative only. It does not repeal any former law. \nThere is some weight in the objection that the oath ought to be made before the magistrate who issues the  warrant. But one magistrate is as competent as another to administer the oath. The constitution is silent on the subject; and if it be taken before a person competent to administer it, it satisfies the provision of the constitution. How else could a criminal be arrested in one part of the United States, when the witness lived in another? \nIt is true that none of the evidence now offered would be competent on the trail; nor even if it appeared in a proper shape, would it be sufficient to convict the prisoners. But the question is whether, in this incipient stage of the prosecution, it is not sufficient to show probable cause. \nThe expedition against Mexico would not be treason, unless it was to be accomplished by means which in themselves would amount  to treason. But if the constituted authorities of the United States should be suppressed but for one hour, and the territory of Orleans revolutionized but for a moment, it would be treason. \nWhat would be treason by adhering to an enemy, if done towards, a rebel will be a levying of war. (3 Wilson's Lectures, 105. 4 Bl. Com. 92.) \nIn treason all are principals. There are no accessories. It has been argued, (and the respectable authority of Judge Tucker is cited,) that none are principals but those present at the treasonable act. The argument may have some weight, but it is a point at least doubtful,  and therefore ought to be left to be decided on the trial. \nIt is true that we cannot at present say exactly when and where the overt act of levying war was committed, but from the affidavits we think it fair to infer that an army has been actually levied and arrayed. The declaration of one of the prisoners was, that Col. Burr \"was levying an armed body of 7,000 men.\" How the fact has turned out to be since we do not know; and it is also true that we do not know that any men have been seen collected in military array. But Dr. Bollman informed General Wilkinson that he  had seen a letter from Col. Burr, in which he says that he should be at Natchez  with 2,000 men on the 20th of December, and that he would be followed by 4,000 more, and that he could have raised 12,000, as easily as 6,000, but he did not think that number necessary. If Col. Burr was actually levying an armed body of men, if he expected to be at Natchez on the 20th of December with 2,000, and calculated upon being followed by 4,000 more, and if he found it so easy to raise troops, is there not a moral certainty that some troops at least have been raised and embodied. \nIt may be admitted that General Wilkinson was interested to make the worst of the story, but the declarations of the prisoners themselves are sufficient. \nJones, attorney for the district of Columbia, on behalf of the prosecution. \nAs to the objection that the commitment must be for trial in some court having jurisdiction over the offence. \nIt was uncertain whether any, and if any, what place was prescribed for the trial of this offence. But any court of the United States had jurisdiction to commit for trial. By the act of congress for the punishment of certain crimes, &c. vol. 1. p. 103. s. 8. \"the trial  of crimes committed on the high seas, or in any place out of the jurisdiction of any particular state, shall be in the district where the offender is apprehended, or into which he may be first brought.\" Although the first part of the section speaks of certain crimes committed \"upon the high seas, or in any river, haven, bason or bay, out of the jurisdiction of any particular state,\" yet the last clause of the section is general, and in its terms applies to the trial of all crimes committed out of the jurisdiction of any particular state. This act of congress is the only exercise of the provision of the 3d article of the constitution respecting crimes committed not within any state. Unless this act of congress fixes the place of trial, there is no place prescribed, either by the law or the constitution, and the trial may as well be in the district of Columbia as elsewhere. But if this act of congress does fix the place, then, it is objected,  that this district is neither that in which the prisoners were apprehended, nor that into which they were first brought. \nThe answer is, that the act of congress means the district in which they shall be legally apprehended, that  is, arrested by process of law. It could not mean a mere military seizure. But whether the court below had or had not jurisdiction to try the prisoners, in clearly had jurisdiction to commit them; and if their commitment be irregular, this court will say how they ought to be committed. Laws U.S. vol. 1. p. 73. s. 33. \nIt is objected that, although the judges and justices have power to arrest, yet the courts have not, and therefore cannot issue a bench-warrant but upon the presentment of a grand jury, or for an offence committed in the presence of the court. And the practice of Maryland is cited. But it is stated that at Montgomery Court, in Maryland, very laterly a venerable and ancient judge of that court did issue a bench-warrant for an offence not presented by the grand jury, nor committed in presence of the court. 1 \n It is not necessary that the commitment should state the place of trial, nor that they are committed for trial.If at the time of commitment it be uncertain where they ought to be tried, they may be committed generally, until discharged by due course of law. In England it is only necessary that the commitment should be to some jail in England. 2 Hawk. P.C. 120. b. 2. c. 16. s. 18. \nAs to the authentication of the affidavits of General Wilkinson, it being shewn that Pollock and Carrick were duly appointed justices of the peace, and having  undertaken to act as such, it is to be presumed that they have taken the necessary oaths. \nIt is admitted that the constitution has prevented many questions as to the doctrine of treason. The intention of having a constitutional definition of the crime, was to put it out of the power of congress to invent treasons. But it was impossible to define what should in every case be deemed a levying of war. It is a question of fact to be decided by the jury from all the circumstances. \nWarlike array is not necessary. It is only a circumstance. 1 East's Cr. Law, 66. According to the English books, a direct levying of war, is a war directly  against the person of the king. A constructive levying of war, is war against the government. \nIf men have been levied, and arms provided, with a treasonable intent, this is a sufficient levying of war, without warlike array. \nThe affidavit of General Eaton establishes the treasonable intent in Colonel Burr. The question, then, is, whether that intent, or a knowledge of that intent, can be brought home to the prisoners? Mr. Jones here went into an argument to show the connexion of the prisoners with Colonel Burr, and their knowledge of his projects. He observed that his argument, on a former occasion, respecting the president's message to congress, had been misunderstood. A state of war is a matter of public notoriety, and the had considered the president's message as evidence of that notoriety, it being communication from the supreme executive, in the course of his duty, to that department of government which alone could decide on the state of war. \nHe contended that no specific number, no  sufficiency of force to accomplish the object, was necessary to constitute treason. \nIf soldiers are levied and officered, with a treasonable intent, and equipments prepared, so  that they can readily lay hold of their arms; although no men are  actually armed, although only five men in a detachment should march to assemble at a place of rendezvous, and although there should be no warlike array, yet it would be treason. Any thing which amounts to setting on foot a military expedition, with intent to levy war against the United States, is treason. \nThe distinction between those who are present at the overt act of levying war, and those who are confederated, adhering, acting and assisting, giving aid and comfort, is contrary to all analogy. In treason, all are principals. \nIn murder, if two conspire, and one is acting and assisting at such a distance as to give aid, he is equally guilty with him who gave the wound. \nIt has been insinuated that General Wilkinson is to be considered as particeps criminis. If that were the case, it would be no disqualification of his testimony. \nTreason is a greater crime in republics than in monarchies, and ought to be more severely punished. \nHarper, in reply, congratulated his country on the triumph of correct principles, in the abandonment, on the part of the prosecution, of the dangerous doctrine, that executive  messages were to be received as evidence in a criminal prosecution. \n[Jones. The sole purpose for which we introduced the president's message, was to show that the assemblage of a military force by Colonel Burr was a matter of notoriety.We did not attempt or wish to introduce it as direct evidence.] \nHarper. To use an executive message in a court of justice, for any purpose of proof whatever, so as to aid in the commitment of a citizen under a criminal accusation; to introduce it as evidence of any fact; (of notoriety, for instance, which is a fact;) is to give it the effect of testimony, and is a direct violation of the constitution. \n We object to the translation of the ciphered letter contained in General Wilkinson's affidavits, being admitted as evidence, because General Wilkinson has not sworn that it is a true translation, nor sent the original, with the key, so that the court can have a correct translation made. Nor is it proved that the original was written by Colonel Burr, or by his direction, nor that the prisoners were acquainted with its contents. \nAnother objection to the affidavits is, that they were not made for the purpose of procuring an arrest. They  were not made before the judicial officer on whose warrant the proceedings of the court were to be founded; and who would have been bound to cross-examine the witness, to sift the facts, and to judge how far they were proved, and how far they were sufficient to justify the proceedings. But, after a military arrest, the affidavits are drawn up by the author of the arrest, without cross-examination or inquiry, and were sworn to by him, as the justification of his conduct. The persons whom he has thus arrested are sent to a distant part of the country, and these affidavits are sent after them, to operate as the ground of their commitment and detention. No person can lawfully be committed on testimony so taken. In cases of arrests and commitments, the general rules of evidence are no further to be departed from than the necessity of the case requires. On application to a magistrate for a warrant of arrest, the evidence must necessarily be ex parte, but no other departure from the common rules of evidence is justifiable, because not necessary. It is a general rule of law respecting testimony, that it shall be taken before the tribunal which is to act upon it, or under the direction  of that tribunal; that the person who is to decide, shall also inquire; that the inquiry shall not be before one tribunal, and the judgment pronounced by another. This rule, so important to the safety of persons accused, is equally applicable to arrests and commitments, as to trials, and should therefore be equally observed. The party arrested and brought before the magistrate for commitment, has a right to be confronted with his accuser, and to cross-examine the witnesses produced against him, and by that means to explain circumstances which, at first view, might criminate him. But if the practice  which is attempted in this case be sanctioned by this court; if a military officer, or any other person, is to be permitted to seize a man, and send him 2,000 miles from the place of arrest, and from the place of the alleged transaction, and to send after him an ex parte affidavit as the ground of his subsequent commitment, the great security provided by law for the protection of innocence and liberty is broken down. \nMr. Harper then went into a minute examination of the contents of the affidavits, and contended that, if they could be considered by this court as evidence,  they did not prove that treason had been committed, nor that the prisoners had participated in any crime or offence whatever. \nMartin, on the same side. \nThe order for the commitment was erroneous in directing the prisoners to be committed to the prison of the court. It ought to have been to the marshal. 1 Salk. 348. Bethel's case. 5 Mod. 19. S.C. \nThis court cannot remand them, or commit them, upon this habeas corpus, for any crime but that for which they were committed in the court below; and can only commit them for trial before some court.The only power given by the 33d section of the judiciary act, is to cause offenders to \"be arrested; and imprisoned or bailed, as the case may be, for trial before such court of the United States, as by this act has cognizance of the offence.\" The place of trial is to be decided by the place where the offence was committed. \nThe act of congress for the punishment of certain crimes, s. 8. vol. 1. p. 103. does not apply to crimes committed in any territory of the United States in which there are courts of the United States having cognizance of the offence. It applies only to offences committed upon the \"high seas, or in any river, haven, bason,  or bay, out of the jurisdiction of any particular state.\"  The courts of the United States erected in the territory of Orleans are competent  to try the offence of treason against the United States committed within that territory. By the 8th section of the act of congress of 26th March, 1804, vol. 7 p. 117. erecting the territory of Orleans, a district court of the United States is established therein, having all the original powers and jurisdiction of a circuit court of the United States. And by the same act, the \"act for the punishment of certain crimes against the United States,\" is extended to that territory. \nIt was therefore a wanton and unnecessary exertion of arbitrary power to send the prisoners here, where they cannot be tried. If there is any probability that a crime was committed by the prisoners, it is equally probable that it was committed in the territory of Orleans. It is at all events certain that it was not committed here. The word apprehended, in the act of congress, cannot mean a legal arrest only. If it did, it would be in the power of a military commander to seize a man, and appoint the tribunal by which he shall be tried. \nIf it is  the duty of this court to commit the prisoners for trial, it is equally its duty to bind over the witnesses to appear at the time and place of trial to testify in the case, and to return copies of the process, together with the recognizances of the withnesses, to the office of the clerk of the court having cognizance of the offence. This shows that, upon every commitment, the witnesses must be in the presence of the tribunal committing. \nThis court cannot commit, unless they first ascertain in what court the trial is to be had. \nThere is no legal evidence that General Wilkinson ever made oath to his statement. The certificate of the secretary is only that it appears by the return of the secretary of the territory of Orleans, that Pollock and Carrick were justices. A copy of that return ought to be certified. \n The court, not having made up an opinion, admitted the prisoners to bail until the next day. The Chief Justice stated that the court had difficulty upon two points, viz. \n1. Whether the affidavit of General Wilkinson was evidence admissible in this stage of the prosecution; and, \n2. Whether, if admissible, his statement of the contents of the substance of a letter,  when the original was in his possession, was such evidence as the court ought to notice. \nIf the counsel had any authorities on these points, the court said they would hear them. \nThe Chief Justice asked if the counsel had found any authorities on the points mentioned yesterday. \nRodney, Attorney General, said he had not; but he relied on general principles. \nF. S. Key cited 3 T.R. 707. The King v. The Inhabitants of Eriswell, where the principal question was, whether the ex parte examination of the pauper taken before two justices, to whom no application was made for a removal of the pauper, was good evidence before two other justices, five years afterwards, upon an application for his removal, the pauper having in the mean time become insane. The judges of the court of king's bench were equally divided. But Grose, J. said, \"nothing can be more unjust, than that a person should be bound by evidence which he is not permitted to hear.\" \"The common law did not permit a person accused to be affected by an examination taken in his absence, because he could not cross-examine.\" Buller, J. who was opposed to Grose, upon the principal question, admitted, \"that if the taking the examination  were not a judicial act, but was merely coram non judice, it is  not evidence,\" and that\" it must be a judicial act at the time it was taken, or cannot become so at all.\" \nLord Kenyon, Ch. J. said the two justices who took the examination \"were not applied to for the purpose of making an order of removal; the overseers called upon them for no other purpose than to examine the pauper; all the proceedings, therefore, were extrajudicial; and the examination on oath might just as well have been taken before the parish clerk, and would have been as much entitled to credit as this.\" \nSo in this case we say that, as General Wilkinson did not apply to justices Carrick and Pollock for a warrant to arrest Dr. Bollman and Mr. Swartwout, and as he did not make the affidavit for the purpose of obtaining from them such warrants, the whole proceedings before those justices were extrajudicial. The affidavits are not such as would support an indictment, if false. In the language of Lord Kenyon, they deserve no more credit than if they had been made before the parish clerk. If the affidavit be a judicial proceeding, it ought to be authenticated according to the act of congress.If it be  not a judicial proceeding, it is not evidence. \nMARSHALL, Ch. J. If a person makes an affidavit before a magistrate to obtain a warrant of arrest, such affidavit must necessarily be ex parte. But how is it on a motion to commit, after the person is taken? Must not the commitment be upon testimony given in presence of the prisoner? \nRodney, Attorney General. The first affidavit would be sufficient, unless disproved or explained by the prisoner on his examination. \nHarper. The necessity of the case is the only ground of an exception to the general rule of evidence; and that necessity ceases when the party is taken. \n MARSHALL, Ch. J. 8 delivered the opinion of the court. \nThe prisoners having been brought before this court on a writ of habeas corpus, and the testimony on which they were committed having been fully examined and attentively  considered, the court is now to declare the law upon their case. \nThis being a mere inquiry, which, without deciding upon guilt, precedes the institution of a prosecution, the question to be determined is, whether the accused shall be discharged or held to trial; and if the latter, in what place they are to be tried, and whether they shall be confined or admitted to bail. \"If,\" says a very learned and accurate commentator, \"upon this  inquiry it manifestly appears that no such crime has been committed, or that the suspicion entertained of the prisoner was wholly groundless, in such cases only is it lawful totally to discharge him. Otherwise he must either be committed to prison or give bail.\" \nThe specific charge brought against the prisoners is treason in levying war against the United States. \nAs there is no crime which can more excite and agitate the passions of men than treason, no charge demands more from the tribunal before which it is made a deliberate and temperate inquiry.Whether this inquiry be directed to the fact or to the law, none can be more solemn, none more important to the citizen or to the government; none can more affect the safety of both. \nTo prevent  the possibility of those calamities which result from the extension of treason to offences of minor  importance, that great fundamental law which defines and limits the various departments of our government has given a rule on the subject both to the legislature and the courts of America, which neither can be permitted to transcend. \n\"Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort.\" \nTo constitute that specific crime for which the prisoners now before the court have been committed, war must be actually levied against the United States. However flagitious may be the crime of conspiring to subvert by force the government of our country, such conspiracy is not treason. To conspire to levy war, and actually to levy war, are distinct offences. The first must be brought into operation by the assemblage of men for a purpose treasonable in itself, or the fact of levying war cannot have been committed. So far has this principle been carried, that, in a case reported by Ventris, and mentioned in some modern treatises on criminal law, it has been determined that the actual enlistment  of men to serve against the government does not amount to levying war. It is true that in that case the soldiers enlisted were to serve without the realm, but they were enlisted within it, and if the enlistment for a treasonable purpose could amount to levying war, then war had been actually levied. \nIt is not the intention of the court to say that no individual can be guilty of this crime who has not appeared in arms against his country. On the contrary, if war be actually levied, that is, if a body of men be actually assembled for the purpose of effecting by force a treasonable purpose, all those who perform any part, however minute, or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered as traitors. But there must be an actual assembling of men for the treasonable purpose, to constitute a levying of war. \nCrimes so atrocious as those which have for their object the subversion by violence of those laws and those  institutions which have been ordained in order to secure the peace and happiness of society, are not to escape punishment because they have not ripened into treason. The wisdom of the legislature  is competent to provide for the case; and the framers of our constitution, who not only defined and limited the crime, but with jealous circumspection attempted to protect their limitation by providing that no person should be convicted of it, unless on the testimony of two witnesses to the same overt act, or on confession in open court, must have conceived it more safe that punishment in such cases should be ordained by general laws, formed upon deliberation, under the influence of no resentments, and without knowing on whom they were to operate, than that it should be inflicted under the influence of those passions which the occasion seldom fails to excite, and which a flexible definition of the crime, or a construction which would render it flexible, might bring into operation. It is therefore more safe as well as more consonant to the principles of our constitution, that the crime of treason should not be extended by construction to doubtful cases; and that crimes not clearly within the constitutional definition, should receive such punishment as the legislature in its wisdom may provide. \nTo complete the crime of levying war against the United States, there must be an actual  assemblage of men for the purpose of executing a treasonable design. In the case now before the court, a design to overturn the government of the United States in New-Orleans by force, would have been unquestionably a design which, if carried into execution, would have been treason, and the assemblage of a body of men for the purpose of carrying it into execution would amount to levying of war against the United States; but no conspiracy for this object, no enlisting of men to effect it, would be an actual levying of war. \nIn conformity with the principles now laid down, have been the decisions heretofore made by the judges of the United States. \n The opinions given by Judge Paterson and Judge Iredell, in cases before them, imply an actual assembling of men, though they rather designed to remark on the purpose to which the force was to be applied than on the nature of the force itself. Their opinions, however, contemplate the actual employment of force. \nJudge Chase, in the trial of Fries, was more explicit. \nHe stated the opinion of the court to be, \"that if a body of people conspire and meditate an insurrection to resist or oppose the execution of any statute of the  United States by force, they are only guilty of a high misdemeanor; but if they proceed to carry such intention into execution by force, that they are guilty of the treason of levying war; and the quantum of the force employed, neither lessens nor increases the crime: whether by one hundred, or one thousand persons, is wholly immaterial.\" \"The court are of opinion,\" continued Judge Chase, on that occasion, \"that a combination or conspi acy to levy war against the United States is not treason, unless combined with an attempt to carry such combination or conspiracy into execution; some actual force or violence must be used in pursuance of such design to levy war; but it is altogether immaterial whether the force used is sufficient to effectuate the object; any force connected  with the intention will constitute the crime of levying war.\" \nThe application of these general principles to the particular case before the court will depend on the testimony which has been exhibited against the accused. \nThe first deposition to be considered is that of General Eaton. This gentleman connects in one statement the purport of numerous conversations held with Colonel Burr throughout the  last winter. In the course of these conversations were communicated various criminal projects which seem to have been revolving in the mind of the projector. An expedition against Mexico seems to have been the first and most matured part of his plan, if indeed it did not constitute a distinct and separate plan,  upon the success of which other schemes still more culpable, but not yet well digested, might depend. Maps and other information preparatory to its execution, and which would rather indicate that it was the immediate object, had been procured, and for a considerable time, in repeated conversations, the whole efforts of Colonel Burr were directed to prove to the witness, who was to have held a high command under him, the practicability of the enterprize, and in explaining to him the means by which it was to be effected. \nThis deposition exhibits the various schemes of Col. Burr, and its materiality depends on connecting the prisoners at the bar in such of those schemes as were treasonable. For this purpose the affidavit of General Wilkinson, comprehending in its body the substance of a letter from Colonel Burr, has been offered, and was received by the circuit  court. To the admission of this testimony great and serious objections have been made. It has been urged that it is a voluntary or rather an extrajudicial affidavit, made before a person not appearing to be a magistrate, and contains the substance only of a letter, of which the original is retained by the person who made the affidavit. \nThe objection that the affidavit is extrajudicial resolves itself into the question whether one magistrate may commit on an affidavit taken before another magistrate. For if he may, an affidavit made as the foundation of a commitment ceases to be extrajudicial, and the person who makes it would be as liable to a prosecution for perjury as if the warrant of commitment had been issued by the magistrate before whom the affidavit was made. \nTo decide that an affidavit made before one magistrate would not justify a commitment by another, might in many cases be productive of great inconvenience, and does not appear susceptible of abuse if the verity of the certificate be established. Such an affidavit seems admissible on the principle that before the accused is put upon his trial all the proceedings are ex parte. The court therefore overrule this objection. \n  That which questions the character of the person who has on this occasion administered the oath is next to be considered. \nThe certificate from the office of the department of state has been deemed insufficient by the counsel for the prisoners, because the law does not require the appointment of magistrates for the territory of New-Orleans to be certified to that office, because the certificate is in itself informal, and because it does not appear that the magistrate had taken the oath required by the act of congress. \nThe first of these objections is not supported by the law of the case, and the second may be so readily corrected, that the court has proceeded to consider the subject as if it were corrected, retaining however any final decision, if against the prisoners, until the correction shall be made. With regard to the third, the magistrate must be presumed to have taken the requisite oaths, since he is found acting as a magistrate. \nOn the admissibility of that part of the affidavit which purports to be as near the substance of the letter from Colonel Burr to General Wilkinson as the latter could interpret it, a division of opinion has taken place in the court.  Two judges are of opinion that as such testimony delivered in the presence of the prisoner on his trial would be totally inadmissible, neither can it be considered as a foundation for a commitment. Although in making a commitment the magistrate does not decide on the guilt of the prisoner, yet he does decide on the probable cause, and a long and painful imprisonment may be the consequence of his decision. This probable cause, therefore, ought to be proved by testimony in itself legal, and which, though from the nature of the case it must be ex parte, ought in many other respects to be such as a court and jury might hear. \nTwo judges are of opinion that in this incipient stage of the prosecution an affidavit stating the general purport of a letter may be read, particularly where the person in possession of it is at too great a distance to admit of  its being obtained, and that a commitment may be founded on it. \nUnder this embarrassment it was deemed necessary to look into the affidavit for the purpose of discovering whether, if admitted, it contains matter which would justify the commitment of the prisoners at the bar on the charge of treason. \nThat the letter from Colonel  Burr to General Wilkinson relates to a military enterprize meditated by the former, has not been questioned. If this enterprize was against Mexico, it would amount to a high misdemeanor; if against any of the territories of the United States, or if in its progress the subversion of the government of the United States in any of their territories was a mean clearly and necessarily to be employed, if such mean formed a substantive part of the plan, the assemblage of a body of men to effect it would be levying war against the United States. \nThe letter is in language which furnishes no distinct view of the design of the writer. The co-operation, however, which is stated to have been secured, points strongly to some expedition against the territories of Spain. After making these general statements, the writer becomes' rather more explicit, and says, \"Burr's plan of operations is to move down rapidly from the falls on the 15th of November with the first 500 or 1,000 men in light boats now constructing for that purpose, to be at Natchez between the 5th and 15th of December, there to meet Wilkinson; then to determine whether it will be expedient in the first instance to seize on or to pass  by Baton Rouge.The people of the country to which we are going are prepared to receive us.  Their agents now with Burr say that if we will protect their religion, and will not subject them to a foreign power, in three weeks all will be settled.\" \nThere is no expression in these sentences which would justify a suspicion that any territory of the United States was the object of the expedition. \n For what purpose seize on Baton Rouge; why engage Spain against this enterprize, if it was designed against the United States? \n\"The people of the country to which we are going are prepared to receive us.\" This language is peculiarly appropriate to a foreign country. It will not be contended that the terms would be inapplicable to a territory of the United States, but other terms would more aptly convey the idea, and Burr seems to consider himself as giving information of which Wilkinson was not possessed. When it is recollected that he was the governor of a territory adjoining that which must have been threatened, if a territory of the United States was threatened, and that he commanded the army, a part of which was stationed in that territory, the probability that the  information communicated related to a foreign country, it must be admitted, gains strength. \n\"Their agents now with Burr say, that if we will protect their religion, and will not subject them to a foreign power, in three weeks all will be settled.\" \nThis is apparently the language of a people who, from the contemplated change in their political situation, feared for their religion, and feared that they would be made the subjects of a foreign power. That the Mexicans should entertain these apprehensions was natural, and would readily be believed. They were, if the representation made of their dispositions be correct, about to place themselves much in the power of men who professed a different faith from theirs, and who, by making them dependent on England or the United States, would subject them to a foreign power. \nThat the people of New-Orleans, as a people, if really engaged in the conspiracy, should feel the same apprehensions, and require assurances on the same points, is by no means so obvious. \nThere certainly is not in the letter delivered to Gen. Wilkinson, so far as that letter is laid before the court, one syllable which has a necessary or a natural reference   to an enterprize against any territory of the United States. \nThat the bearer of this letter must be considered as acquainted with its contents is not to be controverted. The letter and his own declarations evince the fact. \nAfter stating himself to have passed through New-York, and the western states and territories, without insinuating that he had performed on his route any act whatever which was connected with the enterprize, he states their object to be, \"to carry an expedition into the Mexican provinces.\" \nThis statement may be considered as explanatory of the letter of Col. Burr, if the expressions of that letter could be thought ambiguous. \nBut there are other declarations made by Mr. Swartwout, which constitute the difficulty of this case. On an inquiry from General Wilkinson, he said, \"this territory would be revolutionized where the people were ready to join them, and that there would be some seizing, he supposed, at New-Orleans.\" \nIf there words import that the government established by the United States in any of its territories, was to be revolutionized by force, although merely as a step to, or a mean of executing some greater projects, the design was unquestionably  treasonable, and any assemblage of men for that purpose would amount to a levying of war. But on the import of the words a difference of opinion exists. Some of the judges suppose they refer to the territory against which the expedition was intended; others to that in which the conversation was held. Some consider the words, if even applicable to a territory of the United States, as alluding to a revolution to be effected by the people, rather than by the party conducted by Col. Burr. \nBut whether this treasonable intention be really imputable to the plan or not, it is admitted that it must have been carried into execution by an open assemblage of  men for that purpose, previous to the arrest of the prisoner, in order to consummate the crime as to him; and a majority of the court is of opinion that the conversation of Mr. Swartwout affords no sufficient proof of such assembling. \nThe prisoner stated that \"Col. Burr, with the support of a powerful association extending from New-York to New-Orleans, was levying an armed body of 7,000 men from the state of New-York and the western states and territories, with a view to carry an expedition to the Mexican territories.\" \nThat  the association, whatever may be its purpose, is not treason, has been already stated. That levying an army may or may not be treason, and that this depends on the intention with which it is levied, and on the point to which the parties have advanced, has been also stated. The mere enlisting of men, without assembling them, is not levying war. The question then is, whether this evidence proves Col. Burr to have advanced so far in levying an army as actually to have assembled them. \nIt is argued that since it cannot be necessary that the whole 7,000 men should have assembled, their commencing their march by detachments to the place of rendezvous must be sufficient to constitute the crime. \nThis position is correct, with some qualification. It cannot be necessary that the whole army should assemble, and that the various parts which are to compose it should have combined. But it is necessary that there should be an actual assemblage, and therefore the evidence should make the fact unequivocal. \nThe travelling of individuals to the place of rendezvous would perhaps not be sufficient. This would be an equivocal act, and has no warlike appearance. The meeting of particular bodies  of men, and their marching from places of partial to a place of general rendezvous, would be such an assemblage. \nThe particular words used by Mr. Swartwout are, that Col. Burr \"was levying an armed body of 7,000 men.\"  If the term levying in this place imports that they were assembled,  then such fact would amount, if the intention be against the United States, to levying war. If it barely imports that he was enlisting or engaging them in his service, the fact would not amount to levying war. \nIt is thought sufficiently apparent that the latter is the sense in which the term was used. The fact alluded to, if taken in the former sense, is of a nature so to force itself upon the public view, that if the army had then actually assembled, either together or in detachments, some evidence of such assembling would have been laid before the court. \nThe words used by the prisoner in reference to seizing at New-Orleans, and borrowing perhaps by force from the bank, though indicating a design to rob, and consequently importing a high offence, do not designate the specific crime of levying war against the United States. \nIt is therefore the opinion of a majority of the  court, that in the case of Samuel Swartwout there is not sufficient evidence of his levying war against the United States to justify his commitment on the charge of treason. \nAgainst Erick Bollman there is still less testimony. Nothing has been said by him to support the charge that the enterprize in which he was engaged had any other object than was stated in the letter of Colonel Burr. Against him, therefore, there is no evidence to support a charge of reason. \nThat both of the prisoners were engaged in a most culpable enterprize against the dominions of a power at peace with the United States, those who admit the affidavit of General Wilkinson cannot doubt. But that no part of this crime was committed in the district of Columbia is apparent. It is therefore the unanimous opinion of the court that they cannot be tried in this district. \n The law read on the part of the prosecution is understood to apply only to offences committed on the high seas, or in any river, haven, bason or bay, not within the jurisdiction of any particular state. In those cases there is no court which has particular cognizance of the crime, and therefore the place in which the criminal shall  be apprehended, or, if he be apprehended where no court has exclusive jurisdiction, that to which he shall be first brought, is substituted for the place in which the offence was committed. \nBut in this case, a tribunal for the trial of the offence, wherever it may have been committed, had been provided by congress; and at the place where the prisoners were seized by the authority of the commander in chief, there existed such a tribunal.It would, too, be extremely dangerous to say, that because the prisoners were apprehended, not by a civil magistrate, but by the military power, there could be given by law a right to try the persons so seized in any place which the general might select, and to which he might direct them to be carried. \nThe act of congress which the prisoners are supposed to have violated, describes as offenders those who begin or set on foot, or provide, or prepare, the means for any military expedition or enterprize to be carried on from thence against the dominions of a foreign prince or state, with whom the United States are at peace. \nThere is a want of precision in the description of the offence which might produce some difficulty in deciding what cases would  come within it. But several other questions arise which a court consisting of four judges finds itself unable to decide, and therefore, as the crime with which the prisoners stand charged has not been committed, the court can only direct them to be discharged. This is done with the less reluctance because the discharge does not acquit them from the offence which there is probable cause for supposing they have committed, and if those whose duty it is to protect the nation, by prosecuting offenders against the laws, shall suppose  those who have been charged with treason to be proper objects for punishment, they will, when possessed of less exceptionable testimony, and when able to say at what place the offence has been committed, institute fresh proceedings against them. \n  [EDITOR'S NOTE: The page numbers of this document may appear to be out of sequence; however, this pagination accurately reflects the pagination of the original published document.] \nAPPENDIX. \nNote (B.) \nOPINION \nON THE MOTION TO INTRODUCE CERTAIN EVIDENCE IN THE TRIAL OF AARON BURR, FOR TREASON, PRONOUNCET MONDAY, AUGUST 31. \nTHE question now to be decided has been  argued in a manner worthy of its importance, and with an earnestness evincing the strong conviction felt by the counsel on each side that the law is with them. \nA degree of eloquence seldom displayed on any occasion has embellished a solidity of argument and a depth of research by which the court has been greatly aided in forming the opinion it is about to deliver. \nThe testimony adduced on the part of the United States, to prove the overt act laid in the indictment, having shown, and the attorney for the United States having admitted, that the prisoner was not present when the act, whatever may be its character, was committed, and there being no reason to doubt but that he was at a great distance and in a different state, it is objected to the testimony offered on the part of the United States, to connect him with those who committed the overt act, that such testimony is totally irrelevant and must therefore be rejected. \nThe arguments in support of this motion respect in part the merits of the case as it may be supposed to stand independent of the pleadings, and in part as exhibited by the pleadings. \nOn the first division of the subject two points are made. \n1st. That conformably  to the constitution of the United States, no man can be convicted of treason who was not present when the war was levied. \n2d. That if this construction be erroneous, no testimony can be received to charge one man with the overt acts of others, until those overt acts as laid in the indictment be proved to the satisfaction of the court. \n The question which arises on the construction of the constitution, in every point of view in which it can be contemplated, is of infinite moment to the people of this country and to their government, and requires the most temperate and the most deliberate consideration. \n\"Treason against the United States shall consist only in levying war against them.\" \nWhat is the natural import of the words \"levying war?\" And who may be said to levy it? Had their first application to treason been made by our constitution, they would certainly have admitted of some latitude of construction. Taken most literally, they are perhaps of the same import with the words raising or creating war, but as those who join after the commencement are equally the objects of punishment, there would probably be a general admission, that the term also comprehended making  war, or carrying on war. In the construction which courts would be required to give these words, it is not improbable that those who should raise, create, make, or carry on war might be comprehended. The various acts which would be considered as coming within the term, would be settled by a course of decisions, and it would be affirming boldly, to say that those only who actually constituted a portion of the military force appearing in arms could be considered as levying war. There is no difficulty in affirming that there must be a war, or the crime of levying it cannot exist; but there would often be considerable difficulty in affirming that a particular act did or did not involve the person committing it in the guilt and in the fact of levying war. If for example, an army should be actually raised for the avowed purpose of carrying on open war against the United States and subverting their government, the point must be weighed very deliberately, before a judge would venture to decide that an overt act of levying war had not been committed by a commissary of purchases, who never saw the army, but who, knowing its object, and leaguing himself with the rebels, supplied that army  with provisions, or by a recruiting officer holding a commission in the rebel service, who though never in camp, executed the particular duty assigned to him. \nBut the term is not for the first time applied to treason by the constitution of the United States. It is a technical term. It is used in a very old statute of that country, whose language is our language, and whose laws form the substratum of our laws. It is scarcely conceivable that the term was not employed by the framers of our constitution in the sense which had been affixed to it by those from whom we borrowed it.So far as the meaning of any terms, particularly terms of art, is completely ascertained, those by whom they are employed must be considered as employing them in that ascertained meaning, unless the contrary be proved by the context. It is therefore reasonable to suppose, unless it be incompatible with other expressions of the constitution, that the term \"levying war,\" is used in that instrument in the same sense in which it was understood in England and in this country, to have been used in the statute of the 25th of Edward III. from which it was borrowed. \nIt is said that this meaning is to be collected  only from adjudged cases. But this position cannot be conceded to the extent in which it is laid down. The  superior authority of adjudged cases will never be controverted. But those celebrated elementary writers who have stated the principles of the law, whose statements have received the common approbation of legal men, are not to be disregarded. Principles laid down by such writers as Coke, Hale, Foster, and Blackstone, are not lightly to be rejected. These books are in the hands of every student. Legal opinions are formed upon them, and those opinions are afterwards carried to the bar, the bench, and the legislature. In the exposition of terms, therefore, used in instruments of the present day, the definitions and the dicta of those authors, if not contradicted by adjudications,  and if compatible with the words of the statute, are entitled to respect. It is to be regretted that they do not shed as much light on this part of the subject as is to be wished. \nCoke does not give a complete definition of the term, but puts cases which amount to levying war. \"An actual rebellion or insurrection,\" he says, \"is a levying of war.\" In whom? Coke does not  say whether in those only who appear in arms, or in all those who take part in the rebellion or insurrection by real open deed. \nHale, in treating on the same subject, puts many cases which shall constitute a levying of war, without which no act can amount to treason, but he does not particularize the parts to be performed by the different persons concerned in that war, which shall be sufficient to fix on each the guilt of levying it. \nFoster says, \"the joining with rebels in an act of rebellion, or with enemies in acts of hostility, will make a man a traitor.\" \"Furnishing rebels or enemies with money, arms, ammunition, or other necessaries will prima facie make a man a traitor.\" \nFoster does not say that he would be a traitor under the words of the statute, independent of the legal rule which attaches the guilt of the principal to an accessary, nor that his treason is occasioned by that rule. In England this discrimination need not be made except for the purpose of framing the indictment, and therefore in the English books we do not perceive any effort to make it. Thus surrendering a castle to rebels, being in confederacy with them is said by Hale and Foster to be treason under  the clause of levying war, but whether it be levying war in fact, or aiding those who levy it is not said. Upon this point Blackstone is not more satisfactory. Although we may find among the commentators upon treason enough to satisfy the inquiry, what is a state of internal war? yet no precise information can be acquired from them which would enable us to decide with clearness whether persons not in arms, but taking part in a rebellion, could be said to levy war independent of that doctrine which attaches to the accessary the guilt of his principal. \nIf in adjudged cases this question has been taken up and directly decided, the court has not seen those cases. The arguments which may be drawn from the form of the indictment, though strong, are not conclusive. In the precedent found in Tremaine, Mary Speake, who was indicted for furnishing provisions to the party of the Duke of Monmouth, is indicted for furnishing provisions to those who were levying war, not for levying war herself. It may correctly be argued, that had this act amounted to levying war,  she would have been indicted for levying war, and the furnishing of provisions would have been laid as the overt  act. The court felt this when the precedent was produced. But the argument, though strong, is not conclusive, because in England, the inquiry whether she had become a traitor by levying war, or by giving aid and comfort to those who were levying war, was unimportant, and because, too, it does not appear from the indictment that she was actually concerned in the rebellion, that she belonged to the rebel party, or was guilty of any thing further than a criminal speculation in selling them provisions. \nIt is not deemed necessary to trace the doctrine that in treason all are principals, to its source. Its origin is most probably stated correctly by Judge Tucker, in a work, the merit of which is with pleasure acknowledged. But if a spurious doctrine has been introduced into the common law, and has for centuries been admitted as genuine, it would require great hardihood in a judge to reject it. Accordingly, we find those of the English jurists who seem to disapprove the principle, declaring that it is now too firmly settled to be shaken. \nIt is unnecessary to trace this doctrine to its source for another reason. The terms of the constitution comprise no question respecting principal  and accessary, so far as either may be truly and in fact said to levy war: Whether in England a person would be indicted in express terms for levying war, or for assisting others in levying war, yet if, in correct and legal language, he can be said to have levied war, and if it has never been decided that the act would not amount to levying war, his case may without violent construction be brought within the letter and the plain meaning of the constitution. \nIn examining these words, the argument which may be drawn from felonies, as for example, from murder, is not more conclusive. Murder is the single act of killing with malice aforethought. But war is a complex operation composed of many parts, co-operating with each other. No one man or body of men can perform them all if the war be of any continuance. Although, then, in correct and in law language, he alone is said to have murdered another who has perpetrated the fact of killing, or has been present aiding that fact, it does not follow that he alone can have levied war who has borne arms.All those who perform the various and essential military parts of prosecuting the war which must be assigned to different persons, may with  correctness and accuracy be said to levy war. \nTaking this view of the subject, it appears to the court, that those who perform a part in the prosecution of the war may correctly be said to levy war and to commit treason under the constitution. It will be observed that this opinion does not extend to the case of a person who performs no act in the prosecution of the war, who counsels and advises it, or who being engaged in the conspiracy fails to perform his part. Whether such persons may be implicated by the doctrine, that whatever would make a man an accessary in felony makes him a principal in treason, or are excluded, because that doctrine is inapplicable to the United States, the constitution having declared that treason shall consist only in levying war, and having made the proof of overt acts necessary to conviction, is a question of vast importance which it would be proper for the supreme court to take a fit occasion to decide,  but which an inferior tribunal would not willingly determine unless the case before them should require it. \nIt may now be proper to notice the opinion of the supreme court in the case of the United States against Bollman and Swartwout.  It is said that this opinion in declaring that those who do not bear arms may yet be guilty of treason, is contrary to law, and is not obligatory, because it is extra-judicial, and was delivered on a point not argued. This court is  therefore required to depart from the principle there laid down. \nIt is true, that in that case after forming the opinion that no treason could be committed, because no treasonable assemblage had taken place, the court might have dispensed with proceeding further in the doctrines of treason. But it is to be remembered, that the judges might act separately, and perhaps at the same time, on the various prosecutions which might be instituted, and that no appeal lay from their decisions. Opposite judgments on the point would have presented a state of things infinitely to be deplored by all. It was not surprising, then, that they should have made some attempt to settle principles which would probably occur, and which were in some degree connected with the point before them. \nThe court had employed some reasoning to show that without the actual embodying of men, war could not be levied. It might have been inferred from this, that those only who  were so embodied could be guilty of treason. Not only to exclude this inference, but also to affirm the contrary, the court proceeded to observe, \"It is not the intention of the court to say that no individual can be guilty of this crime who has not appeared in arms against his country. On the contrary, if war be actually levied, that is, if a body of men be actually assembled for the purpose of effecting by force a treasonable object, all those who perform any part, however minute, or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered as traitors.\" \nThis court is told that if this opinion be incorrect it ought not to be obeyed, because it was extra-judicial. For myself, I can say that I could not lightly be prevailed on to disobey it, were I even convinced that it was crroneous, but I would certainly use any means which the law placed in my power to carry the question again before the supreme court, for reconsideration, in a case in which it would directly occur and be fully argued. \nThe court which gave this opinion was composed of four judges.At the time I thought them unanimous, but I have since had reason to  suspect that one of them, whose opinion is entitled to great respect, and whose indisposition prevented his entering into the discussions, on some of those points which were not essential to the decision of the very case under consideration, did not concur in this particular point with his brethren. Had the opinion been unanimous, it would have been given by a majority of the judges.But should the three who were absent concur with that judge who was present, and who perhaps dissents from what was then the opinion of the court, a majority of the judges may overrule this decision. I should therefore feel no objection, although I then thought, and still think the opinion perfectly correct,  to carry the point if possible again before the supreme court, if the case should depend upon it. \nIn saying that I still think the opinion perfectly correct, I do not consider myself as going further than the preceding reasoning goes. Some gentlemen have argued as if the supreme court had adopted the whole doctrine of the English books on the subject of accessaries to treason. But certainly such is not the fact. Those only who perform a part, and who are leagued in the conspiracy are  declared to be traitors. To complete the definition both circumstances must concur. They must \"perform a part,\" which will furnish the overt act, and they must be \"leagued in the conspiracy.\" The person who comes within this description, in the opinion of the court, levies war. The present motion, however, does not rest upon this point; for, if under this indictment the United States might be let in to prove the part performed by the prisoner, if he did perform any part, the court could not stop the testimony in its present stage. \n2d. The second point involves the character of the overt act which has been given in evidence, and calls upon the court to declare whether that act can amount to levying war. Although the court ought now to avoid any analysis of the testimony which has been offered in this case, provided the decision of the motion should not rest upon it, yet many reasons concur in giving peculiar propriety to a delivery, in the course of these trials, of a detailed opinion on the question, what is levying war?As this question has been argued at great length it may probably save much trouble to the counsel now to give that opinion. \nIn opening the case it was contended  by the attorney for the United States, and has since been maintained on the part of the prosecution, that neither arms nor the application of force or violence are indispensably necessary to constitute the fact of levying war. To illustrate these positions several cases have been stated, many of which would clearly amount to treason. In all of them, except that which was probably intended to be this case, and on which no observation will be made, the object of the assemblage was clearly treasonable: its character was unequivocal, and was demonstrated by evidence furnished by the assemblage itself: there was no necessity to rely upon information drawn from extrinsic sources, or in order to understand the fact, to pursue a course of intricate reasoning and to conjecture motives. A force is supposed to be collected for an avowed treasonable object, in a condition to attempt that object, and to have commenced the attempt by moving towards it. I state these particulars because, although the cases put may establish the doctrine they are intended to support, may prove that the absence of arms, or the failure to apply force to sensible objects by the actual commission of violence on those  objects, may be supplied by other circumstances, yet, they also serve to show that the mind requires those circumstances to be satisfied that war is levied. \nTheir construction of the opinion of the supreme court is, I think, thus far correct. It is certainly the opinion which was at the time entertained by myself, and which is still entertained. If a rebel army, avowing its hostility to the sovereign power, should front that of the government, should march and countermarch before it, should man oeuvre in its face, and should then disperse from any cause whatever without firing a gun, I confess I could not  without some surprise, hear gentlemen seriously contend that this could not amount to an act of levying war. A case equally strong may be put with respect to the absence of military weapons. If the party be in a condition to  execute the purposed treason without the usual implements of war, I can perceive no reason for requiring those implements in order to constitute the crime. \nIt is argued that no adjudged case can be produced from the English books where actual violence has not been committed. Suppose this were true. No adjudged case has, or it is  believed, can be produced from those books in which it has been laid down, that war cannot be levied without the actual application of violence to external objects. The silence of the reporters on this point may be readily accounted for. In cases of actual rebellion against the government, the most active and influential leaders are generally most actively engaged in the war, and as the object can never be to extend punishment to extermination, a sufficient number are found among those who have committed actual hostilities, to satisfy the avenging arm of justice. In cases of constructive treason, such as pulling down meeting-houses, where the direct and avowed object is not the destruction of the sovereign power, some act of violence might be generally required to give the crime a sufficient degree of malignity to convert it into treason, to render the guilt of any individual unequivocal. \nBut Vaughan's case is a case where there was no real application of violence, and where the act was adjudged to be treason. Gentlemen argue that Vaughan was only guilty of adhering to the king's enemies, but they have not the authority of the court for so saying. The judges unquestionably treat  the cruising of Vaughan as an overt act of levying war. \nThe opinions of the best elementary writers concur in declaring, that where a body of men are assembled for the purpose of making war against the government, and are in a condition to make that war, the assemblage is an act of levying war. These opinions are contradicted by no adjudged case, and are supported by Vaughan's case. This court is not inclined to controvert them. \nBut although in this respect, the opinion of the supreme court has not been misunderstood on the part of the prosecution, that opinion seems not to have been fully adverted to in a very essential point in which it is said to have been misconceived by others. \nThe opinion I am informed, has been construed to mean that any assemblage whatever for a treasonable purpose, whether in force, or not in force, whether in a condition to use violence, or not in that condition, is a levying of war. It is this construction, which has not indeed been expressly advanced at the bar, but which is said to have been adopted elsewhere, that the court deems it necessary to examine. \nIndependent of authority, trusting only to the dictates of reason, and expounding terms according  to their ordinary signification, we should probably all concur in the declaration that war could not be levied without the employment and exhibition of force. War is an appeal from reason to the sword, and he who makes the appeal evidences the fact by the use of the  means. His intention to go to war may be proved by words, but the actual going to war is a fact which is to be proved by open deed. The end is to be effected by force, and it would seem that in cases where no declaration is to be made, the state of actual war could only be created by the employment of force, or being in a condition to employ it. \nBut the term having been adopted by our constitution, must be understood in that sense in which it was universally received in this country, when the constitution was framed. The sense in which it was received is to be collected from the most approved authorities of that nation from which we have borrowed the term. \nLord Coke says, that levying war against the king was treason at the common law. \"A compassing or conspiracy to levy war,\" he adds, \"is no treason, for there must be a levying of war in fact.\" He proceeds to state cases of constructive levying war,  where the direct design is not to overturn the government but to effect some general object by force. The terms he employs in stating these cases, are such as indicate an impression on his mind, that actual violence is a necessary ingredient in constituting the fact of levying war. He then proceeds to say, \"an actual rebellion or insurrection is a levying of war within this act.\" \"If any with strength and weapons invasive and defensive doth hold and defend a castle or fort against the king and his power, this is levying of war against the king.\" These cases are put to illustrate what he denominates \"a war in fact.\" It is not easy to conceive \"an actual invasion or insurrection\" unconnected with force, nor can \"a castle or fort be defended with strength and weapons invasive and defensive\" without the employment of actual force. It would seem then to have been the opinion of Lord Coke, that to levy war there must be an assemblage of men in a condition and with an intention to employ force. He certainly puts no case of a different description. \nLord Hale says, (149. 6.) \"what shall be said a levying of war is partly a question of fact, for it is not every unlawful or riotous assembly  of many persons to do an unlawful act, though de facto they commit the act they intend, that makes a levying of war; for then every riot would be treason,\" &c. \"but it must be such an assembly as carries with it speciem belli the appearance of war, as if they ride or march, vexillis explicatis, with colours flying, or if they be formed into companies, or furnished with military officers, or if they are armed with military weapons, as swords, guns, bills, halberds, pikes, and are so circumstanced that it may be reasonably concluded they are in a posture of war, which circumstances are so various that it is hard to describe them all particularly.\" \n\"Only the general expressions in all the indictments of this nature that I have seen are more guerrino arraiati, arrayed in a warlike manner.\" \nHe afterwards adds, \"If there be a war levied as is above declared, viz. an assembly arrayed in warlike manner, and so in the posture of war for any treasonable attempt, it is bellum levatum, but not percussum.\" \nIt is obvious that Lord Hale supposed an assemblage of men in force, in a military posture, to be necessary to constitute the fact of levying war. The idea he appears to suggest,   that the apparatus of war is necessary, has been  very justly combated by an able judge who has writen a valuable treatise on the subject of treason; but it is not recollected that his position, that the assembly should be in a posture of war for any treasonable attempt, has ever been denied. Hawk. ch. 17. sec. 23. says, \"That not only those who rebel against the king and take up arms to dethrone him, but also in many other cases, those who in a violent and forcible manner withstand his lawful authority are said to levy war against him, and therefore those that hold a fort or castle against the king's forces, or keep together armed numbers of men against the king's express command, have been adjudged to levy war against him.\" \nThe cases put by Hawkins are all cases of actual force and violence. \"Those who rebel against the king and take up arms to dethrone him,\" in many other cases those \"who in a violent and forcible manner withstand his lawful authority.\" \"Those that hold a fort or castle against his forces, or keep together armed numbers of men against his express command.\" \nThese cases are obviously cases of force and violence. \nHawkins next proceeds to describe cases  in which war is understood to be levied under the statute, although it was not directly made against the government. This Lord Hale terms an interpretative or constructive levying of war, and it will be perceived that he puts no case in which actual force is dispensed with. \n\"Those also, he says, who make an insurrection in order to redress a public grievance, whether it be a real or pretended one, and of their own authority attempt with force to redress it, are said to levy war against the king, although they have no direct design against his person, inasmuch as they insolently invade his prerogative, by attempting to do that by private authority which he by public justice ought to do, which manifestly tends to a downright rebellion. As where great numbers by force attempt to remove certain persons from the king,\" &c. The cases here put by Hawkins of a constructive levying of war, do in terms require force as a constituent part of the description of the offence. \nJudge Foster, in his vaiuable treatise on treason, states the opinion which has been quoted from Lord Hale, and differs from that writer so far as the latter might seem to require swords, drums, colours, &c. what he terms  the pomp and pageantry of war, as essential circumstances to constitute the fact of levying war. In the cases of Damaree and Purchase, he says, \"the want of those circumstances weighed nothing with the court, although the prisoner's counsel insisted much on that matter.\" But he adds, \"the number of the insurgents supplied the want of military weapons; and they were provided with axes, crows, and other tools of the like nature, proper for the mischief they intended to effect. Furor arma ministrat.\" \nIt is apparent that Judge Foster here alludes to an assemblage in force, or, as Lord Hale terms it, \"in a warlike posture;\" that is, in a condition to attempt or proceed upon the treason which had been contemplated. The same author afterwards states at large the cases of Damaree and Purchase, from 8th State Trials, and they are cases where the insurgents not only assembled in force, in the posture of war, or in a condition to execute the treasonable design,  but they did actually carry it into execution, and did resist the guards who were sent to disperse them. \nJudge Foster states, sec. 4. all insurrections to effect certain innovations of a public and general concern by an  armed force, to be, in construction of law, high treason within the clause of levying war. \nThe cases put by Foster of constructive levying of war, all contain as a material ingredient, the actual employment of force. After going through this branch of his subject, he proceeds to state the law in a case of actual levying war, that is, where the war is intended directly against the government. \nHe says, sec. 9. \"An assembly armed and arrayed in a warlike manner for a treasonable purpose, is bellum levatum, though not bellum percussum. Listing and marching are sufficient overt acts without coming to a battle or action. So cruising on the king's subjects under a French commission, France being then at war with us, was held to be adhering to the king's enemies, though no other act of hostility be proved.\" \n\"An assembly armed and arrayed in a warlike manner for any treasonable purpose\" is certainly in a state of force; in a condition to execute the treason for which they assembled.The words \"enlisting and marching,\" which are overt acts of levying war, do, in the arrangement of the sentence, also imply a state of force, though that state is not expressed in terms, for the succeeding  words, which state a particular event as not having happened, prove that event to have been the next circumstance to those which had happened -- they are \"without coming to a battle or action.\" \"If men be enlisted and march,\" (that is, if they march prepared for battle, or in a condition for action, for marching is a technical term applied to the movement of a military corps,) it is an overt act of levying war, though they do not come to a battle or action. This exposition is rendered the stronger by what seems to be put in the same sentence as a parallel case with respect to adhering to an enemy. It is cruising under a commission from an enemy, without committing any other act of hostility. Cruising is the act of sailing in warlike form, and in a condition to assail those of whom the cruiser is in quest. \nThis exposition, which seems to be that intended by Judge Foster, is rendered the more certain by a reference to the case in the State Trials from which the extracts are taken. The words used by the chief justice are, \"when men form themselves into a body and march rank and file with weapons offensive and defensive, this is levying of war with open force, if the design be public.\"  Mr. Phipps, the counsel for the prisoner, afterwards observed, \"Intending to levy war is not treason, unless a war be actually levied.\" To this the chief justice answered, \"Is it not actually levying of war, if they actually provide arms and levy men, and in a warlike manner set out and cruise, and come with a design to destroy our  ships?\" Mr. Phipps still insisted, \"it would not be an actual levying of war unless they committed some act of hostility.\" \"Yes, indeed,\" said the chief justice, \"the going on board and being in a posture to attack the king's ships.\" Mr. Baron Powis added, \"but for you to say that because they did not actually fight it is not a levying of war, is it not plain what they did intend? That they came with that intention, that they came in that posture, that they came armed, and had guns and  blunderbusses, and surrounded the ship twice; they came with an armed force, that is a strong evidence of the design.\" \nThe point insisted on by counsel in the case of Vaughan, as in this case, as, that war could not be levied without actual fighting. In this the counsel was very properly overruled; but it is apparent that the judges proceeded entirely  on the idea that a warlike posture was indispensable to the fact of levying war. \nJudge Foster proceeds to give other instances of levying war. \"Attacking the king's forces in opposition to his authority upon a march or in quarters is levying war.\" \"Holding a castle or fort against the king or his forces, if actual force be used in order to keep possession, is levying war. But a bare detainer, as suppose by shutting the gates against the king or his forces, without any other force from within, Lord Hale conceiveth will not amount to treason.\" \nThe whole doctrine of Judge Foster on this subject, seems to demonstrate a clear opinion that a state of force and violence, a posture of war, must exist to constitute technically as well as really the fact of levying war. \nJudge Blackstone seems to concur with his predecessors. Speaking of levying war, he says, \"This may be done by taking arms not only to dethrone the king, but under pretence to reform religion, or the laws, or to remove evil counsellors, or other grievances, whether real or pretended. For the law does not, neither can it, permit any private man or set of men to interfere forcibly in matters of such high importance.\" \nHe  proceeds to give examples of levying war, which show that he contemplated actual force as a necessary ingredient in the composition of this crime. \nIt would seem then from the English authorities, that the words \"levying war,\" have not received a technical, different from their natural, meaning, so far as respects the character of the assemblage of men which may constitute the fact. It must be a warlike assemblage, carrying the appearance of force, and in a situation to practise hostility. \nSeveral judges of the United States have given opinions at their circuits on this subject, all of which deserve and will receive the particular attention of this court. \nIn his charge to the grand jury, when John Fries was indicted, in consequence of a forcible opposition to the direct tax, Judge Iredell is understood to have said, \"I think I am warranted in saying, that if in the case of the insurgents who may come under your consideration, the intention was to prevent by force of arms the execution of any act of the congress of the United States altogether, any forcible opposition calculated to carry that intention into effect, was a levying of war against the United States, and of course and  act of treason.\" To levy war then, according to this opinion of Judge Iredell, required the actual exertion of force. \n Judge Paterson, in his opinions delivered in two different cases, seems not to differ from Judge Iredell. He does not, indeed, precisely state the employment of force as necessary to constitute a levying of war, but in giving his opinion in cases in which force was actually employed, he considers the crime in one case as dependent on the intention, and in the other case he says, \"combining these facts with this design,\" (that is, combining actual force with a treasonable design,) \"the crime is high treason.\" \nJudge Peters has also indicated the opinion that force was necessary to constitute the crime of levying war. \nJudge Chase has been particularly clear and explicit.In an opinion which he appears to have prepared on great consideration, he says, \"The court are of opinion, that if a body of people conspire and meditate an insurrection to resist or oppose the execution of a statute of the United States by force, that they are only guilty of a high misdemeanor: but if they proceed to carry such intention into execution by force, that they are guilty of  the treason of levying war; and the quantum of the force employed neither increases nor diminishes the crime; whether by one hundred or one thousand persons, is wholly immaterial. \n\"The court are of opinion, that a combination or conspiracy to levy war against the United States, is not treason unless combined with an attempt to carry such combination or conspiracy into execution, some actual force or violence must be used in pursuance of such design to levy war: but that it is altogether immaterial whether the force used be sufficient to effectuate the object. Any force connected with the intention will constitute the crime of levying of war.\" \nIn various parts of the opinion delivered by Judge Chase, in the case of Fries, the same sentiments are to be found. It is to be observed, that these judges are not content that troops should be assembled, in a condition to employ force; according to them, some degree of force must have been actually employed. \nThe judges of the United States, then, so far as their opinions have been quoted, seem to have required still more to constitute the fact of levying war, than has been required by the English books. Our judges seem to have required  the actual exercise of force, the actual employment of some degree of violence. This, however, may be, and probably is, because in the cases in which their opinions were given, the design not having been to overturn the government, but to resist the execution of a law, such an assemblage would be sufficient for the purpose, as to require the actual employment of force to render the object unequivocal. \nBut it is said all these authorities have been overruled by the decision of the supreme court in the case of the United States against Swartwout and Bollman. \nIf the supreme court have indeed extended the doctrine of treason, further than it has heretofore  been carried by the judges of England, or of this country, their decision would be submitted to. At least this court could go no further than to endeavour again to bring the point directly before them.It would  however be expected that an opinion which is to overrule all former precedents, and to establish a principle never before recognized, should be expressed in plain and explicit terms. A mere implication ought not to prostrate a principle which seems to have been so well established. Had the intention  been entertained to make so material a change in this respect, the court ought to have expressly declared, that any assemblage of men whatever, who had formed a treasonable design, whether in force or not, whether in a condition to attempt the design or not, whether attended with warlike appearances or not, constitutes the fact of levying war. Yet no declaration to this amount is made. Not an expression of the kind is to be found in the opinion of the supreme court. The foundation on which this argument rests is the omission of the court to state, that the assemblage which constitutes the fact of levying war ought to be in force, and some passages which show that the question respecting the nature of the assemblage was not in the mind of the court when the opinion was drawn, which passages are mingled with others, which at least show that there was no intention to depart from the course of the precedents in cases of treason by levying war. \nEvery opinion, to be correctly understood, ought to be considered with a view to the case in which it was delivered. In the case of the United States against Bollman and Swartwout, there was no evidence that even two men had ever met for the  purpose of executing the plan, in which those persons were charged with having participated. It was therefore sufficient for the court to say that unless men were assembled, war could not be levied. That case was decided by this declaration. The court might indeed have defined the species of assemblage which would amount to levying of war; but, as this opinion was not a treatise on treason, but a decision of a particular case, expressions of doubtful import should be construed in reference to the case itself; and the mere omission to state that a particular circumstance was necessary to the consummation of the crime, ought not to be construed into a declaration that the circumstance was unimportant. General expressions ought not to be considered as overruling settled principles without a direct declaration to that effect. After these preliminary observations the court will proceed to examine the opinion which has occasioned them. \nThe first expression in it bearing on the present question is, \"To constitute that specific crime for which the prisoner now before the court has been committed, war must be actually levied against the United States. However flagitious may be the crime  of conspiracy to subvert by force the government of our country, such conspiracy is not treason. To conspire to levy war and actually to levy war, are distinct offences. The first must be brought into operation by the assemblage of men for a purpose treasonable in itself, or the fact of levying war cannot have been committed.\" \nAlthough it is not expressly stated that the assemblage of men for the purpose of carrying into operation the treasonable intent, which will amount to levying war, must be an assemblage in force, yet it is fairly to be inferred from the context, and nothing like dispensing with force appears in this paragraph. The expressions are, \"to constitute the crime war must be actually levied.\" A conspiracy to levy war is spoken of as \"a conspiracy to subvert by force the government of our country.\" Speaking in general terms of an assemblage of men for this, or for any other purpose, a person would naturally be understood as speaking of an assemblage in some degree adapted to the  purpose. An assemblage to subvert by force the government of our country, and amounting to a levying of war, should be an assemblage in force. \nIn a subsequent paragraph the court  says, \"It is not the intention of the court to say, that no individual can be guilty of this crime who has not appeared in arms against his country. On the contrary if war be actually levied, that is, if a body of men be actually assembled in order to effect by force a treasonable purpose, all those who perform any part, however minute, &c. and who are actually leagued in the general conspiracy, are traitors. But there must be an actual assembling of men for the treasonable purpose, to constitute a levying of war.\" \nThe observations made on the preceding paragraph apply to this. \"A body of men actually assembled, in order to effect by force a treasonable purpose,\" must be a body assembled with such appearance of force as would warrant the opinion that they were assembled for the particular purpose; an assemblage to constitute an actual levying of war should be an assemblage with such appearance of force as would justify the opinion that they met for the purpose. \nThis explanation, which is believed to be the natural, certainly not a strained explanation of the words, derives some additional aid from the terms in which the paragraph last quoted commences. \"It is not the intention  of the court to say that no individual can be guilty of treason who has not appeared in arms against his country.\" These words seem to obviate an inference which might otherwise have been drawn from the preceding paragraph. They indicate that in the mind of the court the assemblage stated in that paragraph was an assemblage in arms. That the individuals who composed it, had appeared in arms against their country. That is in other words, that the assemblage was a military, a warlike assemblage. \nThe succeeding paragraph in the opinion relates to a conspiracy, and serves to show that force and violence were in the mind of the court, and that there was no idea of extending the crime of treason by construction beyond the constitutional definition which had been given of it. \nReturning to the case actually before the court, it is said, \"a design to overturn the government of the United States in New-Orleans by force, would have been unquestionably a design which if carried into execution would have been treason, and the assemblage of a body of men for the purpose of carrying it into  execution would amount to levying of war against the United States\" \nNow what could reasonably  be said to be an assemblage of a body of men for the purpose of overturning the government of the United States in New-Orleans by force? Certainly an assemblage in force; an assemblage prepared and intending to act with force; a military assemblage. \nThe decisions theretofore made by the judges of the United States, are then declared to be in conformity with the principles laid down by the supreme court. Is this declaration compatible with the idea of departing from those opinions on a point within the contemplation of the court? The  opinions of Judge Paterson and Judge Iredell are said \"to imply an actual assembling of men, though they rather designed to remark on the purpose to which the force was to be applied than on the nature of the force itself.\" This observation certainly indicates that the necessity of an assemblage of men was the particular point the court meant to establish, and that the idea of force was never separated from this assemblage. \nThe opinion of Judge Chase is next quoted with approbation. This opinion in terms requires the employment of force. \nAfter stating the verbal communications said to have been made by Mr. Swartwout to general Wilkinson,  the court says, \"if these words import that the government of New-Orleans was to be revolutionized by force, although merely as a step to or a mean of executing some greater projects, the design was unquestionably treasonable, and any assemblage of men for that purpose would amount to a levying of war.\" \nThe words \"any assemblage of men,\" if construed to affirm that any two or three of the conspirators who might be found together after this plan had been formed, would be the act of levying war, would certainly be misconstrued. The sense of the expressions \"any assemblage of men,\" is restricted by the words \"for this purpose.\" Now could it be in the contemplation of the court that a body of men would assemble for the purpose of revolutionizing New-Orleans by force, who should not themselves be in force? \nAfter noticing some difference of opinion among the judges respecting the import of the words said to have been used by Mr. Swartwout, the court proceeds to observe: \"But whether this treasonable intention be really imputable to the plan or not, it is admitted that it must have been carried into execution by an open assemblage for that purpose, previous to the arrest of the prisoner,  in order to consummate the crime as to him?\" \nCould the court have conceived \"an open assemblage\" \"for the purpose of overturning the government of New-Orleans by force\" \"to be only equivalent to a secret furtive assemblage without the appearance of force.\" \nAfter quoting the words of Mr. Swartwout, from the affidavit, in which it was stated that Mr. Burr was levying an army of 7,000 men, and observing that the treason to be inferred from these words would depend on the intention with which it was levied, and on the progress which had been made in levying it, the court say, \"the question then is, whether this evidence proves colonel Burr to have advanced so far in levying an army as actually to have assembled them.\" \nActually to assemble an army of 7,000 men is unquestionably to place those who are so assembled in a state of open force. \nBut as the mode of expression used in this passage might be misconstrued so far as to countenance the opinion that it would be necessary to assemble the whole army in order to constitute the fact of levying war, the court proceeds to say, \"It is argued that since it cannot be necessary that the whole 7,000 men should be assembled, their commencing  their march by detachments  to the place of rendezvous must be sufficient to constitute the crime.\" \n\"This position is correct with some qualification. It cannot be necessary that the whole army should assemble and that the various parts which are to compose it should have combined. But it is necessary there should be an actual assemblage; and therefore this evidence should make the fact unequivocal. \n\"The travelling of individuals to the place of rendevous, would perhaps not be sufficient. This would be an equivocal act, and has no warlike appearance. The meeting of particular bodies of men, and their marching from places of partial to a place of general rendezvous, would be such an assemblage.\" \nThe position here stated by the counsel for the prosecution is, that the army \"commencing its march by detachments to the place of rendezvous (that is of the army) must be sufficient to constitute the crime.\" \nThis position is not admitted by the court to be universally correct. It is said to be \"correct with some qualification.\" What is that qualification? \n\"The travelling of individuals to the place of rendezvous,\" (and by this term is not to be understood one individual  by himself, but several individuals either separately or together but not in military form) \"would perhaps not be sufficient.\" Why not sufficient? \"Because,\" says the court, \"this would be an equivocal act and has no warlike appearance.\" The act, then, should be unequivocal and should have a warlike appearance. It must exhibit, in the words of Sir Matthew Hale, speciem belli the appearance of war. \nThis construction is rendered in some measure necessary when we observe that the court is qualifying the position, \"That the army commencing their march by detachments to the place of rendezvous must be sufficient to constitute the crime.\" In qualifying this position they say, \"the travelling of individuals would perhaps not be sufficient.\" Now, a solitary individual travelling to any point, with any intent, could not, without a total disregard of language, be termed a marching detachment. The court, therefore, must have contemplated several individuals travelling together; and the words being used in reference to the position they were intended to qualify, would seem to indicate the distinction between the appearances attending the usual movement of a company of men for civil purposes,  and that military movement which might in correct language be denominated \"marching by detachments.\" \nThe court then proceeded to say, \"the meeting  of particular bodies of men, and their marching from places of partial to a place of general rendezvous, would be such an assemblage.\" \nIt is obvious from the context, that the court must have intended to state a case which would in itself be unequivocal, because it would have a warlike appearance. The case stated is that of distinct bodies of men assembling at different places and marching from these places of partial to a  place of general rendezvous. When this has been done, an assemblage is produced which would in itself be unequivocal. But when is it done? what is the assemblage here described? The assemblage formed of the different bodies of partial at a general place of rendezvous. In describing the mode of coming to this assemblage the civil term \"travelling\" is dropped, and the military term \"marching\" is employed. If this was intended as a definition of an assemblage which would amount to levying war, the definition requires an assemblage at a general place of rendezvous composed of bodies of men who  had previously assembled at places of partial rendezvous. But this is not intended as a definition, for clearly if there should be no places of partial rendezvous, if troops should embody in the first instance, in great force for the purpose of subverting the government by violence, the act would be unequivocal, it would have a warlike appearance, and it would, according to the opinion of the supreme court properly construed, and according to the English authorities, amount to levying war. But this, though not a definition, is put as an example; and surely it may be safely taken as an example. If different bodies of men, in pursuance of a treasonable design plainly proved, should assemble in warlike appearance at places of partial rendezvous, and should march from those places to a place of general rendezvous, it is difficult to conceive how such a transaction could take place without exhibiting the appearance of war, without an obvious display of force. At any rate, a court in stating generally such a military assemblage as would amount to levying war, and having a case before them in which there was no assemblage whatever, cannot reasonably be understood in putting such an example,  to dispense with those appearances of war which seem to be required by the general current of authorities. Certainly they ought not to be so understood when they say in express terms, that \"it is more safe as well as more consonant to the principles of our constitution, that the crime of treason should not be extended by construction to doubtful cases; and that crimes not already within the constitutional definition, should receive such punishment as the legislature in its wisdom may provide.\" \nAfter this analysis of the opinion of the supreme court, it will be observed, that the direct question whether an assemblage of men which might be construed to amount to a levying of war, must appear in force or in military form, was not in argument or in fact before the court, and does not appear to have been in terms decided? The opinion seems to have been drawn without particularly adverting to this question, and therefore upon a transient view of particular expressions, might inspire the idea that a display of force, that appearances of war were not necessary ingredients to constitute the fact of levying war. But upon a more intent and more accurate investigation of this opinion, although  the terms force and violence are not employed as descriptive of the assemblage, such requisites are declared to be indispensable as can scarcely exist without the appearance of war and the existence of real force. It is said that war must be levied in fact; that the object must be one which is to be effected by force; that the assemblage must be such as to prove that this is its object; that it must not be an equivocal act, without a warlike appearance; that it must be an open assemblage for the purpose of force. In the course of this opinion, decisions are quoted and approved, which require the employment of force to constitute the crime. It seems extremely difficult, if not impossible, to reconcile these various declarations with the idea that the supreme court considered a secret unarmed meeting, although that  meeting be of conspirators, and although it met with a treasonable intent, as an actual levying of war. Without saying that the assemblage must be in force or in warlike form, they express themselves so as to show that this idea was never discarded, and they use terms which cannot be otherwise satisfied. \nThe opinion of a single judge certainly weights as nothing  if opposed to that of the supreme court; but if he was one of the judges who assisted in framing that opinion, if while the impression under which it was framed was yet fresh upon his mind, he delivered an opinion on the same testimony, not contradictory to that which had been given by all the judges together, but showing the sense in which he understood terms that might be differently expounded, it may fairly be said to be in some measure explanatory of the opinion itself. \nTo the judge before whom the charge against the prisoner at the bar was first brought, the same testimony was offered with that which had been exhibited before the supreme court, and he was required to give an opinion in almost the same case. Upon this occasion he said, \"War can only be levied by the employment of actual force. Troops must be embodied; men must be assembled in order to levy war.\" Again he observed, \"The fact to be proved in this case is an act of public notoriety. It must exist in the view of the world, or it cannot exist, at all. The assembling of forces to levy war is a visible transaction, and numbers must witness it.\" \nIt is not easy to doubt what kind of assemblage was in the mind of the  judge who used these expressions, and it is to be recollected that he had just returned from the supreme court, and was speaking on the very facts on which the opinion of that court was delivered. \nThe same judge in his charge to the grand jury who found this bill, observed, \"To constitute the fact of levying war, it is not necessary that hostilities shall have actually commenced by engaging the military force of the United States, or that measures of violence against the government shall have been carried into execution. But levying war is a fact in the constitution of which force is an indispensable ingredient. Any combination to subvert  by force the government of the United States, violently to dismember the union, to compel a change in the a liministration, to coerce the repeal or adoption of a general law, is a conspiracy to levy war, and if the conspiracy be carried into effect by the actual employment of force, by the embodying and assembling of men for the purpose of executing the treasonable design which was previously conceived, it amounts to levying of war. It has been held that arms are not essential to levying war provided the force assembled be sufficient  to attain, or perhaps to justify attempting the object without them.\" This paragraph is immediately followed by a reference to the opinion of the supreme court. \nIt requires no commentary upon these words, to show, that in the opinion of the judge who uttered them, an assemblage of men which should constitute the fact of levying war must be an assemblage in force, and that he so understood the opinion of the supreme court. If in that opinion, there may be found in some passages, a want of precision, and indefiniteness of expression,  which has occasioned it to be differently understood by different persons, that may well be accounted for when it is recollected that in the particular case there was no assemblage whatever. In expounding that opinion the whole should be taken together, and in reference to the particular case in which it was delivered. It is, however, not improbable that the misunderstanding has arisen from this circumstance. The court unquestionably did not consider arms as an indispensable requisite to levying war; an assemblage adapted to the object might be in a condition to effect or to attempt it without them. Nor did the court consider the actual  application of the force to the object, at all times, an indispensable requisite; for an assemblage might be in a condition to apply force, might be in a state adapted to real war, without having made the actual application of that force. From these positions, which are to be found in the opinion, it may have been inferred, it is thought too hastily, that the nature of the assemblage was unimportant, and that war might be considered as actually levied by any meeting of men, if a criminal intention can be imputed to them by testimony of any kind whatever. \nIt has been thought proper to discuss this question at large, and to review the opinion of the supreme court, although this court would be more disposed to leave the question of fact, whether an overt act of levying war was committed on Blennerhassett's island to the jury under this explanation of the law, and to instruct them, that unless the assemblage on Blennerhassett's island was an assemblage in force; was a military assemblage in a condition to make war, it was not a levying of war, and that they could not construe it into an act of war, than to arrest the further testimony which might be offered to connect the prisoner with  that assemblage, or to prove the intention of those who assembled together at that place. This point, however, is not to be understood as decided. It will, perhaps, constitute an essential inquiry in another case. \nBefore leaving the opinion of the supreme court entirely on the question of the nature of the assemblage which will constitute an act of levying war, this court cannot forbear to ask, why is an assemblage absolutely required? Is it not to judge in some measure of the end by the proportion which the means bear to the end? Why is it that a single armed individual, entering a boat and sailing down the Ohio, for the avowed purpose of attacking New-Orleans, could not be said to levy war?Is it not that he is apparently not in a condition to levy war? If this be so, ought not the assemblage to furnish some evidence of its intention and capacity to levy war before it can amount to levying war? And ought not the supreme court, when speaking of an assemblage for the purpose of effecting a treasonable object by force, be understood to indicate an assemblage exhibiting the appearance of force. \nThe definition of the attorney for the United States, deserves notice in this respect.  It is \"when there is an assemblage of men, convened for the purpose of effecting by force a treasonable object, which force is meant to be employed before the assemblage disperses, this is treason.\" \nTo read this definition without adverting to the argument, we should infer that the assemblage was itself to effect by force the treasonable object, not to join itself to some other bodies of men and then to effect the object by their combined force. Under this construction it would be expected the appearance  of the assemblage would bear some proportion to the object, and would indicate the intention. At any rate that it would be an assemblage in force. This construction is most certainly not that which was intended, but it serves to show that general phrases must always be understood in reference to the subject matter, and to the general principles of law. \nOn that division of the subject which respects the merits of the case connected with the pleadings, two points are also made. \n1st.That this indictment having charged the prisoner with levying war on Blennerhassett's island and containing no other over act, cannot be supported by proof that war was levied at that place  by other persons, in the absence of the prisoner, even admitting those persons to be connected with him in one common treasonable conspiracy. \n2dly. That admitting such an indictment could be supported by such evidence, the previous conviction of some person who committed the act which is said to amount to levying war, is indipensable to the conviction of a person who advised or procured that act. \nAs to the first point, the indictment contains two counts, one of which charges that the prisoner with a number of persons unknown, levied war on Blennerhassett's island, in the county of Wood, in the district of Virginia; and the other adds the circumstance of their proceeding from that island down the river, for the purpose of seizing New-Orleans by force. \nIn point of fact, the prisoner was not on Blennerhassett's island, nor in the county of Wood, nor in the district of Virginia. \nIn considering this point the court is led first to inquire whether an indictment for levying war must specify an overt act, or would be sufficient if it merely charged the prisoner in general terms with having levied war, omitting the expression of place or circumstance. \n The place in which  a crime was committed is essential to an indictment, were it only to shew the jurisdiction of the court. It is also essential for the purpose of enabling the prisoner to make his defence. That, at common law, an indictment would have been defective which did not mention the place in which the crime was committed, can scarcely be doubted. For this, it is sufficient to refer to Hawkins, B. 2. c. 25. sect. 84. and c. 23. sect. 91. This necessity is rendered the stronger by the constitutional provision that the offender, \"shall be tried in the state and district wherein the crime shall have been committed,\" and by the act of congress which requires that twelve petty jurors at least shall be summoned from the county where the offence was committed. \nA description of the particular manner in which the war was levied, seems also essential to enable the accused to make his defence. The law does not expect a man to be prepared to defend every act of his life which may be suddenly and without notice alleged against him. In common justice the particular fact with which he is charged ought to be stated, and stated in such a manner as to afford a reasonable certainty of the nature of the  accusation, and the circumstances which will be adduced against him. The general doctrine on the subject of indictments is full to this point. Foster, p. 149. speaking  of the treason of compassing the king's death, says, \"From what has been said it followeth that in every indictment for this species of treason, and indeed for levying war and adhering to the king's enemies, an overt act must be alleged and proved. For the overt act is the charge to which the prisoner must apply his defence.\" \nIn p. 220. Foster repeats this declaration. It is also laid down in Hawk. B. 8. c. 17. sect. 29. 1 Hale, 121. 1 East, 116. and by the other authorities cited, especially Vaughan's case. In corroboration of this opinion, it may be observed, that treason can only be established by the proof of overt acts, and that by the common law as well as by the statute of 7 of William III. those overt acts, only which are charged in the indictment can be given in evidence, unless, perhaps, as corroborative testimony after the overt acts are proved. That clause in the constitution, too, which says that in all criminal prosecutions the accused shall enjoy the right \"to be informed of the nature  and cause of the accusation,\" is considered as having a direct bearing on this point. It secures to him such information as will enable him to prepare for his defence. \nIt seems then to be perfectly clear, that it would not be sufficient for an indictment to allege generally that the accused had levied war against the United States. The charge must be more particularly specified by laying what is termed an overt act of levying war. The law relative to an appeal, as cited from Stamford, is strongly corroborative of this opinion. \nIf it be necessary to specify the charge in the indictment, it would seem to follow irresistibly, that the charge must be proved as laid. \nAll the authorities which require an overt act, require also that this overt act should be proved. The decision in Vaughan's case is particularly in point. Might it be otherwise, the charge of an overt act would be a mischief instead of an advantage to the accused. It would lead him from the true cause and nature of the accusation, instead of informing him respecting it. \nBut it is contended on the part of the prosecution that, although the accused had never been with the party which assembled at Blennerhassett's island,  and was, at the time, at a great distance, and in a different state, he was yet legally present, and therefore may properly be charged in the indictment as being present in fact. \nIt is therefore necessary to inquire whether in this case the doctrine of constructive presence can apply. \nIt is conceived by the court to be possible that a person may be concerned in a treasonable conspiracy, and yet be legally, as well as actually, absent, while some one act of the treason is perpetrated. If a rebellion should be so extensive as to spread through every state in the union, it will scarcely be contended that every individual concerned in it is legally present at every overt act committed in the course of that rebellion. It would be a very violent presumption indeed, too violent to be inade without clear authority, to presume that even the chief of the rebel army was legally present at every such overt act. If the main rebel army with the chief at its head, should be prosecuting  war at one extremity of our territory, say in New Hampshire, if this chief should be there captured and sent to the other extremity for the purpose of trial, if his indictment, instead of alleging  an overt act which was true in point of fact, should allege that he had assembled some small party, which in truth he had not seen, and had levied war by engaging in a skirmish in Georgia at a time when in reality he was fighting a battle in New Hampshire, if such evidence would support such an indictment by the fiction that he was legally present though really absent, all would ask to what purpose are those provisions in the constitution which direct the place of trial, and ordain that the accused shall be informed of the nature and cause of the accusation? \nBut that a man may be legally absent who has counselled or procured a treasonable act, is proved by all those books which treat upon the subject, and which concur in declaring that such a person is a principal traitor, not because he was legally present, but because in treason all are principals. Yet the indictment, upon general principles, would charge him according to the truth of the case. Lord Coke says, \"if many conpire to levy war, and some of them do levy the same according to the conspiracy, this is high treason in all.\" Why? Because all were. legally present when the war was levied? No. \"For in treason,\" continues  Lord Coke, \"all be principals, and war is levied.\" In this case the indictment, reasoning from analogy, would not charge that the absent conspirators were present, but would state the truth of the case. If the conspirator had done nothing which amounted to levying of war, and if by our constitution the doctrine that an accessary becomes a principal be not adopted, in consequence of which the conspirator could not be condemned under an indictment stating the truth of the case, it would be going very far to  say that this defect, if it be termed one, may be cured by an indictment stating the case untruly. \nThis doctrine of Lord Coke has been adopted by all subsequent wilters; and it is generally laid down in the English books that whatever will make a man an accessary in felony, will make him a principal in treason; but it is no where suggested that he is by construction to be considered as present when in point of fact he was absent. \nFoster has been particularly quoted, and certainly he is precisely in point. \"It is well known,\" says Foster, \"that in the language of the case, there are no accessaries in high treason; all are principals. Every instance of incitement, aid,  or protection, which in the case of felony will render a man an accessary before or after the fact, in the case of high treason, whether it be treason at common law or by statute, will make him a principal in treason.\" The cases of incitement and aid are cases put as examples of a man's becoming a principal in treason, not because he was legally present, but by force of that maxim in the common law, that whatever will render a man an accessary at common law will render him a principal in treason. In other passages the words \"command\" or \"procure\" are used to indicate the same state of things, that is, a treasonable assemblage produced by a man who is not himself in that assemblage. \nIn point of law then, the man who incites, aids, or procures a treasonable act, is not, merely in consequence of that incitement, aid or procurement, legally present when that act is committed. \n If it does not result from the nature of the crime that all who are concerned in it are legally present at every overt act, then each case depends upon its own circumstances, and to judge how far the circumstances of any case can make him legally present who is in fact absent, the doctrine of constructive  presence must be examined. \nHale, in his 1 vol. p. 615. says, \"regularly no man can be a principal in felony unless he be present.\" In the same page he says, \"an accessary before is he that being absent at the time of the felony committed, doth yet procure, counsel, or command another to commit a felony.\" The books are full of passages which state this to be the law. Foster, in showing what acts of concurrence will make a man a principal, says, \"he must be present at the perpetration, otherwise he can be no more than an accessary before the fact.\" \nThese strong distinctions would be idle, at any rate they would be inapplicable to treason, if they were to be entirely lost in the doctrine of constructive presence. \nFoster adds, p. 349. \"when the law requireth the presence of the accomplice at the perpetration of the fact in order to render him a principal, it doth not require a strict actual immediate presence, such a presence as would make him an eye or ear witness of what passeth.\" The terms used by Foster are such as would be employed by a man intending to show the necessity that the absent person should be near at hand, although from the nature of the thing no precise distance could  be marked out. An inspection of the cases from which Foster drew this general principle will serve to illustrate it. (See Hale, 439.) In all these cases, put by Hale, the whole party set out together to commit the very fact charged in the indictment, or to commit some other unlawful act, in which they are all to be personally concerned at the same time and place, and are, at the very time when the criminal fact is committed, near enough to give actual personal aid and assistance to the man who perpetrated it. Hale, in p. 449. giving the reason for the decision in the case of the Lord Dacres, says, \"they all came with an intent to steal the deer, and consequently the law supposes that they came all with the intent to oppose all that should hinder them in that design.\" The original case says this was their resolution. This opposition would be a personal opposition.This case, even as stated by Hale, would clearly not comprehend any man who entered into the combination, but who, instead of going to the park where the murder was committed, should not set out with the others, should go to a different park, or should even lose his way. See Hale, 534. \nIn both the cases here stated, the  persons actually set out together, and were near enough to assist in the commission of the fact. That in the case of Pudsy the felony was, as stated by Hale, a different felony from that originally intended, is unimportant in regard to the particular principle now under consideration, so far as respected distance, as respected capacity to assist in case of resistance, it is the same as if the robbery had been that which was originally designed. The case in the original report shows that the felony committed was in fact in pursuance of that originally designed. Foster, 350. plainly supposes the same particular design, not a general design composed of many particular distinct facts.He supposes them to be co-operating with respect to that particular design. This may be illustrated by a case which is perhaps  common. Suppose a band of robbers confederated for the general purpose of robbing. They set out together, or in parties, to rob a particular individual, and each performs the part assigned to him. Some ride up to the individual and demand his purse, others watch out of sight to intercept those who might be coming to assist the man on whom the robbery is to be committed.  If murder or robbery actually take place, all are principals, and all in construction of law are present. But suppose they set out at the same time, or at different times, by different roads, to attack and rob different individuals or different companies; to commit distinct acts of robbery. It has never been contended that those who committed one act of robbery, or who failed altogether, were constructively present at the act of those who were associated with them in the common object of robbery, who were to share the plunder, but who did not assist at the particular fact. They do indeed belong to the general party, but they are not of the particular party which committed this fact. Foster concludes this subject by observing, that \"in order to render a person an accomplice and a principal in felony, he must be aiding and abetting at the fact, or ready to afford assistance if necessary.\" That is, at the particular fact which is charged, he must be ready to render assistance to those who are committing that  particular fact; he must, as is stated by Hawkins, be ready to give immediate and direct assistance. \nAll the cases to be found in the books go to the same point.  Let them be applied to that under consideration. \nThe whole treason laid in this indictment is the levying of war in Blennerhassett's island, and the whole question to which the inquiry of the court is now directed is, whether the prisoner was legally present at that fact. \nI say this is the whole question, because the prisoner can only be convicted on the overt act laid in the indictment.With respect to this prosecution, it is as if no other overt act existed. If other overt acts can be inquired into, it is for the sole purpose of proving the particular fact charged; it is as evidence of the crime consisting of this particular fact, not as establishing the general crime by a distinct fact. \nThe counsel for the prosecution have charged those engaged in the detence with considering the overt act as the treason, whereas it ought to be considered solely as the evidence of the treason; but the counsel for the prosecution seem themselves not to have sufficiently adverted to this clear principle, that though the overt act may not be itself the treason, it is the sole act of that treason which can produce conviction. It is the sole point in issue between the parties. And the only division  of that point, if the expression be allowed, which the court is now examining, is the constructive presence of the prisoner at the fact charged. \nTo return then to the application of the cases. \nHad the prisoner set out with the party from Beaver for Blennerhassett's island, or, perhaps, had he set out for that place, though not from Beaver, and had arrived in the island, he would have been present at the fact; had he not arrived in the island, but had taken a position near enough to co-operate with those on the island, to assist them in any act of hostility, or to aid them if attacked, the question whether he was constructively present would be a question  compounded of law and fact, which would be decided by the jury, with the aid of the court, so far as respected the law. In this case the accused would have been of the particular party assembled on the island, and would have been associated with them in the particular act of levying was said to have been committed on the island. \nBut if he was not with the party at any time before they reached the island; if he did not join them there, or intend to join them there; if his personal co-operation in the general plan was  to be afforded elsewhere, at a great distance, in a different state; if the overt acts of treason to be performed by him were to be distinct overt acts; then he was not of the particular party assembled at Blennerhassett's island, and was not constructively present, aiding and assisting in the particular act which was there committed. \nThe testimony on this point, so far as it has been delivered, is not equivocal. There is not only no evidence that the accused was of the particular party which assembled on Blennerhassett's island, but the whole evidence shows he was not of that party. \nIn felony then, admitting the crime to have been completed on the island, and to have been advised, procured, or commanded by the accused, he would have been incontestibly an accessary, and not a principal. \nBut in treason, it is said, the law is otherwise, because the theatre of action is more extensive. \nThis reasoning applies in England as strongly as in the United States. While in '15 and '45 the family of Stuart sought to regain the crown they had forfeited, the struggle was for the whole kingdom; yet no man was ever considered as legally present at one place, when actually at another; or as aiding  in one transaction, while actually employed in another. \nWith the perfect knowledge that the whole nation may be the theatre of action, the English books unite in declaring, that he who counsels, procures, or aids treason, is guilty accessorially, and solely in virtue of the common law principle, that what will make a man an accessary in felony makes him a principal in treason. So far from considering a man as constructively present at every overt act of the general treason in which, he may have been concerned, the whole doctrine of the books limits the proof against him to those particular overt acts of levying war with which he is charged. \nWhat would be the effect of a different doctrine? Clearly that which has been stated. If a person levying war in Kentucky may be said to be constructively present and assembled with a party carrying on war in Virginia, at a great distance from him, then he is present at every overt act performed any where: he may be tried in any state on the continent, where any overt act has been committed; he may be proved to be guilty of an overt act laid in the indictment in which he had no personal participation, by proving that he advised it, or that  he committed other acts. \nThis is, perhaps, too extravagant to be in terms maintained. Certainly it cannot be supported by the doctrines of the English law. \n The opinion of Judge Paterson in Mitchell's case has been cited on this point. 2 Dal. 348. \nThe indictment is not specially stated; but from the case as reported, it must have been either general for levying war in the county of Alleghany, and the overt act laid must have been the assemblage of men and levying of war in that county; or it must have given a particular detail of the treasonable transactions in that county. The first supposition is the most probable; but let the indictment be in the one form or the other, and the result is the same. The facts of the case are, that a large body of men, of whom Mitchell was one, assembled at Braddock's field, in the county of Alleghany, for the purpose of committing acts of violence at Pittsburg. That there was also an assemblage at a different time at Couches fort, at which the prisoner also attended. The general and avowed object of that meeting was to concert measures for resisting the execution of a public law. At Couches fort the resolution was taken to attack  the house of the inspector, and the body there assembled marched to that house and attacked it. It was proved by the competent number of witnesses, that he was at Couches fort armed, that he offered to reconnoitre the house to be attacked, that he marched with the insurgents towards the house, that he was with them after  the action attending the body of one of his comrades who was killed in it; one witness swore positively that he was present at the burning of the house, and a second witness said that \"it ran in his head that he had seen him there.\" That a doubt should exist in such a case as this is strong evidence of the necessity that the overt act should be unequivocally proved by two witnesses. \nBut what was the opinion of the judge in this case? Couches fort and Neville's house being in the same county, the assemblage having been at Couches fort, and the resolution to attack the house having been there taken, the body having for the avowed purpose moved in execution of that resolution towards the house to be attacked, he inclined to think that the act of marching was in itself levying war. If it was, then the overt act laid in the indictment was consummated by the  assemblage at Couches, and the marching from thence, and Mitchell was proved to be guilty by more than two positive witnesses. But without deciding this to be the law, he proceeded to consider the meeting at Couches, the immediate marching to Neville's house, and the attack and burning of the house, as one transaction. Mitchell was proved by more than two positive witnesses to have been in that transaction, to have taken an active part in it, and the judge declared it to be unnecessary that all should have seen him at the same time and place. \nBut suppose not a single witness had proved Mitchell to have been at Couches, or on the march, or at Neville's. Suppose he had been at the time notoriously absent in a different state. Can it be believed by any person who observes the caution with which Judge Paterson required the constitutional proof of two witnesses to the same overt act, that he would have said Mitchell was constructively present, and might on that straining of a legal fiction be found guilty of treason? Had he delivered such an opinion, what would have been the language of this country respecting it? Had he given this opinion, it would have required all the correctness  of his life to strike his name from that bloody list in which the name of Jefferies is enrolled. \n But to estimate the opinion in Mitchell's case, let its circumstances be transferred to Burr's case. Suppose the body of men assembled in Blennerhassett's island had previously met at some other place in the same county, and that Burr had been proved to be with them by four witnesses; that the resolution to march to Blennerhassett's island for a treasonable purpose had been there taken; that he had been seen on the march with them; that one witness had seen him on the island; that another thought he had seen him there; that he had been seen with the party directly after leaving the island; that this indictment had charged the levying of war in Wood county generally; the cases would then have been perfectly parallel, and the decisions would have been the same. \nIn conformity with principle and with authority, then, the prisoner at the bar was neither legally nor actually present at Blennerhassett's island; and the court is strongly inclined to the opinion, that without proving an actual or legal presence by two witnesses, the overt act laid in this indictment cannot be proved. \n But this opinion is controverted on two grounds. \nThe first is, that the indictment does not charge the prisoner to have been present. \nThe second, that although he was absent, yet, if he caused the assemblage, he may be indicted as being present, and convicted on evidence that he caused the treasonable act. \nThe first position is to be decided by the indictment itself. The court understands the allegation differently from the attorney for the United States. The court understands it to be directly charged, that the prisoner did assemble with the multitude and did march with them. Nothing will more clearly test this construction than putting the case into a shape which it may possibly take. Suppose the law to be, that the indictment would be defective unless it alleged the presence of the person indicted at the act of treason. If upon a special verdict facts should be found which amounted to a levying of war by the accused, and his counsel should insist that he could not be condemned because the indictment was defective in not charging that he was himself one of the assemblage which constituted the treason, or because it alleged the procurement defectively, would the attorney  admit this construction of his indictment to be correct? I am persuaded that he would not, and that he ought not to make such a concession. If, after a verdict, the indictment ought to be construed to allege that the prisoner was one of the assemblage at Blennerhassett's island, it ought to be so construed now. But this is unimportant, for if the indictment alleges that the prisoner procured the assemblage, that procurement becomes part of the overt act, and must be proved as will be shown hereafter. \nThe second position is founded on 1 Hale, 214. 288. and 1 East, 127. \nWhile I declare that this doctrine contradicts every idea I had ever entertained on the subject of indictments, since it admits that one case may be stated and a very different case may be proved, I will acknowledge that it is countenanced by the authorities adduced in its support. To counsel or advise  a treasonable assemblage, and to be one of that assemblage, are certainly distinct acts, and therefore ought not to be charged as the same act. The great objection to this mode of proceeding is, that the proof essentially varies from the charge in the character and essence of the offence, and in the testimony  by which the accused is to defend himself. These dicta of Lord Hale, therefore, taken in the extent in which they are understood by the counsel for the United States seem to be repugnant to the declarations we find every where, that an overt act must be laid, and must be proved. No case is cited by Hale in support of them, and I am strongly inclined to the opinion that, had the public received his corrected, instead of his original manuscript, they would, if not expunged, have been restrained in their application to cases of a particular description. Laid down generally, and applied to all cases of treason, they are repugnant to the principles for which Hale contends, for which all the elementary writers contend, and from which courts have in no case, either directly reported or referred to in the books, ever departed. These principles are, that the  indictment must give notice of the offence: that the accused is only bound to answer the particular charge which the indictment contains, and that the overt act laid is that particular charge. Under such circumstances, it is only doing justice to Hale to examine his dicta, and if they will admit of being understood in a  limited sense, not repugnant to his own doctrines, nor to the general principles of law, to understand them in that sense. \n\"If many conspire to counterfeit, or counsel or abet it, and one of them doth the fact upon that counselling or conspiracy, it is treason in all, and they may be all indicted for counterfeiting generally within the statute, for in such case, in treason, all are principals.\" \nThis is laid down as applicable singly to the treason of counterfeiting the coin, and is not applied by Hale to other treasons. Had he designed to apply the principle universally, he would have stated it as a general proposition; he would have laid it down in treating on other branches of the statute, as well as in the chapter respecting the coin; he would have laid it down when treating on indictments generally. But he has done neither. Every sentiment bearing in any manner on this point, which is to be found in Lord Hale, while on the doctrine of levying war, or on the general doctrine of indictments, militates against the opinion that he considered the proposition as more extensive than he has declared it to be. No court could be justified in extending the dictum of a judge beyond its  terms, to cases in which he has expressly treated, to which he has not himself applied it, and on which he as well as others has delivered opinions which that dictum would overrule. This would be the less justifiable if there should be a clear legal distinction indicated by the very terms in which the judge has expressed himself between the particular case to which alone he has applied the dictum, and other cases to which the court is required to extend it. \nThere is this clear legal distinction. \"They may,\" says Judge Hale, \"be indicted for counterfeiting generally.\" But if many conspire to levy war, and some actually levy it, they may not be indicted for levying war generally. The books concur in declaring that they cannot be so indicted. A special overt act of levying war must be laid. This distinction between counterfeiting the coins, and that class of treasons among which levying war is placed, is taken in the statute of Edward III. That statute requires an  overt act of levying war to be laid in the indictment, and does not require an overt act of counterfeiting the coin to be laid. If in a particular case where a general indictment is sufficient, it be stated  that the crime may be charged generally according to the legal effect of the act, it does not follow, that in other cases where a general indictment would be insufficient, where an overt act must be laid, that this overt act need not be laid according to the real fact. Hale, then, is to be reconciled with himself, and with the general principles of law, only by permitting the limits which he has himself given to his own dictum, to remain where he has placed them. \nIn p. 238. Hale is speaking generally of the receiver of a traitor, and is stating in what such receiver partakes of an accessary.1st. \"His indictment must be special of the receipt, and not generally that he did the thing, which may be otherwise in case of one that is procurer, counsellor or consenter.\" \nThe words \"may be otherwise\" do not clearly convey the idea that it is universally otherwise. In all cases of a receiver the indictment must be special on the receipt, and not general. The words it \"may be otherwise in case of a procurer,\" &c. signify that it may be otherwise in all treasons, or that it may be otherwise in some treasons. If it may be otherwise in some treasons without contradicting the doctrines of  Hale himself, as well as of other writers, but cannot be otherwise in all treasons without such contradiction, the fair construction is, that Hale used these words in their restricted sense; that he used them in reference to treasons, in which a general indictment would lie, not to treasons where a general indictment would not lie, but an overt act of the treason must be charged. The two passages of Hale thus construed, may perhaps be law, and may leave him consistent with himself. If appears to the court to be the fair way of construing them. \nThese observations relative to the passages quoted from Hale, apply to that quoted from East, who obviously copies from Hale, and relies upon his authority. \nUpon this point Keeling, 26. and 1 Hale, 626. have also been relied upon. It is stated in both, that if a man be indicted as a principal and acquitted, he cannot afterwards be indicted as accessary before the fact. Whence it is inferred, not without reason, that evidence of accessorial guilt may be received on such an indictment. Yet no case is found in which the question has been made and decided. The objection has never been taken at a trial and overruled, nor do the books say it  would be overruled. Were such a case produced its application would be questionable. Keeling says, an accessary before the fact is quodam modo, in some manner guilty of the fact. The law may not require that the manner should be stated, for in felony it does not require that an overt act should be laid. The indictment therefore may be general. But an overt act of levying war must be laid. These cases then prove in their utmost extent no more than the cases previously cited from Hale and East. This distinction between indictments which may state the fact generally, and those which must lay it specially, bear some analogy to a general and a special action on the case. In a general action, the declaration may lay the assumpsit according to the legal effect of the transaction, but in a special action on the case, the declaration must state the material circumstances truly, and they must be proved as stated. This distinction also derives some aid from a passage in Hale, 625. immediately preceding  that which has been cited at the bar. He says, \"If A. be indicted as principal, and B. as accessary before or after, and both be acquitted, yet B. may be indicted as principal,  and the former acquittal as accessary is no bar. \nThe crimes, then, are not the same, and may not indifferently be tried under the same indictment. But why is it that an acquittal as principal may be pleaded in bar to an indictment as accessary, while an acquittal as accessary may not be pleaded in bar to an indictment as principal?  If it be answered that the accessorial crime may be given in evidence on an indictment as principal, but that the principal crime may not be given in evidence on an indictment as accessary, the question recurs, on what legal ground does this distinction stand? I can imagine only this. An accessary being quodam modo a principal, in indictments where the law does not require the manner to be stated, which need not be special, evidence of accessorial guilt, if the punishment be the same, may possibly be received; but every indictment as an accessary must be special. The very allegation that he is an accessary must be a special allegation, and must show how he became an accessary. The charges of this special indictment, therefore, must be proved as laid, and no evidence which proves the crime in a form substantially different can be received.  If this be the legal reason for the distinction, it supports the exposition of these dicta which has been given. If it be not the legal reason, I can conceive no other. \nBut suppose the law to be as is contended by the counsel for the United States. Suppose an indictment, charging an individual with personally assembling among others, and thus levying war, may be satisfied with the proof that he caused the assemblage. What effect will this law have upon this case? \nThe guilt of the accused, if there be any guilt, does not consist in the assemblage, for he was not a member of it. The simple fact of assemblage no more affects one absent man than another. His guilt then consists in procuring the assemblage, and upon this fact depends his criminality. The proof relative to the character of an assemblage must be the same whether a man be present or absent.In the general, to charge any individual with the guilt of an assemblage, the fact of his presence must be proved. It constitutes an essential part of the overt act. If then the procurement be substituted in the place of presence, does it not also constitute an essential part of the overt act? Must it not also be proved? Must  it not be proved in the same manner that presence must be proved? If in one case the presence of the individual makes the guilt of the assemblage his guilt, and in the other case the procurement by the individual makes the guilt of the assemblage his guilt, then presence and procurement are equally component parts of the overt act, and equally require two witnesses. \nCollateral points may, say the books, be proved according to the course of the common law: but is this a collateral point? Is the fact, without which the accused does not participate in the guilt of the assemblage, if it was guilty, a collateral point? This cannot be. The presence of the party, where presence is necessary, being a part of the overt act, must be positively proved by two witnesses. No presumptive evidence, no facts from which presence may be conjectured or inferred, will satisfy the constitution and the law. If procurement  take the place of presence, and become part of the overt act, then no presumptive evidence, no facts from which the procurement may be conjectured or inferred, can satisfy the constitution and the law. The mind is not to be led to the conclusion that the individual was  present, by a train of conjectures or inferences, or of reasoning: the fact must be proved by two witnesses. Neither where procurement supplies the want of presence, is the mind to be conducted to the conclusion that the accused procured the assembly, by a train of conjectures or inferences, or of reasoning; the fact itself must be proved by two witnesses, and must have been committed within the district. \nIf it be said that the advising or procurement of treason is a secret transaction which can scarcely ever be proved in the manner required by this opinion; the answer which will readily suggest itself is, that the difficulty of proving a fact will not justify conviction without proof. Certainly it will not justify conviction without a direct and positive witness in a case where the constitution requires two. The more correct inference from this circumstance would seem to be, that the advising of the fact is not within the constitutional definition of the crime. To advise or procure a treason is in the nature of conspiring or plotting treason, which is not treason in itself. \nIf then the doctrines of Keeling, Hale and East are to be understood in the sense in which they are pressed  by the counsel for the prosecution, and are applicable in the United States, the fact that the accused procured the assemblage on Blennerhassett's island must be proved, not circumstantially, but positively by two witnesses, to charge him with that assemblage. But there are still other most important considerations, which must be well weighed before this doctrine can be applied to the United States. \nThe eighth amendment to the constitution has been pressed with great force, and it is impossible not to feel its application to this point. The accused cannot be truly said to be \"informed of the nature and cause of the accusation,\" unless the indictment shall give him that notice which may reasonably suggest to him the point on which the accusation turns, so that he may know the course to be pursued in his defence. \nIt is also well worthy of consideration, that this doctrine, so far as it respects treason, is entirely supported by the operation of the common law, which is said to convert the accessary before the fact into the principal, and to make the act of the principal his act.The accessary before the fact is not said to have levied war. He is not said to be guilty under the statute.  But the common law attaches to him the guilt of that fact which he has advised or procured, and, as contended, makes it his act. This is the operation of the common law, not the operation of the statute. It is an operation then which can only be performed where the common law exists to perform it. It is the creature of the common law, and the creature presupposes its creator. To decide then that this doctrine is applicable to the United States, would seem to imply the decision that the United States, as a nation, have a common law which creates and defines the punishment of crimes accessorial in their nature. It would imply the further decisions that these accessorial crimes are not, in the case of treason, excluded by the definition of treason given in the constitution. I will not pretend that I have not individually an opinion on these points, but  it is one which I should give only in a case absolutely requiring it, unless I could confer  respecting it with the judges of the supreme court. \nI have said that this doctrine cannot apply to the United States, without implying those decisions respecting the common law which I have stated, because, should  it be true, as is contended, that the constitutional definition of treason comprehends him who advises or procures an assemblage that levies war, it would not follow that such adviser or procurer might be charged as having been present at the assemblage. If the adviser or procurer is within the definition of levying war, and independent of the agency of the common law, does actually levy war, then the advisement or procurement is an overt act of levying war. If it be the overt act on which he is to be convicted, then it must be charged in the indictment for he can only be convicted on proof of the overt acts which are charged. \nTo render this distinction more intelligible, let it be recollected, that although it should be conceded that since the statute of William and Mary, he who advises or procures a treason may in England be charged as having committed that treason, by virtue of the common law operation, which is said, so far as respects the indictment, to unite the accessorial to the principal offence, and permit them to be charged as one, yet it can never be conceded that he who commits one overt act under the statute of Edward, can be charged and convicted on proof of another  overt act. If then procurement be an overt, act of treason under the constitution, no man can be convicted for the procurement under an indictment charging him with actually assembling, whatever may be the doctrine of the common law in the case of an accessorial offender. \nIt may not be improper in this place again to advert to the opinion of the supreme court, and to show that it contains nothing contrary to the doctrine now laid down. That opinion is, that an individual may be guilty of treason \"who has not appeared in arms against his country; that if war be actually levied, that is, if a body of men be actually assembled for the purpose of effecting by force a treasonable object, all those who perform, any part, however minute, or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered as traitors.\" \nThis opinion does not touch the case of a person who advises or procures an assemblage, and does nothing further. The advising certainly, and perhaps the procuring, is more in the nature of a conspiracy to levy war, than of the actual levying of war. According to the opinion, it is not enough to be leagued in the conspiracy,  and that war be levied, but it is also necessary to perform a part; that part is the act of levying war. This part, it is true, may be minute: it may not be the actual appearance in arms, and it may be remote from the scene of action, that is, from the place where the army is assembled; but it must be a part, and that part must be performed by a person who is leagued in the conspiracy. This part, however minute or remote, constitutes the overt act on which alone the person who performs it can be convicted. \nThe opinion does not declare that the person who has performed this remote and minute part may be indicted for a part which was in truth performed  by others, and convicted on their overt acts. It amounts to this and nothing more, that when war is actually levied, not only those who bear arms, but those also who are leagued in the conspiracy, and who perform the various distinct parts which are necessary for the prosecution of war, do in the sense of the constitution levy war. It may possibly be the opinion of the supreme court, that those who procure a treason, and do nothing further, are guilty under the constitution; I only say that opinion has not yet been given;  still less has it been indicated, that he who advises shall be indicted as having performed the fact. \nIt is then the opinion of the court, that this indictment can be supported only by testimony which proves the accused to have been actually or constructively present when the assemblage took place on Blennerhassett's island, or by the admission of the doctrine that he who procures an act may be indicted as having performed that act. \nIt is further the opinion of the court, that there is no testimony whatever which tends to prove that the accused was actually or constructively present when that assemblage did take place. Indeed the contrary is most apparent. With respect to admitting proof of procurement to establish a charge of actual presence, the court is of opinion, that if this be admissible in England on an indictment for levying war, which is far from being conceded, it is admissible only by virtue of the operation of the common law upon the statute, and therefore is not admissible in this country unless by virtue of a similar operation; a point far from being established, but on which, for the present, no opinion is given. If, however, this point be established, still the  procurement must be proved in the same manner, and by the same kind of testimony which would be required to prove actual presence. \nThe second point in this division of the subject, is the necessity of adducing the record of the previous conviction of some one person who committed the fact alleged to be treasonable. \nThis point presupposes the treason of the accused, if any has been committed, to be accessorial in its nature. Its being of this description according to the British authorities, depends on the presence or absence of the accused at the time the fact was committed. The doctrine on this subject is well understood, has been most copiously explained, and need not be repeated. That there is no evidence of his actual or legal presence is a point already discussed and decided. It is then apparent that, but for the exception to the general principle which is made in cases of treason, those who assembled at Blennerhassett's island, if that assemblage was such as to constitute the crime, would be principals, and those who might really have caused that assemblage; although in truth the chief traitors, would in law be accessaries. \nIt is a settled principle in the law that the  accessary cannot be guilty of greater offence than his principal The maxim is accessorius sequitur naturam sui principalis; the accessary follows the nature of his principal. Hence results the necessity of establishing the guilt of the principal before the accessary can be tried.  For the degree of guilt which is incurred by counselling or commanding the commission of a crime depends upon the actual commission  of that crime. No man is an accessary to murder unless the fact has been committed. \nThe fact can only be established in a prosecution against the person by whom a crime has been perpetrated. The law supposes a man more capable of defending his own conduct than any other person, and will not tolerate that the guilt of A. shall be established in a prosecution against B. Consequently, if the guilt of B. depends on the guilt of A.A. must be convicted before B. can be tried. It would exhibit a monstrous deformity, indeed, in our system, if B. might be executed for being accessary to a murder committed by A. and A. should afterwards, upon a full trial, be acquitted of the fact. For this obvious reason, although the punishment of a principal and accessary  was originally the same, and although in many instances it is still the same, the accessary could in no case be tried before the conviction of his principal, nor can he yet be tried previous to such conviction, unless he requires it, or unless a special provision to that effect be made by statute. \nIf, then, this was a felony, the prisoner at the bar could not be tried until the crime was established by the conviction of the person by whom it was actually perpetrated. \nIs the law otherwise in this case, because in treason all are principals? \nLet this question be answered by reason and by authority. \nWhy is it that in felonies however atrocious, the trial of the accessary can never precede the conviction of the principal? Not because the one is denominated the principal and the other the accessary, for that would be ground on which a great law principle could never stand. Not because there was in fact a difference in the degree of moral guilt, for in the case of murder committed by a hardy villain for a bribe, the person plotting the murder and giving the bribe, is, perhaps, of the two the blacker criminal; and, were it other wise, this would furnish no argument for precedence in  trial. \nWhat, then, is the reason? \nIt has been already given. The legal guilt of the accessary depends on the guilt of the principal; and the guilt of the principal can only be established in a prosecution against himself. \nDoes not this reason apply in full force to a case of treason? \nThe legal guilt of the person who planned the assemblage on Blennerhassett's island depends, not simply on the criminality of the previous conspiracy, but on the criminality of that assemblage. If those who perpetrated the fact be nor traitors, he who advised the fact cannot be a traitor. His guilt, then, in contemplation of law, depends on theirs, and their guilt can only be established in a prosecution against themselves. Whether the adviser of this assemblage be punishable with death as a principal or as an accessary, his liability to punishment depends on the degree of guilt attached to an act which has been perpetrated by others, and which, if it be a  criminal act, renders them guilty also. His guilt therefore depends on theirs, and their guilt cannot be legally established in a prosecution against him. \nThe whole reason of the law, then, relative to the principal and accessary,  so far as respects the order of trial, seems to apply in full force to a case of treason committed by one body of men in conspiracy with others who are absent. \nIf from reason we pass to authority, we find it laid down by Hale, Foster, and East, in the most explicit terms, that the conviction of some one who has committed the treason must precede the trial of him who has advised or procured it. This position is also maintained by Leach in his notes on Hawkins, and is not, so far as the court has discovered, any where contradicted. \nThese authorities have been read and commented on at such length, that it cannot be necessary for the court to bring them again into view. It is the less necessary, because it is not understood that the law is controverted by the counsel for the United States. \nIt is, however, contended, that the prisoner has waived his right to demand the conviction of some one person who was present at the fact, by pleading to his indictment. \nHad this indictment even charged the prisoner according to the truth of the case, the court would feel some difficulty in deciding that he had by implicacation waived his right to demand a species of testimony essential to his  conviction. The court is not prepared to say that the act which is to operate against his rights did not require that it should be performed with a full knowledge of its operation.It would seem consonant to the usual course of proceeding in other respects, in criminal cases, that the prisoner should be informed that he had a right to refuse to be tried until some person who committed the act should be convicted, and that he ought not to be considered as waiving the right to demand the record of conviction, unless with the full knowledge of that right he consented to be tried. The court, however, does not decide what the law would be in such a case. It is unnecessary to decide it, because pleading to an indictment in which a man is pharged as having committed an act, cannot be construed to waive a right which he would have possessed, had he been charged with having advised the act. No person indicted as a principal can be expected to say I am not a principal, I am an accessary; I did not commit, I only advised the act. \nThe authority of the English cases on this subject depends in a great measure on the adoption of the common law doctrine of accessorial treasons. If that doctrine  be excluded, this branch of it may not be directly applicable to treasons committed within the United States. If the crime of advising or procuring a levying of war be within the constitutional definition of treason, then he who advises or procures it must be indicted on the very fact, and the question whether the treasonableness of the act may be decided in the first instance in the trial of him who procured it, or must be decided in the trial of one who committed it, will depend upon the reason, as it respects the law  of evidence, which produced the British decisions with regard to the trial of principal and accessary, rather than on the positive authority of those decisions. \nThis question is not essential in the present case, because it the crime be within the constitutional  definition, it is an overt act of levying war, and to produce a conviction ought to have been charged in the indictment. \nThe law of the case being thus far settled, what ought to be the decision of the court on the present motion? Ought the court to set and hear testimony which cannot affect the prisoner, or ought the court to arrest that testimony? On this question much has been  said -- much that may perhaps be ascribed to a misconception of the point really under consideration. The motion has been treated as a motion confessedly made to stop relevant testimony, and in the course of the argument, it has been repeatedly stated by those who oppose the motion, that irrelevant testimony may and ought to be stopped. That this statement is perfectly correct, is one of those fundamental principles in judicial proceedings which is acknowedged by all, and is founded in the absolute necessity of the thing. No person will contend that in a civil or criminal case, either party is at liberty to introduce what testimony he pleases, legal or illegal, and to consume the whole term in details of facts unconnected with the particular case. Some tribunal, then, must decide on the admissibility of testimony. The parties cannot constitute this tribunal, for they do not agree. The jury cannot constitute it, for the question is whether they shall hear the testimony or not. Who, then, but the court can constitute it? It is of necessity the peculiar province of the court to judge of the admissibility of testimony.If the court admit improper or reject proper testimony, it is  an error of judgment, but it is an error committed in the direct exercise of their judicial functions. \nThe present indictment charges the prisoner with levying war against the United States, and alleges an overt act of levying war. That overt act must be proved, according to the mandates of the constitution and of the act of congress, by two witnesses.It is not proved by a single witness. The presence of the accused has been stated to be an essential component part of the overt act in this indictment, unless the common law principle respecting accessaries should render it unnecessary; and there is not only no witness who has proved his actual or legal presence; but the fact of his absence is not controverted.The counsel for the prosecution offer to give in evidence subsequent transactions, at a different place, and in a different state, in order to prove what? The overt act laid in the indictment? That the prisoner was one of those who assembled at Blennerhassett's island? No, that is not alleged. It is well known that such testimony is not competent to establish such a fact. The constitution and law require that the fact should be established by two witnesses, not by the establishment  of other facts from which the jury might reason to this fact. The testimony, then, is not relevant. If it can be introduced, it is only in the character of corroborative or confirmatory testimony, after the overt act has been proved by two witnesses, in such manner that the question of fact ought to be left with the jury. The conclusion that in this state of things no testimony can be admissible, is so inevitable, that the counsel for the United States could not resist it. I do not understand them to deny, that if the overt act be not proved by two witnesses so as to be submitted to the jury, that all other testimony must be  irrelevant, because no other testimony can prove the act.Now an assemblage on Blennerhassett's island is proved by the requisite number of witnesses, and the court might submit it to the jury, whether that assemblage amounted to a levying of war, but the presence of the accused at that assemblage being no where alleged except in the indictment, the overt act is not proved by a single witness, and of consequence, all other testimony must be irrelevant. \nThe only difference between this motion as made, and the motion in the form which the counsel  for the United States would admit to be regular, is this. It is now general for the rejection of all testimony. It might be particular with respect to each witness as adduced. But can this be wished, or can it be deemed necessary? If enough is proved to show that the indictment cannot be supported, and that no testimony unless it be of that description which the attorney for the United States declares himself not to possess, can be relevant, why should a question be taken on each witness? \nThe opinion of this court on the order of testimony has frequently been adverted to as deciding this question against the motion. \nIf a contradiction between the two opinions does exist, the court cannot perceive it. It was said that levying war is an act compounded of law and fact, of which the jury, aided by the court, must judge. To that declaration the court still adheres. \nIt was said that if the overt act was not proved by two witnesses, no testimony in its nature corroborative or confirmatory, was admissible, or could be relevant. \nFrom that declaration there is certainly no departure. It has been asked, in allusion to the present case, if a general commanding an army should detach  troops for a distant service, would the men composing that detachment be traitors, and would the commander in chief escape punishment? \nLet the opinion which has been given answer this question. Appearing at the head of an army would, according to this opinion, be an overt act of levying war; detaching a military corps from it for military purposes might also be an overt act of levying war. It is not pretended that he would not be punishable for these acts, it is only said that he may be tried and convicted on his own acts, in the state where those acts were committed, not on the acts of others in the state where those others acted. \nMuch has been said in the course of the argument on points, on which the court feels no inclination to comment particularly, but which may, perhaps not improperly, receive some notice. \nThat this court dares not usurp power is most true. \nThat this court dares not shrink from its duty is not less true. \nNo man is desirous of placing himself in a disagreeable situation. Noman is desirous of becoming the peculiar subject of calumny. No man, might he let the bitter cup pass from him without self-reproach, would drain it to the  bottom. But  if he has no choice in the case; if there is no alternative presented to him but a dereliction  of duty, or the opprobium of those who are denominated the world, he merits the contempt as well as the indignation of his country, who can hesitate which to embrace. \nThat gentlemen, in a case the most interesting, in the zeal with which they advocate particular opinions, and under the conviction in some measure produced by that zeal, should on each side press their arguments too far, should be impatient at any deliberation in the court, and should suspect or fear the operation of motives to which alone they can ascribe that deliberation, is perhaps a frailty incident to human nature; but if any conduct on the part of the court could warrant a sentiment that they would deviate to the one side or the other from the line prescribed by duty and by law, that conduct would be viewed by the judges themselves with an eye of extreme severity, and would long be recollected with deep and serious regret. \nThe arguments on both sides have been intently and deliberately considered. Those which could not be noticed, since to notice every argument and authority would swell this opinion to  a volume, have not been disregarded. The result of the whole is a conviction as complete as the mind of the court is capable of receiving on a complex subject, that the motion must prevail. \nNo testimony relative to the conduct or declarations of the prisoner elsewhere and subsequent to the transaction on Blennerhassett's island, can be admitted, because such testimony, being in its nature merely corroborative, and incompetent to prove the overt act in itself, is irrelevant, until there be proof of the overt act by two witnesses. \nThis opinion does not comprehend the proof by two witnesses that the meeting on Blennerhassett's island was procured by the prisoner. On that point the court, for the present, withholds its opinion for reasons which have been already assigned; and as it is understood from the statements made on the part of the prosecution, that no such testimony exists. If there be such, let it be offered and the court will decide upon it. \nThe jury have now heard the opinion of the court on the law of the case. They will apply that law to the facts, and will find a verdict of guilty or not guilty as their own consciences may direct. \nDissent by:", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. delivered the opinion of the court. \nThe material question in this case is, whether a person who indorses a promissory note for the accommodation of the drawer, be discharged from the responsibility which the indorsement creates, by the failure of the holder to demand payment  of the maker in the usual time, and to give notice to the indorser that the note is not paid. \nThat by the general rule of law the omission to demand payment from the maker when the note becomes payable, and to give notice to the indorser that payment has been refused, discharges the indorser, is admitted;  but from this general rule of law exceptions exist, and the counsel for the defendants in error contend that the case stated is comprehended in one of these exceptions. \nIt is laid down as an exception to the general rule, in its application to bills of exchange, that  if the drawer has no effects in the hands of the drawee, notice of the dishonour of the bill may be dispensed with, and the case of an indorser of a promissory note for the accommodation of the maker, is said to come within the same reason and the same law. \nThe correctness of this position will be best tested by considering the reason of the rule, and the reason or the exception. \nWhy is it that notice must immediately be given to the drawer that his bill is dishonoured by the drawee? It is because he is presumed to have effects in the hands of the drawee, in consequence of which the drawee  ought to pay the bill, and that he may sustain an injury by acting on the presumption that the bill is actually paid. The law requires this notice, not merely as an indemnity against actual injury, but as a security against a possible injury which may result from the laches of the holder of the bill. To this security, then, it would seem, the drawer ought to remain entitled, unless his case be such as to take him out of the reason of the rule. \nA drawer who has no effects in the hands of the drawee, is said to be without the reason of the rule, and therefore to form an exception to it. \nThis has been laid down in the books as a positive qualification of the rule, but has seldom been so laid down, except in cases where, in point of fact, the drawer had no right to expect that his bill would be honoured, and could sustain no injury by the neglect of the holder to give notice of its being dishonoured. In reason it would seem, that in such cases only can the exception be admitted, and that the necessity of notice ought to be dispensed with only in those cases where  notice must be unnecessary, or immaterial to the drawer. \nThe reasoning of the judges, in most of the cases  which have been cited, would seem to warrant this restriction of the exception. \nThe case of Bikerdike v. Bollman was a bill drawn by a debtor on his creditor, without a single accompanying circumstance which could raise an expectation that the bill would be accepted or paid. Notice in this case was declared to be unnecessary. Justice Ashhurst gives as a reason for this opinion, that the drawing was in itself a fraud. This reason must be considered as additional to the general ground on which the case was placed in the argument, which was, that the want of notice could not possibly affect the drawer. The particular reason given by Justice Ashhurst for his opinion, is clearly inapplicable to any case in which the drawer was justified in drawing. \nInto the opinion of Justice Buller, some general reasoning is introduced, from which it is fairly deducible that he considered the drawer as having no right to expect that the bill would be paid, and as being liable to no injury from the want of notice, and that these were the true grounds of the exception. \nHe says, \"If it be proved on the part of the plaintiff, that from the time the bill was drawn, till the time it became due, the drawee  never had any effects of the drawer in his hands, I think notice to the drawer is not necessary; for he must know whether he had effects in the hands of the drawee or not; and if he had none, he had no right to draw upon him and to expect payment from him; nor can he be injured by the non-payment of the bill, or the want of notice that it has been dishonoured.\" \nThese observations were, in fact, applicable to the case, for the drawer was the debtor of the drawee, and had no right to draw the bill, nor reason to expect that it would be accepted. \n This principle was recognized in Goodall et al. v. Dolly, in which the same idea, so far as respects the impossibility of injury to the drawer, was repeated. \nThis point came on again to be considered in the case of Rogers v. Stephens, 2 T.R. 713. in which, as between the drawer and drawee, there was no pretext of a right to draw. It was said that a third person had stated himself to have funds in the hands of the drawee; that the bill was really drawn on the credit of those funds, and that loss had been actually sustained from the want of notice. But these facts formed no part of the case. If they had, it is apparent that, in  the opinions of Lord Kenyon and Justice Grose, they would have been decisive in favour of the necessity of notice, unless that necessity had been dispensed with by the subsequent conduct of the drawer. Lord Kenyon states the reason why notice need not be given to the person who draws without funds in the hands of the drawee to be, \"because the drawer must know that he had no right to draw on the drawee.\" The opinions of Lord Kenyon and Justice Grose in this respect, though not assented to, were not controverted by Justice Ashhurst. \nThe decision in Robers v. Stephens was made on the authority of Bikerdike v. Bollman. \nIt would seem to be the fair construction of these cases, that a person having a right to draw in consequence of engagements between himself and the drawee, or in consequence of consignments made to the drawee, or from any other cause, ought to be considered as drawing upon funds in the hands of the drawee, and therefore, as not coming within the exception to the general rule. \nThe transaction cannot be denominated a fraud, for in such case it is a fair commercial transaction. \nNeither can it be truly said that he had no right to expect his bill would be paid, for a  person authorised to draw must expect his draft will be honoured. \n Neither can it be said that he has virtual notice of the protest, and that actual notice is useless, and the want of it can do him no injury; for this is only true when at the time of drawing the drawer has no reason to expect that his bill will be paid. \nA person having a right to draw, and a fair right to expect that his bill will be honoured, would not come within the reason of the exception, and therefore, it may well be contended, ought not to be brought within the exception itself. \nThis doctrine appears to be contradicted in the case of Walwyn v. St. Quintin. \nIn that case the bill was drawn to accommodate the indorser, who had previously placed securities, on which he wished to raise money, in the hands of the acceptor; but the drawer had no effects in his hands. It was determined that, in this case, notice to the drawer was unnecessary. \n If this determination should be considered without examining the reasoning on which it was founded, the reader would conclude that the single circumstance of drawing without funds in the hands of the drawee belonging to the drawer, subjected him, without  notice, to the payment of his bill, if dishonoured, at any period of time when not barred by the act of limitations; and that no demonstration of his perfect right to draw, or of the loss to which the want of notice had exposed him could relieve him from the claim of the holder of the bill. For in this case the drawee having accepted on funds, the drawer had a right to expect that the bill would be paid, could not be chargeable with fraud in drawing, nor required to prepare other funds to prevent the disgrace and injury of his bill's being dishonoured, or to take measures to secure himself against the acceptor or indorser. He does not appear to have come within any one reason assigned in the cases of Bikerdike v. Bollman, or of Rogers v. Stephens, for the exception stated in those cases to the general rule. \n This induces the necessity of examining with particular attention the reasons given by the judge, which must be considered as explanatory of the decision. \nIn delivering the opinion of the court, Lord Chief Justice Eyre said, \"The true fact is, that this was the acceptor's bill, and not the drawer's.\" \"The transaction in this case was a mode by which the acceptor  advanced a sum of money to the payee, and the drawer was a mere instrument of the acceptor.\" \"It seems clear, that notice can be of no use to him, his situation being this, that if the acceptor do not pay, he must, and may then, and not till then, resort to the acceptor to be reimbursed. Notice, therefore, can amount to nothing, for his situation cannot be changed.\" \nIt is observable that the principle supposed to be laid down in the cases previously adjudged as constituting the reason for the exception is here expressly recognized, and forms the great and operative motive for the judgment of the court. It is, that notice could be of no use, that the drawer could not avail himself of it, that he could take no step which would in any manner change his situation, that he could have no recourse against the acceptor until he paid the bill. \nIn no case is the reason of the exception more explicitly given, and the only difficulty is to apply the reasoning to the facts as reported. \nThe court seem to have supposed, that since the drawer could not maintain an action against the acceptor until he had taken up the bill, that it was perfectly useless to enable him, by proper notice, to employ  those other various means which he might have taken to secure himself. Such is not the reasoning of the judges in the cases previously decided; and this reasoning certainly would not be permitted to apply to an indorser who had given value for the bill, not knowing that it was drawn without funds in the hands of the drawee. Yet he would be unable to recover from the drawer until he had taken up the bill. \n If an action could not have been maintained, might not the drawer have effects of the drawee in his hands which he might retain; or might not various other means of saving himself be neglected, in consequence of the opinion that the bill would be paid? If this might be, how can it be true that notice can be of no use to him? \nIf the fact even be that the drawer could only sue the acceptor in such a case as this, after having himself discharged the bill, still he ought to have notice, that he might immediately take it up for the purpose of proceeding against the acceptor. \nThe reasoning of Lord Chief Justice Eyre, to be perfectly consistent with itself and with the principles laid down in previous decisions, would seem to be predicated on an understanding on the part  of the drawer when the bill was drawn, that it was not to be paid by the acceptor; or on the idea that a bill drawn without funds is not a commercial transaction, and not subject to commercial rules. \nThe presumptions are rendered the stronger from the cases afterwards stated, in which a drawer without funds in the hands of his drawee would still be entitled to notice. These are \"acceptances on the faith of consignments from the drawer not come to hand,\" and \"acceptances on the ground of fair mercantile agreement,\" to which, he says, may possibly be added many others. \nIf the exception admits of these exceptions and of many others, it would be difficult to apply it to any case of a fair transaction, where the drawer had really a right to draw, unless it be supposed not to be governed by the law merchant. \nThe judge next proceeds to describe the case in which notice is not requisite. \nHe says, \"Where the drawer has no effects, and has no fair pretence for drawing, or where he draws without effects intended to be applied in payment, and only  for the purpose of raising money by discount for himself, and a fortiori for the acceptor, it is fairly deducible from the cases that  notice need not be given.\" \nIt is not only necessary that the drawer should have no effects, but also that he should have no fair pretence for drawing. Now he may have a fair pretence, as in the case of a \"fair mercantile agreement,\" without having any funds in the hands of the drawee, which notice of non-acceptance of the bill might enable him to withdraw; and yet in such case it would appear, from the language of the court, that notice could not be dispensed with. \n\"Where he draws only for the purpose of raising money by discount for himself, and a fortiori for the acceptor,\" notice need not be given. \nWhere he draws solely for the purpose of raising money by discount for himself, he expects to pay the bill, and there is no person to whom he can resort for repayment. There is no person on whom he can have a legan or an equitable demand, in consequence of the non-payment of the bill. But how can the same reasoning be said to appy a fortiori to the case of the bill being drawn for the use of the acceptor? In such case the relative situation of the parties must be substantially the same as if the money raised on the bill for the acceptor, were funds of the drawer in his hands, on  which the bill was drawn. Every motive for requiring notice of non-payment, in the case of a bill drawn upon funds, except that which results  from a right to claim those funds by a suit, would apply to a bill drawn to raise money for the acceptor, unless it was understood at the time that the acceptor was not to pay the bill. \nThe case of Walwyn v. St. Quintin, then, can only be supported on the idea of an understanding that the drawee was not to pay the bill, or that a bill, drawn, not in the usual course of business, is a transaction to which commercial rules do not apply. \n In the case of Whitfield v. Savage, (2 Bos. & Pul. 277.) the drawer had funds in the hands of the acceptor, and the decision turned upon that point. \nThe reasoning on the cases of protested bills has been gone into the more at large, because it has been considered as applicable to promissory notes indorsed under the statute of Anne, which is admitted to be in force in Maryland. \nThe indorser has been considered as the drawer, and the maker of the note as the acceptor; and in all cases of an indorsement for accommodation, the indorser is likened to a drawer without funds in the hands of  the acceptor. \nWhere the money raised upon the note is received by the indorser, so that the note is discounted, in truth, for his accommodation, not for that of the maker, he is unquestionably without funds in the hands of the acceptor, must expect to pay the note himself, and cannot require notice of its non-payment by the maker. But the same reasons do not appear to exist where the note has been discounted for the maker. In that case the funds which represent the note are in the hands of the maker, or, to use the language applicable to bills, in the hands of the acceptor before the draft becomes payable; the drawer hand a right to draw, and had a right to expect that his bill would be paid. Upon principles of reason and of justice, then, it would seem that notice of non-payment could as little be dispensed with in this case, as if he had himself paid the money to the maker of the note, and then received it from the bank, or as if the note had been given him for a previous debt, and had been discounted for his own use. \nNotice of non-payment by the maker is necessary, because the undertaking of the indorser is conditional, and wherever, in fact, the transaction is such that the  maker of the note ought in justice to pay it, and is bound ultimately to make it good, it would seem reasonable that payment should be demanded from him, and that reasonable notice of non-payment should be given to the indorser. \n If, however, the course of decisions be otherwise, the indorser of a note for the accommodation of the maker must come within the exception which dispenses with notice in his case. \nThe cases which have been adjudged in England on promissory notes, are anterior, in point of time, to the cases of Walwyn v. St. Quintin, and of Whitfield v. Savage. \nThe first which has been cited is De Berdt v. Atkinson. This note was indorsed for the accommodation of the maker, the indorser well knowing at the time that the maker was insolvent. Four judges who tried the cause were unanimously of opinion, that want of notice did not discharge the indorser. The opinion of the Chief Justice was founded on the known insolvency of the maker, and the consequent impossibility that loss could be sustained by the indorser from want of notice. The opinion of Justice Buller was founded on the circumstance that the note was indorsed for the accommodation of the drawer. He  states explicitly, that the general, rule is only applicable to fair transactions, and by fair transactions he means \"bills or notes given for value in the ordinary course of trade.\" \nJustices Heath and Rooke accorded in the decision, but whether for the reasons assigned by the Chief Justice, or for those assigned by Justice Buller, or for both, does not appear. \nThe same point came on to be considered in the case of Nicholson v. Gouthit. \nThis was a strong case, because the indorsement was made in consequence of a previous engagement on the part of the indorser to guarantee the payment of a debt due from the maker of the note, who appears, from the transaction, to have been in bad circumstances at the time, and who became insolvent before the note was payable. From his connection with the maker, and from other circumstances, the indorser must have known that the maker would not pay the note, and it was the  understanding of all parties that it should be paid by the indorser. \nThe justice of the case was said to be clearly in favour of the plaintiff, and under an impression that the want of notice in this case could not injure the plaintiff, the Lord Chief Justice had at  the trial instructed the jury that it was unnecessary, and indeed that it might be considered as received by anticipation. \nIn this case the note was not made merely to raise money, but was made to pay a debt. The indorser, however, gave no value for it, and, if likened to the drawer of a bill of exchange, he had drawn without funds in the hands of the acceptor, and with a knowledge that the acceptor would not pay the bill. \nBut in the argument in favour of a new trial, the counsel contended that the law upon a promissory note was different, in this respect, from the law on a bill of exchange, and though notice of the dishonour of a bill drawn without funds in the hands of the drawee need not be given, yet the rule in the case of promissory notes is totally different, and notice must in all cases be given to the indorser. \nIn delivering the opinion of the court, Lord Chief Justice Eyre assented to this distinction, and admitted the rule with respect to notice to the indorser, to be as stated.He therefore reversed his own decision at Nisi Prius, and granted a new trial upon the strict law, contrary to his ideas of the justice of the case. \nHeath and Rooke concurred in this opinion.  Buller was not present, and reasoning from his opinion in the case of De Berdt v. Atkinson, it is probable he would not have concurred in the decision of this case. \nHowever, then, the law may be with regard to the drawer of a bill of exchange who from other circumstances may fairly draw, but who has no effects in the hands of the drawer, it seems settled in England, by the case of Nicholson v. Gouthit, that the law with regard to a promissory note is different, and that, if in  any case where the notice is made for  the benefit of the maker, notice to the indorser can be dispensed with, it is only in the case of an insolvency known at the time of indorsement. \nIn point of reason, justice, and the nature of the undertaking, there is no case in which the indorser is better entitled to demand strict notice than in the case of an indorsement for accommodation, the maker having received the value. \nThis court is of opinion that the circuit court erred in directing the jury that the laches of the plaintiffs, in failing to demand payment of the maker of the note, and to give notice of non-payment to the indorser, did not deprive the plaintiffs of their remedy against  the indorser, and therefore the judgment rendered in this case is reversed, and the cause remanded for further trial. A new trial, with instructions. &c. \nJudgment reversed. \n \n\n ", " \nOpinion \n\n \n \n MARSHALL, Ch. J. delivered the opinion of the court that the judgment ought to be arrested, for the reasons assigned in the record, and directed the opinion to be certified accordingly. \nThe same order was made in the case of The United States v. Baylis, for a similar offence. 1 \n \n \n\n ", " \nOpinion \n\n \n \n MARSHALL, Ch. J. delivered the unanimous opinion of the court, that the power of the officer to collect the outstanding duties ceased upon his removal from office, and devolved upon his successor. A contrary construction would be extremely  injurious to the revenues of the United States, and could not have been intended by the legislature. \nThe officer can only be liable to pay over the money he has collected, unless he is charged with a neglect of duty in not collecting. \nIn the present case the breach assigned is for not paying, and no breach is assigned in not collecting, the duties. The bill of exceptions shows that the defendant Sthreshley had paid over and accounted for all the duties he had collected. \nJudgment reversed. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. delivered the opinion of the court, as follows: \n This case differs from that of Rose v. Himely in one material fact. The vessel and cargo, which constitute the subject of controversy, were seized within the territorial jurisdiction of the government of St. Domingo, and carried into a Spanish port. While lying in that port, proceedings were regularly instituted in the court for the island of Guadaloupe, the cargo was sold by a provisional order of that court, after which the vessel and cargo were condemned. The single question, therefore, which exists in this case is, did the court of the captor lose its jurisdiction over the captured vessel by its being carried into a Spanish port. \n The seizure was indisputably a valid seizure, and vested the lawful possession of the vessel in the sovereign of the captor. The right consequently existed in full force to apply immediately to the proper tribunals for an examination of, and decision on the offence alleged to have been committed. The jurisdiction of those tribunals had attached, and this right to decide upon the offence was complete. \nWhen a seizure is thus made for the violation of a municipal law, the mode of proceeding must be exclusively regulated by the sovereign  power of the country, and no foreign court is at liberty to question the correctness of what is done, unless the court passing the sentence loses its jurisdiction by some circumstance which the law of nations can notice. Recapture, escape, or a voluntary discharge of the captured vessel would be such a circumstance, because the sovereign would be thereby deprived of the possession of the thing, and of his power over it. While this possession remains, the res may be either restored or sold, the sentence of the court can be executed, and therefore this possession seems to be the essential fact on which the jurisdiction of the court depends. \nThe laws of the United States require that a vessel which has been seized for violating them should be tried in the district where the offence is committed, and certainly it would be irregular and illegal for the tribunal of a different district to act upon the case. But of this irregularity, it is believed, no foreign court could take notice. The United States might enable the admiralty courts of one district to decide on captures made for offences committed in another district. It is an internal regulation, to be expounded by our own courts,  and of which the law of nations can take no notice. The possession of the thing would be in the sovereign power of the state, and it is competent to that power to give jurisdiction over it to any of its tribunals.There exists a full power over the subject, and an ability to execute the sentence of the court. The sovereign power possessing jurisdiction over the thing, must be presumed by foreign tribunals to have exercised that jurisdiction properly. But if the res be out of the power of the sovereign, he cannot act upon it, nor delegate authority to act upon it to his courts. \n If these principles be correct, it remains to inquire whether the brig Sea Flower remained in the possession and in the power of the sovereign of the captor after being carried into a Spanish port. \n Had this been a prize of war, we have precedents and principles which would guide us. The cases cited from Robinson's Reports, and the regulations made by Louis XVI. in November, 1779, show that the practice of condemning prizes of war while lying in neutral ports has prevailed in England, and has been adopted in France. The objections to this practice may perhaps be sufficient to induce  nations to change it by common consent, but until they change it the practice must be submitted to, and the sentence of condemnation passed under such circumstances will bind the property, unless the legislature of the country in which the captured vessel may be claimed, or the law of nations, shall otherwise direct. \nThe sovereign whose officer has in his name captured a vessel as prize of war, remains in possession of that vessel, and has full power over her, so long as she is in a situation in which that possession cannot be rightfully divested. The fact whether she is an enemy vessel or not ought however to be judicially inquired into and decided, and therefore the property in a neutral captured as an enemy is never changed until sentence of condemnation has passed; and the practice of nations requires that the vessel shall be in a place of safety before such sentence can be rendered. In the port of a neutral she is in a place of safety, and the possession of the captor cannot be lawfully divested, because the neutral sovereign, by himself or by his courts, can take no cognizance of the question of prize or no prize. This position is not intended to apply to the case of a sovereign  bound by particular treaties to one of the belligerents; it is intended to apply only to those neutrals who are free to act according to the general law of nations. In such case the neutral sovereign cannot wrest from the possession of the captor a prize of war brought into his ports, \nA vessel captured as prize of war is then, while lying in the port of a neutral, still in the possession of the sovereign  of the captor, and that possession cannot be rightfully divested. \nIt is objected that his courts can take no jurisdiction of a vessel under such circumstances, because they cannot enforce a sentence of restitution. \nBut it is to be recellected that the possession of the captor is in principle the possession of his sovereign; he is commissioned to seize in the name of the sovereign, and is as much an officer appointed for that purpose, as one who in the body of a county serves a civil process. He is under the controul and direction of the sovereign, and must be considered as ready to obey his commands legally communicated through his courts. \nIt is true that in point of fact cruisers are often commanded by men who do not feel a due respect for the laws, and who are not  of sufficient responsibility to compensate the injuries their improper conduct may occasion; but in principle they must be considered as officers commissioned by their sovereign to make a seizure in the particular case, and to be ready to obey the legitimate mandate of the sovereign directing a restitution. The property therefore may be restored while lying in a neutral port, and whether it may or may not be sold in the neutral port, the condemnation without a sale may change the property, if such condemnation be valid. \nIn cases of prize of war, then, the difficulty of executing the sentence does not seem to afford any conclusive argument against the jurisdiction of the court of the captor over a vessel in possession of the captor, but lying in a neutral or friendly port. \nDo the same principles apply to a seizure made within the territory of a state for the violation of its municipal laws? \nIn the solution of this question the court can derive no aid from precedent. The case perhaps has only occurred in the wars which have been carried on since the year 1793, and the court in deciding it finds itself reduced to the necessity of reasoning from analogy. \n The seizure,  it has been already observed, vests the possession in the sovereign of the captor, and subjects the vessel to the jurisdiction of his courts. The vessel, when carried into a foreign port, is still in his possession, and he is as capable of restoring it if the offence should not have been committed, as he is of restoring a neutral vessel unjustly captured as an enemy.The sentence in the one case may be executed with as much facility as in the other. \nPossession of the res by the sovereign has been considered as giving the jurisdiction to his court; the particular mode of introducing the subject into the court, or, in other words, of instituting the particular process which is preliminary to the sentence, is properly of municipal regulation, uncontrouled by the law of nations, and therefore is not examinable by a foreign tribunal. It would seem then that the principles which have been stated as applicable in this respect to a prize of war, may be applied to a vessel rightfully seized for violating the municipal laws of a nation, if the sovereign of the captor possesses the same right to maintain his possession against the claim of the original owner in the latter as in the former case.If,  on a libel filed by the original owner in the courts of the country into which the vessel might be brought, the possession could be defended by alleging that she was seized for the violation of a municipal law, and the right of the court to decide the cause would be thereby defeated, then that possession would seem to be sufficiently firm to maintain the jurisdiction of the courts of the captor. \nUpon this point much doubt has been entertained. It is, however, the opinion of a majority of the judges, that a possession thus lawfully acquired under the authority of a sovereign state could not be divested by the tribunals of that country into whose ports the captured vessel was brought; at least that it could not be divested unless there should be such obvious delay in proceeding to a condemnation as would justify the opinion that no such measure was intended, and thus convert the seizure into a trespass. \nThe judgment of the circuit court is to be reversed. \n CHASE and LIVINGSTON, Justices, dissented from the opinion of the court in these cases, because the vessel, which was seized for the violation of a French arrete or municipal regulation, was not brought into any port  of  France for trial, but was voluntarily carried by the captain of the privateer to St. Jago de Cuba, a Spanish port, and while lying there was, with her cargo, condemned as forfeited by a French tribunal sitting at Guadaloupe. \nJOHNSON, J. I concur in the reversal of the decision in the court below; but on different grounds from those uwhich influence the opinion of my brethren. I had occasion in the case of The Sarah to express my ideas on most of the points arising in this case, and to that opinion I refer for the reasons of my present conclusion. \nTo me it appears immaterial whether the capture was made in exercise of municipal or belligerent rights, or whether within the jurisdictional limits of France, where she is supreme, or beyond those limits and upon the high seas, where her authority is concurrent with that of every other nation. We find the property in possession of the captor, underauthority derived from his sovereign, whose conduct cannot be submitted to our jurisdiction. \nThe modern practice of nations sanctions the condemnation of vessels lying in a foreign port, and that practice is not inconsistent with principle. \nThe plaintiff below has lost all  remedy at law, and must look elsewhere for redress if he has sustained an injury. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. delivered the opinion of the court as follows, viz. \nIn this case two errors are alleged by the plaintiff in error. \n1st. That the circuit court misdirected the jury \n 2d. That judgment for double damages ought not to have been rendered on the verdict. \n1. The avowry, which sets forth the title under which the distress was made, states a lease for three years certain. The plea to this avowry was \"nothing in arrear,\" and on this plea issue was joined. At the trial of  the cause, the avowant gave in evidence a leas for one year certain, and a subsequent possession for two years. On motion to instruct the jury that this lease did not support the avowry, the court said, that if the jury should be of opinion that the subsequent possession was under the original contract, and without any new agreement, then the avowant was entitled to recover, otherwise not. The jury found a verdict for the avowant. \nThe lease stated in the avowry is obviously a different lease from that which was given in evidence. A lease for three years is not a lease for one year. But it is contended that a subsequent possession, without any new express agreement, amounts to an extension of the original lease, and for this Bacon's Abridgment, and a dictum of Judge Buller, in the case of Brich v. Wright, 1 Term, 378. have been cited. But those cases do not prove the point they were supposed to establish. In those cases, the original terms of the lease admit of the extension which was afterwards made, by consent of parties. The lease was made for one year, and afterwards from year to year, as long as both parties should please. The principle of continuance is introduced into  the original contract, and the occupation for three years is evidence that the circumstance had occurred, by force of which, the contract should be a lease for three years. But in this case the original contract contains no principle of continuance. It is for a limited time, and can only be extended by a new contract, either express or implied. The lease, therefore, offered in evidence, does not support the avowry. But a question on which the court has felt more difficulty, is this: Does the plea admit the demise, or is the avowant bound to prove it? If the plea admits the demise, then, notwithstanding the variance, the verdict is right, and  the court has not erred in that part of the opinion which is against the party taking the exception. \nThe issue gives notice to the parties of the point which is to be tried, and which the testimony must support. That which is admitted by the pleadings need not be proved. If the plea in this case controverts the allegation in the avowry, that the tenant held under a lease for three years, reserving the rent stated to be reserved, then the avowant would be bound to prove the demise as laid. But if the plea admits the demise,  then the avowant is not bound to prove it. The plea is, that the sum distrained for of the rent aforesaid, (that is, of the rent claimed under the lease stated in the avowry,) was not in arrear and unpaid, nor was any part thereof in arrear and unpaid at the time when the distress was made, as the avowant in his avowry hath alleged. \nThis plea avers the single proposition that the rent was not in arrear when the distress was made, and it is this averment alone that the party making the distress is to meet. The averment that the rent claimed in the avowry was not in arrear when the distress was made, admits the contract by which the rent might accrue, and only denies that any thing, at the time of the distress, remained due upon that contract. Upon principle, then, it would seem that the plea had dispensed with proof of the demise laid in the avowry, by admitting \nNo case has been found in which the point has been expressly decided. It is said in Buller's Nisi Prius, p. 59. \"If the plaintiff plead riens arrere in bar to an avowry, he cannot, upon such issue, give in evidence non-tenure;\" consequently, the defendant cannot be required to show the tenure: for if it was necessary  to show it, the tenant would be at liberty to produce opposing testimony. \nIt is also laid down in Buller, p. 166. that in covenant for non-payment of rent, riens in arrear, or payment, at the day, is a good plea; but riens in arrear generally  would not be a good plea: and the reason appears to be, that riens in arrear generally admits the breach laid in the declaration, and that the rent was not paid on they day. This principle is decided in King v. Saville, reported by Brownlow. Nothing in arrear on the day on which the rent is stated to have accrued seems to be considered as equivalent to payment on the day; but nothing in arrear on a subsequent day admits that the covenant was broken, and consequently admits the covenant. It is not a good plea, because it admits the right of the plaintiff to recover damages. This furnishes a strong  argument in favour of the opinion that nothing in arrear on the day when the distress was made, admits that the rent accrued as stated in the avowry. \nThe case of Warner v. Theobald, Cowper, 588. was an action of debt for rent, by an assignee against an assignee. The plea of riens in arrear was demurred to, and consequently,  the question to be decided by the court was not, what the plea admitted, but whether it was a bar to the action. Mr. Buller objected to this plea, because the plaintiff could not come prepared to know what it would be necessary to prove. The defendant might object to the assignment, or give in evidence payment before or after action brought. \nIn answer to Buller, Wood said, \"The form of the plea is nil debet, in the present tense. But in this case riens in arrere is a fairer plea than nil debet; because nil debet puts the whole declaration in issue, whereas this confines the question to the single fact whether such rent was due.\" \nIn giving his opinion in support of the plea, Lord Mansfield certainly had not in view the question now under consideration; for he uses expressions which would apply differently to that question. He says, \"saying nothing is due is the same as if he had said nil debet;\" and immediately adds, \"Besides, it is a more favourable plea for the plaintiff. He must then have applied the first assertion solely to the sufficiency of the plea as a bar, for it could not be a more favourable plea for the plaintiff, if it contest the whole declaration,   and admitted nothing, as is the case with nil debet.\" He concludes with observing, \"If the rent was due, and is not at the time of the plea, it could not have ceased to be due but by the plaintiff's accepting it.\" \nThis case appears to the court to decide nothing further than that the plea pleaded was a good bar to the declaration in debt for rent, and to leave the question how far it admits the demise laid in the avowry, open for consideration. \nIt is thought important in the inquiry that the law appropriates a different plea, which controverts the demise, if the tenant means to contest it -- the plea of non demisit. \nThe court is of opinion that plea admits the demise; and that there is no error in the instruction given to the jury which is injurious to the party taking the exception. \nIn the judgment for double damages, there is no error. The law directs it positively. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. delivered the opinion of the court, as follows: \nThe bill in this case is brought to set aside a stated account which was signed by Dumoussay and Chappedelaine, in July, 1792, on the suggestion of  fraud on the part of Dumoussay; or, if it be not set aside, to correct its errors, and to obtain a settlement of transactions subsequent to that account. \nThe stated account is pleaded in bar of so much of the bill as requires that the subject should again be opened, and the particular errors assigned, with the exception of one in the addition, are denied in the answer. \nThat the plea in bar must be sustained, except so far as it may be in the power of the representatives of Chappedelaine to show clearly that errors have been committed, is a proposition about which no member of the court has doubted for an instant. No practice could be more dangerous than that of opening accounts which the parties themselves have adjusted, on suggestion supported by doubtful or by only probable testimony. But if palpable errors be shown, errors which cannot be misunderstood, the settlement must so far be considered as made upon absolute mistake or imposition, and ought not to be obligatory on the injured party or his representatives, because such items cannot be supposed to have received his assent. The whole labour of proof lies upon the party objecting to the account, and errors which he does  not plainly establish cannot be supposed to exist. Upon this principle, the report of the auditors in this case, and the exceptions to that report,  so far as respects the stated account, are to be considered. \nThe first exception relates only to the manner in which the auditors understood the order referring the accounts to them, and need not be considered, since the sole inquiry will be, whether they have in fact made any deduction from the stated account which was not warranted by the interlocutory order, an order made on the principles which this court has already declared to be correct. \nThe second exception refers to the particular deductions made by the auditors. The first is, that the item in the stated account of 604l. 6s. 5d. is reduced to 333l. 0s. 8d. \nThe stated account between the parties, marked in the proceedings as the exhibit A, contains this item, and states it to be one-fifth of the expenses for disbursements on the island of Sapelo, which was the joint property of a company consisting of five, of which Dumoussay and Chappedelaine were partners. The items which composed this general account are all contained in exhibit F, stated by Dumoussay on the  3d of May, 1792, and assented to by Chappedelaine on the 23d of July, 1792, when the stated account was signed. The total of those disbursements is 4,224l. 3s. 8 1-2d. and the balance upon the account is 3,021l. 12s. 1 1-2d. the fifth of which is 604l. 6s. 5d. \nIn their explanatory report the auditors say that they took as the basis of this reduction an account settled by auditors in a suit decided in the circuit court of Georgia, which was instituted by Boisfeillet, one of the absent partners, against Dechenaux, who was executor both of Dumoussay and Chappedelaine. The auditors in that case were examined, and they depose  that their corrections were made on the proof of double entries, false charges, omissions acknowledged by the executor of Dumoussay, and charges not proper to be made against Boisfeillet. \nThis testimony would of itself be sufficient to convince the court that injustice was done in the settlement  of July, 1792, but would not show explicitly the amount of that injustice, and enable them to say what deductions from that settlement ought to be allowed, because, as was well observed by the counsel for Dechenaux, items might be properly chargeable  to Chappedelaine, of which Boisfeillet ought not to bear a part. \nThe court therefore sought in the documents connected with the report, for that more explicit information. \nUpon looking into the exhibit F, there are, upon the face of the paper, obvious errors, which demonstrate the incorrectness of that statement, and the excessive inattention of Chappedelaine. \nThe first item on the debit side of this exhibit, is the sum of 3,571l. 3s. 8 1-2d. disbursed for Sapelo. the funds for this disbursement were in part in the hands of Dumoussay, as the remnant of advances previously made by the partners.To this remnant he states himself to have added 2,368l. 12s. 0 1-2d. from his private funds. On this advance made by himself in Georgia, he charges the company 15 per cent, amounting to 354l. on account of the difference of exchange between money in France and in Georgia, or as he expresses it, for exchange, freight and insurance. \nThis charge has been rejected in the accounts of all the partners for many obvious reasons. It is sufficient to observe, that as this money was advanced in Georgia by Dumoussay, and repaid to him in Georgia by the partners, there was as much reason for making  these charges on the repayment, as on the original advance; and with respect to Chappedelaine, it is still more inadmissible, because he had previously advanced his portion of this money to Dumoussay, and had allowed him 15 per cent for these charges, in a deduction from that advance, so that this charge, with respect to Chappedelaine, is double. \nThe third item in this exhibit is a charge of 299l. as one year's interest on 2,368l. 12s. 0 1-2d. This is more than double the real amount of interest. \n There is also in the credit side of the account, as error of 100l. in the addition. The errors apparent on the face of the exhibit F, amount to 611l. and these errors are of such a description as strongly to characterize the stated account of July, 1792. \nIn the account stated by the auditors, there are omissions of monies received by Dumoussay, and admitted to be chargeable to him in this account with the company, amounting to 189l. 10s. 10d. \nThe account containing these incontestible errors was submitted to auditors, and still further reduced by them. Several of the small errors which they have detccted are perceived, but the whole cannot be traced by this court, without  engaging in the laborious task of auditors, which is incompatible with their duties. To that account the executor of Dumoussay, who was also the executor of Chappedelaine, was a party, and had a right, with respect to Boisfeillet, to rely upon the stated account of July, 1792, signed by Chappedelaine, because Chappedelaine was the attorney in fact of Boisfeillet, and because Boisfeillet had sanctioned that settlement, and had assumed the payment of his part. Yet in that case the deductions from that account were made which the auditors in this case have taken as the basis of their settlement, and those deductions were made in consequence of double entries, false charges, and charges not admissible against Boisfeillet. \nThe great difficulty in admitting such an account under such circumstances, consists in the uncertainty of the amount of those charges which were rejected as being inapplicable to Boisfeillet. This difficulty is removed, in a great measure, by inspecting the report in the present case. In that report, the auditors take up the items which were rejected on this principle, and charge them to Chappedelaine; so that, in truth, the alterations made in this item are all  founded on errors which the auditors have corrected. \nThe second item of this exception is, that the auditors reduced the sum of 336l. 16s. 8d. admitted in the stated account, as being one-fourth of the purchase and expense of Jekyl to 311l. 9s. 6d. making a difference of 25l. 7s. 2d. \n This item in the exhibit A, which is the stated account, is the result of the exhibit G, which is the account of Jekyl, as settled between Dumoussay and Chappedelaine. There is an obvious error of 4l. 19s. 10d. in the division, of 3l. 10s. in the hire of negroes, and the residue of the sum deducted is on account of the same charges on the monies advanced for Jekyl, which were made on the monies advanced for Sapelo, and which are rejected for the same reasons which were assigned for their rejection in that item of the account. \nThe auditors also reduced the sum of 990l. 3s. 1d. assumed by Chappedelaine for Boisfeillet, to the sum of 410l. making a difference of 580l. 3s. 1d. Nothing can be more obvious than the propriety of this reduction. Dumoussay charges Chappedelaine with the debt of Boisfeillet, amounting, as he says, to 990l. 3s. 1d. which Chappedelaine assumes as the attorney of Boisfeillet.  In a suit to which the executor of Dumoussay is a party, this debt appears to have been only 410l. No man can hesitate to admit that Chappedelaine must have credit with Dumoussay for the difference between the sum alleged to be due, and the sum actually due from boisfeillet. \nThe auditors also struck out of the stated account the sum of 554l. 9s. 4d. assumed by Chappedelaine for one of the absent partners, that being considered by mistake as the share of that absent partner in the expenses of Sapelo. The sum actually due by that partner was afterwards paid by himself to the executor of Dumoussay. The court is satisfied, from the evidence, that this payment was made to Dechenaux as the executor of dumoussay. The assumpsit of Chappedelaine was essentially as security for the absent partner, who still remained a debtor; and when the principal did himself pay what he owed to the original creditor, the assumpsit of Chappedelaine was of  no further obligation. Although this was not an error in the account when settled, except so far as this charge exceeded the sum with which the absent partner was really chargeable, yet it becomes an item which can no longer be retained as  a charge against Chappedelaine, and in reforming  their accounts, it must be excluded from them. \nThere is also added to the credits of Chappedelaine the sum of 26l. 18s. which the auditors state to be the difference between the amount of a receipt given by Dumoussay and the sum actually debited to him in the accounts between the parties. \nThese several errors make up the sum of 1,457l. 8s. 4d. from which is to be deducted the sum of 667l. 10s. 1 3-4d. admitted on the stated account to be due from Chappedelaine to Dumoussay. The balance standing to the credit of Chappedelaine would be, on the 30th of April, 1792, 789l. 18s. 2 1-4d. \nThe auditors state this balance at 1,346l. 10s. 7d. But from this balance reported by the auditors is to be taken the sum of 805l. 13s. allowed by Chappedelaine on the repayment in Georgia of money lent by him to Dumoussay in France. This sum has been disallowed by the auditors, but was allowed by the circuit court, and is allowed by this court. This would reduce the report of the auditors to 1,030l. 17s. 7d. exceeding the balance which is here supposed, by the sum of 240l. 19s. 4 3-4d. \nThe greatest part of this excess is produced by one-third  of merchandize sold and not entered in the account; and by a credit for continuing interest up to the 30th of April, 1792, on Chappedelaine's money in the hands of Dumoussay, which credits had been omitted in the stated account without any apparent reason, and must therefore have been among the numerous inaccuracies of that account. The residue of this excess is said by the auditors to be produced by numerous minute errors detected by a laborious investigation of all the accounts between the parties. This court cannot pursue them in that investigation. But in a case so replete with errors, which mark excessive negligence on the one side, and which can scarcely be ascribed to mistake on the other, the court is of opinion that the report of the auditors stating that these corrections were made on the inspection of the vouchers and entries which  were laid before them ought to be received, unless the person taking the exception had himself required the testimony on any particular point to which he objected to be submitted to the court, or had required a special statement from the auditors, exhibiting the reasons for their opinion on the particular point. \nThe balance due  to Chappedelaine on the 30th of April, 1792, is so much of the loan made by him to Dumoussay in France, which remains unpaid.By the contract between the parties, that loan was to carry an interest of six per cent per annum until paid. The court, therefore, cannot consider it as a claim on an unsettled account, or as carrying interest at the rate established in Georgia. It is still governed by the law of the contract, and must carry interest at the rate of six per cent per annum. \nTo the report, so far it respects the accounts subsequent to the 30th of April, 1792, a general exception is taken, which is sufficiently repelled by the answer of the auditors. They say, if in the opinion of the defendant below the auditors admitted any charge against Dumoussay which was not sufficiently supported by testimony, he ought to have obtained a special statement from the auditors, or have made a special exception, which would bring the testimony on the particular point before the court. The only objection which the court can notice, is the allegation in the exception that the auditors have proceeded on accounts rendered by Dechenaux, without allowing him a credit which he claimed in those accounts.  That credit is the balance appearing to be due to Dumoussay by the stated account of July, 1792. But that balance was entirely changed. The item was fully disproved by the testimony laid before the auditors.Dechenaux did not then withdraw his account; and require the plaintiff below to support his claims by other vouchers. It was clearly in the power of the plaintiff to have done this, for he might have forced Dechenaux to produce the entries and vouchers from which he had made out the account exhibited by himself. By leaving this account with the anditors without objection, he acquiesced in their considering as correct the items it admitted. \n This bill was brought to correct the stated account of July, 1792, and to settle the accounts between the parties subsequent to that period. The defendant exhibits the accounts subsequent to that period, but claims to set against them the balance due to his testator under the settlement of 1792. On those subsequent accounts, that balance has no influence. By introducing it into an account he was compellable to render, he cannot destroy the effect of that account. Had he intended to rely on this circumstance, he ought to have  made the point before the auditors, and thus have enabled the plaintiff to take other measures to substantiate his claim. The auditors say they \"admitted the account presented by the defendant;\" but this must be understood with the exception of the balance which he claimed under the settlement of July, 1792. It does not appear, from their report, that the claims of the plaintiff below rested on that account so far as it went; but it is probable that further research was deemed unnecessary. The court cannot say that in this auditors erred. \nThe decree of the circuit court is affirmed, so far as it accords with this opinion, and is reversed as to the residue. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. after stating the case, delivered the opinion of the court, as follows: \nIt is a clear principle of law, that a person owing money on two several accounts, as upon bond and simple contract, may elect to apply his payments to which account he pleases; but if he fails to make the application,  the election passes from him to the creditor. No principle is recollected which obliges the creditor to make this election immediately. After having made it he is bound by it, but until he makes it he is free to credit either the bond or simple contract. \n Unquestionably, circumstances may occur, and perhaps did occur in this case, which would be equivalent to the declaration of his election on the part of the debtor, and therefore the court was correct in instructing the jury, that if they should be satisfied that the payments were understood to be made on account of the goods sold at vendue, they ought to apply them to the discharge of that account; but in declaring that the election, which they supposed to devolve on the plaintiff if the application of the money was not understood at the time by the parties, was lost if not immediately exercised, that court erred. \nTheir judgment, therefore, must be reversed, and the cause remanded for a new trial \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. The majority of the court is of opinion that the writ of error must be quashed, this court not having jurisdiction. \nThe refusal of the court below, to quash the execution on motion, is by some of the judges supposed not to be a judgment to which a writ of error will lie.  Others are of opinion that a writ of error will lie to that decision of the court, but that this writ of error is not to the judgment of the circuit court, but to that of the justices. \nWrit of error quashed. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. delivered the opinion of the court as follows, viz. \nThis case comes on upon a special demurrer to a replication filed by the plaintiffs to a plea of payment after the day. The replication is double, and consequently ill. But it is a known rule that a demurrer brings all the pleadings before the court; in consequence of which, judgment must be rendered against him who has committed the first fault; or, which will most generally produce the same result, for him who upon the whole record shall appear to be entitled to their judgment. It therefore becomes necessary to examine the plea of the defendants. By their agreement with the secretary of the treasury, they were bound to pay to the bankers of the United States in Amsterdam the sum of 500,000 guilders in the following manner, viz. 230,000 guilders on or before the first day of February, 170,000 guilders on or before the first  day of March, and the remaining 100,000 guilders on or before the first day of June, in the year 1803. The first payment was made on the day, and the last before the day, but the second payment was made on the thirteenth day of May, instead of the first day of March. On the effect of this payment, the whole case depends. \nThe defendants plead that they did, on the 13th day of May, at Amsterdam, pay to the bankers of the United States, for the use of the United States, the sum of 170,000 guilders. The replication admits this payment as pleaded, but denies that it was accepted, received and allowed by the United States in payment and satisfaction of the same sum which was payable on the first of March. The replication proceeds to aver that the said sum of 170,000 guilders was not paid on the first day of March, nor had the defendants paid the damages of 20 per cent which were stipulated, in case of failure to pay on the day. \nThe fact upon these pleadings appears to be, that the payment was received by the United States without any  stipulation respecting the effect of that receipt, upon their agreement with the defendants. If payment to the bankers of the United States,  the persons to whom by agreement the money was to be paid, was not payment to the United States, it would not be a payment to the use of the United States, which the plea avers, and the replication in terms admits. In such case the replication, instead of averring that this sum was not accepted in satisfaction of the same sum payable at an earlier day, would have averred, and ought to have averred, that it was not accepted at all, and was not a payment to the use of the United States, in which case, instead of a special replication, issue might have been tendered on the plea. The court, then, understands the fact as stated in the pleadings to be, that the money was received without any agreement whatever, and the law must determine the effect of such a payment. \nThe payment made to the bankers in Amsterdam being then an actual payment to the United States, the inquiry is, whether it was such a payment, and is so pleaded, as to bar this action. \nIt is admitted that the statute of Anne, which allows payment after the day to be pleaded, is in force in Pennsylvania, but it is contended that this bond is not within that statute; or, if it is, that this plea is not good under it. \nIf this  be a bond within the statute of Anne, on which the court gives no opinion, yet by that statute, the payment must be of the whole sum actually due, or the action for the penalty is not barred. \nIn this case the sum due on the first of March was paid on the 13th of May, without interest or damages. \nBy the United States it is contended, that damages at the rate of 20 per centum on the sum of 170,000 guilders were then due; by the defendants it is contended that no interest was due. \n The words of the contract to which each party refers, are not precisely the same in the condition of the bond and in the articles of agreement which are referred to by the bond. There is no contradiction between them; but there is a variance in this, that the condition of the bond expresses more fully than the articles the idea of the parties, that in case of failure to perform the contract at Amsterdam, the demand  for payment was to be made in Philadelphia. The words of the condition are, \"or in case the said sums shall not be paid as aforesaid, then to repay to the United States the value of the said 500,000 guilders, at the rate of exchange current in Philadelphia at the time  demand of payment is made, together with damages at the rate of 20 per cent, in the same manner as if bills of exchange had been drawn for the said sum, and they had been returned protested for non-payment, and lawful interest for any delay of payment that may take place after the demand.\" \nThe defendants were merchants residing and carrying on trade in Philadelphia, in which place the contract was made, and by the law of the state, bills of exchange returned unpaid under protest are liable to 20 per cent damages. It is sufficiently obvious, from these circumstances, and from the words of the condition, that the parties contemplated a repayment in Philadelphia in the event of non-payment in Amsterdam. \nIt is contended by the plaintiffs that, the instant the failure to pay the 170,000 guilders on the first of March had taken place, a full and complete right to the stipulated damages was vested in the United States, without any further act on their part; and that a payment of the principal sum on the succeeding day would not have relieved the defendants from those damages. \nIn this opinion the court does not concur with the counsel for the United States. \nContracts are always to be  construed with a view to the real intention of the parties. In this contract, the object of the United States was to remit to their bankers in Amsterdam a sum of money, for which they had  occasion in Europe. The heavy damages to be incurred by the defendants in the event of their failing to make the stipulated payments in Amsterdam, were considered as a compensation for the disappointments produced by the non-payment of the money at that place in such time as to answer the purposes of the contract. Whether payment at the same place on a subsequent day would answer these purposes, was for the United States to determine. They might accept it, or they might reject it, and claim whatever the law of their contract would give them. In the event of non-payment in Amsterdam at the time stipulated, the defendants are to repay to the United States the value of the guilders they shall have failed to pay in Amsterdam, \"at the rate of exchange current in Philadelphia at the time demand of payment is made, together with damages at the rate of 20 per cent.\" The fair interpretation of this agreement is, that the demand is to be made in Philadelphia, that the money is to be repaid  in Philadelphia, and that the damages are upon the money there to be repaid. Had a part of the sum of 170,000 guilders been paid on the first of March, it will scarcely be contended that damages would have accrued on that part. A repayment of it could not have been demandable in Philadelphia. It appears to the court that the acceptance of any part of the sum due in Amsterdam on a subsequent day, is a waiver of the claim to damages in Philadelphia on the sum so accepted, for that sum cannot be demanded in Philadelphia. \nThis reasoning, to which the majority of the court would strongly incline, from the nature and circumstances of the contract, derives much additional force from the reference to bills of exchange. The repayment of the value of the guilders \"at the rate of exchange current in Philadelphia at the time demand of payment is made, together with damages at the rate of 20 per cent,\" is to be made \"in the same manner as if bills of exchange had been drawn for the said sum, and they had been returned protested for non-payment.\" \nWhy is this reference made to bills of exchange? \n The stipulation that damages at the rate of 20 per centum should be incurred on those  sums which the defendants might fail to pay at the time and place mentioned in their contract, did not require it, unless the law of bills of exchange was either to explain or to give validity to that stipulation. To a majority of the court it is satisfactory evidence that the parties intended this contract, if not as a complete substitute for bills of exchange, to operate between themselves as if bills had been drawn. The law of Pennsylvania regulating bills of exchange was well understood. If those drawn on any part of Europe are returned back unpaid with a legal protest, the drawers and indorsers are subjected to damages at the rate of 20 per centum. But the right to these damages is not complete until the bill be returned back under protest. Till then they are not demandable. Consequently, payment before the bill returns does away the right to demand them. By receiving payment, the holder waives his right to damages. The express reference to bills which is made in this contract, and the terms in which that reference is made, being considered by the majority of the court as explanatory of the intention of the parties that the right to damages should be put on the same footing  as if bills had been drawn, form an additional reason for their opinion that an acceptance in Amsterdam after the day, before a demand in Philadelphia, amounts to a waiver of any right the United States might otherwise, perhaps, have had to demand the stipulated damages. \nBut whether the sum agreed to be paid as a compensation for a failure to pay at the time and place mentioned in the contract, be considered merely as a penalty, or as stipulated damages, of which the law will coerce the payment, a forfeiture took place on the non-performance of the condition of the bond, and a right to something more than that condition vested immediately in the obligees. If the reservation of damages in the condition of the bond is in law only a double penalty, then interest is the legal compensation for this breach of the covenant contained in the condition of the bond. If it be even of the character given to it by both parties in argument, the amount of damages settled by the parties themselves, the majority of the court  is not satisfied, that in waiving those damages the obligee has, without any agreement on the subject, relinquished that right to interest which is attached to all  contracts for the payment of money, which is only displaced by the agreement to receive a larger sum in damages, and which a mere tacit implied waiver of those stipulated damages might reinstate. The majority of the court, therefore, is of opinion,  that under the circumstances which have taken place, the United States ought to receive, under this contract, interest on the sum of 170,000 guilders, from the first of March, the day on which that sum ought to have been paid, until the thirteenth of May, the day on which it was actually paid. Judgment, therefore, on the pleadings, must be rendered for the plaintiffs. \nBy the 26th section of the judicial act, it is directed, that in cases of this description the court shall render \"judgment for so much as is due according to equity. And when the sum for which judgment should be rendered is uncertain, the same shall, if either of the parties request it, be assessed by a jury.\" \nIn this case it is the opinion of the majority of the court, that judgment ought to be rendered for so much as remains due of the sum of 170,000 guilders, calculating interest thereon from the first of March in the year 1803, and if either of the parties  request it, that a jury be impanelled to ascertain the value of this sum in the money of the United States. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. delivered the opinion of the court, as follows: \nIn these cases two questions are to be decided by the court. \n1st. Is the cargo of the Favourite, or any part of it, forfeited to the United States? \n2d. Are Ware and others entitled to any, and if to any, to what salvage? \nThe first count in the first libel filed on the part of the United States claims the brandies, wines and cordials therein mentioned, in consequence of their being found in the possession of certain persons therein named, unaccompanied  with such marks and certificates as are required by law, the duties thereon not  having been paid, or secured to be paid. \nThe second count claims them as forfeited because they were removed, without the consent of the collector, before the quantity and quality of the said wines and spirits, and the duties thereon, were ascertained according to law; the duties thereon not having been paid or secured. \nThe third count claims them because they were found concealed, the duties not having been paid or secured according to law. \nThe second libel claims certain other goods, which were parcel of the cargo of the Favourite, as forfeited, by being found unlawfully concealed,  the duties thereon not having been paid or secured. \nThe facts of the case are these: The ship Favourite, belonging to Mr. Peisch, of Philadelphia, was discovered about the last of October adrift in the bay of Delaware, with her masts gone by the board, and without anchors, cables or rudder, and in danger of being carried out to sea. A company was formed to save the vessel and cargo; and with considerable labour, in the course of several days, the cargo was unladen and landed at Lewis, a small town on the bay, not a port of delivery, where it was, with the approbation of the collector,  left under the care and in the custody of a revenue officer residing at that place, who was one of the party that had originally taken possession of the vessel, and under whose direction the whole business had been in a great measure conducted. On the 3d of November, while the salvors were unlading the vessel and landing the cargo, an imperfect entry was made by the owners or consignees, after which an award was made between the owners and salvors, by which the salvors were allowed one half the cargo. The owners were dissatisfied with this award, and refused to acquiesce under it. The collector ordered the goods, which had been in the custody of a revenue officer, to be carried to Wilmington for the purpose of  ascertaining the amount of duties. The salvors objected to this, and requested that the duties might be ascertained at Lewis, offering at the same time to pay the duties on the moiety of the cargo claimed by them under the award. The collector persisting in his determination to remove the goods to Wilmington, the salvors sued out a writ of replevin from the state court, and by force of that writ took the goods out of the possession of the revenue officer. This  act is the foundation of the forfeiture alleged in the libels. \nThe forfeiture said to be occasioned by the goods being found without the marks and certificates required by law, depends upon the 43d section of the act for collecting duties, and on other sections of the same act, which are explanatory of the 43d section. The particular clause giving the forfeiture is in these words: \"And if any casks, chests, vessels or cases, containing distilled spirits, wines, or teas, which by the foregoing provisions ought to be marked and accompanied with certificates, shall be found in possession of any person, unaccompanied with such marks and certificates, it shall be presumptive evidence that the same are liable to forfeiture.\" The law then authorises a seizure, and subjects such distilled spirits, &c. to forfeiture, unless it be proved at the trial that they were imported according to law, and that the duties were paid or secured. \nThe objects of this clause are those vessels only which \"by the foregoing provisions\" ought to be marked and accompanied with certificates. To determine its extent, the \"foregoing provisions\" must be looked into. \nThis subject is first taken up in the 37th section  of the act. That section directs particular and additional entries to be made of distilled spirits, wines and teas, which provisions are adapted to regular importation, not to those articles when saved from a wreck. \nThe entry is to be made by the importer or consignee, and specifications are required which can only be given by the owner or consignee, when in possession of the papers relative to the vessel and cargo. If a vessel be  wrecked on the coast, the cargo must be lost, or brought on shore without the knowledge of the owner or consignee, so as to put it in his power to make the entry, and the salvors are not only not the persons designated by the law to make, but they will often not possess the information which would enable them to make it. \nThe act proceeds to require that this entry shall be transmitted to the surveyor of the port where the delivery of the cargo is to commence, to whom also every permit for unlading or landing any part of the cargo must be previously produced, who shall record the same, and indorse thereon the word \"inspected,\" the time when, and his own name. Goods landed previous to these formalities are to be forfeited. \nThese regulations  obviously respect a regular importation, where all these pre-requisites to landing may be performed; not cases where a landing must take place without them. To suppose them applicable to salvage goods, would be to suppose that the legislature designed to prohibit salvage entirely, or to forfeit the cargoes of all vessels which might be wrecked on the coast. \nThe 38th section requires that all distilled spirits, wines and teas, shall be landed under the inspection of the surveyor, or other officer acting as inspector of the revenue for the port, and therefore can relate only to cases of regular importation at the port of delivery, where the revenue officer may superintend the landing. He is directed to attend at all reasonable times, not at all places. \nThe 39th section prescribes the duty of the officer of inspection of the port where the spirits, &c. may be landed. He is to ascertain the duties and mark the casks. \nThe 40th section directs the surveyor, or chief officer of inspection of the port or district in which the said spirits, wines or teas shall be landed, to give the proprietor, importer or consignee a general certificate; and the 41st section directs him to give a particular  certificate  for each vessel, which certificate passes with the vessel to the purchaser. \nThese sections are connected with those which precede them, and relate to regular importations, where the spirits, &c. are landed under a permit at a port of delivery, and there is a proprietor, importer or consignee, or an agent to whom the certificates may be granted; not to spirits, &c. which may, from the nature of things, lawfully get into the possession of individuals without the knowledge of a revenue officer. \nThe 42d section only directs that blank certificates shall be provided. \nThese are the sections which precede that which is supposed to give the forfeiture claimed under this count of the libel. \nThe first part of the 43d section directs the proprietor, importer or consignee, who may receive the said certificates, to deliver them with the vessels to the purchaser; and then comes the clause which subjects to forfeiture all vessels containing spirits, &c. which may be found unmarked and not accompanied by certificates, which by the foregoing provisions ought to be marked and accompanied by certificates. \n In the foregoing provisions the legislature, in the opinion  of this court, did not intend to comprehend wrecked goods, or goods found under circumstances like those in the Favourite, where the vessel was deserted by her crew, and where in might be necessary, for the preservation of the goods, to take them to the nearest accessible part of the coast. Either these spirits and wines would have been liable to forfeiture if brought to land under the most pressing circumstances, where inevitable loss must attend any delay, if a revenue officer should not be present to take possession of them, or the single circumstance of their being found unmarked and unaccompanied with certificates, is not in itself sufficient to forfeit them. The opinion of the court that it was not the intention of the legislature to subject goods, under such circumstances, to forfeiture, is not formed exclusively  on the extreme severity of such a regulation. It is formed also on what is deemed a fair construction of the language of the several sections of the law, which seems not adapted to cases like the present. \nThe second count in the libel claims the goods as forfeited, because they were, without the consent of the proper officer, removed from the place where  they were deposited, before the amount of duties was ascertained, the duties at that time not being paid or secured. \nNeither this count, nor the first, supposes any forfeiture to have been incurred by the landing of the goods, or the unlading of the vessel. The spirits and wines are presumed to have been legally brought on shore, and it is the removal only which gives title to the United States. The court therefore is to inquire, whether these goods were under such circumstances that a removal, such as has taken place in this case, will produce a forfeiture. This depends on the 51st section of the law, in expounding which, it becomes proper to notice the 50th also. This section prohibits the unlading of any vessel, or the landing of any goods, without a permit granted by the proper officers, and subjects the master or other person having the command of such vessel, and all those who shall be concerned in unlading, removing, or storing such goods, to heavy penalties, and the goods themselves to forfeiture. \nIt was well observed that the application of this section to cases where the goods must perish, if not immediately brought on shore, and to cases in which a permit cannot regularly  be granted, would be not only to prohibit, but to punish every attempt to save a cargo about to be lost on the coast. This construction of the law could only be made where the words would admit of no other. But it is unquestionably a correct legal principle, that a forfeiture can only be applied to those cases in which the means that are prescribed for the prevention of a forfeiture may be employed. The means prescribed to save the forfeiture given in the 50th section cannot be employed where a vessel is deserted by her crew, or cannot be brought into port. The permit cannot be obtained, nor can those steps which must precede the attainment  of a permit be taken. Upon just legal construction, then, the landing of these goods without a permit did not subject them to the forfeiture of the 50th section. This act is not within the law. The 50th section is calculated for cases in which the general requisites of the law can be complied with, not for salvage goods, in cases where those general requisites cannot be complied with. \nThe 51st section relates to the removal of goods from the wharf or place on which they may have been landed in conformity with the directions of  the 50th section. It presupposes a permit, and that they were landed under the inspection of a revenue officer, in the manner prescribed by the 38th section. \nIt presupposes a case in which the guaging and marking may be done, and the other means prescribed for the ascertainment of the duties and security of the revenue may be taken, at the place of landing; not a case in which a landing must be made without a permit, often in the absence of a revenue officer, and where the goods could not be permitted, without extreme peril, to remain at the place of landing until these measures should be taken. \nThe court is also of opinion, that the removal for which the act punishes the owner with a forfeiture of the goods must be made with his consent or connivance, or with that of some person employed or trusted by him. If, by private theft, or open robbery, without any fault on his part, his property should be invaded, while in the custody of the officer of the revenue, the law cannot be understood to punish him with the forfeiture of that property. In the 52d section, therefore, to which the revenue officers seem to have intended to conform, so far as the case would admit, which directs  them in the case of an incomplete entry to store the goods at the risk and expense of the owner or consignee, no forfeiture is annexed to their removal, unless the penalties of the 51st section, or of the 43d section, be applied to the 52d. \nThe court is of opinion that those penalties cannot be so applied in this case, not only because, from the whole  tenor of the law, its provisions appear not to be adapted to goods saved from a vessel under the circumstances in which the Favourite was found, but because, also, the law is not understood to forfeit the property of owners or consignees, on account of the misconduct of mere strangers, over whom such owners or consignees could have no controul. \nIt has been urged, on the part of the United States, that although the property of the owner should not be forfeited, yet that moiety which is claimed by the salvors has justly incurred the penalties of the law. But if the award rendered in this case be not binding, the salvors could have only a general claim for salvage, such as a court might allow; and if it be binding, still they acquired no title to any specific property. Their claim was in the nature of a general lien, and  any irregular proceeding on their part would rather furnish motives for diminishing their salvage, if that be not absolutely fixed by the award, than ground of forfeiture. The irregularity, too, if any, which has been committed by them, being merely an attempt ot assert, in a course of law, a title they supposed themselves to possess, and with no view to defraud the revenue, this court  would not be inclined to put a strained construction on the act of congress, in order to create a forfeiture. \nThe third count in the first libel, and the second libel, claim a forfeiture on the allegation that the goods were concealed. The fact does not support this allegation.There was no concealment in the case. \nTaking all the circumstances into consideration, it is the unanimous opinion of the court, that no forfeiture has been incurred, and that the libels filed on the part of the United States were properly dismissed. \nThe next question to be considered is, to what amount of salvage are the salvors entitled? That their claim is good for something, is the opinion of all the judges; but on the amount to be allowed, the same unanimity does not prevail. \n For the quantum  of salvage to be allowed, no positive rules are fixed. It depends on the merit of the salvors, in estimating which, a variety of considerations have their influence. \nIn the case before the court, the opinion of the majority is, that the sentence of the circuit court ought to be affirmed. This opinion, however, is made up on different grounds. Two of the judges are of opinion that the award was fairly entered into, and although both parties might be mistaken with respect to the obligation created by the law of Delaware, yet there is no reason to suppose any imposition on either part; nor is there any other ground on which the award can be impeached or set aside. Two other judges, who do not think the award obligatory, view it as the opinion of fair and intelligent men, on the spot, of the real merit of the savors, and connecting it with the testimony in the cause, are in favour of the salvage which has been awarded, and which has been allowed by the sentences of the district and circuit courts. Three judges are of opinion that the award is of no validity, and ought to have no influence.They think the conduct of the salvors, in taking the goods out of the possession of the revenue  officer, though by legal process, is improper, and that the salvage allowed is too great. \nThey acquiesce, however, cheerfully, in the opinion of the majority of the court, and express their dissent from that opinion, solely for the purpose of preventing this sentence from having more than its due influence on future cases of salvage. \nThe sentence of the circuit court is affirmed, without costs. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. The error alleged, if founded on a construction of the act of Georgia, which this court thinks is totally inadmissible. How such an opinion could have been entertained is unaccountable. There is no foundation for it. \nJudgment affirmed with costs. \n \n\n ", " \nOpinion \n\n \n \n MARSHALL, Ch J. declared it to be the opinion of a majority of the judges, that this court has jurisdiction. \nThat the third article of the court of the United States when considered in connexion with the statute, will not give it a more extensive construction than it might otherwise  receive. \nIt is supposed that the act intends to give this court the power of rendering uniform the construction of the laws of the United States, and the decisions upon rights or titles, claimed under those laws. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. delivered the opinion of the court as follows, viz. \nThis is a motion to quash a writ of error which has issued to a judgment obtained by the bank of Alexandria in the circuit court for the district of Columbia sitting in Alexandria. In support of the motion, it is contended that no writ of error lies to such a judgment. \nThe words of the act of congress of February, 1801, by which the circuit court for the district of Columbia was erected, are these: \"Any final judgment, order or decree, in the said circuit court, wherein the matter in dispute, exclusive of costs, shall exceed the value of one hundred dollars, may be re-examined, and reversed  or affirmed, in the supreme court of the United States, by writ of error or appeal.\" \nUpon the operation of this clause in the \"act concerning the district of Columbia,\" no  doubt could be entertained, were it not produced by the last section, which enacts that nothing in that act contained \"shall in any wise alter, impeach or impair the rights granted by or derived from the acts of incorporation of Alexandria and Georgetown, or of any other body corporate or politic within the district.\" \nThe state of Virginia had, in November, 1792, passed an act for establishing a bank in the town of Alexandria, which act incorporated the bank, and, in addition to the privilege of summary process for the recovery  of debts, deprived their debtors of the right of appeal. \nIn January, 1801, the legislature of Virginia passed an act continuing the charter of the bank to the 4th of March in the year 1801, and authorising them to transact business in the county of Fairfax. \nIt is the opinion of the majority of the court, under the terms of the cession and acceptance of the district, that the power of legislation remained in Virginia until it was exercised by congress. \nBut the question  recurs, whether that part of the act of Virginia which takes away the right of appeal, taken in connection with the act of congress passed in February, 1801, is now in operation. \nThe words of the act of congress being as explicit as language can furnish, must comprehend every case not completely excepted from them. The saving clause in the last section only saves existing rights; it does not extend those rights, or give new ones. The act incorporating the bank professes to regulate, and could regulate, only those courts which were established under the authority of Virginia. It could not affect the judicial proceedings of a court of the United States, or of any other state. \nThere is a difference between those rights on which the validity of the transactions of the corporation depends, which must adhere to those transactions every where, and those peculiar remedies which may be bestowed on it. The first are of general obligation; the last, from their nature, can only be exercised in those courts which the power making the grant can regulate. The act of incorporation, then, conferred on the bank of Alexandria a corporate character, but could give that corporate body no peculiar  privileges in the courts of the United States not belonging to it as a corporation. Those privileges do not exist, unless conferred by an act of congress. \n The mere saving in an act of congress which expressly renders all judgments of the circuit court, for a larger sum than one hundred dollars, re-examinable by writ of error in this court, cannot be considered as exempting judgments rendered in favour of the bank, from the operation of this general enacting clause respecting writs of error. If the act of March, 1801, be considered as giving the bank a right to proceed in the circuit court for Alexandria, in the same manner as by the act of incorporation, it might proceed in Virginia, yet that act does not affect the writ of error as given in the act of the 27th of February. \nThe motion is, therefore, overruled. \n \n\n ", " \nOpinion \n\n \n \n MARSHALL, Ch. J. The error assigned consists in both the admission and the operation of the testimony. So far as evidence of the existence of a deed went to show the nature of the possession which accompanied the deed, so far it was admissible; but it was not in itself evidence of any title in the plaintiff. There was no error, therefore, in admitting the  testimony as to the deed. \nBut in overruling the prayer to instruct the jury, \"that at the time the gift was said to be made, no gift of a slave was valid unless made in writing, which writing was afterwards reduced to record,\" the court below is to be considered as having given an opinion that a parol gift was good. This court is, therefore, of opinion, that the court below erred in refusing to give the latter part of the instruction prayed by the defendant. \nThis court gives no opinion as to the validity of title acquired by possession. \nJudgment reversed, and the cause remanded. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. delivered the opinion of the court to the effect following: \nThis case is the same as that of Willison v. Spiers, just decided, except that in this case the court below gave the  instruction which the court in Kentucky ought to have given. \nThe opinion of the court was only that a parol gift  to the defendant, accompanied by possession, did not bar the plaintiff's right to recover. \nthis court gives no opinion as to the title acquired by the possession. \nJudgment affirmed. \n \n\n ", " \nOpinion \n\n \n \n MARSHALL, Ch. J. delivered the opinion of the court, as follows: \nThe plaintiffs, who were the creditors of Rae and Somerville, brought this bill to subject a tract of land in the possession of the defendants to the payment of a debt for which they had obtained a decree against Rae and Somerville. \nThe defendants plead that Daniel Course, under whom they claim by descent, is a fair purchaser, for a valuable consideration, of the premises in question, at a sale thereof, by the collector of taxes for the county in which they lie, made for taxes in arrear. The defendant also answered, denying fraud. \n A replication was filed to this plea, and on a hearing it was sustained, and the bill dismissed. \n In this case the merits of the claim cannot be examined. The only questions before this court are upon the sufficiency of the plea to bar the action, and the sufficiency of the testimony to support the plea as pleaded. \nOn the first point, the counsel for the plaintiff has adduced authority which would certainly apply strongly, if not conclusively in his favour, if a special demurrer had been filed to the plea: But as issue has been taken on it, the court thinks it sufficient, since it contains, in substance, matter which, if true, would bar the action. \nThe replication puts the matter of the plea in issue, and it is incumbent on the defendants to support it. They prove a sale by the collector on account of taxes, and adduce a deed conveying the premises to the purchaser. But this testimony alone is not sufficient to support the plea. The validity of the sale is the subject of controversy, and its validity depends on the authority of the collector to sell, and on the fairness of the transaction. It would be going too far to say that a collector selling land with or without authority, could, by his conveyance, transfer the title of the rightful proprietor. He must act in conformity  with the law from which his power is derived, and the purchaser is bound to inquire whether he has so acted. It is true that full evidence of every minute circumstance ought not, especially at a distant day, to be required. From the establishment of some facts, it is possible that others may be presumed, and less than positive testimony may establish facts. In this case, as in all others depending on testimony, a sound discretion, regulated by the law the vendee to prove the authority to sell, and the question respecting the fairness of the sale will then stand on the same principles with any other transaction in which fraud is charged. \n In examining the law under which this sale was made, the court perceives that the collector is authorised to sell land only on the deficiency of personal estate; and then to sell only so much as is necessary to pay the tax in arrear. In this case a sale is made of a whole tract of land, without specifying the amount of taxes actually due for which that land was liable and could be sold. This is proceeding in a manner not strictly regular. The sale ought to have been of so much of the land as would satisfy the tax in arrear. Should  it be true that the land was actually liable for the whole sum for which it sold, it would still be incumbent on the vendee to prove that fact; for it cannot be presumed. Every presumption arising from the testimony in the cause is against it. \nHad this fact been established, the court is inclined to think that the circumstances of the case as stated, though not perhaps amounting to proof of fraud, afford such presumptions as would render a final decree, without further testimony, unsatisfactory, and that an issue ought to have been directed on the question whether the sale was fraudulent or not. But if a whole tract of land was sold when a small part of it would have been sufficient for the taxes, which at present appears to be the case, the collector unquestionably exceeded his authority, and the plea cannot be sustained. \nIt is, therefore, the opinion of the court, that there is error in the decree of the circuit court for the district of Georgia, in sustaining the plea of the defendants, and dismissing the bill of the plaintiffs, and that the said decree ought to be reversed and annulled, and the cause remanded, with directions that the defendants shall answer over, and that  further proceedings be had in the said cause, according to equity. \nDecree reversed. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. after stating the facts of the case, delivered the opinion of the court as follows: \nIt is contended on the part of the purchaser, \n1st. That the lands are exonerated from the  mortgage by the confiscation and sale thereof made by the state of Georgia. \n2d. That they are exonerated by the length of time which has intervened since that confiscation and sale, during which an adverse possession has been held. \n3d. That payment of the mortgage is to be presumed. \nSeveral acts of confiscation were passed during the war by the state of Georgia, in which the name of Alexander Wylly is to be found. That under which the defendants in this case claim, was made in the month of May, in the year 1782. That act contains also a clause confiscating generally the estates of British subjects, with the exception of debts due to merchants residing in Great Britain, which were sequestered. The debt due to Greenwood and Higginson came within this exception, and the majority of the court is of opinion, that the lien given by the mortgage on the land of Wylly, for the security of that debt, was not confiscated. \nThe estate of Wylly, not the interest of Greenwood and Higginson in that estate, being confiscated, it is not to be inferred that the lien of Greenwood and Higginson on that estate was discharged. The treaty of peace  was made while the estate remained unsold. The fifth article of the treaty, after discovering much solicitude on the part of Great Britain for the entire restoration of confiscated estates, concludes with this clause: \"And it is agreed, that all persons who have any interest in confiscated lands, either by debts, marriage settlements, or otherwise, shall meet with no lawful impediment in the prosecution of their just rights.\" \nThis article applies to those cases where an actual confiscation has taken place, and stipulates expressly, that in such cases the interest of all persons having a lien upon such lands shall be preserved. Neither the confiscation, nor any act in consequence of the confiscation, can constitute a legal impediment to the prosecution of their just rights.The preceding part of the article had contemplated sales of the confiscated property, and consequently this clause must have been intended to charge the lands, even in the hands of a purchaser. But respecting its application to this particular case, the court cannot conceive a doubt. The lands, at the time of the treaty, remained unsold, and the government, claiming them a confiscated, stipulates through the proper constituted authorities for their liability  to this mortgage. If, then, the act of confiscation, independent of the treaty, would be construed to destroy the claim of the mortgagee, the treaty reinstates the lien in its full force, and the subsequent sale of the property could only pass it with the burden imposed upon it. \n2d. Is this remedy barred by the act of limitations? \nUpon an attentive consideration of that act, it appears to be intended for suits at law, claiming the lands themselves, not to suits in equity for the purpose of subjecting the lands to the payment of debts for which they are mortgaged. The words of the law would lead to that opinion, and it is confirmed by the consideration that, in such cases, the possession of the mortgagor, or those claiming under him, is not adverse to, but is compatible with, the rights of the mortgagee. Unless, therefore, this statute has been otherwise construed  in Georgia, it would not be considered as applicable to such a case as this. But this point must be decided in favour of the plaintiffs, because there is a saving in the act of the rights of persons beyond sea. \n3d. Is payment in this case to be presumed? \n The length of time which elapsed between  the day when this bond and mortgage became payable, and that on which the suit was instituted is certainly sufficient to warrant a presumption of payment. But this presumption may be met by circumstances which account for the delay in bringing this suit. In this case, the war, and those events which succeeded the war, have not the same influence as in ordinary cases of British debts, because the debtor was within the reach of his creditor from the date of his banishment in the year 1778, and might have been sued. It does not sufficiently appear in the proceedings where he was, nor what was his situation, to enable the court to judge whether the long delay in bringing this suit is or is not sufficiently accounted for. Neither is it shown satisfactorily that Alexander Wylly has left no personal representative who might show payment of this debt.If there be a personal representative of Alexander Wylly in existence, such person ought to be a party to this suit; if there be no personal representative, some evidence that there is none ought to be adduced. In any event, under all the circumstances of this case, enough does not appear to enable the court to decide whether payment ought  to be presumed, or whether the delay in instituting this suit can be accounted for, and the court is therefore of opinion that an issue ought to have been directed by the circuit court, for the purpose of ascertaining the fact of payment. The decree of the circuit court is therefore to be reversed, and the cause remanded to that court, with instructions to direct an issue to determine whether the bond in the bill mentioned has been paid, and with liberty to the plaintiff to amend his bill, and make new parties, if he shall desire it. \nLIVINGSTON, J. dissented from this opinion, but did not state his reasons. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. delivered the opinion of the court as follows, viz. \nIn this case objections have been made to the jurisdiction of the circuit court, and to the proceedings in that court. \nThe point of jurisdiction made by the plaintiffs in error is considered as free from all doubt. By appearing to the action, the defendants in the court below placed themselves precisely in the situation in which  they would have stood, had process been served upon them, and consequently waived all objections to the non-service of process. Were it otherwise, the duty of the circuit court would have been to remand the cause to the state court in which it was instituted, and this court would be bound now to direct that proceeding. As little foundation is there for the exception taken to the manner in which the circuit court was constituted. That court consists of two judges, any one of whom is capable of performing judicial duties. So this court consists of seven judges, any four of whom may act. It has never been supposed that the death of three of the judges would disqualify the remaining  four from discharging their official duties until the vacant seats of their departed brethren should be filled. There is nothing in the peculiar phraseology of that part of the judicial act which establishes the circuit courts, that requires a different construction of the words authorising a single judge to hold those courts, from what is usually given in other cases, to  clauses authorising a specified number of justices to constitute a court. \nThe exceptions taken to the proceedings of the circuit court are more serious. These are, \n1. To the pleadings. \n2. To the opinions of that court, admitting certain testimony in support of the action. \nThe objections to the pleadings are, \nThat the different parts of the declaration are repugnant to each other; and that the declaration is itself insufficient, as the foundation of a judgment. \nIn deciding on so much of this objection as depends on the laws of Connecticut, this court would certainly be guided by the construction given by that state to its own statute; and, if it was indispensably necessary now to decide that question, the evidence in favour of the construction maintained by the defendants in error would seem to  preponderate. \n Another objection taken to the declaration is, that it ought to have alleged a disseisin of the plaintiffs below, in order to enable them to maintain their action. \nOn this part of the case, the court can only consider whether the declaration in itself, unconnected with the testimony which was adduced to support it, is so radically defective, that a judgment cannot be rendered on it. This leads to the inquiry, whether the covenant of the vendors can be broken, as stated in the declaration, although no eviction has taken place; and the court is of opinion that it may be so broken. 9 Co. 60. \nThe covenant is, that the vendor is seised in fee of the premises which he sells and conveys. Suppose the fact to be that he had no title nor pretence of title to those premises; that he had conveyed lands for which he had never received a patent or a title of any kind. Could it be said that his covenant that he was seised in fee remained unbroken until the real proprietor should think proper to eject the vendee? This question, in the opinion of the court, must be answered in the negative. The testimony, which would be sufficient to establish the breach assigned,  may be a subject for serious consideration, but on the sufficiency of the breach as assigned to support a judgment, there is no doubt. \nThe exceptions to the testimony admitted in the circuit court consists of two parts. \n1st. To the admission of certain copies of surveys made for Wilson Carey Nicholas, connected with the testimony of Erastus Granger, describing the face of the country on which the surveys purported to be made. \n2d. To the admission of parol testimony to prove prior titles to the lands conveyed in the deed on which this suit was instituted. \n1. The surveys of Wilson Carey Nicholas, and the explanatory testimony of Granger, were introduced for the purpose of showing that the patent for the lands sold by Pollard and Pickett was void, because it issued on a  plat representing a survey which, in point of fact, could not have been made. \nIn examining this exception, it becomes proper to inquire what was the real issue between the parties. \nThe plaintiffs below averred in their declaration that the defendants were not seised and possessed of any estate whatever in the land and premises, nor in any part thereof, nor had they or either of them good right and  lawful authority to sell and convey the same. The defendants, in their plea, do not set forth their title, but say generally that they were seised of the land sold and conveyed by them, and had good right to sell and convey the same, as is expressed by their deed.On this plea an issue is tendered, which is joined by the plaintiffs. \nTo prove that the survey on which the patent granting the lands to the defendants was issued could not have been made, the plaintiffs produced two other surveys made by the same person for Wilson Carey Nicholas, which were said to be completed only two days succeeding the completion of the survey of the defendants, which three several surveys could not possibly have been made in the time interventing etween the entries in the surveyor's office and the day on which they are alleged to have been completed, whence the jury might conclude that the survey of Pollard and Pickett was not made. \nThe surveyor was a sworn officer, and his survey was returned upon oath. This is an attempt to invalidate the evidence derived from his official return, by a particular fact which has no relation to the cause before the court, and with which the parties to this controversy  have no connection. Had it even appeared that the copies offered in evidence were authenticated, they would, on this account, have been inadmissible. \nThis whole testimony is inadmissible on other ground. Were it even true that this patent is voidable, if the surveyor had not run round all the lines of the land, a  point not yet established, it cannot be deemed absolutely void; it cannot be deemed a mere nullity. While it remains in force it is a valid title, and vests the fee-simple estate in the patentee. In this action, and on the trial of this issue, the question whether the patent be voidable by Virginia or not, is not properly examinable. Testimony, therefore, tending to establish that point, is irrelevant and inadmissible. \n2. But had the court enteritaned any doubt on this point, the second part of the exception would be clearly decisive with regard to this judgment. \nParol testimony is admitted to show prior claims to the land in controversy. The defendants in error attempt land in controversy. The defendants in error attempt to defend the admission of this testimony, by supposing it auxiliary to other testimony which had previously established the validity  of those claims, and that covered this land. Had the fact supported the argument, a private ex parte survey would have been a very improper mode of establishing it; but the language of the exception excludes that construction of the opinion which the counsel for the defendants in error would put upon it. The proof offered and admitted is, not that those particular titles which were exhibited and proved to the court covered the land conveyed by Pollard and Pickett, but \"that there were prior claims upon it to the amount of upwards of ninety thousand acres.\" The prior claims rest upon the oath of the witness. If those claims were valid, their validity was established by his testimony, which cannot be tolerated on any legal principle; if they were mere claims, not good titles, they ought not to  have been stated to the jury. They were irrelevant to the point in issue. \nUpon the whole, the court is unanimously of opinion, that the circuit court erred in permitting the copies of surveys made for Wilson Carey Nicholas, and the testimony of Erastus Granger, to go to the jury for the purposes mentioned in the bill of exceptions, and  that the judgment of the circuit  court must, on that account, be reversed, and the cause remanded for a new trial. 1 \nJudgment reversed. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. delivered the opinion of the court. \nThis is a claim for a cargo of coffee, &c. which, after being shipped from a port in Santo Domingo, in possession of the brigands, was captured  by a French privateer, and carried into Barracoa, a small port in the island of Cuba, where it was sold by the captor. The cargo, having been brought by the purchaser into the state of South Carolina, was libelled in the court of admiralty, by the original American owner. The purchaser defends his title by a sentence of condemnation pronounced by a tribunal sitting in Santo Domingo, after the property had been libelled in the court of this country; and by an order of sale made by a person styling himself delegate of the French government of Santo Domingo at St. Jago de Cuba. \nThe great question to be decided is, \nWas this sentence pronounced by a court of competent jurisdiction? \nAt the threshold of this interesting inquiry, a difficulty presents itself, which is of no inconsiderable magnitude. It is this. \nCan this court examine the jurisdiction of a foreign tribunal? \nThe court pronouncing the sentence, of necessity decided in favour of its jurisdiction; and if the decision was erroneous, that error, it is said, ought to be corrected by the superior tribunals of its own country, not by those of a foreign country. \nThis proposition certainly cannot be admitted in its full extent.  A sentence professing on its face to be the sentence of a judicial tribunal, if rendered by a self-constituted  body, or by a body not empowered by its government to take cognizance of the subject it had decided, could have no legal effect whatever. \nThe power of the court then is, of necessity, examinable to a certain extent by that tribunal which is compelled to decide whether its sentence has changed the right of property. The power, under which it acts, must be looked into; and its authority to decide questions, which it professes to decide, must be considered. \nBut although the general power by which a court takes jurisdiction of causes must be inspected, in order to determine whether it may rightfully do what it professes to do, it is still a question of serious difficulty, whether the situation of the particular thing on which the sentence has passed, may be inquired into, for the purpose of deciding whether that thing was in a state which subjected it to the jurisdiction of the court passing the sentence. For example; in every case of a foreign sentence condemning a vessel as prize of war, the authority of the tribunal to act as a prize court must be examinable.  Is the question, whether the vessel condemned was in a situation to subject her to the jurisdiction of that court, also examinable? This question, in the opinion of the court, must be answered in the affirmative. \nUpon principle, it would seem that the operation of every judgment must depend on the power of the court to render that judgment; or in other words, on its jurisdiction over the subject-matter which it has determined. In some cases, that jurisdiction unquestionably depends as well on the state of the thing, as on the constitution of the court. If by any means whatever a prize court should be induced to condemn, as prize of war, a vessel which was never captured, it could not be contended that this condemnation operated a change of property.Upon principle, then, it would seem that, to a certain extent, the capacity of the court to act upon the thing condemned, arising from its being within, or without their jurisdiction, as well as the constitution of the court, may be considered by that tribunal which is to decide on the effect of the sentence. \n Passing from principle to authority, we find, that in the courts of England, whose decisions are particularly mentioned,  because we are best acquainted with them, and because, as is believed, they give to foreign sentences as full effect as are given to them in any part of the civilized world, the position that the sentence of a foreign court is conclusive with respect to what it professes to decide, is uniformly qualified with the limitation that it has, in the given case, jurisdiction of the subject-matter. \nThis general dictum is explained by particular cases. \nThe case of the Flad Oyen, 1 Reb. 114. was a vessel condemned by a belligerent court sitting in a neutral territory; consequently, the objection to that sentence turned entirely on the defect in the constitution of the court. \nThe Christopher, 2 Rob. 173. was condemned while lying in the port of an ally. The jurisdiction of the court passing the sentence was affirmed, but no doubt seems to have been entertained, at the bar, or by the judge himself, of his right to decide the question, whether a court of admiralty sitting in the country of the captor could take jurisdiction of a prize lying in the port of an ally. The decision of the tribunal at Bayonne in favour of its own jurisdiction, was not considered as conclusive on the court of admiralty  in England, but that question was considered as being perfectly open, and as depending on the law of nations. \nThe case of The Kierlighett, 3 Rob. 82. is of the same description with that of The Christopher, and establishes the same principle. \nIn the case of The Henrick and Maria, 4 Rob. 35. Sir W. Scott determined that a condemnation, by the court of the captor, of a vessel lying in a neutral port, was conformable to the practice of nations, and therefore valid; but in that case the right to inquire whether the situation of the thing, the locus in quo, did not take it out of the jurisdiction of the court, was considered as unquestionable. \n The case of The Comet, 5 Rob. 255. stands on the same principles. \nThe Helena, 4 Rob. 3. was a British vessel captured by an Algerine corsair owned by the Dey, and transferred to a Spanish purchaser by a public act in solemn manner before the Spanish consul. The transfer was guanantied by the  Dey himself. The vessel was again transferred to a British purchaser under the public sanction of the judge of the vice-admiralty court of Minorca, after that place had surrendered to the British arms. On a claim in the court of  admiralty by the original British owner, Sir W. Scott affirmed the title of the purchaser, but expressed no doubt of the right of the court to investigate the subject. \nThe manner in which this subject is understood in the courts of England, may then be considered as established on uncontrovertible authority. Although no case has been found in which the validity of a foreign sentence has been denied, because the thing was not within the ports of the captor, yet it is apparent that the courts of that country hold themselves warranted in examining the jurisdiction of a foreign court, by which a sentence of condemnation has passed, not only in relation to the constitutional powers of the court, but also in relation to the situation of the thing on which those powers are exercised; at least so far as the right of the foreign court to take jurisdiction of the thing is regulated by the law of nations and by treaties.There is no reason to suppose that the tribunals of any other country whatever deny themselves the same power.It is, therefore, at present, considered as the uniform practice of civilized nations, and is adopted by this court as the true principle which ought to govern in this  case. \nIn pursuing the inquiry, then, whether the tribunal erected in St. Domingo was acting on a case of which it had jurisdiction when The Sarah was condemned, this court will examine the constitutional powers of that tribunal, the character in which it acted, and the situation of the subject on which it acted. \n Admitting that the ordinary tribunal erected in St. Domingo was capable of acting as a prize court, and also of taking cognizance of offences against regulations purely municipal, it is material to inquire in which character it pronounced the sentence of condemnation in the case now under consideration. \nIn making this inquiry, the relative situation of St. Domingo and France must necessarily be considered. \nThe colony of St. Domingo originally belonging to France, had broken the bond which connected her with the parent state, had declared herself independent, and was endeavouring to support that independence by arms. France still asserted her claim of sovereignty, and had employed a military force in support of that claim. A war de facto then unquestionably existed between France and St. Domingo. It has been argued that the colony, having declared itself a  sovereign state, and having thus far maintained its sovereignty by arms, must be considered and treated by other nations as sovereign in fact, and as being entitled to maintain the same intercourse with the world that is maintained by other belligerent nations. In support of this argument, the doctrines of Vattel have been particularly referred to. But the language of that writer is obviously addressed to sovereigns, not to courts. It is for governments to decide whether they will consider St. Domingo as an independent nation, and until such decision shall be made, or France shall relinquish her claim, courts of justice must consider the ancient state of things as remaining unaltered, and the sovereign power of France over that colony as still subsisting. \nIt is not intended to say that belligerent rights may not be superadded to those of sovereignty. But admitting a sovereign who is endeavouring to reduce his revolted subjects to obedience, to possess both sovereign and belligerent rights, and to be capable of acting in either character, the manner in which he acts must determine the character of the act. If as a legislator he publishes a law ordaining punishments for certain  offences, which law is to be applied by courts, the nature of the law, and of the proceedings under it, will  decide whether it is an exercise of belligerent rights, or exclusively of his sovereign power; and whether the court, in applying this law to particular cases, acts as a prize court, or as a court enforcing municipal regulations. \nLet the acts of the French government which relate to this subject be inspected. \nThe notification given by Mr. Pichon, the French charge d'affaires to the American government, which was published in March, 1802, interdicts all manner of intercourse with the ports of St. Domingo, in possession of the revolted negroes, and declares that \"cruisers will arrest all foreign vessels attempting to enter any other port, and to communicate with any of the revolted negroes, to carry either ammunition or provisions to them. Such vessels,c he adds, \"shall be confiscated, and the commanders severely punished, as violating the rights of the French Republic, and the law of nations.\" \nIt might be questioned, under this notice, whether vessels sailing on the high seas, having traded with one of the brigand ports, would be considered as liable to seizure  and to confiscation, after passing the territorial jurisdiction of the government of St. Domingo. A free trade with that colony had been allowed, and the revocation of that license is made known to the government of the United States. To its revocation the ordinary rights of sovereignty alone were sufficient. The notification, however, refers to the order of the commander in chief of the French Republic in St. Domingo; and that order would of course be examined as exhibiting more perfectly the extent and the nature of the rights which the French Republic purposed to exercise. \nThe particular order which preceded this notification is in these words: \"Every vessel, French or foreign, which shall be found by the vessels of the Republic riding at anchor in the ports of the island not designated by these presents, or within the bays, creeks, and landing places on the coast, or under sail at a less distance  than two leagues from the coast, and communicating with the land, shall be forfeited.\" \nThe next decree is dated the 22d of June, 1802, and the extract which is supposed to regulated this particular subject, is in these words: \"Every vessel, French or foreign, which shall  be found by the vessels of the Republic anchored in one of the ports of the island, not designated by the present decree, or in the bays, coves, or landings of the coast, or under sail at a less distance than two leagues from the coast, and  communicating with the land, shall be arrested and confiscated.\" \nNothing can be more obvious than that these are strictly territorial regulations, proceeding from the sovereign power of St. Domingo, and intended to enforce sovereign rights. Seizure for a breach of this law is to be made only within those limits over which the sovereign claimed a right to legislate, in virtue of that exclusive dominion which every nation possesses within its own territory, and within such a distance from the land as may be considered as a part of its territory. This power is the same in peace and in war, and is exercised according to the discretion of the sovereign. The prohibition and the penalty are the same on French and foreign vessels. \nThis subject was against taken up in October, 1802, in an arrete, which in part regulates the coasting trade of the island. The 4th, 5th and 6th articles of this decree respect foreign as well as French vessels,  and subject them to confiscation in the cases which are there enumerated. \nThese are all of the same description with those stated in the arrete of the 22d of June; and no seizure is authorised but of vessels found within two leagues of the coast. \nThe last decree is that which was issued by General Ferrand on the 1st of March, 1804. This deserves the more attention, because it is that on which the courts profess to found their sentence of condemnation, in the particular case under consideration, and because general  Ferrand uses expressions which clearly indicate the point of view in which all these arretes were contemplated by the government of the island. \nThe title of this arrete is, \"An arrete relative to vessels taken in contravention of the dispositions of the laws and regulations concerning French and foreign commerce in the colony.\" \nIn stating the motives for this ordinance, it is said, \"That some French agents in the neighbouring and allied islands had mistaken the application of the laws and regulations concerning vessels taken in contravention, upon the coasts of St. Domingo occupied by the rebels, and had confounded those prizes with those which were made  upon the enemy of the state.\" \"Desiring to put and end to all the abuses which might result from the mistake, and which would be as injurious to the territorial sovereignty as to the rights of neutrality,\" the commander in chief, after some further recitals, which are not deemed material, ordains the law under which the tribunals have proceeded. \nThe distinction, between seizures made in right of war, and those which are made for infractions of the commercial regulations established by the sovereign power of the state, is here taken in terms; and that legislation, which was directed against vessels contravening the laws and regulations concerning French and foreign commerce in the colony, is clearly of the latter description. \nThe first article of this ordonnance is recited in the sentence, as that on which the condemnation is founded. It is in these words: \n\"The port of Santo Domingo is the only one in the colony of St. Domingo that is open to the French and foreign commerce; in consequence, all vessels anchored in the bays, harbours, and landing places, on the coast occupied by the rebels, those cleared for the ports in their possession coming out with or without a cargo, and, generally,  all vessels sailing in the territorial extent of the island, (except that from Cape Raphael to  Ocoa bay,) found at a distance less than two leagues from the coast, shall be detained by the state vessels and privateers having our letters of marque, who shall conduct them, if possible, into the port of Santo Domingo, that the confiscation of the said vessels and cargoes may be pronounced.\" \nAs this article authorises a seizure of those vessels only which are \"sailing within the territorial extent of the island, found within less than two leagues of the coast,\" it is deemed by the court to be sufficiently evident that the seizure and confiscation are made in consequence of a violation of municipal regulation, and not in right of war. It is true that the revolt of the colony is the motive for this exercise of sovereign power. Still it is an exercise of sovereign power, restricting itself within those limits which are the province of municipal law, not the exercise of a belligerent right. \nThe tribunal professing to carry this law into execution, though capable of sitting either as a prize or an instance court, must be considered in this case as acting in the character of  an instance court, since it is in that character that it punishes violations of municipal law. \nThe Sarah was captured more than ten leagues from the coast of St. Domingo, was never carried within the jurisdiction of the tribunal of that colony, was sold at Barracoa, in the island of Cuba, and afterwards condemned as prize under the arrete of General Ferrand, which has been stated. \nIf the court of St. Domingo had jurisdiction of the case, its sentence is conclusive. If it had no jurisdiction, the proceedings are coram non judice, and must be disregarded. \nOf its own jurisdiction, so far as depends on municipal rules, the court of a foreign nation must judge, and its decision must be respected. But if it exercises a jurisdiction which, according to the law of nations, its sovereign could not confer, however available its sentences may be within the dominions of the prince from whom the authority is derived, they are not regarded  by foreign courts. This distinction is taken upon this principle, that the law of nations is the law of all tribunals in the society of nations, and is supposed to be equally understood by all. \nThus the sentence of a court sitting in a neutral  territory, and instituted by a belligerent, has been declared not to change the property it professed to condemn; and thus the question whether a prize court sitting in the country of the captor could condemn property lying in a neutral port, has been fully examined, and although the jurisdiction of the court in such case was admitted, yet no doubt appears to have been entertained of the propriety of examining the question, and deciding it according to the practice of nations. \nSince courts, who are required to decide whether the condemnation of a vessel and cargo by a foreign tribunal has effected a change of property, may inquire whether the sentence was pronounced by a court which, according to the principles of national law, could have jurisdiction over the subject; this court must inquire  whether, in conformity with that law, the tribunal sitting at St. Domingo to punish violations of the municipal laws enacted by its sovereign, could take jurisdiction of a vessel seized on the high seas, for infracting those law, and carried into a foreign port. \nIn prosecuting this inquiry, the first question which presents itself to the mind is, what act gives an inchoate jurisdiction  to a court? \nIt cannot be the offence itself. It is repugnant to every idea of a proceeding in rem, to act against a thing which is not in the power of the sovereign under whose authority the court proceeds; and no nation will admit that its property should be absolutely changed, while remaining in its own possession, by a sentence which is entirely ex parte. Those on board a vessel are supposed to represent all who are interested in it, and if placed in a situation which requires them to take notice of any proceedings against a vessel and cargo, and enables them to assert the rights of the interested, the cause is considered as being properly heard, and all concerned  are parties to it. But the owners of vessels navigating the high seas or lying in port, cannot take notice of any proceedings which may be instituted against those vessels in foreign countries; and consequently, such proceedings would be entirely ex parte, and a sentence founded on them never would be, and never ought to be, regarded. \nThe offence then alleged to have been committed by The Sarah, could not be cognizable by the court of St. Domingo, until some other act was performed which should make the  owners of the vessel and cargo parties to the proceedings instituted against them, and should place them within the legitimate power of the sovereign, for the infraction of whose laws they were to be confiscated. There must then be a seizure, in order to vest the possession of the thing in the offended sovereign, and enable his courts to proceed against it. This seizure, if made either by a civil officer, or a cruiser acting under the authority of the sovereign, vests the possession in him, and enable him to inquire, by his tribunals constituted for the purpose, into the allegations made against, and in favour of the offending vessel. Those interested in the property which has been seized are considered as parties to this inquiry, and all nations admit that the sentence, whether correct or otherwise, is conclusive. \nWill a seizure de facto, made without the territorial dominion of the sovereign under cover of whose authority it is made, give a court jurisdiction of a thing never brought within the dominions of that sovereign? \nThis is a question upon which considerable difficulty has been felt, and on which some contrariety of opinion exists. It has been doubted whether proceedings,  denominated judicial, are, in such a case, merely irregular, or are to be considered as absolutely void, being coram non judice. If merely irregular, the courts of the country pronouncing the sentence were the exclusive judges of that irregularity, and their decision binds the word; if coram non judice, the sentence is as if not pronounced. \n It is conceded that the legislation of every country is territorial; that beyond its own territory, it can only affect its own subjects or citizens. It is not easy to conceive a power to execute a municipal law, or to enforce obedience to that law without the circle in which that law operates. A power to seize for the infraction of a law is derived from the sovereign, and must be exercised, it would seem, within those limits which circumscribe the sovereign power. The rights of war may be exercised on the high seas, because war is carried on upon the high seas; but the pacific rights of sovereignty must by exercised within the territory of the sovereign. \nIf these propositions be true, a seizure of a person not a subject, or of a vessel not belonging to a subject, made on the high seas, for the breach of a municipal regulation, is  an act which the sovereign cannot authorise. The person who makes this seizure, then, makes it on a pretext which, if true, will not justify the act, and is a marine trespasser. to a majority of the court it seems to follow, that such a seizure is totally invalid; that the possession, acquired by this unlawful act, is his own possession, not that of the sovereign; and that such possession confers no jurisdiction on the court of the country to which the captor belongs. \nThis having been the fact in the case of The Sarah, and neither the vessel, nor the captain, supercargo, nor crew, having ever been brought within the jurisdiction of the court, or within the dominion of the sovereign whose laws were infracted, the jurisdiction of the court over the subject of its sentence never attached, the proceedings were entirely ex parte, and the sentence is not to be regarded. \nThe case of The Helena, already cited, may at first view be thought a case which would give validity to any seizure wherever made, and would refer the legality of that seizure solely to the sovereign of the captor. But on a deliberate consideration of that case, the majority of the court is of opinion that this inference  is not warranted by it. Several circumstances concurred in producing  the decision which was made, and those circumstances vary that case materially from this. The captured vessel was carried into port, and while in the power of the sovereign was transferred by his particular authority in solemn form. \nIn such a case, Sir W. Scott conceived that a sentence of confiscation conformably with the laws of Algiers, was to be presumed. But his decision did not turn singly on this point. The vessel, after passing in this formal manner to a Spanish purchaser, had, with equal solemnity, been again transferred to a British purchaser; and the judge considered this second purchaser, with how much reason may perhaps be doubted, as in a better situation than the original purchaser. This case is badly reported, the points made by counsel on one side are totally omitted, and the opinion of the judge is not given with that clearness which usually characterizes the opinions of Sir William Scott. But the seizure was presumed to be made by way of reprisals for some breach of the treaty between the two powers, so that the possession of the captor was considered as legitimately the possession  of his sovereign, and from the subsequent conduct of the Dey himself, a condemnation according to the usages of Algiers was presumed. \nBut in presuming a condemnation, this case  does not, it is thought, dispense with the necessity of one; nor is it supposed, in presuming a legitimate cause of seizure, to declare that a seizure made without authority, by a commissioned cruiser, would vest the possession in the sovereign of the captor, and give jurisdiction to his courts. \nIf this case is to be considered as if no sentence of condemnation was ever pronounced, the property is not changed, and this court, having no right to enforce the penal laws of a foreign country, cannot inquire into any infraction of those laws. The property in this particular case was purchased under circumstances which exclude any doubt respecting its identity, and respecting the full knowledge of the purchaser of the nature of the title he acquired. \n The sentence of condemnation being considered as null and invalid, the property is unchanged, and therefore ought to be recovered by the libellants in the court below. But those libellants ought to account with the defendants for the freight,  insurance, and duties on importation, and for such other expenses as would have been properly chargeable on themselves as importers; and each party is to bear his own costs. \nThe sentence of the circuit court is to be reversed, and also the sentence of the district court, so far as it contravenes this opinion, and the cause is to be remanded to the circuit court for the district of South Carolina, for a final decision thereon. \nConcur by:", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. (all the seven judges being present) delivered the opinion of the court as follows: viz. \nThis suit is instituted to recover from the underwriters the amount of a policy insuring the brig John, on a voyage from Charleston to Cadiz. The vessel was captured on her passage by a Brithish squadron then blockading  that port, was sent into Gibraltar for adjudication, and was there condemned by the court of vice-admiralty as lawful prize. The assured warrants the ship to be American property; and the  defence is, that this warranty is conclusively falsified by the sentence of condemnation. \nThe points made for the consideration of the court are, \n1st. Is the sentence of a foreign court of admiralty conclusive evidence, in an action against the underwriters, of the facts it professes to decide? If so, \n2d. Does this sentence, upon its face, falsify the warranty contained in the policy? If not, \n3d. Does the special verdict exhibit facts which falsify the warranty? \nThe question on the conclusiveness of a sentence of a foreign court of admiralty having been more than once elaborately argued, the court reluctantly avoids a decision of it at present. But there are particular reasons which restrain one of the judges from giving an opinion on that point, and another case has been mentioned, in which it is said to constitute the sole question. In that case, it will of course be determined. \n Passing over the consideration of the first point, therefore, the court proceeded  to inquire whether this cause could be decided on the second and third points. \nAdmitting for the present that the sentence of a foreign court of admiralty is conclusive, with respect to what it professes to decide, does this sentence falsify the warranty contained in this policy, that the brig John is American property? \nThe sentence declares \"the said brig to have been cleared out for Cadiz, a port actually blockaded by the arms of our sovereign lord the king, and that the master of said brig persisted in his intention of entering that port, after warning from the blockading force not to do so, in a direct breach and violation of the blockade thereby notified.\" \nThe sentence, then, does not deny the brig to have been American property. But it is contended by the counsel for the underwriters, that a ship warranted to be American is impliedly warranted to conduct herself during the voyage as an American, and that an attempt to enter a blockaded port, knowing it to be blockaded, forfeits that character. \nThis position cannot be controverted. \nIt remains, then, to inquire, whether the sentence proves the brig John to have violated the laws of blockade; that is, whether the cause of  condemnation is alleged in such terms as to show that the vessel had forfeited her neutral character, or in such terms as to show its insufficiency to support the sentence. \nThe fact of clearing out for a blockaded port, is in itself innocent, unless it be accompanied with knowledge of the blockade. The clearance, therefore, is not considered as the offence; the persisting in the intention to enter that port, after warning by the blockading force, is the ground of the sentence. \nIs this intention (evidenced by no fact whatever) a breach of blockade? This question is to be decided by  a reference to the law of nations, and to the treaty between the United States and Great Britain. \nVattel, b. 3. s. 177. says, \"All commerce is entirely prohibited with a besieged town. If I lay siege to a place, or only form the blockade, I have a right to hinder any one from entering, and to treat as an enemy whoever attempts to enter the place, or carry and thing to the besieged, without my leave.\" \nThe right to treat the vessel as an enemy is declared, by Vattel, to be founded on the attempt to enter, and certainly this attempt must be made by a person knowing the fact. \nBut this subject  has been precisely regulated by the treaty between the United States and Great Britain, which was in force when this condemnation took place. That treatv contains the following clause: \n\" And whereas it frequently happens that vessels sail for a port or place belonging to an enemy, without knowing that the same is either besieged, blockaded or invested; it is agreed that every vessel so circumstanced may be turned away from such port or place, but she shall not be detained, nor her cargo, if not contraband, be confiscated, unless after notice she shall again attempt to enter; but she shall be permitted to go to any other port or place she may think proper.\" \nThis treaty is conceived to be a correct exposition of the law of nations; certainly it is admitted by the parties to it, as between themselves, to be a correct exposition of that law, or to constitute a rule in the place of it. \nNeither the law of nations nor the treaty admits of the condemnation of the neutral vessel for the intention to enter a blockaded port, unconnected with any fact. Sailing for a blockaded port, knowing it to be blockaded, has been in some English cases construed into an attempt to enter that port, and  has therefore been adjudged a breach of the blockade from the departure of the vessel.  Without giving any opinion on that point, it may be observed, that in such cases the fact of sailing is coupled with the intention, and the sentence of condemnation is founded on an actual breach of blockade. The cause assigned for condemnation would be a justifiable cause, and it would be for the foreign court alone to determine whether the testimony supported the allegation that the blockade was broken. Had this sentence averred that the brig John had broken the blockade, or had attempted to enter the port of Cadiz after warning from the blockading force, the cause the condemnation would have been justifiable, and without controverting the conclusiveness of the sentence, the assured could not have entered into any inquiry respecting the conduct of the vessel. But this is not the language of the sentence. An attempt to enter the port of Cadiz is not alleged, but persisting in the intention, after being warned not to enter it, is alleged as the cause of condemnation. This is not a good cause under the treaty. It is impossible to read that instrument without perceiving a clear intention  in the parties to it, that after notice of the blockade, an attempt to enter the port must be made, in order to subject the vessel to confiscation. By the language of the treaty it would appear that a second attempt, after receiving notice, must be made, in order to constitute the offence which will justify a confiscation. \"It is agreed,\" says that instrument, \"that every vessel so circumstanced\" (that is, every vessel sailing for a blockaded port, without knowledge of the blockade)\" may be turned away from such port or place, but she shall not be detained, nor her cargo, if not contraband, be confiscated, unless after notice she shall again attempt to enter.\" \n These words strongly import a stipulation that there shall be a free agency on the part of the commander of the vessel, after receiving notice of the blockade, and that there shall be no detention nor condemnation, unless, in the exercise of that free agency, a second attempt to enter the invested place shall be made. \nIt cannot be necessary to state that testimony which would amount to evidence of such second attempt. Lingering about the place, as if watching for an opportunity  to sail into it, or  the single circumstance of not making immediately for some other port, or possibly obstinate and determined declarations of a resolution to break the blockade, might be evidence of an attempt, after warning, to enter the blockaded port. But whether these circumstances, or others, may or may not amount to evidence of the offence, the offence itself is attempting again to enter, and \"unless, after notice, she shall again attempt to enter,\" the two nations expressly stipulate \"that she shall not be detained, nor her cargo, if not contraband, be confiscated.\" It would seem as if, aware of the excesses which might be justified, by converting intention into offence, the American negotiator had required the union of fact with intention, to constitute the breach of a blockade. \nThe cause of condemnation, then, as described in this sentence, is one which, by express compact between the United States and Great Britain, is an insufficient cause, unless the intention was manifested in such manner as, in fair construction, to be equivalent to an attempt to enter Cadiz, after knowledge of the blockade. This not being proved by the sentence itself, the parties are let in to other evidence. \nHowever,  conclusive, then, the sentence may be, of the particular facts which it alleges, those facts not amounting, in themselves, to a justifiable cause of condemnation, the court must look into the special verdict, which explains what is uncertain in the sentence.The special verdict shows that the vessel was seized on her approaching the port of Cadiz, without previous knowledge of the blockade; that she never was turned away, and \"permitted to go to any other port or place;\" that she was \"detained\" for several days, and then sent in for adjudication, without being ever put into the possession of her captain and crew, so as to enable her either \"again to attempt to enter\" the port of Cadiz, or to sail for some othr port; that while thus detained, the commander of the blockading squadron drew the captain of the John into a conversation which must be termed insidious, since its object was to trepan him into expressions which might be construed into evidence of an intention to sail for Cadiz, should he be liberated;  that availing himself of some equivocal, unguarded, and perhaps indiscreet answers on the part of the captain, the vessel was sent in for adjudication; and on those  expressions was condemned. \nThis court is of opinion that these facts do not amount to an attempt again to enter the port of Cadiz, and therefore do not amount, under the treaty between the United States and Great Britain, to a breach of the blockade of Cadiz. The sentence of the court of viceadmiralty in Gibraltar, therefore, is not considered as falsifying the warranty that the brig John was American property, or as disabling the assured from recovering against the underwriters in this action, and the testimony in the case shows that the blockade was not broken. \nThe judgment of the circuit court is to be reversed, with costs, and it is to be certified to that court, that judgment is to be entered on the special verdict for the plaintiff. \nJudgment reversed. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. after stating the facts of the case as above, delivered the opinion of the court as follows. \n The question submitted to the consideration of the court is this: Is the assured entitled to recover for a partial or for a total loss? \nIn support of the claim for a total loss, two points have been made: \n1st. That the state of information at the time of the abandonment, not the state of the fact, must decide the right of the assured to abandon. \nIf this be  otherwise, then, it is contended, \n2d.That the right to abandon is coextensive with the detention, which continued until restitution was made in fact, and that restitution in fact, thought made on the same day, was posterior in point of time to the abandonment. \n1. Does the right to abandon depend on the fact, or on the information of the parties? \nThe right to abandon is founded on an actual or legal total loss. It appears to the court to consist with the nature of the contract, which is truly stated to be a contract of indemnity, that the real state of loss at the time the abandonment is made, is the proper and safe criterion of the rights of the parties. Might they depend absolutely on the state of information, a seizure which scarcely interrupted the voyage might be, and frequently would be converted into a total loss, and the contests respecting the real state of information might be endless. Intelligence of capture and of restitution might be received at the same time, and the insured might suppress the one and act upon the other. \nThis point came under the consideration of the court in the case of Rhinelander v. The Insurance Company of Pennsylvania, in which case it was  said, that \"where a belligerent has taken full possession of a vessel as prize, and continues that possession to the time of the abandonment, there exists, in point of law, a total loss.\" The court, in delivering this opinion, understood itself to require, that the continuance  of the possession  up to the time of the abandonment, or a technical total loss incurred, notwithstanding the restoration, was necessary to justify a recovery as for a total loss. \nIn considering the second point, the court proceeded to inquire whether the technical total loss on which the right to abandon depended, was terminated by the decree of restitution, or continued until that decree was carried into execution, and restitution was made in fact. \nThe real object of the policy is not to effect a change in property, but to indemnify the insured. Whenever, therefore, only a partial loss is sustained by one of the perils insured against, the original owner of the property retains it, prosecutes his voyage, and recovers for his partial loss. \nBut the voyage may be really broken up, without the destruction of the vessel and cargo. A detention by a foreign prince, either by embargo or  capture, may be of such long duration as to defeat the voyage. This is a peril insured against, and of its continuance no certain estimate can be made. In the case of capture it is, for the time, a total loss, and no person can confidently say that the loss will not finally be total. So of an embargo. Its duration cannot be measured, and it may destroy the object of the voyage. These detentions, therefore, are, for the time, total losses, and they furnish reasonable ground for the apprehension that their continuance may be of such duration as to break up the voyage, or ruin the assured, by keeping his property out of his possession. Such a case, therefore, upon the true principles of the contract, has been considered as justifying an abandonment, and a recovery for a total loss. \nBut when a final decree of restitution, from which it is admitted that no appeal lies, has been awarded, the peril is over. On no reasonable calculation can it be supposed that such a delay of restitution will ensue, as from that time to break up the voyage. There is no reason to presume a subsequent detention on the part of  the foreign prince. There is no motive for such detention. The  master of the captured vessel may perhaps not be ready to receive possession, and the delay may proceed from him. At any rate, without some evidence that the peril was not actually determined, the court cannot consider it as continuing after the sentence was pronounced. A technical total loss originates in the dauger of a real total loss. The court cannot suppose such a danger to have existed after a final sentence of acquittal, unless some order of court relative to a reconsideration could be shown, or it should appear that some other delays were interposed by the court which had pronounced the sentence, or by the sovereign of the captor. \nHad the facts on which this question depends been known at New-York and Philadelphia as they occurred, could it have been said that there existed a technical total loss? After a decree of restitution, could it be said that while means were taking to carry that decree into execution, while the mandate for restitution was passing from the court to the vessel, the assured had a right to elect to consider his vessel as lost, and to abandon to the underwriters? To this court, it seems that the right to make such an election at such a time, would  be inconsistent with the spirit of the contract, and that the technical total loss was terminated by the decree of restitution, unless something subsequent to that decree could be shown to prove the continuance of the danger, or of an adversary detention. \nNothing in this opinion is intended to extend to the case where a cargo may be lost, without the loss of the vessel. \nThere is no error in the judgment of the circuit court of Pennsylvania, and it is to be affirmed with costs. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. delivered the opinion of the court as follows: \nIn this case two points are made for the consideration of the court. \nIt is contended by the plaintiffs in error, \n1st. That judgment on the demurrers to evidence should have been rendered for the defendants in the court below. \n2d. That Joseph Ballinger ought to have been admitted as a witness. \nThe general doctrine on a demurrer to evidence has been correctly stated at the bar. The party demurring admits  the truth of the testimony to which he demurs,  and also those conclusions of fact which a jury may fairly draw from that testimony. Forced and violent inferences he does not admit; but the testimony is to be taken most strongly against him, and such conclusions as a jury might justifiably draw, the court ought to draw. \nThe point in issue between the parties was the delivery of the instrument on which the suit was instituted. The plaintiffs below contending that it was delivered absolutely, the defendants that it was delivered as an escrow. \nThe bond, upon its face, purports to be delivered absolutely; and it is not be be doubted, that obligees would be much more secure against fraud, if the evidence that the writing was delivered as an escrow appeared upon its face, than by admitting parol testimony of that fact. But the law is settled otherwise, and is not to be disturbed by this court. \nThe subscribing witnesses to the bond were examined to prove its delivery. Henry Pawling executed it at one time, the other defendants, Kennedy, Todd, and Adair, at a different time. With respect to Pawling, the testimony is as complete as can be required. William G. Bryant deposes  that Pawling signed the bond, on condition that other persons, whom he named, should alsosign it. The witness understood that, if those other persons should not sign it, Pawling, should be exonerated. Elijah Stapp, the other subscribing witness to the signature of Pawling, deposed that \"he saw Pawling acknowledge it as his act and deed, upon condition that others, whom he mentioned, should also sign it.\" \n These are the subscribing witnesses to the bond, and certainly a jury believing them could not have avoided declaring, by their verdict, that the bond was delivered on condition. That condition not having been performed, the bond, as to Pawling, remains an escrow. \nThe testimony, with respect to the other defendants, is less positive. The witness, John P. Wagnon, was  called in to attest the bond. Thomas Todd, one of the defendants, then sat down and inserted in the body of the bond the names of other persons who, he said, were also to execute the instrument which he then held in his hand. \nSome distinction was taken at the bar between the case of Todd and that of the other defendants. But the court is of opinion that no such distinction exists. The other  defendants said nothing. They did not even acknowledge their signatures. Todd, holding the instrument in his hands, called upon the witness to take notice that \"we\" (in the plural) \"acknowledge this instrument, but others are to sign it.\" The two other obligors being present, and making no other acknowledgment, are clearly to be considered as speaking through Todd, and executing the bond on the terms on which he executed it. Their condition, then, is the same. It is either an escrow, or a writing obligatory with respect to all of them. \nA jury might certainly have found the issue in favour of the plaintiffs below, and a court would have been well satisfied with their verdict. But might they not, without going against evidence, have found the issue in favour of the defendants below? \nWhen words are to be proved by witnesses who depend on their memory alone, the precise terms employed by the parties will seldom be recollected, and courts and juries must form their opinions upon the substance and upon all the circumstances. Now to what purpose did the defendants call upon the subscribing witness to tkae notice that others, as well as themselves, were to execute the writing? To  what purpose did they qualify their acknowledgment with this declaration? It could not be in order to show that they depended on Ballinger to procure additional securities, for that was an affair between him and them, of which it was perfectly unnecessary to call on the witness to take notice, if it was to have no influence on the particular fact he was required to attest. There is certainly strong reason for believing that the obligors considered that declaration as  explaining and affecting the act with which they connected it. \nIt is also of some importance that the defendant, Todd, had previously declared that he should not be apprehensive of becoming a security for Ballinger, provided others, whom he named, should also become securities, and that he inserted the names of others in the bond, in the presence of the witness. \nAlthough the judges who compose this court might not, perhaps, as jurors, be perfectly satisfied with this testimony, they cannot say that a verdict would not be received, or ought not to be received, which should find the issue in favour of the defendants below. They cannot say that such a verdict would be against evidence. Thinking so, the court  is of opinion that the judgment on the demurrer ought to have been in favour of the defendants below. \nIt is unnecessary to give any opinion on the second point. The judgment of the court for the district of Kentucky is to be reversed. \nJudgment reversed. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. delivered the opinion of the court, as follows: \nIn this case three points are made by the plaintiff in error on the letter which constitutes the basis of this action. He contends, \n1st. That this letter being a collateral undertaking, and being addressed to John and Joseph Naylor and Co. the plaintiffs below cannot be admitted to prove by parol testimony that it was intended for and is an assumpsit to John and Jeremiah Naylor. \n2d. That the undertaking was conditional, and required notice to be given to the writer of the intent and nature of his liability. \n 3d. That it is confined to the shipments made during the year in which it was written. \nOn the first objection the court has felt considerable difficulty. That the letter was really designed for John and Jeremiah Naylor cannot be doubted, but the principles which require that  a promise to pay the debt of another shall be in writing, and which will not permit a written contract to be explained by parol testimony, originate in a general and a wise policy, which this court cannot relax so far as to except from its operation cases within the principles. \nAlready have so many cases been taken out of the statute of frauds, which seem to be within its letter, that it may well be doubted whether the exceptions do not let in many of the mischiefs against which the rule was intended to guard. The best judges in England have been of opinion that this relaxing construction of the statute ought not to be extended further than it has already been carried, and this court entirely concurs in that opinion. \nOn examining the cases which have been cited at the bar, it does not appear to the court that they authorise the explanation of the contract which is attempted in this case. \nThis is not a case of ambigity. \nIt is not an ambiguity patent, for the face of the letter can excite no doubt. \nIt is not a latent ambiguity, for there are not two firms of the name of John and Joseph Naylor and Co. to either of which this letter might have been delivered. \nIt is not a case of  fraud. And if it was, a court of chancery would probably be the tribunal which would, if any could, afford redress. \nIf it be a case of mistake, it is a mistake of the writer only, not of him by whom the goods were advanced, and who claims the benefit of the promise. \n Without reviewing all the cases which have been urged from the bar, it may be said with confidence that no one of them is a precedent for this. \nA letter addressed, by mistake it is admitted, to one house, is delivered to another. It contains  no application or promise to the company to which it is delivered, but contains an application and a promise to a different company not existing at that place. The company to which it is delivered are not imposed upon with respect to the address, but knowing that the letter was not directed to them, they trust the bearer, who came to make contracts on his own account. In such a case the letter itself is not a written contract between Daniel Grant, the writer, and John and Jeremiah Naylor, the persons to whom it was delivered. To admit parol proof to make it such a contract, is going further than courts have ever gone, where the writing is itself the contract,  not evidence of a contract, and where no pre-existing obligation bound the party to enter into it. \nIt being the opinion of a majority of the court that John and Jeremiah Naylor could not maintain their action on this letter, it becomes unnecessary to consider the other points which were made at the bar. It is the opinion of this court that the circuit court erred in directing the jury that the evidence given by the plaintiffs in that court was proper and sufficient to support the issue on their part. The judgment of the circuit court is, therefore, to be reversed, and the cause sent back for further trial. \nJudgment reversed. \n \n\n ", " \nOpinion \n\n \n \n MARSHALL, Ch. J. The court considers the law as completely settled by the case of the Vengeance. A distinction has been attempted to be drawn between this  case and that, but the court can see no difference. It is the place of seizure, and not the place of committing the offence, which decides the jurisdiction. \nIt has been said the word \"including\" means moreover, or as well as; but if this was the meaning of the legislature it was a very embarrassing mode of expressing the idea. It is clear that congress meant to discriminate between seizures on waters navigable from the sea, and seizures upon land or upon waters not navigable; and to class the former among the civil causes of admiralty and maritime jurisdiction. \nThe only doubt which could arise would be upon the clause of the constitution respecting the trial by jury. But the case of the Vengeance settles that point. \nThe sentence of the circuit court was reversed, and that of the district court affirmed. \n \n\n ", " \nOpinion \n\n \n \n MARSHALL, Ch. J. delivered the opinion of the court, \nThat there was no error in the opinion of the court below. A part of the money due on the bond  might have been paid before; and such an acknowledgment, upon receipt of a sum smaller than the amount of the condition of the bond, was good evidence upon the plea of payment. \nJudgment affirmed with costs. \n \n\n ", " \nOpinion \n\n \n \n MARSHALL, Ch. J. after stating the case as it appeared in the bill of exceptions, observed. \nThat the court had some difficulty upon the point. The general rule of evidence is, that the best evidence must be produced which the nature of the case admits, and which is in the power of the party. In consequence of that rule, the testimony of the subscribing witness must be had if possible. But if it appear that the testimony of the subscribing witness cannot be had, the next best evidence is proof of his hand-writing. In the present case it does not appear to the court that the testimony of the subscribing witness could not have been obtained if proper diligence had been used for that purpose. It does  not appear that the witness had ever left Norfolk. It is not stated that any inquiry concerning him had been made there. If such inquiry had been made, and he could not be found, evidence of his hand-writing might have been permitted. But  as the case appears in the bill of exceptions, the court below has not erred. \nJudgment affirmed with costs. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. delivered the opinion of the court, \nThat the exception in the statute applied to actions of assumpsit, as well as to actions of account. That it extended to all  accounts current which concern the trade of merchandise between merchant and merchant. That an account closed by the cessation of dealings between the parties is not an account  stated, and that it is not necessary that any of the items should come within the five years. That the replication was good, and not repugnant to the declaration; and that the rejoinder was bad. \nJudgment affirmed with costs. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. delivered the opinion of the court, as follows: \nIn this case the plaintiffs in error, who were defendants in the circuit court, claimed to set off against a debt due from them to Thomas Moore, the bankrupt, a debt previously due to them from the firm of H. and T. Moore, which firm was dissolved, and the partnership fund had passed to T. Moore. This offset was not allowed; and its refection is the error alleged in the proceedings of the circuit court. \nAt law, independent of the statute of bankruptcy, the court is of opinion that this discount could not have been made in a suit instituted by Thomas Moore against the Tuckers; and if the words of the act  of congress allowing set-off in the case of mutual debts and credits were to be expounded without regard to the provisions of that act in other respects, it is probable that they would not be extended beyond that technical operation, to which has  been  allowed the term \"mutual debts,\" in ordinary cases. But the bankrupt law changes essentially the relative situation of the parties; and the provisions making that change are thought, by a majority of the court, to have a material influence on the words of the 42d section of the act, which provide for the case of mutual debts and credits. \nIt is the opinion of the court that this is a debt, which might have been proved under the 6th section of the act. It is a debt, whcih, by a suit against both the partners, might have been recovered against either of them, and either might have been compelled to pay the whole. Although due from the company, yet it is also due from each member of the company; and the claim of the creditor for it satisfaction extended, previous to the act of bankruptcy, to the whole property of each member of the firm, as well as to the joint property of the firm. It would be certainly impairing  that claim to apply, by the operation of law, the whole particular fund to other creditors, who, at the time of the bankruptcy, had not a better legal claim on that fund than the Tuckers, without allowing them to participate in it. The court, therefore, would be much inclined to consider the creditors of the partnership as having a right, under the general description of creditors of the bankrupt, to prove their debts before the commissioners. But all doubt on this subject seems to be removed by the proviso to the 34th section. That section declares, tht the bankrupt shall be discharged from all debts which were due from him at the date of the bankruptcy, and all which were or might have been proved under the said commission, \"Provided that no such discharge of a bankrupt shall release or discharge any person, who was a partner with such bankrupt at the time he or she became bankrupt, or who was then jointly held or bound with such bankrupt for the same debt or debts, from which such bankrupt was discharged as aforesaid.\" \nThomas Moore, then, is discharged from the debt due from Henry and Thomas Moore to the Tuckers; and if he is discharged therefrom, it would seem to   be an infraction of their pre-existing rights not to allow them a share of his property. It is deemed by the court material in the construction of this statute, that, as the proviso shows the joint creditors to be within the description of the terms creditors of the bankrupt, so as to enable them to prove their debts under the commission, they are of necessity comprehended within the same terms in those sections which direct to whom the dividends are to be made. The words of the 29th and 30th sections are imperative. They command the commissioners to divide the estate of the bankrupt among such of his creditors as shall have made due proof of their debts, in proportion to the amount of their claims. Consequently, every creditor who proves his debt is entitled to a dividend. \nBut, although the creditors of H. and T. Moore might have proved their debt before the commissioners, and have received a dividend out of the estate of the bankrupt, it may be contended that, having failed to do so, they are not entitled to set off their whole claim. \nThe 42d section of the act directs, that where it shall appear to the commissioners that there hath been mutual credit given by the bankrupt and  any other person, or mutual debts between them at any time before such person became bankrupt, the assignee or assignees of the estate shall state the account between them, and one debt may be set off against the other; and what shall appear to be due on either side, on the balance of such account, after such set-off, and no more, shall be claimed or paid on either side respectivelv. \nThe term \"debt,\" as used in this section, is fairly to be construed to mean any debt for which the act provides. A debt which may be proved before the commissioners, and to the owner of which a dividend must be paid, is a debt in the sense of the term as used in this section. \n Were this doubtful, it cannot be denied that the advantage given by the section is reciprocal, and in any case where the set-off would be allowed, if the balance was against the bankrupt, it must be allowed if in his favour. It has already been stated that the Tuckers might have proved their claim before the commissioners. Can it be doubted that the whole of the debt due to the bankrupt would, under this section, have been deducted from that claim? We think it cannot be doubted. Then, the terms applying alike to  each party, the debt due to the Tuckers must be set off from that which they owe the bankrupt. \nIf the \"assignee of the estate ought to have stated the account,\" and have only claimed the balance, his omitting so to do cannot enlarge his rights; he can only recover what he ought to have claimed. \nThis, which seems to be the naked law of the case, is not unreasonable. It is fair to conclude that the Tuckers forbore to recover the money due to them from H. and T. Moore, in consideration of their dealings with T. Moore, after he traded on his separate account. \nThis exposition of the bankrupt act appears to the court to conform to that which is given in England. As the bankrupt law of the United States, so far as respects this case, is almost, if not completely, copied from that of England, the decisions which have been made on that law by the English judges may be considered as having been adopted with the text they expounded. \nIn England, it has never been doubted that a man, having a claim on two persons, might become a petiticning creditor for the bankruptcy of one of them. Such petitioning creditor has always been admitted to prove his debt before the commissioners, and to receive  his dividends, in proportion, with the other creditors. He is, then, in contemplation of the act, a creditor of the bankrupt; and, eonsequently, all the  provisions of the act apply to him, as to other creditors. This would seem to prove that, under the legal operation of the act, a creditor of a firm, of which the bankrupt was one, and a creditor of the bankrupt singly, were equally creditors of the bankrupt, in contemplation of the law, and were construed to come equally within the meaning of the term, as used in the act. If this position be correct, the rules which we find laid down be the chancellor, for marshalling the respective funds, are to be considered merely as equitable restraints on the legal rights of parties, obliging them to exercise  those rights in such manner as not to do injustice to others. This is the peculiar province of a court of chancery. It is the same, in principle, with the common case of marshalling assets, where specialty creditors, who have a right to satisfaction out of lands, exhaust the personal estate, to the injury of simple contract creditors. \nIt is undoubtedly unjust that the Tuckers, having a claim on H. and T. Moore,  and being able to obtain payment from H. Moore, should satisfy that claim entirely out of the separate estate of T. Moore, to the exclusion of other creditors, who had no resort to Henry; and it is probable that a court of chancery might restrain this use of his legal rights within equitable limits. But suppose H. Moore, also, to be a bankrupt; or to be insolvent, and unable to pay the debt; would it not be equally unjust to apply the estate of each individual to the discharge of the several debts, to the entire exclusion of their joint creditors, who, previous to their bankruptcy, had a legal and equitable right to satisfaction out of the separate estate of each? \nMr. Cooke has made a very good collection of the decisions in England, on this question. It will be found that a creditor of the partnership was first permitted by consent to prove his debt before the commissioners of the individual bankrupt, and to receive dividends from the separate fund. It was afterwards decided by the chancellor that he had a right  so to do: and in conformity with this decision was the regular course of the court, until the year 1796. During this time, however, the chancellor, sitting,  as chancellor, on a bill suggesting equitable considerations for restraining the order he had made, was accustomed to enjoin the dividends which he had ordered, sitting in bankruptcy. This would seem to prove that, at law, the creditor of the partnership had a right to his dividends from the separate fund, but that equity would compel him first to exhaust the joint fund. \nIn 1796, this whole subject was reviewed in the case Ex parte Elton, reported in 3 Ves. jun. This case has been considered as overruling former decisions; but, in the opinion of the court, it confirms the principle already stated. After stating his objection to the prevailing practice, because each order carried in its bosom a suit in chancery, the chancellor took time to consider the subject; and finally determined that the petitioner should be permitted to prove his debt, and that his dividend should be set apart, but not paid to him until an account should be taken of the joint fund. \nIt is perfectly clear that, in this case, the chancellor, for convenience, exercised, at the same time, his common law and equitable jurisdiction. In conformity with the uniform exposition of the act, he permitted the partnership  creditor to prove his debt before the commissioners of the bankrupt, and directed the dividend to be allotted to him out of the separate fund; and then, without the expense of a bill, exercising his equitable powers, he suspended the payment of this dividend, until it should be ascertained how much of it a court of equity would permit the creditor to receive. This does not negative, but affirms, the legal right of a partnership creditor to come on the separate fund. \nIt appears also to be admitted, that if the particular creditors should be satisfied without exhausting the fund, the residue might be paid to the partnership  creditors. This seems to admit the legal right of those creditors to prove their debts, and to rective their dividends. It is equity, not law, which can postpone them. \nIt is the opinion of a majority of the court, that thecircuit court erred in rendering a judgment on thi special verdict for the sum of 143 dollars and 33 cers, instead of the sum of 16 dollars and 63 cents; whch was the balance after deducting the debt due from H. and T. Moore to the defendants in that cort. It is therefore considered by the court, that the said judgment be reversed  and annulled; and that judgment be rendered for the plaintiffs in the circuit court for the sum of 16 dollars and 63 cents, and the costs in the circuit court. \nJudgment reversed. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. stated the opinion of the court to be that the decision of the court below was correct; that the erection of the Zaneville district suspended the power of sale in the Marietta district. \nJudgment affirmed. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. delivered the opinion of the court as follows: \nWith great attention, and with serious concern, the court has considered the return made by the judge for the district of Pennsylvania to the mandamus directing him to execute the sentence pronounced by him in the case of Gideon Olmstead and others v. Rittenhouse's Executrixes, or to show cause for not so doing. The cause shown is an act of the legislature of Pennsylvania, passed subsequent to the rendition of his sentence. This act authorizes and requires  the governor to demand, for the use of the state of Pennsylvania, the money which had been decreed to Gideon Olmstead and others; and which was in the hands of the executrixes of David Rittenhouse; and, in default of payment, to direct the attorney-general to institute a suit for the recovery thereof. I his act further authorizes and requires the governor to use any further means he  may think necessary for the protection of what it denominates \"the just rights of the state,\" and also to protect the persons and properties of the said executrixes of David Rittenhouse, deceased, against any process whatever, issued out of any federal court in consequence of their obedience to the requisition of the said act. \nIf the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery; and the nation is deprived of the means of enforcing its laws by the instrumentality of its own tribunals. So fatal a result must be deprecated by all; and the people of Pennsylvania, not less than the citizens of every other state, must feel a deep interest  in resisting principles so destructive of the union, and in averting consequences so fatal to themselves. \nThe act in question does not, in terms, assert the universal right of the state to interpose in every case whatever; but assigns, as a motive for its interposition in this particular case, that the sentence, the execution of which it prohibits, was rendered in a cause over which the federal courts have no jurisdiction. \nIf the ultimate right to determine the jurisdiction of the courts of the union is placed by the constitution in the several state legislatures, then this act concludes the subject; but if that power necessarily resides in the supreme judicial tribunal of the nation, then the jurisdiction of the district court of Pennsylvania, over the case in which that jurisdiction was exercised, ought to be most deliberately examined; and the act of Pennsylvania, with whatever respect it may be considered, cannot be permitted to prejudice the question. \nIn the early part of the war between the United States and Great Britain, Gideon Olmstead and  others, citizens of Connecticut, who say they had been carried to Jamaica as prisoners, were employed as part of the crew  of the sloop Active, bound from Jamaica to New-York, and laden with a cargo for the use of the British army in that place. On the voyage they seized the vessel, confined the captain, and sailed for Egg Harbour. In sight of that place, the Active was captured by the Convention, an armed ship belonging to the state of Pennsylvania, brought into port, libelled and condemned as prize to the captors. From this sentence Gideon Olmstead and others, who claimed the vessel and cargo, appealsed to the court of appeals established by congress, by which tribunal the sentence of condemnation was reversed, the Active and her cargo condemned as prize to the claimants, and process was directed to issue out of the court of admiralty, commanding the marshal of that court to sell the said vessel and cargo, and to pay the net proceeds to the claimants. \n The mandate of the appellate court was produced in the inferior court, the judge of which admitted the general jurisdiction of the court established by congress, as an appellate court, but denied its power to control the verdict of a jury which had been rendered in favour of the captors, the officers and crew of the Convention; and therefore  refused obedience to the mandate: but directed the marshal to make the sale, and, after deducting charges, to bring the residue of the money into court, subject to its future order. \nThe claimants then applied to the judges of appeals, for an injunction to prohibit the marshal from paying the money, arising from the sales, into the court of admiralty; which was awarded, and served upon him: in contempt of which, on the 4th of January, 1778, he paid the money to the judge, who acknowledged the receipt thereof at the foot of the marshal's return. \nOn the 1st of May, 1799, George Ross, the judge  of the court of admiralty, delivered to David Rittenhouse, who was then treasurer of the state of Pennsylvania, the sum of 11,496l. 9s. 9d. in loan-office certificates; which was the proportion of the prize money to which that state would have been entitled, had the sentence of the court of admiralty remained in force. On the same day, David Rittenhouse executed a bond of indemnity to George Ross, in which, after reciting that the money was paid to him for the use of the state of Pennsylvania, he binds himself to repay the same, should the said George Ross be thereafter compelled,  by due course of law, to pay that sum according to the decree of the court of appeals. \nThese loan-office certificates were in the name of Matthew Clarkson, who was marshal of the court of admiralty, and were dated the 6th of November, 1778. Indents were issued on them to David Rittenhouse, and the whole principal and interest were afterwards funded by him, in his own name, under the act of congress making provision for the debt of the United States. \nAmong the papers of David Rittenhouse was a memorandum, made by himself at the foot of a list of the certificates mentioned above, in these words: \"Note. The above certificates will be the property of the state of Pennsylvania, when the state releases me from the bond I gave in 1778, to indemnify George Ross, Esq. judge of the admiralty, for paying the 50 original certificates into the treasury, as the state's share of the prize.\" \nThe state did not release David Rittenhouse from the bond mentioned in this memorandum. These certificates remained in the private possession of David Rittenhouse, who drew the interest on them during his life, and after his death they remained in possession of his representatives; against whom the libel  in this case was filed, for the purpose of carrying into execution the decree of the court of appeals. \n While this suit was depending, the state of Pennsylvania forbore to assert its title, and, in January, 1803, the court decreed in favour of the libellants; soon after which, the legislature passed the act which has been stated. \nIt is contended that the federal courts were deprived of jurisdiction, in this cause, by that amendment of the constitution which exempts states from being sued in those courts by individuals. This amendment declares, \"that the judicial power of the United States shall not be construed to extend to any suit, in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state.\" \nThe right of a state to assert, as plaintiff, any interest it may have in a subject, which forms the matter of controversy between individuals, in one of the courts of the United States, is not affected by this amendment; nor can it be so construed as to oust the court of its jurisdiction, should such claim be suggested.The amendment simply provides, that no suit shall be commenced or  prosecuted against a state. The state cannot be made a defendant to a suit brought by an individual; but it remains the duty of the courts of the United States to decide all cases brought before them by citizens of one state against citizens of a different state, where a state is not necessarily a defendant. In this case, the suit was not instituted against the state or its treasurer, but against the executrixes of David Rittenhouse, for the proceeds of a vessel condemned in the court of admiralty, which were admitted to be in their possession. If these proceeds had been the actual property of Pannsylvania, however wrongfully acquired, the disclosure of that fact would have presented a case on which it was unnecessary to give an opinion; but it certainly can never be alleged, that a mere suggestion of title in a state to property, in possession of an individual, must arrest the proceedings of the court, and prevent their  looking into the suggestion, and examining the validity of the title. \nIf the suggestion in this case be examined, it is deemed perfectly clear that no title whatever to the certificates in question was vested in the state of Pennsylvania. \nBy the highest  judicial authority of the nation it has been long since decided, that the court of appeals erected by congress had full authority to revise and correct the sentences of the courts of admiralty of the several states, in prize causes. That question, therefore, is at rest. Consequently, the decision of the court of appeals in this case annulled the sentence of the court of admiralty, and extinguished the interest of the state of Pennsylvania in the Active and her cargo, which was acquired by that sentence. The full right to that property was immediately vested in the claimants, who might rightfully pursue it, into whosesoever hands it might come. These certificates, in the hands, first, of Matthew Clarkson, the marshal, and afterwards of George Ross, the judge, of the court of admiralty, were the absolute property of the claimants. Nor did they change their character on coming into the possession of David Rittenhouse. \nAlthough Mr. Rittenshouse was treasurer of the state of Pennsylvania, and the bond of indemnity which he executed states the money to have been paid to him for the use of the state of Pannsylvania, it is apparent that he held them in his own right, until he should  be completely indemnified by the state. The evidence to this point is conclusive. The original certificates do not appear to have been deposited in the state treasury, to have been designated in  any manner as the property of the state, or to have been delivered over to the successor of David Rittenhouse. They remained in his possession. The indents, issued upon them for interest, were drawn by David Rittenhouse, and preserved with the original certificates. When funded as  part of the debt of the United States, they were funded by David Rittenhouse, and the interest was drawn by him. The note made by himself at the foot of the list which preserved, as explanatory of the whole transaction, demonstrates that he held the certificates as security against the bond he had executed to George Ross; and that bond was obligatory, not on the state of Pennsylvania, but on David Rittenhouse, in his private capacity. \nThese circumstances demonstrate, beyond the possibility of doubt, that the property, which represented the Active and her cargo, was in possession, not of the state of Pennsylvania, but of David Rittenhouse as an individual; after whose death it passed,  like other property, to his representatives. \nSince, then, the state of Pennsylvania had neither possession of, nor right to, the property on which the sentence of the district court was pronounced, and since the suit was neither commenced nor prosecuted against that thate, there remains no pretext for the allegation that the case is within that amendment of the constitution which has been cited; and, consequently, the state of Pennsylvania can possess no constitutional right to resist the legal process which may be directed in this cause. \nIt will be readily conceived that the order which this court is enjoined to make by the high obligations of duty and of law, is not made without extreme regret at the necessity which has induced the application. But it is a solemn duty, and therefore must be performed. A peremptory mandamus must be awarded. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. delivered the opinion of the court as follows: \nIn this case two points are made by the plaintiff in error. \n1. That the judgment rendered by the court of common pleas, which is supposed to bar the plaintiff's title, is clearly erroneous. \n2. That it is an absolute  nullity, and is to be entirely disregarded in this suit. \nHowever, clear the opinion of the court may be, on the first point, in favour of the plaintiff, it will avail her nothing unless she succeeds upon the second. Without repeating, therefore, those arguments which have been so well urged at the bar, to show that the inquisition in this case did not warrant the judgment which was rendered on it, the court will proceed to inquire whether that judgment, while unreversed, does not bar the plaintiff's title. \nThe law respecting the proceedings of inferior courts, according to the sense of that term as employed in the English books, has been correctly laid down. The only question is, was the court, in  which this judgment was rendered, \"an inferior court,\" in that sense of the term? \nAll courts from which an appeal lies are inferior courts in relation to the appellate court before which their judgment may be carried; but they are not therefore inferior courts in the technical sense of those words. The apply to courts of a special and limited jurisdiction, which are erected on such principles that their judgments, taken alone, are entirely disregarded, and the proceedings  must show their jurisdiction. The courts of the United States are all of limited jurisdiction, and their proceedings are erroneous, if the jurisdiction be not shown upon them. Judgments rendered in such cases may certainly be reversed, but this court is not prepared to say that they are absolute nullities, which may be totally disregarded. \nIn considering this question, therefore, the constitution and powers of the court, in which this judgment was rendered, must be inspected. \nit is understood to be a court of record possessing,  in civil cases, a general jurisdiction to any amount, with the exception of suits for real property. \nIn treason, its jurisdiction is over all who can commit the offence. \nthe act of the 4th of October, 1776, defines the crime, and that of the 20th of September, 1777, prescribes the punishment. The act of the 1,th of April, 1778, describes the mode of trial, and the tribunal by which final judgment shall be rendered. That tribunal is the inferior court of common pleas in each county. Every case of treason, which could arise under the former statutes, is to be finally decided in this court. With respect to treason, then, it is a court of general  jurisdiction, so far as respects the property of the accused. \n The act of the 11th December, 1778, extends the crime of treason to acts not previously comprehended within the law, but makes no alteration in the tribunal before which this offence is to be tried, and by which final judgment is to be rendered. \nThis act cannot, it is conceived, be fairly construed to convert the court of common pleas into a court of limited jurisdiction, in cases of treason. It remains the only court capable of trying the offences described by the laws which have been mentioned, and it has jurisdiction over all offences committed under them. \nIn the particular case of Grace Kempe, the inquest is found in the form prescribed by law, and by persons authorized to find it. The court was constituted according to law; and, if an offence, punishable by the law, had been in fact committed, the accuse was amenable to its jurisdiction, so far as respected her property in the state of New-Jersey. The question whether this offence was or was not committed, that is, whether the inquest which is substituted for a verdict on an indictment, did or did not show that the offence had been committed, was a  question which the court was competent to decide. The judgment it gave was erroneous, but it is a judgment, and, until reversed, cannot be disregarded. \nThis case differs from the case from third Institute in this. In that case the court was composed of special commissioners authorized to proceed, not in all cases of treason, but in those cases only in which an indictment had been taken before fifteen commissioners. Their error was not in rendering judgment against a person who was not proved by the indictment to have committed the crime, but who, if guilty, they had no power to try. The proceedings there were clearly coram non judice. \nIt is unnecessary to notice the eleventh section of  the act, since, without resorting to it, this court is of opinion that there is no error in the judgment of the circuit court. It is affirmed, with costs. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. delivered the opinion of the court to the following effect; \n The verdict ought to have found the amount of the assets in the hands of the defendant to be administered. \nThe cases cited to show that the judgment  must be for the whole sum, if the verdict find any assets, have been overruled. This is declared by Lord Mansfield, in a case cited in Gwillim's edition of Bac. Abr. and the law is now well understood to be, that the executor is only liable for the amount of assets found by the jury. In Virginia the law has been so settled. The case cited from 2 Wash. Rep. is precisely in point. The counsel for the defendant in error attempted to show a distinction arising from the difference of form in which the verdicts were rendered. But the two verdicts appear to the court to be precisely alike in substance. \nThe defendant in error relies on the form of the issue. She contends that as the replication alleges that the defendant has assets more than sufficient to satisfy the debt, the finding of that issue for the plaintiff below, is in effect finding that the defendant has assets more than sufficient to satisfy the debt; and if so, it is wholly immaterial what the real amount of assets is. But if this were the issue, and the demand were 500 dollars, if the jury should find that the defendant had assets to the amount of 499 dollars, the judgment must be for the defendant. \nBut the law is not  so. An executor is liable for the amount of assets in his hands, and not more. \nThe issue really is, whether the defendant has any, and what amount of assets in his hands. \nJudgment reversed. 1 \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. delivered the opinion of the court as follows: \nThis case comes on upon two exceptions; one to the opinion of the circuit court given to the jury, and the other to the refusal of that court to give an  opinion which was prayed by the counsel for the defendant below. \nThe declaration contains two counts. One upon the endorsement of a promissory note, and the other for money had and received to the plaintiff's use. The question arising on the first bill of exceptions is, whether the court erred in directing the jury respecting the liability of the defendant below, on the endorsement which was the foundation of the action. \nThe  endorsement was made before the note was written; and it appeared that the body of the note was filled up by Patton. The opinion of the court was, that, if the jury should be satisfied, from the testimony, that Violett endorsed this paper for the purpose of giving Brooke a credit with Patton, and that, upon the faith of the note so drawn and endorsed, Patton did credit Brooke to the amount thereof, the circumstances, that the note was made subsequent to the endorsement, without any consideration from Brooke to Violett, and was filled up by the plaintiff, did not bar the action; and, further, that the said Brooke was to be considered as authorized by the said Violett to make the note to Patton. \nThis opinion is said to be erroneous; because, \n1. The endorsement was made without consideration. \n2. It was made on a blank paper. \n3. There was no memorandum of the agreement in writing. \nIn support of the first point, the counsel nor the plaintiff in error have cited several cases, intending to prove that an endorsement made without consideration, though it transfers the paper to the endorsee, creates no liability in the endorsor; and that  a promise in writing, made without  consideraton, is void. \nSo far as respects the immediate parties having knowledge of the fact, and so far as relates to an endorsement under the statute of Virginia, this is correct; but the real question in the cause is, does the testimony prove a sufficient consideration for the promise created by the endorsement? This is not intended to comprehend any writing on which an action of debt is given. \nTo constitute a consideration it is not absolutely necessary that a benefit should accure to the person making the promise. It is sufficient that something valuable flows from the person to whom it is made; and that the promise is the inducement to the transaction. In the common case of a letter of credit given by A. to B., the person who, on the faith of that letter, trusts B., is admitted to have his remedy against A., although no benefit accrued to A. as the consideration of his promise. So in the present case, Patton trusted Brooke on the credit of Violett's name, and Violett wrote his name for the purpose of giving Brooke that credit with Patton. It was, in effect, and in intention, a letter of credit. The case shows that this was both the intention and the effect of Violett's  giving his name to Brooke. In conscience, and in substance, then, it is a letter of credit, upon which the money, it was intended to secure, was advanced; and although in point of form the transaction takes the shape, and was intended to take the shape, of an endorsement, yet, so far as respects consideration, the endorsement has the full operation of an undertaking in the form of a letter of credit. \nIt is common in Virginia for two persons to join in a promissory note, the one being the principal and the other the security. Although the whole benefit is received by the principal, this contract has never been considered as a nudum pactum with regard to the security. So far as respects consideration, no  difference is perceived in the cases. Violett has signed his name upon this paper, for the purpose of giving Brooke a credit with Patton, and his signature has obtained that credit. The consideration is precisely the same, whether his name be on the back or the face of the paper. \n2. The second objection is, that the endorsement preceded the making of the note. \nThis objection certainly comes with a very bad grace from the mouth of Violett. He endorsed the paper with  the intent that the promissory note should be written on the other side; and that he should be considered as the endorsor of that note. It was the shape he intended to give the transaction; and he is now concluded from saying or proving that it was  not filled up when he endorsed it. It would be to protect himself from the effect of his promise, by alleging a fraudulent combination between himself and another to obtain money for that other from a third person. The case of Russel and Langstaffe, reported in Douglass, is conclusive on this point. \n3.The third objection is, that there was no memorandum of the agreement in writing. \nThe argument on this point is founded on the idea that the statute of frauds in Virginia is copied literally from the statute of Charles II. This is not the fact. The first section of the act of Virginia differs from the 4th sec. of the state. of Charles II. in one essential respect. The statute of England enacts that no action shall be brought, in the cases specified, \"unless the agreement on which such action shall be brought, or some memorandum or note thereof shall be in writing,\" &c. The Virginia act enacts that no action shall be brought  in the specified cases, \"unless the promise or agreement on which such action shall be brought, or some memorandum or note thereof shall be in writing,\" &c. The reasoning of the judges, in the cases in which they have decided that the consideration ought to be  in writing, turns upon the word agreement, of which the consideration forms an integral part. This reasoning does not apply to the act of Virginia, in which the word \"promise\" is introduced. \nIt was thought proper to notice this difference between the act of parliament, and the act of Virginia, although the opinion of the court is not des termined by it. In this case the assignment does express a consideration. It is made for value received. \nIt is unnecessary to decide in this case, whether the declaration ought to have alleged that the endorsement was made on consideration. With that question the jury had no concern, and the direction of the court was not affected by it. There being no demurrer, it court only occur in arrest of judgment. But on a motion in arrest of judgment, the defendant below could not have availed himself of this error, if it be one, because there are two counts in the declaration, one  of which is unquestionably good, and the court cannot perceive on which the verdict was rendered.By the act of jeofails in Virginia, there is no error if any one count will support the judgment. \nThe second exception is to the refusal of the circuit court to give the opinion, prayed for by the counsel for the defendant below. \nWhen the error alleged is, not that the court has misdirected the jury, but that the court has refused to give a particular opinion, the opinion demanded must be so perfectly stated, that it becomes the duty of the court to give it as stated. \nIn this case, the opinion required by the counsel consists of two parts. The first is to instruct the jury \"that if they shall be satisfied, from the evidence, that Richard Brooke, the maker of the note in this case, had, at the time the note became due, or at any time previous to the commencement of this suit against the defendant, property sufficient to pay  the debt claimed,\" &c. and the plaintiff brought no suit, then this action is not maintainable. \nThis court conceives that the circuit court ought not to have given this opinion. Had Richard Brooke possessed property before the making of the note, and  not afterwards, the opinion, in the terms in which it was required, would have been a direction to find their verdict for the defendant. So if Richard Brooke had been in possession of property for a single day, and had the next day become insolvent, the court was asked to say that, in such a case, the endorsor could only be made liable by suit against the maker. Such a direction, in the opinion of this court, would have been improper. \nThe second branch of the opinion the circuit court was required to give, is in these words: \"Or if the jury shall be satisfied that the said plaintiff and the said Brooke have, since the said note became due, both lived in the county of Fairfax, in Virginia, and have continued to reside in the county of Fairfax until the beginning of the present suit, and the plaintiff hath not brought suit against the said Brooke in Virginia, then the defendant is not liable in this action.\" \nIf the plaintiff had sued Brooke elsewhere than in Virginia, or if Brooke had become insolvent previous to the making of the note, and had continued to be so, the opinion of the court, and had continued would have been, that, still, a suit against the maker of the note was necessary  to give a right of action against the endorsor \nThis is not understood to be the law of Virginia. It is understood to be the law, that the maker of the note must be sued, if he is solevent, but his insolvency dispenses with the necessity of suing him. It is not known that any decision of the state courts requires that this insolvency should be proved by taking the oath of an insolvent debtor, nor is it believed that this is the only admissible testimony of  the fact of insolvency. Other testimony may be admitted. It would therefore have been proper to leave it to the jury to determine whether it was, at any time, in the power of the plaintiff to have made the money due on this note, or any part of it, from the maker by suit; and their verdict ought to have been regulated by the testimony in this respect. \nThis opinion was not required. \nThis court is of opinion that there is no error, and that the judgment is to be affirmed with costs. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. delivered the opinion of the court, to the following effect: \nIf this case depended upon the replication, the judgment of the court must be in favour of the defendants. It is certainly bad, inasmuch as it charges the defendants with moneys not collected. But upon a demurrer the judgment is to be against the party who committed the first error in pleading. \nThe want of oyer is a fatal defect in the plea of the defendants; and the court cannot look at any subsequent proceeding. The plea was bad when pleaded. The judgment must be reversed, and the cause remanded for further proceedings. \nJudgment reversed. \n \n\n ", " \nOpinion \n\n \n \n MARSHALL, Ch. J. delivered the opinion of the court, that in such a case, where there has been a nonsuit, and a motion to reinstate overruled, the court could not interfere. \nJudgment affirmed. \n \n\n ", "Opinion by:  MARSHALL \nOpinion \n\n \n \n  MARSHALL, Ch. J. delivered the opinion of the court. \nIn this case the title of both parties originates in surveys made by the surveyor of Fincastle county, previous to the passage of the land law of Virginia. Both surveys were made on military warrants issued under the proclamation of 1763. The survey under which the plaintiffs claim, being prior in point of time, they have the first equitable title, and must prevail, unless the objections made to that survey be valid, or unless their equity is defeated by the circumstances of the case. \nSeveral objections have been made to the survey, each of which will be considered. \n1. It is said that the warrant was not in possession of the principal surveyor when the survey was made. \n The answer given to this objection is conclusive. The warrant is an authority to, and an injunction on, the surveyor to lay off 2,000 acres of vacant land which had not been surveyed by order of council, and patented subsequent to the proclamation. Whether acts under this authority are valid or void, if the authority itself be not in possession of the officer, is perfectly unimportant in this case; because  the court considers the cerfificate of the surveyor as sufficient evidence that the warrant was in his possession, if, in point of law, it was necessary that it should be lodged in the office. That certificate is in the usual form, and states the survey to have been made by virtue of the governor's warrant, and agreeably to his majesty's royal proclamation. \n2. The second objection is, that the survey does not appear to have been recorded within two months after it was made. \nThe opinion, that this omission on the part of the surveyor avoids the title which accrued under the survey, is founded on the 6th section of an act passed in the year 1748, entitled, \"An act directing the duty of surveyors of land.\" In prescribing this duty the law, among other things, enjoins the surveyor \"to enter, or cause to be entered, in a book well bound, to be ordered and provided by the court of his county, a true, correct and fair copy and plat of every survey by him made during his continuance in office, within two months after making the same.\" \nThis section is merely directory to the surveyor. It does not make the validity of the survey dependent on its being recorded, nor does it give the proprietor  any right to control the conduct of the surveyor in this respect. His title, where it can commence without an entry, begins with the survey; and it would be unreasonable to deprive him of that title by the sbusequent neglect of an officer, not appointed by himself, in not performing an act which the law does not pronounce necessary to his title,  the performance of which he has not the means of coercing. \nIf the omission to record the survey in two months would avoid it, then the omission of any other act enjoined by the same section would equally avoid it. The surveyor is directed to see the land \"plainly bounded by natural bounds, or marked trees.\" Has his conforming to this direction ever been inquired into, in a contest respecting the validity of a survey? Would any gentleman of the bar contend that the land was not plainly bounded, and that, for this reason, a survey actually made was void? He is, within five months, to deliver to his employer a plat and certificate. Suppose six months should elapse before he complies with this duty, is the survey void? He is to certify the true quantity of land contained in the survey. Would the gentlemen from Kentucky be willing  to adopt it as a principle that every survey expressing a quantity more or less than the true quantity is absolutely void? He is to state the water-courses, and also the plantations next adjoining. Should any one of these be omitted, is the survey void? He is to return a list of surveys in the month of June annually to the clerk's office. Should he fail in this, are the surveys void? On these points it is impossible seriously to insist; and the court can perceive no distinction between them. They are all merely directory to the officer, and none of them affect a title which commenced before  they are to be performed. He is subjected to a penalty for failing in any one of these duties, but his performing or omitting them is unimportant to the rights of those for whom surveys have been made. \n3. The third objection is of more weight. It is, that the survey must be certified by the person who made it, and can be authenticated in no other manner. \nThat, in point of fact, this survey was certified as made, is not doubted. But it is said that the  plat and certificate want those appropriate forms which alone the law will receive as evidence of their verity. \n The survey was made by Hancock Taylor, assistant surveyor of Fincastle county, from whose field-notes, the plat and certificate were made out by his principal, who also signed them. Hancock Taylor was prevented from performing this juty by a mortal wound received from the Indians. It is understood to be usual for the assistant, where suveys are actually made by him, to sign the plat and certificate, which are also signed by his principal. \nThe 46th section of the act, \"for settling the titles and bounds of lands, and for preventing unlawful hunting and ranging,\" enacts, \"that every survey of lands intended to be patented shall be made and retruned by a sworn surveyor duly commissioned for that purpose.\" \nLet us inquire whether, under this section, the plat and certificate must be made out by the person who made the sruvey, and whether a survey actually made by an assistant must be platted and certified by him. \nIt may be of some importance, in the construction of this section, to inquire whether the return alluded to is to the office of the principal surveyor, or to the land-office, out of which the patent is to issue. \nIn construing this section, the accompanying sections afford  us no aid. But the general object of the act, and the allusion to patenting which is made in the section, would lead to the opinion that returns to the land-office were in contemplation of the legislature. If we examine the laws generally, we shall find that most usually the word \"surveyor\" is applied to the principal, and where the law alludes to the assistant, he is designated by the term \"assistant surveyor.\" If the return directed by this section is to be made to the land-office, for the purpose  of obtaining a patent, then the principal surveyor is the person who is to certify it, and a survey actually run by himself, or by his assistant, is to be considered, in law, as a survey made by himself. It is believed to be most usual for the plat and certificate returned to the land-office, to be signed by the principal and by his assistant; but this section seems not to require both. The signature of the assistant is the justification to the principal for recording and certifying the survey, and is the best testimony that it has been made; but the law does not require, in terms, that where that best testimony is unattainable, no other shall be received. So far as the  section which has been recited goes, the signature of the principal surveyor sufficiently authenticated this plat and that a patent has issued upon it, is proof that such was the opinion entertained in the land-office. A patent certainly does not issue of course, unless the papers on which it issues be regular. A plat not legally authenticated is no plat, and the register cannot justify issuing a patent on it. \nThis consideration certainly deserves some weight: but if the court inspect this section, it seems, in fair construction, to require only the signature of the principal surveyor, who, consequently, judges, in the first instance, of the testimony which will enable him to certify a survey. If the signature of the assistant can be dispensed with, then other testimony than his signature may authorize the principal to certify a survey; and if, in any possible case, other testimony can be deemed competent, it surely may in this. \nIf the return directed by this section be understood to be a return to the office of the principal surveyor, it is necessary to inquire what it is that the section exacts. It is, that the \"survey shall be made and returned by a sworn surveyor,\" not that  the plat shall be made out and certified to the principal by the assistant who run the lines. The courses and distances contained in the field-book of the assistant, represent to the principal as correctly  and as intelligibly the survey actually made, as the plat and certificate could do. From these data he is as capable of placing on his record-book a correct plat, ad of returning that plat to the land-office, as if the lines of the survey had been placed on paper by the assistant himself. It would seem reasonable, therefore, even on this construction of the section, in the actual case where death has disabled the assistant from platting his works, to consider the law as satisfied by the delivery of those works to the principal surveyor. \nThe \"act directing the duty of surveyors of land\" does not appear to this court to contain any provisions which are opposed to the construction here made of the preceding act of the same session. The 6th section of that act, which has been particularly referred to by counsel, prescribes the duty of surveyors, but contains no direction respecting the signature of plats and certificates, except this: \"Every surveyor making a survey  of land shall see the same plainly bounded by natural bounds, or marked trees, and within five months after survey, shall deliver to his employer a plat and certificate thereof.\" \nIt has never been understood that this plat and certificate may not be delivered by the principal; and other parts of this section show that the duties enjoined, are some of them to be performed by the principal. The section proceeds to say, \"and shall also enter, or cause to be entered, in a book well bound, to be provided by the court of his county, a true, correct and fair copy and plat of every survey by him made.\" Now this book is the book of the principal. It is, of course, his duty to superintend the entries in it. They are to be \"of the surveys by him made.\" The survey made by the assistant, is, then, to be entered by the principal as a survey by him made. He is also to return annually a list of the surveys by him made, to the county court clerk's office. This return is made by the principal. Certainly the list must include all the surveys made by  his assistants. They also are considered as made by him. Upon a view of the whole section, the court perceives nothing in it which renders  it  improper for the principal to plat and certify a survey made by his assistant whose field-notes are returned complete to him, and who has been disabled by death from making the plat himself. \nThis construction is very much strengthened by the terms of the act of 1779. That act declares \"that all surveys of waste and unappropriated land made upon any of the vestern waters before the 1st day of January, 1778\" \"by any county surveyor, commissioned by the masters of William and Mary college, acting in conformity to the laws and rules of government then in force, and founded either upon charter,\" &c. \"or upon any warrant from the governor for the time being, for military service, in virtue of a proclamation either from the king of Great Britain, or any former governor of Virginia, shall be and are hereby declared good and valid; but that all surveys of waste and unpatented lands made by any other person, or upon any other pretence whatsoever, shall be and are hereby declared null and void.\" \nNotwithstanding this declaration, we find that patents have actually issued, under which both parties in this cause claim, on surveys made not by the county serveyor in person, but by  his assistant. It is perfectly well known that a great proportion of the surveys recognised by this act have been really executed by assistant surveyors. Upon what principle of construction are they brought within the act? Clearly upon this. The law, so far as respects thevalidty of the survey, considers the act of the deputy as the act of his principal. A survey made by an assistant is, in law language, made by the principal.And if this idea be taken up on so material a clause as that which confirms or invalidates every survey previously made, and which is expressed in terms much more explicit and decisive than any of the clauses in the preceding acts, must  not the idea be carried throughout? Must not the survey, in all cases, be considered in a legal point of view as made by the principal through the agency of his deputy, and must not this principal be kept in view in construing the laws upon the subject. \nThis survey, then, is, in law language, made by William Preston. It is confirmed as a survey made by him. The law recognises it as his survey. Assuredly, then, his certificate may authenticate it. \nThe act proceeds to say that \"all and every person or persons,  his, her or their heirs, claiming lands upon any of the before recited rights, and under surveys made as herein before mentioned, (that is, by a county surveyor,) against which no caveat shall have ben legally entered, shall, upon the plats and certificates of such surveys being returned into the land-office, together with the rights, &c. upon which they were respectively founded, be entitled to a grant for the same.\" \nTo the court it seems clear that the law authorizes a plat and certificate of survey from the person whom it contemplates as the maker of that survey; that is, from the county surveyor. The formal requisites of the law are complied with by a plat and certificate under his signature. He has given it, in this case, on testimony, which the court deems as full and complete as even the plat certified by the assistant who made the survey would have been. \nThese are the objections which have been made to the survey under which the plaintiffs claim. After bestowing on them the utmost attention, the court is decidedly of opinion, that the survey of M'Donald was and ought to be considered as a good and valid survey. \n4. The 4th objection to the plaintiffs' claim is founded  on their negligence. \n At law, this objection is clearly of no validity. The proviso to that section of the act of 1779, which has been considered, declares that such surveys shall be returned to the land-office within twelve months after the expiration of that session of assembly, or should become void. The time for returning them, however, was prolonged until this patent issued. Consequently, a caveat to prevent the emanation of the patent, because the survey was not returned in time, could not have been maintained. If the survey of M'Donald came within the law, the circumstance, that the subsequent survey of Sumner was made without notice in fact, cannot alter the case. His warrant only authorized him to acquire vacant land, and he took upon himself to find lands of that description. The principle, caveat emptor, is directly applicable. \n5. The 5th objection made by the defendant is, that the patent of the plaintiffs contains surplus land. The warrant, it is said, was an authority to survey only 2,000 acres, and, for the surplus, the survey was made without authority. \nIt is a fact of universal notoriety in Virginia not only that the old military surveys, but  that the old patents of that country generally contain a greater quantity of land than the patents call for. The ancient law of Virginia notices this fact, and provides for the case. It prescribes the manner in which this surplus may be acquired by other persons; and it is worthy of notice that the patentee must himself reject the surplus before it can be acquired by another, and, after having so rejected it, he has the election to allot it in such part of his patent as he pleases. \nIt is contended, however, that although a grant containing surplus land might give a legal right to such surplus yet a survey could not be carried into grant so far as such surplus appeared upon a caveat. \n On this subject we find no act of Virginia under the regal government. At that time the governor and council constituted a branch of the legislature and the general court of the colony. They also held a distinct court in the council chamber for the trial of caveats, their decisions on which were regulated by rules established by themselves. These rules, it is believed, are lost; and it is also believed that the means of ascertaining satisfactorily what they were, are no longer attainable.  The land law of 1779 was framed by men who understood them, and it is not unreasonable to suppose that, in drawing that law, some respect was paid to them. That law gives a caveat against a survey not returned to the land-office within twelve months after it is made, or whose breadth shall not be one third of its length, but gives no caveat on account of surplus land contained in a survey, nor does it indicate the idea  that, on a survey containing such surplus, a caveat could not be supported. If such survey is not absolutely void for the whole, the difficulty of assigning the exact quantity is sufficient to have induced legislative regulation, had it been contemplated as the subject of a caveat. It would seem that, for security in this respect, the government trusted to the oaths prescribed for surveyors and chain carriers. It is also worthy of remark, that the law of 1779 superadds to the restrictions formerly imposed on taking up surplus lands contained in any patent, that it can only be done during the life of the original patentee, and before any alienation has been made. \nIt is also to be observed, that the act of 1779 confirms this survey, and it is understood  that no previous entry was deemed necessary to its validity. The entries made on treasury warrants are most frequently in such terms that a survey for a greater quantity of land might be considered as being so far contrary to location, and might be restrained by the location; but, where there is no entry, the difficulty of restraining the survey is much increased, because there exists no standard by which to reduce it. There is, indeed, a standard as to quantity, but  not as to form and place. The survey is an appropriation of a certain quantity of land by metes and bounds, plainly marked by an officer appointed by the government for that purpose, and it would seem that the government receives his plat and certificate as full evidence of the correctness of the survey. This being the case, it is admitted by the government to be an appropriation of the land it covers, and it is difficult to discern a rule by which the survey could be reduced on a coveat by the owner of an interfering survey, unless the entry on which it was made was in such terms that the excess might be considered as surveyed contrary to location. For to every and to each part of the land surveyed, its  owner has an equal right. \nWhatever rules might have been established in the tribunal having jurisdiction of the subject, under the regal government, the caveat in this cause, had one been entered, must have been regulated by the act of 1779. That act gives validity to both surveys; and although it directs caveats depending in the council chamber, at the commencement of the revolution, to be transferred to the general court, and to be tried by the rules which governed when they were entered, it subjects future caveats to the law then introduced. Under this law, as has already been stated, the court can perceive but one principle on which a survey can be reduced on a caveat, and that principle is inapplicable to this case. \nIn conformity with this opinion is that of the judges of Kentucky. Not a case exists, so far as the court is informed, in which, on a caveat, the quantity of land in the survey of plaintiff or defendant has been considered as affecting the title, upon the single principle of surplus. Yet the fact must have often occurred. And in the case of Beckly v. Bryan and Ransdale, the contrary principle is expressly laid down. In that cause the court said, \"It is proper  to premise that there is but one species of cases in which any court of justice is authorized by our land law to devest the owner of a survey  of the surplus included within its boundaries, namely, where the survey was made posterior to an entry made by another person on the same land; and to do more would be unequal, and unjust, inasmuch as a survey which is too small cannot be enlarged. \nThis position, it is true, was laid down in a contest between a military survey and a patent on a treasury warrant. But it is laid down in terms equally applicable to a contest between two military surveys; and the court does not understand that the law has ever been otherwise understood in Kentucky. \nThe opinions delivered by the judges of appeals of Virginia in the case of Johnson v. Buffington, 2 Wash. 116. would incline this court very much to the opinion that the same rule prevailed in the council chamber before the revolution. In that case, under a warrant from Lord Fairfax for 300 acres of land, 450 acres had been surveyed, and the excess appeared on the plat. This survey had lain in the office many years, and was clearly forfeitable; but Lord Fairfax had not taken advantage  of the forfeiture. After his death a patent issued on a subsequent entry and survey, and the patentee was decreed to convey to the person claiming under the prior entry. In delivering his opinion Judge Fleming said, \"The first objection made by the counsel for the appellant is, that the survey does not pursue the warrant; but I think there is no weight in this, as the variance is only in the quantity. If the land had been imperfectly described, it might have been fatal.\" \nJudge Carrington said, \"He did not consider the variance between the warrant and survey, as to the quantity, as being of any consequence.\" \nThe President, who had been an eminent practitioner in the council chamber, said, \"He felt no  difficulty about the variance in the quantity of the land.\" \nThe rules essabilished by Lord Fairfax were known to conform to those of the crown, and the declarations of the judges in this case, all of whom were acquainted, in some degree, with the usages under the regal government, make a strong impression on this court in favour of the opinion that, in the council chamber, the law was understood to be, that excess in the survey was not to be regarded. \nThe law of this  case, then, so far as respects the state of title previous to the emanation of either grant, appears to be with the first survey. It remains to inquire whether a court of equity will relieve against the legal title acquired by the first grant. \nThe principle on which relief is granted is, that the patent, which is the consummation of title, does, in equity, relate to the inception of title; and, therefore, in a court of equity, the person who has first appropriated the land in contest has the best title, unless his equity is impaired by the circumstances of the case. \nIn this cause, the first patentee is said to be a purchaser without notice. But, for the reasons assigned in a former part of this opinion, the court does not consider him as clothed with that character. His warrant authorizes him to survey waste and unappropriated lands, and he undertakes himself to find lands of that description. The government acts entirely on his information;  and the terms of his grant are, tht the lands were waste and unappropriated. It is not for him to say that he had misinformed the government, and had surveyed appropriated instead of vacant lands, and had thereby entitled himself  to be considered as a purchaser without notice. \nNeither does the court conceive that the plaintiffs  have forfeited their right to come into a court or equity, by their negligence. \nIn the case of 1 Wash. 116. the prior right of the plaintiff had been absolutely forfeited, so that the defendant had the first title both in equity and law, and the plaintiff's bill was dismissed because he failed to prove the fraud which he alleged, and which was, in that case, necessary to give the court jurisdiction. \nIn the case of Picket and Dowdale, and of Currie and Burns, there were both forfeiture and abandonment. \nIn te case of Johnson and Bronw, 3 Call, 259. more than sufficient time had elapsed between the entry and survey of the plaintiff to produce a forfeiture; but, by the old law, notice was to be given by the surveyor before a forfeiture could take place, and this fact was not proved. During forty years this entry had been totally neglected; and the court was of opinion that, after such a lapse of time, the fact of notice by the surveyor might be presumed. This case then also turned on the principle of forfeiture. There were, besides, a great many circumstances in Johnson's  title which gave a strong bias to the judgment of the court. \nThe difference between the case under consideration, and those cited is apparent. But the case of Johnson v. Buffington was much stronger than this. The prior survey was actually forfeitable, but ad not been forfeited; and in that case, after a much longer time than exists in the present, a court of equity supported it against the eldest grant. \nThe general principles which have been relied on, in this branch of the argument, cannot be considered as applicable to a case in which the act, which constitutes the foundation of the charge of negligence, was performed within the time allowed by statute  for its performance. The circumstances, which excused the owners of military surveys for not returning them, were before the legislature and have been declared, by law, to be sufficient. \nBut it is contended that the plaintiffs can have no equity beyond the 2,000 acres contained in the warrant on which M'Donald's survey was made. \nIf this court is to consider itself as merely substituted for a court of law, with no other difference than the power of going beyond the patent, this question is already decided. But,  in the case of Bodley and Hughes v. Taylor, an opinion was indicated that its jurisdiction, not being given by statute, but assumed by itself, must be exercised upon the known principles of equity. This opinion is still thought perfectly correct in itself. Its application to particular cases, and indeed its being considered as a rule of decision on Kentucky titles, will depend very much on the decisions of that country. For, in questions respecting title to real estate especially, the same rule ought certainly to prevail in both courts. \nBut, in its equity, this case differs essentially from Bodley and Hughes v. Taylor. In that case, Taylor had the eldest entry as well as the eldest patent. In this, the eldest equitable right is with him who holds the eldest 1 grant. In that case, the variance between the entry and survey of the elder right is established by a set of rules growing out of expositions subsequent to the survey. In this, the eldest grant is founded on a survey made on land which, in point of fact, was previously appropriated. But, which is of great importance, in that case, the terms of the subsequent location prove that the locator considered himself as comprehending  Taylor's previous entry within his location, and, consequently, did not suppose so much of the land covered by his entry as being then subject to appropriation.  He either did not mean to acquire the land within Taylor's entry, or he is to be considered as a man watching for the accidental mistakes of others, and preparing to take advantage of them. What is gained at law by a person of this description, equity will not take from him; but it does not follow that equity will aid his views, and give more than the law gives him, by allowing him to hold what he has legally gained, while he demands what is legally lost. \nIn this case, M'Donald supposed himself to be appropriating, and in fact was appropriating, land to which no other had, at the time, any pretensions. \nIn addition to these strong differences, in equity, betwen the two cases, no decision of Kentucky was shown to the court, which was applicable to the case of Bodley and Hughes v. Taylor.But the case of Beckly v. Bryan and Ransdale is conceived to be an authority in point for this case. The decision of the court of appeals of Virginia, in the case of Buffington and Johnson is also considered  as expressly in point, and is to be respected, because both these surveys were made while the country in which they were made formed a part of Virginia. \nIt is thought not absolutely unimportant, in a court of equity, that one of the circumstances has occurred, which, at law, rescues the surplus land in M'Donald's patent from the possibility of being acquired by any other person. An alienation has taken place. The decree, therefore, of the court for the district of Kentucky, is to be reversed, and the defendant must be decreed to release to the plaintiffs, respectively, the lands within Sumner's patent which lie within the lines of the land conveyed by M'Donald's heirs to them respectively. \n \n\n ", " \nOpinion \n\n \n \n MARSHALL, Ch. J. delivered the opinion of the court to the following effect: \nThe majority of the court is clearly of opinion, that in admiralty cases an appeal suspends the sentence altogether; and that it is not res adjudicate until the final sentence of the appellate court be pronounced. The cause in the appellate court is to be heard de novo, as if no sentence had been passed. This has been the uniform practice not only in cases of appeal from the district to the circuit courts of the United States, but in this court also. \nIn prize causes, the principle has never been disputed; and in the instance court, it is stated in 2 Browne's Civil Law, that in cases of appeal it is lawful to allege what has not before been alleged, and to prove what has not before been proved. 1 \nThe court is, therefore, of opinion, that this cause is to be considered as if  no sentence had been pronounced; and if no sentence had been pronounced, it has been long settled, on general principles, that after the expiration or repeal of a law, no penalty can be enforced, nor punishment inflicted, for violations of the law committed while it was in force, unless some special provision be made for that purpose by statute. 2 \n The following sentence was then pronounced by the court: \nThis cause came on be heard on the transcript of the record, and was argued by counsel; on consideration whereof the court is of opinion, that an appeal from the sentence of a court of admiralty brings the whole case before the appellate court unaffected by the sentence of condemnation from which the appeal is made, and that a sentence of condemnation cannot be pronounced on account of a forfeiture which accrued under a law not in force at the time of pronouncing such sentence, unless, by some statutory provision, the right to enforce such forfeiture be preserved. \nThe court is, therefore, of opinion,  that the sentence pronounced in this cause by the circuit court of the district of Maryland, affirming the sentence of the judge of the district court in this cause, be reversed and annulled; and the court, proceeding to pronounce the proper sentence, doth direct that the libel be dismissed, and the property libelled be restored to the claimants, they paying the duties thereon if the same have not been already paid. \nAnd, on the motion of the attorney-general, it is ordered to be certified that in the opinion of this court, there was probable cause of seizure. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. delivered the opinion of the court to the following effect: \nThe opinion of this court is, the copper plates turned up at the edge are exempt from duty, although  imported under the denomination of rasied bottoms. \nIt appears to have been the policy of the United States to distinguish between raw and manufactured copper. From the facts stated, the copper in question cannot be deemed manufactured copper within the intention of the legislature. \nThe opinion certified to the court below was, that round copper bottoms turned up at the edge are not liable to the payment of duty within the meaning of the several acts of congress. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. delivered the opinion of the court to the following effect: \nThe court thinks this case too plain to admit of argument, or to require deliberation.It is not within even the letter of the law, and it is certainly not within its spirit. The law did not intend to punish the intention, but the attempt to defraud the revenue. \n But as the construction of the law was liable to  some question, the court will suffer the certificate of probable cause to remain as it is. A doubt as to the true construction of the law is as reasonable a cause for seizure as a doubt respecting the fact. \nSentence affirmed. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. delivered the opinion of the court to the following effect: \nThe writ being returnable to the court, is returnable the first day of the court. It was known to the legislature of Virginia that the appearance day for all process was the day after the term. When, therefore, they directed that a trial should be had at the  return term, they must have intended that this case should be an exception to the general rule. \nJudgment affirmed. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. delivered the opinion of the court as follows, viz. \nThe question in this case is, whether the endorsor of a note negotiable in the bank of Alexandria, if such endorsement be for accommodation, may be sued by the bank, before a suit shall be instituted against the maker, if the maker be solvent. \nIn Virginia, the endorsor of a promissory note was not, when the town of Alexandria  was separated from that state, liable to the holder by any express statute. He was only liable under the implied contract created by his endorsement. This implied contract, by the general understanding of the country, was, that he would pay the debt, if by due diligence it could not be obtained from the maker. This condition, however, was not expressed.  Yet it was just, because it was consistent with general usage, and, therefore, was the real understanding with which such an endorsement was made and received. \nBut in banks, this is probably not the usage; and if it be not, then the same reason does not exist for annexing such a condition to the contract created by endorsement. If banks are understood to receive notes made negotiable with them, as subject to the law which governs inland bills of exchange, then it would seem reasonable, in the case of notes actually negotiated with them, to imply, from the act of endorsement, an undertaking conformable to that usage. If, then, the case showed that such was the usage of the bank, and such the understanding under which notes were discounted, this court is not prepared to say that the undertaking created by the endorsement  would not be so fashioned as to give effect to the real intention of the parties. \nBut the incorporating act removes any doubt which might otherwise exist on this point. \nThe 20th section of that act declares, \"that whenever any person or persons indebted to the said bank on bonds, bills, or notes, given or endorsed by them, with an express consent, in writing, that they may be negotiable at the said bank, and shall refuse or neglect to make payment at the time the same may become due, and a suit shall thereupon be commenced, &c. judgment is to be rendered in a summary manner. \nA person, then, may become indebted to the bank on a note endorsed by him, as well as on a note made by him; and the question is, when does he become indebted. The act appears to answer this question in the succeeding member of the sentence. The words are, \"and shall refuse or neglect to make payment at the time the same may become due.\" to what antecedent does the word \"same\" refer? Most obviously to the words \"bond, bill or note.\" When the bond, bill or note becomes  due, the maker or endorsor, who shall refuse or neglect to make payment, is within the description  of the act. No man  can be said to refuse or neglect to make payment, before the money is demandable from him, and till then no action can be brought.But the law proceeds to say, \"and a suit shall thereupon be commenced.\" The word \"thereupon\" must refer to the note, or to the circumstances previously stated. Give it the one meaning or the other, and the law obviously contemplates a suit against the maker or endorsor, on his refusing or neglecting to pay such note, when it shall become due. The act then proceeds to say, that, when this suit shall be so commenced, the court shall render judgment thereon in a summary way. \nIt is alleged that the preceding part of the section is all recital, and cannot, therefore, be construed to give a right to sue, where that right did not before exist: that the enacting clause gives no remedy where one did not before exist; but substitutes a summary mode of proceeding, for that more tedious action which the previous laws had given. \nIt is true that the first part of this section is recital; but it describes the precise case in which judgment shall be rendered in a summary way. That precise case is, where a person indebted, by making or endorsing a note negotiable and  negotiated in the bank, shall refuse or neglect to make payment thereof, when such note shall become due. The time when he becomes indebted is declared to be, when the note becomes due. \nIt is alleged that an accommodation endorsor cannot then become indebted. This distinction was completely overruled in the case of Violet and Patton. The consideration moving from the bank to the maker of the note, on the credit of the endorsor, charges both the maker and the endorsor. The endorsor is, in this respect, as liable, both in reason and in law, to the claim of the bank, as if he had placed his name on the face instead of the back of the note. \nJudgment affirmed with costs. \nDissent by:", " \nOpinion \n\n \n \n MARSHALL, Ch. J. delivered the opinion of the court as follows: \nA decree having been formerly rendered in this cause, the court is now to determine whether that decree has been executed according to its true intent and meaning. \nThat decree directed \"the cargo of the Sarah to be restored to the original owners, subject to those charges of freight, insurance and other expenses which would have been incurred by them, in bringing the cargo into the United States.\" \nIn carrying this decree into execution, an allowance has been made for freight, and for expenses incurred at the port of importation; but no allowance has been made for expenses at the port of lading, nor for insurance. The appellants, too, were charged with interest on the money into which the cargo had been converted. \nNo exception having been taken to this report, it is now liable to those exceptions only which appear on its face. \nSo far as respects  freight, and the expenses at the port of entry and delivery, the report must be considered as correct; but in those items of the claim which were disallowed, the error, if it be one, is apparent on the face of the proceedings, and may therefore be corrected. \nThe court has not considered the appellants as infected by the marine trespass committed by the captors of the Sarah and her cargo. Their operations commence with their purchase at St. Jago de Cuba; and the decree designed, and is thought to have been so expressed as to charge the owners with all the expenses which they would have incurred, had they made the pruchase themselves. Had they  done so, they must have incurred some expenses at the port of lading. Among these is certainly not to be estimated the price of the cargo; but any expense necessarily attendant upon the transaction, such as putting the cargo on board, may properly, under this decree, be charged to the owners. \nIt is obvious, too, that the owners, or the underwriters, if they represent the owners, had they been the purchasers, must have insured the vessel and cargo from St. Jago de Cuba to the United States, or must themselves have stood insurers;  in which latter case, the risk is deemed equal to the insurance. The decree, therefore, formerly rendered by this court, is understood to have entitled the appellants to insurance. \nThe question of interest is more doubtful; but this court is of opinion that the appellants ought not to be charged with interest. \nRestitution of the cargo was awarded. The property having been sold, the money proceeding from the sales is substituted for the specific articles. If this money remains in possession of the court, it carries no interest; if it be in the hands of an individual, it may bear interest, or otherwise, as the court shall direct. But it is not supposed that the party, to whom restitution is awarded, receives interest in such case, unless it be decreed by the court. This court did not decree interest; nor would interest have been decreed, in this case, had the particular fact of the sale been brought before them. \nThe circumstances of the case were such as to restrain the court from inserting in its decree any thing which might increase its severity. The loss was heavy; and it fell unavoidably on one of two innocent parties. The court was not inclined to add to its weight, by  giving interest in the nature of damages. The allowance of interest, therefore, in the court below is overruled. \nThe sentence of the circuit court is reversed. \nDissent by:", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. delivered the opinion of the court as follows, viz. \nThis case depends entirely on the acts of the legislature of Pennsylvania, respecting the registering of deeds. \nThe law of Pennsylvania, on this subject, had varied at different times; but as it stood in 1715, when the act passed which must decide this controversy, the  recording of a deed was not necessary to its validity; but deeds might be enrolled, and an exemplification was testimony in all courts. \nThe act of 1715 established an office of record in  each county in which deeds were to be recorded, and declared an exemplification from the record to be as good evidence as the original. This act, however, does not make the recording of a deed essential to its validitv. \nTo entitle a deed to be recorded, the act requires that it shall be acknowledged or proved \"before one of the justices of the peace of the proper county or city where the lands lie.\" \nIn this case the lands lie in different counties; and the deed was acknowledged before John Lawrence, one of the justices of the supreme court of Pennsylvania; and was recorded in the office for the city and county of Philadelphia, in which a part of the lands lie. The land, however, for which this suit was brought, lies in a different county. \nThe first question which presents itself in this cause is, was this deed properly proved? \nWere this act of 1715 now, for the first time, to be construed, the opinion of this court would certainly be, that the deed was not regularly proved. A justice  of the supreme court would not be deemed a justice of the county, and the decision would be, that the deed was not properly proved, and therefore not legally recorded. \nBut, in construing the statutes of a state on which land titles depend, infinite mischief would ensue, should this court observe a different rule from that which has been long established in the state; and in this case, the court cannot doubt that the courts of Pennsylvania consider a justice of the supreme court as within the description of the act. \nIt is of some weight that this deed was acknowledged by the chief justice, who certainly must have been acquainted with the construction given to the act, and that the acknowledgment was taken before another judge of the supreme court. It is also recollected  that the gentlemen of the bar, who supported the conveyance, spoke positively as to the universal understanding of the state, on this point, and that those who controverted the usage on other points, did not controvert it on this. But what is decisive with the court is, that the judge who presides in the circuit court for the district of Pennsylvania, reports to us that this construction was universally  received. \nOn this evidence the court yields the construction which would be put on the words of the act, to that which the courts of the state have put on it, and on which many titles may probably depend. \nThe next question is, was this deed recorded in such an office as to make the exemplification evidence? \nWithout reviewing all the arguments which have been urged from the bar, or all the sections of the act, it may be sufficient to observe, that this court is satisfied that, where a single tract of land is conveyed, the law requires the deed to be recorded in the office of the county  in which the land lies; but if several tracts be conveyed, it appears to this court that neither the letter nor the spirit of the act requires that the deed should be recorded in each county. \nIt is material in the construction of this act, that the validity of the deed is not affected by omitting to record it. Though not recorded, it is still binding to every intent and purpose whatsoever. The only legal effect produced by recording it is its preservation, by making a copy equal to the original. The principal motive, then, for requiring that it should be proved before a justice of the  particular county in which the land lies, and recorded in that county, is that which has been assigned at the bar. It is the additional security given by those provisions, that a deed, never executed, might not be imposed on the recorder. This object is as completely obtained by placing the deed on the records of that county in  which one of the tracts of land lies, as it court be if the deed conveyed no other tract. The verity of the deed is as completely secured in the one case as in the other. \nIt appears to the court also to be within the letter of the law. This deed was unquestionably properly admitted to record in the office of the city and county of Philadelphia. It conveyed lands lying within that city and county, and, on any construction of the act, might be there recorded. The act then proceeds to say, \"that the copies of all deeds, so enrolled, shall be allowed in all courts where produced, and are hereby declared and enacted to be as good evidence, and as valid and effectual in law, as the original deeds themselves.\" \nThe whole deed, then, is evidence by the letter of the act. The whole is a copy from the record. If the validity of the conveyance depended  on its being recorded in the county where the land lies, then a deed might be good as to one tract, and bad as to another.But the deed is valid, though not recorded; and the question is, whether the copy is evidence as to every thing it contains. The execution of the deed is one entire thing, and is proved so as to admit the instrument to record. The copy, if true in part, is true in the whole; and if evidence in part, must, under the act, and on the general principle that it is the copy of a record, be evidence in the whole. \nThere is no error in the judgment of the circuit court; and it is affirmed with costs. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. delivered the opinion of the court as follows: \nThis suit is brought by the holder of a promissory note to recover its amount from a remote endorsor. In a suit between the same parties, this court had previously determined that the plaintiff was without remedy at law. It is now to be decided whether he is entitled to the aid of a court of equity. \nIf, as was stated by the counsel for the defendants, the question is, whether a court of chancery  would create contracts into which individuals had never entered, and decree the payment of money from persons who had never undertaken to pay it, the time of this court has been very much misapplied indeed in attending to the laborious discussion of this cause. The court would, at once, have disclaimed such a power, and have terminated so extraordinary a controversy. \nBut the real questions in the case are understood to be, whether the plaintiffs, as  endorsees of a promissory note, have a right, under the laws of Virginia, to receive its amount from the endorsor on the insolvency of the maker; whether the defendants, as the original endorsors of the note, are ultimately responsible for it; and whether equity will decree the payment to be immediately made, by the person ultimately responsible, to the person who is actually entitled to receive the money. \nThis note came to the hands of M'Clenachan, endorsed in blank by Mandeville and Jamesson. M'Clenachan had a right to fill up the endorsement to himself, and he has done so. The law, as understood in Virginia, immediately implied an assumpsit from Mandeville and Jamesson to M'Clenachan to pay him the amount of the note, if he should use due diligence, and should be unable to obtain payment from the maker. M'Clenachan endorsed this note to the plaintiffs, and, by so doing, became liable to them in like manner as Mandeville and Jamesson were liable to him. \nThe maker having proved insolvent, the plaintiffs have a legal right to claim payment from M'Clenachan, and, on making that payment, M'Clenachan would be reinvested with all his original rights in the note, and would be entitled  to demand payment from Mandeville and Jamesson. \nIf there were twenty successive endorsors of a note, this circuitous course might be pursued, and,  by the time the ultimate endorsor was reached, the value of the note would be expended in the pursuit. This circumstance alone would afford a strong reason for enabling the holder to bring all the endorsors into that court which could, in a single decree, put an end to litigation. No principle adverse to such a proceeding is perceived. Its analogy to the familiar case of a suit in chancery by a creditor against the legatees of his debtor is not very remote. If an executor shall have distributed the estate of his testator, the creditor has an action at law against him, and he has his remedy against the legatees. The creditor has no action at law against the legatees. Yet it has never been understood that the creditor is compelled to resort to his legal remedy. He may bring the executor and legatees both before a court of chancery, which court will decree immediate payment from those who are ultimately bound. If the executor and his securities should be insolvent, so that a suit at law must be unproductive, the creditor  would have no other remedy than in equity, and his right to the aid of that court could not be questioned. \nIf doubts of his right to sue in chancery could be entertained while the executor was solvent, none can exist after he had become insolvent. Yet the creditor would have no legal claim on the legatees, and could maintain no action at law against them.The right of the executor, however, may, in a court of equity, be asserted by the creditor, and, as the legatees would be ultimately responsible for his debt, equity will make them immediately responsible. \nIn the present case, as in that which has been stated, the insolvency of M'Clenachan furnishes strong additional motives for coming into a court of chancery.Mandeville and Jamesson are ultimately bound for this money, but the remedy at law is defeated by the bankruptcy of an intermediate endorsor. It is only a court of equity which can afford a remedy. \n This subject may and ought to be contemplated in still another point of view. It has been repeatedly observed that the action against the endorsor is not given by statute. The contract on which the suit is maintained is not expressed, but is implied from the endorsement  itself, unexplained and unaccompanied by any additional testimony. Such a contract must, of necessity, conform to the general understanding of the transaction. General opinion certainly attaches credit to a note, the maker of which is doubtful, in proportion to the credit of the endorsors, and two or more good endorsors are deemed superior to one. But if the last endorsor alone can be made responsible to the holder, then the preceding names are of no importance, and would add nothing to the credit of the note. But this general opinion is founded on the general understanding of the nature of the contract. The endorsor is understood to pass to the endorsee every right founded on the note which he himself possesses. Among these is his right against the prior endorsor. This right is founded on an implied contract, which is not, by law, assignable. Yet if it is capable of being transferred in equity, it vests, as an equitable interest, in the holder of the note. No reason is perceived why such an interest should not, as well as an interest in any other chose in action, be transferible in equity. And if it be so transferable, equity will of course afford a remedy. The defendant  sustains no injury, for he may defend himself in equity against the holder as effectually as he could defend himself  against his immediate assignee in a suit at law. \nThe case put, of the sale and delivery of a personal thing, is not thought to be analogous to this. The purchaser of a personal thing does not, at the time of the contract, look beyond the vendor. He does not trace the title. It passes by delivery. But suppose the vendor held it by a bill of sale containing a warranty of title, and should assign that bill to his vendee; is it clear that, on loss of the property for defect of title, no recourse could  be had to the warrantor of that title? The court is not prepared to answer this question in the affirmative. \nIt is contended that the endorsee of the note holds it subject to every equity to which it was liable in the hands of the endorsor. \nIf this be admitted, it is not perceived that the admission would, in any manner, affect this case. \nIt is also contended that the plaintiff can only recover what he actually paid. \nWithout indicating any opinion on this point, the court considers it as very clear that the endorsement is prima facie evidence  of having endorsed for full value, and it is incumbent on the defendant to show the real consideration, if it was an inadequate one. \nUsury has been stated in the argument, but it is neither alleged in the pleadings, nor proved by the testimony. \nIt is urged that Mandeville and Jamesson are securities who have received no actual value, and that equtiy will not charge a security who is discharged at law.In support of this argument the case of a joint obligation is cited. \nIt is true, that, in the case of a joint obligation, the court has refused to set up the bond against the representatives of a security. But, in that case, the law had absolutely discharged them. In this case, Mandeville and Jamesson are not discharged. They are not released from the implied contract created by the endorsement. It is the legal remedy which is obstructed; the right is unimpaired, and the original obligation is in full force. \nIt is, then, the opinion of this court that, without referring to the depositions to which exceptions have been taken, a right exists in the holder of a promissory  note, at least where he cannot obtain payment at law, to sue a remote endorsor in equity. \nCertainly,  in such a case, the defendant has a right to insist on the other endorsors being made parties, but he has not done so; and, in this case, the court does not perceive that M'Clenachan is a party so material in the cause, that a decree may not properly be made without him. \nThe decree is reversed, and the defendants directed to pay the amount of the note to the plaintiffs. \nThe decree of the court was as follows: \nThe cause came on to be heard on the transcript of the record of the circuit court for the county of Alexandria, and was argued by counsel. On consideration whereof, the court is of opinion, that the decree of the said circuit court, dismissing the bill of the plaintiffs, is erroneous, and ought to be reversed; and this court doth reverse the same; and this court, proceeding to give such decree as the said circuit court ought to have given, doth decree and order, that the defendants pay to the plaintiffs the sum of 1,500 dollars, that being the amount of the note in the bill mentioned, together with interest thereon from the time the same became due. \n \n\n ", " \nOpinion \n\n \n \n MARSHALL, Ch. J. delivered the opinion of the court as follows, viz. \nThe material question in this case grows out of an exception in a policy of insurance. \nThe plaintiff insured a specified sum on the brig Richard, belonging to the defendant, \"at and from Tobago to one or more ports in the West Indies, and at and from thence to Norfolk;\" and the insurance is declared to be made against \"all risks, blockaded ports and Hispaniola excepted.\" \nThe Richard sailed from Tobago for Curracoa, which was then blockaded in fact, but the blockaded was not known at Tobago when the vessel sailed, nor was it known to the captain until he was warned off by a British ship of war. He then sailed for Norfolk; but on his voyage was captured by a French privateer, by whom the vessel was plundered to a considerable extent, and ordered to St. Domingo for trial. \nThe question is, whether this risk comes within the exception contained in the policy. \nThe counsel has considered the exception as a warranty; but the court cannot so consider it. The words are the words of the  insurer, not of the insured; and they take a particular risk out of the policy which, but for the exception, would be comprehended in the contract. \n What is that risk? \nPolicies of insurance are generally the most informal instruments which are brought into courts of justice; and there are no instruments which are more liberally construed, in order to effect the real intention of the parties, if that intention can be clearly ascertained. \nIn the part of the policy on which the present controversy depends, a few words are given, to which others must be subjoined in order to complete the sense, and give a full description of the risk against which the underwriters were unwilling to insure. These words are, \"blockaded ports and Hispaniola excepted.\" \nIt is reasonable to suppose that a voyage to Hispaniola was not insured. The assured has notice of this, and if he sails for Hispaniola, the voyage is entirely at his own risk. Against the risks of such a voyage, whatever they may be, the underwriters will not insure. It is a specified place, excluded, by consent, from the policy. The perils attending the voyage are understood, whether they arise from the sea, or otherwise,  and are all excepted. The motives for making the exception do not appear, nor can they be inferred from the instrument. \nThe plaintiff in error contends that the same reasoning applies, in its full extent, to the exception of blockaded ports; but the court does not think so. \nHispaniola is excepted absolutely from the policy; but other ports are within the terms of the voyage insured, if they be not blockaded. It is their character, as blockaded ports, which excludes them from the insurance. Their being excepted by this character is thought to justify the opinion, that it is the risk attending this character which produces the exception, and which is the risk excepted. The risk of a blockaded port, as a blockaded port, is the risk incurred by breaking the blockade. This is defined  by public law. Sailing from Tobago for Curracoa, knowing Curracoa to be blockaded, would have incurred this risk, but sailing for that port, without such knowledge, did not incur it. \nThe underwriter had no objection to a voyage to Curracoa, other than might arise from its being blockaded. The dangers of the blockade, therefore, were the particular dangers which induced the exception, and  it seems to the court that the exception ought not to be extended beyond them. If this be correct, the circuit court committed no error in refusing to give the opinion which was required by the counsel on this point. \nThe sentence in this case is sufficiently authenticated to be received as evidence. Being a court acting under the law of nations, its proceedings may be proved according to the mode observed in the present case; and were this doubtful, that doubt would be removed by the circumstance that it is the form stipulated by treaty. \nThe defendant is not at liberty to except to his own depositions, because he does not produce proof of his having given notice to the plaintiff. The admission of notice by the plaintiff is certainly sufficient, if notice to him was necessary, to enable him to use the defendant's deposition. \nThe fourth bill of exceptions depends on the principles stated by the court, in the first part of this opinion. \nThere is no error in the judgment of the circuit court, and it is affirmed, with costs. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. delivered the opinion of the court as follows: \nThis is an appeal from a decree of the court for the district of Kentucky, by which Taylor was directed to convey to Bodley and others a part of a tract of land to which he held an elder patent, but to which Bodley and others claim the better right under a junior patent. The judge of the district court having directed such part of the land held by Taylor to be conveyed to Bodley and others, as appeared by certain  rules, which he has applied to the case, to be within their claim, and not within Taylor's location, and having dismissed their bill as to the residue, each party has appealed from his decree. \nPrevious to any discussion of the rights of the parties, it has become necessary to dispose of a preliminary question. \nThe defendant in the court below objects to the jurisdiction of a court of equity, and contends not only that the present case furnishes no ground of jurisdiction, upon general principles, but that the land law under which both titles originate, in giving a remedy by which rights under entries might be decided previous to the emanation of a patent, has prohibited an examination of the same question after a patent shall have issued. \nHad this been a case of the first impression, some contrariety of opinion would perhaps have existed on this point. But it has been sufficiently shown that the practice of resorting to a court of chancery in order to set up an equitable against the legal title, received, in its origin, the sanction of the court of appeals,  while Kentucky remained a part of Virginia, and has been so confirmed by an uninterrupted series of decisions as  to be incorporated into their system, and to be taken into view in the consideration of every title to lands in that country. Such a principle cannot now be shaken. \nBut it is an inquiry of vast importance whether, in deciding claims of this description, a court of equity acts upon its known, established and general principles, or is merely substituted for a court of law, with power to decide questions respecting rights under the statute, as they existed previous to the consummation of those rights by patent. \nIt has been argued that the right acquired by an entry is a legal right, because it is given by a statute, that it is the statutory inception of a legal title which gives to the person making it a right, against every person not having a prior entry, to obtain a patent and to hold the land. The inference drawn from this is, that as the law affords no remedy against a person who has defeated this right by improperly obtaining a prior patent, a court of chancery, which can afford it, ought to consider itself as sitting in the character of a court of law, and ought to decide those questions as a court of law would decide them, if capable of looking beyond the patent. \nThis reasoning  would perhaps be conclusive if a court of chancery was, by statute, substituted in the place of a court of law, with an express grant of jurisdiction in the case. But the jurisdiction exercised by a court of chancery is not granted by statute; it is assumed by itself: and what can justify that assumption but the opinion that cases of this description come within the sphere of its general action? In all cases in which a court of equity takes jurisdiction, it will exercise that jurisdiction upon its own principles. It is believed that no exception to this rule is to be found in the books, and the state of land titles in Kentucky is not believed to furnish one. The true ground of the jurisdiction  of a court of equity is, that an entry is considered as a record of which a subsequent locator may have notice, and therefore must be presumed to have it; consequently, although he may obtain the first patent, he is liable, in equity, to the rules which apply to a subsequent purchaser with notice of a prior equitable right. This certainly brings the validity of the entires before the court, but it also brings with that question every other which defeats the equity of the plaintiff. \n The court, therefore, will entertain jurisdiction of the cause, but will exercise that jurisdiction in conformity with the settle principles of a court of chancery. It will afford a remedy which a court of law cannot afford, but since that remedy is not given by statute, it will be applied by this court as the principles of equity require its application. \nNeither is the compact between Virginia and Kentucky considered as affecting this case. \n If the same measure of justice be meted to the citizens of each state, if laws be neither made nor expounded for the purpose of depriving those who are protected by that compact, of their rights, no violation of that compact is perceived. \nThe court will proceed, then, to inquire into the rights of the parties, and, in making this inquiry, will pay great respect to all those principles which appear to be well established in the state in which the lands in controversy lie. \nTaylor holding the eldest patent, it is necessary that the complainants below should found their title on a good entry. The validity oftheir entry, therefore, is the first subject of examination. \nIt was made on the 17th of October, 1783, and is in these words;  \"Henry Crutcher and John Tibbs enter 10,000 acres of land on a treasury warrant, beginning at a large black ash and small buckeye marked thus, I.T. on the side of a buffalo-road  leading from the lower bule licks a N.E. course, and about seven miles N.E. by E. from the said blue licks,\" &c. \nThe only objection to this entry is, that the beginning is uncertain. \nWere the validity of this objection to be admitted, it would shake almost every title in Kentucky. If it be recollected that almost every acre of good land in that state was located at a time when only a few individuals, collected in scattered forts or villages, encroached on the rights of the savages and wild beasts of the country, that enither these sparse settlers, nor those hardy adventurers who travelled thither in quest of lands, could venture out to explore the country, without exposing their lives to imminent hazard, that many of those who had thus explored the country, and who made locations, were unlettered men, not only incapable of expounding the laws, but some of them incapable of reading, it is not wonderful that the courts of Kentucky should have relaxed, in some degree, the rigour of the rule requiring  an impracticable precision in making entries, should have laid hold of every circumstance which might afford that certainty which the law has required, and should be content with that reasonable certainty which would enable a subsequent locator, by the exercise of a due degree of judgment and liligence, to locate his own lands on the adjacent residuum. \nThe entry of Crutcher and Tibbs possesses this reasonable certainty. \nThe blue licks was a place of general notoriety, and there appears to have been no difficulty in ascertaining the point from which the meansuration should commence. There being only one of the three roads leading from that point, which ran nearly a N.E. course, no subsequent locator could doubt on which road this loan was placed. The entry having called for visible objects on the road about  seven miles from the licks, those visible objects might to discovered without any extraordinary exertion; and if they could not be discovered, then that call, according to the course of decisions in Kentucky, would be discarded, and about seven miles would be considered as seven miles. But those objects remained, and it appears that no difficulty has arisen, or ought  to arise, on this, point. The jury have found it to be the beginning called for in the entry. \nThe entry, therefore, of Crutcher and Tibbs is sufficiently certain, and the court will proceed to examine the entry and survey of Taylor. \nThis entry being the last line of a chain commencing with Jacob Johnson, it is necessary to fix Jacob Johnson, in order to ascertain the position of Taylor. \nJacob Johnson's title is a settlement and pre-emption; a certificate for which was granted by the commissioners, on the 7th day of January, 1780, in the following terms. \nPeter Johnson, ehir at law of Jacob Johnson, deceased, this day claimed a settlement and pre-emption to a tract of land in the district of Kentucky, lying on the east side of the buffalo-road leading from the blue licks to Limestone, nine miles from the lick on the upper road, by the said decedent's raising a crop of corn in the years 1776. Satisfactory proof being made to the court, they are of opinion that the said Peter Johnson, &c. has a right to a settlement of 400 acres of land to include the above location, and the pre-emption of 1,000 acres adjoining, and that a certificate issue accordingly. \nOn the 21st of February,  1780, this certificate, so far as respected the settlement of 400 acres, was entered with the surveyor. \nIt is the opinion of the court that the 400 acres  of land should lie entirely on the east side of the road, that it should begin at the distance of nine miles, and that those miles should be computed not by a straight line,but according to the meanders of the road. \nIn this respect the court preceives a clear distinction between a call for one place by its distance from another, if the intermediate space be entirely woods, or if a stream, which cannot well be followed, passes from the one to the other, and where a road is called for, which conducts individuals from point to point. The distance of places from each other is not generally computed by a stream not navigable, but is always computed by a road which is travelled. It is, therefore, the opinion of the court that where, as in this case, there is not other call in the entry showing a contrary intent, and the entry is placed on a road at a certain distance from a given point by which the road passes, the distance is to be computed by the meanders of the road, and not by a straight line. \nThe beginning of Johnson's  settlement being gound, and its western side being placed along the road, the next inquiry is, in what manner the land is to be surveyed. \nIn order to give certainty to locations of this description, the courts of Kentucky have uniformly determined that they shall be underatood as being made in a square. Johnson's line upon the road, therefore, must extend along the road until two lines at right angles from each end of this base shall, with a third line parallel to the general course of the road, include, in a figure which, if the road be reduced to a straight line, would make a square, the quantity of 400 acres on the east side of the road. \nThe next link in this chain of entries, on which the title of Taylor depends, is Ambrose Walden's. \nOn the 22d of May, 1780, Ambrose Walden entered  1,333 acres on the east side of  Jacob Johnson's settlement and pre-emption, on the waters of Johnson's fork, a branch of licking, to include two cabins on the north side of said fork, built by Simon Butler, and to run eastwardly for quantity. \nThe cabins, it is said cannot be foundf or, if found, cannot be distinguished. The waters of Johnson's fork would be too vague, and,  therefore, the validity of this entyr must depend on the call for Johnson's settlement and pre-emption. \nThis is said to be insufficient, because the pre-emption had not, at that time, been located with the surveyor, and the certificate of the commissioners was no location. Johnson's pre-emption, therefore, had, on the 22d of May, 1780, no locality, a subsequent entry could not depend upon it; for it might be placed in any situation, or in any form, provided it be so placed as to adjoin his settlement in any point. \nThe argument with respect to the pre-emption appears to the court to be conclusive. This pre-emption right certainly had no locality on the 22d of May, 1780, and an entry made to depend entirely on it would have been too vague, too uncertain, to be maintained. But it does not follow that the entry of Ambrose Walden is void. He does not call singly for the pre-emption, he calls for \"the east side of Johnson's settlement and pre-emption right;\" and it seems to the court that a fair application of the principles which have governed in Kentucky in similar cases, will maintain this location. \nThe settlement was actually located; the pre-emption, at the time, had no other  than a potential existence; and the uniform course of decisions appears to have been to discard one call which is either impossible or uncertain, and to support the entry, if there be other calls which are sufficiently certain. The decisions have gone so far as to dismiss a part of the description of a single call, if other terms of  description be sufficient to ascertain the thing called for. Now the call for the settlement right is valid and certain; and the court is not of opinion that this certainty is rendered uncertain by being united to the call for a pre-emption which had no real existence. \nThe call appears to be substantilly the same as if it had been for the land of Johnson. His settlement and pre-emption was perhaps the name which, in common parlance, designated this land even before the location of the pre-emption, because it was appendant to the settlement. It has been decided that a call for the land would be good, and the court thinks that decision applicable to this case. \nAgainst this has been urged the doubt which a subsequent locator would have entertained at the time, whether Johnson might not have been permitted to locate his pre-emption on any  land adjoining his settlement, and whether Walden's entry calling for that pre-emption might be decided to be good, and to be placed so as to bind upon it. This doubt, it is said, though now removed, than existed, and would have operated on the mind of the subsequent locator. \nThe force of this argument will not be denied. But it must also be admitted that it applies with equal strength to the course of artificial reasoning which has governed the decisions of the courts of Kentucky, and on which the titles of the people of that country depend. Subsequent locators must have doubted in what manner any of these questions would be decided. But having been decided, the certainty which they have introduced is carried back to the time when the location was made, and affirms that location. \nIt has also been said that it is uncertain which side of Johnson's settlement is the east side, and that, in point of fact, the upper side, or that furthest  from the blue licks, faces the east more nearly than any other. \nHowever this fact may be, the court is of opinion that the terms of Johnson's entry designate his east side. His settlement is to lie on the east side of the road. The  road, then, in contemplation of the locator, forms the west side, and the side opposite the road must be the east side. The entry must have been no understood by all subsequent locators, and when they call for his east side, the intention to place themselves on the side opposite the road is sufficiently intelligible. \nIn this, as in other difficulties which occur in the course of the inquiry, it is material to observe that the bill does not charge Taylor's entry to be void for uncertainty. On the contrary it impliedly admits the certainty of his location, and charges that his survey does not conform to it. The real question, then, is not whether Taylor shall be surveyed at all, but where he shall be placed. \nThe entry of Ambrose Walden, then, will lie on the east side of Johnson's settlement, that is, on the side opposite the road; and, this point being established, the manner in which his land is to be surveyed is free from further doubt. It is to be laid off is a square, the centre of the base line of which is to be the centre of the south-eastern line of Johnson's settlement. \nThe next entry to be considered is that of John Walden. He enters 1,666 2-3 acres joining Ambrose  Walden, on the south and south-east, and to run east and south-east for quantity. \nAlthough Ambrose Walden has no south side, yet it is sufficiently apparent that his sought-west side was intended by the locator. The difficulty arises from the subsequent call of the entry to run east and south-east for quantity. A line drawn east from Ambrose Walden's south-western corner would pass  through the middle of his land, and a line drawn south-east from the same corner would pass either through or so near his land as to make it almost impossible to suppose that the locator could have intended to make so long and narrow a triangle. The reasonable partiality of Kentucky for rectangular figures must, therefore, decide the shape of John Walden's land, and regulate the manner in which this call of his entry is to be understood. Ambrose Walden's north-western line must be extended to the south, and a line must be drawn due east from his eastern corner, so that a line parallel to his south-eastern line intersecting a line drawn south-east from the extremity of the north-western line of Ambrose Walden continued shall lay off 1,666 2-3 acres of land in  equal quantities on  the northern and south-eastern sides of Ambrose. \nIt is not to be disguised that there is much difficulty in placing John Walden, but the court can I erceive no mode of placing him more conformable to the principles which prevail in Kentucky than that which it has adopted. \nWe are now brought to Taylor's entry. \nOn the 22d of May, 1780, John Taylor enters 3,000 acres adjoining John Walden on the north side of Johnson's fork of licking, on the east and south-east side, running up and down said creek, and north for quantity, to include an improvement made by Jaclob Drennon and Simon Butler. \nThere is to John Walden's land no east side, nor any side so nearly east as the south-east side. The word side, being in the singular number, and the same side answering, better than any other, both parts of the description, the land must lie on the south-east side. \nIt is also thought to be the more reasonable construction of the entry that the words, on the north side of Johnson's fork, refer to the situation of  John Walden's land, not to the location of Taylor's. But this is probably not important in the case. Taylor is to lie on the south-east of Walden, to include an improvement  made by Drennon and Butler, to run up and down the creek, and north for quantity. \nWith these calls, it would have been the opinion of the court that Taylor could not cross the creek, had not his entry called for an object on the south side of the creek. That object is the improvement made by Jacob Drennon and Simon Butler. \nIt has been said that the country was covered with cabins, and that therefore this call was no designation of the land that was located. This argument is correct so far as it is urged to prove that this would not be sufficient, as a general description, to enable subsequent locators to say in what part of the country this entry was made. Neither would the letters I.T. marked on a tree answer this purpose. But, when brought into the neighbourhood by other parts of the description, these letters serve to ascertain the beginning of the entry under which the claim adversary to that of Taylor is supported. So Taylor informs subsequent locators of the neighbourhood in which his land lies, by calling for the south-east side of John Walden's entry, on the north of Johnson's fork, which is found by a reference to other entries which commence at a point of public notoriety.  When brought to the south-east side of John Walden, he is near the cabin called for, and it does not appear that there was, in the neighbourhood, any other cabin which this entry could possibly be understood to include. This part of the description, then, will carry Taylor to the south side of Johnson's fork, and, if permitted to cross that fork, the favourite figure of the square must be resorted to. Against this it is said that, in such a case, the rule of Kentucky will carry him no further than barely to include the object of his call. But this rule cannot apply to this case, because it would give a survey the breadth of which would not be one third of its length. \n It is impossible to look at the general plat returned in this case without feeling a conviction that the surveyor considered that fork which, in the plat, is termed mud lick fork, as Johnson's fork; and there is no testimony in the cause which shows that, when this location was made, that middle stream which runs through Taylor's survey was denominated Johnson's fork. The finding of the jury, however, that the roads and water-courses are rightly laid down, must induce the opinion that this fact was proved  to them. \nIn a case where the mistake is so obvious, the rule which, under circumstances so doubtful, relative to place, deprives the person, in surveying whose property the mistake has been made, of his legal title, appears to be a severe rule to be adopted in a court of equity. But such is the situation of land titles in Kentucky, that the rule must be inflexible. \nTaylor, then, must adjoin John Walden on his south-east side, where that line crosses Johnson's fork, if it does cross it, and if it does not, then at its south-eastern extremity, which will be nearest Johnson's fork. If a square formed upon the whole line shall contain less than three thousand acres, then two lines are to be extended due north until, with a line running east and west, the quantity of three thousand acres shall be contained in the whole figure. If such a square shall contain more than three thousand acres, then it is to be laid off on so much of Walden's line as to contain the exact quantity. \nThis being the manner in which it appears to the court that Taylor's entry ought to be surveyed, it remains to inquire whether, under the principles which govern a court of equity in affording its aid to an equitable  against a legal title, the complainants below ought to recover any, and, if any, what part of the lands surveyed by Taylor, and, if any, what terms are to be imposed upon them. \n The entry as well as patent of Taylor is prior to that under which the complainants in the district court assert their title. Of the entries made within their location, therefore, they had that implied notice which gives a court of equity jurisdiction of this cause. They cannot object to the operation of a principle which enables them to come into court. But, in addition to this principle, they must be considered as having notice, in fact, of these locations. The position of the entries of both plaintiffs and defendant is ascertained by calling for certain distances along the same road from the same object. Crutcher and Tibbs, therefore, when they made their location, knew well that they included the Waldens and Taylor, and that their entry could give them no pretensions to the lands previously entered by those persons. If, by any inadvertence, the Waldens and Taylor have surveyed land to which Crutcher and Tibbs were entitled, and have left to Crutcher and Tibbs land to which the Waldens  and Taylor were entitled, it would seem to the court to furnish no equity to Crutcher and Tibbs against the legal title which is held by their adversaries, unless they will submit to the condition of restoring the lands they have gained by the inadvertence of which they complain. \nThe court does not liken this inadvertent survey of lands, not within the location, to withdrawing of the warrant and re-entering it in another place. The latter is the act of the  mind intentionally abandoning an entry once made: the former is no act of the mind, and so far from evidencing an intention to abandon, discovers an intention to adhere to the appropriation once made. Although their legal effect may be the same, yet they are not the same with a person who has gained by the inadvertence, and applies to a court of equity to increase that gain. \nWas this, then, a case of the first impression, the court would strongly incline to the opinion  that Bodley and Hughes ought not to receive a conveyance for the lands within Taylor's survey, and not within his entry, but on the condition of their consenting to convey to him the lands they hold which were within his entry and are not  included in his survey. But this is not a case of the first impression. The court is compelled to believe that the principle is really settled in a manner different from that which this court would deem correct. It is impossible to say how many titles might be shaken by shaking the principle. The very extraordinary state of land title in that country has compelled its judges, in a series of decisions, to rear up an artificial pile from which no piece can be taken, by hands not intimately acquainted with the building, without endangering the structure, and producing a mischief to those holding under it, the extent of which may not be perceived. The rule as adopted must be pursued. \nTaylor, then, must be surveyed according to the principles laid down in this decree, and must convey to the plaintiffs below the lands lying within his patent and theirs, which were not within his entry. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. delivered the opinion of the court as follows, viz. \nBy the agreement of the 27th of September, 1799, the plaintiffs bound themselves, in the event of not paying, on the 2d of January, in bills of exchange, or money, the amount of the award to be rendered between the parties, to assign and transfer, on that day, to the defendant, a contract they had made with Graham, by which they had sold to him a tract of land containing 6,000 acres for the sum of 18,000  dollars, payable at different times, with interest. They also bound themselves to execute an irrevocable power of attorney enabling the defendant, in their names, to recover the possession of the land, or to enforce  the payment of the purchase-money, at his election. \nThe defendant covenanted to accept this assignment, towards the discharge of the award, and, if it should exceed the amount thereof, to pay the excess. \nOn the part of the defendant it has been contended that this assignment was to be received as security for, and not as payment of, the debt due to Dunlop & Co. But on this point it is impossible to entertain a doubt. The contract itself is conclusive. The word \"towards\" was obviously introduced because, the award not being then made, it was uncertain whether the assignment would completely discharge its amount. But the words of the agreement admit of no other construction than that it was to be received either in part or in full payment,  as the sum awarded might be of a greater or less amount than the stipulated value of the contract to be assigned. All the testimony connected with the agreement of September, 1799, tends to confirm this construction. \nThe next inquiry respects the transactions of the 2d of January, 1800. The plaintiffs insist, and the defendant denies, that the tender made by Hepburn and Dundas on that day was a legal offer to do what they had covenanted  to perform. \nThe efficacy of the assignment itself is not questioned; but it is contended on the part of the defendant that the instrument is vitiated by the clause which is introduced into it, reciting, as a part of the consideration on which it was made, that a release of all claims and demands whatsoever, on the part of John Dunlop & Co. against them, had been given. \n The contract of September, 1799, certainly does not, in terms, stipulate for such a release; and if this recital in the deed of assignment could possibly prejudice John Dunlop & Co. that circumstance would unquestionably invalidate the tender. But if it should be deemed an unimportant recital, then the tender is a substantial performance of the contract, so far as it was to be performed on the 2d of January, 1800, and at least imposed on Colin Auld the duty of preparing an unexceptionable deed, and demanding its execution. \nIt has already been stand that, under the agreement of September, 1799, the assignment of Graham's contract was to be received in payment, and consequently that assignment, accompanied with a proper power of attorney, would discharge the award as fully as a payment in bills of exchange  or money. Had the deed, therefore, limited its recital to a discharge of all claims and demands under the award, it would have been strictly correct; for to such a discharge Hepburn and Dundas were entitled. The deed of assignment, properly executed and received, and the power of attorney would, in law, have been a full payment of the award; and the subsequent claims of John Dunlop & Co. would grow out of the agreement of September, 1799. \nThe inquiry, whether the general terms of the recital affords any substantial objection to the deed, produces two questions. \n1. Could John Doulop & Co. have had any other claims and demands on Hepburn and Dundas, than were comprehended in this award? \n2. Would this recital in the deed of assignment impair those claims which grew out of the agreement? \n1. The papers themselves sufficiently show that every claim whatever of John Dunlop & Co. on Hepburn and Dundas was settled in the award. The  general complexion of the agreement of September, 1799, proves this; but the particular stipulation to give \"a full receipt and discharge of all claims and demands of John Dunlop & Co. against them,\" in the event of payment of the award being  made in money or bills of exchange, places the subject beyond any doubt. Dunlop & Co. had no claims and demands on Hepburn and Dundas, which were not settled in the award. \n2. Could this recital impair the rights of Dunlop & Co. under the agreement of 1799? \nThe covenants of that agreement which were not completely satisfied were, 1st. That Hepburn and Dundas would not, after executing the deed of assignment, interfere with the measures which Colin Auld might think proper to pursue for the recovery of either the land sold to Graham, or the money due under Graham's contract; 2d. That they would convey the said lands in fee-simple, after the termination of the suit then depending, to the person who should be decided to be entitled to them. \n1. The covenant not to interfere was not a present duty. The obligation it created did not come into existence until after the execution of the deed of assignment. It was to be a consequence of that deed. At the time of its execution, this was not a claim or a demand. Taking the words in their most literal sense, the covenant not to interfere would not, in the opinion of the court, be released by them: but the court is also of opinion that,  if this was in any degree doubtful, these general terms would be restrained by the manifest intent of the parties, apparent on the face of the papers. \n2. This release could not discharge the obligation to convey the lands, after the termination of the suit with Graham, for the reasons assigned against the foregoing objection, and for this additional reason; the deed intended to transfer to  Auld all the rights of Graham under the contract, and is so expressed; and one of the covenants in the contract assigned was, to make a conveyance with a general warranty of a title free from all encumbrances. \nThe recital, then, presents no solid objection to the deed of assignment, because it could not impair the rights of Dunlop & Co. Yet it is unusual and unnecessary, and had Colin Auld prepared a deed which was perfectly unexceptionable, and Hepburn and Dundas had refused to execute it, this court, although the tender might have been good at law, would probably have held them responsible for any injury which might have been sustained in consequence of such refusal. \nThe power of attorney, which was tendered at the same time with the deed of assignment, appears entirely unexceptionable. \n It is, then, the opinion of the court that, on the 2d of January, 1800, Hepburn and Dundas offered to do every thing which it was at that time incumbent on them to do; and that the tender made on that day, with the refusal of that tender, do in law amount to a performance, so far as to place Hepburn and Dundas in the same situation, with regard to the claims of Dunlop & Co. under the award, as if Colin Auld had accepted the deed. This, however, did not discharge them from the duty of executing a proper deed when required, nor from the duty of making conveyances for the land which was the subject of the agreement of September, 1799. \nIf a doubt existed on this point, the subsequent conduct of Colin Auld would, in a court of equity, amount to a waiver of the day, so far as respects the tender of the deed, and a consent to accept such deed at an after day within a reasonable time. \nThe subsequent demand of a deed by Colin Auld, when he tendered the money which was due on account  of the excess of value in the estimated price of the land over the sum  awarded to John Dunlop & Co. was made in a manner, and under circumstances, which are not deemed reasonable. Hepburn  and Dundas had a right to consider and to take counsel on the deed they were required to execute; and although their delay was unnecessarily great, yet the offer they made might have been acceded to. In fact, they might reasonably insist on leaving the transaction on the ground on which it was placed by the contract of September, 1799, which would have been done in a manner free from all exception by executing such a deed as that tendered on the 2d of January, 1800, after striking out that part of the recital which respected the release. \nThe interference of Hepburn and Dundas, in accommodating the suit with Graham, is also urged as an objection to their conduct. They had certainly no right to interfere without the consent of Colin Auld. But when the correspondence is inspected, and it is perceived that they interfered only to effect the object he had himself desired, and which he had avowed his own inability to effect without their consent, the interference must be considered as innocent in point of intention, and unproductive of injury in fact. \nThe court, then, perceive nothing in the conduct of the plaintiffs, up to the decision of the suit with Graham, which ought to defeat  their right to demand a specific performance of this contract. Could they at that time have conveyed a good title, Colin Auld ought to have accepted it. \nIt is alleged that the title, sold by the heirs of West to Hepburn and Dundas, was not a title to 6,000 acres of land in severalty, but an undivided interest in a much larger tract, and that, as this purchase was made, not for the purpose of acquiring an estate, but for the purpose of immediately selling and paying a debt which Auld was authorized to collect, the time of executing the contract is very material. \n It is not to be denied that circumstances may render the time material; and the court does not decide that this case is not of that description. But the majority of the court is of opinion, that the estate is to be considered as an estate held in severalty. \nThat a complete partition was made by an agreement, binding on all the parties who were interested, is in full proof. This partition would unquestionably have been protected in equity, and the majority of the court conceive that after such a lapse of time, and such a long separate possession, a deed of partition ought to be presumed; and that the court,  in which the verdict in the ejectment against Graham was found, might so have directed the jury. \nIt remains, then, only to inquire whether Hepburn and Dundas hold a title under West, which is so free from exception that the defendant ought to be decreed to take it. \nLong previous to the contract with Colin Auld, Hepburn and Dundas had obtained deeds from all the devisees of John West, jun. who were entitled to undivided parts of the 6,000 acres lying on the Ohio. But the deeds from Thomas West, and Hugh West, were not recorded, and the privy examination on Mrs. Bronaugh, one of the devisees, does not appear. By her deed, therefore, nothing passed, and the deeds of Thomas and Hugh West were liable to very serious objections. \nHad Colin Auld refused to receive a conveyance from Hepburn and Dundas after the termination of Graham's suit, because they were unable to make a good title, the objection would certainly have been entitled to very serious consideration. But his rejection of the conveyance then offered was not induced by any defect in the title. He previously determined not to receive a conveyance, because Graham's contract had not been assigned in such manner as he conceived  to be a full execution of  the agreement of September, 1799. These omissions, then, to record the deeds of Thomas and Hugh West, and the total want of title as to Mrs. Bronaugh's part, have produced no real inconvenience to Colin Auld. Had the title been unexceptionable, it would still have been refused; and this contest would still have been carried on with the same determined perseverance which marks the conduct of the parties. Under these circumstances, it is the opinion of the majority of the court, that this case ought to be governed by those general principles which regulate the conduct of a court of chancery in decreeing a specific performance, if the defect of title, which existed at the time of contract, be cured before the decree. \nAre Hepburn and Dundas now able to convey a perfect title? \nMrs. Bronaugh and Mrs. Turner, two of the devisees of John West, jun. are dead. On the death of Mrs. Bronaugh, her real estate descended on her brothers and sisters, who were her coheirs. Deeds of confirmation from Hugh and John West, and from Dade and wife have been obtained. Thomas West joined in the deed from Bronaugh and wife for the purpose of releasing his supposed  reversion; but there is no conveyance from Francina Turner. \nThe court is not satisfied that Thomas West, by uniting in the deed for the purpose of conveying his reversionary interest, has conveyed a title which afterwards descended on him or has estopped himself from asserting that title. To Thomas West's part of Mrs. Bronaugh's 1,000 acres, then, Hepburn and Dundas have no title. \nOn the death of Francina Turner, her interest in her sister Bronaugh's estate, passed to her brothers and sister, who were her coheirs. To Thomas West's share Hepburn and Dundas have no title. \n The undivided interest of Thomas West, which descended on him, at the death of Mrs. Bronaugh, is 166 2-3 acres; and the undivided interest which descended on him, at the death of Francina Turner, is 41 1-3 acres; making 208 acres, to which Hepburn and Dundas have, at this time, no title. \nThe omission to record the deed from Thomas West is not cured; and this court is now to decide whether, under these circumstances, Hepburn and Dundas are entitled to claim a specific performance. \nHad there been simply a deficiency of 208 acres, the majority of the court would have considered it as a case for compensation;  or had the parties entitled to this land been before the court, a division might possibly have been directed, and compensation for that quantity  ordered: but, however this might be, as persons not before the court hold this interest, no order can be made respecting it; and it may very much embarrass those acts for asserting the title which may possibly be necessary. The part actually conveyed by Thomas West, too, never having been confirmed by a deed from himself or his heirs, properly recorded, might impose on Colin Auld the necessity of bringing a suit in chancery to perfect his title; or of being subjected to the inconveniences constantly attending the establishment of a deed not recorded, and the risks inseparable from such a deed. \nThis, therefore, is thought by a majority of the court to be a case not proper for a specific performance; and the bill is to be dismissed. \nDissent by:", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. delivered the opinion of the court as follows: \nTwo points have been made in this cause. \n1. That a corporation, composed of citizens of  one state, may sue a citizen of another state, in the federal courts. \n2. That a right to sue in those courts is conferred on this bank by the law which incorporates it. \nThe last point will be first considered. \nThe judicial power of the United States, as defined in the constitution, is dependent, 1st. On the nature of the case; and, 2d. On the character of the parties. \nBy the judicial act, the jurisdiction of the circuit courts is extended to cases where the constitutional right to plead and be impleaded, in the courts of the union, depends on the character of the parties; but where that right depends on the nature of the case,  the circuit courts derive no jurisdiction from that act, except in the single case of a controversy between citizens of the same state, claiming lands under grants from different states. \nUnless, then, jurisdiction over this cause has been given to the circuit court by some other than the judicial act, the bank of the United States had not a right to sue in that court, upon the principle that the case arises under a law of the United States. \nThe plaintiffs contend that the incorporating act confers this jurisdiction. \nThat act creates the corporation, gives it a capacity to make contracts and to acquire property, and enables it \"to sue and be sued, plead and be impleaded, answer and be answered, defend and be defended, in courts of record, or any other place whatsoever.\" \nThis power, if not incident to a corporation, is conferred by every incorporating act, and is not understood to enlarge the jurisdiction of any particular court, but to give a capacity to the corporation to  appear, as a corporation, in any court which would, by law, have cognisance of the cause, if brought by individuals. If jurisdiction is given by this clause to the federal courts, it is equally given  to all courts having original jurisdiction, and for all sums however small they may be. \nBut the 9th article of the 7th section of the act furnishes a conclusive argument against the construction for which the plaintiffs contend. That section subjects the president and directors, in their individual capacity, to the suit of any person aggrieved by their putting into circulation more notes than is permitted by law, and expressly authorizes the bringing of that action in the federal or state courts. \nThis evinces the opinion of congress, that the right to sue does not imply a right to sue in the courts of the union, unless it be expressed. This idea is strengthened also by the law respecting patent rights. That law expressly recognises the right of the patenteeto sue in the circuit courts of the United States. \nThe court, then, is of opinion, that no right is conferred on the bank, by the act of incorporation, to sue in the federal courts. \n2. The other point is one of much more difficulty. \nThe jurisdiction of this court being limited, so far as respects the character of the parties in this particular case, \"to controversies between citizens of different states,\" both parties must  be citizens, to come within the description. \nThat invisible, intangible, and artificial being, that mere legal entity, a corporation aggregate, is certainly not a citizen; and, consequently, cannot sue or be sued in the courts of the United States, unless the rights of the members, in this respect, can be exercised in their corporate name. If the corporation  be considered as a mere faculty, and not  as a company of individuals, who, in transacting their joint concerns, may use a legal name, they must be excluded from the courts of the union. \nThe duties of this court, to exercise jurisdiction where it is confered, and not to usurp it where it is not conferred, are of equal obligation. The constitution, therefore, and the law, are to be expounded, without a leaning the one way or the other, according to those general principles which usually govern in the construction of fundamental or other laws. \nA constitution, from its nature, deals in generals, not in detail. Its framers cannot perceive minute distinctions which arise in the progress of the nation, and therefore confine it to the establishment of broad and general principles. \nThe judicial department was  introduced into the American constitution under impressions, and with views, which are too apparent not to be perceived by all. However true the fact may be, that the tribunals of the states will administer justice as impartially as those of the nation, to parties of every description, it is not less true that the constitution itself either entertains apprehensions on this subject, or views with such indilgence the possible fears and apprehensions of suitors, that it has established national tribunals for the decision of controversies between aliens and a citizen, or between citizens of different states. Alines, or citizens of different states, are not less susceptible of these apprehensions, nor can they be supposed to be less the objects of constitutional provision, because they are allowed to sue by a corporate name. That name, indeed, cannot be an alien or a citizen; but the persons whom it represents may be the one or the other; and the controversy is, in fact and in law, between those persons suing in their corporate character, by their corporate name, for a corporate right, and the individual against whom the suit may be instituted.Substantially  and essentially,  the parties in such a case, where the members of the corporation are aliens, or citizens of a different state from the opposite party, come within the spirit and terms of the jurisdiction conferred by the constitution on the national tribunals. \nSuch has been the universal understanding on the subject. Repeatedly has this court decided causes between a corporation and an individual without feeling a doubt respecting its jurisdiction.Those decisions are not cited as authority; for they were made without considering this particular point; but they have much weight, as they show that this point neither occurred to the bar or the bench; and that the common understanding of intelligent men is in favour of the right of incorporated aliens, or citizens of a different state from the defendant, to sue in the national courts. It is by a course of acute, metaphysical and abstruse reasoning, which has been most ably employed on this occasion, that this opinion is shaken. \nAs our ideas of a corporation, its privileges and its disabilities, are derived entirely from the English books, we resort to them for aid, in ascertaining its character. It is defined as a mere creature of the law, invisible,  intangible, and incorporeal. Yet, when we examine the subject further, we find that corporations have been included within terms of description appropriated to real persons. \nThe statute of Henry VIII. concerning bridges and highways, enacts, that bridges and highways shall be made and repaired by the \"inhabitants of the city, shire, or riding,\" and that the justices shall have power to tax every \"inhabitant of such city,\" &c. and that the collectors may \"distrain every such inhabitant as shall be taxed and refuse payment thereof, in his lands, goods and chattels.\" \nUnder this statute those have been construed inhabitants who hold lands within the city where the  bridge to be repaired lies, although they reside elsewhere. \nLord Coke says, \"every corporation and body politic residing in any county, riding, city, or town corporate, or having lands or tenements in any shire, quoe propriis manibus et sumptibus possident et habent, are said to be inhabitants there, within the purview of this statute.\" \nThe tax is not imposed on the person, whether he be a member of the corporation or not, who may happen to reside on the lands; but is imposed on the corporation itself, and, consequently,  this ideal existence is considered as an inhabitant, when the general spirit and purpose of the law requires it. \nIn the case of The King v. Gardner, reported by Cowper, a corporation was decided, by the court of king's bench, to come within the description of \"occupiers or inhabitants.\" In that case the poor rates, to which the lands of the corporation were declared to be liable, were not assessed to the actual occupant, for there was none, but to the corporation. And the principle established by the case appears to be, that the poor rates, on vacant ground belonging to a corporation, may be assessed to the corporation, as being inhabitants or occupiers of that ground. In this case Lord Mansfield notices and overrules an inconsiderate dictum of Justice Yates, that a corporation could not be an inhabitant or occupier. \nThese opinions are not precisely in point; but they serve to show that, for the general purposes and objects of a law, this invisible, incorporeal creature of the law may be considered as having corporeal qualities. \nIt is true that as far as these cases go they serve to show that the corporation itself, in its incorporeal character, may be considered as an inhabitant  or an occupier; and the argument from them would be more strong in favour of considering the corporation  itself as endowed for this special purpose with the character of a citizen, than to consider the character of the individuals who compose it as a subject which the court can inspect, when they use the name of the corporation, for the purpose of asserting their corporate rights. Still the cases show that this technical definition of a corporation does not uniformly circumscribe its capacities, but that courts for legitimate purposes will contemplate it more substantially. \nThere is a case, however, reported in 12 Mod. which is thought precisely in point. The corporation of London brought a suit against Wood, by their corporate name, in the mayor's court. The suit was brought by the mayor and commonalty, and was tried before the mayor and aldermen. The judgment rendered  in this cause was brought before the court of king's bench and reversed, because the court was deprived of its jurisdiction by the character of the individuals who were members of the corporation. \nIn that case the objection, that a corporation was an invisible, intangible thing, a mere incorporeal  legal entity, in which the characters of the individuals who composed it were completely merged, was urged and was considered. The judges unanimously declared that they could look beyond the corporate name, and notice the character of the individual. In the opinions, which were delivered seriatim, several cases are put which serve to illustrate the principle, and fortify the decision. \nThe case of The Mayor and Commonalty v. Wood, is the stronger, because it is on the point of jurisdiction. It appears to the court to be a full authority for the case now under consideration. It seems not possible to distinguish them from each other. \nIf, then, the congress of the United States had, in terms, enacted that incorporated aliens might sue  a citizen, or that the incorporated citizens of one state might sue a citizen of another state, in the federal courts, by its corporate name, this court would not have felt itself justified in declaring that such a law transcended the constitution. \nThe controversy is substantially between aliens, suing by a corporate name, and a citizen, or between citizens of one state, suing by a corporate name, and those of another state. When these  are said to be substantially the parties to the controversy, the court does not mean to liken it to the case of a trustee. A trustee is a real person capable of being a citizen or an alien, who has the whole legal estate in himself. At law, he is the real proprietor, and he represents himself, and sues in his own right. But in this case the corporate name represents persons who are members of the corporation. \nIf the constitution would authorize congress to give the courts of the union jurisdiction in this case, in consequence of the character of the members of the corporation, then the judicial act ought to be construed to give it. For the term citizen ought to be understood as it it used in the constitution, and as it is used in other laws. That is, to describe the real persons who come into court, in this case, under their corporate name. \nThat corporations composed of citizens are considered by the legislature as citizens, under certain circumstances, is to be strongly inferred from the registering act. It never could be intended that an American registered vessel, abandoned to an insurance company composed of citizens, should lose her character as an American vessel; and  yet this would be the consequence of declaring that the members of the corporation were, to every intent and purpose, out of view, and merged in the corporation. \nThe court feels itself authorized by the case in 12 Mod. on a question of jurisdiction, to look to  the character of the individuals who compose the corporation, and they think that the precedents of this court, though they were not decisions on argument, ought not to be absolutely disregarded. \nIf a corporation may sue in the courts of the union, the court is of opinion that the averment in this case is sufficient. \nBeing authorized to sue in their corporate name, they could make the averment, and it must apply to the plaintiffs as individuals, because it could not be true as applied to the corporation. \nJudgment reversed; plea in abatement overruled, and cause remanded. \nJudge LIVINGSTON, having an interest in the question, gave no opinion. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. delivered the opinion of the court to the following effect: \nThis court is of opinion that the possession of Chapman was a bar to the seizure of the slave by the marshal, under the execution stated in this case. The only objection of any weight was, that there was no administration upon the estate of Robert Alexander, sen. and. consequently, that the possession of Champan was not an adverse possession. \nBut there was an executor competent to assent, and who did assent, to the legacy, and to the partition between the legatees, and who could not afterwards refuse to execute the will. \nJudgment affirmed. \n \n\n ", " \nOpinion \n\n \n \n MARSHALL, Ch. J. delivered the opinion of the court to the following effect: \nThe former case between these parties presented the single circumstance of fraud in Simms, the principal debtor, in which Wise had no share as it was then stated. \nThe decision in that case does not affect the present. It is here stated that the defendant Wise was one of the magistrates who granted the discharge, and who received a conveyance from Simms of all his estate, &c. \nIt cannot be doubted that if there had been a combination between the surety of the insolvent and the magistrate to grant the discharge, such surety could never plead that discharge in bar of this action. Such would have been the law if Peter Wise the surety had been a different person from Peter wise the magistrate. But being the same person, he is clearly incompetent. He is directly interested, and his interest appears upon the record. \nBut the case is stronger when we consider the irregularity of the schedule of property delivered  by Simms at the time of his discharge. \nThe whole schedule is in these words: \"I have neither real or personal property, but what has been conveyed by a deed of trust to John Wise and Peter  Wise, jun. for the use of my creditors, as will appear, reference being had to the said deed.\" \nHe does not directly affirm that it is, or is not, his property.He might have taken the oath although he knew that the property contained in the deed remained in himself. The schedule, therefore, was not such as the law requires. The transaction is fraudulent upon the face of it. \nThe discharge, being granted by an incompetent tribunal, is wholly void. \nJudgment reversed \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. delivered the opinion of the court to the following effect: \nThe distinction taken by the counsel for the defendants in error, between a district and a port of entry, is correct. The duties did not accrue in the fiscal sense of the term, until the vessel arrived at the port of entry. If the question had been doubtful, the court would have respected the uniform construction which it is understood has been given by the treasury department of the United States upon similar questions. It is understood that in case of an increase of duty, the United States have always demanded and received  the additional duty if the goods have not arrived at the port of entry before the time fixed for the commencement of such additional duty, although the vessel may have arrived within the collection district before that time. The same rule of construction is to be observed when there is a diminution of duty. \nJudgment affirmed. \n \n\n ", " \nOpinion \n\n \n \n MARSHALL, Ch. J. after consultation with the other judges, stated that the court was not satisfied  that a habeas corpus is the proper remedy, in a case of arrest under a civil process. \nHabeas corpus refused. \n \n\n ", " \nOpinion \n\n \n \n MARSHALL, Ch. J. The court below is always competent to award costs in a chancery suit in that court, and, in case of a mandate, may issue  execution therefor. \n \n\n ", " \nOpinion \n\n \n \n MARSHALL, Ch. J. delivered the opinion of the court as follows, viz. \nIn this case three opinions were given by the circuit court, to each of which the defendant in that court excepted. These opinions were, in substance, \n1. That the master of a slave imported into the state of Marlyland, while the act, passed in the year 1783, entitled, \"An act to prohibit the bringing slaves into this state,\" was in force, could not be admitted to prove the fact that such slave had resided three years, previous to his importation into Maryland, in some one of the United States, unless he could show that this fact had been proved to the satisfaction of the naval officer, or collector  of the tax. \n2. That a certificate made by the naval officer and collector of the port of Georgetown, dated on the 16th day of June, in the year 1807, certifying that this fact was proved to his satisfaction on that day, did not satisfy the law. \n3. That a similar certificate given by the collector  of the tax for the county of Washington did not satisfy the law. \nThe correctness of these opinions is to be tested by comparing them with the act under which the plaintiff in the court below claimed his freedom. \nThe enacting clause of that law prohibits the importation of slaves into the state of Maryland, and gives freedom to such as shall be imported contrary to that act. A proviso excepts from the operation of the enacting clause those slaves which, having resided for three years within some one of the United States, and being the property of the importer, should be imported into the state of Maryland by a person intending to become a resident thereof, and who should actually reside therein for the space of twelve months thereafter. The act then adds -- and the residence of such slave in some one of the United States for three years as aforesaid, antecedent to his coming  into this state, shall be fully proved to the satisfaction of the naval officer, or collector of the tax, by the oath of the owner, or some one or more credible witness or witnesses. \nBy the plaintiff in error it is contended, that this part of the law is directory; that it prescribes a duty to the importer of a slave within the description of the proviso, but does not make his title to that slave dependent on the performance of this duty. \nBy the defendant it is contended, that this clause forms a part of the proviso, and that the fact of previous residence within some one of the United States can be proved by no other testimony, if that which is here prescribed be wanting. \nThe act, in its expression, is certainly ambiguous, and the one construction or the other may be admitted, without great violence to the words which are employed. \nThe great object of the proviso certainly was to  permit persons, actually migrating into the state of Maryland, to bring with them property of this description which had been within the United States a sufficient time to exclude the danger of its being imported into America for the particular purpose. The great object of the provision was,  that the fact itself should accord with this intention. The manner in which that fact should be proved was a very subordinate consideration. Certainly the provisions of the law ought not to be so construed as to defect its object, unless the language be such as absolutely to require this construction. \nIt would be a singular and a very extraordinary provision that a naval officer, or the collector of a tax, should be made the sole judge of the right of one individual to liberty, and of another to property. It would be equally extroardinary that the oath of one of the parties, probably in the absence of the other, should be conclusive on such a question. It would be not less strange that the manner in which this quasi judge should execute his duty should not be prescribed, and that not even the attempt should be made to preserve any evidence of his judgment. \nThese considerations appear to the court to have great weight; and the language of the law ought to be very positive to deprive them of their influence. \nUpon an attentive consideration of that language, the majority of the court is of opinion, that the property of the master is not lost by omitting to make the proof which  was directed, before the naval officer, or the collector of the tax, and that the fact on which his right really depends may be proved, notwithstanding this omission. \nThe words of this part of the section do not appear to the court to be connected, either in their sense, or in their mode of expression, with the proviso. It is a distinct and a substantive regulation. In legislation, the conjunction \"and\" is very often used when a provision is made in no degree dependent  on that which precedes it; and, in this case, no terms are employed which indicate the intention of the legislature, prescribing this particular duty, to make the right to the property dependent on the performance of that duty. \nIt is, then, the opinion of the majority of the court, that the fact of the residence of the plaintiff below within the United States was open for examination, even had his master omitted entirely to make the proof of that residence before the naval officer, or collector of the tax, and, consequently, that the circuit court erred in refusing to admit testimony respecting that fact. \nThe opinion of the court on this point renders a decision on the other exceptions unnecessary. \n \n\n ", " \nOpinion \n\n \n \n MARSHALL, Ch. J. If the answer neither admits nor denies the allegations of the bill, they must be proved upon the final hearing. Upon a question of dissolution of an injunction they are to be taken to be true. \nBut the court has no doubt upon the question. \n No appeal or writ of error will lie  to an interlocutory decree dissolving an injunction. \nWrit of error dismissed with costs. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. delivered the opinion of the court as  follows: \nIn this case some objections have been made to the regularity of the proceedings in the circuit court, which will be considered before the merits of the controversy are discussed. \nIn May term, 1803, the following order was made. \n\"By consent of parties, it is agreed, that William Wallace, James Wallace and John Cumming, or any two of them, be appointed auditors, who shall have power to examine all papers and documents relative to payments made by Zacharish Cox, in satisfaction of judgments obtained by said Holland against said Zachariah, and charged in said bill to be satisfied, and that the testimony of John Vaughan, taken by complainants before Judge Peters, and now in the clerk's office, may be produced by them to said auditors. And it is further agreed, that said auditors may meet at any time after the first day of April next, and not before, on ten days' notice given to the adverse party.\" \nThe auditors returned the following report. \n\"We are of opinion, from the papers laid before  us, by both parties, that the judgments in the above case have been satisfied by payments made prior to February, 1796.\" \nOn exceptions this report was set aside. \nBy the plaintiffs  in error it is contended, that the order under which the auditors proceeded was equivalent to a reference of the cause by consent, and that their report is to be considered as an award obligatory on all the parties, unless set aside for some of those causes which are admitted to vitiate an award. But this court is unanimously of opinion, that the view taken of this point by the plaintiffs is incorrect. The order in question bears no resemblance to a rule of court referring a cause to arbiters. It is a reference to \"auditors,\" a term which designates agents or officers of the court, who examine and digest accounts for the decision of the court. They do not decree, but prepare materials on which a decree may be made. The order in this case, so far from implying that the decision of the auditors shall be made the decree of the court, does not even require, in terms, that the auditors shall form any opinion whatever. They are merely directed to examine all papers and documents relative to payments made in satisfaction of the judgments. \nFrom the nature of their duty they were bound to report to the court, and to state the result of their examination, but this report was open to exception,  and liable to be set aside. In the actual case the report was a very unsatisfactory one, and was, on that account, as well as on account of the objections to its accuracy, very properly set aside. \nThe cause was again referred to auditors, who reported that no evidence had been offered to them of payments to be credited on the judgments alleged by the plaintiffs to have been discharged. \nThe defendants insist that this report ought to  have terminated the cause. But the court can perceive no reason for this opinion. If there were exhibits in the cause which proved that payments had been made, the plaintiffs ought not to be deprived of the benefit of those  payments, because the auditors had not noticed the vouchers which established the fact. \nThe court, without making any order relative to this report, directed an issue for the purpose of ascertaining, by the verdict of a jury, the credits to which the plaintiffs were entitled. \nIt was completely in the discretion of the court to ascertain this fact themselves, if the testimony enabled them to ascertain it; or, if it did not, to refer the question either to a jury, or to auditors. There was, consequently,  no error, either in directing this issue, or in discharging it. \nBut, without trying the issue, or setting aside the order, the court has made an interlocutory decree, deciding the merits of the case by specifying both the debits and credits which might be introduced into the account, and directing their clerk to state an account in conformity with that specification. \nThis interlocutory decree is undoubtedly an implied discharge of the order directing an issue, and is substantially equivalent to such discharge. Had the issue been set aside, in terms, in the body of the ecree, or by a previous order, it would have been more formal, but the situation of the case and of the parties would have been essentially the same. The only real objection to the proceeding is, that the parties might not have been prepared to try the cause in court, in consequence of their expectation that it would be carried before a jury. There is, however, no reason to believe that this could have been the fact. Had there been any objection to a hearing on this ground, it would certainly have been attended to, and, if overruled, would have been respected by this court. But no objection appears to have been  made, and  the inference is, that the cause was believed to be ready for a trial. \nThese preliminary questions being disposed of, the court is brought to the merits of the case. \nThe plaintiffs claim title to a tract of land in the state of Georgia, under several mesne conveyances from Micajah Williamson, the original patentee. In the year 1793, while these lands were the property of Zachariah Cox, one of the defendants, two judgments were rendered against him in favour of John Holland, also a defendant, for the sum of 4,556l. sterling. These judgments remained in force until the year 1799, when executions were issued on them, which were levied on the lands of the plaintiffs held under conveyances from Cox, made subsequent to the rendition, of the judgments. John Gibbons, the agent of the plaintiffs, objected to the sale, because the judgments were satisfied either in whole or in part, but as he failed to take the steps prescribed in such case by the laws of Georgia, the sheriff proceeded, and the lands were sold to Melton and others, who are also defendants in the cause. \nThis bill is brought to set aside the sale and conveyance made by the sheriff; and it also contains  a prayer for general relief. \nAs the judgments constituted a legal lien on the lands in question, and the title at law passed to the purchasers by the sale and conveyance of the public officer, the plaintiffs must show an equity superior to that of the persons who hold the legal estate. That equity is, that the legal estate was acquired under judgments which were satisfied, and that sufficient notice was given to the purchasers to put them on their guard. \nIf the facts of the cause support this allegation, the equity of the plaintiffs must be acknowledged; but it is incumbent on them to make out their case. \n In the threshold of this inquiry, it becomes necessary to meet an objection suggested by the plaintiffs relative to the testimony of the cause. It is alleged that neither Holland nor Cox are necessary or proper parties, and that their answers are both to be excluded from consideration. \nThe correctness of this position cannot be admitted. The whole equity of the plaintiffs depends on the state of accounts between Holland and Cox. They undertake to prove that the judgments obtained by Holland against Cox are satisfied. Surely to a suit instituted for this purpose,  Holland and Cox are not only proper but necessary parties. Had they been omitted, it would be incumbent on the plaintiffs to account for the omission, by showing that it was not in their power to make them parties.Not only are they essential to a settlement of accounts between themselves, but, in a possible state of things, a decree might have been rendered against one or both of them. Neither is it to be admitted that the answer of Holland is not testimony against the plaintiffs. He is the party against whom the fact, that the judgments were discharged, is to be established, and against whom it is to operate. This fact, when established, it is true, affects the purchasers also, but it affects them consequentially, and through him. It affects them as representing him. Consequently, when the fact is established against or for him, it binds them. \nThe plaintiffs themselves call upon Holland for a discovery. They aver that the judgments were discharged, and expressly require him to answer this allegation. They cannot now be allowed to say that this answer is no testimony. \nThe situation of Cox is different. Though nominally a defendant, he is substantially a plaintiff. Their  interest is his interest: their object is his object. He, as well as the plaintiffs, endeavours to show that the judgments were satisfied. He is not to be considered as really a defendant, nor does the  bill charge him with colluding to defraud the plaintiffs, or require him to answer the charge of contributing to the imposition alleged to have been practised on them. It is not in the power of the plaintiffs, in such a case, to avail themselves of the answer of a party who is, in reality, though not in form, a plaintiff. \nThe answer of the defendant Holland, then, where it is responsive to the bill, is evidence against the plaintiffs, although the answer of Cox is not testimony against Holland. \nThe evidence in the cause, then, is the answer of Holland, the deposition of Vaughan, and the various exhibits and documents of debt which are found in the record. Does this testimony support the interlocutory decree which was rendered in May term, 1805? \nThat decree specifies the debits and credits which are to be allowed, and directs a statement to be made showing how the account will stand, allowing the specified items. \nTo this order two objections may be made. \n  1. That it ought to have been more general.If this be overruled, \n2. That its principles are incorrect. \nUpon the first objection it is to be observed, that a court of chancery may, with perfect propriety, refer an account generally, and, on the return of the report, determine such questions as may be contested by the parties; or it may, in the first instance, decide any principle which the evidence in the cause may suggest, or all the principles on which the account is to be taken. The propriety of the one course or of the other depends on the nature of the case. Where items are numerous, the testimony questionable, the accounts complicated, the superior  advantage of a general reference, with a direction to state specially such matters as either party may require, or the auditors may deem necessary, will readily be perceived. \nWhere the account depends on particular principles which are developed in the cause, the convenience of establishing those principles before the report is taken will also be acknowledged. \nThe discretion of the judge will be guided by the circumstances of the case, and his decree ought not to be reversed because he has pursued the one course or  the other, unless it shall pappear either that injustice has been actually done, or that there is reason to apprehend it has been done. \nIn this case it might, perhaps, have been more satisfactory had the parties been permitted to lay all their claims and all their objections before auditors, so that the precise points of difference between them, and the testimony upon those points, might be brought in a single view before the court. \nBut it is to be observed that two orders of reference had before been made, on neither of which was a satisfactory report obtained. That an issue had been directed, which had, for several terms, remained untried. The probability is, that the controversy depended less on items than on principles, and that all parties were desirous of obtaining from the court a decision of those principles. That no debits nor credits were claimed but those which were stated in the papers, and that all parties wished the opinion of the court on the effect and application of those items. Under such circumstances, a judge would feel much difficulty in withholding his opinion, \nIn such a case the justice of the cause could be defeated only by the exclusion of some item  which ought to be admitted, or by an erroneous direction with respect to those items which were introduced. \n This court perceives in the record no evidence of any credit to which the defendant Cox might be entitled, which is not comprehended in the recapitulation of credits allowed him in the circuit court, and they are the more inclined to believe that no such omission was made, as the fact would certainly have been suggested by the counsel for the plaintiffs, and the circumstances under which they claimed the item disallowed by the court, would have been spread upon the record. It is true, an additional credit is claimed in the assignment of errors; but the testimony in the record does not support this claim. \nThe majority of the court, therefore, is of opinion, that there is no error in the interlocutory decree, unless it shall appear that the principles it establishes are incorrect. \nThe items claimed by Holland, and allowed by the court, are supported by documents, the obligation of which has not been disproved. \nThere is, then, no question on the merits but this. Were the payments properly applied by the court, or were they applicable, to the judgments? \nThe principle,  that a debtor may control, at will, the application of his payments, is not controverted. Neither is it denied that, on his omitting to make this application, the power devolves on the creditor. If this power be exercised by neither, it becomes the duty of the court; and, in its performance, a sound discretion is to be exercised. \nIt is contended by the plaintiffs that if the payments have been applied by neither the creditor nor the debtor, they ought to be applied in the manner most advantageous to the debtor, because it must be presumed that such was his intention. \nThe correctness of this conclusion cannot be conceded. When a debtor fails to avail himself of the power which he possesses, in consequence of which  that power devolves on the creditor, it does not appear unreasonable to suppose that he is content with the manner in which the creditor will exercise it. If neither party avails himself of his power, in consequence of which it devolves on the court, it would seem reasonable that an equitable application should be made. It being equitable that the whole debt should be paid, it cannot be inequitable to extinguish first those debts for which the security is  most precarious. That course has been pursued in the present case. \nBut it is contended, that bills for 20,000 dollars were received, and have been applied in discharge of debts which became due two months afterwards. \nIt the receipt given for these bills purported to receive them in payment, this objection would be conclusive.If an immediate credit was to be given for them, that credit must be given on a debt existing at the time, unless this legal operation of the credit should be changed by express agreement.But the receipt for these bills does not import that immediate credit was to be given for them. They are to be credited when paid. The time of receiving payment on them is the time when the credit was to be given; and, consequently, the power of application, which the creditor possessed, if no agreement to the contrary existed, was then to be exercised. It cannot be doubted that he might have credited the sums so received to any debt actually demandable at the time of receiving such sum, unless this power was previously abridged by the debtor. \nIt is contended that it was abridged; and that this is proved by the form of the receipt. The receipt states, that the bills, when  paid, are to be credited on account of the demand of Holland against Cox, and the plaintiffs insist that the words import a single demand, and one existing at the time the receipt was given. \nThis court is not of that opinion. The whole  debt due from one man to the other,  may well constitute an aggregate sum not improperly designated by the term demand, and the receipt may very fairly be understood to speak of the demand existing when the credit should be given. \nIf the principles previously stated be correct, there is no evidence in the cause which enables this court to say that there was not due, on the judgments obtained by Holland against Cox, a sum more than equal to the value of the lands sold under execution. If so, the plaintiffs have no equity against the purchasers of those lands, whose conduct appears to have been perfectly unexceptionable; and the bill, both as to them and Holland, was properly dismissed. \nIt is the opinion of the majority of the court, that there is no error in the proceedings of the circuit court, and that the decree be affirmed. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. delivered the opinion of the court as follows: \nThis suit was instituted on a promissory note given by the plaintiffs in error, to the commissioners of the city of Washington, in payment for two lots originally sold to Morris and Greenleaf, and resold to the plaintiff in consequence of the failure  of the original purchasers to pay the purchase-money. The defendant having also failed to pay the purchasemoney, the lots were again resold by the superintendant, who succeeded to the powers of the commissioners, and were conveyed to the assignee of the third purchaser. Oneale, the defendant in the circuit court, contended that, by this subsequent sale and conveyance, a total failure of the consideration for which the note was given has been produced by the act of the creditor, and that he is consequently discharged from paying the note. This point having been decided against him, he has brought a writ of error to the judgment of the circuit court, and insists here, as in the court below, \n1. That the consideration on which the note was given has totally failed, and that this failure is produced by the illegal conduct of the agent for the city. \nIn support of the judgment of the circuit court it is contended: \n1. That the act of the legislature for the state of Maryland, under which both resales purport to have been made, authorizes a third sale on the failure  of the purchaser at the second sale to discharge his note. \n2. If this be otherwise, that such subsequent  sale could not affect the right of Oneale, whose title would still be good. \nThe first point depends on the second section of the act entitled a further supplement to the act \"concerning the territory of Columbia, and the city of Washington.\" \nThis act enables the commissioners to sell at public vendue any lots sold by them on credit, if the purchaser shall fail to pay the purchase-money thirty days after the same shall become due, and to \"retain in their hands sufficient of the money, produced by such new sale, to satisfy all principal and interest due by the first contract, together with the expenses, &c. and the original purchaser, or his assigns, shall be entitled to receive from the said commissioners, at their treasury, on demand, the balance of the money which may have been actually received by them, or under their order, on the second sale, and all lots, so sold, shall be freed and acquitted of all claim legal and equitable, of the first purchaser, his heirs and assigns.\" \nIt has been argued, that the terms of this section allow a resale so long as the purchaser shall fail to pay the purchase-money, and that every purchaser, so failing, remains liable for his note, notwithstanding  such resale. \nBut this court is of opinion, that a single resale only is contemplated by the legislature, and that by such resale, the power given by the act is executed. \nThe propostion, that a power to resell, if not restricted by the terms in which it is granted, implies a gift of all the power possessed at the original sale, will not be denied; but the court is of opinion, that in this case, the power of reselling is restricted by  the words which confer it. These words are such as, in their literal meaning, apply exclusively to a first and second sale. The words, \"first contract,\" \"original purchaser,\" and \"first purchaser,\" designate, as expressly and exclusively as any words our language furnishes, the first sale made of the property, and the purchaser at that sale, and no other. It is true, that the natural import of words may be affected by the context, and that where other parts of the statute demonstrate an intent different from that which the words of a particular section of themselves would import, such manifest intent may be admitted to give to the words employed a less obvious meaning. But, in this statute, no such intent appears. \nMen use a language calculated  to express the idea they mean to convey. If the legislature had contemplated various and successive sales, so that any intermediate contract or purchaser was within the view of the lawmaker and intended to be affected by the power of resale given to the commissioners, the words employed would have been essentially different from those actually used. We should certainly have found words in the act applicable to the case of such intermediate contract. But we find no such terms; and the want of them might, in the event of different sales, for different prices, produce difficulties scarcely to be surmounted. No man, intending to draw a law for the purpose of giving the commissioners a continuing power to resell as often as default in payment should be made by the purchaser, could express that intention in the language of this act. \nIt has been argued, by the defendants in error, that every subsequent default would produce the same necessity for reselling again that was produced by the defanlt of the original purchaser, and that therefore the legislature, if their words will permit it, ought to be considered as having given the same remedy. \n The influence readily conceded  to this argument in general cases, is much impaired, if not entirely destroyed, by the particular circumstances attending this law. \nA contract for 6,000 lots was concluded on the day that this act passed, immediately after its passage. In this large contract was merged a former contract for 3,000 lots made with one of the purchasers in this second contract. It is impossible to reflect on this fact without being persuaded that the law was agreed upon by the parties to this contract, and was specially adapted to it. The immensity of property disposed of by this sale, furnished motives for legislative aid by giving a speedy remedy to the commissioners which might not exist on the resale  of particular lots occasioned by any partial default in the purchasers. In consideration of the magnitude of the contract, the lots would, according to the ordinary course of human affairs, rate lower than in cases of a few sold to individuals. Consequently it could never enter the mind of the commissioners, or of the legislature, that one of these lots resold would not command a much higher price than the estimate made of it in the original contract. We therefore find no provision made,  in the law, for the event of a lot's selling for a less sum, when resold, than was originally given for it. This furnishes additional inducements to the opinion that the legislature considered itself as having done as much as the state of the city required, by giving this summary remedy for the default of the first purchaser, and leaving the parties afterwards to the ordinary course of law. \nIt is, then, the opinion of the court that the act of assembly, under which the superintendant has acted, did not authorize the resale to Ross of the lots which had been previously resold to Oneale. \nIt remains, then, to inquire whether this sale and conveyance so affects the title of Oneale, as to produce a failure of the consideration on which the note was given. \n In this case, the impropriety, which has occurred in consequence of an agent's misconstruing his powers, is a fact dehors the title papers: It is not apparent on the face of the conveyances. They purport to pass a title which is entirely unexceptionable. How far such a conveyance may be valid in law, or how far it may be affected in equity by actual or implied notice to such subsequent purchaser, this court will not now  decide. \nThe city, by reselling the property, and conveying it to the purchaser, (an act to be justified by no state of things but the nullity of the previous sale,) has not left itself at liberty to maintain the continuing obligation of that sale; and the plaintiff, by setting up this defence, has affirmed the title of the last purchaser. \nThis court is of opinion that the city has disabled itself from complying with its contract, and that, on the testimony in the cause, the plaintiff below ought not to have recovered. \nJudgment reversed. \nThis cause came on to be heard on the transcript of the record from the circuit court, for the county of Washington, and was argued by counsel; all which being seen and considered, this court is of opinion that the circuit court erred in refusing to give the opinion prayed by the counsel for the defendants in that court, that, on the whole testimony, if believed, the plaintiffs in that court could not support their action. This court doth therefore reverse, and annul the judgment, rendered in this cause by the said circuit court, and doth remand the cause to that court for a new trial thereof. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. delivered the following opinion of the court, viz. \nThis cause comes on upon various exceptions to opinions delivered by the circuit court of Maryland. \nThe first exception, having been taken by the party  who prevailed in the cause, is passed over without consideration. \nThe 2d and 3d exceptions are so intimately connected with each other, that they can scarcely be discussed separately. \nThis action was brought by the owners of the cargo of the William & Mary, to recover from the Maryland Insurance Company the amount of the policy insuring the cargo of that vessel. The voyage insured was \"from Baltimore to Laguira, with liberty of one other neighbouring port, and at, and from them, or either of them, back to Baltimore.\" The cargo was warranted to be American property, and the vessel to be an American bottom, \"proof of which was agreed to be applied in the United States only.\" \nPrevious to the sailing of the William & Mary from Baltimore, the blockade of Curracoa had been notified to the President  of the United States, by the British government, and was generally known in Baltimore. The vessel arrived at Laguira, from which place she sailed for some other port, was captured within thirty miles of the port of Amsterdam, in Curracoa, then actually blockaded, and was condemned for an attempt to break the blockade. \nThe proof whether the William & Mary sailed from Laguira for Curracoa, or for St. Thomas's or Porto Rico, is not positive; and the evidence respecting the information which she sought, or might have received, at Laguira, respecting the blockade of Curracoa, is contradictory. On the part of the plaintiff below, evidence was given that, at Laguira, information of this fact was sought and could not be obtained. On the part of the underwriters, evidence was given, that no inquiry respecting it was made at Laguira, and further, that there was a small island called Bonaire, between Laguira and Curracoa, not much out of the track from the former place  to the port of Amsterdam, at which no inquiry respecting the blockade of Amsterdam was made. \nThe counsel for the underwriters prayed the court to instruct the jury, that, if they believed these facts, the plaintiff  could not recover. \nThis instruction the court refused to give, but did instruct the jury \"that if they shall be satisfied, in this case, that Captain Henry Travers, master of the said schooner, sailed from Laguira for the port of Amsterdam, in the island of Curracoa, with intent to enter the said port, if not actually blockaded, but, if blockaded, not to attempt to enter, but to sail for the island of St. Thomas's, and if the jury should be also satisfien from the said evidence, that the said Henry Travers did not attempt to enter the said port, but was captured on his way to the said port, at the distance of 29 or 30 miles thereform the court are of opinion, and accordingly directed the jury, that such conduct, on the part of the said Henry Travers, was not unlawful, and that, notwithstanding such conduct, the plaintiff can maintain the present action.\" \nThis opinion and direction of the circuit court asserts two principles of law. \n1. That the sentence and condemnation of a foreign court of admiralty, condemning a vessel as prize for attempting to enter a blockaded port, is not conclusive evidence of that fact, in an action on this policy. \n2. That, under the circumstances of  the case, the sailing from Laguira, and the passing Bonaire, without making any inquiry, at either place, respecting the blockade of Amsterdam, were not such acts of culpable negligence as to discharge the underwriters. \n1. Is the sentence of a foreign court of admiralty, in this case, conclusive evidence of the fact it asserts? \n This depends entirely on the construction given to the policy. The question respecting the conclusiveness of a foreign sentence was, some time past, much agitated throughout the United States, and was finally decided, in this court, in the affirmative. Pending this controversy, a change was introduced in the form of the policy, at several offices, by inserting, after the warranty that the property was neutral, the words, \"proof of which to be required in the United States only.\" \nBy the underwriters it is contended that these words go to the property only, and not to the conduct of the vessel. By the assured it is contended that they apply to both. \nThe underwriters insist that the words themselves import no more than that proof respecting the property may be received in the United States, and that a more extended construction is not necessarily  to be given to them in consequence of their connection with the warranty of neutrality, because a neutral vessel attempting to enter a blockaded port would thereby discharge the underwriters, although no warranty of neutrality should be found in the policy. \nThere is much force in this argument, and if the question shall ever occur on such a policy, it will deserve serious consideration. But whatever might be the law in such a case, the majority of the court is of opinion that, under this policy, the sentence of the foreign court of admiralty is not conclusive. \nThe contract of insurance is certainly very loosely drawn, and a settled construction, different from the natural import of the words, is given, by the commercial world, to many of its  stipulations, which construction has been sanctioned by the decisions of courts. One of these is on the warranty that the vessel is neutral property. It is not improbable that, without such warranty, the attempt of a neutral  vessel to enter a blockaded port might be considered as discharging the underwriters. But no such decision appears ever to have been made; nor is the principle asserted, so far as is known to the  court, in any of the numerous treatises which have been written on the subject. On the contrary, the judgments rendered in favour of the underwriters, in such cases, have been uniformly founded on the breach of the warranty of neutrality, which, though in terms extended only to the property, has been carried, by construction, to the conduct of the vessel. It is universally declared that anti-neutral conduct forfeits the warranty that the vessel is neutral. \nThis being the construction put by the parties, and, in consequence thereof, by courts, on the warranty of neutrality, it is fair to consider the reservation of the right of giving proof in the United States, which, in direct terms, refers to the whole warranty, as intended by the parties to be co-extensive with the warranty itself; and, as the conduct of the vessel was, in legal construction, comprehended in the warranty of her neutrality, that the conduct of the vessel would, in legal construction, be comprehended in the reservation of a right to make proof in the United States. \nThe majority of the court, therefore, is of opinion, that the circuit court did not err in submitting the testimony respecting the conduct of the vessel,  in this case, to the jury. \n2. Are the underwriters discharged by the conduct of the captain? \nThis question is susceptible of several subdivisions. \n1. Was the port of Amsterdam, in Curracoa, a neighbouring port, within the policy? \n2. Did the intention to pass Amsterdam, if blockaded, discharge the underwriters? \n 3. Was an omission to inquire at Laguira or Bonaire, respecting the blockade of Amsterdam, such a culpable negligence as to discharge the underwriters? \nIt is the opinion of the court that the port of Amsterdam was a neighbouring port within the policy. The distance between the two places is inconsiderable. It is not stipulated that the neighbouring port shall be one under the Spanish government, nor is it to be implied from the nature of the case. Indeed, the common usage of Baltimore, which was given in evidence, for vessels sailing with cargoes assorted for the Spanish Main to and from Laguira to Curracoa, if refused admittance into the former port, would be conclusive on this point, if, in other respects, it could be doubtful. \nNeither was the intention to sail for some other port, on the contingency of finding Amsterdam blockaded, a deviation. \nIt  is admitted that the voyage from Laguira must be certain, and that only a certain voyage would be within the policy. But the opinion of the circuit court was founded on the jury's believing that the voyage from Laguira was for Amsterdam, a voyage which the vessel had a right to make, and that the intention to sail to another port, should Amsterdam be blockaded, constituted no deviation while on the voyage to Amsterdam. \nCertainly an intention, not executed, will not deprive the insured of the benefit of his contract in a case in which he would not have been deprived of it, had he executed his intention. Had Captain Travers, on the voyage to Amsterdam, sustained a partial loss, and, after entering that port, determined to go to Porto Rico, or St. Thomas's, it is certain that, after sailing from Amsterdam, the voyage would have been no longer within the policy, nor would the underwriters have been answerable for a subsequent loss. But it could never be contended, with any  semblance of reason, that this discharged them from the loss sustained on the voyage to Amsterdam. \n3. The omission of the captain to make any inquiry respecting the blockade of Amsterdam, at Laguira,  or to call, for that purpose, at Bonaire, comes next to be considered. \nThe notoriety of the blockade of Curracoa, before Captain Travers sailed from Baltimore, must affect him, especially as the instruction given to the jury is not made dependent on their believing that he had no actual knowledge of the fact. It seems a reasonable duty, in ordinary cases, to make inquiry in the neighbourhood, if information be attainable, respecting the continuance of a blockade known previously to exist. \nIt is true, that upon this point, contradictory evidence was given; but the opinion of the court is predicated on the jury's believing that Captain Travers made no inquiry at Laguira. The correctness of that opinion, therefore, depends on its having been the duty of the captain to make this inquiry. \nIn an ordinary blockade, this, perhaps, might have been necessary; but it is contended, that blockades in the West Indies were so qualified by the British government, as to have dispensed with this necessity. \nIt was proved, that orders had been given by that government, to its cruisers and courts of vice-admiralty, which orders were communicated to, and published by, the government of the United  States, \"Not to consider blockades as existing, unless in respect to particular ports which may be actually invested, and then not to capture vessels bound to such ports, unless they shall have been previously warned not to enter them.\" \nOn the motives for this order, on the policy which  dictated this mitigation of the general rule, so far as respected blockades in the West Indies, this court does not possess information which would enable it to make any decision, but it appears essentially to vary the duty of the masters of neutral vessels sailing towards a port supposed to be blockaded. \nThe words of the order are not satisfied by any previous notice which the vessel may have obtained, otherwise than by her being warned off. This is a technical term which is well understood. It is not satisfied by notice received in any other manner. The effect of this order is, that a vessel cannot be placed in the situation of one having a notice of the blockade until she is warned off. It gives her a right to inquire of the blockading squadron, if she shall not previously receive this warning from one capable of giving it, and, consequently, dispenses  with her making  that inquiry elsewhere. While this order was in force, a neutral vessel might lawfully sail for a blockaded port, knowing it to be blockaded, and being found sailing towards such port, would not constitute an attempt to break the blockade, until she should be warned off. \nThere is, then, no error in the opinions to which the second and third exceptions are taken. \nThe 4th exception is taken to the refusal of the court to give an opinion to the jury, that, under the circumstances stated by the defendants below, the port of Curracoa was not a neighbouring port within the policy. \nThe merits of this opinion have been essentially discussed in the view taken of the second and third exceptions, and need not be repeated. The port of Curracoa is considered as a port within the policy, and, consequently, the circuit court ought not to have given the opinion prayed for by the plaintiffs in error. \n The 5th exception presents the extraordinary case of an exception to an opinion in favour of the party taking it, and, consequently, need not be examined. \nThe 6th exception presents a case not essentially varying from the second and third, and will therefore be passed over without other  observation than that it is decided in the opinion on those exceptions. \nThe 7th exception is to a different point. The counsel for the defendants below prayed the court to instruct the jury, \"that if they believed the said Travers sailed from Laguira on a voyage to St. Thomas's, or Porto Rico, but with an intention to proceed a small distance out of the way to see if Amsterdam was blockaded, and in case it was not blockaded, then to enter that port, and did so proceed to the port of Amsterdam, and was captured as aforesaid, then the defendants are not answerable.\" \nThis opinion the court refused to give, and proceeded to repeat the instruction to which the second and third exceptions were taken. \nIf St. Thomas's, or Porto Rico, were not neighbouring ports within the policy, as is most probably the fact, then the voyage from Laguira to either of those places was not insured. If they were neighbouring ports, so that a voyage to either of them was within the policy, then going out of the way to see whether Amsterdam was blockaded was a deviation, and, of consequence, the underwriters are equally discharged. \nThe only doubt ever felt on this point, was, whether any testimony had been  offered to the jury to establish this fact, which would authorize counsel to request the opinion of the court respecting the law. On examining the record, it appears that such testimony was offered. It is stated that the defendants below offered in evidence, that the captain, on finding he could not be permitted to dispose of his cargo at Laguira, but on terms which amounted to a total sacrifice of it, \"determined to proceed to Porto  Rico, and, as Curracoa was very little out of the course, to ascertain whether the blockade still continued.\" \nThis evidence might be disbelieved by the jury, but the defendants were certainly entitled to the opinion of the court declaring its legal operation if believed. \nIt is the opinion of the court, that, in refusing to give the opinion prayed in the seventh exception, the circuit court erred, for which their judgment is reversed, and the cause remanded for a new trial. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. delivered the opinion of the court as follows: \nThis suit was instituted on a policy insuring the freight of the Venus, from Philadelphia to the Isle of France. The vessel sailed early in December, 1807, before the British orders in council, of the preceding November, were known in the United  States. On the afternoon of the 16th of January, 1808, while prosecuting her voyage, she met the British ship of war Wanderer, by whom she was arrested and detained until the morning of the 18th, when she was restored to the captain, her papers being first endorsed with these words, \"Ship Venus warned off the 18th of January, 1808, by H. M. S. Wanderer, from proceeding  to any port in possession of his majesty's enemies.\" \nEdward Medley, second lieutenant. \nThe captain was verbally informed by an officer of the Wanderer that the Isle of France was blockaded, and that the Venus would be a good prize if she proceeded thither. \nThe captain returned to Philadelphia, where he was disabled from prosecuting his voyage by the embargo. Considering the voyage as broken up, by the arrest and detention of his vessel by the Wanderer, he on that account abandoned to the underwriters. \nThe principal question arising on this case is, was the captain of the Venus justified in returning to Philadelphia, after having proceeded about 1,000 miles on his voyage, either by the endorsement on his papers, or the verbal information given by an officer of the Wanderer? \nA point preliminary to the  examination of this question on its merits has been made by the plaintiff in error. \nThe jury have found, that \"by the interruption, detainment, and warning off of the British force, the voyage of the said ship Venus was broken up.\" \nAfter stating the verbal information given by the British officer respecting the blockade of the Isle of France, is this further finding, \"We find, in consequence thereof, that the said Elisha King was fully justified in returning to the port of Philadelphia.\" \nThese findings, it is urged, conclude the court, and render this special verdict equivalent to a general one. \nBut this court is not of that opinion. It has been truly said, that finding the breaking up of the voyage finds nothing. The question recurs, was the voyage broken up by one of the perils insured against, or by  the fault of the captain? The answer to this question determines the liability of the underwriters. \nIt has been also truly said that the question of justification is a question of law, not of fact. If, as in this case, the jury find the fact specially, and draw the legal conclusion that the fact amounts to a justification, the court is not bound by that conclusion. \n The case, then, is open to examination on its  real merits, unaffected by the particular findings which have been noticed. \nIn proceeding to inquire whether the circumstances which actually occurred, justified the captain of the Venus in returning to Philadelphia, it becomes important to ascertain the real hazard of prosecuting his voyage. This essentially depends on the construction of the British orders of council issued in November, 1807. By the plaintiff in error it is insisted, that these orders extend to the direct trade between a neutral port and the colony of an enemy. In support of this construction, a very acute and elaborate criticism has been bestowed on those orders, which appears to the court merely to furnish additional proof of the imperfection of all human language. The intent of the orders to exclude from their operation this direct trade, an intent alike manifested by the context, and by the particular words forming the exception, the universal understanding of both countries, which has been, on more than one occasion, publicly and officially expressed, are too conclusive on this point to render it necessary that the court should proceed to review  that analysis of this document which has been so well made at the bar. \nAccording to the construction contended for by the plaintiffs in error, an exception professedly made to mitigate the rigour of the general rule, \"and still to allow to neutrals the opportunity of furnishing themselves with colonial produce for then own consumption and supply,\" would be more rigorous than the rule itself, and would interdict that trade by which  they were to be supplied with this produce for their own use, with as jealous circumspection as the trade professedly prohibited by the general rule. \nIt is, then, the clear and unanimous opinion of the court, that the words \"shall have,\" which are used in the exception, relate as well to the time of capture, as to the time of issuing the orders, and that a direct voyage from the United States to a colony of France, was not prohibited. \nIt being found that the Isle of France was not actually blockaded, and the orders not prohibiting the voyage, it remains to inquire whether the apprehension excited by the warning, or by the verbal communication of a British officer, justified the return of the Venus to Philadelphia. \nIt has been very truly observed  that, in this case, the Venus was not physically incapacitated from prosecuting her voyage. \nWith equal truth has it been observed, that there was no legal impediment to her proceeding, because the voyage was not prohibited by the orders of November, 1807; and, consequently, the endorsement on her papers would not have increased the danger. \nThere did not, then, at the time the voyage was abandoned, exist, either in fact, or in law, the restraint or detention, against which the underwriters insured. From fear, founded on misrepresentation, the voyage was broken up, and the vessel returned to her port of departure. \nWhether this might be justified under any circumstances it is unnecessary to determine. But the court is of opinion that the circumstances of this case did not justify it. The Venus might have proceeded, and ought to have proceeded, until she could obtain further information. It would be dangerous in the extreme if any false intelligence received on a voyage  might justify a captain in acting as if that intelligence were true. \nThe case of Blackenhagen v. The London Assurance Company, has a strong bearing on this case, and though that was a decision at Nisi  Prius, it is entitled to all the respect which is due to the court of common pleas. After the same opinion had been successively given by Lord Ellenborough, and by Sir James Mansfield, it was affirmed by the whole court, and the jury having found against the opinion of the judge, a new trial was granted. \nThe court gives no opinion on the question how far the underwriters would have been liable, had the orders of council prohibited the trade to the Isle of France. This decision is not intended in any manner to affect that question. \nJudgment affirmed with costs. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. delivered the opinion of the court to the following effect. \nThe act of assembly of Virginia, is copied almost literally from the English statute of 8 and 9 W. III. c. 11. The case in 6 Mod. is a decision expressly upon that statute, and is precisely in point, that the defendant upon the scire facias can only plead what the intestate could have pleaded; and that it is not to be considered as a proceeding against the representative of the deceased, but a continuance of the original action. \nThe plea is such as could not have been pleaded in the original action, and is therefore bad. \nThe judgment must be reversed, and the case remanded for the defendant to plead to the original action, if he should think proper. 1 \n To a question by E. J. Lee, the Chief Justice answered, that if the plaintiff in error should obtain a judgment in the court below, it will of course be with costs. So in all cases of reversal, if this court direct the court below to enter judgment for the plaintiff in error, the court below will, of course, enter the judgment with the costs of that court. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. delivered the opinion of the court as follows: \nThis  suit having been originally instituted, in the court of Kentucky, for the purpose of obtaining a conveyance for lands lying in the state of Ohio, an objection is made by the plaintiff in error, who was the  defendant below, to the jurisdiction of the court by which the decree was rendered. \nTaking into view the character of the suit in chancery brought to establish a prior title originating under the land law of Virginia against a person claiming under a senior patent, considering it as a substitute for a caveat introduced by the peculiar circumstances attending those titles, this court is of opinion, that there is much reason for considering it as a local action, and for confining it to the court sitting within the state in which the lands lie. Was this cause, therefore, to be considered as involving a naked question of title, was it, for example, a contest between Watts and Powell, the jurisdiction of the circuit court of Kentucky would not be sustained. But where the question changes its character, where the defendant in the original action is liable to the plaintiff, either in consequence of contract, or as trustee, or as the holder of a legal title acquired by any  species of mala fides practised on the plaintiff, the principles of equity give a court jurisdiction wherever the person may be found, and the circumstance, that a question of title may be involved in the inquiry, and may even constitute the essential point on which the case depends, does not seem sufficient to arrest that jurisdiction. \nIn the celebrated case of Penn v. Lord Baltimore, the Chancellor of England decreed a specific performance of a contract respecting lands lying in North America. The objection to the jurisdiction of the court, in that case, as reported by Vezey, was not that the lands lay without the jurisdiction of the court, but that, in cases relating to boundaries between provinces, the jurisdiction was exclusively in the king and council. It is in reference to this objection, not to an objection that the lands were without his jurisdiction, that the chancellor says, \"This court, therefore, has no original jurisdiction on the direct question of the original right of boundaries.\" The reason why it had no original jurisdiction on this direct question was, that the decision on the extent of those grants, including dominion and political power, as well   as property, was exclusively reserved to the king in council. \nIn a subsequent part of the opinion, where he treats of the objection to the jurisdiction of the court, arising from its inability to enforce its decree in rem, he allows no weight to that argument. The strict primary decree of a court of equity is, he says, in personam, and may be enforced in all cases where the person is within its jurisdiction. In confirmation of this position he cites the practice of the courts to decree respecting lands lying in Ireland and in the colonies, if the person, against whom the decree was prayed, be found in England. \nIn the case of Arglasse v. Muschamp, 1 Vernon, 75. the defendant, residing in England, having fraudulently obtained a rent charge on lands lying in Ireland, a bill was brought in England to set it aside. To an objection made to the jurisdiction of the court the chancellor replied, \"This is surely only a jest put upon the jurisdiction of this court by the common lawyers; for when you go about to bind the lands and grant a sequestration to execute a decree, then they readily tell you that the authority of this court is only to regulate a man's conscience, and ought not to affect  the estate, but that this court must agere in personam only; and when, as in this case, you prosecute the person for a fraud, they tell you that you must not intermeddle here, because, the fraud, though committed here, concerns lands that lie in Ireland, which makes the jurisdiction local, and so wholly elude the jurisdiction of this court.\" The chancellor, in that case, sustained his jurisdiction on principle, and on the authority of Archer and Preston, in which case a contract made respecting lands in Ireland, the title to which depended on the act of settlement, was enforced in England, although the defendant was a resident of Ireland, and had only made a casual visit to England. On a rehearing before Lord Keeper North this decree was affirmed. \nIn the case of The Earl of Kildare v. Sir Morrice  Eustace and Fitzgerald, 1 Vern. 419. it was determined that if the trustee live in England, the chancellor may enforce the trust, although the lands lie in Ireland. \nIn the case of Toller v. Carteret, 2 Vern. 494. a bill was sustained for the foreclosure of  a mortgage of lands lying out of the jurisdiction of the court, the person of the mortgagor being within it. \n Subsequent to these decisions was the case of Penn against Lord Baltimore, 1 Vez. 444. in which the specific performance of a contract for lands lying in North America was decreed in England. \nUpon the authority of these cases, and of others which are to be found in the books, as well as upon general principles, this court is of opinion that, in a case of fraud, of trust, or of contract, the jurisdiction of a court of chancery is sustainable wherever the person be found, although lands not within the jurisdiction of that court may be affected by the decree. \nThe inquiry, therefore, will be, whether this be an unmixed question of title, or a case of fraud, trust or contract. \nThe facts in this case, so far as they affect the question of jurisdiction, are, that, in 1787, the land warrant, of which Watts is now the proprietor, and which then belonged to Oneal, was placed without any special contract, in the hands of Massie, as a common locator of lands. In the month of August in the same year he located 1,000 acres, part of this warrant, to adjoin a previous location made on the same day for Robert Powell. \nIn the year 1793 Massie, as dputy-surveyor, surveyed the lands of Thomas Massie,  on which Robert Powell's entry depended, and the land of Robert Powell, on which Oneal's entry, now the property of Watts, depended. On the 27th of June, 1795, Nathaniel Massie, the plaintiff in error, entered for himself 2,366 acres  of land to adjoin the surveys made for Robert Powell, Thomas Massie and one Daniel Stull. The entry of Daniel Stull commences at the upper corner of Ferdinand Oneal's entry on the Scioto, and the entry of Ferdinand Oneal commences at the upper corner of Robert Powell's entry on the Scioto; so that the land of Oneal would be supposed, from the entries, to occupy the space on the Scioto between Powell and Stull. Nathaniel Massie's entry, which was made after surveying the lands of Thomas Massie and of Robert Powell, binds on the Scioto, and occupies the whole space between Powell's survey and Stull's survey. \nIn the year 1796, Nathaniel Massie surveyed 530 acres of Oneal's entry, chiefly within Stull's survey, and afterwards, in the spring of 1797, purchased Powell's survey. Nathaniel Massie's entry is surveyed and patented. In 1801 Massie received from Watts, in money, the customary compensation for making his location. \nIt is alleged that  Nathaniel Massie has acquired for himself the land which was comprehended within Oneal's entry, and has surveyed for Oneal land to which his entry can by no construction be extended. \nIf this allegation be unsupported by evidence, there is an end of the case. If it be supported, had the court of Kentucky jurisdiction of the cause? \nAlthough no express contract be made, yet it cannot be doubted that the law implies a contract between every man who transacts business for another at the request of that other and the person for whom it is transacted. A common locator who undertakes to locate lands for an absent person is bound to perform the usual duties of a locator, and is entitled to the customary compensation for those duties. If he fails in the performance of those duties, he is liable to the action of the injured party, which may be instituted wherever his person is found. If his compensation be refused, he may sue therefor in any court within whose jurisdiction the person for whom the location was made  can be found. In either action the manner in which the service was performed is inevitably the subject of investigation, and the difficulty of making it cannot oust  the court of its jurisdiction. \nFrom the nature of the business, and the situation of the parties, the person for whom the location is made being generally a non-resident, and almost universally unacquainted with the country in which his land is placed, it is the duty of the locator not only to locate the lands, but to show them to the surveyor. He also necessarily possesses the power to amend or to change the location if he has sufficient reason to believe that it is for the interest of his employer so to do. So far as respects the location he is substituted in the place of the owner, and his acts done bona fide are the acts of the owner. \nIf, under these circumstances, a locator finding that the entry he has made cannot be surveyed, instead of withdrawing it or amending it so as to render it susceptible of being carried into execution, secures the adjoining land for himself, and shows other land to the surveyor which the location cannot be construed to comprehend, it appears to this court to be a breach of duty, which amounts to a violation of the implied contract, and subjects him to the action of the party injured. \nIf the location be sustainable, and the locator, instead of  showing the land really covered by the entry, shows other land, and appropriates to himself the land actually entered, this appears to the court to be a species of mala fides which will, in equity, convert him into a trustee for the party originally entitled to the land. \nIn either case the jurisdiction of the court of the state in which the person is found, is sustainable. \nIf we reason by analogy from the distinction between actions local and transitory at common law, this action would follow the person, because it would  be founded on an implied contract, or on neglect of duty. \nIf we reason from those principles which are laid down in the books relative to the jurisdiction of courts of equity, the jurisdiction of the court of Kentucky is equally sustainable, because the defendant, if liable, is either liable under his contract, or as trustee. \nThe case, then, as presented to the court, gives it jurisdiction, and the testimony must be examined to ascertain how far the bill is supported. \nThe entry of Thomas Massie begins at the junction of Paint creek with the Scioto, and runs up the Scioto 520 poles, when reduced to a straight line, thence off at right angles from the  general course of the river, so far that a line parallel thereto will include the quantity. \nRespecting this entry there is no controversy. \n Robert Powell enters 1,000 acres of land, \"beginning at the upper corner on the Scioto, of Major Thomas Massie's entry, No. 480. running up the river 520 poles, when reduced to a straight line, thence from the beginning with Massie's line, so far that a line parallel with the general course of the river shall include the quantity.\" \nThen Ferdinand Oneal enters 1,000 acres of land, beginning at the upper corner on the Scioto, of Robert Powell's entry, No. 503. running up the river 520 poles, when reduced to a straight line, and from the beginning with Powell's line, so far that a line parallel with the general course of the river shall include the quantity. \nAs Oneal's entry depends on Powell's, it is necessary to ascertain the land taken by Powell, before that of Oneal can be accurately determined. \nHad the general course of the Scioto continued  nearly the same, no difficulty would have been found in this case. The surveys might have conformed literally to all the calls of each entry, and each tract would have constituted  nearly a rectangular figure with a base of 520 poles on the river, and a back line parallel to that base. But the unexpected bends of the Scioto have deranged the uniformity of this chain of locations, and produced questions of considerable intricacy respecting the ground which must be covered by them. \nThomas Massie's entry being of 1,400 acres, and Powell's of only 1,000 acres, with a base of the same length on the river, it probably was thought certain that Massie's upper line would extend beyond Powell's land, and that the line of Powell, which was to run parallel to the river, would intersect Massie's upper line. Powell's entry, therefore, calls to run from the river with Massie's line, so far that a line parallel to the general course of the river will include the quantity. Upon actual survey the course of the river is found to be such that a line parallel thereto, drawn from the end of Massie's line, would not include 200 acres of land. Under these circumstances Powell must lose between 8 and 900 acres of land, if his entry cannot be so construed as to extend beyond the length of Massie's line. \nFrom the peculiar situation of titles acquired under the land law of Virginia,  a law which offered for sale an immense unexplored wilderness, covered with savages equally fierce and hostile, leaving to the purchaser the right to place his warrant, which was the evidence of his purchase, on any land not previously appropriated, and requiring him to make his entries so certainly that any other person might locate the adjacent residuum, it followed inevitably that immense difficulties would occur, and that locations must often be lost, or receive that certainty which the law required from principles adapted to the general state of things in the country, but which were not precisely foreseen when the locations were made. \n These principles have been laid down by the courts, and must be considered as expositions of the statute. A great proportion of the landed property of the country depends on adhering to them. \nThe great and equitable foundation on which they stand is this. If, by any reasonable construction of an entry, it can be supported, the courts will support it. This principle absolutely requires that all discretion, with respect to the mode of surveying an entry, should be surrendered. For if a location might be surveyed in various ways, then  it is vague, and no subsequent locator would know how to enter the adjacent residuum. The court, therefore, is compelled to say in what manner every location, which appears, in its terms, to reserve some power in the locator to vary its form, shall be surveyed. \nIn the exercise of this essential and necessary power, they have declared that when a given quantity of land is to be laid off on a given base, it shall be included within four lines, so that the lines proceeding from the base shall be at right angles with it, and the line opposite the base shall be parallel to it, unless this form be repugnant to the entry. \nThe consequence of this principle is, that if the calls of an entry do not fully describe the land, but furnish enough to enable the court to complete the location by the application of certain principles, they will complete it. \nThey have also decided that, if a location have certain material calls sufficient to support it, and to describe the land, other calls less material and incompatible with the essential calls of the entry, may be discarded. \nThese principles, it is believed, will enable the court to ascertain, in a reasonable manner, the land covered by Powell's  location. \nThe beginning is the upper corner of Massie on the  Scioto. A base line upon the rive is then given to consist of 520 poles, when reduced to a straight line. Massie's upper line, to its whole extent, if necessary, is also given, and a back line parallel to the base is given. The side line opposite Massie's line, and the course from the termination of Massie's line to the back line are wanting, and are to be supplied by construction. \nThe material inquiry, so far as respects the present cause, is, in what direction shall Powell's upper line, extending back from the river to the line parallel to the general course of the river, be run? That line is not given, and is, consequently, to be supplied by construction. \nAccording to the uniform course of decisions, Powell's upper line must project from the base at right angles with it, unless there shall be some other call in the entry which controls this general principle. It is contended that it is controlled by the call to run with Massie's line from the beginning. Massie's line not being at right angles with the base line, it is argued that Powell's opposite line, discarding the rectangular principle, must be  parallel to the line from the beginning. \nBut the court does not concur with the counsel for the plaintiff in error in this opinion. The principle, that the rectangular figure is to be preferred to any other, and is to be preserved whenever it can be preserved, originates in the necessity of adopting some regular figure in order to give to locations that certainty which is not always to be found in their terms, and in the superior convenience of that figure over every other, with respect to the adjacent residuum. These motives apply to a part as well as to the whole of an entry. If one location  be made upon another so that the lines of that other bind the entry on one side, and then a precise line be called for from the beginning to run a certain distance, from the end of which a line is to be drawn, and to continue until a line, parallel to the first or base line, or to some given point in  the lines of the person on whom the location is made, shall include the quantity, the same respect for certainty and convenience which induced originally the adoption of the rectangular figure would seem to require its adoption with respect to those lines which did not  receive a different direction from the positive calls of the location. On one side there might be several different lines; but this would not seem to demand that, on the opposite side, the same variety should be preserved. It would be departing from the principle unnecessarily to require that the lines of the opposite side of the tract should be multiplied in order to be all parallel to the lines by which one side was unavoidably bounded. To the court it seems that the rectangular principle is always to be preserved where it can be preserved, that is, where there is no call in the entry applying to the lines which control them, and that, where it is necessarily departed from, the departure should not be extended further than the necessity requires. \nIn this particular case the location does not call for a line parallel to Massie's line, and, as Massie's line was to run at right angles from the general course of the river, and it was obviously expected Powell's line would not extend the whole length of Massie's line, it is clear that the locator expected that Powell's upper line, when at right angles with the course of the river, would be nearly parallel to Massie's line. \nThis may  be considered as, in some degree, an auxiliary argument in favour of the opinion which is entertained by this court, that the circuit court did right in laying down the upper line of Powell at right angles with his base line. \nThis line being established, it is of little importance to Oneal's claim in what manner the remaining lines of Powell may be run. \nThe call of the location, so far as respects the side binding on Massie, is said to stop at Massie's northwestern corner. Is that line to be continued? \n The conclusive objection to it is, that it would intersect the upper line before the quantity was obtained, and would, consequently, entirely defeat the call for a back line parallel to the course of the river. \nIs a line at right angles with the general course of the river to be run from Massie's corner and continued until a line parallel to the base line would include the quantity? \nThis would be less exceptionable, but it would be departing further from the square, and might, in some instances, exhibit a plat the breadth of which would not be one third of its length. This point, however, is not critically examined, because it is of very little importance in the present  cause. The upper line of Powell, on which Oneal binds, would be the same as far as it now runs, and should it be continued further, it would only take a small angle of Oneal's survey as made by order of the circuit court. \nThe court is of opinion that Powell's entry is rightly surveyed by order of the circuit court, and it is an additional argument in support of this opinion, that, with the exception of the angle unavoidably made by the interference of Massie, the general form of the land approaches a square more nearly than if laid off in any other manner. \nIf Powell's entry be correctly surveyed, Oneal's cannot be laid off otherwise than it is. \nWere it even to be admitted that the original survey made for Powell was correct, it is entirely possible that the case of the plaintiff would not be materially improved thereby. \nPowell's back line would probably terminate on the river; in which event, that would be his upper corner on the Scioto, which is called for as the beginning of Oneal's entry. Oneal then calls to run on the river a distance of 520 poles on a straight line, and with Powell's line so far as that a line parallel to the general  course of the river shall  include 1,000 acres. Either this entry is rendered totally incapable of being surveyed in consequence of the call for Powell's line, or it must be so surveyed as to include almost the whole town of Chilicothe, and to take a considerable part of Massie's land. \nIt is, however, unnecessary to inquire what would be the rights of the person claiming Oneal's entry, in that event, since the court is satisfied that the survey, as directed by the circuit court, is correct. \nThe case, then, as made out in evidence, is this. Nathaniel Massie, employed to locate a military warrant for Oneal, has entered the warrant in pursuance of his engagement. On surveying the entries on which that of Oneal depended, he either believed that Oneal's entry was void from the repugnancy of its calls, or if not absolutely void, was incapable of covering the land which, according to legal construction, and the common understanding of those who might read the entries, it must be considered as covering; or he thought that, by obtaining a prior patent for the land, he might resist any claim which might afterwards be made by Oneal, or those claiming under him. If Massie really believed that Powell's entry was properly  surveyed, and that Oneal's entry, as made, could not be surveyed, it was his duty to amend it, or, if that was not his duty, to place it elsewhere. For omitting so to do he is chargeable with such gross neglect of duty as to render him responsible in damages, had his construction of Oneal's location even been correct. But, if in this he was mistaken, it would be dangerous in the extreme, it would be a cover for fraud which could seldom be removed, if a locator, alleging difficulties respecting a location, might withdraw it and take the land for himself. He, however, has not withdrawn it, except so far as it may be impliedly withdrawn by the survey of 530 acres.With that exception, the entry still covers the land on which it was originally placed, and is still entitled to that land. But Massie, the agent of Oneal, has entered and surveyed a portion of that land for himself, and obtained a patent for it in his own name.  According to the clearest and best established principles of equity, the agent who so acts becomes a trustee for his principal. He cannot hold the land under  an entry for himself otherwise than as trustee for his principal. \nSo far, then,  as Oneal's land is within Massie's survey, Massie is a trustee for Oneal and his assignees, and upon the principle stated in the early part of this opinion, the court of Kentucky had jurisdiction of the cause. \nBut a part of Oneal's land is surveyed for Powell, and in a contest between his assignees and Powell, the court of Kentucky would have had no jurisdiction. This controversy, however, is not with Powell; it is with Massie, who is the purchaser of Powell's rights. The whole property being thus in the hands of Massie, and the court of Kentucky being in possession of the cause, and having clear jurisdiction of a part of it which decides the principle on which the whole depends, that court did right in deciding the whole cause, and decreeing to the assignees of Oneal the whole land originally included in the entry made for him. \nConsiderable doubts were entertained respecting the right of Watts to more than the unsurveyed part of the entry. But a majority of the court is of opinion that he stands precisely in the place of Oneal. \nAs Massie does not show that he had conveyed any of that part of Powell's survey which is included within Oneal's entry previous to the institution of  this suit, or even now, the allegation that he has conveyed a part of Powell's survey could not furnish sufficient matter for preventing the decree which was rendered. \nThe decree of the circuit court is affirmed with costs. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. delivered the opinion of the court to the following effect. \nThe questions intended to be submitted to the court were, 1st. Whether the marshal was bound to serve this process as soon as he reasonably could; and, 2.  Whether the service of such process would have made Hampson liable in case he had paid over the money after such service. On these points the court has no doubt. But the case is imperfectly stated. It does not appear that the plaintiff has sustained any loss by the neglect of the officer to serve the process, and for this reason \nThe judgment is affirmed. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. delivered the opinion of the court as follows: \nThis suit was instituted on a bond taken in pursuance  of the original embargo act, with a condition that the cargo of the schooner Mary, a sea-letter vessel, should be relanded in the port of East Portland, or some other port of the United States, \"the dangers of the seas only excepted.\" \nHer cargo was not relanded within the United States, but was carried to Porto Rico and sold. The defendants allege that they were driven by stress of weather into Porto Rico, where the cargo was landed by order of the government; and they insist that the case is within the exception contained in the condition of the bond. The circuit court instructed the jury that, if they believed the testimony, it was sufficient in law, to bar the action. To this opinion the counsel for the United States excepted; and its propriety is now to be considered. \nThe improbability of the allegations made by the defendants is no longer the subject of inquiry. The jury have verified them, and the court must receive them as true.  The testimony is, that the Mary was driven by tempestuous weather into a foreign port. That, while prosecuting her voyage, she encountered weather which so disabled both the crew and vessel, and put her in such a situation that, to escape Nantucket Shoals, \"she was obliged to change her course, and endeavour to gain a southern port.\" She changed her course and bore for Charleston. But such was the condition of the crew and of the vessel, and so severe and so adverse were the winds, that she \"could not make Charleston, nor any other port of the United States, and was obliged to bear away for the West Indies, to obtain relief.\" \nThe vessel, then, was driven into Porto Rico by the cause which forms the exception in the condition of the bond, and if the cargo had been lost at the mouth of the harbour, instead of entering the port, all would admit that the penalty of the bond had not been incurred. But it is contended that the dangers of the seas terminated on entering the port, and that no sufficient cause is shown for not bringing back the cargo to the United States. \n The case states that the governor of Porto Rico issued an order that the cargo should be landed and sold,  \"with which order the captain was obliged to comply.\" \nAs this case is stated, the Mary was driven into Porto Rico, and the sale of her cargo, while there, was inevitable. The dangers of the sea placed her in a situation which put it out of the power of the owners to reland her cargo within the United States. The obligors, then, were prevented, by the dangers of the seas, from complying with the condition of the bond; for an effect, which proceeds inevitably, and of absolute necessity from a specified cause, must be ascribed to that cause. \nIt is the unanimous opinion of this court that there is no error in the proceedings of the circuit court, and that the judgment be affirmed. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. delivered the opinion of the court as follows, viz. \nUpon a critical examination of the act of assembly on which this action is founded, the court is of opinion that it is rightly brought. Although the drawer of the bill was not liable to the damages of Virginia, the endorsor is subject to them, he having endorsed the bill in Alexandria. The words of the act are, that where a bill of exchange shall be protested, \"the drawer or endorsor shall be subject to 15 per cent. damages thereon.\" The third section gives an action of debt \"against the drawers or endorsors jointly, or against either of them separately.The act of assembly appears to contemplate  a distinct liability in the endorsor, founded on the contract created by his own endorsement, which is not affected by the extent of the liability of the drawer. This is the more reasonable, as a bill of exchange is taken as much on the credit of the endorsor, as of the drawer; and the endorsement is understood to be not simply the transfer of the paper, but a new and a substantive contract. \n There is, however, an objection taken to this declaration. It omits to allege notice of the protest; an omission which is deemed fatal. \nIt has been argued that the act of assembly, which gives the action of debt, not requiring notice to be laid in the declaration, that requisite, which is only essential in an action founded  on the custom of merchants, is totally dispensed with. But this court is not of that opinion. In giving the action of debt to the holder of a bill of exchange, and in giving it the dignity of a specialty, the legislature has not altered the character of the paper in other respects. It is still a pure commercial transaction governed by commercial law. Notice of the protest is still necessary, and the omission to aver it in the declaration is still  fatal. \nHad this error been moved in arrest of judgment, it is presumable the judgment would have been arrested; but it is not too late to allege, as error, in this court, a fault in the declaration, which ought to have prevented the rendition of a judgment in the court below. \nThe judgment is arrested, and the cause remanded with direction that the judgment be arrested. \nAfter the opinion was delivered, Youngs praye that the cause might be remanded with leave to amena \nMARSHALL, Ch. J. Here is a verdict which must be set aside before an amendment can be allowed. \nIt might be set aside by the court below, but this court can see no reason in the record for setting it aside. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. delivered the opinion of the court as follows: \nThe first error, alleged in this record, consists in sustaining the plea of infancy to the first count in the declaration. \nThis count states a contract between the plaintiff and defendant, by which the plaintiff committed  seventy barrels of flour to the care of the defendant, to be carried to Norfolk, and there sold for money, or on sixty days' credit payable in drafts on Alexandria, negotiable in the bank. The plaintiff then alleges that the defendant did not perform his duty in selling conformably to his instructions, but, by his negligence, permitted the flour to be wasted so that it was lost to the plaintiff. \nThis case, as stated, is completely a case of contract, and exhibits no feature of such a tort as well charge an infant. There can be no doubt but that the court did right in sustaining the plea. \nThe second count is in trover, and charges a conversion of the flour. \nThat an infant is liable for a conversion is not contested. The circuit court was of itself of that opinion, and therefore sustained the demurrer to this plea. But, in the progress of the cause, it appeared  that the goods were not taken wrongfully by the defendant, but were committed to his care by the plaintiff, and that the conversion, if made, was made while they were in his custody under a contract. The court then permitted infancy to be given in evidence on the plea of not guilty. To this opinion an exception  was taken. \nIf infancy was a bar to a suit of trover brought in such a case, the court can perceive no reason why it may not be given in evidence on this plea. If it may be given in evidence on non assumpsit, because the infant cannot contract, with at least as equal reasol may it be given in evidence in an action of trover in a case in which he cannot convert. \nBut this court is of opinion that infancy is no complete bar to an action of trover, although the goods converted be in his possession, in virtue of a previous contract. The conversion is still in its nature a tort; it is not an act of omission but of commission, and is within that class of offences for which infancy cannot afford protection. Yet it may be given in evidence, for it may have some influence on the question, whether the act complained of be really a conversion, or not. \nThe court, therefore, does not consider the admission of this testimony as error. \nThe defendant exhibited the letter of instructions under which he acted, which is in these words: \"Sir,\" &c. but the plaintiff offered evidence that the flour was not sold in  Norfolk, but was shipped by the defendant to the West Indies, for and on  account of a certain Joseph Smith, as by the bill of lading which was produced. The defendant then gave his infancy in evidence, and prayed the court to instruct the jury, that if they believed the testimony, he was not liable on the second count stated in the plaintiff's declaration, which instruction the court gave, and to this opinion an exception was taken. \nThis instruction of the court must have been founded on the opinion that infancy is a bar to an action of  trover for goods committed to the infant, under a contract, or that the fact proved did not amount to a conversion. \nThis court has already stated its opinion to be, that an infant is chargeable with a conversion, although it be of goods which came lawfully to his possession. It remains to inquire whether this is so clearly shown not to be a conversion, as to justify the court in saying to the jury, the defendant was not liable in this action. \nThe proof offered was, that the defendant shipped the goods on account of Joseph Smith. This fact, standing unconnected with any other, would unquestionably be testimony which, if not conclusive in favour of the plaintiff, was, at least, proper to be left to the jury.  But it is urged that this statement refers to the bill of lading, from the notes in the margin of which it appears that, although the bill of lading, which was for a much larger quantity of flour, was made out in the name of Joseph Smith yet, in point of fact, the shipment was made for various persons, and, among others, for the plaintiff. \nThe court perceive, in this bill of exceptions, no evidence explanatory of the terms under which this shipment was made, and the marks in the margin of the bill of lading do not, in themselves, prove that the shipment was not made for the person in whose name the bill was filled up. \nIt is possible that it may have been proved to the jury that this flour was really intended to be shipped on account of the plaintiff, and that the defendant did not mean to convert it to his own use. But the letter did not authorize him so to act. It was not, therefore, a complete discharge; and should it be admitted that an infant is not chargeable with a conversion made by mistake, this testimony ought still to have been left to the jury. The defendant would certainly be at liberty to prove that the shipment was in fact made for Vasse, and that he acquiesced  in it so far as to consider the transaction not as a conversion; but without any of  these circumstances which, if given in evidence, ought to have been left to the jury, the court has declared the action not sustainable. \nThis court is of opinion that the circuit court has erred in directing the jury that, upon the evidence given, the defendant was not liable under the second count; for which their judgment is to be reversed, and the cause remanded for further proceedings. 1 \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. delivered the opinion of the court as follows: \nAt the opening of this case, some doubt was entertained respecting the jurisdiction of the supreme court, but that doubt is removed by an inspection of the act by which the circuit court  of the district of Columbia is constituted. The words of that act, descriptive of the appellate jurisdiction of this court, are more ample than those employed in the judicial act. They are, that \"any final judgment, order or decree in said circuit court, wherein the matter in dispute, exclusive of costs, shall exceed the value of 100 dollars, may be re-examined and reversed or affirmed in the supreme court. \nThe jurisdiction of this court being admitted, the proceedings of the circuit court, in ordering the inquisition  taken between these parties to be quashed, comes on to be examined. \nThe first objection to this proceeding is, that the court of Alexandria could take no cognisance of the subject, by way of motion. \nThe validity of this objection depends entirely on the act of congress, under which this inquisition was taken. If it was to be recorded by order of the court, if the judgment of the court was, in any manner, to be exercised upon it, then, in all which has been done, the court has exercised its jurisdiction, and the inquiry will be whether there was sufficient cause for refusing to permit the inquisition to be recorded. If, on the other hand, the clerk was  a mere ministerial officer directed, by law, to perform a ministerial act, without any superintending agency, on the part of the court, then the court could not, upon motion, prohibit the clerk to perform his duty, and could not legitimately quash the inquisition. \nThe act of congress directs \"that the inquisition, when taken, shall be signed by the marshal and by the jurymen present, and returned by the marshal to the clerk of the county, to be by him recorded.\" \nThat the legislature may direct the clerk of a court to perform a specified service, without making his act the act of the court, will not be controverted: and, if this may be done, it is difficult to conceive words which convey this idea more clearly than those which are employed in this act. \nThe inquisition is not returnable to the court, but to the clerk. It is not to be recorded by order of the court, but is to be recorded by the clerk, on receiving it from the marshal. It does not derive its validity from being recorded, but remains afterwards liable to all the objections which might be taken to it, previous thereto. If, for example, an inquisition should be recorded which was found by eleven jurors, that inquisition  would neither vest the land in the company, nor give a right to  the former proprietor to demand the money to which it was valued. The inquisition, then, is to be recorded solely for preservation, and the act of recording is a ministerial act which the law directs the clerk to perform, without submitting the paper to the judgment of the court. The law asks not the intervention of the court, and requires no exercise of judicial functions. \nThe difference between this act and those, the execution of which is superintended by the court, is apparent. In those cases, the instrument is to be brought into court, and acted upon by the court: in this it is to be delivered to the clerk at any time, and acted on by him without the intervention of the court. \nThis court is unanimously of opinion that the circuit court for the county of Alexandria could not legally entertain the motion for quashing the inquisition found in this case, nor legally prevent their clerk from recording it. Their judgment, therefore, is reversed, and the motion to be dismissed. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, CH. J. delivered the opinion of the court as follows, viz. 1 \nThe plaintiff and defendant had been copartners in trade, and had carried on their business in two stores; the one a jewelry  store in the name of Lynn, to be conducted exclusively by him; the other a hardware store in the name of Finley & Lynn, to be under the joint management of the partners. \nPrevious to the commencement of their partnership, Lynn had contracted a debt to Lemuel Wells & Co. of New-York, for goods ordered for a jewelry sotre carried on by himself, which goods it was mutually agreed to transfer to the new concern, and the debt to Lemuel Wells & Co. should become a debt chargeable on the social fund. \nIn February, 1805, it was agreed to dissolve the copartnership; and articles were entered into to take  effect on the first day of March. The terms were, \"that Adam Lynn shall withdraw all the property put into the joint stock by him, and that be shall have the goods in the jewelry store, and all the debts due to that store, as a compensation in lieu of the profits arising from the whole business; and the said Finley agrees to take, on his own account, the goods in the hardware store, and the goods which are ordered in the spring, and to indemnify the said Adam Lynn from all claims or demands upon the said concern, or which may arise for goods now ordered, and not yet arrived.\" \n On the second of March, a bond of indemnity was executed, the condition of which, after stating the dissolution, proceeds thus: \"On which dissolution it was, among other things, agreed that the said Oliver P. Finley should satisfy and pay all debts and contracts due from, or entered into by, the said copartnership, or either of the said copartners, for or on account of or for the benefit of the said copartnership, including certain debts due from the said Adam Lynn for goods by him ordered, which have been received by the said copartnership, and also all debts which may arise from merchandise hereafter shipped to the said concern, in consequence of any orders heretofore made. \n\"Now the condition of the above obligation is such, that if the said Oliver P. Finley shall well and truly satisfy and discharge all the debts and contracts herein before described, so as to indemnify and save harmless the said Adam Lynn from the payment of the same, and from any suit or prosecution in law or equity for or on account of the said debts and contracts, then this obligation to be void.\" \nSome time previous to the dissolution, an action had been brought by Lemuel Wells & Co. against Adam Lynn for  the recovery of this debt which was then depending. \nIn December, 1806, Adam Lynn, for the first time, claimed, under the bond of indemnity, the amount of  the debt to Lemuel Wells & Co. and, payment being refused, instituted a suit on the bond. Supposing that no defence could be made at law, judgment was confessed, with a reservation of all equitable objections to the payment. A bill was then filed suggesting that the bond was executed by mistake, and in the confidence that it was in exact conformity with the articles, and praying that it might be restrained by the articles. Several extrinsic circumstances are also detailed and relied upon as demonstrating that Lynn himself did not suppose, until so informed by counsel, that the bond comprehended this debt. \nAn injunction was granted which, on the coming in of the answer, was dissolved, and, on a final hearing, the bill was dismissed. \nThe answer denies all the allegations of the bill which go to the mistake under which the bond was executed; insists that it conforms to the true meaning of the articles and intent of the parties; and endeavours to explain those extrinsic circumstances on which the plaintiff relied. \n That a bond, executed in pursuance of articles, may be restrained by those articles, if the departure from them be clearly shown, is not to be controverted. But in this case, the majority of the court is of opinion that no such departure is manifested with sufficient clearness to justify the interposition of a court of equity. \nBy the articles of copartnership, the debt to Lemuel Wells & Co. was assumed by the firm of Finley & Lynn, and was payable out of the partnership fund. It is true that, at law, it did not constitute a demand against the partnership, but the court is much inclined to the opinion, that, had Lynn become insolvent, a suit in equity might have been sustained, on this claim, against Finley & Lynn. \nIf it might in equity, though not in law, be a \"claim  or demand upon the concern,\" there does not appear to be such a repugnancy between the bond and the articles as to induce the court to say that the bond, which, so far as is shown in this cause, was executed without imposition, and with a knowledge of its contents, binds the obligors further than they intended to be bound. The extrinsic circumstances relied on are certainly entitled to much consideration;  but they are not thought sufficiently decisive and unequivocal in their character to justify a court of equity in restraining legal rights acquired under a solemn contract. \nThough this is the principal object of the bill, it may be understood to contemplate something further. It prays for a settlement of all accounts, and for general relief. \nSo far as the accounts between the parties are closed by the articles of dissolution, no reason can be assigned for opening them. But if rights, growing out of those articles, require a settlement, the plaintiff is entitled to an account. \nBy a majority of the court it is conceived that if any profits had arisen on the jewelry store, independent of the goods on hand and of the debts due to the store, the plaintiff is entitled to them. It is not probable that there are such profits; but it is very possible that there may be. Large sums of money may have been received, and might either be on hand when the dissolution took place, or have been diverted to various uses. If such be the fact, the majority of the court is of opinion that  any fair construction of the articles gives those profits to the plaintiff. The contract is, that  Adam Lynn shall have \"the goods in the jewelry store, and all the debts due to that store, as a compensation in lieu of the profits arising from the whole business.\" Now the profits of the jewelry store, if any, not existing in debts or goods, were certainly a part of the \"profits of the whole business,\" and are, consequently, yeilded to the plaintiff. \nThat this was the deliberate intention of the defendant,  is avowed in his answer. A proposition for a dissolution was, he says, made by him in writing and accepted by the plaintiff. That proposition is, \"that the defendant should have the merchandise in the jewelry store, and the debts due to that store, as a compensation in lieu of the profits of the whole business; that the complainant should hold the merchandise in the hardware store, and the debts due to it, and the profits of the trade.\" \nNow the profits of the jewelry store are certainly a part of the \"profits of the trade.\" \nThe plaintiff also claims a debt said to be due from the jewelry store to the hardware store. \nAs all the debts due to the hardware store are obviously assigned to Finley, this debt becomes his property, unless his claim to it is relinquished  by the undertaking to pay all debts due from the concern. \nThe words of this undertaking are to be looked for in the condition of his bond. He is to \"satisfy and pay all debts and contracts due from, or entered into by, the said copartnership, or either of the said copartners, for or on account of or for the benefit of the said copartnership.\" \nThe terms of this stipulation appear to the court to be applicable to claims upon the copartnership, and not to claims of a part of the company on the other part. He is to satisfy and pay all debts and contracts due from, or entered into by, the said copartnership, not to release the claim of one store upon the other. This is a claim which did not exist upon the copartnership, and which grows out of the articles of dissolution. Those articles assign to the plaintiff all the profits of the hardware store, as well as the debts due to it. They separate what was before united. They draw the distinction between the hardware and the jewelry store, and make the debt due to the hardware store a part of the profits of that store. \n The residue of the condition does not affect the question, and need not be recited. \nIt is, then, the opinion  of a majority of the court that, if there was really a debt due from the jewelry store to the hardware store, Finley is entitled to that debt. \nThis is a proper subject for an account. \nThe plaintiff has probably not applied for this account in the court below, and it does not appear to be a principal object of his bill. This court, therefore, doubted whether it would be most proper to affirm the decree dismissing the bill with the addition that it should be without prejudice to any future claim for profits, and for the debt due from one store to the other, or to open the decree and direct the account. The latter was deemed the more equitable course. The decree, therefore, is to be reversed, and the cause remanded, with directions to take an account between the two stores, and an account of the profits of the jewelry store, if the same shall be required by the plaintiff. \nTODD, J. concurred in the opinion of the court that the debt of Wells & Co. was a debt to be paid by Finley, but he differed upon the other part of the case, being of opinion, that the complainant was not entitled to a relief which by his bill he had made a merit of waiving. \nDecree reversed, and the cause remanded,  with directions to reinstate the injunction, and take an account, &c. \n \n\n ", " \nOpinion \n\n \n \n MARSHALL, Ch. J. delivered the opinion of the court as follows: \nOn the principal question in this case the court can entertain  no doubt. On the capture of the Minerva, the right to abandon was complete, and this right was exercised during her detention. \nThe objections to the form of the abandonment are not deemed substantial. The agent who made the insurance might certainly be credited, and, in transactions of this kind, always is credited, when he declares that, by the order of his principal, he abandons to the underwriters. In this case, the jury find that the abandonment was made for the plaintiff; and this finding establishes that fact. \nThe informality of the deed of cession is thought unimportant, because, if the abandonment was unexceptionable, the property vested immediately in the underwriters, and the deed was not essential to the right of either party. Had it been demanded and refused, that circumstance might have altered the law of the case. \nIf the abandonment was legal, it put the underwriters completely in the place of the assured, and Parker became their agent. When he contracts on behalf of the owners of the goods, he contracts on behalf of the underwriters, who have become owners, not on behalf of Stark, who has ceased to be one. His act is no longer the act of Stark, and is not to  be considered as an interference, on his part, which may affect the abandonment. If any particular instructions had been given on this subject, if any act of ownership had been exerted by Stark himself, such conduct might be construed into a relinquishment of an abandonment which had not been accepted; but as nothing of the kind exists, the act of the supercargo is to be considered as the act of the persons interested, whoever they may be. \n The only point which presents any difficulty in the opinion of the court, is the objection founded on the omission, in the verdict, to find that the abandonment was made in reasonable time. \nThe law is settled that an abandonment, to be effectual, must be made in reasonable time; but what time is reasonable is a question compounded of fact and law, which has not yet been reduced to such certainty as to enable the court to pronounce upon it, without the aid of a jury. Certainly the delay may be so great as to enable every man to declare, without hesitation, that it is unreasonable, or the abandonment may be so immediate, that all will admit it to have been made in reasonable time: but there may be such a medium between these extremes,  as to render it doubtful whether the delay has been reasonable or otherwise. If it was a mere question of law which the court might decide, then the law would determine, to a day or an hour, on the time left for deliberation, after receiving notice of the loss. But the law has not so determined, and it therefore remains a question compounded of fact and law, which must be found by a jury under the direction of the court. \nIn this case the jury have found an abandonment, but have not found whether it was made in due time or otherwise. The fact is, therefore, found defectively; and for that reason a venire facias de novo must be awarded. \nIt may not be amiss to remark that the judicial opinions which we generally find in the books, on these subjects, are usually given by way of instruction to the jury, or on a motion for a new trial, not on special verdicts. The distinction between the cases deserves consideration. \nJudgment reversed, and the cause remanded, with direction to award a venire facias de novo. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. delivered an opinion to the following effect: \nThe court considered many of the points in these cases while they had the case of The United States v. Hall and Worth under consideration, and upon the present argument I understand it to be the unanimous opinion of the court, that the law is for the plaintiffs in error, in all these cases. I cannot precisely say what are the grounds of that opinion; I can only state the reasons which have prevailed in my own mind. \nIt is true, as contended on the part of the United States, that the legislature is competent to declare what evidence shall be received of the facts offered in excuse for a violation of the letter of a statute. \nI also agree with the counsel  for the United States, that the words of the statute, \"loss by sea or other unavoldabie accident,\" mean loss by sea, or loss by other unavoidable accident. \nBut the question is, what sort of loss is meant? It must be such a loss as necessarily prevents the party from complying with the condition of the bond. It is not necessary that it should be an actual destruction of the property, but such a loss only as necessarily prevents the relanding of the goods. \nThis statute is not like that upon which the prosecution was founded in the case cited from Bunbury. Our statute does not require evidence that the goods have \"perished in the sea.\" It only requires proof of such a loss, by an unavoidable accident, as prevents the  relanding of the cargo, according to the condition of the bond. When the property is captured, and taken away by the superior force of a foreign power so as to prevent the relanding, it is lost within the meaning of the statute by an unavoidable accident, although the owner may have received a compensation for it. \nConcur by:", " \nOpinion \n\n \n \n  MARSHALL , Ch. J. delivered the opinion of the court upon the pleadings, as follows: \n In this cause there are demurrers to three pleas filed in the circuit court, and a special verdict found on an issue joined on the 4th plea. The pleas were all sustained, and judgment was rendered for the defendant. \nTo support this judgment, this court must concur in overruling all the demurrers; for, if the plea to any one of the counts be bad, the plaintiff below is entitled to damages on that count. \nThe covenant, on which the breach in the first count is assigned, is in these words; \"that the legislature of the said state, (Georgia,) at the time of the passing of the act of sale atoresaid, had good right to sell and dispose of the same, in manner pointed out by the said act.\" \nThe breach of this covenant is assigned in these words; \"now the said Fletcher saith that, at the time when the said act of the legislature  of Georgia, entitled an act, &c. was passed, the said legislature had no authority to sell and dispose of the tenements aforesaid, or of any part thereol, in the manner pointed out in the said act.\" \n The plea sets forth the constitution of the state of Georgia, and avers that the lands lay within that state. It then sets forth the act of the  legislature, and avers that the lands, described in the declaration, are included within those to be sold by the said act; and that the governor was legally empowered to sell and convey the premises. \nTo this plea the plaintiff demurred; and the defendant joined in the demurrer. \nIf it be admitted that sufficient matter is shown, in this plea, to have justified the defendant in denying the breach alleged in the count, it must also be admitted that he has not denied it. The breach alleged is, that the legislature had not authority to sell. The bar set up is, that the governor had authority to convey. Certainly an allegation, that the principal has no right to give a power, is not denied by alleging that he has given a proper power to the agent. \nIt is argued that the plea shows, although it does not, in terms, aver, that the legislature had authority to convey. The court does not mean to controvert this position, but its admission would not help the case. The matter set forth in the plea, as matter of inducement, may be argumentatively good, may warrant an averment which negatives the averment in the declaration, but does not itself constitute that negative. \nHad the plaintiff  tendered an issue in fact upon this plea, that the governor was legally empowered to sell and convey the premises, it would have been a departure from his declaration; for the count to which this plea is intended as a bar alleges no want of authority in the governor. He was therefore under the necessity of demurring. \nBut it is contended that although the plea be substantially bad, the judgment, overruling the demurrer, is correct, because the declaration is defective. \nThe defect alleged in the declaration is, that the  breach is not assigned in the words of the covenant. The covenant is, that the legislature had a right to convey, and the breach is, that the legislature had no authority to convey. \nIt is not necessary that a breach should be assigned in the very words of the covenant.It is enough that the words of the assignment show, unequivocally, a substantial breach. The assignment under consideration does show such a breach. If the legislature had no authority to convey, it had no right to convey. \nIt is, therefore, the opinion of this court, that the circuit court erred in overruling the demurrer to the first plea by the defendant pleaded, and that their judgment  ought therefore to be reversed, and that judgment on that plea be rendered for the plaintiff. \nAfter the opinion of the court was delivered, the parties agreed to amend the pleadings, and the cause was continued for further consideration. \nThe cause having been again argued at this term, \nMARSHALL, Ch. J. delivered the opinion of the court as follows: \nThe pleadings being now amended, this cause comes on again to be heard on sundry demurrers, and on a special verdict. \nThe suit was instituted on several covenants contained in a deed made by John Peck, the defendant in error, conveying to Robert Fletcher, the plaintiff in error, certain lands which were part of a large purchase made by James Gunn and others, in the year 1795, from the state of Georgia, the contract for which was made in the form of a bill passed by the legislature of that state. \nThe first count in the declaration set forth a breach  in the second covenant contained in the deed. The covenant is, \"that the legislature of the state of Georgia, at the time of passing the act of sale aforesaid, had good right to sell and dispose of the same in manner pointed out by the said act.\" The breach assigned is, that  the legislature had no power to sell. \nThe plea in bar sets forth the constitution of the state of Georgia, and avers that the lands sold by the defendant to the plaintiff, were within that state. It then sets forth the granting act, and avers the power of the legislature to sell and dispose of the premises as pointed out by the act. \nTo this plea the plaintiff below demurred, and the defendant joined in demurrer. \nThat the legislature of Georgia, unless restrained by its own constitution, possesses the power of disposing of the unappropriated lands within its own limits, in such manner as its own judgment shall dictate, is a proposition not to be controverted. The only question, then, presented by this demurrer, for the consideration of the court, is this, did the then constitution of the state of Georgia prohibit the legislature to dispose of the lands, which were the subject of this contract, in the manner stipulated by the contract? \nThe question, whether a law be void for its repugnancy to the constitution, is, at all times, a question of much delicacy, which ought seldom, if ever, to be decided in the affirmative, in a doubtful case. The court, when impelled by duty to render  such a judgment, would be unworthy of its station, could it be unmindful of the solemn obligations which that station imposes. But it is not on slight implication and vague conjecture that the legislature is to be pronounced to have transcended its powers, and its acts to be considered as void. The opposition between the constitution and the law should be such that the judge feels a clear and strong conviction of their incompatibility with each other. \nIn this case the court can perceive no such opposition. In the constitution of Georgia, adopted in the  year 1789, the court can perceive no restriction on the legislative power, which inhibits the passage of the act of 1795. The court cannot say that, in passing that act, the legislature has transcended its powers, and violated the constitution. \nIn overruling the demurrer, therefore, to the first plea, the circuit court committed no error. \nThe 3d covenant is, that all the title which the state of Georgia ever had in the premises had been legally conveyed to John Peck, the grantor. \n The 2d count assigns, in substance, as a breach of this covenant, that the original grantees from the state of Georgia promised  and assured divers members of the legislature, then sitting in general assembly, that if the said members would assent to, and vote for, the passing of the act, and if the said bill should pass, such members should have a share of, and be interested in, all the lands purchased from the said state by virtue of such law. And that divers of the said members, to whom the said promises were made, were unduly influenced thereby, and, under such influence, did vote for the passing of the said bill; by reason whereof the said law was a nullity, &c. and so the title of the state of Georgia did not pass to the said Peck, &c. \nThe plea to this count, after protesting that the promises it alleges were not made, avers, that until after the purchase made from the original grantees by James Greenleaf, under whom the said Peck claims, neither the said James Greenleaf, nor the said Peck, nor any of the mesne vendors between the said Greenleaf and Peck, had any notice or knowledge that any such promises or assurances were made by the said original grantees, or either of them, to any of the members of the legislature of the state of Georgia. \nTo this plea the plaintiff demurred generally, and the defendant  joined in the demurrer. \n That corruption should find its way into the governments of our infant republies, and contaminate the very source of legislation, or that impure motives should contribute to the passage of a law, or the formation of a legislative contract, are circumstances most deeply to be deplored. How far a court of justice would, in any case, be competent, on proceedings instituted by the state itself, to vacate a contract thus formed, and to annul rights acquired, under that contract, by third persons having no notice of the improper means by which it was obtained, is a question which the court would approach with much circumspection. It may well be doubted how far the validity of a law depends upon the motives of its framers, and how far the particular inducements, operating on members of the supreme sovereign power of a state, to the formation of a contract by that power, are examinable in a court of justice. If the principle be conceded, that an act of the supreme sovereign power might be declared null by a court, in consequence of the means which procured it, still would there be much difficulty in saying to what extent those means must be applied to  produce this effect. Must it be direct corruption, or would interest or undue influence of any kind be sufficient? Must the vitiating cause operate on a majority, or on what number of the members? Would the act be null, whatever might be the wish of the nation, or would its obligation or nullity depend upon the public sentiment? \nIt the majority of the legislature be corrupted, it may well be doubted, whether it be within the province of the judiciary to control their conduct, and, if less than a majority act from impure motives, the principle by which judicial interference would be regulated, is not clearly discerned. \nWhatever difficulties this subject might present, when viewed under aspects of which it may be susceptible, this court can perceive none in the particular pleadings now under consideration. \nThis is not a bill brought by the state of Georgia, to annul the contract, nor does it appear to the court, by  this count, that the state of Georgia is dissatisfied with the sale that has been made. The case, as made out in the pleadings, is simply this. One individual who holds lands in the state of Georgia, under a deed covenanting that the title of Georgia was  in the grantor, brings an action of covenant upon this deed, and assigns, as a breach, that some of the members of the legislature were induced to vote in favour of the law, which constituted the contract, by being promised an interest in it, and that therefore the act is a mere nullity. \nThis solemn question cannot be brought thus collaterally and incidentally before the court. It would be indecent, in the extreme, upon a private contract, between two individuals, to enter into an inquiry respecting the corruption of the sovereign power of a state. If the title be plainly deduced from a legislative act, which the legislature might constitutionally pass, if the act be clothed with all the requisite forms of a law, a court, sitting as a court of law, cannot sustain a suit brought by one individual against another founded on the allegation that the act is a nullity, in consequence of the impure motives which influenced certain members of the legislature which passed the law. \nThe circuit court, therefore, did right in overruling this demurrer. \nThe 4th covenant in the deed is, that the title to the premises has been, in no way, constitutionally or legally impaired by virtue of any  subsequent act of any subsequent legislature of the state of Georgia. \nThe third count recites the undue means practised on certain members of the legislature, as stated in the second count, and then alleges that, in consequence of these practices, and of other causes, a subsequent legislature passed an act annulling and rescinding the law under which the conveyance to the original grantees was made, declaring that conveyance void, and asserting the title of the state to the lands it contained. The  count proceeds to recite at large, this rescinding act, and concludes with averring that, by reason of this act, the title of the said Peck in the premises was constitutionally and legally impaired, and rendered null and void. \nAfter protesting, as before, that no such promises were made as stated in this count, the defendant again pleads that himself and the first purchaser under the original grantees, and all intermediate holders of the property, were purchasers without notice. \nTo this plea there is a demurrer and joinder. \nThe importance and the difficulty of the questions, presented by these pleadings, are deeply felt by the court. \nThe lands in controversy vested absolutely  in James Gunn and others, the original grantees, by the conveyance of the governor, made in pursuance of an act of assembly to which the legislature was fully competent. Being thus in full possession of the legal estate, they, for a valuable consideration, conveyed portions of the land to those who were willing to purchase.  If the original transaction was infected with fraud, these purchasers did not participate in it, and had no notice of it. They were innocent. Yet the legislature of Georgia has involved them in the fate of the first parties to the transaction, and, if the act be valid, has annihilated their rights also. \nThe legislature of Georgia was a party to this transaction; and for a party to pronounce its own deed invalid, whatever cause may be assigned for its invalidity, must be considered as a mere act of power which must find its vindication in a train of reasoning not often heard in courts of justice. \nBut the real party, it is said, are the people, and when their agents are unfaithful, the acts of those agents cease to be obligatory. \nIt is, however, to be recollected that the people can  act only by these agents, and that, while within the  powers conferred on them, their acts must be considered as the acts of the people. If the agents be corrupt, others may be chosen, and, if their contracts be examinable, the common sentiment, as well as common usage of mankind, points out a mode by which this examination may be made, and their validity determined. \nIf the legislature of Georgia was not bound to submit its pretensions to those tribuhals which are established for the security of property, and to decide on human rights, if it might claim to itself the power of judging in its own case, yet there are certain great principles of justice, whose authority is universally acknowledged, that ought not to be entirely disregarded. \nIf the legislature be its own judge in its own case, it would seem equitable that its decision should be regulated by those rules which would have regulated the decision of a judicial tribunal. The question was, in its nature, a question of title, and the tribunal which decided it was either acting in the character of a court of justice, and performing a duty usually assigned to a court, or it was exerting a mere act of power in which it was controlled only by its own will. \nIf a suit be brought to  set aside a conveyance obtained by fraud, and the fraud be clearly proved, the conveyance will be set aside, as between the parties; but the rights of third persons, who are purchasers without notice, for a valuable consideration, cannot be disregarded. Titles, which, according to every legal test, are perfect, are acquired with that confidence which is inspired by the opinion that the purchaser is safe. If there be any concealed defect, arising from the conduct of those who had held the property long before he acquired it, of which he had no notice, that concealed defect cannot be set up against him. He has paid his money for a title good at law, he is innocent, whatever may be the guilt of others, and equity will not subject him to the penalties attached to that guilt. All titles would be insecure, and the intercourse  between man and man would be very seriously obstructed, if this principle be overturned. \nA court of chancery, therefore, had a bill been brought to set aside the conveyance made to James Gunn and others, as being obtained by improper practices with the legislature, whatever might have been its decision as respected the original grantees, would have  been bound, by its own rules, and by the clearest principles of equity, to leave unmolested those who were purchasers, without notice, for a valuable consideration. \nIf the legislature felt itself absolved from those rules of property which are common to all the citizens of the United States, and from those principles of equity which are acknowledged in all our courts, its act is to be supported by its power alone, and the same power may devest any other individual of his lands, if it shall be the will of the legislature so to exert it. \nIt is not intended to speak with disrespect of the legislature of Georgia, or of its acts. Far from it. The question is a general question, and is treated as one. For although such powerful objections to a legislative grant, as are alleged against this, may not again exist, yet the principle, on which alone this rescinding act is to be supported, may be applied to every case to which it shall be the will of any legislature to apply it. The principle is this; that a legislature may, by its own act, devest the vested estate of any man whatever, for reasons which shall, by itself, be deemed sufficient. \nIn this case the legislature may have had ample  proof that the original grant was obtained by practices which can never be too much reprobated, and which would have justified its abrogation so far as respected those to whom crime was imputable. But the grant, when issued, conveyed an estate in fee-simple to the grantee, clothed with all the solemnities which law can bestow. This estate was transferrable; and those who purchased parts of it were not stained by that  guilt which infected the original transaction. Their case is not distinguishable from the ordinary case of purchasers of a legal estate without knowledge of any secret fraud which might have led to the emanation of the original grant. According to the well known course of equity, their rights could not be affected by such fraud. Their situation was the same, their title was the same, with that of every other member of the community who holds land by regular conveyances from the original patentee. \nIs the power of the legislature competent to the annihilation of such title, and to a resumption of the property thus held? \nThe principle asserted is, that one legislature is competent to repeal any act which a former legislature was competent to pass; and that  one legislature cannot abridge the powers of a succeeding legislature. \nThe correctness of this principle, so far as respects general legislation, can never be controverted. But, if an act be done under a law, a succeeding legislature cannot undo it. The past cannot be recalled by the most absolute power. Conveyances have been made, those conveyances have vested legal estates, and, if those estates may be seized by the sovereign authority, still, that they originally vested is a fact, and cannot cease to be a fact. \nWhen, then, a law is in its nature a contract, when absolute rights have vested under that contract, a repeal of the law cannot devest those rights; and the act of annulling them, if legitimate, is rendered so by a power applicable to the case of every individual in the community. \n It may well be doubted whether the nature of society and of government does not prescribe some limits to the legislative power; and, if any be prescribed, where are they to be found, if the property of an individual, fairly and honestly acquired, may be seized without compensation. \n To the legislature all legislative power is granted; but the question, whether the act  of transferring the property of an individual to the public, be in the nature of the legislative power, is well worthy of serious reflection. \nIt is the peculiar province of the legislature to prescribe general rules for the government of society; the application of those rules to individuals in society would seem to be the duty of other departments. How far the power of giving the law may involve every other power, in cases where the constitution is silent, never has been, and perhaps never can be, definitcly stated. \nThe validity of this rescinding act, then, might well be doubted, were Georgia a single sovereign power. But Georgia cannot be viewed as a single, unconnected, sovereign power, on whose legislature no other restrictions are imposed than may be found in its own constition. She is a part of a large empire; she is a member of the American union; and that union has a constitution the supremacy of which all acknowledge, and which imposes limits to the legislatures of the several states, which none claim a right to pass. The constitution of the United States declares that no state shall pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts. \n Does the case now under consideration come within this prohibitory section of the constitution? \nIn considering this very interesting question, we immediately ask ourselves what is a contract? Is a grant a contract? \nA contract is a compact between two or more parties, and is either executory or executed.An executory contract is one in which a party binds himself to do, or not to do, a particular thing; such was the law under which the conveyance was made by the governor. A contract executed is one in which the object  of contract is performed; and this, says Blackstone, differs in nothing from a grant. The contract between Georgia and the purchasers was executed by the grant. A contract executed, as well as one which is executory, contains obligations binding on the parties. A grant, in its own nature, amounts to an extinguishment of the right of the grantor, and implies a contract not to reassert that right. A party is, therefore, always estopped by his own grant. \nSince, then, in fact, a grant is a contract executed, the obligation of which still continues, and since the constitution uses the general term contract, without distinguishing between those which are  executory and those which are executed, it must be construed to comprehend the latter as well as the former. A law annulling conveyances between individuals, and declaring that the grantors should stand seised of their former estates, notwithstanding those grants, would be as repugnant to the constitution as a law discharging the vendors of property from the obligation of executing their contracts by conveyances. It would be strange if a contract to convey was secured by the constitution, while an absolute conveyance remained unprotected. \nIf, under a fair construction the constitution, grants are comprehended under the term contracts, is a grant from the state excluded from the operation of the provision? Is the clause to be considered as inhibiting the state from impairing the obligation of contracts between two individuals, but as excluding from that inhibition contracts made with itself? \nThe words themselves contain no such distinction. They are general, and are applicable to contracts of every description. If contracts made with the state are to be exempted from their operation, the exception must arise from the character of the contracting party, not from the words which  are employed. \nWhatever respect might have been felt for the state sovereignties, it is not to be disguised that the framers of the constitution viewed, with some apprehension,  the violent acts which might grow out of the feelings of the moment; and that the people of the United States, in adopting that instrument, have manifested a determination to shield themselves and their property from the effects of those sudden and strong passions to which men are exposed. The restrictions on the legislative power of the states are obviously founded in this sentiment; and the constitution of the United States contains what may be deemed a bill of rights for the people of each state. \nNo state shall pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts. \nA bill of attainder may affect the life of an individual, or may confiscate his property, or may do both. \nIn this form the power of the legislature over the lives and fortunes of individuals is expressly restrained. What motive, then, for implying, in words which import a general prohibition to impair the obligation of contracts, an exception in favour of the right to impair the obligation  of those contracts into which the state may enter? \nThe state legislatures can pass no ex post facto law. An ex post facto law is one which renders an act punishable in a manner in which it was not punishable when it was committed. Such a law may inflict penalties on the person, or may inflict pecuniary penalties which swell the public treasury. The legislature is then prohibited from passing a law by which a man's estate, or any part of it, shall be seized for a crime which was not declared, by some previous law, to render him liable to that punishment. Why, then, should violence be done to the natural meaning of words for the purpose of leaving to the legislature the power of seizing, for public use, the estate of an individual in the form of a law annulling the title by which he holds that estate? The court can perceive no sufficient grounds for making this distinction. This rescinding act would have the effect of an ex post facto law. It forfeits the estate of Fletcher for a crime not committed by himself, but by those from whom he purchased.  This cannot be effected in the form of an ex post facto law, or bill of attainder; why,  then, is it allowable  in the form of a law annulling the original grant? \nThe argument in favour of presuming an intention to except a case, not excepted by the words of the constitution, is susceptible of some illustration from a principle originally ingrafted in that instrument, though no longer a part of it. The constitution, as passed, gave the courts of the United States jurisdiction in suits brought against individual states. A state, then, which violated its own contract was suable in the courts of the United States for that violation. Would it have been a defence in such a suit to say that the state had passed a law absolving itself from the contract? It is scarcely to be conceived that such a defence could be set up. And yet, if a state is neither restrained by the general principles of our political institutions, nor by the words of the constitution, from impairing the obligation of its own contracts, such a defence would be a valid one. This feature is no longer found in the constitution; but it aids in the construction of those clauses with which it was originally associated. \nIt is, then, the unanimous opinion of the court, that, in this case, the estate having passed into the hands of  a purchaser for a valuable consideration, without notice, the state of Georgia was restrained, either by general principles which are common to our free institutions, or by the particular provisions of the constitution of the United States, from passing a law whereby the estate of the plaintiff in the premises so purchased could be constitutionally and legally impaired and rendered null and void. \nIn overruling the demurrer to the 3d plea, therefore, there is no error. \nThe first covenant in the deed is, that the state of Georgia, at the time of the act of the legislature thereof, entitled as aforesaid, was legally seised in fee of the soil thereof subject only to the extinguishment of part of the Indian title thereon. \n The 4th count assigns, as a breach of this covenant, that the right to the soil was in the United States, and not in Georgia. \nTo this count the defendant pleads, that the state of Georgia was seised; and tenders an issue on the fact in which the plaintiff joins. On this issue a special verdict is found. \nThe jury find the grant of Carolina by Charles second to the Earl of Clarondon and others, comprehending the whole country from 36 deg. 30 min. north  lat. to 29 deg. north lat., and from the Atlantic to the South Sea. \nThey find that the northern part of this territory was afterwards erected into a separate colony, and that the most northern part of the 35 deg. of north lat. was the boundary line between North and South Carolina. \nThat seven of the eight proprietors of the Carolinas surrendered to George 2d in the year 1729, who appointed a Governor of South Carolina. \nThat, in 1732, George the 2d granted, to the Lord Viscount Percival and others, seven eights of the territory between the Savannah and the Alatamaha, and extending west to the South Sea, and that the remaining eighth part, which was still the property of the heir of Lord Carteret, one of the original grantees of Carolina, was afterwards conveyed to them. This territory was constituted a colony and called Georgia. \nThat the Governor of South Carolina continued to exercise jurisdiction south of Georgia. \nThat, in 1752, the grantees surrendered to the crown. \nThat, in 1754, a governor was appointed by the crown, with a commission describing the boundaries of the colony. \nThat a treaty of peace was concluded between Great  Britain and Spain, in 1763, in which  the latter ceded to the former Florida, with Fort St. Augustin and the bay of Pensacola. \nThat, in October, 1763, the King of Great Britain issued a proclamation, creating four new colonies, Quebec, East Florida, West Florida, and Grenada; and prescribing the bounds of each, and further declaring that all the lands between the Alatamaha, and St. Mary's should be annexed to Georgia. The same proclamation contained a clause reserving, under the dominion and protection of the crown, for the use of the Indians, all the lands on the western waters, and forbidding a settlement on them, or a purchase of them from the Indians. The lands conveyed to the plaintiff lie on the western waters. \nThat, in November, 1763, a commission was issued to the Governor of Georgia, in which the boundaries of that province are described, as extending westward to the Mississippi. A commission, describing boundaries of the same extent, was afterwards granted in 1764. \nThat a war broke out between Great Britain and her colonies, which terminated in a treaty of peace acknowledging them as sovereign and independent states. \nThat in April, 1787, a convention was entered into between the states of South Carolina  and Georgia settling the boundary line between them. \nThe jury afterwards describe the situation of the lands mentioned in the plaintiff's declaration, in such manner that their lying within the limits of Georgia, as defined in the proclamation of 1763, in the treaty of peace, and in the convention between that state and South Carolina, has not been questioned. \nThe counsel for the plaintiff rest their argument on a single proposition. They contend that the reservation for the use of the Indians, contained in the proclamation  of 1763, excepts the lands on the western waters from the colonies within whose bounds they would otherwise have been, and that they were acquired by the revolutionary war. All acquisitions during the war, it is contended, were made by the joint arms, for the joint benefit of the United States, and not for the benefit of any particular state. \nThe court does not understand the proclamation as it is understood by the counsel for the plaintiff. The reservation for the use of the Indians appears to be a temporary arrangement suspending, for a time, the settlement of the country reserved, and the powers of the royal governor within the territory reserved,  but is not conceived to amount to an alteration of the boundaries of the colony. If the language of the proclamation be, in itself, doubtful, the commissions subsequent thereto, which  were given to the governors of Georgia, entirely remove the doubt. \nThe question, whether the vacant lands within the United States became a joint property, or belonged to the separate states, was a momentous question which, at one time, threatened to shake the American confederacy to its foundation. This important and dangerous contest has been compromised, and the compromise is not now to be disturbed. \nIt is the opinion of the court, that the particular land stated in the declaration appears, from this special verdict, to lie within the state of Georgia, and that the state of Georgia had power to grant it. \nSome difficulty was produced by the language of the covenant, and of the pleadings. It was doubted whether a state can be seised in fee of lands, subject to the Indian title, and whether a decision that they were seised in fee, might not be construed to amount to a decision that their grantee might maintain an ejectment for them, notwithstanding that title. \nThe majority of the court  is of opinion that the nature of the Indian title, which is certainly to be respected  by all courts, until it be legitimately extinguished, is not such as to be absolutely repugnant to seisin in fee on the part of the state. \nJudgment affirmed with costs. \nDissent by:", " \nOpinion \n\n \n \n MARSHALL, Ch. J. delivered the opinion of the court as follows, viz. \nThe plaintiff sold certain goods to Robert B. Jamesson,  a merchant of Alexandria, and took his note for the amount, which he put in suit, and prosecuted to a judgment. Afterwards, supposing the other defendant Mandeville to be a secret partner, he instituted a suit against Mandeville and Jamesson. The declaration contains three counts. The first is on the note, and charges it to have been made by the defendants under the name, firm and style of Robert B. Jamesson. The 2d and 3d counts are for goods, wares and merchandise sold and delivered to the defendants, trading under the firm of Robert B. Jamesson. \nThe defendant Mandeville pleads two pleas in bar. The first goes to the whole declaration, and the second applies only to the first count. \nThe first commences with a protestation that the goods, &c. in the declaration mentioned were not sold to the defendants jointly, and then pleads in bar the promissory note which is averred to have been given and received for, and in discharge of, an account for sundry goods, wares and merchandise sold and delivered  to the said Jamesson, and that the goods in the declaration mentioned are the same which were sold and delivered to the said Jamesson, and for which the said note was given. The plea also avers, that a suit was instituted and judgment obtained on the note, and concludes in bar. \nThe second plea pleads the judgment in bar of the action. \nTo the first plea the plaintiff demurs specially, and assigns for cause of demurrer, \n1. That the defendant does not traverse the assumpsit laid in the declaration. \n2. That he does not expressly confess or deny that the goods, &c. were sold and delivered to the defendants, trading under the firm of R. B. Jamesson, or that the note was given by the said firm. \n 3. Because an unsatisfied judgment against Jamesson is no bar to an action against Mandeville. \n4. It is not averred that the judgment has been satisfied. \n5. The defendant does not deny or admit that he assumed to pay for the goods, &c. in the declaration mentioned. \n6. Because the plea is no answer to the declaration, or any count thereof, and is informal. \nThe defendant joins in demurrer. \nTo the second plea the plaintiff also demurs specially, and assigns, for cause of demurrer,  the same, in substance, which had been assigned to the first plea, and the defendant joins in the demurrer to this plea like wise. \nThe other defendant, Jamesson, has put in no plea, nor are there any proceedings against him subsequent to the declaration. \nAlthough the first plea is not expressly limited to the 2d and 3d counts, yet it would seem, from its terms, to be intended to apply to them alone. It sets up a bar to an action on an assumpsit for goods, wares, and merchandise sold and delivered, and no such assumpsit is laid in the first count. \nIf, however, it be considered as pleaded to the first count, it is clearly ill on demurrer. For it does not deny or avoid the joint assumpsit laid in that count. \nIt remains to inquire whether this plea contains a sufficient bar to the 2d and 3d counts. \nThe plea is, that the note was given and received for, and in discharge of, an account or bill for goods, wares and merchandise sold and delivered by the plaintiff to Robert B. Jamesson, which are the same goods, &c. that are mentioned in the plaintiff's declaration. \n That a note, without a special contract, would not, of itself, discharge the original cause of action, is  not denied. But it is insisted that if, by express agreement, the note is received as payment, it satisfies the original contract, and the party receiving it must take his remedy on it. \nThis principle appears to be well settled. The note of one of the parties or of a third person may, be agreement, be received in payment. The doctrine of nudum pactum does not apply to such a case; for a man may, if such be his will, discharge his debtor without any consideration. But, if it did apply, there may be inducements to take a note from one partner liquidating and evidencing a claim on a firm which might be a sufficient consideration for discharging the firm. Since, then, the plaintiff has not taken issue on the averment that the note was given and received in discharge of the account, but has demurred to the plea, that fact is admitted; and, being admitted, it bars the action for the goods. \nThe special causes of demurrer which are assigned do not, in any manner, affect the case. Whether the promise was made by Mandeville, or not, ceases to be material, if a note has been received in discharge of that promise, and the payment of the note need not be averred, since its non-payment cannot  revive the extinguished assumpsit. \nThe next subject of consideration is the second plea, which applies simply to the first count. \nThat count is on a note charged to have been made by Mandeville and Jamesson, trading under the firm of Robert B. Jamesson. This, not being denied, must be taken as true. \nThe plea is, that a judgment was rendered on this note against Robert B. Jamesson. \n Were it admitted that this judgment bars an action against Robert B. Jamesson, the inquiry still remains, if Mandeville was orginally bound; if a suit could be originally maintained against him; is the note, as to him, also merged in the judgment? \nHad the action, in which judgment was obtained against Jamesson, been brought against the firm, the whole note would most probable have merged in that judgment. But that action was not brought against the firm. It was brought against Robert Brown Jamesson singly, and whatever other objections may be made to any subsequent proceedings on the same note, it cannot be correctly said that it is carried into judgment as respects Mandeville. If it were, the judgment ought in some manner to bind him, which most certainly it does not. The doctrine of  merger (even admitting that a judgment against one of several joint obligors would terminate the whole obligation, so that a distinct action could not afterwards be maintained against the others, which is not admitted) can be applied only to a case in which the original declaration was on a joint covenant, not to a case in which the declaration in the first suit was on a sole contract. \nIn point of real justice there can be no reason why, an unsatisfied judgment against Jamesson should bar a claim upon Mandeville; and it appears to the court that this claim is not barred by any technical rule of law, since the proceedings in the first action were instituted upon the assumpsit of Jamesson individually. \nIt is not necessary to decide whether this action could have been maintained against Mandeville singly with an averment that the note was made by Mandeville and Jamesson. The declaration being against both partners, that question does not arise. The declaration is clearly good in itself, and the plaintiff may recover under it, unless he be barred by a sufficient plea. \nAdmitting, for the present, that a previous judgment  against Jamesson would be a sufficient bar, as to  him, had Jamesson and Mandeville joined in the same plea, it would have presented an inquiry of some intricacy, how far the benefit of that bar could be extended to Mandeville. \nBut they have not joined in the same plea. They have severed; and as the whole note is not merged in a judgment obtained against Jamesson, on his individual assumpsit, the court is not of opinion that Mandeville has so pleaded this matter as to bar the action. \nIn this plea it was necessary to negative the averment of the declaration, that the note was made by Mandeville as well as Jamesson, or to show that the judgment was satisfied. The defendant has not done so. He has only stated affirmatively new matter in bar of the action, which new matter, as stated, does not furnish a sufficient bar. It is not certain that this plea would have been good on a general demurrer but on a special demurrer it is clearly ill. \nThe judgment, therefore, is to be reversed, and, as no other plea is pleaded, judgment must be rendered, on the first count, in favour of the plaintiff. \nThe judgment of the court was as follows: This cause came on to be heard on the transcript of the record, and was argued by counsel; on consideration  whereof the court is of opinion, that there is error in the judgment of the circuit court in overruling the demurrer to the first plea, so far as the same is pleaded in bar of the first count in the declaration, and that there is error in overruling the demurrer to the second plea; wherefore it is considered by this court, that the judgment of the circuit court be reversed and annulled, and that the cause be remanded to the circuit court, with directions to sustain the demurrer to the first plea so far as the same is pleaded in bar of the first count, in the plaintiff's declaration, and also to sustain the demurrer to the second plea, and to render  judgment in favour of the plaintiff on his said first count, and to award a writ of inquiry of damages. 1 \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. delivered the opinion of the court as follows: \nIn this case several questions have occurred, on which the court has not yet formed an opinion. The application of rules and principles, which have been framed for an action on the case, to an action of covenant, is an operation of some difficulty. The court has not decided with precision, on the extent of the plea, that the defendant has not broken his covenant, nor on the testimony which may be admitted under that plea. Some difficulty, also, arises from the circumstances, that the parties have gone to trial under the expectation that the whole merits of the case were  open, under the issue which was joined, and that such expectation was authorized  by the invariable usage of the courts of Maryland, and of the circuit court sitting in that state. \nUpon the inspection of the special verdict in this case, it is supposed that, however these points may be decided, a venire facias de novo would probably be awarded; and, as the delay of a term would be a great inconvenience to the parties, it is deemed advisable to award it now. \nThere are, however, some points, which have been argued at great length, on which an opinion has been formed, which will now be delivered. \nIt is essential, in this form of action especially, to distinguish accurately between the warranty contained in the policy, and those extrinsic circumstances, such as misrepresentation or concealment, which have been deemed sufficient to discharge the underwriters. Although the effect of a breach of a warranty, and of a material misrepresentation may be the same on a policy, yet they cannot be confounded together, in deciding on pleadings or on a special verdict. \nThe warranty, in this case, is in these words; \"warranted, by the assured, to be American property, proof of which to be required in the United States only.\" \nThe interest insured is admitted to be American property,  in the strictest sense of the term; but it is contended, that Baruro, a Spanish subject, had an interest in the cargo, which falsifies the warranty. \nWhether Baruro could be considered as having an interest in the cargo, or not, is a question of some intricacy, which the court has not decided; and which, if determined in the one way or the other, would not affect the warranty; because, the assured are not understood to warrant that the whole cargo is neutral, but that the interest insured is neutral. \n If the assured represented the whole cargo to be neutral, when it was not, or if they concealed the interest of a belligerent, when it ought to have been disclosed, which facts this court neither affirm nor deny, the effect of the misrepresentation or concealment on the policy, depends on its materiality to the risk. This must be decided by a jury under the direction of a court. In this case, it has not been decided. Consequently, were it even to be admitted that, under the peculiar circumstances of this case, these facts might be taken into consideration, without being specially pleaded, a venire facias de novo would be necessary, in order to ascertain their materiality. \n So, too, with respect to the Spanish papers found on board. \nIt is said that the verdict finds their materiality, by finding that the fair premium on American property disguised as Spanish, on the voyage insured, was twenty-five per cent. whereas the premium, in this case, was only ten per cent. \nBut, it does not appear to the court that this property was, by these papers, disguised as Spanish. It is found to have been the constant course of the trade to have them on board, and, consequently, they cannot be understood to disguise the property as Spanish, when there are other papers which prove it to be American. \nIt is, too, as yet, undecided, that this matter could be given in evidence, on this issue. \nAlthough this verdict, and these pleadings, do not present the merits of the cause in such form as to enable the court to decide them, there are some insulated points, from which the cause may be relieved. \nThe reference to the letter of Church and  Demmill, which was made by the assured, in their letter of the 26th of March, to Alexander Webster & Co., has  been treated both as a representation, and as a warranty, which is falsified by the sentence of condemnation. \n There is no colour for this opinion. \nMost clearly it is not a warranty, for it is not introduced into the policy; and if it were a representation, it only goes to the actual state of the ship, at the time, not to her future conduct. \nBut it is not even a representation. Marshall, 336. is full and clear on this point. \nThe letter of the assured, of the 5th of June, is understood to ask the permission of the underwriters to keep their right to abandon in a state of suspense, and the note made by the president and directors, on that letter, is understood as granting that permission. It is difficult to ascribe this letter to any other motive. \nIt has been asked, for how long a time is this permission given? The answer is obvious. It is, at least, to continue while the property continued in its then situation, unless it should be sooner determined by one of the parties. The assured might abandon previous to the sentence, or immediately afterwards; and the underwriters might, at any time, require the assured to elect immediately, either to abandon or to waive the right so to do. Since they have not made this communication, their original permission continued in force. But the jury  have not found that the abandonment was or was not in due time. \nIt is, also, the opinion of the court that, as the laws and regulation, by which this trade was regulated, are not proved to have been in writing, as public edicts, but may have depended on instructions to the governor, they may be proved by parol. \nThe judgment is to be reversed, because the special verdict is defective; and the cause remanded, with directions to award a venire facius de novo. \n In the second case, it is ordered to be certified, that, if the jury should be of opinion that the Spanish papers, mentioned in this case, were material to the risk, and that it was not the regular usage of the trade insured to take such papers on board, the non-disclosure of the fact that they would be on board, would vitiate the policy; but if the jury should be of opinion that they were not material to the risk, or that it was the regular usage of the trade to take such papers on board, that they would not vitiate the policy. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. delivered the opinion of the court as follows, viz. \nThis suit was brought in the court of the United States for the Orleans territory, by the plaintiffs, who are aliens, and syndics or assignees of a trading company composed of citizens of that territory, who have become insolvent.  The defendants are citizens of the territory, and have pleaded to the jurisdiction of the court. Their plea was sustained, and the cause now comes on to be heard on a writ of error to that judgment. \nTwo objections are made  to the jurisdiction of the district court. \n1. That the suit is brought by the assignees of a chos in action, in a case where it could not have been prosecuted, if no assignment had been made. \n2. That the district court cannot entertain jurisdiction, because the defendants are not citizens of any state. \nThe first objection rests on the 11th section of the judicial act, which declares \"that no district or circuit court shall have cognisance of any suit to  cover the contents of any promissory note, or other chose in action, in favour of an assignee, unless a suit might have been prosecuted in such court, to recover the said contents, if no assignment had been made.\" \nThe plaintiffs are admitted to be the assignees of a chose in action; but it is contended that they are not within the meaning of the provision which has been cited, because this is a suit for cash, bills and notes, generally, by persons to whom the law transfers them, and not by such an assignee as is contemplated in the judicial act. The words of the act are said to apply obviously to assignments made by the party himself, on an actual note, or other chose in action, assignable by the proprietor thereof,  and that the word \"contents\" cannot, by any fair construction, be applied to accounts or unliquidated claims. Apprehensions, it is said, were entertained that fictitious assignments might be made to give jurisdiction to a federal court, and, to guard against this mischief, every case of an assignment by a party holding transferable paper, was excepted from the jurisdiction of the federal courts, unless the original holder might have sued in them. \nWithout doubt, assignable paper, being the chose in action most usually transferred, was in the mind of the legislature when the law was framed; and the words of the provision are therefore best adapted to that class of assignments. But there is no reason to believe that the legislature were not equally disposed to except from the jurisdiction of the federal courts those who could sue in virtue of equitable assignments, and those who could sue in virtue of legal assignments. The assignee of all the open accounts of a merchant might, under certain circumstances, be permitted to sue in equity, in his own name, and there would be as much reason to exclude him from the federal courts, as to exclude the same person, when the assignee of a particular  note. The term \"other chose in action\" is broad enough to comprehend either case; and the word \"contents,\" is too ambiguous in its import, to restrain that general term. The \"contents\" of a note are the sum it shows to be due;  and the same may, without much violence to language, be said of an account. \nThe circumstance, that the assignment was made by operation of law, and not by the act of the party, might probably take the case out of the policy of the act, but not out of its letter and meaning. The legislature has made no exception in favour of assignments so made. It is still a suit to recover a chose in action in favour of an assignee, which suit could not have been prosecuted if no assignment had been made; and is therefore within the very terms of the law. The case decided in 4 Cranch, was on a suit brought by an administrator, and a residuary legatee, who were both aliens. The representatives of a deceased person are not usually designated by the term \"assignees,\" and are, therefore, not within the words of the act. That case, therefore, is not deemed a full precedent for this. \nIt is the opinion of the court that the plaintiffs had no right to maintain this  suit in the district court against a citizen of the Orleans territory, they being the assignees of persons who were also citizens of that territory. \nIt is of so much importance to the people of Orleans to decide on the second objection, that the court will proceed to consider that likewise. \nWhether the citizens of the territory of Orleans are to be considered as the citizens of a state, within the meaning of the constitution, is a question of some difficulty which would be decided, should one of them sue in any of the circuit courts of the United States. The present inquiry is limited to a suit brought by or against a citizen of the territory, in the district court of Orleans. \nThe power of governing and of legislating for a territory is the inevitable consequence of the right to acquire and to hold territory. Could this position be contested, the constitition of the United States declares  that \"congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States.\" Accordingly, we find congress possessing and exercising the absolute and undisputed power of governing and legislating  for the territory of Orleans. Congress has given them a legislative, an executive, and a judiciary, with such powers as it has been their will to assign to those departments respectively. \nThe court possesses the same jurisdiction which was possessed by the court of Kentucky. In the court of Kentucky, a citizen of Kentucky may sue or be sued. But it is said that this privilege is not imparted to a citizen of Orleans, because he is not a citizen of a state. But this objection is founded on the idea that the constitution restrains congress from giving the court of the territory jurisdiction over a case brought by or against a citizen of the territory. This idea is most clearly not to be sustained, and, of consequence, that court must be considered as having such jurisdiction as congress intended to give it. \nLet us inquire what would be the jurisdiction of the court, on this restricted construction. \nIt would have no jurisdiction over a suit brought by or against a citizen of the territory, although an alien, or a citizen of another state might be a party. \nIt would have no jurisdiction over a suit brought by a citizen of one state, against a citizen of another state, because neither  party would be a citizen of the \"state\" in which the court sat. Of what civil causes, then, between private individuals, would it have jurisdiction? Only of suits between an alien and a citizen of  another state who should be found in Orleans. Can this be presumed to have been the intention of the legislature in giving the territory a court possessing the same jurisdiction and power with that of Kentucky. \nThe principal motive for giving federal courts jurisdiction, is to secure aliens and citizens of other  states from local prejudices. Yet all who could be affected by them are, by this construction, excluded from those courts. There could scarcely ever be a civil action between individuals of which the court could take cognisance, and if such a case should arise, it would be one in which no prejudice is to be apprehended. \nIt is the unanimous opinion of the court that, by a fair construction of the act, the citizens of the territory of Orleans may sue and be sued in that court in the same cases in which a citizen of Kentucky may sue and be sued in the court of Kentucky. \nJudgment affirmed with costs. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. delivered the opinion of the court  as follows: \n This case depends on the correctness of the circuit court in giving some opinions, and refusing others, to which exceptions have been taken. \nIt appears that, on the 22d of October, the assured received notice of the capture of the vessel insured, and that, on the 25th, he wrote a letter abandoning to the underwriters, which letter was received in course of the mail, and immediately acted upon. Some reasons were assigned, by the plaintiff below, for not having abandoned more immediately after receiving notice of the capture, and the defendant below moved the court to instruct the jury that the assured did not elect to abandon in reasouable time. To the refusal of the court to give this instruction the first exception is taken. \nIt has been repeatedly declared by this court that what is reasonable time for abandonment is a question compounded of fact and law, of which the jury must judge under the direction of a court. It does not appear that the court below erred in refusing, in this case, to give the instruction required. \nThe insured was a subject of a belligerent power, but had resided four years in the United States. His letter, representing the risk,  was laid before the jury, and a good deal of testimony was taken to prove that a belligerent not named in the representation was interested in the cargo. Some counter testimony was also introduced by the assured. Whereupon the counsel for the underwriters moved the court to instruct the jury that, if they believe the facts stated by him, there was such a concealment as, in contemplation of law, vitiated the policy. This direction the court refused to give, but did direct the jury that, if they should be of opinion that any circumstances were stated by Ruden, or his agent, or that any circumstances were suppressed by either of them, which, in the opinion of the jury, would increase the risk, then the plaintiff cannot recover. \nTo this opinion an exception was taken. \nIt is well settled that the operation of any concealment on the policy depends on its materiality to the  risk, and this court has decided that this materiality is a subject for the consideration of a jury. Consequently, the court below did right in leaving it to them. \nThe counsel for the underwriters then gave some very strong evidence to prove that the property insured was not the sole property of the  assured, but was property in which another person held a joint interest. Some counter testimony was adduced; on which the defendant below moved the court to direct the jury to find that the property was not the sole property of Ruden, but the joint property of Ruden and another. \nThis direction also the court refused to give, and did direct the jury that it was their peculiar province to determine the fact whether Ruden was the sole owner of the property, or not; and to this opinion an exception was taken. \nIt is contended by the plaintiffs in error that the testimony offered by them, among which was the bill of lading stating the property to belong to Ruden and another, was such as absolutely to conclude him, and estop him from denying that another was concerned in the cargo. \nThe court is not of this opinion. The covering of property does not conclude the person interested, so as to estop him from proving the truth of the case. There is the less reason for that effect being given to these papers in this  case, because the letter to the underwriters indicated that the cargo might be shipped in the name of other persons. \nIf the insured was not absolutely estopped, the  court did not err in permitting the jury to weigh his testimony. They had a right to weight it, and to decide to whom the property belonged. If their verdict was against evidence, the only remedy was a new trial to be granted by the court in which the verdict was found. \nThere is no error, and the judgment is to be affirmed with costs. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. delivered the opinion of the Court as follows: \nThis is an appeal from a decree rendered by the Circuit Court for the district of Georgia. \nShirras and others, the Appellants, brought their bill to foreclose the equity of redemption on two lots lying in the town of Savannah, alledged to have been mortgaged to them by Edwin Gairdner. The deed of mortgage is dated the first of December, 1801, and purports to be a conveyance from Edwin Gairdner and John Caig, by Edwin Gairdner his attorney in fact. Edwin Gairdner not appearing to  have possessed any power to act for John Caig, the conveyance, as to him, is void, and could only pass that interest which was possessed by Gairdner himself. The Court will proceed to inquire what that interest was. \nIt appears that, on the 17th May, 1796, the premises were conveyed to James Gairdner, Edwin Gairdner and Robert Mitchel, merchants & co-partners of the city of Savannah. \nIn 1799, this partnership was dissolved; and, in December in the same year, James Gairdner made an entry  on the books of the company charging this property to Edwin Gairdner & Co. of Charleston, at the price of 20,000 dollars. This firm consisted of Edwin Gairdner alone. James Gairdner also executed a power of attorney authorizing Edwin Gairdner to sell and convey his itnerest in this and other real property. \nIn March, 1801, a partnership was formed between Edwin Gairdner and John Caig to carry on trade in Savannah, under the firm of Edwin Gairdner & co.; and in the same month, Robert Mitchel conveyed his one third of the lots in question to Edwin Gairdner and John Caig. \nAbout the same time it was agreed between the house at Charleston and that in Savannah to transfer the Savannah property  to the firm trading at that place; and entries to that effect were made in the books of both companies; and possession was delivered to Edwin Gairdner and Co. of Savannah. \nSuch was the state of title in December, 1801, when the deed of mortgage bears date. \nThe Plaintiffs claim the whole property, or, if not the whole, five sixths; because they suppose Edwin Gairdner to have been equitably entitled to his own third, to that of James Gairdner, and to half of the third of Robert Mitchel. But for this claim the Court is of opinion that there can be no just pretension, because he did not affect to convey by virtue of the power from James Gairdner -- he did not affect to pass the interest of James Gairdner,  but to pass the estate of John Caig and himself. Consequently the power of attorney may, be put out of the case, and the conveyance could only operate on his own legal or equitable interest. \nIn law, he was seized under the original deed, and the deed from Robert Mitchel of one undivided moiety of the property. \nUnder the various agreements and entries on the books of the firms at Charleston and Savannah which have been stated, his equitable interest was precisely equal  to his legal interest. In law and equity he held one  moiety of the premises in question. The other moiety was in John Caig. To one sixth Caig was legally entitled by the conveyance from Robert Mitchel, and to two sixths he was equitably entitled by the agreement with Edwin Gairdner and the consequent entries on the books. \nOf the equitable interest of John Caig the mortgagees were bound to take notice, because the purchaser of an equitable interest, purchases at his peril, and acquires the property burdened with every prior equity charged upon it, because the deed itself gives notice of Caig's title, and because Caig was in possession of the property. \nThe mortgage deed of December, 1801, could not, then, in law or equity, pass more than one moiety of the property it mentions. \nA question arises on the face of the deed respecting the extent of the property comprehended in it. The Plaintiff's contend that both lots are within the description; the Defendants that only the wharf lot is conveyed. \nThe property conveyed is thus described -- \"All that lot of land, houses and wharfs in the city of Savannah as is particularly described by the annexed plat, and is generally knwon  by the name of Gairdner's wharf.\" \nThe plat was not annexed, nor was it recorded with the deed. It is, however, filed as an exhibit in the cause, and appears to be a plat of part of the town of Savannah, including the lot on which Gairdner's wharf was, and also one other lot belonging to the same persons, which was designated as No. 6, and which does not adjoin the property on which the wharves are erected. \nThe words descriptive of the property intended to be conveyed do not appear to the Court to be applicable to more than the wharf lot. The word \"lot\" is in the singular number; the term \"houses\" is satisfied by the fact that there are houses on the wharf lot; and there is no evidence in the cause, nor any reason to believe that lot No. 6 was \"generally known \"by the name of Gairdner's wharf.\" The Court, therefore, cannot consider that lot as comprehended within the conveyance. \n The mortgaged property is in possession of the Defendants, Caig and Mitchel, who derive their title thereto in the following manner. \nOn the 7th of January, 1802, a new partnership was formed between Gairdner, Caig and Mitchel, and, by the articles of co-partnery, which are under seal, the Savannah  property is declared to be stock in trade, and an entry was made on the books of the old firm transferring this property to the new concern. On the 12th of the same month, the co-partnership of Gairdner and Caig was dissolved. \nOn the 27th of July, 1802, by deeds properly executed, one third of the property became vested in John Caig, and one other third in Robert Mitchel. \nOn the 3d of November, 1802, Edwin Gairdner became a bankrupt; and this bill is brought by his mortgagees and assignees. \nThe claim to foreclose is resisted by Caig and Mitchel, cecause, they say, \n1st. The mortgage was not executed at the time it bears date, but long afterwards, and on the eve of bankruptcy. \n2d. That the transaction is not bona fide, there being no real debt, nor any money actually advanced by the mortgagees. \n3d. That the mortgage was kept secret, instead of being committed to record. \n4th. That the whole transaction is totally variant from that stated in the deed. \nThey therefore claim the property for the creditors of Gairdner, Caig and Mitchel. \n1st. From the testimony in the cause it appears that the deed, if not executed on the day, was executed about the day of its date; and that  Gairdner, at the time, was believed to be solvent. \n 2d. It appears, also, that the mortgage was executed, in part, to secure the payment of money actually due at the time, and, in part, to secure sums to be advanced, and to indemnify some of the mortgagees for liabilities to be incurred. \n3d. The mortgage is dated the 1st of December, 1801, and was recorded in September, 1802. \nBy the laws of Georgia, a deed is valid if recorded within twelve months; but any deed recorded within ten days after its execution takes preference of deeds not recorded within that time, or previously on the record. \nIt appears to the Court, that neither negligence, nor that fraud which is inferred from the mere fact of omitting to place a deed on record, can, with propriety, be inputed to the person who has used all the dispatch which the law requires. If subsequent purchasers without notice, sustain an injury within the time allowed for recording a deed, the injury is to be ascribed to the law, not to the individual who had complied with its requisition. \nIn this case the subsequent purchasers might have proceeded to record their deeds within ten days, and have thereby obtained the preference  they claim, but they have failed to do so. They are themselves chargeable with the very negligence which they ascribe to their adversaries; and, were they to be preferred, the Court would invert the well established rule of law, and postpone, under similar circumstances, a prior to a subsequent deed. \n4th. It is true that the real transaction does not appear on the face of the mortgage. The deed purports to secure a debt of 30,000l. sterling due to all the mortgagees. It was really intended to secure different sums, due at the time from particular mortgagees, advances afterwards to be made, and liabilities to be incurred to an uncertain amount. \nIt is not to be denied, that a deed, which misrepresents the transaction it recites, and the consideration on which it is executed, is liable to suspicion. It must sustain a  rigorous  examination. It is, certainly, always advisable fairly and plainly to state the truth. \nBut if, upon investigation, the real transaction shall appear to be fair, though somewhat variant from that which is described, it would seem to be unjust and unprecedented to deprive the person claiming under the deed, of his real equitable rights,  unless it be in favor of a person who has been, in fact, injured and deceived by the misrepresentation. \nThat cannot have happened in the present case. \nThere is the less reason for imputing blame to the mortgagees, in this case, because the deed was prepared by the mortgagor himself, and executed without being inspected by them, so far as appears in the case. \nIt is, then, the opinion of the Court that the Plaintiffs, Shirras and others, have a just title, under their mortgage deed, to subject one moiety of the lot, or parcel of ground, commonly known by the name of Gairdner's Wharf, to the payment of the debts still remaining due to them, which were either due at the date of the mortgage, or were afterwards contracted upon its faith, either by advances actually made or incurred prior to the receipt of actual notice of the subsequent title of the Defendants, Caig and Mitchel; and that the decree of the Circuit Court of Georgia, so far as it is inconsistent with this opinion, ought to be reversed. \nThe following is the decree of this Court. \nThis cause came on the be heard on the transcript of the record, and was argued by counsel. On consideration whereof, it is the opinion of this  Court, that the deed of mortgage in the proceedings mentioned, and dated on the 1st of December, 1801, is, in law, a valid conveyance of one moiety of that lot of land, houses and Wharves in the City of Savannah, which was generally known by the name of Gairdner's Wharf, being the parcel of ground lying between the river and the street, and that the mortgagees in the said deed mentioned, are entitled to foreclose the equity of redemption in the said mortgaged property, and to obtain a sale  thereof, and to apply the proceeds of the said sale to the payment of what remains unsatisfied of their respective debts, which were either due at the date of the mortgage, or have been since contracted, either on account of monies advanced, or liabilities incurred prior to their receiving actual notice of the title of the Defendants, John Caig, and Robert Mitchel. And the decree of the Circuit Court for the District of Georgia, so far as it is inconsistent with this opinion, is reversed and annulled, an din all other things is affirmed; and the cause is remanded to the said Circuit Court for the District of Georgia, that further proceedings may be had therein according to equity. \n \n\n ", " \nOpinion \n\n \n \n MARSHALL, Ch. J. -- What prevents you from producing the witnesses here, or taking their depositions de novo. \nHARE, Suggested a doubt, whether cases for violation of the Embargo, are cases of admiralty, or of prize jurisdiction. \nHowever, on a subsequent day he moved for, and obtained a commission to take the depositions of witnesses at New Orleans, to be used on the trial in his Court, at the next term. \nA like commission was granted in the case of Williams and Armroyd, at this term. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, CHIEF JUSTICE, delivered the opinion of the court as follows: \nThe libel in this case, as amended in the Circuit Court for the District of Rhode Island, claims the schooner Paulina and her cargo as forfeited under the 3d section of the act supplementary to the act laying an embargo, and under the 2d section of the act in addition to the original embargo act and its several supplements, and under the 50th section of the act regulating the collection of duties on imposts and tonnage. \nIn the District Court both vessel and cargo were acquitted; but in the Circuit Court the cargo was condemned. \nIn construing these laws, it has been truly stated to be the duty of the court to effect the intention of the legislature; but this intention is to be searched for in the words which the legislature has employed to convey it. The legislature has declared its object to be  to lay an embargo on the vessels of the United States, and to provent the transportation of any article whatever from the United States to any foreign port or  place; and therefore such transportation is prohibited. To prevent evasions of this law, certain acts which do not in themselves amount to a breach of the embargo, but which may lead tolit, have been successively prohibited under such penalties as the wisdom of Congress has prescribed. Those acts become criminal and subject the person to such punishment as the law inflicts. In ascertaining what they are, the court must search for the intent of the legislature, guided by those rules which the wisdom of ages has sanctioned. \nBut should this court conjecture that some other act, not expressly forbidden, and which is in itself the mere exercise of that power over property which all men possess, might also be a preliminary step to a violation of the law, and ought therefore to be punished for the purpose of effecting the legislative intention, it would certainly transcend its own duties and powers, and would create a rule instead of applying one already made. It is the province of the legislature to declare, in explicit  terms, how far the citizen shall be restrained in the exercise of that power over property which ownership gives; and it is the province of the court to apply the rule to the case thus explicitly described -- not to some other case which judges may conjecture to be equally dangerous. \nThe fact made out in the present case is this: \nThe Paulina, a registered vessel, lying in the common anchorage ground of Warwick bay, in the district of Rhode Island, about two hundred fathoms from the shore, received her cargo from the May-flower, a small vessel of fifteen tons burthen, accustomed to ply between Providence and Newport. The landing of the Paulina was continued in open day for several weeks, but not under the inspection of a revenue officer. When her cargo was nearly on board, she was seized and libelled as having violated the acts of Congress which have been mentioned. \nThe question will, it is conceived, be the more clearly understood, if we consider the laws in the order in which they were passed, and inquire, first, whether the 3d section of the supplementary act has been violated.  In pursuing this inquiry, it is essential to examine how for lading a vessel under the  circumstances of the Paulina, was prohibited by the original and supplementary acts without taking into view any subsequent act of Congress. \nThe original act, passed on the 22d of December, 1807, lays an embargo on all vessels bound to foreign ports, and directs that no clearance be furnished to such vessel. The 2d section directs that before a registered vessel shall receive a clearance for a port in the United States, a bond shall be given with a condition that the cargo shall be relanded in some port of the United States, dangers of the seas excepted. \nThis act contains no provision applicable to the lading of any vessel whatever, or to licensed vessels, nor does it inflict any forfeiture or penalty on vessels which should depart without a clearance. \nThe incompetency of this act to effect its object could not be long unobserved. It was soon perceived that foreign trade might be carried on by licensed vessels, and that further regulations respecting registered vessels would also be necessary. \nOn the 9th of January, 1808, the supplemental act was passed. \nThe first section directs that bonds shall be given on the partof vessels licensed for the conasting trade, conditioned not  to proceed to any foreign port or place, and to reland the cargo in some port of the United States. \nThe second section contains a proviso declaring that it shall be sufficient for the owners of vessels of the description of the May-flower, to give bond with a condition not to be employed in any foreign trade. \nThis review of the prohibitions contained in the original and supplementary embargo acts, was necessary to a complete understanding of the 3d section of the supplemental act which is the section supposed by the libellants to comprehend the present case \n That section is in these words: \n\"And be it further enacted, That if any ship or vessel shall, during the continuance of the act to which this is a supplement, depart from any port of the United States without a clearance or permit, or if any ship or vessel shall, contrary to the provisions ofthis act, or of the act to which this act is a supplement, proceed to a foreign port or place, or trade with or put on board of any other ship or vessel any goods, wares or merchandize, of foreign or domestic growth or manufacture, such ships or vessels, goods, wares and merchandize shall be wholly forfeited,\" &c. \nThis section  contemplates three distinct transactions. \n1. A departure from any port of the United States without a clearance or permit. \n2. Contrary to the provisions of the original or supplementary acts to proceed to a foreign port or place; or, \n3. To trade with or put on board any other ship or vessel any goods, wares or merchandize. \nThe offence last described is supposed to have been committed by the Paulina. \nNothing can be more apparent than that the  legislature could not have intended to prohibit any person from putting a cargo on board a vessel of any description. \n1. The coasting trade was still lawful, and might be carried on by either registered or licensed vessels; consequently any vessel might be laden for that purpose. \n2. There is no direct prohibition to lade a vessel with any articles whatever. \n3. There are provisions in subsequent laws on the same subject which regulate the manner of lading vessels in order to entitle them to a clearance; which provisions are entirely incompatible with the idea that all lading was prohibited. \n With view to this principle the section must be construed. \nThe first inquiry which presents itself to the mind is this:  Do the words \"contrary to the provisions of this act or of the act to which this act is a supplement,\" limit and restrain both the succeeding members of the sentence, or only the first or them? Are they applicable only to \"proceeding to a foreign port or place,\" or also to \"trading with or putting on board any other ship or vessel any goods, wares or merchandize.\" \nIf the sentence be construed literally and grammatically, the introductory words which have been stated, are attached to all the offences afterwards described. The departure without a clearance under any circumstances, is an offence.The circumstances of the departure do not affect the case.But to render the facts afterwards enumerated criminal, they must be committed under circumstances described in the law. \"If any ship or vessel shall, contrary to the provisions of this act, or of the act to which this is a supplement, proceed to any foreign port or place, or trade with, or put on board of any other ship or vessel,? &c. \"such ships or vessels, goods, wares, and merchandize, shall be wholly forfeited.\" The connection between the different parts of this sentence, is inseparable. There is nothing to disjoin them. The  nominative to the verbs, \"proceed,\" \"trade with,\" and \"put on board,\" is the same. It is not repeated, but is to be found in the first part of the sentence, and must be taken in the same sense, and with the same qualifications. The relative \"such,\" in that part of the sentence which inflicts the forfeiture, refers to the ship or vessel, which contrary to the provisions, &c. shall have done any one of the acts described. \nIf this be the literal construction of the sentence, it is still more apparantly its real meaning. \nIf the words, \"trade with, or put on board any other ship or vessel,\" be not limited by the words \"contrary to the provisions of this act, or of the act to which this act is a supplement,\" they would not only prohibit a vessel from lading, but from unlading in a manner, which is frequent, and perfectly innocent. There are  many ports in the United States, whose situation requires that a sea vessel should stop at a considerable distance from the place for which she is destined, and, convey part of her cargo in lighters or river craft, to the place of destination. Under such circumstances, to load or unload, would amount to a forfeiture. But such was not  the intention of the legislature. \nMost apparently, then, both the letter and the spirit of the law must be disregarded, or it must be admitted that the \"trading with, or putting on board,\" that is rendered culpable, must be such a trading with, or putting on board, as in \"contrary to the provisions\" of the original or supplementary act. \nThe subsequent words of the section imposing a penalty of from one to twenty thousand dollars on the offence, tend still further to illustrate and confirm this construction. They are \"the master or commander of such ship or vessel, as well as all other persons who shall knowingly be concerned in such prohibited foreign voyage, shall forfeit and pay,\" &c. \nThe master or commander of the \"ship or vessel\" described in this part of the sentence, would seem to be the master or commander of any ship or vessel which had committed any one of the offences previously described. If this be true, it is difficult to resist the opinion that the words \"as well as all other persons who shall knowingly be concerned in such prohibited foreign voyage\" were considered by the legislature as applicable to all the voyages previously prohibited. Consequently the legislature,  at the time, supposed themselves to be punishing foreign voyages only. \nThe Paulina having committed no offence by taking her cargo on board, unless she incurred the penalties of the law by receiving it from the May flower, the sentence will now be examined with a view to this question. Is the employment in this way of a vessel whose business is confined to the rivers, bays and sounds within the jurisdiction of the United States, a forfeiture of the vessel and cargo? \n The bond given by such vessel is that she will not be employed in any foreign trade. \nThis exemption from the necessity of relanding the cargo, proves the intention of the legislature that such craft might be employed in lading vessels. This employment is not contrary to the provisions of either the original or supplemental act. \nIf, then, the May-flower had trans-shipped her cargo in the port in which she was laden, it is apparent that no part of the law would have been violated. \nThe section under consideration inflicts forfeiture on any ship or vessel which shall depart from any port of the United States without a clearance or permit. \nIf by law this would produce a forfeiture of the cargo when on board  the Paulina, it is to be inquired whether, under this libel, the fact of her having passed out of one port into another without a clearance or permit, is examinable. \nThe libel charges the simple fact of trans-shipment, without alleging the only circumstance which could render such trans-shipment criminal. The question, then, of a departure from the port of Providence into that of Newport is not brought before the court. It does indeed appear in the evidence that, in consequence of an opinion among the revenue officers, as well as others, a clearance in such a case was not requisite -- the May-flower carried a considerable part of her cargo to the Paulina without having obtained permits. But the court cannot notice this fact unless the prosecution had, in some degree, been founded upon it. \nIt is, then the opinion of the majority of the  court that, as this case stands, the sentence cannot be sustained under the 3d section of the act of January, 1808. No opinion is given on the construction of that act in a case of trans-shipment from a vessel which has actually passed from one district to another without a clearance. \nThe libel also claims a forfeiture under the 50th  section  of the collection law, and under the 2d section of the act commonly called the additional act. \nIt has been very truly observed that the collection law is in itself totally inapplicable to the case, and can only be relied on for the purpose of explaining the 2d section of the additional act which refers to the collection law. \nThe operative words of the 2d section are \"No ship or vessel shall receive a clearance unless the lading shall be made hereafter under the inspection of the proper revenue officers subject to the same restrictions, regulations, penalties and forfeitures as are provided by law for the inspection of goods, wares and merchandize imported into the United States upon which duties are imposed.\" \nHad the sentence terminated with the word \"officers,\" it is admitted that its only operation would have been to exclude from a right to a clearance a vessel laden in a different manner from that which the act prescribes. The doubt grows out of the residue of the sentence. \nThis section does not, in terms, refer to the 50th section of the collection law. Whether, in strict grammatical construction, the adjective \"subject\" agree with and refer to the words  \"lading,\" \"inspection\" or \"officers,\" still the \"restrictions, regulations, penalties and forfeitures\" which are inflicted, are those which are provided by law for the inspection of goods, not those which are provided by law for unlading them. The word inspection is the governing word which explains the meaning of the sentence; and the provisions for the inspection of goods contain restrictions, regulations, penalties and forfeitures; but they do not affect the cargo. \nIt is difficult to read the sentence without being impressed with the opinion that the sole penalty intended by the legislature was the denial of a clearance. This will strike any person as the principal object of the clause. What follows is expressed with some confusion and would not seem to constitute the most essential part of the sentence. It cannot be believed that the legislature  could intend to inflict so heavy a forfeiture under such cloudy and ambiguous terms. The natural as well as usul course would be to inflict the forfeiture in direct and substantive terms, not by way of loose uncertain reference. \nBut if this section be construed as the Libellants construe it, then if the value of $400 be  put on board a vessel, not only the goods so put on board, but the vessel itself shall be forfeited. For what purpose, then, direct that she shall not receive a clearance? The legislature can scarcely be suspected of making a solemn regulation which, in terms, forbids its officers to grant a clearance to a vessel, which vessel is, by the same sentence, confiscated. \nIt is the decided opinion of the court, that no forfeiture is incurred under this section of the act. \nThe majority of the court is of opinion that the sentence of the Circuit Court, condemning the cargo of the Paulina, is erroneous and ought to be reversed. \nThe court certified that there was probable cause of seizure. \nThe Chief Justice observed that three of the judges who had heard the argument in the present case, and one who did not hear it, but who had heard the points argued in another case, concurred in this opinion, and that the other judges concurred in the result of the opinion. \nJOHNSON, Justice, observed that he dissented from the opinion just delivered by the chief justice upon one ground only. \nHe was of opinion that the trans-shipment, if with intent to prosecute a foreign voyage, in violation of the  embargo, subjected the goods to forfeiture. But as the evidence of that intent was doubtful, he was of opinion that the cargo should be acquitted; and two other judges concurred with him in opinion. \nSentence reversed. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Chief Justice, delivered the opinion of the court as follows: 1 \nThe sloop Active, a vessel licensed for the fishing trade, was laden, in the night of the 4th of July in the year 1808, in the port of New London, and was seized by the revenue officer, after having left the wharf without a clearance, under circumstances which justify a belief that she was about to proceed on a foreign voyage in violation of the acts laying an embargo. The vessel and cargo were libelled as having been forfeited under the laws of the United States, and were both condemned in the District Court, which sentence was affirmed in the Circuit Court. \nThis sentence is supported on the part of the United States under the 3d section of the supplementary act to the act laying an embargo, and the 32d section of the act for enrolling and licensing ships or vessels to be employed in the coasting trade and fisheries. \n This court is of opinion, that however criminal the  intentions of those on board the Active might have been, neither the vessel nor cargo were forfeited under the 3d section of the \"act supplementary to the act, entitled an act laying an embargo on all ships and vessels in the ports and harbors of the United States,\" because she appears to have been seized in port; and a departure from port without a clearance was necessary to consummate the offence. \nThe case is undoubtedly within the words of the 32d section of the enrolling and licensing act. The Active was a licensed vessel employed in a trade other than that for which she was licensed. \nThe argument that this act was intended merely to secure the revenue, and that its provisions do not contemplate a vessel laden with domestic produce not subject to duty, has been urged with great force and certainly derives much strength from the vrious sections of the act which have been quoted. But the words of the 32d section are explicit, and although other preceding sections furnish much reason for believing that a forfeiture in a case where the revenue could not be defrauded, might not be contemplated by the legislature, yet they are not so expressed as to control the 32d section.  The Active and her cargo, therefore, must be considered as forfeited, except so far as they come within the 33d section. \nThat section is in these words: \"Provided nevertheless, and be it further enacted, That in all cases where the whole or any part of the lading, or cargo on board, any ship or vessel, shall belong, bona fide, to any person or persons other than the master, owner, or mariners, of such ship or vessel, and upon which the duties shall have been previously paid or secured, according to law, shall be exempted from any forfeiture under this act, any thing therein contained to the contrary notwithstanding.\" \nIn this case the libel states, that Billings and Morban were owners of the vessel, and a certain Gates owner of the cargo. A claim is filed by Billings and Morgan for the vessel and part of  the cargo, and by Gates for the residue of the cargo. It appears, then, both from the libel and claim, that a part of the cargo did \"belong, bona fide, to a person other than the master, owner or mariners of the ship or vessel.\" This part of the cargo comes completely within that part of the description which relates to the ownership of the property. But the goods  on board being liable to no duty, the duties could not have been previously paid or secured. \nThe court considers this section as manifesting a clear intention in the legislature to exempt from forfeiture a cargo not belonging to the owner, master or mariners, provided that cargo was not liable to duties. Whether this condition was produced by a previous payment of duties, or by a perfect exemption from duties, must be immaterial. Duties cannot be paid or sesured, according to law, on goods not liable, by law, to duty. The legislature must be understood, when saying \"upon which the duties have been previously paid or secured according to law,\" to mean, \"upon which the duties, if any, have been previously paid,\" &c. \nIt is the opinion of the court, that the sentence of the Circuit Court be reversed as to so much of the cargo of the sloop Active as is claimed as the property of Gates, and be affirmed as to the vessel and the residue of the cargo. \nAnd it is directed to be certified that there was probable cause of seizure. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. Delivered the opinion of the Court as follows: \nThis case involves the very delicate and important inquiry, wheter an American citizen can assert, in an American court, a title to an armed  national vessel, found within the waters of the United States. \nThe question has been considered with an earnest solicitade, that the decision may conform to those principles  of national and municipal law by which it ought to be regulated. \nIn exploring an unbeaten path, with few, if any, aids from precedents or written law, the court has found it necessary to rely much on general principles, and on a a train of reasoning, founded on cases in some degree analogous to this. \nThe jurisdiction of courts is a branch of that which is possessed by the nation as an independent sovereign power. \nThe jurisdiction of the nation within its own territory is recessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself. Any restriction upon it, deriving validity from an external source, would imply a dimination of its sovereignty to the extent of the restriction, and an investment of that sovereignty to the same extent in that power which could impose such restriction. \nAll exceptions, therefore, to the full and complete power of a nation within its own territories, must be traced up to the consent of the nation itself. They can flow from no other legitimate  source. \nThis consent may be either express or implied. In the latter case, it is less determinate, exposed more to the uncertainties of construction; but, if understood, not less obligatory. \nThe world being composed of distinct sovereignties, possessing equal rights and equal independence, whose mutual benefit is promoted by intercourse with each other, and by an interchange of those good offices which humanity dictates and its wants require, all sovereigns have consented to a relaxation in practice, in cases under certain peculiar circumstances, of that absolute and complete jurisdiction within their respective territories which sovereignty confers. \nThis consent may, in some instances, be  tested by common usage, and by common opinion, growing out of that usage. \n A nation would justly be considered as violating its faith, although that faith might not be expressly plighted, which should suddenly and without previous notice, exercise its territorial powers in a manner not consonant to the usages and received obligations of the civilized world. \nThis full and absolute territorial jurisdiction being alike the attribute of every sovereign, and being incapable  of conferring extra-territorial power, would not seem to contemplate foreign sovereigns nor their sovereign rights as its objects. One sovereign being in no respect amenable to another; and being bound by obligations of the highest character not to degrade the dignity of his nation, by placing himself or its sovereign rights within the jurisdiction of another, can be supposed to enter a foreign territory only under an express license, or in the confidence that the immunities belonging to his independent sovereign station, though not expressly stipulated, are reserved by implication, and will be extended to him. \nThis perfect equality and absolute independence of sovereigns, and this common interest impelling them to mutual intercourse, and an interchange of good offices with each other, have given rise to a class of cases in which every sovereign is understood to wave the exercise of a part of that complete exclusive territorial jurisdiction, which has been stated to be the attribute of every nation. \n1st. One of these is admitted to be the exemption of the person of the sovereign from arrest or detention within a foreign territory. \nIf he enters that territory with the knowledge  and license of its sovereign, that license, although containing no stipulation exempting his person from arrest, is universally understood to imply such stipulation. \nWhy has the whole civilized world concurred in this construction? The answer cannot be mistaken. A foreign sovereign is not understood as intending to subject himself to jurisdiction incompatible with his dignity, and the dignity of his nation, and it is to avoid this subjection  that the license has been obtained. The character to whom it is given, and the object for which it is granted, equally require that it should be construed to impart full security to the person who has obtained it. This security, however need note be expressed; it is implied from the circumstances of the case. \nShould one sovereign enter the territory of another, without the consent of that other, expressed or implied, it would present a question which does not appear to be perfectly settled, a decision of which, is not necessary to any conclusion to which the Court may come in the cause under consideration. If he did not thereby expose himself to the territorial jurisdiction of the sovereign, whose dominions he had entered, it  would seem to be because all sovereigns impliedly engage not to avail themselves of a power over their equal, which a romantic confidence in their magnanimity has placed in their hands. \n2d. A second case, standing on the same principles with the first, is the immunity which all civilized nations allow to foreign ministers. \nWhatever may be the principle on which this immunity is established, whether we consider him as in the place of the sovereign he represents, or by a political fiction suppose him to be extra-territorial, and, therefore, in point of law, not within the jurisdiction of the sovereign at whose Court he resides; still the immunity itself is granted by the governing power of the nation to which the minister is deputed. This fiction of exterritoriality could not be erected and supported against the will of the sovereign of the territory. He is supposed to assent to it. \nThis consent is not expressed. It is true that in some countries, and in this among others, a special law is enacted for the case. But the law obviously proceeds on the idea of prescribing the punishment of an act previously unlawful, not of granting to a foreign minister a privilege which he would  not otherwise possess. \nThe assent of the sovereign to the very important and extensive exemptions from territorial jurisdiction  which are admitted to attach to foreign ministers, is implied from the considerations that, without such exemption, every sovereign would hazard his own dignity by employing a public minister abroad. His minister would owe temporary and local allegiance to a foreign prince, and would be less competent to the objects of his mission. A sovereign committing the interests of his nation with a foreign power, to the care of a person whom he has selected for that purpose, cannot intend to subject is minister in any degree to that power; and, therefore, a consent to receive him, implies a consent that he shall possess those privileges which his principal intended he should retain -- privileges which are essential to the dignity of his sovereign, and to the duties he is bound to perform. \nIn what cases a minister, by infracting the laws of the country in which he resides, may subject himself to other punishment than will be inflicted by his own sovereign, is an inquiry foreign to the present purpose. If his crimes be such as to render him amenable to  the local jurisdiction, it must be because they forfeit the privileges annexed to his character; and the minister, by violating the conditions under which he was received as the representative of a foreign sovereign, has surrendered the immunities granted on those conditions; or, according to the true meaning of the original assent, has ceased to be entitled to them. \n3d. A third case in which a sovereign is understood to cede a portion of his territorial jurisdiction is, where he allows the troops of a foreign prince to pass through his dominions. \nIn such case, without any express declaration waving jurisdiction over the army to which this right of passage has been granted, the sovereign who should attempt to exercise it would certainly be considered as violating his faith. By exercising it, the purpose for which the free passage was granted would be defeated, and a portion of the military force of a foreign independent nation would be diverted from those national objects and duties to which it was applicable, and would be withdrawn from the control of the sovereign whose power and whose safety might greatly depend on retaining  the exclusive command and disposition   of this force. The grant of a free passage therefore implies a waver of all jurisdiction over the troops during their passage, and permits the foreign general to use that discipline, and to inflict those punishments which the government of his army may require. \nBut if, without such express permit, an army should be led through the territories of a foreign prince, might the jurisdiction of the territory be rightfully exercised over the individuals composing this army? \nWithout doubt, a military force can never gain immunities of any other description than those which war gives, by entering a foreign territory against the will of its sovereign. But if his consent, instead of being expressed by a particular license, be expressed by a general declaration that foreign troops may pass through a specified tract of country, a distinction between such general permit and a particular license is not perceived. It would seem reasonable that every immunity which would be conferred by a special license, would be in like manner conferred by such general permit. \nWe have seen that a license to pass through a territory implies immunities not expressed, and it is material to enquire  why the license itself may not be presumed? \nIt is obvious that the passage of an army through a foreign territory will probably be at all times inconvenient and injurious, and would often be imminently dangerous to the sovereign through whose dominion it passed. Such a practice would break down some of the most decisive distinctions between peace and war, and would reduce a nation to the necessity of resisting by war an act not absolutely hostile in its character, or of exposing itself to the stratagems and frauds of a power whose integrity might be doubted, and who might enter the country under deceitful pretexts. It is for reasons like these that the general license to foreigners to enter the dominions of a friendly power, is never understood to extend to a military force; and an army marching into the dominions of another sovereign, may justly be considered as committing an act of hostility; and, if not opposed by force, acquires no privilege by its irregular and improper  conduct. It may however well be questioned whether any other than the sovereign power of the state be capable of deciding that such military commander is without a license. \nBut the rule which is  applicable to armies, does not appear to be equally applicable to ships of war entering the ports of a friendly power. The injury inseparable from the march of an army through an inhabited country, and the dangers often, indeed generally, attending it, do not ensue from admitting a ship of war, without special license, into a friendly port. A different rule therefore with respect to this species of military force has been generally adopted. If, for reasons of state, the ports of a nation generally, or any particular ports be closed against vessels of war generally, or the vessels of any particular nation, notice is usually given of such determination. If there be no prohibition, the ports of a friendly nation are considered as open to the public ships of all powers with whom it is at peace, and they are supposed to enter such ports and to remain in them while allowed to remain, under the protection of the government of the place. \nIn almost every instance, the treaties between civilized nations contain a stipulation to this effect in favor of vessels driven in by stress of weather or other urgent necessity. In such cases the sovereign is bound by compact to authorize foreign vessels  to enter his ports. The treaty binds him to allow vessels in distress to find refuge and asylum in his ports, and this is a license which he is not at liberty to retract. It would be difficult to assign a reason for withholding from a license thus granted, any immunity from local jurisdiction which would be implied in a special license. \nIf there be no treaty applicable to the case, and the sovereign, from motives deemed adequate by himself, permits his ports to remain open to the public ships of foreign friendly powers, the conclusion seems irresistable, that they enter by his assent. And if they enter by his assent necessarily implied, no just reason is perceived by the Court for distinguishing their case from that of vessels which enter by express assent. \n In all the cases of exemption which have been reviewed, much has been implied, but the obligation of what was implied has been found equal to the obligation of that which was expressed. Are there reasons for denying the application of this principle to ships of war? \nIn this part of the subject a difficulty is to be encountered, the seriousness of which is acknowledged, but which the Court will not attempt to evade. \nThose treaties which provide for the admission and safe departure of public vessels entering a port from stress of weather, or other urgent cause, provide in like manner for the private vessels of the nation; and where public vessels enter a port under the general license which is implied merely from the absence of a prohibition, they are, it may be urged, in the same condition with merchant vessels entering the same port for the purposes of trade who cannot thereby claim any exemption from the jurisdiction of the country. It may be contended, certainly with much plausibility if not correctness, that the same rule, and same principle are applicable to public and private ships; and since it is admitted that private ships entering without special license become subject to the local jurisdiction, it is demanded on what authority an exception is made in favor or ships of war. \nIt is by no means conceded, that a private vessel really availing herself of an asylum provided by treaty, and not attempting to trade, would become amenable to the local jurisdiction, unless she committed some act forfeiting the protection she claims under compact. On the contrary, moteres may be assigned for  stipulating, and according immunities to vessels in cases of distress, which would not be demanded for, or allowed to those which enter voluntarily and for ordinary purposes. On this part of the subject, however, the Court does not mean to indicate any opinion. The case itself may possibly occur, and ought not to be prejudged. \nWithout deciding how far such stipulations in favor of distressed vessels, as are usual in treaties, may exempt private ships from the  jurisdiction of the place, it may safely be asserted, that the whole reasoning upon which such exemption has been implied in other cases,  applies with full force to the exemption of ships of war in this. \n\"It is impossible to conceive,\" says Vattel, \"that a Prince who sends an ambassador or any other minister can have any intention of subjecting him to the authority of a foreign power; and this consideration furnishes an additional argument, which completely establishes the independency of a public minister. If it cannot be reasonably presumed that his sovereign means to subject him to the authority of the prince to whom he is sent, the latter, in receiving the minister, consents to admit him on the  footing of independency; and thus there exists between the two princes a tacit convention, which gives a new force to the natural obligation.\" \nEqually impossible is it to conceive, whatever may be the construction as to private ships, that a prince who stipulates a passage for his troops, or an asylum for his ships of war in distress, should mean to subject his army or his navy to the jurisdiction of a foreign sovereign. And if this cannot be presumed, the sovereign of the port must be considered as having conceded the privilege to the extent in which it must have been understood to be asked. \nTo the Court, it appears, that where, without treaty, the ports of a nation are open to the private and public ships of a friendly power, whose subjects have also liberty without special license, to enter the country for business or amusement, a clear distinction is to be drawn between the rights accorded to private individuals or private trading vessels, and those accorded to public armed ships which constitute a part of the military force of the nation. \nThe preceding reasoning, has maintained the propositions that all exemptions from territorial jurisdiction, must be derived from the consent  of the sovereign of the territory; that this consent may be implied or expressed; and that when implied, its extent must be regulated by the nature of the case, and the views under which the parties requiring and conceding it must be supposed to act. \n When private individuals of one nation spread themselves through another as business or caprice may direct, mingling indiscriminately with the inhabitants of that other, or when merchant vessels enter for the purposes of trade, it would be obviously inconvenient and dangerous to society, and would subject the laws to continual infraction, and the government to degradation, if such individuals or merchants did not owe temporary and local allegiance, and were not amenable to the jurisdiction of the country. Nor can the foreign sovereign have any motive for wishing such exemption. His subjects thus passing into foreign countries, are not employed by him, nor are they engaged in national pursuits. Consequently there are powerful motives for not exempting persons of this description from the jurisdiction of the country in which they are found, and no one motive for requiring it. The implied license, therefore, under which they  enter can never be construed to grant such exemption. \nBut in all respects different is the situation of a public armed ship. She constitutes a part of the military force of her nation; acts under the immediate and direct command of the sovereign; is employed by him in national objects. He has many and powerful motives for preventing those objects from being defeated by the interference of a foreign state. Such interference cannot take place without affecting his power and his dignity. The implied license therefore under which such vessel enters a friendly port, may reasonably be construed, and it seems to the Court, ought to be construed, as containing an exemption from the jurisdiction of the sovereign, within whose territory she claims the rites of hospitality. \nUpon these principles, by the unanimous consent of nations, a foreigner is amenable to the laws of the place; but certainly in practice, nations have not yet asserted their jurisdiction over the public armed ships of a foreign sovereign entering a port open for their reception. \nBynkershoek, a jurist of great reputation, has indeed maintained that the property of a foreign sovereign is not distinguishable by any legal  exemption from the  property of an ordinary individual, and has quoted several cases in which courts have exercised jurisdiction over cases in which a foreign sovereign was made a party defendant. \nWithout indicating any opinion on this question, it may safely be ainrmed, that there is a manifest distinction between the private property of the person who happens to be a prince, and that military force which supports the sovereign power, and maintains the dignity and the independence of a nation. A prince, by acquiring private property in a foreign country, may possibly be considered as subjecting that property to the territorial jurisdiction; he may be considered as so far laying down the prince, and assuming the character of a private individual; but this he cannot be presumed to do with respect to any portion of that armed force, which upholds his crown, and the nation he is enrusted to govern. \nThe only applicable case cited by Bynkershoek, is that of the Spanish ships of war seized in Flushing for a debt due from the king of Spain. In that case, the states general interposed; and there is reason to believe, from the manner in which the transaction is stated, that,  either by the interference of government, or the decision of the court, the vessels were released. \nThis case of the Spanish vessels is, it is believed, the only case furnished by the history of the world, of an attempt made by an individual to assert a claim against a foreign prince, by seizing the armed vessels of the nation. That this proceeding was at once arrested by the government, in a nation which appears to have asserted the power of proceeding in the same manner against the private property of the prince, would seem to furnish no feeble argument in support of the universality of the opinion in favor of the exemption claimed for ships of war. The distinction made in our own laws between public and private ships would appear to proceed from the same opinion. \nIt seems then to the Court, to be a principle of public law, that national ships of war, entering  the port of a friendly power open for their reception, are to be considered  as exempted by the consent of that power from its jurisdiction. \nWithout doubt, the sovereign of the place is capable of destroying this implication. He may claim and exercise jurisdiction either by employing force, or by  subjecting such vessels to the ordinary tribunals. But until such power be exerted in a manner not to be misunderstood, the sovereign cannot be considered as having imparted to the ordinary tribunals a jurisdiction, which it would be a breach of faith to exercise. Those general statutory provisions therefore which are descriptive of the ordinary jurisdiction of the judicial tribunals, which give an individual whose property has been wrested from him, a right to claim that property in the courts of the country, in which it is found, ought not, in the opinion of this Court, to be so construed as to give them jurisdiction in a case, in which the sovereign power has impliedly consented to wave its jurisdiction. \nThe arguments in favor of this opinion which have been drawn from the general inability of the judicial power to enforce its decisions in cases of this description, from the consideration, that the sovereign power of the nation is alone competent to avenge wrongs committed by a sovereign, that the questions to which such wrongs give birth are rather questions of policy than of law, that they are for diplomatic, rather than legal discussion, are of great weight, and merit serious  attention. But the argument has already been drawn to a length, which forbids a particular examination of these points. \nThe principles which have been stated, will now be applied to the case at bar. \nIn the present state of the evidence and proceedings, the Exchange must be considered as a vessel, which was the property of the Libellants, whose claim is repelled by the fact, that she is now a national armed vessel, commissioned by, and in the service of the emperor of France. The evidence of this fact is not controverted. But it is contended, that it constitutes no bar to an enquiry into the validity of the title, by which the emperor holds this vessel. Every person, it is alleged, who is entitled to property brought within the jurisdiction of our Courts, has a  right to assert his title in those Courts, unless there be some law taking his case out of the general rule. It is therefore said to be the right, and if it be the right, it is the duty of the Court, to enquire whether this title has been extinguished by an act, the validity of which is recognized by national or municipal law. \nIf the preceding reasoning be correct, the Exchange, being a public armed ship,  in the service of a foreign sovereign, with whom the government of the United States is at peace, and having entered an American port open for her reception, on the terms on which ships of war are generally permitted to enter the ports of a friendly power, must be considered as having come into the American territory, under an implied promise, that while necessarily within it, and demeaning herself in a friendly manner, she should be exempt from the jurisdiction of the country. \nIf this opinion be correct, there seems to be a necessity for admitting that the fact might be disclosed to the Court by the suggestion of the Attorney for the United States. \nI am directed to deliver it, as the opinion of the Court, that the sentence of the Circuit Court, reversiug the sentence of the District Court, in the case of the Exchange be reversed, and that of the District Court, dismissing the libel, be affirmed. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. Justice, delivered the opinion of the Court as follows: \nThis is a writ of error to a judgment rendered in the Court of last resort in the state of New Jersey, by which the Plaintiffs allege they are deprived of a right secured to them by the constitution of the United States. \n The case appears to be this. \nThe remnant of the tribe of Delaware Indians, previous to the 20th February, 1758, had claims to a considerable portion of lands in New Jersey, to extinguish which became an object with the government and proprietors under the conveyance from King Charles 2d, to the Duke of York. For this purpose a convention was  held in February, 1758, between the Indians and commissioners appointed by the government of New Jersey; at which the Indians agreed to specify particularly the lands which they claimed; release their claim to all others; and to appoint certain chiefs to treat with commissioners on the part of the government for the final extinguishment of their whole claim. \nOn the 9th of August, 1758, the Indian deputies met the commissioners and delivered to them a proposition reduced to writing -- the basis of which was, that the government should purchase a tract of land on which they might reside -- in consideration of which they would release their claim to all other lands in New Jersey south of the river Rariton. \nThis proposition appears to have been assented to by the commissioners; and the legislature on the 12th of August, 1758, passed an act to give effect to this agreement. \nThis act, among other provisions, authorizes the purchase of lands for the Indians, restrains them from granting leases or making sales, and enacts \"that the lands to be purchased for the Indians aforesaid shall not hereafter be subject to any tax, any law usage or custom to the contrary thereof, in any wise notwithstanding.\" \n In virtue of this act, the convention with the Indians was executed. Lands were purchased and conveyed to trustees for their use, and the Indians released their claim to the south part of New Jersey. \nThe Indians continued in peaceable possession of the lands thus conveyed to them until some time in the year 1801, when, having become desirous of migrating from  the state of New Jersey, and of joining their brethren at Stockbridge, in the state of New York, they applied for, and obtained an act of the legislature of New Jersey, authorizing a sale of their land in that state. \nThis act contains no expression in any manner respecting the privilege of exemption from taxation which was annexed to those lands by the act, under which they were purchased and settled on the Indians. \nIn 1803, the commissioners under the last recited act sold and conveyed the lands to the Plaintiffs, George Painter and others. \nIn October, 1804, the legislature passed an act repealing that section of the act of August, 1758, which exempts the lands therein mentioned from taxes. The lands were then assessed, and the taxes demanded. The Plaintiffs thinking themselves injured by this assessment,  brought the case before the Courts in the manner prescribed by the laws of New Jersey, and in the highest Court of the state, the validity of the repealing act was affirmed and the land declared liable to taxation. The cause is brought into this Court by writ of error, and the question here to be decided is, does the act of 1804 violate the constitution of the United States. \nThe constitution of the United States declares that no state shall \"pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts.\" \nIn the case of Fletcher v. Peck, it was decided in this Court on solemn argument and much deliberation, that this provision of the constitution extends to contracts to which a state is a party, as well as to contracts between individuals. The question then is narrowed to the enquiry whether in the case stated, a contract existed and whether that contract is violated by the act of 1804. \nEvery requisite to the formation of a contract is found in the proceedings between the then colony of New Jersey and the Indians. The subject was a purchase on the part of the government of extensive claims of the Indians, the extinguishment of which would quiet the  title to a large portion of the province. A proposition to this effect is made, the terms stipulated, the  consideration agreed upon, which is a tract of land with the privilege of exemption from taxation; and then in consideration of the arrangement previously made, one of which this act of assembly is stated to be, the Indians execute their deed of cession. This is certainly a contract clothed in forms of unusual solemnity. The privilege, though for the benefit of the Indians, is annexed, by the terms which create it, to the land itself, not to their persons. It is for their advantage that it should be annexed to the land, because, in the event of a sale, on which alone the question could become material, the value would be enhanced by it. \nIt is not doubted but that the state of New Jersey might have insisted on a surrender of this privilege as the sole condition on which a sale of the property should be allowed. But his condition has not been insisted on. The land has been sold, with the assent of the state, with all its privileges and immunities. The purchaser succeeds, with the assent of the state, to all the rights of the Indians. He stands, with respect to  this land, in their place and claims the benefit of their contract. This contract is certainly impaired by a law which would annul this essential part of it. \nJudgment of the Court. \nThis cause came on to be heard on the transcript of the record of the writ of error of the state of New Jersey, and was argued by counsel on the part of the Plaintiffs in error: on consideration whereof, it is the opinion of the Court, that there is error in the judgment of the said Court of errors in this, that the judgment of the said Court is founded on an act passed by the legislature of the state of New Jersey, in December, 1804, entitled. \"An act to repeal part of an act respecting lands purchased for the Indians;\" which act, in the opinion of this Court, is repugnant to the constitution of the United States, in as much as it impairs the obligation of a contract, and is, on that account, void. It is therefore considered by the Court, that the said judgment be reversed and annulled, and that the cause be remanded to the said Court of errors, that judgment may be rendered therein annulling the assessment in the proceedings mentioned, so far as the same may respect the land in the said proceedings  also mentioned. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. delivered the opinion of the court to the following  effect: \nIn this case the whole evidence is spread upon the record by the bill of exceptions, and the Court below refused to instruct the jury (as requested by the Defendant) that it was not sufficient in law to enable the Plaintiff to recover in this action. \nIf the Court ought to have given this instruction, their refusal is certainly error. \nThe evidence shows that a note was given, or money paid by the Plaintiff for the use of the Defendant; but  it is objected that it was not paid at the request of the Defendant. If the Plaintiff was not bound to pay it, and if it was paid without the request of the Defendant, it is certain that the Plaintiff is not entitled to recover. But the Court thinks that the recital in the deed of assignment is evidence from which the jury might infer a request. \nThe Court is also of opinion that the recital in the deed is sufficient to take the case out of the statute of limitations. Although the Court is not willing to extend the effect of casual or accidental expressions farther than it has been, to take a case out of that statute, and although the Court might be of opinion that the cases on that point have gone too far, yet this is not  a casual or incautious expression: the deed admits the debt to be due on the 15th of July, 1804, and five years had not afterwards elapsed before the suit was brought. \nThen it is objected that there is no evidence of the payment of the money by the Plaintiff; but the Court thinks that the recital of the deed is evidence from which the jury might infer the payment. \nThere was no error respecting the discharge under the insolvent act. It was only a discharge of the person, and could not affect the judgment. \nJudgment affirmed. \n \n\n ", " \nOpinion \n\n \n \n MARSHALL, Ch. J. stated that it was the opinion of the Court that the vessel was liable to seizure; but that a majority of the Court was of opinion that the offence was not complete until the arrival of the vessel in a foreign port; but the facts of the case do not appear so as to enable the Court to decide that  point; the cause is therefore continued for further proof. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. Justice. The majority of the Court is  of opinion that the motion to re-instate the cause, was an application to the discretion of the Court, and its refusal is not a ground for a writ of error. \nAfter the Court had delivered this opinion it became a question whether the writ of error should be dismissed, or the judgment affirmed. \nAfter consideration of the case again, \n MARSHALL, Ch. Justice, stated it to be the opinion of the Court, that the judgment of the Court below should be affirmed. The writ of error is to the judgment generally. The refusal to re-instate the cause being no error in law, the Court can see no error in the principal judgment. \nJudgment affirmed. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. delivered the opinion of the Court as follows: \nMuch of the seeming intricacy of this cause will disappear, if we extricate the questions made by the pleadings before the Court, from others which might greatly embarrass and perplex it. \nThe declaration contains four counts. The first recites an original contract between Cleon Moore and John Darby, for the sale of certain lands, lying in Kentucky, and proceeds to recount in detail those transactions on which the action was founded. The other counts state, in different terms, the several assumpsits, which they allege to have been made. \nThe Defendants crave oyer of the written contract, stated in the first count, and file several pleas to that  count. They then, without repeating the oyer, file similar pleas to the remaining counts. After taking issue on some of the pleas, and demurring to others, the Plaintiff below discontinues his first count: \nBy the counsel for Hughes, this has been considered as error. But the Court can perceive no reason for this opinion. After this discontinuance, the parties are in precisely the same situation, as if all the issues  both of law and fact which were joined upon that count, had been decided in favor of the Defendant below. Such decision could not, in point of law, have affected the rights of the parties under the issues joined on the remaining counts, and consquently the discontinuance upon that count must leave those rights unimpaired. Whether this count remain in the declaration, or be stricken out of it, the right of the Plaintiff in the Circuit Court, to recover on the other counts, will be precisely the same. The examination of this right must be conducted on the same principles as if the declaration had never contained the first count. \nBy the Plaintiff in error it is contended, that the oyer, which was prayed of the written contract alleged in the first count, spreads that contract on the record, and makes it a part of all his subsequent pleas. This is certainly true with respect to all his subsequent pleas to that count, but not with respect to his pleas to the other counts. Different counts allege different contracts, and different assumpsits. It is upon this idea alone, that a verdict can be rendered for the Plaintiff, on one count, and for the Defendant on another. Now the oyer  of one contract cannot be the oyer of another contract, and cannot spread upon the record a contract supposed to be totally distinct from that which was read. The discontinuance of the first count produces no change in this respect, in the condition of the parties. Had it remained, it could have had no influence on the other counts, nor could the oyer of the written contract it stated  have transferred that contract to the other counts. \nThe second count states, that Cleon Moore was owner and proprietor of a plat and certificate of survey for lands lying in Kentucky, for which he was entitled to a patent from the government of that State; and that  James Hughes, without authority, transferred that plat and certificate, in the name of Cleon Moore to John Darby and the said Hughes, by which wrongful act a patent for the said land was issued to the said Darby & Hughes to the great injury of the said Moore. That afterwards the said Hughes promised to pay to the said Moore, \"the sum of seven hundred pounds for the said injury, and loss of the said land assigned as aforesaid; the said Plaintiff at the same time, agreed to the said terms, and to accept of the said  compensation in full of all claims and demands for the said land and for the injury aforesaid.\" \nTo this count, the Defendant pleaded several pleas, one of which was, that neither the promise nor any memorandum thereof was made in writing. To this plea the Plaintiff demurred, and the Court sustained the demurrer. \nThe correctness of this decision depends entirely on the application of the statute of frauds to the contract stated in the declaration. \nCleon Moore is averred to have been the proprietor of a plat and certificate of survey on which Hughes & Darby obtained a patent by using his name without authority. This tortious act did not divest Moore of his equitable title. The land, in equity, was his. Did he part with this title by the contract stated in the declaration? The answer must, in the opinion of the whole Court, be in the affirmative. \"He agreed to accept of the said compensation in full of all claims and demands for the said land, and for the injury aforesaid. This, then, was an agreement to sell his equitable title to the land for the sum of seven hundred pounds. The Court can perceive no distinction between the sale of land to which a man has only an equitable  title, and a sale of land to which he has a legal title. They are equally within the statute. \nIt is, therefore, the unanimous opinion of this Court, that the judgment upon the demurrer to this plea, ought to have been in favor of the Defendant below. This plea being a complete bar to the second count, it is unnecessary to consider the other pleas. \n The third count states the title of Cleon Moore, and the injury sustained by him to the same effect with the second count. It then states a conversation between the parties, \"concerning a compensation for the loss, and a liquidation of the damages sustained by the said Cleon, by reason of the misconduct and wrong doing of the said James in the premises, and of the vesting them, the said Darby & Hughes, with the legal title to the said land as aforesaid; and it was then and there agreed by the said James, on his part, in consideration of the premises, and of the just claims of the said Cleon, for compensation and damages as aforesaid, that the said James should pay to the said Cleon, in satisfaction for the same, the sum of 700l.\" &c. \"And the said Cleon then and there agreed, on his part, to accept of the said seven hundred  pounds in full compensation of his just claims as aforesaid,\" and, upon the same being secured, &c. to release and quit claim to the said James, all his, the said Cleon's, claims and demands whatsoever, for compensation, redress or damages arising from the wrong doing and misconduct of the said James in the premises, and from the vesting the said Darby & Hughes, with the legal title to the said land as aforesaid. \nTo this count also, the statute of frauds was pleaded in bar. The Plaintiff below demurred to the plea, and the Defendant joined in demurrer. \nUpon the true construction of the contract stated in this count, there was some contrariety of opinion among the judges. It is, however, the opinion, of the majority that the contract must be understood to import a sale of land, and that the sum of money stipulated to be paid, was, in contemplation of the parties, to extinguish the title of the said Cleon Moore. \nThe conversation was \"concerning a compensation for the loss and a liquidation of the damages sustained by the said Cleon,\" not only \"by reason of the misconduct of the said Hughes, but also by reason \"of the vesting them, the said Darby & Hughes, with the legal title to  the said land.\" \"And it was then agreed, in consideration of the just claims, of the said Cleon, for compensation and damages, that the said  James, should pay the said Cleon, in satisfaction for the same, the sum of 700l. To the majority of the Court, it seems, that a compensation for the loss of the title to the land must be understood to be a compensation for the land itself, and that the receipt of this money by Cleon Moore, would not only have barred an action for damages, but a suit in equity for the title. \nIf this opinion be correct, then the contract is substantially for the sale of land, and, to be valid, ought to have been in writing. On this plea also the demurrer ought to have been overruled. \nThe fourth count states the injury more in detail, than is done in either the second or third counts. It states the claim of Cleon Moore to be compensated for the loss sustained by his land being granted without his consent to Hughes and Darby. A conversation was then held, and \"propositions for a compromise were made, touching the compensation and indemnification of him, the said Cleon,\" \"and it was then and there agreed by the said James, in consideration of the  just claims of the said Cleon, to be compensated for the damage and injury for the misconduct of the said James in the premises, and in consideration of the said James having procured and obtained a patent to be completed and issued to the said James, and the said John Darby, as last aforesaid, for the said land,\" that he, the said James, would well and truly pay the said Cleon, one other sum of 700l. This the \"said Cleon agreed to accept in satisfaction of his just claims to compensation arising from the causes and considerations last aforesaid.\" \nThe compensation here offered and accepted, is for the injury sustained by Cleon Moore, in consequence of the grant of his land, by the state of Kentucky, to Hughes and Darby. It seems to the Court, that this compensation was in lieu of the patent itself, and must have been intended to extinguish his right to that patent.  It is difficult to suppose an intention, in this case, to receive a full compensation for the loss of a title, and yet to retain the right to that title. The majority of the Court is of opinion that, under the contract as stated in this count also, the payment of the money agreed to be  paid, would  have extinguished the right of Cleon Moore to the land in question, and that this CONTRACT likewise is substantially a contract for the sale of land. The demurrer, therefore, to this plea ought to have been overruled. \nIt is unnecessary to examine other points which were made in the cause. The judgment of the Circuit Court must be reversed, and judgment rendered for the Plaintiff in error. \nJudgment reversed. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. Delivered the following opinion  of the Court: \nThis was an action brought by the Plaintiff against the Defendant, in the Circuit Court for the country of Alexandria. The declaration contained two counts. The first was special, and the second for money had and received, by the Defendant to the Plaintiff's use. \nAt the trial of the cause, the Plaintiff gave in evidence, the record of the proceedings in a Court in the state of Kentucky, in a cause in which William Hodgsett, assignee of James Welch, who was assignee of Abraham Lindo was Plaintiff, and John Kercheval was Defendant. This suit was instituted on a promisory note. The Defendant pleaded payment to Lindo. Is  sue was joined on this plea, and a verdict was found for the Defendant. The Plaintiff, also produced the original note with the indorsements thereon, the last of which was an assignment made by him to Hodgsett. \nOn the prayer of the Defendant, the Court decided that this evidence was not, in itself, sufficient to support the action on the second count, and to this opinion the counsel for the Plaintiff excepted. \nThe testimony offered by the Plaintiff, was certainly incompetent of itself to prove that the Defendant had received money to  his use. The mere possession of a note which he had assigned to another could not, while that assignment remained, be evidence thta the note was his property. Some re-assignment or receipt from the lase assignee was necessary while the indorsements remained to prove tht the title against the prior indorser was in him, and that he had paid a sum of money which gave him a claim on that indorser. And if the record of the state of Kentucky could prove that Lindo had received the money due upon the note, it would not prove that he had received it to the use of the Plaintiff. Nor, under this indorsement, which is an assignment of the note without expressing value received, and that, too, without recourse against the assignor, can it be fairly inferred that the nominal value of the note was actually paid. \nThere is, then, no error in the direction given by the Circuit Court. \nOn the first count, there was a verdict for the Plaintiff, but judgment was arrested, because tht count was insufficient in law. \nThis count states, that a promisory note was made by John Kercheval, payable to Abraham Lindo -- that Lindo indorsed that note to the Plaintiff, in these words, \"pay the within to James  Welch, or order, without any recourse whatever on A. Lindo.\" -- That the Plaintiff indorsed the said note to William Hodgsett, who instituted a suit thereon, in which the said Kercheval pleaded, that he had paid the debt to Abraham Lindo. A verdict was found for the Defendant, on which a judgment  was rendered, which remains in full force. By these proceedings, the Plaintiff became liable to pay the said Hodgsett the amount of the said note and costs of suit, which he had actually paid. The declaration then proceeds to state, that, by reason of the premises, the Defendant,  Abraham Lindo, became liable to pay the Plaintiff, the amount of the said note and costs of suit, and, being so liable, he assumed, &c. \nUnder the mere assignment from Lindo to Welch, it is clear, that this suit is not sustainable; because it is a part of the contract, that Lindo shall not be liable under his indorsement. The count is also defective, in not stating that the indorsement was made on a valuable consideration, and also in not averring that Lindo had actually received the money for which the note was given. \nThese are substantial faults, which are not cured by a verdict. The  declaration presents a case in which there was no liability on the part of the Defendant, to the Plaintiff, which can sustain the assumpsit found by the verdict. \nThere is no error, and the judgment is affirmed. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. delivered the opinion of the  Court to the following effect: \nThis is a suit in chancery, and the Defendant pleads the act of limitations. The Plaintiff by his replication attempts to bring the case within the exception contained in the 14th section of that act; but it seems essential, under that section, that the Complainant should have been actually defeated or obstructed in bringing his action by the removal of the Defendant. There is no evidence of his intention of bringing his action sooner than he did, or that he was delayed by the Defendant's removal from the county. The Court is therefore of opinion that the circumstance of removal is not sufficient to take the case out of the statute. \nIt is objected, that the plea of the statute of limitations is not good unless the Defendant answer also and deny the debt, or aver it to be  paid. But if this be a valid objection, it ought to have been taken at the time of offering the plea, and before the issue was joined. It is now too late. \nIf it be a good objection in cases within the general  jurisdiction of a Court of equity, yet it is not valid in a case like the present which is really a case at law as between the present parties. \n The Court is of opinion that the plea is a good bar, and that the decree should be affirmed. \n \n\n ", " \nOpinion \n\n \n \n MARSHALL Ch. J. delivered the opinion of the Court to the following effect. \nThe Court is of opinion that Welch, the co-obligor, was interested, and was therefore an incompetent witness.  It was a consideration of some importance that he had given Moss a deed of trust of his effects to indemnify him against his suit;  but the principal circumstance was, that Welch's liability would be increased, to the extent of the costs of this suit, if the judgment should be against Moss. 1 \nJudgment reversed. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. Stated that the opinion of the Court to be, that the verdict and judgment in the case of Susan Davis against Swann, were not conclusive evidence in the present case. There was no privity between Swann and Wood; they were to be considered as perfectly distinct persons. Wood had a right to defend his own title, which he did not derive from Swann. \nJudgment reversed. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, ch. justice, delivered the following opinion. \nThis is a suit in Chancery instituted for the purpose of obtaining from the Defendants, payment of certain bills of exchange drawn by Jonathan Russell, an agent of Robert Murray & Co. and indorsed by Nathaniel Russell; which bills were protested for non-payment, and have since been taken up by the indorser. The Plaintiff contends that the house of Clerk & Nightingale had rendered itself responsible for thse bills by two letters addressed to him, one of the 20th and the other of the 2jst of January, 1796, on the faith of which his indorsements, as he says, were made. \nThe letters  are in these words -- (See the preceding statement of the case.) \nThe bill alleges that these letters bind Clerk and Nightingale to pay to Nathaniel Russel any sum for which he might credit Robert Murray & Co. either because, \n1st. They do, in law, amount to a guaranty -- or that, \n2d. They were written with a fraudulent inent to be understood as a guaranty -- or that, \n3d. They contain a misrepresentation of the solidity and character of the house of Robert Murray & Co. \nSoon after the protest of these bills for non-payment, Robert Murray & Co. failed and became bankrupts.  Previous to their Bankruptcy they assigned a great proportion of their effects, including the cargoes for the purchase of which these bills were drawn, to John J. Clark and John B. Murray in trust for Clark and Nightingale, and for sundry other creditors and purposes mentioned in several trust deeds which are recited in the bill, and which appear in the record. The Plaintiff claims to be paid his debt out of this fund. \nThe answer of John J. Clark was filed, and a certain William Russell, a partner of the house of Joseph and William Russell, who gave a letter of credit and guaranty to the drawer  of the bills indorsed by the Plaintiff, Nathaniel Russell, was made a party Defendant. Against Joseph and William Russell a judgment had been obtained by Nathaniel Russell for the amount of the bills indorsed by him, but they had become insolvent, and no part of this judgment had been discharged. \nMany depositions having been taken and sundry exhibits filed, a decree of dismission, without argument, and pro forma was rendered in the Circuit Court for the District of Rhode Island, and the cause comes into this court by appeal from that decree. \nIt is contended by the Defendants, that the letters which have been recited create no liability on the part of Clark and Nightingale, but are to be considered merely as letters of introduction. Whatever may be the construction of the letters, they insist that the Plaintiff, if intitled to recover, has complete remedy at law, and that a Court of Chancery can take no jurisdiction of the cause. \nIt is believed to be unquestionable that a suit in Chancery could not be sustained on these letters against Clark and Nightingale, unless  some additional circumstances rendered an application to this court necessary. \nThe Plaintiff contends  that such application is necessary, because there are a great variety of facts belonging to the transaction which could not be introduced into a court of law, or which would not avail him in that court, but which are proper for the consideration of a court of equity. \n Because some of these facts rest within the knowledge of the Defendants -- and \nBecause he cannot, at law, subject the trust fund to his claim. \nSo far as respects the question whether these letters constitute a contract of guaranty, there can be no doubt but that the construction in a court of law or a court of equity must be precisely the same, and that any explanatory fact which could b admitted in the one court, would be received in the other. \nOn the question of fraud the remedy at law is also complete, and no case is recollected where a court of equity has afforded relief for an injury sustained by the fraud of a person who is no party to a contract induced by that fraud. \nIt is true that if certain facts, essential to the merits of a claim purely legal, be exclusively within the knowledge of the party against whom that claim is asserted, he may be required, in a Court of Chancery, to disclose those facts,  and the court, being thus rightly in possession of the cause, will proceed to determine the whole matter in controversy. But this rule cannot be abused by being employed as a mere pretext for bringing causes, proper for a court of law, into a court of equity. If the answer of the defendant discloses nothing, and the Plaintiff supports his claim by evidence in his own, possession unaided by the confessions of the Defendant, the established rules, limiting the jurisdiction of courts, require that he should be dismissed from the Court of Chancery, and permitted to assert his rights in a court of law. \nIt is also true, that if a claim is to be satisfied out of a fund, which is accessible only by the aid of a Court of Chancery, application may be made, in the first instance, to that court, which will not require that the claim should be first established in a court of law. \nIn the case under consideration, the answer confesses nothing. So far from furnishing any evidence in support of the Plaintiff's claim, it denies, in the most full and explicit terms, the whole quity of the bill. \n This ground of jurisdiction, therefore, is totally withdrawn from the case. \nIt remains to  inquire whether the Plaintiff can be let in to claim on any part of the trust fund: and this depends principally on his claim being within any one of the trusts declared. \nThe first trust deed, which was executed by Robert Murray & Co. on the 23d day of March, 1798, is declared to be in trust to apply the monies arising from the trust property \"in payment and satisfaction of the debts and balances which shall appear to be found to be due and owing from the said parties of the first part Robert Murray & Co.) to them the said John J. Clark and John B. Murray (the trustees) and to such other of the creditors\" of the said Robert Murray & Co. as they should, by any instrument of writing, within twelve months, appoint. \nIt may be doubted whether this declaration of trust would be applicable to a collateral undertaking not, at the time, carried into judgment. \nIn the second deed, one of the trusts declared is, to repay Clark and Nightingale for any sums they may pay or be liable to pay under a suit at the time depending against them. That suit was dismissed. \nWithout deciding whether Russell could avail himself of this trust, having failed in- the particular action then depending, the court  will proceed to inquire how far Clark and Nightingale were liable to the Plaintiff for the debt due to him from Robert Murray & Co. \nThe law will subject a man, having no interest in the transaction, to pay the debt of another, only when his undertaking mainfests a clear intention to bind himself for that debt. Words of doubtful import ought not, it is conceived, to receive that construction. It is the duty of the individual, who contracts with one man on the credit of another, not to trust to ambiguous phrases and strained constructions, but to require an explicit and plain declaration of the obligation he is about to assume. In their letter of the 20th, Clark and Nightingale indicate  no intention to take any responsibility on themselves, but say that Mr. Russell may be assured Robert Murray & Co. will comply fully with their engagements. In their letter of the 21st they speak of the letler of the preceding day as a letter of recommendation, and add \"we have now to request that you will endeavor to render them every assistance in your power.\" \nHow far ought this request to have influenced the Plaintiff? Ought he to have considered it as a request that he would advance  credit or funds for Robert Murray & Co. on the responsibility of Clark and Nightingale, or simply as a strong manifestation of the friendship of Clark and Nightingale for Murray & Co., and of their solicitude that N. Russell should aid their operations as far as his own view of his interests would induce him to embark in the commercial transactions of a house of high character, possessing the particular good wishes of Clark and Nightingale? \nIt is certain that merchants are in the habit of recommending correspondnts to each other without meaning to become sureties for the person recommended; and that, generally speaking, such acts are deemed advantageous to the person to whom the party is introduced, as well as to him who obtains the recommendation. \nThese letters are strong, but they contain no intimation of any intention of Clark and Nightingale to become answerable for Robert Murray & Co., and they are not destitude of expressions alluding to that reciprocity of benefit which results from the intercourse of merchants with each other. \"The friendship,\" say they, in their letter of the 20th, \"we have for these gentlemen, induces us to wish you will render them every service in your  power, at the same time we flatter ourselves this correspondence will prove a mutual benefit.\" \nMr. Russell appears to have contemplated the transaction as one from which a fair advantage  was to be derived. He received a commission on his indorsements. \nThe court cannot consider these letters as constituting a contract by which Clark and Nightingale undertook  to render themselves liable for the engagements of Robert Murray & Co. to Nathaniel Russell.Had it been such a contract, it would certainly have been the duty of the Plaintiff to have given immediate notice to the Defendants of the extent of his engagements. \nIt remains to inquire where these letters contain such a misrepresentation of the circumstances and character of the house of Robert Murray & Co as to render them accountable to the Plaintiff for the injury he has sustained by trusting that company. \nThe question, how far merchants are responsible for the character they give each other, is one of much delicacy, and of great importance to the commercial world. \nThat a fraudulent recommendation (and a recommendation, known at the time, to be untrue, would be deemed fraudulent) would subject the person  giving i to damages sustained by the person trusting to it, seems now to be generally admitted. The case of Pasley v. Freeman reported in 3 Durnford and East, recognizes and establishes this principle. Indeed, if an act, in itself immoral, in its consequences injurious to another, performed for the purpose of effecting that injury, be nt cognizable and punishable by our laws, our system of jurisprudence is more defective than has hitherto been supposed. \nBut this does not appear to the Court to be the case described. It is proved incontestibly that when the letters, on which this suit depends, were written, Robert Murray and Co. were in high credit, and were carrying on business to a great extent, which was generally deemed profitable. The bill charges particular knowledge in Clark and Nightingale that this apparent prosperity was not real. But this, as well as every other allegation of fraud, is explicitly denied by the answer; and the answer, being responsive to the bill, is evidence.Had the Plaintiff been able to exhibit proofs which would have rendered this fact doubtful, it might have been proper to have directed an issue for the purpose of trying it: but he has exhibited  no such proofs. \nIn writing he letters, then, recited in the bill, Clark  and Nightingale stand acquitted of the imputation of fraud. \nBut it is contended by the Plaintiff, that the representation they made of the circumstances of Robert Murray and Co. was, at the time untrue; and that this misrepresentation, whether made ignorantly or knowingly, was equally injurious to Nathaniel Russell, and equally charges them with the loss he had sustained by trusting to their assurances. \nThe fact, that Robert Murray and Co. were not, in January, 1796, in solvent circumstances, is not clearly made out: but the cause does not rest entirely on this fact. The principle, that a mistake in such a fact as the real internal solidity of a mercantile house, whose external appearance is unsuspicious, shall subject the person, representing their solidity to another, to the loss sustained by that other in trusting to this representation, is not admitted. \nMerchants know the circumstances under which recommendations of this description must be given. They know that when one commercial man speaks of another in extensive business, he must be presumed to speak from that knowledge only which is given  by reputation. He is not supposed to have inspected all the books and transactions of his friend, with the critical eye which is employed in a case of bankruptcy. He must, therefore, be supposed to speak of the credit, not of the actual known funds of the person he recommends; of his apparent, not of his real solidity. In such a case it is certainly incautious and indiscreet to use terms which imply absolute and positive knowledge. It may, perhaps, be admitted that, in such a case, fraud may be presumed on slighter evidence than would be required in a case where a letter was written with more circumspection. Yet, even in such a case, where the communication is honestly made, and the party making it has no interest in the transaction, he has never been declared to be responsible for its actual verity. The reason of the rule is, hat merchants generally possess, and are therefore presumed, in their correspondence, to speak from that knowledge only of the circumstances of other merchants, which may be acquired by observing  their course of business, their punctuality and their general credit. \nThis principle appears to have been fully considered in the case of Haycraft  v. Creasey, reported in 2 East, in which case all the authorities were reviewed. It does not appear that a single decision has been ever made, asserting the liability of the writer of such a letter. The case of Haycraft v. Creasey denies his liability; and that case appears to this Court to have been decided in conformity with all previous adjudications. \nIt is therefore the opinion of the Court, that Clark & Nightinale, having believed, and had reason to believes, so far as is shown by the evidence in this cause, that the representation they made to the Plaintiff, of the character and circumstances of Robert Murray and Co. was true, are not liable to the Plaintiff, in consequence of that representation, for the credit he gave to that company. \nA claim is also set up to the funds in the hands of Clark and Nightingale, found on the circumstances that they consist, in part, of the rice purchased with the bills indorsed by the Plaintiff. But as no specific lien is alleged to have existed, and as the particular fraud, alleged to have been committed to acquire those funds, is not proved, this claim is unsustainable. \nThe plaintiff, then, cannot be considered as a trust creditor in consequence  of any claim, he can assert against Clark and Nightingale. \nThe second deed which is dated on the 24th day of March, 1798, is also in trust \"to pay to Joseph and William Russell, the amount that shall be recovered and paid from them to Nathaniel Russell,\" &c. \"upon account of a letter of credit,\" &c. \"and for which the said Nathaniel Russell hath recovered a judgment against the said Joseph and William Russell.\" \nNo part of this judgment has ever been paid, and Joseph and William Russell are insolvent. The state of things, then, has perhaps not yet  occurred in which Joseph and William Russell could demand the execution  of the trust: and the Court, though with some hesitation, feels constrained to decide that, under the terms of this trust, Nathaniel Russell claiming through Joseph and William Russel, cannot demand its execution directly to himself. \nIt also appears that, in September, 1796, Robert Murray and Co. assigned to Loomis and Tillinghast, certain personalties in trust. This assignment was surrendered to Clark and Nightingale in consideration of notes to a large amount, in which Loomis and Tillinghast were bound for Robert Murray and Co. It appears  that Clark and Nightingale are otherwise secured with respect to these notes: at least, there is reason to believe that they are secure. \nClark and Nightingale, having taken this assignment with notice of the trust, take it clothed with the trust. They are trustees for the same uses and to the same extent with Loomis and Tillinghast. \nA paper appears in the cause, which purports to be the assignment to Loomis and Tillinghast. The assignment is in trust, first, to repay themselves any sums which they may pay on account of certain undertakings made by them for Robert Murray and Co. and, secondly, in trust \"to pay to Joseph and William Russell all such monies as they shall be liable to pay, as guaranty as aforesaid, to Nathaniel Russell upon bills,\" &c. reciting the bills for which this suit is instituted. \nIt is settled in this Court, that the person for whose benefit a trust is created, who is to be the ultimate receiver of money, may sustain a suit in equity, to have it paid directly to himself. \nThis trust being to pay Joseph & William Russell, a sum they are liable to pay to Nathaniel Russell, and being created in such terms, that the money is certainly payable to them, the purposes  of equity will be best effected by decreeing it, in a case like the present, to be paid directly to Nathaniel Russell. Indeed, a Court ought not to decree a payment to Joseph & William Russell, without security, that the debt to Nathaniel Russell should be satisfied. \n But it is not shown, by any legal evidence, that this paper is the assignment which was made in trust to Loomis & Tillinghast, and transferred by them to Clark & Nightingale. Its verity is not admitted by the Defendants, nor proved by the Plaintiff. \nNor are the circumstances under which the transfer was made, nor the present circumstances of the trust, sufficiently before the Court, to enable it to decide with certainty, whether the prior trust to Loomis & Tillinghast is satisfied, or otherwise so secured, that the trust fund may now be applied to the debt of Joseph & William Russell. \nCould these defects be supplied, the Court would still be unable to decree in favor of the Plaintiff, for want of proper parties. \nThe incapacity imposed on the Circuit Courts to proceed against any person residing within the United States, but not within the District, for which the Court may be holden, would certainly justify  them in dispensing with parties merely formal. Perhaps in cases where the real merits of the cause may be determined without essentially affecting the interest of absent persons, it may be the duty of the Court to decree, as between the parties before them. But in this case, the assignees of Robert Murray, & Co. are so essential to the merits of the question, and may be so much affected by the decree, that the Court cannot proceed to a final decision of the cause till they are parties. They may contest the validity of all the deeds under which, both parties claim, and assert in themselves, for the benefit of the creditors generally, a right to the whole fund. Certainly this Court ought not, on light grounds, and without due precaution, to change the hands in which this fund is placed, until any claim of the assignees to it may be decided. \nShould this difficulty be obviated by suspending the effect of the decree, till the validity of the trust deeds should be decided, or by directing security to be given, another presents itself, which cannot be removed. The assignees have a right to contest the claim of Nathaniel Russell, and may, either deny its original validity, or   show that it has been paid. They are, then, essential parties, and the Court ought not to decree in favor of the Plaintiff, without them. It is possible, that they may consent to make themselves parties in this cause, and, as a Court may, instead of dismissing a bill brought to a hearing without proper parties, give leave to make new parties, the Court will, in this case, set aside the decree of the Circuit Court, dismissing this bill, and remand the cause to the Circuit Court, with leave to make new parties. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. after stating the case, observed that the Court could see no error in the judgment. \nThe payment of the money by the Plaintiff, under the circumstances stated in the count, was a sufficient consideration for the assumpsit. \nThe principal objection was that the count ought to have been founded upon the note, so as to oblige the Plaintiff to produce it on the trial. But it states that  the note was paid by the Plaintiff; and the Court thinks that the note must have been produced upon the trial. \nJugement affirmed. \n \n\n ", " \nOpinion \n\n \n \n MARSHALL, Ch. J. Delivered the opinion of the Court as follows: \nThis suit was instituted on a promissory note, executed by the Defendant, and made payable to the Plaintiff. After describing the note accurately, with the exception of the time when it became payable, which is altogether omitted, the declaration proceeds, in the usual form to state, that the Defendant being so liable, assumed to pay the sum mentioned in the note when he should be thereunto required, &c. \nTo this count a special plea was filed which, on demurrer, was held insufficient.  Judgment, on the demurrer, being rendered for the Plaintiff, a writ of enquiry was awarded. \nOn executing this writ the Plaintiff produced a note payable sixty days after date, and offered to prove that it was the note on which the suit was instituted, and that the omission to state the day of payment in the declaration was the mistake of counsel. \nThe Court refused to permit the note to go to the jury; and also instructed them that unless a note conforming to the declaration should be adduced, or its absence accounted for, they must presume it to have been passed away or paid. The jury under these instructions found one cent damages, for which judgment was rendered. To this judgment the Plaintiff has sued out a writ of error. \nThe errors assigned are, 1st. That the variance was not fatal; 2d. That on a writ of enquiry the production of the note was unnecessary. \nCourt, being established for the purpose of administering real justice to individuals, will feel much reluctance at the necessity of deciding a cause on a slip in pleading, or on the inadvertence of counsel. They can permit a cause to go off on such points only when some rule of law, the observance of which is deemed  essential to the general administration of justice, peremptorily requires it. \nOne of these rules is, that in all actions on special agreements or written contracts, the contract given in evidence must correspond with that stated in the declaration. The reason of this rule is too familiar to every lawyer to require that it should be repeated. \nIt is not necessary to recite the contract in hoec verba, but if it be recited the recital must be strictly accurate. If the instrument be declared on according to its legal effect, that effect must be truly stated. If there be a failure in the one respect, or the other, an exception, for the variance, may be taken, and the Plaintiff cannot give the instrument in evidence. \nThe plea of non assumpsit denies the contract; and an instrument, not conforming to the declaration either in words where it is recited, or according to its legal effect where the legal effect is stated, although proved to be the act of the Defendant, is not the same act, and therefore does not maintain the issue on his part. \nIn this case, the legal effect of the promissory note is stated; and that effect on a note, having no day of payment, would be that it was payable  immediately.This declaration goes on that idea, and avers a promise to pay when required. A note payable sixty days after date is a note different from one payable immediately, and would not support the issue had non assumpsit been pleaded and issue joined on this plea. \nNow, what difference is produced by the default of the Defendant? He confesses the note stated in the declaration, but he confesses no other note. The necessity then of showing a note conforming to the declaration is precisely as strong on executing a writ of enquiry, as on trying the issue. No reason is perceived why a variance which would be fatal in the one case would not be equally fatal in the other. \nThe cases cited by the Plaintiff's counsel have been considered, but they do not come up to this. They are not cases where the legal effect of the written instrument, offered on executing the writ of enquiry, has differed from that of the instrument stated in the declaration. \nThe Court is also of opinion that the production of the note, on executing the writ of enquiry, was necessary. The default dispenses with the proof of the note, but not with its production. In England damages have in some circumstances  been assessed without a jury, but it is not stated that those damages have been assessed without a view of note. The practice of this country is to require that the note should be produced, or its absence accounted for, and the rule is a safe one. \nJudgment affirmed. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. delivered the opinion of the Court as follows: \nThis suit was brought by Walter S. Alexander, as devisee of Robert Alexander, to redeem certain lands lying in the neighborhood of Alexandria, which were conveyed by Robert Alexander, in trust, by deed dated the 20th of March, 1788, and which were afterwards conveyed to William Lyles, and by him to the testator of the Plaintiffs in error. \nThe deed of the 20th of March, 1788, is between Robert Alexander of the first part, William Lyles of the second part, and Robert T. Hooe, Robert Muire  and John Allison of the third part. Robert Alexander, after reciting that he was seized of one undivided moiety of 400 acres of land, except 40 acres thereof previously sold to Baldwin Dade, as tenant in common with Charles Alexander, in consideration of eight hundred pounds paid by William Lyles, and of the covenants therein mentioned, grants, bargains and sells twenty acres, part of the said undivided moiety, to William Lyles, his heirs and assigns forever, and the residue thereof, except that which had been previously sold to Baldwin Dade, to the said Robert T. Hooe, Robert Muire and John Allison, in trust, to convey the same to William Lyles at any reasonable time after the first day of July, 1790, unless Robert Alexander shall pay to the said William Lyles, on or before that day, the sum of 700l. with interest from the said 20th of March, 1788. And if the said Robert Alexander shall pay the said William Lyles, on or before that day, the said sum of 700l. with interest, then to reconvey the same to the said Robert Alexander.Robert Alexander further convenants, that, in the event of a reconveyance to him, the said twenty acres sold absolutely shall be laid off adjoining the tract  of land on which Williams Lyles then lived. The trustees covenant to convey to William Lyles, on the non-payment of the said sum of 700l. and to re-convey to Robert Alexander in the  event of payment. Robert Alexander covenants for further assurances as to the 140 acres, and warrants the twenty acres to William Lyles and his heirs. \nOn the 19th of July, 1790, the trustees, by a deed in which the trust is recited, and that Robert Alexander has failed to pay the said sum of 700l. convey the said land in fee to William Lyles. \nOn the 23d of August, 1790, William Lyles, in consideration of 900l. conveyed the said 20 acres of land and 140 acres of land to Richard Conway with special warranty against himself and his heirs. \nOn the 9th day of April, in the year 1791, a deed of partial partition was made between Richard Conway and Charles Alexander. This deed shows that Charles Alexander asserted an exclusive title in himself to a considerable part of this land. \nSoon after this deed of partition was executed, Richard Conway entered upon a part of the lands assinged to him and made on them permanent improvements of great value and at considerable expence. \nIn January or February,  1793, Robert Alexander departed this life, having first made his last will in writing, in which he devises the land sold to Baldwin Dade; but does not mention the land sold to William Lyles. \nThe Plaintiff, who was then an infant, and who attained his age of twenty-one years in November, 1803, brought his bill to redeem in  1807. He claims under the residuary clause of Robert Alexander's will. \nThe question to be decided is, whether Robert Alexander, by his deed of March, 1788, made a conditional sale of the property conveyed, by that deed, to trustees, which sale became absolute by the non-payment of 700l. with interest on the 1st of July, 1790, and by the conveyance of the 19th of that month, or is to be considered as having only mortgaged the property so conveyed. \nTo deny the power of two individuals, capable of  acting for themselves, to make a contract for the purchase and sale of lands defeasible by the payment of money at a future day, or, in other words, to make a sale with a reservation to the vendor of a right to repurchase the same land at a fixed price and at a specified time, would be to transfer to the Court of Chancery, in a considerable degree,  the guardianship of adults as well as of infants. Such contracts are certainly not prohibited either by the letter or the policy of the law. But the policy of the law does prohibit the conversion of a real mortgage into a sale. And as lenders of money are less under the pressure of circumstances which control the perfect and free exercise of the judgment than brrowers, the effort is frequently made by persons of this description to avail themselves of the advantage of this superiority, in order to obtain inequitable advantages.For this reason the leaning of Courts has been against them, and doubtful cases have generally been decided to be mortgages. But as a conditional sale, if really intended, is valid, the inquiry in every case must be, whether the contract in the specific case is a security for the re-payment of money or an actual sale. \nIn this case the form of the deed is not, in itself, conclusive either way. The want of a covenant to repay the money is not complete evidence that a conditional sale was intended, but is a circumstance of no inconsiderable importance. If the vendee must be restrained to his principal and interest, that principal and interest ought to be  secure. In is, therefore, a necessary ingredient in a mortgage, that the mortgagee should have a remedy against the person of the debtor. If this remedy really exists, its not being reserved in terms will not affect the case. But it must exist in order to justify a construction which overrules the express words of the instrument. Its existence, in this case, is certainly not to be collected from the deed. There is no acknowledgement of a pre-existing debt, nor any covenant for repayment. An action, at law, for the recovery of the money, certainly could not have been sustained; and if, to a bill in chancery praying a sale of the premises, and a decree for so much money as might remain due, Robert Alexander had answered that this was a sale and not a mortgage, clear proof to  the contrary must have been produced to justify a decree against him. \nThat the conveyance is made to trustees is not a circumstance of much weight. It manifests an intention in the drawer of the instrument to avoid the usual forms of a mortgage, and introduces third persons, who are perfect strangers to the transaction, for no other conceivable purpose than to entitle William Lyles to a conveyance  subsequent to the non-payment of the 700l., on the day fixed for its payment, which should be absolute in its form. This intention, however, would have no influence on the case, if the instrument was really a security for money advanced and to be repaid. \nIt is also a circumstance which, though light, is not to be entirely disregarded, that the 20 acres, which were admitted to be purchased absolutely, were not divided and conveyed separately. It would seem as if the parties considered it as at least possible that a division might be useless. \nHaving made these observations on the deed itself, the Court will proceed to examine those extrinsic circumstances which are to determine whether it is to be construed a sale or a mortgage. \nIt is certain that this deed was not given to secure a pre-existing debt. The connexion between the parties commenced with this transaction. \nThe proof is also complete that there was no negotiation between the parties respecting a loan of money; no proposition ever made respecting a mortgage. \nThe testimony on this subject is from Mr. Lyles himself and from Mr. Charles Lee. There is some contrariety in their testimony, but they concur in this material  point. Mr. Lyles represents Alexander as desirous of selling the whole land absolutely, and himself as wishing to decline an absolute purchase of more than twenty acres. Mr. Lee states Lyles as having represented to him that Alexander was unwilling to sell more than twenty acres absolutely, and offered to sell the residue conditionally. There is not, however, a  syllable in the cause, intimating a proposition to borrow money or to mortgage property. No expression is proved to have ever fallen from Robert Alexander before or after the transaction, respecting a loan or a mortgage. He does not appear to have imagined that money was to be so obtained; and when it became absolutely necessary to raise money, he seems to have considered the sale of property as his only resource. \nTo this circumstance the Court attaches much importance. Had there been any treaty -- any conversation respecting a loan or a mortgage, the deed might have been, with more reason, considered as a cover intended to veil a transaction differing in reality from the appearance it assumed. But there was no such conversation. The parties met and treated upon the ground of sale and not of mortgage. \n It is not entirely unworthy of notice that William Lyles was not a lender of money, nor a man who was in the habit of placing his funds beyond his reach. This, however, has not been relied upon, because the evidence is admitted to be complete, that Lyles did not intent to take a mortgage. But it is insisted that he intended to take a security for money, and to avoid the equity of redemption; an intention which a Court of Chancery will invariably defeat. \nHis not being in the practice of lending money is certainly an argument against his intending this transaction as a loan, and the evidence in the cause furnishes strong reason for the opinion that Robert Alexander himslef did  not so understand it. In this view of the case the proposition made to Lyles, being for a sale and not for a mortgage, is entitled to great consideration. There are other circumstances, too, which bear strongly upon this point. \nThe case, in its own nature, furnishes intrinsic evidence of the improbability that the trustees would have conveyed to William Lyles without some communication with Robert Alexander. They certainly ought to have known from himself, and it was easy to procure the information,  that the money had not been paid. If he had considered this deed as a mortgage, he would  naturally have resisted the conveyance, and it is probable that the trustees would have declined making it. This probability is very much strengthened by the facts which are stated by Mr. Lee. The declaration made to him by Lyles, after having carried the deed drawn by Mr. Lee to Mr. Hooe, that the trustees were unwilling to execute it until the assent of Alexander could be obtained, and the directions given to apply for that assent, furnish strong reasons for the opinion that this assent was given. \nIt is also a very material circumstance that, after a public sale from Lyles to Conway, and a partition between Conway and Charles Alexander, Conway took possession of the premises, and began those expensive improvements which have added so much to the value of the property. These facts must be presumed to have been known to Robert Alexander. They passed within his view. Yet his most intimate friends never heard him suggest that he retained any interest in the land. In this aspect of the case, too, the will of Robert Alexander is far from being unimportant. That he mentions forty  acres sold to Baldwin Dade, and does not mention one hundred and forty acres, the residue of the same tract, can be ascreibed only to the opinion that the residue was no longer his. \nThis, then, is a case in which there was no previous debt, no loan in contemplation, no stipulation for the repayment of the money advanced, and no proposition for or conversation about a mortgage. It is a case in which one party certainly considered himself as making a purchase, and the other appears to have considered himself as making a conditional sale. Yet there are circumstances which nearly balance these, and have induced much doubt and hesitation in the mind of some of the court. \nThe sale, on the part of Alexander, was not completely voluntary. He was in jail and was much pressed for a sum of money.Though this circumstance does not deprive a man of the right to dispose of his property, it gives a complexion to his contracts, and must have some influence in a doubtful case. The very fact that the sale was conditional, implies an expectation to redeem. \n A conditional sale made in such a situation at a price bearing no proportion to the value of the property would bring suspicion  on the whole transaction. The excessive inadequacy of price would, in itself, in the opinion of some of the judges, furnish irresistable proof that a sale could not have been intended. If lands were sold at 5l. per acre conditionally, which, in fact, were worth 15l. or 20l. or 501l. per acre, the evidence furnished by this fact, that only a security for money could be intended, would be, in the opinion of three judges, so strong as to overrule all the opposing testimony in the cause. \nBut the testimony on this point is too uncertain and conflicting to prevail against the strong proof of intending a sale and purchase, which was stated. \nThe sales made by Mr. Dick and Mr. Hartshorne of lots for building, although of land more remote from the towm of Alexandria than that sold to Lyles, may be more valuable as building lost, and may consequently sell at a much higher price than this ground would have commanded. The relative value of property in the neighborhood of a town depends on so many other circumstances than mere distance, and is so different at different times that these sales cannot be taken as a sure guide. \nThat twenty acres, part of the tract, were sold absolutely for 5l.  per acre; that Lyles sold to Conway at a very small advance; that he had previously offered the property to others unsuccessfully; that it was valued by several persons at a price not much above what he gave; that Robert Alexander, although rich in other property, made no effort to relieve this, are facts which render the real value, at the time of sale, too doubtful to make the inadequacy of price a circumstance of sufficient weight to convert this deed into a mortgage. \nIt is, therefore, the opinion of the Court that the decree of the Circuit Court is erroneous and ought to be reserved, and that the cause be remanded to that Court with directions to dismiss the bill. \nDecree reversed. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. delivered the opinion of the Court as follows: \nThis was a suit instituted by the Plaintiffs in the Circuit Court of the United States for the County of Washington, in which they claim freedom. On the trial of the issue certain depositions were offered by the Plaintiffs, which were rejected by the Court and exceptions were taken. The verdict and judgment being rendered for the Defendants, the Plaintiffs have brought the cause into this Court by writ of error, and the case depends on the correctness of the several opinions given by the Circuit Court. \n The first opinion of the Court to which exception was taken was for the rejection of part of the deposition of Caleb Clarke, who deposed to a fact which he had heard his mother say she had frequently heard from her father. \nThe second exception is to the opinion overruling part of the deposition of Freeders Ryland, which stated what he had heard Mary, the ancestor of the Plaintiffs,  say respecting her own place of birth and residence. \nThe fifth exception is substantially the same with the second. The question is somewhat varied in form, and the testimony given by the Defendant to which no exception was taken is recited, and the hearsay evidence is then offered as historical; but the Court perceives no difference in law between the second and fifth exceptions. \nThe sixth exception is taken to an instruction given by the Court to the jury on the motion of the counsel for the Defendants. The Plaintiffs had read the deposition of Richard Disney, who deposed that he had heard a great deal of talk about Mary Queen, the ancestor of the Plaintiffs, and has heard divers persons say that Captain Larkin brought her into this country, and that she had a great many fine clothes, and that old William Chapman took her on shore once, and that no body would buy her for some time, until at last James Caroll bought her. \nWhereupon the Defendant's counsel moved the Court to instruct the jury that if they find the existence of this report and noise was not stated by the witness from his knowledge, but from what had been communicated to him respecting the existence of such a report  and noise many years after her importation, without its appearing by whom or in what manner the same was communicated to him, then the evidence is incompetent to prove either the existence of such report and noise or the truth of it: which instruction the Court gave. \nThe Plaintiffs also read the deposition of Thomas Warfield, who deposed that John Jiams, an inspector of tobaeco, told him that Mary the ancestor of the Plaintiffs  was free and was brought into this country by Captain Larkin, and was sold for seven years. The Court instructed the jury that if they should be satisfied upon the evidence that these declarations of John Jiams were not derived from his own knowledge, but were founded on hearsay or report communicated to him many years after the importation and sale of the said Mary, without its appearing by whom or in what manner such communication was made to him: then his said declarations are not competent evidence in this cause. To these instructions the counsel for the Plaintiffs excepted. \nThese several opinions of the Court depend on one general principle. The decision of which determines them all. It is this: That hearsay evidence is incompetent to  establish any specific fact, which fact is in its nature susceptable of being proved by witnesses who speak from their own knowledge. \nHowever the feelings of the individual may be interested on the part of a person claiming freedom, the Court cannot perceive any legal distinction between the assertion of this and of any other right, which will justify the application  of a rule of evidence to cases of this description which would be inapplicable to general cases in which a right to property may be asserted. The rule then which the Court shall establish in this cause will not, in its application, be confined to cases of this particular description, but will be extended to others where rights may depend on facts which happened many years past. \nIt was very justly observed by a great judge that \"all questions upon the rules of evidence are of vast importance to all orders and degrees of men: our lives, our liberty, and our property are all concerned in the support of these rules, which have been matured by the wisdom of ages, and are now reversed from their antiquity and the good sense in which they are founded.\" \nOne of these rules is, that \"hearsay\" evidence is in its own  nature inadmissible. That this species of testimony supposes some better testimony which might be adduced in the particular case, is not the sole ground  of its exclusion. Its intrinsic weakness, its incompetency to satisfy the mind of the existence of the fact, and the frauds which might be practiced under its cover, combine to support the rule that hearsay evidence is totally inadmissible. \nTo this rule there are some exceptions which are said to be as old as the rule itself.These are cases of pedigree, of prescription, of custom, and in some cases of boundary. There are also matters of general and public history which may be received without that full proof which is necessary for the establishment of a private fact. \nIt will be necessary only to examine the principles on which these exceptions are founded to satisfy the judgment that the same principles will not justify the admission of hearsay evidence to prove a specific fact, because the eye witnesses to that fact are dead. But if other cases standing on similar principles should arise, it may well be doubted whether justice and the general policy of the law would warrant the creation of new exceptions. The danger  of admitting hearsay evidence is sufficient to admonish Courts of justice against lightly yielding to the introduction of fresh exceptions to an old and well established rule: the value of which is felt and acknowledged by all. \nIf the circumstance that the eye witnesses of any fact be dead should justify the introduction of testimony to establish that fact from hearsay, no man could fee safe in any property, a claim to which might be supported by proof so easily obtained. \nThis subject was very ably discussed in the case of the king against the inhabitants of Eriswell, where the question related to the fact that a pauper had gained a residence, a fact which it was contended might be proved by hearsay evidence. In that case the Court was divided, but it was afterwards determined that the evidence was inadmissible. \nThis Court is of the same opinion. \nThe general rule comprehends the case, and the case is not within any exception heretofore recognized.  This Court is not inclined to extend the exceptions further than they have already been carried. \nThere are other exceptions taken which appear on the record, but were not much relied upon in argument. \nThe third exception  is to the qualification of one of the jurors. He was called as a talisman, and was stated to be an inhabitant of the county of Alexandria -- not of Washington. The Court decided that he was a proper juryman, and he was sworn. After his being sworn the objection was made by the Plaintiff's counsel, and an exception was taken to the opinion of the Court. \nWhatever might have been the weight of this exception if taken in time, the Court cannot sustain it now. The exception ought to have been made before the juror was sworn. \nThe fourth exception also applies to an opinion given by the Circuit Court respecting the service of one of the persons summoned as a juror. James Reed, when called, was questioned, and appeared to have formed and expressed no opinion on the particular case; but on being further questioned, he avowed his detestation of slavery to be such that in a doubtful case he would find a verdict for the Plaintiffs; and that he had so expressed himself with regard to this very cause. He added that if the testimony were equal he should certainly find a verdict for the Plaintiffs. The Court then instructed the tryers that he did not stand indifferent between the parties.  To this instruction an exception was taken. \nIt is certainly much to be desired that jurors should enter upon their duties with minds entirely free from every prejudice. Perhaps on general and public questions it is scarcely possible to avoid receiving some prepossessions, and where a private right depends on such a question the difficulty of obtaining jurors whose minds are entirely uninfluenced by opinions previously-formed is undoubtedly considerable. Yet they ought to be superior to every exception, they ought to stand perfectly indifferent between the parties, and although the bias which was acknowledged in this case might not  perhaps have been so strong as to render it positively improper to allow the juror to be sworn on the jury, yet it was desirable to submit the case to those who felt no bias either way; and therefore the Court exercised a sound discretion in not permitting him to be sworn. \nThere is no error in the proceedings of the Circuit Court, and the judgment is affirmed. \nDissent by:", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. delivered the opinion of the Court as follows: \nThis cause comes on now to be heard, \n1st. On exceptions to the opinion of the Circuit Court permitting certain exhibits produced by the Defendants in error, to go to the jury. \n2d. On exceptions to the charge delivered by the Judge, to the jury. \n The first exhibit, to which the Plaintiffs in error objected, was a letter written by their testator to George Smith & Co. of Hamburg, which respects the transaction on which the present suit is founded. This letter is said to be irrelevant. \nThe second is a letter  written by Greene & Barker, [whose interest, the testator of the Plaintiffs held as assignee] to George Smith & Co. making themselves responsible for the contract of Carrington. \nThis letter is said to be inadmissible, because it is between other parties, and relates to a contract between Carrington and George Smith & Co. \nThe third is a judgment obtained by George Smith & Co. against Edward Carrington, the Defendant in error, on his transactions as a co-partner with Greene & Barker, which were guarantied by them. The objection to this exhibit, also is, that it is the record of proceedings in a suit between other parties. \nThe Court is unanimous and clear in the opinion, that neither of these exceptions is sustained. \nThe letter of John J. Clarke to George Smith & Co. is admissible, because it is part of the correspondence relative to the transactions out of which the present suit has grown, and because it affords a strong implication that the writer was acquainted with the obligation of Greene & Barker, whose interest he claims, to comply with the engagements of Carrington, their co-partner and supercargo. It cannot, therefore, be deemed irrelevant. \nThe letter of Greene & Barker  to George Smith & Co. is admissible, because it tends to show the obligation of Greene & Barker, (whose interest in the Abigail and her cargo, is claimed by John Innes Clarke,) to perform the engagements of Carrington, and is a proper link in that chain of testimony which was adduced to prove that those engagements passed, with the interest of Greene & Barker in the Abigail and her cargo, to John Innes Clarke. \n The judgment obtained by George Smith & Co. was admissible, because it was founded on the contracts of Carrington with George Smith & Co. for which Greene & Barker were liable. It was a material document to ascertain the amount to which George Smith & Co. were entitled, as against Carrington, and was therefore a part of the testimony which would be required to show for how much Greene & Barker were responsible when they assigned to John Innes Clarke. It was certainly admissible, for these purposes, because Greene & Barker were in truth co-partners with Carrington, and because, if they were not, it is a case of warranty and indemnity; and in such case, a judgment against the person to be indemnified, if fairly obtained, especially if obtained on notice to the warrantor,  is admissible in a suit against him on his contract of indemnity. Whether it was admissible against John Innes Clarke, depends on the degree of his liability for the money for which that judgment was rendered. If the obligation to indemnify passed to him with the interest of Greene & Barker, either on his express undertaking contained in his letter of March 1801, or in consequence of any equitable lien on the vessel and cargo or on the money produced by them, which attached, while the property of Greene & Barker, and was not affected by the assignment,  then these proceedings were admissible in a suit against him. \nIf no such liability existed, then the action could not be sustained, and the judgment would be reversed on the charge of the judge. This point therefore will be considered in that part of the case. \nIn his charge, after summing up the testimony offered by both parties, the judge proceeds to say, \"I conceive that Mr. Clarke's letter bearing date March 16th, 1801, at Providence, and directed to Mr. Carrington at Havanna, and received by him the 22d of April, 1801, taken in connexion with the other evidence in the case, ought to be considered as a letter of guaranty,  and binding Mr. Clarke to pay 5-9th parts of the debt due to George Smith & Co. as ascertained by the judgment in their favor against Mr. Carrington. I am also of opinion, that Mr. Clarke having received of Mr. Carrington, a large sum of money under and by virtue of the assignment from Greene & Barker, of their interest  in the ship Abigail and cargo, was bound under the circumstances of this case, as made out and established by the evidence, to refund the same, or so much thereof as would amount to 5-9th parts of the debt due to George Smith & Co. What sum Mr. Clarke received, is a question of fact, proper for you to decide.\" \nThe declaration in this cause contains five general counts, and three special counts founded on the letter of March 16th, 1801, which the judge considered as a letter of guaranty binding John Innes Clarke to pay 5-9th parts of the debt due to George Smith & Co. \nThe first part of the charge is supposed, by a part of the Court, to apply to the special counts, and to determine the right of the Plaintiff below to recover under them; the latter part of the charge, to the general counts, and to determine his right to recover under them. \nIf the letter  of the 16th of March, 1801, bound John Innes Clarke to perform the contract of Greene & Barker, then he was liable to the extent of Greene and Barker, liability, and was bound to pay whatever they were bound to pay, although it might exceed the proceeds of the Abigail and cargo. \nIf that letter did not support the special counts, if with the other circumstances of the case it did not amount to such a contract as was stated in the declaration, then Carrington could only recover on his general counts, and could obtain a judgment for no more than had been received by Clarke. \nOthers of the Court are of opinion, that the charge does not import that, in any state of the accounts, Clarke was bound to pay more than he had received. \nA decision of this point is rendered unnecessary by the opinion of the Court on the letter of the 16th of March, 1801. \nThe important part of that letter is in these words. With respect to the ship, notwithstanding I have a bill of sale from Greene & Barker of two thirds, I  shall view you, (if you return here with her,) as the owner of such proportion as agreed upon between you and them, and I give you my word that you shall receive from me any aid  and support in settling the business to mutual satisfaction, that is in my power. Mr. John Corlis, who has undertaken to conduct the business for Mr. John C. Nightingale writes you by this opportunity, and will assure you in his behalf, of one sixth of one third from him, that is to say, to make you an owner in the whole ship Abigail, and appurtenances of one complete sixth, and the same proportion in the cargo; and Greene & Barker's contract with you, shall in every respect be fully complied with, the same as it would have been done with them, had they continued owners.\" \nWhat was Greene & Barker's contract with Carrington? \nIt is observable, that neither in this letter, nor in any other part of the proceedings, is there any evidence that Greene & Barker had made with Carrington more than one contract respecting this voyage. \nA part of this contract, as is apparent from the letter of Mr. Clarke, entitled Carrington to one sixth part of the Abigail and of the cargo to be taken on board at Hamburg. The letter of the 12th of July, 1800, addressed by Greene & Barker to George Smith & Co. states Carrington to be a part owner of the vessel which was sent to Hamburg on freight, wishes  them to render Carrington the necessary aid he may require, and adds, \"we shall consider ourselves responsible for all contracts Mr. Carrington may make in the business of this ship, and anticipate the pleasure of your being well satisfied with his strict fulfilment of them.\" \nIt seems a necessary inference from the condition and object of the parties, that this letter was written in pursuance of, and conformity with, the contract between Greene & Barker and Carrington, and that their responsibility, \"for all contracts Mr. Carrington might make in the business of the ship,\" was as much a part of their engagement with him, as the agreement that he should be interested one sixth in the vessel and cargo. \n This undertaking was known to Mr. Clarke. His letter of the 30th of June, 1800, introducing Carrington to George Smith & Co. recommends Greene & Barker and Nightingale as the persons on whom G. Smith & Co. were to rely for the fulfilment of the engagements made by Carrington. \"I have ever found these gentlemen,\" says he, \"persons of strict integrity, and I doubt not will punctually fulfil any engagements they may enter into with you.\" Clarke knew then, that Greene & Barker  had bound themselves to be responsible for the contracts of Carrington with George Smith & Co. and alluded to this residue of their contract with Carrington, when, after saying that he should consider Carrington as the owner of such proportion of the ship as was agreed on between him and them and that Mr. Corlis, who represented Nightingale, would do the same, he adds \"and Greene & Barker's contract with you shall in every respect be complied with.\" \nThe subsequent conduct of Clarke certainly proves that he never understood himself to be entitled to more, by the assignment of the Abigail and her cargo, than would remain after discharging the contracts entered into by Carrington. \nThe record abounds with proofs of this position, which have been much pressed at the bar, or which the Court will select only one. It is the letter from Carrington to Clarke, dated Havanna,  April 22d, 1801, in which he acknowledges the receipt of Clarkes letter of the 16th of March of the same year. He states the lien upon the ship and cargo, and adds, \"but I presume, and doubt not, Messers. Greene & Barker have acquainted you with the exact situation of them, and have only disposed to you that  part of the ship and cargo that may remain after the bottomry bond is settled and discharged.\" \nAt this information Mr. Clarke expresses no surprise, nor does he manifest any dissatisfaction at the conclusion Carrington had drawn respecting the terms on which he had succeeded to the rights of Greene & Barker. This is considered as further explaining his meaning in usuing the terms, \"and Greene & Barker's contract with you shall in every respect be complied with.\" \n Upon these grounds, it is the opinion of the majority of the Court, that the letter of the 16th of March, 1801, contains a contract, binding John Innes Clarke to perform the whole contract of Greene & Barker with Carrington, a part of which was to pay five ninth parts of the debt contracted on account of the Abigail and her cargo, with George Smith & Co; consequently the Plaintiffs in error were responsible to Carrington as far as Greene & Barker were responsible. \nIt has been contended, for the Plaintiffs in error, that a considerable part of the debt to George Smith & Co. (the premium of insurance on a return voyage to Hamburg,) was incurred in consequence of the gross negligence of Carrington in not countermanding  the order for insurance as soon as he determined to change the voyage. For this sum it is contended, Greene & Barker could not have been liable to Carrington, and consequently it cannot be recovered from John Innes Clarke. \nOne of the judges is of opinion, that the question of negligence is, in this case, a point of law, Carrington having been a co-partner with Greene & Barker, and therefore proper for the decision of the Court; others think that the judge has left that question with the jury. \nIn summing up the evidence, the judge says, \"the Defendants say, that for his, (Carrington's) neglect in not giving such timely notice (of the change of the voyage,) he ought himself to pay the whole of the premium. Of this you will judge.\" \nThis explicit declaration, is considered as not being overruled by the concluding part of the charge. \nIf the fact of negligence was left to the jury, they have decided it in the negative, and the question whether decided it in the negative, and the question whether a partner would in such a case be responsible to his co-partners for negligence in failing to countermand an order for insurance, does not arise in the cause. \nOn that part of the charge which  states John Innes Clarke to be responsible to Carrington to the amount of the money he had received, there is no difference of  opinion in the Court. It is however, unnecessary to state the reasoning on which this opinion is founded, since the construction given to the letter of the 16th of March, 1801, decides the cause. \nIt is the opinion of the Court, that there is no error, and that the judgment be affirmed. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. delivered the opinion of the Court as follows. \nThis action was brought on a policy, insuring the Fabius at and from New York to Barbadoes, and at and from thence to the island of Trinidad, and at and from Trinidad back to New York. The Fabius arrived at the port of  Spain, in the island of Trinidad, on the 21st of October, in the year 1806, where she remained until the 5th of December, when she sailed, under a special license from the proper authorities, for fort Hyslop, another port in the island, for the purpose of procuring  and taking in a part of her return cargo, and with a view of returning to the port of Spain, that being the only port in the island of Trinidad at which vessels, arriving from other places, were permitted to enter, or from which those destined on foreign voyages were permitted to clear. While on her voyage to fort Hyslop, the Fabius was lost by the danger of the seas; and the question is, whether this loss is within the policy? \nWere this a case of the first impression, -- were it to be decided for the  first time on the intention of the parties to be collected solely from the words of the contract, some contrariety of opinion might undoubtedly be looked for, and it is uncertain what might be the opinion of the Court. \nStrictly speaking a vessel is not at an island while sailing from one port to another of the same island; yet it is difficult to resist the persuasion, that something more is meant by an insurance at and from an island, than by an insurance at and from a port. The words, at and from an island, and at and from a port, are not synonimous, and yet in effect the same meaning would often be given to them, if the privilege of sailing from one port to another, for the purpose of completing the cargo, should not be granted by the policy. An insurance to an island may terminate at the first port, and the expression may be adopted from the uncertainty at what port the vessel insured may first arrive; but it seems difficult to put any other construction on an insurance at and from an island, or to assign any other motive for the risk being so described, than that it is a license to use the different ports of the island, for the purpose of obtaining the return cargo. This particular  policy furnishes strong reason for this construction. It is difficult to read it without feeling a conviction that the intention of the contract was to ensure the whole voyage from and to New York, and to have the liberty of the islands of Barbadoes and Trinidad.There being but one port in the island of Trinidad, at which a vessel was permitted to enter or clear, takes away every inducement for inserting in the policy the words at and from the island of Trinidad, rather than the words at and from the port of Spain, in the island of Trinidad, unless those words secure the liberty of going to other  ports, for the purpose of completing the cargo, and of returning to the port of Spain, to clear out for New York. \nBut the words of this policy are not now to receive their first construction. In Camden v. Cowley, mentioned 1 Marshall, 166, a ship was insured from London to Jamaica generally, and by a subsequent policy she was insured at and from Jamaica to London. \nThe ship having touched and staid for some days at one port of Jamaica, was lost in coasting the island; but before she had delivered all her outward cargo at the other ports of the island. \nIn an action on the homeward  policy, the claim of the insured on the underwriters was resisted, not on the principle that the words at and from did not imply a permission to use all the ports of the island, not on the principle that sailing from one port to another was a deviation, but on the principle that the risk on the outward policy had not terminated, and that consequently the risk on the homeward policy had not commenced when the loss happened. \nA verdict was found against the underwriters, and a new trial was refused. \nIn Bond v. Nutt, the insurance was made on a ship at and from Jaimaca to London, warranted to sail before the first of August, 1776. The ship sailed from St. Anns in Jamaica, on the 26th of July, for Bluefields, also in Jamaica, in order to join a convoy there. She was detained at Bluefields by an embargo, until the 6th of August, when she sailed with the convoy, but being separated from it, was captured. On this policy a verdict was given in favor of the underwriters, under the direction of Lord Mansfield, and a motion for a new trial was resisted on two grounds. \n1st. That a departure from St. Anns, was not a departure from Jamaica. \n2d. That going to Bluefields, was a deviation,  that being out of the course of the voyage from St. Anns to London. \n After great consideration, the Court was unanimously of opinion in favor of the motion. \nLord Mansfield in giving his opinion, said, \"as neither party knew from what part of the island the ship would sail, they used the words at and from Jamaica, which protected her in going from port to port, till she sailed.\" He also said, \"had the insurance been at and from St. Anns\" the going round the island to Bluefields, would have been a deviation.\" \nIn Thelusson v. Furguson, an insurance was made \"at and from Gaudaloupe to Havre, warranted to sail on or before the 31st December.\" The vessel took in her cargo at Point Petre in Gaudaloupe, and for the purpose of obtaining convoy, sailed on the 24th of October, to Basseterre, where there is no port, but only an open road. She was there detained till the 10th of January, when she sailed with convoy, but was captured on the return voyage. \nThe Plaintiffs obtained a verdict. A motion was made for a new trial, which was refused. Lord Mansfield said, \"under an insurance\" at and from such a place as Gaudaloupe or Jamaica, the word \"at\" comprises the whole island, and  under that word, the ship is protected in going from port to port, round the coast of the island. \nThe underwriters not being satisfied with this decision, another action was afterwards brought on the same policy against Staples, also an underwriter: But upon that action, the only point insisted on, was that the vessel had not sailed by the stipulated day. \nIt appears then to be the settled doctrine of the Courts of England, that an insuance \"at and from an island\" such as those in the West Indies generally, insures the vessel while coasting from port to port of the island, for the purpose of the voyage insured. It is dangerous to change a settled construction on policies of insurance. \nIt is the opinion of this Court, that the Circuit  Court erred in not giving the instruction prayed for by the  counsel for the Plaintiff, and that the judgment be reversed, and the case remanded to that Court with directions, to give the instructions prayed for by the Plaintiffs, as stated in the bill of exceptions filed in the cause. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. delivered the opinion of the Court as follows: \nThis suit was brought in the Circuit Court sitting in chancery for the purpose of obtaining a perpetual injunction to a judgment rendered against the Plaintiffs in favor of the Defendant, on a policy of insurance effected by him as agent for G. F. Straas and others, of  Richmond, on the brig called the Hope. The allegations of the bill are entirely unsupported by testimony, except those which relate to the value of the vessel insured.  The Hope was valued in the policy at $10,000, and $8,000 were insured upon her. She is stated to have been in fact worth less than $4,000. \nThe underwriters contend that they were in the practice of refusing to ensure on any vessel more than four fifths of her value, and that they were led to make this insurance by a misrepresentation respecting the value of the Hope. They therefore pray to be relieved from so much of the verdict and judgment rendered thereon as exceeds that value. \nOn the part of the Defendants it is contended that the Plaintiffs have not made out a case which entitles them to the aid of a Court of equity. \nWithout attempting to draw any precise line to which Courts of equity will advance, and which they cannot pass, in restraining parties from availing themselves of judgments obtained at law, it may safely be said that any fact which clearly proves it to be against conscience to execute a judgment, and of which the injured party could not have availed himself in a Court of law; or of which he might have availed himself at law, but was prevented by fraud or accident unmixed with any fault or negligence in himself or his agents, will justify an application to a  Court of Chancery. \nOn the other hand it may with equal safety be laid down as a general rule that a defence cannot be set up in equity which has been fully and fairly tried at law, although it may be the opinion of that Court that the defence ought to have been sustained at law. \nIn the case under consideration the Plaintiffs ask the aid of this Court to relieve them from a judgment, on account of a defence which, if good any where, was good at law, and which they were not prevented, by the act of the Defendants, or by any pure and unmixed accident, from making at law. \nIt will not be said that a Court of Chancery cannot interpose in any such case. Being capable of imposing  its own terms on the party to whom it grants relief, there may be cases in which its relief ought to be extended to a person sho might have defended, but has omitted to defend himself at law. Such cases, however. do not frequently occur. The equity of the applicant must be free from doubt. The judgment must be one of which it would be against conscience for the person who has obtained it to avail himself. \nThe Court is of opinion that this is not such a case. \nWilliam Hodgson, as agent for the insured,  applied for insurance on the brig Hope on a voyage from St. Domingo to her port of discharge in the Chesapeake, and laid before the board the following certificate: \n\"This may certify, that I was master of the schooner Sophia of this place, and Alexander Burot supercargo: that while we were at the city of St. Domingo in July last, Mr. Burot purchased the brig Hope, of Boston, and I was called on with a carpenter to examine her, and found her to be a stout well built vessel of about 250 tons, in good order, and well found with sails, rigging, &c., was built in the state of Massachusetts, and is from 6 to 7 years old. I left the city of St. Domingo on the 27th of July, and Mr. Burot expected to sail from there about the 15th or 20th of August up the coast to take in mahogony.\" \nJAMES MAXWELL. \nSeptr. 24th, 1799.\" \nUpon view of this certificate the vessel was valued at $10,000, and the insurance made at $8,000. On the voyage the vessel was captured. \nIn fact the Hope was of 160 tons burthen, and was from eight to nine years old. There is reason to believe that she was not worth more than $3,000. \nIt does not appear that the loss was fraudulent or that the cargo was insured. \nThe Plaintiffs  contend, that this misrepresentation led them to value the vessel much higher, and to ensure a  much larger sum on her than they would have done had a true description been given of her size and age. \nTo support this allegation they state their practice never to insure on any vessel more than four fifths of her real value, and their rule, which was known to Hodgson, (he being himself one of the directors) to require that every order for insurance should be in writing, and should contain, among other things, \"as full a description of the vessel and voyage as can be given.\" \nThe answer asserts that when the certificate was laid before the board of directors, Hodgson was asked if he would vouch for its truth, which he refused to do, whereupon the board  agreed to value the vessel at $10,000, and to make the insurance required. He himself believed the certificate to be accurate, and is persuaded that the insured entertained the same opinion. He does not think that the tonnage of the vessel weighed much with the parties. It is not mentioned in the policy. \nStraas and Leeds, whose agent Hodgson was, and for whom the insurance was made, are not parties to the bill. \n No fraud is proved on them other than what is to be inferred from the error in the certificate given by Maxwell, nor ought their conduct to be decided on, or their interests affected in a suit to which they are not parties, although they might have been made Defendants. \nThe Court will not undertake to say what influence this certificate might have had, or ought to have had, at law. But since the Plaintiffs were not prevented from using it at law by the act of the Defendants or by any positive rule which disabled them from doing so, they have not made out a case of such clear equity, a case in which it would be so obviously against conscience for the Defendant to enforce the judgment at law, as to justify the interposition of a Court of Chancery. The judgment is to be affirmed with costs. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. delivered the opinion of the Court as follows: \nThis is a writ of error to a judgment of the  Circuit Court for the district of Maryland, affirming a judgment of the district Court, which condemned the cargo of the Wendell, as being forfeited to the United States. \nThe first point made by the Plaintiff in error, is that the information filed in the cause, is totally insufficient to sustain a judgment of condemnation. \nThe information consists of several counts, to all of which exceptions are taken. The Court however, is of opinion, that the 4th count is good, and this renders it unnecessary to decide on the others. \nThat count is founded on the 50th section of the collection law, and alleges every fact material to the offence. \nIt is however objected to this count, that the time and place of importation, and the vessel in which it was made, are not alleged in the information, but are stated to be unknown to the attorney. \n These circumstances are not essential to the offence, nor  can they, from the nature of the case, be presumed to be known to the prosecuting officer. \nThe offence is charged in such a manner as to come fully within the law, and is alleged to have been committed after the passage of the fact, and before the exhibition of the information. This allegation, in such a case, is all that can be required. \nThe 4th count of the information being sufficient in law, the Court will proceed to examine the testimony adduced to support it. \nIt is proved incontestibly that the goods are of foreign manufacture and consequently have been imported into the United States. \nThe circumstances, on which the suspicion is founded that they have been landed without a permit, are, \n1st. That the whole cargo in fact, belongs to the claimant, and yet was shipped from Boston in the names of thirteen different persons, no one of whom had any interest in it, or was consulted respecting it, and several of whom have no real existence. \n2d. That no evidence exists of a legal importation into Boston, the port from which they were shipped, to Baltimore, where they were seized. \n3d. That the original marks are removed, and others substituted in their place. \nThe counsel for  the claimant has reviewed these circumstances separately, and has contended that no one of them furnishes that solid ground of suspicion which can create a presumption of guilt and put his client on the proof of his innocence. That they are either indifferent in themselves -- mere casualties -- or are reasonably accounted for. \nTo the employment of fictitious names as shippers, he says, that if the circumstance be not totally immaterial, it is sufficiently accounted for by the deposition of William  French, who says, \"he understood that the claimant in the cause, was in embarrassed circumstances some time before the shipment of these goods, and that he has understood and believes from general report that, for the purpose of preventing his property from being attached, he was in the habit of shipping his property in the names of other persons.\" \nThe Court is of opinion that the circumstance is far from being immaterial. It is certainly unusual for a merchant to cover his transactions with a veil of mystery, and to trade under fictitious names. The manner in which this mysterious conduct is accounted for, is not satisfactory. It does not appear that his creditors were  in Baltimore, or would be more disposed to attach his property in that place than in Boston, and it does not appear that in Boston the names of others were borrowed to protect his property from his creditors. The fact itself, if true, might be proved by other and better testimony. This habit might have been proved by his clerks. \nAn attempt is made to account for the circumstance that the goods were not regularly entered at the custom house of Boston, by the testimony of the same William French, who deposes that goods to a large amount are transported by land to Boston, and if intended for domestic consumption, are generally unaccompanied by certificates of having paid the duties.The inference is therefore considered as a fair one, that these goods may have paid the duties at some other port where they were purchased by Mr. Locke, and transported by land to Boston. \nThe Court is not satisfied with this inference. Goods in packages, unaccompanied by certificates of having paid the duties, are always liable to be questioned on that account. Large purchasers therefore, even where re-exportation is not intended, would choose to be furnished with this protection. It is a precaution  which costs nothing, and which a prudent merchant will use. The presumption therefore, is always against the person who is in possession of goods in the original packages without these documents. This presumption ought to be removed, and may be removed, not by proving  that cases have existed where a purchaser of goods, that have been regularly entered, has omitted to furnish himself with certificates, but that the particular case may reasonably be supposed to be of that description. The actual importation, or the actual purchase of the very goods, or of goods of the same description, may be proved, and ought to be proved by a person who has been so negligent as not to obtain certificates that would exempt them from forfeiture. \nThe alteration of the original marks has been treated as an immaterial circumstance because no criminal motive can be assigned for it. This alteration, it is said, was not calculated to impress the revenue officers with the opinion that the duties had been paid, and is therefore not to be considered as made with that motive. \nCertainly the alteration was not made without a motive. Men do not usually employ so much labor for nothing. If they  use mystery without an object, they must expect to excite suspicion. \nTo do away that suspicion they ought to shew an object. \nIn the present case, it is not improbable, that the motive was to relieve the goods from the suspicion of being imported in violation of the then existing prohibitory laws. One witness, who deposes that the goods were of British manufacture, also deposes that he never saw goods imported from Great Britain with such marks as those which were found on the goods  of Mr. Locke. In the absence of other motives, the mind unavoidably suggests this. \nIf these circumstances were even light, taken separately, they derive considerable weight from being united in the same case. If these goods have really paid a duty, it is peculiarly unfortunate that they should have been shipped without certificates of that fact, under fictitious names, from a port where they were not entered, and that the marks of the packages should have been changed. It is peculiarly unfortunate, that these circumstances cannot be explained away by showing that the goods have been entered elsewhere, or even  that the claimant has purchased such goods from any person whatever. \n These combined circumstances furnish, in the opinion of the Court, just cause to suspect that the goods, wares, and merchandize against which the information in this case was filed, have incurred the penalties of the law. \nBut the counsel for the claimant contends that this is not enough to justify the Court in requiring exculpatory evidence from his client. Guilt he says must be proved before the presumption of innocence can be removed. \nThe Court does not so understand the act of Congress. The words of the 71st section of the collection law, which apply to the case, are these: \"And in actions, suits, or informations to be brought, where any seizure shall be made pursuant to this act, if the property be claimed by any person, in every such case the onus probandi shall be upon such claimant.\" \"But the onue probandi shall be on the claimant, only where probable cause is shown for such prosecution, to be judged of by the Court before whom the prosecution is had.\" \nIt is contended, that probable cause means prima facie evidence, or, in other words, such evidence as, in the absence of exculpatory proof, would justify condemnation. \nThis argument has been very satisfactorily answered  on the part of the United States by the observation, that this would render the provision totally inoperative. It may be added, that the term \"probable cause,\" according to its usual acceptation, means less than evidence which would justify condemnation; and, in all cases of seizure, has a fixed and well known meaning. It imports a seizure made under circumstances which warrant suspicion. In this, its legal sense, the Court must understand the term to have been used by Congress. \nThe Court is of opinion that there is no error, and that the judgment be affirmed with costs. \n \n\n ", " \nOpinion \n\n \n \n MARSHALL, Ch. J. delivered the opinion of the Court as follows: \nThis suit was brought by the Plaintiff, a merchant of Pennsylvania, against the Defendant, a merchant of Maryland, upon an account which grew out of their trade with each other as merchants. The Defendant pleaded the statute of limitations, to which the Plaintiff replied that the Plaintiff, who resided in the state of Pennsylvania, and the Defendant were employed in mutual trade and  merchandize, of and concerning which the said several sums of money in the said declaration mentioned grew due. The Defendant rejoins that the Plaintiff came within the state of Maryland in 1797, and that the original writ in this cause issued on the 5th of July, 1808, and not before. The Plaintiff demurred, and upon argument the demurrer was overruled and the bar adjudged to be good. \nA writ of error has been sued out to the judgment of the Circuit Court, and the questions in the cause are, \n1. Is the replication good in itself? \n2. Does the rejoiner avoid the replication and sustain the plea: \nThese questions depend on the act of limitations passed in 1715 by the legislature of Maryland. The  material part of that act is in these words: \"Be it enacted, That all actions, &c. other than such accounts as concerns the trade of merchandize between merchant and merchant, their factors and servants which are not residents within this province,\" &c. \"shall be commenced or sued within three years ensuing the cause of such action, and not after.\" \nBy the Plaintiffs it is contended, that if either party reside without the province the case is within the exception: -- by the  Defendant, that to bring the case within the exception both parties must reside without the province. \nIt is so unusual for a legislature to employ itself in framing rules which are to operate only on contracts made without their jurisdiction, between persons residing without their jurisdiction, that Courts can never be justified in putting such a contraction on their words if they admit of any other interpretation which is rational and not too much strained. This, it is thought, may be done in the case now to be decided. The words \"which are not residents\" refer, it is said, to both parties. Plaintiff and Defendant. They comprehend all the persons previously enumerated. Let this be conceded. \nThen read the exception as if the word \"both\" or \"all\" were inserted. It will stand thus: \"other than such accounts as concerns the trade or merchandize between merchant and merchant, their factors and servants which are not both or all residents within this province.\" The plain meaning of the sentence so read would be that accounts between merchant and merchant either of whom resided out of the province would come within the exception. It is admitted that without the word \"both\" or \"all,\"  the more obvious meaning of the sentence is that for which the Defendant contends. Yet it will near the same construction without, as with either of those words, and the subject-matter of the law so clearly requires this interpretation that the Court thinks it may be made. \nThe rejoinder is founded on the third section of the  act which contains the usual exceptions in favor of infants, &c. and allows three years after the removal of the impediment to bring their suit. \nIt is contended that since the act of limitations runs against a person beyond sea from the time of his coming into the country, so from analogy it ought to run against a non-resident merchant from the time of his coming, though for a mere temporary purpose, within the country. \nThe Court cannot assent to the correctness of this reasoning. The render it applicable, the rejoinder ought to have averred that the Plaintiff had become a resident of the state of Maryland more than three years before the institution of the suit. Not having done so, the words of the exception have never ceased to be applicable to the Plaintiff; and, consequently, the statute has never commenced to run. \nIt is the opinion of this  Court that the Circuit Court erred in overruling the demurrer of the Plaintiff to the rejoinder of the Defendant in this cause, and that the judgment be reversed and annulled, and the cause remanded with instructions to render judgment on the said demurrer in favor of the Plaintiff, and that further proceedings may be had therein according to law. \nJudgment reversed. \n \n\n ", " \nOpinion \n\n \n \n MARSHALL, Ch. J. stated the opinion of the Court to be, that the vessel came at her peril; that she was bound to get information; but was negligent in not calling at Amelia Island, and in not  inquiring of the vessel which she spoke off the port of Savannah. \nSentence affirmed. \n \n\n ", " \nOpinion \n\n \n \n MARSHALL, Ch. J. \nIf your title is good at law, your have no case in equity. If you have any title it is at law. If you have no title at law, you can have none in equity. The equitable estate is merged in the grant. \nThis is an attempt to substitue a bill in equity for an action of trespass. \nDecree affirmed. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. after stating the case, delivered the opinion of the Court  as follows: \nThe material questions in the cause are: \n1. Has a Court of equity jurisdiction in the case? \n2. Is the Plaintiff, Susanna, entitled to dower? \n3. If these points be in her favor what decree ought the Court to make? \nAccording to the practice which prevails generally in England, Courts of equity and Courts of law exercise a concurrent jurisdiction in assigning dower. Many reasons exist in England in favor of this jurisdiction: one of which is, that partitions are made and accounts are taken in chancery in a manner highly favorable to the great purposes of justice. In this case dower is to be assigned in an undivided third part of an estate, so that it is a case of partition of the original estate as well as of assignment of dower in the part of which Lewis Hipkins died seized. \n An additional reason and a conclusive one in favor of the jurisdiction of a Court of equity is this: The lands are in possession of a purchaser who has not yet paid the purchase money. A Court of law could adjudge to the Plaintiffs only a third part of the land itself. Now, if the Plaintiffs be willing to leave the purchaser undisturbed, to affirm the sales and to receive a compensation  for her dower instead of the land itself, a Court of equity ought never, by refusing its aid, to drive her into a Court of law and compel her to receive her dower in the lands themselves. This is therefore ua proper case for application to a Court of Chancery. \n2. It is perfectly clear that the provision made by Lewis Hipkins in his last will is no bar to a claim of dower for several reasons, of which it will be necessary to mention only two. \n1. It is not expressed to be made in lieu of dower. \n2. It is not averred that she has accepted the provision and still enjoys it. \n3. It remains to inquire what decree the Court ought to make in the case. \nThe first question to be discussed is this: Is the Plaintiff, Susanna, entitled both to dower  and to the provision made for her in the will of her late husband? \nThe law of Virginia has been construed to authorize an averment that the provision in the will is made in lieu of dower, and to support that averment by matter dehors the will. But, with the exception of this allowance to prove the intention of the testator by other testimony than may be collected from the will itself, the act of the Virginia legislature is not understood  in any respect to vary the previously existing common law. \nIn the English books there are to be found many decisions in which the widow has been put to her election either to take her dower and relinquish the provision made for her in the will, or to take that provision and selinquish her dower. There are other cases in which  she has been permitted to hold both. The principle upon which these cases go appears to be this: \nIt is a maxim in a Court of equity not to permit the same person to hold under and against a will. If therefore it be manifest, from the face of the will, that the testator did not intend the provision it contains for his widow to be in addition to her dower, but to be in lieu of it; if his intention discovered in other parts of the will must be defeated by the allotment of dower to the widow, she must renounce either her dower, or the benefit she claims under the will. But if the two provisions may stand well together, if it may fairly be presumed that the testator intended the devise or bequest to his wife as additional to her dower, then she may hold both. \nThe cases of Arnold v. Kempstead and wife, of Villarael and lord Galway, and of Jones v.  Collier and others, reported by Ambler, are all cases in which, upon the principle that has been stated, the widow was put to her election. \nIn the case under consideration neither party derives any aid from extrinsic circumstances, and therefore the case must depend on the will itself. \nThe value of the provision made for the wife compared with the whole estate is not in proof: but so far as a judgment on this point can be formed on the evidence furnished by the will itself, it was supposed by him to be as ample as his circumstances would justify. \nThe only fund provided for the maintenance and education of his five children is the rent of 140l. per annum, payable by P. R. Fendall. Since he has made a distinct provision for his wife, the presumption is much against his intending that this fund should be diminished by being charged with her dower. \nThat part of the will, too, which authorizes P. R. Fendall, in the event of building a mill and not receiving from the sons of the testator their half of its value, to hold the premises until the rent should discharge that debt, indicates an intention that in such case the whole rent should be retained. \n The clause, too, directing  the residue of his estate to be sold for the payment of debts is indicative of an expectation that the property stood discharged of dower, and is a complete disposition of his whole estate. The testator appears to have considered himself as at liberty to arrange his property without any regard to the incumbrance of dower. \nUpon this view of the will it is the opinion of the majority of the Court that the testator did not intend the provision made for his wife as additional to her dower, and that she cannot be permitted to hold both. \nShe has not however lost the right of election. No evidence is before the Court that she has accepted the provision of the will, nor that she still enjoys it. Indeed there is much reason to suppose the fact to be otherwise. The decree of 1803 does not except the lands decreed to her for life from its operation, nor is the Court informed by the evidence that those lands were not sold under it. \nBut if she had accepted that provision and still enjoyed it, there is no evidence that she considered herself as holding it in lieu of dower. On the contrary, she was in the actual perception of one third of the rent accruing on the lease held by P. R. Fendall;  and in the deed executed by her in 1797, before her second marriage, she conveys her dower in the lands leased to Fendall, and also her dower in the lands devised to her by her deceased husband. It is therefore apparent that, she never intended to abandon her claim to dower. \nThe next enquiry to be made by the Court is, to what profits is the Plaintiff, Susanna, entitled in consequence of the detention of dower? \nIt is unnecessary to decide whether, in general, a person claiming dower from a purchaser can recover profits which accrued previous to the institution of her suit. In this case the Plaintiff was in the actual enjoyment of dower. She received one third of the rent accruing from the premises for nine years.She was therefore in full possession of her dower estate; and hen afterwards the land was sold under a decree of a  Court, P. R. Fendall was one of the executors who made the sale, and was himself in effect the purchaser of the estate. Upon no principle could he justify the refusal to pay that portion of the rent which was equal to her dower in the land, unless on the principle that she was not entitled to dower. In this case therefore the Plaintiff is entitled  to one third of 140l. per annum for the remaining four years of the lease under which P. R. Fendall held the land, and to an account for profits after the expiration of the lease. \nBut the Plaintiff, Susanna, cannot claim the profits on her dower and hold any portion of the particular estate devised to her, or of the profits on that estate. An account therefore must be taken, if required by the Defendants, showing what she has received under the will of her husband. This must be opposed to the profits to which she is entitled for dower, and the balance placed to the credit of the party in whose favor it may be. \nIt remains to enquire whether the allowance of a sum in gross in lieu of dower in the land itself, or of the interest on one third of the purchase money, might legally be made. \nThis must be considered as a compromise between the Plaintiffs and the Defendant, Deane. His assent being averred in the bill, and the bill being taken pro confesso as to him, this may be considered as an arrangement to which he has consented. This, however, cannot affect the other Defendants. They have a right to  insist that, instead of a sum in gross, one third of the purchase money  shall be set apart and the interest thereof paid annually to the tonant in dower during her life. \nIf the parties all concur in preferring a sum in gross to the decree which the Court has a right to make, still it is uncertain on what principle seven years were taken as the value of the life of the tenant in dower. It is probably a reasonable estimate, but this Court does not perceive on what principles it was made, nor does the record furnish the means of judging of its reasonableness. \nThis Court is of opinion that there is error in the decree of the Circuit Court in not requiring the Plaintiff,  Susanna, to elect between dower and the estate devised to her by her late husband, and in not allowing profits on her dower estate if she shall elect to take dower. The decree is to be reversed and the cause remanded for further proceedings in conformity with the following decree: \nThis Court is of opinion that the Plaintiff, Susanna, is not barred of her right of dower in the lands of which her late husband, Lewis Hipkins, died seized, but that she cannot hold both her dower and the property to which she may be entitled under the will of the said Lewis. She ought therefore  to have made her election either to adhere to her legal rights and renounce those under the will, or to adhere to the will and renounce her legal rights, before a decree could be made in her favor. \nThis Court is farther of opinion that the Plaintiff, Susanna, having been in possession of her dower by the receipt of rent for several years after the death of her late husband, is, in the event of her electing to adhere to her claim of dower, entitled to receive from the estate of P. R. Fendall the profits which have accrued on her dower estate in his possession from the time when he cased to pay the same, until the sale was made to the Defendant, Joseph Deane, and is entitled to receive from the said Joseph Deane the profits which have accrued thereon since the same was sold and conveyed to him to ascertain which an account ought to be directed. And the Court is further of opinion that an account ought also to be directed to ascertain how much the said Susanna has received from the estate of her late husband, and what profits she has received from the estate devised to her in his will: all which must be deducted from her claim for dower. \nThe Court is further of opinion that if the  parties of either of them shall be dissatisfied with the allotment of a sum in gross, and shall prefer to have one third part of the purchase money, given by the said Joseph Deane for the lands in which the Plaintiff, Susanna, claims dower, set apart and secured to her for her life, so that she may receive during life the interest accruing thereon,  and shall apply to the Circuit Court to reform its decree in this respect, the same ought to be done. \nIt is the opinion of this Court that there is no error in the decree of the Circuit Court for the county of Alexandria in determining that the Plaintiff, Susanna, was entitled to dower in the estate of her late husband, Lewis Hipkins, deceased, but that there is error in not requiring her to elect between her dower and the provision made for her in the will of her late husband, and in not decreeing profits on the same. This Court doth therefore reverse and annul the said decree; and doth remand the cause to the said Circuit Court with instructions to reform the said decree according to the directions herein contained. \nJOHNSON, J. dissented from the opinion of the Court, but did not state his reasons. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. delivered the opinion of the Court as follows: \nThis is an appeal from a sentence of the Court for the district of Orleans condemning the schooner Hoppet and her cargo, as forfeited to the United States for violating the  non-intercourse law. \nIn the district Court two informations were filed by the attorney for the United States, one claiming the ship as being forfeited, and the other claiming the cargo. Objections have been made to each of these informations which will be separately considered. \nThe information against the vessel charges in substance, that while the act, entitled \"An act to interdict commercial intercourse,\" &c. was in force, certain goods of the growth, produce, or manufacture of France, were imported into the United States, to wit: into the port of New Orleans, in the said vessel from some foreign port or place, to wit: from St. Bartholomews contrary to, and in violation of the 4th, 5th and 6th sections of the act. By reason of which, and by virtue of the act of congress, entitled \"An act, &c. the said vessel her tackle, apparel and furniture have become forfeited to the United States. \n The charge contained in this information, and the only charge it contains is, an importation into the United States of certain prohibited articles while the prohibitory act was in force. How far does this crime affect the vessel? \nThis question must be answered by the law. The 6th  section of the act enacts in substance, that if any article, the importation of which is prohibited, shall be put on board of any ship, &c. with intention to import the same into the United States or the territories thereof, contrary to the true intent and meaning of this act, and with the knowledge of the owner or master of such ship, &c. such ship, &c. shall be forfeited. \nThis is the only section of the act which imposes a forfeiture on the vessel. It will be perceived that the crime consists in the prohibited articles being laden on board a ship with intent to be imported into the United States, and with the knowledge of the owner or master of the vessel. A union of a lading with the intention to import, and with the knowledge of the owner or master, is necessary to constitute the crime. Without these essential ingredients, the particular offence, which alone incurs a forfeiture, cannot be committed. \nIn the information under consideration neither of these offences is charged. It is neither alleged that the prohibited goods were put on board the ship with intention to be imported into the United States, nor with the knowledge of the owner or master. \nThe information against  the cargo charges in  substance, that certain prohibited articles and certain other articles not stated to be prohibited, were brought into the United States, to wit: into the port of New Orleans, while the act, entitled \"An act to interdict commercial intercourse\" &c. was in force, from some foreign port or place, by reason of which, and by virtue of the act, the whole cargo of the Hoppet has become forfeited. \nThe 5th section of the act, under which this prosecution was sustained, inflicts forfeiture on the prohibited articles imported contrary to law, and also on \"all other articles on board the same ship or vessel, boat,  raft or carriage, belonging to the owner of such prohibited articles. \nThe innocent articles are liable to forfeiture only where they belong to the owner of the prohibited articles. It is this association, and this alone, which constitutes their crime. Their being in the same vessel exposes them to no forfeiture unless they belong to the same person. \nIn the case under consideration, the information does not allege that the innocent and the prohibited articles did not belong to the same person. \nThe first question made for the consideration  of the Court is this; -- Will this information support a sentence of condemnation pronounced against the vessel and the innocent part of the cargo? \nThat the information states a case by which no forfeiture of the ship or the innocent part of the cargo has been incurred, unless its defectiveness be cured by the allegation that the act was done contrary to, and in violation of the provisions of the statute, has been already fully shown. \nIt is not controverted that in all proceedings in Courts of common law, either against the person or the thing for penalties or forfeitures, the allegation that the act charged was committed in violation of law, or of the provisions of a particular statute will not justify condemnation, unless, independent of this allegation, a case be stated which shows that the law has been violated. The reference to the statute may direct the attention of the Court, and of the accused, to the particular statute by which the prosecution is to be sustained, but forms no part of the description of the offence. The importance of this principle to a fair administration of justice, to that certainty introduced and demanded by the free genius of our institutions in all  prosecutions for offences against the laws, is too apparent to require elucidation, and the principle itself is too familiar not to suggest itself to every gentleman of the profession. \nDoes this rule apply to information in a Court of admiralty? \n It is not contended that all those technical niceties which are unimportant in themselves, and standing only on precedents of which the reason cannot be discerned, should be transplanted from the Courts of common law into the Courts of admiralty. But a rule so essential to justice and fair proceeding as that which requires a substantial statement of the offence upon which the prosecution is founded, must be the rule of every Court where justice is the object, and cannot be satisfied by a general reference to the provisions of a statute. It would require a series of clear and unequivocal precedents to show that this rule is dispensed with in Courts of admiralty, sitting for the trial of offences against municipal law. \nIt is, upon these and other reasons, the opinion of the Court, that the information is not made good by the allegation that the offence was committed against the provisions of certain sections of the act of congress. \n Is it cured by any evidence showing that in point of fact the vessel and cargo are liable to forfeiture? \nThe rule that a man shall not be charged with one crime and convicted of another, may sometimes cover real guilt, but its observance is essential to the preservation of innocence. It is only a modification of this rule, that the accusation on which the prosecution is founded, should state the crime which is to be proved, and state such a crime as will justify the judgment to be pronounced. \nThe reasons for this rule are, \n1st. That the party accused may know against what charge to direct his defence. \n2d. That the Court may see with judicial eyes that the fact, alleged to have been committed, is an offence against the laws, and may also discern the punishment annexed by law to the specific offence. These reasons apply to prosecutions in Courts of admiralty with as much force as to prosecutions in other Courts. It is therefore a maxim of the civil law that a decree must be secundum alegata as well as secundum probata. It would  seem to be a maxim essential to the due administration of justice in all courts. \nIt is the opinion of the Court that this information will  not justify a sentence condemning the schooner Hoppet and that part of her cargo which is not alleged to be of the growth, produce, or manufacture of either France or Great Britain, or the dependencies of either of those powers, whatever the fact may be. \nThere are certain wines imported in this vessel alleged to be of the growth, produced, or manufacture of France. These wines were exported from the United States to St. Bartholomews, where they were purchased by the consignee and shipped to New Orleans. It is contended, that having been imported into the United States, previous to the passage of the non-intercourse law, their exportation and re-importation does not subject them to the penalties of that law. But the Court is unanimously of opinion that they come completely within the provisions of the act of congress. \nIt is the opinion of the Court, that there is no error in that part of the sentence of the district Court of Orleans, which condemns the wines in the information mentioned as forfeited to the United States, but that there is error in that part of the sentence which condemns the schooner Hoppet and the residue of her cargo. \nThis Court doth therefore adjudge and order  that so much of the sentence of the district Court as condemns the schooner Hoppet and the thirty-five hogsheads of molasses, five barrels of molasses, twelve dozen of cocoa nuts and twelve pounds of starch, part of the cargo of the said schooner, be and the same is hereby reversed and annulled; and the said sentence, as to the residue of the cargo, is in all things affirmed. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Chief Justice, delivered the opinion of the Court as follows: \nA vessel, with a cargo belonging in part to the Appellants, was captured on the high seas, on the 20th of August, 1809, by a French privateer, and carried  to St. Martins, where the vessel and cargo wee sold, by order of the governor, at public auction, and part of the cargo purchased and sent to the Appellees in Philadelphia.After the sale the vessel and cargo were condemned by the Court of prize, sitting at Guadaloupe, professedly for a violation of the Milan decree in trading to a dependence of England. On the arrival of the goods, they were claimed by the original owner, who filed a libel for them. In the District Court they were adjudged to him. The Circuit Court reversed that sentence, and from the judgment of the Circuit Court there is an appeal to this Court. \nIt appears to be settled in this country, that the sentence of a competent Court, proceeding in rem, is conclusive with respect to the thing itself, and operates as an absolute change of the property. By such sentence, the right of the former owner is lost, and a complete title given to the person who claims under the decree. No Court of co-ordinate jurisdiction can examine the sentence. The question, therefore, respecting its conformity to general or municipal law, can never arise, for no co-ordinate tribunal is capable of making the inquiry. The decision, in the  case of Hudson & Smith, v. Guestier, reported in 6th Cranch, is considered as fully establishing this principle. \nIt is contended that the sentence, in this case, has not changed the property, because \n 1st. The sale was made under the direction of the governor of St. Martins, before the sentence of condemnation was pronounced. \n2d. The sentence proves its own illegality, because it purports to be made under a decree which the government of the United States has declared to be subversive of neutral rights and national law. \n1st. In support of the first objection, it has been urged, that the jurisdiction of the Court depends on the possession of the thing; that a sentence is a formal decision, by which a forcible possession is converted into a civil right; and that the possession being gone, there remains nothing on which the sentence can operate. \nHowever just this reasoning may be when applied to a case, in which the possession of the captor has been divested by an adversary  force; as in the cases of recapture, rescue, or escape; its correctness is not admitted when applied to this case. The possession is not an adversary possession, but the possession of  a person claiming under the captor. The sale was made on the application of the captor, and the possession of the vendee is a continuance of his possession. \nThe capture is made by and for the government; and the condemnation relates back to the capture, and affirms its legality. \n2d. That the sentence is avowedly made under a decree subversive of the law of nations, will not help the Appellant's case, in a Court which cannot revise, correct, or even examine that sentence. If an erroneous judgment binds the property on which it acts, it will not bind that property the less because its error is apparent. Of that error, advantage can be taken only in a Court which is capable of correcting it. \nIt is true that in this case there is the less difficulty in saying, that the edict under which this sentence was pronounced, is a direct and flagrant violation of national law, because the declaration has already been made by the legislature of the Union. But what consequences attend this legislative declaration? Unquestionably the  legislature which was competent to make it, was also competent to limit its operation, or to give it effect by the employment of such means as its  own wisdom should suggest. Had one of these been, that all sentences pronounced under it should be considered as void, and incapable of changing the property they professed to condemn, this Court could not have hesitated to recognize the title of the original owner in this case. But the legislature has not chosen to declare sentences of condemnation, pronounced under this unjustifiable decree, absolutely void. It has not interfered with them. They retain therefore the obligation common to all sentences whether erroneous or otherwise, and bind the property which is their object; whatever opinion other co-ordinate tribunals may entertain of their own propriety, or of the laws under which they were rendered. \nThe sentence is affirmed with costs. \n \n\n ", " \nOpinion \n\n \n \n MARSHALL, Ch. J. The case is too plain for argument. The jury did not intend to find a general verdict; but to submit the points of law to the Court. If the law had been for the Plaintiffs the Court could only have awarded a venire de novo. The facts ought to have appeared, so that the judgment might have been either reversed or affirmed upon the merits. \nJudgment reversed,  and a new trial awarded. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. after stating the facts of the case, delivered the opinion of the Court as follows: \nOn the part of the Appellants it is contended that an attorney at law has no power, without the consent of his client, to transfer a cause to other judges than those appointed by the laws, and to place it before a tribunal distinct from that before which the party himself has chosen to place it. \nIn this opinion however the majority of the Court does not concur. It is believed to be the practice throughout the union for suits to be referred by consent of counsel without special authority, and this universal practice must be founded on a general conviction that the power of an attorney at law over the cause of his client extends to such a rule. Were it otherwise, Courts could not justify the permission which they always grant, to enter a rule of reference when consented to by counsel on both sides. In this case, however, the letter   and affidavit of Mr. Holker of the 8th of September, 1798, manifests at least an acquiescence in the rule, which the opposite party had a right to consider as an assent to it. \nThe same letter and affidavit will meet the still stronger objection which has been made to the reference of matters not involved in the suit actually depending in Court. They certainly impair very much the weight and influence of those arguments which have been urged against so much of the award as respects those demands of Holker which were not in suit. \nThe Court, however, does not perceive, in the transactions which took place previous to the award itself, any circumstance which could justify a decree to set it aside. The great and real question in the cause is, has the award been made under such circumstances, and is it of such a character, that it ought to bind the Parties? \nIn examining this question it is natural to enquire whether this be in fact an award, in forming which the judgment of the arbitrators has been exercised, or a compromise wearing the dress of an award. \nThe evidence upon this point is thought very clear. Nothing can be more explicit than the testimony of general Hull, who was the  attorney of Mr. Parker. He states an agreement in the most express terms between himself and Mr. Lowell on the sum for which the award should be given; and the arbitrator, whose deposition has been taken, declares that the award was made solely on the acknowledgment of the Defendant's counsel. \nTo the deposition of Mr. Lowell himself great respect is due. He denies a compromise; but on examining his testimony the Court is of opinion that his denial goes no further than to the form of an agreement. The facts he states prove one in substance. Believing himself that Holker's judgment against Parker was released, and that the referees would entirely disregard it: he himself not having insisted on it, or questioned the validity of the pleas in bar; he reminded Parker's attorney in the presence of the referees of his former offer to give $7,200 in satisfaction of all demands. \n It was impossible to misunderstand this declaration. It was substantially a proposition to accept an offer which had been formerly rejected. General Hull replied that he would not now give that sum, but would give $5,000. Mr. Lowell did not agree to accept this offer, but he did not reject it. He  looked on silently, and saw the referees about to make up an award, not on the testimony of the cause, but on a declaration on the part of the Defendant that he would give $5,000, made in answer to one from himself apparently clinging to a former offer to give $7,200. The referees necessarily construed this silence into consent, and Mr. Lowell was not unwilling that they should put this construction on it. He thought it his duty, he says, to secure even this sum for his client rather than have an award that Parker owed him nothing; which would have been equally obligatory. \nThis then is substantially a compromise, and not an award. It is difficult to examine this cause, and to feel the clear conviction which was felt by Mr. Lowell that the referees, had the case of Holker been brought as fully before them as it was in the power of his attorney to bring it, and pressed as earnestly on them as its importance deserved, would have awarded that Parker owed him nothing. \nHad not the sufficiency of the pleas in bar been impliedly admitted -- had the legal operation of the covenant of six parts been seriously contested, it is far from being clear that the referees would have affirmed the  sufficiency of these pleas, or have construed the covenant to  be a release of the judgment. There is certainly much reason to doubt whether the covenant of Holker, although it may be an independent covenant, amounts to a release of the judgment he had obtained against Parker. The mind of the referees does not appear to have been exercised on, or called to his question. They do not appear to have had a fair opportunity to form an opinion on it. It does not appear that the indenture itself was inspected by them, and the description given of it in the pleas is inaccurate. The pleas describe the covenant as containing the word \"judgment,\" which it does not contain. The covenant is \"to vacate, annul, discontinue and withdraw, all  suits, actions and proceedings whatever.\" The pleas introduce the word \"judgment\" in their description of the covenant; a word which essentially varies its construction. Had the real case been brought before the referees, and their attention been directed to this circumstance, it cannot be assumed as certain that they would have considered the judgment as vacated, or would have refused to receive it as prima facie evidence of a claim  to its full amount; open to such objections as Parker might make to it. \nHad they even been of a different opinion, they could not have believed it certain that Parker, who had escaped from this country, leaving debts to an immense amount which Holker was compelled to pay, against whom, when only part of those debts were paid, Holker had obtained a judgment for $125,951.04, was not the debtor of Holker to a large amount. With this view of the case, had they understood that Holker was intercepted in his attempt to attend them, and detained by legal process, it ought not to have been supposed that they would have refused to suspend their award until the issue of his application to the Supreme Court of Pennsylvania for the liberation of his person should be known. \nTo this Court, then, it appears that this award is not the judgment of the arbitrators in the cause, but a compromise, between the attornies, taking the form of an award, and a compromise made at a time when the cause was not so desperate as the attorney supposed it to be. It was a sacrifice of great and important interests at a time when that sacrifice does not appear to have been absolutely necessary. Has the attorney  a right to make such a compromise? \nAlthough an attorney at law, merely as such, has, strictly speaking, no right to make a compromise; yet a Court would be disinclined to disturb one which was not so unreasonable in itself as to be exclaimed against by all, and to create an impression that the judgment of the attorney has been imposed on, or not fairly exercised in the case. But where the sacrifice is such as to leave it scarcely possible that, with a full knowledge of every circumstance, such a compromise could be fairly  made, there can be no hesitation is saying that the compromise, being unauthorized and being therefore in itself void, ought not to bind the injured party. Though it may assume the form of an award or of a judgment at law, the injured party, if his own conduct has been perfectly blameless, ought to be relieved against it. this opinion is the more reasonable because it is scarcely possible that, in such a case, the opposite party can be ignorant of the unfair advantage he is gaining. His conduct can seldom fail to be tainted with some disingenuous practice; or, if it has not, he knows that he is accepting a surrender of the rights of another from a  man who is not authorized to make it. \nThe testimony in this cause accounts for the readiness with which Mr. Lowell acceded to the offer of general Hull. He acted under a mistake, and that mistake is fully disclosed in the record. He believed Parker to be irrectrievably ruined. He thought him totally and absolutely insolvent. This impression was communicated to the referees. They too were of opinion that to drudge through the trunks of papers arrayed before them for the purpose of ascertaining how much one insolvent owed another, would be a useless waste of time. \nMr. Lowell was apparently of opinion that nothing beyond the attached effects was worth pursuing. He believed sincerely that an award of $700,000 would not avail his client more than an award for $7,000, and that he should ill perform his duty if he put the attached effects in any hazard in the vain attempt to get a judgment for a larger sum. He could not therefore venture on any measure which might have produced a release of those effects. They were the sole object of his contemplation and pursuit. Those he knew to be substance, every thing further he thought a shadow. This opinion seems to have influenced his  whole conduct, and to have determined him to accede to the compromise offered by Parker's attorney. \nIt has been said that an award rendered under these circumstances ought not to bind Holker unless his own gross negligence may have deprived him of that equity which would otherwise belong to his case. \n Let his conduct be examined. \nHe appears to have been strongly impressed with the importance of his personal attendance on the arbitrators. Indeed it could scarcely be otherwise. Although his judgment against Parker might not be viewed as a nullity, it would certainly be opened, and all the items on which it was founded be liable to exception. His personal explanations would certainly be essential. They would also be essential in encountering the credits which might be claimed by Parker. His personal attendance was impossible. \nHe appears to have indulged the hope that he might be liberated in time, until the period allowed for appearing before the referees had passed away. \nIt is true that he ought to have transmitted his papers to his attornies. The evidence now adduced or a considerable part of it, might then have been obtained. That he was led to believe Parker  insolvent, would not be a sufficient excuse for neglecting to do so, unless it could be shown that this impression was made by Parker himself, or by his agents. The evidence to this point does not amount to more than light suspicion. \nYet when it is recollected that the Plaintiff was embarrassed and detained by legal process; that he did not possess a clear and distinct knowledge of the testimony which would be required; that some apology for not making an  early exertion to obtain that testimony is to be found in the hope he indulged of being enabled by the discharge of his person to attend the referees; that the expectation, that the judgments in the hands of his counsel would be regarded by the referees, ought not to be considered as entirely unfounded; this Court is of opinion that it would be too rigid an application of the rule which exacts, from those against whom iniquitous judgments have been obtained, evidence of having done all that was practicable at law, to deny relief in this case. \nWith the single exception of his omitting to furnish the evidence on which his judgment against Parker was obtained, and to furnish copies of other judgments rendered   against him as one of the firm of Daniel Parker & Co. as he did in the case of Ross, (of the efficacy of all which if furnished nothing decisive can be said,) no negligence can be imputed to Holker. He has not rested under the decision against him, until Parker, confiding in his security, may have lost the means of protecting himself from an unjust demand, but has pursued him diligently in the Courts of France. Finding this award and the judgment thereon to be an insurmountable bar to the examination of his claim in the Court of France, he has without loss of time instituted this suit. Nothing appears in the cause to induce an opinion that the claims of the parties may not now be as fairly and as fully examined as they could have been before the referees in 1799. \nUpon a full view of the whole cause this Court is of opinion that the Circuit Court erred in dismissing the bill of the Plaintiffs; and that the decree ought to be reversed and annulled, with directions to set aside the award and the judgment rendered in October, 1799, and to direct an account between the Plaintiff, Holker, and the Defendant. \nDECREE. \nThis cause came on to be heard on the transcript of the record, and  was argued by counsel: On consideration whereof this Court is of opinion that the award made in October, 1799, in a suit brought by the Plaintiff, John Holker, against the Defendant, Daniel Parker, in the Circuit Court of the United States for the district of Massachusetts, and referred by a rule of that Court to referees therein named, and the judgment of the said Court rendered thereon, ought not to bar the claim of the Plaintiffs in this cause to an account of all the transactions of the parties. Holker and Parker, with each other as members of the firm of Daniel Parker & Co. and that there is error in the decree of the Circuit Court dismissing the bill of the Plaintiffs. This Court doth therefore decree and order that the decree of the Circuit Court be reversed and annulled, and that the cause be remanded to the Circuit Court to be further proceeded in according to law. \n After the opinion was delivered, P. B. Key mentioned that in the opinion the Court had said that an account ought to be taken, but the decree only directs that the proceedings below should be according to law. \nWe wish for leave to answer fully before an account be taken, and wish it may be understood  that this Court does not mean to prevent a further answer. \nMARSHALL, Ch. J. That is the meaning of the Court. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. delivered the opinion of the Court as follows: \nThe writ of error in this case is brought to reverse a judgment obtained by the Defendants in error against the Plaintiffs in an ejectment brought in the Circuit Court of West Tennessee. At the trial, the Plaintiffs in that Court offered in evidence in order to make out their title, a deed bearing date the 9th of October, 1794, from J. G. Blount and Thomas Blount, of North Carolina, to David Allison, of Philadelphia, which deed was recorded in the county in which the lands lie on the 28th day of December, 1808. The Defendants objected to the admission of this deed, and excepted to the opinion of the Court over ruling the objection. \nThe original law requiring the enregistering of deeds, passed in North Carolina, (them comprehending what is now the state of Tennessee,) in the year 1715. This act requires that the deed shall be acknowledged by the vendor, or proved by one or more evidences  upon oath, either before the chief justice for the time being, or in the Court of the precinct where the land lies, and registered by the public register of the precinct where the land lies within twelve months after the date thereof. It was afterwards enacted, that the deed might be registered by the clerk of the county in which the land lies, and the time for the registration of deeds was prolonged until Tennessee was erected into an independent state, after which the time for enregistering of deeds continued to be prolonged by the legislature of that state. \nIn the year 1797, the legislature of Tennessee enacted a law, declaring that deeds made without the limits of the state should be admitted to registration on proof that the same was acknowledged by the grantor, or proved by one or more of the subscribing witnesses in open Court, in some one of the Courts of the United States, and on no other proof whatever, except where the party holding such deed shall have the same proved  or acknowledged within the limits of the state of Tennessee, agreeable to the mode heretofore in force and use in that state. \nIt is contended by the counsel for the Defendants in error, that  the deed being recorded in the proper county, the judgment of a competent Court has been given on the sufficiency of the testimony on which it was registered, and that judgment is not examinable in any other tribunal. But this Court is not of that opinion. The proof on which a deed shall be registered is prescribed by law, and it is enacted that the deed shall not be good and available in law, unless it be so proved and recorded. The evidence therefore is spread upon the record, and is always attainable. The order that a deed should be admitted to record is an exparte order, and might often be obtained improperly if the order was conclusive. It is believed to be the practice of all Courts, where the law directs conveyances to be recorded, and prescribes the testimony on which they shall be recorded in terms similar to those employed in the act of North Carolina, to hold themselves at liberty to examine the proof on which the registration has been made. \nThis deed in the present case was proved before judge Haywood, in North Carolina, by one of the subscribing witnesses thereto, on the 29th of September, 1797, and registered in Stoke's county, in North Carolina. \nOn the 9th day  of December, 1807, the hand-writing of the subscribing witnesses, who were dead, and of the grantors, was proved before Samuel Powell, one of the judges of the Supreme Court of law and equity, in the state of Tennessee, who thereupon ordered the deed to be registered; and afterwards in November term, 1808, the same proof was received in open Court in the county where the lands lie, and was ordered to be registered by that Court, which order was executed. \nThis Court is of opinion, that the deed was not sufficiently preved according to the then existing law. The probaty before judge Hay wood was not sufficient to prove it as a deed made out of the state, because the act of 1797 required that such probate should be made in open  Court. The proof made before judge Powell, and in open Court, is insufficient, because it was not made by a subscribing witness. \nOn the 23d of November, 1809, the legislature of Tennessee passed an act, declaring that all deeds for land within the state, made out of the state by grantors residing without the state, and \"which shall have been proven by one or more of the subscribing witnesses thereto, or acknowledged by the grantor or grantors before  any judge of any Court in another state, or before the mayor, &c. and shall have been registered in this state in the county where the land, or any part thereof lies, within the time required by law for registering the same, such probate and registration shall be good and sufficient to entitle the same to be read in evidence in any Court within this state.\" \nThis act appears to the Court to cover the precise case. This was a deed for land lying within the state of Tennessee, made out of the state by grantors residing without the state, which had been proven by one of the subscribing witnesses thereto before a judge of a Court of another state, and had been registered in the county where the land lay within the time required by law for registering the same. \nThis act gave complete validity to the registration made in December, 1808, and entitled the deed to be read in evidence. It looked back, in order to affirm and legalize certain registrations made on probates which did not satisfy the laws existing at the time, but which the legislature deemed sufficient for the future. \nIn tracing his title, the Plaintiff in the Circuit Court gave in evidence a deed to himself which bore date  posterior in point of time to the demise laid in the declaration of ejectment. The Defendant, on this account, objected to the deeds going in evidence to the jury, but the Court over-ruled the objection, and declared the date of the lease to be immaterial, and that it should be overlooked, or the plaintiff have leave to amend. The declaration was amended by striking out the date of the lease mentioned in the declaration, and inserting a date posterior to the cenveyance made to the Plaintiff. \n In an ejectment the lease is entirely a fiction invented for the purpose of going fairly to trial on the title. Courts have exercised a full discretion in allowing it to be amended. A Plaintiff has frequently been allowed to enlarge the term when it has expired before a  final decision of the cause. Between making the term extend to amore distant day, and commence at a later day, the Court can perceive no difference in substance. They are modifications of the same power intended to effect the same object; and although not precisely the same in form, the one is not greater in degree than the other. The amendment therefore was properly allowed. \nAlthought this Court  is of opinion, that the Circuit Court erred in saying, that it was unnecessary to prove a title in the lessor of the Plaintiff at the date of the demise laid in the declaration, yet it is an error which could not injure the Defendants, or in any manner affect the cause. The amendment being allowed, the question whether the deed could have been read in evidence had the amendment not been made becomes wholly immaterial, and this Court will not notice it. \nFor the purpose of showing that the original grant was void, the Defendant then offered evidence to prove, that it was founded on a duplicate warrant issued by John Armstrong, entry-taker of western lands for the state of North Carolina, in the year 1798, the original warrant being still in the hands of the sureveyor general of the middle district within which the original entry was situated; and that the grantees, after the said grant was issued, obtained the original warrant from the surveyor general, and procured another grant founded thereon for other lands. To the admission of this testimony, the Plaintiff objected, and the Court sustained the objection. To this opinion also an exception was taken. \nBy the laws of North Carolina,  under which this entry was made, any citizen was permitted to enter with the entry-taker any quantity of land not exceeding 5,000 acres, which it was his duty to describe specifically. After the expiration of three months the entry-taker was to give him a copy of the entry, with a warrant to the surveyor to survey the land. As no other  land than that described could be surveyed under this entry and warrant, while the land really entered remained vacant, it was entirely unimportant whether the survey was made under the first or a second copy of the entry. If indeed two persons claimed the same land, under different surveys and grants, the elder patentee would of course hold the land at law. But no person other than such subsequent patentee, or one claiming under him, could contest the elder grant. To the state, and to all the world, it was perfectly immaterial when this grant issued, whether it emanated on the first copy of the entry, or on any other copy, as no other use had then been made of the first copy, and this grant was unimpeachable. \nIn 1784, a power was given to remove entries when they were made on lands previously granted or entered. But certainly this  would not extend to the removal of an entry, and the survey of other lands on a copy thereof, which entry had already been executed and carried into grant, either on the first or on any other copy. The face of the grant gave no notice that it had issued on a second copy of the entry, and as the case was not provded for by law, it is not improbable that every copy given by the entry-taker would bear the same appearance. There was nothing which would indicate to a purchaser that some future fraud might possibly be practised whereby another grant might be obtained, and which might caution him, that a title, good to every appearance, was infected by a circumstance into which the law did not expect him to inquire. Had no subsequent patent issued in this case for other lands, it would not be contended that this patent was either void or viodable, and it is perfectly clear that a patent which was valid when issued, never can be avoided in the hands of a fair purchaser, by a subsequent fraud committed by the original patentee. It is the subsequent patent which injures the state, and which is obtained by fraud. It is the subsequent patent, if either, the validity of which is questionable. \n In the year 1795, an act passed directing the books of entry-takers to be delivered to the clerks of the several county courts in which such entry-takers respectively resided: And in 1796, an act passed prescribing the  manner in which duplicates might be obtained, where the warrants were lost, and others had not been issued, while the books remained with the entry-takers. \nIt is strongly to be inferred, not only from the language of this act, but from the circumstance that no provision is made for duplicates to be issued by the entry-taker in future cases of lost warrants, that every copy of an entry which was granted by the entry-taker, was considered as an original, and as an equal authority to the surveyor to survey the land entered. The entry being once executed, it was his duty not to execute it again. \nThis act provides, that where duplicates shall issue from the clerk, by order of the Court, the surveyor shall note the fact in his plat, anc it shall appear on the face of the grant, that the same is issurd on a duplicate, and shall be liable to become null and void, if it shall appear that a grant had been obtained on the original warrant. \nThis act applies only  to grants issued on duplicates obtained in conformity with its provisions, and would seem to respect only the junior patent. It cannot affect the grant in this case, which was issued before its passage. But it affords strong reason for the opinion, that the state of North Carolina did not purpose to impeach its own grants, unless they conveyed notice to the world that they were impeachable, and even then they were voidable, not void. An individual not claiming under the same entry, could not avail himself of their liability to be avoided. \nIt is the opinion of the Court that there is no error, and that the judgment be affirmed. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. delivered the opinion of the Court as follows: \nThis was an action brought on a policy insuring the snow Comet at and from Baltimore to Barcelona and at and from thence back to Baltimore. The Comet arrived at Barcelona on the 25th day of July, in the year 1807, where she was compelled to perform quarantine. On the 28th of November the Comet cleared out from Barcelona for Salou, a port of Catalonia, about sixty miles south of Barcelona, where her return cargo was ready to be taken on board. On the first of December, when in the act of sailing, the officers of the vessel were informed that the Algerine cruizers were out capturing American vessels. They were advised to remain until they received further information. On the 8th day of January, 1808, they sailed for  Salou and arrived on the 10th.They were detained by high winds till the 28th of January, when they sailed for Baltimore. One the 5th of February the vessel was captured by a British cruizer, while on her return voyage, and carried into Gibraltar, where she was condemned under the orders of council of the 8th of November, 1807. Evidence was given that it was usual for vessels trading to Barcelona to touch at Salou or some other port on the same coast, to take in the while or part of their return cargo, and that in some instances vessels had remained in the port of Barcelona four, six, and even eight months, waiting for a return cargo. \nOn this evidence the counsel for the Defendants moved the Court to instruct the jury that the Plaintiff could not recover in this cause by reason of the length of time the vessel remained at Barcelona. The Court refused to give the direction as prayed, but did instruct the jury that, if they believed the facts stated, the Plaintiff was not entitled to recover unless from the whole  testimony in the cause they should be of opinion that the vessel did not remain longer at Barcelona than the usage and custom of trade at that place rendered  necessary to complete her cargo. To this direction of the Court the Plaintiff, by his counsel, excepted. \nThis exception was not much pressed at the bar, nor does it appear to this Court to contain any principle to which he could rightly object. \nUnquestionably an idle waste of time, after a vessel has completed the purposes for which she entered a port, is a deviation which discharges the underwriters. If the Comet remained without excuse at Barcelona an unnecessary length of time while her cargo was ready for her and she might have sailed, she would remain at the risk of the owners -- not of the underwriters \nThere is however some doubt spread over the opinion in this case in consequence of the terms in which it is expressed. The vessel might certainly remain as long as was necessary to complete her cargo, but it is scarcely to be supposed that this was regulated by usage and custom. The usages and customs of a port or of a trade are peculiar to the port or trade.But the necessity of waiting where a cargo is to be taken on board until it can be obtained is common to all ports and to all trades. The length of time frequently employed in selling one cargo and procuring another  may assist in proving that a particular vessel has or has not practised unnecessary delays in port, but can establish no usage by which the time of remaining in port is fixed. The substantial part of the opinion however appears to have been, and seems so to have been understood, that the Plaintiff could not recover, unless the jury should be of opinion that the vessel did not remain longer at Barcelona than was necessary to complete her cargo, of which necessity the time usually employed for that purpose might be considered as evidence. \nThe Defendants then moved the Court to instruct the jury that if the said vessel continued at Barcelona as long as was justifiable by the usage of trade at that place for completing and taking in her cargo, and did not complete and take in her cargo there, but afterwards  went to Salou and remained there the length of time as stated in the said protest, in such case the Plaintiff is not entitled to recover. \nThe Court instructed the jury that if the vessel remained at Barcelona as long as the usage of trade justified for the purpose of taking in a cargo there, that she could not afterwards go to another port and take it in without vacating  the policy. \nTo this opinion also the counsel for the Plaintiff excepted. Upon this exception there was some difference of opinion in this Court. For myself, I considered the direction as attaching the departure, which would avoid the contract, to the act of sailing to and continuing in Salou for the purpose of completing her return voyage, and am of opinion that although the Comet might have remained at Barcelona long enough to have taken in a return cargo there, for which she might or might not be blameable, yet that no additional fault was committed by touching at Salou for the purpose of completing her cargo, if to touch at Salou for that purpose was the usage of the trade. \nA majority of the Court, however, is of a different opinion. The usage to stay at Barcelona for a return cargo, and to touch at Salou for a return cargo, as disclosed in the Plaintiff's evidence, are considered by them not as independent but as auxiliary usages which are to be taken in connexion in ascertaining whether there was or was not unreasonable delay in the conduct of the voyage. The assured had a right, under these usages as they are called, to take in part of the cargo at Barcelona and part at  Salou, or the whole at either port. The delay necessary for these purposes would be justifiable at either port; but if the assured exhausted the whole time, at one port, which, according to the usage, was allowable only for the purpose of taking in the whole cargo, the subsequent delay at another port, for the purpose of taking in the cargo, must be considered as unreasonable. The delay at Barcelona, under such circumstances, could not be necessary for the purposes of the voyage, and therefore would determine the policy. But the deviation would rest merely in intention, until the time of sailing for Salou, for until that  time the assured would have a right to lade his cargo at Barcelona, and thus retroactively justify his stay there under the usage. The delay could not be a consummated deviation until the whole  time allowed by the usage was exhausted and the party had definitively abandoned the lading of a cargo which would justify that delay. The opinion of the Court below appears to the majority of this Court to have proceeded on this ground and to be correct. \nThe Plaintiff then, in addition to the former testimony, gave evidence that it was usual for  vessels to remain at Barcelona until their return cargoes or so much thereof as might be necessary for their completion was provided and collected at Salou, or some other southern port in Catalonia, and then to sail to such port, for the purpose of taking in the cargoes so collected. \nThe Defendants then move the Court to instruct the jury that since it appeared from the protest of the master and others on board the Comet, and from the sentence of condemnation produced by the Plaintiff, that all the return cargo, which the said vessel took in at Barcelona, was taken in on or before the 28th of November, that the said vessel was then ready for sea, and was actually cleared out on the 1st of December; and that being there, and about to sail immediately for Salou, the said snow Comet, in consequence of a report that the Algerine cruizers were out cruizing in the Mediterranean against American vessels, remained at Barcelona until the 8th of January, 1808, before she sailed from Barcelona, if the jury believed these facts the Plaintiff could not recover. This opinion was given by the Court and the Plaintiff excepted to it. \nHad not the testimony on which this application was founded been  spread upon the record the Court would have found some difficulty in deciding on the propriety of the opinion which was given from the terms employed in stating the application to the Circuit Court. It appears however from a comparison of the application to the Court with the testimony on which it was founded, to have been intended to obtain from the Court the opinion that the testimony respecting the report that the Algerines were out capturing American vessels was  not a sufficient justification for remaining at Barcelona from the 1st of December, 1807, till the 8th of January, 1808. \nNo doubt is entertained that the danger of capture from the Algerines, if proved to be real and immediate, would justify the continuance in the port of Barcelona. \nAnd the apprehension of such danger, if founded on reasonable evidence, would produce a like effect. But in each case the danger must not be a mere general danger, indefinite in its application and locality. If it were so, in time of war, any delay, however long, in a port, would become excusable, for there would always be danger of capture from the enemy's cruizers. Nor is it sufficient that the danger should be extraordinary,  for then any considerable increase of the general risk would authorize a similar delay. The danger, therefore, must be obvious and immediate in reference to the situation of the ship at the particular time. It must be such as then directly applied to the interruption of the voyage, and imminent; not such as is merely distant, contingent and indefinite. In the present case it is not shown that there was any danger in proceeding from Barcelona to Salou. No Algerine force is shown to be interposed between those ports. Whatever might be the danger elsewhere, if there was none in proceeding to and remaining in Salou, it was the duty of the captain to have proceeded to that place, taken in his cargo, and remained there for further information. The captain was bound to have gone as far on his voyage as he could consistent with the general safety. \nThe judgment is affirmed with costs. \nConcur by:", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. after stating the case, delivered the opinion of the Court as follows: \nThis perplexed and intricate case, which is rendered still more so by the manner in which it has been conducted at the circuits, has been considered by the Court. Their opinion on the various points it presents will now be given. \nIf the question on which the Court was divided be considered literally, the answer must undoubtedly be, that the letter of the 25th of March, 1806, contains no averment that no person other than Livingston, Gilchrist,  Griswold and Baxter, were interested in the return cargo of the Herkinter, nor that all the persons interested therein were native Americans. This would be perceived from an inspection of the letter itself, and there would be no occasion for an application to the Court concerning its contents. But the real import of the question is this. Is the language of the letter such as to be equivalent to an averment that the owners  named in it are the sole persons who were interested in the return cargo? If it does amount to such an averment, then it is a representation, and if it be untrue, its materiality to the risque, must determine its influence on the policy. A false representation, though no breach of the contract, if material, avoids the policy on the ground of fraud, or because the insurer has been misled by it. \nUpon reading the letter on which this insurance was made, the impression would probably be that the four persons named in it were the sole owners of the return cargo of the Herkimer. The inference may fairly be drawn from the expressions employed. Such was probably the idea of the writer at the time. The writer however might have, and probably had other motives for his allusion to other owners, than to convey the idea that there were no others. The premium might in his opinion be affected in some measure by stating the little apprehension from capture, which was entertained by others, and especially by that owner who was the supercargo. If, however, it was not supposed by Mr. Gilchrist, that the persons named in his letter were the sole owners of the cargo, or if in fact they were not  the sole owners, he has expressed himself in so careless a manner as to leave his letter open to misconstruction, and, in the opinion of some of the judges, to expose his contract to hazard in consequence of it. \nBut that part of the Court which entertains this opinion, is also of opinion, that the letter ought not to be construed into a representation of any interest to grow out of the voyage distinct from actual ownership of the cargo. \"The owners, says Mr. Gilchrist, are already insured against the dangers of the seas,\" &c. His application was for the owners; and when he proceeds to state, that others were concerned, he must be understood to say that they were concerned as owners. Consequently if the letter impliesan averment, that he has named all the owners,  it implies nothing further, and ought not to be construed into a representation, that there were no other persons interested in the safe return of the cargo. \nOthers are of opinion, that to constitute a representation there should be an affirmation or denial of some fact, or an allegation which  would plainly lead the mind to the same conclusion. If the expressions are ambiguous, the insurer ought  to ask an explanation, and not substitute his own conjectures for an alleged representation. In this opinion the majority of the Court is understood to concur. The instruction then applied for by the counsel for the Plaintiffs, on which the Circuit judges were divided, ought to have been given. \n5th. A majority of the Court is also of opinion, that the instruction prayed for as stated in the 5th exception ought to have been given. If the jury believed the facts offered in evidence by the Plaintiffs, which were that by the usage of the trade to Peru from any foreign port, it was necessary for the ship to have on board, on her return voyage, the Spanish and other material papers delivered by Baxter to Giles, then there was no such concealment of said papers as can affect the right of the Plaintiff to recover in this action. In general concealment of papers amounts to a breach of warranty. But when the underwriters know, or, by the usage and course of the trade insured, ought to know, that certain papers ought to be on board for the purpose of protection in one event, which, in another, might endanger the property, they tacitly consent that the papers shall be so used as to protect  the property. The use of the Spanish papers was to give a Spanish character to the property in the Spanish ports; and, of the American papers, to prove the American character of the property to other belligerents. But to have exhibtied the Spanish papers to a British cruizer and thus to induce a suspicion that the property was belligerent, would have been not less improper than to have exhibited the proofs of American property in a port of Peru, and thus to defeat the sole object for which Spanish papers were necessarily taken on board. \n6th. A majority of the Court is also of opinion, that under all the evidence in the cause, Baruso, was to be  considered as an American merchant, whether he carried on trade generally, or confined himself to a trade from the United States to the Spanish provinces. The Circuit Court therefore erred in making the neutral character of Baruso to depend on the kind of trade in which he was engaged, instead of its depending on residence and trade, whether general or limited. \n7th. The instruction of the Circuit Court to which the 7th exception was taken, is obviously formed on a plain and total misconstruction of the former opinion, of this  Court. In no part of that opinion has the idea been indicated, that the interest of Baruso was a question solely for the consideration of the jury unaided by the judge. It is certainly a question on which it was proper for the judge to instruct the jury. The opinion, given by this Court, was, that \"if the jury should be of opinion that the Spanish papers, mentioned in the case, were material to the risk, and that it was not the regular usage of trade to take such papers on board, the non-disclose be of the fact, that they would be on board, would vitiate the policy; but if the jury should be of opinion that they were not material to the risk, or that it was the regular usage of the trade to take such papers on board, that they would not vitiate the policy.\" The instruction of the Circuit Court to the jury ought to have conformed to this direction. Instead of doing so, those instructions were to exclude entirely from the consideration of the jury the regular usage of trade. They refuse to allow any influence to a fact, to which this Court attached much importance. It is the unanimous opinion of this Court, that in giving this instruction the Circuit Court erred. \n8th. The Circuit  Court seem also to have varied from the directions formerly given by this Court, in the opinion to which the 8th exception is taken. This Court placed the innocence or guilt of having on board the Spanish papers, mentioned in the case, on the regular usage of trade; the Circuit Court has made their innocence to depend on their being necessary. \nThe counsel for the Defendants contends, that this is a distinction without a difference; but it is impossible to say what difference this distinction might make  with the jury. It is also the opinion of this Court that, in estimating the materiality of the papers to the risk, their effect, taken together, should be considered, not the effect of any one of them taken by itself. \n9th. The opinion which the Court refused to give, to which refusal the 9th exception is taken, depends on several distinct propositions which must be separately considered. \nThe letter, on which this insurance was made, contains a direct reference to a previous letter written by Church and Demmill, which was laid before the company, for a description of the ship. The first question to be considered is, did this reference make it the duty of the directors  to see that letter, and are they, without further proof, to be considered as having read it. The letter was addressed to, and it is to be presumed remained in the possession of, the agent who made this insurance. \nIt is a general rule, that a paper, which expressly refers to another paper within the power of the party, gives notice of the contents of that other paper.No reason is perceived for excepting this case from the rule. It is fairly to be presumed that, on reading the letter of Gilchrist. the board of directors required the agent of the Plaintiffs to produce the letter of Church and Demmill, unless they retained a recollection of it. In that letter they were informed that the vessel had sailed for Lima, with liberty to go to one other port in South America, and that \"she had permission to trade there.\" \nWhat was theamount of the information communlcated by this letter? \nThe permission to trade was unquestionably a permission granted by the authority of the country. It was a permission from the Spanish government. But whether this permission was evidence by a license, or by other means, was to be decided by other testimony; whether it conveyed notice to the underwriters  that such a license was on board the ship, depends, in the opinion of part of the Court, on the usage of the trade. Those, who entertain this opinion, think, that as this was submitted  to the jury, the Court committed no error in refusing to say that the Defendants were to be considered as knowing that the Herkimer sailed with a Spanish license on board. In estimating the increase of risk, it was certainly the duty of the jury to consider it as a voyage known  to the underwriters to be carried on for the purpose of trading to Lima, and that the Herkimer had such papers on board as were usual in such a trade, but whether the license be such a paper or not, the jury were to judge as of other facts. \nA majority of the Court, however, is of a different opinion. The underwriters, having full notice that the voyage was permitted, might fairly infer that it was licensed by the Spanish government; because in no other way would it be permitted. The whole question turned upon the construction of a written document which it belonged to the Court to make. \n11th & 13th.The 11th & 13th exceptions may properly be considered together, since they are taken to opinions given  on the same subject, and do not essentially vary from each other. The Circuit Court appears to have supposed that the general usage and course of trade could not be given in evidence, or, if given in evinence, ought to be disregarded, if the jury should be of opinion that such usage was founded on the laws or edicts of the government of the country where the usage prevailed. That is not the opinion of this Court. The usage may be proved by parol, and the effect of the usage remains the same, whether it originated in an edict or in instructions given by the government to its officers. Any conjectures, which the jury or the witnesses may make on this subject, can be of no importance, and ought to have no influence on the case. Neither can it be more necessary to give notice of a usage founded upon statute, than of a usage founded on instructions. The Circuit Court therefore erred in directing the jury that the underwriters were not bound to take notice of the usage of trade, if they should be of opinion that the trade was prohibited by the law of Spain. \n20th. The opinion of the Circuit Court to which the 20th exception was taken, appears to be entirely correct. \n  24th & 25th. The 24th & 25th exceptions are to the same opinion somewhat varied in form, and rendered more explicit, on the application of the Plaintiffs, than it had been in the instruction given on the motion of the Defendants. It is essentially the same with that to which the 7th exception was taken, and appears to have been founded on a total misapprehension of the former opinion given by this Court. In that opinion it was expressly stated, that such papers as, conformably to the regular usage of trade, were to be taken on board a vessel, would not vitiate the policy. \"The acts, done by the insured to avoid seizure and confiscation under the laws and regulations of the Spanish government,\" which are mentioned in the application made to the Court by the counsel for the Defendants, comprebend these papers. This question therefore was decided by this Court on the former argument of this cause, and the Court is now unanimously of opinion, that the Circuit Court erred, both in granting the prayer of the Defendants, and refusing that of the Plaintiffs. \n28th. In the opinion, to which the 28th exception was taken, this Court concurs with the Circuit Court. The direction, asked by  the counsel for the Plaintiffs, ought not to have been given. It is expressed in terms which, if assented to, might misguide the jury. Rightful capture according to the law of nations might be construed to mean capture for a cause which would justify condemnation according to the law of nations as construed in the United States. But capture will always be made on suspicion of what the belligerent construes to be cause of forfeiture, and capture authorizes abandonment. Such acts or omissions therefore, of the Plaintiffs, as would induce a capture and detention according to the common practice of the belligerents, are proper for the consideration of the jury in estimating the risk. \nThis Court is of opinion, that there is error in the proceedings of the Circuit Court in this cause, in refusing to give the opinion on which that Court was divided; and also in the opinions to which the 5th, 6th, 7th, 8th, 9th, 11th, 13th, 24th and 25th exceptions are taken. This Court doth therefore reverse and annul the judgment rendered by the Circuit Court, and doth remand the cause to the said Court that a venire facias  de novo may be awarded, and other proceedings had therein according  to law. \nConcur by:", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. \nThe sentence of the Circuit Court, in this case must be reversed for the defects in the libel, for the reasons stated in the case of the Hoppet. \nSentence reversed, and the cause remanded with leave to amend the libel. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, C. J. delivered the opinion of the Court as follows: \nThe Plaintiff in error, who was also Plaintiff in the Circuit Court, brought a writ of trespass quare clausum fregit, in order to try his title to certain lands, lying in the district of South Carolina, which were in possession of the Defendant. \nThe title of the Plaintiff, which constituted the sole question in the cause, appeared, on the trial, to be as follows: \n Joseph Salvadore, being seized of the lands in which the trespass is alleged to have been committed, departed this life some time in the year 1786, having first made his last will in writing, in which he named several executors, one of whom, Joseph Dacosta, made probate of the will, and took upon himself the burthen of executing the same; after which, in the year 1789, he left the state of South Carolina, and resided in Georgia. In the year 1790, letters of administration on the goods of Salvadore, unadministered by Dacosta his qualified executor, were granted to James Lamotte. \nIn August, 1786, a judgment was obtained by Daniel Bourdeaux against Salvadore. In January, 1791, a thirty day rule, which, by an act of the state of South Carolina, was, in certain cases, substituted in the place  of a scire facias, was issued to revive this judgment against Lamotte as administrator of Salvandore. this role being served and returned, the following indorsement was made on it: \"15th March, 1791, made absolute subject to a future argument.\" \n\"Fi. fa. 16th April, 1791.\" \nAn execution issued on this judgment, under which the land was soid, and was conveyed by the sheriff to Peter  Freneau by a deed dated the 6th day of June, 1791. On the 16th of July, 1796, a decree was rendered in the suit, Pierce Butler v. Daniel Bourdeaux and Peter Freneau, directing the said Peter to convey to such person as Pierce Butler should appoint. In pursuance of this decrce, Peter Freneau conveyed to Samuel Jackson, under whom the Plaintiff claims by regular conveyances. \nOn the motion of the Defendant, the Circuit Court instructed the jury that the letters of administration granted to James Lamotte were totally void; that therefore the judgment of Bourdeaux was not revived against the estate of Salvadore; that the sale and conveyance by the sheriff passed no title to the purchaser; and that the evidence was not sufficient to maintain the Plaintiff's action. The jury found a verdict for the Defendant, and judgment was rendered in his favor. The Plaintiff excepted to the opinion of the Court, and has sued out a writ of error to the judgment. \nThe sole defect alleged in the title of the Plaintiff being in that part of it which depends on the sale and conveyance of the sheriff to Peter Freneau, the validity of that sale is the principal if not the only question in the cause. In  support of it the Plaintiff contends, \n1st. That the letters of administration, being durante absentia of the executor, were properly granted to James Lamotte. \n2d. If the ordinary erred in granting these letters, still Lamotte was administrator de facto; and his acts bound the estate of Salvadore until those letters should be revoked. \n 3d. That the judgment on which the  execution issued was properly revived by a Court of competent jurisdiction, and its judgment can be questioned only in an appellate Court. \nThe negative of these propositions is maintained by the Defendant in error. \nThat the appointment of an executor, and his acceptance of the office, constitute a complete legal owner of the personal estate of the deceased is admitted; but it is contended that these acts suspend without annihilating the power of the ordinary. So long as the executor is capable of exercising the authority with which he has been invested by the testator, it can be conferred on no other person; but when he becomes incapable, from any cause whatever, as by insanity or death, the power of appointing some person, who shall secure the estate from ruin, necessarily reverts to that  tribunal which the law appoints for the general purpose of previding for the management of the property of dead persons. All cases of temporary administration, as during the minority of an executor, or during his absence previous to the probate of the will, are considered as exercises of the same power, though in a less degree, and as proving that the ordinary may, after the executor has qualified, if he shall absent himself so as, in the opinion of the ordinary, to disqualify him from performing his duty, appoint an administrator de bonis non with the will annexed, whose power shall continue until the return of the executor. \nThe Court does not concur in this reasoning. In the cases stated at bar, and in all cases where temporary administration has been granted, unless under a special act of the legislature, the executor was. for the time, absolutely incapable of performing his duty. There existed an actual legal disability to perform the functions of his office. Until probate of the will, and until letters testamentary are obtained, the executor cannot obtain any judgment; because it cannot appear that he is executor. \nThere is, therefore, an absolute necessity for appointing  some person who, until probate, shall take care of  the estate. But this is not the case with an executor who, after taking out letters testamentary, absents himself from the state.He is still capable of performing, and he is still bound to perform, all the duties of an executor. There exists no legal disability in the executor, and, consequently, there is no necessity for transferring to another those powers which the testator has conferred on a person selected by himself. \nThis power does not appear ever to have been exercised by the ordinary in England anterior to the statute of 38, George 3d; and in South Carolina, the ordinary possesses no power which was not possessed by the ordinary in England previous to that statute. The practice of the particular ordinary who acted in this case, would not be sufficient to constitute the law, had it even never received judicial reprobation; but the case of Ford v. Travis puts an end to any doubt on this point. \nThe second point is one of more doubt and greater intricacy. That the ordinary erred in granting letters of administration to Lamotte, is thought very apparent; but the effect of these letters is less obvious. By the  Plaintiff it is contended, that they constituted Lamotte an administrator de facto, rendered his acts valid, so far as third persons are interested, and exempted them from question where they can be examined only incidentally. By the Defendant it is contended, that they were granted by a person having no jurisdiction in the case, and are therefore and absolute nullity; That Lamotte was not, de facto, the administrator of Salvadore, and that his acts, as administrator, stand on no better or higher ground than the acts of any other person who should assume that character. \nThe well known distinction between an erroneous act or judgment by a tribunal having cognizance of the subject matter, and the act or judgment of a tribunal having no cognizance of the subject, is not denied; but it is contended that the ordinary had jurisdiction in this case. The ordinary, in South Carolina, is the Court in which wills are proved; in which letters testamentary, and letters of administration are granted. He judges whether the applicant be entitled to administration or not, and rejects or admits the claim, according  to his opinion of the law. Whether his judgment be correct or not, still  it is his judgment; and when exercised upon an application for administration, it is exercised on a subject cognizable in his Court. \nThat he grants letters of administration in cases not expressly authorized by statute, and in which a will exists in which an executor is named, proves that he has jurisdiction in such cases; and if he grants administration in one of them improperly, the judgment is erroneous and voidable, but not void. \nThis argument has been very strongly urged, and there is great force in it. The difficulty of distinguishing those cases of administration in which a Court having general testamentary jurisdiction, may be said to have acted on a subject not within its cognizance, is perceived and felt. But the difficulty of marking the precise line of distinction does not prove that no such line exists. \nTo give the ordinary jurisdiction, a case, in which, by law, letters of administration may issue, must be brought before him. In the common case of intestacy, it is clear that letters of administration must be granted to some person by the ordinary; and though they should be granted to one not entitled by law, still the act is binding until annulled by the competent  authority; because he had power to grant letters of administration in the case. But suppose administration to be granted on the estate of a person not really dead. The act, all will admit, is totally void. Yet the ordinary must always enquire and decide whether the person whose estate is to be committed to the care of others, be dead or in life. It is a branch of every cause in which letters of administration issue. Yet the decision of the ordinary that the person on whose estate he acts is dead, if the fact be otherwise, does not invest the person he may appoint, with the character or powers of an administrator. The case, in truth, was not one within his jurisdiction. It was not one in which he had a right to deliberate. It was not committed to him by the law. And although one of the points occurs in all cases  proper for his tribunal, yet that point cannot bring the subject within his jurisdiction. \n The case of letters of administration granted on the estate of a person in full life, is not the only one which may serve for illustration; suppose administration to be granted on the estate of a deceased person whose executor is present, in the constant  performance of his executorial duties. Is such an appointment void, or is it only voidable? \nIn the opinion of the Court it would be an absolute nullity. \nThe appointment of an executor vests the whole personal estate in the person so appointed. He holds as trustee for the purposes of the will, but he holds the legal title in all the chattels of the testator. He is, for the purpose of amdinistering them, as much the legal proprietor of those chattels as was the testatory himself while alive. This is incompatible with any power in the ordinary to transfer these chattels to any other person by the grant of administration on them. His grant can pass nothing: it conveys no right; and is a void act. \nIt the ordinary possesses no power to grant administration where an executor is present performing his duty, what difference can his absence make, provided that absence does not disqualify him from executing his trust? If all his powers as an executor remain, if he is still capable of appearing in Courts of justice as the representative of the deceased, if he is still the legal owner of the chattels of the deceased, and still capable of disposing of them, it would seem that he is potentially  present though personally absent. It is not easy to perceive any principle on which the ordinary can assert his power to take the estate out of the executor and vest it in an administrator. If he cannot do this, then the attempt to do it must be a void act. If the administrator durante absentia be only the agent of the executor, it still occurs that the executor can himself appoint, and is the proper person to appoint, his own agent. There is no necessity for the intrusion of the ordinary. \nLet the case be supposed of a suit by the executor while actually resident abroad. Would he be incapable of sustaining the action? Would his absence be a good  plea in bar? If it would not, how can the grant of letters of administration to another take the property in the thing sued for out of the executor and place it in that other? \nLetters testamentary, when once granted, are not revocable by the ordinary. He cannot annul them, or transfer the legal interest of the executor to any other person. His rights and his duties are beyond the reach of the ordinary. How, then, can this be effected by the grant of letters of administration? \nThe cases in which administration has been  granted notwithstanding the existence of a will, appear to be cases in which it is not apparent that there is any person possessing right in the chattels of the testator, or cases in which that person is legally disqualified from acting. \nWhere administration is granted pending a dispute respecting a will, it is not certain that there is an executor, or that there is a will. \nIf it be granted during the minority of an executor, it is because the executor is legally disqualified from acting, and indeed has not taken upon himself, and could not take upon himself the trust reposed in him. He may, when of age, reject all the rights and powers conferred by the will; and, consequently, the interest is not yet a vested interest. The rights and powers of the ordinary remain until those of the executor commence. \nSo in the case of an absent executor who has not yet made probat of the will and qualified. Those letters testamentary which are indispensable to his character as executor, and which, during their existence, leave the ordinary without any further power over the subject, are not yet granted. The executor has as yet no evidence that he is executor. He is not yet able to act as one.  He may never be able to act; for he may never take out letters testamentary. He may renounce the executorship. The ordinary, then, is not yet deprived of the power which he possesses to appoint a person to represent a dead man who has no representative. His  jurisdiction over the subject remains until he parts with it by issuing letters testamentary. \nThe difference between granting administration in cases where there is a qualified executor, capable, in law, of acting, and where he has not qualified, is such as, in reason, to justify the opinion that though, in the atter case, the ordinary may have jurisdiction, and his act, though erroneous, may be valid till repealed, yet, in the former case he can have no jurisdiction, and his act is in itslef an absolute nullity. \nIf, under any circumstances, the ordinary could grant administration during the absence of an executor who has made probat of the will and is legally competent to act, then he would have jurisdiction of the subject, and would judge of those circumstances; but if, in no possible state of things, he could grant such administration, it would be difficult to conceive how he can have jurisdiction. \nIf we refer  to authority, we can find no case and no dictum which admits the jurisdiction of the ordinary, where there is an existing executor capable of acting. In many cases it is stated, that an administration granted where there is such an executor is void. Toller, in his \"law of executors, page 120, says, If there be an executor, and administration be granted before probate, and refusal, it shall be void on the will being afterwards proved, although the will were suppressed, or its existence were unknown, or it were dubious who was executor, or he was concealed, or abroad at the time of granting the administration.\" It is also void \"if granted because the executor has become a bankrupt,\" or if granted, \"durante minoritate where the infant had attained his age of seventeen,\" until the statute of 38, G. 3. So \"if granted by a bishop where the intestate had bona notabilia, or by an archbishop of effects in another province.\" \nThe case of Ford v. Travis, decided in South Carolina, is express to this point, and renders a further reference to English books unnecessary. \nThe counsel for the plaintiff admits this to be the law  where an absolute administration is granted; but denies  the law to be applicable to the grant of a temporary administration. \n However correct this distinction may be in many cases, its application to that at bar is not admitted. \nNo temporary administration can be granted where there is an executor in being, capable of acting, and where the case will not justify the grant of a temporary administration, it would seem to be as completely out of the jurisdiction of the ordinary, as the grant of an absolute administration, where that is not within his power. \nThe case, put by Toller, of administration durante minoritate where the executor is of the age of 17, seems full in point. This is a temporary administration, and the minority of the executor is a fact for the consideration of the ordinary.Yet if, in such a case, he grants administration, the act is void, because, in fact, it is not a case in which he can grant it. \nThe reasoning of the Court in the case of Ford v. Travis, appears applicable to this case. They say the executor having proved the will, \"was in the nature of a trustee; he could neither abandon his trust, nor be deprived of his interest in the estate of the deceased by any act of the ordinary. The ordinary,  by proving the will and qualifying the executor, executed his power; and no law exists in this state, authorising him to resume it during the life time of the qualified executor, notwithstanding he may be absent from the state. Letters of administration granted under such circumstances are void ab initio. \nIf the ordinary cannot resume his power, so as to grant an absolute administration, he cannot resume it for a limited time. He cannot, by any act of his, divest the interest of the executor for an instant. The power may revert to him by operation of law, but cannot be assumed by any act of his own. \nThe grant of a temporary administration, as during the minority of an executor, is ad usum et commodum  executoris. But in this case, the administration is, for the time, absolute, and makes the administrator the entire representative of the deceased. It would not be unworthy of remark, if the case depended on it, that though the application of Lamotte was for administration during the absence of the executor, yet the grant itself is without limitation. \nBut, in its very nature, the appointment of an administrator, during the absence of an executor under no disability, is  essentially nothing more than the appointment of an agent for that executor. This, the ordinary has not the power to do. The executor alone can appoint his agents. \nIf the ordinary had no jurisdiction in the case, then the grant of administration was void ab initio, and all the acts of the grantee are void -- Toller, 128, 3, Term. Rep. 125. \nIt is contended by the Plaintiff, that could this administration even be considered as mull, where that forms the direct question before the Court, as it did in Ford v. Travis, yet that point cannot be examined where it is collateral and incidental. \nThe answer which has been given at bar to this argument is entirely satisfactory. The question has never been examined in a Court of law sitting as an appellate Court.The question has never been, whether the letters of administration shall be revoked or not, but whether they were originally void, so as not to warrant the particular act in support of which they were alleged. \nBut in this case, the letters of administration come as directly before the Court as in the case of Ford v. Travis. The conveyance from the sheriff to Freneau forms a part of the Plaintiffs title; and the validity of that conveyance  may depend on the question whether Lamotte was or was not the administrator of Salvadore. The question, therefore, most nesessarily be decided; and a majority of the Court is of opinion that administration was granted by a Court having no jurisdiction in the particular case, and is therefore absolutely void. \n 3d.It is contended on the part of the Plaintiff, that the judgment on which the execution issued was properly revived by a Court of competent jurisdiction, whose judgment is therefore conclusive until reversed. \nThe first objection made to this judgment of revivor is, that it was made without legal process. The thirty day rule is substituted for the siere facias only in cases where lapse of time prevents the Plaintiff from suing out execution. \nHowever this Court might construe the law on an appeal from a judgment of revivor in such case, that question has been decided by a Court of competent jurisdiction, and cannot be reviewed here. \nThe second objection is, that the letters of administration being a mere mullity, no party representing the estate of Salvadore was before the Court, and consequently the judgment could not bind that estate. \nThis question is one of  considerable difficulty. Had the judgment been revived against the executor himself, without the service of process, it would perhaps, while in force, have protected all proceedings under it. But this judgment is revived against Lamotte, who was not the representative of Salvadore. In the opinion of a majority of the Court, and execution on this judgment could not legally be levied on the property of Salvadore; and if so, the title was not vested in the sheriff by the service of the execution, and could not be conveyed by him to the purchaser. Upon this point, the case cited from 1st Wilson, 302, is a strong one against the opinion of the Court: but in that case, the execution, though irregular, was issued on a real judgment, and justified the sheriff in taking the effects of the deceased. On its face it was unexceptionable. It issued at an improper time; but in all other respects was correct. In this case, the execution issued on a judgment which was itself a nullity; and it authorized the sheriff to take the effects real and personal of Joseph Salvadore in the hands of James Lamotte to be administered. Now the property of Salvadore was not in the hands of Lamotte, but was  in the hands of his executor. \n The case in Wilson, too, is so briefly, I might say obscurely, reported, as to leave the principle, on which the Court decided, entirely uncertain. It does not appear that the object of the motion extended further than the restoration of the money. This was not an attempt to set aside the sale; and nothing appears in the case from which is to be conclusively inferred  what the opinion of the Court would have been on that question. \nIn the opinion of a majority of the Court, there is no error in the judgment of the Circuit Court, and it is affirmed with costs. \nHARPER observed that he understood the opinion of the Court to be founded considerably on the form of the fieir facias, inasmuch as it directed the sale of the lands of Salvadore in the hands of Lamotte, when, in fact, there were no lands in the hands of Lamotte. \nMARSHALL, Ch. J. \nThat was one ground of the opinion: but another, was, that the sale was founded on a void judgment. \nHARPER, as to the first point, suggested to the Court that the form of the fieri facias was against the lands as well as the goods. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. after stating the case, delivered the opinion of the Court as follows: \nIt is contended by the Plaintiff in error, \n1st. That this action is not sustainable, it being brought by one partner against another. \n 2d. That the separate note of Crossfield discharges the original debt, due from Crossfield and Van Ness. \nAs the first error assigned by the Plaintiff, is, if it be really an error, apparent on the bill of exceptions, as well as in the pleas, it is not necessary to examine the formality of the pleas respecting it. \nIt is alleged that, at law, one partner can sue another, on a claim growing out of the partnership, in no other case than for a general balance on a stated account. \nThe terms in which this proposition has been laid down are perhaps too general. \nIn the case at bar, the suit is instituted on a promissory note given, not to the company, but to Joseph Forrest, president of the company. Although the original cause of action does not merge in this note, yet a suit is clearly sustainable on the note itself. Such suit  can be brought only in the name of Joseph Forrest.It can no more be brought in the name of the company, than if it had been given to a person, not a member, for the benefit of the company. The legal title is in Joseph Forrest, who recovers the money, in his own name, as a trustee for the company. Upon the record, and technically speaking, he is the sole Plaintiff, and the Court can perceive no reasonable or legal objection to his sustaining an action on the note. The principle that a company cannot sue its members, does not apply to the case; nor does the principle, that a partner cannot sue a partner on a partnership transaction, apply to any case where a note in writing is given for money, not to a firm, but to an individual member. \nThe third plea alleges, that the Plaintiff in the Court below agreed to accept the separate promissory note of Crossfield in payment, and that, in execution of this agreement, Crossfield made the note in the declaration mentioned, which was accepted in payment of the several assumptions stated ir the declaration. \nNow the note, in the declaration mentioned, is a joint note, so that this plea in one place alleges it to be a ioint note, and in another  place to be a several note. \n It becomes unnecessary to inquire into the effect of this repugnancy, if it be one, because the plea, if to be understood as averring that the note, in the declaration mentioned, is a several and not a joint note, would amount to the general issue. The plea is no more, to the first count, than non assumpsit. For if the note was not the note of Van Ness, he had not made the assumpsit stated in the first count.This is ill upon a special demurrer, when assigned as cause of demurrer. \nThe Plaintiff in error supposes the case of Sheehy v. Mandeville & Jameson, reported in 6th Cranch, 253, to be a case in his favor, on this point. The Court thinks otherwise. In that case, as in this, a note was given by one partner for a debt contracted by the firm. In that case, as in this, one count in the declaration was special, on the note, stating it to be a joint note, and other counts were general, on the original transactions. The Defendant, whose name was not on the note, stated it to have been received in discharge of the open account. The Court decided, that the plea was good, not in bar of the special count on the note itself, but in bar of the general  counts, for goods sold and delivered. \nUpon the special count, the Court was in favor of the Plaintiff below, who was also Plaintiff in error, and the judgment of the Circuit Court, which had been against him, was reversed. The case of Sheehy v. Mandeville & Jameson, then, is not in favor of the Plaintiff in error, so far as his third plea applies to the first count in this declaration. \nThis Court is of opinion, that there is no error in the judgment of the Circuit Court either in sustaining the demurrers to the several pleas filed in that Court to the first count in the declaration, or in admitting the note, in the declaration mentioned, to be given in evidence to the jury, on the trial of the issue of fact. This opinion renders it unnecessary to examine the decision of the Circuit Court, as it respects the pleas to the other counts, since, should their decision respecting the pleas to those counts even be deemed erroneous, their judgment will stand. \nJudgment affirmed with costs and damages, at the rate of 6 per cent. per annum, and costs. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. delivered the opinion of the Court as follows: \nIn this case a bill was brought in the Circuit Court for the county of Alexandria, by William Herbert, jr. trustee for the creditors of John Potts an insolvent debtor, against the bank of Alexandria, to recover the proceeds of a tract of land, the property of Potts, which had been sold by consent, and the money deposited in bank. \nThis land had been conveyed by Potts to the bank to secure the payment of a sum of money borrowed by him, but the deed of mortgage had not been recorded until eight months after its date had elapsed. The law of Virginia, which governs this case, declares all deeds of mortgage  whatsoever, though good between the parties, to be void as to creditors and subsequent purchasers without notice, unless they be recorded within eight months from the date. \nThe question is whether this mortgage can be set up in favor of the bank against the trustee for the creditors. \nThe Circuit Court decreed in favor of the trustee, and from the decree there is an appeal to this Court. \nFor the Appellant it is contended that the trustee may be assimilated to the assignees of a bankrupt, and he has adduced some cases from the books showing that in England a deed declared to be void in law has been supported against the assignees in favor of the particular creditor who holds a lien upon it. \nThe resemblance between the trustee for the estate of an insolvent debtor in the district of Columbia and the assignees of a bankrupt is admitted; yet a clear distinction exists between the cases cited at bar and  that before the Court. In those cases the deed was declared void without any view to creditors. In this case the deed is declared void for the particular benefit of creditors. To set up this deed against the creditors would be to defeat the very object for which the law  was made. \nThe counsel for the Appellant is well apprised of this distinction, and though he claims for his clients the benefit of this deed against the trustee, he admits that it could not be sustained against the creditors suing in their own names. \nIn reason there can be no difference between this suit, which asserts the right of the creditors in the mode prescribed by law, and an assertion of that right in their own names. Nor does the law distinguish between them. The cases cited did not turn on any distinction between the rights of the assignee and the creditors, but on the preference which ought to be given to him who has trusted on the credit of the particular fund over those who had trusted the general fund. \nThe decree is affirmed with costs. \n \n\n ", " \nOpinion \n\n \n \n MARSHALL, Ch. J. after stating the facts of the case, delivered the opinion of the Court as follows: \n It is contended by the Plaintiff in error that, after the dissolution of the partnership, the acknowledgment of one partner is evidence to revive the original cause of action against both, and that the acknowledgment made in this case by Clarke is sufficient for that purpose \nIt has been frequently decided that an acknowledgment of a debt barred by the statute of limitations, takes the case out of that statute, and revives the original cause of action. So far as decisions have gone on this point, principles may be considered as settled, and the Court will not lightly unsettle them. But they have gone full as far as they ought to be carried,  and this Court is not inclined to extend them. The statute of limitations is entitled to the same respect with other statutes, and ought not to be explained away. \nIn this case there is no promise, conditional or unconditional; but a simple acknowledgment. This acknowledgment goes to the original justice of the account; but this is not enough. The statute of limitations was not enacted to protect persons from claims fictitious in their origin, but from ancient claims, whether well or ill founded, which may have been discharged, but the evidence of discharge may be lost. It os not then sufficient to take the case out of the act, that the claim should be proved or be acknowledged to have been originally just; the acknowledgment must go to the fact that it is still due. \nIn the case at bar, the acknowledgment of John Clarke is that he had not discharged the account presented to him, but he does not say that it was not discharged. His partner may have paid it without the knowledge of Clark, and, consequently, the declaration of Clarke that he had not himself paid it, and that he did not know whether his partner had paid it or not, is no proof that the debt remains due, and therefore  is not such an acknowledgment as will take the case out of the statute of limitations. \nThere is no error, and the judgment is affirmed with costs. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. after stating the case, delivered the opinion of the Court as follows: \nThe Plaintiff in error contends, \n1st. That the placing of the goods in the Lazaretto was not \"a landing in safety at Leghorn,\" and a termination of the voyage. \n2d. If the loss happened during the continuance of the risk, the Plaintiff is not prevented from recovering, by the warranty in the policy against particular average. \nIn support of his first point he contends that \"Leghorn,\" in the policy, means the city and not the port of Leghorn. \n 2d. That the Lazaretto being substituted for the ship or the greater safety of the goods, their situation, as if respects all parties, while performing quarantine in the Lazaretto, is precisely the same as if performing quarantine in the ship. This argument is supposed to be much strengthened by the facts, that freight cannot be demanded until quarantine is performed, and that the lien for the freight continues after the landing of the goods. \n3d. That a landing in safety must be such a landing as places the goods at the disposal of the owner  or consignee. \nHowever true it may be in general that when we speak of Leghorn, we speak of the city which bears that name, it does not follow that the same meaning is attached to the word when used in a policy. The insurance is \"at and from Baltimore to Leghorn.\" Now if, as is admitted, Baltimore means the port of Baltimore, it would seem not unreasonable to suppsoe that, in the same instrument, Leghorn means the port of Leghorn -- the place which is the ultimate destination of the vessel on board which the goods are laden. The voyage is understood to be terminated when the vessel arrives at her port of destination, and has been moored there in safety for twenty-four hours. \nBut it will be conceded that the termination of the voyage as to the ship, does not necessarily terminate the risk on the goods. This risk may continue when the voyage as to the ship is ended. Its duration depends on the intention of the parties, and this intention must be found in their contract. \nThis brings us to consider the argument that the goods while performing quarantine in the Lazaretto remain at the risk of the insurer in like manner as if performing quarantine in the ship. \nThe words of the policy  being \"beginning the adventure on the said lawful goods and merchandizes from and immediately following the lading thereof on board of said vessel at Baltimore aforesaid, and so shall continue and indure until the said goods and merchandizes shall be safely landed at Leghorn aforesaid.\" The risk continues until the goods be safely landed, although the  voyage as to the ship, might be terminated previous to their landing. \nIn ordinary cases, where the government does not interfere between the parties, this risk would continue until the goods should be landed in safety at the usual place, and at the disposal of the consignee. If it were usual to receive goods at the Lazaretto or at any other place on the shore of the port, it would be the duty of the owner or consignee to receive them there, and a landing at such place, it is admitted, would be a landing at Leghorn. \nIf on the other hand the goods while performing quarantine remained on board the ship, and could not be landed, it is not to be doubted that they would remain at the risk of the insurer. How then, it is asked, can the substitution of the Lazaretto for the ship alter this risk? A substitution made, not by the  act of the parties, but of the government of the county? A substitution which does not alter the rights of the parties since it leaves the lien of the master for his frieght unimpaired, and gives no power over the goods to the owner or consignee? A substitution beneficial to the insurer since it diminishes the risk on the goods? \nWhatever might be the effect of this reasoning if the establishment of the Lazaretto, and the laws of quarantine had been of so recent a date, as not to have been in the contemplation of the parties to the contract, as to which the court gives no opinion, this cause may well be decided upon gives no opinion, this case, a usage of ancient date and of general notoriety. It existed and was known to exist when this contract was formed. When the parties stipulated that the adventure should continue till the goods were landed in safety at Leghorn, they knew that the place of landing was the Lazaretto, and that the landing would be made under the direction and control of the local authority. This then must be considered as the landing contemplated in the policy. It is the landing which terminates the risk. Had the parties intended to continue the risk during  the continuance of the goods in the Lazaretto, they would have inserted, in the policy, words manifesting that intention. Instead of terminating the adventure on the landing, a  fact which they knew must take place at the Lazaretto thirty days before the goods could be delivered to the owner or consignee, they would have continued it, till the goods should be landed in safety and should perform their quarantine. \nThe Court is of opinion that under this policy the goods in the Lazaretto were not at the risk of the underwriters and consequently that there is no error in the judgment of the Circuit Court. \nIt is affirmed with costs. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. delivered the opinion of the Court, as follows: \nThe material facts in this case are these: \nThe Emulous owned by John Delano and others citizens of the United States,  was chartered to a company carrying on trade in Great Britain, one of whom was an American citizen, for the purpose of carrying a cargo from Savannah to Plymouth. After the cargo was put on board, the vessel was stopped in port by the embargo of the 4th of April, 1812. On the 25th of the same month, it was agreed between the master of the ship and the agent of the shippers, that she should proceed with her cargo to New Bedford, where her owners resided, and remain there without prejudice to the charter party. In pursuance of this agreement, the Emulous proceeded to New Bedford, where she continued until after the declaration of war. In October or November, the ship was unloaded and the cargo; except the pine timber, was landed. The pine timber was floated up a salt water creek, where, at low tide, the ends of the timber rested on the mud, where it was secured from floating out with the tide, by impediments fastened in the entrance of the creek. On the 7th of November, 1812, the cargo was sold by the agent of the owners, who is an American citizen, to the Claimant, who is also an American citizen.On the 19th of April, a libel was filed by the attorney for the United States, in  the district Court of Massachusetts, against the said cargo, as well on behalf of the United States of America as for and in behalf of John Delano and of all other persons concerned. It does not appear  that this seizure was made under any instructions from the president of the United States; nor is there any evidence of its having his sanction, unless the libels being filed and prosecuted by the law officer who represents the government, must imply that sanction. \nOn the contrary, it is admitted that the seizure was made by an individual, and the libel filed at his instance, by the district attorney who acted from his own impressions of what appertained to his duty. The property was claimed by Armitz Brown under the purchase made in the preceding November. \nThe district Court dismissed the libel. The Circuit Court reversed this sentence, and condemned the pine timber as enemy property forfeited to the United States. From the sentence of the Circuit Court, the Claimant appealed to this Court. \nThe material question made at bar is this. Can the pine timber, even admitting the property not to be changed by the sale in November, be condemned as prize of war? \nThe cargo  of the Emulous having been legally acquired and put on board the vessel, having been detained by an embargo not intended to act on foreign property, the vessel having sailed before the war, from Savannah, under a stipulation to re-land the cargo in some port of the United States, the re-landing having been made with respect to the residue of the cargo, and the pine timber having been floated into shallow water, where it was secured and in the custody of the owner of the ship, an  American citizen, the Court cannot perceive any solid distinction, so far as respects confiscation, between this property and other British property found on land at the commencement of hostilities. It will therefore be considered as a question relating to such property generally, and to be governed by the same rule. \nRespecting the power of government no doubt is entertained. That war gives to the sovereign full right to take the persons and confiscate the property of the enemy wherever found, is conceded. The mitigations  of this rigid rule, which the humane and wise policy of modern times has introduced into practice, will more or less affect the exercise of this right, but cannot  impair the right itself. That remains undiminished, and when the sovereign authority shall chuse to bring it into operation, the judicial department must give effect to its will. But until that will shall be expressed, no power of condemnation can exist in the Court. \nThe questions to be decided by the Court are: \n1st. May enemy's property, found on land at the commencement of hostilities, be seized and condemned as a necessary consequence of the declaration of war? \n2d. Is there any legislative act which authorizes such seizure and condemnation? \nSince, in this country, from the structure of our government, proceedings to condemn the property of an enemy found within our territory at the declaration of war, can be sustained only upon the principle that they are instituted in execution of some existing law, we are led to ask, \nIs the declaration of war such a law? Does that declaration, by its own operation, so vest the property of the enemy in the government, as to support proceedings for its seizure and confiscation, or does it vest only a right, the assertion of which depends on the will of the sovereign power? \nThe universal practice of forbearing to seize and confiscate debts  and credits, the principle universally received, that the right to them revives on the restoration of peace, would seem to prove that war is not an absolute confiscation of this property, but simply confers the right of confiscation. \nBetween debts contracted under the faith of laws, and property acquired in the course of trade, on the faith of the same laws, reason draws no distinction; and, although, in practice, vessels with their cargoes, found in port at the declaration of war, may have been seized, it is not believed that modern usage would sanction the seizure of the goods of an enemy on land, which  were acquired in peace in the course of trade. Such a proceeding is rare, and would be deemed a harsh exercise of the rights of war.But although the practice in this respect may not be uniform, that circumstance does not essentially affect the question. The enquiry is, whether such property vests in the sovereign by the mere declaration of war, or remains subject to a right of confiscation, the exercise of which depends on the national will: and the rule which applies to one case, so far as respects the operation of a declaration of war on the thing itself, must apply  to all others over which war gives an equal right. The right of the sovereign to confiscate debts being precisely the same with the right to confiscate other property found in the country, the operation of a declaration of war on debts and on other property found within the country must be the same. What then is this operation? \nEven Bynkershoek, who maintains the broad principle, that in war every thing done against an enemy is lawful; that he may be destroyed, though unarmed and defenceless; that fraud, or even poison, may be employed against him; that a most unlimited right is acquired to his person and property; admits that war does not transfer to the sovereign a debt due to his enemy; and, therefore, if payment of such debt be not exacted, peace revives the former right of the creditor; \"because,\" he says, \"the occupation which is had by war consists more in fact than in law.\" He adds to his observations on this subject, \"let it not, however, be supposed that it is only true of actions, that they are not condemned ipso jure, for other things also belonging to the enemy may be concealed and escape condemnation.\" \nVattel says, that \"the sovereign can neither detain the persons  nor the property of those subjects of the enemy who are within his dominions at the time of the declaration.\" \nIt is true that this rule is, in terms, applied by Vattel to the property of those only who are personally within the territory at the commencement of hostilities; but it applies equally to things in action and to things in possession; and if war did, of itself, without any further exercise of the sovereign will, vest the property of the  enemy in the sovereign, his presence could not exempt it from this operation of war. Nor can a reason be perceived for maintaining that the public faith is more entirely pledged for the security of property trusted in the territory of the nation in time of peace, if it be accompanied by its owner, than if it be confided to the care of others. \nChitty, after stating the general right of seizure, says, But, in strict justice, that right can take effect only on those possessions of a belligerent which have come to the hands of his adversary after the declaration of hostilities.\" \nThe modern rule then would seem to be, that tangible property belonging to an enemy and found in the country at the commencement of war, ought not to be  immediately confiscated; and in almost every commercial treaty an article is inserted stipulating for the right to withdraw such property. \nThis rule appears to be totally incompatible with the idea, that war does of itself vest the property in the belligerent government. It may be considered as the opinion of all who have written on the jus belli, that war gives the right to confiscate, but does not itself confiscate the property of the enemy; and their rules go to the exercise of this right. \nThe constitution of the United States was framed at a time when this rule, introduced by commerce in favor of moderation and humanity, was received throughout the civilized world. In expounding that constitution, a construction ought not lightly to be admitted which would give to a declaration of war an effect in this country it does not possess elsewhere, and which would fetter that exercise of entire discretion respecting enemy property, which may enable the government to apply to the enemy the rule that he applies to us. \n If we look to the constitution itself, we find this general reasoning much strengthened by the words of that instrument. \nThat the declaration of war has only  the effect of  placing the two nations in a state of hostility, of producing a state of war, of giving those rights which war confers; but not of operating, by its own force, any of those results, such as a transfer of property, which are usually produced by ulterior measures of government, is fairly deducible from the enumeration of powers which accompanies that of declaring war. \"Congress shall have power\" -- \"to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water.\" \nIt would be restraining this clause within narrower limits than the words themselves import, to say that the power to make rules concerning captures on land and water, is to be confined to captures which are exterritorial. If it extends to rules respecting enemy property found within the territory, then we perceive an express grant to congress of the power in question as an independent substantive power, not included in that of declaring war. \nThe acts of congress furnish many instances of an opinion that the declaration of war does not, of itself, authorize proceedings against the persons or property of the enemy found, at the time, within the territory. \n War gives an equal right over persons and property: and if its declaration is not considered as prescribing a law respecting the person of an enemy found in our country, neither does it prescribe a law for his property. The act concerning alien enemies, which confers on the president very great discretionary powers respecting their persons, affords a strong implication that he did not possess those powers by virtue of the declaration of war. \nThe \"act for the safe keeping and accommodation of prisoners of war,\" is of the same character. \nThe act prohibiting trade with the enemy, contains this clause: \n\"And be it further enacted, That the president of the United States be, and he is hereby authorized to give, at any time within six months after the passage  of this act, passports for the safe transportation of any ship or other property belonging to British subjects, and which is now within the limits of the United States.\" \nThe phraseology of this law shows that the property of a British subject was not considered by the legislature as being vested in the United States by the declaration of war; and the authority which the act confers on the president, is manifestly considered  as one which he did not previously possess. \nThe proposition that a declaration of war does not, in itself, enact a confiscation of the property of the enemy within the territory of the belligerent, is believed to be entirely free from doubt. Is there in the act of congress, by which war is declared against Great Britain, any expression which would indicate such an intention? \nThat act, after placing the two nations in a state of war, authorizes the president of the United States to use the whole land and naval force of the United States to carry the war into effect, and \"to issue to private armed vessels of the United States, commissions or letters of marque and general reprisal against the vessels, goods and effects of the government of the united kingdom of Great Britain and Ireland, and the subjects thereof.\" \nThat reprisals may be made on cnemy property found within the United States at the declaration of war, if such be the will of the nation, has been admitted; but it is not admitted that, in the declaration of war, the nation has expressed its will to that effect. \nIt cannot be necessary to employ argument in showing that when the attorney for the United States institutes  proceedings at law for the confiscation of enemy property found on land, or floating in one of our creeks, in the care and custody of one of our citizens, he is not acting under the authority of letters of marque and reprisal, still less under the authority of such letters is sued to a private armed vessel. \n The \"act concerning letters of marque, prizes and prize goods,\" certainly contains nothing to authorize this seizure. \nThere being no other act of congress which bears upon the subject, it is considered as proved that the legislature has not confiscated enemy property which was within the United States at the declaration of war, and that this sentence of condemnation cannot be sustained. \nOne view, however, has been taken of this subject which deserves to be further considered. \nIt is urged that, in executing the laws of war, the executive may seize and the Courts condemn all property which, according to the modern law of nations, is subject to confiscation, although it might require an act of the legislature to justify the condemnation of that property which, according to modern usage, ought not to be confiscated. \nThis agrument must assume for its basis the position  that modern usage constitutes a rule which acts directly upon the thing itself by its own force, and not through the sovereign power. This position is not allowed. This usage is a guide which the sovereign follows or abandons at his will. The rule, like other precepts of morality, of humanity, and even of wisdom, is addressed to the judgment of the sovereign; and although it cannot be disregarded by him without obloquy, yet it may be disregarded. \nThe rule is, in its nature, flexible. It is subject to infinite modification. It is not an immutable rule of law, but depends on political considerations which may continually vary. \nCommercial nations, in the situation of the United States, have always a considerable quantity of property in the possession of their neighbors. When war breaks out, the question, what shall be done with enemy property in our country, is a question rather of policy than of law. The rule which we apply to the property of our enemy, will be applied by him to the property of  our citizens. Like all other questions of policy, it is proper for the consideration of a department which can modify it at will; not for the consideration of a department  which can pursue only the law as it is written. It is proper for the consideration of the legislature, not of the executive or judiciary. \n It appears to the Court, that the power of confiscating enemy property is in the legislature, and that the legislature has not yet declared its will to confiscate property which was within our territory at the declaration of war. The Court is therefore of opinion that there is error in the sentence od condemnation pronouneed in the the Circuit Court in this case, and both direct that the same be reversed and annulled, and that the sentence of the District Court be affirmed. \nDissent by:", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. delivered the opinion of the Court as follows: \nThe principles settled in the case of the Rapid decides this cause so far as respects the character ef the Alexander and her cargo. In open sea, unpressed by any peculiar danger, with a full knowledge of the war, she changes her course and seeks an enemy's port. If such an act could be justified, it were vain to prohibit trade with the enemy. The subsequent traffic in the enemy country, by which her return cargo was obtained, connects itself with this voluntary sailing for an enemy port; nor does the circumstance that she was carried by force into Ireland, when her actual destination was England, break the chain. The conduct of the Alexander is much less to be defended than that of the Rapid. \nBut it is alleged by the Claimants, that in this case there was no actual capture. This allegation cannot, in the opinion of the Court, be sustained. That the America took possession of the Alexander with the intention of making prize of that part of her cargo which might be deemed British, is not controverted. How  was this intention to be executed, how was this part of the cargo to be libelled, if it was not captured? And if such part of the cargo as might eventually be British, was captured, and the whole remained together in the vessel, how can the capture be considered as partial? \nBut it has been truly observed, that it is not non-capture, but abandonment, for which the Complainants in fact contend. \n But while the whole cargo remains together, claimed by the captor, if it be enemy property, how can any part of it be said to be abandoned? If it was entirely abandoned, for what purpose was one of the crew of the America put on board the Alexander? \nThe inability of the prize master to secure the captured vessel against a rescue, should one be attempted, his inability to bring in the vessel without the aid of the hands belonging to her, is, in reason, no proof of abandonment. If the circumstances of the captured vessel be such as to do away all apprehension of rescue, and inspire confidence that the crew will bring her into port, no reason is perceived why the property of the captor, may not be retained as well by a prize master alone, as by a considerable detachment from his  crew. The cases cited to this point by the counsel for the captors are entirely satisfactory. \nWith as little reason do the Claimants seek to shclter themselves under the instructions of the 23th of August, 1812. Those instructions apply, in express terms, to such American vessels as have sailed from Great Britain for the United States, \"in consequence of the alleged repeal of the British orders in council.\" A vessel which sailed while those orders were not alleged to be repealed, cannot bring herself within these instructions. \nBut it is alleged that these instructions are still issued, and must mean something. Rather than aseribe their continuance to inattention, the counsel for the Claimants would give them a construction in direct hostility with their letter and spirit. Were this reasoning even admitted to be correct, which it is not, it would become the duty of the Court to be astute in finding some object to which they might possibly apply. It is possible though certainly it is barely possible, that some vessels which sailed from England while the orders of council were supposed to be repealed, may not yet have reached the United States. It would be more reasonable to reserve  these instructions for such possible case, than to apply them to cases which can neither be brought within their words nor their meaning. \nThe sentence is affirmed with costs \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. delivered the opinion of the Court as follows: \nThis is an appeal from a decree of the Circuit Court for the district of Columbia, whereby a bill brought by the Plaintiffs for the specific performance of a contract, was dismissed. The material facts are these: \ndaniel Caroll, the Defendant, was, previous to the establishment of the city of Washington, proprietor of a large tract of land, part of which lies within its  present limits. This part was conveyed to trustees, one moiety for the use of the public, and the other moiety for the use of the said Carroll. \nAfter the place for the seat of government had been selected, and the boundaries of the city marked out, the legislature of Maryland authorized the appointment of commissioners to superintend the affairs thereof, and among other powers authorized them to divide the lots in the said city between the public and the original proprietors, and declared that such divisions made in a specified form and certified by them should be vest in the original proprietors the legal estate whereof they were formerly seized in the lots and squares assigned to them respectively. The commissioners were also authorized to sell the lots retained for the public use, and on receiving the purchase money, to convey to the purchasers. On the 23d of September, 1793, James Greenleaf purchased from the commissioners three thousand lots lying in that part of the city which had been conveyed by Carrol; and on the 24th of December, 1793, James Greenleaf and Robert Morris made from the commissioners an additional purchase of three thousand lots. Neither the purchase money  being then paid, nor a division made, the legal title remained in the trustees, and was a security for the purchase money. These contracts, if executed by conveyances, would  have vested in Greenleaf and Morris all the public lots which were intermingled with those hereinafter stated to have been purchased by Greenleaf from Carroll. \nOn the 26th day of September, in the year 1793, the said Daniel Carroll and James Greenleaf entered into articles, whereby Daniel Carroll covenanted in consideration of 5l. and of the covenants thereinafter mentioned, to convey to the said Greenleaf twenty lots of ground in the city of Washington, fronting on South Capitol street, in all convenient speed after the lots in that part of the said street should be divided between the said Carroll and the commissioners of the public buildings. The said conveyances to be on condition to be void in case the said Greenleaf should not, within three years from this date, erect a good brick house on each lot at least 25 feet front, 40 feet deep and two stories high. And the said Carroll further covenanted, that after the division, to be made of the land lying between the fork of the canal, between him  and the commissioners should be completed, he would sell to the said Greenleaf every other lot belonging, after such division, to the said Carroll, for the consideration afterwards mentioned in the said articles; and would lay out the whole amount of the purchase money, when received, in building houses as near as well might be to those erected and erecting by the said Greenleaf; and in case of selling any of his property, he would cause buildings, to the amount of the purchase money, to be erected thereon. The said Greenleaf agreed to erect, on each of the first mentioned twenty lots, one good brick house, at least 25 feet front, 40 feet deep, and two stories high, within three years from the date, and to re-convey any of the said 20 lots not built upon within the time, and pay 100l. for each of the said lots not so built upon; to pay sol. for each of the other lots to be purchased; to lay out on the last mentioned lots the sum of 3,000l. within two years, and the further sum of 3,000l. within four years; to pay one half of the amount of the purchase money with interest within four years. Carroll to remainder with interest, within two years, and the make deeds for the last mentioned  lots purchased as the money should be paid. The parties bind themselves each to the other in the penal sum of 20,000l. \n On the 8th June, 1795, it was agreed between the same parties to change the contract so far as that the said Greenleaf should build twenty brick houses of such description as he should judge proper, provided they are two stories high, and cover an equal extent of ground with the houses before mentioned, and of which the one moiety or ten houses shall be built on the south part of square numbered 651, and the residue on the east side of said square. \nIn July, 1794, a partial division was made between Carroll and Greenleaf, by which the square No. 651 was allotted to the latter. It was on this square that the twenty houses  mentioned in the contracts between the parties were intended to be built. \nOn the 13th of May, 1796, James Greenleaf, in pursuance of articles made July 10th, 1795, assigned his contract with Carroll to Morris and Nicholson, to whom he also transferred his interest in a large portion of the lots purchased from the commissioners. In the summer of 1796 Morris and Nicholson came to the city of Washington, when a division of  the lots was completed, which was reported to the commissioners on the 14th of September, by whom it was then ratified. Twenty brick houses were erected on the square 651, and covered in by the 26th September, 1796, the time specified in the contract. Some of them were completed. In May, 1797, Daniel Carroll entered into the square 651, and took possession of the buildings thereon, which he has held ever since, and has permitted them to be greatly injured. \nMorris and Nicholson conveyed their property in the city, to the Plaintiffs, in trust for certain creditors, by deed bearing date the 26th day of June, 1797, and became bankrupts. This bill was filed in December, 1804, claiming a specific performance of the whole contract of September, 1793, or, if the Court should be of opinion that the contract ought to be divided, the Plaintiffs pray for a specific performance of that part of it which respects the twenty lots, on which their agreement. They been erected in conformity with their agreement. They contend that the non-execution on their part of so much of the contract of September, 1793, as remains to be  performed is not to be ascribed to any fault of theirs, but  to the failure of Carroll to convey the lots he had stipulated to convey. \nOn the part of the Defendant it is contended that he could not convey until a division should be made and sanctioned by the commissioners, and that it was as much the duty of Greenleaf as of himself to attend to the division. That his great motive for entering into the contract was, by improving that part of the city in which his property lay to increase its value and to give the town that direction. That this, from the failure of the other contracting party to perform his covenants, has become impossible: that the consideration on which he was to convey, cannot now be received; and that it would, therefore, be iniquitous to compel a conveyance. \nThis Court is clearly of opinion that by the contract of September, 1793, Daniel Carroll was bound to convey to Grenleaf property therein mentioned without waiting for the execution of the contract on the part of Greenleaf. Being so bound, he ought to have taken those steps which were within his power, and which were necessary to be taken in order to enable him to perform his engagements. He ought, therefore, to have obtained from the commissioners that act which  would re-vest in himself the property to be conveyed. \nIt is true that Greenleaf, having purchased the public lots, must have concurred in the division, and, had he declind coming to one, his default would have excused Carroll. But it is not pretended that he ever declined a division. It is true that his omitting to press one is a proof that, for some time at least, he was not anxious on the subject; and this diminishes the blame which might otherwise attach to Carroll for his inattention to so material a circumstance. \nBut in July, 1794, a division between Carroll and Greenleaf of several squares was made, and the square on which the twenty houses were to be erected was, among others, assigned to Greenleaf. There is no excuse for the delay of Carroll in enabling himself to convey the lots assigned to Greenleaf in this division. He  alleges that, as the calculations of their contents were inaccurate, the confirmation of this division by the commissioners was necessarily deferred, until this matter should be adjusted. But the Court cannot admit the sufficiency of this apology. Any inaccuracy in the calculations would be adjusted by allowances in the divisions afterwards  to be made of the remaining lots. \nIt appears that in February, 1796, Robert Morris offered the first payment stipulated in the contract of September, 1793, with the interest which had accrued thereon, and demanded deeds for the twenty lots. In this letter Morris consents that these deeds should be executed as an escrow, to be delivered on their fulling that part of the contract by building twenty houses on the said lots, and proposes that separate deeds should be executed, that so many might be delivered as Morris and Nicholson should entitle themselves to. He also demanded a conveyance of so many lots, as the money offered would pay for, and required that Carroll should perofrm that part of his contract which required him to lay out half the money received in improving adjacent lots. This is the substance of Morris's letter, dated 22d February, 1796, directed to Mr. Cranch, the agent of Morris, which appears by Carroll's letter, written on the 29th of the same month, to have been laid before him, although Mr. Cranch does not recollect the fact. The conveyances, however, were not made nor the money paid. \n Although the covenant to convey is not a condition precedent  on the performance of which the covenant to build depends, yet both from the words of the contract and the nature of the transaction, it was apparently the expectation of the parties that the conveyance would precede the building. Nor was the conveyance an immaterial circumstance. In any state of things it was an important part of the contract, and in the events which have actually occurred, it was so important as to render it probable that the failure of Carroll in this respect, has prevented the completion of the twenty buildings. Under this view of the case, had the bill demanding a specific performance, been brought immediately after the entry of Mr. Carroll in May, 1797, the claim of the Plaintiffs would certainly have been entitled  to serious attention, and might perhaps have prevailed. It was not been too late, by executing the contract, to have effect its great object. But the state of things is now entirely altered. The effort to give the city that direction would now, according to every reasonable calculation, be unavailing.Time, therefore, in this contract was essential; and although, in consequence of the failure of Carroll to convey, the Court might have  relieved against a forfeiture so long as an execution of the contract could place the parties essentially in the situation in which they would have stood had exact punctuality been observed; yet equity cannot relieve where it is impossible to palce the parties in the same situation, and when real fault is imputable to the person praying the aid of the Court. So far then as Morris and Nicholson have failed to execute the contract of September, 1793, the Plaintiffs are too late to be entitled to the aid of this Court. \nBut it is contended that Morris and Nicholson have fully complied with that part of the contract which respected building twenty houses, and are therefore entitled to a conveyance of the twenty lots. The description of the houses to be built is so indefinite as to be satisfied, it is said, by running up the brick walls, and putting on the roofs. \nThe Court is not of that opinion. On fair construction the contract requires that the houses should be fit for the habitation of families. No particular degree or kind of finishing is prescribed; but a building cannot be fairly denominated \" a good brick house\" until it be rendered a comfortable dwelling, fit for the reception  of a tenant. This was certainly contemplated by the parties, and a different construction would tolerate an unfair and fraudulent execution of the agreement. \nBut, although the twenty houses were not all completed, some of them were, and on examining the contract it appears that Greenleaf and his assigns were entitled to a lot for each house they should build. The contract, with respect to the twenty lots, was not entire. It was not necessary to perform the whole contract, or to forfeit the whole property -- that which was, as well as that which was not improved. This will be clearly perceived on a reference to the contract itself. \n Carroll covenants to convey twenty lots with condition to be void, if Greenleaf shall not within three years erect a good brick house of stipulated dimensions on each lot. Greenleaf agrees to erect the houses, and covenants to re-convey any lot not built upon within the time, and to pay 100l. for each lot not so built upon. This stipulation obviously severs the contract with respect to each lot. Only those not built upon were to be re-conveyed, and for each lot re-conveyed there was a forfeiture of 100l. \nSo far as the contract has been  executed by Greenleaf or his assigns, he and they ought to be placed in the same situation as if it had been executed by Carroll also. Had it been executed by him, the title of Morris and Nicholson to as many lots as they had erected houses of the description agreed upon, would have been absolute. It could not have been defeated by their failure to perform the residue of the contract. Carroll ought not to enable himself to defeat it by having broken his contract. \nThe Plaintiffs then ought to have a conveyance of so many lots as shall be equal to the number of houses they have completed under the agreement of September, 1793, and as Carroll's entry in May, 1797, was so far tortious he ought to be accountable for the injury sustained by the property, and for rents and profits from that time. But as the same contract binds Greenleaf and his assigns to pay 100l. for each lot not improved, and as the Court does not consider this as a mere penalty, but as damages assessed by the parties themselves, the Plaintiffs will not be entitled to a conveyance of the lots which were improved without paying 100l. with interest from the 6th of May, 1797, the time when the each unimproved lot. It  is at their election to obtain a specific performance on these terms, or to abandon their claim. \nIt is the opinion of this Court that the decree of the Circuit Court ought to be reversed and annulled, and the cause remanded with directions to take an account of rents and profits which have been or might have been received by the Defendant on the houses which have  been completed by Morris and Nicholson on the twenty lots in the proceedings mentioned; and also to take an account of the money with interest thereon, which was demandable by the Defendant on each unimproved lot; and that an issue, to be tried either in Alexanria or Washington, be directed to ascertain what damages have been sustained by the houses built by Morris and Nicholson previous to the 6th of May, 1797, whether finished or unfinished, on those lots which shall be decreed to be conveyed to the Plaintiffs, since the entry then made by the Defendant; and that on receiving the balance, if any, which may remain due to the said Carroll after deducting the rents and profits before mentioned, and the damages aforesaid, he be directed to convey to the Plaintiffs a number of standard lots which shall be equal to  the number of houses completed by the said Morris and Nicholson in pursuance of the contract of September, 1793; the said lots to be those on which the houses stand, which may have been completed, and if there be more than one house standing on the same standard lot, so that it may be necessary to convey lots  not fully improved in order to make the quantity of ground equal to the superficial contents of the standard lots to be conveyed, then such standard lots are to be laid off by direction of the Circuit Court, in such manner as may be equitable and convenient; provided, that the ground improved or built upon by Morris and Nicholson under the said contract, and re-entered upon by the Defendant in May, 1797, be appropriated in the first instance as far as the same shall suffice or be necessary to make up the quantity of ground to be conveyed to the Plaintiffs, but so appropriated that no lot shall be divided, unless it be necessary to convey part of a lot in order to make up the full quantity of six standard lots. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. after stating the facts of the case, delivered the opinion of the Court as follows: \nThe rights of James Thompson depend entirely on his national commercial character; which is decided by the opinion given in the case of the Venus, (ante p. 253.) \nThe sentence of condemnation promounced in the Circuit Court, as to James Thompson's claim, is affirmed. \nThe original evidence is very strong to prove that the shipment made  by Dalgleish and Frame was entirely a consignment. The whole letter of the 13th of July confirms this idea. It is scarcely credible that the property of Dalgleish and Frame would have been placed on the list of consignments without a note upon it, had it been shipped on joint account. The hurry of business will not excuse or account for this omission. The propesition of Dalgleish and Frame is stated to have been made on the 27th of June, and to have been accepted on the 1st of July. The letters of Thompson to Steele are written on the 13th and 17th of July, when this shipment is treated as being altogether a consignment. The hurry could not have been such as to account for a mis-statement of the fact. There is, too, something mysterious in the manner in which the papers, offered as additional proof, reached Mr. Steele. That they should not have been accompanied by a letter, nor bear any marks of coming from abroad, is singular. \nFurther proof is not admitted, and the sentence is affirmed. \nWASHINGTON, J. as to the opinion of the Court on the question of lien, referred to the opinion delivered in the case of the Frances, (Irvin s claim, post. p. ) which he said was precisely  within the principle of the present case. \n \n\n ", " \nOpinion \n\n \n \n  The material facts of the case, and the substance of the argument on both sides, are stated in the following opinion of the Court, 1 delivered March 12th, by MARSHALL, Ch. J. \nJohn Graham, a merchant of New York, claimed sundry parcels of goods shipped on board the Frances, as his sole property. \nThe goods were shipped by William Graham and brothers, merchants of Glasgow, on account and risk of John Graham, merchant, of New York. There are  two bills  of lading, each filled up with the name of John Graham. There are also two invoices, each headed with the name of William Graham and brothers as shippers, and stating the goods to be shipped on account and risk of John Graham. The first of these invoices is marked in the margin thus, W.G.XI.P. and the other thus, [G.] There were also two lists of goods. The first headed, \"List of goods shipped by the Frances, for Messrs. John Graham & Co. New York.\" This list is marked W.G.XI.P. The other is headed, \"list of goods shipped by the Frances, for Messrs. Peter Graham & Co. Philadelphia.\" These goods are accompanied by two letters dated the 15th and 16th of July, signed William Graham and brothers, the first addressed to Messrs. John Graham & Co. and the last to Messrs. Peter Graham & Co. The letter to John Graham & Co. treats of their trade generally, and contains only the following allusion to this shipment: \"You have herewith the ship Fanny's accounts, to which refer -- also invoice of sundry goods per Frances -- we hope they may go to a good market.We expect you will have about one hundred packages of English goods. There will be somewhat more to Philadelphia.\" \nThe letter to  Peter Graham & Co. is also a general letter on the subject of their trade. It contains the following passage respecting the shipments by the Frances: \"We have shipped by Frances a few goods well \"selected -- we could not get almost any cluster seeds.\" \nThe Circuit Judge directed the cause to stand for further proof. \nIt appears from the affidavit of John Graham, that in the month of January, in the year 1809, he entered into a limited partnership with his brothers, William Graham and Peter Graham, who, as well as himself, are naturalized citizens of the United States.The business was to be conducted at New York by himself under the name of John Graham & Co. -- at Philadelphia, by Peter Graham, under the name of Peter Graham & Co. -- and at Glasgow, by William Graham, under the name of William Graham and brothers. That, from the commencement of the partnership, he has been in the constant habit of carrying on extensive  business, with the knowledge of his partners, on his private account, and also in connexion with others. That the investment and disposal of the funds of the deponent, together with the management of the mercantile concerns of the firms composed as aforesaid,  and the commission business, were the principal if not the sole business of William Graham and brothers at Glasgow. That, from the intimate knowledge they possessed of each others affairs, and in consequence of their connexion as brothers, the distinction between his firm and his private character was not always preserved. It was the less attended to, because the affairs of the company and his individual concerns were frequently the subjects of the same letter, and it became the more usual to address him by the style of the firm, because there are several other persons of the same name in New York. He adds, that in making shipments on the sole account of the deponent, William Graham has been in the habit of assorting the whole into invoices of small qualtities, calculated to suit the generality of purchasers in the New York market, and also that the goods in any one of the said invoices might be sold entire, or transhipped to Philadelphia or any other market, with the original invoice accompanying the same, as such original invoice would inspire more confidence in the buyers. This circumstance occasioned the lists of property shipped by the Frances, and one of them to be addressed  to Peter Graham and Co. He swears in the most positive and precise terms, tht the property is entirely his own, and was purchased with his private funds in the hands of William Graham. \nWilliam Black deposes, that he has been long and intimately acquainted with John Graham, who is a man of fortune and character, and has been in the habit of transacting much of his own business in the said Graham's counting house: That, from his knowledge of the affairs of the said Graham, he verily believes that the said Graham, both before and since the war, has been in the habit of doing business on his private account, and has received many shipments in which neither of his brothers were interested. He has been concerned with the deponent as part owner of vessels in which the deponent believes that neither William nor Peter Graham held any share. \n Isaac Belt and David Dunham, merchants of New York, swear to facts similar to those stated by William Black. \nCharles Graham, of a different family from the Claimant, swears that in the year 1811, there were, according to the dispensary, six persons of the name of John Graham in New York, one of whom was the deponents father; and that mistakes  were frequently made respecting each other's letters which came through the post-office. \nWilliam Hill, principal clerk of William Graham and brothers, deposes to the different concerns and to the nature of the business transacted by William Graham and brothers, as stated in the affidavit of John Graham. The they had under their care ships and vessels in which John Graham alone was interested. That since an early period in the year 1811, the concern of William Graham and brothers have not shipped any goods whatever, for or on account of the said co-partnership, to either of their said establishments,  or in any other manner whatsoever. That vessels continued to arrive, particularly the Trident, the Fanny, and the Cuba, to the charge of the said William Graham and brothers, for the account and risk of John Graham, in which ships and cargoes the said co-partnership or the said William Graham had no share or interest whatsoever. The deponent has seen sundry letters from the said John Graham to the said William Graham and brothers, to invest the monies arising from the freight and cargoes of those ships, in goods, in behalf of him, the said John Graham, so soon as the British  orders in council should be revoked; and, until then, to place the amount to his private credit in the books of William Graham and brothers, which was done by the deponent as clerk. That this money was invested in the goods shipped by the Frances and other vessels, which were shipped on the sole account of John Graham, and were so entered on the books, by the instructions of William Graham. He states the practice of dividing shipments into small invoices, as is stated in the affidavit of John Grabam. \nPeter Graham swears that he has not, and never had, any interest in the goods shipped by the Frances. That  John Graham has been in the habit of transacting business on his own account, with the knowledge of his partners, and has frequently consigned his separate goods to Peter Graham & Co. \nWilliam N. Steele, clerk of Peter Graham, deposes to the same facts; and founds has belief that Pater Graham had no interest in the goods shipped by the Frances, on his knowledge of the business of the house. \nWilliam Graham states in detail, with great explicitness, the circumstances narrated in the affidavits of John Graham and of William Hill, his principal clerk, and avers most solemnly  that the goods shipped by the Frances were the sole property of John Graham. \nThe Court below directed restitution of two thirds of the cargo, as being the property of John and Peter Graham, and condemned one third, as being the property of William Graham. From this sentence of condemnation John Graham has appealed; and from so much of the sentence as directs a restitution of one third as the property of Peter Graham, the captors have appealed. \nIt is certainly a rule in prize Courts dictated by good sense, and calculated to promote the purposes of justice, that letters accompanying the cargo, written in good faith, in the prosecution of a fair and honest business, should have great influence in ascertaining the real proprietors of it. The letters on board the Frances are of this description. They are such as would be written if the goods were really the property of the company; but such as could scarcely have been written if the goods were the sole property of John Graham. Had they been his sole property, it must have happened that some expression would have been found in the letters indicating the fact. Men who write carelessly and without design, may not he very explicit; but  it rarely happens that they entirely conceal the truth. There will be some allusion to it. \nIf the goods were the sole property of John Graham, why address a letter to Peter Graham & Co.? The affidavits account rationally enough for making up separate invoices; but addressing a letter to Peter Graham  & Co. at Philadelphia, by a vessel destined for New York, has very much the appearance of a shipment destined for the company at that place, and not for John Graham, of New York. The expressions of that letter favor the same idea. \"We have shipped you, by Frances, a few goods well selected.\" These cannot well be the goods of John Graham. The language is surely not such as would be used in that state of things. \"We could not get almost any cluster seeds.\" These expressions have a necessary reference to some letter of orders from Peter Graham, mentioning cluster seeds among the articles directed to be shipped. \nThe affidavits produced on the order for further proof, are too positive to be disregarded without considerable reluctance and hesitation. There are, however, certain rules of evidence, the authority of which is admitted in all Court. One of these is, that if a  written paper be referred to, which paper is in the power of the party, it ought to be produced. The affidavits of William Graham and of William Hill state expressly that letters had been received from John Graham, directing the disposition of cargoes shipped from America on his own account, and ordering the proceeds to be invested in British manufactures, also on his own account, so soon as the British orders in council should be repealed. Why are not these letters produced? It is impossible not o perceive their necessity. Mr. John Graham must have copied these letters into his letter book. Why has he not furnished some evidence of this fact. His letters must have been answered by William Graham more explicitly than in that which was found on board the Frances. Why is no one of those letters produced? It is impossible to account for the fact that no one of these letters is an exhibit in the case. The Court feels itself bound, judging on this evidence according to the rules of law, to consider the goods as the property of the company. But it is urged, on the part of the Claimant, that if permitted to give further proof, he will produce the correspondence and such other proof  as will he entirely satisfactory to the Court. Several circumstances exist in this cause to induce the Court to allow still further time for the production of such further evidence as may place the transaction beyond any doubt. The cause is ordered to stand for further proof. \n \n\n ", ", \nOpinion \n\n \n \n  MARSHALL, Ch. J. after stating the facts of the case, delivered the opinion of the Court as follows. \nIt has been argued for the Appellants, that, by the invoice and bill of landing, and the true construction of the letter of Alexander Thompson, the property was vested in Dunham and Randolph, liable to be divested by their rejecting the consignment within twenty-four hours after receiving the letters.That the condition annexed to the transfer, is subsequent, not precedent. \nThe Court cannot concur  in this reasoning. It has been very truly urged for the captors, that to vest this property in Dunham and Randolph, a contract is necesary; and that to form a contract, the consent of two parties is indispensable. In this case, no such contract appears.Had Thompson, in execution of the orders of Dunham and Randolph, consigned to them, unconditionally, such goods as they had directed, the contract would have been complet; and the goods would, on being shipped, have become the property of Dunham and Randolph. But Thompson has not done this. With the goods which were ordered he has consigned other goods, expressly stipulating that Dunham and Randolph shall not take the goods they had ordered, unless they consent to take the whole quantity put on board both vessels. This, then, is a new proposition, on which Dunham and Randolph  are at liberty to exercise their discretion. They may accept or reject it; and until they do accept it, the property must remain in Thompson. The sentence of condemnation, therefore, in this case, was warranted by the evidence before the Circuit Court. \nBut the Claimants pray an order for further proof; and say, that, before the capture of the  Frances, the Fanny had arreved, and Dunham and Randolph had consented to take both cargoes. \nThis application is opposed on the principle that, were the fact even true, as alleged by the Claimants, belligerent property cannot change its character in transitu. \nReserving any opinion on the law of the case, until the facts alleged shall be substantiated, if it shall be in the power of the Claimants to substantiate them, the cause is ordered to stand for further proof. \n \n\n ", " \nOpinion \n\n \n \n MARSHALL, Ch. J. delivered the opinion of the Court as follows: \nDuncan Kennedy, surviving partner of the house of George Stayley & Co. merchants of New York, claims eight boxes of merchandize, part of the cargo of the ship Frances, as his property. \n The invoice is headed \n\"Glasgow, 8th July, 1812. \nMessrs. George Stayley & Co. \nReceive rom James Smith.\" \nA letter from James Smith to George Stayley & Co. in speaking of the goods, terms them \"our goods,\" and does not, in any manner, indicate that they are the goods of Stayley & Co. He concludes his letter with saying, \"As it is to be hoped the trade will now open, I shall expect your instructions saying what goods are best suited for the market.\" \nThe bill of lading is filled up with the names of George Stayley & Co. \"on account and risk as per invoice.\" \nThere are several letters from George Stayley,  in Glasgow, to his father; but none of them indicate an opinion that the property of the goods was in George Stayley & Co. \nThe sentence, condemning these goods, must be affirmed. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. delivered the opinion of the Court as follows: \nColin Gillespie, a naturalized American citizen residing in Glasgow, claimed sundry goods, shipped on his own account, as his property. This claim depends entirely on his national character, and is decided in the case of the Venus. \nThe sentence of the Circuit Court, condemning the property of the Claimant, is affirmed. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. after stating the case, delivered the opinion of the Court as follows: \n\"This being an application to restrain a person from the assertion of title in the ordinary course of judicial proceedings, the prayer of the bill ought not to be granted in a doubtful case; but if the case be a clear one, the interposition of equity is allowable; and the situation of the lend adjoining a growing city, the number of persons who are consequently interested in the settlement of the question, and the numerous titles which depend on it, give it peculiar claims to the attention of the Court. \nBy the laws which govern this case, a possession of thirty years under some circumstances, and of fifty years, under any, constitutes a title against all the world. The Appellee claiming under a possession perhaps from the year 1732, certainly from the year 1741, has a complete title, unless something can be alleged by the Plaintiffs in error which shall deprive him of the advantages of that possession. \nIt is urged that the contract of 1741, between the Alexander's and the Dade's, made the latter trustees for the former with respect  to that portion of the land included in Berry's survey, which they had agreed to surrender in the event of establishing a more western back line. And that, therefore, in computing time, we must commence with the sale from Parthenia Dade to William Hartshorne, in May, 1778. \nHad the land continued in possession of Parthenia Dade and her heirs, the question whether this contract was of unlimited duration, or contemplated some particular suit then intended to be brought, would merit consideration. But as the contract does not appear on the title papers, but was verbal, a purchaser for a valuable consideration could not be affected by it unless he was a purchaser with notice. Finding Parthenia Dade in the quiet and undisturbed possession of four hundred acres of land, forming a parallellogram, limited on the west by the line north 6 west, he had a right to consider that line as established, so far as respected the land of Parthenia. He was not bound to know that a private parol agreement existed, which would control the possession. This trust therefore no more passed with the land to Hartshorne, than would any other secret trust of which he had no knowledge. \nThe various suits which  have been instituted by, and against the ancestors of the Appellants cannot affect this cause. A suit not prosecuted to a decree or judgment is not constructive notice to a person not a pendente lite purchaser; and were the law otherwise, those suits, until that instituted in 1796, would convey no notice of the private agreement made in 1741. A knowledge of the suits therefore would not imply a knowledge of the trust; and possession for fifty years, though with knowledge of a better title, if adversary, constitutes a good defence against that title. \nIn 1796, Charles Alexander instituted a suit against sundry persons claiming the land in controversy for the purpose of altering the boundaries which had been held by Parthenia, and those claiming under her, from the year 1732, and which had been surveyed under an interlocutory decree made by the Court of Chancery, in the year 1741. In defending themselves against this claim, the purchasers of the land had a right to unite the possession of Parthenia Dade to their possession, without being affected by a secret trust of which they had no notice. If upon the trial of that suit a possession of fity years could not have been established,  and if the Court should have been of opinion that this was not a case in which an adversary possession of thirty years would have constituted a bar, the merits of the title would have been necessarily investigated. But if Charles Alexander had permitted that suit to be dismissed, and had filed a new bill, he would not have been at liberty, in the computation of time, to avail himself of the pendency of the former suit, unless he could have connected the two suits together. The law is the same where a suit terminates by abatement and is not revived, such a suit takes no time out of the act of limitations. The tile of Pendleton therefore has from that act all the benefit which can be derived from a possession from the year 1741, when a possession ostensibly adversary by metes and bounds unquestionably commenced, to the institution of this suit in the year 1806. The deduction which the laws of Virginia make from all computations of time in consequence of the war of the revolution, will not be sufficient to take this case out of the act of limitations. The Appellees title, being secured by a possession of more than fifty years, is unquestionably good, and it is proper that the doubts  which hang over it, should be removed. There is no error in the proceedings of the Circuit Court and the decree is affirmed. \n \n\n ", "Opinion by: WASHINGTON \nOpinion \n\n \n \n  WASHINGTON, J. delivered the following opinion of the Court: \nThis is the claim of William French to a part of the cargo of the Frances, shipped by James Auchincloss, of Paisley, in Great Britain, to A. and J. Auchincloss, of New York, on their account and risk. By the correspondence between the consignor and consigners, which was exhibited to the Court below, under an order for further proof, it is somewhat doubtful whether these goods were to be sold as the property of the consignor, or of the consignees. In the letter from the former to A. Auchincloss, dated the 17th of July, 1812, he says, You will lose no time to transmit immediately, on the receipt of the invoice by the Fanny as well as by the Frances, to the full amount of the invoices; as thereby, and no other way, is your credit and John's to be restored here. Also remit, as I have often told you, to clear off your old deb; and, for God's sake, let us have no more failing in the family. You will observe that the goods per Fanny and Frances are principally bought upon a credit of 3, 4 and 5 months -- this the consequence of failing.\" \nIn another letter of the same date, from the same to the same, he says, \"By this ship, the Frances, I have shipped you 14 boxes of different kinds of goods, which I beg you will lose no time to dispose, as by early remittances you will undoubtedly strengthen your credit.\" In another part of this letter he says, I beg you will lose no time to remit largely, say 3 or 4,000 pounds. Remember the old cash account with the Paisley Banking Company.\" These letters, so far as they throw light upon this transaction, intimate very strongly that A. and J. Auchincloss were to dispose of these goods upon their own account, and as the purchasers of them. But the produce a change of property from the shipper to the consignee, it was essentially necessary that the goods should have been sent in consequence of some contract between the parties, by which the one agreed to sell, and the other to buy. Had the language of these letters been more explicit than it is to prove that the intention of the consignor was to vest the right of property in the consignee, it would not have been sufficient to effect such a change, until the goods were received, or some evidence given of the agreement of the consignee to take them on his own account. No order from A. and J. Auchincloss to the  coneignor of this cargo, authorizing the shipment of it, was produced or offered to be produced in the Court below; and this Court, therefore, is warranted in believing that none such was ever given. Indeed, no interest whatever in these goods is asserted to have existed in A. and J. Auchincloss, but the same is claimed by Wm. French, a citizen of the United States, who, under the order for further proof, produced, in support of his claim, a letter from himself to A. and J. Auchincloss, dated the 20th February, 1812, in which he requeses them to order from his friends in Scotland, a quantity of goods enumerated in the letter not to exceed 1,000l. sterling, to be shipped as soon as the orders in council should be revoked, and adding that he should consider the goods at his risk from the time they should be shipped; also an invoice of these goods sent by A. and J. Auchincloss to Wm. French, together with a letter from them, dated the 20th of September, 1812, advising him of the capture of the Frances with the goods shipped on his account, and recommending it to him to take the necessary steps to vindicate his right to the property. This letter made its appearance in the Court below, with the outer leaf, on which the postmark would have been placed, had there been any, torn off. To do away the suspicion which this circumstance might well excite, the affidavit of Darius Hodson was produced, in which he states that he forwarded this letter to the Claimant, at Providence, having first torn off the outer leaf with a view to lessen the rate of postage. \nThe affidavit of the Claimant is added, which is fully to the purpose of supporting his interest in these goods, so far as his order to A. and J. Auchincloss can vest such an interest in him. But passing over those observations which might fairly be made upon the mutilated state of the letter from A. and J. Auchincloss to the Claimant, and the suspicious manner in which that circumstance is attempted to be explained, it may be observed that the claim of Wm. French is in no respect stronger than if it bad been made by A. and J. Auchincloss. Admit that he wrote to A. and J. Auchincloss the letter of the 20th of February, 1812, and received from them that of the 20th of September, the inquiry still remains to be answered, where is the order for this  shipment from A. and J. Auchincloss as the agent of the Claimant? \nThe truth is, that in whatever light this question is viewed, these goods were at the risk of the shippers until they should be received by the consignee; and, consequently, were, by the capture, made good prize, as property belonging to the enemy. \n \n\n ", " \nOpinion \n\n \n \n MARSHALL, Ch. J. delivered the opinion of the Court as follows: \nIt is entirely immaterial whether this question be governed by the laws of Virginia or of Maryland. By neither of them can the discounts claimed by the Plaintiff in error be allowed. \nBy making a note negotiable in bank, the maker authorizes the bank to advance on his credit to the owner of the note the sum expressed on its face. \nIt would be a fraud on the bank to set up offsets against this note in consequence of any transactions between the parties. These offsets are waived and cannot, after the note has been discounted, be again set up. \nThe judgment is to be affirmed with damages at the rate of 6 per cent. per annum. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. delivered the opinion of the Court as follows: \nThe land for which this ejectment was brought, lies within the territory ceded to the United States by the state of North Carolina, and was claimed by a patent anterior to that cession. At the date of the grant, the Indian title had not been extinguished. On the 25th day of October, 1805, a treaty was made between the United States and the Cherokee Indians, in which the Indians ceded to the United States \"all the land lying to the north of the following boundary line; beginning at the mouth of Duck river, running thence up the main stream of the same to the junction of the fork, at the head of which fort Nash stood, with the main south fork; thence a direct course to a point on the Tennessee river bank opposite the mouth of the Highwassee river.\" \n The question on which the cause has been placed is this. Is the land, claimed by the Plaintiff in the Court below, within the ceded territory? \nThe line mentioned in the treaty has been run, and the land in controversy lies on the north side of it, and consequently within the limits ceded to the United States; but there was a further stipuration in the treaty, which the Plaintiffs in error say comprehends the lands for which this suit is brought. \nAfter describing the ceded territory, the treaty proceeds to say: \"And whereas from the present cession made by the Cherokees, and other circumstances, the scites of the garrisons at South west point and Tellico are become not the most convenient and suitable places for the accommodation of the said Indians, it may become expedient to remove the said garrisons and factory to some more suitable place,\" three other square miles are reserved for the particular disposal of the United States on the north bank of the Tennessee opposite to and below the mouth of Highwassee. \nThe ceded territory lies above the mouth of Highwassee, as does the land in controversy; yet the Plaintiffs in error contend that this land is within the stipulation for a reserve of three square miles to lie below the mouth of Highwassee. \nThey attempt to sustain this proposition by alleging that the word \"below\" was inserted in the treaty by mistake, when the word \"above\" was intended. \nThis mistake ought certainly to be very clearly demonstrated, before the Courts of the United States can found upon its existence a judgment which shall deprive a citizen of his property. \nThe argument, so far as it is drawn from the treaty itself, rests on the word \"reserved.\" It is said that the lands \"reserved for the particular disposal of the United States,\" must necessarily be a part of the ceded territory, or the term would not aptly express the idea of the parties. \n The Court cannot accede to this reasoning.  The treaty is the contract of both parties, each having lands. The words are the words of both parties, and the term might, without any strained construction, be applied to the lands of either. No great violence is done to the known import of the term as used in the treaty, if it be considered as equivalent to the words \"set apart.\" This construction is rendered necessary by the word \"other.\" \"Three other square miles,\" that is, other than those before ceded, are reserved for the particular disposal of the United States. The context, instead of proving that the word, \"below\" was used by mistake in the treaty, would rather induce the Court to put that construction on an ambiguous term, had one been employed. \nThe counsel for the Plaintiffs in error also rely on a letter written by the commissioners who negotiated the treaty to the secretary of war on the 10th day of January, 1806. But, without inquiring into the weight to which such a letter is intitled in such a case, it is to be observed that the letter agrees with the terms of the treaty. It says that the three square miles reserved for the particular disposal of the U. States, were \"opposite to and below the mouth of the Highwassee.\" It is unnecessary to make a farther comment on this letter than to say, that there is no expression in it which appears to the Court to countenance, in the slightest degree, the idea that the word \"below\" in the treaty was used by mistake instead of the word \"above.\" \nThe facts, that the agents of the United States took possession of this land lying above the mouth of the Highwassee, erected expensive buildings thereon, and placed a garrison there, cannot be admitted to give an explanation to the treaty, which would contradict its plain words and obvious meaning. The land is certainly the property of the Plaintiff below; and the United States cannot have intended to deprive him of it by violence, and without compensation. This Court is unanimously and clearly of opinion that the Circuit Court committed no error in instructing the jury that the Indian title was extinguished to the land in controversy, and that the Plaintiff below might sustain his action. \nThe judgment is affirmed with costs. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. after stating the facts of the case, delivered the opinion of the Court as follows: \nThe first error assigned is that the entry and survey of the Plaintiff in error being prior to the claim made by Ash before the Court of commissioners, gave him a legal right to the land so entered and surveyed,  not to be affected by the subsequent claim of Ash. \nThe words of the act of assembly are, \"That all those who, before the said first day of January, 1778, had marked out or chosen for themselves any waste or unappropriated lands, and built any house or hut, or made other improvements thereon, shall also be entitled, on the like terms, to any quantity of land, to include such improvement, not exceeding 1,000 acres, and to which no other person hath any legal right or claim.\" \nThe Court is clearly of opinion that the words of the law refer to the time when the improvement was made, and to the time of the passage  of the act; not to the time when the claim, founded on that improvement, was made to the Court of commissioners. If the land, when improved, was waste and unappropriated, if, at the passage of the act, no other person had \"any legal right or claim\" to the land so improved, such right could not be acquired until that of the improver should be lost. \nThe second error is, that the entry made by Terrell and Hawkins with the surveyor has no reference to the  pre-emption certificate of Ash, and is therefore not a good and valid entry of Ash's pre-emption right. \n Terrell and Hawkins were assignees of Ash; and this ought to have been expressed in the entry. Those words are omitted. In consequence of their omission, it does not appear whose improvement is to be included. \nUpon this point the Court has felt a good deal of difficulty. If the entry with the surveyor could be connected with the certificate of the commissioners, this difficulty would be entirely romoved. But the Court is not satisfied that, according to the course of decisions in Kentucky, such reference is allowable. \nThe Court, however, is rather inclined to sustain the location, because its terms are such as to suggest to any subsequent locator the nature of the omission which had been made. \nTerrell and Hawkins enter 1,000 acres of land, \"to include his improvement.\" It was then a warrant founded on an improvement; and that improvement was made, not by them, but by a single person. Of that single person Terrell and Hawkins were, of course, the assignees. The place was described with such certainty as would have been sufficient, had the assignment been stated. On coming to the place, Ash's improvement would have been found. The mistake, therefore, does not mislead subsequent  locators. It does not point to a different place. They are as well informed as they would have been by the insertion of the omitted words. The entry, too, contains a reference to the warrant which the law directed to be lodged with the surveyor, and to remain there until it should be returned with the plat and certificate of survey to the land office. \n3. It is also objected that some of the Defendants in error do not show a complete legal title under Terrell and Hawkins, for which reason they have not entitled themselves to a conveyance from Charles Simms; and that one of them, John Meiggs, has obtained a decree for 140 acres of land, although in the bill he claimed only 100 acres. \n Regularly the Claimants who have only an equitable title ought to make those whose title they assert, as well as the person from whom they claim a conveyance, parties to the suit. For omitting to do so an original bill might be dismissed. But this is a bill to enjoin a judgment at law rendered for the Defendant in equity against the Plaintiffs. The bill must be brought in the Court of the United States, the judgment having been rendered in that Court. Its limited jurisdiction might possibly  create some doubts of the propriety of making citizens of the same state with the Plaintiff, parties Defendants. In such a case, the Court may dispense with parties who would otherwise be required, and decree as between those before the Court, since its decree cannot affect those who are not parties to the suit. \nIt is certainly a correct principle that the Court cannot decree to any Plaintiff, whatever he may prove, more than he claims in his bill. Nothing further is in issue between the parties. It is not necessary to inquire whether any thing appears in this cause, which can prevent the Plaintiff from availing limself of this principle; because the decree will be opened on another point, in consequence of which this objection will probably be removed. \n4. The fourth error is that John Ash having two improvements, it is uncertain which he claimed before the commissioners, and his entry is on this account void; or if not so, then his claim was for the improvement made by himself, and not for that won from M'Collom. \nIt is admitted that if the terms of the entry are such as to leave Ash at liberty to select either improvement, it is void; and that if the terms of the entry confine  him to either, he must abide by his original election. \nUpon considering the testimony on this point, the Court is of opinion that the entry may be construed to refer to one improvement in exclusion of the other; but that the improvement referred to is the one first made by himself. \nLet the several members of this description be examined. \n John Ash, senr. claimed 1,000 acres of land, &c. \"on account of marking and improving the same in the year 1776.\" \nThey were both marked and improved in the year 1776, the one by Ash himself, the other by M'Collom. The description proceeds, \"lying on the waters of the Town Fork of Salt river, about two miles nearly east from Joseph Cox's land.\" \nBoth improvements are on the same water course; but that made by Ash is nearer the distance and the course from Joseph Cax's land, mentioned in the certificate, than that made by M'Collom. \nIf, then, it be not absolutely uncertain to which improvement reference is made in the certificate, this Court is of opinion that the improvement made by Ash himself is designated. \nIs there any testimony in the cause which can control the meaning of the terms of the certificate when viewed independent of  that testimony? \nThere is evidence that the improvement at M'Collom's spring was generally known in the neighborhood. But there is no reason to believe that the improvement originally made by Ash himself was not also known, nor is there any reason to believe that he had abandoned it. On the contrary, he added to it by planting peach stones after having won that made by M'Collom. \nIt is also in proof that, at the Court of commissioners, in April, 1780, in conversation with Thomas Polk, whom he then designed to call on to prove his improvement, he said that he intended to settle at M'Collom's spring. \nSupposing this to amount to a declaration of his intent to found his claim to a pre-emption on the improvement commenced by M'Collom, and completed by himself, that intent not appearing in the certificate and entry, could not control those documents. But the Court is not of opinion that the conversation will warrant this  inference. The whole case shows that Ash retained his claim to both improvements, and designed to include both in his pre-emption.  They are both included in his survey. His declaration, therefore, that he meant to settle at M'Collom's spring,  and the subsequent building of a cabin at that spring no more proves which improvement was the foundation of his title than if he had declared a design to settle at any other place on the same tract of land, and had carried that intention afterwards into execution by building at such place. \nThis Court is of opinion that there is error in so much of the decree of the Circuit Court as directs the survey of Ash's pre-emption to be made on the improvement commenced by M'Collom, which is at black A in the plat to which the decree refers; and that the said pre-emption right ought to be surveyed on the improvement originally made by Ash himself, which is at figure 2 in the said plat. The decree, therefore, must be reversed, and the cause remanded to the Circuit Court, with directions to conform their decree to the opinion given by this Court. \nThe decree of this Court is as follows: \nThis cause came on to be heard on the transcript of the record from the Circuit Court, and was argued by counsel; on consideration whereof the Court is of opinion that there is error in so much of the interlocutory and final decrees of the said Court as directs Charles Simms to convey to the Plaintiffs in that  Court the land included in his patent and in the survey directed to be made by that Court, of the claim of the said Plaintiffs, which survey was ordered to be made in a square form, including the improvement at M'Collom's spring which is designated in the plat by the black letter A in the centre; and that the said decrees ought to be reversed and annulled, and the cause remanded to the Circuit Court with directions to cause the said pre-emption right of the said Ash to be surveyed in a square form with the lines to the cardinal points, and including the improvement originally made by the said John Ash, senr. which is designated in the plat filed in the said cause by figure 2 in the centre; and with further directions  to order the said Charles Simms to convey to the Plaintiffs in the Circuit Court respectively the land included in his patent, and lying within their several claims as made in their bill, and as sustained by the evidence in the cause. All which is ordered and decreed accordingly. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. delivered the opinion of the Court as follows: \nThis suit was brought by the Plaintiffs in error, in the Circuit Court of the United States, for the district of Rhode Island, to recover from the Defendants the amount of certain bills drawn by general Le Clerk on the government of France. \nThe declaration contains several counts, some special, stating agreements between the parties for the payment of the bills; others general, among which is a count for money had and received by the Defendants, to the use of the Plaintiffs. \nIt appeared,  at the trial, that the Plaintiffs and John L. Boss, were concerned in certain commercial speculations, in the prosecution of which John L. Boss sailed, in 1802 and 1803, to Bourdeaux, in the Polly, with cargoes in which they were jointly interested. On the first voyage, Boss carried with him the bills of exchange for the amount of which this suit was brought, indorsed in blank by the Plaintiff, Gardner, which he delivered to  the Defendants for collection. The amount, when collected, was to be placed to the credit of the return cargo of the Policy, in which the Plaintiffs and John L. Boss were jointly concerned. The account was settled without giving credit for the amount of these bills; and Taber, Gardner and Boss have been compelled to pay the balance acknowledged to be due. This action was brought to charge the Defendants with the bills, alleging that their amount has been received. \nAt the trial, the Plaiutiffs offered Boss as a witness, for the purpose of proving the liability of the Defendants for the amount of the bills. He swore that he had no interest in the cause nor in the bills; but his testimony was objected to by the Defendants on the ground of his being  interested; and the Court was moved to instruct the jury that the action could not be sustained, because Boss was not a party Plaintiff in the declaration. This direction was given by the Court, and excepted to by the counsel for the Plaintiffs. A verdict and judgment were rendered for the Defendants, which are brought into this Court by writ of error. \nThe Defendants in error contend, that the bills of exchange were part of the cargo of the Polly, and consequently the joint property of the owners of that cargo. But of this there is no other evidence than that Boss was the bearer of those bills indorsed in blank, and that their proceeds, if received, were to be placed to the account of the return cargo. This might very well be, and yet Taber and Gardner remain the sole owners of the bills. Their amount, if received, might be credited to all the partners in their account with Perrott and Lee, and then be credited to Taber and Gardner in settling the accounts of the partnership Boss then would have no interest in the bills, unless they should be collected and carried to the credit of the return cargo. That account having been settled without including this item, it is not necessarily  implied, from the facts in the case, that Boss was interested; and he swears that he was not. This Court is of opinion that the Circuit Court erred in directing the testimony of Boss to be disregarded; and also in directing the jury to find for the Defendants because he was not made a party Plaintiff in the suit. \n Several other opinions were given by the judge, to which exceptions were taken; but it is unnecessary to review them as they depended on the opinion that Boss was interested in the bills for which the action was brought. \nThe judgment is reversed, and the cause sent back for a new trial. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. after stating the facts of the case, delivered the opinion of the Court as follows: \nIt has been contended by the Plaintiffs in error. \n 1. That the Short Staple being a registered vessel, and having given bond as required by law for re-landing her cargo in the United States, is not liable to forfeiture, if she has violated the condition of that bond. \n2. That her sailing to a foreign port, being under the coercion of a force she was unable to resist, is justifiable under the laws of the United States. \nThe first error has been pressed with  great earnestness by the counsel for the Plaintiffs; but the Court is not convinced that his exposition of the embargo acts is a sound one. On this point, however, it will be unnecessary to give an opinion; because we think the necessity under which the Claimants justify their going into St. Nichola Mole, is sustained by the proofs in the cause. \nIt is not denied that a real capture and carrying into port by a force not to be resisted, will justify an act which, if voluntary, would be a breach of the laws imposing an embargo. Nor is it denied that if such capture be pretended, if it be made with the consent and connivance of the parties interested, such fraudulent capture can be no mitigation of the offence. The whole question, then, to be decided by the Court is a question of fact. Was this capture real -- was the force such as the Short Staple could not resist? or was it made in consequence of some secret arrangements between the captor and captured? \nIt is contended, on the part of the United States, that the circumstances of this case are such as to outweigh all the positive testimony in the cause, and to prove, in opposition to it, that the Short Staple was carried into St.  Nichola Mole, not by force, but with her consent, and by previous concert between her owners and the captain of the Ino. \nThose circumstances are, \n1. The arrival and continuance of the Ino in the port of Boston, while the Short Staple lay in that port prerious to her departure for Baltimore. \n 2. Her clearing out for the Cape of Good Hope while her real destination was Jamaica. \n3. The continuance of the Short Staple in Hampton Roads until the arrival of the Ino. \n4. Her capture on a coasting voyage which would not justify suspicion. \n5. Her being carried to a port where there was a good market, and there given up; and, \n6. That the William King, when carried to Jamaica, was also given up without being libelled. \nThat these circumstances are some of them such as to justify strong suspicion, and such as to require clear explanatory evidence to do away their influence, is unquestionable. But the Court cannot admit that any or all of them  together amount to such conclusive evidence as to render it impossible to sustain the defence. \nThat the Ino should arrive in the port of Boston while the Short Staple lay in that port is nothing remarkable. It furnished  an opportunity of concerting any future plan of operations with the owners of the Short Staple, or of any other vessel; but is certainly no proof of such concert. There is no evidence that the respective owners were acquainted or had any communication with each other; and the whole testimony is positive that no such communication took place. \nThat the Ino should have cleared out for the Cape of Good Hope, when her real destination was Jamaica, is sufficiently accounted for. It enabled her to take on board a considerable quantity of provisions, an article in demand in Jamaica, which she would not have been permitted to do had her real destination been known. This may be a fraud in the Ino, but cannot affect the Short Staple. \nThat the Ino should have arrived in Hampton Roads while the Short Staple remained there, and should have followed her to sea, and have captured her, are unquestionably circumstances which justify strong suspicion,  and which would be sufficient for the condemnation of the vessel, if not satisfactorily explained: but it is not conceded by the Court that they admit of no explanation. These circumstances are not absolutely incompatible with innocence. \n It is proved by testimony to which there is no exception, and which no attempt has been made to discredit, that the Short Staple was absolutely wind-bound the whole time she remained in Hampton Roads; and that she attempted to put to sea before the arrival of the Ino, but could not. Had this capture ever been pre-concerted in Boston, the Ino and Short Staple would more probably have contrived to meet on the return voyage of the latter, than to have adopted the course of the one waiting in port for the arrival of the other, and then sailing out almost together. \nThe arrival of the Ino in Hampton Roads is completely accounted for. She had suffered by the perils of the sea, and put in for necessary repairs. This fact is proved positively, and no opposing testimony is produced. \nThat the Ino should have pursued the Short Staple on a coasting voyage, and have captured her, was a wrong not to be justified. It is said to have been so atrocious a tort, that its reality is incredible. The fact, however, is completely proved. The master of the Short Staple swears that he was on his voyage to Boston; that his intention was to proceed to that port; that he had had no previous communication  with the Ino, and had no expectation of being captured by her, or of being turned out of his course. The other persons on board the Short Staple testify to the same facts, as far as their knowledge extends. The owner of the Ino, who was on board, and her officers, swear that they had no previous communication with the Short Staple or her owner; that there was no concert of any sort between them; that they were informed by some person on shore, while the Ino lay in Hampton Roads for repairs, that the Short Staple and the William King were on a vovage to a French island; that expecting to find something which would justify condemnation as prize, they determined to examine those vessels, and,  although, on examination, they found nothing to justify capture, they still hoped that something would appear in future; and that, at the worst, they should incur no risk of damages, because they should carry the vessels and cargoes to a good market. In this confidence, they determined to take them to Jamaica. \nThis disposition in the captors, however indefensible, is very probable. It grew out of the state of the two countries; and no individual who was captured in consequence of  it ought, if his own conduct contributed in no degree to that capture, to be made the victim of it. \nThat she was carried into St. Nichola Mole, and there given up to the government of the place, is, in itself, a circumstance throwing some suspicion on the transaction, and requiring explanation. The testimony explains it. The Ino was separated from her two prizes by a fact which is fully proved, and which sufficiently accounts for that separation. That her captain should, when about to leave them, appoint some near port as the place of meeting again, was almost of course; and that he should have relinquished one of the vessels to the government of the place ceases to be matter of much surprize when it is recollected that he could not have much expectation of making her a prize; that, in fact, the capture was made with scarcely any hope of condemnation, but with a certainty that it would produce some additional supply of provisions, and could injure no person. The criminalty of this mode of thinking, whatever it might be, was not imputable to the owners of the Short Staple. \nIt has been contended that, during the separation of the Ino from the captured vessels, a rescue ought to  have been attempted. There having been, during that period, but three persons belonging to the Ino on board the Short Staple, they might have been overpowered by the American crew; but the attempt to take the vessel from them was no part of the duty of the Americans, and might, in the event of re-capture, have exposed the vessel and cargo to the danger of condemnation, of which, without such rescue, they incurred no hazard. \nThe abandonment of the William King without libelling  her, is the natural consequence of having been able to find no circumstances of suspicion which might tempt the captors to proceed against her. It undoubtedly proves, what the captain of the Ino avows, that he acted under a full conviction of being exposed to no risk by the capture, though he should reap no advantage from it. \nThe interest which coasting vessels had in fictitious or concerted captures, undoubtedly subjects all captures to a rigid scrutiny, and exposes them to much suspicion. The case of the Claimant ought to be completely made out. No exculpatory testimony, the existence of which is to be supposed from the nature of the transaction, ought to be omitted. The absence of such testimony,  if not fully accounted for, would make an impression extremely unfavorable to the claim. But where the testimony is full, complete and concurrent; where every circumstance is explained and accounted for in a  reasonable manner; where the testimony to the innocence of the owners and crew of the vessel is positive, proceeding from every person who can be supposed to have any knowledge of the facts, and contradicted by none; the Court cannot pronounce against it. This would be to allow to suspicious circumstances a controling influence to which they are not entitled. \nThe sentence of the Circuit Court, condemning the Short Staple, is reversed and annulled, and the cause remanded to that Court with directions to decree a restoration of the vessel to the Claimants, and to dismiss the libel. \nDissent by:", " \nOpinion \n\n \n \n   MARSHALL, Ch. J. after stating the facts of the case delivered the opinion of the Court as follows: \nIt is admitted that if the preliminary requisites of the law have not been complied with, the collector could have no authority to sell, and the conveyance can pass no title. On the part of the Plaintiff in error it is insisted that these requisites have been performed, and that the instruction given by the judge is erroneous. The instruction is that the sale was unauthorized and void. \nIt was proved in the cause that the proprietors of the land in controversy were non-residents of the state of Tennessee when the tax was assessed, and continued to be so to the time of bringing the action, and that they had no known agents in that state. \n The mode of proceeding with respect to non-residents is prescribed in the 11th and 13th sections of the act imposing the direct tax. \nThe object of the provisions of the 11th section is lands, dwelling houses and slaves which shall not be owned by or in the occupation or under the care or superintendance of some person within the collection district where the same shall be situated or found at the time of the assessment  aforesaid.\" \nIt is alleged that the Plaintiff below did not entitle himself to the provisions of this section by bringing himself within its description. He was a non-resident and had no known agent, but has not shown that there was no occupant of the land. \nThe testimony offered by both Plaintiff and Defendant is spread upon the record; and although the Plaintiff has not shown that there was no occupant, yet that fact came out in the testimony of the Defendant before the opinion of the Court was given. One of the tax lists produced by him states the land to be without an occupant; and the other which states John Grant to be the occupant, is so far disproved, because the case admits John Grant to have been, at the time, an inhabitant of Kentucky without any agent in the state of Tennessee. \nThe requisites of the 13th section of the act, which prescribes the course to be pursued where lands are to be sold because the taxes are in arrear and unpaid for twelve months, have been observed. The requisites of the 11th section, which prescribes the duty of the collector after the assessment of the tax before he can proceed to distrain for it, have not been observed. The cause depends on  this single point -- was it the duty of the collector, previous to selling the lands of a non-residen in the manner prescribed by the 13th section of the act to make the publications prescribed in the 11th section? \nThis will require a consideration of the spirit and intent of the law. \n The 9th section makes it the duty of the collector to advertise that the tax has become due and payable, and the times and places at which he will attend for its collection. It is then his duty to apply once at the respective dwellings of those who have failed to attend such places, and there demand the taxes respectively due from them. If the taxes shall not be then paid, or within twenty days thereafter, it is lawful for the collector to proceed to collect the same by distress and sale. \nThe 11th section prescribes the duty of the collector with respect to lands, &c. not owned, &c. by some person within the collection district wherein the same shall be situated. \nUpon receiving lists of such lands, &c he is to transmit certified copies thereof to the surveyors of the revenue of the assessment districts, respectively, within which such persons respectively reside, whose duty it is to give  personal notice of the claim to those who are liable for it. If the tax shall not be paid within a specified time after this notice, it then becomes the duty of the collector to collect the same by distress. \nIf the residence of the owner of such land be unknown, this section requires certain publications to be made as a substitute for personal notice; after which it is the duty of the collector to proceed to collect the tax by distress in like manner as where a personal demand has been made. \nThe 13th section prescribes the duty of the collector, and the forms to be observed in the sale of land the taxes on which remain unpaid for one year. This section contains no reference to those which preceded it, but marks out the course of the collector in the specific case. It is therefore contended, and the argument has great weight, that if the requisites of this section be complied with, the sale is valid. This opinion is in conformity with the letter of the section; and it is conceded that the intent must be very clear which will justify a connexion of that section with those which precede it, so as to ingraft upon it those acts which must be performed by the collector before he can  distrain for taxes. But in this case, when we take the whole statute  together, such intent is believed to be sufficiently apparent. \nThere is, throughout the act, an obvious anxiety in the legislature to avoid coercive means of collection, unless such means should be necessary; and to give every owner of lands the most full information of the sum for which he was liable, and to afford him the most easy opportunity to pay it. Thus the accruing of the tax is to be advertised, and the times and places at which the collector will attend to receive it. A personal demand at the dwelling houses of those who have neglected to attend to this notice must then be made, a reasonable time before the collector can collect the tax by distress. Where lands are owned by non-residents whose  places of residence are known, this personal notice is still required; and where their residence is unknown, certain publications are substituted for and deemed equivalent to personal notice and demand. In each case, it is made the duty of the collector to proceed to collect the tax by distress and sale. \nFrom this view of the law it is inferred, not only that the legislature was anxious  to avoid coercive means of collection, but has also manifested a solicitude to collect the tax by distress and sale of personal property rather than by a sale of the land itself.That all the means of collection prescribed in the act must have been tried, and must have failed before a sale of the land can be made. The duty of the collector to make a personal demand from the resident owner of lands, and to make those publications which the law substitutes for a personal demand where the residence of the owner is unknown, does not depend on the fact that personal property is or is not on the land from which the tax may be levied by distress. It is his duty to proceed in the manner prescribed in the 9th and 11th sections in every case. After having so proceeded, it is his positive duty to levy the tax by distress, if property liable to distress can be found. If, notwithstanding the proceedings directed in the 9th and 11th sections, the tax shall remain one year unpaid, it is to be raised by a sale of the land. It appears to the Court that the 13th section pre-supposes every thing enjoined in the 9th and 11th sections to have been performed, and that the validity of the   sale of land owned by a non-resident, made by the collector for the non-payment of taxes must depend not only on his having made the publications required in the 13th section, but on his having made those also which are required in the 11th section. Those publications not having been made in this case, it is the opinion of the majority of this Court that the sale is void, and that the judge of the District Court committed no error in giving this instruction to the jury. The judgmment is affirmed with costs. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. after stating the case, delivered the opinion of the Court as follows: \nThe first exception is to the admission of the grant set up by the Defendants in bar of the Plaintiff's title. This objection alleges the grant to be absolutely  void for three causes. \nThe first is, \nThat no grant could lawfully issue for the quantity of land expressed in this patent. \n If this objection be well founded, it will be conclusive. Its correctness depends on the laws of the state of North Carolina. \nThe act of 1777, ch. 1, opens the land office of the state, and directs an entry-taker to be appointed in each county, to receive entries made, by the citizens, of its vacant lands. The third section of this act contains a proviso that no person shall be entitled to claim a greater quartity of land than 640 acres, where the survey shall be bounded by vacant land, nor more than  1,000 acres between lines of land already surveyed for other persons. \nThe fourth section fixes the price of land thus to be entered at 50 shillings per hundred acres; after which follows a proviso that if any person shall claim more than 640 acres for himself, and 100 acres for his wife and each of his children, he shall pay for every hundred acres exceeding that quantity, five pounds, and so in proportion. But this permission to take up more than the specified quantity of lands at five pounds for every hundred acres, does not extend  to Washington county. \nIn June, 1781, ch. 7, the land office was closed, and further entries for lands, prohibited. \nIn April, 1783, ch. 2, the land office was again opened, and the price of lands fixed at ten pounds for each hundred acres. The ninth section of this act authorizes any citizen to enter, with the entry-taker to be appointed by the assembly, \"a claim for any lands, provided such claim does not exceed 5,000 acres.\" \nThis act limits the amount for which an entry might be made. But the same person is not, in this act, forbidden to make different entries; and entries were transferrable. No prohibition appears in the act, which should prevent the assignee of several entries, or the person who has made several entries, from uniting them in one survey and patent. The Court does not perceive, in reason or in the directions of the law respecting surveys, any thing which should restrain a surveyor from including several entries in the same survey. The form of surveys, which is prescribed by law, if that rule should be considered as applicable to surveys made on several entries united, may be observed, and, in this case, is observed, notwithstanding the union of different entries. \n In April, 1784, ch. 19, the legislature again took up this subject, and, after reciting that it had been found impracticable to survey most of the entries of lands made adjoining the large swamps in the eastern parts of the state agreeable to the manner directed by the acts then in force, without putting the makers thereof  to great and unnecessary expenses, empowered surveyors in the eastern parts of the state to survey for any person or persons, his or their entries of lands in or adjoining any of the great swamps in one entire survey. \nThe third section enacts, \"that where two or more persons shall have entered or may hereafter enter lands jointly, or where two or more persons agree to have their entries surveyed jointly in one or more surveys, the surveyor is empowered and required to survey the same accordingly in one entire survey; and the persons so agreeing to have their entries surveyed, or entering lands jointly, shall hold the same as tenants in common, and not as joint-tenants.\" \nThe fourth section secures the same fees to the surveyor and secretary as they would have been entitled to claim, had the entries been surveyed and granted separately. \nAs all laws on  the same subject are to be taken together, it is argued that this act shows the sense of the legislature respecting the mode of surveying entries, and must be taken into view in expounding the various statutes on that subject. It evinces unequivocally the legislative opinion that, as the law stood previous to its passage, a joint survey of two entries belonging to the same person or to different persons, could not be made. The right to join different entries in the same survey, then, must depend on this act. \nThe first and second sections of this act relate exclusively to entries made in or adjoining to the great swamps in the eastern parts of the state. \nThe third section is applicable to the whole country, but provides only for the case of entries made by two or more persons. It is, therefore, contended that the Court cannot extend the provision to the case of distinct entries belonging to the same person. \nFor this distinction it is impossible to conceive a reason. No motive can be imagined for allowing two or more persons to unite their entries in one survey, which does not apply with at least as much force for allowing  a single person to unite his entries adjoining  each other in one survey. It appears to the Court that the case comes completely within the spirit, and is not opposed by the letter of the law. The case provided for is, \"where two or more persons agree to have their entries surveyed jointly,\" &c. Now this agreement does not prevent the subsequent assignment of the entries to one of the parties; and the assignment is itself the agreement of the assignor that the assignee may survey the the entries jointly or separately, at his election. The Court is of opinion that, under a sound construction of this law, entries which might be joined in one survey, if remaining the property of two or more persons, may be so joined, though they become the property of a single person. \nThe second objection to the admission of the grant is, that the amount of the consideration originally expressed on its face appears to have been torn out. \nThe grant stands thus: \"for and in consideration of -- pounds,\" &c. \nThe Court is unanimously and clearly of opinion that there is nothing in this objection. It is not suggested, nor is there any reason to believe, that the words were obliterated for fraudulent purposes, or for the purpose of avoiding the grant.  They may have been taken out by some accident; and there is no difficulty in supplying the lost words. The consideration paid was ten pounds for each hundred acres; and there can be no doubt that the word \"ten\" is the word which is obliterated. Had the whole grant been lost, a copy might have been given in evidence; and it would be strange if the original should be excluded because a word which could not be mistaken, and which, indeed,  is not essential to the validity of the grant, has become illegible. \nThe third exception is, that the grant, on its face, appears fraudulent, because it has issued for 25,060 acres of land, although the lines which circumscribe it, and which are recited in it, comprehend upwards of 50,000 acres. \nWithout inquiring into the effect of a grant conveying  50,000 acres of land under a sale of 25,000 acres, it will be sufficient to observe that, in this case, the surplus land is comprehended in prior entries, and is consequently not conveyed by this grant. This exception, therefore, is inapplicable to the case. \nIt is the opinion of this Court that there was no error in permitting the grant under which the Defendant claimed title,  to go to the jury. \nThe remaining exceptions were taken after the grant was before the jury, and are for causes not apparent on its face. They present one general question of great importance to land holders in the state of Tennessee. It is this: Is it, in any, and, if in any, in what, cases, allowable, in an ejectment, to impeach a grant from the state, for causes anterior to its being issued? \nIn cases depending on the statutes of a state, and more especially in those respecting titles to land, this Court adopts the construction of the state where that construction is settled, and can be ascertained. But it is not understood that the Courts of Tennessee have decided any other point bearing on the subject than this, that under their statutes declaring an elder grant founded on a younger entry to be void, the priority of entries is examinable at law; and that a junior patent founded on a prior entry shall prevail in an ejectment against a senior patent founded on a junior entry. The question whether there are other cases in which a party may, at law, go beyond the grant for the purpose of avoiding it, remains undecided. \nThe laws for the sale of public lands provide many guards  to secure the regularity of grants, to protect the incipient rights of individuals, and also to protect the state from imposition. Officers are appointed to superintend the business; and rules are framed prescribing their duty. These rules are, in general, directory; and when all the proceedings are completed by a patent issued by the authority of the state, a compliance with these rules is pre-supposed. That every prerequisite has been performed, is an inference properly deducible, and which every man has a right to draw from the existence of the grant itself. It would, therefore, be extremely  unreasonable to avoid a grant in any Court for irregularities in the conduct of those who are appointed by the government to supervise the progressive course of a title from its commencement to its consummation in a patent. But there are some things so essential to the validity of the contract, that the great principles of justice and of law would be violated, did there not exist some tribunal to which an injured party might appeal, and in which the means by which an elder title was acquired, might be examined. In general, a Court of equity appears to be a tribunal better adapted  to this object than a Court of law. On an ejectment, the pleadings give no notice of those latent defects of which the party means to avail himself; and, should he be allowed to use them, the holder of the elder grant might often be surprized. But in equity, the specific points must be brought into view; the various circumstances connected with those points are considered; and all the testimony respecting them may be laid before the Court. The defects in the title are the particular objects of investigation; and the decision of a Court in the last resort upon them is decisive. The Court may, on a view of the whole case, annex equitable conditions to its decree, or order what may be reasonable, without absolutely avoiding a whole grant. In the general, then, a Court of equity is the more eligible tribunal for these questions; and they ought to be excluded from a Court of law. But there are cases in which a grant is absolutely void; as where the state has no title to the thing granted; or where the officer had no authority to issue the grant. In such cases, the validity of the grant is necessarily examinable at law. \nHaving premised these general principles, the Court will proceed  to consider the exceptions to the opinion of the Circuit Court in this case, and the testimony rejected by that opinion. \nThe case does not present distinct exceptions to be considered separately, but a single exception to a single opinion, rejecting the whole testimony offered by the Plaintiff. The Plaintiff offered to prove that no entries were ever made authorizing the issuing of the warrants on which the grant to Sevier was founded, and that the warrants themselves were forgeries. He also offered  to prove that, at the time of the cession to congress of the territory in which these lands lie, the warrants did not exist, nor were there any locations in the office from which they purport to have issued, to justify their issuing. \nIn the state of North Carolina itself, the want of an entry would seem to be a defect sufficient to render a grant null. \nThe act of 1777, which opens the land office and directs the appointment of an officer in each county, denominated an entry-taker, to receive entries of all vacant lands in his county, directs the entry taker, if the lands shall not be claimed by some other person within three months, to deliver to the party a copy of the  entry with its proper number, and an order to the county surveyor to survey the same. This order is called a warrant. \nThe ninth section of the act then declares, \"that every right, &c. by any person or persons set up or pretended to any of the before mentioned lands, which shall not be obtained in manner by this act directed, or by purchase or inheritance from some person or persons becoming proprietors by virtue thereof, or which shall be obtained in fraud, evasion or elusion of the provisions and restrictions thereof, shall be deemed and are hereby declared utterly void.\" \nThe act of 1783, which agains opens the land office, appoints an entry-taker for the western district, and prescribes rules for making entries in his office, and for granting warrants similar to those which had been framed for the government  of the entry-takers of the respective counties. \nIn the year 1789 North Carolina ceded to congress the territory in which the lands lie for which Sevier's grant was made, reserving, however, all existing rights under the state, which were to be perfected according to the laws of North Carolina. This cession was accepted by congress. \nSevier's survey is dated  on the 26th day of May, 1795. \n The lands for which the warrants were granted, by virtue of which the survey was made, lie within that district of country for which the land office was opened by the act of 1777. Had the survey been made on the land originally claimed by these warrants, it must have been a case directly within the ninth section of the act; and the right is declared by that section to be utterly void. But the survey was made on different lands by virtue of an act which empowers the surveyor so to do in all cases of entries on lands previously appropriated. This clause in the law, however, does not authorize a survey where no entry has been made; and such survey would also come completely within the provision of the ninth section. In such case, there is no power in the agents of the state to make the grant; and a grant so obtained is declared to be void. \nThis subject is placed in a very strong point of view by considering it in connexion with the cession made to the United States. After that cession, the state of North Carolina had no power to sell an acre of land within the ceded territory. No right could be acquired under the laws of that state. But  the right was reserved to perfect incipient titles. The fact that this title accrued before the cession does not appear on the face of the grant. It is, of course, open to examination. The survey was not made until May, 1795, many years posterior to the cession. It purports, however, to have been made by virtue of certain warrants founded on entries which may have been made before the cession. But if these warrants had no existence at the time of the cession, if there were no entries to justify them, what right could this grantee have had at the time of the cession? The Court can perceive none; and if none existed, the grant is void for want of power in the state of North Carolina to make it. \nIf, as the Plaintiff offered to prove the entries were never made, and the warrants were forgeries, then no right accrued under the act of 1777; no purchase of the land was made from the state; and, independent of the act of cession to the United States, the grant is void by the express words of the law. \nIf entries were made in the county of Washington,  but no commencement of right had taken place in the ceded territory previous to the cession, so as to bring the party within  the reservation contained in the act of cession, then the grant must be void, there being no authority in the grantor to make it. In rejecting testimony to these points, the Circuit Court erred; and their judgment must be reversed, and the cause remanded for a new trial. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. delivered the opinion of the Court as follows: \nThe ship Richmond, an American registered vessel, sailed from Philadelphia in ballast, in December, 1809, with a clearance for New York, but proceeded to Portsmouth in Great Britain, where she arrived in 1810. She made two voyages to Amelia island in East Florida, during the second of which she was seized in St. Mary's river by gun-boat No. 62, January 14th, 1812, and libelled in the district Court of Georgia, for violating the act passed the 28th of June, 1809, for amending the nonintercourse  law. The Richmond was condemned in both the district and circuit Courts, and from their sentence the Claimants have appealed to this Court. \nThe Claimants contend, \n1. That the vessel was not liable to forfeiture. \n2. That the seizure was made within the territory of Spain, and that all proceedings founded thereon are void. \nWhen the Richmond sailed from Philadelphia, commercial intercourse between the ports of Great Britain, and those of the United States, was permitted. But the act of  the 28th of June, 1809, vol. 10, p. 13, enacts, that \"no ship or vessel bound to a foreign port or place with which commercial intercourse has been or may be thus permitted, except, &c. shall be allowed to depart unless the owner or owners, consignee or factor of such ship or vessel shall, with the master, have given bond, with one or more sureties, to the United States, in a sum double the value of the vessel and cargo, that the vessel shall not proceed to any port or place with which commercial intercourse is not thus permitted, nor be directly nor indirectly engaged  during the voyage in any trade with such port or place.\" If a vessel shall depart without having given such bond, the vessel with her cargo are declared to be wholly forfeited. \nIt is contended that this act does not apply to vessels departing from the United States to a permitted port, in ballast. \nThe act is certainly not expressed with all the precision that could be wished. The case contemplated by the legislature most probably was that of a vessel sailing with a cargo; but there is reason to believe that a vessel departing in ballast also, was within the meaning and intent of the law. The bond is provided  to prevent a breach of the existing restrictive laws by a vessel clearing out or sailing for a permitted port, but actually proceeding to a prohibited port. This might be done by a vessel with or without a cargo; and the condition of the bond would be violated, in its letter as well as spirit, by  the vessels sailing without the cargo to a prohibited port. The Court understands the law, then, directing a bond to be given in double the value of the vessel and cargo, to apply to the cargo if there be a cargo, but to the vessel only if there be no cargo. \nThe seizure of an American vessel within the territorial jurisdiction of a foreign power, is certainly an offence against that power, which must be adjusted between the two governments. This Court can take no cognizance of it; and the majority of the Court is of opinion that the law does not connect that trespass, if it be one, with the subsequent seizure by the civil authority, under the process of the District Court, so as to annul the proceedings of that Court against the vessel. One judge, who does not concur in this opinion, considers the testimony as sufficient to prove that the Richmond, when first seized by the  gun-boat, was within the jurisdictional limits of the United States. \nThe sentence is affirmed with costs. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. delivered the opinion of the Court as follows: \nNanning J. Visscher, an American citizen, administrator of general Garret Fisher, deceased, went to Great Britain in the year 1811, for the purpose of collecting the estate of the said general Garret Fisher in that country, and remitting it to the United States for those who were entitled to it by law. Immediately after the repeal of the orders in council, the said Nanning J. Visscher invested a considerable portion of the funds of the said estate in British merchandize, and engaged the brig  Mary, a vessel having an American register, to convey it to the United States. The Mary was engaged at Woolwich and came round to Bristol, where her cargo was procured. She began to take it on board on the 3d of August, 1812; and on the 15th of August, having completed her lading, she sailed from the port of Bristol for the United States, having on board a British license dated on the 8th of July, 1812. While prosecuting her voyage she encountered such severe weather, and received such damage, as to be under the necessity, in order to avoid the danger of foundering at sea, to put into the port of Waterford, in Ireland, for the purpose of being repaired. While lying in Waterford  and undergoing repairs, she was also detained by a general embargo, imposed on all American vessels in the ports of Great Britain. The Mary, being released by the high Court of admiralty, and her repairs being completed, her license was renewed on the 27th of March, 1813, and she sailed from Waterford, for Newport, in Rhode Island, on the 7th of the following month. On the 22d day of April she was captured by the American privateer Paul Jones, captain Taylor, and brought into Newport, Rhode  Island, where the vessel and cargo were libelled as enemy property. No claim being put in for the vessel, she was condemned; but the cargo, which was claimed by Nanning J. Visscher, for himself and the other heirs of general Fisher, was restored. From this sentence the captors appealed. In the Circuit Court the sentence of the District Court was reversed and the cargo was condemned. From this sentence of condemnation an appeal was taken to this Court, and the case was argued at the last term. \nThe president's instructions of the 28th of August, 1812, were then for the first time relied on, but it was not admitted on the part of the captors, that these instructions were known to captain Taylor. For the ascertainment of this important fact, it was necessary to admit further proof. \nIt being uncertain how this fact would appear, the Court also directed further proof on other points which were involved in some degree of doubt. \nIt is now proved incontestibly that the instructions of the 28th of August were on board the Paul Jones at the time of the capture. These additional instructions direct \"the public and private armed vessels of the United States not to intercept any vessels  belonging to citizens of the United States, coming from British ports to the United States, laden with British merchandize, in consequence of the alleged repeal of the British orders in council.\" \nThe effect and operation of these instructions were settled in the case of the Thomas Gibbons. The only enquiry to be made in this case is, do they apply to the Mary? \n To sustain their application it must appear, \n1. That the Mary belonged, at the time of capture, to a citizen of the United States. \n2. That she was coming from a British port to the United States, laden with British merchandize, in consequence of the alleged repeal of the British orders in council. \n1. Was the Mary the property of an American citizen? \nShe carried an American register, which represented her as the property of James B. Kennedy, a citizen of the United States. \nShe sailed from Charleston, in South Carolina, as an American vessel, commanded by captain Stafford, a native American citizen, who continued to command her until her capture, and who always supposed her to be the property of Mr. Kennedy. Her first license, which was granted before intelligence of the declaration of war had reached England,  was granted to her as an American vessel; and in the renewed license she was still considered as an American vessel. \nIn opposition of this testimony is the deposition of one of the mariners, who supposes one Smith, a British subject, to be a part owner of the Mary, because the captain so informed him, and because Smith ordered the people about as much as Mr. Kennedy or the captain. \nSo much of this deposition as refers to the information of the captain, is not very probable; and if true, must either discredit the  captain's testimony, or be considered as a communication made for some particular purpose while the vessel was in a British port. That part of it which states Smith to have ordered the people about as much as Mr. Kennedy, is not very intelligible, since Mr. Kennedy, the owner of the Mary, does not appear to have been on board the vessel, or at Bristol, or at Waterford. \n Had a claim been put in for the Mary, this testimony, opposed to the proof furnished by the register and the deposition of the captain, would have been hight indeed. \nBut no claim was filed for the Mary, and she was consequently, according to the course of the Court of admiralty, condemned  as enemy property. \nThis sentence is now relied on by the captors as establishing the fact. The argument has been pressed with great earnestness, and is certainly entitled to serious consideration. \nThe conclusive effect which the captors would give to this sentence is founded in part on reasoning which is technical, and in part on the operation which the fact itself ought to have on the human mind in producing a conviction that the claim was not filed because it could not be sustained. \nA sentence of a Court of admiralty is said not only to bind the subject matter on which it is pronounced, but to prove conclusively the facts which it assorts. This principle has been maintained in the Courts of England, particularly as applying to cases of insurance, and has been adopted by this Court in the case of Croudson and others v. Leonard. Its application to the case at bar will be considered. \nThe Mary was not condemned by the sentence of a foreign Court of admiralty in a case prior to and distinct from that in which the cargo was libelled. She was comprehended in the same libel with the cargo. \nThe whole subject tormed but one cause, and the whole came on together before the same judge.  By the rules of the Court the condemnation of the vessel was inevitable; not because in fact she was British property, but because the fact was charged and was not repelled by the owner, he having failed to appear and to put in his claim. The judge could not close his eyes on this circumstance; nor could he, in common justice, subject the cargo, which was claimed according to the course of the Court, to the liabilities incurred by being  imported in a hostile bottom. In the same cause, a fact, not controverted by one party, who does not appear, and therefore as to him taken for confessed, ought not, on that implied admission, to be brought to bear upon another who does appear, does controvert, and does disprove it. The owners of the cargo had no control over the owner of the vessel. Visscher could not force Kennedy to file a claim; nor could Visscher file a claim for him. \nThe evidence that the vessel was American property could not be looked into so far as respected the rights of Kennedy, because he was in contumacy; but Visscher was not in contumacy. He was not culpable for, and therefore ought not to suffer for, the contumacy of Kennedy. That contumacy, in reason  and in justice, ought not to have prevented the District Court from looking into the testimony concerning proprietary interest in the vessel, so far as the rights of other Claimants depended on that interest. Nor is the Court informed of a legal principle which should have restrained the district judge from looking into this testimony. If we reason from analogy we find no principle adopted by the Courts of law or equity, which in its application to Courts of admiralty, would seem to subject one Claimant to injury from the contumacy of another. \nA judgment against one Defendant for the want of a plea, or a decree against one Defendant for want of an answer, does not prevent any other Defendant from contesting, so far as respects himself, the very fact which is admitted by the absent party. \nNo reason is perceived why a different rule should prevail in a Court of admiralty, nor is the Court informed of any case in which a different rule has been established. \nIf the District Court was not precluded by the nonclaim of the owner of the vessel from examining the fact of ownership, so far as that fact could affect the cargo, it will not be contended that an Appellate Court may not likewise  examine it. \nThis case is to be distinguished from those which  have been decided on policies of insurance, not only by the circumstance that the cause respecting the vessel and the cargo came on at the same time before the same Court, but by other differences in reason and in law, which appear to be essential. \nThe decisions of a Court of exclusive jurisdiction are necessarily conclusive on ali other Courts, because the subject matter is not examinable in them. With respect to itself no reason is perceived for yielding to them a further conclusiveness than is allowed to the judgments and decrees of Courts of common law and equity. They bind the subject matter as between parties and privies. \nThe whole world, it is said, are parties in an admiralty cause; and, therefore, the whole world is bound by the decision. The reason on which this dictum stands will determine its extent. Every person may make himself a party, and appeal from the sentence; but notice of the controversy is necessary in order to become a party, and it is a principle of natural justice, of universal obligation, that before the rights of an individual be bound by a judicial sentence, he shall have notice,  either actual or implied, of the proceedings against him. Where these proceedings are against the person, notice is served personally, or by publication; where they are in rem, notice is served upon the thing itself. This is necessarily notice to all those who have any interest in the thing, and is reasonable because it is necessary, and because it is the part of common prudence for all those who have any interest in it, to guard that interest by persons who are in a situation to protect it. Every person, therefore, who could assert any title to the Mary, has constructive notice of her seizure, and may fairly be considered as a party to the libel. But those who have no interest in the vessel which could be asserted in the Court of admiralty, have no notice of her seizure, and can, on no principle of justice or reason, be considered as parties in the cause so far as respects the vessel. When such person is brought before a Court in which  the fact is examinable, no sufficient reason is perceived for precluding him from reexamining it.The judgment of a Court of common law, or the decree of a Court of equity, would, under such  circumstances, be re-examinable  in a Court of common law, or a Court of equity; and no reason is discerned why the sentence of a Court of admiralty, under the same circumstances, should not be re-examinable in a Court of admiralty. \nThis reasoning is not at variance with the decision that the sentence of a foreign Court of admiralty, condemning a vessel or cargo as enemy property, is conclusive in an action against the underwriters on a policy in which the property is warranted to be neutral. \nIt is not at variance with that decision, because the question of prize is one of which Courts of law have no direct cognizance, and because the owners of the vessel and cargo were parties to the libel against them. \nIn the case of Croudson and al. v. Leonard, two judges expressed their opinions. Those who were silent, but who concurred in the opinion of the Court, undoubtedly acquiesced in the reasons assigned by those judges. On the conclusiveness of a foreign sentence, judge Johnson said, \"The doctrine appears to me to rest on three very obvious considerations: the propriety of leaving the cognizance of prize questions exclusively to Courts of prize jurisdiction; the very great inconvenience, amounting nearly to an impossibility,  of fully investigating such cases in a Court of common law; and the impropriety of revising the decisions of the maritime Courts of other nations, whose jurisdiction is co-ordinate throughout the world.\" \nThese reasons undoubtedly support the opinion founded on them; but it will be readily perceived that they would not apply to the case before the Court. \nAfter stating the conclusiveness of the sentence of Courts of exclusive jurisdiction, judge Washington said, This rule, when applied to the sentences of Courts of admiralty, whether foreign or domestic, produces the doctrine which I am now considering, upon the ground that all the world are parties in an admiralty cause. The proceedings are in rem; but any person having an interest in the property may interpose a claim, or may prosecute an appeal from the sentence.  The insured is emphatically a party, and in every instance has an opportunity to controvert the alleged grounds of condemnation, by proving, if he can, the neutrality of the property. The master is his immediate agent, and he is also bound to act for the benefit of all concerned; so that in this respect he also represents the insurer.\" \nThe very foundation  of this opinion that the insured is bound by the sentence of condemnation is, that he was in law a party to the suit, and had a full opportunity to assert his rights. This decision cannot be applicable to one in which the person to be affected by the sentence of condemnation was not, and could not be a party to it. \nIf the sentence condemning the Mary did not technically preclude the owners of the cargo from asserting in the Court of admiralty her American character, the weight of the evidence on that point is to be fairly estimated. \nIn support of her American character, the documentary evidence is complete and unequivocal; and the corroborative testimony is calculated to strengthen a belief in the verity of the register. In support of her hostile character the omission of the owner to file his claim is chiefly relied on. The importance of this circumstance is not to be controverted. Its weight, however, is much diminished by the consideration that the case affords no reasonable ground for believing that the owner could have been restrained from making his claim by the apprehension of failing to support it. There is no testimony, and there is no reason to suspect that any testimony  was attainable which could have successfully opposed the register. This consideration gives plausibility to the argument that the worthlessness of the vessel, the bottomry bond with which she was charged, the expectation that the condemnation would relieve him from that debt, might be the motives for not resisting that condemnation. It is possible, too, that in point of fact, he might not have actnal notice of the proceedings. This is not to be prosumed, and is not to benefit the owner; but it is possible; and may be taken into the  account in estimating the effect of this negligence on persons who are not culpable for it. \nIt has been said that the owners of the cargo, and that Nanning J. Visscher, who held the bottomry bond, ought to have filed a claim. But the interest under the bottomry bond could not have been asserted; nor had the owners of the cargo any right to the vessel.Had they known that they were to be, in any manner, affected by the character of the vessel, they might, and most probably would have exerted themselves to have brought forward Kennedy as a Claimant, or to have accounted for his silence; but in the District Court the president's instructions  were unknown, and their effect unthought of. The owners of the cargo, therefore, neither troubled themselves about the vessel, nor attempted to account for the claim to her not being filed. When afterwards in this Court the bearing of those instructions was discovered, and further proof was directed; that direction did not extend to proof which might account for the failure of Kennedy to assert his title to the vessel. This may excuse the Claimants for not producing testimony to that point. \nUpon the best consideration we have been able to bestow upon the subject, the Court is of opinion that the Mary, in this claim, must be deemed to have been the property of an American citizen. \n2. Did she sail from a British port in consequence of the alleged repeal of the British orders in council? \nThat the voyage in its inception was produced by the opinion that the repeal of the British orders in council would terminate the differences between the two nations, is too clear for controversy. Had the Mary proceeded directly from Bristol to her port of destination in the United States, the counsel for the captors would not contend that it was not a voyage described by the instructions of the  28th of August. But the delay in the port of Waterford, it is said, has broken the continuity of the voyage, and in deciding on its character, the departure from Waterford, not the departure  from Bristol, must be considered as its commencement, \n It is not denied that, in a commercial sense, this is one continued voyage, to take its date at the departure of the Mary from Bristol. But it is urged that where the rights of war intervene, a different construction must take place. \nThe Court does not accede to the correctness of this distinction. \nThe Mary was forced into Waterford by irresistible necessity, and was detained there by the operation of causes she could not control. Had her departure been from a neutral port, and she had been thus forced, during the voyage, into a hostile port, would it be alleged that she had incurred the liabilities of a vessel sailing from a port of the enemy? It is believed that this allegation could not be sustained, and that it would not be made. But as between the captors and the captured in this case, the voyage was, in its commencement, as innocent as if made from a friendly port. The detention at Waterford, then, can  no more affect the character of the voyage in the one case than in the other. \nBut it is said that the owners of the cargo ought to have applied to the American government for a license to bring it into the United States. \nSo far as respects the captors, there could be no necessity for a license, since the vessel was already protected from them by the orders of the president under which they sailed; and for any other purpose a license was unnecessary, provided the importation, if the voyage had been immediate and direct from Bristol, could be justified. \nIf a cargo be innocently put on board in an enemy country, if at that time it be lawful to import it into the United States, the importation cannot be rendered unlawful by a detention occasioned, in the course of the voyage, either by the perils of the sea, or the act of the enemy, unless this effect be produced by some positive act of the legislature. \n It has been contended that the act for the remission of fines, penalties and forfeitures in certain cases, passed on the 2d of January, 1813, controls the instructions given by the president on the 28th of August, 1812, and limits the operation of those instructions to the  specific cases described by congress; and as that act protects only those importations which were made previous to its passage, it has been argued that the president's instructions can go no further. \nIndependent of the war, all British merchandize was excluded from the ports of the United States by a systim of policy supposed to have been founded on the British orders in council. \nThe secretary of the treasury had power to remit forfeitures incurred under these laws. When the orders in council were repealed, large shipments were made of British merchandize by American merchants in the full confidence that the American restrictive system would fall with the orders which produced it. This opinion and the proceedings in consequence of it, were thought excusable both by the executive and legislative departments of government. The president instructed the cruizers of the United States not to molest vessels of this description, \"but on the contrary, to give aid and assistance to the same; in order that such vessels and their cargoes may be dealt with on their arrival, as may be decided by the competent authorities.\" \nThese instructions act solely on the rights of war, and regulate the  conduct of the public and private armed vessels of the United States. \nThe legislature passed an act on the 2d of January, 1813, taking away the discretion of the secretary of the treasury, and directing him absolutely to remit all penalties and forfeitures incurred by violating the non-intercourse laws, in all cases of importation made before the passage of the act, in American vessels, provided the goods were the property of citizens of the United States, and the vessels departed from any port of the United Kingdom of Great Britain and Ireland between the 23d day of June and the 15th of September then preceding. \n This act does not contemplate the conduct of captors, or the rights of war. Its sole object is to remit certain penalties already incurred by a violation of municipal law. The legislature does not appear to have had in view the instructions given by the president to the armed vessels of the United States, much less to have intended to control those instructions. \nBut, in effecting these different objects, the executive and the legislature were impelled by the same motive -- the peculiar hardship of exposing the citizens of the United States in such a case to  the penalties either of war, or of municipal law. The one intended to protect from capture, the other from forfeiture, property which had been shipped in the reasonable confidence that peace and commercial intercourse between the two countries were the fruits of the repeal of the British orders in council. The president recognized the principle, but left the time within it should operate, to be decided by the armed vessels and by the Courts, according to the circumstances of each case. The legislature prescribed certain limits within which it should operate. This Court, in construing the less explicit instructions of the president, with respect to the departure of a vessel from a British port, has respected the more explicit language of the legislature on the same subject.But the instructions of the president relate only to the departure of the vessel. They do not extend to the time of its arrival. In this respect there is nothing to be explained. Consequently the act of congress can furnish no aid in their construction. That the instructions were intended to protect from capture all vessels which had sailed in that confidence which was inspired by the repeal of the British  orders in council, however the voyage might be protracted, is apparent from their language, and from the fact that they continued to be delivered to the armed vessels of the United States after the passage of the act of the 2d of January, 1813. \nIt is the unanimous opinion of the Court that the Mary was, at the time of her capture, protected by the instructions under which the captor sailed. \nThis opinion renders all inquiry into the character of the cargo unnecessary. \n The counsel for the captors have  claimed their costs and expenses, on the ground that there was probable cause of capture. \nThis claim is sustained by the Court. Further proof has been required, and the lateness of the period at which the Mary was found on the ocean, justified a suspicion that her case was not one to which the instructions of the president extended. \nThe sentence of the Circuit Court condemning the cargo of the Mary is reversed, and the cause is remanded to that Court with directions to dismiss the libel so far as respects the cargo, and to restore the same to the Claimants, and to allow the captors their reasonable sosts and expenses. \n \n\n ", " \nOpinion \n\n \n \n MARSHALL, Ch. J. delivered the opinion of the Court as follows: \nThis is a writ of error to a judgment rendered in the Circuit Court of the United States for the district of Kentucky, in an ejectment by the Plaintiffs in error, against the Defendants. \n At the trial of the cause, the Plaintiffs produced and read in evidence, a patent from the commonwealth of Virginia, granting certain lands therein described lying in the county  of Nelson, in the now state of Kentucky, to John May, John Banister, Kennon Jones, Thomas Shore and Christopher M'Conico. He then offered in evidence the last will and testament of John May, deceased, which contained this clause, \"I give and devise my land to my executors, herein after named, and to the survivors and survivor of such of them as may act, and their heirs, for the purpose of selling as much thereof as will pay all my debts.\" \nThis will was proved and admitted to record according to the laws of Virginia, while Kentucky was a part of that state, and is duly certified by the proper authority. The Plaintiff, Ann Lewis, (wife of the other Plaintiff, Thomas Lewis,) who was an executrix named in the will of the said John May, alone qualified as executrix, and took upon herself the burthen of executing the said will; but she did not qualify, and did not obtain her letters testamentary until after Kentucky had become an independent state. \nThe counsel for the Defendants, objected to the admissibility of the will and certificate thereto subjoined, because the said Ann had only qualified, and sued out letters testamentary in the state of Virginia, and not in the state of Kentucky  where the land lies. The Court sustained the objection, and the will was not permitted to go in evidence to the jury. To this opinion an exception was taken. There was also a second exception taken on the same rojection of evidence, which depends entirely on the correctness of the first opinion, and therefore need not be particularly stated. \nIt has been decided in this Court that letters testamentary give to the executor no authority to sue for the personal estate of the testator out of the jurisdiction of the power by which those letters are granted. But this decision has never been understood to extend to a suit for lands devised to an executor. In such case the executor sues as devisee. His right is derived from the will, and the letters testamentary do not give the title.The executors are trustees for the purposes of the will.  This will may be considered as requiring that the executors shall act to enable themselves to take under the devise to them; but when the condition is performed, those who have performed it, take under the will. That the executrix took upon herself that character after the separation of Kentucky from Virginia, is of no consequence. When  she did take it upon herself, the condition on which the devise was made, was performed, and she took as devisee under the will; and the act consummating her title, had relation to the time of its commencement, which was before the separation of the two states. Were it even necessary, which is not admitted, to record this will in Kentucky, that objection was not made to the instrument, and therefore the Court cannot suppose it to exist. The will was rejected because the executrix had not qualified in Kentucky, and this objection is not deemed a valid one. \nAn objection was also taken to a deed, which was offered in evidence, on the ground of an alleged variance between it, as proof, and the allegations in the declaration.The deed was not permitted to go in evidence to the jury; and to this opinion, also, an exception was taken. \nThe variance is not pointed out. If the objection to the deed is, that it conveys only an undivided interest, while the declaration claims the whole tract, the objection ought not to have been sustained; but on the propriety of rejecting the deed it is not necessary to give an opinion, since the judgment must be reversed on the first point. \nJudgment reversed,  and the cause remanded with directions to grant a new trial and to permit the will to be read in evidence. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. delivered the opinion of the Court as follows: \nThis is an appeal from a decree made in the Circuit Court of the United States for the district of Rhode Island. \nThe Appellee filed his bill in that Court, praying that the Appellants and James Munro, Samuel Snow, and Benjamin Munro, late merchants trading under the firm of Munro, Snow and Munro, might be decreed to pay him the amount of a bill of exchange drawn in his favor at Batavia, by Bonjamin Munro, at nine months sight, on Messrs. Dantel Crommelin and sons, merchants, Amsterdam, for the sum of 21,488 guilders on account of advances made by the said Riemsdyk for the use of the Defendants in the Circuit Court. \nIn the year 1805, John Innes Clark and Munro, Snow and Munro, being joint owners of the ship Patterson in equal moieties, projected a voyage to Batavia, and appointed Benjamin Munro, one of the house of Munro, Snow and  Munro, supercargo. The ship carried out some goods on account of the owners, and other goods on account of different persons, the whole to be invested in a return cargo, on the profits of which the ship owners were to receive 45 per cent. instead of freight. \nThe bill charges that the supercargo was empowered verbally, in case of a deficiency of funds at Batavia, to load the ship with a return cargo, to take up money on the joint account of the owners, and, if necessary, to draw bills of exchange therefor on Messrs. Daniel Crommelin and sons, of Amsterdam, or on the owners. \nThe Patterson returned in the spring of 1806, with a cargo derived from the funds taken out in the outward voyage. \nIn March, 1806, the Patterson again sailed to Batavia on a voyage in all respects similar to the first. That part of the cargo which was furnished by the owners  consisted of wines and some other inconsiderable articles. Being unable to sell the wine in Batavia, the supercargo placed it for sale in the hands of Mr. Van Riemsdyk, the Defendant in error. Rather than return without filling the vessel for the owners, he drew bills on them to the amount of $2,389 89; and also drew on Messrs.  Crommelin and sons, merchants of Amsterdam, the bill for which this suit was brought. The bill is drawn by Benjamin Munro in his own name, but it contains a direction to charge the same to John Innes Clark and Munro, Snow and Munro, merchants of Providence, Rhode Island, North America. Of all these proceedings the owners were regularly informed by letter from Benjamin Munro, their supercargo. \nThe ship returned safe in March, 1807, and the proceeds of the cargo purchased by these bills were received by the owners. The bills drawn on the owners were duly paid; but no provision was made for that drawn on Daniel Crommelin and sons. \nIn May, 1807, the ship proceeded on a third voyage to Batavia with Benjamin Munro again supercargo. The owners appear to have relied on the wine placed in the hands of Van Riemsdyk on the second voyage, for producing the funds with which to procure their part of the return cargo. In June, 1807, Munro, Snow and Munro became insolvent; and, according to the laws of Rhode Island, obtained a certificate discharging them from the claims of their creditors, so far as such discharge could be affected by a law of the state.They had previously transferred, for  a valuable consideration, to John Innes Clark, all their interest in the ship, the return cargo and the accruing freight, the whole of which came into his possession on the return of the vessel. In December, 1807, the bill was presented to Messrs. Daniel Crommelin and sons, and protested for non-acceptance; and in October, 1808, it was protested for non-payment. Neither Clark nor Munro, Snow and Munro had any funds in the hands of Messrs. Daniel Crommelin and sons. \nJohn Innes Clark departed this life in November, 1808, having first made his last will and testament, of which the Plaintiffs in error are executors, who have  assets in their hands more than sufficient to satisly the claim of Van Riemsdyk. \nThe Defendants, Munro, Snow and Munro, in their answer, acknowledge all the material allegations of the bill, and expressly admit the authority of Benjamin Munro to draw the bill of exchange for which this suit was instituted. But they state their insolvency; and claim the benefit of the certificate of discharge granted them in pursuance of the laws of the state of Rhode Island. \nClark's executors deny that Benjamin Munro had any authority to take up money on credit for  any purpose whatever, or to draw bills of exchange; and assert that both the Complainant and Benjamin Munro knew that he had no such authority. They admit that if the money was taken up, it was for the joint use of the ship owners, but not on their credit. It was, they say, on the sole credit of Benjamin Munro. \nAt the hearing, the bill was dismissed as to Munro Snow and  Munro, and a decree was made against Clark's executors for the sum of $11,526 14, being the amount of the sum specified in the bill of exchange in the Complainant's bill specified, together with ten per cent. damages for the non-payment thereof, and interest upon both these sums. from the time when the said bill of exchange became due to the time of rendering the decree. \nFrom this decree the executors of the said John Innes Clark prayed an appeal to this Court. \nIn determining the extent of Clark's liability, the authority of Benjamin Munro to draw this bill becomes a question of material importance. If the answer of Munro, Snow and Munro, or their depositions taken in the cause, be admissible evidence against Clark's executors, this question is decided. But the admissibility of their answer, for this  purpose depends on the establishment of such a partnership as would authorize the draft of Munro as one of the partners; and the admissibility of their depositions depends on their being rendered disinterested witnesses by the certificate of discharge stated  in the proceedings. The Court, being satisfied on neither of these points, will exclude both the answer and deposititions, and consider the cause independently of them. \nThe letter of Benjamin Munro, written at Batavia, on the 3d of November, 1806, the day on which the bill in favor of Van Riemsdyk was drawn, and addressed to John Innes Clark, esquire, and to Mesars. Munro, Snow and Munro, contains these passages -- \"I have shipped on board the Patterson, on your account and risk, 505 Pecols Jacatia coffee, agreeably to invoice and bill of lading inclosed. I have drawn on you for the amount of $2,389 89, at ninety days sight, in favor of the several officers, &c. on board the Patterson, being the amount of money they had remaining over their priviliges, and which I have allowed them 15 per cent. advance thereon, and which drafts you will please to honor. A statement thereof I annex. I have also drawn on Messrs.  Daniel Crommelin and sons, merchants, Amsterdam, at nine months sight, in favor of the honorable William V.H. Van Riemsdyk of this place for the amount of 21,488 guilders on account of the Patterson, and which bills you will, no doubt, prepare for timely, as I have written those gentlemen.\" I leave all the Maderia wine in the hands of the honorable Mr. Reimsdyk, as it will not sell at all, I transmit his receipt for the same. I have received no advance on the wine.\" \nTo this letter was annexed a statement of the cargo of the Patterson, containing this item -- \"For owners of Patterson, 505 Pecols coffee.\" \nThere was, also the following memorandum: \n\"Memorandum of bills payable by you at ninety days sight viz: \nCaptain James Shaw, 1st, 2d, 3d, exchange, $748 75, &c. amounting in the whole to $2,389 89. \nAmount of bills drawn on Messrs. Daniel Crommelin and sons, merchants, Amsterdam, payablel by them  at nine months sight, in favor of the honorable Wm. V.H. Van Riemsdyk, viz: \nFour bills of exchange, 1st, 2d, 3d, 4th, for the amount of 21,488 guilders, equal to $8,595. I have allowed Mr. Riemsdyk on the money, 20 per cent. advance.\" \nIt is impossible to read this letter  and these memoranda without feeling a conviction that Benjamin Munro believed himself to be acting within the scope of his authority, and supposed that neither his bills on the owners, nor that on Crommelin and sons, would be considered by them as an extraordinary or unexpected transaction. He makes no apology for what had been done; gives no description of his difficulties and embarrassments at being disappointed in Batavia by not receiving the funds on which he relied for their return eargo, and of his doubts whether the measure to which he had resorted in consequence of that disappointment, would be approved by them. His language is the language of an agent acting within his powers on a contingency which had been foreseen and provided for. Having stated the bills drawn on them, he adds, in the usual style of letters of notice, \"which drafts you will please to honor.\" After stating the drafts on Crommelin and sons, he adds, \"which bills you will no doubt prepare for timely, as I have written those gentlemen.\" This is not the language of an agent conscious of having cranscended his powers. \nBut it will be admitted that the opinion of the agent on the extent of his powers will not  bind his principals. Let us, then enquire, so far as the testimony will inform us, into the opinion entertained on this point by the principals themselves. \nOn the 1st of November, 1806, at Batavia, Benjamin Munro stated an account current between himself and the owners of the ship Patterson, according to which the executors of John Innes Clark admit the settlement to have been made on the arrival of the vessel. That account debits the owners with $9090, the amount of invoice of 505 Pecols of coffee shipped on board the Patterson, on their account and risk, and with the 15 per  cent. advance on the bills drawn on them, and the 20 per cent. advanced on the bills drawn on Crommelin and sons, and credits them with the amount of those bills. The entry of the last mentioned bills is thus expressed, bills drawn on Messrs. Daniel Crommelin and sons, payable by you at nine months sight.\" \nThis account charges the owners with the disbursements of the vessel, which exceed the funds in the hands of Munro, other than those produced by the bills of exchange, so that the whole return cargo was purchased by these bills. Not a sentence escapes either of the owners, disapproving the  conduct of Munro, or expressing surprize at it. With that full knowledge of the whole transaction which is given by the letter of Munro, by the statement annexed to it, and by the account; with full information that the whole cargo was purchased with bills drawn on them and on a house in Amsterdam, to be paid by them, they receive the cargo and dispose of it to a very considerable profit. Can they now be permitted, in a Court of conscience to question the authority by which the bills were drawn. \nThe circumstances which prove their acquiescence in this authority are not yet exhausted. The Patterson sails on a third voyage to Batavia, and Benjamin Munro is again supercargo.  His conduct in drawing bills on the second voyage is not censured. He is not informed that this is a power not confided to him; that he has mistaken the extent of his authority; that his principals are not bound by his drafts. He goes again to India in the full belief that his conduct had met with perfect approbation, and that no intention existed to throw upon him the bills he had drawn on Amsterdam for monies with which he had purchased the second cargo. In this belief the proceeds of the wines,  placed in the hands of Van Riemsdyk, are drawn out of his hands and invested in another return cargo for the owners of the Patterson. \nHad there not been an entire acquiescence in the bill drawn by him on Crommelin and sons, a full admission on the part of his principals that they were responsible for that bill, and that no attempt would be made to throw it on him, can it be believed that the proceeds of these  wines would have been invested in a return cargo for the owners of the ship? Had Van Riemsdyk suspected that the owners would disclaim the authority of their supercargo to draw bills, and would fail to place funds in Amsterdam to meet them, and would endeavor to turn him over to that supercargo for payment, is it credible that he would have permitted the proceeds of this wine to pass out of his hands without an attempt to secure himself? \nThese circumstances strengthen the conviction growing out of the whole conduct of the owners, that in drawing the bill for which this suit was instituted, Benjamin Munro acted within his authority. \nThis testimony is opposed by the answer of Clark's executors; and the rule that an answer must prevail unless contradicted by one witness  as well as by circumstances, is said to be so inflexible that the strongest circumstances will not themselves be sufficient to outweigh an answer. \nThe general rule that either two witnesses or one witness with probable circumstances will be required to outweigh an answer asserting a fact responsively to a bill, is admitted. The reason upon which the rule stands, is this. The Plaintiff calls upon the Defendant to answer an allegation he makes, and thereby admits the answer to be evidence. If it is testimony. it is equal to the testimony of any other witness; and as the Plaintiff cannot prevail if the balance of proof be not in his favor, he must have circumstances in addition to his single witness, in order to turn the balance. But certainly there may be evidence arising from circumstances stronger than the testimony of any single witness. \nThe weight of an answer must also, from the nature of evidence, depend, in some degree, on the fact stated. If a Defendant asserts a fact which is not and cannot be within his own knowledge, the nature of his testimony cannot be changed by the positiveness of his assertion. The strength of his belief may have betraved him into a mode of expression  of which he was not fully apprized. When he intended to utter only a strong conviction of the existence of a particular fact, or what he deemed an  infallible deduction from facts which were known to him, he may assert that belief or that deduction in terms which convey the idea of his knowing the fact itself. Thus, when the executors say that John Innes Clark never gave Benjamin Munro authority to take up money or to draw bills, when they assert that Riemsdyk, who was in Batavia, did not take this bill on the credit of the owners of the Patterson, but on the sole credit of Benjamin Munro, they assert facts which cannot be within their own knowledge. In the first instance they speak from belief; in the last they swear to a deduction which they make from the admitted fact that Munro could show no written authority. These traits in the character of testimony must be perceived by the Court. and must be allowed their due weight, whether the evidence be given in the form of an answer or a deposition. The respondents could found their assertions only on belief; they ought so to have expressed themselves; and their having, perhaps incautiously, used terms indicating a knowledge  of what in the nature of things they could not know, cannot give to their answer more effect than it would have been entitled to, had they been more circumspect in their language. \nBut were the Court to allow to this answer all the weight which is claimed for it by counsel, it would not avail his clients. It asserts that Munro drew bills without authority from his owners, but does not assert that his owners never confirmed his acts. It will not be denied that the acts of an agent, done without authority, may be so ratified and confirmed by his principals as to bind them in like manner as if an original authority had existed. The application of this principle to the case at bar is as little to be denied as the principle itself. The transactions which have been urged to show an original authority to draw the bill in question, will be recollected without being recapitulated. The Court is of opinion that they amount to a full confirmation of those proceedings of their agent which had been communicated to his principals, and to an undertaking to perform the engagements he had made for them. \nIt is urged, on the part of the Appellees, that this undertaking is not joint, but several,  and binds each party to the extent of his interest, and no farther. \n The Court does not so understand the transaction. The undertaking not being express, its extent must be determined by the character of their acts of confirmation, and by the character of the act confirmed. \nThe bill is to be charged, as expressed upon its face, to John Innes Clark, and to Munro, Snow and Munro. \nIn his letter of the 3d of November, 1806, addressed to his owners, Benjamin Munro, after mentioning the bills, says, \"which bills you\" (that is, John Innes Clark and Munro, Snow and Munro) \"will no doubt prepare for timely.\" \nIn the account with his owners, rendered by Benjamin Munro, and dated the 1st of November, 1806, he charges them jointly with the coffee purchased by these bills, jointly with the premium advanced, and credits them jointly with the amount of the bills. This account is afterwards referred to by John Innes Clark himself as a settled account. \nThe Court cannot understand the undertaking, proved by these papers and by the conduct of the parties, to be other than a joint undertaking of the owners to put themselves in the  place of Benjamin Munro, and to provide funds  to take up the bill. \nIt is the unanimous opinion of the Court that the liability of the owners of the ship Patterson for the bill drawn by Benjamin Munro in favor of Riemsdyk is precisely the same as if it had been drawn by themselves. They have made his act their act. \nIt is said that, even on this principle, the decree is for too large a sum, because the premium and the damages cannot be recovered in a Court of Chancery. \nThere is no evidence that the contract is not allowable by the laws of Batavia; nor did the owners, when informed of it, complain of its terms. This Court can not presume that it is illegal. \nThe damages form no part of the contract, and certainly cannot be decreed by a Court of Chancery, unless,  by the laws of the place where the bill was drawn, they become a part of the debt. Upon this point, the Court has no information; and for this reason the decree must be reversed. \nIt is also the opinion of the Court that the dismissal of the bill of the Complainants as to James Munro and Samuel Snow, the surviving partners of Munro, Snow and Munro, was irregular; 1 and that a decree ought to have been made against them also. For these causes the decree  must be in part reversed, and the cause remanded to the Circuit Court with directions to reform the decree according to this opinion. \nThe decree of this Court is as follows: \nThis cause came on to be heard on the transcript of the record of the Circuit Court of the United States for the district of Rhode Island, and was argued by counsel; which being considered, the Court is of opinion that John Innes Clark in his life time, and Munro, Snow and Munro, the owners of the ship. Patterson, were jointly liable for the bill of exchange, in the Complainant's bill mentioned, to the same extent as if the said bill had been drawn by them; and that the estate of the said John Innes Clark, in the hands of his executors, is, in equity, chargeable with the said debt, as far as the said John Innes Clark in his life time was chargeable therewith. This Court is therefore of opinion that there is no error in so much of the said decree of the Circuit Court for the district of Rhode Island as directs the respondents, the executors of the said John  Innes Clark, deceased, to pay to the Complainant the amount of the said bill with interest thereon, from the time when the same became payable to the day on which the said decree was made, and the same as to so much thereof is affirmed. And this Court is further of opinion that the Defendants ought not to have been ordered to pay damages on the said bill without proof that, by the law of the place where the same was drawn, damages were made payable: in which case the persons bound to pay the said bill are liable in a Court of equity, as well as in a Court of law, to pay such damages. This Court  is also of opinion that so much of the said decree as dismisses the bill of the Complainants as to James Munro and Samuel Snow, the surviving partners of Munro, Snow and Munro, is irregular, and that a decree ought to have been made against them likewise. It is, therefore, the opinion of this Court that so much of the said decree of the Circuit Court for the district of Rhode Island, made in this case, as directs the Appellants to pay to the Complainant, in that Court, damages at the rate of ten per centum on the amount thereof, with interest thereon; and so much of the said decree  as dismisses the bill of the Complainant as to James Munro and Samuel Snow, the surviving partners of Munro, Snow and Munro, is erroneous and ought to be reversed, and the same is reversed accordingly. And this Court doth further order and decree that the said cause be remanded to the said Circuit Court for the district of Rhode Island with directions to receive proof of the law of Batavia respecting protested bills of exchange, to conform its decree to this opinion, and to make the same against the surviving partner or partners of the late commercial house of Munro, Snow and Munro as well as against the Appellants; all which is ordered and decreed accordingly. \n \n\n ", "Opinion by:  MARSHALL \nOpinion \n\n \n \n  MARSHALL, Ch. J. delivered the opinion of the Court as follows: \nThis cause depends on the land law of Virginia, which is also the land law of Kentucky, that state having formed a part of Virginia when the act was passed in which the titles of both Plaintiff and Defendant originated.Both parties claim the land in controversy by virtue of improvements made previous to the first day of January, 1778, which improvements were  recognized by the act generally termed \"the previous title law,\" and gave the persons making them a pre-emption of one thousand acres of land, to include the improvement, on paying therefor the price at which the state sold its vacant lands, \"provided they respectively demand and prove their right to such pre-emption before the commissioners for the county to be appointed by virtue of this act, within eight months.\" \nIn the year 1781 an act passed which, after reciting that, by the discontinuance of the commissioners in the district of Kentucky, many good people of the commonwealth were prevented from proving their rights of settlement and pre-emption in due time, owing to their being engaged in the public service  of this country, enacts that the county Courts in which such lands may lie be empowered and required to hear and determine such disputes, and that the register of the land office be empowered and directed to grant titles on the determinations of such Courts, in the same manner as if the commissioners had determined the same. \nIt appears that, in the year 1773, John Finley, the Plaintiff in the cause, marked and improved the land in controversy.He entered into the continental service in the year 1776, and continued therein throughout the war. His claim was not made before the commissioners, but was made to the Court of the county in which the lands lie, by which Court his claim was allowed, and the following certificate was granted: \"At a Court held for the county of Fayette, March 12th, 1782, application and satisfactory proof being made, this Court doth certify that John Finley is entitled to the  pre-emption of 1000 acres of land, sitnate the on main branch of Licking Creek, to include an improvement made in the year 1773, by said Finley, and to be bounded by a survey made, at the time, for him, which includes the Upper Blue Lick, by virtue of such marking out and improving,  and his being in public service when the commissioners sat in the district, and thereby prevented applying for the same.\" \nA pre-emption warrant was obtained, and, on the 14th day of November, in the year 1783, an entry was made with the proper surveyor in the following words: John Finley enters 1000 acres of land on a pre-emption warrant, No. 2526, on Licking, to include the Upper Blue Lick, and bounded on three sides by the line of an old survey made in the year 1773, beginning,\" &c. This entry was surveyed, and a patent issued thereon. \nWilliam Lynn, under whom the Defendants claim, made an improvement on the same ground, in the year 1775, and laid his claim before the commissioners, who allowed the same, and granted a certificate therefor, dated the 20th day of November, in the year 1779, in the following words: \"William Lynn this day claimed a pre-emption of one thousand acres of land at the state price, lying on the south side of Licking Creek, known by the name of the Big Blue Lick, to include the said lick, lying in a short bent of the said creek, by improving the same in the year 1775, &c.\" On the 22d of June, 1780, Lynn, having obtained a preemption warrant, entered the  same with the proper surveyor, in these words: \"William Lynn, James Barbour and John Williams enter 1000 acres of land upon a pre-emption warrant, beginning a quarter of a mile below the Big Blue Lick on Licking, on the south side thereof, running on both sides of the said creek, and east and south for quantity.\" This entry was so surveyed as to include the lands in dispute, and a patent was obtained thereon of an earlier date than that of Finley. Upon this patent an ejectment was brought, and judgment obtained by Lynn, Barbour and Williams. Finley has brought this suit to compel a conveyance of that part of the land held by Lynn and others, which is included in his patent.On a hearing,  it was the opinion of the Circuit Court that Lynn and others held the better title; in conformity with which a decree was made. From that decree Findley has appealed to this Court. \nThe peculiar state of titles to land in Kentucky, a senior patent being, in many cases, issued on a junior title, and it being a rule in their Courts of law not to look beyond the patent, have settled the principle that Courts of equity will sustain a bill brought for the purpose of establishing the prior  title by entry, and of obtaining a conveyance from the person holding under a senior patent issued on a junior entry. The Courts of the United States have conformed to this practice, and adopted the principle. \nIt is also settled in Kentucky that, between pre-emption rights, the prior improvement will hold the land, although the certificate of the commissioners, the entry, the survey and the patent, be all posterior, in point of time, to those obtained by the person who has made an improvement of later date. \nIt follows, from these established principles, that Finley must prevail, unless he has lost the right acquired in consequence of his improvement. \nThe Circuit judge was of opinion that this right was lost by the form of his entry with the surveyor. Not having, in that entry, called, in terms, for his improvement, that judge was of opinion that, although his entry does. in fact, comprehend his improvement, yet he has surrendered the preference which his pre-emption warrant gave him, and sunk his claim to the level of a common treasury warrant. This Court can perceive no reason for that opinion. The law requires that the entry shall, in fact, include the improvement, but does  not make it essential to the dignity of the entry that the improvement shall, in terms, be called for. The certificate expressly states that the land granted is to include the improvement; and the entry, which is made with remarkable precision, conforms exactly to the certificate in the description of the land intended to be taken. \n But it is contended by the Defendant that, whatever may be the opinion of the Court on this point, Finley's title as to a pre-emption, must yield to that of Lynn, in consequence of his having omitted to assert his claim before the Court of commissioners. The legislature could not, it is said, after permitting the time for making this claim to expire, revive it to the prejudice of any other person who had acquired title to the land. It is added that the decisions in Kentucky have been adverse to titles to pre-emptions  depending on certificates granted by the county Courts, in cases where they come into competition with titles gained before the grant of such certificates. \nThis Court would not willingly depart from the state decisions, if they have settled the principle the one way or the other; and would, therefore, have deferred  the determination of this cause until more certain information could be obtained, had it rested solely on the validity of the Plaintiff's title as founded on a pre-emption. But, on an inspection of the record, the entry of the Defendants is deemed so radically defective as necessarily to yield to the title of the Plaintiff, should his warrant even be reduced to the grade of a treasury warrant. \nThe law requires that the holder of a land warrant \"shall direct the location thereof so specially and precisely as that others may be enabled with certainty to locate other warrants on the adjacent residuum.\" \nSuch has been the difficulty of making special locations, that much of the precision which the law would seem to require, has been dispensed with; but a reasonable and practicable certainty has always been deemed necessary; and wherever the material and principal call of a location has been calculated, instead of informing, to misguide subsequent locators, the location itself has been brought into hazard, and it has often been determined that the survey was made on other land than that which the entry covered. \nIn examining these questions, the Courts of Kentucky have universally and  properly determined that all subordinate calls in an entry must yield to a principal  call to which they may be repugnant. If a great and prominate object, immoveable and durable in itself, and of general notoriety, be called for in a location, that object must fix and locate the entry, although other minor and temporary objects, to be discovered only by a strict and successful search, might prove that the locator really intended to take other land. \nIn the entry of Lynn and others there is such a principal call. The Big Blue Lick is perhaps an object of as universal notoriety as any in Kentucky, But there are two Blue Licks on the same creek, and both of them are large licks. In such a case, the locator would certainly be at liberty, and it would be his duty to designate the lick he intended to take; for if his entry would apply to the one as well as to the other, it would be justly chargeable with a vagueness which would leave subsequent locators unable to locate with certainty the adjacent residuum. This entry has, in its terms, designated the lick intended to be included. It is \"the Big Blue Lick.\" The entry does not call for a Big Blue Lick, but for the Big Blue  Lick, thereby excluding any other lick than that which was emphatically denominated the Big Blue Lick. \nWe are then to ask which of these licks a man in Kentucky, holding a warrant which he intended to locate, would suppose was the Big Blue Lick. \nUpon this subject the testimony is not doubtful. It is in full proof that, at the time the entry of the Defendants was made, and for some years before, the Lower Blue Licks were generally called the Big Blue Licks; and that where the Defendants have surveyed was known by the name of the Upper Blue Licks. They were sometimes, though rarely, distinguished from each other as the Upper Big Blue Licks and the Lower Big Blue Licks; sometimes as the Upper and the Lower Blue Licks; but the term the Big Blue Licks, when used without the word \"upper\" or \"lower,\" was universally understood to designate the Lower Blue Licks. \nThe company which made this location in 1775, had not discovered the Lower Blue Licks, and therefore denominated the spring which they did discover, \"the  Big Blue Lick;\" but the name originated and expired with themselves. It was never adopted by the people of the country. It is probable that Lynn did  contemplate the Upper Blue Licks when he made his entry; but between conflicting entries a mistake of this kind is fatal to the person who commits it. In the case of Tayior and Hughes it was impossible not to perceive that Taylor intended one creek when he named another; but subsequent locators could judge of his intention only from the words of his entry. \nBut it is contended that there are other explanatory calls in the entry, which cure the defect which has been stated, and designate, with sufficient certainty, that the Upper Blue Lick was intended to be included in the entry. \nThe entry is said to require a lick on the south side of Licking; and the spring which issues at the Upper Blue Lick is on the south side. The words are, \"Beginning one quarter of a mile below the Big Blue Lick on Licking, on the south side thereof.\" The locator intends to describe his beginning; and these words are to be construed with reference to that intention. Do the words, \"on Licking,\" describe the place of beginning, or the location of the Big Blue Lick? The latter was unnecessary, because there was no Big Blue Lick except on Licking; and because, were the fact otherwise, the lick would be ascertained  by calling for a beginning a quarter of a mile below it on Licking. But the beginning might be a quarter of a mile below the lick, and yet not on the creek. The beginning would be, in some degree, uncertain, unless it be fixed by those words. The entry is understood as if it were expressed thus: \"Beginning on Licking, on the south side thereof, a quarter of a mile below the Big Blue Lick.\" If reference be had to the certificate granted by the commissioners, that places the land, not the lick, on the south side of the creek. \nA cabin and a marked tree in a country full of cabins and marked trees, cannot control a call made for an object of such general notoriety as the Big Blue Lick. A subsequent locator would look for them only at the Big Blue Lick. \n It is the opinion of this Court that the decree of the Circuit Court be reversed and annulled, and that the Defendants be decreed to convey to the Plaintiff so much of the land comprehended within this grant as appears by the survey made in this cause to lie within the bounds of the grant made to the Complainant. 1 \n \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. after stating the facts of the case, delivered  the opinion of the Court as follows: \n\"It is undoubtedly the practice of surveyors, and the practice was proved in this cause, to express in their plats and certificates of survey, the courses which are designated by the needle; and if nothing exists to control the call for course and distance, the land must be  bounded by the courses and distances of the patent, according to the magnetic meridian. But it is a general principle that the course and distance must yield to natural objects called for in the patent. All lands are supposed to be actually surveyed, and the intention of the grant is to convey the land according to that actual survey; consequently if marked trees and marked corners be found conformably to the calls of the patent, or if water-courses be called for in the patent, or mountains or any other natural objects, distances must be lengthened or shortened, and courses varied so as to conform to those objects. \nThe reason of the rule is, that it is the intention of the grant to convey the land actually surveyed, and mistakes in courses or distances, are more probable and more frequent, than in marked trees, mountains, rivers or other natural  objects  capable of being clearly designated and accurately described. Had the survey in this case been actually made, and the lines had called to cross Crow Creek, the courses and distances might have been precisely what they are, it might have been impracticable to find corner or other marked trees and yet the land must have been so surveyed as to include Crow Creek. The call, in the lines of the patent, to cross Crow Creek, would be one to which course and distance must necessarily yield. This material call is omitted, and from its omission arises the great difficulty of the cause. \nThat the lands should not be described as lying on both sides of Crow Creek, nor the lines call for crossing that creek, are such extraordinary omissions as to create considerable doubt with the Court in deciding whether there is any other description given, in the patent, of sufficient strength to control the call for course and distance. \nThe majority of the Court is of opinion that there is such a description. The patent closes its descritpion of the land granted by a reference to the plat which is annexed. \nThe laws of the state require this annexation. In  this plat, thus annexed to the patent  and thus referred to as describing the land granted, Crow Creek is laid down as passing through the tract. Every person, having knowledge of the grant, would also have knowledge the lands lay on both sides of the creek; There would be nothing to lead to a different conclusion, but a difference of about five degrees in the course, should he run out the whole chain of surveys in order to find the beginning of No. 12; and he would know that such an error in the course would be corrected by such a great natural object as a creek laid down by the surveyor in the middle of his plat. This would prove, notwithstanding the error in the course, that the lands on both sides of Crow Creek were intended to be included in the survey, and intended to be granted by the patent. \nIt is the opinion of the majority of this Court, that thee is error in the opinion of the Circuit Court for the district of East Tennessee in this, that the said Court instructed the jury that the grant, under which the Plaintiff claimed, could not be legally run so as to include Crow Creek, instead of directing the jury that the said grant must be so run as to include Crow Creek, and to conform as near as may be to the plat  annexed to the said grant; wherefore it is considered by this Court that the said judgment be reversed and annulled and the cause be remanded to the said Circuit Court that a new trial may be had according to law. \nThe chief justice, added, that he did not think the question about the true meridian had much to do with the case. The Court decided it upon the plat. If it had not been for the plat, they should have said that the land ought to be surveyed by the magnetic meridian. \nDUVALL, J. \nMy opinion is that there is no safe rule but to follow the needle. \n \n\n ", " \nOpinion \n\n \n \n MARSHALL, Ch. J. stated the opinion of the Court to be that the omission of the names of the jurors was not material. Nothing was said upon the first point. \nJudgment Affirmed with costs. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. delivered the opinion of the Court as follows: \nThe island of Santa Cruz, belonging to the kingdom of Denmark, was subdued,  during the late war, by the arms of his Britannic majesty. Adrian Benjamin Bentzon, an officer of the Danish government, and a proprietor of land therein, withdrew from the island on its surrender, and has since resided in Denmark. The property of the inhabitants being secured to them, he still retained his estate in the island under the management of an agent, who shipped thirty hogsheads of sugar, the produce of that estate, on board a British ship, to a commercial house in London, on account and risk of the said A. B. Bentzon. On her passage, she was captured by the American privateer, the Comet, and brought into Baltimore, where the vessel and cargo were libelled as enemy property. A claim for these sugars was put in by Bentzon;  but they were condemned with the rest of the cargo; and the sentence was affirmed in the Circuit Court. The Claimant then appealed to this Court. \nSome doubt has been suggested whether Santa Cruz, while in the possession of Great Britain, could properly be considered as a British island. But for this doubt there can be no foundation. Although acquisitions made during war are not considered as permanent until confirmed by treaty, yet to  every commercial and belligerent purpose, they are considered as a part of the domain of the conqueror, so long as he retains the possession and government of them. The island of Santa Cruz, after its capitulation, remained a British island until it was restored to Denmark. \nMust the produce of a plantation in that island, shipped by the proprietor himself, who is a Dane residing in Denmark, be considered as British, and therefore enemy property? \n In arguing this question, the counsel for the Claimants has made two points. \n1. That this case does not come within the rule applicable to shipments from an enemy country, even as laid down in the British Courts of admiralty. \n2. That the rule has not been rightly laid down in those Courts, and consequently will not be adopted in this. \n1.Does the rule laid down in the British Courts of admiralty embrace this case? \nIt appears to the Court that the case of the Phaenix is precisely in point. In that case a vessel was captured in a voyage from Surinam to Holland, and a part of the cargo was claimed by persons residing in Germany, then a neutral country, as the produce of their estates in Surinam. \nThe counsel for the captors  considered the law of the case as entirely settled. The counsel for the Claimants did not controvert this position. They admitted it; but endeavored to extricate their case from the general principle by giving it the protection of the treaty of Amiens. In pronouncing his opinion, sir William Scott lays down the general rule thus: \"Certainly nothing can be more decided and fixed, as the principle of this Court and of the Supreme Court, upon very solemn arguments, than that the possession of the soil does impress upon the owner the character of the country, as far as the produce of that plantation is concerned, in its transportation to any other country, whatever the local residence of the owner may be. This has been so repeatedly decided, both in this and the superior Court, that it is no longer open to discussion. No question can be made on the point of law, at this day.\" \nAfterwards, in the case of the Vrow Anna Catharina, sir William Scott lays down the rule, and states its reason. \"It cannot be doubted,\" he says, \"that there are transactions so radically and fundamentally national as to impress the national character, independent of peace or war, and the local residence of  the parties. The  produce of a person's own plantation in the colony of the enemy, though shipped in time of peace, is liable to be considered as the property of the enemy, by reason that the proprietor has incorporated himself with the permanent interests of the nation as a holder of the soil, and is to be taken as a part of that country, in that particular transaction, independent of his own personal residence and occupation.\" \nThis rule laid down with so much precision, does not, it is contended, embrace Mr. Bentzon's claim, because he has not \"incorporated himself with the permanent interests of the nation.\" He acquired the property while Santa Cruz was a Danish colony, and he withdrew from the island when it became British. \nThis distinction does not appear to the Court to be a sound one. The identification of the national character of the owner with that of the soil, in the particular transaction, is not placed on the dispositions with which he acquires the soil, or on his general character. The acquisition of land in Santa Cruz binds him, so far as respects that land, to the fate of Santa Cruz, whatever its destiny may be. While that island belonged to Denmark,  the produce of the soil, while unsold, was, according to this rule, Danish property, whatever might be the general character of the particular proprietor. When the island became British, the soil and its produce, while that produce remained unsold, were British. \nThe general commercial or political character of Mr. Bentzon could not, according to this rule, affect this particular transaction. Although incorporated, so far as respects his general character, with the permanent interests of Denmark, he was incorporated, so far as respected his plantation in Santa Cruz, with the permanent interests of Santa Cruz, which was, at that time, British; and though as a Dane, he was at war with Great Britain, and an enemy, yet, as a proprietor of land in Santa Cruz, he was no enemy: he could ship his produce to Great Britain in perfect safety. \nThe case is certainly within the rule as laid down in the British Courts. The next enquiry is: how far will that rule be adopted in this country? \n The law of nations is the great source from which we derive those rules, respecting belligerent and neutral rights, which are recognized by all civilized and commercial states throughout Europe  and America. This law is in part unwritten, and in part conventional. To ascertain that which is unwritten, we resort to the great principles of reason and justice: but, as these principles will be differently understood by different nations under different circumstances, we consider them as being, in some degree, fixed and rendered stable by a scries of judicial decisions. The decisions of the Courts of every country, so far as they are founded upon a law common to every country, will be received, not as authority, but with respect. The decisions of the Courts of every country show how the law of nations, in the given case, is understood in that country, and will be considered in adopting the rule which is to prevail in this. \nWithout taking a comparative view of the justice or fairness of the rules established in the British Courts, and of those established in the Courts of other nations, there are circumstances not to be excluded from consideration, which give to those rules a claim to our attention that we cannot entirely disregard. The United States having, at one time, formed a component part of the British empire, their prize law was our  prize law. When we  separated, it continued to be our prize law, so far as it was adapted to our circumstances and was not varied by the power which was capable of changing it. \nIt will not be advanced, in consequence of this former relation between the two countries, that any obvious misconstruction of public law made by the British Courts, will be considered as forming a rule for the American Conrts, or that any recent rule of the British Courts is entitled to more respect than the recent rules of other countries. But a case professing to be decided on ancient principles will not be entirely disregarded, unless it be very unreasonable, or be founded on a construction rejected by other nations. \nThe rule laid down in the Phaenix is said to be a recent rule, because a case solemnly decided before the lords commissioners in 1783, is quoted in the margin  as its authority. But that case is not suggested to have been determined contrary to former practice or former opinions. Nor do we perceive any reason for supposing it to be contrary to the rule of other nations in a similar case. \nThe opinion that ownership of the soil does, in some degree, connect the owner with the property, so far as  respects that soil, is an opinion which certainly prevails very extensively. It is not an unreasonable opinion. Personal property may follow the person any where; and its character, if found on the ocean, may depend on the domicil of the owner. But land is fixed. Wherever the owner may reside, that land is hostile or friendly according to the condition of the country in which it is placed. It is no extravagant perversion of principle, nor is it a violent offence to the course of human opinion to say that the proprietor, so far as respects his interest in this land, partakes of its character; and that the produce, while the owner remains unchanged, is subject to the same disabilities. In condemning the sugars of Mr. Bentzon as enemy property, this Court is of opinion that there was no error, and the sentence is affirmed with costs. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. delivered the opinion of the Court as follows: \nWilliam Little, a naturalized citizen of the United States, entered into a charter-party with Magnus Martinson, master of the Swedish ship, called the Societe, at London, on the 10th day of November, 1813, where by the said Martinson let, and the said Little took the said ship to freight for the voyage and on the terms mentioned in the charter-party. \nIt was agreed, among other things, that the vessel should take on board a cargo, prepared for her in the Thames, and doliver it at Amelia Island, freight free. At Amelia Islend she was to take on  board such return cargo as might be tendered to her. If she could not be loaded there, she was to proceed to such port in the  United States as the agent of Little should direct, and there receive her cargo. There were other provisional stipulations, and it was agreed that the freight on the return cargo should be a sum specified in the charterparty, which exceeded what would have been paid as freight on the return cargo alone had it been totally unconnected with the outward voyage. \nOn her voyage to Amelia Island, the Societe was captured by an armed vessel of the United State, and brought into the district of Georgia, where the cargo was libeiled and condemned as enemy property. \nA claim for freight was interposed by the master of the Societe, and the district judge appointed commissioners to ascertain the value of the freight on the voyage to Amelia Island, and decreed freight conformably to their report. \nThe Claimant of the cargo and the master of the ship both appealed to the Circuit Court, where the sentence of the district judge was, in all things, affirmed. From that sentence an appeal was prayed to this Court. \nThe cases already decided in this Court on the  questions of domicil and trading with the enemy having completely settled this case, so far as repected the claim to the cargo, that part of the sentence is affirmed without opposition. \nOn the part of the master, it is contended, that his right to freight ought to be measured by his charterparty, not by any estimated value of the freight on the voyage to Amelia Island. \nHad the charter-party contained any stipulation for freight to Amelia Island, that stipulation would unquestionably have governed the Court. But the outward cargo was to be delivered freight free. So far, then, as the case is controlled by the express stipulations of the charter-party, the vessel is entitled to the whole freight on a return cargo never taken on board, or to nothing. \nThe Court knows of no case of capture where the  neutral vessel has been allowed freight for a cargo not taken with her. There is no lien on one cargo for freight which may accrue on another. The Court can perceive no principle on which a cargo to be delivered freight free can be burthened with the freight agreed to be paid on a cargo to be afterwards taken on board. In this case, too, no sum in gross is to be paid for  freight, but a sum depending on the quantity and quality of the return cargo. As between the captor and neutral owner, the Court cannot consider this as one entire voyage, but as distinct outward and inward voyages. \nIf the claim to freight on the return voyage, not commenced at the time of capture, cannot be sustained, the Court perceives no other rule which could have been adopted than that which the district Court did adopt. Freight has been allowed on the whole voyage to Amelia island as on a quantum meruit. \nThe captors not having appealed, no question can arise on the propriety of having allowed the ship any freight whatever. The Court, however, will say that it is satisfied with the allowance which is made, and which is certainly an equitable one. \nThe sentence is affirmed with costs. \nThe officers of the Rattlesnake and Enterprize, armed vessels of the United States, offerd a petition to this Court to be permitted to claim for themselves and their crew a share of the prize in the case of the Societe; alledging that they are entitled equally with the officers and crew of the Gon-boat by whom the said cargo was libelled; which petition was rejected, and the claim was not received;  it being the opinion of this Court that the claim of the petitioners must be made in the Circuit Court, to which the cause is remanded. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J ordered the following decree  to be enrolled: \nThis cause came on to be heard on the transcript of the record of the proceedings of the Orphan's Court for the county of Washington, and of the Circuit Court for the said county, and was argued by counsel. On consideration whereof, it is the opinion of this Court that the decree of the Orphan's Court for the county of Washington, ordering the said Kenzy Gettings to deliver to the said Jane Burch, as administratrix of Jesse Burch, deceased, the slaves in the said decree mentioned,  when the petitioner had not by replication denied the answer of the Defendant, in which he states a sale of the said salves in pursuance of an order of the said Orphan's Court, and without receiving any evidence that the said slaves were not sold, or that they remain still in possession of the said Defendant, is erroneous, and that the decree of the Circuit Court, affirming the same, is also erroneous; and the the said decree of affirmance ought to be reversed and annulled, and the cause remanded to the said Circuit Court with directions to reverse the said decree of the said Orphan's Court, and to remand the cause to the said Court that further proceedings may be had therein  according to law. All which is ordered and decreed accordingly. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. after stating the facts of the case, delivered the opinion of the court as follows \n \"In support of the sentence of condemnation in this case, the captors contend, \n1. That the Claimant, Manuel Pinto, has neither made sufficient proof of his neutral character nor of his property in the goods he claims. \n2. That by the treaty between Spain and the United States the property of a Spanish subject in an enemy's vessel is prize of war. \n3. That on the principles of reciprocity this property should be condemned. \n4. That the conduct of Manuel Pinto and of the vessel has impressed a hostile character on his property and on that of other Spaniards laden on board of the Nereide. \n 1. Manuel Pinto is admitted to be a native of Buenos Ayres, and to carry on trade at that place in connexion with his father and sister, who are his partners, and who also reside at Buenos Ayres; but it is contended that he has acquired a domicil in England, and with that domicil the English commercial character \nIs the evidence in any degree doubtful on this point? Baltaza Ximenes, Antonio Lynch, and Felix Lynch, three Spaniards returning with Pinto in the Nereide, all depose that Buenos Ayres is the place of his nativity and of his permanent residence, and that he carries on trade at that place. \nIn his test affidavit Manuel Pinto swears in the most explicit terms to the fact that Buenos Ayres is, and always has been the place of his permanent residence; that he carries on business there on account of himself, his father, and sister, and that he has been absent for temporary purposes only. His voyage to London, where he arrived in June, 1813, was for the purpose of purchasing a cargo for his trade at Buenos Ayres, and of establishing connexions in London for the purposes of his future trade at Buenos Ayres. \nThis plain and direct testimony is opposed, \n 1. By his  examination in preparatorio. \nIn his answer to the first interrogatory he says that he was born at Buenos Ayres, that for seven years last past, he has lived and resided in England and Buenos Ayres, that he now lives at Buenos Ayres, that he has generally lived there for thirty-five years last past, and has been admitted a freeman of the new government. \nWhatever facility may be given to the acquisition of a commercial domicil, it has never heretofore been contended that a merchant having a fixed residence, and carrying on business at the place of his birth, acquires a foreign commercial character by occasional visits to a foreign country. Had the introduction of the words \"seven years last past\" even not been fully accounted for by reference to the interrogatory, those words could not have implied such a residence as would give a domicil. But they are fully accounted for. \nIn his answer to the 12th interrogatory he repeats that he is a Spanish American; now lives and carries on trade at Buenos Ayres, and has generally resided there. \n2. The second piece of testimony relied on by the counsel for the captors is the charter party. That instrument states Manuel Pinto to be of Buenos  Ayres now residing in London. \nThe charter party does not state him to have been formerly of Buenos Ayres, but to be, at its date, of Buenos Ayres. Nothing can be more obvious than that the expression, now residing in London, could be intended to convey no other idea than that he was then personally in London. \nAs little importance is attached to the covenant to receive the return cargo at the wharf in London. The performance of this duty by the consignee of the cargo as the agent of Pinto, would be a complete execution of it. \nHad the English character been friendly and the Spanish hostile, it would have been a hardy attempt indeed in  Mr. Pinto to found, on these circumstances, a claim to a domicil in England. \nThe question respecting ownership of the goods is not so perfectly clear. \nThe evidence of actual ownership, so far as the claim asserts property existing, at the time, in himself and partners, is involved in no uncertainty. The test affidavit annexed to the claim is full, explicit, and direct. It goes as far as a test affidavit can go in establishing the right which the claim asserts. All the documentary evidence, relating to this subject, corroborates this  affidavit. The charter party shows an expectation that, of a freight of 700l. the goods of Mr. Pinto would pay 400l. They very circumstance that he chartered the whole vessel furnishes strong inducement to the opinion that a great part of her cargo would be his own. \nThe witnesses examined in preparatorio, so far as they know any thing on the subject, all depose to his interest. William Puzey was clerk to Pinto, and he deposes to the interest of his employer, on the knowledge acquired in making out invoices and other papers belonging  to the cargo. His belief too is, in some degree, founded on the character of Pinto in London, where he was spoken of as a man of great respectability and property; and from the anxiety he discovered for the safety of the property after the Nereide was separated from the convoy. \nThe bills of lading for that part of the cargo which is claimed by Pinto, are filled up, many of them with his name, some to order, and the marginal letters in the manifest would also denote the property to be his. Where he claims a part of a parcel of goods the invoice is sometimes to order, and the marginal letters would indicate the goods to be the property of  Pinto and some other person. \nThis testimony proves, very satisfactorily, the interest of Pinto's house in the property he claims. There is no counter testimony in the cause, except the belief expressed by Mr. Puzey, that for a part of the goods Pinto was agent for the government of Buenos Ayres.This  belief of Mr. Puzey is supposed to derive much weight from his character as the clerk of Mr. Pinto. The importance of that circumstance, however, is much diminished by the fact that he had seen Pinto only a week before the sailing of the Nereide, and that he does not declare his belief to be founded on any papers he had copied or seen; or on any communication made to him by his employer. There are other and obvious grounds for his suspicion. A part of the cargo consisted of arms and military accoutrements; and it was not very surprising that Puzey should conjecture that they were purchased for a government about to sustain itself by the sword. But this suspicion is opposed by considerations of decisive influence, which have been stated at the bar.The demand for these articles in Buenos Ayres by the government would furnish sufficient motives to a merchant for making them  a part of his cargo. In a considerable part of this warlike apparatus, British subjects were jointly concerned. It is extremely improbable, that, if acting for his government, he would have associated its interests with those of British merchants. Nor can a motive be assigned for claiming those goods for himself instead of claiming them for his government. They would not by such claim become his if restored. He would still remain accountable to his government, and the truth would have protected the property as effectually as a falshood, should it remain undetected. By claiming these goods for himself, instead of his government, he would commit a perjury from which he could derive no possible advantage, and which would expose to imminent hazard, not only those goods but his whole interest in the cargo. The Court, therefore, must consider this belief of Mr. Puzey as a suspicion, which a full knowledge of the facts ought entirely to dissipate. If there was nothing in the cause but this suspicion, or this belief of Mr. Puzey, the court would not attach any importance to it. But Mr. Pinto himself has, in his examination in preparatorio, been at least indiscreet in asserting claims  not to be sustained; and in terms which do not exhibit the real fact in its true shape. In his answer to the 12th interrogatory he says \"And this deponent also has one-fourth interest as owner of the following goods, &c. viz. 15 bales of merchandize,\" &c. In his claim he thus states the transaction under which his title to the one-fourth of these goods accrued.  He had agreed with certain persons in England to select for them a parcel of goods for the market of Buenos Ayres, of which he was to be the consignee, and which he would sell on a commission of 10 per cent. on the amount of sales at Buenos Ayres. These goods were selected, purchased, and consigned to Manuel Pinto. The bills of lading were in his possession, and he considered his interest under this contract as equal to one-fourth of the value of the goods, \"wherefore,\" he says, \"he did suppose that he was interested in the said goods and merchandize for himself, his father, and sister, and well entitled, as the owner thereof, or otherwise, to an equal fourth part of the said good, inasmuch as his commissions as aforesaid, would have been equal to such fourth.\" \nIt is impossible to justify this representation  of the fact. The reasoning might convince the witness, but the language he used was undoubtedly calculated to mislead the Court, and to extricate property to which the captors were clearly entitled, although the witness might think otherwise. Such misrepresentations must be frowned on in a prize Court, and must involve a claim, otherwise unexceptionable, in doubt and danger. A witness ought never to swear to inferences without stating the train of reasoning by which his mind has been conducted to them. Prize Courts are necessarily watchful over subjects of this kind, and demand the utmost fairness in the conduct of Claimants. Yet prize Courts must distingnish between misrepresentations which may be ascribed to error of judgment, and which are, as soon as possible, corrected by the party who has made them, and wilful falsehoods which are detected by the testimony of others, or confessed by the party when detection becomes inevitable. In the first case there may be cause for a critical and perhaps suspicious examination of the claim and of the testimony by which it is supported; but it would be harsh indeed to condemn neutral property, in a case in which it was clearly proved to  be neutral, for one false step, in some degree equivocal in its character, which was so soon corrected by the party making it. \nThe case of Mr. Paul's printing press is still less dubious in its appearance. It would require a very critical  investigation of the evidence to decide whether this press is stated in his answer to the 12th interrogatory to be his property or not. Four presses are said in that answer to belong to him; but he also says in his answer to another interrogatory, perhaps the 26th, that Mr. Paul had one printing press on board. Whether there were five presses in the cargo, or only four, has not been decided, because the declaration made in his examination in preparatorio that one of the presses belonged to Mr. Paul proves unequivocally that the mistake, if he made one, was not fraudulent. \nThat he should state as his, the property which belonged to a house in Buenos Ayres, whose members all resided at the same place, and of which he was the acting and managing partner, was a circumstance which could not appear important to himself, and which was of  no importance in the cause. These trivial and accidental inaccuracies are corrected in his  claim and in his test affidavit. The Court does not think them of sufficient importance to work a confiscation of goods, of the real neutrality of which no serious doubt is entertained. \n2. Does the treaty between Spain and the United States subject the goods of either party, being neutral, to condemnation as enemy property, if found by the other in the vessel of an enemy? That treaty stipulates that neutral bottoms shall make neutral goods, but contains no stipulation that enemy bottoms shall communicate the hostile character to the cargo. It is contended by the captors that the two principles are so completely identified that the stipulation of the one necessarily includes the other. \nLet this proposition be examined. \nThe rule that the goods of an enemy found in the vessel of a friend are prize of war, and that the goods of a friend found in the vessel of an enemy are to be restored, is believed to be a part of the original law of nations, as generally, perhaps universally, acknowledged. Certainly it has been fully and unequivocally recognized by the United States. This rule is founded on the simple and intelligible principle that war gives a full right to capture the goods  on an enemy, but gives no right to  capture the goods of a friend. In the practical application of this principle, so as to form the rule, the propositions that the neutral flag constitutes no protection to enemy property, and that the belligerent flag communicates no hostile character to neutral property, are necessarily admitted. The character of the property, taken distinctly and separately from all other considerations, depends in no degree upon the character of the vehicle in which it is found. \nMany nations have believed it to be their interest to vary this simple and natural principle of public law. They have changed it by convention between themselves as far as they have believed it to be for their advantage to change it. But unless there be something in the nature of the rule which renders its parts unsusceptible of division, nations must be capable of dividing it by express compact, and if they stipulate either that the neutral flag shall cover enemy goods, or that the enemy flag shall infect friendly goods, there would, in reason, seem to be no necessity for implying a distinct stipulation not expressed by the parties. Treaties are formed upon deliverate  reflection. Diplomatic men read the public treaties made by other nations and cannot be supposed either to omit or insert an article, common in public treaties, without being aware of the effect of such omission or insertion. Neither the one nor the other is to be ascribed to inattention. And if an omitted article be not necessarily implied in one which in inserted, the subject to which that article would apply remains under the ancient rule. That the stipulation of immunity to enemy goods in the bottoms of one of the parties being neutral does not imply a surrender of the goods of that party being neutral, if found in the vessel of an enemy, is the proposition of the counsel for the Claimant, and he powerfully sustains that proposition by arguments arising from the nature of the two stipulations. The argument that neutral bottoms shall make neutral goods is, he very justly remarks, a concession made by the belligerent to the neutral. It enlarges the sphere of neutral commerce, and give to the neutral flag a capacity not given to it by the law of nations. \nThe stipulation which subjects neutral property, found in the bottom of an enemy, to condemnation as prize of   war, is a concession made by the neutral to the belligerent. It narrows the sphere of neutral commerce, and takes from the neutral a privilege he possessed under the law of nations. The one may be, and often is, exchanged for the other. But it may be the interest and the will of both parties to stipulate the one without the other; and if it be their interest, or their will, what shall prevent its accomplishment? A neutral may give some other compensation for the privilege of transporting enemy goods in safety, or both parties may find an interest in stipulating for this privilege, and neither may be disposed to make to, or required from, the other the surrender of any right as its consideration. What shall restrain independent nations from making such a compact? And how is their intention to be communicated to each other or to the world so properly as by the compact itself? \nIf reason can furnish no evidence of the indissolubility of the two maxims, the supporters of that proposition will certainly derive no aid from the history of their progress from the first attempts at their introduction to the present moment. \nFor a considerable length of time they were the companions of  each other -- not as one maxim consisting of a single indivisible principle, but as two stipulations, the one, in the view of the parties, forming a natural and obvious consideration for the other. The celebrated compact termed the armed neutrality, attempted to effect by force a great revolution in the law of nations. The attempt failed, but it made a deep and lasting impression on public sentiment. The character of this effort has been accurately stated by the counsel for the Claimants. Its object was to enlarge, and not in any thing to diminish the rights of neutrals. The great powers, parties to this agreement, contended for the principle, that free ships should make free goods; but not for the converse maxim; so far were they from supposing the one to follow as a corollary from the other, that the contrary opinion was openly and distinctly avowed. The king of Prussia declared his expectation that in future neutral bottoms would protect the goods of an enemy, and that neutral goods would be safe in an enemy bottom. There is no reason to believe that this opinion  was not common to those powers who acceded to the principles of the armed neutrality. \nFrom that epoch  to the present, in the various treaties which have been formed, some contain no article on the subject and consequently leave the ancient rule in full force. Some stipulate that the character of the cargo shall depend upon the flag, some that the neutral flag shall protect the goods of an enemy, some that the goods of a neutral in the vessel of a friend shall be prize of war, and some that the goods of an enemy in a neutral bottom shall be safe, and that friendly goods in the bottom of an enemy shall also be safe. \n This review which was taken with minute accuracy at the bar, certainly demonstrates that in public opinion no two principles are more distinct and independent of each other than the two which have been contended to be inseparable. \nDo the United States understand this subject differently from other nations? It is certainly not from our treaties that this opinion can be sustained. The United States have in some treaties stipulated for both principles, in some for one of them only, in some that neutral bottoms shall make neutral goods and that friendly goods shall be safe in the bottom of an enemy. It is therefore clearly understood in the United States, so  far as an opinion can be formed on their treaties, that the one principle is totally independent of the other. They have stipulated expressly for their separation, and they have sometimes stipulated for the one without the other. \nBut in a correspondence between the secretary of state of the United States and the minister of the French republic in 1793, Prussia is enumerated among those nations with whom the United States had made a treaty adopting the entire principle that the character of the cargo should be determined by the character of the flag. \nNot being in possession of this correspondence the Court is unable to examine the construction it has received. It has not deferred this opinion on that account, because the point in controversy at that time was the obligation imposed on the United States to protect belligerent  property in their vessels, not the liability of their property to capture if found in the vessel of a belligerent. To this point the whole attention of the writer was directed, and it is not wonderful that in mentioning incidentally the treaty with Prussia which contains the principle that free bottoms make free goods, it should have escaped his  recollection that it did not contain the converse of the maxim. On the talents and virtues which adorned the cabinet of that day, on the patient fortitude with which it resisted the intemperate violence with which it was assailed, on the firmness with which it maintained those principles which its sense of duty prescribed, on the wisdom of the rules it adopted, no panegyric has been pronounced at the bar in which the best judgment of this Court does not concur. But this respectful defference may well comport with the opinion, that an argument incidentally brought forward by way of illustration, is not such full authority as a decision directly on the point might have been. \n3. The third point made by the captors is, that what ever construction might be put on our treaty with Spain, considered as an independent measure, the ordinances of that government would subject American property, under similar circumstances, to confiscation, and therefore the property, claimed by Spanish subjects in this case, ought to be condemed as prize of war. \nThe ordinances themselves have not been produced, nor has the Court received such information respecting them as would enable it to decide certainly  either on their permanent existence, or on their application to the United States. But be this as it may, the Court is decidedly of opinion that reciprocating to the subjects of a nation, or retaliating on them, its unjust proceedings towards our citizens, is a political not a legal measure. It is for the consideration of the government not of its Courts. The degree and the kind of retaliation depend entirely on considerations foreign to this tribunal. It may be the policy of the nation to avenge its wrongs in a manner having no affinity to the injury sustained, or it may be its policy to recede from its full rights and not to avenge them at all. It is not for its Courts to interfere with the proceedings of the nation and to thwart its views. It is not for us to depart from the beaten track  prescribed for us, and to tread the devious and intricate path of politics. Even in the case of salvage, a case peculiarly within the discretion of Courts, because no fixed rule is prescribed by the law of nations, congress has not left it to this department to say whether the rule of foreign nations shall be applied to them, but has by law applied that rule. If it be the will  of the government to apply to Spain any rule respecting captures which Spain is supposed to apply to us, the government will manifest that will by passing an act for the purpose. Till such an act be passed, the Court is bound by the law of nations which is a part of the law of the land. \nThus far the opinion of the Court has been formed without much difficulty. Although the principles, asserted by the counsel, have been sustained on both sides with great strength of argument, they have been found on examination to be simple and clear in themselves. Stripped of the imposing garb in which they have been presented to the Court, they have no intrinsic intricacy which should perplex the understanding. \nThe remaining point is of a different character. Belligerent rights and neutral privileges are set in array against each other. Their respective pretensions, if not actually intermixed, come into close contact, and the line of partition is not so distinctly marked as to be clearly discernible. It is impossible to declare in favor of either, without hearing, from the other, objections which it is difficult to answer and arguments, which it is not easy to refute. The Court has given  to this subject a patient investigation, and has endeavored to avail itself of all the aid which has been furnished by the bar. The result, if not completely satisfactory even to ourselves, is one from which it is believed we should not depart were further time allowed for deliberation. \n4. Has the conduct of Manuel Pinto and of the Nereide been such as to impress the hostile character on that part of the cargo which was in fact neutral? \nIn considering this question the Court has examined separately the parts which compose it. \nThe vessel was armed, was the property of an enemy,  and made resistence. How do these facts affect the claim? \nHad the vessel been armed by Pinto, that fact would certainly have constituted an important feature in the case. But the Court can perceive no reason for believing she was armed by him. He chartered, it is true, the whole vessel, and that he might as rightfully do as contract for her partially; but there is no reason to believe that he was instrumental in arming  her. The owner stipulates that the Nereide \"well manned, victualled, equipped, provided and furnished with all things needful for such a vessel,\" shall be ready  to take on board a cargo to be provided for her. The Nereide, then, was to be put, by the owner, in the condition in which she was to sail. In equipping her, whether with or without arms, Mr. Pinto was not concerned. It appears to have been entirely and exclusively the act of the belligerent owner. \nWhether the resistance, which was actually made, is in any degree imputable to Mr. Pinto, is a question of still more importance. \nIt has been argued that he had the whole ship, and that, therefore, the resistance was his resistance. \nThe whole evidence upon this point is to be found in the charter party, in the letter of instructions to the master, and in the answer of Pinto to one of the interrogatories in preparatorio. \nThe charter party evinces throughout that the ship remained under the entire direction of the owner, and that Pinto in no degree partionparted in the command of her. The owner appoints the master and stinulates for every act to be performed by the ship, from the date of the charter party to the termination of the voyage. In no one respect, except in lading the vessel, was Pinto to have any direction of her. \nThe letter of instructions to the master contains full  directions for the regulation of his conduct, without any other reference to Mr. Pinto than has been already stated. That reference shows a positive limitation of  his power by the terms of the charter party. Consequently he had no share in the government of the ship. \nBut Pinto says in his answer to the 6th interrogatory that \"he had control of the said ship and cargo.\" \nNothing can be more obvious than that Pinto could understand himself as saying no more than that he had the control of the ship and cargo so far as respected her lading.A part of the cargo did not belong to him, and was not consigned to him. His control over the ship began and ended with putting the cargo on board. He does not appear ever to have exercised any authority in the management of the ship. So far from exercising any during the battle, he went into the cabin where he remained till the conflict was over. It is, then, most apparent that when Pinto said he had the control of the ship and cargo, he used those terms in a limited sense. He used them in reference to the power of lading her, given him by the charter party. \nIf, in this, the Court be correct, this cause is to be governed by the  principles which would apply to it had the Nereide been a general ship. \nThe next point to be considered is the right of a neutral to place his goods on board an armed belligerent merchantman. \nThat a neutral may lawfully put his goods on board a belligerent ship for conveyance on the ocean, is universally recognized as the original rule of the law of nations. It is, as has already been stated, founded on the plain and simple principle that the property of a friend remains his property wherever it may be found. \"Since it is not,\" says Vattel, \"the place where a thing is which determines the nature of that thing, but the character of the person to whom it belongs, things belonging to neutral persons which happen to be in an enemy's country, or on board an enemy's ships, are to be distinguished from those which belong to the enemy.\" \nBynkershoek lays down the same principles in terms equally explicit; and in terms entitled to the more consideration, because he enters into the enquiry whether a  knowledge of the hostile character of the vessel can effect the owner of the goods. \nThe same principle is laid down by other writers on the same subject, and is believed to be contradicted  by none. It is true there were some old ordinances of France declaring that a hostile vessel or cargo should expose both to condemnation. But these ordinances have never constituted a rule of public law. \nIt is deemed of much importance that the rule is universally laid down in terms which comprehend an armed as well as an unarmed vessel; and that armed vessels have never been excepted from it. Bynkershoek, in discussing a question suggesting an exception, with his mind directed to hostilities, does not hint that this privilege is confined to unarmed merchantmen. \nin point of fact, it is believed that a belligerent merchant vessel rarely sails unarmed, so that this exception from the rule would be greater than the rule itself. At all events, the number of those who are armed and who sail under convoy, is too great not to have attracted the attention of writers on public law; and this exception to their broad general rule, if it existed, would certainly be found in some of their works. It would be strange if a rule laid down, with a view to war, in such broad terms as to have universal application, should be so construed as to exclude from its operation almost every case for which  it purports to provide, and yet that not a dictum should be found in the books pointing to such construction. \nThe antiquity of the rule is certainly not unworthy of consideration. It is to be tracted back to the time when almost every merchantman was in a condition for selfdefence, and the implements of war were so light and so cheap hat scarcely any would sail without them. \nA belligerent has a perfect right to arm in his own defence; and a neutral has a perfect right to transport his goods in a belligerent vessel. These rights do not interfere with each other. The neutral has no control over the belligerent right to arm -- ought he to be accountable for the exercise of it? \n By placing neutral property in a belligerent ship, that property, according to the positive rules of law, does not cease to be neutral.Why should it be changed by the exercise of a belligerent right, universally acknowledged and in common use when the rule was laid down, and over which the neutral had no control? \nThe belligerent answers, that by arming his rights are impaired. By placing his goods under the guns of an enemy, the neutral has taken part with the enemy and assumed the hostile character. \n Previous to that examination which the Court  has been able to make of the reasoning by which this proposition is sustained, one remark will be made which applies to a great part of it. The argument which, taken in its fair sense, would prove that it is unlawful to deposit goods for transportation in the vessel of an enemy generally, however imposing its form, must be unsound, because it is an contradiction to acknowledged law. \nIt is said that by depositing goods on board an armed belligerent the right of search may be impaired, perhaps defeated. \nWhat is this right of search?Is it a substantive and independent right wantonly, and in the pride of power, to vex and harrass neutral commerce, because there is a capacity to do so? or to indulge the idle and mischievous curiosity of looking into neutral trade? or the assumption of a right to control it? If it be such a substantive and independent right, it would be better that cargoes should be inspected in port before the sailing of the vessel, or that belligerent licenses should be procured. But this is not its character. \nBelligerents have a full and perfect right o capture enemy goods and articles going to their enemy  which are contraband of war. To the exercise of that right the right of search is essential. It is a mean justified by the end. It has been truely denominated a right growing out of, and ancillary to the greater right of capture. Where this greater right may be legally exercised  without search, the right of search can never arise or come into question. \nBut it is said that the exercise of this right may be prevented by the inability of the party claiming it to capture the belligerent carrier of neutral property. \nAnd what injury results from this circumstance? If the property be neutral, what mischief is done by its escaping a search. In so doing there is no sin even as against the belligerent, if it can be effected by lawful means. The neutral cannot justify the use of force or fraud, but if by means, lawful in themselves, he can escape this vexatious procedure, he may certainly employ them. \nTo the argument that by placing his goods in the vessel of an armed enemy, he connects himself with that enemy and assumes the hostile character; it is answered that no such connexion exists. \nThe object of the neutral is the transportation of his goods. His connexion with  the vessel which transports them is the same, whether that vessel be armed or unarmed. The act of arming is not his -- it is the act of a party who has a right so to do.He meddles not with the armament nor with the war.Whether his goods were on board or not, the vessel would be armed and would sail. His goods do not contribute to the armament further than then freight he pays, and freight he would pay were the vessel unarmed. \nIt is difficult to perceive in this argument any thing which does not also apply to an unarmed vessel. In both instances it is the right and the duty of the carrier to avoid capture and to prevent a search. There is no difference except in the degree of capacity to carry this duty into effect. The argument would operate against the rule which permits the neutral merchant to employ a belligerent vessel without imparting to his goods the belligerent character. \nThe argument respecting resistance stands on the same ground with that which respects arming. Both are lawful. Neither of them is chargeable to the goods  or their owner, where he has taken no part in it. They are incidents to the character of the vessel; and may always occur where the  carrier is belligerent. \nIt is remarkable that no express authority on either, side of this question can be found in the books. A few scanty materials, made up of inferences from cases depending on other principles, have been gleaned from the books and employed by both parties. They are certainly not decisive for or against either. \nThe celebrated case of the Swedish convoy has been pressed into the service. But that case decided no more than this, that a neutral may arm, but cannot by force resist a search. The reasoning of the judge on that occasion would seem to indicate that the resistance condemned the cargo, because it was unlawful. It has demned the cargo, because it was unlawful. It has been inferred on the one side that the goods would be infected by the resistance of the ship, and on the other that a resistance which is lawful, and is not produced by the goods, will not change their character. \nThe case of the Catharine Elizabeth approaches more nearly to that of the Nereide, because in that case as in this there were neutral goods and a belligerent vessel. It was certainly a case, not of resistance, but of an attempt by a part of the crew to seize the capturing vessel.  Between such an attempt and an attempt to take the same vessel previous to capture, there does not seem to be a total dissimilitude. But it is the reasoning of the judge and not his decision, of which the Claimants would avail themselves. He distinguishes between the effect which the employment of force by a belligerent owner or by a neutral owner would have on neutral goods. The first is lawful, the last unlawful. The belligerent owner violates no duty. He is held by force and may escape if he can. From the marginal note it appears that the reporter understood this case to decide in principle that resistance by a belligerent vessel would not confiscate the cargo. It is only in a case without express authority that such materials can be relied on. \nIf the neutral character of the goods is forfeited by the resistance of the belligerent vessel, why is not the neutral character of the passengers forfeited by the same  cause? The master and crew are prisoners of war, why are not those passengers who did not engage in the conflict also prisoners? That they are not would seem to the Court to afford a strong argument in favor of the goods.The law would operate in the  same manner on both. \nIt cannot escape observation, that in argument the neutral freighter has been continually represented as arming the Nereide and impelling her to hostility. He is represented as drawing forth and guiding her warlike energies. The Court does not so understand the case. The Nereide was armed, governed, and conducted by belligerents. With her force, or her conduct the neutral shippers had no concern. They deposited their goods on board the vessel,  and stipulated for their direct transportation to Buenos Ayres. It is true that on her passage she had a right to defend herself, did defend herself, and might have captured an assailing vessel; but to search for the enemy would have been a violation of the charter party and of her duty. \nWith a pencil dipped in the most vivid colours, and guided by the hand of a master, a splendid portrait has been drawn exhibiting this vessel and her freighter as forming a single figure, composed of the most discordant materials, of peace and war. So exquisite was the skill of the artist, so dazzling the garb in which the figure was presented, that it required the exercise of that cold investigating faculty which ought  always to belong to those who sit on this bench, to discover its only imperfection; its want of resemblance. \nThe Nereide has not that centaur-like appearance which has been ascribed to her. She does not rove over the ocean hurling the thunders of war while sheltered by the olive branch of peace. She is not composed in part of the neutral character of Mr. Pinto, and in part of the hostile character of her owner. She is an open and declared belligerent; claiming all the rights, and subject to all the dangers of the belligerent character. She conveys neutral property which does not engage in her warlike equipments, or in any employment she may make of them; which is put on board solely for the purpose of transportation, and which encounters the hazard incident  to its situation; the hazard of being taken into port, and obliged to seek another conveyance should its carrier be captured. \nIn this it is the opinion of the majority of the Court there is nothing unlawful. The characters of the vessel and cargo remain as distinct in this as in any other case. The sentence, therefore, of the Circuit Court must be reversed, and the property claimed by Manuel Pinto for himself  and his partners, and for those other Spaniards for whom he has claimed, be restored, and the libel as to that property, be dismissed. \nJOHNSON, J. Circumstances, known to this Court, have imposed upon me, in a great measure, the responsibility of this decision. I approach the case with all the hesitation which respect for the opinion of others and a conviction of the novelty and importance of some of the questions are calculated to inspire. The same respect imposes upon me an obligation breifly to state the course of reasoning by whcih I am led to my conclnsion. \nOn the minor points I feel no difficulty. There is nothing to support the charge of English domicilitation; the charges of prevarication are satisfactorily explained; and on the question of national character, we must yet awhile reluctantly yield to the acknowledgement that Buenos Ayres is not free. \nOn the construction of the spanish treaty, I feel as little hesitation. That a stipulation calculated solely to produce an extension of neutral rights, should invole in itself a restriction of neutral rights; that a mutual and gratuitous concession of abelligerent right, should draw after it a necessary relinquishment of  a neutral right, which has never yielded but to express and (generally) extorted stipulation; are conclusions wholly irreconcilable to any priciple of logical deduction. \nNor does the argument rounded on reciprocity stand on any better ground. There is a principle of reciprocity known to Courts administering inter-national law; but I trust it is a reciprocity of benevolence, and that the angry passions which produce revenge and retaliation will never exert their influence on the administration of  justice. Dismal would be the state of the world, and melancholy the office of judge, if all the vils which the perfidy and injustice of power inflict on individual man, were to be reflected from the tribunals which profess peace and good will to all mankind. Nor is it easy to see how this principle of reciprocity, on the broad scale by which it has been protracted in this case, can be reconciled to the distribution of power made in our constitution among the three great departments of government. To the legislative power alone it must belong to determine when the violence of other nations is to be met by violence. To the judiciary, to administer law and justice as it is, not  as it is made to be by the folly or caprice of other nations. \nThe last question in the case is the only one on which I feel the slightest difficulty. \nThe general rule, the incontestible principle is, that a neutral has a right to employ a belligerent carriers. He exposes himself thereby to capture and detention, but not to condemnation. \nTo support the condemnation in this case, it is necessary to establish an exception to this rule; and it is important to lay down the exceptions, contended for, with truth and precision. \nIn he first place, it is contended that a neutral has not a right to transport his goods on board of an armed belligerent. \nSecondly, that if this right be conceded, Pinto, in this case, has carried the exercise of it beyond the duties of fair neutrality; \n1. By laying the vessel under the obligation of a contract to sail with convoy: \n2. By chartering an entire armed vessel of the enemy, and thus expediting an armed hostile force: \n3. By taking in enemy goods on freight, and thereby laying himself under an implied contract that the armament of the vessel should be used in its defence: \n 4. It was also contended that he had, in fact, armed the vessel  after chartering her, and increased her force by admitting passengers: \n5. That the correspondence, found on board, shews that the armament was immediately directed against capture by Americans. \nOn the first and principal ground much may be said, but nothing added to the ingenious discussion which is has received from counsel. \nThe question is, why may not a neutral transport his goods on board on armed belligerent? No writer on the law of nations has suggested this restriction on his rights; and it can only be sustained on the ground of its obstructing the exercise of some belligerent right. What belligerent right does it interfere with? Not the right of search, for that has relation to the converse case; it is a right resulting  from the right of capturing enemy's goods in a neutral bottom. It must be then the right, which every nation asserts, of being the sole arbiter of its own conduct towards other nations, and deciding for itself, whether property, claimed as neutral, be owned as claimed. The question is thus fairly stated between the neutral and belligerent. On the one hand, the neutral claims the right of transporting his goods in the hostile bottom: On  the other, the belligerent objects to his doing it under such circumstances as to impair his right of judging, between himself and the neutral, on the neutrality of his property and conduct. The evidence of authority, the practice of the world, and the reason and nature of things must decide between them. \nAll these are, in my opinion, in favor of the neutral claim. \nEvery writer on inter-national law acknowledges the right of the neutral to transport his goods in a hostile bottom. No writer has restricted the exercise of that right to unarmed ships. \nEvery civilized nation (with the exception of Spain) has unequivocally acknowledged the existence of this right, unless it be relinquished by express stipulation  and, even with regard to Spain, the evidence is wholly unsatisfactory to prove that she maintains a different doctrine. My present belief is, that she does not; but, admit that she does; and surely the practice of one nation, and that one not the most enlightened or commercial, ought not to be permitted to control the law of the world. \nAnd what is the decision of reason on the merits of these conflicting pretensions? \nHer first and favorite answer would be, that  were the scales equally suspended between the parties, the decision ought to be given in favor of humanity. \nAlready is the aspect of the world sufficiently darkened by the horrors of war. It is time to listen to the desponding claims of man engaged in the peaceful pursuits of life. \nBut there are considerations in favor of the neutral to which the heart need not assent; they are addressed to the judgment alone. \nAdmit the claim of the bellingerent, and you fritter away the right of the neutral until it is attenuated to a vision. \nAdmit the claim of the neutral and it is attended with a very immaterial change in the rights and interests of the belligerent. \nWhere are we to draw the line? If a vessel is not to be armed, what is to amount to an exceptionable armament? It extends to an absolute and total privation of the right of arming a hostile ship. Resistance, and even capture, is lawful to any belligerent that is attacked. \nOn the other hand, what injury is done to the belligerent by recognizing the right of the neutral? The cargo of a belligerent neither adds to nor diminishes his right to resist. If empty he must be subdued before he can be possessed; and, if laden, the right  or faculty, of resistance is in no wise increased. It is inherent in her national character, and can be exercised by strict right, without any reference to the cargo that she contains.  Suppose the case of a vessel and cargo wholly neutral; even she possesses a natural right to resist seizure; but her resistance must be effectual, or international law pronounces her forfeited. What injury results to the belligerent cruizer? If the cargo be really neutral, the exercise of his right of judging becomes immaterial; and if it be contraband, or otherwise subject to condemnation, what reason in nature can be assigned why the neutral owner should not throw himself upon the fortune of war, and rely upon the protection of your enemy? You treat him as an enemy, if captured, and why should not he regard you as an enemy, and provide for his defence against you? I can very well conceive that a case may occur in which it may become he policy of this country to throw down the gauntlet to the world and assert a different principle. But the policy of these States is submitted to the wisdom of the legisture, and I shall feel myself bound by other reasons until the constitutional power  shall decide what modifications it will prescribe to the exercise of any acknowledged neutral right. \nThe second ground of exception resolves itself into several points, and presents to my mind the greatest difficulties in the case. \n1. There is a stipulation contained in the charterparty that the vessel shall sail with convoy. \n2. Pinto chartered the whole vessel. \n3. He took in sub-affreightment of hostile goods. \n4. It is contended he had contributed to the arming and manning of the vessel after chartering her. \n5. And that her equipment was pointedly against American capture. \nWith regard to the two latter points I am of opinion that the evidence does not prove that Pinto contributed to the armament of the vessel; and if she was armed by the owners, that it was against American capture is immaterial. As to the passengers, Pinto had no control over the reception of them into the vessel. He had  taken the hold and two births in the cabin; as to the residue it remained subject to the disposal of the captain or owner. \nWith regard to the three other points, after the best consideration that I have been able to give the subject, I satisfy my mind by two considerations. \n 1. I will not now give an opinion upon the abstract case of an individual neutral to all the world. It is known that Pinto was liable to capture both by the French and Carthagenians. This justified him in placing himself under British protection; and if, in the exercise of this unquestionable right, he has incidentally impaired the exercise of our right of seizure for adjudication, we have nothing to complain of. The case occurs daily; and nothing but candor and fairness can be exacted of a neutral under such circumstances. \n2. There appears to prevail much misconception with regard to the control acquired by Pinto, in this vessel, under the charter party. His contract gave him the occupation of the hold of the vessel and two births in the cabin; but went no farther. Over the conduct of the master and crew, in navigating or defending the vessel, it communicated to him no power. It is true that by the conduct of the master and the fate of the vessel, he might be incidentally affected as a sub-freighter, and so far he had an interest in her defence; still, however, it is reducible to the goneral interest which he  had in the performance of the voyage, and it does  not appear that he ever acted under an idea of being authorized to control the conduct of the captain, or took any part in the conflict which preceded the capture. \nI am of opinion that the judgment should be reversed and the property restored. \nSTORY, J. My opinion will be confined to the point last argued because it definitively disposes of the cause against the claim of Mr. Pinto. \nThe facts material to this point are that Mr. Pinto chartered the Nereide, an uncommissioned armed ship belonging to British subjects, for a voyage from London  to Buenos Ayres, and back to Longdon at a stipulated freight. The ship was to be navigated during the voyage at the expense of the general owner, who expressly covenanted, in the charter-party with Mr. Pinto, that she should sail on the voyage under British convoy. Mr. Pinto, having thus hired the whole ship, took on board sundry shipments, partly on his own or Spanish account, and partly on account of British merchants from whom he was to receive, in lieu of freight, a portion of the profits and commissions. The Nereide sailed with her cargo under British convoy, and with instructions from the owner to the master to govern himself,  in relation to the objects of the charter-party, according to the direction of Mr. Pinto who accompanied the ship in the voyage. During the passage to Buenos Ayres, the Nereide was accidentally separated from the convoy, and, while endeavoring to regain it, was, after a vigorous but unsuccessful resistance, captured by the privateer Governor Tompkins, and brought into New York for adjudication. \nIt is explicitly asserted, in the testimony, that Mr. Pinto took no part in the resistance at the time of the capture. \nThe question is, whether, upon these facts, Mr. Pinto, assuming him to be a neutral, has so incorporated himself with the enemy interests as to forfeit that protection which the neutral character would otherwise afford him. \nThe general doctrine, though formerly subject to many learned doubts, is now incontrovertibly established, that neutral goods may be lawfully put on board of an enemy ship without being prize of war. As this doctrine is asserted in the most broad and unqualified manner in publicists, it is thence attempted to be inferred, by the counsel for the Claimant, that no distinction can exist whether the ship be armed or unarmed, or be captured with or without  resistance -- arguments of this sort are liable to many objections, and are in general wholly unsatisfactory. Elementary writers rarely explain the principles of public law with the minute distinctions which legal precision requires. Many of the most important doctrines of the prize Courts will not be found to be treated of, or even glanced at, in the elaborate treatises of Grotius, or Puffendorf, or Vattel. A striking illustration is their total silence as to the illegality and penal  consequences of a trade with the public enemy. Even Bynkershoek, who writes professedly on prize law, is deficient in many important doctrines which every day regulate the decrees of prize tribunals. And the complexity of modern commerce has added incalculably to the number as well as the intricacy of questions of national law. In what publicist are to be found the doctrines as to the illegality of carrying enemy dispatches, and of engaging in the coasting, fishing or other privileged trade of the enemy? Where are transfers in transitu pronounced to be illegal? Where are accurately and systematically stated all the circumstances which impress upon the neutral a general, or a limited,  hostile character, either by reason of his domicil, his territorial possessions, or his connexion in a house of trade, in the enemy country? The search would be nearly in vain in the celebrated Jurists whose authority has been quoted to silence the present enquiry. Yet the argument would be no less forcile that these doctrines have not a legal existence because not found in systematic treatises on the law of nations, than that which has been so earnestly pressed upon us by the counsel for the Claimants. The assumed inference is then utterly inadmissible. The quesiton before the Court must be settled upon other grounds; upon a just application of the principles which regulate neutral, as well as belligerent, rights and duties. Let us then proceed to consider them: -- \nIt is a clear maxim of national law that a neutral is bound to a perfect impartiality as to all the belligerents. If he incorporate himself into the measures or policy of either; if he become auxiliary to the enterprizes or acts of either, he forfeits his neutral character -- nor is this all. In relation to his commerce he is bound to submit to the belligerent right of search, and he cannot lawfully adopt any measures  whose direct object is to withdraw that commerce from the most liberal and accurate search without the application on the part of the belligerent of superior force. If he resist this exercise of lawful right, or if, with a view to resist it, he take the protection of an armed neutral convoy, he is treated as an enemy, and his property is confiscated. Nor is it at all material whether the resistance be direct or constructive. The resistance of the convoy is the resistance of all the ships associated under the common protection, without any  distinction whether the convoy belong to the same or to a foreign, neutral sovereign -- for upon the principles of natural justice, a neutral is justly chargeable with the acts of the party, which he voluntarily adopts, or, of which he seeks the shelter and protection. Qui sentit commodum sentire debet et onus -- these principles are recognized in the memorable cases of the Maria, 1, Rob. 340, and the Elsebe, 5, Rob. 173; and can never be shaken without delivering over to endless controversy and conflict the maritime rights of the world. \nIt has however been supposed, by the counsel of the Claimants, that a distinction exists between  taking the protection of a neutral, and of a belligerent, convoy. That in the former case all armament for resistance is unlawful; but in the latter case it is not only lawful but in the highest degree commendable. That although an unlawful act, as resistance by a neutral convoy, may justly affect the whole associated ships; yet it is otherwise of a lawful act, as resistance of a belligerent ship, for no forfeiture can reasonably grow out of such an act which is strictly justifiable. \nThe fallacy of the argument consists in assuming the very ground in controversy; and in  confounding things, in their own nature entirely distinct. An act perfectly lawful in a belligerent, may be flagrantly wrongful in a neutral. A belligerent may lawfully resist search; a neutral is bound to submit to it. A belligerent may carry on his commerce by force; a neutral cannot. A belligerent may capture the property of his enemy on the ocean; a neutral has no authority whatever to make captures. The same act, therefore, that, with reference to the rights and duties of the one, may be tortious, may, with reference to the rights and duties of the other, be perfectly justifiable. The act then,  as to its character, is to be judged of, not merely by that of the parties, through whose immediate instrumentality it is done; but also by the character of those, who, having co-operated in, assented to, or sought protection from, it, would yet withdraw themselves from the penalties of the act. It is analogous to the case at common law where an act, justifiable in one party, does not, from that fact alone, shelter his coadjutor. They must stand or fall upon  their own merits. It would be strange indeed, if, because a belligerent may kill his enemy, a neutral may aid in the act; or because a belligerent may resist search, a neutral may co-operate to make it effectual. It is therefore an assumption, utterly inadmissible, that a neutral can avail himself of the lawful act of an enemy to protect himself in an evasion of a clear belligerent right. \nAnd what reason can there be for the distinction contended for? Why is the resistance of the convoy deemed the resistance of the whole neutral associated ships, let them belong to whom they may? It is not that these is a direct and immediate co-operation in the resistance, because the case supposes the contrary. It is not that  the resistance of the convoy of the sovereign is deemed an act to which all his own subjects consent, because the ships of foreign subjects would then be exempted. It is because there is a constructive resistance resulting in law from the common association and voluntary protection against search under a full knowledge of th intentions of the convoy? Then the principle applies as well to a belligerent as to a neutral convoy? For it is manifest that the belligerent will at all events resist search; and it is quite as manifest that the neutral seeks belligerent protection with an intent to evade it. Is it that an evasion of search, by the employment, protection, or, terror of force, is inconsistent with neutral duties? Then a fortiori the principle applies to a case of belligerent convoy, for the resistance must be presumed to be more obstinate and the search more perilous. \nThere can be but little doubt that it is upon the latter principles that the penalty of confiscation is applied to neutrals. The law procees yet farther and deems the sailing under convoy as an act per se inconsistent with neutrality, as a premeditated attempt to oppose, if practicable, the right of search,  and therefore attributes to such preliminary act, the full effect of actual resistance. In this respect it applies a rule analogous to that in cases of blockade, where the act of sailing with an intent to break a blockade is deemed a sufficient breach to authorize confiscation. And sir W. Scott manifestly recognizes the correctness of this doctrine in the Maria,  although the circumstances of that case did not require its rigorous application. \nIndeed, in relation to a neutral convoy, the evidence of an intent to resist, as well as of constructive resistance, is far more equivocal than in case of a belligerent convoy. In the latter case it is necessarily known to the convoyed ships that the belligerent is bound to resist and will resist until overcome by superior force. It is impossible therefore to join such convoy without an intention to receive the protection of belligerent force in such manner and under such circumstances as the belligerent ay choose to apply it. It is an adoption of his acts, and an assistance of his interests during the assumed voyage. To render the convoy an effectual protection, it is necessary to interchange signals and instructions, to communicate  information, and to watch the approach of every enemy. The neutral solicitously aids and co-operates in all these important transactions, nd thus far manifestly sides with the belligerent and performs, as to him, a meritorious service -- a service as little reconcileable with neutral duties, as the agency of a spy, or the fraud of a bearer of hostile dispatches. In respect to a neutral convoy the inference of constructive co-operation and hostility is far less certain and direct. To condemn, in such case, is pushing the doctrine to a great extent, since it is acting upon the presumption, which is not permitted to be contradicted, that all the convoyed ships distinctly understood and adopted the objects of the convoy, and intimately blended their own interests with hostile resistance. \nThere is not, then, the slightest reason for the favorable distinction, as to the belligerent convoy, assumed by counsel. On the contrary, every presumption of hostility is, in such case, more violent, and every suspicion of unneutral conduct more inflamed. And so in the argument of the Maria, 1 Rob. 346, it was conceded by the counsel for the Claimants, and recognized by the Court. It was there  said by counsel that it seemed admitted by the Court on a former day that there was a just distinction to be made between the two cases of convoy, viz: between the convoy of an enemy's force, and a neutral convoy; that the former (i.e. enemy convoy) would stamp a primary character of hostility on all ships  sailing under its protection, and it would rest on the parties to take themselves out of the presumption raised against them; but that, even it that case, it would be nothing more than a presumption, which had been determined by a late case before the Lords, the Sampson, Barney, an asserted American ship sailing with French cruizers at the time they engaged some English ships, and communicating with the French ships by signal for battle. That, in that case, although there had been a condemnation in the Court below, the Lords sent it to farther proof to ascertain whether there had been an actual resistance. Sir Wm. Scott emphatically observed, \"I do not admit the authority of that case to the extent to which you push it. That question is still reserved, although the Lords might wish to know as much of the facts as possible.\" It is clear, from this language, that the  learned judge did not admit that the  party could be legally permitted to contradict the presumption of hostility attached to the sailing under an enemy convoy. On the contrary, he seemed to consider that the primary character of hostility, which, it was conceded on all sides, was stamped upon such conduct, could not be permitted to be rebutted, but was conclusive upon the party. The case of the Sampson was originally heard before the Court of vice admiralty, and the decree of condemnation was never disapproved of, it not ultimately affirmed, by the Lords of Appeal. I have been assured by very respectable authority that no proof of actual resistance ever was, or could have been, made on the final hearing.The case, therefore, affords a strong inference of the law as understood and administered in the prize Courts of Great Britain. \nAnd it may be added, in corroboration, that in Smart v. Wolff, 3 T.R. 323, 332, sir W. Scott (then advocate general) asserted, without hesitation, that if the neutral refused search, or sailed under convoy of the enemy's ships of war, or conveyed intelligence to the enemy, they are wavers of the rights of neutrality. The very circumstance of  his putting these three cases in connexion to illustrate his general argument, affords the most cogent proof that he considered himself as stating a doctrine equally clear and well established as to all of them. 1 \n  And this doctrine seems conformable to the sense of other European sovereigns. In the recent cases of the American ships captured while under British convoy by the Danes, the right of condemnation was not only asserted and enforced by the highest tribunal of prize, but expressly affirmed by the Danish sovereign after an earnest appeal made by the government of the United States. On that occasion the Danish minister pressed the argument \"that he who causes himself to be protected by that act, (i.e. enemy convoy) ranges himself on the side of the protector, and thus puts himself in opposition to the enemy of the protector, and evidently renounced the advantages attached to the character of a friend to him against whom he seeks the protection. If Denmark should abandon this principle, the navigators of all nations would find their account in carrying on the commerce of Great Britain, under the protection of English ships of war without any risk;\" and he further declared \"that none of the powers in Europe have called in question the justice of this principle.\" States papers, 1811, p. 527. \nIt cannot be denied that our own government have acquiesced in the truth and correctness of this  statement. And if to the general silence of the other European sovereigns we add the possitive examples of Great Britain and Denmark, (the latter of whom has not of late years been deficient in zeal for neutral rights) it seems difficult to avoid the conclusion that the doctrine is as well founded in national law, as it seems to me to be in justice and sound policy. \nAnother argument which has been urged in favor of the assumed distinction ought not, however, to be omitted. It is that a party, neutral as to one power, may be  an enemy as to another power, and he may lawfully place himself under belligerent convoy to escape from his own enemy. In such a predicament it is, therefore, always open to the neutral to explain his conduct in taking convoy, and to show, by proofs, his innocent intentions as to all friendly belligerents. In my judgment this supposed state of things would not remove a single difficulty. \nIt is not in relation to enemies that the question as to taking convoy can ever arise. It has reference only to the rights of friendly belligerents; and these rights remain precisely the same whatever may be the peculiar situation of the neutral as to third parties.  Was it ever heard of that a neutral might lawfully resist the right of search of one power, because he was at war with another? And is not the evasion of this right just as injurious whether the neutral be at peace with all the world, or with a part only? \nThere would be extreme difficulty in establishing, by any disinterested testimony, the fact of any such special intentions as the argument supposes. Independent of this difficulty, it would, in effect, be an attempt to repel, by positive testimony, a conclusive inference of law flowing from the very act of taking convoy. The belligerent convoy is bound to resist all visitations by enemy ships, whether neutral to the convoyed ships or not. This obligation is distinctly known to the party taking its protection. If, therefore, he choose to continue under the convoy, he shows an intention to avail himself of its protection under all the chances and hazards of war. The abandonment of such intention cannot be otherwise evidenced than by the overt act of quitting convoy. And it is impossible to conceive that the mere secret wishes or private declarations of a party could prevail over his own deliberate act of continuing under convoy,  unless Courts of prize would surrender themselves to the most stale excuses and imbecile artifices. It would be in vain to administer justice in such Courts, if mere statements of intention would outweigh the legal effects of the acts of the parties. Besides, the injury to the friendly belligerent is equally great whatever might be the special objects of the neutral. The right of search is effectually prevented by the presence of superior  force, or exercised only after the perils and injuries of victorious warfare. And it is this very evasion of the right of search that constitutes the ground of condemnation in ordinary cases. The neutral, in effect, declares that he will not submit to search until the enemy convoy is conquered, and then only because he cannot avoid it. The special intention of the neutral then could not, if proved, upon principle prevail, and it has not a shadow of authority to  sustain it. The argument upon this point was urged in the Maria and Elsebe, and was instantly repelled by the Court. \nOn the whole, on this point my judgment is, that the act of sailing under belligerent or neutral convoy is of itself a violation of neutrality,  and the ship and cargo if caught in delicto are justly confiscable; and further, that if resistance be necessary, as in my opinion it is not, to perfect the offence, still that the resistance of the convoy is to all purposes the resistance of the associated fleet. It might, with as much propriety, be maintained that neutral goods, guarded by a hostile army in their passage through a country, or voluntarily lodged in a hostile fortress, for the avowed purpose of evading the municipal rights and regulations of that country, should not in case of capture be lawful plunder, (a pretension never yet asserted) as that neutral property on the ocean should enjoy the double protection of was and peace. \nIf these principles be correct, it remains to be considered how far the conduct of Mr. Pinto brings him within the range of their influence. It is clear that in the original concoction of the voyage it was his intention to avail himself of British convoy. The covenant in the charter party demonstrates this intention; a covenant that, from its terms, being made by the ship owner, must have been inserted for the benefit and at the instance of the charterer. Under the faith of this stipulation  Mr. Pinto put his own property on board and received shipments from persons of an acknowledged hostile character. The ship sailed on the voyage, under British convoy, with Mr. Pinto on board, and though captured after a separation from the convoy, she was in the very attempt to rejoin it. There is no pretence, therefore, of an abandonment of the convoy, and the  corpus delicti, the character of hostility, impressed by the sailing under convoy, if any attached, remained notwithstanding the separation. It is like the sailing for a blockaded port, where the offence continues, although at the monent of capture the ship be, by stress of weather, driven in a direction from the port of destination; for the hostile intention still remains unchanged. \nAnd here to avoid the effect of the general doctrine, we are met with another distinction founded upon the supposed difference between a belligerent and a neutral merchant ship as to the taking of convoy. It is argued that the belligerent ship has an undoubted right to take the protection of the convoy of the nation to which she belongs; and that this extends a perfect and lawful immunity to the neutral cargo on board. \nIt is certainly  incumbent on the counsel for the Claimant to support this exception to the general rule by precedent or analogy. Nothing has been offered which, in my judgment, affords it the slightest support. It is not true that a neutral can shelter his property from confiscation behind an act lawful in a belligerent. The law imputes to the neutral the consequences of the act if he might have foreseen and guarded against it, or if he voluntarily adopts it. Was it ever supposed that a neutral cargo was protected from seizure by going in a belligerent ship to a blockaded port? or that contraband goods, belonging to a neutral, were exempted from confiscation because on board of such a ship bound on a voyage lawful to the belligerent, but not to the neutral? yet the pretensions in these cases seem scarcely more extravagant than that now urged. Why should a neutral be permitted to do that indirectly which he is prohibited from doing directly? Why should he aid the enemy by giving extraordinary freight for belligerent ships sailing under belligerent convoy with the avowed purpose of escaping from search, and often with the concealed intention of aiding belligerent commerce, and yet claim the  benefits of the most impartial conduct? Until some more solid ground can be laid for the distinction than the ingenuity of counsel has yet suggested, it would seem fit to declare ita lex non scripta est. \nBut even if the distinction existed, it could not apply  to the case at bar. This is a case where the Claimant becomes the charterer of the whole vessel for the voyage and stipulates for the express benefit of convoy. The ship, though navigated by a belligerent master and crew, was necessarily under the control and management of the charterer. He was the real effective dux negotii. Whatever may be the technical doctrine of the common or prize law as to the general property in the ship, the charterer was, to all purposes important in this enquiry, the owner for the voyage, and the master his agent. Can there be a doubt that, as to the shipments of the enemy freighters, Mr. Pinto was responsible or the acts of the master? Was he not materially interested in the safety and protection of these shipments in respect to freight, commissions and profits? If they had been lost by capture, from the negligence of Mr. Pinto or of the master, when by ordinary diligence and resistance  the loss might have been avoided, would not Mr. Pinto have been responsible? How then it can be consistently held that the ship was not essentially governed and managed by Mr. Pinto, and all her conduct incorporated with his interests, I profess to be unable to comprehend. For wat purpose should he insist on a covenant for convoy, if he never meant to derive aid and protection from it to the whole cargo on board, and to range himself and his interests on the side of resistance? His private conduct at the time of the capture, when resistance was almost hopeless, affords no evidence to repel the irresistible presumptions from his deliberate acts. \nAnd here again it has been argued that Mr. Pinto had no hostile intentions against the United States; but that the taking of convoy was simply to resist the French and Carthagenians, who are the enemies of his own country. If such special intention could, in point of law, uphold his claim which, for the reasons already stated, I am entirely satified it could not, yet there is not, in the present case, within my recollection, any proof of such special intention. It rests upon the mere suggestions of counsel. How, indeed, could Mr. Pinto  show that he meant to yield his property to the search of the cruizers of the United States, when the deliberate act of assuming British convoy precluded the possibility of its exercise, unless acquired by victory after resistance? \n If this view of the case be correct, it must be pronounced that Mr. Pinto, by voluntarily sailing under convoy, forfeited his  neutrality, and bound his property to an indissolubly hostile character. \nThis, however, is not the only ground upon which the claim of Mr. Pinto ought to be repudiated. There was not merely the illegality of sailing under enemy convoy up to the very eve of capture, but the fact of actual resistance of the chartered ship, and submission to search only in consequence of superior force. \nAn attempt, however, is made to extract the case at bar, from the penalty of confiscation attached to resistance of search, upon the ground that Mr. Pinto took no part in this resistance. It is asserted, that a shipper in a general ship is not affected by the act of the enemy master; that the charterer of the whole ship is entitled to as favorable a consideration; and that there is no difference, in point of law, whether the  ship have, or have not a commission, or be, or be not armed. It will be necessary to give to these positions a full examination. \nIn the first place, it is to be considered whether a neutral shipper has a right to put his property on board of an armed belligerent ship without violating his neutral duties. If the doctrine already advanced on the subject of convoy be correct, it is incontestible that he has no such right. If he cannot take belligerent convoy, a fortiori he cannot put his property on board of such convoy; or, what is equivalent, on board of an armed and commissioned ship of the belligerent. What would be the consequences if neutrals might lawfully carry on all their commerce in the frigates and ships of war of another belligerent sovereign? That there would be a perfect identity of interests and of objects, of assistance and of immunity, between the parties. The most gross frauds and hostile enterprizes would be carried on under neutral disguises, and the right of search would become as utterly insignificant in practice as if it were extinguished by the common consent of nations. The extravagant premiums and freights which neutrals could well afford to pay for this  extraordinary protection would enable the belligerent to keep up armaments of incalculable  size, to the dismay and ruin of inferior maritime powers. Such false and hollow neutrality would be infinitely more injurious than the most active warfare. It would strip from the conqueror all the fruits of victory, and lay them at the feet of those whose singular merit would consist in evading his rights, if not in collusively aiding his enemy. It is not therefore to be admitted that a neutral may lawfully place his goods under armed protection, on board of an enemy ship. Nor can it be at all material whether such armed ship be commissioned or not: that is an affair exclusively between a sovereign and his own subjects, but is utterly unimportant to the neutral. For whether the armament be employed for offence, or for defence, in respect to third parties, the peril and the abstruction to the right of search are equally complete. Nor is it true, as has been asserted in argument, that a non-commissioned armed ship has no right to capture an enemy ship, except in her own defence. The act of capture without such pretext, so far from being piracy, would be strictly justifiable  upon the law of nations, however it might stand upon the municipal law of the country of the capturing ship. Vattel has been quoted to the contrary; but on a careful examination, it will be found that his text does not warrant the doctrine. \nI have had occasion to consider this point in another cause, in this Court, and to the opinion then delivered I refer for a more full discussion of it. If the subject capture without a commission, he can acquire no property to himself in the prize; and if the act be contrary to the regulations of his own sovereign, he may be liable to municipal penalties for his conduct. But as to the enemy he violates no rights by the capture. Such, on an accurate consideration, will be found to be the doctrine of Puffendorf, and Grotius, and Bynkershoek, and they stand confirmed by a memerable decision of the lords of appeal, in 1759. 2 Brown's civil and adm. app. 524 -- Grotius lib. 3, ch. 6, s. 8, 9, 10 -- and Barbeyrac's note on s. 8, Puffendorf, lib. 8, ch. 6, s. 21, &c. Bynk. 2, P.J. ch. 3, 4, 16, 17. 2 Woodes. lect. 432.Consol. del. Mare ch. 287 288. 4 Inst. 152, 154. Zouch adm. 101. Casaregis Disc. 24 n. 24. Com. dig. admiralty. E. 3. Buls. c.  27. \nAdmitting, however, (what to me seems utterly inadmissible)  that a neutral may lawfully ship his goods on board the armed ship of an enemy, it will be of little avail, unless he is exempted from the consequences of all the acts of such enemy. If the shipment be innocent, it will be of little avail in this case, if the resistence of the enemy master will compromit the neutral character of the cargo. To the establishment, therefore, of such an exemption, the exertions of counsel have been strenuously directed. It has been inferred from the silence of elementary writers, from the authority of analagous cases, and from the positive declarations of the Court, in the Catherina Elizabeth, 5 Rob. 206. \nThe argument drawn from the silence of Jurists has been already sufficiently answered. It remains to consider that which is urged upon the footing of authority. The reasoning from supposed analagous cases is quite as unsatisfactory. It is not true, as to neutrals, that the act of the master never binds the owner of the cargo unless the master is proved to be the actual agent of the owner. The act of the master may be, and very often is, conclusive upon the cargo, although  no general agency is established. Suppose he violate a blockade, suppress and fraudulently destroy the ship's papers, or mix up under the same cover enemy interests, will not the cargo share the fate of the ship? The cases cited are mere exceptions to the general rule. They, in general, turn upon a settled distinction, that the act of the master shall not bind the cargo, where the act under the circumstances could not have been within the scope or contemplation of the shipper at the time of shipment; or where his ignorance of the voyage, and of the intended acts of the master, is placed beyond the possibility of doubt. See the Adonis, 5 Rob. 256. The very case of resistance is a strong illustration of the principle. The resistance of the neutral master, has been deliberately held to be conclusive on the neutral cargo. The Elzebe, 5 Rob. 173. The Catherina Elizabeth, 5 Rob. 206. What reason can there be for a different rule in respect to a belligerent master? \nIt must be admitted that the language of the Court in the case of the Catherina Elizabeth  would at first view, seem to support the position of the Claimant's counsel. On a close examination, however, it will  not be found to  assert so broad a doctrine. The case was of a rescue attempted by an enemy master having on board a neutral cargo; and this rescue attempted, not of the captured, but of the capturing, ship. It was argued that this resistance of the master exposed the whole cargo, entrusted to his management, to confiscation. The Court held that no such penalty was incurred. That the resistance could only be the hostile act of a hostile person who was a prisoner of war, and who, unless under parole, had a perfect right to emancipate himself by seizing his own vessel. That the case of a neutral master differed from that of an enemy master. No duty was violared by such an act on the part of the latter; lupum auribus teneo, and if he could withdraw himself he had a right so to do. And that a material fact in the case was, that the master did not attempt to withdraw his property, but to rescue the ship of the captor and not his own vessel. Such was the decision of the Court, upon which several observations arise. In the first place the resistance was not made previous to the capture; and therefore whatever may be the extent of the language, it must be restrained to  the circumstances of the case in judgment, otherwise it would be extra judicial. In the next place it would be impossible to conceive how the fact, as to what vessel was seized, could be material, if the argument of the present Claimant be correct, for in all events the resistance as to the cargo would be without any legal effects. In the last place it is clear, that the case is put by the Court upon the ground, that the master at the time of the act had been dispossessed of his vessel by capture, and was a prisoner of war. He was, therefore, no longer acting as master of the ship, and had no further management of her. His rights and duties, as master, had entirely ceased by the capture, and there could be no pretence to affect the ship or cargo with his subsequent acts, any more than with the acts of any other stranger. The case would have been entirely different with a neutral master, whose relation to his ship continues notwithstanding a capture and carrying in for adjudication. The case therefore admits of sound distinctions from that at bar, and cannot be admitted to govern it. \nThere is another text, not cited in the argument, which may be thought to favor the doctrine  of the Claimant's counsel. It is the only passage bearing on the subject in  controversy which has fallen under my notice in any elementary work. Casaregis, in his commercial discourses, (Disc, 24, n. 22) has the following remarks: -- Verum tamen notandum est quod si navis inimica onerata mercibus mercatorum amicorum aggressa fuerit alteram inimicam et mercatores aut domini mercium operam ac industrium dedissent pro ea aggredienda tunc merces dominorum cadunt etiam sub praeda, si navis predicta onerata mercibus fuerit depraedata, &c. &c. et regulariter bona eorum qui auxilium inimices nostris praestant vel confederati cum iis sunt, praedari possunt.\" It is obvious that Casaregis is here considering the case of an attack of an enemy merchant ship, laden with a neutral cargo, upon the ship of its enemy in which the former is unsuccessful and is captured. Under such circumstances he holds, that if the neutral shippers, or the persons having the management of the cargo (domini mercium) have aided in the attack, the cargo is forfeited, upon the ground that all who assist or confederate with an enemy are liable to be plundered by the law of war. He does not touch the case,  where an enemy merchant ship simply makes resistance in her own defence, or resists the right of search; nor how far the master of such ship is the dominus mercium, or can by his own acts bind the cargo. Much less has he discussed the question as to what acts amount to an incorporation into the objects and interests of the enemy, so as to affix a hostile character. It does not seem to me that his text can be an authority beyond the terms in which it is expressed.It pronounces affirmatively that a co-operation in an attack will induce confiscation of the cargo, (which cannot be doubted;) but it does not pronounce negatively that the resistance of an enemy master will not draw after it the same penalty. And if it were otherwise, it would deserve consideration whether the opinion of a mere elementary writer, respectable as he may be, delivered at a time when the prize law was not as well settled as it has been in the present age, should be permitted to regulate the maritime rights of belligerent nations. \nThe argument then, on the footing of authority, fails, for none is produced which directly points at circumstances like those in the case at bar. And upon principle it seems quite  as difficult to support it. I am unable  to perceive any solid foundation on which to rest a distinction between the resistance of a neutral and of an enemy master. The injury to the belligerent is in both cases equally great, for it equally withdraws the neutral property from the right of search, unless acquired by superior force. And until it is established that an enemy protection legally suspends the right of search, it cannot be that resistance to such right should not be equally penal in each party. I have, therefore, no difficulty in holding that the resistance of the ship is, in all cases, the resistance of the cargo, and that it makes no difference whether she be armed or unarmed, commissioned or uncommissioned.He who puts his property on the issue of battle, must stand or fall by the event of the contest. The law of neutrality is silent when arms are appealed to in order to decide rights; and the captor is entitled to the whole prize won by his gallantry and valor.This opinion is not the mere inference, strong as it seems to me to be, of general reasoning. It is fortified by the consideration that in the earliest rudiments of prize law, in the great maritime  countries of Great Britain and France, confiscation is applied by wary of penalty for resistance of search to all vessels without any discrimination of the national character of the vessels or cargoes. The black book of the admiralty expressly articulates that any vessel making resistance may be attacked and seized as enemies; and this rule is enforced in the memorable prize instructions of Henry VIII. Clerk's Praxis 164, Rob. Collect. Marit. p. 10, and note, and p. 118.The ordinance of France of 1584, is equally broad; and declares all such  vessels good prize; and this has ever since remained a settled rule in the prize code of that nation. \nValin informs us that it is also the rule of Spain; and that in France it is applied as well to French vessels and cargoes as to those of neutrals, and allies, Coll. Marit, 118, Valin Traits des Prizes, ch. 5, § 8, p. 80. There is not to be found in the maritime code of any nation, or in any commentary thereon, the least glimmering of authority that distinguishes, in cases of resistance, the fate of the cargo, from that of the ship. If such a distinction could have been sustained, it is almost incredible that not a single ray  of light should have beamed upon it during the long lapse of ages, in which maritime warfare  has engaged the world. And if any argument is to be drawn from the silence of authority, I know not under what circumstances it can be more forcibly applied than against the exception now contended for. \nBut even if it were conceded that a neutral shipper in a general ship might be protected, the concession would not assist the present Claimant. His interests were so completely mixed up and combined with the interests of the enemy; the master was so entirely his agent under the charter party, that it is impracticable to extract the case from the rule that stamps Mr. Pinto with a hostile character. The whole commercial enterprize was radically tainted with a hostile leaven. In its very essence it was a fraud upon belligerent rights. If, for a moment, it could be admitted that a neutral might lawfully ship goods in an armed ship of an enemy, or might charter such a ship, and navigate her with a neutral crew, these admissions would fall far short of succouring the Claimant. He must successfully contend for broader doctrines, for doctrines which, in my humble judgment, are of  infinitely more dangerous tendency than any which Schlegel and Hubner, the champions of neutrality, have yet advanced into the field of maritime controversy. I cannot bring my mind to believe that a neutral can charter an armed enemy ship, and victual and man her with an enemy crew, (for though furnished directly by the owner they are in effect paid and supported by the charterer) with the avowed knowledge and necessary intent that she should resist every enemy; that he can take on board hostile shipments on freight, commissions and profits; that he can stipulate expressly for the benefit and use of enemy convoy, and havigate during the voyage under its guns and protection; that he can be the entire projector and conductor of the voyage, and co-operate in all the plans of the owner to render resistance to search secure and effectual; and that yet, notwithstanding all this conduct, by the law of nations he may shelter his property from confiscation and claim the privileges of an inoffensive neutral. On the contrary, it seems to me that such conduct is utterly irreconcileable with the good faith of a friend, and unites all the qualities of the most odious hostility.It wears the habiliments  of neutrality only when the sword and the armour of an enemy become  useless for defence. If it be, as it undoubtedly is, a violation of neutrality to engage in the transport service of the enemy, or to carry his dispatches even on a neutral voyage, how much more so must it be to inlist all our own interests in his service, and hire his arms and his crew in order to prevent the exercise of those rights which, as neutrals, we are bound to submit to? The doctrine is founded in most perfect justice, that those who adhere to an enemy connexion shall share the fate of the enemy. \nOn the whole, in every view which I have been able to take of this subject, I am satisfied that the claim of Mr. Pinto must be rejected, and that his property is good prize to the captors. And in this opinion I am authorized to state that I have the concurrence of one of my brethren. It is matter of regret that in this conclusion I have the misfortune to differ from a majority of the Court, for whose superior learning and ability I entertain the most entire respect. But I hold it an indispensable duty not to surrender my own judgment, because a great weight of opinion 14 against me, a weight which  no one can feel more sensibly than myself. Had this been an ordinary case I should have contented myself with silence; but believing that no more important or interesting question ever came before a prize tribunal, and that the national rights, suspended on it, are of infinite moment to the maritime world, I have thought it not unfit to pronounce my own opinion, diffident indeed of its fullness and accuracy of illustration, but entirely satisfied of the rectitude of its principles. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J., delivered the opinion of the court as follows: \nThe first question to be discussed is, the propriety of allowing farther proof. It is certainly a general rule in prize causes that the decision should be prompt; and should be made, unless some good reason for departing from it exist, on the papers and testimony afforded by the captured vessel, or which can be invoked from the papers of other vessels in possession of the court. This rule ought to be held sacred in that whole description of causes to which the reasons on which it is founded are applicable. The usual controversy in prize causes is between the captors and captured. If the captured vessel be plainly an enemy, immediate condemnation is certain and proper. But the vessel and cargo may be neutral, and may be captured on suspicion.  This is a grievous vexation to the neutral, which ought not to be increased by prolonging his detention, in the hope that something may be discovered from some other source, which may justify condemnation. If his papers are all clear, and if the examinations in preparatorio all show his neutrality, he is, and ought to be, immediately discharged. In a fair transaction this will often be the case. If any thing suspicious appears in the papers, which involves the neutrality of the claimant  in doubt, he must blame himself for the circumstance, and cannot complain of the delay which is necessary for the removal of those doubts. The whole proceedings are calculated for the trial of the question of prize or no prize, and the standing interrogatories on which the preparatory examinations are taken are framed for the purpose of eliciting the truth on that question. They are intended for the controversy between the captors and the captured; intended to draw forth every thing within the knowledge of the crew of the prize, but cannot be intended to procure testimony respecting facts not within their knowledge. When the question of prize or no prize is decided in the affirmative,  the strong motives for an immediate sentence lose somewhat of their force, and the point to which the testimony in preparatorio is taken, is no longer the question in controversy. If another question arises, for instance, as to the proportions in which the owners and crew of the capturing vessel are entitled, the testimony which will decide this question must be searched for, not among the papers of the prize vessel, or the depositions of her crew, but elsewhere, and liberty must, therefore, be given to adduce this testimony. The case of a joint capture has been mentioned, and we think, correctly, as an analogous case. Where several cruisers claim a share of the prize, extrinsic testimony is admitted to establish their rights. They are not, and ought not to be, confined to the testimony which may be extracted from the crew. And yet the standing interrogatories are, in some degree, adapted to this case. Each individual of the crew is always asked  whether, at the time of capture, any other vessel was in sight. Notwithstanding this, the claimants to a joint interest in the prize, are always permitted to adduce testimony drawn from other sources to establish their claim.  The case before the court is one of much greater strength. The captors are charged with direct and positive fraud, which is to strip them of rights claimed under their commissions. Even if exculpatory testimony could be expected from the prize crew, the interrogatories are not calculated to draw it from them. Of course, it will rarely happen that testimony taken for the sole purpose of deciding the question whether the captured vessel ought to be condemned or restored, should furnish sufficient lights for determining whether the capture has been bona fide or collusive. If circumstances of doubtful appearance  occur, justice requires that an opportunity to explain those circumstances should be given; and that fraud should never be fixed on an individual until he has been allowed to clear himself from the imputation, if in his power. \nUnder these impressions, the case must be a strong one, indeed; the collusiveness of the capture must be almost confessed, before the court could think a refusal to allow other proof than is furnished by the captured vessel justifiable. In the cases before the court there are certainly many circumstances of great suspicion, but none which  do not admit of explanation. \nIn the case of the George, captured by the privateer Fly, the circumstances relied on to prove the collusivencss of the capture are, \n 1st. The force of the Fly. 2d. The shipping articles. 3d. The cargo of the George. 4th. The number of her crew. 5th. The place, and other circumstances of her capture. 6th. The sending the mariners on shore, instead of bringing them into the United States. \nFirst. The force of the Fly may probably neither require nor admit of explanation. \nSecond. The shipping articles unquestionably furnish ground of suspicion. But some light may be thrown on this point by testimony showing whether it was, or was not, common for small cruisers in the bay of Fundy to give wages to the crew instead of prize money. It may be of still more importance to determine whether each of the crew, like Gilley, who was examined, was to receive twenty dollars in addition to his wages, for each prize. \nThird. Respecting the cargo it is not probable that farther testimony can be adduced. \nFourth. Respecting the number of mariners on board the captured vessel the court would require some further information. On the one part  it is asserted that they are insufficient, and on the other that they are sufficient for the alleged voyage. There is no evidence which can incline the court the one way or the other. \nFifth. On the place and other circumstances of capture further information may certainly be given. The George appears to have sailed from St. Johns, New Brunswick, for the Havanna, on the 8th, and to have been captured in Long-Island harbour, at anchor, on the 13th of January, 1814. The distance  between these places is said to be five hours' sail, with a favourable wind and tide. Where did she linger during this interyal? Was she in Etang harbour during any part of the time? Why did she leave that harbour? Did she expect a convoy? Did a convoy sail about that time? Was it usual for vessels to wait for a convoy at the island of Grand Menan? Could a vessel be descried from the sea lying at anchor in Long Island harbour? Satisfactory answers to these questions might certainly throw some light on this part of the case, and better enable the court to form an opinion on it. \nSixth. It may not, perhaps, be easy to account for not bringing in the crew. Yet it would contribute, in some  degree, to the elucidation of the transaction, if the practice in that part of the country could be laid before the court. It might also be of some importance to know whether the sum of 100 dollars was usually paid by government for every merchant seaman brought into the country, whether he was a British subject or the subject of a neutral power. \nIn the cases of the Janstaff and the Bothnea, there are some points to be explained which are common to those cases with the George, and some which are peculiar to themselves. \nOf the latter class are the inquiries, \nFirst. Whether it frequently happened that unarmed vessels, without a convoy, sailed from that port, either for New London, or for any other port of the United States, or for a foreign port? \n Second. What is the character, and what the occupation, of the two passengers who were found, one on board the Bothnea, and the other on board the Janstaff? Are they acquainted with the coasts in, or about, Long-Island sound? Are they capable of being supercargoes? How came they at Halifax? \nIn both cases it will be desirable to know, whether any previous acquaintance existed between the captors and the owners of the captured  vessels, and whether the captors had had any previous communication with the places from which the captured vessels sailed. In the cases of the Janstaff and Bothnea, all the circumstances attending the capture will be important. If, as is not expected, any farther or better reason can be given for putting the whole crew on shore, it may throw some light on the cases. Each case depends, in some degree, on the points which have been suggested. They are stated for the purpose of showing, that points, on which the judgment of the court may, in some degree, depend, are susceptible of explanation, and, therefore, ought to be explained so far as it may be in the power of the parties to explain them. It is not, however, intended to confine them to the particular points which have been stated. Full liberty is given to both parties to adduce farther proof on every point in the case. \nFarther proof ordered. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J., delivered the opinion of the court, and after stating the facts, proceeded as follows: \nThis cause depends on an act of the state of Maryland, which is in force in the county of Washington. The first section of that statute enacts,  \"that it  shall not be lawful to bring into this state any negro, mulatto, or other slave, for sale, or to reside within this state; and any person brought into this state contrary to this act, if a slave before, shall, thereupon, immediately cease to be the property of the person or persons so importing or bringing such slaves within this state, and shall be free.\" The 2d section contains a proviso in favour of citizens of the United States coming  into this state with a bona fide intention of settling therein, and bringing slaves with them. The 4th section enacts, that \"nothing in this act contained shall be construed or taken to affect the right of any person or persons travelling or sojourning with any slave or slaves within this state, such slave or slaves not being sold or otherwise disposed of in this state, but carried by the owner out of the state, or attempted to be carried.\" \nThis act appears to the court not to comprehend the case now under consideration. The expressions of that part of the first section which prohibits the importation of slaves, are restricted to cases of importation \"for sale or to reside in this state.\" The petitioner was obviously not imported for  sale, nor is the court of opinion that the short time for which she was to continue with Mrs. Rankin can satisfy the words, \"to reside within this state.\" The legislature must have intended to prohibit a general residence, not a special limited residence, where the slave is to remain for that portion of the year for which she was hired that still remained. \nIf on this point the first section of the act could be thought doubtful, the fourth section seems to remove  that doubt. It declares that \"nothing in the act contained shall be construed or taken to affect the right of any person travelling or sojourning with any slave or slaves within this state, such slave or slaves not being sold or otherwise disposed of in this state, but carried by the owner out of this state, or attempted to be carried.\" \nThis section sufficiently explains the residence contemplated by the legislature in the first section. The term sojourning means something more than \"travelling,\" and applies to a temporary, as contradistinguished from a permanent, residence. The court is also of opinion, that the act contemplates and punishes an importation or bringing into the state by the master or owner of  the slave. This construction, in addition to its plain justice, is supported by the words of the first section. That section declares, that \"a person brought into this state as a slave contrary to this act, if a slave before, shall, thereupon, cease to be the property of the person or persons so importing or bringing such slave within this state, and shall be free.\" It is apparent, that the legislature had in view the case of a slave brought by the owner, since it is the property of the person importing the slave which is forfeited. \nUpon the best consideration we have been able to give this statute, the court is unanimously of opinion, that the petitioner acquired no right to freedom by having been brought into the county of Washington by Mrs. Rankin for one year's service, she having been in the course of the year carried back to Virginia by her master. \n The circuit court appears to have considered the case as coming within the proviso of the 2d section. If in this opinion that court were even to be thought mistaken, the error does not injure the petitioner, and is, therefore, no cause for reversal. The court is unanimously of opinion, that the judgment ought to be  affirmed. \nJudgment affirmed. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J., delivered the opinion of the court, and stated, that, as to the first exception, the court had revised its opinion in the case of Mima Queen and child v. Hepburn, and confirmed it. As to the second exception,  the record was not between the same parties. The rule is, that verdicts are evidence between parties and privies. The court does  not feel inclined to enlarge the exceptions to this general rule, and, therefore, the judgment of the court below is affirmed. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J., delivered the opinion of the court, and, after reciting the documentary evidence, proceeded as follows: \nUpon these papers it is contended by the captors, that the goods remained the property of Daniel Cross & Co. until the transfer to Spooner, Attwood & Co., when they became the property  of the assignees; that this change of property so operates upon the subsequent shipment as to make it a shipment without order, and to leave it in the election of G. & H. Van Wagenen, to accept or reject the goods; and that this right of election is terminated by the intervening right of the captors. \nOn the part of the claimants it is contended, that their right commenced with the purchase, which  was made by their order, and for their account and risk, and was completed when the goods were forwarded to Liverpool: that if this point be determined against them, still the whole transaction evidences an intention to assign the claim of Daniel Cross & Co. to Spooner, Attwood & Co., so as to give them a right to receive the money, but not in any manner to affect the interests of G. & H. Van Wagenen. \nWhether Messrs. G. & H. Van Wagenen became the owners of the goods on their being sent from Birmingham to Liverpool, must depend on the orders under which Daniel Cross & Co. acted. If their authority was general to ship to G. & H. Van Wagenen, the goods might, according to the circumstances of the purchase, remain the property of Daniel Cross & Co. until they were delivered to the master of the vessel for the purpose of transportation.  If they were directed to purchase the goods, and to store them in Liverpool as the goods of G. & H. Van Wagenen, to be afterwards shipped to the United States, it appears to the court that the property changed on being sent to Liverpool, and immediately vested in the American merchants for whom they were purchased. The testimony respecting  the orders is found in the letter from Daniel Cross & Co. to G. & H. Van Wagenen. The words of that letter which bear particularly on this point are, \"In consequence of the revocation of the British Orders in Council, on the first day of August next, we have lost no time in shipping the goods sent to Liverpool so long since, agreeably to your kind order.\" This language is not equivocal. It imports, in terms not to be misunderstood, that the goods were sent from Birmingham to Liverpool, in consequence of the orders of Messrs. G. & H. Van Wagenen. This letter is addressed to the house which had given the order, and was written without an existing motive for misrepresenting that order. There is certainly nothing in the circumstances of the transaction which would render it probable that the order must be represented in this letter, either carelessly or intentionally, in any manner different from that which was really given. The situation of this country during what has been termed our restrictive system was notoriously such as to render it an object with every importing merchant to use the utmost despatch in bringing in his goods so soon as they should be legally admissible. Nothing,  therefore, can be more probable than that orders for making purchases  which were to be executed at an inland place, by a house residing at such place, would be accompanied with orders directing them to be conveyed to a seaport, there to be held in perfect readiness for exportation. In the usual course of trade, if the purchasing and shipping merchant be the same, there would rarely be any actual change of property between the purchase and the shipment of the articles, nor could we expect to find any extrinsic evidence of ownership, other than the mere possession; but in the state of trade which existed at the time of this transaction, such change, and the evidence of it, may be reasonably expected. In the common state of things, the whole order respecting purchase and shipment, where the same agent is employed, is executed with expedition, and is, in appearance, one transaction. In the actual state of things, the purchase was to be made immediately, but the shipment was to take place at some future indefinite period. It would depend on an event which might be very near or very remote. It became a divided transaction, or, rather, two distinct operations. We look for  some intervening evidence of ownership in the person for whom the purchase was made, and are not surprised at finding it. If, in such a state of things, the goods were procured under a general order to purchase, but not to ship until some future uncertain event should occur, and were, in the mean time, to remain the property, and at the risk of the agent, they would probably be retained at the place of purchase under his immediate control and inspection. Their conveyance to a seaport, there to be stored until their importation  into the United States should be allowed, was such a fact as would scarcely have taken place without special orders, in the course of which an actual investment of the property in the person by whose order, and for whose use, the goods were purchased and stored at a seaport, is not unreasonably to be expected. The court considers this letter, then, as proving incontestibly that the goods were conveyed to Liverpool, and there stored, to be shipped on the happening of some future event which it was supposed would restore the commercial intercourse between the two countries, in pursuance of specific orders from the claimants; and is further of opinion,  that the transaction itself furnishes strong intrinsic evidence that the goods, when stored in Liverpool, were the goods of the claimants, subject to that control over them which Daniel Cross & Co. would have as the purchasers, and intended shippers, who had advanced the money with which they were purchased. However this control and lien might be used for their own security, it could not be wantonly used to the destruction of the property of G. & H. Van Wagenen, and any conveyance to a person having notice of their rights ought to operate, and be considered as intended to operate, consistently with them, so far as the two rights could consist with each other. The words, then, in the invoice, which represent the goods as the property of Spooner, Attwood & Co., are introduced with no other object than to secure the payment of the purchase money to them. The invoice made out by Spooner, Attwood & Co. themselves, states the merchandise it specifies to have  been purchased by Daniel Cross & Co., by order, and on account and risk of Messrs. G. & H. Van Wagenen, and to have been forwarded to Liverpool more than 12 months anterior to the date of the shipment.Goods thus purchased,  and thus conveyed to a seaport, and stored under the orders of the American merchant, may well be considered as leaving in the purchasing agent only the lien which a factor has to secure the payment of the money which is due to him. If  this was the true state of the property at the time of the assignment to Spooner, Attwood & Co., they having full notice that the assignment could only operate as an order for G. & H. Van Wagenen to pay the money to them, (Spooner, Attwood & Co.) and would, probably, in its form and expressions, manifest this idea. \nThe court is much inclined to the opinion, that these goods became the property of the claimants on being stored in Liverpool, if not at an antecedent time. The question, however, would, undoubtedly, be affected by the order under which Daniel Cross & Co. acted; by the deed of assignment to Spooner, Attwood & Co.; and by other papers which are attainable. If, therefore, the case depended entirely upon this point, farther proof might be required. But, in the opinion of the majority of the court, the case does not depend on this point alone. \nIf the goods were shipped in pursuance of the orders given by G. & H. Van Wagenen, the  delivery on board the ship was a delivery to them; the property was vested in them by that act, and they had no election to accept or reject it. \n In pursuing this inquiry, the legal effect of the transaction must depend, in a considerable degree, on the intent of the parties, and that intent is, in this case, to be collected chiefly from their letters, and from the circumstances in which they stood. G. & H. Van Wagenen were American merchants desirous of receiving the goods they had ordered as soon a the importation of those goods should be allowed. Daniel Cross & Co. were commission merchants of Birmingham, engaged in the American business. Spooner, Attwood & Co. were bankers, friendly to Daniel Cross & Co.; were desirous of promoting their interests, and recommending them to business, and had advanced them money while embarrassed by the difficulties consequent on the state of trade between the United States and Great Britain. Spooner, Attwood & Co. were desirous, not of purchasing the goods stored at Liverpool by Cross & Co. for the claimants; not of interrupting the shipment of those goods, or the connexion between Daniel Cross & Co. and G. & H. Van Wagenen; but of  permitting the shipment to proceed, and of receiving, themselves, the money to which Cross & Co. were entitled. Such was the situation, and such the objects of all the parties: keeping this situation and these objects in view, let the testimony be examined. The letter of Daniel Cross & Co., dated the 8th of July, 1812, is in the language of men who were themselves the shippers of the goods. \"We have lost no time,\" they say, \"in shipping the goods, sent to Liverpool so long since, agreeably to your kind order.\" They speak of the vessel and of the freight,  as if the vessel were selected, and the contract made, by themselves.\"We thought you would prefer to have the goods at this rate, rather than wait for a reduction in the freight.\" They next refer to the letter of their friends, Spooner, Attwood & Co., to show the inconvenience they had sustained as young merchants, but without any indication of an interference of that house in the shipment, and conclude with saying, \"the amount of invoice, herewith, to your debit, is 820l. 2s. 1d., which, agreeably to the letter of Spooner, Attwood & Co., you will please to remit to them on arrival of the goods.\" This is the letter of  an agent who has executed, completely, the order which had been given him; but who, having been compelled to borrow money, had transferred his pecuniary claims to his creditor. The letter of Spooner, Attwood & Co. will next be considered. It is dated the day after that written by Daniel Cross & Co. After stating their friendship for Daniel Cross & Co., and the aid afforded that house, they add: \"but as it was necessary that our assistance should be very considerable, we thought it right to obtain from them an assignment of certain quantities of goods which they had provided on account of your house, and of several others in the United States, previous to the 2d of February, 1811. We are thus introduced to your acquaintance, and we beg leave to send you herewith an invoice of the goods Daniel Cross & Co. had purchased for your account, and which we now forward to you, requesting that you will remit the amount of 820l. 2s. 1d. to us at your earliest convenience.\"  Nothing is said in this letter respecting the vessel by which the goods were sent; nothing indicating the exercise of any judgment by Spooner, Attwood & Co., respecting the time or manner of sending them; nor  any thing which would lead to the opinion that they interfered, in any manner whatever, in the transaction of the business. On comparing the two letters, the inference is inevitable, that Daniel Cross & Co. continued to execute the order of G. & H. Van Wagenen, in like manner as if their affairs had never been embarrassed. The contents of the two letters, in conformity with the situation and views of the parties, prove, that Daniel Cross & Co. had only transferred to Spooner, Attwood & Co. their right to receive payment for the goods, and that the arrangements between them were intended only to secure that object. The assignment of the goods mentioned in the letter of Spooner, Attwood & Co. does not appear from the context, and from the nature of the transaction, to be intended to convey the idea of a sale, but to be used in rather a different sense, as an assignment of the adventure, or of the right to the debt due from G. & H. Van Wagenen. Whatever may have been the form of this assignment, it is apparent that it could not have been made, and certainly was not made, with the intention of enabling Spooner, Attwood & Co. to defeat the shipment to G. & H. Van Wagenen, or to control  the proceedings of Daniel Cross & Co., under the order they had received.Why, then, are the goods, when put on board the Mary and Susan, in pursuance of the orders of the claimants,  to be considered not their property, but as the property of Spooner, Attwood & Co.? It is said that they were shipped by Spooner, Attwood & Co., not by Daniel Cross & Co.; that the confidence implied in the order for purchase and shipment was personal, and could not be transferred or executed by another. Allow to this argument all the weight which is claimed for it by the counsel for the captors; what part of this personal trust was transferred? What part of the order was executed by any other than Daniel Cross & Co.? The goods were purchased, sent to Liverpool, stored, and, afterwards, shipped by them. Every other auxiliary part of the transaction was performed by them. Nothing appears  to have been done in pursuance of orders from Spooner, Attwood & Co., but every thing in pursuance of their own judgment, acting under the order received from G. & H. Van Wagenen. On this ground the claimants could raise no objections to the conduct of Daniel Cross & Co. But it is said, that  Daniel Cross & Co. might have had the funds of G. & H. Van Wagenen in their hands, in which case the claimants would have been compelled, by receiving the goods, to pay their amount to Spooner, Attwood & Co.; consequently, this assignment must be considered as creating in Spooner, Attwood & Co. new rights, which released G. & H. Van Wagenen from the obligation to receive the eargo. But Daniel Cross & Co. did not purchase with the funds of the claimants. They purchased with their own funds. They inflicted, therefore, no injury on the claimants by transferring their right to the money  to Spooner, Attwood & Co. The effect of the transaction is precisely the same as if they had drawn a bill in favour of Spooner, Attwood & Co. for the amount of the invoice. It is said that the assignment gave Spooner, Attwood & Co. an election to ship the goods, or to dispose of them otherwise, and that the necessary consequence of this power of election, is a correspondent right of election in G. & H. Van Wagenen to receive or reject them. The court does not view the transaction in this light. The assignment to Spooner, Attwood & Co. is understood by the court, from the evidence furnished  by the letters, and the circumstances and objects of the parties, to have been subject to the right of Daniel Cross & Co. to execute, completely, the order of the claimants. The interests of all parties were best promoted by pursuing this course, and they appear to have pursued it. The court perceives nothing which can justify the opinion that Spooner, Attwood & Co. had a right, or would have been permitted, to intercept the shipment. Certainly it was neither their wish nor their interest to interrupt it. It is not reasonable, therefore, to suppose, that they would have created any difficulty in obtaining a right to claim the amount of the invoice from G. & H. Van Wagenen, by insisting on such an assignment as Daniel Cross & Co. would have been unwilling to make, because it might have proved injurious to them, without benefiting the house they meant to secure. It has also been argued, that the orders most probably directed a shipment of the goods when the non-intercourse should be removed,  and that a shipment before that time was without orders, and at the risk of the shipper. The court does not think this probable. It is well known that the continuance of the laws  of non-intercourse was considered as depending on the continuance of the orders in council. It is, also, perfectly clear, that the American merchant, who should permit his goods to remain in Great Britain until intelligence of the repeal of the non-intercourse laws could be conveyed from this country to that, would be anticipated by all others, and would bring them to a market already supplied. Nothing, therefore, would be more reasonable than to order them to be shipped on the revocation of the orders in council. This idea is supported by the letter of Daniel Cross & Co. That letter indicates no doubt of the propriety of the shipment. \nUpon a view of the whole case, the majority of the court is of opinion, that this is not a case in which farther proof ought to be required, and that the goods by the Mary and Susan were shipped in pursuance of the orders of the claimants, and became their property when delivered, for their use, to the master of the vessel, if not at an earlier period. \nSentence of the circuit court affirmed with costs. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J., delivered the opinion of the court. \nOn the part of the claimants it is contended, 1st. That the proceedings ought to have been at common law, and not in the admiralty. 2d. That the information, if it be one, is insufficient. 3d. That the testimony is wholly insufficient to warrant a condemnation. \nIn arguing the first point, the counsel for the claimants endeavoured to take this case out of the  principle laid down in the Vengeance, and in other cases resting on the authority of that decision, by urging a difference of phraseology in the acts of congress. In that part of the act on which this prosecution is founded which gives the remedy, it is enacted, \"that all penalties and forfeitures, arising under, or incurred by virtue of this act, may be sued for, prosecuted, and recovered, with costs of suit, by action of debt, in the name of the United States of America, or by indictment or information, in any court having competent jurisdiction to try the same.\" Debt, indictment, and information, are said to be technical terms designating common law remedies, and, consequently, marking out the courts of common  law as the tribunals in which alone prosecutions under this act can be sustained. There would be much force in this argument, if the term \"information\" were exclusively applicable to a proceeding at common law. But the court is of opinion that it has no such exclusive application. A libel on a seizure, in its terms and in its essence, is an information. Consequently, where the cause is of admiralty jurisdiction, and the proceeding is by information, the suit is not withdrawn, by the nature of the remedy, from the jurisdiction to which it otherwise belongs. \n2d. The second objection made by the claimants to these proceedings, is, that though the words of the act may be satisfied by a libel in the nature of an information, yet the same strictness which is required in an information at common law will be necessary to sustain a libel in the nature of an information in the court of admiralty; and that, testing the libel by this rule, it is totally insufficient. The court  is not of opinion that all those technical niceties which the astuteness of ancient judges and lawyers has introduced into criminal proceedings at common law, and which time and long usage have sanctioned,  are to be engrafted into proceedings in the courts of admiralty. These niceties are not already established, and the principles of justice do not require their establishment. It is deemed sufficient that the offence be described in the words of the law, and be so described that if the allegation be true the case must be within the statute. This libel does so describe the offence, and is, therefore, deemed sufficient. \n3d. The third and material inquiry respects the evidence. Is this cargo of British origin? \nIn the examination of this question, the first point to be decided is the admissibility of the deposition of Thomas Oldham. That deposition is found in the record of the circuit court, with a certificate annexed to it, in these words: \"N.B. The deposition of Thomas Oldham was filed after the trial of the case, by order of the court.\" Some of the judges are of opinion that this certificate of the clerk is to be disregarded, and that the deposition, being inserted in the record, must be considered as a part of it, and must be supposed to have formed a part of the evidence when the decree was made: but the majority of the court is of a different opinion. The certificate of  the clerk to the deposition is thought of equal validity as if forming a part of his general certificate. It shows that this deposition formed no part of the cause in the circuit court, and is, therefore, liable to  every exception which could be made to it, if it was not found in the record, and was now offered for the first time to this court. On inspection, it appears to be a deposition taken before a single magistrate not on order of court on a commission, with notice to the attorney of the claimant, who did not attend. It must be sustained by the act of congress, or it is inadmissible. The reason assigned for taking it is, \"that the deponent is a seaman on board a gun-boat of the United States, in the harbor of Newport, and liable to be ordered to some other place, and not to be able to attend the court at the time of its sitting.\" The 30th section of the Judiciary Act directs, that \"the mode of proof by oral testimony, and the examination of witnesses in open court, shall be the same in all the courts of the United States.\" The act then proceeds to enumerate cases in which depositions may be taken de bene esse. The liability of the witness to be ordered out of the  reach of the court is  not one of the causes deemed sufficient by the law for taking a deposition de bene esse. In such case there would seem to be a propriety in applying to the court for its aid. But, supposing this objection not to be so fatal as some of the judges think it, still the deposition is taken de bene esse, not in chief; and a deposition so taken can be read only when the witness himself is unattainable. It does not appear in this case that the witness was not within the reach of the court, and might not have given his testimony in open court, as is required by law. Had this deposition been offered in court, before, or at the time of the trial, and used without objection, the inference  that the requisites of the law were complied with, or waived, might have been justifiably drawn. But the party is not necessarily in court after his cause is decided, and is not bound to know the fact that this deposition was ordered to be filed. For these reasons it is the opinion of a majority of the court, that the deposition of Thomas Oldham ought not to be considered as forming any part of the testimony in this cause. \nThe deposition of Oldham being excluded,  the prosecution rests chiefly on the depositions of Benjamin Fry and William S. Allen. These witnesses are both experienced dealers in rum; have both tasted and examined the rum of this cargo, and are both of the opinion that it is of British origin. In the opinion of all the judges, this testimony is entitled to great respect. The witnesses say that there is a clear difference between the flavor of rum of the British and the Spanish islands, though they do not attempt to describe that difference; and that their opinion is positive that this is British rum. \nTo weaken the force of this testimony, the claimants have produced the depositions of several witnesses, also dealers in rum, who declare, that the difference in the flavor of the best Spanish rum, and that of the British islands, is inconsiderable, and that they cannot distinguish the one from the other; that they believe the best judges find great difficulty in making the discrimination. This testimony would, perhaps, have been entitled to more influence, had the persons giving it tasted the rum imported in the Samuel, and declared themselves incapable of deciding  on its origin: for, although in some cases the  difference may be nearly imperceptible, in others it may be considerable. The testimony, however, on which the claimants most rely is found in the deposition of Samuel Marshall and of Andrew Furntrad. Samuel Marshall, the brother of John and Joseph Marshall, merchants of St. Bartholomews, from whom the rum in question was purchased, deposes, that he has lived with them for two years, and had, at the time of giving his deposition, they being absent from the island, the care of their business. That the rum and molasses constituting the cargo of the Samuel were imported into St. Bartholomews from La Guira, in vessels which he names, and are of the growth and produce of that place. Andrew Furntrad is the collector of the port of Gustavia in St. Bartholomews, and deposes, that the quantity of rum and molasses which were laden on board the Samuel, and which cleared out regularly for New London, were regularly imported from La Guira in two vessels, which he names, whose masters he also names. They are the same that are mentioned by Samuel Marshall. \nOn this conflicting testimony much contrariety of opinion has taken place. The omission of the claimants to furnish other testimony supposed  to have been within their reach, and of which the necessity would seem to have been suggested by the nature of the prosecution, impairs, in the opinion of several of the judges, the weight to which their positive testimony might otherwise be entitled. The court finds it very difficult to form an opinion satisfactory to itself.  So situated, and under the peculiar circumstances attending Oldham's deposition, the majority of the court is of opinion, that the cause be continued to the next term for farther proof, which each party is at liberty to produce. \nFarther proof ordered. 8 \n \n \n\n ", " \nOpinion \n\n \n \n MARSHALL, Ch. J. The case of the sheriff's bond is very different. The commission of sheriff, in Virginia, is annual; of course, his sureties are bound for one year only. It is true, the directors of this company are elected annually; but the company has not said that the agent shall be for one year only: his appointment is during pleasure.The sureties do not become sureties in consequence of their confidence in the directors, but of their confidence in the agent whose sureties they are. The court is unanimously of the opinion that the judgment of the circuit court ought to be affirmed. \nJudgment affirmed. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J., delivered the opinion of the court, and, after stating the facts, proceeded as follows: \nThe question on which the correctness of the opinions given by the circuit court depends, is this: Was the purchase and sale of the twelve books not delivered, so complete, that the tickets had become the property, and were at the risk of Robert Gray? \n In pursuing this inquiry it  becomes necessary to decide, whether the clause respecting security forms a condition precedent, on which the sale is made to depend, or a condition subsequent, the performance of which may be suspended until it shall be convenient to the vendee, or required by the vendor. It is  apparent that a contract for the sale of 5,000 tickets was one of very considerable interest to the managers of the lottery. This is not only self evident from the nature of the transaction, but is also proved by the fact, that they changed the scheme of the lottery for the purpose of securing it. As the time of commencing the drawing must necessarily have depended on the sale of the tickets, it is reasonable to suppose, that, in the calculations made on this subject, they must have considered the books selected and set apart for Mr. Gray, either as sold or unsold. The endorsements on the books selected lead strongly to the opinion, that they were considered as sold. If the proposition which forms the basis of the contract be inspected, it will be perceived that the contract was intended to be entire, not divisible. The scheme of the lottery was changed, not for the purpose of inducing Gray  and Milligan to take any number of tickets less than 5,000, but on their engaging to take 5,000 absolutely; and the clause respecting the security is annexed to the delivery of the tickets. The delivery of some of the books was an execution in part of an entire contract. All the circumstances show, that the obligation of the contract was complete: but the examination of these circumstances  is dispensed with by the admission on record, that it \"became a binding contract between the parties.\" \nWhat, then, was this binding contract? \nThat the scheme proposed by Milligan and Gray should be adopted, and certain facilities of payment allowed, on their bond to the company for tickets taken in the first class. That they should, on their part, take 2,500 tickets each in the second class, and that approved security should be given on their delivery. Certainly Milligan and Gray were absolutely bound to take 2,500 tickets each. A refusal to do so would have been a breach of contract, for which they would have been responsible in damages. When the parties proceed one step further; when the vendee, in execution of this contract, selects the number of tickets he has agreed to purchase,  and the vendor assents to that selection; when they are separated from the mass of tickets, and those not actually delivered are set apart and marked as the property of the vendee; what, then, is the state of the contract? It certainly stands as if the selection had been previously made and inserted in the contract itself. An article purchased in general terms from many of the same description, if afterwards selected and set apart with the assent of the parties as the thing purchased, is as completely identified, and as completely sold, as if it had been selected previous to the sale, and specified in the contract. After this selection, the parties stood in the same relation to these tickets as if the 25 books, afterwards agreed upon, had been named in the contract as containing the numbers purchased by Gray. The  contract, then, amounts to this: The managers agree to sell Gray 2,500 tickets, which are specified, and he agrees to give approved security for the purchase money on the delivery; in the mean time the tickets remain in possession of the vendors, who proceed to draw the lottery, without having received or required security for the whole number of tickets sold.  The stipulation respecting security could not in such a case be considered as a condition precedent, on the performance of which the sale depended. Certainly, the managers could have required, and have insisted on this security; but they might waive it, without dissolving the contract. They were, themselves, the judges, whether they would consider the contract of Robert Gray, with the collateral security furnished by the possession of the tickets, as sufficient for their protection; and their conduct shows that they thought it sufficient. \nThe majority of the court is of opinion, that the property in the tickets changed when the selection was made and assented to; and that they remained in possession of the vendors merely as collateral security. Had the tickets been all blanks, Gray was compellable to take them. \nJudgment affirmed with costs. 4 \n \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J., delivered the opinion of the court, and, after stating the facts, proceeded as follows: \nThe proceedings of the court, therefore, is arrested in limine, by a question respecting its  jurisdiction. In the case of Hepburn & Dundas v. Ellzey, this court determined, on mature consideration, that a citizen of the district of Columbia could not maintain a suit in the circuit court of the United States. That opinion is still retained. \nIt has been attempted to distinguish a Territory from the district of Columbia; but the court is of opinion, that this distinction cannot be maintained. They may differ in many respects, but neither of them is a state, in the sense in which that term is used in the constitution. Every reason assigned for the opinion of the court, that a citizen of Columbia was not capable  of suing in the courts of the United States, under the Judiciary Act, is equally applicable to a citizen of a territory. Gabriel Winter, then,  being a citizen of the Mississippi Territory, was incapable of maintaining a suit alone in the circuit court of Louisiana. Is his case mended by being associated with others who are capable of suing in that court? In the case of Strawbridge et al. v. Curtis et al., it was decided, that where a joint interest is prosecuted, the jurisdiction cannot be sustained, unless each individual be entitled to claim that jurisdiction. In this case it has been doubted, whether the parties might elect to sue jointly or severally. However this may be, having elected to sue jointly, the court is incapable of distinguishing their case, so far as respects jurisdiction, from one in which they were compelled to unite. The circuit court of Louisiana, therefore, had no jurisdiction of the cause, and their judgment must, on that account, be reversed, and the petition dismissed. \nJudgment reversed. \n \n\n ", " \nOpinion \n\n \n \n MARSHALL, Ch. J. An interest acquired by possession, divested by the loss of possession from the very nature of a title acquired in war. The law of  our own country, as to salvage, settles the question, and the case of the Adventure 6 is directly in point and conclusive. \n Sentence of the circuit court affirmed. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J., delivered the opinion of the the court. Upon the doctrine that after notoriety should court, as follows: \nThis is an appeal from a decree of the circuit court of Kentucky, by which the plaintiff's bill was dismissed. \nThe object of the suit is to enjoin the proceedings of the defendant at law, and to obtain from him a conveyance for so much of the land contained in his patent as interferes with the entry and survey made by the plaintiff. \nThe plaintiff claims by virtue of an entry made on the 17th of January, 1784, the material part of which is set forth in the bill in these words: \"Richard Masterson enters 22,277 and a half acres of land, on treasury warrant No. 19,455, to be laid off in a parallelogram twice as long as wide, to include a mulberry tree marked thus, \"F,\" and two hickories, with four chops in each, to  include the said three marked trees near the centre thereof; the said trees standing near the Hunter's trace, leading from Bryant's station over to the waters of Hinkston, on the dividing ridge between the waters of Hinkston and the waters of Elkhorn.\" This entry has been surveyed, he states, according to location, and that part of it which covers the land in controversy has been assigned to him. \nThe validity of this entry constitutes the most essential point in the present controversy. If it cannot be sustained, there is an end of the plaintiff's title;  if it can, other points arise in the case which must be decided. \nThis question depends on the construction of that clause in the land law which requires that warrants shall be located so specially and precisely, as that others may be enabled, with certainty,  to locate other warrants on the adjacent residuum. \nIn the construction of an act so interesting to the people of Kentucky, it is of vital importance that principles be adhered to with care, and that as much uniformity as is practicable be observed in judicial decisions. This court has ever sought, with solicitude, for the true spirit of the law, as settled  in the state tribunals, and has conformed its judgments to the rules of those tribunals whenever it has been able to find them established. \nIn the cases which have been, on different occasions, examined, that absolute certainty which would remove every doubt from the mind of a subsequent locator, appears never to have been required. The courts of Kentucky have viewed locations with that indulgence which the state of the country, and the general character of those who first explored and settled it, would seem to justify; and have required only that reasonable certainty which was attainable in such a country, and might be expected from such men as were necessarily employed. The effort has been to sustain rather than to avoid entries; and, although the motives which led to this course of adjudication are inapplicable to late entries, made on land supposed to be previously appropriated, yet it is not understood that different rules of construction  have ever been applied to entries of different dates. \nBy these rules, a certainty to a common intent, a description which will not mislead a subsequent locator, which will conduct him, if he uses reasonable care and diligence,  to the place where the objects are to be found, will satisfy the law, and sustain the entry; but such a certainty must exist, or the entry cannot be sustained. \nA location usually consists of some general description which designates the place in which the particular object is to be found, and of a description of the particular object itself. The general description must be such as would enable a man intending to locate the adjacent residuum, by making those inquiries which would be in his power; and which he would naturally make, to know the place in which he was to search for the particular or locative call, so nearly, that, by a reasonable search, he might find the object mentioned in that particular or locative call, and avoid the land located. If the description will fit a different place better, or equally well, it is too defective, because, if it does not mislead the subsequent locator, it leaves him in doubt where to search. \nThe general description in this case is, \"the Hunter's trace, leading from Bryant's station over to the waters of Hinkston, on the dividing ridge between the waters of Hinkston and the waters of Elkhorn.\" \nWill this description designate the place in  which the trees called for in the location are to be found? \n Bryant's station is a fixed place of public notoriety. It is on the great road leading from Lexington to Limestone, on the Ohio, which road crosses the dividing ridge between the waters of Elkhorn and Licking, which is the ridge mentioned in Masterson's entry. This road had been travelled by hunters, but seems to have been known by the name of the Blue Lick, or Buffalo trace, and not by the name of the Hunter's trace. \nA trace which was, at the time, called the Hunter's trace, leaves this great road at Bryant's station, and proceeds in a direction west of north, until it crosses North Elkhorn, where it divides: the lefthand, or more western trace, after entering a road leading from Lexington to Riddle's station, on Licking, or that branch of Licking called Hinkston, crosses the dividing ridge about the head waters of a creek now called Townsend, which empties into the stream running by Riddle's station a little above that station. This creek was, in the year 1784, known by the name of Hinkston Creek, or, perhaps. Hinkston's Mill Creek. \nThe right, or more eastern fork, again divides nearly two miles before  it reaches the dividing ridge. Each of these traces crosses the dividing ridge to the head waters of Cooper's run, which empties into Stoner's fork. The more eastern of them crosses Stoner's fork, and, passing Mastin's station, terminates very near that place. Cooper's run empties into Stoner's fork, which either empties into Hinkston, and then passing by Riddle's station, empties into Licking; or, uniting with Hinkston, forms the  south fork of Licking, and passes Riddle's station with that name. The river, from the junction between Stoner and Hinkston, seems to have been known both by the name of the South Fork and of Hinkston's Fork. \nAll these traces were, in fact, hunters' traces; but each of them, except that leading to Mastin's station, was distinguished by some name peculiar to itself, generally by the station or place to which it led, as Riddle's trace, the Blue Lick trace, &c.; and no one of them, except that leading to Mastin's, was notoriously and pre-eminently called \"the Hunter's trace.\" There is some testimony that this was also known by the name of Mastin's trace; but the great mass of testimony in the cause proves, incontrovertibly, that this trace was  known and distinguished, generally, by the peculiar appellation of \"the Hunter's trace.\" It is on this trace that the location was made. \nThe Hunter's trace, then, used in such a manner as to satisfy those interested in the inquiry, that it was intended to be employed as the name of some particular trace, would have been considered as designating the trace leading from Bryant's to Mastin's station, and would have been sufficient to show that the lands located by Masterson were on that trace. Had no farther description of it been attempted, but the trees called for had been said to stand on \"the Hunter's trace,\" where it crosses the dividing ridge between the waters of Hinkston and Elkhorn, it would have been clear that the trace was referred to by its name of greatest notoriety, by a name  which no other trace received; and, both the trace and the part of the trace where the objects specially called for must be found, would have been designated with sufficient certainty. There is no evidence in this cause, nor is the court apprized that any other trace, distinguished as \"the Hunter's trace,\" led from any other place than Bryant's station, over the dividing ridge between  the waters of Elkhorn and Hinkston, and, consequently,  a reference to this trace, by its name, was all that was necessary for its designation, and would have designated it most unequivocally. But a farther description has been attempted, and this has produced the difficulty felt in deciding this cause. \nIt will not be pretended, that the locator was confined to this reference to the name, or might not add to the description, and make it more minute; but if, in doing so, he has destroyed its certainty, if he has created doubts with respect to the trace intended, which may mislead subsequent locators, the validity of his location becomes questionable. \nThe words added to \"the Hunter's tracec are, \"leading from Bryant's station over to the waters of Hinkston.\" \nThese words are not unmeaning, nor does the court feel itself authorized to reject them as surplusage; nor do they form any part of the name of the trace. Why, then, are they introduced? Subsequent locators might consider them as explanatory of the words \"the Hunter's trace.\" If they are so explanatory, there is, certainly, much plausibility afforded to the conclusion, that the locator did not  mean to  refer to the trace by its name; for if such was his intention, (there being no other trace of the same name,) a farther description would be unnecessary, and a more particular description would be impossible. Perplexity and confusion may be introduced, but an object cannot be rendered more certain than by bestowing on it its particular and appropriate name, if that name be one of general notoriety. The court felt the force of the argument, that \"the Hunter's trace,\" leading from Bryant's station over to the waters of Hinkston, might be understood in the same sense with the words \"the Hunter's trace,\" or, \"that hunter's trace which leads from Bryant's station over to the waters of Hinkston.\" Understood in that sense, the additional and explanatory part of the description might be considered as its essential part, and might control the words \"the Hunter's trace,\" which, connected as they are in this description, are not incapable of application to other hunters' traces, though not usually designated by that particular name. If this were to be received as the true construction, there are so many other traces leading across this dividing ridge, from Bryant's station to the waters of  Hinkston, that all pretension to certainty, in this location, must be surrendered. \nOn this part of the case, the court has felt considerable difficulty; and it is not without hesitation, that it has finally adopted the opinion, that \"the Hunter's trace\" is to be considered as referred to by its name; and, that the additional words, \"leading from Bryant's station over to the waters of Hinkston,\"  are nearly an affirmation that \"the Hunter's trace\" does lead from that station to those waters. It leads to Stoner's fork, which empties into, or unites with, Hinkston's fork, which afterwards empties into the main Licking. These branches are, all of them, called forks of Licking, and, therefore, it would seem to the court reasonable, (as is indeed indicated by much of the testimony,) that this ridge was rather considered as dividing the waters of Elkhorn from those of Licking than from those of Hinkston. But Stoner's fork, to which this trace leads, may, without impropriety, be denominated, as it sometimes has been denominated, \"the Waters of Hinkston.\" \nIt cannot escape notice, that if this trace had been designated as that leading to Mastin's station, it would have been freed  from all ambiguity. But it has been decided in Kentucky, and necessarily so decided, that a locator ought not to be held to the most certain description of which the place is susceptible. A description which distinguishes it from any other, although a better or still more certain description might be given, is all that is required. \nHaving, with much difficulty, ascertained the trace, the next inquiry is, on what part of this trace the land entered by Masterson ought to lie. The location says, generally, \"on the dividing ridge between the waters of Hinkston and the waters of Elkhorn.\" It has been objected, that neither the side of the ridge nor the side of the trace, is specified; and that, to search both sides of the ridge and of the trace, is imposing an unreasonable labor on subsequent locators. The court does not think so.  The ridge is not of such breadth as to render the search on both sides the trace, from the foot of the ridge on one side, to the foot of the ridge on the other, a very unreasonable one. But the trees must be found on the ridge, and a subsequent locator is not bound to search for them elsewhere. The trees having in themselves no notoriety, it  is the more necessary that the place on which they stand should be correctly described, and so described, that persons interested in discovering them, might know how to find them. Let us then examine the testimony to this point. \nRichard Masterson, who made the location, proves the place where the trees stood. They are now cut down, but a mulberry stump remains, which is the stump of the tree he marked, is No. 33., west three poles from a white oak, now standing. He gives no description of the place. \nHenry Lee was with Masterson when he marked the trees, and saw him mark them. They had been hunting on the trace on Cooper's run; and, on their return, he says, \"on the aforesaid trace, or path, after crossing the dividing ridge, near a small branch waters of Elkhorn, Richard Masterson marked,\" &c. \nThis testimony would rather indicate that, in the opinion of the witness, the trees did not stand on the ridge. \nSimon Kenton describes the crooked oak mentioned by Masterson and Jay: \"it does not stand on the dividing ridge.\" On being further interrogated he says, \"he well believes that the crooked oak stands on ground which is a spur of the dividing  ridge which leads down  to the junction of the branches,\" which unite a small distance below the mulberry stump. \nIn the course of his examination, this witness says, that if he could not have found these trees on the ridge, and had found them where they stood, he should have taken them for the trees called for in Masterson's entry; but in no part of his testimony does he indicate that he would have searched for them on the spur where they stood. \nZachariah Easton, the surveyor, gives a very  accurate description of the place. The mulberry stump stands between two branches, three poles from the eastern, thirty poles from the western, and forty one poles from their junction. Along the trace, which crosses the branch several times, the stump is one hundred and ninety poles from the top of the ridge. The stump stands, not on the dividing ridge itself, but on a spur of the ridge, which does not continue along the trace, but takes a direction west thereof, and unites with the main ridge, as would seem from the plat, sixty or seventy poles west of the point at which the trace crosses it. \nNot a single witness deposes that the stump is on the ridge. \nNo testimony has been offered to the court to induce  the opinion that, in Kentucky, a spur of a ridge is considered as the ridge itself, and the contrary seems reasonable. Spurs sometimes extend for considerable distances, and are certainly distinguishable from the ridge from which they project. If, in this case, the trace had led up this spur, a subsequent  locator might have considered it as a continuation of the ridge. But the trace does not lead up the spur. It crosses a branch after passing the spur, and then comes to the ridge. The court is of opinion that subsequent locators could not be expected to continue their search after reaching the foot of the ridge, and that the description fails in stating the marked trees to be on the dividing ridge, instead of stating them to be on a spur of the dividing ridge. \nThe decree, therefore, dismissing the plaintiff's bill, is affirmed with costs. \nDecree affirmed. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J., delivered the opinion of the court. \n This is an appeal from a decree rendered in the circuit court of Kentucky, directing the appellant to convey to the appellees, lands lying within his patent, which the appellees claimed by virtue of a junior patent. \nIn all such cases the validity of the entry which is the foundation of the title of the junior patentee is first to be examined. \nThis entry was made on the 4th of December, 1783, and calls to begin \"in the fork of Chaplin's fork, and the Beech fork, and to run thence up Beech fork to the mouth of the first large creek, which is called, &c., thence to run up the creek and up Chaplin's fork till a line run straight across will include the quantity to exclude prior legal claims.\" \nThe places called for being proved to have been places of notoriety which could not be mistaken, no want of certainty  can be ascribed to this location, unless it be produced by the words \"to exclude prior legal claims.\" These words are obviously attached to the quantity, not to the beginning, or to the lines bounded by the creeks. They can then affect only the back line, which is to extend from one creek to the other. The locator seems to have supposed that this line might approach towards, or recede from, the point of junction between the two creeks, as the amount of prior legal claims might require; that a location could adapt itself to circumstances, could assimilate itself to an elastic substance, and contract or expand as might secure the quantity of land it sought to appropriate. In this he was mistaken. The boundaries of an entry must be fixed  precisely by its own terms, and cannot depend on previous appropriation. So much of this entry, therefore, as would so extend the back line as to comprehend, in one event, more land than the quantity mentioned in the location, is utterly void. The back line must run as it would run if all the land was vacant. But it would be unreasonable that this futile attempt to extend the back line further than it is by law extendible, should destroy  an entry, in all other respects certain. Accordingly, the courts of Kentucky, so far as their decisions are understood, have rejected such words as surplusage. \nThe entry of the appellees being good, it obviously comprehends, and has been surveyed to comprehend, the land of the appellant, and this brings us to the consideration of his title. \nThe appellant claims under an entry made by John Pinn, the 13th of May, 1780, in these words, \"John Pinn enters 2,000 acres of land by virtue of a treasury warrant, on the dividing ridge between Chaplin's fork and waters of the Beech fork, about one and a half miles north of a buffalo lick, on a creek water of the Beech fork, about 25 miles from Harrodsburgh, and to extend eastwardly and westwardly for quantity.\" \nThe plaintiffs below allege, in their bill, that this entry is void on account of its uncertainty, that the survey is unlawful and contrary to the location, and, therefore, pray that the land so surveyed and patented may be conveyed to them. The circuit court determined that the entry was void, and decreed according to the prayer of the bill. From this decree  the defendant has appealed to this court, and the validity of  Pinn's location forms the principal question in the cause. \nThe report of the surveyor, which is found in the record, is defective and unsatisfactory. He has neither placed Harrodsburgh nor the dividing ridge on the plat; the court is under the necessity of supplying these defects, as far as they can be supplied, from other testimony which appears in the record. From that testimony it appears, that the ridge must extend from some point below Pinn's entry, up the creek near which it is made, now called Long Lick Creek; and that the trace leading up that creek was a trace leading from Cox's station to Harrodsburgh. The inference seems inevitable that Harrodsburgh lay eastward from this location, since the trace leading up the creek to Harrodsburgh took that direction. The testimony must be understood as showing that in  going up the Long Lick Creek you approach Harrodsburgh. \nThis is a material fact in the inquiry we are making. Harrodsburgh is admitted to have been a place of general notoriety, as are Chaplin's fork, and the creek called for in Pinn's location. The dividing ridge between Chaplin's fork and the waters of Beech fork is also, of necessity, a place of notoriety,  since the waters it divides are so. \nThe first call of Pinn's entry is for this dividing ridge; a general call for the ridge would be certainly too vague; but the land must lie on some part of it, and we must look to other calls of the entry to ascertain on what part. It is to be about one and  a half miles north of a buffalo lick, on a creek water of the Beach fork. \nThe question, whether this buffalo lick was, on the 13th of May, 1780, a place of such notoriety as to instruct a subsequent locator how to find Pinn's beginning, is one of some doubt. The degree of proof which can now be adduced, and ought now to be required, respecting such a fact, must be affected by many circumstances.The contiguity of stations, the number of persons who frequented that particular part of the country, and, above all, the lapse of time, will have their influence. \nRichard Stephens deposes that he had travelled Powell's trace, which leads up the Long Lick fork, three times; understood there was a lick at the place, and thinks he was at it, but was not much acquainted with it. \nEdward Willis became acquainted with this lick in 1781 or 1782; there were several other licks on the same creek,  but this was the largest and most frequented.Its reputed distance from Harrodsburgh was better than twenty miles. \nJoseph Willis hunted a good deal in that part of the country, and knew this lick. Never knew but one buffalo lick, though there are a number of small licks. Its reputed distance from Harrodsburgh was upwards of twenty miles, but does not recollect whether it was a place of notoriety in 1780. \nJohn Gritton calls it a buffalo lick, and has been acquainted with it ever since the month of June, in the year 1780. Its reputed distance from Harrodsburgh was from twenty to twenty-five miles. There  are several other small licks on the creek, and one, a tolerable large one, lying on the south fork, a different creek from Long Lick; but no other than this was called a buffalo lick. In a subsequent part of his deposition he is asked whether this lick was a place of notoriety in 1780, and answered, that he knew nothing about it at that time. This must be intended for the month of May, 1780, one month sooner than the date of his knowledge, or is a positive contradiction to his first assertion. \nJames Raig says, that this lick was generally known by the hunters about  Harrodsburgh, prior to the month of May, 1780; that he encamped at it with three hunters, in the summer of 1776, and hunted about there; that there are several other licks in the neighbourhood, but no other buffalo lick; that its reputed distance from Harrodsburgh, in 1781 or 1782, was about 25 miles. \nThis is all the testimony respecting the notoriety of the buffalo lick called for in Penn's entry. Did the validity of this entry depend solely on the notoriety of the lick, a court would find some difficulty in pronouncing it too obscure an object to be notieed by subsequent locators. \nBut, admitting that the lick wants sufficient notoriety to fix of itself the place of Penn's entry, still, it must be allowed to be an object easily found and easily distinguished, by those who are brought into its neighbourhood by the other descriptive parts of the entry. Let us, then, inquire, whether this entry does contain such description as would conduct a subsequent locator into its neighbourhood. \n The lick is within a mile and a half of the dividing ridge, on the south side of that ridge, and on a creek water of Beech fork. This description, which, though not expressly, is substantially  given, precisely fits Long Lick Creek, and fits no other creek. The location calling to begin a mile and a half north of the lick, which lies on the creek; it is sufficiently apparent that no creek is crossed between the lick and the place on the dividing ridge, called for by Pinn's entry: consequently, the lick must lie on the creek nearest this dividing ridge. This is what has been since called Long Lick Creek, but which was then without a name, and could be designated only by description. A subsequent locator searching for this lick, would look for it, then, on Long Lick Creek. He is informed by the entry, that it lies on a creek so described as to be completely ascertained, about twenty-five miles from Harrodsburgh. The part of that creek, then, which lies about twenty-five miles from Harrodsburgh, is the place where he must search for this lick. Walton and Hundly state in their entries, that Powell's trace, which leads from Cox's station to Harrodsburgh, and which arrives at Long Lick Creek a short distance above this lick, goes up the creek five or six miles. James Ray says, that the trace leads nearly to its head; and the surveyor in his report states, that it leads quite  to its head. Long Lick Creek, then, heads between Harrodsburgh and this lick, and is the creek on which the buffalo lick must lie. The entry tells us, it lies twenty-five miles from Harrodsburgh. \n If an object be called for as lying on a creek, so described as to be distinguished and ascertained, twenty-five miles from a given place of general notoriety, which object has disappeared or cannot be found, it is understood to be settled, in Kentucky, that such location is not void for uncertainty, but is to be surveyed at the distance of twenty-five miles along the creek, from the place of departure. If the object be found and be identified, especially if it be such an object as would readily attract attention, and be easily distinguished, exactness in the distance is not required. On such occasions the distance was, in fact, seldom measured by the locator, and could not be measured in a straight line without the aid of a surveyor. The locator, in estimating distances, where they are considerable, is governed by general computation; and this is known to subsequent locators. Exactness of distance, then, is introduced for the purpose of giving certainty to locations, which  can by no other means be rendered certain. Where the object called for is easily found and  identified, the want of precision in distance will not defeat the location, unless the difference between the actual and estimated distance be such, as to mislead subsequent locators. \nJames Ray says, that the estimated distance from Harrodsburgh to the mouth of Hanger run was 27 or 30 miles, and that the lick was about three miles nearer than the mouth of Hanger run to Harrodsburgh. James Ray says, that the estimated distance from Harrodsburgh to the lick was about 25 miles, and that it lies three or four miles above the junction  of the Beech and Chaplin forks. Several witnesses depose, that the estimated distance from Harrodsburgh to this lick was upwards of twenty miles. The distance has been measured, and is in a straight line twenty miles and one quarter of a mile. \nIf this difference of distance could in such a case, when unaided, affect the entry, yet there are other circumstances which relieve it from this difficulty. \nFrom the lick to the mouth of the creek on which it must lie, cannot, in a straight line, amount to two miles. Measured along its meanders,  the distance is about three miles.This fact is ascertained by the surveys made of the two entries. The farthest point, then, of this creek from Harrodsburgh, cannot, in a straight line, exceed twenty-two miles. But the lick lies, not at the mouth of the creek, but on the creek.The locator must, then, search for it up the creek, and nearer to Harrodsburgh. The extent of this search for such an object as a buffalo lick, an object, to which he must be led by traces of the buffalo, which are in themselves so visible, so distinguishable, so readily found, cannot, without totally disregarding the whole system of Kentucky decisions, be pronounced too great a labour to be imposed on a subsequent locator. He is brought to the mouth of a creek, on which the object for which he searches lies: the object must lie up that creek, and cannot lie far from its mouth. It is an object discernible and distinguishable at a distance, and calculated from its nature to engage attention. He is within two miles of it on a straight line, and within three miles pursuing the meanders of the creek: if he does not find  it, it is to his own indolence, not to the obscurity of the object or the difficulty  of the search, that the blame attaches. \nThe lick being found, there is no difficulty in ascertaining its identity. The witnesses certainly say, that there are many other licks on the same creek, and the surveyor has laid down two others; but they also say, that no other lick was a buffalo lick. It has been stated and argued at the bar, that although licks are of very different dimensions, and the difference is immense between the extremes, yet the gradations approach each other so nearly, that the exact line between them can scarcely be drawn. Admitting this to be true, yet there are licks which are indubitably buffalo licks, there are others which are as indubitably deer licks. Now, the witnesses pronounce, positively, that this is a buffalo lick, and that the others are deer licks. In addition to this, it is nearest to the mouth of the creek, and farthest from Harrodsburgh; consequently, it is nearer the distance required by the location. There is no doubt, then, respecting the identity of this lick. \nThe lick called for in Pinn's entry being found and identified, there can be no difficulty in finding his land. It lies one and a half miles due north of this lick, on the dividing  ridge. The place at which the mensuration is to commence being ascertained, the rules established in Kentucky will give form to the land, and direct the manner of making the survey. \nIt is the opinion of this court, that the decree of the circuit court is erroneous, and ought to be reversed;  and that the cause be remanded to that court, with directions to order the land claimed by the appellant to be surveyed conformably to his location. In doing this, a point will be taken one mile and a half due north of the buffalo lick mentioned in Pinn's entry, from which a line is to be extended east and west, to equal distances, until it shall form the base of a square to contain 2,000 acres of land, which is to lie north of the said line. \nDecree reversed. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J., delivered the opinion of the court. \nThe legislature of North Carolina, while  Tennessee was a part of that state, passed an act establishing the town of Nashville, and vesting 200 acres of land in trustees, to be laid off in  lots, and sold, and conveyed in the manner prescribed by the act. On the 1st of July, 1784, subsequent to the passage of the act establishing the town, the trustees executed a deed regularly conveying the lot, for a moiety of which this suit was brought to Abednigo Lewellin. On the 1st of April, 1810, Shadrack Lewellin, heir at law of Abednigo, who had then attained his full age of twenty-one years, for seven years and upwards, executed a deed conveying the land in controversy to Francis May; after which, and previous to the institution of this suit, Francis May conveyed the same land to the lessor of the plaintiff. The defendant produced a deed dated the 2d of February, 1793, executed by a certain Josiah Love, and purporting to convey the land in controversy to William T. Lewis. It appeared in evidence that Lewis had purchased the land fairly, and paid a valuable consideration for it, and that at the time no person was in possession of it. Immediately after this conveyance, Lewis entered into, and took full possession of, the premises, made valuable improvements thereon, and continued so possessed until the 14th of February,  1810, when he sold and conveyed the same  to William Easton, the defendant, who entered into and took possession, and continued peaceably possessed thereof, until the 12th of November, 1810, when this suit was instituted. Upon this testimony, the defendant's counsel moved the court to instruct the jury that the defendant was protected in his possession of the premises by the laws of the land, and that by virtue of the said laws the plaintiff was barred from recovering the said parcel of ground and premises. On this question the judges were divided in opinion, which question and division have been certified to this court as prescribed by law. \nThe evidence is not so stated on the record as to present any point for the consideration of this court, other than the question whether a possession of seven years is, in this case, a bar to the plaintiff's action. This question depends on the construction of an act of the legislature of Tennessee, passed in the year 1797, to explain an act of the legislature of North Carolina, passed in the year 1715. \nThe act of 1715, after affirming, in the first and second sections, certain irregular deeds, previously made, under which possession had been held for seven years, enacts, in the third  section, \"that no person, or persons, or their heirs, which hereafter shall have any right, or title, to any lands, tenements, or hereditaments, shall thereunto enter or make claim, but within seven years after his, her, or heir right or title shall descend or accrue; and in  default thereof such person or persons so not entering or making default shall be utterly excluded and disabled from any entry or claim thereafter to be made.\" The fourth section contains the usual savings in favour of infants, &c., who are authorized within three years after their disabilities shall cease \"to commence his or her suit, or make his or her entry.\" Persons beyond sea are allowed eight years after their return; \"but that all possessions held without suing such claim as aforesaid, shall be a perpetual bar against all and all manner of persons whatever, that the expectation of heirs may not, in a short time, leave much land unpossessed, and titles so perplexed that no man will know from whom to take or buy land.\" \nThe judges and lawyers of the state of North Carilina have been much divided on the construction of this act; some maintaining that, like other acts of limitation, it protects mere  naked possession; others, that the first and second sections (which are retrospective) have such an influence on the third and fourth, (which are prospective,) as to limit their operation to a possession acquired and held by colour of title. This court is relieved from an investigation of these doubts by a case decided in the supreme court of North Carolina, in which it was finally determined that the act of 1715, afforded protection to those only who held by colour of title. This contest was maintained as strenuously in Tennessee after its separation from North Carolina as in the present state. Anterior to the decision of the supreme court of North Carolina, which has been mentioned  the legislature passed an act to settle \"the true construction of the existing laws respecting seven years' possession,\" in which it is enacted, \"that in all cases wherever any person, or persons, shall have had seven years' peaceable possession of any land, by virtue of a grant, or deed of conveyance founded upon a grant, and no legal claim by suit in law, by such, set up to said land, within the above term, that then, and in that case, the person, or persons, so holding possession as aforesaid,  shall be entitled to hold possession in preference to all other claimants, such quantity of land as shall be specified in his, her, or their, said grant, or deed of conveyance, founded on a grant as aforesaid.\" The act then proceeds to bar the claim of those who shall neglect, for the term of seven years, to avail themselves of any title they may have. As not unfrequently happens, this explanatory law generated as many doubts as the law it was intended to explain. On the one part it was contended, that being designed for the sole purpose of removing all uncertainty respecting the construction of the act of 1715, its provisions ought to be limited to its avowed object, and a doubt had never existed whether it was necessary for a person in possession to show more than a colour of title, a deed acquired in good faith, in order to protect himself under that act; so, nothing farther ought to be required in order to enable him to avail himself of the act of 1797. That if it should be necessary to trace a title up to a grant, the act of 1797, instead of quieting possession of that protecting  quality which the policy of all other countries bestowed upon it; that the act of 1797,  was obviously drawn with so much carelessness as, in some of its parts, to exclude the possibility of a literal construction; and, for this reason, a more liberal construction would be admissible in order to effect its intent. It was, therefore, insisted not to be necessary for the defendant, holding possession under a bona fide conveyance of lands which had been actually granted, to deduce his title from the grant; but that it was sufficient to show that the land had been granted, and that he held a peaceable possession of seven years under a  deed. On the other part it was contended, that, on this point, there is no ambiguity in the words of the act. The seven years' possession, to be available, must be \"by virtue of a grant, or of a deed founded on a grant.\" It is as essential that the deed should be founded on a grant, as that a deed should exist. A possession of seven years does no more in the one case than in the other bar a legal title. The words of the act being perfectly clear; they must be understood in their natural sense. When confined to different deeds, founded on the same patent, or to deeds founded on different patents, for the same land, although some  cases of fair possession may be excluded from their operation, yet they will apply to the great mass of cases arising in the country. \nThis question, too, has, at length, been decided in the supreme court of the state. Subsequent to the division of opinion on this question, in the circuit court, two cases have been decided in the supreme  court for the state of Tennessee, which have settled the construction of the act of 1797. It has been decided, that a possession of seven years is a bar only when held \"under a grant, or a deed founded on a grant.\" The deed must be connected with the grant. This court concurs in that opinion. A deed cannot be \"founded on a grant\" which gives a title not derived in law or equity from that grant; and the words founded on a grant, are too important to be discarded. The act of assembly vesting lands in the trustees of the town of Nashville, is a grant of those lands, and as the defendant shows no title under the trustees, nor under any other grant, his possession of seven years cannot protect his title, nor bar that of the plaintiff. And this is to be certified to the circuit court for the district of West Tennessee. \nCertificate for  the plaintiff. \n \n\n ", " \nOpinion \n\n \n \n MARSHALL, Ch. J., delivered the opinion of the court, that the goods were chargeable with the same rate of duties as goods imported in foreign bottoms, according to the decision in the case of the Concord. at the last term. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J., delivered the opinion of the court. \nThis is an action of ejectment, brought by the defendants in error, in the circuit court for the district of New-York, to recover certain lands, which they claim as the heirs of Donald Fisher, deceased. A special verdict was found in the case, which shows that Donald Fisher was a British subject, residing  in the city of New-York, and departed this life in the year 1798, leaving the lessors of the plaintiffs in ejectment his heirs at law, who are, also, British subjects. The plaintiffs, being thus found to be British subjects, are incapable of maintaining an action for real estate in the state of New-York, unless they are enabled to do so by the 9th article of the treaty between the United States and Great Britain, made in the year 1794, which provides that British subjects, holding lands in the United States, and their heirs, so far as respects those lands, and the legal remedies incident thereto, should not be considered as aliens. To avail themselves of this treaty, the lessors of the plaintiff below must show that their ancestors held the lands for which this suit was instituted, at the time when it was made. The court does not mean to say that they must show a seisin in fact, or an actual possession of the land, but that the title was in him at the time. This must be  shown in order to bring the case within the protection afforded by the treaty. \nThe jurors find that Donald Fisher was, on the 1st day of January, in the year 1777, seised in his demesne, as of fee,  of the lands and tenements in the declaration mentioned, and was in the actual possession thereof, and continued so seised and possessed, until the rendering the judgment herein after mentioned. \nOn the 17th day of April, in the year 1780, the grand jury, for the county of Charlotte, in the state of New-York, found an indictment, stating that Donald Fisher (who is the ancestor under whom the lessors of the plaintiffs claim) did, on the 14th day of July, in the year 1777, voluntarily, with force and arms, adhere to the enemies of the state. The record proceeds to state, that \"the said Donald Fisher having, according to the form of the act of the Legislature, entitled 'an act for the forfeiture and sale of the estates of persons who have adhered to the enemies of the state,' &c. been notified to appear and traverse the said indictment, and not having appeared and traversed within the time, and in the manner in and by the said act limited and required, it is, therefore, considered that the said Donald Fisher do forfeit all and singular the estate, both real and personal, whether in possession, reversion, or remainder, had or claimed by him in this state.\" This judgment was signed on  the 29th day of December, 1783, and is the judgment referred to in the special verdict, as herein before mentioned. Under these proceedings the lands in the declaration mentioned  were sold, and the defendants, in the court below, hold under that sale. \nThere are other points raised in the special verdict, and urged by counsel; but it will be unnecessary to notice them, and the court does not mean to give any opinion on them. The court gave judgment for the plaintiffs below, and that judgment is now before this court on a writ of error. \nIt is contended by the defendants in error that this judgment having been rendered subsequent to the treaty of peace of 1783, and in direct repugnance thereto, is not merely voidable, but absolutely void.By the plaintiffs it is alleged to be voidable only. \nThis court cannot now decide that question. The verdict does not find that Donald Fisher held his title until the treaty of 1794 was made,  and although nothing is found to show that he has parted with it, yet the court cannot presume that he did not part with it. The verdict ought to have shown that the title was in Donald Fisher when the treaty was made, and continued  in him to the time of his death. For this essential defect, the verdict is too imperfect to enable the court to decide on the case. The judgment of the circuit court must, therefore, be reversed, and the cause remanded to that court, with directions to award a venire facias de novo. \nJUDGMENT. This cause came on to be heard on the transcript of the record of the circuit court for the district of New-York, and was argued by counsel;  all which being considered, this court is of opinion that there is error in the judgment of the circuit court for the district of New-York, in this, that the said court ought not to have rendered judgment on the said verdict in favour of the plaintiffs in ejectment, because it does not appear certainly, in the said verdict, that the ancestor, under whom they claim, held in law, or in fact, the lands mentioned in the declaration, when the treaty of 1794, between the United States and Great Britain, was made; therefore, it is considered by this court, that the said judgment be reversed, and annulled, and that the cause be remanded to the circuit court, for the district of New-York, with directions to award a venire facias de novo. \nJudgment  reversed. 1 \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J., delivered the opinion of the court, and, after stating the facts, proceeded as follows: \nThe act of assembly, on which the opinion of the court below,  on the first question, was given, is entitled, \"An act concerning champerty and maintenance.\" It enacts, \"that no person purchasing, or  procuring an interest in any legal or equitable claim to land held, &c., shall be precluded from prosecuting or defending said claim, under such purchase or contract; neither shall any suit, or suits, brought to establish such purchase, or make good the title to such claim, be considered as coming within the provisions, either at common law or by statute, against champerty or maintenance,\" &c. This court is of opinion, that this statute enabled the lessors of the plaintiff to maintain a suit in their own name for the lands conveyed to them, and that there is no error in this instruction of the circuit court. \nOn the third question the circuit court instructed the jury that an adverse possession under a survey, previous to its being carried into grant, could not be connected with a subsequent possession, but that the computation must commence from the date of the patent. In giving this opinion, the court unquestionably erred. No principle can be better settled than that the whole possession must be taken together. \nThe counsel for the  defendants in error have endeavoured to sustain this opinion by a construction of the statute of limitations of Kentucky. They contend, that after the statute has begun to run, it stops, if the title passes to a person under any legal disability, and recommences after such disability shall be removed. This construction, in the opinion of this court, is not justified by the words of the statute. Its language does not vary essentially from the language of the statute of James, the construction of which has been well settled; and it is to be construed as that statute, and all other acts of limitation  founded on it, have been construed. This court is, therefore, of opinion, that there is error in the instruction given by the circuit court to the jury on the third prayer of the plaintiff in error. 1 \nIt has been contended by the counsel for the plaintiff, that there is also error in the judgment rendered against Joseph Day by default; but of his case the court can take no notice, as he is not one of the plaintiffs in error, and the judgment rendered against him is not before us. The judgment must be reversed for  error in the directions of the court to the jury on the third point, on which instructions were given. \nJUDGMENT.This cause came on to be heard on the transcript of the record, from the circuit court for the district of Kentucky, and was argued by counsel. On consideration whereof this court is of opinion, that there is error in the proceedings and judgment of the circuit court in this, that the judge thereof directed the jury that the tenants in possession could not connect their adverse possession previous to the date of the patent under which they claimed with their adverse possession subsequent thereto, but in the length of time which would bar the action could compute that only which had passed subsequent to the emanation of their grant. Wherefore, it is considered by the court, that the judgment of the circuit  court be reversed and annulled, and that the cause be remanded to the circuit court, with directions to award a new trial therein. \nJudgment reversed. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J., delivered the opinion of the court. \nWhen the claimants, in this case, applied to  the circuit court to be let in to farther proof, for the purpose of showing their ignorance of the fact that the Hiram sailed under the protection of a British license, the judge of that court considered the agreement of the parties that these causes should depend on the fate of Griffith's claim, under which agreement the sentence, that would otherwise have been pronounced against them, was suspended until the decision of the supreme court on that claim should be made, as having the same validity as if that agreement had been entered, at the time, on the records of the court. In that opinion, there having been no doubt respecting the fact, this court concurs. But this court is also of opinion that if the agreement was made under a clear mistake, the claimants ought to be relieved from it, where it could be done without injury to the opposite party. If a judgment be confessed  under a clear mistak, a court of law will set that judgment aside, if application be made, and the mistake shown while the judgment is  in its power. An agreement, made a rule of court, to confess a judgment cannot be stronger than a confession itself; and, of course, a party will not be compelled to execute such an agreement, but will be allowed to show cause against the rule in a case where it was plainly entered into under a mistake. If the judgment be no longer in the power of a court of law, relief may be obtained in chancery. Still more certainly will an agreement, entered into a suit orginally depending in a court of chancery, be relaxed, or set aside, if it be proved to the court to have been entered into under a mistake. The case cited from Peerc Williams is directly in point. \nThese principles are of universal justice, and of universal obligation. They cannot apply with less force to causes depending in prize courts than to causes depending in other courts. The propriety, then, of rejecting further proof in this case, and of condemning the property claimed by the appellants, will pend on the clearness with which they show the mistake under which the agreement was made, and on their ability to support their case if that agreement be set aside. If a real and substantial difference exists between the  case of the present claimants, and that formerly decided by this court, there will not be much difficulty in yielding to the suggestion, supported, as it is, by the proof now offered, that this agreement was made without knowledge of that difference, and, consequently, by mistake.  But the question then occurs, whether restitution ought to be decreed to them, if the obligation of the agreement be removed. \nThe claimants allege that, in point of fact, they did not know that the Hiram sailed under a British license, and the proof they offer goes far in supporting this allegation. It is admitted that ignorance of this fact will save from the forfeiture incurred by it, unless the claimants have such constructive notice as will preclude them from showing the want of actual notice. It has been argued that the transaction rendered Griffith the agent of the other shippers, so as to infect their claims with his knowledge; that by consenting that their property should be shipped in his name, it becomes liable to all the risks to which it would have been exposed had it been actually his. It has been also argued that the supercargo is clearly the agent of the shippers, and that  his knowledge of the license being on board is, constructively, their knowledge. The counsel for the claimants endeavours to rescue his clients from the effect of this constructive notice, by contending that the principle of respondeat superior can never apply to a case of a criminal nature; that a license works a forfeiture, because it is a breach of allegiance -- an offence which cannot be imputed to a person having no knowledge of the criminal act which constitutes the breach of allegiance: and that this principle has, in prize courts, been applied to cases punishable under the law of nations; not to offences against the government of the captor and captured. \n The court considers the sailing, under an enemy's license, as closely connected, in principle, with the offence of trading with the enemy; in which case it is believed to be incontrovertible, that the knowledge of the agent would affect the principal, although he might, in reality, be ignorant of the fact. 7 Upon this ground, the sentence of the circuit court is affirmed with costs. \n Sentence affirmed. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch J., delivered the opinion of the court, and, after stating the facts, proceeded as follows: \nThe act of the legislature of Rhode-Island, on which this case depends, enacts, \"That it shall and may be lawful for the sheriffs of the several counties, to grant to any person imprisoned for debt, a chamber in any of the houses, or apartments,  belonging to such prison, and liberty of the yard within the limits thereof, on his giving bond to the creditor, with two sufficient sureties, in double the amount of the debt, with condition to remain a true prisoner until lawfully discharged, and not to escape. And in case the creditor shall put the bond in suit, and recover judgment thereon for breach of the condition, he is to recover his debt with thirty per centum on the principal sum for his damages;\" and the principal, and his sureties, shall be committed to close  jail until the judgment be paid. The law, then, prescribes the manner in which a poor prisoner may obtain his discharge. On application to any judge of the court of common pleas, or justice of the peace in the county, notice is to be given to the creditor to appear at such time and place as the judge or justice shall appoint, to show cause why the prisoner should not have the benefit of the act. Any one judge of the court of common pleas, and any one disinterested justice, are then authorized to administer the oath prescribed in the law; \"if, after fully examining and hearing the parties, the said justices shall think proper so to do.\" A certificate  being given to the jailer, the prisoner is to be discharged, on leaving with the jail keeper, to be delivered to his creditor, his note payable to the creditor in two years, with interest, for the amount of the execution. It is then enacted, that if any such prisoner shall be convicted of having sold, leased, or otherwise concealed, or disposed of, or intrusted his or her estate, or any part thereof, directly or indirectly, contrary to his or her oath, or affirmation, he, or she, shall not only be liable to the pains and penalties of wilful perjury, but shall receive no benefit from said oath or affirmation. \nThe question to be decided by this court is, whether a prisoner obtaining a discharge according to the forms of law, by means of fraud and falsehood, has broken the condition of his bond. \nThere is so much turpitude in the act confessed by the demurrer, such reluctance to allow any man to avail himself of so flagitious a defence, that it is  not without some difficulty this question can be considered as a naked point of law. It is, however, the duty of the court so to consider it; and this has been attempted. \nThe object for which this bond was given is of decisive  importance in the inquiry respecting the extent of the obligation it imposes. It is, certainly, not given for the purpose of improving the security of the creditor, but simply for the purpose of allowing the debtor the benefit of the prison yard, without impairing the right of the creditor to the custody of his person. The yard, and a comfortable chamber, are substituted for the walls of a jail; but as this substitution would facilitate an escape, it was deemed reasonable to secure the creditor against the abuse of an indulgence which the humanity of the law afforded. This consideration would suggest the propriety of provisions against an actual escape, the means for making which were furnished by allowing the use of the prison yard; but not against the employment of fraud or artifice to obtain a discharge, in the manner prescribed by law, which may be employed in jail as well as in the yard, and the means of employing which are not in any degree facilitated by substituting the yard for the walls of the jail. The condition of the bond is, to remain \"a true prisoner, until lawfully discharged, without committing any escape, or escapes, during the term of his restraint,\" and the  certificate is a mode of discharge prescribed by law which terminates \"his restraint.\" If, as is conceived, this bond was intended to guard against the dangers created  by allowing the prisoner the liberty of the prison yard, not against a fraud already committed, which is entirely unconnected with the bond, and the enlargement of his limits; then it is not broken by the practice of such fraud.The persons perpetrating it are, in a high degree, criminal, and ought not to be permitted to avail themselves of such conveyances. The jurisprudence of Rhode-Island must be defective indeed, if it does not furnish a remedy for such a mischief. The replication charges these conveyances to have been executed by the defendant, pending the suit, for the purpose of defrauding the plaintiff, of defrauding his creditors generally, and of enabling himself to take the oath of an insolvent debtor. It further charges, that after the execution of the bond, the false oath was taken with the knowledge of the sureties. However criminal this act may be, it cannot be punished by extending the obligation of the bond, on which this suit was instituted. The judgment rendered by the magistrates was  obtained by perjury, but the discharge of the prisoner, which was the consequence of that judgment, was in the course of law, and is not deemed an escape. \nThis question appears to have been considered by the court in the case of Simms et al. v. Slacum; and although the question was not there decided, because in that case the sureties alone were sued, and did not appear to be concerned in the fraud of their principal, yet the  reasoning of the court certainly applies to this case. The decision in the case of Simms et al. v. Slacum has been revised, and the court feels no  disposition to depart from it. The reasoning it contains need not be repeated, but is considered as applicable to this case. \nThere is some difference in the provisions of the two statutes, but not enough to induce a different construction as to the extent of the obligation of the bond for keeping the prison rules. The law of Rhode-Island enacts, that if any prisoner shall be convicted of having disposed of any part of his estate, contrary to his oath or affirmation, \"he shall not only be liable to the pains and penalties of wilful perjury, but shall receive no benefit from said oath or affirmation.\"  Conviction is a technical term applicable to a judgment on a criminal prosecution, not to a proceeding on this bond. The act contemplates a prosecution on which the party may be adjudged to suffer the penalties of perjury, in addition to which he is to be deprived of all benefit from the oath or affirmation. If this section has any influence it would be to show that in the contemplation of the legislature such conviction is necessary previous to the establishment of the absolute nullity of the oath or affirmation. The court, however, does not mean to indicate that the effect of the oath and of the discharge granted by the magistrates might not be controverted in any proceeding against the parties, either in law or equity, other than in a suit on the bond for keeping the prison rules. \nCERTIFICATE. -- This cause came on to be heard on the transcript of the record from the circuit court for the district of Rhode-Island, containing the points  on which the judges of that court were divided in opinion, and was argued by counsel. On consideration whereof this court is of opinion that the replication of the plaintiff is insufficient to avoid the plea of the defendant. All  which is ordered to be certified to the said circuit court. \nCertificate for the defendant \n \n\n ", " \nOpinion \n\n \n \n  Mr. Ch. J. MARSHALL delivered the opinion of the court, and after stating the facts, proceeded as follows: \nOn the first  exception it has been argued, that there is a failure of consideration, which constitutes a good defence in this action. \nWithout deciding whether, after receiving a deed, the defendant could avail himself of even a total failure of consideration, the court is of opinion, that to make it a good defence, in any case, the failure must be total.The prior mortgage of the premises, and the decree of foreclosure, do not produce a total failure of consideration. The equity of redemption may be worth something: this court cannot say how much; nor is the inquiry a proper  one in a court of law in an action on the note. If the defendant be entitled to any relief it is not in this action. \nBut if any doubt could exist on the first exception, there is none on the second. The note was given with full knowledge of the case. Acquainted with the extent of the incumbrance, and its probable consequences, the defendant consents to receive the title which the plaintiff was able to make, and on receiving it, executes his note for the purchase money. To the payment of a note given under such circumstances, the existence of the incumbrance can certainly furnish no legal objection. \nIt has  been also said that the deed is defective.If it be, the defendant may require a proper deed, and it is not impossible but there may be circumstances which would induce a court of equity to enjoin this judgment until a proper deed be made. But the objections to the deed cannot be examined in this action. \nJudgment reversed. 3 \n JUDGMENT. This cause came on to be heard  on the transcript of the record of the circuit court of the United States for the county of Washington, and was argued by counsel. All  which being seen and considered, it is the opinion of this court that there is error in the proceedings of the said circuit court, in this, that the said court refused to instruct the jury on the application of the counsel for the plaintiff, that on the facts given in evidence to them, if believed, the plaintiff was entitled to recover in that action; wherefore it is considered by this court, that the said judgment of the said circuit court be reversed and annulled, and that the cause be remanded to the said court to be proceeded in according to law. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Ch. J. MARSHALL delivered the opinion of the court, and, after stating the facts, proceeded as follows: \nIt is contended, by the plaintiffs in error, that the judge misconstrued the law in his instructions to the jury. \nThe case is admitted to be within the act of limitations of the state of Tennessee, and not within the letter of the exceptions. But it is contended that, as the plaintiffs were disabled,  by statute, from surveying their land, and, consequently, from prosecuting this suit with effect, they must be excused from  bringing it; and are within the equity, though not within the letter of the exceptions. \nThe statute of limitations is intended, not for the punishment of those who neglect to assert their rights by suit, but for the protection of those who have remained in possession under colour of a title believed to be good. The possession of the defendants being of lands, not within the Indian territory, and being in itself legal, no reason exists, as connected with that possession, why it should not avail them and perfect their title as intended by the act. \n The claim of the plaintiffs to be excepted from the operation of the act is founded, so far as respects this point, not on the character of the defendants' possession, but on the impediments to the assertion of their own title. \nWherever the situation of a party was such as, in the opinion of the legislature, to furnish a motive for excepting him from the operation of the law, the legislature has made the exception. It would be going far for this court to add to those exceptions. It is admitted  that the case of the plaintiffs is not within them, but it is contended to be within the same equity with those which have been taken out of the statute; as where the courts of a country are closed so that no suits can be instituted. \nThis proposition cannot be admitted. The difficulties under which the plaintiffs laboured respected the trial, not the institution of their suit. There was no obstruction to the bringing of this ejectment at an earlier day. If, at the trial, a survey had been  found indispensable to the justice of the cause, the sound discretion of the court would have been exercised on a motion for a continuance. Had such a motion been overruled, the plaintiffs would have been in the condition of all those who, from causes which they cannot control, are unable to obtain that testimony which will establish their rights. If this difficulty be produced by the legislative power, the same power might provide a remedy; but courts cannot, on that account, insert in the statute of limitations an exception which the statute does not contain. It has never been determined that the impossibility of bringing a case to a successful issue, from causes of uncertain duration,  though created by the legislature, shall take such case out of the operation of the act of limitations unless the legislature shall so declare its will. \nIt as also been contended, that in this under the possession is not under colour of title. \nThe ejectment was served on Ragan, who was the tenant in possession, and, on his motion, David Mabane and John Thomson, executors of the last will and testament of James Mabane, deceased, and landlords to the said Henry Ragan, were admitted as defendants with him in the cause. At the trial they produced a grant for the land in controversy to James Mabane, and proved, \"that Ragan took possession of the same, under James Mabane, the grantee, in 1804, and continued to occupy the same ever since.\" \nIt is argued that, though Ragan is stated to have taken possession under Mabane, he is not stated to  have continued that possession under Mabane, and this court will not presume that he did so.Without such presumption, his possession, it is said, would not be under colour of title, and, consequently, would be no bar to the action according to the statute of Tennessee. \nThe court cannot yield its assent to this hypercriticism on the language  of the exceptions. The representatives of Mabane came in as defendants, and plead the general issue. They are stated on the record to be the landlords of Ragan. When Ragan is said to have taken possession under Mabane, and to have continued to occpuy the land, the fair inference is that the possession was continued under the same right by which it was originally taken. Neither the statement of the counsel, nor the opinion of the court turns, in any degree, on the nature and character of Ragan's possession, but on the disability of the plaintiffs to survey their land. For all these reasons this court is decidedly of opinion, that the possession of Ragan was the possession of Mabane, and was under colour of title. \nJudgment affirmed. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Ch. J. MARSHALL delivered the opinion of the court, and after stating the facts, proceeded as follows: \nIn considering this case, the first question which presents itself is this: Has the constitution, or any law of the United States, been violated or misconstrued by the court of Rhode-Island in exercising its jurisdiction in this cause? \nthe judiciary act gives to the federal courts exclusive cognizance of all seizures made on land or water. Any intervention of a state authority which, by taking the thing seized out of the possession of the officer of the United States, might obstruct the exercise of this jurisdiction, would unquestionably be a violation of the act; and  the federal court having cognizance of the seizure, might enforce a re-delivery of the thing by attachment or other summary process against the parties who should devest such a possession. The party supposing himself aggrieved by a seizure cannot, because he considers it tortious, replevy the property out of the custody of the seizing officer, or of the court having cognizance of the cause. If the officer has a right, under the laws of the United States, to seize for a supposed forfeiture, the question, whether that forfeiture has been actually incurred, belongs exclusively to the  federal courts, and cannot be drawn to another forum; and it depends upon the final decree of such courts whether such seizure is to be deemed rightful or tortious. If the seizing officer should refuse to institute proceedings to ascertain the forfeiture, the district court may, upon the application of the aggrieved party, compel the officer to proceed to adjudication, or to abandon the seizure. And if the seizure be finally adjudged wrongful, and without reasonable cause, he may proceed, at his election, by a suit at common law, or in the admiralty for damages for the illegal act. Yet, even  in that case, any remedy which the law may afford to the party supposing himself to be aggrieved, other than such as might be obtained in a court of admiralty, could be prosecuted only in the state court. The common law tribunals of the United States are closed against such applications, were the party disposed to make them. Congress has refused to the courts of the union the power of deciding on the conduct of their officers in the execution of their laws, in suit at common law, until the case shall have passed through the state courts, and have received the form which may there be given it. This, however, being an action which takes the thing itself out of the possession of the officer, could certainly not be maintained in a state court, if, by the act of congress, it was seized for the purpose of being proceeded against in the federal court. \nA very brief examination of the act of congress will be sufficient for the inquiry, whether this cargo was so seized.The second section of the act,  pleaded by the defendant in the original action, only withholds a clearance from a vessel which has committed the offence described in that section. This seizure was made under the  11th section, which enacts, \"that the collectors of the customs be, and they are hereby respectively authorized to detain any vessel ostensibly bound with a cargo to some other port of the United States, whenever, in their opinion, the intention is to violate or evade any of the provisions of the acts laying an embargo, until the decision of the president of the United States be had thereupon.\" \nThe authority given respects the vessel only. The cargo is in no manner the object of the act.It is arrested in its course to any other port, by the detention of the vehicle in which it was to be carried; but no right is given to seize it specifically, or to detain it if separated from that vehicle. It remains in custody of the officer, simply because it is placed in a vessel which is in his custody; but no law forbids it to be taken out of that vessel, if such be the will of the owner. The cargoes thus arrested and detained were generally of a perishable nature, and it would have been wanton oppression to expose them to loss by unlimited detention, in a case where the owner was willing to remove all danger of exportation. \nThis being the true construction of the act of congress, the owner  has the same right to his cargo that he has to any other property, and may exercise over it every act of ownership not prohibited by law. He may, consequently, demand it from the officer  in whose possession it is, that officer having no legal right to withhold it from him; and if it be withheld, he has a consequent right to appeal to the laws of his country for relief. \nTo what court can this appeal be made? The common law courts of the United States have no jurisdiction in the case. They can afford him no relief. The party might, indeed, institute a suit for redress in the district court acting as an admiralty and revenue court; and such court might award restitution of the property unlawfully detained. But the act of congress neither expressly, nor by implication, forbids the state courts to take cognizance of suits instituted for property in possession of an officer of the United States not detained under some law of the United States; consequently, their jurisdiction remains. Had this action  been brought for the vessel instead of the cargo, the case would have been essentially different. The detention would have been by virtue of an act of congress,  and the jurisdiction of a state court could not have been sustained. But the action having been brought for the cargo, to detain which the law gave no authority, it was triable in the state court. \nThe same course of reasoning which sustains the jurisdiction of the court of Rhode-Island sustains also its judgment on the plea in bar. The two pleas contain the same matter; the one concluding to the jurisdiction of the court, and the other in bar of the action. In examining the plea to the jurisdiction, it has been shown that the officer had no legal right to detain the property; consequently, his plea was  no sufficient defence, and the court misconstrued no act of congress, nor committed any error in sustaining the demurrer. \nJudgment affirmed with costs. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Chief Justice MARSHALL delivered the opinion of the court. \nThe declaration in this cause states, that the defendant \"was master of the brig Sophila,  then in the county of Alexandria, and bound on a voyage from thence to Savannah, in the state of Georgia, and from Savannah to New-York, in the state of New-York, and from thence to such other place or places as he, the said defendant, might be directed to go to by the owners of the said brig,\" of whom the plaintiff was one. That believing and expecting the defendant would pursue the orders he should receive, as was his duty, he hired to him, for the voyage, the slaves in the declaration mentioned. \nIt appeared in evidence, that these slaves were received on board the vessel as mariners on the usual wages, and without any special contract. \n On the 23d of May, 1809, after the Sophila had sailed from Alexandria to Savannah, a letter of instructions was addressed to the master, which contains the following directions: \"I hope this will find you arrived at Savannah, and ready to proceed on your voyage to Amsterdam, where you are to proceed with all despatch; and when you arrive off the Texel, should you not have received information, either from Messrs. Willinks, or from some source that you can depend upon, that you can enter Holland with safety, you are to proceed to Tonningen,  and from thence communicate with Messrs. Willinks, and follow their instructions. If they say they cannot get you admitted to the continent, or can do nothing for you, you are then at liberty to take upon yourself the disposal of the cargo in any way that may be practicable, and the investment of the proceeds in any German goods that may answer our market.Should no opportunity offer for a sale at Tonningen, or on the coast of Holland, or Denmark, or in the Baltic, you must then, as a last resort, proceed to Liverpool,\" &c. \nOn the 6th of July, 1809, a letter, containing additional instructions, was written, of which the following is an extract: \"Nothing decisive has yet occurred whereby to judge of the ultimate result of the pending negotiations between this country and the powers of the continent. But hoping, by the time you arrive in the British channel, all difficulties will be settled between us and the continent, your owners are still desirous, and direct, that you may prosecute your voyage, as before directed, for  Amsterdam. They are, however, desirous, that before you attempt to enter the Texel, you inform yourself whether the port be blockaded, and whether there  be any danger of confiscation after entering. And should you not be able to get satisfactory information on these heads at sea, or going up the British channel, you will proceed, as before directed, for Tonningen, and from thence communicate with Messrs. Willinks, of Amsterdam, and Messrs. Parish & Co., Hamburgh, and abide by their instructions. Should it so turn out that you cannot, with safety, proceed to Amsterdam, and that you can get admittance at Tonningen or Hamburgh, you will deliver your cargo at either place to Messrs Parish & Co. as they may instruct you,\" &c. \"If no admittance can be had either at Amsterdam, Hamburgh, or Tonningen, you are then at liberty to do the best you can with the cargo, as before directed.\" \nUnder these instructions the Sophila proceeded on her voyage, till visited by one of the squadron which blockaded Amsterdam. Information was there received showing the danger, from the local government, of entering the Texel, and also, that Hamburgh and Bremen were shut, and that Tonningen had been shut and opened to American vessels several times. The Sophila continued to ply off and on the mouth of the Texel for four or five days, with her signals displayed,  when the master concluded to run into the Texel, the blockade of which, it would seem, was not then intended to exclude neutral commerce. In executing this design he was met by the schooner Enterprise, an American man  of war, beating out abreast the first buoy of the Hacks. The commander of the schooner sent his boat to the Sophila with a request that her master would come on board the Enterprise. The defendant went on board, and continued there near two hours. On his return, the commander of the Enterprise sent on board the Sophila a Captain Swaine, master of an American vessel which had been captured by a Danish cruizer on a voyage to St. Petersburg, and condemned. Captain Swaine gave to Captain Brooke, the defendant, a written statement, containing all the information he possessed respecting the dangers of those seas. He stated that his vessel was captured on the 4th, and condemned on the 19th of June. That on the 20th, himself and his men were turned on shore without assigning to them any cause of capture or condemnation, and without making any provision for them. His men were compelled to go on board Danish privateers to avoid starving. He remained himself  at Albourg, until the 17th of July, when he travelled by land to Amsterdam,  and passed with four miles of Tonningen. The information of Captain Swaine showed that the seas about the mouths of the Eider, the Elbe, and the Weser, swarmed with Danish privateers, who respected no flag, and brought in every American vessel they could capture. On the 28th of July he passed through Hamburgh, and waited on the American consul for a passport, where he was informed by the chancellor that there were several American vessels at Tonningen petitioning for liberty to land their cargoes, which they could  not obtain, nor was any attention paid to their petitions. He received the same information afterwards at Amsterdam. By the consulate at Hamburgh he was also informed that there had been, a few days before, some American vessels at Cruxhaven, which had been ordered by the consul to leave that place immediately. After receiving this information the Sophila proceeded to Liverpool, where the slaves of the plaintiff escaped, and have been totally lost. \nUpon this testimony the counsel for the plaintiff prayed the court to instruct the jury, that if they believed the evidence,  the plaintiff was entitled to recover of the defendant the value of the slaves in the declaration mentioned. The court refused to give this instruction, to which refusal the plaintiff excepted. A verdict was found for the defendant, and a judgment rendered thereon by the court, which judgment is now before this court on writ of error. \nThe plaintiff in error contends, that the circuit court ought to have given the instruction prayed for, because, 1st. The defendant has violated the instructions by which he was bound. 2d. Any violation of those instructions subjects him to every loss sustained in consequence thereof. \nCaptain Brooke is supposed to have violated his orders in not proceeding to Tonningen, and waiting there for the directions of Messrs. Willinks. \nIn considering the instructions given by the owners of the Sophila, there are extrinsic circumstances which ought not to be entirely overlooked. The state of the whole commercial world was without  example. The then emperor of France exercised the most absolute despotism over nearly the whole continent of Europe, and at his capricious will destroyed the commerce and seized the property of neutrals in the ports  of those who wre compelled to submit to his influence. Under such circumstances it is reasonable to suppose that, in commercial expeditions planned from so distant a place as the United States, some confidence is placed in the master of the voyage, and that much must be left to his discretion. Although this consideration will not excuse a disobedience of orders, it is entitled to weight in expounding orders not entirely decisive. The primary object of the owners was obviously that the Sophila should go to Amsterdam. Yet this primary object was to be relinquished, if not to be attained with safety; and of this the master was the judge. \nBut the orders are said to direct the master absolutely to proceed to Tonningen should he decline entering the Texel. \nIn the first letter of the 23d of May, this direction does appear to be positive, but it also appears to have been given in the expectation that the voyage from the mouth of the Texel to Tonningen might be prosecuted without imminent danger, and with the probability of entering some port on the continent. Of this probability the Messrs. Willinks were to judge, should it be in the power of Captain Brooke to consult them. \nThe first  paragraph of the letter of the 6th of July repears the order to proceed to Tonningen,  should it be unsafe to enter the Texel, and there \"to communicate with Messrs. Willinks of Amsterdam, and Messrs. Parish & Co. of Hamburgh, and to follow their instructions.\" The letter then directs the conduct of the master, should he be enabled to get admittance into Tonningen or Hamburgh, and proceeds to say, \"If no admittance can be had, either at Amsterdam, Tonningen, or Hamburgh, you are then at liberty to do the best you can with the cargo as before directed.\" \nIt is on this last clause in the letter that the difficulty arises. \nThe plaintiff contends that the master had no right to determine at the mouth of the Texel the practicability of getting into Tonningen or Hamburgh, but was bound to proceed for the former place, and when there, to govern himself by the directions of Messrs. Willinks, or of Messrs. Parish & Co. If this be not the true construction of the letter, he then contends, that the intelligence received off the mouth of the Texel did not excuse the master for sailing from that place for Liverpool. \nAs the first paragraph of that letter contains an unconditional order  to proceed to Tonningen, should it be unsafe to go to Amsterdam, it is probable that the owners might found their subsequent orders on the state of things which might be found to exist when the vessel should arrive at Tonningen, and on the expectation that the voyage would be prosecuted to that place. But this expectation is not so clearly expressed as to be free from doubt. The writer does not sav \"it on arriving at Tonningen  no admittance can be had,\" &c.; but, \"If no admittance can be had,\" &c. These expressions might well be understood to apply to the fact, although it should be communicated before arriving at the place, and to dispense with the necessity of a useless voyage to Tonningen. There is the more reason for coming to this conclusion from the consideration that the vessel could not arrive at a place, admittance into which was forbidden. Whether this be the true construction of the letter or not, the phraseology is deemed too ambiguous to subject the master to remote damages, not certainly produced by his omitting to proceed to Tonningen, if, in omitting so to do, he acted with good faith and a sincere desire to obey his orders. \nThis brings us to the information  under which he acted. That information was that Hamburgh was shut. That Tonningen had been occasionally shut, and occasionally opened, to American vessels. That, at the time, the cargoes of those which had been admitted, were not allowed to be sold; and that the voyage to Tonningen would be attended with very serious hazards, which were probably not contemplated by his owners when they gave their instructions. If, in such a state of things,  the master should be thought to have misconstrued his instructions, and should be deemed responsible for exercising his own discretion, the action, founded on such misconstruction, would certainly be a harsh one. The court will not decide this question, because its decision is rendered unnecessary by the view taken of the second point. \n 2d. Admitting that the true construction of his orders required the master to proceed to Tonningen, on finding it unsafe to go to Amsterdam, is he liable in this action? \nThe court thinks he is not. No special contract is proved, and the slaves of the plaintiffs were put on board the vessel generally as seamen. The court is not satisfied that the danger of their escaping might not  be as great on the continent as in England. But, at any rate, Liverpool was one of the contingent termini of the voyage, and was consequently within the hazards to which the plaintiff knew his property might be exposed. The danger of losing them, should the Sophila proceed to Liverpool, did not deter him from placing the slaves on board the vessel, nor from directing the master to go to Liverpool, or from giving full discretion respecting his port, in an event which was far from being improbable. \nThere is no error, and the judgment is to be affirmed, with costs. \nJudgment affirmed. 2 \n \n \n\n ", " \nOpinion \n\n \n \n  Mr. Ch. J. MARSHALL delivered the opinion of the court. \nThis suit was instituted by Payson & Co., as endorsers of a bill of exchange, drawn by Cornthwaite & Cary, payable to the order of John Randall, against Coolidge & Co. as the acceptors. \nAt the trial the holders of the bill, on which the name of John Randall was endorsed, offered, for the purpose of proving the endorsement, an affidavit made by one of the defendants in the cause, in order to obtain a continuance, in which he referred to the bill in terms which, they supposed, implied a knowledge on his part that the plaintiffs were the rightful holders. The defendants objected to the bill's going to the jury without further proof of the endorsement; but the court determined  that it should go with the affidavit to the jury, who might be at liberty to infer from thence that the endorsement was made by Randall. To this opinion the counsel for the defendants  in the circuit court excepted, and this court is divided on the question whether the exception ought to be sustained. \nOn the trial it appeared that Coolidge & Co. held the proceeds of part of the cargo of the Hiram, claimed by Cornthwaite & Cary, which had been captured and libelled as lawful prize. The cargo had been acquitted in the district and circuit courts, but from the sentence of acquittal, the captors had appealed to this court. Pending the appeal Cornthwaite waite & Co. transmitted to Coolidge & Co. a bond of indemnity, executed at Baltimore with scrolls in the place of seals, and drew on them for two thousand seven hundred dollars. This bill was  also payable to the order of Randall, and endorsed by him to payson & Co. It was presented to Coolidge & Co. and protested for non-acceptance. After its protest Coolidge & Co. wrote to Cornthwaite & Cary a letter, in which, after acknowledging the receipt of a letter from them, with the bond of indemnity, they say, \"This  bond, conformably to out laws, is not executed as it ought to be; but it may be otherwise in your state. It will therefore be necessary to satisfy us that the scroll is usual and legal with you instead of a seal. We notice no seal to any of the signatures.\" \"We shall write our friend Williams by this mail, and will state to him our ideas respecting the bond, which he will probably determine. If Mr. W. feels satisfied on this point, he will inform you, and in that case your draft for two thousand dollars will be honoured.\" \nOn the same day Coolidge & Co. addressed a letter  to Mr. Williams, in which, after referring to him the question respecting the legal obligation of the scroll, they say, \"You know the object of the bond, and, of course, see the propriety of our having one not only legal, but signed by sureties of unquestionable responsibility, repecting which, we shall wholly rely on your judgment. You mention the last surety as being responsible; what think you of the others?\" \n In his answer to this letter, Williams says, \"I am assured, that the bond transmitted in my last is sufficient for the purpose for which it was given, provided the parties possess  the means; and of the last signer, I have no hesitation in expressing my firm belief of his being able to meet the whole amount himself. Of the principals I cannot speak with so much confidence, not being well acquainted with their resources. Under all circumstances, I should not feel inclined to withhold from them any portion of the funds for which the bond was given.\" \nOn the day on which this letter was written, Cornthwaite & Cary called on Williams, to inquire whether he had satisfied Coolidge & Co. respecting the bond. Williams stated the substance of the letter he had written, and read to him a part of it. One of the firm of Payson & Co. also called on him to make the same inquiry, to whom he gave the same information, and also read from him letter-book the letter he had written. \nTwo days after this, the bill in the declaration mentioned, was drawn by Cornthwaite & Cary, and paid to Payson & Co. in part of the protested bill of  2,700 dollars, by whom it was presented to Coolidge & Co., who refused to accept it, on which it was protested, and this action brought by the holders. \nOn this testimony, the counsel for the defendants insisted that the plaintiffs where  not entitled to a verdict; but the court instructed the jury, that if they were satisfied that Williams, on the application of the plaintiffs, made after seeing the letter from Coolidge & Co. to Cornthwaite & Cary, did declare that he was satisfied with the bond referred to in that letter, as well with respect to its execution, as to the sufficiency of the obligors to pay the same; and that the plaintiffs, upon the faith and credit of the said declaration, and also of the letter to Cornthwaite & Cary, and without having seen or known the contents of the letter from Coolidge & Co. to Williams, did receive and take the bill in the declaration mentioned, they were entitled to recover in the present action; and that it was no legal objection to such recovery that the promise to accept the present bill was made to the drawers thereof, previous to the existence of such bill, or that the bill had been taken in part payment of a pre-existing debt, or that the said Williams, in making the declarations aforesaid, did exceed the private instructions given to him by Coolidge & Co., in their letter to him. \nTo this charge, the defendants excepted; a verdict was given for the plaintiffs, and judgment  rendered thereon, which judgment is now before this court on a writ of error. \nThe letter from Coolidge & Co. to Cornthwaite & Cary contains no reference to their letter to Williams  which might suggest the necessity of seeing that letter, or of obtaining information respecting its contents. They refer Cornthwaite & Cary to Williams, not for the instructions they had given him, but for his judgment and decision on the bond of indemnity. Under such circumstances, neither the drawers nor the holders of the bill could be required to know, or could be affected by, the private instructions given to Williams. It was enough for them, after seeing the letter from Coolidge & Co. to Cornthwaite & Cary, to know that Williams was satisfied with the execution of the bond and the sufficiency of the obligors, and had informed Coolidge & Co. that he was so satisfied. \nThis difficulty being removed, the question of law which arises from the charge given by the court to the jury is this: Does a promise to accept a bill amount to an acceptance to a person who has taken it on the credit of that promise, although the promise was made before the existence of the bill, and although it is drawn  in favour of a person who takes it for a pre-existing debt? \nIn the case of Pillans & Rose v. Van Mierop & Hopkins, (3 Burr, 1663), the credit on which the bill was drawn was given before the promise to accept was made, and the promise was made previous to the existence of the bill. Yet in that case, after two arguments, and much consideration, the court of king's bench, (all the judges being present and concurring in opinion,) considered the promise to accept as an acceptance. \nBetween this case and that under the consideration  of the court, no essential distinction is perceived. But it is contended, that the authority of the case of Pillans & Rose v. Van Mierop & Hopkins is impaired by subsequent decisions. \nIn the case of Pierson v. Dunlop et al. (Cowp. 571.) the bill was drawn and presented before the conditional promise was made on which the suit was instituted. Although, in that case, the holder of the bill recovered as on an acceptance, it is supposed that the principles laid down by Lord Mansfield, in delivering his opinion, contradict those laid down in Pillans & Rose v. Van Mierop & Hopkins. His lordship observes, \"It has been truly said, as a general rule,  that the mere answer of a merchant to the drawer of a bill, saying, \"he will duly honor it,\" is no accetpance, unless accompanied with circumstances which may induce a third person to take the bill by endorsement; but if there are any such circumstances, it may amount to an acceptance, though the answer be contained in a letter to the drawer.\" \nIf the case of Pillans & Rose v. Van Mierop & Hopkins had been understood to lay down the broad principle that a naked promise to accept amounts to at acceptance, the case of Pierson v. Dunlop certainly narrows that principle so far as to require additional circumstances proving that the person on whom the bill was drawn, was bound by his promise, either because he had funds of the drawer in his hads, or because his letter had given credit to the bill, and induced a thrid person to take it. \nIt has been argued, that those circumstances to which Lord Mansfield alludes, must be apparent on  the face of the letter. But the court can perceive no reason for this opinion. It is neither warranted by the words of Lord Mansfield, nor by the circumstances of the case in which he used them. \"The mere answer of a merchant to the drawer of a  bill, saying he will duly honor it, is no acceptance unless accompanied which circumstances,\" &c. The answer must be \"accompanied with circumstances;\"  but it is not said that the answer must contain those circumstances. In the case of Pierson v. Dunlop, the answer did not contain those circumstances. They were not found in the letter, but were entirely extrinsic. Nor can the court perceive any reason for distinguishing between circumstances which appear in the letter containing the promise, and those which are derived from other sources. The great motive for construing a promise to accept, as an acceptance, is, that is gives credit to the bill, and may induce a third person to take it. If the letter be not shown, it contents, whatever they may be, can give no credit to the bill; and if it be shown, an absolute promise to accept will give all the credit to the bill which a full confidence that it will be accepted can give it. A conditional promise becomes absolute when the condition is performed. \nIn the case of Mason v. Hunt, (Doug. 296.,) Lord Mansfield said, \"there is not doubt but an agreement to accept may amount to an acceptance; and it may be couched in such  words as to put a thrid person in a better condition than the drawee. If one man, to give credit to another, makes an absolute promise to accept his bill, the drawee, or any other person,  may show such promise upon the exchange, to get credit, and a third person, who should advance his money upon it, would have nothing to do with the equitable circumstances which might subsist between the drawer and acceptor.\" \nWhat is it that \"the drawer, or any other person, may show upon the exchange?\" It is the promise to accept -- the naked promise. The motive to this promise need not, and cannot be examined. The promise itself, when shown, gives the credit; and the merchant who makes it is bound by it. \nThe cases cited from Cowper and Douglass are, it is admitted, cases in which the bill is not taken for a pre-existing debt, but is purchased on the credit of the promise to accept. But in the case of Pillans v. Van Mierop, the credit was given before the promise was received or the bill drawn; and in all cases the person who receives such a bill in payment of a debt, will be prevented thereby from taking other means to obtain the money due to him. Any ingredient of fraud would,  unquestionably, affect the whole transaction; but the mere circumstance, that the bill was taken for a pre-existing debt has not been thought sufficient to do away the effect of a promise to accept. \nIn the case of Johnson and another v. Collins, (1 East, 98.,) Lord Kenyon shown much dissatisfaction with the previous decisions on this subject; but it is not believed, that the judgment given in that case would, even in England, change the law as previously established. In the case of Johnson v.  Collins, the promise to accept was in a letter to the drawer, and is not stated to have been shown to the endorser. Consequently, the bill does not appear to have been taken on the credit of that promise. It was a mere naked promise, unaccompanied with circumstances which might give credit to the bill. The counsel contended, that this naked promise amounted to an acceptance; but the court determined otherwise. In giving his opinion, Le Blanc, J., lays down the rule in the words used by Lord Mansfield, in the case of Pierson v. Dunlop; and Lord Kenyon said, that \"this was carrying the doctrine of implied acceptances to the utmost verge of the law; and he doubted whether it did  not even go beyond it.\" In Clarke and others v. Cock, (4 East 57.,) the judges again express their dissatisfaction with the law as established, and their regret that any other act than a written acceptance on the bill had ever been deemed an acceptance. Yet they do not undertake to overrule the decisions which they disapprove. On the contrary, in that case, they unanimously declared a letter to the drawer promising to accept the bill, which was shown to the person who held it, and took it on the credit of that letter, to be a virtual acceptance. It is true, in the case of Clark v. Cock, the bill was made before the promise was given, and the judges, in their opinions, use some expressions which indicate a distinction between bills drawn before and after the date of the promise; but no case has been decided on this distinction; and in Pillans and  Rose v. Van Mierop and Hopkins, the letter was written before the bill was drawn. \nThe court can perceive no substantial reason for this distinction. The prevailing inducement for considering a promise to accept, as an acceptance, is that credit is thereby given to the bill. Now, this credit is given as entirely by a letter  written before the date of the bill as by one written afterwards. \nIt is of much importance to merchants that this question should be at rest. Upon a review of the cases which are reported, this court is of opinion, that a letter written within a reasonable time before or after the date of a bill of exchange, describing it in terms not to be mistaken, and promising to accept it, is, if shown to the person who afterwards takes the bill on the credit of the letter, a virtual acceptance binding the person who makes the promise. This is such a case. There is, therefore, no error in the judgment of the circuit court, and it is affirmed with costs. \nJudgment affirmed. 1 \n \n \n\n ", " \nOpinion \n\n \n \n  Mr. Chief Justice MARSHALL delivered the opinion of the court. \nAlbert Lekamp brought this suit in the circuit court, for the district of Virginia, for the recovery of money claimed to be due to him from Neil M'Coul, the defendant below. After issue joined the plaintiff died, and the suit was revived in the name of his administratrix. While the suit was still depending, the administratrix intermarried with Frederick L. E. Amelung, which marriage was pleaded puis darrein continuance. The scire facias was thereupon abated and a new scire facias issued to revive the original action in the names of Amelung and wife, as the personal representatives of Albert Lekamp. \nAt a subsequent term the cause was tried on  the original issue, and a verdict found for the plaintiff, on which the defendant prayed that the judgment might be arrested for the following reasons: \"Because he saith, that after the plea pleaded the original plaintiff, Albert Lekamp, departed this life, and Sophia Lekamp, his administratrix, sued forth a scire facias to revive the suit on the 4th  of July, 1811; that while the suit stood revived in her name as administratrix, the said Sophia Lekamp intermarried with Frederick L. E. Amelung, and on the 4th of December, 1812, this defendant having pleaded the intermarriage aforesaid, it was ordered that the scire facias, be abated, whereupon the said Frederick L. E. Amelung and Sophia, his wite, as administratrix aforesaid, sued out a new scire facias to revive the suit, and there being no new plea pleaded or any consent that the cause should be revived in any  other manner than the law would direct, the jury was empanneled, and a verdict found as aforesaid; and the said defendant saith, that the act of Congress, in that case made and provided, doth not warrant the revival of the suit in the name of the said Amelung and wife, under the circumstances aforesaid.\" \nThese errors were overruled, and a judgment rendered conforming to the verdict of the jury. \nAt the trial of this cause, the plaintiff offered in evidence the deposition of Zachariah Roberts, with the accounts thereunto annexed. The deponent states, that he was clerk of Albert Lekamp, from the 10th day of January, 1804, to the 9th day of June, 1809. That the  account B., annexed to his deposition, is a just and true account current taken from the books. That on the 8th day of November, 1805, Neil M'Coul paid up the balance for goods purchased previous to the 26th of April, 1805, with the interest due thereon as stated. He then recapitulates in his deposition the several items on the debit side of the account current, which is composed of the sums total of goods delivered on particular days, and \"states most positively that the said items are taken from the account current of the said Neil M'Coul on the said Lekamp's books, which books he kept, and has had reference thereto. That viewing and referring to the other paper writing annexed, marked, also, with the letter B., beginning with the words, 'a statement of merchandise sold and delivered to Neil M'Coul,' he saith that the several articles of merchandise therein enumerated, specified, described, and at large set forth and  charged, and contained also in the before-mentioned account current, marked B., were sold by said Albert Lekamp, in his life time, and at the respective times at which they are charged to the defendant, Neil M'Coul, and were charged in the day-book of  the said Albert Lekamp, by the deponent and Mr. Vithake, who is now deceased, and the deponent delivered them,\" &c. The deposition then proceeds to state that the prices are correctly stated; that all due credits, so far as he knows, are given; and that the balance is truly struck: And adds, that the deponent, before giving in his deposition, had reference to the original entries on the day-books of Lekamp, which entries were made by Mr. Vithake himself. \nThe first account, marked B., is, as is stated in the deposition, the account current. The second account, also marked B., is a particular and detailed enumeration of the articles sold and delivered, with their prices, and agrees in amount with the account current. \nThe counsel for the defendant moved the court not to allow the said accounts to go in evidence to the jury, as not being copies of the original entries in the day-books or original books of the plaintiff's intestate; but the court was of opinion, that the account B., beginning with the words \"statement,\" &c., was substantially stated by the witness to be a copy from the day-books, or original books of entries, and that the same was sufficiently proved to go in evidence  to the jury, together with the said deposition. The defendants excepted to this opinion. \n Two errors are assigned in the proceedings of the court below: \n1st. In reviving this suit after the abatement of the first scire facias, which error ought to have arrested the judgment. \n2d. In permitting the account, marked B., to go in evidence to the jury \nThe first error assigned is of some consequence, as the decision upon it furnishes a rule of practice for all the circuit courts of the United States. \nThe argument for the plaintiff in error is briefly this. At common law all suits abate by the death or marriage of the plaintiff, if a feme sole; and such suit could not be prosecuted in the name of the representative, or of the husband and wife, unless enabled so to do by statute. The act of congress provides for the case of death, but not for the case of marriage.Consequently, the suit of a feme sole who marries abates as at common law. \nThis argument, if applied to an original suit instituted by a feme sole, would certainly be conclusive: but this suit was not instituted by a feme sole. It was instituted by Albert Lekamp, who died while it was depending. The law says,  \"That where any suit shall be depending in any court of the United States, and either of the parties shall die before final judgment, the executor or administrator of such deceased party, who was plaintiff, petitioner, or defendant, in case the cause of action doth, by law, survive, shall have full power to prosecute or defend any such suit or action until final judgment.\" \nWhen, therefore, Albert Lekamp died, his administratrix,  since the cause of action survived, had full power given her by the statute to prosecute this suit until final judgment. The suit did not abate, but continued on the docket as the suit of Albert Lekamp. It did not become the suit of the administratrix, but remained the suit of the intestate, to be prosecuted by his representative. The marriage of this representative would abate her own suit, but could not abate the suit of her intestate. That still remained on the docket, to be prosecuted by her, according to the letter of the law, as well as its spirit, \"until final judgment.\" If her marriage abated her scire facias, and the original suit still remained on the docket, was still depending, then its state was the same as if a scire facias had  never issued; in which case all will admit a scire facias ought to issue in the name of husband and wife. \n This court is unanimously of opinion, that as the original suit did not abate, the scire facias in the name of the administratrix, while a feme sole, constituted no bar to a scire facias in the name of the husband and wife after her marriage, to enable her still \"to prosecute that suit until a final judgment.\" \nThe question which grows out of the bill of exceptions is entirely a question of construction. All admit, that in this action the delivery of the goods sold must be proved, and that the entries to which the witness may refer must be the original entries made in the day book. The doubt is, whether, upon right construction, the deposition of Zachariah Roberts amounts to this. He says, that the several articles of merchandise contained in the account  annexed to his deposition, were sold to the defendant by Albert Lekamp, and were charged in the day-book by the deponent and another person who is dead, and that the deponent delivered them. He further swears that he had referred to the original entries in the day-book. He could not swear more positively  to the delivery of the goods than he does; but as it is clear the he could not, even for a week, recollect each article which is enumerated, he accounts for his recollection by saying that they were entered in the day-book partly by himself, and partly by another clerk who is dead, and that he has referred to this day-book. This is an account taken from the original entries made at the time of delivery, and is, therefore, admissible. The account current, though agreeing with the account taken from the day-book, appears not to have gone to the jury. \nJudgment affirmed. 1 \n \n \n\n ", " \nOpinion \n\n \n \n  Mr. Chief Justice MARSHALL delivered the opinion of the court. \nAs this case depends entirely on the validity of Greene's title, the court will notice only so much of the record as respects that title. \nIn the year 1777 the state of North Carolina opened a land-office, for the purpose of selling all the vacant lands east of a line described in the act. \nIn the year 1780 an act passed, reserving a certain tract of country for the officers and soldiers of the line of that state. \nThis act is lost. \n In the year  1782 an act passed, \"for the relief of the officers and soldiers in the continental line, and for other purposes therein mentioned.\" This act gives certain specified quantities of land to the officers and soldiers; then the 7th section commences thus: \"And, whereas, in May, 1780, an act passed at Newburn, reserving a certain tract of country to be appropriated to the aforesaid purposes, and it being represented to this present assembly, that sundry families had, before the passing the said act, settled on the said tract of country, Be it enacted,\" &c. The section then proceeds to grant 640 acres of land to each family which had so settled. The 8th section appoints commissioners to lay off, in one or more tracts, the land allotted to the officers and soldiers. The 10th section enacts, \"that 25,000 acres of land shall be allotted for, and given to, Major-General Nathaniel Greene, his heirs and assigns, within the bounds of the lands reserved for the use of the army, to be laid off by the aforesaid commissioners, as a mark of the high  sense this state entertains of the extraordinary services of that brave and gallant officer.\" \nThis is the foundation of the title of the  appellees. \nOn the part of the appellant it is contended, that these words give nothing. They are in the future, not in the present tense; and indicate an intention to give in future, but create no present obligation on the state, nor present interest in General Greene. \nThe court thinks differently. The words are words of absolute donation, not indeed of any specific  land, but of 25,000 acres in the territory set apart for the officers and soldiers. \n\"Be it enacted, that 25,000 acres of land shall be alloted for the given to Major-General Nathaniel Greene.\" Persons had been appointed in a previous section to make particular allotments for individuals, out of this large territory reserved, and the words of this section contain a positive mandate to them to set apart 25,000 acres for General Greene. As the act was to be performed in future, the words directing it are necessarily in the future tense. \"Twenty-five thousand acres of land shall be allotted for, and given to, Major-General Nathaniel Greene.\" Given when? The answer is unavoidable -- when they shall be allotted. Given how? Not by any future act; -- for it is not the practice of legislation to enact, that  a law shall be passed by some future legislature: -- but given by force of this act. \nIt has been said, that, to make this an operative gift, the words \"are hereby\" should have been inserted before the word \"given;\" so as to read, \"shall be allotted for, and are hereby given to,\" &c. Were it even true that these words would make the gift more explicit, which is not admitted, it surely cannot be necessary now to say, that the validity of a legislative act depends, in no degree, on its containing the technical terms usual in a conveyance. Nothing can be more apparent than the intention of the legislature to order their commissioners to make the allotment, and to give the land when allotted to General Greene. \nThe 11th section authorizes the commissioners to  appoint surveyors, for the purpose of surveying the lands given by the preceding sections of the law. \nIn pursuance of the directions of this act, the commissioners allotted 25,000 acres of land to General Greene, and caused the tract to be surveyed. The survey was returned to the office of the legislature, on the 11th of March, in the year 1783. The allotment and survey marked out the land given by the act of 1782,  and separated it from the general mass liable to appropriation by others. The general gift of 25,000 acres, lying in the territory reserved for the officers and soldiers of the line of North Carolina, had now become a particular gift of the 25,000 acres, contained in this survey. \nAgainst this conclusion has been urged that article in the constitution of North Carolina which directs that there should be a seal of the state to be kept by the governor, and affixed to all grants. This legislative act, it is said, cannot amount to a grant, since it wants a formality required by the constitution. \nThis provision of the constitution is so obviously intended for the completion and authentication of an instrument, attesting a title previously created by law, which instrument is so obviously the mere evidence of prior legal appropriation, and not the act of original appropriation itself, that the court would certainly have thought it unnecessary to advert to it, had not the argument been urged repeatedly, and with much earnestness, by counsel of the highest respectability. \nAfter urging that these lands were not positively  granted to General Greene, the counsel for the appellant  proceeded to argue that it was in the power of the legislature to retract its promise, and that the legislature had retracted it. \nBefore attempting the difficult task of describing the limits of the legislative power in cases where those limits are not fixed by a written constitution, the court will proceed to inquire whether the government of North Carolina has, in fact, revoked its promise, or recalled its gift. \nAt a session, begun on the 1ith of April, 1783, the assembly passed \"an act for opening the land office,\" thereby extending the line describing the country in which lands might be netered so far west as to comprehend the territory reserved for the officers and soldiers of the North Carolina line. \nThe 11th section of this act contains a proviso saving from entry the lands within the bounds reserved for the officers and soldiers. \nAt the same session an act was passed \"to amend the act for the relief of the officers and soldiers of the continental line, and for other purposes.\" \nThe first six sections of this act prescribe the mode of individual appropriation, and of obtaining titles. \nThe 7th section \"For prevention of disputes,\" enacts, \"that the officers and soldiers  aforesaid, shall enter and survey the lands within the following lines, Beginning,\" &c. \nThis section, it is said, changes the place reserved, and marks out a new territory for the officers and soldiers. It is, then, contended, that this act, and  the preceding act for opening the land office, are to be construed together, and the proviso of the 11th section of that act applied to the 7th section of this; by which operation the whole territory before reserved for the officers and soldiers, including the land surveyed for General Greene, is opened for entry. \nThe court does nto concur with the counsel of the appellant in any part of this argument. \nThese is nothing in the law leading to the opinion that the place reserved for the officers and soldiers was changed. The fair construction of the acts is that the reserve was restricted to narrower limits, not transferred to different ground. \nIt has been contended, that the court is restrained from giving this construction to the acts under consideration, because the bill avers that the place was changed, and the demurrer admits the fact. \nThe court will not inquire whether this averment is founded on an apparent misconstruction  of the law, and is, therefore, to be disregarded; or is the averment of a fact compatible  with the law; because the fact itself does not essentially affect the case. \nIf the place in which lands were reserved generally for the officers and soldiers, but not individually appropriated, was changed; the individual appropriation made for General Greene, within their original limits, was not also changed. The act did not profess to remove him with them, and he consequently  remained on the same ground, protected by his pre-existing title, whatever it might be. \nBut it is contended, that his title was annulled by the general authority given in the 9th section of the act, to enter all the lands within the enlarged limits then opened to purchasers. \nTo this argument it is answered, \n1st. That the 11th section reserves the land allotted to the officers and soldiers, then comprehending the land surveyed for General Greene, and, \n2dly. That a general permission to enter lands within a given tract of country must, of necessity, be limited to lands not previously appropriated. \nThe positive exception contained in the 11th section, it is said by the appellant, must be applied  to the land reserved to the officers and soldiers by the subsequent act changing their position; because the two acts must be taken together; and if so, there is no exception comprehending the lands of General Greene. \nThe two acts have distinct objects. The first opens a land office for the purpose of redeeming the public debt by the sale of lands; and the second prescribes the manner in which officers and soldiers are to obtain titles for lands given to them by the state, and amends an act passed at a previous session on the same day.The legislature has not considered the reserve in the first act as transferred into the second; but has, by the 8th section of the second act, re-enacted in a modified manner the prohibition intended for the protection of those for whom this reserve was expressly made. \n But let it be conceded that the proviso of the 11th section was repealed by implication, when the position of the officers and soldiers was changed, and a new prohibition enacted and applied to the new reserve; still it would be difficult to maintain that this silent repeal, implied from the removal of the object for which it was originally and chiefly intended, should apply  to another object originally preserved by the provision, and for which it continues to be necessary. \nBut the court does not found its opinion on this position, however well it may be supported by justice. The proposition is believed to be perfectly correct, that the act of 1783, which opened the land office, must be construed as offering for sale those lands only which were then liable to appropriation, not those which had before been individually appropriated. Whatever the legislative power may be, its acts ought never to be so construed as to subvert the rights of property, unless its intention so to do shall be expressed in such terms as to admit of no doubt, and to show a clear design to effect the object. No general terms intended for property to which they may be fairly applicable, and not particularly applied by the legislature; no silent, implied, and constructive repeals, ought ever to be so understood as to devest a vested right. \nBut it is contended, that this construction of the acts of 1783 is forced upon us, because the rights of others, and not the right of General Greene, are exempted from the operation of that section which offers  for sale all the land  within the described territory; and the exception of one object excludes othes of the same character. \nWithout inquiring what would be the force of this argument, if, in point of fact, rights similar to those of General Greene were received, and his omitted, let the fact he examined. \nThe first reservation in the act for opening the land office, related to the lands of the Cherokee Indians. \nNothing could be more obvious than the necessity, as well as propriety, of prohibiting all entries on Indian lands laying within the boundary offered for sale, if the legislature intended they should not be entered. The Indian title was not derived from the state of North Carolina; and to infer from the recognition of this title, that others actually derived from the state, if not also recognized, are annulled, is not admitted to be correct reasoning. \nThe only other reserve in this act is of the land within the limits allotted to the officers and soldiers, and within these limits was the land surveyed for General Greene. \nOur attention is next directed to the act to amend the act \"for the relief of the officers and soldiers,\" &c. This act narrows the limits within which the military lands shall  be surveyed, or changes them, so that, in either case, the lands of General Greene are no longer within them.Nothing can be more obvious than the provisions relating to lands within this particular territory can have no implied application to  a title previously acquired by General Greene to lands not lying within it. \nThe 8th section of the act prohibits all persons from entering lands within the bounds allotted to the officers and soldiers. \nThe 9th section excepts out of this prohibition the commissioners and surveyors, &c., appointed to lay off the military lands, and prescribes the mode by which they may appropriate and acquire title to lands given to them by the legislature. \nThe 13th section enacts that Governor Martin and David Wilson be entitled, agreeably to the report of the committee, to two thousand acres of land each, adjacent to lands allotted to officers ad soldiers for which they may receive titles in the same manner as the officers and soldiers. \nThe insertion of this reservation in this act leads almost necessarily to the opinion that the lands granted to Martin and Wilson were a part of those to which the act related; and the words of the section show  that their title was acquired by this act. By no course of just reasoning can it be inferred from thse permissions to make appropriations within bounds not open to entry generally, that a vested right to lands not lying within the limits to which this act relates, is annulled. \nIt is clearly and unanimously the opinion of  this court that the act of 1782 vested a title in General Greene to 25,000 acres of land, to be laid off within that the survey made in pursuance of that act, and returned in March, 1783, gave precision to that title.  and attached it to the land surveyed. That his rights are not impaired by the acts of 1783, and the entry of the appellant, all of which are subsequent to his survey; and that it is completed by the grant which issued in pursuance of the act of 1784, and which relates to the inception of his title. The decree of the circuit court, dismissing the bill of the complainant, is affirmed, with costs. \nDecree affirmed. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Chief Justice MARSHALL delivered the opinion of the court. \nThis case depends on the validity and construction of an entry made in the state of Kentucky by David Pannel, the ancestor of the appellees, in these words: \"David Pannel enters 2,000 acres on a treasury warrant on the Ohio, about twelve miles below the mouth of Licking, beginning at a hiccory and sugar tree on the river bank, running up the  river from thence 1,060 poles, thence at right angles to the same and back for quantity.\" \nThe appellant having obtained an elder patent for the same land on a junior entry, the appellees brought a bill in the circuit court for the district of Kentucky, sitting in chancory, praying that the defendant, in that court, might be decreed to convey to them. The circuit court directed the entry of the complainant to be surveyed, beginning twelve miles below the mouth of Licking,  on the bank of the Ohio, and running up that river 1,060 poles; which line was to form the base of a rectangular parallelogram, to include 2,000 acres of land. So much of this land as was within Pannell's patent, and also within Johnson's patent, the court decreed the defendant to convey to the plaintiffs. From this decree the defendant has appealed to this court. \nHe contends that the decree is erroneous, because. \n1st. It affirms the validity of this entry, which is too uncertain and defective to be established. \n2d. If the entry be established, it ought to be so surveyed that the whole land should lie twelve miles below the mouth of Licking. \nFirst. It is undoubtedly essential to the validity of an entry, that it shall be made so specially and precisely that others may be enabled, with certainty, to locate the adjacent residuum. The land intended to be appropriated, must consequently be so described as to give notice of the appropriation to subsequent locaters. In obtaining this information, however, it would seem to be the plain dictate of common sense, that the person about to take up adjoining  lands, would read the whole of a previous entry which he wished to  avoid, compare together its different parts, and judge, from the entire description, what land was appropriated. If with common attention, and common intelligence, the land could be ascertained and avoided, the requisites of the law would seem to be complied with. \nTest Pannel's entry by this standard. \nThe mouth of Licking is a place of acknowledged and universal notoriety, which no man in the country could be at a loss to find. When placed there, he is informed by the entry that Pannel's land lies twleve miles below him on the Ohio. He proceeds down the river twelve miles, and is there informed that the entry begins at a hiccory and sugar tree on the river bank. He looks around him and sees hiccory and sugar trees. Here, then, he would say, while uniformed of decisions which have since been made, is the beginning of the entry. In what direction does the land lie? The paper which is to give his information says, \"running up the river from thence 1060 poles, thence at right angles to the same, and bank, for quantity.\" Would he say this description is repugnant in itself, containing equal and contradictory directions, neither of which is entitled to  any perference  over the other, and leaving the judgment in such a state of doubt and perplexity as to be incapable of deciding the real position of this land? Would he say the whole land must lie twelve mils from the mouth of Licking? This is so clearly and definitely required, that the entry will admit of no other construction? That the subsequent  words directing him to run up the river from that point 1,060 poles, and thus approach the mouth of Licking, are not explanatory but contradictory? That the one or the other must be totally discarded? Were this the real impression which would be made on the mind, it cannot be denied that the state of uncertainty in which these equal and irreconcilable descriptions would place a subsequent locator, ought to vitiate the entry. But if, on the contrary, the obvious and natural construction would be that; since every part of the land cannot be placed precisely twelve miles below the mouth of Licking, the distance is applicable to any part of the tract, and this part of the description may be so explained and controlled by other parts, as to receive a meaning different from that which it would have if standing alone; then the subsequent locator  would take the whole description together, and if its different parts could, without difficulty, be reconciled, he would reconcile them. He would say the beginning must be twelve miles from the mouth of Licking, but the residue of the land must approach that place because the entry requires positively to run from the beginning up the river. This would, it is thought, be the manner in which this entry would be understood by a person guided by no other light than is furnished by human reason. But the courts of Kentucky have constructed a vast and complex system, on the entire preservation of which their property depends, and this court will respect that system as much as the courts of Kentucky themselves. \n In applying the decisions of that country to this cause, we find many points now settled which were formerly controverted questions. In taking the distance from one point to another on a large river, the measurement is to be with its meanders, not in a direct line. And in ascertaining a place to be found by its distance from another place, the vague words \"about,\" or \"nearly,\" and the like, are to be discarded, if there are no other words rendering it necessary to  retain them; and the distance mentioned is to be taken positively. A subsequent locator, then, must look for the beginning called for in this entry twelve miles below the mouth of Licking, measured by the meanders of the Ohio. \nIn construing locations some other principles have been established which seem to be considered as fundamental. Entries made in a wilderness would most generally refer to some prominent and notorious object which might direct the attention to the neighbourhood in which the land was placed; and then to some particular object which should exactly describe it. The first of these has been denominated the general or descriptive call, and the last the particular or locative call, of the entry. Reasonable certainty has always been required in both. If the descriptive call will not inform a subsequent locator in what neigbourhood he is to search for the land, the entry is defective, unless the particular object be one of sufficient notoriety. If, after having reached the neighbourhood, the locative object cannot be found within the limits of the descriptive call, the entry is equally defective. They must  both be found, and neither can be discarded  unless deemed immaterial.A single call may be, at the same time, so notorious and so formed, as, for example, a spring of general notoriety, as to constitute in itself a call both of description and location; but if this call be accompanied with another, as a marked tree at the spring, it seems to be required that both calls should be satisfied. \nThus, in the case now under the consideration of the court, the call for a beginning twelve miles below the mouth of Licking would be sufficiently descriptive, and is sufficiently precise to be locative. It would be unquestionably good, were it not accompanied with the additional call for a hiccory and sugar tree. Whether it is vitiated by this additional call, is to be determined by a reference to the decisions in Kentucky. \nThe case of Grubbs et al. v. Rice, (2 Bibb, 107.) depended on the validity of an entry made in these words: \"James Thomas enters 300 acres of land, &c., on the south side of Kentucky, about two miles below the mouth of Red River, beginning at a tree marked I.S. on the bank of the river, and running down the river for quantity.\" \nNo tree marked I. S. was found at or near the distance required. It was proved that a tree  had been marked I. S. by the person who afterwards made the entry for Thomas, and that it stood on the south side of Kentucky; but instead of being two miles it was three miles and a quarter, by the meanders of the river, and two miles and two-thirds of a mile on direct course, below the mouth of Red River.  The inferior court disregarded the call for the tree, and fixed the beginning of the entry at the termination of two miles below the mouth of Red River. On an appeal this decree was reversed, and Judge Wallace, in delivering the opinion of the court, said, \"This rejection of the call for the tree marked I. S. is certainly subversive of the well-established principle, that no part of an entry ought to be rejected, unless what is evidently mere surplusage, or absolutely repugnant to other expressions which are more important; because to do more would not be construing entries, but making them. But the expression 'about two miles below the mouth of Red River,' is obviously only a general call, and to substitute this in the place of the expression 'beginning at a tree marked I. S., &c.,' which is the only special or locative call in the entry, is still more inadmissible.\" \n The case of Kincaid v. Blythe and others, ( 2 Bibb, 479.) turned on the validity of an entry made \"on a branch of Silver Creek, about four miles from the little fort on Boone's old trace, including a tree marked D. B.\" In this case too the inferior court disregarded the call for the tree, which could not be proved to have existed when the location was made, and directed the land to be surveyed at the termination of the distance of four miles from the little Fort. On appeal, this decree also was  reversed, and, in delivering the opinion of the court, Judge Wallace said, \"It is evident that when the entry was made, Boone's old trace, the little Fort, and Silver Creek, were all well known by those names to the generality of those who were conversant in  the vicinity. And it further appears, that about four miles from the little Fort, on a southern direction, Boone's old trace struck Hayes' fork of Silver Creek, which may be presumed to be the branch of Silver Creek intended; and, if the entry contained no other calls, it would deserve serious consideration whether the place where the trace crossed Hayes' fork of Silver Creek ought not to be assumed as the centre  of the survey to be made thereon. But this entry calls to include a tree marked D. B., which is obviously a locative and material call, and, therefore, conformably to the uniform decisions of this court on similar entries, must be taken into consideration in deciding on this entry.\" \nThese cases are admitted to have settled the law to be that a material locative call, as for a marked tree, cannot be disregarded; and that, if the existence of the tree cannot be proved, the entry cannot be sustained. The only distinction between these cases and that under the consideration of the court is that, in them, the entries call for a marked tree; in this it calls for a sugar tree and hiccory, not stating them to be marked.For the importance of this distinction we are again referred to the decisions of Kentucky. \nThe case of Greenup v. Lyn's heirs, turned on an entry of land \"lying on Kentucky river, opposite to Leesburg, beginning at a beach tree and running up the river and back, for quantity.\" The validity of this entry was affirmed in the inferior court, and, on an appeal, was also affirmed in the superior court.  In delivering the opinion of the superior court, Judge Logan  said, \"Had the only call in the entry been to lie on the river opposite to Leesburg, we should have concurred with the circuit court in the manner of suveying it, by running up and down the river equal distances from a point opposite the centre of Leesburg; and if the call to begin at \"a Beach Tree\" had been the only other call, we should still have thought that opinion correct, as the common growth of the timber there is beech, and a tree of the description could have been had at almost any point within the limits of the claim.This circumstance, we conceive, ought not to affect the entry; for whether the call is regarded or rejected, in the construction of the entry, is totally immaterial; because, it seems to the court that where an uncertainty arises from the number of objects presented, answering the calls of an entry, and it has other calls sufficiently precise to sustain it, that, of the many doubtful objects, that should be taken as intended, which will best preserve the consistency of the others; and in this case it seems the call for the tree could be complied with without changing in the least the position given by the first call, so that it is left as an immaterial call.  We are more confirmed in this opinion when we consider that the entry, from any other view, must be invalid for uncertainty, although we believe no one could doubt, from a liberal and just construction of it, as to the general body and position of the land it calls for.\" \n This case, if not overruled, certainly goes far in distinguishing between a call for a marked tree, and for a tree not marked; provided such trees as the call requires, are found about the place where the entry must begin. It goes further, and strongly indicates the opinion that an unmarked tree was an object of less importance in the mind of the locator than one selected from all others by a mark peculiar to itself. While the latter must have been deemed important, and have strongly fixed his attention, the former may have been thought not very essential. Coming to the place where he intended to begin, looking around him when there, and seeing trees of a particular kind from the common growth, he might suppose it unimportant at which of these trees he should commence and call for one of them. In such a case, a court may well say \"whether the call is regarded or rejected in the construction of the  entry is totally immaterial.\" There is much reason for this opinion. Certainty is required in entries for the purpose of giving notice to subsequent locators. The subsequent locator who comes to the place described in the entry, in order to find the land he wishes to avoid, will, if a marked tree he called for, search for that marked tree; and, if it cannot be found, may well conclude that this is not the land intended to be appropriated; but if only a tree is called for, and trees stand all around him, he will naturally suppose that the nearest may be taken as a beginning; and that to him it is quite immaterial whether the commencement be at the spot on which he stands, or within ten feet or ten yards of him.  The subsequent locator is not misled by this call; nor is there any danger of his mistaking the position of the land. It is not without reason, therefore, that the call is pronounced immaterial, and one which may be regarded or rejected. The entry may be sustained by other calls which are sufficiently precise to sustain it. \nIf in the case at bar it had been proved that sugar trees and hiccories were as common at the termination of twelve miles from the mouth  of Licking, as the beech tree opposite to Leesburg, the two cases would, in this respect, be precisely alike.But this is not proved. Only one witness has been examined to this point, and his testimony is that there are sugar trees on the bank of the Ohio, in the neighbouhood, and that the maple or sugar tree might be found for many miles above and below the corner, standing within fifty yards of each other, on the second bank of the river. The report of the surveyor shows that three elms and a hiccory stood at the termination of the twelve miles from the mouth of Licking. \nThere would certainly be much difficulty in supporting this as a locative call, although it is not absolutely certain that it might not be so supported. The not less important question is, whether it may be considered as an immaterial call. No case has been cited in which the call for an unmarked tree has been thought material; and there are cases in which a circumstance not important in itself, has been dispensed with.The difference between calling for a marked and an unmarked tree has been  already noticed. It is difficult to suppose that  they are viewed as equally important by the person  making the entry, or by a subsequent locator. If the person making the entry designed to select for the beginning a particular tree, in exclusion of all others, it is in a high degree improbable that he should omit to mark it. If he made the entry from memory, then the place only, and not the particular tree, would be the object to which his mind would attach importance. So with the subsequent locator. The distance would bring him to the place, or sufficiently near to it for every benefical purpose, and whether a sugar tree and hiccory stood at the end of twelve miles as measured by his chain, or within thirty, forty, or fifty yeards, would not essentially vary his views with respect to adjacent lands. He could not doubt, to use the expression of the court in the case of Greenup v. Lyne's heirs, \"as to the general body and position of the land\" described in the entry. The opinion that the call for an unmarked tree of a kind which is common in the neighbourhood of a place sufficiently described by other parts of the entry to be fixed with certainty, may be considered as an immaterial call, is supported by the decision of the court in the case which has been last mentioned. Although  in that case the judge shows that a tree might be found to satisfy the call at the place fixed as the beginning, yet it is apparent that different places within a few yards of each other would answer equally well for the beginning, and that different trees might be selected for that purpose. And the judge, after stating that this call  might either be considered as satisfied, or in itself immaterial, proceeds to show that he thought it immaterial. \"Regarding,\" he proceeds to say, \"the call for a beech tree as immaterial, we come to consider,\" &c. \nUpon the authority of the case of Greenup v. Lyne's heirs, then, and upon a view of the whole of this entry, it would seem that the call for the sugar tree and hiccory may be declared immaterial, and the location be sustained on its other calls. \nThe second question is, in what manner ought this entry to be surveyed? \nIt is admitted to be a general principle that, where a location calls for land to lie a given distance from a given point, the whole land must be placed at or beyond that distance, if there be no other words in the location which control this construction. But it is not admitted that this call can overrule the  plain meaning of the whole entry taken together. It is believed to be unquestionably decided that every material part of the entry is to be considered, and that such construction is to be put upon the whole as is best adapted to all its material calls. \nThis principle was laid down in Greenup v. Lyne's heirs, which, on this point, bears a strong analogy to that under the consideration of the court. In Greenup v. Lyne's heirs, the entry called for land \"lying on Kentucky river, opposite to Leesburg, beginning at a beech tree, and running up the river and back for quantity.\" \nIt is perfectly settled in Kentucky, that on a call for land lying opposite to Leesburg, the centre of the  land would be placed opposite to the centre of the town, and a square would be formed on a base line running up and down the river, to include the quantity. The entry could not otherwise be sustained. The inferior court laid off this entry in that manner; and the appellate court declared that it would be the proper manner, were there not other words in it which controlled this general description by one which was more particular. That more particular description was \"running up the river and  back for quantity.\" \nThese cases are in principle the same. The one calls for land twelve miles below the mouth of Licking, which description would require land the nearest part of which is at the given distance; the other calls for land lying opposite Leesburg, which requires a tract the centre of which is opposite to the centre of the town.The one calls for a beginning at a sugar tree and hiccory, without naming a place for the beginning otherwise than by the description of the position of the land; the other calls for a beech tree under precisely the same circumstances.In the case of Greenup v. Lyne's heirs, the words \"runnign up the river and back for quantity\" have changed the place of beginning from the centre to the lower end of the town, and the position of the land, so that instead of lying above and below Leesburg, in equal quantities, it lies entirely above that place. Why shall not the same words influence in the same manner, the position of Pannel's land? \nFrom the language of Pannel's entry, every man would expect the survey to begin at the place called  for, twelve miles below the mouth of Licking. If that is not the beginning the location is unquestionably  uncertain and void. If that is the beginning it is the plain mandate of the entry to run up the river 1,060 poles and back for quantity. \nIt is the opinion of the majority of the court that the decree ought to be affirmed, with costs. \nDecree affirmed. \n \n\n ", " \nOpinion \n\n \n \n Mr. Chief Justice MARSHALL delivered the opinion of the court. \n On considering the 30th section of the judiciary act of 1789, the court is of opinion that the provision, as to taking depositions de bene esse, does not apply to cases pending in this court. In terms, the provision refers to cases in the district and circuit courts.Testimony, by depositions, can be regularly taken for this court only under a commission issuing according to its rules. A practice has hitherto prevailed to take depositions de bene esse in causes pending here, and, as no objection has been made at the bar, it has passed sub silentio. Under such circumstances we cannot say that the United States are in default in taking depositions according to the usual practice. We shall, therefore, continue this cause to the next term, to enable the parties, if they choose, to take testimony under commissions issued under the rules prescribed by this court. \nCause continued. 1 \n \n \n\n ", " \nOpinion \n\n \n \n  Mr Chief Justice MARSHALL delivered the opinion of the court. \nIn this case two questions respecting the formal proceedings of the circuit court have been made by the counsel for the appellant. \nThe first is, that one of the complainants in the original suit having settled in the state of Kentucky after this bill was filed, That court could no longer entertain jurisdiction of the cause, and ought to have dismissed the bill. \nWe are all of opinion that the jurisdiction having once vested, was not devested by the change of residence of either of the parties. \n 2d. It appearing from the will that at its date the testator had a child who is not a party in this suit, the bill ought to be dismissed, or the decree opened and the cause sent back to make proper parties. \nIt is unquestionable that all the coheirs of the deceased ought to be parties to this suit, either plaintiff or defendant; and a specific performance ought not to be decreed until they shall be all before the court. It would, perhaps,  be not enough to say that the child named in the will, and not made a party, is most probably dead. In such a case as this, the fact of his death ought to be proved, not presumed. 2 But as the opinion of the court on the merits of the cause will render it unnecessary to decide this question, it is thought best for the interest of all parties to proceed to the consideration of another point which will finally terminate the contest,  so far as it is to be determined in a court of equity. \n This is a suit for the specific performance of a contract, either by conveying lands in the state of Ohio, stipulated to be conveyed as the consideration for land sold in the state of Kentucky; or, if that be out of the power of the obligor, by paying money in lieu thereof. Although the contract is not contained in one instrument, but consists of two bonds, the one given by Charles Morgan of Pennsylvania, binding himself to convey the land in Kentucky, and the other by Charles Morgan of Kentucky, binding himself to convey the land in Ohio; yet, it is essentially one contract; and it sufficiently appears that the land in Ohio forms the consideration for the lands in Kentucky. It is then a case standing on those general principles which govern all applications to a court of equity, to decree the specific performance of a contract. \nIn cases of this character, no rule is more universal than that he who asks for a specific performance must be in a condition to perform himself. This point was fully considered in the cases decided in this court betwen Hepburn and Dundas, and Colin Auld as the agent of Dunlop & Co., and the principles laid down in those cases are believed to be entirely  correct. 3 \nLet us inquire, then, whether the plaintiffs in the court below have brought themselves within this rule. \nIt is incumbent on them to show an ability to convey to the defendant in that court a clear estate in  fee simple in the tract of one thousand acres lying in Kentucky, which was sold to him by their ancestors. Have they done so? \nThe co-heirs are, some of them, femes covert, and some of them infants. The decree against the defendant for the value of the Ohio land is not dependent on their making him a conveyance of the land in Kentucky, but is absolute. He is to pay the consideration money, and then  obtain a title if he can. It is true that in the event of selling the Kentucky land, which is to take place after exhausting the personal estate of Charles Morgan of Kentucky, the complainants are directed to join in the conveyance; but this contingency may not happen; and if it should, a decree that femes covert and infants who are plaintiffs, and against whom no cross bill has been filed, should convey, might not secure a conveyance. \nThis might be corrected by sending the case back with instructions to new  model the decree so as to adapt it to the situation of the parties, did it appear to the court that the appellees are able to make such a title as the appellant ought to receive. \nBut the appellees appear to the court to be incapable of making an unincumbered title to the land sold by their ancestor.Six hundred and sixty-six acres have been sold under an execution, and conveyed by the officer making the sale. The terretenants have been brought before the court. The bill, as to them, has been dismissed, and from the decree of dismission there has been no appeal. Can this  court close its eyes on their title, or declare it invalid? \nIt has been said that the sale is fraudulent, irregular, and illegal. But the court empowered to examine these allegations has decided against them, and from its decree no appeal has been taken. The incumbrance is an incumbrance in fact, and its legality can be inquired into by this court only in a suit to which the persons claiming the title are parties. \nIt might be urged, that as the appellant sold to Patton, and Patton holds also under the sheriff's sale, he is not now at liberty to consider Patton's title as an incombrance on the land. \n This argument would be entitled to great consideration was it applicable to the whole land sold by the sheriff. But it is inapplicable to one hundred and sixty-six acres, part of the tract which has never been sold by the appellant. \nIf the titles acquired under the sheriff's sale be such as would be annulled in a court of law or equity, (concerning which this court gives no opinion,) it was incumbent on the plaintiffs to annual them before they obtained a decree for a specific performance. \nOther objections have been made to the decree of the circuit court. It has been said that the contract was in its origin unequal, and that the ancestor of the appellees had in his life time, by his conduct, disaffirmed the contract. It is deemed unnecessary to examine these objections, because the court is of opinion that the inability of the appellees to make  such a title to the land at this time as the appellant ought to accept, deprives them of the right to demand a specific performance. Neither party can at present claim the aid of this court, but ought to be left to pursue their legal remedies. \nDecree reversed, and bill dismissed. 4 \n \n \n\n ", " \nOpinion \n\n \n \n  Mr. Chief Justice MARSHALL delivered the opinion of the court, and after stating the facts proceeded as follows: \nTo sustain the claim of the libellants, the first point to be established is, the fairness of the voyage. It being admitted that the vessel and cargo were American, the only inquiry is, was the Anna Maria really destined for a neutral port? \nHer papers show that she was destined for St. Bartholomews; her master swears that he intended to reach that port, and no other; and that he was using his best endeavours to make it when he was stopped by the Nonsuch. \nThe circumstances which might create doubt respecting the truth of this testimony, are, his situation and course when descried by the Nonsuch. He was within six or eight leagues of St.  Thomas's, and steering a course which brought him nearer to that island. But his place is accounted for by the current and the calm which had preceded his capture; and his course is stated by himself, and his testimony  is not contradicted, to have been calculated  to enable him to gain St. Bartholomew's, to the leeward of which he had fallen. This representation is supported by the fact, that being at the Virgin Islands on the 16th, he might, by availing himself of the current, have reached St. Thomas's before the was descried by the Nonsuch. It is also supported by the great improbability of his attempting to enter an enemy's port without obtaining a license, which would have protected him from hostile capture in that port, as well as on his voyage to it. That he had not a license is proved, not only by his own oath, but by the fact that, although the master and crew, as well as the vessel, have remained in possession of the captors, no license has been found, and there is no reason to believe that it could have been secreted, and it is not probable that it would have been destroyed on the appearance of the Nonsuch, since she chased and boarded under British  colours. \nThe voyage, then, must be considered as entirely fair. The next subject of inquiry is, the right to visit and to detain for search. This is a belligerant right, which cannot be drawn into question. As little can it be questioned that the situation of the Anna Maria Justified a full and rigorous search. But this search ought to have been conducted with as much regard to the rights and safety of the vessel detained as was consistent with a thorough examination of her character and voyage. All that was necessary to this object was lawful; all that transcended it was unlawful. \nWhen the Anna Maria was boarded, her master gave a plain and true account of the character of the vessel and cargo, which was verified by the ship's papers, and which does not appear to have been doubted. But although the vessel and cargo were American, the trade might be hostile; and the right to examine fully into this fact was complete. \nThere was no prevarication in the statements of the master which could excite suspicion, and the search for other papers was continued for two hours without intermission. Although the character of British officers was maintained, nothing indicating British connection  in the voyage was discovered; and, although the trunks were broken open and searched, no additional papers were found. It was pressing the right of search as far as it could bear, to determine on repeating it the next day; and an inattention to the safety of the Anna Maria, which only her neighbourhood to the island of St. Thomas could excuse, longer to detain her. But there is some reason to doubt whether further search was the real object of this detention. It does not appear to have been recommenced at nine the next morning; and this leads to the opinion that the vessel was detained, not so much to make farther search as in the hope of drawing from the master, or some of the crew, who were all in irons, something which might lead to the condemnation of the vessel and cargo. This conduct must be viewed with much lenity to be pardoned. But whatever excuse may be made for the detention thus far, none can be given for the transactions which remain to be noticed. \n1100*334 Before the captain of the Nonsuch left the Anna Maria, in pursuit of other objects, he ought to have decided either to seize her as prize or to restore her. Had he seized her as prize, her master, at least, ought  to have been returned to her, and her papers should have been sealed and put in possession of a prize master. If he determined not to seize her as prize, her master and crew ought to have been restored, that she might have prosecuted her voyage. No apology can be made for leaving her in the condition in which she was placed. Stripped of her crew and of her papers, left in possession of an officer and two men, without orders whither to proceed, she was exposed to dangers; for the loss resulting from which, those who placed her in this situation must be responsible. Had she been regularly captured, many of the difficulties encountered in St. Jago del Cuba might have been avoided; had she been restored, she might, and probably would, have reached her port of destination in safety. \nThe proceedings of the Nonsuch, after a search, converted the whole transaction into a wanton marine trespass, for which no sufficient excuse has been given. \nHowever meritorious may have been the services of the private armed vessels of the United States, in the aggregate, those individuals who have acted with this culpable disregard to the rights of others ought not to escape the animadversion of the  law. The conduct of the officers of the Nonsuch on board the Anna Maria was unjustifiably licentious. Breaking  open trunks when keys were offered them, taking out the crew and putting them in irons, and leaving her in this situation, were acts not to be excused. The honor and the character of the nation are concerned in repressing such irregular ties; and the justice of the court requires that compensation should be made for the injury which the libellants have sustained. \nThe sentence of the circuit court must be reversed, and the cause remanded to the circuit, with directions to reverse the sentence of the district court, and to direct commissioners to ascertain the amount of damages sustained by the libellants; in doing which, the value of the vessel, and the prime cost of the cargo, with all charges, and the premium of insurance, where it has been paid, with interest, are to be allowed. Out of this decree must be deducted the amount of the proceeds of the Anna Maria and cargo, unless the libellants shall choose to abandon those proceeds to the defendants. \nSentence reversed. 2 \nAPPENDIX. \nNOTE 1. \nAdditional Note on the Principles  and Practice in Prize Causes. \nIN the Appendix to the first volume of these Reports, (Note II.,) a summary sketch was attempted of the practice in prize causes in some of its most important particulars. It has been suggested that a more enlarged view of the principles and practice of prize courts might be useful, and in case of a future war, save much embarrassment to captors and claimants. With this view the following additional sketch is submitted to the learned reader. \nAs preliminary to the subject it may be observed, that the ordinary prize jurisdiction of the admiralty extends to all captures made on the sea, jure belli, (The Two Friends, 1 Rob. 271. 284; 1 ) to captures in foreign ports and harbours, (Lindo v. Rodney, Doug. 613. note;) to captures made on land by naval forces and upon surrenders to naval forces either solely or by joint operations with land forces, (Lindo v. Rodney, Doug. 613. note. Chinsurah, 1 Acton, 179;) and this, whether the property so captured be goods, ships, or mere choses in action. (Ib.) To captures made in rivers, ports, and harbours of the captor's own country, (W. B. v. Latimer, 4 Dall. Appendix I. Le Caux v. Eden, Doug. 606.Lindo v. Rodney,  Doug. 613. note;) to money received as a ransom or commutation on a capitulation to naval forces alone, or jointly with land forces (Ships taken at Genoa, 4 Rob. 388.;) and to ransoms upon captures at sea generally. (Anthon v. Fisher, Doug. 649. note (1) Maisonnaire v. Keating, 2 Gallis.) But the admiralty, merely by its own inherent powers, never exercises jurisdiction as to captures or seizures as prize made on shore without the cooperation of naval forces, whether made in our own, or in a foreign territory. (The Two Friends, 1 Rob. 271. 284. The Emulous, 1 Gallis. 563.) Wherever such a jurisdiction is exercised, it is by virtue of powers derived aliunde. And though when the jurisdiction has once attached, it may be lost by a hostile recapture, escape, or voluntary discharge, ( Hudson v. Guestier, 4 Cranch, 293.;) yet it remains notwithstanding the goods are landed, for it does not depend on their local situation after capture; but the court will follow the goods or their proceeds with its process wherever they may be found, or under whatever title acquired. ( Home v. Camden, 2 H. Bl. 533. 4 Term Rep. 388. Willis v. Commissioners of Prize, 5 East, 22. The Noysomhed, 7 Ves. 593.  The Louis, 5 Rob. 146. The Two Friends, 1 Rob. 271. The Eliza, 1 Acton, 336. Smart v. Wolff, 3 Term Rep. 223. The Pomona, 1 Dodson, 25.) Therefore, where the property is carried into a foreign port, and there delivered upon bail by the captors, the prize court does not lose its jurisdiction, but may proceed to adjudication and enforce the stipulation. (The Peacock, 4 Rob. 185.) So, if a prize be lost at sea, the court may, nevertheless, proceed to adjudication, either at the instance of the captors or of the claimants. (The Susanna, 6 Rob. 48.) So, although the property may be actually lying within a foreign neutral territory, the court may proceed to adjudication. ( Hudson v. Guestier, 4 Cranch, 293. The Christopher, 2 Rob. 209. The Henrick and Maria, 4 Rob. 43. The Comet, 5 Rob. 285. The Victoria, Edwards, 97.) So, although the property has been sold by the captors, or has passed into other hands. (The Falcon, 6 Rob. 194. The Pomona, 1 Dodson, 25.) But it rests in the sound discretion of the court, whether, when property has been sold or converted by the captors, it will proceed to adjudication in their favour; for it is only in cases where the same has been justifiably or legally  converted by the captors, that they can claim its aid. The court will withhold that aid where there has been a conversion by the captors without necessity or reasonable cause. (L'Eole, 6 Rob. 220. La Dame Cecile, 6 Rob. 257. The Arabella and Madeira, 2 Gallis. 2 ) \nWhen once the prize court has acquired jurisdiction over the principal cause, it will exert its authority over all the incidents. 3 It will follow, as has been already observed, prize proceeds into the hands of agents or other persons holding them for the captors, or by any other title; and in proper cases will decree the parties to pay over the proceeds, with interest, upon the same for the time they have been in their hands. ( Smart v. Wolff, 3 Term Rep. 323. Home v. Camden, 2 H. Bl. 533. 4 Term Rep. 382. Jennings v. Carson, 4 Cranch, 1. The Two Friends, 1 Rob. 273. The Princessa, 2 Rob. 31. The Louis, 6 Rob. 146. Willis v. Commissioners of Prize, 5 East, 22. The Noysomhed, 7 Ves. 593.) It may also enforce its decrees against persons having the proceeds of prize in their hands, notwithstanding no stipulation, or an insufficient stipulation, has been taken on a delivery on bail; for it may always proceed in rem where  the res can be found, and is not confined to the remedy on the stipulation. (Per Buller, J. in 3 Term Rep. 323. Per Grose, J. in 5 East, 22. The Pomona, 1 Dodson, 25. The Herkimer, Stewart, 128. S.C. 2 Hall's Am. Law Journ. 133.) And in these cases the court may proceed upon its own authority, ex officio, as well as upon the application of parties. (The Herkimer, Stewart, 128. S.C. 2 Hall's Am. Law Journ. 133.) Nor is the court functus officio after sentence pronounced; for it may proceed to enforce all rights, and issue process therefor, so long as any thing remains to be done touching the subject matter. ( Home v. Camden, 2 H. Bl. 533. and cases ubi supra.) \n \nThe prize court has also exclusive jurisdiction as to the question who are the captors, and joint captors, entitled to share in the distribution, and its decree is conclusive upon all parties. ( Home v. Camden, 2 H. Bl. 533. 4 Term Rep. 382. The Herkimer, Stewart, 128. S.C. 2 Hall's Am. Law Journ. 133. Duckworth v. Tucker, 2 Taunton, 7.) It has the same exclusive authority as to the allowance of freight, damages, expenses, and costs, in all cases of captures. (Le Caux v. Eden, Doug. 594. Lindo v. Rodney, Doug. 613. Smart v. Wolff, 3 Term Rep. 223. The Copenhagen, 1 Rob. 289. The St. Juan Baptista, 5 Rob. 33. The Die Frie Damer, 5 Rob. 357. The Betsey, 1 Rob. 93. Duckworth v. Tucker, 2 Taunt. 7. Jennings v. Carson, 4 Cranch, 2. Bingham v. Cabot, 3 Dall. 19. The United States v. Peters, 3 Dall. 121. Talbot v. Janson, 3 Dall. 133. 2 Brown's Civ. and Adm. Law, 208.) And though a mere maritime tort unconnected with capture jure belli may be cognizable by a court of common law; yet it is clearly established that all captures, jure belli, and all torts connected therewith, are exclusively cognizable in the prize court. \nAnd the prize court will not only entertain suits for restitution,  and damages in cases of wrongful capture, and award damages therefor; but it will also allow damages for all personal torts, and that upon a proper case laid before the court as a mere incident to the possession of the principal cause. And in such a case it will not confine itself to the actual wrong doer; but will apply the rule of respondeat superior, and decree damages against the owners of the offending privateer.( Del Col. v. Arnold, 3 Dall. 333. The Anna Maria, ante, 327. Bynk. Q. J. Pub. L. 1 ch. 19., Du Ponceau's translation, 147.) And where the captured crew have been grossly illtreated, the court will award a liberal recompense. (The St. Juan Baptista, 5 Rob. 33. The Die Frie Damer, 5 Rob. 357. The Lively, 1 Gallis. 315.) \nAs the prize court has an unquestionable jurisdiction to apply confiscation by way of penalty for falsity, fraud, and misconduct of citizens as well as of neutrals, (The Johanna Tholen, 6 Rob. 72. Oswell v. Vigne, 15 East, 70.;) so it may, in like manner, decree a forfeiture of the rights of prize against captors where they have been guilty of gross irregularity, or criminal neglect, or wanton impropriety and fraud. It is a part of the ancient law of  the admiralty, independent of any statute, that captors may, by their misconduct, forfeit the rights of prize; and in such cases the property is condemned to the government generally. And this penalty has been frequently enforced, not only where the captors have been guilty of fraud, ( 8 Cranch, 421. The George, ante, 278.;) but also where they have violated the instructions of government relative to bringing in the prize crew, and have proceeded without necessity to dispose of the property before condemnation. (La Reine des Anges, Stewart, 9.) So, where the captors have rescued a prize ship from the custody of the marshal after a monition duly served. (The Cossack, Stewart, 513.) In short, the court is the constitutional guardian of the public interests in relation to matters of prize; and wherever there is any deviation from the regular course of proceedings, it expects to have a sufficient reason shown for that deviation, before it will give the captors any of the ordinary benefits of prizes captured by them. 4 \n \nThe usual course of the court is by way of monition, and if that process be disobeyed, an attachment issues against the parties in contempt. But the court may, in all cases, proceed in the first instance by warrant of arrest of the person or property to compel security to abide its decree. \nHAVING said so much on the subject of prize jurisdiction, as seemed necessary to explain the practice of the court, we may now pass to the consideration of the rights and duties of captors in relation to property captured in war. \nTo enable a vessel to make captures which shall enure to the benefit of the captors, it is necessary that she should have a commission of prize. But non-commissioned vessels of a belligerant nation may not only make captures in their own defence; but may, at all times, capture hostile ships and cargoes, without being deemed by the law of nations to be pirates; though they can have no interest in prizes so captured. (2 Brown's Civ. and Adm. Law, 524. Caseregis, Disc. 24. no. 24. 2 Woodes. Lect. 432. Consoluto del Mare, ch. 287, 288. 3 Buls. 27. 4 Inst. 152. 154. Zouch. Adm. Jurisd. ch. 4. 101. Com. Dig. Admiralty, E. 3. The Georgiana, 1 Dodson, 397. The Diligentia,  Id. 403. The Emulous, 8 Cranch, 131. The Nereide, 9 Cranch, 449. The Dos Hermanos, ante, 76. 5 ) But every capture, whether made by commissioned or non-commissioned ships, is at the peril of the captors. If they capture property without reasonable or justifiable cause, they are liable to a suit for restitution, and may also be mulcted in costs and damages. 6 If the vessel and cargo, or any part thereof, be good prize, they are completely justified. And although the whole property may, upon a hearing, be restored, yet, it there was probable cause of capture, they are not responsible in damages, (Opinion of M. Portalis, in the case of the Statira, 2 Cranch, 102. note (a);) but, on the other hand, they may, under circumstances according to the aegree of doubt or suspicion thrown upon the case, either from defects of the papers, the nature of the voyage, or the conduct of the captured crew, be entitled to receive their costs and expenses in bringing in the property for adjudication. It is not within the object of this note to enumerate all the various circumstances which have been adjudged to constitute probable cause for captures. But, in general, it may be observed, that if the  ship pretend to be neutral, and has not the usual documents of such ship on board, (The Anna, 5 Rob. 332.;) if the cargo be without any clearance, (Ib.;) if the destination be untrully stated; if the papers respecting the ship or cargo be false or colourable, or be suppressed or spoliated; or if the neutrality of the cargo does not distinctly and fully appear, (Report of Dr. Lee &c., Chitty's Law of Nations, Appendix, 303., Wheat. on Capt. Appendix, 320.;) if the voyage be from or to a blockaded port, (The Frederick Molke, 1 Rob. 86.,) or not legal to the parties engaged in the traffick; (The Walsingham Packet, 2 Rob. 77. The Hoop, 1 Rob. 196. The St. Antonius, 1 Acton, 113.;) if the cargo be of an ambiguous character as to contraband; (The Endraught, 1 Rob. 22. The Rindge Jacob, 1 Rob. 89. The Jonge Margaretha, 1 Rob. 189. The Twende Broder, 4 Rob. 33. The Frau Margaretha, 6 Rob. 92. The Ranger, 6 Rob. 125.;) and generally if the case be a case of farther proof; all or any of those circumstances furnish a probable cause for capture, and justify the captors in bringing in the ship and cargo for adjudication. \n \nWhenever the captors are justified in the capture, they are considered as having a bona fide possession, and are not responsible for any subsequent losses or injuries arising to the property from mere accident or casualty, as from stress of weather, recapture by the enemy, shipwreck, &c. (The Betsey, 1 Rob. 93. The Catharine and Anna, 4 Rob. 39. The Carolina, 4 Rob. 256. Del Col v. Arnold, 3 Dall. 333.) They are, however, in all cases bound for fair and safe custody; and if the property be lost from want of proper care, they are responsible to the amount of the damage; for subsequent misconduct may forfeit the fair title of a bona fide possessor, and make him a trespasser from the beginning.(The Betsey, 1 Rob. 93. The Catharine and Anna, 4 Rob. 39.) Therefore, if the prize be lost by the misconduct of the prize-master, or from neglecting to take a pilot, or to put on board a proper prize crew, the court will decree restitution in value against the captors. (The Der Mohr, 3 Rob. 129. The Speculation, 2 Rob. 293. The William, 6 Rob. 316. Del Col v. Arnold, 3 Dall. 333. Wilcocks v. Union Ins. Com. 2 Binney, 574.) But although, in general, irregularity of conduct in captors makes them  liable for damages, yet in case of a bona fide possession, the irregularity to bind them must be such as produces irreparable loss, as, for instance, such as may prevent restitution from an enemy who recaptures the property. (The Betsey, 1 Rob. 93.) And in cases of gross misconduct, the court will hold the commission of the captors forfeited. (The Marianne, 5 Rob. 9.) But if the injured parties lie by for a great length of time, the court will not issue a monition to the captors to proceed to adjudication, even when misconduct is laid as the ground of the application. (The Purissima Conception, 6 Rob. 45.) \nWhen a ship is captured, it is the duty of the captors to send her into some convenient port for adjudication. (The Huldah, 3 Rob. 235. The Madonna del Burso, 4 Rob. 169. The St. Juan Baptista, 5 Rob. 33. The Wilhelmsberg, 5 Rob. 143. The Elsebe, 5 Rob. 173. The Lively, 1 Gallis. 315.) 7 And a convenient port is such a port as the ship may ride in with safety without unloading her cargo. (The Washington, 6 Rob. 275. The Principe, Edwards, 70.) And the captors are bound to put on board the captured ship a sufficient prize crew to navigate the vessel into such a port, unless  the captured crew consent to navigate her; (which in general they are not bound to do;) but if they consent they cannot afterwards impute any fault to the captors. ( Wilcocks v. Union Ins. Co., 2 Binney 574. The Resolution, 6 Rob. 13. The Pennsylvania, 1 Acton, 33. The Alexander, 1 Gallis. 532. S.C. 8 Cranch, 169.) And in case of the capture of a neutral ship the crew ought not to be handcuffed or put in irons, unless in extreme cases; for if unnecessarily done the prize court will decree damages to the injured parties. (The St. Juan Baptista, 5 Rob. 33. The Die Fire Damer, 5 Rob. 357.) Captors are not bound to explain the cause of capture, but it is highly proper to to do, as the master may explain it away. (The Juffrow Maria Schroeder, 3 Rob. 147.) They may chase under false colours; but the maritime law does not permit them to fire under false colours. (The Peacock, 4 Rob. 185.) 8 They have no right to make any spoliation or damage to the captured ship; or to embezzle or convert the property; or to break bulk, or to remove any of the property from the ship, unless in cases of necessity, or where obvious reasons of policy, or the urgency of the occasion, justify them in so  doing. (The Concordia, 2 Rob. 102. L'Eole, 6 Rob. 220. The Washington, 6 Rob. 275. Clerk's Praxis, 163. Del Col v. Arnold, 3 Dall. 333.) And in every case of a removal of property from a captured ship the court expects to be satisfied as to the propriety of the removal before it will proceed to adjudication. But if any of the captured property be shown to be missing, without any default on their part, as where it is lost by robbery or burglary after unlivery, they are not responsible for the loss. (The Maria, 4 Rob. 348.The Rendsberg, 6 Rob. 142.) And if captors, acting bona fide, and for the benefit of the parties, under peculiar circumstances, land or even sell the prize goods, this irregularity, if not injurious to the parties, will not be held to deprive them of the effects of a lawful possession. (The Princessa, 2 Rob. 31.) \n \nIf the capture is made without probable cause, the captors are liable for damages, costs, and expenses, to the claimants. (Sir W. Scott and Sir J. Nichol's letter to Mr. Jay, Wheat. on Capt., Appendix, 312. Opinion of M. Portalis, in the case of the Pigou, 1 Cranch, 101. note (a). Del Col v. Arnold, 3 Dall. 333. The Charming Betsey, 2 Cranch, 64. Maley v. Shattuck, 3 Cranch, 458. The Triton, 4 Rob. 78. Camden v. Hone, 4 Term Rep. 385. Fallijeff v. Elphinstone, 5 Brown's Parl. Cas. 343. Clerk's Prax. 162. The Lively, 1 Gallis. 315.) 9 And if the captors unjustifiably neglect to proceed to adjudication, the court will, in case of restitution, decree demurrage against them. (The Corier Maritirno, 1 Rob. 287. The Madonna del Burso, 4 Rob. 169. The Peacock, 4 Rob. 185. The Anna Catherina, 6 Rob. 10.) So, also, if the captors agree to restitution, but unreasonably delay it, demurrage will be allowed against them. (The Zee Star, 4 Rob. 71.) After an acquittal, a second seizure may be made by other captors, but it is at the peril of damages and costs, in case of failure. (The Mercurius, 1 Rob. 80;) and although a spoliation of papers be made, yet, if it be produced by the misconduct  of captors, as by firing under false colours, it will not protect them from damages and costs. (The Peacock, 4 Rob. 135.) Nor is it an objection in the prize court against awarding damages and costs that the ship is not navigated by a proper proportion of seamen of her own country, according to its navigation laws; for that is an irregularity which must be referred to another branch of the admiralty jurisdiction. ( The Nemesis, 1 Edw. 50.) \nAs to the time within which a suit may be brought in the admiralty, for damages for an illegal capture, it may be observed, that as the statute of limitations does not apply to prize causes, there is no time during the existence of the prize commission in which captors may not be legally called on to proceed to adjudication, for the purpose of awarding damages against them. (The Mentor, 1 Rob. 179. The Huldah, 3 Rob. 235.) But the court  will extend, by equity, the principles of the statute of limitations to prize causes; and, therefore, it will not, after a great lapse of time, compel the captors to proceed to adjudication, or entertain a suit for damages for a supposed illegal capture. (The Susanna, 6 Rob. 48.) \nIn respect to the measure of damages, where the vessel and cargo are actually lost, it is usual to allow the actual value of the property. ( Del Col v. Arnold, 3 Dall. 333. Maley v. Shattuck, 3 Cranch, 458. The Anna Maria, ante, p. 327.) And where a prize had been illegally condemned by a vice admiralty court, erected by the commanders in the West Indies, under a misapprehension that they possessed an authority to erect such courts, and afterwards restitution in value was decreed by the high court of admiralty in England, the court allowed the invoice value, 10 per cent. profit, and freight, as well where the ship and cargo belonged to the same persons as where they were separately owned. (The Lucy, 3 Rob. 208.) Indeed, what items may properly form a part of the damages, depends upon the nature and circumstances of the case; and for guides to direct his judgment, the learned reader is referred to the following  cases. (Le Caux v. Eden, Doug. 594. 596. Talbot v. Jansen, 3 Dall. 133. 170. Cotton v. Wallace, 3 Dall. 302., 304. The Charming Betsey, 2 Cranch, 64. Maley v. Shattuck, 3 Cranch, 458. The Narcissus, 4 Rob. 20. The Zee Star, 4 Rob. 71. The Corier Maritimo, 1 Rob. 287. The St. Juan Baptista, 5 Rob. 33. The Die Fire Damer, 5 Rob. 357. The Anna Catharina, 6 Rob. 10. The Driver, 5 Rob. 145. The Lively, 1 Gallis. 315. The Anna Maria, ante, p. 327.) Where damages and costs are allowed, if after they are assessed, payment is delayed, the court will allow interest upon the principal sum from the time of assessment, although it includes interest as well as principal. (The Driver, 5 Rob. 145.) \nAs to the mode of assessing damages, it is usual for the court to refer the subject to commissioners, to make inquiry and return a regular report to the court, of the several items and amount of damages. But in their report, they should state the principles upon which they proceed in making allowances, where the items do not explain themselves, and not report a gross sum without specification or explanation. ( The Charming Betsey, 2 Cranch, 64. The Lively, 1 Gallis. 315.) \nIn respect to the persons  who are liable for costs and damages, it may be observed, that the general rule, in respect to public ships, is, that the actual wrong doer, and he alone, is responsible. (The Mentor, 1 Rob. 179.) It is not meant by this, that the crew of the capturing ship are responsible for the seizure made in obedience to the commands of their superior; for by the prize law, the act of the commander is binding upon the interests of all under him, and he alone is responsible for damages and costs. (The Dilligentia, 1 Dodson, 404.) The meaning of the rule is, that the person actually ordering the seizure is liable for the damages, and not his superior in command, (who has not concurred in the particular act,) simply from the fact, that the seizor is acting within the scope of his general orders. (The Mentor, 1 Rob. 179) Therefore, a suit cannot be maintained against an admiral upon a station, who is not privy to the act of seizure. (Ib. 179.) Nor a commodore, who commands the squadron, but gives no orders for the capture. (The Eleanor, ante, p. 346.) In short, the actual wrong doer is the person to answer in judgment, and to him responsibility is attached by the court. He may have other persons  responsible over to him, and that responsibility may be enforced; as for instance, if a captain make a wrongful seizure under the express orders of his admiral, that admiral may be made answerable in the damages occasioned to the captain by the improper act. But it is the constant and invariable practice of the prize court to have the actual wrong doer the party before the court; and the propriety of the practice is manifest, because, if the court was once to open the door to complaints founded on remote and consequential responsibility; it would be difficult to say where it is to stop. (The Mentor, 1 Rob. 179.) The principles applicable to this class of cases, are fully developed in the opinion in the case of the Eleanor, (ante, p. 346.) to which the reader is respectfully referred. \nIn case of private armed vessels, the owners, as well as the master, are responsible for the damages and costs occasioned by illegal captures, and this to the extent of the actual loss and injury, even if it exceeds the amount of the bond usually given, upon the taking out of commissions for privateers. (Bank. Q. J. Pub., l 1 ch. 19., Duponceaus ed., p. 147. Talbot v. Three Brigs, 1 Dall. 95. S.C.  1 Hall's Am. Law Journ. 140. The Die Fire Damer, 5 Rob. 357. The Der Mohr, 3 Rob. 129. \nBrown's Civ. and Adm Law, 140. Del Col v. Arnold, 3 Dall. 333. The Anna Maria anta, p. 327.) 10 But the sureties to the bond are responsible only to the extent of the sum in which they are bond. (Du Ponceau's Bynk. p. 149. 2 Valin, Sur l'Ordonnance, 223.) And if a person appear in behalf of the captain of a private ship of war, and gives security in his own name with sureties, instead of the captain, he is liable in the same manner as the captain, as a principal in the stipulation. ( King v. Fergusson, 1 Edw. 84.) And a part owner of a private armed ship is not exempted from being a party to a suit, on a moition to bring in the prize proceeds and proceed to adjudication, in consequence of having made compensation for his share to the claimant, and received a release from him; for the claimant has a right to the answer of all parties, even supposing that the decree ought not to be enforced against such part owner. (The Karasan, 5 Rob. 291.) And in a court of the law of nations, a person may be held a part owner of a privateer, although his name has never been inserted in the bill of sale or the  ship's register. (The Nostra Signora de los Dolores, 1 Dodson, 290.) \n Where the captors, from any cause whatsoever, as from loss of the property, or from fraud or neligence, omit to bring the case before the court for adjudication, the claimant may apply to the court for a monition to the captors to proceed forthwith to adjudication; (The William, 4 Rob. 214;) and upon their nglect so to do after service and return of the monition, the court will, if a proper case is laid before it, proceed to award restitution with damages and costs. (The Huldah, 3 Rob. 235. The Susanna, 6 Rob. 48.) It is the usual practice for a party to give in his claim in the first instance, before calling upon the captors to proceed to adjudication; but it will not necessarily vitiate the process, if there has been no claim. If it should, in any manner, come to the knowledge of the court that a seizure had been made in the nature of prize, and that no proceedings had been instituted, it would be the duty of the court to direct proceedings to be commenced. (The William, 4 Rob. 214.) The same object is often effected by the claimants by an original suit for restitution, on a petition, setting forth all the facts, and praying for a decree of restitution either in rem or in value  with damages. ( Del Col v. Arnold, 3 Dall. 333. Maley v. Shattuck, 3 Cranch, 458. Jennings v. Carson, 4 Cranch, 2. The Anna Maria, ante, p. 327. The Eleanor, ante, p. 347.) Whether the proceeding be in the one form or the other, the rights of all parties remain the same. The burthen of the neutrality of the property rests on the claimants, and when that is shown, the existence of probable cause of capture is to be established by the other side; and each party has a right to the answer of the other, upon all proper interrogatories supported by oath. ( Maley v. Shattuck, 3 Cranch, 458.) \nAs soon as the captors have brought the property in for adjudication, and the preparatory examinations are taken the captors, and if they neglect or refuse, the claimants, apply to the proper court for adjudication. In either case the property is immediately taken into the custody of the court; for in all proceedings in rem, the court has a right to the custody of the thing in controversy; and as soon as libelled, it is always deemed in the custody of the law. ( Jennings v. Carson, 4 Cranch, 2. Home v. Camden, 2 H. Bl. 533.) In the United States, a warrant immediately goes to the marshal to take possession  of the property; and he is bound to keep it salva et arcta custodia; and if any loss happens by his negligence, he is responsible for it to the court. In England, though the property is now usually put into the hands of the captors, yet it still remains, in contemplation of law, in the custody of the public. Formerly it actually did remain in its custody, as is still the case in other foreign countries. It is merely for the convenience of the captors that the English admiralty permits them to take possession of the property. But it must be remembered, that it is so held by them as agents of the court, and not in right of property; and therefore, their possession may be devested by the act of the court, either ex officio, or on the application of the parties interested, showing good cause for taking it out of their hands. (Per Sir W Scott, arguendo, in Smart v. Wolff, 3 Term Rep. 323. 329. The Herkimer, Stewart, 128. S.C., 2 Hall's Am. Law Journ. 133.) And the property still remains in the custody of the court, notwithstanding an unlivery and deposit in public warehouses. (The Maria, 4 Rob. 348.) In fact, in England, where the property is so unlivered, if it has been captured  by a public or private commissioned vessel, it is, de facto, under the joint locks of the government and the captors, although in the legal possession of the marshal under the tenor of his writ for unlivery; and if captured by a non-commissioned vessel, it is a droit, where the king, in his office of admiralty being the captor, it is under his locks alone. (The Rendsberg, 6 Rob. 142. 174.) In the United States, the marshal holds the custody at all times for the court; and the latter is the guardian of the public rights and revenue, as well as of the rights of the captors and claimants in all cases of prize. It is, indeed, usual and proper for the collector of the customs to keep an officer on board for the protection of the revenue, until the duties are duly secured, which the captors may secure, if they please; but since it cannot be ascertained until a decree of condemnation whether the property be good prize or not, many cases may occur in which it would be highly inconvenient for them to adopt this course. If the property be restored specifically, and exported from the country by the claimants, it is held not liable to duties; and if sold under an interlocutory order of sale  it is the duty of the court to reserve out of the proceeds the amount of duties which then attach upon it, and direct them to be paid over to the collector. ( The Concord, 9 Cranch, 387. The Nereide, ante, vol. I. p. 171.) It is true that the prize act of last war, (act of the 26th June, 1812, ch. 107., sec. 14.,) seems to contemplate that the duties may be paid or secured in prize cases, in the same manner as goods ordinarily imported. But this clause is in terms applied only to goods of British growth, produce, or manufacture, or imported from British ports; and is, at all events, inapplicable to cases where it cannot be ascertained whether the goods are imported rr not, until after a judicial decision. And the subsequent act of the 27th January, 1813, ch. 155., manifestly contemplates, that the payment of the duties is, in cases of condemnation, to be made by the marshal, out of the proceeds of prize sales. And it has been repeatedly held in the circuit court for the first circuit, that no forfeiture accrued for not securing the duties upon prize goods before condemnation; and that the court might, at any time, direct an unlivery and sale; and upon such sale, would deduct the  amount of duties, and direct them to be paid to the collector. \nIt has already been stated, that when the marshal has possession of the property he is bound for safe and fair custody; and if any loss be sustained, it is at least his duty to be prepared to show that it was not lost by any default of his. (The Hoop, 4 Rob. 145.) If, therefore, property be pillaged while under his care, the court will hold him responsible for its value, if it arose from his negligence. If, indeed, upon an application to enforce their responsibility, he by his answer deny any negligence and loose custody, the court may, perhaps, think it no more than a legal and proper confidence in its own officer to throw the burden of proof of culpable negligence or fraud on the other party. (The Rendsberg, 6 Rob. 142. 157.) And where the property is lost while actually under the locks of the government, the marshal will not be liable, although he may still be considered as constructively having the legal custody. (Ib.) \nIn prize causes it is not usual to file any special allegation of the particular circumstances on which the captors found their title to condemnation. The libel is, and always ought to be, the  mere general allegation of prize, such as is used in undoubted cases of hostile property. The act of bringing the vessel in, and proceeding against her, allege her generally to be a subject of prize rights, and the captors are not called upon to state, at the commencement of the suit, the particular grounds on which they contend she is so. They have a right to institute the inquiry, and take the chance of the benefit of any fact that may be produced in the course of that inquiry. ( The Adeline, 9 Cranch, 244. The Fortuna, 1 Dodson, 81.) This is a great advantage on the side of the captors, but is controlled by their liability to costs and damages, if the inquiry produce nothing; and is fully balanced by the advantage given to the claimant in this species of proceeding, that no evidence shall be admitted against him but such as proceeds from himself, from his own documents, and from his own witnesses, the captors not being permitted, except in cases marked by peculiar circumstances, to furnish any evidence whatever. (The Fortuna, 1 Dodson, 81.) Considerations of this nature render it very important for proctors to adhere, with the greatest care, to the established form; and it is  a great irregularity, equally evincing want of skill and judgment, to deviate from it. \nUpon filing the libel the usual practice is immediately to issue a monition citing all persons who are interested to appear at a given day, and show cause why the property should not be condemned as prize; and this process, in the United States, usually includes a warrant to take possession of the property. But where the prize has been first seized in port, a monition issues, in the first instance, to bring in the papers if they are in the possession of a subject or citizen. (The Conqueror, 2 Rob. 303) The usual monition is directed to the marshal, and in England is served by posting up a copy at the Royal Exchange, in the city of London. In former times fourteen days were allowed between the service of the monition and the day of hearing the cause; but in most of the later prize acts in England twenty days are allowed after the execution of the monition. (Robinson's Coll. Mar. 89 Note. Mariott's Formulary, 187.) In the United States the return day of the monition depends upon the discretion of the district judge; but it is usually twenty days at least after the issuing of the process; and  it is served usually by posting up a copy on the mast of the prize vessel, and at such other public places as the judge may direct; and also by publication in the newspapers printed in or near the principal place or port of the district into which the prize is brought. This proceeding by monition and service by public notice is borrowed from the Roman law, by which, when it became impracticable to serve the party with a personal citation, recourse was had to this method, which is called a citation per edictum. (Dig. Lib. 5. tit. 1 sec. 68. Robinson's Coll. Mar. 88. note.) \nAt the return day of the process, if no claim be at that time or previously interposed, and upon proclamation made no person appear to claim, the default is entered on the record; and the court will then proceed to examine the evidence, and if proof of enemy's property clearly appear, it will immediately decree condemnation; if the case appear doubtful it will postpone a decision. It is not now usual to condemn goods for want of a claim till a year and a day has elapsed after the service of the process, except in cases where there is a strong presumption and reasonable evidence to show that the property belongs  to an enemy. (Rob. Coll. Mar. 89. The Harrison, ante, vol. I. p. 298. The Staat Embden, 1 Rob. 26. 29.) And if no claim be interposed within that period, the property is condemned of course, and the question of former ownership is precluded for ever, the owner being deemed in law to have abandoned it. (The Staat Embden, 1 Rob. 26. 29. The Henrick and Maria, 4 Rob. 43, 44. The Harrison, ante, vol. 1. p. 298. Rob. Coll. Mar 89., note. The Avery, 2 Gallis.) \nIf at or before the return day of the process a claim is interposed, the cause is then to be heard in its proper order upon the ship's papers and the preparatory examinations. Accompanying every claim must be an affidavit which is called the test affidavit, and which regularly should state that the property at the time of shipment and also at the time of capture, did belong, and will, if restored, belong to the claimant; and if there be any special circumstances in the case these should be added. ( The Adeline, 9 Cranch, 244. Vide The Sally, 3 Rob. 300. note.) In respect to the manner of interposing claims, and the rules by which their admission or rejection are governed, it does not seem necessary to do much more than refer  the reader to what is said on that subject in the appendix to the preceding volume, (Ante, p 500.) and the case of the Adeline, (9 Cranch, 244. 286.) I may, however, be added, that a party to be entitled to assert a claim in the prize court must be the general owner of the property; for a person who has a mere lien on the property for a debt due, whether liquidated or unliquidated, is not so entitled. (The Eenroom, 2 Rob. [Illegible Word] 5. The Tobago, 5 Rob 218. The Frances, Thompson's claim, 8 Cranch, 335. Id. Irvin's claim, 8 Cranch, 418. The Marianna, 6 Rob. 24.) And the same rule has been applied to a mortgage where the mortgagor is left in possession. (Bolch v. Darrel, Bee, 74.) The rule that a claimant is not admitted to claim, who is engaged in a traffick prohibited by the municipal laws of the country, is applied only to citizens or subjects, and not to foreign neutral proprietors. (The Recovery, 6 Rob. 341.) But to citizens or subjects the rule equally applies, whether the transaction is between original contractors or under a sub-contract. (The Cornelius and Maria, 5 Rob. 28.) And an inactive or sleeping partner cannot receive restitution in a transaction in which  he could not be lawfully engaged as a sole trader. (The Franklin, 6 Rob. 127. 131.) If enemy's property be fraudulently blended in the same claim with neutral property, the latter is liable to share the fate of the former. (The St. Nicholas, ante, Vol. I. p. 481.) \nAn appearance by a proctor for the claimants, duly entered, cures all defects of process, such as the want of a monition or of due notice. ( Penhallow v. Doane, 3 Dall. 54.) And even assuming that one partner has no authority to appoint a proctor for all the partners, yet a general appearance for all by a proctor is good and legally binding. ( Hills v. Ross, 3 Dall. 231.) In cases of captures by government ships the proceedings in England are exclusively carried on by the officers of the government, and no other persons can interfere to support or pursue a suit, where they do not consent. (The Elsebe, 5 Rob. 173.) Whether the same exclusive authority exists in the United States has never been made the subject of question in the supreme court. 11 \n It has been already stated in the former note, that the cause is to be heard at the first hearing upon the ship's papers and the preparatory examinations, and that the onus probandi rests on the claimant.(And see the Rosalie, 2 Rob. 343. The Countess of Lauderdale, 4 Rob. 283.) If upon such hearing the cause appear doubtful, and the parties have not forfeited their title to farther proof, it is then in the discretion of the court to allow farther proof, either to the claimants alone, or to the captors as well as the claimants. The manner in which the preparatory examinations are taken, and the cases in which farther proof is allowed or denied, have been briefly stated in the former note. and the standing interrogatories on which these examinations are taken, will be found in a subsequent note to this volume. (Infra, note 3.) It may not, however, be useless to glance at a few particulars which are either omitted, or not distinctly stated in the former note. Although the ship's papers found on board are proper evidence, yet they are so only when properly verified; for papers by themselves prove nothing, and are a mere dead letter if they are not supported by the oaths of persons  in a situation to give them validity. (The Juno, 2 Rob. 120. 122.) 12 And even upon the original hearing, papers found on board another captured ship may be invoked into the cause, and used by the captors. But if the papers are taken from a vessel not so captured and carried in, they can only be used upon an order for farther proof. (The Romeo, 6 Rob. 351. The Maria, 1 Rob. 340.) But the authenticity of papers thus invoked must be verified by affidavit, and otherwise, to the satisfaction of the court. (The Romeo, Ib.) So, also, the depositions of the claimant in a former case, in which he was owner and master, were permitted to be invoked by the captors to prove his domicil. (The Vriendschap, 4 Rob. 166.) But where nothing appears in the original evidence, which lays a foundation for prosecuting the inquiry farther, it must be under very particular circumstances indeed, that the court will be induced to admit extraneous evidence. (The Sarah, 3 Rob. 330.) If the instructions found on board of a prize are transmitted from the department of state for foreign affairs to the prize court, they are considered as sufficiently authenticated as having been found on board, without farther  proof to that effect. (The Maria, 1 Rob. 340.) A person skilled in nautical affairs may be called to examine the log-book of the captured ship, and to give his opinion as to the verity of the statement in respect to destination, &c. from the courses, winds, &c. (The Edward, 4 Rob. 68.) \nThe examinations of the prize crew are to be taken in the manner which has been already alluded to; but if the prize be carried into a foreign port where there is no commission, their affidavits taken in such port will be admitted in evidence. (The Peacock, 4 Rob. 185. The Arabella and Madeira, 2 Gallis.) \nIn the prize court, as in every other judicial tribunal, there are certain presumptions which legally affect the parties, and are considered as of general application. Possession is presumptive evidence of property. ( Miller v. The Resolution, 2 Dall. 19.) If there be a total  defect of evidence to establish the proprietary interest, it is presumed to belong to an enemy. (Sir W. Scott and Sir. J. Nicholl's letter to Mr. Jay. Ubi supra. The Magnus, 1 Rob. 31.) So, goods found in an enemy's ship are presumed to belong to the enemy, unless a distinct neutral character, and documentary proof, accompany them. Res in hostium navibus presumuntur esse hostium donec contrarium probetur. (Loccenius, lib. 2. ch. 4. n. 1. Grotius de Jur. Bel. et Pac. lib. 3. ch. 6. sec. 6. Bynk. Q. J. Pub. lib. 1. ch. 13.) And in cases where the property falls within the general character of contraband, if the claimant would avail himself of the ravourable distinction that it is the produce of his own country the onus of establishing that fact is on him. (The Twee Juffrowen, 4 Rob. 242.) Prima facie a merchant is taken to be acting for himself, and upon his own account; but if a person is not a merchant that may give a qualified character to his acts. (The Jonge Pieter, 4 Rob. 79.) If in the ship's papers property in a voyage from an enemy's port be described \"for neutral account,\" this is such a general mode as points to no designation whatever; and under such a description  no person can say that the cargo belongs to him, or can entitle himself to the possession of it as his property. In such a case farther proof is indispensable. (The Jonge Pieter, 4 Rob. 79.) Where a ship has been captured and carried into an enemy's port and is afterwards found in possession of a neutral, the presumption is, that there has been a regular condemnation, and the proof of the contrary rests on the party claiming the property against the neutral possessor. (The Countess of Lauderdale, 4 Rob. 283.) Where a treaty expressly provides for the removal of persons who happen to be settled in a ceded port, the burthen of proof rests on the other party to show that they did not intend to remove, for the presumption is already to be taken in their favour. (The Diana, 5 Rob. 60.) Where the master of a captured ship is not fairly discredited, his testimony as to destination is generally conclusive on that point. (The Carolina, 3 Rob. 75. The Convenientia, 4 Rob. 200.) So his testimony of the ill-treatment of his crew, if uncontradicted. (The Die Fire Damer, 5 Rob. 357.) Where the voyage is from the port of one enemy to the port of another enemy, and farther proof is required,  the double correspondence of the shipper and consignee should be produced; for there is a double interest to be rebutted: but if the voyage be to a neutral port, the correspondence with the shipper is all that is usually required. (The Vreede, 5 Rob. 231.) \nIn respect to the persons who may be witnesses in prize causes, it is very clear that an alien enemy, as such, is not in general disabled to be a witness. (The Falcon, 6 Rob. 194.;) and, indeed, in ordinary cases the prize crew, whether national, neutral, or hostile, are the necessary witnesses in the cause. (The Henrick and Maria, 4 Rob. 43.) And upon farther proof ordered, the attestations of the claimant and his clerks, and the correspondence between him and his agents are admissible evidence, and proper proofs of property. (The Adelaide, 3 Rob. 281.) And upon farther proof, the affidavits of the captors, even without a release, are good evidence of facts within their own knowledge. (The Maria, 1 Rob. 340. The Resolution, 6 Rob. 13. The Sally, 1 Gallis. 401.) But except under peculiar circumstances, the affidavits of captors are not received in our prize courts. (The Henrick and Maria, 4 Rob. 57. note (a.) The Grotius,  9 Cranch, 368. The Sally, 1 Gallis. 401. The Haabet, 6 Rob. 54. The Glierktigheit, 6 Rob. 58. note (a.) The Charlotte Caroline, 1 Dodson, 192. 199.) Upon allegations of joint capture the affidavits of any of the joint captors are not received, unless they are discharged of all interest by a release, for in such questions the general rules of law as to competency prevail. And where a witness declares that he expects to share from the bounty of the joint captors, he is competent; but it is otherwise if he says that he thinks himself entitled in law. (The Drie Gebroeders, 5 Rob. 339. 343. note (a.) The Anna Catharina, 6 Rob. 269.) And the log-book of asserted joint captors is inadmissible evidence, since it goes to establish their interest. (Le Niemen, 1 Dodson, 9.) Where farther proof is ordered, affidavits taken in foreign countries, before notaries public, whose attestations are properly verified, are in general proper evidence. But in the supreme court of the United States, it is by a rule of the court required that all such evidence should be taken under a commission from the court. (The London Packet, ante, p. 371.) And this practice is certainly more conformable to the general  purposes of justice, and less liable to abuse than any other. It seems, however, to be a general rule of the prize court not to issue any commission to be executed in the enemy's country. (The Magnus, 1 Rob. 31. The Diana, 2 Gallis.) \nThe questions which are most ordinarily discussed in prize courts at the hearing of the cause, respect the national character of the property; and this depends sometimes upon the habits and trade of the ship, upon the nature of the voyage or of the cargo, or upon the legal or illegal conduct of the parties themselves; but ordinarily it depends upon the national domicil of the asserted proprietor, or upon the nature of the title which he asserts over the property. In all these cases where the property is condemned, it is by fiction, or rather by intendment of law, deemed the property of enemics that is of persons who are so to be considered in the particular transaction, and is condemned co nomine. (The Elsebe, 5 Rob. 173. The Nelly, 1 Rob. 219., note to The Hoop. The Alexander, 8 Cranch, 169. The Julia, 8 Cranch, 181. The Thomas Gibbons, 8 Cranch, 421. The St. Lawrence, 1 Gallis. 532. The Joseph, 1 Gallis. 545.) It is, besides, the purpose of this  note to discuss these topics at large with all the distinctions which belong to them. Indeed, such a discussion would of itself require a very considerable treatise. It may, however, be of some use to give a rapid sketch of the leading principles which regulate the decisions of prize courts on some of these subjects. \nIn respect to the question who are to be considered enemies or not, the general principle is, that every person is to be considered as belonging to that country where he has his domicil, whatever may be his native or adopted country. (The Vigilantia, 1 Rob. 1. The Endraught, 1 Rob. 19. The Sarah Christina, 1 Rob. 237. The Indian Chief, 3 Rob. 23. The President, 5 Rob. 277. The Neptunus, 6 Rob. 403. The Venus, 9 Cranch, 253. The Frances, Gillespie's claim, 1 Gallis. 614. The Mary and Susan, Richardson's claim, ante, Vol. 1. p. 46. S.C. p. 55., note (f.) M'Connel v. Hector, 3 Bos. & Pul. 113. Bynk. Q. J. Pub. ch. 3. Duponceau's edit. p. 19. 25.) 13 And the masters and crews of ships are deemed to possess the national character of the ships to which they belong during the time of their employment. (The Endraught, 1 Rob. 21. The Bernon, 1 Rob. 101. Vide the Embden,  1 Rob. 17. The Frederick, 5 Rob. 8. The Ann, 1 Dodson, 221.) And even if a person goes into a belligerant country originally for temporary purposes, he will not preserve his neutral character, if he remain there several years, paying taxes, &c. (The Harmony, 2 Rob. 322. The Embden, 1 Rob. 17.) And a neutral consul, resident and trading in a belligerant country, is, as to his mercantile character, deemed a belligerant of that country. (The Indian Chief, 3 Rob. 22. The Josephine, 4 Rob. 25.) And the same rule applies to the subject of one belligerant country, resident in the country of its enemy, and carrying on trade there. (The Citto, 3 Rob. 38. M'Connel v. Hector, 3 Bos. & Pull. 113.) But a character acquired by mere domicil ceases upon removal from the country. (The Indian Chief, 3 Rob. 12.) The native character easily reverts, and it requires fewer circumstances to constitute domicil in the case of a native, than to impress the national character on one who is originally of another country. (La Virginie, 5 Rob. 98.) And in his favour, a party is deemed to have changed his domicil and his native character reverts, as soon as he puts himself in itinere to return to his native  country animo revertendi. (The Indian Chief, 3 Rob. 12. The St. Lawrence, 1 Gallis. 467.) \nIn general, a neutral merchant trading in the ordinary man ner with a belligerant country, does not, by the mere accident of his having a stationed agent there, contract the character of the enemy. (The Anna Catharina, 4 Rob. 107. 121.) But it is otherwise if he be not engaged in trade upon the ordinary footing of a neutral merchant, but as a privileged trader of the enemy; for then it is in effect a hostile trade. (The Anna Catharina, 4 Rob. 107.  121.) So if the agent carry on a trade from the hostile country, which is not clearly neutral. (Ib.) And if a person be a partner in a house of trade in the enemy's country, he is, as to the concerns and trade of that house, deemed an enemy, and his share is liable to confication, as such, notwithstanding his own residence is in a neutral country; for the domicil of the house is considered in this respect as the domicil of the partners. (The Vigilantia, 1 Rob. 1. 14. 19. The Susa, 2 Rob. 255. The Indiana, 3 Rob. 44. The Portland, 3 Rob. 41. The Vriendschap, 4 Rob. 166. The Jonge Klassina, 5 Rob. 297. The Antonia Johanna, ante, Vol. I p. 159. The St. Joze Indiano, 2 Gallis.) But if he has a house of trade in a neutral country, he has not the benefit of the same principle; for if his own personal residence be in the hostile country, his share in the property of the neutral house, is liable to condemnation. (Ib. and the trances, 1 Gattis. 618., S.C., 8 Cranch, 348.) However, where a neutral is engaged, in peace. in a house of trade in the enemy's country, his property so engaged in the house is not, at the commencement of war, confiscated; but if he continues in the house after knowledge  of the war, it is liable, as above stated, to confiscation. (The Vigilantia, 1 Rob. 1. 14, 15. The Susa, 2 Rob. 251. 255.) It is a settled principle that traffick alone, independent of residence, will, in some cases, confer a hostile character on the individual. (Ib. The Susa, 2 Rob. 251. 255. The Vriendschap, 4 Rob. 166.) And if a neutral be engaged in the enemy's navigation, it not only affects the particular vessel in which he is employed, but all other vessels belonging to him, that have no distinct national character impressed upon them. (The Vriendschap, 4 Rob. 166.) \nShips are deemed to belong to the country under whose flag and pass they navigate, and this circumstance is conclusive upon their character. (The Vigilantia, 1 Rob. 1. 19. 26. The Vrow Anna Catharina, 5 Rob. 161. The Success, 1 Dodson, 131.) So, even if purchased by a neutral, if they are habitually engaged in the trade of the enemy's country. (The Vigilantia, 1 Rob. 1. 19. 26. The Planter's Wench, 5 Rob 22.); even though there be no sea-port in the territory of the neurtal. (Ib.) But in general, and unless under special circumstances, the national character of ships depends on the residence of the owner.  (Ib. The Magnus, 1 Rob. 31.) When, however, it is said that the flag and pass is conclusive on the character of the ship, the meaning is this, that the party who takes the benefit of them is himself bound by them; he is not at liberty, when they happen to turn to his disadvantage, to turn round and deny the character which he has worn for his own benefit, and upon the credit of his own oath or solemn declarations. But they do not bind other parties as against him: other parties are at liberty to show that these are spurious credentials, assumed for the purpose of disguising the real character of the vessel; and it is no inconsiderable part of the ordinary occupation of a prize court, to pull off this mask, and exhibit the vessel so disguised in her true character of an enemy's vessel. (The Fortuna, 1 Dodson, 87. The Success, Id. 131.) Ships and cargoes engaged in the privileged and peculiar trade of a nation, under a special contract, and the sanction of the government, are considered as affected by the character of the nation, and if it be bostile, the trade is stamped with the same character. (The Princessa, 2 Rob. 49. The Anna Catharina, 4 Rob. 197. The Rendsborg, 4 Rob, 121.  The Vrow Anna Catharina, 5 Rob. 161. The Commercen, ante, Vol. I. p. 382. Vide 5 Rob. 5. note (a). And the produce of an estate situated in a hostile colony is so impressed with the character of the soil, that although the owner of the estate be resident in a neutral country, his interest in the produce is deemed enemy's property. (The Phoenix, 5 Rob. 20. The Vrow Anna Catharina, 5 Rob. 161. The Dree Gebroeders, 4 Rob. 232 Bentzon's claim, 9 Cranch, 191.) \nIn respect to the transfers of enemies ships during war, it is certain that purchases of them by neutrals is not, in general, illegal; but such purchases are liable to great suspicion, and if good proof be not given of their validity, by a bill of sale and payment of a reasonable consideration, it will materially impair the validity of the neutral claim. (The Bernon, 1 Rob. 102. The Sechs Gedchwistern, 4 Rob. 100.;) and if the purchase be made by an agent, his letters of procuration must be produced and proved. (The Argo, 1 Rob. 158.) 14 And if after such transfer the ship be employed habitually in the enemy's trade, or under the management of a hostile proprietor, the sale will be deemed merely colourable and collusive.(The  Jemmy. 4 Rob. 31. The Omnibus, 6 Rob. 71.) But the right of purchase, by neutrals, extends only to merchant ships of enemies, (The Minerva, 6 Rob. 396. 399.;) for the purchase of ships of war belonging to enemies, is held to be invalid. (The Minerva, 6 Rob. 396) And a sale of a merchant ship, made by an enemy to a neutral, during war, must be an absolute, unconditional sale. (The Packet de Bilboa, 1 Rob. 133. The Noydt Gedecht, 1 Rob. 137. note (a).) Any thing tending to continue the interest of the enemy in the ship vitiates a contract of this description altogether. (The Sechs Gedchwistern, 4 Rob. 100.) \nIn respect to proprietary interests in cargoes, though, in general, the rules of the common law apply, yet there are many peculiar principles  of prize law to be considered. It is a general rule, that during hostilities, or imminent and impending danger of hostilities, the property of parties belligerant cannot change its national character during the voyage, or, as it is commonly expressed, in transilu. (The Dankebaar Africaan, 1 Rob. 107. The Herstelder, 1 Rob. 114.) This rule equally applies to ships and cargoes; and it is so inflexible, that it is not relaxed even in favour of owners, who become subjects by capitulation after the shipment and before the capture. (Ib.) But if the ship sails before hostilities, when there is a decided state of amity between the two countries, and before the capture, the owner again becomes a friend, and at the time of the capture, and also at the time of adjudication, he is in a capacity to claim; the prize courts will, then, give him the benefit of the principle, that the national character cannot be altered in transitu, and will restore to him. (Ib.) The same distinction is applied to purchases made by neutrals, of property in transitu; if purchased during a state of war existing, or imminent and impending danger of war, the contract is held invalid, and the property is deemed to continue  as it was at the time of suipment, until the actual delivery. It is otherwise, however, if the contract be made during a state of peace, and without contemplation of war; for, under such circumstances, the prize courts will recognise the contract, and enforce the title acquired under it. (The Vrow Margaretha, 1 Rob. 336. The Jan Frederick, 5 Rob. 128.) And property is still considered in transitu, if it be ultimately destined to the hostile country, notwitbstanding it has arrived at a neutral port, and the ship is there changed. (The Carl Walter, 4 Rob. 207.) The reason why courts of admiralty have established this rule as to transfers in transitu during a state of war, or expected war, is asserted to be, that if such a rule did not exist, all goods shipped in the enemy's country would be protected by transfers, which it would be impossible to detect. (The Vrow Margaretha, 1 Rob. 336.) \nThe same public policy has established the rule of the prize courts, that property going, during war, to be delivered in the enemy's country, and under a contract to become the property of the enemy immediately on arrival, if taken in transitu, is to be considered as enemy's property. (The Sally,  3 Rob. 300. note (a).) And all contracts of purchase effected on the part of the belligerant, where the payment is executory and contingent on delivery at an ulterior port, at the risk of the neutral vendor or shipper, are considered as contracts in fraud of the prize law, and the goods, if captured in transitu, are condemned as the absolute property of the enemy. (The Atlas, 3 Rob. 299. The Anna Catharina, 4 Rob. 107. 113. note) But when the contract is made in time of peace, and without any contemplation of war, no such rule exists (Ib.) But the rule is applied where such a contract is originally made between allies in the war, if a party to it becomes neutral after the contract, and before the execution of it, and the shipment is made afterwards. (The Anna Catharina, 4 Rob. 107. 112.) A contract by a neutral with a privileged company of the enemy, with a view to the transportation of the whole produce of a colony, or of the company itself, if made during war, or in contemplation of war, is pronounced illegal, and the property is liable to condemnation as hostile property. (The Rensberg, 4 Rob. 121. The Jan Frederick, 5 Rob. 128.) But if a neutral, during peace, and without contemplation  of war, purchase goods in a colony from a regular privileged company there, and it is agreed that they shall be transported and sold in the mother country by the company's agents for the benefit of the neutral, the contract is good, and the property remains neutral during its transit, notwithstanding an intervening war of the mother country. (The Vrow Anna Catharina, 5 Rob. 161.) \nIn ordinary shipments of goods, unaffected by the foregoing principles, the question of proprietary interest often turns on minute circumstances and distinctions, the general principle being that if they are going for account of the shipper, or subject to his order or control, the property is not devested in transitu. If there be any condition annexed to the delivery of the goods to the consignee, the proprietary interest remains in the shipper, notwithstanding the goods are sent in pursuance of the orders of he consignee. Thus, if a merchant in H. send goods to A. in another country, by order of B. and on account of B., but with directions not to deliver them unless satisfaction could be given for the payment, the property is not devested from the sbipper, but remains his in transitu. (Cited in the Aurora,  4 Rob. 319.) The same principle applies where goods are shipped to the orders of the shippers, but to be delivered by their agents to the consignee, upon the agents being satisfied for the payment. (The Aurora, 4 Rob. 218. The Merrimack, Kimmel & Albert's claim, 8 Cranch, 317. See the Marianna, 6 Rob. 24.) So, even if the goods are stated in the invoice to belong to the claimants; yet if these papers are enclosed to the consignee as agents to the shippers, and are to be delivered to the claimants only upon conditions in the discretion of the agent, the property remains in the shippers. ( The Merrimack, 8 Cranch, 317.) But if the goods are consigned to an agent of the shippers, but the invoice, &c., show them to be for the account of the claimants, and the invoice, &c., are, by the shippers, sent directly to the claimants, the possession of these documents gives them a title, and establishes the intention of the shipper to vest the property in the claimants, at the time of the shipment. (The Merrimack, Messrs. Wilkins' claim, 8 Cranch, 317.) So if the goods are shipped to the consignee unconditionally for the use of the claimants. (Id. Messrs. M'Kean & Woodland's claim, 8 Cranch,  317.) But if the goods are consigned to the agent of the shippers, and there are discretionary orders given, but no direction for an absolute delivery to the claimants, the property remains in the shippers.(The St. Joze Indiano, Lizaur's claim, 2 Gallis. S.C. ante, Vol. 1. p. 208.) In all these cases, the goods are supposed to have been purchased in pursuance of the orders of the claimants; for if they are sent by the shippers without orders, or contrary to, or different from orders, either in quantity or kind, the proprietary interest remains in the shipper during the transit, notwithstanding they are sent by direct consignment to the consignee. ( The Venus, 8 Cranch, 253. The Frances, Dunbam & Randolph's claim, 1 Gallis. 445. S.C., 8 Cranch, 354., 9 Cranch, 183. The Frances, French's claim, 8 Cranch, 359.) \nIt is certainly competent for an agent abroad, who purchases goods in pursuance of orders, to vest the proprietary interest in his principal, immediately on the purchase. This is the case when he purchases exclusively on the credit of the principal, or makes anabsolute appropriation and designation of the property for his principal. But where he sells his own goods, or purchases  goods on his own credit, (and thereby in reality becomes the owner,) no property in such goods vests in his correspondent, until he has done some notorious act to devest himself of his title, or has parted with the possession by an actual and unconditional delivery for the use of such correspondent. (The St. Joze Indiano, 2 Gallis. S.C. ante, Vol. I, p. 208.) But such delivery or appropriation to the use of his correspondent, need not be by a direct act, but it may constructively arise from the circumstances of the case, even where the shipper has made an intermediate assignment of the goods. (The Mary and Susan, ante, Vol. I., p. 25.) \nIn all these cases the material question is, whether the shipper retains or possesses any control over the property, (independent of the mere right of stoppage in transitu in cases of insolvency,) or has parted with the possession, and all authority over it. For if an enemy's shipper consign goods or money to his correspondent at H., for the purpose of answering drafts of his correspondent in A., without any letter of advice or document making it the absolute property of such correspondent, or putting it out of his own control, it still remains the  property of the shipper, for he may at any time countermand the order, or give the goods, or money, a new direction. In substance it is the same transaction as if a person send a sum of money to his private banker, directing him to hold it subject to the order of A.; in which case, if on the next day, and before any such order had been given, or even the fact of lodgment known to the other party, he had changed his purpose, and directed a conversion of the money to another object, it is clear that the bankers could not resist with effect. (The Josephine, 4 Rob. 25.) \nIn respect to questions of illegal trade, little is necessary to be said in addition to the observations and cases cited in the former volume. It is a fundamental principle of prize law, that all trade with the enemy is prohibited to all persons, whether natives, naturalized citizens, or foreigners domiciled in the country during the time of their residence, under the penalty of confiscation. (The Vigilantia, 1 Rob. 1. 14. 26. The Hoop, 1 Rob. 196. Potts v. Bell, 8 T.R. 548. The Rapid, 8 Cranch, 155. S.C. 1 Gallis. 295. The Alexander, 8 Cranch, 169. S.C. 1 Gallis. 532. The Joseph, 8 Cranch, 451. S.C. 1 Gallis. 545.) 15 The same penalty is applied to subjects of allies in the war, trading with the common enemy. (The Nayade, 4 Rob. 251. The Neptunus, 6 Rob. 403. Bynk Q.J. Pub. Ch. 10. Du Ponceau's edit. p. 81.) But a citizen of a belligerant country, domiciled in a neutral country, may lawfully trade with the enemy of his native country, (The Danaos, 4 Rob. 255. note,) with the exception of the case of trade in articles contraband of war. (The Neptunus, 6 Rob. 403. The Ann, 1 Dodson, 221.) And if the party intends to trade with the enemy, but during the voyage the port becomes neutral, the penalty is saved, for there must be the act as well as the intention. (The Abby, 5 Rob. 251.) And even assuming that after the knowledge of a war, a citizen domiciled in the enemy's country may lawfully withdraw his property without a license from his government, (which has been denied, the Mary, 1 Gallis. 620.,) at all events, it must be done in a reasonable time, and ten months after the war is too late, and the party will then be deemed engaged in a trade with the enemy. ( The St. Lawrence, 1 Gallis. 467. S.C. 9 Cranch, 120.) And if a vessel take on board a cargo from an enemy's ship, under the pretence  that it is ransomed, it is an illegal traffick. Even admitting the ransoming of captured property to be legal, it cannot be admitted to be made at any distance of time, and by any new voyages undertaken for this special purpose. ( The Lord Wellington, 2 Gallis. 103.) And sailing under the enemy's license is deemed, per se, an efficient cause of condemnation. ( The Julia, 1 Gallis 594. S.C. 8 Cranch, 181. The Aurora, 8 Cranch, 203. The Hiram, 8 Cranch, 444. S.C. ante, Vol. I. p. 440. The Ariadne, ante, Vol. II. p. 143.) \n These observations on the subject of proprietary interests, may be concluded with the remark that to entitle the claimant to sustain his claim in the prize court, the property must be proved to be neutral at all periods from the time of shipment, without intermission, to the arrival and subsequent sale in the port of the enemy. (The Atlas, 3 Rob. 299. The Sally, 4 Rob. note (a).) And if it be hostile at the time of shipment, it is, (as has been already stated,) a universal rule to condemn it, although the owner has become a friend or subject.(The Boedes Lust, 5 Rob. 233. \nIN this connexion we might treat of the principles of international law respecting blockade, contraband of war, (vide ante, Vol. I. p. 38, 9. note (i), p. 394, note (m),) engagements in the coasting and colonial trade of an enemy, (vide ante, Vol. I. p. 507. Appendix, note 3.) the right of search, the effect of resistance or rescue of neutral ships, and the circumstances of unneutral conduct, which are visited with a forfeiture of the ship or cargo, or both. These topics would lead us into a very enlarged inquiry, incompatible with the object of this summary sketch; but they deserve the attention of all students  of the law of prize, and it is to be hoped that some eminent jurist will, hereafter, examine them with a diligence and learning proportioned to their importance. It may, however, be useful here to consider how far the illegal acts of the master bind the interests of the owner of the ship or cargo. \nIt is a general principle that the act of the master at all events binds the owner of the ship, as much as if the act were committed by himself. (The Vrow Judith, 1 Rob. 150.) If, therefore, the master deviate into a blockaded port, the owner is bound by the act, and is not permitted to aver his ignorance of the act, or that the master acted against his orders. (The Adonis, 5 Rob. 256.) And the same principle is applied to the case of carrying goods contraband of war. (The Imina, 3 Rob 167.) But Grotius, (De J.B. et P. lib. 3. ch. 6. sec. 6.) Loccenius, De Jur. Mar. lib 2. ch. 4., no. 12.) Pothier, (De Propriete, no. 103.) and Bynkershoek, (Q. J. Pub. lib. 1. ch. 12. p. 97., Du Ponceau's ed) all contend for a favourable distinction where the owner is ignorant of the fact of unlawful goods being on board. They are, however, contradicted by Valin, (Sur. l'Ord. tom. 2. p. 253.) and Emerigon,  (Des Assurances, tom. 1. p. 449.,) whose doctrine is followed in the practice of prize courts. The law, indeed, is established that the principal is answerable for the acts of his agent, (and the master is the accredited agent of the ship owner,) not only civilly but penally to the amount of the property entrusted to his care. (The Mars, 6 Rob. 79. 87.) It would be impossible for a court of prize to affect the proprietor in any other way: and, whatever the hardship may be, it is very much softened by recollecting that if he has sustained any injury by the fraudulent and unauthorized acts of his agent he will be entitled to his remedy against him. (The Mars, 6 Rob. 79. 87.) But the act of the master does not, in general, bind the owner of the cargo, unless he be owner of the ship, or conusant of the intended violation of law, or the master be his agent. (The Vrow Judith, 1 Rob. 150. The Imina, 3 Rob. 169. The Rosalie and Betty, 2 Rob. 343. 351. The Alexander, 4 Rob. 93. The Elsebe, 5 Rob. 173.) In cases of blockade the deviation into the blockaded port is presumed to be in the service of the cargo, and, therefore, the owner is bound by it, unless where there was no notice of the  blockade at the time the ship sailed. (The Alexander, 4 Rob. 93. The Shepherdess, 5 Rob. 256.) And if the master at the time of sailing put his ship under convoy, whose instructions he is presumed to know, the act is illegal, and binds both the ship and cargo. (The Elsebe, 5 Rob. 173.) It is not considered like the case of an unforseen emergency happening to a ship at sea, where the fact itself proves the owners to be ignorant and innocent, and where the court has held that being proved innocent by the very circumstances of the case, the owners of the cargo should not be bound by the mere principle of law, which imposes on the employer a responsibility for the acts of his agent. On the contrary, it is a matter done antecedently to the voyage, and must, therefore, be presumed to be done on communication with the owners, and with their consent; the effect of this presumption is such that it cannot be permitted to be averred against, inasmuch as all the evidence must come from the suspected parties themselves, without a possibility of meeting it, however prepared. The court, therefore, applies the strict principle of law, and holds as it does in blockade cases of that description,  that the master must be taken to be the anthorized agent of the cargo, and that if he has exceeded his authority it is barratry, for which he is personally answerable, and for which the owner must look to him for indemnification. (The Elsebe, 5 Rob. 173. 175.) Whether a like principle ought not to be applied to the owner of the cargo in cases where the ship originally sails on the voyage under an enemy's license has not been decided. The point was made in the supreme court in a recent case; but knowledge being brought home to the actual agent of the owners of the cargo, it became unnecessary to decide the more general principle. (The Hiram, ante, Vol. I., p. 440.) There are many other cases in which the act of the master will bind the owner of the cargo as well as the ship; such are resistance of the right of search, suppressing or fraudulently destroying the ship's papers, rescue by the neutral crew after capture, &c. (The Elsebe, 5 Rob. 173. The Dispatch, 3 Rob. 279. The Nereide, 9 Cranch, 388. 451.) But though the act of a neutral master in resisting search binds both ship and cargo, yet it has been solemnly settled by the supreme court that the resistance of a belligerant master  does not bind a neutral shipment, unless the proprietor has co-operated in the resistence. ( The Nereide, 9 Cranch, 388.) In a very recent case, however, Sir W. Scott has asserted the contrary doctrine. (The Fanny, 1 Dodson, 443.) But the act of the agent or consignee of the cargo, whether he be the master or not, is conclusive upon the owner of the cargo. (The Vrow Judith, 1 Rob. 150.) And the act of a general agent of the cargo in covering the enemy's property in the same shipment with his principal's property affects the whole with condemnation, although the principal had no knowledge of the illegal act. (The St. Nicholas, ante, Vol. I. p. 417. The Phoenix Ins. Co. v. Pratt, 2 Binney, 308.) And the same principle is applied in the case of simulated papers; for the carrying of simulated papers is an efficient cause of condemnation. (Oswell v. Vigne, 15 East, 70.) But in peculiar circumstances the act of an agent of the cargo will be liberally construed in favour of his principal. As if the agent be a belligerant, and has received orders to purchase goods before the war or before a blockade, his acts in making the shipment during a blockade are not binding on his principal,  unless he had had an opportunity to countermand the orders, and neglected it; for the agent in such cases may have a personal interest in exporting the goods. (The Neptunus, 1 Rob. 173. Cases cited in the Hoop, 1 Rob. 196. The Dankbaarheit, 1 Dodson, 183.) But the act of the master will not bind even the owner of the ship unless it be in cases within the scope of his ordinary authority. If, therefore, the master of a non-commissioned merchant ship make a capture, the owner is not responsible in damages, if it turn out to be illegal. (Bynk. Q.J. Pub. lib. 1. ch. 19. Du Ponceau's ed. p. 147. 153.) \nIt frequently turns out, on examination of the claims and evidence in the prize court, that the case is a mere case of recapture; and questions arise, whether the original belligerant owner is entitled to restitution or not, and if so entitled, what is the compensation to be allowed by way of salvage? Bynkershoek asserts, that by the general maritime law, if, after capture, the ship and cargo be carried, infra proesidia, of the enemy, or of his ally, or of a neutral, the title of the original belligerant proprietor is completely gone, and is not revived by a recapture. (Q.J, Pub. L.  1. ch. 5, Du Ponceau's ed. p. 36.) And in this he stands supported by learned authorities. (The Ceylon, 1 Dodson, 105. L'Actif, 1 Dodson, 185. But see Martens on Recaptures, ch. 3. p. 107.) In most of the states of Europe municipal regulations have been made, which settle the rights of their own subjects. (Bynk. ubi supra. Valin Des Prises, ch. 6. p. 84. Azuni, part 2. ch. 4. Martens on Recaptures, ch. 3. sec. 2. p. 146. The Adeline, 9 Cranch, 244. 288.) 16 And in England the right of postliminy is by statute as between subjects preserved forever, except where the vessel, after capture, has been fitted out by the enemy for war; so that the original owner may, in all other cases, claim restitution upon the payment of a stipulated salvage. (Horne's Compend. ch. 4. p. 34. Marshall on Ins. b. 1. ch. 12. s. 8. The Sedulous, 1 Dodson, 253.) In cases, however, not governed by municipal regulations, although all nations agree that to change the property by capture a firm and secure possession is necessary, yet the practice of nations is so various that it seems difficult to collect a general rule, as to what constitutes such firm and secure possession, which might properly be asserted  to be the law of nations. (The Santa Cruz, 1 Rob. 49. L'Actif, 1 Dodson, 185. The Ceylon, 1 Dodson, 105.) The rule of bringing infra praesidia, or, in proper cases, the rule of pernoctation, or twenty-four hours, possession, seems generally recognized by the most eminent jurists on the continent of Europe. (The Ceylon, 1 Dodson, 105. L'Actif, 1 Dodson, 185. See the Santa Cruz, 1 Rob. 50); 17 and it appears to have been anciently the doctrine of the British law. (Ib.) According, however, to the present law in Great Britain, property captured is not deemed to be changed so as to bar the owner in favour of a vendee or recaptor, till there has been a sentence of condemnation; and therefore, until that period, the title of the original owner is not devested, and he is entitled to restitution, in the hands of whoever he may find the property. (Le Caux v. Eden, Doug 613. 616. Goss v. Withers, 2 Burr, 694. The Flad Oyen, 1 Rob. 134. The Santa Cruz, 1 Rob. 49. The Fanny and Elmira, 1 Edw. 117. The Ceylon, 1 Dodson, 105. L'Actif, 1 Dodson, 185.) If such sentence of condemnation is passed, it is a sufficient title to a vendee; (The Purissima Conception, 6 Rob. 45. The Victoria, 1 Edw.  97.;) and would also have entitled a recaptor to condemnation of the property, if the statute had not stepped in, and, as to British subjects, revived the jus postliminii of the original owner, on payment of salvage. As to the interests of British subjects, a condemnation by an incompetent court is a mere nullity; (The Flad Oyen, 1 Rob. 134.;) though, as to the interests of other parties, the British prize courts will not inquire into the sufficiency of the sentence. (The Cosmopolite, 3 Rob. 333.) A condemnation by an enemy's consul in a neutral port is deemed invalid. (The Flad Oyen, 1 Rob. 134.) But a condemnation of a prize ship, while lying in a neutral port, by a regular court of admiralty in the hostile country, is clearly valid. (The Henrick and Maria, 4 Rob. 43. The Christopher, 2 Rob. 207. The Victoria, 1 Edw. 97. Hudson v. Guestier, 4 Cranch, 293. S.C., 6 Cranch, 281. The Arabella and Madeira, 2 Gallis.) A condemnation originally defective from the incompetency of the court, may be made good by the valid decree of an appellate court. (The Falcon, 6 Rob. 194.) And a title, originally defective, being acquired under the sentence of an incompetent court, is cured by an  intervening peace, which has the effect of quieting all titles of possession arising from the war. (The Schoone Sophie, 6 Rob. 138.) Where a party has purchased a captured ship, under an invalid title, but which was not notoriously bad, the court on decreeing restitution to the original owner will allow the party for any amelioration beyond the ordinary repairs, but not for ordinary repairs. (The Kierlighett, 3 Rob. 96. The Perseverance, 2 Rob. 239. The Nostra de Conceicas, 5 Rob. 294.) And where a ship has been captured and carried into a hostile port, and is afterwards sold to a neutral, a presumption arises that she has been regularly condemned, and the proof of the contrary rests on the claimant, and not the purchaser. (The Countess of Lauderdale, 4 Rob. 283.) \nIn the United States cases of recapture have been the object of several legislative provisions, which, as far as they apply, supersede all discussions upon the principles of general law. The act of Congress of the 3d March, 1800, ch. 14. (new edit. ch. 168.) directs, that in cases of recaptures of vessels or goods belonging to persons resident within or under the protection of the United States, the same not having been  condemned as prize by competent authority before the recapture, shall be restored on payment of salvage, of one eighth of the value if recaptured by a public ship, and one sixth if recaptured by a private ship; and if the recaptured vessel shall appear to have been set forth and armed as a vessel of war before such capture, or afterwards, and before the recapture, then the salvage to be one moiety of the value. If the recaptured vessel belong to the government and be unarmed, the salvage is to be one sixth if recaptured by a private ship, and one twelfth if recaptured by a public ship; if armed, then the salvage to be one moiety if recaptured by a public ship. In respect to public armed ships, the cargo pays the same rate of salvage as the vessel by the express words of the act; but in respect to private ships, the rate of salvage (by some probable omission in the act) is the same on the cargo, whether the vessel be armed or unarmed. ( The Adeline, 9 Cranch, 244.) \n What constitutes a setting forth as a vessel of war within the act has not been settled by any adjudications in the United States; but the same question has been decided by the British prize courts, in cases arising under a similar clause in the British prize acts, which, indeed, seems recognised as a part of their common law of prize. (The Ceylon, 1 Dodson, 105. 119.) And it has been there settled that where a ship was originally armed for the slave trade, and after capture an additional number of men were put on board, but there was no commission of war, and no additional arming, it was not a setting forth as a vessel of war under the prize act. (The Horatio, 6 Rob. 320.) But a commission of war is decisive if there be guns on board. (The Nostra Signora del Rosario, 3 Rob. 10. The Ceylon, 1 Dodson, 105.) And where the vessel has, after the capture, been fitted out as a privateer, it is conclusive against her, although when recaptured she is navigating as a mere merchant ship; for where the former character of a captured vessel had been obliterated by her conversion into a ship of war, the legislature meant to look no farther; but considered the title of the former owner forever  extinguished. (L'Actif, 1 Dodson, 185.) Where it appeared that the vessel had been engaged in the military service of the enemy under the appointmment of the minister of marine, it was held a sufficient proof of a setting forth as a vessel of war. (The Santa Brigada, 3 Rob. 56.) So, where she is armed, and is employed in the public military service of the enemy by those who have competent authority so to employ her, although she be not regularly commissioned. (The Ceylon, 1 Dodson, 105.) But the mere employment in the military service of the enemy is not a sufficient setting forth for war; but if there be a fair semblance of authority in the person directing the vessel to be so employed, and nothing upon the face of the proceedings to invalidate it, the court will presume that he is duly authorized; and the commander of a single ship may be presumed to be vested with this authority as a commander of a squadron. (The Georgiana, 1 Dodson, 397.) The valuation of the property, when restored under the acts respecting recapture, is to be made upon its value at the place of restitution, and not of recapture. ( The Progress, 1 Edw. 210. 222.) \nIn respect to recaptures of the ships and  cargoes of allies or co-belligerants, from the hands of a common enemy, the general rule is to apply the principle of reciprocity; and if they, under like circumstances, restore on salvage, or condemn generally, to deal out to them the same measure of reciprocal justice. (The Santa Cruz, 1 Rob. 50.) 18 If there should exist a country having no rule on the subject, then the recapturing country applies its own rule as to its own subjects to the case, and rests on the presumption that the same rule will be administered in the future practice of the other party. (The Santa Cruz, 1 Rob. 50. The San Francisco, 1 Edw. 179.) The act of Congress of the 3d March, 1800, ch. 14. adopts the same regulation. ( The Adeline, 9 Cranch, 244.) \nSalvage is not, in general, allowed on the recapture of neutral property, unless there be danger of condemnation, or such unjustificable conduct on the part of the government of the captors, as to bring the property into jeopardy. (The War Onskan, 2 Rob. 299. The Eleonora Catharina, 4 Rob. 156. The Carlotta, 5 Rob. 54. The Huntress, 6 Rob. 104. The Acteon, 1 Edw. 254. The Sansom, 6 Rob. 410. Talbot v.  Seeman, 4 Dall. 34. S.C. 1 Cranch, 1.) 19 But even if in such a case of recapture the recaptors have entitled themselves to salvage, they may forfeit the claim by the irregularity of their conduct. (The Barbara, 3 Rob. 171.) \nIt is no objection to an allowance of salvage on a recapture, that it was made by a non-commissioned vessel; for no letters of marque are necessary for this purpose, nor is a recapture at all made under the authority of prize. It is the duty of every citizen to assist his fellow citizens in war, and to retake their property out of the possession of the enemy; and no commission is necessary to give a person so employed a title to the reward, which the law allots to that meritorious act of duty. (The Helen, 3 Rob. 224.) And if a convoying ship actually recapture one of her convoy, which has been  previously captured by the enemy, it entitles her to salvage. (The Wight, 6 Rob. 315.) But a mere rescue of a ship associated in the same common enterprise gives no right to salvage. ( The Belle, 1 Edw. 66.) \nTo entitle a party to salvage, as upon a recapture, there must have been an actual or constructive capture; for military salvage will not be allowed in any cases where the property has not been actually rescued from the enemy. (The Franklin, 4 Rob. 147.) But it is not necessary that the enemy should have actual possession; it is sufficient if the property is completely under the dominion of the enemy. (The Edward & Mary, 3 Rob. 305. The Pensamento Felix, 1 Edw. 116.) If, however, a vessel be captured going in distress into an enemy's port, and is thereby saved, it is merely a case of civil and not of military salvage. (The Franklin. 4 Rob. 147.) But to constitute a recapture, it is not necessary that the recaptors should have a bodily and actual possession; it is sufficient if the prize be actually rescued from the grasp of the hostile captor. (The Edward and Mary, 3 Rob 305.) \nWhere a hostile ship is captured, and afterwards is recaptured by the enemy, and is again recaptured  from the enemy, the original captors are not entitled to restitution on paying salvage, but the last captors are entitled to all the rights of prize, for, by the first recapture, the whole right of the original captors is devested. (The Polly, 4 Rob 217. note (a). The Astrea, ante, Vol. I. p. 125.) 20 And where the original captors have abandoned their prize, and she is subsequently captured by other persons, the latter are solely entitled to the property. ( The Lord Nelson, 1 Edw. 79. The Diligentia, 1 Dodson, 404.) But if the abandonment be involuntary, and produced by the terror of superior force, and especially if produced by the act of the second captors, the rights of the original captors are completely revived. (The Mary, ante, p. 123.) And where the enemy has captured a ship, and afterwards deserted her, and she is then recaptured, it is not to be considered as a case of derelict, for the original owner never had the aninus derelinquendi; and, therefore, she is to be restored on payment of salvage: but as it is not strictly a recapture within the prize act, the rate of salvage is discretionary. (The John and Jane, 4 Rob. 216. The Gage, 6 Rob. 273. The Lord Nelson, 1 Edw.  79.) 21 But if the abandonment by the enemy be produced by the terror of hostile force, it is a recapture within the terms of the prize act. (The Gage, 6 Rob. 273) Where the captors abandon their prize, and she is afterwards brought into port by neutral salvors, it has been held that the neutral court has jurisdiction to decree salvage, but cannot restore the property to the original belligerant owners; for by the capture, the captors acquired such a right of property as no neutral nation could justly impugn or destroy, and, consequently, the proceeds (after deducting salvage) belong to the original captors; and neutral nations ought not to inquire into the validity of a capture, as between belligerants. ( The Mary Ford, 3 Dall. 188) But if the captors make a donation of the captured vessel to a neutral crew, the latter are entitled as salvors, but after deducting salvage, the remaining proceeds will be decreed to the original owner. ( The Adventure, 8 Cranch, 227. S. C. ante, Vol. 1. p. 128. note (f.) And it seems to be a general rule liable to but few exceptions, that the rights of capture are completely devested by a hostile recapture, escape, or a voluntary discharge of the captured  vessel. ( Hudson v. Guestier, 4 Cranch, 293. S. C. 6 Cranch, 281. The Diligentia, 1 Dodson, 404.) And the same principle seems applicable to a hostile rescue; but if the rescue be made by a neutral crew of a neutral ship, it may be doubtful how far such an illegal act, which involves the penalty of confiscation, would be held in the courts of the captor's country, to devest his original right in case of a subsequent recapture. \n As to recaptors, though their right to salvage is extinguished by a subsequent hostile recapture and regular sentence of condemnation, carried into execution, devesting the owners of their property, yet, if the vessel be restored upon such recapture, and resumes her voyage, either by an acquittal in court, or a release of the sovereign power, the recaptors are redintegrated in their right of salvage. (The Charlotte Caroline, Dodson, 192.) And recaptors and salvors have a legal interest in the property, which cannot be devested by other subjects without an adjudication in a competent court; and it is not for the government's ships or officers, or for other persons, upon the ground of superior authority, to dispossess them without cause. (The Blendenhall, 1 Dodson, 414.) \nIn all cases of salvage, where the rate is not fixed by positive law, it is in the discretion of the court, as well upon recaptures as in other cases. ( Talbot v. Seeman, 1 Cranch, 1. The Apollo, 3 Rob. 308. Bynk. Q.J. Pub. lib. 1. ch. 5. Du Ponceau's ed. p. 36. 41, 42.) And where, upon a recapture, the parties have entitled themselves to a military salvage under the prize acts, the court may also award them, in  addition, a civil salvage, if they have subsequently rendered services by succouring the vessel in distress from perils of the seas. (The Louisa, 1 Dodson, 317. \nIn the construction of the British prize acts, (and similar questions may arise under our own act respecting recaptures,) it has been held that a revenue cutter, liaving a letter of marque, is to be deemed a private ship of war, and entitled to a salvage of one-sixth.(The Helen, 3 Rob. 224. The Sedulous, 1 Dodson, 253.) But the British revenue cutters belonging to private individuals, although fitted out, manned, and armed at the expense of the government, it may be thought doubtful whether this authority applies in the United States, where the revenue cutters are generally built and owned, as well as equipped, manned, and armed by the government. But a store-ship, armed at the public expense, and commanded by commissioned officers, is clearly to be deemed a public armed ship. (The Sedulous, 1 Dodson, 253.) \nIn the progres of the cause an unlivery of the cargo often becomes necessary either to ascertain its nature and quality; ( The Liverpool Packet, 1 Gallis. 513. Marriott's Form. 229. The Carl Walter, 4 Rob. 207. The  Richmond, 5 Rob. 325. The Jonge Margaretha, 1 Rob. 189. The Oster Risoer, 4 Rob. 199.;) or more effectually to preserve it from injury and pillage; (Marriott's Form. 323.;) or because the ship stands in a predicament altogether distinct from that of the cargo. (The Hoffnung, 6 Rob. 231. The Prosper, Edw. 72. Marriott's Form. 224.) In all these, and other proper cases, the prize court will, upon proper application, decree an unlivery. Upon ordering an unlivery, a warrant or commission of unlivery is directed to some competent person, and usually to the marshal to unlade the cargo, and to make a true and perfect inventory thereof. (Marriott's Form. 224.) At the same time a warrant of commission of appraisement is usually directed to some competent persons, who are to reduce into writing a true and perfect inventory of the cargo, and upon oath to appraise the same according to its true value. In England, this commission is sometimes directed to a person who is authorized to choose and swear the appraisers and himself. (Marriott's Form. 227.) But in the United States the general practice is for the courts to appoint the appraisers in the first instance. And where it becomes necessary  or proper to unlade the cargo for inspection of its nature or quality, a commission of inspection is issued, directed to some competent persons in like manner to return an inventory thereof, with a certificate of the particulars, names, descriptions, and sortments of the goods, together with their several marks and numbers, and the nature, use, quantities and qualities thereof. (Marriott's Form. 229.) 22 The court may also, in its discretion, order the ship or cargo, or both, to be removed to another place or port; for having the custody of the thing, it is bound to use all reasonable precautions to preserve it, and to consult the best interests of all parties; and in such case a commission of removal is issued, which is usually directed to the marshal; but the court may direct it to any other person. (Marriott's Form. 234. The Rendsborg, 6 Rob. 142. The Sacra Familia, 5 Rob. 360.) \n An unlivery of the cargo is considered as done for the benefit of all parties, and, therefore, the expense is generally borne by the party ultimately prevailing. If the captors apply for an unlivery, and the property is condemned, the expense falls on the captors; but if restitution be awarded, the court, in its discretion, usually makes the expense a charge on the cargo.(The Industrie, 5 Rob. 88.) 23 \nAfter unlivery and appraisement, the court sometimes decrees a sale or delivery on bail of the property to the captors or the claimants. Where a sale is ordered, which is usually done where the ship and cargo are in a perishing condition, or liable to deterioration pending the process. ( The St. Lawrence, 1 Gallis. 467. The Frances, 1 Gallis. 451. Jennings v. Carson, 4 Cranch,  2. Stoddart v. Read, 2 Dall. 40. Marriott's Form. 237. 318. The Copenhagen, 3 Rob. 178.) In England a commission of appraisement and sale usually issues to some competent persons jointly and severally to reduce into writing a true inventory of the goods, and to choose appraisers, who are to appraise the same on oath; and after appraisement, the commissioners are to expose the same to public sale, and bring the proceeds into the registry of the court. (Marriott's Form. 237. 318.) And in England it is the regular practice of the court, that one of the commissioners should be named by the claimant. (The Carl Walter, 4 Rob. 207. 211.) And in the United States a sale is sometimes ordered without a previous appraisement; or, if an appraisement be ordered, the appraisers are always named by the court itself. In case of an appraisement and sale the expenses of taking out the commission, &c., are, in the first instance, borne by the party applying for the sale, and ultimately as the court may direct; (The Carl Walter, 4 Rob. 207.;) and such sale is usually, in England, made by the marshal; but it seems that the court may direct it to be made by any other person. (The Rendsborg, 6 Rob.  142.) In the United States, the sale is invariably made by the marshal; and it would seem highly proper in all cases to have a previous inventory and appraisement with a view to check any attempt of fraud, and to establish the proper responsibility of the officers of the court in cases of negligent custody. This is the regular practice of the prize court, and the most obvious reasons of public policy require a strict adherence to it. \nThe subject of delivery, either of the property itself, or of its proceeds, has been already partially discussed in the former note, and to the authorities there referred to may be added the following. (The Rendsborg, 6 Rob. 142. 144. The Frances, 1 Gullis. 451. The Diana, 2 Gallis. 93) Sometimes the property is delivered on bail to return the same, or the full value, to answer the decree; and in such case, the court have a right to inquire what is the full value, and to decree accordingly. ( Brymer v. Atkins, 1 H. Bl. 264.) And if the bail security be taken by way of recognisance, (which is irregular,) and not by way of stipulation, still the court may enforce it as a stipulation. ( Brymer v. Atkins, 1 H. Bl 164. The Alligator, 1 Gallis. 14b.) Upon  such a delivery on bail, the sureties are not responsible beyond the sum in which they become bound. ( Smart v. Wolff, 3 T. Rep. 323.) But the principal may be made to respond the full value of the property. In ordinary cases, however, the property is delivered on bail at an appraised value; and in such cases, the principal and sureties are bound to the stipulated value, but not farther. If, therefore, there be a delivery on bail at an admitted value, the court will not listen to an application to diminish the amount to the proceeds of a subsequent sale, but will hold the parties to the appraised or admitted value. (The Betsey, 5 Rob. 295. and note (a) 296.) In case of a delivery on bail, the expenses of the delivery are to be borne by the delivering party, unless it is otberwise directed by the court. (The Rendsborg, 6 Rob. 142.) But generally the court directs the expenses of the application to be borne by the party who applies for the delivery on bail. And all expenses after the delivery, are exclusively borne by the party receiving the property. (5 Rob. 295. note (a).) Bail bonds or securities to answer adjudication are not discharged by lapse of time; but may, at any distance  of time, be enforced by the court; but after a great length of time the court will, in its discretion, refuse a monition or attachment to enforce the bond, unless some reasonable ground for the delay is established. (The Vreede, 1 Dodson, 1.) Nor are these bonds considered as mere personal securities given to the individual captors, although taken in their names; they are considered as securities given to the court to abide the adjudication of all events at the time impending before it. The court is not in the habit of considering bonds precisely in the same limited way as they are viewed by the courts of common law. In those courts, they are very properly considered as mere personal securities, for the benefit of those parties to whom they are given. In prize courts they are subject to more enlarged considerations; they are there regarded as pledges or substitutes for the thing itself, in all points fairly in adjudication before the court. If, therefore, a bond be given to the actual captors to answer the adjudication of the property, which should, from the locality of the capture, or from other circumstances, be condemned to the government, the bail would in such case be answerable,  in the admiralty, to the government. (The Neil Elwin, 1 Dodson, 50.) But if the property, at the time of capture, was neutral, and delivered on bail pending the proceedings, and hostilities subsequently intervene with the neutral country, and, in consequence thereof, the property is condemned to the government, it seems that the court is not in the habit of enforcing the bail bond in such cases, because the event was not originally in the contemplation of the parties at the time they entered into the security. (The Neil Elwin, 1 Dodson, 50.) Whether this doctrine would be sustained in the United States, is a question upon which there is no decision to guide the judgment; but certainly much argument may be used against the asserted exemption; for the bail bond being a substitute for the property itself, there does not seem any very conclusive reason why it should not be subject to all the events which would have affected the property, if still in the custody of the court. \nIt frequently happens, that enemies' goods are found on board of neutral ships; and conversely, that neutral goods are found on board an enemy's ship. In these cases, questions often occur as to the right of the  parties to freight, expenses, &c. And first in respect to neutral ships. In general, where enemies' goods are captured in a neutral ship, the captors take cum onere, and if the conduct of the neutral has been perfectly fair and impartial, it is the practice of the prize court to allow him his full freight, in the same manner as if the original voyage had been performed. (The Hoop, 1 Rob. 196. 219. The Antonia Johanna, ante, Vol. I. p. 159.) And in like manner to allow him his expenses. (The Hoop, 1 Rob. 196. The Bremen Flugge, 4 Rob. 90. The Der Mohr, 4 Rob. 314. Smart v. Wolff, 3 T. Rep. 323. Vattel, liv. 3. ch. 7. sec. 115. The Consolato del Mare, ch. 273. Sir W. Scott and Sir J. Nicholl's letter to Mr. Jay, ubi supra. The Copenhagen, 1 Rob. 289. The Anna Catharina, 6 Rob. 10. Catharina Elizabeth, Acton, 309. The Fortuna, Edw. 56.) The freight allowed is not, however, necessarily the rate agreed on by the parties, if it be inflamed by extraordinary circumstances; but a reasonable freight only will, in such cases, be allowed. (The Twilling Riget, 5 Rob. 82.) And where the goods have been once unlivered by order of court, the whole freight for the voyage is due, and the owner  of the goods, even in case of restitution, cannot demand the ship to reload them, and carry them to the original port of destination; for by the separation, the ship is exonerated. (The Hoffnung, 6 Rob. 231. The Prosper, Edm. 72.) But it would be otherwise if there had been no unlivery. (The Copenhagen, 1 Rob. 289.) And the neutral will be allowed his freight where he carries the goods of one belligerant to its enemy, for though such a trade be illegal as to the subjects, it is not so as to neutrals. (The Hoop, 1 Rob. 196. 219.) So on a voyage from the port of one enemy to the port of another enemy. (The Wilhelmina, 2 Rob. 210. note.) But if the neutral has conducted himself fraudulently or unfairly, or in violation of belligerant rights, he will not be allowed freight or expenses, and in flagrant cases, will be visited with confiscation, even of the ship itself. And he is never allowed freight where he has used false papers. (The Atlas, 3 Rob. 299. 304. note. Sir W. Scott and Sir J. Nicholl's letter to Mr. Jay, ubi supra.); nor upon the carriage of contraband goods; (Ib. Bynk. Q.J. Pub., Duponceau's ed. 81. The Sarah Christina, 1 Rob. 237. The Mercurius, 1 Rob. 288. The Emanuel,  1 Rob. 286. The Neptunus, 3 Rob. 108. The Neutralitet, 3 Rob. 295. The Oster Risoer, 4 Rob. 199. The Commercen, ante, Vol. I. p. 382.); nor where there has been a spoliation of papers; (The Rising Sun, 2 Rob. 104. The Madonna del Burso, 4 Rob. 169. 183.); nor where the cause of capture was the ship and not the cargo. ( The Fortuna, 1 Edw. 56.) But where part of the goods are condemned as contraband and part restored, after unlivery of the cargo, freight may be decreed as a charge upon the part restored. (The Oster Risoer, 4 Rob. 199.) If the goods are unlivered under a hostile embargo upon neutral ships, they are discharged of the lien of the freight; and if freight be decreed, it can only be against the original consignees or freighters, and not against a prior purchaser, who has received them on bail. (The Theresa Bonita, 4 Rob. 236. \nWhen a decree is made that the freight shall be a charge on the cargo, application must be made to the court for the sale of so much as is necessary for this purpose. (The Vrow Margaretha, 4 Rob. 304. note.) In general, where a ship and cargo are restored, with a decree that the freight shall be a charge on the cargo, if the proceeds of the cargo  are not sufficient to pay the freight, the captors are not responsible for the deficiency. (The Haabet, 4 Rob. 302.) But although the capture be right, yet if afterwards the cargo is lost by the negligence of the captors, and the freight be decreed a charge on the cargo, the captors are responsible to pay it. (The Der Mohr, 4'Rob. 314.) Where the freight of the neutral and the expenses of the captors are both decreed to be a charge on the cargo, and the proceeds are insufficient to discharge both, priority of payment of the freight is, in ordinary cases, allowed by the court, as a lien that takes place of all others. (The Bremen Flugge, 4 Rob. 90.) \nIn the next place, as to the allowance of freight to the captors. This may happen when the ship is hostile, and the cargo, or a part thereof, is neutral. The general rule is, that if neutral goods are found on board of a hostile ship, the captors are not entitled to freight therefor, unless they carry the goods to the port of destination. (Bynk. Q.J. Pub. 1. 1. ch. 13. Du Ponceau's ed. p. 105. The Diana, 5 Rob. 67. The Fortuna, 1 Edw. 56.) And the rule is applied notwithstanding there may have been a sale of the goods beneficial  to the owners.(The Vrow Anna Catharina, 6 Rob. 269. The Fortuna, 1 Edw. 56.) But there are exceptions to the rule itself; for if the captors bring the cargo to the country where the claimants ultimately designed to send it, but were compelled to take a circuitous route under existing circumstances, the captors are entitled to freight, notwithstanding the ship was actually destined to another country, there to land it. (The Diana, 5 Rob. 67.) So, if brought to the same country, but not to the port of actual destination. (The Vrow Henrietta, 5 Rob. 75. note. But see the Wilhelmina Eleonora, 3 Rob. 234.) So, where the goods are brought to the country where the proceeds were ultimately destined, and would have been brought directly, but for a prohibition of municipal law. ( The Ann Green, 1 Gallis. 274.) Where freight is decreed to the captors, it will be paid by the court out of the cargo or its proceeds, if yet remaining in the admiralty. (The Fortuna, 4 Rob. 278.) And under particular circumstances, application may be made to the court to decree the sale of so much of the cargo as may be necessary to be sold for the discharge of freight. (4 Rob. 304. note.) And where freight is  allowed to the captors, if they have done any damage to the cargo, the amount may be deducted by way of set off or compensation. (The Fortuna, 4 Rob. 278.) \nAs to the allowance of costs and expenses. In cases where farther proof is directed, costs and expenses are never allowed to the claimant. (The Einigheden, 1 Rob. 323.) Nor where the neutrality of the property does not appear, by the papers on board and the preparatory evidence.(Sir W. Scott and Sir. J. Nicholl's letter to Mr. Jay ubi supra. Opinion of M. Portalis in The Statira, 2 Cranch, 102. note (a);) nor where papers are spoliated or thrown overboard, unless the act be produced by the captors' misconduct, as by firing under false colours; (The Peacock, 4 Rob. 185.;) nor where the master or crew, upon the preparatory examinations, grossly prevaricate; (Ib.;) nor where any part of the cargo is condemned; (The William. 6 Rob. 316.;) nor where the ship comes from a blockaded port; (The Frederick Malke, 1 Rob. 36. The Betsey, 1 Rob. 93. The Vrow Judith, 1 Rob. 150.;) nor if the ship be restored by consent, without reserving the question of costs and expenses. (The Maria Powlona, 6 Rob. 236.) But in all these cases it is in  the discretion of the court to allow the captors their costs and expenses. (Sir W. Scott and Sir J. Nicholl's letter to Mr. Jay, ubi supra.) And, in general, wherever the captors are justified in the capture, their costs and expenses are decreed to them by the court in case of restitution of property. (The Imina, 3 Rob. 167. The Principe, 1 Edw. 70.) Therefore, they are allowed where the original destination was to a blockaded port, although changed on hearing of the blockade; (The Imina, 3 Rob. 167;) where ships, even of our own country, are captured sailing under false papers; (The Sarah, 3 Rob. 330.;) where the nature of the cargo is ambiguous as to contraband; (The Twende Brodre, 4 Rob. 33. The Gute Geselschaft Michael, 4 Rob. 94. The Charistina Maria, 4 Rob. 166.;) and, generally, in all cases of false papers; (The Nostra Signora de Piedade Nova Aurora, 6 Rob. 41.;) and in all cases where farther proof is required. (See the Frances, 1 Gallis. 445. The Apollo, 4 Rob. 158. The Mary, 9 Cranch, 126.) In cases where the captors' expenses are allowed, the expenses intended are such as are necessarily incurred in consequence of the act of capture. (The Catharine and Anna, 4 Rob.  39.) Such are the expenses of the captors' agent. (The Asia Grande, Edw. 45.) But not insurance made by the captors; (The Catharine and Anna, 4 Rob. 39.;) nor expenses of transmitting a cargo from a colony to the mother country. (The Narcissus, 4 Rob. 17.) And property restored to the claimant is not to be charged with any expenses for agency, or for taking care of it, unless made a charge by the court. ( The Asia Grande, 1 Edw. 45.) And the expense of an unlivery or delivery of the property which is restored, is to be borne by the captors or releasing party, and not by the property, unless it is so directed by the court. (The Rendsborg, 6 Rob. 142.) In general, where the property is condemned, the expenses of unlivery and warehousing, &c., fall on the captors; (The Industrie, 5 Rob. 88.;) and where it is restored, the court will apportion them in its discretion, on the captors and en the cargo. (The Industrie, 5 Rob. 88.) \nIn cases of neutral ships, it is usual to allow the master his adventure and personal expenses, if his conduct has been fair and unimpeachable. (The Calypso, 2 Rob. 298. The Anna Catharina, 6 Rob. 10.) But where the master and crew prevaricate in their evidence,  their adventures are never restored; (The Anna Catharina, 4 Rob. 120.;) nor where the ship is engaged in a fraudulent trade. (The Christiansberg, 6 Rob. 376.) \nClaims of joint capture are often interposed in prize causes; and though it is not usual for joint captors to assert their interest until after a final decree of condemnation, (Per Croke, J., in the Herkimer, 2 Hall's Law Journ. 133. 146. S.C. Stewart, 128. 144. Home v. Camden, 2 H. Bl. 533.,) yet, as it may be asserted with legal propriety at any stage of the cause, it may be as well here to examine the doctrines which have been applied to this subject. \nIn respect to privateers, it is a general principle, that no right to share as joint captors accrues merely by being in sight at the time when the prize is captured. There must be actual intimidation, or actual or constructive assistance. (Bynk. Q.J. Pub. lib. 1. ch. 18., and a learned note of Mr. Duponceau, in his translation, p. 144. Talbot v. Three Brigs, 1 Hall's Lare Journ. 266. S.C. 1 Dall. 95. Martens on Capt. sec. 32. p. 91. The Santa Brigada, 3 Rob. 52. The Forsighied, 311. L'Amitie, 6 Rob. 261.) 24 And the same principle is applied to captures in sight of fortresses,  and of land forces, and armies, for they do not share unless there be actual co-operation. (Bynk. Q.J. Pub. lib. 1. ch. 18., Duponceau's ed., p. 146. The Dordrecht, 2 Rob. 55.) And in such cases, the assistance ought to be material in order to entitle the parties to share as joint captors. (The Dordrecht, 2 Rob. 65.) The reason of this rule in relation to privateers, is, that the being in sight is not sufficient with respect to them to raise the presumption of co-operation in the capture. They clothe themselves with commissions of war from views of private advantage only. They are not bound to put their commissions in use on every discovery of an enemy. And, therefore, the court does not presume in their favour, from the mere circumstance of their being in sight, that they were there with a design of contributing assistance, and engaging in the contest. There must be as to them the animus cafiendi demonstrated by some overt act; by some variation of conduct, which would not have taken place, but with reference to that particular object, and if the intention of acting against the enemy had not been entertained. (L'Amitie, 6 Rob. 261. La Flore, 5 Rob. 268.) Formerly the principle  of constructive assistance was carried a great way; but the later inclination of courts has been rather to restrain than to extend the rule. (The Vryheid, 2 Rob. 16.The Odin, 4 Rob. 318. La Furieuse, Stewart, 177.) And where no actual assistance is alleged, the presumption of law leans in favour of the actual captors. (The Robert, 3 Rob. 194.) But even with respect to privateers, it is not necessary that a joint chaser should actually board a prize; it will be enough if there is the animus persequendi sufficiently indicated by the conduct of the vessel. The act of chasing, therefore, if continued for any length of time, and not abandoned at the time of capture, will be sufficient to found a title of joint capture. (L'Amitie, 6 Rob. 261.) But if the chase be discontinued, it is otherwise. (Ib. The Waaksamheid, 3 Rob. 1.) And if a ship has actually engaged another, and been beaten off, and yet remains in sight about the enemy, with an evident intention of persisting in the contest, and another vessel-then comes up and makes the capture, the first is entitled to share in the capture. (La Virginie, 5 Rob. 124.) \n Public policy has introduced a different rule as to public ships of war; and all such ships being in sight are deemed to be constructively assisting, and, therefore, entitled to share in the capture.(The Dordrecht, 2 Rob. 55. The Robert, 3 Rob. 194. The Forsigheid, 3 Rob. 311. La Flore, 5 Rob. 268. The Bellona, Edw. 63. The Furieuse, Stewart, 177. The Sparkler, 1 Dodson, 359.) 25 The reason of this distinction is, that public ships are under a constant obligation to attack the enemy wherever seen; and, therefore, from the mere circumstance of being in sight, a presumption is sufficiently raised that they are there animo capiendi. In the case of privateers, the same obligation does not exist; the law, therefore, does not give them the benefit of the same presumption. (La Flore. 5 Rob. 268.) Where the actual captor is a public armed ship, the rule is additionally supported by the obvious policy of promoting harmony in the service. But the rule equally applies where the actual captor is a privateer; (La Flore, 5 Rob. 268.;) though the privateer in the converse case is not entitled to share, from merely being in sight. (The Santa Brigada, 3 Rob. 52.) There are exceptions, however,  to the rule, where the circumstances of the case repel the presumption of the animus capiendi; such is the case where a public ship is in sight, but steering an opposite or different course inconsistent with the notion of an intent to capture. (The Robert, 3 Rob. 194. The Drie Gebroeders, 5 Rob. 339.) But the mere sailing on a different course is not sufficient to defeat a title of joint capture; for it is not necessary that the two ships should pursue the enemy in the same line. If one vessel sail in one direction, and the other in a different direction, with the purpose of capturing, that difference of course would not defeat a unity of purpose, nor destroy the claim of joint capture. (Le Niemen, 1 Dodson, 9.) But if the ship, claiming as joint captor, has changed her course, and discontinued the chase before the capture, the claim is defeated, unless this conduct be occasioned by the fraud or misconduct of the capturing ship; for then the court will let in the claim with a view to punish the fraud or misconduct. (The Waaksamheid, 3 Rob. 1. The Robert, 3 Rob. 194. La Virginie, 5 Rob. 124. The Drie Gebroeders, 5 Rob. 339.) So, if the persons claiming as joint captors, have reconnoitred  the prize, and abandoned all design of capture, they are not entitled to share. (The Lord Middleton, 4 Rob. 153. The Drie Gebroeders, 5 Rob. 339. L'Amitie, 6 Rob. 261.) \nBut even with regard to public ships, cases of constructive assistance in joint capture are not to be extended, and, therefore, the court requires that the ship should be actually in sight. (The Vryheid, 2 Rob. 16. The Odin, 4 Rob. 318. The  Furieuse, Stewart, 177.) Therefore, being in sight a day or two before the capture is not sufficient. It must be at the commencement of the engagement, or chase, or during its continuance. (The Vryheid, 2 Rob. 16.) And being in sight when the enemy was first descried, and being detached before the chase or preparations therefor, is not sufficient. (The Vryheid, 2 Rob. 16.) But it would be otherwise if detached in sight of the enemy at the moment of chase, and under preparation for chase; for there must be some actual contribution of endeavour as well as of general intention. (The Vryheid, 2 Rob. 16.) And it would seem to be very doubtful whether the prize being seen from the mast head would bring the case within the rule of being in sight. (The Robert, 3 Rob. 194.) And a like rule is applied to the capitulation of an island; for to entitle a public ship to share in the capture she must not be detached upon another service, but must be actually in sight at the time. (The Island of Trinidad, 5 Rob. 92.) And no antecedent or subsequent services in the expedition will help the case where the party would not otherwise be entitled to share. (Buenos Ayres, 1 Dondson, 28.) In respect  also to a joint chase, if both ships are in chase without any common co-operation, except such as the two parties acting separately, with a common object in view, might produce, and during the chase night comes on, and the enemy is lost sight of, and the ships still are in pursuit, but one of them cruising merely in search, and from conjecture adopts an erroneous course, and in consequence thereof the prize is captured either by the other, or by a third ship on the next day, out of sight, the ship so erroneously cruising is not entitled to share as a joint captor, for it is a discontinuance of the chase to change a course upon conjecture. (Le Niemen, 1 Dodson, 9. The Financier, 1 Dodson, 61.) Nor will it vary the case that the position or course run by such ship had the effect of throwing the prize into the hands of the other ship, by inducing the prize to alter her own course. (Ib.) It would, indeed, be an extravagant position to admit that every fleet or ship which, either by accident or design, diverts the course of an enemy, and by so doing occasions her capture by a totally distinct force, should be considered as a joint captor. (Le Niemen, 1 Dodson, 9.) It is cetainly true  that darkness preventing sight will not universally exclude from a right to share; not can the rule be laid down universally the other way; for there may not in every case be evidence to show the proximity to the scene of action. Where it can be shown that the asserted joint captor was in sight when the darkness came on, and that it continued steering the same course, by which it was before nearing the prize, and that the prize itself also continued the same course, it amounts almost to demonstration that the ships would have seen, and been seen by each other, at the time of capture, if darkness had not intervened; and, in such case it ought to be let in to the benefit of joint capture. (The Union, 1 Dodson, 346.) But if the chase is lost sight of in the night, and the capture is afterwards made at such a distance that the asserted joint captor would not at the time of capture have been in sight even if it had been day, the claim of joint capture cannot be sustained. Indeed, Sir W. Scott has declared that where ship is lost sight of, in the night, the pursuit of that ship cannot properly be denominated a chase; it is a conjectural pursuit only; it is a feeling about in the dark,  a search and inquiry, but no chase. (The Financier, 1 Dodson, 61.) And where a ship is herself only a constructive captor, it is not a sufficient ground to let in another ship tht she had joined in a previous chase with the constructive captor, and lost sight of the prize in the night. (The Financier, 1 Dodson, 61.) Therefore, in a case where one or two joint chasers were ordered to pick up the boats of the other, and in consequence of the delay occasioned by her obedience to those orders she lost sight of the prize, which was, in the mean time captured by a third ship coming up in the presence of the other, it was held that the ship so out of sight was not entitled to share. (The Financier, 1 Dodson, 61.). A revenue cutter, though having a letter of marque, is not considered in England as a public ship of war entitled to the benefit of the rule of constructive assistance from being in sight. ( The Bellona, 1 Edw. 63.) A conveying ship, notwithstanding her special employment, may be entitled as a joint captor, if by chase or intimidation she aid in the capture, when it does not interfere with convoy duty.(The Waaksamheid, 3 Rob. 1. La Furie, 3 Rob. 9.) In captures made by boats  it is a general rule that the ships to which they belong are entitled to share. (The Anne Maria, 3 Rob. 211. The Odin, 4 Rob. 318.) But if a boat be detached from the ship to which she belongs, and attached to another, the ship only shares to which she is attached at that time; for she must be taken at that time, and in those operations to be acting under the authority and for the benefit of such ship only. (The Melomasne, 5 Rob. 41.) But constructive assistance by boats will not entitle the ships to which they belong to share in the prize, though actual capture by the boats would be sufficient for this purpose; for they are a part of the force of the ship. And in cases of mere constructive assistance the right of participation must be in proportion to the intimidation caused, and cannot go beyond the force actually seen by the enemy. (La Belle Coquette, 1 Dodson, 18. The Odin, 4 Rob. 318. The Nancy, 4 Rob. 327, note (a.)) And it is extremely questionable whether a boat of a ship of war could support a title to share on the mere principle of being in sight. In the case of mere constructive capture, the construction which is laid upon the supposed intimidation of the enemy, and  the encouragement of the friend, from a ship of war being seen or in sight, applies very weakly to the case of a boat, in object that attracts very little notice upon the water, and whose character even if discerned by either of the parties may be totally unknown to both. (The Odin, 4 Rob. 318.) Nor will the facts that the ship to which the boat belongs is in sight lying at anchor in a harbour, entitle the ship to share. (The Odin, 4 Rob. 318. The Nancy, 4 Rob. 327., note (a). La Belle Coquette, 1 Dodson, 18.) \nIn respect to captures made by ships which are associated in the same service, or are engaged in a joint enterprise under the orders of the same superior officer, it is a general rule that they are entitled to share in each other's prizes, made while in such service or joint enterprise. (The Forsigheid, 3 Rob. 311. The Guillaume Tell, Edw. 6. The Empress, 1 Dodson, 368.) Therefore, if one ship of a squadron takes a prize in the night, unknown to the rest, it will entitle the whole fleet to share, although, possibly, the capture may have been made at a distance out of sight of most of the ships of war, even if it had been noonday, for the fleet so associated is considered  as one body, unless detached by orders, or entirely separated by accident; and what is done by one, continuing to compose in fact a part of the fleet, enures to the benefit of all. (The Forsigheid, 3 Rob. 311. S.C. Edw. 124.) Where a fleet is employed in a blockade, the service is considered as joint, and all the ships are entitled to share in all captures, although all the ships have not joined in the chase, and the capture has been made after the chase, at a great distance from the blockaded port. (The Guillaume Tell, Edw. 6. The Forsigheid, Edw. 124.) But if a part of the fleet be detached on a separate service, or if the capture be not within the purposes for which they were associated, then the rest of the fleet, not actually or constructively assisting in the capture, are not entitled to share. (The Forsigheid, 3 Rob. 311.The Nordsten, cited in the Forsigheid, Edw. 124. 127. S.C. 1 Acton, 128. The Island of Trinidad, 5 Rob. 92. The Stella del Norte, 5 Rob. 349.) And this rule applies to all detachments for some distinct and separate purpose, which, though possibly connected with the main service, carries the detached ships out of the scene of the common operations for the  time. (The Forsigheid, 3 Rob 311.) But if they are only sent to look out, and they preserve their connection with the fleet, and maintain their dependence upon it, and keep within signal distance, this is not a detached service. It is more like stretching one of the arms of the fleet without dissolving, in any manner, the connextion between them and the main body. (The Forsigned, 3 Rob. 311.) In respect to transports, mere association in service is not sufficient to entitle them to share as constructive joint captors; but for this purpose they must actually acquire a military character, and must be employed in military operations, and there must be an animus capiendi, while so employed. (The Cape of Good Hope, 2 Rob 274.) It is not sufficient that the enemy may have been inumidated by their presence. Mere intimidation may be produced without any co-operation having been given or intended. if a frigate were going to attack an enemy's vessel, and four or five large merchant ships, unconscious of the transaction, should appear in sight, they might be objects of terror to the enemy, but no one would say that such terror would entitle them to share. Though the fact of terror were  ever so strongly proved, there would not be that co-operation which the law requires to entitle non-commissioned vessels to be considered as joint captors. (Ib.) But if non-commissioned ships chase, animo capiendi, they are entitled to share if the capture be made by their contribution in this service. (The Twee Gesuster, and Le Franc, cited 2 Rob. 284. 285., notes (a), (b).) \nAs to conjunct operations by land and naval forces, how far the former are permitted to share in prizes made by the latter, where no express provision is made by statute, depends upon the circumstances of the case. A mere general co-operation in the same general objects would not be sufficient. (The Stella del Norte 5 Rob. 349.) But an actual co-operation in the particular capture is clearly sufficient. (Ib. The Dordrecht, 2 Rob. 55.) \nIf the fleet of an ally and our own fleet serve together under our commander, who detaches the squadron of the ally, the latter is not entitled to share in captures subsequently made. But if an ally actually co-operates in effecting a capture, he is entilted to share as a joint captor; but the question whether he is a joint captor or not, is a question of which courts of  common law have no jurisdiction, and which belongs exclusively to the admiralty. ( Duckworth v. Tucker, 2 Taunt. 7.) \nAs to the manner in which claims of joint capture are to be asserted. It has been already stated that it is usual not to file such claims before a decree of condemnation; but if they are not filed before a decree ascertaining who are the captors, and who are entitled to share, and especially after a distribution decreed, it is too late to assert the right. (See The Stella del Norte, 5 Rob. 349. Duckworth v. Tucker, 2 Taunt. 7. Home v. Camden, 2 H. Bl. 533.) But if the sentence below be suspended by an appeal, it seems that a joint claim may be interposed upon the appeal. ( Home v. Camden, 2 H. Bl. 533. The Nostra Signora de los Dolores, 1 Acton, 262. The Societe, 9 Cranch, 209.) It is, however, best to interpose such claims at an earlier stage of the proceedings, and before any decree of condemnation has passed in any court. \nA question of joint capture is never permitted to be settled by affidavits. It must be brought forward by a regular allegation, containing a statement of the facts; and if the allegation contain such facts, as, if proved, may entitle the parties  to share, the court direct it to be admitted and filed; and, thereupon, the actual captors are entitled to file a counter allegation; and the cause is then regularly to be sustained by proofs to be taken and established as in other causes, that is to say, by documentary proofs, and the depositions of competent witnesses. (The Urania, 5 Rob. 148. La Virginie, 5 Rob. 124.) If, indeed, upon the statement made in the original allegation, the claim cannot, in point of law, be sustained, the court will not inquire into the facts, but reject the application in limine. (The Waaksamheid, 3 Rob. 1.) The case, however, must be very clear, where this course is adopted. When the claim of joint capture is admitted to proof, the onus probandi lies on the asserted joint captor. (The Union, 1 Dodson, 346.The John, 1 Dodson, 363.) The single evidence of witnesses on board of the claiming ship, though they release their right, is never deemed sufficient to establish the fact of joint capture; it must be corroborated by evidence aliunde, or it will be rejected. (The Fadre-Iandet, 5 Rob. 120. La Flore, 5 Rob. 268. The John, 1 Dodson, 63.) If, at the moment of capture, the capturing ship admits the  fact of joint capture, it is conclusive, unless there be some circumstance invalidating the admission. (The San Jose, 6 Rob. 244.) And if the asserted joint captors expressly renounce all claim to the prize at the time of capture, their claim is entirely waived, though, from subsequent circumstances, they may be disposed to assert it. (The William and Mary, 4 Rob. 381.) \nIn case of joint captures by public ships, the rule as to the proportion in which they are to share, is established generally by statute. This is fixed in the United States by the act of the 22d April, 1800, ch 33., which provides that the capturing ships shall share \"according to the number of men and guns on board each ship in sight.\" In respect to privateers, no statute regulation exists; and by the general rule of the prize law, they are to share in proportion to their relative strength. (Bynk. Q.J Pub. lib. 1. ch. 18., Du Ponceau's ed., p. 164.) This relative strength, is, by the law of Great Britain and the United States, ascertained by the number of men on board of such ship assisting in the capture. (Roberts v. Hartley, Doug. 311. The Despatch, 2 Gallis. 1.) Such, too, is the rule where an ally co-operates  in the capture. ( Duckworth v. Tucker, 2 Taunt. 7.) And the same rule seems applicable to the case of a joint capture by a public ship and a private ship of war; and this, whether the latter be commissioned or not. (The Twee Gesuster, 2 Rob. 284. Le Franc, 2 Rob. 285.) \nUpon the hearing of the proofs, if the case does not require or admit farther proof, the court proceeds to pronounce a sentence of acquittal or condemnation, as the justice of the case requires. And it may proceed to make its decree as well after as before the death of the parties; for in proceedings in rem the suit does not abate by the death or absence of all or any of the parties named in the proceedings. ( Penhallow v. Doane, 3 Dall. 54, 86. 117. The calcon, 6 Rob. 194. 199.) It may be proper in many cases, where all the parties on either side are dead, unot to proceed to make a decree in rem without serving a monition upon the representatives of the deceased party to appear and pursue or defend his rights. And where the decree is in personam the court will generally require that the representative should be duly cited to appear to protect his interests, so far as they may be affected by the decree. (Vide.  The Nostra Signora de los Dolores, 1 Dodson, 290.) It is, indeed, the duty of the court to take notice of all interests that result from evidence before it, and not to suffer any persons to be precluded from their just demands from want of notice of any facts that appear in the course of the proceedings. (The Maria Francaise, 6 Rob. 282.) And where parties are not formally before the court, it acts as a general guardian of all interests which are brought to its notice. (Ib.) Indeed, in the common cases of condemnations, the enemy proprietor is necessarily absent by operation of law; and yet the sentence is completely valid, as well against him as against all the world. (The Falcon, 6 Rob. 194. 199). To give validity, therefore, to decrees in rem, it is not necessary that the adverse parties should be before the court. (Ib.) \nWhen a sentence is pronounced, either of acquittal or condemnation, it is, in general, by an interlocutory decree. An interlocutory decree is proper in all cases, where any thing farther remains to be done by the court, as in ascertaining damages in cases of illegal capture, or in deciding who are captors, after deciding that the property is to be condemned.  The right to decide who are captors entitled to distribution, belongs exclusively to the prize court, and its adjudication cannot be examined by a court of common law; ( Home v. Camden, 2 H. Bl. 583., 4 T. Rep. 382. Duckworth v. tucker, 2 Taunt. 7.;) and no title vests in the captors until the final adjudication of the prize court. (Ib.) In England the usual practice is to acquit or condemn by interlocutory decree in all cases; (Marriott's Form. 194. 196.;) and a definitive sentence is reserved until all other questions and interests are finally disposed of. (Ib. 198. 203.) In the United States it is more common to reserve a decree until a final decision of all the questions before the court; but there can be no doubt of the propriety of an adherence to the English practice, where the circumstances of the case require a suspension of a final sentence, although the propriety of an acquittal or condemnation is perfectly clear. And in case of an acquittal or condemnation by interlocutory decree there can be no question that an appeal immediately lies to the proper appellate court by the parties affected by that decree; for as to them it is an interlocutory having the effect of a final  decree. \nIn respect to cases of acquittal. This may be either with or without damages and costs, or upon the terms of paying costs and expenses. In either case where the damages or expenses are uncertain, and to be ascertained, the court ifself may proceed directly to assess them. ( The Lively, 1 Gallis, 315.) But the usual practice is, to refer it to commissioners to hear the parties, examine their statements and accounts, and to report to the court in detail, such allowance as they think equitably or legally due to the parties. Accompanying the report, the reasons of the commissioners for the allowance or disallowance of any particular item are usually given; and the report, when returned to the court, is heard upon exceptions by the parties aubstantially, though not tormally, as in a suit in chancery; for the prize court almost always proceeds as in summary suits, and not as in plenary suits, in the civil law. \nWhen restitution is decreed, if the property remains specifically in the custody of the court, a warrant issues for the delivery to the claimant; and in such case, unless it is otherwise ordered by the court, the expenses of the delivery are to be borne by the captors.  (The Rendsborg, 6 Rob. 142.) If the proceeds of the property are in court, an order for delivery is usually made by the court; and after a decree of restitution, the captors have no right to arrest the proceeds in the registry of the court by a caveat; that can only be done by an application to the court itself. (The Fortuna, 4 Rob. 278.) If the proceeds are in the hands of the captors or their agents, a monition, and, if necessary, an attachment, issues to them to bring in the proceeds. But where the captors have not conducted unfairly, on restitution decreed, they will not be held answerable for more than the proceeds, although the sale made was less than the original value of the property. (The Two Susannahs, 2 Rob. 152.) The property upon a decree of restitution may be delivered to the master as agent of the shipper, for in such kcase the master is the agent of the shipper, and is answerable to him. (Sir W. Scott and Sir J. Nicholl's letter to Mr. Jay, ubi sup a.) But in such a case neither the master nor any other prize agent can claim the property against his principal, unless so far as to cover his expenses; and the court will thus far protect his rights; but when his expenses  and his liens on the property are discharged, the court will deliver it directly to the principal upon his own application. (The Franklin, 4 Rob. 404. The St. Lawrence, 2 Gallis. 19.) After a decree for restitution of partnership property to a foreign house in solidum, the court will not sever the property merely because one partner is a bankrupt here; but if the assignees had put in a claim for this purpose before a decree, it would be otherwise. (The Jefferson, 1 Rob. 325.) \nWhere damages are decreed, the decree is either against the parties by name, or by a description of their relation to the ship. Where a decree is against the owners of a privateer generally, a monition issues against them personally, to pay the damages assessed; and it may also issue against the sureties to the bond given on taking out the commission. In a court of the law of nations, a person may be considered as a part owner, though his name has not been inserted in the bill of sale, or ship's register; and the representatives of a person so deemed a part owner, is responsible for costs and damages decreed against the owners generally, though the party of whom he is the representative was not the actual  wrong-doer. (The Nostra Signora de los Dolores, 1 Dodson, 290.) And, as has been already stated, a part owner is not exempted from being a party to a suit for the proceeds, by having a release from the claimant for his share. (The Karasan, 5 Rob. 291.) \nIn respect to cases of condemnation. Where an interlocutory decree of condemnation passes in favour of a privateer, it seems to be usual in England, to deliver that decree with a proper commission to the master of the privateer, to make sale of the prize, and to return an account into court. (Semble, The Venus, 6 Rob. 235.) But in the United States, all sales of prizes, before, as well as after condemnation, are made by the marshal; and in respect to sales after condemnation, this practice is farther enforced by the statute of January 27th, 1813, ch. 155. (new edit. ch. 478.) \nIt has been already stated, that no right vests in the captors until after a final sentence of condemnation, and that the right to decide who are the captors entitled to distribution, belongs exclusively to the prize court, and cannot be entertained in a court of common law. ( Duckworth v. Tucker, 2 Taunt. 7. Home v. Camden, 2 H Bl. 533.) When the case is  pronounced to be a case of condemnation, the next question therefore is, to whom it is to be condemned. This generally depends upon the question, whether the capturing ship be a commissioned or non-commissioned ship; and, if the former, whether a public or private armed vessel; and, in each of these cases, questions as to the rights of asserted joint captors may also arise before the court. Captures or seizures may also take place in port; or be made on land by conjunct land and naval forces; and in these cases questions may arise as to the right of the army and navy to share in the prizes or booty. \nIt is an elementary principle of prize law, that all rights of prize belong originally to the government; (The Melomasne, 4 Rob. 41.) and the beneficial interests derived to others can proceed only from the grant of the government; and therefore all captures wherever made enure to the use of the government, unless they have been granted away.(The Elsebe, 5 Rob. 173. Sterling v. Vaughan, 11 East, 619. The Maria Francaise, 6 Rob. 282. The Joseph, 1 Gallis. 454.) In cases of public armed ships, duly commissioned for the capture, the condemnation is always to the government, but the proceeds  are to be distributed according to the act of the 23d April, 1800, ch. 33. s. 5 and 6. In cases of privateers duly commissioned for the capture, condemnation is, by the prize act of the 26th of June, 1812, ch. 107. to the owners, officers, and crew of the privateer, and the proceeds are to be distributed according to the regulations of the same statute. But captors, even though duly commissioned, may forfeit their rights of prize by misconduct; and this, independent of any statuteable provision, by the old established law of the admiralty. (La Reine des Anges, Stewart, 9. The Cossack, Stewart, 513. 517. The Herkimer, Stewart, 128. S.C. 2 Hall's Am. Law Journ. 133. The Clarissa, cited in Stewart, 144. and 2 Hall's Am. Law Journ. 145.) And an obstinate neglect or refusal to comply with the instructions of the government, or the regulations of the prize act, have been held sufficient to authorize an infliction of the forfeiture; and, in such case, the prize is condemned to the government. ( Ib. The Bothnea and Janstoff, 2 Gallis. 78. 92.) So, the unlawful rescue of the prize by the captors from the custody of the court. (The Cossack, Stewart 513.) And where the claimant has not  affected his property with a hostile character, as by a trade with the enemy, &c; but has been engaged in some other traffick, contravening the municipal law of his own country, so that he cannot entitle himself to a restitution of the property, it will be condemned to the government, and not to the captors. (The Walsingham Packet, 2 Rob. 77. The Etrusco, 4 Rob. 262 note. The Venus, 8 Cranch, 277. 287.) \nIn cases of non commissioned ships, and ships commissioned against one enemy, having no commission against another whose property is captured, the captors are not entitled to any share in the prize, and the property is to be condemned to the government, or to its special grantee, if any such exist. Bynkershoeck, indeed, contends, that if a non-commissioned ship is attacked, and captures the assailant in her own defence, the officers and crew are solely entitled to the prize; and this doctrine seems also to be supported by Grotius. (Bynk. Q J. Pub. lib. 1. ch. 20. Du Ponceau's ed. 155. to 161. Grotius de J. B. et P. lib. 3. ch. 6. s. 10.) However, the general prize law of France, Great Britain, and the United States, is as has been above stated. (Du Ponceau's Bynk. p. 162 note  (d). 1 Valin, Sur l'Ord. tom. 1. p. 79. The Haase, 1 Rob. 286. The Rebeccah, 1 Rob. 227. The Amor Parentum, 1 Rob. 303. The Twee Gessuster, 2 Rob. 284. note (a). The Melomane, 5 Rob. 41. The Joseph, 1 Gallis. 545.) If at the time of a capture by a letter of marque, the master of the capturing vessel be not on board, the capture is considered as made without a commission, and it enures to the government, or its special grantee.(The Charlotte, 5 Rob. 280.) And if a capture be made by a cutter fitted out by a captain of a man of war as a tender, and manned from his ship, but without any authority or commission, it is deemed to be made by a non-commissioned vessel, and the capture will not enure to the benefit of the man of war. It would be otherwise if the tender were attached to the ship by public authority; for then the ship would share. (The Melomane, 5 Rob. 41. The Charlette, 5 Rob. 280. Capture of Curracoa, 4 Rob. 282. note (a). The Dos Hermans, ante, 76.) And if persons in the navy land from their ships and man a fort, and thereby compel a ship to strike as prize, it is considered as a capture made at sea by a force upon land, which is a non-commissioned capture. (The Rebeccah,  1 Rob. 227.) But it would be otherwise if the place on shore were a resort for naval purposes by persons in the navy only, for then it may be deemed a stationary tender, rather attached to, and dependent upon, the vessels, than having the vessels attached to, and dependent upon, it. (Ib.) If a foreign cartel ship be engaged in trade, it is contrary to the duties of the ship, and the goods will be condemned to the government. (La Rosine, 2 Rob. 372.) And the cartel ship also, if belonging to our own citizens, will, if the trading has been very gross, be condemned also. (The Venus, 4 Rob. 355.) \nIn England, by very ancient grants from the crown, the lord high admiral has the benefit of all captures made at sea by non-commissioned vessels, and also of all captures by whomsoever made, of all ships and goods coming or already come into ports, creeks or roads of England and Ireland, by stress of weather or other accident, or by mistake of port, or by ignorance, not knowing of the war; and also of all derelicts. But the crown has still reserved to itself all such ships and goods as shall be seized in port before any declaration of war, or reprisals; and also all such as shall voluntarily  come in, upon revolt from the enemy, and as shall be driven or forced into port by the king's men of war. (The Rebeccah, 1 Rob. 227. and 230. note (a). The Gertruyda, 2 Rob. 211. The Melomane, 5 Rob. 22. The Maria Francoise, 6 Rob. 282. The Joseph, 1 Gallis. 545.) The office of lord high admiral has for more than a century past been put in commission. But as the office is still considered to have a legal existence, though now residing in the person of the king, the rights and perquisites of that office are still distinguished as they were anciently, and are ascertained by an observance of the ancient rules, with the same exactness as if the proceeds were carried in the ancient and distinct course. (The Gertruyda, 2 Rob. 211. The Maria Francoise, 6 Rob. 282.) Hence arises the well-known distinction of condemnation to the king jure coronae, and to the king in his office of admiralty, as droits of admiralty; the former applying in all cases where the crown is still entitled to the prize property, in virtue of its sovereignty and inherent prerogatives; the latter applying to all cases where the same belongs to the office of lord high admiral. \nIn the United States, strictly speaking,  there are no droits of admiralty; for all prizes, to which no persons can entitle themselves by a public or private commission of war, are condemnable to the government itself in its sovereign capacity. ( The Joseph, 1 Gallis. 545.) But the phrase, droits of admiralty, is often used in legal adjudications in the United States, as equivalent to condemnations to the United States, in virtue of their general sovereignty and prerogative, as enforced in the courts of admiralty. \nBut although non-commissioned persons cannot, by making a capture, entitle themselves to the benefits of prize, yet where their conduct has been fair in all cases of condemnations as droits of admiralty, the prize court will, in its discretion, award them a recompense; and even in some cases will award them the whole value of the prize, where there has been great personal gallantry and merit. (The Haase, 1 Rob. 286. The Amor Parentum, 1 Rob. 303.) It is not necessary to enumerate at large the various cases in which property is deemed a droit of admiralty, or a prize to the government jure coronae. The preceding authorities will be found to contain almost all the learning on the subject. \nIt being ascertained who  are the captors, and that they are duly commissioned, the next subject is, the distribution of the prize proceeds; and this is regularly to be done by the prize court having possession of the cause. ( The St. Lawrence, 2 Gallis. 19.) Regularly, there should be a decree of distribution; and neither any officer of the court, nor any prize agent, having prize proceeds in his hands, can be safe in distributing them without a decree to this effect. ( Kean v. The Brig Gloucester, 2 Dall 36. Penhallow v. Doane, 3 Dall. 54. The Herkimer, Stewart, 128. S.C., 2 Hall's Am. Law Journ. 133.) And the prize court have a most unquestionable and exclusive jurisdiction to decree a distribution, either upon its own motion, or upon the application of the parties interested. ( Kean v. The Brig Gloucester, 2 Dall. 36. Bingham v. Cabot, 3 Dall. 19. Home v. Camden, 1 H. Bl. 476. 524. S.C., 2 H. Bl. 633. 4 T. Rep 382. Duckworth v. Tucker, 2 Taunt. 7.) Nor can any person claim a share in a prize whose claim has not been admitted and supported in the prize court. ( Duckworth v. Tucker, 2 Taunt 9.) \nIn respect to public ships, the distribution is to be made according to the act of congress of April 23d, 1800.  ch. 33 s. 5. and s. 6. Besides the officers and crew of the capturing ship, the commander of the fleet or squadron is entitled to one twentieth, which is called the flag twentieth. In England, the commander of the fleet or squadron is entitled to a flag eighth. Many cases have arisen in England as to the circumstances under which the commander is or is not entitled to share. These cases are collected in a recent decision in our own courts, to which the reader is referred. ( Decatur v. Chew, 1 Gallis. 506.) And to the authorities there collected may be added the following. (The Diomede, 1 Acton, 69. 239. Gardner v. Lyne, 13 East, 674. Drury v. Gardner, 2 Maule & Selwyn, 150. Duncan v. Mitchell 4 Maule & Selwyn, 105.) Upon the construction of our own act, it has been held, that the commander of a squadron, to whose command a ship of war is attached, and under whose orders she sails, is entitled to the flag twentieth of all prizes made by such ship, although the other part of such squadron may never have sailed on the cruise, in consequence of a blockade by a superior force; and that to deprive such a commander of his flag twentieth on account of his having left his station under  the act, it is indispensable that some local limits should have been assigned to him. ( Decatur v. Chew, 1 Gallis. 506.) And it seems that a person acting by regular authority as commander of a ship pro tempore, though not commissioned as such, is entitled to the commander's share of all prizes taken. (Pill v. Taylor, 11 East, 414.) And the captain of a ship, actually on board at the time of a capture, is entitled to prize money, though under arrest at the time, and though another officer had been sent on board to command the ship. (Lumby v. Sutton, 8 T.R. 224.) But to entitle a person to share as an officer of the ship under the prize act, he should not only be on board, but also an officer of, and attached to the ship, and not a mere passenger. (The Nostra Signora del Carmen, 6 Rob. 302. See Wemys v. Linzee, Doug 324. Lumley v. Sutton, 8 T.R 224.) But soldiers who are on board a public ship are, under the English prize act, entitled to share, although they are invalided, and returning home in the capturing ship. (The Alert, 1 Dodson, 236.) And even passengers, under the expression in our prize act, as well as the English prize act, are entitled to share in the lowest class of  distribution, as \"persons doing duty on board.\" (The Alert, 1 Dodson, 236. Wemys v. Linzee, Doug. 324.) \nBeside the prize proceeds, by the act of April 23d, 1800, ch. 33. s. 7., a bounty is given of 20 dollars for each person on board any ship of an enemy at the commencement of an action, which shall be sunk or destroyed by any ship of the United States of equal or inferior force, to be divided among the officers and crew as prize money. No legal adjudications have as yet taken place on this clause of the act. But under the British act giving this bounty, or head money, as it is called, it has been decided, that head money is not due when the captured ship was not a duly commissioned ship of war; (Several Dutch Schuyts, 6 Rob. 48.) that constructive joint captors are not entitled to head money; (L'Alerte, 6 Rob. 238.) that it is not due for British prisoners on board of the captured ships; (The San Joseph, 6 Rob. 331.;) but is due for all the crew on board at the time of the attack, although some afterwards escape. (The Babillion, Edw. 39.) Head money is also due, whether the surrender has been produced by actual combat or not; but it is never granted unless the act of capture or  of destruction is consummated. (La Clorinde, 1 Dodson, 436. L'Elise, 1 Dodson, 442.) The military character of a hostile vessel is not to lost by capture and recapture as to extinguish the right to head money. (The Matilda, 1 Dodson, 367.) \nIn respect to privateers, the prize act of June 26th, 1812, ch. 107. s. 4., gives the whole proceeds, after condemnation, and deducting duties and other public charges, to the captors, according to any written agreement among them; and if there be no written agreement, then one moiety to the owners, and the other moiety to the crew, to be distributed as nearly as may be among the officers and crew as in cases of public ships. A mariner who has engaged for the cruise, but is by sickness and other inevitable casualty prevented from doing duty on the cruise, is entitled to share; but it would be otherwise if the disability occurred during the cruise. ( Ex parte Giddings, 2 Gallis. 56.) And if one of the crew be illegally turned on shore during the cruise, he is entitled to share in all the prizes made during the cruise. ( Kean v. The Brig Gloucester, 2 Dall. 36.) And the persons of the crew who are put on board of prizes are entitled to share in  all subsequent prizes made by the privateer; and so in the converse case, the privateer will share in the prizes made by any prize vessel after capture. (The Frederick and Mary Ann, 6 Rob. 213. The Brutus, 2 Gallis.) Agreements between the owners and officers of two privateers to share in all prizes, are valid; but the master and officers have no authority to make such an agreement without the consent of the owners. (Bynk Q.J. Pub. lib. 1. ch. 18. Du Ponceau's ed. p. 139. 141.) \nWhen a distribution has been decreed, it often becomes necessary, in order to perfect the decree of the court, where the proceeds are in the hands of prize agents, or of officers of the court, to institute a suit to compel the proper parties to come in and account for the proceeds, and make due distribution. And for this purpose a suit may be maintained in the prize court by any party interested, or by any representative of the party, or by any assignee duly entitled. ( The St. Lawrence, 2 Gallis. 19. The Brutus, Ib.) Where the cause is in possession of an appellate court, the application may be made there, by a supplementary intervention, or petition; or it may be made by a direct original suit in personam,  brought in the district court. ( Ib. Home v. Camden, 1 H. Bl. 474. 524. S.C., 2 H. Bl. 533. Willis v. Commissioners, &c. 4 T.R.S.C., 5 East, 22. The Noysomhed, 7 Ves. 593. Smart v. Wolff, 3 T.R. 323. Bingham v. Cabot, 3 Dall. 19. Kean v. Brig Gloucester, 2 Dall. 36. The Pomona, 1 Dodson, 25. The Herkimer, Stewart, 128. S.C., 2 Hall's Am. Law Journ. 133.) And it is a general principle, that the power of the prize court subsists after a general adjudication to compel captors and other persons having proceeds of prize in their hands, to bring the same into court, until all claims respecting the prize are definitively settled. (Ib.) And the remedy is not confined to the stipulation taken in the cause; but the prize proceeds will be followed, in whose hands soever they may be, unless they have been purchased bona fide, and without notice of the claim. (Per Buller, J., 3 T.R. 323. Per Grose, J., 5 East, 22. The Pomona, 1 Dodson, 25.) This subject, indeed, has been already treated of in an early part of the present note, when we were considering the subject of prize jurisdiction; and to that part the reader is respectfully referred for farther information. A few additional particulars  respecting prize agents, &c. may, however, not be without use. \nIt is no discharge of a prize agent, that he has paid over to his principal the prize proceeds, after full notice of a libel pending for restitution of the property; ( Hill v. Ross, 3 Dall. 331.;) nor to a marshal, that he has distributed prize proceeds pending an appeal, or where an appeal is wrongfully denied. ( Penhallow v. Doane, 3 Dall. 54.) But an agent is only liable for the prize proceeds which have come to his own hands, and not for the proceeds which have come to the hands of his co agents. ( Penhallow v. Doane, 3 Dall. 54.) \nWhere the prize court has decreed distribution, and allotted the shares, and required the prize agent to make payment of the proceeds accordingly, if he refuses to obey the order, the court may proceeed in personam; ( Per Lord Loughborough, Home v. Camden, 1 H. Bl. 474. 524;) and in such case it will decree interest to be paid by the agent. And, in general, the prize court may compel prize agents or others, having prize proceeds in their hands, to pay interest on the proceeds, where a proper case is laid before it; for such proceeding is mere incident to the prize jurisdiction. (The Louis,  5 Rob. 46. Willis v. Commissioners, &c., 5 East, 22. The Pomona, 1 Dodson, 25.) And it is no objection that there has been a previous decree for interest against the captors personally. (The Polly, 5 Rob. 147. note. Willis v. Commissioners, &c., 5 East, 22.) Interest is not usually allowed against a prize agent, unless it has been actually made by him, or there has been an unjustifiable delay in payment. But it seems that a prize agent has no right to detain property condemned, and in his hands for distribution, to answer demands arising, or which may arise, against the ship for other unjustifiable captures. (The Printz Henrick Von Preussen, 6 Rob. 95.) And interest is not usually allowed against a commissioner for appraisement and sale, or a marshal after sale, unless in cases of a fraudulent detainer or gross delay. (The Exeter, 1 Rob. 173. The Princessa, 3 Rob. 31. Willis v. Commissioners, &c., 5 East, 22.) \nThis note must now be brought to a conciusion, although some of the topics discussed are far from being exhausted. To some, perhaps, an apology may be necessary for the length to which it has already extended. When, however, it is considered that no treatise exists in  print, containing even a summary view of prize practice, any attempt, however, humble, to collect and arrange what is so little methodized, and so little known, may be entitled to indulgence, or, at least, escape the severity of criticism. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Chief Justice MARSHALL delivered the opinion of the court. \nThe first point made by the plaintiff in error is, that the estate of which John Baptiste  Chirac died seised was, in his lifetime, eschestable, because it was acquired before he became a citizen of the United States; the law of the state of Maryland, according to which he took the oaths of citizenship, being virtually repealed by the constitution of the United States, and the act of naturalization enacted by congress. \nThat the power of naturalization is exclusively in congress does not seem to be, and certainly ought not to be, controverted; but, it is contended, that the act of Maryland, passed in the year 1780, \"To declare and ascertain the privileges of the subjects of France residing within that state,\" gives to those  subjects the power of holding land on the performance of certain conditions prescribed in that act. \nThe 2d section gives to the subjects of France who may reside within the state of Maryland, all the rights of free citizens of that state. The 3d section contains a proviso restricting the privileges granted by the act, and declaring that nothing therein contained shall be construed to grant to those who should continue subjects of his most christian majesty, and not qualify themselves as citizens of this state, any right to purchase or hold  lands, or real estate, but for their respective lives or for years. \nThis act certainly requires that a French subject, who would entitle himself, under ti, to hold lands in fee, should be a citizen according to the law which might be in force at the time of acquiring the estate. Otherwise he could only purchase or hold for life or years. John Baptiste Chirac was not a citizen according to that law when he purchased the land in controversy. \nIt is unnecessary to inquire into the consequences of this state of things, because we are all of opinion that the treaty between the United States and France, ratified in 1778, enabled the subjects of France to hold lands in the United States. That treaty declared that \"The subjects and inhabitants of the United States, or any one of them, shall not be reputed Aubains (that is aliens) in France.\" \"They may, by testament, donation, or otherwise, dispose of their goods, moveable and immoveable, in favour of such persons as to them shall seem good;  and their heirs, subjects of the said United States, whether residing in France or elsewhere, may succeed them ab intestat, without being obliged to obtain letters of naturalization. The  subjects of the most christian king shall enjoy, on their part, in all the dominions of the said states, an entire and perfect reciprocity relative to the stipulations contained in the present article.\" 3 \n Upon every principle of fair construction, this article gave to the subjects of France a right to purchase and hold lands in the United States. \nIt is unnecessary to inquire into the effect of this treaty under the confederation, because, before John Baptiste Chirac emigrated to the United States, the confederation had yielded to our present constitution, and this treaty had become the supreme law of the land. \n The repeal of this treaty could not affect the real estate acquired by John Baptiste Chirac, because he was then a naturalized citizen, conformably to the act of congress; and no longer required the protection given by treaty. \nJohn Baptiste Chirac having died seised in fee of the land in controversy; his heirs at law being subjects of France; and there being, at that time, no treaty in existence between the two nations: did his land pass to these heirs, or did it become escheatable? \nThis question depends on the law of Maryland. The 4th section of the act already mentioned enacts, among other things, that if any subject of France who shall become a citizen of Maryland, \"shall die intestate, the natural kindred of such decedent, whether residing in France or elsewhere,  shall inherit his or her real estate, in like manner as if such decedent, and his kindred, were the citizens of this state.\" \nAn attempt has been made to avoid the effect of this claim in the act, by contending that it was passed for the sole purpose of enforcing the treaty, and was repealed by implication when the treaty was repealed. \nThe court does not think so. The enactment of the law is positive, and in its terms perpetual. Its provisions are not amde dependent on the treaty; and, although the peculiar state of things then existing might constitute the principal motive for the law, the act remains in force from its words, however that state of things may change. \nBut, to this enacting clause is attached a proviso  that whenever any subject of France shall, by virtue of this act, become seised in fee of any real estate, his or her estate, \"after the term of ten years be expired, shall vest in the state, unless the person seised of the same shall, within that time, either come and settle in, and become a citizen of this state, or enfeoff thereof some citizen of this or some other of the United States of America.\" \nThe heirs of John Baptiste Chirac then, on his death,  became seised of his real estate in fee, liable to be defeated by the non-performance of  the condition in the proviso above recited. The time given by the act for the performance of this condition expired in July, 1809, four months after the institution of this suit.It is admitted, that the condition has not been performed; but it is contended, that the non-performance is excused, because the heirs have been prevented from performing it by the act of law and of the party. The defendant, in the court below, has kept the heirs out of possession, under the act of the state of Maryland, so that they have been incapable of enfeoffing any American citizen; and, having been thus prevented from performing one condition, they are excused for not performing the other. \nWhatever weight might be allowed to this argument, were it founded in fact, its effect cannot be admitted in this case. The heirs were not disabled from enfeoffing an American citizen. They might have entered, and have executed a conveyance for the land. Having failed to do so, their estate has terminated,  unless it be supported in some other manner than by the act of Maryland. \nThis brings the court  to a material question in the cause. While the defendants in error were seised of an estate in fee simple, determinable by their failure to perform the condition contained in the act of 1780, another treaty was entered into between the United States and France, which provides for the rights of French subjects claiming lands by inheritance in the United States. This treaty enables the people of one country, holding lands in the other, to dispose of the same by testament or otherwise, as they shall think proper. It also enables them to inherit lands in the respective countries, without being obliged to obtain letters of naturalization. \nHad John Baptiste Chirac, the person from whom the land in controversy descended, lived till this treaty became the law of the land, all will admit that the provisions which have been stated would, if unrestrained by other limitations, have vested the estate of which he died seised in his heirs. \nIf no act had been passed on the subject, and the appellees had purchased lands lying in the United States, it is equally clear that the stipulations referred to would have operated on these lands, so as to do away that liability to forfeiture to which the  real estates of aliens are exposed. \nHas it the same or any effect on the estate of which the appellees were seized when it was entered into? \nIt has been argued that the treaty protects existing  estates, and gives to French subjects a capacity to dispose and to inherit; but does not enlarge estates. \nThis is true. But the estate of the defendants in error requires no enlargement. It is already a fee, although subject to be defeated by the non-performance of a condition. The question is, does this treaty dispense with the condition, or give a longer time for its performance? The condition is, that those who hold the estate shall become citizens of the United States, or shall enfeoff a citizen within ten years. Does the treaty control or dispense with this condition? \nThe direct object of this stipulation is, to give French subjects the rights of citizens, so far as respects property, and to dispense with the necessity of obtaining letters of naturalization. It does away the incapacity of alienage, and places the defendants in error in precisely the same situation, with respect to lands, as if they had become citizens. It renders the performance of the condition a  useless formality, and seems to the court to release the rights of the state as entirely in this case as in the case of one who had purchased, instead of taking by descent. The act of Maryland has no particular reference to the case of Chirac, but is a general rule of state policy prescribing the terms on which French subjects may take and hold lands. This rule is changed by the treaty; and it seems to the court that the new rule applies to all cases, as well to those where the lands have descended by virtue of the act, as to those where lands have been acquired  without its aid. The general power to dispose \"without limitation,\" which is given by the treaty, controls the particular power to enfeoff within ten years, which is given by the act of Maryland. \nBut the treaty proceeds to stipulate, \"that in case the laws of either of the two states should restrain strangers from the exercise of the rights of property with respect to real estate, such real estate may be sold, or otherwise disposed of, to citizens or inhabitants of the country where it may be.\" \nIn many of the states, perhaps in all of them, the laws do \"restrain strangers from the exercise of the rights of  property with respect to real estate:\" consequently, this provision limits, to a certain extent, the principles antecedently granted. What is the extent of this limitation? \nIt will probably prevent a French subject from inheriting or purchasing the estate of a French subject, who is not also a citizen of the United States; but it cannot affect the right of him who takes or holds by virtue of the treaty, so as to deprive him of the power to do that for which this clause stipulates; that is, \"to sell or otherwise dispose of the property to citizens or inhabitants of this country.\" This general power to sell, according to the principles of our law, and, it is presumed, of that of France, endures for life. A subject of France, then, who had acquired lands by descent or devise, (perhaps also by any other mode of purchase,) from a citizen of the United States, would have a right, during life, to sell or otherwise dispose of those lands, if lying in a state where lands purchased by an alien generally would  be immediately escheatable on account of alienage. The court can perceive no reason for restraining this construction in the application of the treaty to the state of Maryland,  where the law, instead of subjecting the estate to immediate forfeiture, protects it for ten years. The treaty substitutes the term of life for the term of ten years given by the act. \nIf, then, the treaty between the United States and France still continued in force, the defendant would certainly be entitled to recover the land for which this suit is instituted. But the treaty is, by an article which has been added to it, limited to either years, which have long since expired. How does this circumstance affect the case? \n The treaty was framed with a view to its being perpetual. Consequently, its language is adapted to the state of things contemplated by the parties, and no provision could be made for the event of its expiring within a certain number of years. The court must decide on the effect of this added article in the case which has occurred.It will be admitted, that a right once vested does not require, for its preservation, the continued existence of the power by which it was acquired. If a treaty, or any other law, has performed its office by giving a right, the expiration of the treaty or law cannot extinguish that right. Let us, then, inquire, whether  this temporary treaty gave rights which existed only for eight years, or gave rights during eight years which survived it. \nThe terms of this instrument leave no doubt on this subject. Its whole effect is immediate. The instant  the descent is cast, the right of the party becomes as complete as it can afterwards be made.The French subject who acquired lands by descent the day before its expiration, has precisely the same rights under it as he who acquired them the day after its formation. He is seised of the same estate, and has precisely the same power during life to dispose of it. This limitation of the compact between the two nations, would act upon, and change all its stipulations, if it could affect this case. But the court is of opinion, that the treaty had its full effect the instant a right was acquired under it; that it had nothing further to perform; and that its expiration or continuance afterwards was unimportant. \nJudgment affirmed. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Chief Justice MARSHALL  delivered the opinion of the court. \nThe question in this case is, whether the intelligence of extrinsic circumstances, which might influence the price of the commodity, and which was exclusively within the knowledge of the vendee, ought to have been communicated by him to the vendor? The court is of opinion that he was not bound to communicate it. It would be difficult to circumscribe the contrary doctrine within proper limits, where the means of intelligence are equally accessible to both parties. But at the same time, each party must take care not to say or do any thing tending to impose upon the other. The court thinks that the absolute instruction of the judge was erroneous, and that the question, whether any imposition was practised by the vendee upon the vendor ought to have been submitted to the jury. For these reasons the judgment must be reversed, and the cause remanded to the district court of Louisiana, with directions to award a venire facias de novo. \nVenire de novo awarded. \n \n\n ", " \nOpinion \n\n \n \n Mr. Chief Justice MARSHALL delivered the opinion of the court. \nThe court will not give any opinion whether any action can be maintained at law upon any of the promissory notes in the record, by an assignee who does not claim the same by an endorsement upon the notes. For, in this case, there is no specific assignment of these notes; the only assignment is a general assignment, in trust, of all the property  of the late bank of the United States, and, as the act of incorporation had expired, no action could be maintained at law by the bank itself. Under these circumstances, the court is clearly of opinion that a suit may be maintained in equity against the other parties to the notes. Another question arises in the cause, whether the endorsers have had due notice of the non-payment by the makers. As there is some  contrariety of evidence in the record, the court will only lay down the rule. And it is the opinion of the court, that a demand of payment should be made upon the last day of grace, and notice of the default of the maker be put into the post-office early enough to be sent by the mail of the succeeding day. \nDecree reversed. \n \n\n ", " \nOpinion \n\n \n \n Mr. Chief Justice MARSHALL delivered the opinion of the court, that every question arising in the cause had been settled by former decisions. \nJudgment affirmed, with costs. 3 \n \n \n\n ", " \nOpinion \n\n \n \n  Mr. Chief Justice MARSHALL delivered the opinion of the  court, and after stating the facts, proceeded as follows: \nThe appellants contend, 1st. That the sentence pronounced by the district court in August, 1814, which was affirmed by the circuit court in May, 1815, condemned finally, the packages for which a decree of restitution was afterwards made, and that the subsequent proceedings were irregular, and in a case not before the court. 2dly. That upon the merits, farther proof ought not to haxe been ordered, and a condemnation ought to have taken place. \nOn the first point, it is contended, that these goods, having been comprehended in invoices not endorsed, nor accompanied with letters of advice, are within the very terms of the sentence of condemnation, and must, consequently, be considered as condemned. \nThe principle on which this argument was overruled in the court below, is to be found in its sentence. The district court, in its decree of 1814, did not intend to confine its description of the property condemned, to the general terms used in that decree, but did intend to enumerate the particular bills to which those  terms should apply. This is conclusively proved by reference to the subsequent intended enumeration,  which is followed by a blank, obviously left for that enumeration. Had the enumeration been inserted as was intended, the particular specification, would undoubtedly have controlled the general description which refers to it. The unintentional and accidental omission to fill this blank, leaves the decree imperfect in a very essential point; and if the case, and the whole context of the decree can satifactorily supply this defect, it ought to be supplied. This court is of opinion, that no doubt can be entertained respecting the bills with which the district court intended to fill up the blank. The condemnation of shipments evidenced by bills of lading, with blank endorsements, or without endorsement, could apply to those only which required endorsement, or which were in a situation to admit of it. These were the bills which were made deliverable to shipper, or to the order of the shipper. Bills addressed to a merchant, residing in Lisbon, could not be endorsed by such merchant, until the vessel carrying them should arrive at Lisbon. Consequently, such bills could not be in the view of the judge, when condemning goods, because the bills of lading were not endorsed; and, had he  completed his decree, such bills could have been inserted in it. No conceivable reason exists, for admitting to farther proof, the case of a shipment, evidenced by a bill of lading, made deliverable to shipper, or order, and endorsed to a merchant, residing in Lisbon; and at the same time condemning, without admitting to farther proof, the same shipment, if evidenced by a bill of lading,  made deliverable, in the first instance, to the Lisbon merchant. No. 108, for example, is made deliverable at Lisbon, to Segnior Jose Ramos de Fonseco, and is consequently not endorsed. It is contended, that these goods are not condemned. But had the bill been made deliverable, to shipper, or order, and endorsed to Segnior Jose Ramos de Fonseco, farther proof would have been admitted. \nNothing but absolute necessity could sustain a construction, so obviously absurd. This court is unanimously of opinion, that justice ought not to be diverted from its plain course, by circumstances so susceptible of explanation, that error is impossible; and that, when the decree was returned to the district court of North Carolina, with the blank unfilled, that court did right in considering the specification  intended to have been inserted, and for which the blank was left, as a substantive and essential part of the decree, still capable of being supplied, and in acting upon, and explaining the decree, as if that specification had been originally inserted. \nThis impediment being removed, the cause will be considered on its merits. \nIt is contended, with great earnestness, that farther proof ought not to have been ordered, and that the goods which have been restored, ought to have been condemned as prize of war. In support of this proposition, the captors, by their counsel, insist that the rights of belligerents would be sacrificed, should a mere bill of lading, consigning the goods to a neutral, unaccompanied  by letter of advice or invoice, let in the neutral claimant to farther proof. \nIt is not pretended, that such a bill would of itself justify an order for restitution; but it certainly gives the person to whom it is addressed, a right to receive the goods and lays  the foundation for proof, that the property is in him. It cannot be believed, that, admitting farther proof in the absence of an invoice or letter of advice, endangers the fair rights of belligerents.  These papers are so easily prepared, that no fraudulent case would be without them. It is not to be credited, that a shipper in London, consigning his own goods to a merchant in Lisbon, with the intention of passing them on a belligerent cruizer as neutral, would omit to furnish a letter of advice and invoice, adapted to the occasion. There might be double papers, but it is not to be imagined, that papers so easily framed, would not be prepared in a case of intended deception. \nIt is unquestionably extraordinary, that the same vessel which carries the goods should not also carry invoices, and letters of advice. But the inference which the counsel for the captors would draw from this fact, does not seem to be warranted by it. It might induce a suspicion, that papers had been thrown overboard; but in the total absence of evidence, that this fact had occurred, the court would not be justified in coming positively to such a conclusion. Between London and Lisbon, where the voyage is short and the packets regular, the bills of lading and invoices might be sent by regular conveyances. But were it even admitted that a belligerent master carrying a  cargo chiefly belligerent,  had thrown papers overboard, this fact ought not to preclude a neutral claimant, to whom no fraud in imputable, from exhibiting proof of property. In the case before the court, no attempt was made to disguise any part of the cargo. By far the greater portion of it was confessedly British, and was condemned without a claim. The whole transaction with respect to the cargo, is plain and open; and was, in the opinion of this court, a clear case for farther proof. \nThe farther proof in the claims 108, 109, 141, and 122, consists of affidavits to the proprietary interest of the claimants; of copies of letters, in some instances ordering the goods, and in others advising of their shipment; and of copies of invoices -- all properly authenticated. This proof was satisfactory, and the order for restitution made upon it was the necessary consequence of its admission. 36 \n  In the claim to No. 118, made for Joseph Winn, the farther proof was not so conclusive. It consisted of the affidavit of the claimant to his proprietary interest, and to his character as a domiciled Portuguese subject, residing and carrying on trade in Lisbon. The affidavit was made in London on the 29th day of June, 1815, but states the claimant to have been at his fixed place of residence in Lisbon, at the time of the capture, where he had resided for several years preceding that event, and where he continued until the 12th of June, 1814, when he left  Lisbon for Bordeaux, and has since arrived in London on mercantile business. That he is still a domiciled subject of Portugal, intending to return to Lisbon, where his commercial establishment is maintained, and his business carried on by his clerks until his return. To a copy of this affidavit is annexed that of Duncan M'Andrew, his clerk, made in Lisbon, who verifies all the facts stated in it. \nThis property was also restored by the sentence of the district court, and affirmed in the circuit court. On an appeal being prayed, the circuit court made an order, allowing this claimant to take farther proof  to be offered to this court. The proof offered under this order consists of a special affidavit of one of the shippers of sworn copies of letters, ordering the shipment, and of the invoice of the articles shipped. \nThis claim not having been attended, when the sentence of restitution was made, with any suspicious circumstances, other than the absence of papers which have since been supplied, and which was probably the result solely of inadvertence, this court is of opinion, that the farther proof now offered, ought to be received. It certainly dissipates every doubt respecting the proprietary interest. The only question made upon it respects the neutral character of the claimant. \nIt has been urged, that his native character easily reverts, and that by returning to his native country, the claimant has become a redintegrated British subject.  But his commercial establishment in Lisbon still remains; his mercantile affairs are conducted in his absence by his clerks; he was himself in Lisbon  at the time of the capture; he has come to London merely on mercantile business, and intends returning to Lisbon. Under these circumstances, his Portuguese domicil still  continues. \nBut it is contended, that the connection between Britain and Portugal retains the British character, and the counsel for the captors has enumerated the priviliges of Englishmen in that country. \nThere privileges are certainly very great; but, without giving them a minute and separate examination, it may be said, generally, that they do not confound the British and Portuguese character. They do not identify the two nations with each other, or effect those principles on which, in other cases, a merchant acquires the character of the nation in which he resides and carries on his trade. If a Brittish merchant, residing in Portugal, retains his British character when Britain is at war and Portugal at peace, he would also retain that character when Portugal is at war and Britain at peace. This no belligerent could tolerate. Its effect would be to neutralize the whole commerce of Portugal, and give it perfect security. \nSentence affirmed. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Chief Justice MARSHALL delivered the opinion of the court. \nOn the 25th day of March, 1789, George Kyger and Josiah Watson entered into articles for the exchange of a lot in Alexandria, estimated at $2,200, for certain lands in Kentucky, the property of Watson. The lot was to be conveyed to Watson within eighteen months from the date of the contract; in consideration of which, Watson stipulated to convey to Kyger such lands surveyed and patented for him, on the waters of Elkhorn in Kentucky, as the said Kyger should select, to the extent of $2,200, at one dollar per acre, as soon as Kyger should make his election, and furnish a plot and survey of the lands chosen. \nOn the 23d day of December, 1790, a second agreement was entered into, which, after reciting the terms of the first, states, that George Kyger had represented to the said Josiah, that the land on Elkhorn was not so valuable as Kyger had supposed; and had proposed to extend the  time of surveying and choosing the  lands in Kentucky, and to be allowed to take lands to the amount of $2,200 on the waters of the Elkhorn, or from other lands patented for the said Josiah, in Kentucky, at the intrinsic value which such land bore at any time between the 25th day of March, 1789, and the 25th day of September, 1790. On this representation it was agreed that the time for choosing, valuing, and conveying the lands in Kentucky, should be extended eighteen months; that Kyger might take lands to the stipulated amount, from other tracts, which were specified, at the intrinsic value between the periods before mentioned, taking not less than 700 acres out of any one tract. To ascertain the value of these lands, Thomas Marshall, the elder, was chosen on the part of Watson, and Samuel Buler on behalf of Kyger; and it was agreed that if T. Marshall should die or refuse to act, the agent of Watson in Kentucky should nominate some other person in his stead. A similar provision was made for supplying the place of Buler. The selection and valuation being thus made, Josiah Watson was to convey the land selected and valued. \nIn the year 1806, Daniel Kyger and others, devisees  of George Kyger, party to the said contracts, filed their bill in chancery in the circuit court for the county of Alexandria, stating the contracts above mentioned: and stating, farther, that the lot in Alexandria had been duly conveyed; that Thomas Marshal had refused to act as a valuer; that the agent of Watson had nominated John M'Whattan in his place; that in the year 1791, the said M'Whattan and Buler proceeded to make a valuation, by which the lands on Elkhorn were valued  at 1,200 dollars, and by which one tract of 1,800 acres on Ravin creek, and one other tract of 1,200 acres on Forklick creek, were taken to complete the amount in value to which Kyger was entitled under the contract. \nThe bill proceeds to state, that this valuation was made known to Josiah Watson, and the conveyances demanded, but from some unknown cause were not made until Josiah Watson became bankrupt. That in the year - George Kyger departed this life, having first made his last will in writing, in which he devised all his real estate in Kentucky, to the plaintiffs. In the year 1805 the plaintiffs presented to Josiah Watson an affidavit made by M'Whattan and Buler, stating the  valuation they had made, and demanded a conveyance. He excused himself on account of the bankruptcy, but executed a release which recites the agreement and valuation; and that a deed for the lands had been executed by him, which was in the hands of John M'Iver, the defendant. This release is annexed to the bill. The bill prays that M'Iver, the defendant, who is the assignee of the bankrupt, may be decreed to convey the lands contained in the valuation of M'Whattan and Buler. \nThe answer admits the contracts, but does not admit that Thomas Marshall declined acting as a valuer, or that M'Whattan was appointed in his place. It avers that the Elkhorn lands where worth the sum at which they were rated in the first contract, and that the second was  obtained by the fraudulent representations of Kyger. That the valuation of M'Whattan and Buler was not only unauthorized, but made under  an imposition practised on them by Kyger, who prevailed on them to consider the contract as obliging them to value the lands on Elkhorn and Eagle creek at no more that one dollar per acre, although they might be worth more. That Josiah Watson never admitted that Kyger was entitled  to more than the Elkhorn and Eagle-creek land, which was, therefore, not conveyed to his assignees, though the other lands mentioned in the bill were so conveyed. The defendant consents that a conveyance be decreed for the Elkhorn and Eagle-creek lands, and insists that the bill as to the residue ought to be dismissed. \nSeveral depositions were taken, which generally estimate the Elkhorn and Eagle-creek land at a dollar or more per acre. One deposition estimates them at 83 cents. Parts of those lands were sold by Kyger at various prices, whether on credit, or on what credit, is not stated, averaging rather more than one dollar per acre. \nThe deposition of M'Whattan was taken by the defendant, and states that the valurers acted under the first agreement; and, to the best of his recollection, thought themselves bound to estimate the first rate land at no more than one dollar per acre. \nThe court decreed a conveyance for all the lands contained in the valuation, from which decree the defendant appealed to this court. \nThe appellant contends: \n1st. That the second contract ought to be annulled, having been obtained by fraud. If this be against him, then, \n 2d. The valuation  ought to be set aside, and a revaluation directed. \n1. Admitting the lands on Elkhorn and Eagle-creek to have been worth, intrinsically, one dollar per acre, a fact not entirely certain, the court is of opinion that the second contract is not impeachable on that ground. It is not suggested, nor is it to be presumed, that Watson derived his sole knowledge of the value of his lands from the representations made by Kyger. The value fixed in the first contract was probably founded on his previous information, and there is no reason to doubt, that when Kyger was dissatisfied with the stipulated price, Watson was perfectly willing to leave the value to arbitrators mutually chosen by the parties. The court perceives no reason for annulling the second contract. \n2. On the second point the establishment of the valuation made by M'Whatten and Buler, there is a total want of testimony. The defendant, in his answer, denies the authority of M'Whattan to act as a valuer, and there is no proof to support the allegation of the bill. The ex parte affidavit of M'Whattan and Buler, did it even contain any evidence of their authority, is inadadmissible; and the recitals of the deed of the release  executed by Watson after he became a bankrupt are not evidence. The decree, therefore, so far as it establishes this valuation, and orders conveyances to be made in conformity with it, must be reversed, and that valuation set aside and a new one directed. \nDecree accordingly. \n \n\n ", " \nOpinion \n\n \n \nMr. Chief Justice MARSHALL delivered the opinion of the court, reversing the decree of condemnation in the court below, and ordering the property to be restored as claimed. \nDecree reversed. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Chief Justice MARSHALL delivered the opinion of the court, and after stating the facts, proceeded as follows: \nAt the trial  the cause seems to have turned principally on the necessity to unlade the cargo at Mantanzas produced by the order of the Spanish government at the Havanna.As this court concurs with the circuit judge in the opinion that this order was obtained under circumstances which take from it the character of a force imposed on the master, and compelling him to discharge his cargo, and is, therefore, no excuse for such discharge, it will be unnccessary farther to notice that part of the case. The question to be considered is, that part of the opinion which declares that unlading the cargo at Matanzas, although it occasioned no delay and did not increase, but diminish the risk, was a deviation which discharged the underwriters. \n In considering this question, it is to be observed that the termini of the voyage were not changed. The Henry did sail from Teneriffe to the Havanna, and was lost on the voyage  from the Havanna to Baltimore. The policy permitted her to stop at Matanzas, and the purpose of stopping was to know if there were any men of war off the Havanna. It would be idle to stop for the purpose of making this enquiry, if it were not intended that the Henry  might continue at Matanzas so long as the danger continued. The stopping and delay at Matanzas is then expressly allowed by the policy. \nBut, admitting this, it is contended, that unlading the cargo is a deviation. \nAnd why is it a deviation? It produced no delay, no increase of risk, and did not alter the voyage. The vessel pursued precisely the course marked out for her in the policy. In reason nothing can be found in this transaction which ought to discharge the underwriters. If, however, the case has been otherwise decided, especially in this court, those decisions must be respected. \nIn Stitt v. Wardel, (1 Esp. N.P. Rep. 610.) it was determined that liberty to touch and stay at any port did not give liberty to trade at that port; and in Sheriff v. Potts, (5 Esp. N.P. Rep. 96.) it was decided that liberty to touch and discharge goods did not authorise the taking in of other goods. These cases certainly bear considerable force on that under consideration, but they were decided at nisi prius, and seem to have been in a great degree overruled by the court in the case of Raine v. Bell, reported in 9th East. In that case, under  a policy to touch and stay at any place,  goods were taken on board during a necessary stay at Gibraltar. The court was of opinion that as this occasioned no delay nor any increase or alteration of the risk, the plaintiff was entitled to recover. Between the case of Raine v. Bell, and this case, the court can perceive no essential difference. \nIn the supreme court of Pennsylvania, ( Kingston v. Gerard, 4 Dal. 274.) a similar question occurred, and it was there held, that unlading and selling part of her cargo by a captured vessel during her detention, would not avoid the policy. \nBut it is contended, that this point has been settled in this court, in the case of the Maryland Insurance Company against Le Roy and others. In that case, a liberty was reserved in the policy \"to touch at the Cape de Verd Islands for the purchase of stock, such as hogs, goats, and poultry, and taking in water.\" The vessel stopped at Fago, one of the Cape de Verd Islands, and took in four bullocks and four Jackasses, besides water and other provisions, unstowed the dry goods, and broke open two bales, and took 40 pieces out of each, for trade. The vessel remained at the island from the 7th to the 24th of May, although the usual delay at those islands  for taking in stock and water, when the weather is good, is from two to three days. The weather was good during this delay;  and the bullocks and jackasses encumbered the deck of the vessel, more than small stock would have done. The court left it to the  jury to determine, whether the risk was increased by taking the jackasses on board, and directed them to find for the plaintiffs, unless the risk was thereby increased. The jury found for the plaintiffs; and this court reversed the judgment rendered on that verdict, because the taking in the jackasses was not within the permission of the policy. \nIt is perfectly clear, that the case of the Maryland Insurance Company v. Le Roy and others, differs materially from this. In that case, articles were taken on board which encumbered the deck of the vessel, and which were not within the liberty reserved in the policy. In that case too, the insured traded, and the delay was considerable and unnecessary; the risk, if not increased, might be, and certainly was varied. The judge, therefore, ought not to have left it to the jury on the single point of increase of risk by taking in the jackasses. Although the risk might  not be thereby increased, the unauthorised delay and unauthorised trading during that delay, connected with taking on board unauthorised articles, discharged the underwriters according to the settled principles of law; and the court does not say in that case that these circumstances were immaterial or without influence. The court does not feel itself constrained by the decision in the Maryland Insurance Company v. Le Roy et al. to determine that in this case also, which differs from that in several important circumstances, the underwriters are discharged.  The Judgment is reversed, and the cause remanded, with directions to issue a venire facias de novo. \nJudgment reversed. 5 \n \n \n\n ", " \nOpinion \n\n \n \n  Mr. Chief Justice MARSHALL delivered the opinion of the court, and after stating the facts, proceeded as follows: \nThe general principle unquestionably is, that  to entitle the plaintiff to recover, the loss must be occasioned by one of the perils in the policy. This is equally the rule of reason and the rule of law. But the plaintiff contends that the case of Vallejo v. Wheeler denies the application of  this principle to a loss in a case in which barratry has been committed. This court is not of that opinion. The case of Vallejo v. Wheeler declares it to be immaterial whether the loss occurred during the continuance of the barratry, or afterwards, not whether the loss was produced by the barratry. In that case the court was of opinion that the loss was produced by the barratry. \nJudgment Affirmed. 3 \n \n \n\n ", " \nOpinion \n\n \n \n  Mr. Chief Justice MARSHALL delivered the opinion of the court, and after stating the facts, proceeded as follows: \nOn the part of the plaintiff in error, it has been contended, that the assured have sustained a technical total loss, by a peril within that clause in the policy, which insures \"against all unlawful arrests,  restraints, and detainments of kings,\" &c. \n He contends, 1st. That a blockade is a \"restraint,\" of a foreign power. 2d. That, on a neutral vessel, with a neutral cargo, laden before the institution of the blockade, it is \"an unlawful restraint.\" \nThe question, whether a blockade is a peril insured against is one on which the court has entertained great doubts. In considering it, the import of the several words used in the clause has been examined. It certainly is not \"an arrest,\" nor is it \"a detainment.\" Each of these terms implies possession of the thing by the power which arrests or detains; and in the case of a blockade, the vessel remains in the possession of the master. But the court does not understand the clause as requiring a concurrence of the three terms, in order to constitute the peril described. They are to be taken severally; and if a blockade be a \"restraint,\" the insured are protected against it, although it be neither an \"arrest,\" nor \"detainment.\" \nWhat, then, according to common understanding, is the meaning of the term \"restraint?\" Does it imply, that the limitation, restriction, or confinement, must be imposed by those who are in possession of  the person or thing which is limited, restricted, or confined; or is the term satisfied by a restriction, created by the application of external force? If, for example, a town be besieged, and the inhabitants confined within its walls by the besieging army, if in attempting to come out, they are forced back, would it be inaccurate to say they are restrained within these limits? The court believes it would not; and, if it would not, then with equal propriety  may it be said, when a port is blockaded, that the vessels within are confined, or restrained from coming out. The blockade force is not in possession of the vessels inclosed in the harbour, but it acts upon and restrains them. It is a vis major, applied directly and effectually to them, which prevents them from coming out of port. This appears to the court to be, in correct language, \"a restraint\" of power imposing the blockade, and when a vessel, attempting to come out, is boarded and turned back, this restraining force is practically applied to such vessel. \nAlthough the word, as usually understood, would seem to comprehend the case, yet this meaning cannot be sustained, if, in policies, it has uniformly received  a different construction. The form of this contract has been long settled, and the parties enter into it without a particular consideration of its terms. Consequently,  no received construction of those terms ought to be varied. \nIt is, however, remarkable, that the industrious researches of the bar have not produced a single case, from the English books, in which this question has been clearly decided. In the case of Barker v. Blakes, which has been cited and relied on at the bar, one of the points made by the counsel for the underwriters was, that the abandonment was not made in time, and the court was of that opinion. Although, in this case it may fairly be implied, from what was said by the judge, that a mere blockade is not a peril within the policy, still this does not appear to have been considered, either at the bar or by the bench, as the direct question in the cause, nor was it expressly decided. The  opinion of the court was, that the blockade constituted a total loss, which was occasioned by the detention of the vessel, but that the abandonment was not made within reasonable time after notice of that total loss. In forming this opinion, it had  not become necessary to inquire whether the blockade, unconnected with the detention, was, in itself, a peril against which the policy provided. The judgment of the court could not be in the most remote degree, influenced by the result of this inquiry; and, consequently, it was not made with that exactness of investigation which would probably have been employed, had the case depended on it. It is also to be observed, that the vessel did not attempt to proceed towards the blockaded port, but lay in Bristol when the abandonment was made. The blockading squadron, therefore, did not act directly on the vessel, nor apply to her any physical force. It is not certain that such a circumstance might not have materially affected the case. This court, therefore, does not consider the question as positively decided, in Barker v. Blakes. \nThe decisions of our own country would be greatly respected, were they uniform; but they are in contradiction to each other. In New-York, it has been held, that a blockade is, and in Massachusetts, that it is not, a peril within the policy. The opinions of the judges of both these courts are, on every account, entitled to the highest consideration. But  they oppose each other, and are not given in cases precisely similar to that now before this court. The opinion that a blockade was not a restraint, was held by the courts of Massachusetts; but was expressed by the very eminent judge who then  presided in that court, in a case where the vessel was not confined within a blocked port by the direct and immediate application of the physical force to the vessel herself. \nBelieving this case not to have been expressly decided the court has inquired how far it ought to be influenced by its analogy to principles which have been settled. \nIt has been determined in England that if the port for which a vessel sails be shut against her by the government of the place, it is not a peril within the policy. In Hadkinson v. Robinson, a vessel bound to Naples was carried into a neighbouring port by the master in consequence of information received at sea that the port of Naples was shut against English vessels. In an action against the underwriters the jury found a verdict for the defendants, and, on a motion for a new trial, the court said \"a loss of the voyage to warrant the insured to abandon must be occasioned by a peril acting upon  the subject matter of the insurance immediately, and not circuitously, as in the present case. The detention of the ship at a neutral port, to avoid the danger of entering the port of destination cannot create a total loss within the policy, because it does not arise from any peril insured against.\" 6 \nIt will not be denied that this case applies in principle to the case of a vessel whose voyage is broken up by the act of the master on hearing that his port of destination is blockaded. The peril acts directly on the vessel not more in the one case than in the other. But if, in attempting to pass the blockading  squadron, the vessel be stopped and turned back, the force is directly applied to her, and does act directly and not circuitously. \nWithout contesting or admitting the reasonableness of the opinion, that the loss of the voyage occasioned by the detention of the ship by her master in a neutral port is not within the policy, it may well be denied to follow as a corollary from it, that a vessel confined in port by a blockading squadron, and actually prevented by that squadron from coming out, does not sustain the loss of her voyage from  the restraint of a foreign power, which is a peril insured against. \nLubbock v. Rowcroft, which was decided at nisi prius, is in principle no more than the case of Hadkinson v. Robinson. Having heard that his port of destination was blockaded by, or in possession of, the enemy, the master stopped in a different port, and the insured abandoned. The loss was declared to be produced by a peril not within the policy. It is unnecessary to repeat the observations which were made on the case of Hadkinson v. Robinson. \nAn embargo is admitted to be a peril within the policy. But as has been already observed, the sovereign imposing the embargo is virtually in possession of the vessel, and may, therefore, be said to arrest and detain her. Yet, in fact, the vessel remains in the actual possession of the master or owner, and has the physical power to sail out and proceed on her voyage. The application of force is not more direct on a vessel stopped in port by an embargo, than on a vessel stopped in port by a blockading squadron. The danger of attempting to violate a blockade is as great as the  danger of attempting to violate an embargo. The voyage is as completely broken up  in one case, as in the other, and in both the loss is produced by the act of a sovereign power. There is as much reason for insuring against the one peril as against the other; and if the word restraint does not necessarily imply possession of the thing by the restraining power, it must be construed to comprehend the forcible confinement of a vessel in port, and the forcible prevention of her proceeding on her voyage. If so, the blockade is in such a case a peril within the policy. \nThe next point to be decided is the unlawfulness of this restraint. \nThat a belligerent may lawfully blockade the  port, of his enemy is admitted. But it is also admitted that this blockade does not, according to modern usage extend to a neutral vessel, found in port, nor prevent her coming out with the cargo which was on board when the blockade was instituted. If, then, such a vessel be restrained from proceeding on her voyage by the blockading squadron, the restraint is unlawful. The St. Francis de Assise was so restrained, and her case is within the policy. \nIt has been contended that it was the duty of the neutral master to show to the visiting officer of the belligerent squadron his  right of egress, by showing not only the neutral character of his vessel and cargo, but that his cargo was taken on board before the institution of the blockade. \nThis is admitted; and it is believed that the bill of exceptions shows satisfactorily that these facts were proved to the visiting officer. It is stated that the  vessel and cargo were regularly documented; that the papers were shown, and that the cargo was put on board, and the vessel had actually sailed on her voyage, before the institution of the blockade. \nThere is, however, a material fact which is not stated in the bill of exceptions with perfect clearness. The loss, in this case, is technical, and the court has decided that such loss must continue to the time of abandonment. 7 It is not necessary that it should be known to exist at time of abandonment, for that is impossible; but that it should actually exist; a fact which admits of affirmative or negative proof at the trial of the cause. Upon the application of this principle to this case, much diversity of opinion has prevailed. One judge is of opinion that the rule, having been laid down in a case of capture, is inapplicable to a loss sustained by  a blockade. Two judges are of opinion that proof of the existence of the blockade having been made by the plaintiff, his case is complete; and that the proof that it was raised before the abandonment ought to come from the other side. A fourth judge is of opinion, that connecting with the principle last mentioned, the fact stated in the bill of exceptions that the abandonment was \"in due and reasonable time,\" it must be taken to have been made during the existence of the technical loss. Four judges, therefore, concur in the opinion that the plaintiffs are entitled to recover; but as they form this opinion on different principles, nothing but the case itself is decided: That is, that a vessel within a port blockaded after the commencement of her voyage,  and prevented from proceeding on it, sustains a loss by a peril within the policy; and if the vessel so prevented, be a neutral, having on board a neutral cargo received before the institution of the blockade, the restraint is unlawful. \nJudgment reversed. 8 \n \n \n\n ", " \nOpinion \n\n \n \n  Mr. Chief Justice MARSHALL delivered the opinion of the court. The only question is, whether the price of the article at the time of the breach of the contract, or at any subsequent time before suit brought, constitutes the proper rule of damages in this case. The unanimous opinion of the court is, that the price of the article at the time it was to be delivered, is the measure of damages. For myself only, I can say that I should not think  the rule would apply to a case where advances of money had been made by the purchaser under the contract; but I am not aware what would be the opinion of the court in such a case. \nJudgment affirmed. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Chief Justice MARSHALL delivered the opinion of the court, that the use of a license or pass from the enemy, by a citizen, being unlawful, one citizen had no right to purchase of, or sell to, another, such a license or pass to be used on board an Amercan vessel. \nJudgment affirmed. 1 \n \n \n\n ", " \nOpinion \n\n \n \n  Mr. Chief Justice MARSHALL delivered the opinion of the court. The question proposed by the circuit court, which will be first considered, is, \nWhether the offence charged in this indictment was, according to the statement of facts which accompanies the question, \"within the jurisdiction or cognizance of the circuit court of the United States for the district of Massachusetts?\" \nThe indictment appears to be founded on the 8th sec. of the \"act for the punishment of certain crimes against the United States.\" That section gives the courts of the union cognizance of certain offences committed on the high seas, or in any river, haven, basin, or bay, out of the jurisdiction of any particular state. \nWhatever may be the constitutional power of congress, it is clear that this power has not been so exercised, in this section of the act, as to confer on its courts jurisdiction over any offence committed in a river, haven, basin or bay; which river, haven, basin, or bay, is within the jurisdiction of any particular state. \nWhat then is the extent of jurisdiction which a state possesses? \nWeanswer, without hositation, the jurisdiction of   a state is co-extensive with its territory; co-extensive with its legislative power. \nThe place described is unquestionably within the original territory of Massachusetts. It is then within the jurisdiction of Massachusetts, unless that jurisdiction has been ceded by the United States. \nIt is contended to have been ceded by that article in the constitution which declares, that \"the judicial power shall extend to all cases of admiralty and maritime jurisdiction.\" The argument is, that the power thus granted is exclusive; and that the murder committed by the prisoner is a case of admiralty and maritime jurisdiction. \nLet this be admitted. It proves the power of congress to legislate in the case; not that congress has exercised that power. It has been argued, and the argument in a favour of, as well as that against the proposition deserves great consideration, that courts of common law have concurrent jurisdiction with courts of admiralty, over murder committed in bays, which are inclosed parts of the sea; and that for this reason the offence is within the jurisdiction of Massachusetts. But in construing the act of congress, the court believes it to be unnecessary to pursue the investigation  which has been so well made at the bar respecting the jurisdiction of these rival courts. \nTo bring the offence within the jurisdiction of the courts of the union, it must have been committed in a river, &c. out of the jurisdiction of any state. It is not the offence committed, but the bay in which it is committed, which must be out of the jurisdiction of  the  state. If, then, it should be true that Massachusetts can take no cognizance of the offence; yet, unless the place itself be out of her jurisdiction, congress has not given cognizance of that offence to its courts. If there be a common jurisdiction, the crime cannot be punished in the courts of the union. \nCan the cession of all cases of admiralty and maritime jurisdiction be construed into a cession of the waters on which those cases may arise. \nThis is a question on which the court is incapable of feeling a doubt. The article which describes the judicial power of the United States is not intended for the cession of territory or of general jurisdiction. It is obviously designed for other purposes. It is in the 8th section of the 2d article, we are to look for cessions of territory and of exclusive  jurisdiction. Congress has power to exercise exclusive jurisdiction over this district, and over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dock yards, and other needful buildings. \nIt is observable, that the power of exclusive legislation (which is jurisdiction) is united with cession of territority, which is to be the free act of the states. It is difficult to compare the two sections together, without feeling a conviction, not to be strengthened by any commentary on them, that, in describing the judicial power, the famers of our constitution had not in view any cession of territory, or, which is essentially the same, of general jurisdiction. \nIt is not questioned, that whatever may be necessary to the full and unlimited exercise of admiralty  and maritime jurisdiction, is in the government of the union. Congress may pass all laws which are necessary and proper for giving the most complete effect to this power. Still, the general jurisdiction over the place, subject to this grant of power, adheres to the territory, as a portion of sovereignty not yet given away. The  residuary powers of legislation are still in Massachusetts. Suppose for example the power of regulating trade had not been given to the general government. Would this extension of the judicial power to all cases of admiralty and maritime jurisdiction, have devested Massachusetts of the power to regulate the trade of her bay? As the powers of the respective governments now stand, if two citizens of Massachusetts step into shallow water when the tide flows, and fight a duel, are they not within the jurisdiction, and punishable by the laws of Massachusetts?If these questions must be answered in the affirmative, and we believe they must, then the bay in which this murder was committed, is not out of the jurisdiction of a state, and the circuit court of Massachusetts is not authorized, by the section under consideration, to take cognizance of the murder which had been committed. \nIt may be deemed within the scope of the question certified to this court, to inquire whether any other part of the act has given cognizance of this murder to the circuit court of Massachusetts? \nThe third section enacts, \"that if any person or persons shall, within any fort, arsenal, dockyard, magazine, or  in any other place, or district of country, under the sole and exclusive jurisdiction of the United  States, commit the crime of wilful murder, such person or persons, on being thereof convicted, shall suffer death.\" \nAlthough the bay on which this murder was committed might not be out of the jurisdiction of Massachusetts, the ship of war on the deck of which it was committed, is, it has been said, \"a place within the sole and exclusive jurisdiction of the United States,\" whose courts may consequently take cognizance of the offence. \nThat a government which possesses the broad power of war; which \"may provide and maintain a navy;\" which \"may make rules for the government and regulation of the land and navel forces,\" has power to punish an offence committed by a marine on board a ship of war, wherever that ship may lie, is a proposition never to be questioned in this court. On this section, as on the 8th, the inquiry respects, not the extent of the power of Congress, but the extent to which that power has been exercised. \nThe objects with which the word \"place\" is associated, are all, in their nature, fixed and territorial. A fort, an arsenal, a dock-yard, a magazine, are  all of this character. When the sentence proceeds with the words, \"or in any other place or district of country under the sole and exclusive jurisdiction of the United States,\" the construction seems irresistible that, by the words \"other place\" was intended another place of a similar character with those previously enumerated, and with that which follows. Congress might have omitted, in its enumeration, some similar place within its exclusive jurisdiction  which was not comprehended by any of the terms employed to which some other name might be given; and, therefore, the words \"other place,\" or \"district of country,\" were added; but the context shows the mind of the legislature to have been fixed on territorial objects of a similar character. \nThis construction is strengthened by the fact that, at the time of passing this law, the United States did not possess a single ship of war. It may, therefore, be reasonably supposed, that a provision for the punishment of crimes in the navy might be postponed until some provision for a navy should be made. While taking this view of the subject, it is not entirely unworthy of remark, that afterwards, when a navy was created, and  congress did not proceed to make rules for its regulation and government, no jurisdiction is given to the courts of the United States, of any crime committed in a ship of war, wherever it may be stationed. 4 8 Upon these reasons the court is of opinion, that a murder committed on board a ship of war, lying within the harbour of Boston, is not cognizable in the circuit court for the district of Massachusetts; which opinion is to be certified to that court. \n The opinion of the court, on this point, is believed to render it unnecessary to decide the question respecting the jurisdiction of  the state court in the case. \nCertificate accordingly. \n \n\n ", " \nOpinion \n\n \n \n Mr. Chief Justice MARSHALL delivered the opinion of the court. In this case the libel alleges that the goods in question were exported from Bordeaux in France, and entered at the office of the collector of the customs at New Orleans, and that they were invoiced at a less sum than the actual cost thereof at the place of exportation, with design to evade the duties thereon, contrary to the provisions of the 66th section of the collection law of 1799, ch. 128. It appears in the case, that the goods were oliginally  shipped from Liverpool, and were landed at Bordeaux. All question as to continuity of voyage, and as to whether Liverpool or Bordeaux ought to be deemed the place of exportation, is out of the case, because the information charges the goods to have been exported from Bordeaux. Upon the evidence, it appears that the goods were invoiced at sixty or seventy per cent. below the price in New-Orleans; which it is supposed was at least as high as the price would have been in Liverpool: But it also appears that goods of this kind, at the time of their exportation from Bordeaux, were depreciated in value to an equal degree: And it is proved that the same goods were offered to a witness at 50 per cent. below their cost at Liverpool. The court is, therefore, not satisfied that the goods were invoiced below their true value at Bordeaux, with a design to evade the lawful duties;  and the inquiry as to their value in the port from which they were originally shipped is excluded by the form in which the libel is drawn. The decree of the district court, restoring the goods to the claimant, is, therefore. affirmed. \nDecree affirmed. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Chief Justice MARSHALL delivered the opinion of the court. This is precisely the same case as that of Mills v. Duryee. The court cannot distinguish the two cases. The doctrine there held was that the judgment of a state court should have the same credit, validity and effect, in every other court of the United States, which it had in the state where it was pronounced, and that whatever pleas would be good to a suit thereon in such state, and none others, could be pleaed in any other court in the United States. \nJudgment affirmed. 3 \n \n \n\n ", " \nOpinion \n\n \n \n Mr. Ch. J. MARSHALL delivered the opinion of the court. The appellate jurisdiction of this court, under the 25th section of the judiciary act, ch. 20. extends only to a final judgment or decree of the highest courts of law or equity in the cases specified. This is not a final judgment of the supreme court of Pennsylvania. The cause may yet be finally determined in favour of the plaintiff in the state court. \nWrit of error dismissed. \nJUDGMENT. This cause came on to be heard on the transcript of the record of the supreme court of the commonwealth of Pennsylvania, for the Lancaster district. On examination whereof, it is adjudged and ordered, that the writ of error in this cause be and the same is hereby dismissed, this court not having  jurisdiction in said cause, there not having been a final judgment in said suit, in the said supreme court of the commonwealth of Pennsylvania. 1 \n \n\n ", " \nOpinion \n\n \n \n  Mr. Chief Justice MARSHALL, delivered the opinion of the court. This vessel was captured on a voyage from Bordeaux to Pensacola by the sloop of war Wasp, and sent into Savanna in Georgia, where she was libelled and condemned as prize of war. The cargo was claimed for Mons. Foussat a French merchant residing at Bordeaux. In the district court  the cargo was condemned as enemy's property, avowedly on the principle that this character was imparted to it by the vessel in which it was found. On an appeal to the circuit court, farther proof was directed, and this sentence was reversed, and restitution decreed to the claimant. From this decree the captors appealed to this court. \nIt has been contended, that this cargo ought to be condemned as enemy's property, because, 1st, It was found on board an armed belligerent. \n2d. It is, in truth, the property of British subjects. \nOn the first question, the case does not essentially differ from that of the Nereide. It is unnecessary to repeat the reasoning on which that case was decided. the opinion then given by the three judges is retained by them. The principle of the law of nations, that the goods of a friend are safe in the bottom of an enemy, may be, and probably will be changed, or so impaired as to leave no object to which it is applicable; but so long as the principle shall be acknowledged, this court must reject constructions which render it totally inoperative. \n2d. Respecting the proprietary interest, much doubt is entertained. In addition to the extraordinary fact  of employing a belligerent carrier, while a neutral vessel  belonging to the alleged owner of the cargo lay in port, there are circumstances in this case calculated to awaken suspicion, which the claimant ought to clear up, so far as may be in his power. \nThe return cargo of the Atalanta was to be in cotton, and Berkley, Salkeld & Co., the owners of the vessel, were also owners of large cotton plantations, the produce of which might be readily shipped from Pensacola. The papers show that the Atalanta sailed from Liverpool, where her owners reside, with a cargo for Bordeaux, a part of which, about equal in value to the cargo taken in at Bordeaux, belonged to Berkley, Salkeld, & Co., and that her ultimate destination, at the time of sailing, was Pensacola, or the Havanna. \n Within a day or two after her arrival at Bordeaux, she was chartered by the claimant for the voyage on which she as captured, and the cargo he now claims was put on board. A Mr. Prichard sailed in the vessel, who was a British subject, and who has been represented in some of the testimony as a supercargo. \nThere are, undoubtedly, circumstances to diminish the suspicion which must be excited  by those that have been mentioned. The proceedings have been very irregular; no examinations in preparatorio have beer taken. The captain, and probably the mate with the alleged supercargo, were carried on board the Wasp, and have perished at sea, and Mr. Foussat, whose character is unexceptionable, has sworn positively to his interest. Yet, this interest can be, and therefore ought to be, proved by other testimony, and  it is in the power of Mr. Foussat to explain circumstances, which, as they now appear, cannot be disregarded.The court, therefore, requires farther proof, which Mr. Foussat is allowed to produce, to the following points: \n1st. To his proprietary interest in the cargo. To show how and when it was purchased. \n2d. To produce his correspondence with Barclay, Salkeld & Co., if any, respecting this voyage. \n3d. To explain the circumstances relative to the original destination to Pensacola, when the Atalanta sailed from Liverpool. \n4th. To explain the character of Mr. Pritchard, and his situation on board the Atalanta. \n5th. To establish the genuineness of the letter of the 28th of August, and say by what vessel it was sent. \n6th. To show to whom that  part of the cargo of the Atalanta, on the voyage from Liverpool to Bordeaux, which belonged to Barclay, Salkeld & Co., was con signed, and how it was disposed of. \n7th. To produce copies of the letters of Barclay, Salkeld & Co. relative to this transaction, or account for their non production. \nDissent by:", "Opinion by:  MARSHALL \nOpinion \n\n \n \n  Mr. Chief Justice MARSHALL delivered the opinion of the court. \nIn this case exceptions were taken in the circuit court, by the counsel for the plaintiff in error, \n1st. To the opinion of the court, in admitting testimony offered by the defendant in that court. \n2d. To its opinion in rejecting testimony offered by the plaintiff in that court. \n3d. To the charge delivered by the judge to the jury. \nUnder the 6th section of the act for the promotion of useful arts, and to repeal the act heretofore made for that purpose, the defendant pleaded the general issue, and gave notice that he would prove at the trial, that the improved hopperboy, for the use of which, without license, this suit was instituted, had been used previous to the alleged invention of the said Evans, in several places, (which were specified in the notice,) or in some of them, \"and also at sundry other places in Pennsylvania, Maryland, and elsewhere in the United States.\" Having given evidence as to some of the places specified in the notice, the defendant offered evidence as to some other places not specified. This evidence was objected to by the plaintiff, but admitted by  the court; to which admission the plaintiff's counsel excepted. \nThe 6th section of the act appears to be drawn on the idea, that the defendant would not be at liberty to contest the validity of the patent on the general issue. It therefore intends to relieve the defendant from the difficulties of pleading, when it allows him to give in  evidence matter which does affect the patent. But the notice is directed for the security of the plaintiff, and to protect him against that surprise to which he might be exposed, from an unfair use of this privilege. Reasoning merely on the words directing this notice, it might be difficult to define, with absolute precision, what it ought to include, and what it might omit. There are, however, circumstances in the act which may have some influence on this point. It has been already observed, that the notice is substituted for a special plea; it is farther to be observed, that it is a substitute to which the defendant is not obliged to resort. The notice is to be given only when it is intended to offer the special matter in evidence on the general issue. The defendant is not obliged to pursue this course. He may still plead specially,  and then the plea is the only notice which the plaintiff can claim. If, then, the defendant may give in evidence on a special plea the prior use of the machine at places not specified in his plea, it would seem to follow that he may give in evidence its use at places not specified in his notice. It is not believed that a plea would be defective,  which did not state the mills in which the machinery alleged to be previously used was placed. \nBut there is still another view of this subject, which deserves to be considered. The section which directs this notice, also directs that if the special matter stated in the section be proved, \"judgment shall be rendered for the defendant, with costs, and the patent shall be declared void.\" The notice might be intended not only for the information of the plaintiff,  but for the purpose of spreading on the record the cause for which the patent was avoided. This object is accomplished by a notice which specifies the particular matter to be proved. The ordinary powers of the court are sufficient to prevent, and will, undoubtedly, be so exercised, as to prevent the patentee from being injured by the surprise. \nThis testimony  having been admitted, the plaintiff offered to prove that the persons, of whose prior use of the improved hopperboy the defendant had given testimony, had paid the plaintiff for licenses to use his improved hopperboy in their mills since his patent. This testimony was rejected by the court, on the motion of the defendant, and to this opinion of the court, also, the plaintiff excepted. \nThe testimony offered by the plaintiff was entitled to very little weight, but ought not to have been absolutely rejected. Connected with other testimony, and under some circumstances, even the opinion of a party may be worth something. It is, therefore, in such a case as this, deemed more safe to permit it to go to the jury, subject, as all testimony is, to the animadversion of the court, than entirely to excluede it. \nWe come next to consider the charge delivered to the jury. \nThe errors alleged in this charge may be considered under two heads: \n1st. In construing the patent to be solely for the general result produced by the combination of all the machinery, and not for the several improved machines, as well as for the general result. \n2d. That the jury must find for the defendant, if they   should be of opinion, that the hopperboy was in use prior to the invention of the improvement thereon by Oliver Evans. \nThe construction of the patent must certainly depend on the words of the instrument. But where, as in this case, the words are ambiguous, these may be circumstances which ought to have great influence in expounding them. The intention of the parties, if that intention can be collected from sources which the principles of law permit us to explore, are entitled to great consideration. But before we proceed to this investigation, it may not be improper to notice the extent of the authority under which this grant was issued. \nThe authority of the executive to make this grant, is derived from the general patent law, and from the act for the relief of Oliver Evans. On the general patent law alone, a doubt might well arise, whether improvements on different machines could regularly be comprehended in the same patent, so as to give a right to the exclusive use of the several machines separately, as well as a right to the exclusive use of those machines in combination.And if such a patent would be irregular, it would certainly furnish an argument of no inconsiderable weight  against the construction. But the \"act for the relief of Oliver Evans\" entirely removes this doubt. That act authorizes the secretary of state to issue a patent, granting to the said Oliver Evans the full and exclusive right, in his invention, discovery, and improvements in the art of manufacturing flour, and in the several machines  which he has invented, discovered, improved, and applied to that purpose. \nOf the authority, then, to make this patent co-extensive with the construction for which the plaintiff's counsel contends, there can be no doubt. \nThe next object of inquiry is, the intention of the parties, so far as it may be collected from sources to which it is allowable to resort. \nThe parties are the government, acting by its agents, and Oliver Evans. \nThe intention of the government may be collected from the \"act for the relief of Oliver Evans.\" That act not only confers the authority to issue the grant, but, expresses the intention of the legislature respecting its extent. It may fairly be inferred from it, that the legislature intended the patent to include both the general result, and the particular improved machines, if such should be the wish of the applicant.  That the executive officer intended to make the patent co-extensive with the application of Olier Evans, and with the special act, is to be inferred from the reference to both in the patent itself. If, therefore, it shall be satisfactorily shown from his application, to have been the intention of Oliver Evans to obtain a patent including both objects, that must be presumed to have been also the intention of the grantor. \nThe first evidence of the intention of Oliver Evans is furnished by the act for his relief. The fair presumption is, that it conforms to his wishes; at least, that it does not transcend them. \nThe second, is his petition to the secretary of state,  which speaks of his having discovered certain useful improvements, and prays a patent for them, \"agreeably to the act of congress, entitled, an act for the relief of Oliver Evans.\" This application is for a patent co-extensive with the act. \nThis intention is further manifested by his specification. It is not to be denied, that a part of this specification would indicate an intention to consider the combined operation of all his machinery as a single improvement, for which he solicited a patent. But the whole  taken together will not admit of this exposition. The several machines are described with that distinctness which would be used by a person intending to obtain a patent for each.In his number 4 which contains the specification of the drill, he asserts his claim, in terms, to the principles, and to all the machines he had specified, and adds, \"they may all be united and combined in one flour-mill, to produce my improvement in the art of manufacturing flour complete, or they may be used separately for any of the purposes specified and allotted to them, or to produce my improvement in part, according to the circumstances of the case.\" \nBeing entitled by law to a patent for all and each of his discoveries; considering himself, as  he avers in his specification and affirmation, as the inventor of each of these improvements; understanding, as he declares he did, that they might be used together so as to produce his improvement complete, or separately, so as to produce it in part; nothing can be more improbable, than that Oliver Evans intended to obtain a patent solely for their combined operation. His affirmation,  which is annexed to his specification, confirms this  reasoning. To the declaration that he is the inventor of these improvements, he adds, \"for which he solicits a patent.\" \nWith this conviction of the intention with which it was framed, the instrument is to be examined. \nThe patent begins with a recital, that Oliver Evans had alleged himself to be the inventor, of a new and useful improvement in the art of manufacturing flour, &c. by the means of several machines, for a description of which reference is made to his specification. \nIt will not be denied, that if the allegation of Oliver Evans was necessarily to be understood as conforming to this recital, if our knowledge of it was to be derived entirely from this source, the fair construction would be, that his application was singly for the exclusive right to that improvement which was produced by the combined operation of his machinery. But in construing these terms, the court is not confined to their most obvious import. The allegation made by Oliver Evans, and here intended to be recited, is in his petition to the secretary of state. That petition is embodied in, and becomes a part of the patent. It explains itself, and controls the words of reference to it. His allegation  is not \"that he has invented a new and useful improvement,\" but that he has discovered certain useful improvements. The words used by the department of state in reciting this allegation, must then be expounded by the allegation itself, which is, made a part of the patent. \nThe recital proceeds, \"which improvement has not been known,\" &c. These words refer clearly to  the improvement first mentioned and alleged in the petition of Oliver Evans, and are of course to be controlled in like manner with the antecedent words, by that petition. This part of the recital is concluded by adding, that Oliver Evans has affirmed, that he does verily believe himself to be the true inventor or discoverer of the said improvement. \nBut the affirmation of Oliver Evans, like his petition, is embodied in the grant, and must, of course, expound the recital of it. That affirmation is, that he does verily believe himself to be the true and original inventor of the improvements contained in his specifition. \nIn every instance, then, in which the word improvement is used in the singular number throughout the part of recital of this patent, it is used in reference to a paper contained in the body  of the patent, which corrects the term, and shows it to be inaccurate. \nThe patent, still by way of recital, proceeds to add, \"and agreeably to the act of congress, entitled 'an act for the relief of Oliver Evans,' which authorizes the secretary of state to secure to him, by patent, the exclusive right to the use of such improvement in the art of manufacturing flour and meal, and in the several machines which he has discovered, improved, and applied to that purpose; he has paid into the treasury, &c. and presented a petition to the secretary of state, signifying a desire of obtaining an exclusive property in the said improvement, and praying that a patent may be granted for that purpose.\" \n To what do the words \"said improvement\" relate? The answer which has been given at the bar is entirely correct. To the improvement mentioned in the statute and in the petition, to both of which direct reference is made. But in the statute, and in the petition, the word used is \"improvements,\" in the plural. The patent, therefore, obviously affixed to the word improvement, in the singular, the same sense in which the plural is employed, both in the statute and in the petition. We  are compelled from the whole context so to construe the word in every place in which it is used in the recital, because it is constantly employed with express reference to the act of congress, or to some document embodied in the patent, in each of which the pleural is used. \nWhen, then, the words \"said improvement\" are used as a term of grant, they refer to the words of the recital, which have been already noticed, and must be construed in the same sense. This construction is rendered the more necessary by the subsequent words, which refer for a description of the improvement to the schedule.It also derives some weight from the words \"according to law,\" which are annexed to the words of grant. These words can refer only to the general patent law, and to the \"act for the relief of Oliver Evans.\" These acts, taken together, seem to require that the patent should conform to the specification, affirmation, and petition of the applicant. \nIt would seem as if the claim of Oliver Evans was rested at the circuit court, on the principle, that a grant for an improvement, by the combined operation  of all the machinery, necessarily included a right to the distinct operation of each  part, inasmuch as the whole comprehends all its parts. After very properly rejecting this idea, the judge appears to have considered the department of state, and the patentee, as having proceeded upon it in making out this patent. He supposed the intention to be, to convey the exclusive right in the parts as well as in the whole, by a grant of the whole; but as the means used are in law incompetent to produce the effect, he construed the grant according to his opinion of its legal operation. \nThere is great reason in this view of the case, and this court has not discarded it without hesitation. But as to the grant, with the various documents which form a part of it, would be contradictory to itself; as these apparent contradictions are all reconciled by considering the word \"improvement\" to be in the plural instead of the singular number; as it is apparent that this construction gives to the grant its full effect, and that the opposite construction would essentially defeat it, this court has, after much consideration and doubt, determined to adopt it, as the sound exposition of the instrument. \nThe second error alleged in the charge, is in directing the jury to find for the defendant,  if they should be of opinion that the hopperboy was in use prior to the improvement alleged to be made thereon by Oliver Evans. \n This part of the charge seems to be founded on the opinion, that if the patent is to be considered as a grant of the exclusive use of distinct improvements  it is a grant for the hopperboy itself, and not for an improvement on the hopperboy. \nThe counsel for the plaintiff contends, that this part of the charge is erroneous, because, by the \"act for the relief of Oliver Evans,\" Congress has itself decided that he is the inventor of the machines for which he solicited a patent, and has left that point open to judicial inquiry. \nThis court is not of that opinion. Without inquiring whether Congress, in the exercise of its power \"to secure for limited times, to authors and inventors, the exclusive right to their respective writings and discoveries,\" may decide the fact that an individual is an author or inventor, the court can never presume Congress to have decided that question in a general act, the words of which do not render such construction unavoidable. The words of this act do not require this construction. They do not grant to  Oliver Evans the exclusive right to use certain specified machines; but the exclusive right to use his invention, discovery, and improvements; leaving the question of invention and improvement open to investigation, under the general patent law. \nThe plaintiff has also contended, that it is not necessary for the patentee to show himself to be the first inventor or discoverer. That the law is satisfied by his having invented a machine, although it may have been previously discovered by some other person. \nWithout a critical inquiry into the accuracy with which the term invention or discovery may be applied to any other than the first inventor, the court  considers this question as completely decided by the 6th section of the general patent act. That declares, that if the thing was not originally discovered by the patentee, but had been in use, or had been described in some public work, anterior to the supposed discovery of the patentee, judgment shall be rendered for the defendant, and the patent declared void. \nAdmitting the words \"originally discovered,\" to be explained or limited by the subsequent words, still if the thing had been in use, or had been described in a  public work, anterior to the supposed discovery, the patent is void. It may be that the patentee had no knowledge of this previous use or previous description; still his patent is void: the law supposes he may have known it; and the charge of the judge, which must be taken as applicable to the testimony, goes no farther than the law. \nThe real inquiry is, does the patent of Oliver Evans comprehend more than he has discovered? If it is for the whole hopperboy, the jury has found that this machine was in previous use. If it embraces only his improvement, then the verdict must be set aside. \nThe difficulties which embarrass this inquiry are not less than those which were involved in the first point. Ambiguities are still to be explained, and contradictions to be reconciled. \nThe patent itself, construed without reference to the schedule and other documents to which it refers, and which are incorporated in it, would be a grant of a single improvement; but construed with those  documents, it has been determined to be a grant of the several improvements which he has made in the machines enumerated in his specification. But the grant is confined to improvements. There is no  expression in it which extends to the whole of any one of the machines which are enumerated in his specification or petition. The difficulty grows out of the complexity and ambiguity of the specification and petition. His schedule states his first principle to be the operation of his machinery on the meal from its being ground until it is bolted. He adds \"this principle I apply by various machines, which I have invented, constructed, and adapted to the purposes hereafter specified,\" \nHis second principle is the application of the power that moves the mill to his machinery. \nThe application of these principles, he says, to manufacturing flour, is what he claims as his invention or improvement in the art. \nHe asserts himself to be the inventor of the machines and claims the application of these principles, to the improvement of the process of manufacturing flour, and other purposes, as his invention and improvement in the art. \nThe schedule next proceeds to describe the different machines as improved, so as to include in the description the whole machine, without distinguishing his improvement from the machine as it existed previous thereto; and in his fourth number he says, \"I claim  the exclusive right to the principles, and to all the machines above specified, and for all the uses and purposes specified, as not having been heretofore known or used before I discovered them.\" \n If the opinion of the court were to be formed on the schedule alone, it would be difficult to deny that the application of Oliver Evans extended to all the machines it describes. But the schedule is to be considered in connection with the other documents incorporated in the patent. \nThe affirmation which is annexed to it avers, that he is the inventor, not of the machines, but of the improvements herein above specified. \nIn his petition he states himself to have discovered certain useful improvements, applicable to the art of manufacturing flour, and prays a patent for same; that is, for his improvements, agreeably to the act of congress, entitled, \"an act for the relief of Oliver Evans.\" After stating the principles as in his schedule, he adds, \"the machinery consists of an improved elevator, an improved conveyor, an improved hopper-boy, an improved drill, and an improved kilndryer.\" \nAlthough, in his specification, he claims a right to the whole machine, in his petition he  only asks a patent for the improvements in the machine. The distinction between a machine, and an improvement on a machine, or an improved machine, is too clear for them to be confounded with each other. \nThe act of congress, agreeably to which Evans petitions for a patent, authorizes the secretary of state to issue one, for his improvements in the art of manufacturing flour, \"and in the several machines which he has invented, discovered, improved, and applied to that purpose.\" \n In conformity with this act, this  schedule, and this petition, the secretary of state issues his patent, which, in its terms, embraces only improvements. Taking the whole together, the court is of opinion, that the patent is to be constructed as a grant of the general result of the whole machinery, and of the improvement in each machine. Great doubt existed whether the words of the grant, which are expressed to be for an improvement or improvements only, should be understood as purporting to be a patent only for improvements; or should be so far controuled by the specification and petition, as to be considered as a grant for the machine as improved, or in the words of the schedule  and petition, for \"an improved elevator, an improved conveyor, an improved hopperboy, an improved drill, and an improved kiln dryer.\" The majority of the court came at length to the opinion, that there is no substantial difference, as they are used in this grant, whether the words grant a patent for an improvement on a machine, or a patent for an improved machine; since the machine itself, without the improvement, would not be an improved machine. Although I did not concur in this opinion, I can perceive no inconvenience from the construction. \nIt is, then, the opinion of this court, that Oliver Evans may claim, under his patent, the exclusive use of his inventions and improvements in the art of manufacturing flour and meal, and in the several machines which he has invented, and in his improvements on machines previously discovered. \n In all cases where his claim is for an improvement on a machine, it will be encumbent on him to show the extent of his improvement, so that a person understanding the subject may comprehend distinctly in what it consists. \nSome doubts have been entertained respecting the jurisdiction of the courts of the United States, as both the plaintiff  and defendant are citizens of the same state. The 5th section of the act to promote the progress of useful arts, which gives to every patentee a right to sue in a circuit court of the United States, in case his rights be violated, is repealed by the 3d section of the act of 1800, ch. 179. (xxv.) which gives the action in the circuit court of the United States, where a patent is granted \"pursuant\" to that act, or to the act for the promotion of useful arts. This patent, it has been said, is granted, not in pursuance of either of those acts, but in pursuance of the act \"for the relief of Oliver Evans.\" But this court is of opinion, that the act for the relief of Oliver Evans is engrafted on the general act for the promotion of useful arts, and that the patent is issued in pursuance of both. The jurisdiction of the court is, therefore, sustained. \nAs the charge delivered in the circuit court to the jury differs in some respects from this opinion, the judgment rendered in the court is reversed and annulled, and the cause remanded to the circuit court, with directions to award a venire facias de novo, and to proceed therein according to law. \nJudgment reversed. \n JUDGMENT.  This cause came on to be heard on the transcript of the record of the circuit court for the district of Pennsylvania, and was urged by counsel. On consideration whereof, this court is of opinion, that there is error in the proceedings of the said circuit court in this, that the said court rejected testimony which ought to have been admitted; and also in this, that in the charge delivered to the jury, the opinion is expressed that the patent, on which this suit was instituted, conveyed to Oliver Evans only an exclusive right to his improvement in manufacturing flour and meal, produced by the general combination of all his machinery, and not to his improvement in the several machines applied to that purpose; and also, that the said Oliver Evans was not entitled to recover, if the hopperboy, in his declaration mentioned, had been in use previous to his alleged discovery. Therefore, it is considered by this court, that the judgment of the circuit court be reversed and annulled, and that the cause be remanded to the said circuit court, with directions to award a venire facias de novo. 9 \nAPPENDIX. \nNOTE II. \nON THE PATENT LAWS. \nThe patent acts of the  United States are, in a great degree, founded on the principles and usages which have grown out of the English statute on the same subject. It may be useful, therefore, to collect together the cases which have been adjudged in England, with a view to illustrate the corresponding provisions of our own laws; and then bring in review the adjudications in the courts in the United States. \nBy the statute of 21 Jac. I. ch. 3. commonly called the statute of monopolies, it is cnacted, (§ 1.) \"that all monopolies, and all commissions, grants, licences, charters, and letters patent, heretofore made or granted, or hereafter to be made or granted, to any person or persons, bodies politic or corporate whatsoever, of or for the sole buying, selling, making, working, or using of anything within this realm, or the dominion of Wales, or of any other monopolies, or of power, liberty, or faculty to dispense with any others, or to give license or toleration to do, use, or exercise anything against the tenor or purport of any law or statute, or to give or make any warrant for any such dispensation, license, or toleration, to be had or made, or to agree or compound with any others for any penalty or forfeiture  limited, by any statute, or of any grant or promise of the benefit, profit, or commodity of any forfeiture, penalty, or sum of money that is or shall be due by any statute, before judgment thereupon had; and all proclamations, inhibitions, restraints, warrants of assistance, and all other matters and things whatsoever, any way tending to the instituting, erecting, strengthening, furthering, or countenancing the same, or any of them, are altogether contrary to the laws of the realm, and so are and shall be utterly void and of none effect, and in no wise to be put in use or execution.\" The 6th section, however, provides, \"that any declaration before mentioned, shall not extend to any letters patent, and grants of privilege, for the term of fourteen years, or under, hereafter to be made, of the sole working or making of any manner of new manufactures within this realm, to the true and first inventor and inventors of such manufactures, which others, at the time of making such letters patent and grants, shall not sue, so as also they be not contrary to the law, nor mischievous to the state, by raising prices of commodities at home, or hurt of trade, or generally inconvenient; the said fourteen  years to be accounted from the date of the first letters patent, or grant of such privilege hereafter to be made, but that the same shall be of such force as they should be if this act had never been made, and none other.\" \nIt is under this last section, that patents for new and useful inventions are now granted in England; and by a proviso, or condition, always inserted in every patent, the patentee is bound particularly to describe and ascertain the nature of his invention, and in what manner the same is to be constructed or made, by an instrument in writing, under his hand and seal, and to cause the same to be enrolled in the court of chancery within a specified time. Harmar v. Playne, 11 East, 101. Boulton v. Bull, 2 H. Bl. 463. Hornblower v. Boulton, 8 T. R. 95. 2 Bl. Com. 407. note by Christian, (7.) This instrument is usually termed the specification of the invention; and all such instruments are preserved in an office for public inspection. \nUpon the construction of the British patent act, taken in connection with the conditions inserted in the letters patent, a great varicty of decisions have been made. -- 1.As the statute contains no restrictions confining the grants to  British subjects, it is every day's practice to grant patents to foreigners, and no such patent has ever been brought into judicial doubt. -- 2. A patent can be granted only for a thing new; but it may be granted to the first inventor, if the invention be new in England, though the thing was practised beyond sea before; for the statute speaks of new manufactures in this realm; so that if it be new here, it is within the statute, and whether learned by travel or study, is the same thing.Edgeberry v. Stevens, 2 Salk. 447. Hauk. P. C. b. 1. ch. 79. and see Noy. 182, 183. -- 3. The language of the statute is new manufacture; but the terms are used in an enlarged sense, as equivalent to new device or contrivance, and apply not only to things made, but to the practice of making. Under things made we may class, in the first place, new compositions of things, such as manufactures in the ordinary sense of the word; secondly, all mechanical inven tions, whether made to produce old or new effects; for a new piece of mechanism is certainly a thing made. Under the practice of making, we may class all new artificial manners of operating with the hand, or with instruments in common use, new processes  in any art, producing effects useful to the public. When the effect produced is some new substance, or composition, it would seem that the privilege of the sole working, or making, ought to be for such new substance, or composition, without regard to the mechanism or process, by which it has been produced, which, though perhaps also new, will be only useful as producing the new substance. When the effect produced is no new substance, or composition of things, the patent can only be for the mechanism, if new mechanism is used; or for the process, if it be a new method of operating, with or without old mechanism, by which the effect is produced. Per Eyre, Ch. J. in Boulton v. Bull, 2 H. Bl. 463. 492. and Lawrence, J. in Hornblower v. Boulton, 8 T.R. 65. 106. A patent therefore, under certain circumstances, may be good for a method, as well as for an engine or machine. Id. and 8 T.R. 95. 106. Rex v. Culter, 1 Starkie's N.P.R. 354. -- 4. A patent cannot be for a mere principle, properly so called; that is, for an elementary truth. But the word principle is often used in a more laxsense, to signify constituent parts, peculiar structure or process; and in specifications it is generally  used in this latter sense; and in this view, it may well be the subject of a patent. Id. 5. It was formerly considered that a patent could not be for an improvement; (3 Inst. 183.) but that opinion has been long since exploded; and it is now held that a patent may well be for a new improvement. Harmer v. Playne, 14 Ves. 130. Ex Parle Fox, 1 Ves. & Beame, 67. Boulton v. Bull, 2 H. Bl. 463. 488. 8 T. R. 95. Bull. N. P. 77. 6. A patent must be of such manufacture or process, as no other did, at the time of making the letters patent, use: for though it were nowly invented, yet if any other did use it, at the time of making the letters patent, or grant of the privilege, it is declared void by the act. 3 Inst. 184. And in a very recent case of a patent for a new mode of making verdigris, one of the objections was, that the invention was in public sale by the patentee, before the grant of the patent; and GIBBS, Ch. J. on that occasion said, \"with respect to this obiection, the question is somewhat new. Some things are obvious as s on as they are made public; of others, the scientific world may possess itself by analysis; some inventions almost baffle discovery. But to entitle a  man to a patent, the invention must be new to the world. The public sale of that which it afterwards made the subject of a patent, though sold by the inventer only, makes the patent void. It is in evidence, that a great quantity was sold in the course of four months, before the patent was obtained.\" And if the jury were satisfied of that fact, his lordship added, \"that he thought the patent void.\" Wood v. Zimmar, 1 Holt's N.P. Rep. 58. -- 7. The invention must not only be new, but useful; for if it le contrary to law, or mischievous, or hurtful to trace, or generally inconvenient, it is, by the terms of the statute, void. 3 Inst 184. -- 8 A patent can legally be granted only to the first and true inventor; forsuch are the descriptive terms of the statute. 3 Inst. 184. Eut if the original inventor has confined the invention to his closet, and the public be not acquained with it, a econd inventor, who makes it public, is entitled to a patent. Boulton v. Bull, 2 H. Bl. 463. and Dolland's patent, cited 2 H. Bt. 470, 487, -- 9. The patent, must not be mose extensive than the invention; therefore, if the intention consist in an addition, or improvement only, and the patent is for the  whole machine, or manufacture, it is void. Buller's N. P. 76. Boulton v. Bull, 2 H. Bl. 463, and cases there cited. The King v. Else, 11 East. 109. note. Harmer v. Playne, 11 East. 101 S.C. 14 Ves. 180. Therefore, where a patent was for the exclusive liberty of making lace composed of silk and cotton thread mixed, not of any particular mode of making it; and it was proved that silk and cotton thread were before mixed on the same frame for lace, in some mode or other, though not like the plaintiffs, the patent was held void, as being more extensive than the invention. The King v. Else, 11 East., 109. note. A person may obtain a patent for a machine, consisting of an entirely new combination of parts, although all the parts may have been separately used in former machines; and the patent may correctly set out the whole as the invention of the patentee. But if a combination of a certain number of those parts have previously existed, up to a certain point, in former machines, the patentee merely adding other combinations, the patent should comprehend such improvements only. Bevill v. Moore, 2 Marshall's R. 211. 10. If a person has invented an improvement upon an existing patented  machine, he is entitled to a patent for his improvement; but he cannot use the original machine, until the patent for it has expired. Ex parte Fox, 1 Ves. & Beame's R. 67. -- 11. Although the specification is not annexed to a patent in England, and the patent contains a concise description only of the invention, yet, as there is a proviso in the patent, requiring the enrolment of a specification in chancery, within a specified time, and in default making the patent void, the patent is always construed in connection with the specification, and the latter is deemed a part of the patent, at least for the purpose of ascertaining the nature and extent of the invention claimed by the patentee. Boulton v. Bull, 2 H. Bl. 463. Hornblower v. Boulton, 8 T. R. 95. -- 12. Care should be taken that the specification comports with the patent; for otherwise it would not sustain the grant. For where a patent was obtained for an improved mode of lighting cities, it was held by LE BLANC, J. that it was not supported by a specification, describing an improved lamp.The patent ought to have been for an improved street lamp.Lord Cochrane v. Smethrust, 1 Starkies' N. P. R. 205. No technical words, however,  are necessary to explain the subject of a patent; but the court will construe the terms of the patent and of the specification in a liberal manner, and give them such a meaning as best comports with the apparent intention of the patentee. Hornblower v. Boulton, 8 T. R. 95 -- Boulton v. Bull, 2 H. Bl. 463. Therefore, where the patent was \"for a method of lessening the consumption of steam and fuel in fire engines,\" one objection was, that the patent was for a philosophical principle only, neither organized, nor capable of being organized, whereas it ought to have been for a formed machine, a second objection was, that if it was a patent for a formed machine, it was for the whole machine, when the invention was only an improvement, or addition, to an existing machine: But the court of king's bench, on examining the specification, were of opinion, that both the objections were unfounded, although the terms of the specification were so doubtful and obscure as to have produced a division of opinion in the court of common pleas. Hornblower v. Boulton, 8 T. R. 95. Boulton v. Bull, 2 H. Bl. 463. Both of these cases were very elaborately discussed, and contain more learning on the subject  of patents then can be found in any other adjudi cations, and are, therefore, deserving of the most accurate at tention of every lawyer. In both of them all the judges agreed that a mere mistake in terms, or in the correct sense of words, would not vitiate a patent, if the court could give a reasonable construction to the whole specification. Mr. Justice HEATH said, \"when a mode of doing a thing is referred to something permanent, it is properly termed an engine; when to something fugitive, a method.\" \"If method and machinery had been used by the patentee as convertible terms, and the same consequences would result from both, it might be too strong to say that the inventor should lose the benefit of this patent by the misapplication of this term.\" \"Method is a principle reduced to practice; it is, in the present instance, the general application of a principle to an old machine.\" \"A patent for an improvement of a machine, and a patent for an improved machine, are, in substance, the same. The same specification would serve for both patents; the new organization of parts is the same in both.\" Mr. Justice ROOKE, said, \"a new inxented method conveys to my understanding the idea of a  new mode of construction. I think those words are tantamount to fire engines of a newly-invented construction; at least, I think they will bear this meaning, if they do not necessarily exclude every other. The specification shows that this was the meaning of the words, as used by the patentee, for he has specified a new and particular mode of constructing fire engines. It seems, therefore, but reasonable, that if he sets forth his improvement intelligibly, his specification should be supported, though he professes only to set forth the principle.\" Mr. Justice BULLER, said \"the method and mode of doing a thing are the same; and I think it impossible to support a patent for a method only, without having carried it into effect, and produced some new substance.\" \"When the thing is done, or produced, then it becomes the manufacture which is the proper subject of a patent.\" The remarks of Lord Chief Justice Eyre have been already stated. He, however, considered the patent not to be for a fire engine, but in effect for a manner of working a fire engine, so as to lessen the consumption of sleam; and, he added, 'the specification calls a method of lessening the consumption of steam in fire  engines a principle, which it is not; the act (of parliament) calls it an engine, which, perhaps, also, it is not; but both the specification and statute are referrable to the same thing, and when they are taken with their correlative, are perfectly intelligible.\" \"A narrower ground was taken in the argument, which was to expound the word engine, in the body of this act, (meaning the special act of parliament for this patent,) in opposition to the title of it, to mean a method; and I am ready to say I would resort to that ground, if necessary, in order to support the patent, ut res magis valeat quam pereat.\" In the king's bench, Mr. Justice LAWRENCE observed, \"engine and method mean the same thing, and may be the subject of a patent. Method, properly speaking, is only placing several things and performing several operations, in the most convenient order; but it may signify contrivance, or device; so may an engine; and, therefore, I think it may answer the method. So principle may mean an elementary truth; but it may also mean constituent parts.\" -- 13. The patent being granted upon condition that the invention is new, (at least in England,) and useful, and also that the patentee  shall deliver and enrol in chancery a specification of his invention, it is necessary for the patentee to establish, by proof, when his invention is called in question in a suit, that he has complied with these conditions, If, therefore, the novelty or effect of the inventions be disputed the patentee must show in what his invention consists, and that he produced the effect proposed by the patent in the manner specified. Slight evidence of this, on his part, is sufficient; and it is then incumbent on the defendant to falsify the specification. Turner v. Winter, 1 T.R. 602. -- 14. In respect to specifications, (objections to which form the most common, and indeed, usually the most fatal defence to suits for infringements of patents,) several rules have been laid down. In the first place, a man, to entitle himself to the benefit of a patent of monopoly, must disclose his secret, and specify his invention in such a way, that others of the same trade, who are artists, may be taught to do the thing for which the patent is granted, by following the directions of the specification, without any new invention, or addition of their own. Rex v. Arkwright, Bull, N.P. (77.) In the second place,  he must so describe it that the public may, after the expiration of the term, have the use of the invention in as cheap and beneficial a way as the patentee himself uses it; and, therefore, if the specification describe many parts of an instrument, or machine, and the patentee uses only a few of them, or does not state how they are to be put together or used, the patent is void. Rex. v. Arkwright, Bull, N.P. (77.) Harmar v. Playne. 11 East. 101. So, if the patentee could only make the article with two or three of the ingredients specified, and he has inserted others which will not answer the purpose, that will avoid the patent. So, if he makes the article with cheaper materials than those which he has enumerated, although the latter will answer the purpose, the patent is void. Turner v. Winter, 1 T.R. 602. In the hird place, if the specification be, in any part of it, materially false, or defective, or obscure and ambiguous, or give directions which tend to mislead the public, the patent is void. Rex v, Arkwright, Bull. N.P. (77.) Turner v. Winter, 1 T.R. 602. Therefore, where, in a patent for trusses for ruptures, the patentee omitted what was very material for tempering the  steel, which was rubbing it with tallow, Lord Mansfield held the patent, for want of it, void. Liardet v. Johnson, Bull. N.P. (76.) S.C. cited 1 T.R. 602. 608. per Buller, J. So, where a patent was for a new mode of making verdigris, and the specification omitted an ingredient, (aqua fortis) which, though not necessary to the composition for which the patent was claimed, was a more expeditious and beneficial mode of producing the same effects, and was, as such, used by the patentee, Lord Ch. J. GIBBS held the patent void. Wood v. Zimmer, 1 Holt's N.P.R. 58. So, if the specification direct an ingredient to be used which will not answer the purpose, or is never used by the patentee, the patent is void. Turner v. Winter, 1 T.R. 602. So, if the patentee says, in his specification, he can produce three things by one process, and he fails in any one, the patent is void. Turner v. Winter, 1 T.R. 602. So, if the specification direct the same thing to be preduced several ways, or by several different ingredients, and any of them fail, the patent is void. Turner v. Winter, 1 T.R. 602. In the fourth place, if the invention be of an improvement only, it is indispensable that the patent  should not be more broad than the invention, and the specification should be drawn up in terms which do not include anything but the improvement. Boulton v. Bull, 2 H. Bl. 463. Bull. N.P. 76.Bovill v. Moore, 2 Marsh. R. 211. And in the specification for such improvement it is essential to point out precisely what is new and what is old; and it is not sufficient to give a general description of the construction of the instrument, without such distinction, although a plate be annexed containing detached and separate representations of the parts in which the improvement consists. Therefore, where a patent was \"for certain improvements in the making of umbrellas and parasols,\" and the specification contained a minute description of the construction of them, partly including the usual mode of stitching the silk, and also certain improvements in the insertion of the stretches, &c. and throughout the whole specification no distinction was made between what was new and what was old, Lord ELLENBOROUGH said, \"the patentee ought, in his specification, to inform the person who consults it, what is new and what is old. He should say, my improvement consists in this, describing it by words if  he can, or, if not, by reference to ngures. But here the improvement is neither described in words nor figures. and it would not be in the wit of man, unless he were previously acquainted with the construction of the instrument, to say what was new and what was old. A person ought to be warned by the specification against the use of a particular invention.\" M'Farlane v. Price, 1 Starkie's N.P.R. 199. And it may be added also, that the public have a right to purchase the improvement by itself, and not to be encumbered with other things, where the improvement is of an old machine. But where the patentee obtained a patent for a new machine, and afterwards another patent for improvements in the said machine, in which the grant of the former was recited, it was held that a specification containing a full description of the whole machine so improved, but not distinguishing the new improved parts, or referring to the former specification, otherwise than as the second recited the first, was sufficient. Lord ELLENBOROUGH, on that occasion, said, \"it may not be necessary indeed, in stating a specification of a patent for an improvement, to state precisely all the former known parts of the  machine, and then to apply to those the improvement; but on many occasions it may be sufficient to refer generally to them. As in the instance of a common watch, it may be sufficient for the patentee to say, take a common watch, and add or alter such and such parts, describing them.\" Harmar v. Playne, 11 East, 101. S.C. 14 Ves. 130. The case, also, of Boviii v. Moore, already cited, (2 Marsh. R. 211.) affords very important instruction on this point. In the fifth place, if a patentee in his specification sum up the principle in which his invention consists, if this principle be not new, the patent cannot be supported, although it appear that the application of the principle, as described in the specification, be new; for the patentee, by such summing up, confines himself to the benefit only of the principle so stated. Rex. v. Cutler, 1 Starkie's N.P.R. 354. -- 15. If a patent is void, the patentee cannot enforce performance of a covenant for the observance of the exclusive right, entered into by the covenantor, in contemplation of the patent being good. Hayne v. Maltby, 3 T.R. 438. -- 16. The right of a patentee is assignable at law; and upon such an assignment the assignee has  the exclusive right to maintain an action for any infringement of the patent. See Boulton v. Bull, 2 H. Bl. 463. 17. Where the patentee has assigned his patent, in an action by the assignee against the patentee, for an infringement of the patent, the latter will not be permitted to aver against his deed that the invention is not new. Oldham v. Langmead, cited 3 T.R. 439. -- 18. Where the patent is void, from any of the causes before stated, the party sued for an infringement may, under the general issue, avail himself of any matter in his defence. -- 19. Or the patent itself may be repealed by a scire facias by the king, upon the ground of fraud, or false suggestion. The mode of proceeding on scire facias may be seen in 2 Saunders' Rep. 72. William's note, (4.) s. 4. \nThese are the principal doctrines established in the English courts, upon the subject of patents for new inventions. In respect to the adjudications under the patent laws of the United States, it is matter of regret that so few of them have been published; but the following are the leading provisions of the act, and the principles which have been recognised as applicable to it. It may be convenient to follow  the order of the patent act itself, and to arrange the decisions under the corresponding heads, to which they properly belong. \nThe first patent act of the United States was passed in the year 1790. (Act of the 10th of April, 1790, ch. 34.) and was repealed by another act, passed in the year 1793. (Act of the 21st of February, 1793, ch. 11.) and this last act, as amended by the act of 1800, (act of the 17th of April, 1800, ch. 25.) constitutes the present general patent law of the United States. 1. By the first section of the act of 1793, any citizen who has invented any new and useful art, machine, manufacture, or composition of matter, or any new and useful improvements therein, not known or used before the application, may, on application and petition to the secretary of state, obtain a patent for the exclusive right and liberty of making, constructing, using, and vending to others to be used, the said invention or discovery upon complying with the regulations of the act; and the patent' is required to recite the allegations and suggestions of the petition, and give a short description of the invention or discovery. The letters patent, previous to their being issued, are to  be examined by the attorney-general, and are by him to be certified to be conformable to law, and are then to be recorded in the office of the secretary of state. The act of 1800, ch. 25. s. 1. and 2. extends this provision to aliens who have resided two years in the United States; and also to the legal representatives and devisees of a person entitled to a patent, who dies before it is obtained. The original inventor of a machine, who has reduced his invention first into practice, is entitled to a priority of the patent right; and a subsequent inventor, although an original inventor, can sustain his claim, although he has obtained the first patent; for qui prior est in tempore, polior est in jure. Woodcock v. Parker, 1 Gallis. R. 438.Odiome v. Winkley, 2 Gallis. R. 51. And, therefore, every subsequent patentee, although an original inventor, may be defeated of his patent right, upon proof of such prior invention put into actual use. Bedford v. Hunt, 1 Mason's R.; for then the invention cannot be considered as new. If an inventor make a gift of his invention to the public, and suffer it to go into general use, he cannot afterwards resume the invention, and claim an exclusive right  under a patent. Whittemore v. Cotter, 1 Gallis. R. 478. By useful invention, in the patent act, is meant an invention which may be applied to a beneficial use in society, in contradistinction to an invention injurious to the morals, health, or good under of society, or frivolous and insignificant. Bedford v. Hunt, 1 Mason's R. Lowell v. Lewis, 1 Mason's R. It is not necessary to establish that it is in all cases superior to the modes now in use for the same purpose. Ibid. -- 2. By the second section, any person who shall have invented an improvement, shall not be at liberty to use the original discovery, nor shall the original inventor be at liberty to use the improvement. And the simply changing the form or the proportions of any machine, or composition of matter, in any degree, shall not be deemed a discovery. (See Odiorne v. Winkley, 2 Gallis. R. 51.) If the inventor of an improvement obtain a patent for the whole machine, the patent, being more extensive than the invention, is void. Woodcock v. Parker, 1 Galas, R. 439. Whittemore v. Cutter, 1 Gallis, R. 478. Odiorne v. Winkley, 2 Gallis R. 51. -- 3. By the third section, every inventor, before he can obtain a patent,  is required to swear that he is the true inventor or discoverer of the art, machine, or improvement, for which he solicits a patent, and to deliver a written description of his invention, and of the manner of using, or process of compounding it, in such full, clear, and exact terms, as to distinguish th same from all other things before known, and to enable any person skilled in the art or science of which it is a branch, or with which it is most nearly connected, to make, compound, and use the same. And in the case of any machine, he shall fully explain the principle, and the several modes in which he has contemplated the application of that principle, or character, by which it may be distinguished from other inventions; and he is to accompany the whole with drawings and written refferences, where the nature of the case admits of drawings; or with specimens of the ingredients, and of the composition of matter, sufficient in quantity for the purpose of experiment, where the invention is a composition of matter; which description, signed by himself, and attested by two witnesses, is to be filed in the office of state; and the inventor is moreover to deliver a model of his machine,  if the secretary shall deem it necessary. The patentee must describe, in his specification, with reasonable certainty, in what his invention consists; otherwise it will be void for ambiguity. If it be for an improvement in an existing machine, he must, in his specification, distinguish the new from the old, and confine his patent to such parts only as are new; for if both are mixed up together, and a patent is taken for the whole, it is void. Lowell v. Lewis, 1 Mason's R. The taking of the oath is directory to the party; but if, by mistake, the oath is not taken before the issuing of the patent, the patent is not thereby rendered void. Whittemore v. Cutter, 1 Gallis. R. 429. -- 4. By the fourth section, patentees may assign their rights, and, upon the assignment being recorded in the office of state, the assignee shall stand in the place of the original inventor, both as to right and responsibility, and so the assignees of assignees in any degree. Where the patentee has assigned an undivided moiety of his patent right, the action for an infringement of the right should be in the joint names of the patentee and the assignee. Whittemore v. Cutter, 1 Gallis. R. 429. \nBu an assignee  of the patent right, dy an assignment excepting certain places is not an assignee entitled to use within the act. Tyler v. Tuel, 6 Cranch, 324. -- 5. The third section of the act of 1800 (which is a substitute for the fifth section of the act of 1793,) declares, that any person who without the written consent of the patentee, &c. shall \"make, devise, use, OR sell,\" (the words of the fifth section of the act of 1793 were \"make, devise, AND use, or sell,\") the thing patented, shall forfeit three times the actual damages sustained by the patentee, &c. to be recovered by an action on the case, in the circuit court of the United States, having jurisdiction thereof. Upon this section it has been held that the making of a patanted machine fit for use, and witha design to use it for profit, in violation of the patent right, is, of itself, a breach of this section, for which an action lies; but where the making only, without a user, is proved, noninal damages only are to be given for the plaintiff. Whittemore v. Cutter, 1 Gallis. R. 429 478. If a user is proved, the measure of damages is the value of the use during the time of the user. Ibid. But the act gives the plaintiff a right to his  actual damages only, and not to a vindictive recompense, as in other cases of tort. Ibid. And neither the price of, nor the expense of making, a patented machine, is a proper measure of damages in such case. Ibid. The sale of the materials of a patented machine by a sheriff, upon an execution against the owners, is not a sale which subjects the sheriff to an action under the third section of the act of 1800. Sawin v. Guild, 1 Gallis. R. 435. In an action on this section the jury are to find the single damages, and the court are to taeble them. Whittemore v. Cutter, 1 Gallis. R. 479. -- 6. The sixth section authorizes the defendant to plead the general issue, and give this act, and any special matter, in evidence, of which notice in writing may have been given to the plaintiff thirty days before trial, tending to prove, (1) that the specification does not contain the whole truth relative to the discovery, or that it contains more than is necessary to produce the described effect, which concealment or addition, shall fully appear to have been made for the purpose of deceiving the public; (2) or that the patented thing was not originally discovered by the patentee, but had been  in use, or had been described in some public work, anterior to to the supposed discovery of the patentee; (3) or that he had surreptitiously obtained a patent for the discovery of another person; in either of which cases judgment shall be rendered for the defendant, with costs, and the patent shall be declared void. Besides the points decided in the principal case in the text, (Evans v. Eaton,) the following are descriving of notice. It is clear, that this section does not include all the matters of defence which the defendant may be legally entitled to make; as for instance, it does not include the case of the non-existence of the fact of infringement in any shape; the case of an assignment from the plaintiff, or a written license, or purchase from the plaintiff; so that the patentee is an alien not entitled to a patent; which are cleally bars to the action, upon the very terms of the act, as well as the general principles of law. Whittemore v. Cutter, 1 Gallis. R. 429, 435.So, if the specification do not describe the invention in clear and exact terms, so as to distinguish it from other inventions, but be so embiguous and obscure that it cannot be with reasonable certainty ascertained  for what the patent is taken, or what it includes, the patent is void for ambiguity; and the fact may be shown in his defence by the defendant. Lowell v. Lewis, 1 Mason's R. But if the invention is definitively described in the patent and specification, so as to distinguish it from other inventions before known, the patent is good, although it does not describe the invention in such full clear, and exact terms, that a person skilled in tha art, or science, of which it is a branch, could construct and make the thing; unless such defective description or concealment was with intent to deceive the public. Whittemore v. Cutter, 1 Gallis. R. 429. Lowell v. Lewis, 1 Mason's R. In order to de feat a patent, it is not necessary to prove that the invention has previously been in general use, and generally known to the public. It is sufficient, if it has been previously known to, and put in use by, other persons, however limited in extent the use or the knowledge of the invention may have been. Bedford v. Hunt, 1 Mason's R. -- 7. The seventh section applies only to the cases of patents, under state authority, before the constitution of the United States. -- 8. The eighth section applied  only to applications then pending for patents, under the patent act of 1790. -- 9. The ninth section directs that, in cases of interfering applications for a patent for the same invention, the same may be referred to arbitrators, chosen by the applicants and the secretary of state, whose award shall be final, \"as far as respects the granting of the patent; and if either of the applicants refuse to choose an arbitrator, the patent shall issue to the opposite party. It has been held that such an award is not conclusive in any other respect than as to the mere issuing of the patent; and that it decides nothing as to the right of invention, or other claims of either party, but that either party may contest, in a suit at law, the validity of the patent. Stearns v. Barrett, 1 Mason's R -- 10. The tenth section provides that upon oath or affirmation being made before the district judge of the district where the patentee, his executors, &c. reside, that any patent was obtained \"surreptiliously, or upon false suggestion, (the words of the act of 1790 are \"surreptitiously by or upon false suggestion,\") the district judge may, if the matter appear sufficient, at any time within three years  after the issuing of the patent, grant a rule that the patentee show cause why process should not issue against him, to repeal the patent; and if sufficient cause be not shown, the rule shall be made absolute, and the judge shall order process to be issued against such patentee, &c. with costs of suit. And if no sufficient cause shall be shown to the contrary, or if it shall appear that the patentee was not the true inventor or discoverer, judgment shall be rendered by the court for the repeal of the patent; and if the plaintiff fails in his complaint the defendant shall recover costs. It has been held, that the proceedings upon the rule to show cause are summary; and that when it is made absolute; it is not, that the patent be repealed, but only that process issue to try the validity of the patent, on the suggestions stated in the complaint. That this process is in the nature of a scire facias at the common law, to repeal patents, and the issues of fact, if any, are to be tried, not by the court, but by a jury; that the judgment upon this process is in the nature of a judgment on a scire facias at common law, upon which a writ of error lies, as in other cases, to the circuit court,  where there is matter of error apparent on the record, by bill of exceptions, or otherwise. That the patent itself is slight but prima facie evidence, in favour of the patentee, that it is his invention; that if it appear that he is but a joint inventor, and he takes out the patent as his sole invention, it is an obtaining of the patent upon false suggestion within the act. Stearns v. Barrett, 1 Mason's R. -- 21.The remaining sections of the act, (11, and 12.) contain no matter of any general importance; the eleventh being directory only as to the fees of office, and the twelfth being a repealing clause of the act of 1790. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Chief Justice MARSHALL delivered the opinion of the court. In this case, a series of questions has been proposed by the circuit court of the United States, for the district of Massachusetts, on which the judges of that court were divided in opinion. The questions occurred on the trial of John Palmer, Thomas Wilson, and  Barney Calloghan, who were indicted for piracy committed on the high seas. \nThe first four questions, relate to the construction of the 8th section of the \"act for the punishment of certain crimes against the United States.\" \nThe remaining seven questions, respect the rights of a colony or other portion of an established empire, which has proclaimed itself an independent nation, and is asserting and maintaining its claim to independence by arms. \nThe 8th section of the act on which these prisoners were indicted is in these words: \"And be it enacted, that if any person or persons shall commit, upon the high seas, or in any river, haven, bason, or bay, out of the jurisdiction of any particular state, murder or robbery, or any other offence, which, if committed within the body of a county, would, by the laws of the United States, be punishable with death; or if any captain or mariner of any ship or other vessel, shall piratically and feloniously run away with such ship or vessel, or any goods or  merchandize, to the value of fifty dollars or yield up such ship or vessel voluntarily to any pirate; or if any seaman shall lay violent hands upon his commander, thereby to hinder  and prevent his fighting in defence of his ship, or goods committed to his trust, or shall make a revolt in the ship; every such offender shall be deemed, taken, and adjudged to be a pirate and felon, and being thereof convicted, shall suffer death; and the trial of crimes committed on the high seas, or in any place out of the jurisdiction of any particular state, shall be in the district where the offender is apprehended, or into which he may first be brought.\" \nRobbery committed on land, not being punishable by the laws of the United States with death, it is doubted whether it is made piracy by this act, when committed on the high seas. The argument is understood to be, that congress did not intend to make that a capital offence on the high seas, which is not a capital offence on land. That only such murder, and such robbery, and such other offence as, if committed within the body of a county, would, by the laws of the United States, be punishable with death, is made piracy. That the word \"other\" is without use or meaning, if this conctruction be rejected. That it so connects murder and robbery with the following member of the sentence, as to limit the words murder and robbery  to that description of those offences which might be made punishable with death, if committed on land. That in consequence of this word, the relative \"which\" has for its antecedent the whole preceding part of the sentence, and not the words \"other offences.\" That section  consists of three distinct classes of piracy. The first of offences which if committed within the body of a county, would be punishable with death. The second and third, of particular offences which are enumerated. \nThis argument is entitled to great respect on every account; and to the more, because, in expounding a law which inflicts capital punishment, no over rigid construction ought to be admitted. But the court cannot assent to its correctness. \nThe legislature having specified murder and robbery particularly, are understood to indicate clearly the intention that those offences shall amount to piracy; there could be no other motive for specifying them. The subsequent words do not appear to be employed for the purpose of limiting piratical murder and robbery, to that description of those offences which is punishable with death, if committed on land, but for the purpose of adding other offences,  should there be any, which were not particularly recited, and which were rendered capital by the laws of the United States, if committed within the body of a county. Had the intention of congress been to render the crime of piracy dependent on the punishment affixed to the same offence, if committed on land, this intention must have been expressed in very different terms from those which have been selected. Instead of enumerating murder and robbery as crimes which should constitute piracy, and then proceeding to use a general term, comprehending other offences, the language of the legislature would have been, that \"any offence\" committed on the high seas, which, if  committed in the body of a county, would be punishable with death, should amount to piracy. \nThe particular crimes enumerated were undoubtedly first in the mind of congress. No other motive for the enumeration can be assigned.  Yet on the construction contended for, robbery on the high seas would escape unpunished. It is not pretended that the words of the legislature ought to be strained beyond their natural meaning, for the purpose of embracing a crime which would otherwise escape with impunity;  but when the words of a statute, in their most obvious sense, comprehend an offence, which offence is apparently placed by the legislature in the highest class of crimes, it furnishes an additional motive for rejecting a construction, narrowing the plain meaning of the words, that such construction would leave the crime entirely unpunished. \nThe correctness of this exposition of the 8th section is confirmed by those which follow. \nThe 9th punishes those citizens of the United States who commit the offences described in the 8th, under colour of a commission or authority derived from a foreign state. Here robbery is again particularly specified. \nThe 10th section extends the punishment of death to accessories before the fact. They are described to be those who aid, assist, advise, &c. &c any person to \"commit any murder, robbery, or other piracy aforesaid.\" If the word \"aforesaid\" be connected with \"murder\" and \"robbery,\" as well as with \"other piracy,\" yet it seems difficult to resist the  conviction that the legislature considered murder and robbery as acts of piracy. \nThe 11th section punishes accessories after the fact. They are those who, \"after any murder, felony,  robbery, or other piracy whatsoever, aforesaid,\" shall have been committed, shall furnish aid to those by whom the crime has been perpetrated. Can it be doubted, that the legislature considered murder, felony, and robbery, committed on the high seas, as piracies? \nIf it be answered, that although this opinion was entertained, yet, if the legislature was mistaken, those whose duty it is to construe the law, must not yield to that mistake; we say, that when the legislature manifests this clear understanding of its own intention, which intention consists with its words, courts are bound by it. \nOf the meaning of the term robbery, as used in the statute, we think no doubt can be entertained. It must be understood in the sense in which it is recognized and defined at common law. \nThe question, whether this act extends farther than to American citizens, or to persons on board American vessels, or to offences committed against citizens of the United States, is not wihtout its difficulties. The constitution having conferred on congress the power of defining and punishing piracy, there can be no doubt of the right of the legislature to enact laws punishing pirates, although they may be foreigners,  and may have committed no particular offence against the United States. The only  question is, has the legislature enacted such a law? Do the words of the act authorize the courts of the union to inflict its penalties on persons who are not citizens of the United States, nor sailing under their flag nor offending particularly against them? \nThe words of the section are in terms of unlimited extent. The words \"any person or persons,\" are broad enough to comprehend every human being. But general words must not only be limited to cases within the jurisdiction of the state, but also to those objects to which the legislature intended to apply them. Did the legislature intend to apply these words to the subjects of a foreign power, who in a foreign ship may commit murder or robbery on the high seas? \nThe title of an act cannot control its words, but may furnish some aid in showing what was in the mind of the legislature. The title of this act is, \"an act for the punishment of certain crimes against the United States.\" It would seem that offences against the United States, not offences against the human race, were the crimes which the legislature intended by this law to punish. \n The act proceeds upon this idea, and uses general terms in this limited sense. In describing those who may commit misprision of treason or felony, the words used are \"any person or persons;\" yet these words are necessarily confined to any person or persons owing permament or temporary allegiance to the United States. \nThe 8th section also commences with the words \"any person or persons.\" But these words must be  limited in some degree, and the intent of the legislature will determine the extent of this limitation. For this intent we must examine the law. The succeeding member of the sentence commences with the words, \"if any captain or mariner of any ship or other vessel, shall piratically run away with such ship or vessel, or any goods or merchandize, to the value of fifty dollars' or yield up such ship or vessel voluntarily to any pirate.\" \nThe words \"any captain, or mariner of any ship or other vessel,\" comprehend all captains and mariners, as entirely as the words \"any person or persons,\" comprehend the whole human race. Yet it would be difficult to believe that the legislature intended to punish the captain or mariner of a foreign ship, who should run away with  such ship, and dispose of her in a foreign port, or who should steal any goods from such ship to the value of fifty dollars, or who should deliver her up to a pirate when he might have defended her, or even according to previous arrangement. The third member of the sentence also begins with the general words \"any seaman. But it cannot be supposed that the legislature intended to punish a seaman on board a ship sailing under a foreign flag, under the jurisdiction of a foreign government, who should lay violent hands up, on his commander, or make a revolt in the ship. These are offences against the nation under whose flag the vessel sails, and within whose particular jurisdiction all on board the vessel are. Every nation provides for such offences the punishment its own policy may dictate; and no general words of a statute ought to  be construed to embrace them when committed by foreigners against a foreign government. \nThat the general words of the two latter members of this sentence are to be restricted to offences committed on board the vessels of the United States, furnishes strong reason for believing that the legislature intended to impose the same restriction on  the general words used in the first member of the sentence. \n This construction derives aid from the 10th section of the act. That section declares, that \"any person\" who shall \"knowingly and wittingly aid and assist, procure, command, counsel, or advise, any person or persons, to do or commit any murder or robbery, &c.\" shall be an accessory before the fact, and, on conviction, shall suffer death. \nIt will scarcely be denied that the words \"any person,\" when applied to aiding or advising a fact, are as extensive as the same words when applied to the commission of that fact. Can it be believed that the legislature intended to punish with death the subject of a foreign prince, who, within the dominions of that prince, should advise a person, about to sail in the ship of his sovereign, to commit murder or robbery? If the advice is not a crime within the law, neither is the fact advised a crime within the law. \nThe opinion formed by the court on this subject might be still farther illustrated by animadversions on other sections of the act. But it would be tedious, and is thought unnecessary. \nThe court is of opinion that the crime of robbery, committed by a person on the  high seas, on board of  any ship or vessel belonging exclusively to subjects of a foreign state, on persons within a vessel belonging exclusively to subjects of a foreign state, is not a piracy within the true intent and meaning of the act for the punishment of certain crimes against the United States. \nThis opinion will probably decide the case to which it is intended to apply. \nThose questions which respect the rights of a part of a foreign empire, which asserts, and is contending for its independence, and the conduct which must be observed by the courts of the union towards the subjects of such section of an empire who may be brought before the tribunals of this country, are equally delicate and difficult. \nAs it is understood that the construction which has been given to the act of congress, will render a particular answer to them unnecessary, the court will only observe, that such questions are generally rather political than legal in their character. They belong more properly to those who can declare what the law shall be; who can place the nation in such a position with respect to foreign powers as to their own judgment shall appear wise; to whom are entrusted all  its foreign relations; than to that tribunal whose power as well as duty is confined to the application of the rule which the legislature may prescribe for it. In such contests a nation may engage itself with the one party or the other -- may observe absolute neutrality -- may recognize the new state absolutely -- or may make a limited recognition of it. The proceeding in courts must depend so entirely on the course of the government,  that it is difficult to give a precise answer to questions which do not refer to a particular nation. -- It may be said, generally, that if the government remains neutral, and recognizes the existence of a civil war, its courts cannot consider as criminal those acts of hostility which war authorizes, and which the new government may direct against its enemy. To decide otherwise, would be to determine that the war prosecuted by one of the parties was unlawful, and would be to arrange the nation to which the court belongs against that party. This would transcend the limits prescribed to the judicial department. \nIt follows as a consequence, from this view of the subject that persons or vessels employed in the service of a self declared government,  thus acknowledged to be maintaining its separate existence by war, must be permitted to prove the fact of their being actually employed in such service, by the same testimony which would be sufficient to prove that such vessel or person was employed in the service of an acknowledged state. The seal of such acknowledged government cannot be permitted to prove itself; but it may be proved by some testimony as the nature of the case admits; and the fact that such vessel or person is employed may be proved without proving the seal. \nDissent by:", " \nOpinion \n\n \n \nMr. Chief Justice MARSHALL. Original evidence and depositions taken on the standing interrogatories, may be invoked from one prize cause into another. But depositions taken as farther proof in one cause, cannot be used in another. \nMotion refused. 1 \n \n \n\n ", " \nOpinion \n\n \n \n  Mr. Chief Justice MARSHALL delivered the opinion of the Court. The decision at the last term, in the case of the United States v. Palmer, 8 establishes the principle that the government of the United States, having recognized the existence of a civil war between Spain and her colonies, but remaining neutral, the Courts of the Union are bound to consider as lawful, those acts which war authorizes, and which  the new governments in South American direct against their enemy. Unless the neutral rights of the United States, as ascertained by the law of nations, the acts of congress, and treaties with foreign powers, are violated by the cruizers sailing under commissions from those governments, captures by them are to be regarded by us as other captures, jure belli, are regarded; that legality of which cannot be determined in the courts of a neutral country. If, therefore, it appeared in this case, that the capture was made under a regular commission from the government established at Buenos Ayres, by a vessel which had not committed any violation of our neutrality, the captured property must be restored to the possession of the captors.  But, if, on the other hand, it was shown, that the capture was made in violation of our neutral rights and duties, restitution would be decreed to the original owners. But the pleadings in this case are too informal and defective to pronounce a final decree upon the merits. The proceedings in the admiralty must always contain at least a general allegation of such a nature as will apply to the case, as of prize, &c. The Court has always endeavoured to keep these proceedings within some kind of rule, though not requiring the same technical strictness as at common law. Here the pleadings present a case which may be consistent with the demand of the former owners for restitution, but which is tied up to such a state of facts as, if proved, will not authorize it; and will not admit the introduction of evidence varying from the facts alleged. The decree of the Circuit Court must, therefore,  be reversed, and the cause remanded to that Court, with directions to permit the pleadings to be amended, and for farther proceedings. \nCause remanded. 9 \n APPENDIX. \nNOTE II. \nDIFFERENT PUBLIC ACTS BY WHICH THE GOVERNMENT OF THE UNITED STATES HAS RECOGNIZED THE EXISTENCE OF A CIVIL WAR BETWEEN SPAIN AND HER AMERICAN COLONIES. \nExtract from the President's Message to Congress, November 17, 1818. \n\"In suppressing the establishment at Amelia Island, no unfriendliness was manifested towards Spain, because the post was taken from a force which had wrested it from her. The measure, it is true, was not adopted in concert with the Spanish government, or those in authority under it; because, in transactions connected with the war in which Spain and the colonies are engaged, it was thought proper, in doing justice to the United States, to maintain a strict impartiality towards both the belligerent parties, without consulting or acting in concert with either. It gives me pleasure to state, that the governments of Buenos Ayres and Venezuela, whose names were assumed, have explicitly disclaimed all participation in those measures, and even the knowledge of them, until communicated by this government, and have also expressed their satisfaction that a course of proceedings had been suppressed, which, if justly imputable to them, would dishonour  their cause. \nThe civil war, which has so long prevailed between Spain, and the provinces in South America, still continues without any prospect of its speedy termination. The information respecting the condition of those countries, which has been collected by the Commissioners, recently returned from thence, will be laid before Congress, in copies of their reports, with such other information as has been received from other agents of the United States. \nIt appears, from these communications, that the government at Buenos Ayres declared itself independent in July, 1816, having previously exercised the power of an independent government, though in the name of the king of Spain, from the year 1810: that the Banda Oriental, Entre Rios, and Paraguay, with the city of Santa Fee, all of which are also independent, are unconnected with the present government of Buenos Ayres: that Chili had declared itself independent, and is closely connected with Buenos Ayres: that Venezuela has also declared itself independent, and now maintains the conflict with various success; and that the remaining parts of South America, except Monte Video, and such other portions of the eastern bank of the La Plata  as are held by Portugal, are still in the possession of Spain, or, in a certain degree, under her influence. \nBy a circular note addressed by the ministers of Spain to the allied powers with whom they are respectively accredited, it appears that the allies have undertaken to mediate between Spain and the South American provinces, and that the manner and extent of their interposition would be settled by a Congres, which was to have met at Aix-la-Chapelle in September last. From the general policy and course of proceeding observed by the allied powers in regard to this contest, it is inferred that they will confine their interposition to the expression of their sentiments, abstaining from the application of fore. I state this impression, that force will not be applied, with the greater satisfaction, because it is a course more consistent with justice, and likewise authorizes a hope that the calamities of the war will be confined to the parties only, and will be of shorter duration. \nFrom the view taken of this subject, founded on all the information that we have been able to obtain, there is good cause to be satisfied with the course heretofore pursued by the United States, in regard  to this contest, and to conclude, that it is proper to adhere to it, especially in the present state of affairs.\" \nExtract from Mr. Commissioner Rodney's Report. \n\"Their private armed vessels are subjected to very strict regulations, agreeably to their prize code, which is among the original papers presented, and herewith delivered. It may be proper, in this place, to introduce the subject of the irregular conduct of the privateers under the patriot flag, against which the commissioners were directed to remonstrate. Having taken an opportunity of explaining to Mr. Tagle, the secretary of state, the proceedings of our government relative to Amelia Island and Galveztown, agreeably to their instructions, the commissioners embraced a suitable occasion, to urge the just cause of complaint, which the malpractices of private armed vessels, wearing the patriot colours, had furnished our government. On both topics they had long and interesting conversations. With the conduct of the government respecting Amelia Island and Galveztown, Mr. Tagle expressed himself perfectly satisfied, and he disclaimed for his government any privity or participation in the lodgements made at those places, by  persons acting in the name of the patriots of South America. In reference to the acts of cruizers under the patriot flags, he said he was sensible that great irregularities had occurred, though his government had done every thing in their power to prevent them, and were willing, if any instance of aggression were pointed out, to direct an inquiry into the case, and if the facts were established, to punish those concerned, and redress the injured individuals. He professed his readiness to adopt any measures that would more effectually prevent a recurrence of such acts, in which he expressed his belief, that the privateers of Buenos Ayres had rarely participated, though the character of the government had suffered from the conduct of others. He stated, that they had on one occasion sent out some of their public vessels to examine all cruisers wearing the Buenos Ayrean flag, to see that they were lawfully commissioned, and to ascertain whether they had violated their instructions.\" \nExtract from Mr. Commissioner Bland's Report. \n\"In a short time after our introduction to the director, and in about a week after our arrival, we waited on the secretary of state, as being the most formal  and respectful mode of making our communications to this new and provisional revolutionary government. We stated to the secretary, that our government had not viewed the struggle now pending between the provinces of South America and Spain, merely as a rebellion of colonists; but as a civil war, in which each party was entitled to equal rights and equal respect; that the United States had, therefore, assumed, and would preserve with the most impartial and the strictest good faith, a neutral position; and in the preservation of this neutrality, according to the established rules of the law of nations, no rights, privileges, or advantages would be granted by our government to one of the contending parties, which would not, in like manner, be extended to the other. The secretary expressed his approbation of this course; but, in an interview subsequent to the first, when the neutral position of the United States was again spoken of, he intimated a hope, that the United States might be induced to depart from its rigid neutrality in favour of his government -- to which we replied, that as to what our government might be induced to do, or what would be its future policy towards the patriots  of South America, we could not, nor were we authorized to say any thing. \nWe stated to the secretary, that it had been understood, that many unprincipled and abandoned persons, who had obtained commissions as privateers from the independent patriot government, had committed great depredations on our commerce; and had evidently got such commissions, not so much from any regard to the cause of independence and freedom, as with a view to plunder; and that we entertained a hope, that there would be a due degree of circumspection exercised by that government in granting commissions, which, in their nature, were so open to abuse. \nThe secretary replied that there had hitherto been no formal complaint made against any of the cruisers of Buenos Ayres; and if any cause of complaint should exist, his government would not hesitate to afford proper redress, on a representation and proof of the injury; that the government of Buenos Ayres had taken every possible precaution in its power, in such cases; that it had established and promulgated a set of rules and regulations for the government of its private armed vessels, a copy of which should be furnished us; and, that it had in all cases, as far  as practicable, enjoined and enforced a strict observance of those regulations, and the law of nations.\" \nExtract from Mr. Commissioner Bland's Report relative to Chili. \n\"I then told him, that the government of the United States had been informed, that some of the cruisers, under the real flag of the patriot authorities, had committed considerable violations on our commerce; that, if any such wrongs were to be committed by armed vessels, sailing under the Chileno flag, he could not but perceive, how inevitably such acts would tend to disturb all harmony between the two countries, and to crush, in the very formation, every friendly relation that might be begun, and desired to be matured between the two nations; since my government would feel itself bound to protect the rights of its citizens against the insults, or injuries of any other people, however deeply it might regret the repulsive measures it was thus driven to adopt; and, that the President would wish to be informed if there were any prize courts yet established in the country; and, if any, what regulations had been adopted for the government of the public and private armed vessels of Chili. The director said, that whatever  cause of complaint the United States might have against the people of any other of the patriot powers, none, he felt satisfied, could be made against Chilenos, or those under the flag of Chili; because, until very lately, there were no shipping or vessels of any kind belonging to it, excepting, indeed, some fishing boats; and that, within a few months only, some few vessels had been commissioned; that he had heard of complaints of abuses committed under the flag of other patriot powers; and, to prevent the like, as far as practicable, from being perpetrated by those of Chili, it had been determined to put on board each an officer, and such a number of marines as would be able to control and prevent the mischievous propensities of seamen; that, with regard to matters of prize, they were brought before the ordinary and temporary tribunals of the country, until more formal and systematic institutions could be established: and, that for the regulation and government of armed vessels, a set of rules and orders had been adopted, a copy of which should be furnished me, which was accordingly handed me, and accompanies this as document marked (A.)\" 1 \n AN ORDINANCE OF THE GOVERNMENT OF BUENOS AYRES, REGULATING PRIVATEERS. \nBy the Supreme Director of the United Provinces of South America. \nThe bloody war which King Ferdinand VII. has, since his restoration to the throne of his ancestors, prosecuted through his myrmidons against all the inhabitants of the new would, who have claimed their natural freedom, demands that a recourse should be had to those measures of retaliation, which the law of nations permits, in order to make the Spanish nation sensible of the consequences attending the barbarous obstinacy of her monarch, fascinated by corrupted ministers, against the just claims of the injured Americans. \nThe insults offered to mankind by the cruel agents of the Court of Madrid, and the approbation by which it has confirmed all the acts of devastation, which, in contempt of divine and human laws, the Spanish leaders have committed both with fire and sword, through all parts of America, unfortunately visited by them, would, in the opinion of all the world, justify any act of reprizals. But being unwilling to tarnish, by acts unworthy of an enlightened age, the holy principles on which the emancipation of the United Provinces of the  South rests, and resolved to regulate my conduct by that system of war which is received among civilized nations; being likewise aware of the advantages obtained by the privateers of the free governments of America: I have determined to give a suitable encouragement and extent to the hostilities by sea, in order to increase the losses which King Ferdinand himself, in his decree of the 8th of February of the present year, confesses to have already been caused to his subjects by this kind of warfare, which is to be vigorously prosecuted until Spain shall acknowledge the independence proclaimed by the Sovereign Congress of these provinces, with the direction and security of which I am entrusted. \nAnd for the purpose of intercepting the navigation and commerce of both countries, by opposing the naval force equipped in regular form by the state or by private individuals, I have resolved, that privateering shall henceforth be continued against the subjects of Ferdinand VII. and their property, and that the same be done, strictly observing the provisions and regulations laid down and enacted in the following provisional Ordinance: \nA Provisional Ordinance to regulate Privateering. \nARTICLE  I. This government will grant commissions or letters of marque to those persons who may apply for the same, to arm any vessel, in order to act as a privateer against all vessels sailing under the enemy's flag; the requisite bond being previously given therefor at the naval department. In such application, a description must be given of the kind of vessel intended for that purpose, her tonnage, arms, ammunitions, and crew. \nII. A commission being granted to arm any vessel as a privateer, the commandant of the marine will give, by all the means within his power, every facility to expedite the fitting out of any such vessel, allowing her to receive all the men she may require, excepting such as are enlisted for the service of the State, or actually employed therein. The equipment of the vessel being finished, the said commandant will deliver to her captain a copy of this ordinance, together with all other regulations made known to him through the private channel of communications of the naval department, touching the manner in which he is to act in particular cases with neutral vessels, more especially of such nations the flags of which may be entitled to certain immunities or privileges,  arising from the treaties or agreements made with them for the punctual observance thereof in what concerns them. \nIII. The officers of the commissioned vessels or privateers are under the protection of the laws of these United Provinces; and they shall enjoy, even if foreigners, all the privileges and immunities of any other citizen thereof, whilst employed in their service. \nIV. The owners of such privateers are at liberty to enter into any agreement they may think fit, with the officers and crew of the same, provided they do not contain any clause contrary to the laws and ordinances of the government. It being the duty of the owners, as aforesaid, to present a copy of the agreements they may make to the department of the General Commandant of the Marine, where care must be taken that the same be strictly fulfilled. \nV. The owners of privateers, on giving bond, will be furnished from the public magazines of the State with the guns, muskets, gunpowder, and ammunitions, they may be in want of for the complete equipment of the privateer; under the condition to return, after the expiration of the cruize, the articles thus supplied; they not being obliged to make any allowance for  the deterioration or consumption thereof, caused by their use in the service? And in case of either wreck or capturc of the privateer, the same being proved, they shall be discharged from all responsibility. \nVI. The privateers are to be visited at the time of their departure by the Commissioners appointed by the Commandant General of the Marine, who shall read to them the penal laws, a copy whereof must be given to their commanders, with injunctions to read them to the crew once a week, mention of which circumstance is to be made in the certificate of the visit; should the privateers be cleared out in friendly ports, they shall be visited by the Consuls or agents of the government, in pursuance of their private instructions. \nVII. All merchandize, liquors, and other articles fit for the consumption of the country, which may be imported as proceeding from captured cargoes, must be appraised by the Custom House, the same as any other cargo of commerce, and out of the sum total of duties which may result therefrom, a third part shall be deducted for the benefit of the captors. \nVIII. All prizes must be sent to the ports of these United Provinces, there to be adjudged in the customary  lawful way in such cases; but, should there occur any extraordinary circumstance to prevent it, the commander of the privateer, consulting his security, may exercise his own discretion in this respect, reserving documents justifying the same, in order to present them in due time before the competent tribunal. \nIX. Silver and gold, whether coined or in bars, or in bullion, being a capital proceeding from capture, shall pay to the Treasury of the State at the rate of six per centum, as a compensation for the benefits granted in the fifth and seventh articles. \nX. Silver and gold manufactured into articles of luxury, shall, on their importation, pay the same duties as any other commercial article, according to the particular valuation that may be made of them. \nXI. The privateers that may take from the enemy important communications, officers of rank, &c. or that may cause similar damages to the enemy, shall be rewarded in a manner worthy the generosity of the government, and in proportion to the importance of the service they may have thus rendered. \nXII. The government offers a reward to all privateers that shall capture a transport of the enemy with troops, ammunition, or other  warlike accoutrements, destined to commit hostilities against the free countries of America, or to reinforce any part of the Spanish dominions: which reward shall be regulated according to the circumstances of the case, and in proportion to the amount of the capture. \nXIII. The commanders of the privateers employed to destroy the Spanisb commerce, without being cruel in the treatment of the prisoners, shall burn and sink on the high seas every enemy's vessel which they may think proper not to man as a prize, owing to her small value. And they are prohibited, under the penalties which the case may require, either to restore or leave in the possession of the enemy, under any pretext whatever, any vessel of the said class; any favour of this nature being considered as an hostility against the United Provinces. \nXIV. Captured vessels shall be free of all duties, those of the port excepted. \nXV. All articles of war captured shall be free of duties. In case the same are wanted by this government, it may take them at the rate of ten per centum below the current prices in the market. \nXVI. Should any negro slaves be captured, they must be sent to the ports of these United Provinces;  and the government will allow as a bounty, the sum of fifty dollars for each of such slaves as may be fit to take up arms, from the age of twelve to forty years inclusively; they being obliged to serve four years in the armies, and then they shall be free of duties. Should they be either over or under that age, or unfit for the army, they will be absolutely free, and this government will distribute them in guardianship. \nXVII. Any negroes captured, that, on account of the blockade or unfitness of the vessel, &c., cannot be brought into the ports of these United Provinces, shall be sent to those of the free nations of America, and there given up to the disposal of those governments, with the express condition not to sell them as slaves, under the penalties to the transgressors of being deprived of all their privileges, (whatever their services may be,) and also of the protection of the laws of these United Provinces, who detest slavery, and have prohibited this cruel traffic in human beings. \nXVIII. The cognizance of the prizes which the privateers may bring or send into our ports shall exclusively belong to our courts. \nXIX. Should it be declared by the sentence of the court, that  the captured vessel is not a lawful prize, or that there is no reason to detain her, she shall be forthwith set at liberty, without causing her the least expense, being exempted even from the duties of the port. And, in case of said vessel being detained any longer, under that or any other pretext, all the damages which on that account may fall on her owners, shall be laid to the charge of the persons causing the same. \nXX. If the captor does not acquiesce in the sentence of the court of prizes, and intends to appeal from it, having a special power from the parties interested, he is allowed so to do to the Supreme Director, on his giving, previously to the entering of such an appeal, the proper bond, to the satisfaction of the captured captain, to answer unto him for all the damages and detriments which he may have a right to claim of the said captor, after the confirmation of the first sentence, on account of the detention and demurrage, loss of time and freight, damages, and deterioration of both vessel and cargo, and any other occurrences. Which damages, together with the costs of the prosecution, shall be paid unto the captured captain by the captor, before his leaving the port;  and in case of his not being able to make payment, recourse shall be had to the bonds or sureties he may have given, who, without any further step or delay, shall be compelled to do it by all the rigor of the law. \nXXI. No person enjoying a salary from the naval department shall exact any fees, stipend, or contribution, for services rendered in the adjudication of prizes. They are also prohibited to take or appropriate to themselves any merchandise, or other articles of prize goods, under the penalty of confiscation, and of the loss of their employment. \nXXII. Privateers and letters of marque are authorized to board all commcrcial vessels of any nation, and to oblige them to exhibit their sea letters, passes, commissions, and passports, together with the documents showing the ownership of the vessel, charter parties, or agreements of freight, the journal or log book, the roll d'equipage, and the lists of the crew and passengers. This examination shall be made without employing any violence, or causing any damage or considerable detention to the vessels on board whereof the same is to be performed, and whose master or captain, with the above said documents, shall be ordered on board  the privateer, that her captain may attentively examine them himself, or cause the same to be done by the interpreter he may have for that purpose. And in case no cause be found to detain the vessel any longer, she shall be permitted freely to continue her navigation. Should any vessel resist this examination, the privateer may compel her to do it by force. But the officers, as well as other individuals belonging to the crews of said privateers, can in no case exact or require any contribution from the captain, sailors, or passengers of the vessels they may board, neither cause, nor permit to be caused, to them, any extortion or violence of any kind whatsoever, under the penalty of being exemplarily punished, even unto death, according to the enormity of the case. \nXXIII. When the captain of the vessels on board of which there shall be any articles belonging to enemies, shall bona fide declare them so to be, the removal thereof shall be made, without interrupting the navigation or detaining them longer than it shall be necessary, the safety of the vessel permitting the same. In this case, the captains shall be furnished with a receipt for the articles thus removed, therein expressing  all the circumstances attending the same; and, should the privateer be unable to pay them in cash the proportionate amount of freight of said articles up to the place of their destination, according to the bills of lading or agreement of freight, he will furnish them with a note or draft for the same amount on the owner or agent of the said privateer, who shall be obliged to pay it on its being presented; the captains or commanders of the privateers being hereby ordered to bring, in such cases, the declaration made by the captain of the detained vessel, signed by him, and authenticated in the most formal manner. \nXXIV. All vessels found navigating without lawful passes, sea letter, or commissions from the republics, provinces, or states, having authority to grant them, shall be detained; as well as those that may fight under a flag other than that of the prince or state by which their commission may have been granted; as likewise such as may be found holding different commissions from several princes or states: all of which are declared a good prize; and in case of their being armed in war, their commanders and officers shall be considered as pirates. \nXXV. Vessels of pirates, and  such as may have been taken possession of by their revolted crews, shall be declared good prize, together with all the articles appertaining thereto or found on board the same; excepting such as may be proved to belong to persons who neither directly or indirectly have contributed to the piracy, and are not enemies. \nXXVI. It being unlawful within the jurisdiction of this state to arm any vessel in order to act as a privateer without my permission, as likewise to admit for that purpose a commission or letters of marque from any other prince or republic, even if allied with this, any vessel found on the high seas with such commissions, or without any commission at all, shall be adjudged a good prize, and her captain or commander punished as pirates. \nXXVII. All armed vessels, whether commissioned cruizers, or merchant vessels with letters of marque, navigating under the flag, or with a commission from princes or states enemies to this government, shall be good prize, together with all the articles that may be found on board thereof, even if belonging to citizens of these United Provinces, in case of their having shipped them after the declaration of war, and the requisite time being  elapsed for their having notice thereof. \nXXVIII. Merchant vessels belonging to any nation whatsoever, that may make any defence after the privateer's hoisting up her flag, shall be declared good prize unless her captain should prove that the privateer gave him sufficient motive for such a resistance. \nXXIX. Such vessels as may be found without the papers and documents specified in the 22d article, or the most important of them, to wit, the sea letter, pass or commission, the bills of lading of the cargo, and other documents, in order to prove that it, as well as the vessel, are neutral property, shall be declared a good prize; unless on proof of their being lost by inevitable accident. All the documents that may be presented must be signed in due form in order to be admitted in proof. \nXXX. Should the captains, or other individuals of the vessels detained by the privateers, or by any of the vessels belonging to the navy of the state, throw overboard any papers; if this fact be proved in due form, by that very act they shall be declared good prize. And the same construction is to be given to the foregoing, and any other articles touching the same matter. \nXXXI. Privateers are  prohibited to attack, to commit any kind of hostilities, or to capture, the vessels of the enemy, that may be found in the ports of allied or neutral princes or states; as likewise those that may be within cannon shot of their fortifications. It being declared, in order to remove all doubts, that the distance of the cannon shot must be observed, even if there should be no batteries on the spot where the capture may take place, provided the distance be the same, and that the enemy shall likewise respect this immunity in the territory of the neutral or allied powers. \nXXXII. The vessels that privateers may capture in the ports, or within the reach of the cannon shot of the territory of allied or neutral powers, even in the case of their being in fresh pursuit, and attacking them from sea, are declared to be no prize, as taken in a spot which is entitled to immunity; provided the enemy respect the same in like manner. \nXXXIII. Every privateer that may retake a national vessel, within twenty-four hours after her capture, shall be entitled to one half of the value of said prize for salvage, the other half being restored for the benefit of the original owner of said vessel; which division  is to be made speedily and summarily, in order to diminish the costs as much as possible. But if the recapture capture should take place after the lapse of twenty-four hours from the capture, the privateer thus retaking her shall be entitled to the whole value of the same. \nXXXIV. If a vessel should be found on the sea, or brought into our ports, without the bills of lading of her cargo, or other documents by which the ownership thereof may be ascertained, and not having on board persons belonging to her own crew, both the captor and the captain of said prize shall be separately examined, touching the circumstances in which the said vessel was found and taken possession of. Her cargo is likewise to be inspected by intelligent persons, and every possible means resorted to, in order to discover the true owner. Should this not be found out, an inventory of the whole shall be made, and every thing kept deposited, to restore them to whomsoever shall, within a year, prove to be such; unless there should be ground to declare the same good prize; giving, in all events, the third part of the value to the captors. If the owner does not appear in the above said term, the other two remaining  third shall be divided, as derelict goods, into three parts; one of which is likewise to be given to the captors, and the other two to be applied to the use of the state. \nXXXV. In any of the aforesaid cases, and when the privateer shall detain a vessel, care shall be taken to collect all her papers, of what kind soever they may be, and that the clerk shall make a correct memorandum thereof, giving a receipt to the captain or supercargo of the vessel thus detained, for them; and warning him not to conceal any papers he may have, it being declared that only such as he may exhibit shall be admitted in the adjudication of the capture. This being done, the captain of the privateer shall secure the papers in a bag, or package, sealed; which he must deliver to the prize master, with orders to deliver the same to the government. The captain of the privateer, or any individual of her crew, who, from any motive whatever, may conceal, break, or embezzle any of said papers, shall be condemned to corporal punishment, as the circumstances of the case may require; the captain being over and above obliged to make good the damages; and other individuals to be sent to the public works for ten years. \n\n  XXXVI. The captain of the privateer shall, at the same time, take care to have the hatches of the vessels thus detained, nailed up, and to seal them in such a manner as to render it impossible to open them without breaking the seals. He must secure the keys of the cabin, and other passages, and cause all the articles that may be found on deck, to be locked up -- taking down, if the time should permit it, a memorandum of every thing that may be easily mislaid, in order to put them under the charge of the person who shall be appointed to command the same vessel. \nXXXVII. The articles that may be found on deck, or in the cabin, state rooms, or forecastle, shall not be permitted to be plundered, the right of so doing, (commonly called pendolage,) being absolutely prohibited; which, however, may be tolerated only in the case of the vessel's having shown resistance, even to the point of being boarded. But care must always be taken to prevent the disorders that an excessive license may produce. \nXXXVIII. When the crew of a vessel, detained as aforesaid, shall be removed on board the privateer, the clerk shall, in the presence of the master, take a deposition from him, the mate, and  other individuals of such detained vessel, touching the circumstances of her navigation, voyage, and cargo -- writing down every thing that may be necessary to the adjudication of the capture. He is also to interrogate them, whether they have on board any jewels, or other valuables, not expressed in the bills of lading of the cargo, in order that proper measures may be taken to prevent their being embezzled. \nXXXIX. The prize master appointed to command any vessel detained as aforesaid, shall be furnished with a detailed information, comprizing every thing that may appear from the above-mentioned depositions -- making him responsible for whatever, owing to his omission or fault, may be lost. And it is hereby declared, that any person who shall, without license, break open the sealed hatches, trunks, bales, casks, packages, or lockers, where there may be any articles of merchandize, shall not only lose that part which of right might belong to him, should they be declared a good prize, but a prosecution shall be instituted against him, and he punished according to the result thereof. \nXL. No other papers or documents are to be admitted, in order to decide upon the lawfulness or unlawfulness  of the capture, but those that were produced and found on board the prize vessel. However, if, in case of a defect of papers to determine the cause, the captain of the captured vessel should offer to prove his having lost them by unavoidable accident, the court will grant him a sufficient term for that purpose; regarding the summary manner with which such causes are to be determined. \nXLI. If, before sentence is pronounced on the prize, it should become necessary to unload the whole or part of the cargo, in order to prevent the loss thereof, the hatches are to be broken open in the presence of the commandant of the marine, or commissioners appointed by him, and of the respective parties concerned, who must be present at that act. An inventory shall then be made of all the articles that may be unladen; which, with the assistance and knowledge of the officer of the revenue, appointed by the collector of the customs, must be deposited either in the hands of a trusty person, or in store-houses, of which the master or supercargo of the captured vessel is to keep a key. \nXLII. Should the sale of any articles be deemed necessary, owing to the impossibility of preserving them, such sale  must be effected at public auction, with all the customary solemnities, in the presence of the captured captain, and with the assistance of the officer of the custom house, as aforesaid; and the proceeds thereof are to be deposited with a trusty person, to be delivered to whom the same may belong, after the sentence is pronounced on the capture. \nXLIII. No person, whatever his rank or condition may be, is permitted secretly to buy or conceal any thing, knowing it to belong to the prize or detained vessel, under the penalty of making restitution for the same, and of a fine triple the value of the goods concealed or clandestinely bought, and even of corporal punishment, as the case may be; the cognizance of which causes shall exclusively belong to the courts of prize, as incidental thereto. \nXLIV. If the vessel detained should not be condemned as good prize, her master or owner, together with her officers and crew, shall be forthwith reinstated in the possession of the same; restoring unto them whatever may belong to her, without retaining the least thing. She is to be furnished with a suitable safe conduct, in order that she may prosecute her voyage without any further detention;  she is declared free of the duties of the port, and, before her departure, is to be indemnified by the captor for all the expenses, damages, and losses that may have been caused to her, and which she may have a right to claim with justice, should her case be comprehended among those specified in the 22d and 30th articles. But such claim is not to be admitted, if she should have given reasonable cause for suspicion to the capturing vessel, or incurred any other penalty comprised in this ordinance, in consequence of which a prosecution may have been instituted; all of which may appear from the proceedings had thereon. \nXLV. Should the captured vessel be condemned as good prize, the captors shall be permitted the free use of her, previously paying the duties due to the treasury of this government. \nThe whole amount resulting from sales of the captures made by vessels of war, shall be divided into two parts; one of them containing three-fifths for the use of the crew and mariners, and the other two-fifths for the officers. No person, whether belonging to the navy or army, being a passenger, or going as a transport on board said vessels, at the time of the capture, shall, under any pretext  whatever, be comprehended in the distribution. But it shall be the duty of the commander of such vessel to inform the chief officer of the naval department whether any of the persons going on board as passenger, or otherwise, has distinguished himself by a special service in the action: to the end, that if he should deem it just, he may order such person to share according to his rank, as if he had been comprehended amongst the number belonging to the complement of the vessel. \nXLVI. Any other decrees, orders, or regulations, prior or contrary to this present provisional ordinance, are, by virtue hereof, declared void and without any effect. \nDone at the Fortress of Buenos Ayres, on the 15th day of May, 1817. \nJUAN MARTIN PUEYRREDON, MATHIAS DE YRIGOYEN, Secretary of War and of the Navy. \nThe foregoing is a copy from the original. \nYRIGOYEN. \nOFFICIAL REPORT, &C. OF THE SECRETARY OF STATE TO CONGRESS. \nWashington, Jan. 29. I transmit to the house of representatives, in compliance with the resolution of the 14th of this month, a report from the secretary of state, concerning the applications which have been made by any of the independent governments of South America, to have a minister  or consul general accredited by the United States, with the answers of this government to the applications addressed to it. \nJAMES MONROE. \nThe Report. \nThe Secretary of State, to whom has been referred the resolution of the House of Representatives, of the 14th inst. requesting of the President information whether any application has been made by any of the independent governments of South America, to have a minister or consul general accredited by the government of the United States, and what was the answer given to such application; has the honour of submitting copies of applications made by Don Lino de Clemente, to be received as the representative of the republic of Venezuela; and of David C. De Forest, a citizen of the United Provinces, to be accredited as consul general of the United Provinces of South America, with the answers respectively returned to them. The reply of Mr. De Forest is likewise enclosed, and copies of the papers, signed and avowed by Mr. Clemente, which the President considered as rendering any communication between this department and him, other than that now enclosed, improper. \nIt is to be observed, that while Mr. Clemente, in March, 1817, was assuming,  with the name of Deputy from Venezuela, to exercise with the United States powers transcending the lawful authority of any ambassador, and while in January, 1818, he was commissioning, in language disrespectful to this government, Vincente Pazos, in the name of the republic of Venezuela, to \"protest against the invasion of Amelia Island, and all such further acts of the government of the United States, as were contrary to the rights and interests of the several republics, and the persons sailing under their respective flags, duly commissioned;\" he had himself not only never been received by the government of the United States as deputy from Venezuela, but had never presented himself to it in that character, or offered to exhibit any evidence whatsoever of his being invested with it. The issuing of commissions, authorising acts of war against a foreign nation, is a power which not even a sovereign can lawfully exercise within the dominions of another in amity with him, without his consent. Mr. Pazos, in his memorial to the President, communicating the commission signed by Mr. Clemente, at Philadelphia, and given to General M'Gregor, alleges, in its justification, the example of the  illustrious Franklin, in Europe; but this example, instead of furnishing an exception, affords a direct confirmation of the principle now advanced. The commissions issued by the diplomatic agents of the United States in France, during our revolutionary war, were granted with the knowledge and consent of the French government, of which the following resolution from the secret journal of Congress, of the 23d of December, 1776, is decisive proof: \n\"Resolved, That the commissioners (at the court of France) be authorised to arm and fit for war any number of vessels, not exceeding six, at the expense of the United States, to war upon British property; and that commissions and warrants be for this purpose sent to the commissioners: provided the commissioners be well satisfied this measure will not be disagreeable to the court of France.\" \nIt is also now ascertained by the express declaration of the supreme chief, Bolivar, to the agent of the United States at Angostura, \"that the government of Venezuela had never authorised the expedition of General M'Gregor, nor any other enterprize against Florida or Amelia.\" Instructions have been forwarded to the same agent to give suitable explanations  to the government of Venezuela, of the motives for declining further communication with Mr. Clemente, and assurances that it will readily be held with any person not liable to the same or like objection. \nThe application of Mr. De Forest, to be accredited as cousul general of the United Provinces of South America, was first made in May last: his credential was a letter from the supreme director of Buenos Ayres, Pueyrredon, announcing his appointment, by virtue of articles concluded, in the names of the United States of America, and of the United Provinces of Rio de la Plata, between persons authorized by him, and W.G.D. Worthington, as agent of this government, who neither had, nor indeed pretended to have, any power to negociate such articles. Mr. De Forest was informed, and requested to make known to the supreme director, that Mr. Worthington had no authority whatsoever, to negociate on the part of the United States any article to be obligatory on them, and had never pretended to possess any full power to that effect. That any communication interesting to the supreme director, or to the people of Buenos Ayres, would readily be held with Mr. De Forest, but that the recognition of  him, as a consul general from the United Provinces of South America, could not be granted, either upon the stipulation of supposed articles, which were a nullity, or upon the commission, or credential letter of the supreme director, without recognizing thereby the authority from which it emanated, as a sovereign and independent power. \nWith this determination, Mr. De Forest then declared himself entirely satisfied. But shortly after the commencement of the present session of Congress, he renewed his solicitations, by the note dated the 9th of December, to be accredited as the consul general of the United Provinces of South America, founding his claim on the credentials from his government, which had been laid before the President last May. \nA conversation was shortly afterwards held with him, by direction of the President, in which the reasons were fully explained to him upon which the formal acknowledgment of the government of Buenos Ayres, for the present, was not deemed expedient. They were also, at his request, generally stated in the note dated 31st of December. \nIt has not been thought necessary, on the part of this government, to pursue the correspondence with Mr. De Forest  any further; particularly as he declares himself unauthorized to agitate or discuss the question with regard to the recognition of Buenos Ayres as an independent nation. Some observations, however, may be proper, with reference to circumstances alleged by him, arguing that a consul general may be accredited without acknowledging the independence of the government from which he has his appointment. The consul of the United States, who has resided at Buenos Ayres, had no other credential than his commission. It implied no recognition by the United States of any particular government; and it was issued before the Buenos Ayrean declarations of independence, and while all the acts of the authorities there were in the name of the king of Spain. \nDuring the period while this government declined to receive Mr. Onis as the minister of Spain, no consul received an exequatur under a commission from the same authority. The Spanish consuls who had been received before the contest for the government of Spain had arisen, were suffered to continue the exercise of their functions, for which no new recognition was necessary. A similar remark may be made with regard to the inequality alleged by  Mr. De Forest, to result from the admission of Spanish consuls, officially to protect before our tribunals the rights of Spanish subjects generally, while he is not admitted to the same privileges with regard to those of the citizens of Buenos Ayres. The equality of rights to which the two parties to a civil war are entitled in their relations with neutral powers, does not extend to the rights enjoyed by one of them, by virtue of treaty stipulations contracted before the war; neither can it extend to rights, the enjoyment of which essentially depends upon the issue of the war. That Spain is a sovereign and independent power, is not contested by Buenos Ayres, and is recognized by the United States, who are bound by treaty to receiver her consuls. Mr. De Forest's credential letter, asks that he may be received by virtue of a stipulation in supposed articles concluded by Mr. Worthington, but which he was not authorized to make; so that the reception of Mr. De Forest, upon the credential on which he founds his claim, would imply a recognition, not only of the government of the supreme director, Pueryrredon, but a compact as binding upon the United States, which is a mere nullity. \n Consuls are, indeed, received by the government of the United States, from acknowledged sovereign powers, with whom they have no treaty. But the exequater for a consul general can obviously not be granted, without recognizing the authority from whom his appointment proceeds as sovereign. \"The consul,\" says Vattel, (book 2. chap. 2. § 24.) \"is not a public minister; but as he is charged with a commission from his sovereign, and received in that quality by him where he resides, he should enjoy, to a certain extent, the protection of the law of nations.\" \nIf, from this state of things, the inhabitants of Buenos Ayres cannot enjoy the advantage of being officially represented before the courts of the United States, by a consul, while the subjects of Spain are entitled to that privilege, it is an inequality resulting from the nature of the contest in which they are engaged, and not from any denial of their rights, as parties to a civil war. The recognition of them, as such, and the consequent admission of their vessels into the ports of the United States, operates with an inequality against the other party to that contest, and in their favour. \nIt was stated in conversation to Mr.  De Forest, and afterwards in the note of the 31st of December, that it would be desirable to the United States to understand whether Buenos Ayres itself claims an entire, or only an imperfect independence. That the necessity of an explanation upon this point arose from the fact, that in the negociation of the supposed article with Mr. Worthington, the supreme director had declined contracting the engagement, though with the offer of reciprocity, that the United States should enjoy at Buenos Ayres the advantages and privileges of the most favoured nation. That the reason given by him for refusing such an engagement was, that Spain having claims of sovereignty over Buenos Ayres, the right must be reserved, of granting special favours to her for renouncing them, which other nations, having no such claims to renounce, could not justly expect to obtain. Without discussing the correctness of this principle, it was observed the United States, in acknowledging Buenos Ayres as independent, would expect either to be treated on the footing of the most favoured nation, or to know the extent and character of the benefits which were to be allowed to others, and denied to them; and that while  an indefinite power should be reserved, of granting to any nation advantages to be withheld from the United States, an acknowledgment of independence must be considered premature. \nMr. De Forest answers, that this reservation must appear to every one contrary to the inclination, as well as interest of the government of Buenos Ayres; that it must have been only a proposition of a temporary nature, not extending to the acknowledgment by the United States of the independence of South America, which he is confident would have rendered any such reservations altogether unnecessary, in the opinion of the government of Buenos Ayres, who must have seen they were treating with an unauthorized person, and suggested the idea, from an opinion of its good policy; and, he adds, that Portugal is acknowledged by the United States as an independent power, although their commerce is taxed higher in the ports of Brazil than that of Great Britain. \nIt had not been intended to suggest to Mr. De Forest, that it was in any manner incompatible with the independence or sovereignty of a nation to grant commercial advantages to one foreign state, and to withhold them from another. If any such advantage is granted  for an equivalent, other nations can have no right to claim its enjoyment, even though entitled to be treated as the most favoured nations, unless by the reciprocal grant of the same equivalent. Neither had it been intended to say, that a nation forfeited its character of acknowledged sovereignty even by granting, without equivalent, commercial advantages to one foreign power, and withholding them from another. However absurd and unjust the policy of a nation granting to one, and refusing to another, such gratuituous concessions, might be deemed the questions, whether they affected its independence or not, would rest on the concessions themselves. The idea meant to be conveyed was, that the reservation of an indefinite right to grant hereafter special favours to Spain, for the renunciation of her claims of sovereignty, left it uncertain whether the independence of Buenos Ayres would be complete or imperfect, and it was suggested with a view to give the opportunity to the supreme director of explaining his intention in this respect, and to intimate to him, that while such an indefinite right was reserved, an acknowledgment of independence must be considered as premature. This caution  was thought the more necessary, inasmuch as it was known, that at the same time, while the supreme director was insisting on this reservation, a mediation between Spain and her colonies had been solicited by Spain, and agreed to by the five principal powers of Europe, the basis of which was understood to be a compromise between the Spanish claim to sovereignty, and the colonial claim to independence. \nMr. De Forest was understood to have said, that the Congress at Tucuman had determined to offer a grant of special privileges to the nation which should be the first to acknowledge the independence of Buenos Ayres. He stated in his notes, that he knew nothing of any such resolution by that Congress, but that it was a prevailing opinion at Buenos Ayres, and his own opinion also, that such special privileges would be granted to the first recognizing power, if demanded. It has invariably been avowed by the government of the United States, that they would neither ask nor accept of any special privilege or advantage for their acknowledgment of South American independence; but it appears that the supreme director of Buenos Ayres, far from being prepared to grant special favours to the United  States for taking the lead in the acknowledgment, declined even a reciprocal stipulation, that they should enjoy the same advantages as other nations. Nor was this reservation, as Mr. De Forest supposes, defeasible, by the acknowledgment, on the part of the United States, of South American independence. The supreme director could not be ignorant, that it was impossible for this government to ratify the articles prepared by his authority with Mr. Worthington, and yet to withhold the acknowledgment of independence. He knew that if that instrument should be ratified, the United States must thereby necessarily be the first to grant the acknowledgment, yet he declined inserting in it an article, securing to each party, in the ports of the other, the advantages of the most favoured nation. It is, nevertheless, in conformity to one of those same articles, that Mr. De Forest claimed to be received in the formal character of counsul general. \nWith regard to the irregularities and excesses committed by armed vessels, sailing under the flag of Buenos Ayres, complained of in the note of the 1st of January, it was not expected that Mr. De Forest would have the power of restraining them, otherwise  than by representing them to the supreme director, in whom the authority to apply the proper remedy is supposed to be vested. The admission of Mr. De Forest, in the character of consul general, would give him no additional means of suppressing the evil. Its principal aggravation arises from the circumstance, that the cruizers of Buenos Ayres are almost, if not quite, universally manned and officered by foreigners, having no permanent connection with that country, or interest in its cause. But the complaint was not confined to the misconduct of the cruizers. It was stated that blank commissions for privateers, their commanders, and officers, had been transmitted to this country, with the blanks left to be filled up here, for fitting out, arming, and equipping them, for purposes prohibited by the laws of the United States, and in violation of the law of nations. It was observed that this practice, being alike irreconcilable with the rights and the obligations of the United States, it was expected by the President, that being made known to the supreme director, no instance of it would again occur hereafter. No reply to this part of the note has been made by Mr. De Forest, for it  is not supposed that he meant to disclaim all responsibility of himself, or of the government of Buenos Ayres, concerning it, unless his character of consul general should be recognized. As he states that he has transmitted a copy of the note itself to Buenos Ayres, the expectation may be indulged, that the exclusive sovereign authority of the United States, within their own jurisdiction, will hereafter be respected.All which is respectfully submitted. \nJOHN QUINCY ADAMS. \nDepartment of State, January 28, 1819. \nCorrespondence with Mr. Clemente. \nNo. 1. Lino de Clemente to the Secretary of State. \nMost Excellent Sir -- Having been appointed by the government of the republic of Venezuela, its representative near the United States of North America, I have the honour to inform you of my arrival in this city, for the purpose of discharging the trust committed to me: to effect this, I have to request, that you will please to inform me at what time it will be convenient for you to afford me an opportunity of presenting my respects to you personally; and of communicating to you the object of my arrival in the federal city. I avail myself of this occasion to tender to you the assurance of  the high consideration and respect with which I am, &c. \nLINO DE CLEMENTE. \nWashington, Dec. 11, 1818 -- 8th year of the Republic \nThe honourable John Q. Adams. \nNo. 2. The Secretary of State to Don L. de Clemente. \nDepartment of State, Washington, December 16, 1818. \nSir -- Your note of the 11th inst. has been laid before the President of the United States, by whose direction I have to inform you, that your name having been avowedly affixed to a paper drawn up within the United States, purporting to be a commission to a foreign officer, for undertaking and executing an expedition in violation of the laws of the United States, and also to another paper avowing that act, and otherwise insulting to this government, which papers have been transmitted to Congress by the message of the president, of the 25th of March last, I am not authorized to confer with you, and that no further communication will be received from you at this department. I am, &c. \nJ. Q. ADAMS. \nCorrespondence with Mr. De Forest. \nNo. 5. Mr. De Forest to the Secretary of State. \nI have the honour to announce to Mr. Adams, that I have again arrived in this district, in order to renew my solicitations to be accredited  by this government as the consul general of the United Provinces of South America, founding my claim on the credentials from my government, in the month of May last. \nThe information recently acquired by this government, respecting the provinces of South America, 1 presume has established the fact beyond doubt, that Buenos Ayres, their capital, and a large portion of their territory, are, and have been, free and independent of the government of Spain, for more than eight years; and possess ample ability to support their independence in future. That a regular system of government is established by their inhabitants, who show themselves, by the wisdom of their institutions, sufficiently enlightened for self-government; and that they look up to this great republic as a model, and as to their elder sister, from whose sympathies and friendship, they hope and expect ordinary protection at least. \nThe messages of the President of the United States, as well the last as the present year, have created a general belief, that the United States have placed us on an equal footing with Spain, as it respects our commercial operations; but, Sir, it is found not to be the case. A consul of Spain is  known and respected as such by your tribunals of justice, which enables him, ex officio, to protect and defend the interests of his countrymen. Whereas, the verbal permission I have to act in the duties of my office, will not avail in your tribunals; and a number of instances have already occurred, where the property of my absent fellow citizens has been jeopardized, for want of a legally authorized protector.The case of the Spanish schooner , a prize to our armed vessels Buenos Ayres and Tucuman, which was brought into Scituate, some time since, by her mutinous crew, after having murdered the captain and mate, by throwing them overboard, is a striking instance of the necessity of there being resident here an accredited agent, to superintend the commercial concerns of South America; and without such accredited agent, our citizens cannot be considered as completely protected in their rights. \nI request you, sir, to lay this communication before the President of the United States, as early as may be convenient, and to assure him, that I duly appreciate the friendly reception I met with from his government, on my arrival in this country; and that, as circumstances have since materially  altered, I have no doubt but I shall receive his permission to act, in the accustomed form. \nWhile I remain, with the highest consideration and respect, Sir, your most obedient servant, D.C. DE FOREST. \nGeorgetown, Dec. 9. \nThe honourable John Q. Adams, Secretary of State. \nNo. 6. Mr. De Forest to the Secretary of State. \nI took the liberty, on the 9th inst. of addressing a note to Mr. Secretary Adams, requesting to be accredited as the consul general of the United Provinces of South America; and have now the honour of informing Mr. Adams, that I have lately received an official communication from the government of Buenos Ayres, directing me to inform the government of this country, that the supposed conspiracy against the person of the supreme director, proves to have originated with an obscure and disappointed individual; who, to gain adherents, pretended to be connected with people of the first respectability and influence, several of whom he named, but who have convinced the government that they had no knowledge whatever of his base project. \nThe supreme director, anxious to do away any unfavourable impressions which the report of such an affair might cause at this distance,  has ordered me to assure the President of the United States, that the government of South America was never more firmly supported, nor its prospects more brilliant, than at the present time. \nI have the honour, &c. \nDAVID C. DE FOREST. \nGeorgetown, December 12, 1818. \nNo. 7. Mr. Adams to Mr. De Forest. \nMr. Adams presents his compliments to Mr. De Forest, and has the honour of assuring him, by direction of the President of the United States, of the continued interest that he takes in the welfare and prosperity of the provinces of La Plata, and of his disposition to recognize the independent government of Buenos Ayres, as soon as the time shall have arrived, when that step may be taken with advantage to the interests of South America, as well as of the United States. \nIn the mean time, he regrets an exequatur to Mr. De Forest, as consul general of the United Provinces of South America, cannot be issued, for reasons stated in part by the President, in his message to Congress, at the commencement of the present session; and further explained to Mr. De Forest by Mr. Adams, in the conversation which he has had the honour of holding with him.Mr. De Forest must have seen, that any privileges  which may be attached to the consular character, cannot avail in the judicial tribunals of this country, to influence in any manner the administration of justice; and with regard to the schooner brought into Scituate, such measures have been taken, and will be taken, by the authorities of the United States, as are warranted by the circumstances of the case, and by the existing laws. \nWith respect to the acknowledgment of the government of Buenos Ayres, it has been suggested to Mr. De Forest, that, when adopted, it will be merely the recognition of a fact, without pronouncing or implying an opinion with regard to the extent of the territory or provinces under their authority, and particularly without being understood to decide upon their claim to control over the Banda Oriental, Santa Fe, Paraguay, or any other provinces disclaiming their supremacy or dominion. It was also observed, that in acknowledging that government as independent, it would be necessary for the United States to understand whether Buenos Ayres claims itself an entire or only an imperfect independence. From certain transactions between persons authorized by the supreme director and an agent of the United States,  (though unauthorized by their government,) after the declaration of independence by the Congress at Tucuman, and within the last year, it appears that the supreme director declined contracting the engagement, that the United States should hereafter enjoy at Buenos Ayres the advantages and privileges of the most favoured nation, although with the offer of a reciprocal stipulation on the part of the United States. The reason assigned by the supreme director was, that Spain, having claims to the sovereignty of Buenos Ayres, special privileges and advantages might ultimately be granted to the Spanish nation, as a consideration for the renunciation of those claims. It is desirable that it should be submitted to the consideration of the government of Buenos Ayres, whether, while such a power is reserved, their independence is complete; and how far other powers can rely, that the authority of Spain might not be eventually restored. It has been stated by Mr. De Forest, that the Congress at Tucuman had passed a resolution, to offer special advantages to the nation which should first acknowledge their independence, upon which the question was proposed, whether such a resolution, if carried  into effect, would not be rather a transfer of dependence from one nation to another, than the establishment of independence? rather to purchase support than to obtain recognition? The United States have no intention of exacting favours of Buenos Ayres for the acknowledgment of its independence; but in acknowledging it, they will expect either to enjoy, in their intercourse with it, the same privileges and advantages as other foreign nations, or to know precisely the extent and character of the benefits which are to be allowed to others, and denied to them. It should, indeed, be known to the supreme director, that, while such an indefinite power is reserved of granting to any nation advantages to be withheld from the United States, an acknowledgment of independence must be considered premature. In adverting to these principles, it was observed to Mr. De Forest, that their importance could not but be peculiarly felt by the United States, as having been invariably and conspicuously exemplified in their own practice, both in relation to the country whose colony they had been, and to that which was the first to acknowledge their independence. In the words of their declaration, issued  on the 4th of July, 1776, they resolved thenceforth \"to hold the British nation, as they hold the rest of mankind, enemies in war, in peace friends;\" and in the treaty of amity and commerce, concluded on the 6th of February, 1778, between the United States and France, being the first acknowledgment by a foreign power of the independence of the United States, and the first treaty to which they were a party, the preamble declares, that the king of France and the United States, \"willing to fix, in an equitable and permanent manner, the rules which ought to be followed relative to the correspondence and commerce which the two parties desire to establish between their respective countries, states, and subjects, have judged that the said end could not be better obtained, than by taking for the basis of their agreement the most perfect equality and reciprocity, and by carefully avoiding all those burthensome preferences, which are usually sources of debate, embarrassment, and discontent; by leaving also each party at liberty to make, respecting commerce and navigation, those interior regulations which it shall find most convenient to itself; and by founding the advantage of commerce solely  upon reciprocal utility, and the just rules of free intercourse; reserving withal to each party the liberty of admitting, at its pleasure, other nations to a participation of the same advantage.\" \nIn the second article of the same treaty, it was also stipulated, that neither the United States nor France should thenceforth grant any particular favour to other nations, in respect of commerce and navigation, which should not immediately become common to the other nations, freely, if the concession was free, or for the same compensation, if conditional. \nIn answer to Mr. De Forest's note of the 12th instant, Mr. Adams has the honour of assuring him, that the President has received with much satisfaction the information contained in it; and will derive great pleasure from every event which shall contribute to the stability and honour of the government of Buenos Ayres. \nMr. Adams requests Mr. De Forest to accept the assurance of his distinguished consideration. -- Washington, Dec. 31, 1818. \nNo. 8. Mr. Adams to Mr. De Forest. \nMr. Adams presents his compliments to Mr. De Forest, and in reference to the case of the schooner brought into Scituate, mentioned in Mr. De Forest's communication  of the 9th inst. as well as to several others which have occurred of a similar character, requests him to have the goodness to impress upon the government of Buenos Ayres, the necessity of taking measures to repress the excesses and irregularities committed by many armed vessels, sailing under their flag, and bearing their commissions. The government of the United States have reason to believe that many of these vessels have been fitted out, armed, equipped, and manned in the ports of the United States, and in direct violation of their laws. \nOf the persons composing the prize crew of the vessel at Scituate, and now in confinement upon charges of murder and piracy, it is understood that three are British subjects, and one a citizen of the United States. It is known that commissions for private armed vessels, to be fitted out, armed, and manned in this country, have been sent from Buenos Ayres to the United States, with the names of the vessels, commanders, and officers, in blank, to be filled up here, and have been offered to the avidity of speculators, stimulated more by the thirst for plunder than by any regard for the South American cause. \nOf such vessels, it is obvious that  neither the captains, officers, nor crews, can have any permanent connection with Buenos Ayres, and from the characters of those who alone could be induced to engage in such enterprizes, there is too much reason to expect acts of atrocity, such as those alleged against the persons implicated in the case of the vessel at Scituate. \nThe President wishes to believe that this practice has been without the privity of the government of Buenos Ayres, and he wishes their attention may be drawn to the sentiment, that it is incompatible both with the rights and the obligations of the United States -- with their rights, as an offensive exercise of sovereign authority by foreigners, within their jurisdiction, and without their consent -- with their obligations, as involving a violation of the neutrality which they have invariably avowed, and which it is their determination to maintain. The President expects, from the friendly disposition manifested by the supreme director towards the United States, that no instance of this cause of complaint will hereafter be given. \nMr. Adams requests Mr. De Forest to accept the renewed assurances of his distinguished consideration. \nWashington, Jan. 1, 1819. \n Sir -- It is not my intention to give any unnecessary trouble to the department of state; but having had the honour of receiving two notes from Mr. Secretary Adams, on the 4th instant, dated December 31st, and January 1st, some explanation appears to be necessary. \nIn the first place, I do not suppose \"that any privileges which may be attached to the consular character, can avail in the judicial tribunals of this country, to influence, in any manner, the administration of justice.\" But, I suppose, that a consul duly accredited is, ex officio, the legal representative of his fellow citizens, not otherwise represented by an express power: and that the tribunals of justice do, and will, admit the legality of such representation. Mr. Adams has misunderstood me in another observation, which was in substance, that there was a general opinion prevailing at Buenos Ayres, that the power first recognizing our independence, would expect some extraordinary privilege or advantage therefor; and that in my opinion, the government of Buenos Ayres would readily grant it if demanded. I know nothing however, of any resolution having been passed on this subject by the Congress at Tucuman. \nIt appears,  from the relation of a fact in Mr. Adams's note of the 31st ultimo, that the government of Buenos Ayres had intimated a desire (in the course of a negotiation with an agent of the United States) to reserve the right of granting more extraordinary privileges to Spain, on the settlement of a general peace, which must appear to every one contrary to their inclination, as well as interest; and it can be accounted for only by supposing that the proposition of the United States' agent was merely of a temporary nature, and did not extend to an acknowledgment, by the United States, of the independence of South America; which act, I am confident, would have rendered any such reservation altogether unnecessary in the opinion of the government of Buenos Ayres, who must have seen that they were treating with an unauthorized person, and must have thought it good policy at this time to suggest such an idea. Indeed, were the government of Buenos Ayres to pursue that course, they might plead the example of a neighbouring power, acknowledged to be independent by the United States; and its chief, both illustrious and legitimate. It is well known that the government of Brazil taxes the commerce of  the United States about thirty per cent. higher than that of Great Britain. It may be, that Great Britain is entitled to this preference, on account of important services rendered by her to the king of Portugal; and permit me to ask you, sir, what services could be rendered to any nation already in existence, so great as would be the acknowledgment by Great Britain, or by the United States, of the independence of South America? Such recognition, merely, by either of these powers, would probably have the immediate effect of putting an end to the cruel and destructive war, now raging between Spain and South America, and crown with never fading laurels the nation thus first using its influence in favour of an oppressed, but high minded people. \nThe account given by Mr. Adams, in his note of the 1st instant, respecting the irregular conduct of vessels sailing under the Buenos Ayres flag, has caused me much mortification, and has already been transmitted to my government by the Plattsburgh; as also a copy of Mr. Adams' frank and friendly communication of the 31st ultimo. The supreme director will certainly be desirous to adopt the most prompt and efficacious measures within his power,  to remedy the evils complained of. But pray, sir, what can he do more than has already been done? The government of Buenos Ayres have established the most just rules and regulations for the government of their vessels of war, as well as of commerce; and have sent me to this country, invested with the title and powers of their consul general; as well as to guard against any breach of those rules and regulations, by their citizens and vessels frequenting these seas, and the ports of these United States, as to protect them in their rights: but, sir, without a recognition of my powers, on the part of the government, I can have no right whatever to question any individual on the subject of his conduct; nor can any responsibility attach to me, nor to my government, during such a state of things, for irregularities committed. \nA considerable number of our seamen are foreigners by birth, who have voluntarily entered our service; therefore, it is not a matter of surprise, that of the mutineers of the prize crew of the vessel at Scituate, three should have been born Englishmen, and one a North American. It is, however, an absolute fact, to which I am personally knowing, that the captors of  that prize, (the Buenos Ayres, and Tucuman privateers,) were legally fitted out at Buenos Ayres, early in the last year, from which port they sailed on a cruize off Cadiz; and it will afford the government of South America much satisfaction, to learn that the United States will prosecute those mutineers, and punish such as are found guilty of crimes, according to the laws. \nBefore I close this note, I beg leave to make a few observations in answer to one of the reasons for not accrediting me, given by Mr. Adams, by direction of the President of the United States, in a conversation which I have had the honour of holding with him, viz.: \"That the act of accrediting me as consul general, would be tantamount to the formal acknowledgment of the independence of the government which sent me.\" I do not profess to be skilled in the law of nations, nor of diplomacy, nor would I doubt the correctness of any opinion expressed by the President, for whose person and character I have entertained the most profound respect; yet, I must say, that I cannot understand the difference between the sending of a consular agent, duly authorized to Buenos Ayres, where one was accredited from this country, four  or five years ago, and has continued ever since in the exercise of the duties of his office, and the reception of a similar agent here. I also beg leave to mention, that I was in this country soon after the arrival of the present minister of Spain, the Chevalier de Onis; and recollect to have heard it observed, that being a political agent, he was not accredited, because the sovereignty of Spain was in dispute; but, that the consuls, who acknowledged the same government, (one of the claimants to the sovereignty, and the one actually in possession of it,) were allowed to exercise their functions. If this was the case at that time, the government of the United States must have then had a different opinion on this subject, from what it now has. Mr. Adams will please to bear in mind, that I have only solicited to be accredited as a consular agent, having never agitated the question of an acknowledgment of our independence as a nation, which most certainly is anxiously desired by the government and people of South America, but which being a political question, I have never asked. \nMr. Adams will also be pleased to accept the renewed assurances of my most distinguished consideration and  respect. \nDAVID C. DE FOREST. \nGeorgetown, January 8, 1819. \nNo. 10. \nThe supreme director of the United Provinces of La Plata, to his Excellency the President of the United States of North America. \nMost Excellent Sir -- The supreme government of these provinces have long exerted their zealous efforts to establish the closest and most amicable relations with the United States of America, to which the most obvious interests seem mutually to invite them. This desirable object has hitherto been frustrated by the events of the times; but the moment appears at length to have arrived, which presents to the people of these provinces, the flattering prospect of seeing their ardent wishes accomplished. In consideration of these circumstances, and in conformity with the 23d of the articles agreed upon with citizen William G. D. Worthington, the agent of your government in these provinces, I have nominated citizen David. C. De Forest, their consul general to the United States, with the powers specified in his commission and instructions respectively. I therefore request your excellency to grant him the attention and consideration, which in the like case will be afforded to the public agents  of your excellency resident in these regions. \nI avail myself of this renewed occasion of reiterating to your excellency, assurances of the sentiments of respect and consideration, with which I have the honour to be, your excellency's most obedient and most humble servant, \nJN. MN. DE PUEYRREDON. \n \n\n ", " \nOpinion \n\n \n \n  The opinion of the Court was delivered by Mr. Chief Justice MARSHALL. \nThis is an ejectment brought in the Circuit Court for the district of Kentucky, by the original patentee, against a purchaser at a sale made for non-payment of the direct tax, imposed by the act of Congress of   the 14th of July, 1798, c. 92. After the plaintiff in the Circuit Court had exhibited his title, the defendants gave in evidence the books of the supervisor of the district, showing, that the tax on the lands in controversy had been charged to the plaintiffs, and that they had been sold for the non-payment thereof. They also gave in evidence a deed executed by the Marshal of the district, in pursuance of the act of March 3d, 1804, and proved by Christopher Greenup, the agent of the plaintiff, that there were tenants on the land, and that he did not pay the tax, nor redeem the land. \nUpon this evidence, the Court, on the motion of the plaintiff, instructed the jury, \"that the purchaser under the sale of lands for the non-payment of the direct tax, to take out title, must show that the collector had advertised the land, and performed the other requisites of the law of Congress, in that case provided, otherwise he made out no title.\" The defendants then moved the Court to instruct the jury, \"that the deed and other evidence produced by them, and herein mentioned, was prima facie evidence that the said land had been advertised, and the  other requisites of the law of Congress,  as to the duty of the collector, in that respect, had been complied with:\" but the Court refused to give the instruction; and, on the contrary, instructed the jury, \"that said deed, and other evidence, was not prima facie evidence that the said land had been advertised according to law, nor that the requisites of the law had been complied with.\" \nThe defendants excepted to this opinion. The jury found a verdict for the plaintiff, and the judgment  rendered on that verdict is now before this Court on writ of error. \nAs the collector has no general authority to sell lands at his discretion for the non-payment of the direct tax, but a special power to sell in the particular cases described in the act, those cases must exist, or his power does not arise. It is a naked power, not coupled with an interest; and in all such cases, the law requires that every pre-requisite to the exercise of that power must precede its exercise; that the agent must pursue the power, or his act will not be sustained by it. \nThis general proposition has not been controverted; but the plaintiffs in error contend, that a deed executed by a public officer, is prima facie evidence, that every act which  ought to procede that deed had preceded it. That this conveyance is good, unless the party contesting it can show that the officer failed to perform his duty. \nIt is a general principle, that the party who sets up a title must furnish the evidence necessary to support it. If the validity of a deed depends on an act in pais, the party claiming under that deed is as much bound to prove the performance of the act, as he would be bound to prove any matter of record on which its validity might depend. It forms a part of his title; it is a link in the chain which is essential to its continuity, and which it is incumbent on him to preserve. These facts should be examined by him before he becomes a purchaser, and the evidence of them should be preserved as a necessary muniment of title. If this be true in the general, is there  any thing which will render the principle inapplicable to the case of lands sold for the non-payment of taxes? In the act of Congress, there is no declaration that these conveyances shall be deemed prima facie evidence of the validity of the sale. Is the nature of the transaction such, that a Court ought to presume in its favour any thing which does  not appear, or ought to relieve the party claiming under it from the burthen of proving its correctness? \nThe duties of the public officer are prescribed in the 9th, 10th, and 13th sections of the act of the 14th of July, 1798, c. 92. 1 If these duties be examined,  they will be found to be susceptible of complete proof on the part of the officer, and consequently on the part of the purchaser, who ought to preserve the evidence  of them, at least, for a reasonable time. Their chief object is to give full notice to the proprietor, and furnish him with every facility for the voluntary payment of the tax, before resort should be had to coercive means. In some instances the proprietor would find it extremely difficult, if not impracticable, to prove that the officer had neglected to give him the notice required by law. It is easy, for example, to show that the collector  has posted up the necessary notifications in four public places in his collection district, as is required by the 9th section, but very difficult to show that he has not. He may readily prove that he has made a personal demand on the person liable for the tax, but the negative, in many  cases, would not admit of proof. \n The 13th section permits the collector, when the tax shall have remained unpaid for the term of one year, having first advertised the same for two months in six different public places within the said district, and in two gazettes in the State, if there he so many, one of which shall be the gazette in which the laws of such State shall be published by authority, if any such there be, to proceed to sell, &c. \nThe purchaser ought to preserve these gazettes, and the proof that these publications were made. It is imposing no greater hardship on him to require it, than it is to require him to prove, that a power of attorney, in a case in which his deed has been executed by an attorney, was really given by the principal. But to require from the original proprietor proof that these acts were not performed by the collector, would be no impose on him a task always difficult, and sometimes impossible to be performed. \nAlthough this question may not have been expressly, and in terms decided in this Court, yet decisions have been made which seem to recognize it. In the case of Stead's Executors v. Courts, 2 in which was drawn into question the validity of a sale made under the tax laws of  the state of Georgia, this Court said, \"it is incumbent on the vendee to prove the authority  to sell.\" And in Parker v. Rule's Lessee, 3 where a sale was declared to be invalid, because it did not appear in evidence, that the publications required by the 9th section of the act, had been made, the Court inferred, that they had not been made, and considered the case as if proof of the negative had been given by the plaintiff in ejectment. The question, whether the deed was prima facie evidence, it is true, was not made in that case; but its existence was too obvious to have escaped either the Court or the bar. It was not made at the bar, because counsel did not rely on it, nor noticed by the judges, because it was not supposed to create any real difficulty. \nIt has been said in argument, that in cases of sales under the tax laws of kentucky, a deed is considered by the Courts of that state, as prima facie evidence that the sale was legal. Not having seen the case or the law, the Court can form no opinion on it. In construing a statute of Kentucky, the decisions of the Courts of Kentucky would unquestionably give the rule by which  this Court would be guided; but it is the peculiar province of this Court to expound the acts of congress, and to give the rule by which they are to be construed. \nJudgment affirmed, with costs. \n \n\n ", "; JOHNSON \nOpinion \n\n \n \n  Mr. Chief Justice MARSHALL delivered the opinion   of the Court. This is a case, in which, under its peculiar circumstances, the amount of salvage is discretionary. In such cases, it is almost impossible that different minds, contemplating the same subject, should not form different conclusions as to the amount of salvage to be decreed, and the mode of distribution. Appeals should not be encouraged upon the ground of minute distinctions; nor would this Court choose to reverse the decision of a Circuit Court, in this class of cases, unless it manifestly appeared, that some important error had been committed. In this particular case, the Court is well satisfied, both with the amount of  salvage decreed by the Circuit Court, and with the mode of distribution; and the decree is, therefore, affirmed, with costs. \nDecree affirmed. \nA question afterwards arose, upon a claim of the ship owners for freight, &c. \nMr. Justice JOHNSON delivered the opinion of the Court. In this case, the attention of the Court has been particularly called to the claim interposed by the ship owners, for freight and average. \nThis Court, as at present advised, are very well satisfied that no freight was earned, and that average may have  been justly claimed. But in the case then depending, the Circuit Court could not have awarded either of those demands. The question is inter alios. There was no pretext for claiming either, as against the salvors; and the ship owners ought to  have pursued their rights by libel, of petition by way libel, against the portion of the proceeds of the cargo which was adjudged to the shippers. These parties were entitled to be heard upon such a claim, and could only be called upon to answer in that mode. \nBut the ship owners are not yet too late to pursue their remedy. The proceeds are still in the possession of the law, and may be subjected to any maritime claim or lien in the Court below. \nClaim rejected. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Chief Justice MARSHALL delivered the opinion of the Court. The bill in this case was filed by the United States in the Circuit Court for the district of Massachusetts, to recover from the defendants a sum of money in their hands, alleged to be the money of Jacob Shoemaker and Charles R. Travers, merchants and partners, who are stated to be insolvents, and to be indebted to the United States for duties. \nIt appears, that Shoemaker and Travers, on the 6th day of December,  1806, executed an indenture, in which, reciting that they are justly indebted to divers persons, whose names are expressed in a list thereto annexed, and are unable at present to pay the said debts, they assign to trustees therein-mentioned, all and singular the estate and effects contained in a schedule annexed, in trust, to pay the debt due to the enumerated creditors, and first that due to the United States. The schedule contains many items of property, and among others the proceeds of the  cargo of the Deborah, then at sea. The Deborah was the property of Howland and Allen; and on her coming into port, her captain delivered to her owners a sum of money which he had received in Guadaloupe for Shoemaker and Travers, and which is in the schedule annexed to the deed of assignment already mentioned. At the hearing the Circuit Court dismissed the bill; in the opinion that it was not sustainable. From this decree the United States have appealed to this Court, and now insist, \n1. That it is a case in which a Court of Equity has jurisdiction. \n2. That the United States are entitled to priority, this being a case within the provisions of the act of Congress. \nOn the first  point no difficulty would be found, had the proper parties been before the Court A trust exists, and an account would be proper, to ascertain the sum due from Howland and Allen to Shoemaker and Travers. The case, even independent of these circumstances, would be proper for a Court of Chancery, but for the act of Massachusetts, which allows a creditor to sue the debtor of his debtor. Still the remedy in Chancery, where all parties may be brought before the Court, is more complete and adequate, as the sum actually due may be there, in such cases, ascertained with more certainty and facility; and as the Courts of the Union have a Chancery jurisdiction in every state, and the judiciary act confers the same Chancery powers on all, and gives the same rule of decision, its jurisdiction in Massachusetts must be the same as in other States. \n This being a case of which a Court of Chancery may take jurisdiction, we are next to inquire, whether it is one in which the United States are entitled to priority. \nThis depends on the fact whether the deed of assignment executed by Shoemaker and Travers was a conveyance of all their property. The words of the deed, after reciting the motives  which led to it, and the consideration, are \"have granted, &c., and by these presents, do grant,\" &c., \"all and singular the estate and effects which is contained in the schedule hereunto annexed, marked A.\" The caption of the schedule is, \"schedule of property assigned by Shoemaker and Travers, and Jacob Shoemaker, to the creditors of Shoemaker and Travers.\" \nThe deed then conveys only the property contained in the schedule, and the schedule does not purport to contain all the property of the parties who made it. In such a case, the presumption must be, that there is property not contained in the deed, unless the contrary appears. The onus probandi is thrown on the United States. \nIt is contended for the United States, that the clause which gives the power to sell, by using the words \"all the property of them, the said Shoemaker and Travers, and Jacob Shoemaker,\" indicate clearly that this deed does convey all their property. But these words are explained and limited by those which follow, so as to show that the word \"all\" is used in reference to the schedule, and means all the property in the schedule. The depositions do not aid the deed. The question, whether the whole   property is assigned, is still left to conjecture, and this being the fact on which the preference of the United States is founded, ought to be proved. Not being proved, the Court is of opinion, that this is not a case in which it can be claimed. \nBut the United States are the creditors of Shoemaker and Travers, and have a right as creditors to proceed against their property in the hands of Howland and Allen. They have a right to so much of that property as remains after the debt due to Howland and Allen shall be satisfied. But to ascertain this amount, an account between Howland and Allen and the debtors to the United States should be taken, and the persons against whom the account is to be taken should be parties to the suit. Although, if they cannot be found within the district of Massachusetts, the process of the Court cannot reach them, still they may appear without coercion. At any rate, an account ought to be taken, since the matter controverted between the parties, is more proper to be stated by a master than to be decided in Court without such report. \nThe decree is to be reversed, and the cause remanded, with directions to allow the plaintiffs to amend the bill and make  new parties. The United States will, of course, be at liberty to take testimony, showing the assignment to be of all the property of the parties who made it. 4 \n DECREE. This cause came on to be heard on the transcript of the record of the Circuit Court for the district of Massachusetts, and was argued by counsel.  On consideration whereof, this Court is of opinion, that the Circuit Court erred in dismissing the bill of the plaintiffs, and that their decree ought to be reversed, and it is hereby reversed and annulled: And it is further ordered, that the said cause be remanded to the said Circuit Court, with directions to allow the plaintiffs to amend their bill and make new parties. 5 \n \n \n\n ", " \nOpinion \n\n \n \n  Mr. Chief Justice MARSHALL delivered the opinion of the Court. This case is adjourned from the Court of the United States, for the first circuit and the district of Massachusetts, on several points on which the judges of that Court were divided, which are stated  in the record for the opinion of this Court. The first is, \nWhether, since the adoption of the constitution of the United States, any State has authority to pass a bankrupt law, or whether the  power is exclusively vested in the Congress of the United States? \nThis question depends on the following clause, in the 8th section of the 1st article of the constitution of the United States. \n\"The Congress shall have power,\" &c. to \"establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States.\" \nThe counsel for the plaintiff contend, that the grant of this power to Congress, without limitation, takes it entirely from the several States. \nIn support of this proposition they argue, that every power given to Congress is necessarily supreme; and, if, from its nature, or from the words of grant, it is apparently  intended to be exclusive, it is as much so as if the States were expressly forbidden to exercise it. \nThese propositions have been enforced and illustrated by many arguments, drawn from different parts of the constitution. That the power is both unlimited and supreme, is not questioned. That it is exclusive, is denied by the counsel for the defendant. \nIn considering this question, it must be recollected that, previous to the formation of the new constitution, we were divided into independent States, united for some purposes, but, in most respects, sovereign. These States could exercise almost every legislative power, and, among others, that of passing bankrupt  laws. When the American people created a national legislature, with certain enumerated powers, it was neither necessary nor proper to define the powers retained by the States. These powers proceed, not from the people of America, but from the people of the several States; and remain, after the adoption of the constitution, what they were before, except so far as they may be abridged by that instrument. In some instances, as in making treaties, we find an express prohibition; and this shows the sense of the  Convention to have been, that the mere grant of a power to Congress, did not imply a prohibition on the States to exercise the same power. But it has never been supposed, that this concurrent power of legislation extended to every possible case in which its exercise by the States has not been expressly prohibited. The confusion resulting from such a practice would be endless. The principle laid down by the counsel for the plaintiff, in this respect, is undoubtedly correct. Whenever the terms in which a power is granted to Congress, or the nature of the power, require that it should be exercised exclusively by Congress, the subject is as completely taken from the State Legislatures, as if they had been expressly forbidden to act on it. \nIs the power to establish uniform laws on the subject of bankruptcies, throughout the United States, of this description? \nThe peculiar terms of the grant certainly deserve notice. Congress is not authorized merely to pass laws, the operation of which shall be uniform, but to establish uniform laws on the subject throughout the  United States. This establishment of uniformity is, perhaps, incompatible with State legislation, on that  part of the subject to which the acts of Congress may extend. But the subject is divisible in its nature into bankrupt and insolvent laws; though the line of partition between them is not so distinctly marked as to enable any person to say, with positive precision, what belongs exclusively to the one, and not to the other class of laws. It is said, for example, that laws which merely liberate the person are insolent laws, and those which discharge the contract, are bankrupt laws. But is an act of Congress should discharge the person of the bankrupt, and leave his future acquisitions liable to his creditors, we should feel much hesitation in saying that this was an insolvent, not a bankrupt act; and, therefore, unconstitutional. Another distinction has been stated, and has been uniformly observed. Insolvent laws operate at the instance of an imprisoned debtor; bankrupt laws at the instance of a creditor. But should an act of Congress authorize a commission of bankruptcy to issue on the application of a debtor, a Court would scarcely be warranted in saying, that the law was unconstitutional, and the commission a nullity. \nWhen laws of each description may be passed by the same  Legislature, it is unnecessary to draw a precise line between them. The difficulty can arise only in our complex system, where the Legislature of the Union possesses the power of enacting bankrupt laws; and those of the States, the power of enacting insolvent laws. If it be determined that they are not laws of the same character, but are as distinct as bankrupt laws and laws which regulate the course of descents,  a distinct line of separation must be drawn, and the power of each government marked with precision. But all perceive that this line must be in a great degree arbitrary. Although the two systems have existed apart from each other, there is such a connection between them as to render it difficult to say how far they may be blended together. The bankrupt law is said to grow out of the exigencies of commerce, and to be applicable solely to traders; but it is not easy to say who must be excluded from, or may be included within, this description. It is, like every other part of the subject, one on which the Legislature may exercise an extensive discretion. \nThis difficulty of discriminating with any accuracy between insolvent and bankrupt laws, would lead to the  opinion, that a bankrupt law may contain those regulations which are generally found in insolvent laws; and that an insolvent law may contain those which are common to a bankrupt law. If this be correct, it is obvious that much inconvenience would result from that construction of the constitution, which should deny to the State Legislatures the power of acting on this subject, in consequence of the grant to Congress. It may be thought more convenient, that much of it should be regulated by State legislation, and Congress may purposely omit to provide for many cases to which their power extends. It does not appear to be a violent construction of the constitution, and is certainly a convenient one, to consider the power of the States as existing over such cases as the laws of the Union may not reach. But be this as it may, the power granted to Congress may be exercised  or declined, as the wisdom of that body shall decide. If, in the opinion of Congress, uniform  laws concerning bankruptcies ought not to be established, it does not follow that partial laws may not exist, or that State legislation on the subject must cease. It is not the mere existence of the  power, but its exercise, which is incompatible with the exercise of the same power by the States. It is not the right to establish these uniform laws, but their actual establishment, which is inconsistent with the partial acts of the States. \nIt has been said, that Congress has exercised this power; and, by doing so, has extinguished the power of the States, which cannot be revived by repealing the law of Congress. \nWe do not think so. If the right of the States to pass a bankrupt law is not taken away by the mere grant of that power to Congress, it cannot be extinguished; it can only be suspended, by the enactment of a general bankrupt law. The repeal of that law cannot, it is true, confer the power on the States; but it removes a disability to its exercise, which was created by the act of Congress. \nWithout entering farther into the delicate inquiry respecting the precise limitations which the several grants of power to Congress, contained in the constitution, may impose on the State Legislatures, than is necessary for the decision of the question before the Court, it is sufficient to say, that until the power to pass uniform laws on the subject of bankruptcies be exercised by  Congress, the States are not forbidden to pass a bankrupt law, provided it contain no principle  which violates the 10th section of the first article of the constitution of the United States. \nThis opinion renders it totally unnecessary to consider the question whether the law of New-York is, or is not, a bankrupt law. \nWe proceed to the great question on which the cause must depend. Does the law of New-York, which is pleaded in this case, impair the obligation of contracts, within the meaning of the constitution of the United States? \nThis act liberates the person of the debtor, and discharges him from all liability for any debt previously contracted, on his surrendering his property in the manner it prescribes. \nIn discussing the question whether a State is prohibited from passing such a law as this, our first inquiry is into the meaning of words in common use, What is the obligation of a contract? and what will impair it? \nIt would seem difficult to substitute words which are more intelligible, or less liable to misconstruction, than those which are to be explained. A contract is an agreement in which a party undertakes to do, or not to do, a particular thing. The  law binds him to perform his undertaking, and this is, of course, the obligation of his contract. In the case at bar, the defendant has give his promissory note to pay the plaintiff a sum of money on or before a certain day. The contract binds him to pay that sum on that day; and this is its obligation. Any law which releases a part of this obligation, must, in the literal sense of the word, impair it. Much more must a  law impair it which makes it totally invalid, and entirely discharges it. \nThe words of the constitution, then, are express, and incapable of being misunderstood. They admit of no variety of construction, and are acknowledged to apply to that species of contract, an engagement between man and man for the payment of money, which has been entered into by these parties. Yet the opinion that this law is not within the prohibition of the constitution has been entertained by those who are entitled to great respect, and has been supported by arguments which deserve to be seriously considered. \nIt has been contended, that as a contract can only bind a man to pay to the full extent of his property, it is an implied condition that he may be discharged on surrendering  the whole of it. \nBut it is not true that the parties have in view only he property in possession when the contract is formed, or that its obligation does not extend to future acquisitions. Industry, talents, and integrity, constitute a fund which is as confidently trusted as property itself. Future acquisitions are, therefore, liable for contracts; and to release them from this liability impairs their obligation. \nIt has been argued, that the States are not prohibited from passing bankrupt laws, and that the essential principle of such laws is to discharge the bankrupt from all past obligations; that the States have been in the constant practice of passing insolvent laws, such as that of New-York, and if the framers of the constitution had intended to deprive them of this  power, insolvent laws would have been mentioned in the prohibition; that the prevailing evil of the times, which produced this clause in the constitution, was the practice of emitting paper money, of making property which was useless to the creditor a discharge of his debt, and of changing the time of payment by authorizing distant instalments. Laws of this description, not insolvent laws, constituted,  it is said, the mischief to be remedied; and laws of this description, not insolvent laws, are within the true spirit of the prohibition. \nThe constitution does not grant to the States the power of passing bankrupt laws, or any other power; but finds them in possession of it, and may either prohibit its future exercise entirely, or restrain it so far as national policy may require. It has so far restrained it as to prohibit the passage of any law impairing the obligation of contracts. Although, then, the States may, until that power shall be exercised by Congress, pass laws concerning bankrupts; yet they cannot constitutionally introduce into such laws a clause which discharges the obligations the bankrupt has entered into. It is not admitted that, without this principle, an act cannot be a bankrupt law; and if it were, that admission would not change the constitution, nor exempt such acts from its prohibitions. \nThe argument drawn from the omission in the constitution to prohibit the States from passing insolvent laws, admits of several satisfactory answers. It was not necessary, nor would it have been safe, had it even been the intention of the framers of the  constitution  to prohibit the passage of all insolvent laws, to enumerate particular subjects to which the principle they intended to establish should apply. The principle was the inviolability of contracts. This principle was to be protected  in whatsoever form it might be assailed. To what purpose enumerate the particular modes of violation which should be forbidden, when it was intended to forbid all? Had an enumeration of all the laws which might violate contracts been attempted, the provision must have been less complete, and involved in more perplexity than it now is. The plain and simple declaration, that no State shall pass any law impairing the obligation of contracts, includes insolvent laws and all other laws, so far as they infringe the principle the Convention intended to hold sacred, and no farther. \nBut a still more satisfactory answer to this argument is, that the Convention did not intend to prohibit the passage of all insolvent laws. To punish honest insolvency by imprisonment for life, and to make this a constitutional principle, would be an excess of inhumanity which will not readily be imputed to the illustrious patriots who framed our constitution, nor to the  people who adopted it. The distinction between the obligation of a contract, and the remedy given by the legislature to enforce that obligation, has been taken at the bar, and exists in the nature of things. Without impairing the obligation of the contract, the remedy may certainly be modified as the wisdom of the nation shall direct. Confinement of the debtor may be a punishment for not performing  his contract, or may be allowed as a means of inducing him to perform it. But the State may refuse to inflict this punishment, or may withhold this means, and leave the contract in full force. Imprisonment is no part of the contract, and simply to release the prisoner does not impair its obligation. No argument can be fairly drawn from the 61st section of the act for establishing a uniform system of bankruptcy, which militates against this reasoning. That section declares, that the act shall not be construed to repeal or annul the laws of any State then in force for the relief of insolvent debtors, except so far as may respect persons and cases clearly within its purview; and in such cases it affords its sanction to the relief given by the insolvent laws of the State,  if the creditor of the prisoner shall not, within three months, proceed against him as a bankrupt. \nThe insertion of this section indicates an opinion in Congress, that insolvent laws might be considered as a branch of the bankrupt system, to be repealed or annulled by an act for establishing that system, although not within its purview. It was for that reason only that a provision against this construction could be necessary. The last member of the section adopts the provisions of the State laws so far as they apply to cases within the purview of the act. \nThis section certainly attempts no construction of the constitution, nor does it suppose any provision in the insolvent laws impairing the obligation of contracts. It leaves them to operate, so far as constitutionally they may, unaffected by the act of Congress  except where that act may apply to individual cases. \nThe argument which has been pressed most earnestly at the bar, is, that although all legislative acts which discharge the obligation of a contract without performance, are within the very words of the constitution, yet an insolvent act, containing this principle, in not within its spirit, because such acts  have been passed by Colonial and State Legislatures from the first settlement of the country, and because we know from the history of the times, that the mind of the Convention was directed to other laws which were fraudulent in their character, which enabled the debtor to escape from his obligation, and yet hold his property, not to this, which is beneficial in its operation. \nBefore discussing this argument, it may not be improper to premise that, although the spirit of an instrument, especially of a constitution, is to be respected not less than its letter, yet the spirit is to be collected chiefly from its words. It would be dangerous in the extreme to infer from extrinsic circumstances, that a case for which the words of a instrument expressly provide, shall be exempted from its operation. Where words conflict with each other, where the different clauses of an instrument bear upon each other, and would be inconsistent unless the natural and common import of words be varied, construction becomes necessary, and a departure from the obvious meaning of words is justifiable. But if, in any case, the plain meaning of a provision, not contradicted by any other provision in the same  instrument,  is to be disregarded, because we believe the framers of that instrument could not intend what they say, it must be one in which the absurdity and injustice of applying the provision to the case, would be so monstrous, that all mankind would, without hesitation, unite in rejecting the application. \nThis is certainly not such a case. It is said the Colonial and State Legislatures have been in the habit of passing laws of this description for more than a century; that they have never been the subject of complaint, and, consequently, could not be within the view of the general Convention. \nThe fact is too broadly stated. The insolvent laws of many, indeed, of by far the greater number of the States, do not contain this principle. They discharge the person of the debtor, but leave his obligation to pay in full force. To this the constitution is not opposed. \nBut, were it even true that this principle had been introduced generally into those laws, it would not justify our varying the construction of the section. Every State in the Union, both while a colony and after becoming independent, had been in the practice of issuing paper money; yet this practice is in  terms prohibited. If the long exercise of the power to emit bills of credit did not restrain the Convention from prohibiting its future exercise, neither can it be said that the long exercise of the power to impair the obligation of contracts, should prevent a similar prohibition. It is not admitted that the prohibition is more express in the one case than in the other. It does not indeed extend to insolvent laws by name,  because it is not a law by name, but a principle which is to be forbidden; and this principle is described in as appropriate terms as our language affords. \nNeither, as we conceive, will any admissible rule of construction justify us in limiting the prohibition under consideration, to the particular laws which have been described at the  bar, and which furnished such cause for general alarm. What were those laws? \nWe are told they were such as grew out of the general distress following the war in which our independence was established. To relieve this distress, paper money was issued, worthless lands, and other property of no use to the creditor, were made a tender in payment of debts; and the time of payment, stipulated in the contract,  was extended by law. These were the peculiar evils of the day. So much mischief was done, and so much more was apprehended, that general distrust prevailed, and all confidence between man and man was destroyed. To laws of this description therefore, it is said, the prohibition to pass laws impairing the obligation of contracts ought to be confined. \nLet this argument be tried by the words of the section under consideration. \nWas this general prohibition intended to prevent paper money?We are not allowed to say so, because it is expressly provided, that no State shall \"emit bills of credit;\" neither could these words be intended to restrain the States from enabling debtors to discharge their debts by the tender of property of no real value to the creditor, because for that subject also particular provision is made. Nothing but  gold and silver coin can be made a tender in payment of debts. \nIt remains to inquire, whether the prohibition under consideration could be intended for the single case of a law directing that judgments should be carried into execution by instalments? \nThis question will scarcely admit of discussion. If this was the only remaining mischief against  which the constitution intended to provide, it would undoubtedly have been, like paper money and tender laws, expressly forbidden. At any rate, terms more directly applicable to the subject, more appropriately expressing the intention of the Convention, would have been used. It seems scarcely possible to suppose that the framers of the constitution, if intending to prohibit only laws authorizing the payment of debts by instalment, would have expressed that intention by saying \"no State shall pass any law impairing the obligation of contracts.\" No men would so express such an intention. No men would use terms embracing a whole class of laws, for the purpose of designating a single individual of that class. No court can be justified in restricting such comprehensive words to a particular mischief to which no allusion is made. \nThe fair, and, we think, the necessary construction of the sentence, requires, that we should give these words their full and obvious meaning. A general dissatisfaction with that lax system of legislation which followed the war of our revolution undoubtedly directed the mind of the Convention to this subject. It is probable that laws such as those which   have been stated in argument, produced the loudest complaints, were most immediately felt. The attention of the Convention, therefore, was particularly directed to paper money, and to acts which enabled the debtor to discharge his debt, otherwise than was stipulated in the contract. Had nothing more been intended, nothing more would have been expressed. But, in the opinion of the Convention, much more remained to be done. The same miscief might be effected by other means. To restore public confidence completely, it was necessary not only to prohibit the use of particular means by which it might be effected, but to prohibit the use any means by which the same mischief might be produced. The Convention appears to have intended to establish a great principle, that contracts should be inviolable. The constitution, therefore, declares, that no State shall pass \"any law impairing the obligation of contracts.\" \nIf, as we think, it must be admitted that this intention might actuate the Convention; that it is not only consistent with, but is apparently manifested by, all that part of the section which respects this subject; that the words used are well adapted to the expression  of it; that violence would be done to their plain meaning by understanding them in a more limited sense; those rules of construction, which have been consecrated by the wisdom of ages, compel us to say, that these words prohibit the passage of any law discharging a contract without performance. \nBy way of analogy, the statutes of limitations, and against usury, have been referred to in argument;  and it has been supposed that the construction of the constitution, which this opinion maintains, would apply to them also, and must therefore be too extensive to be correct. \nWe do not think so. Statutes of limitations relate to the remedies which are furnished in the courts. They rather establish, that certain circumstances shall amount to evidence that a contract has been performed, than dispense with its performance. If, in a State where six years may be pleaded in bar to an action of assumpsit, a law should pass declaring that contracts already in existence, not barred by the statute, should be construed to be within it, there could be little doubt of its unconstitutionality. \nSo with respect to the laws against usury. If the law be, that no person shall take more than  six per centum per annum for the use of money, and that, if more be reserved, the contract shall be void, a contract made thereafter, reserving seven per cent., would have no obligation in its commencement; but if a law should declare that contracts already entered into, and reserving the legal interest, should be usurious and void, either in the whole or in part, it would impair the obligation of the contract, and would be clearly unconstitutional. \nThis opinion is confined to the case actually under consideration. It is confined to a case in which a creditor sues in a Court, the proceedings of which the legislature, whose act is pleaded, had not a right to control, and to a case where the creditor had not proceeded to execution against the body of his debtor, within the State whose law attempts to absolve a  confined insolvent debtor from his obligation. When such a case arises, it will be considered. \nIt is the opinion of the Court, that the act of the State of New-York, which is pleaded by the defendant in this cause, so far as it attempts to discharge this defendant from the debt in the declaration mentioned, is contrary  to the constitution of the United  States, and that the plea is no bar to the action. \nCERTIFICATE. This cause came on to be heard on the transcript of the record of the Circuit Court of the United States, for the first Circuit, and the district of Massachusetts, and on the questions on which the judges of that Court were divided in opinion, and was argued by counsel: On consideration whereof, this Court is of opinion, that, since the adoption of the constitution of the United States, a State has authority to pass a bankrupt law, provided such law does not impair the obligation of contracts, within the meaning of the constitution, and provided there be no act of Congress in force to establish a uniform system of bankruptcy, conflicting with such law. \nThis Court is farther of opinion, that the act of New-York, which is pleaded in this case, so far as it attempts to discharge the contract on which this suit was instituted, is a law impairing the obligation of contracts within the meaning of the constitution of the United States, and that the plea of the defendant is not a good and sufficient bar of the plaintiff's action. \nAll which is directed to be certified to the said Circuit Court. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Chief Justice MARSHALL delivered the opinion of the Court, that this case was not distinguishable in principle from the preceding case of Sturges v. Crowninshield. That the circumstance of the State law, under which the debt was attempted to be discharged, having been passed before the debt was contracted, made no difference in the application of  the principle. And that as to the certificate under the English bankrupt laws, it had frequently been determined, and was well settled, that a discharge under a foreign law, was no bar to an action on a contract made in this country. \nJudgment affirmed. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Chief Justice MARSHALL delivered the opinion of the Court. The question to be decided is, whether, under all the circumstances of this case, the New-England Mississippi Land Company, or Mary Gilman, shall lose the sum awarded by the commissioners to the Georgia Mississippi Company, in satisfaction for the lien that company was supposed to retain on the lands they sold, for the nonpayment  of the notes of William Wetmore, given for the purchase money on his interest in the purchase. \nIn examining this question, the nature of the contract, the motives of the New-England Mississippi Company, and their acts, are all to be considered. \nThe contract was made in January, 1796, for 11,380,000 acres of land, lying within the country occupied by the Indians, whose title was not extinguished. The purchase money, amounting   to 1,380,000 dollars, was to be divided into five instalments, the first of which, amounting to 113,800 dollars, was to be paid on the 1st of May, 1796, and the last on the 1st of May, 1799. It is obvious, that this purchase could not have been made with a view to hold all the lands. The object of the purchasers must have been to make a profit by re-selling a great part of them. Accordingly, we find them making immediate arrangements to effect this object. In February, 1796, beore the legal title was obtained, the purchasers formed an association, by which it was, among other things, agreed, that the land should be conveyed to three of their partners, Leonard Jarvis, Henry Newman, and William Wetmore, for the use and benefit of the company. It was also agreed, that seven directors should be appointed, with power to manage their affairs, and, after the company should be completely organized, as prescribed in the articles of association, to sell their lands for the common benefit of the proprietors. In addition to this mode of selling the lands themselves, which might be slow in its operation, it was agreed that each proprietor might transfer his interest, in whole or in part; and,  to facilitate  this transfer, the whole purchase was divided into 2276 shares, and it was determined that an assignable certificate should be granted to each proprietor, or to such person as he should appoint, stating the amount of his interest in the company. No certificate was to issue for less than one share. \nIt is of great importance to inquire, how far the company pledged itself to the assignee of this certificate; and how far it was incumbent on him to look beyond the certificate itself, in order to ascertain the interest which it gave him in the property of the company. \nIn pursuing this inquiry, we must look with some minuteness into the state of the property, and the articles of association, as well as into the language of the paper which was to evidence the title of the holder. \nAlthough the association was formed before the lands were conveyed, no certificate was to issue until the legal title in the company should be as complete as it could be made. It was obviously necessary for the purchasers, before they proceeded to sell, to examine well their title, and to use every precaution which prudence could suggest, for its security. This appears to have been  done. On the 13th of February, 1796, a deed was executed by the Georgia Company, purporting to convey the lands to William Wetmore, Leonard Jarvis, and Henry Newman; and, afterwards, in February, 1797, a deed of confirmation was executed and delivered. By these deeds the Georgia Company certainly intended to  pass, and the New-England Company expected to receive, the legal title. \nThe articles of association direct these trustees to convey the purchased lands to the proprietors, as tenants in common, who are immediately to re-convey them to Leonard Jarvis, Henry Newman, and William Hull, in trust, to be disposed of according to the articles. \nThe certificate granted to each proprietor, for the purpose of enabling him to dispose of his interest, certifies, that he is entitled to the trust and benefit of a certain specified proportion of the property contained in the trust deed, \"to hold said proportion, or share, to him, his heirs, executors, administrators, and assigns, according to the terms, conditions, covenants, and exceptions, contained in the said deed of trust, and in certain articles of agreement entered into by the persons composing the New-England Mississippi  Land Company.\" This certificate purports on its face to be transferrable by endorsement. If it amounted to no more than a declaration, that the holder had a right to sell a specified part of the common property, it would be difficult to maintain that the company could afterwards charge this part exclusively with a pre-existing incumbrance. But the certificate proceeds further, and declares that the share, or shares, thus tranferred, shall be held according to the terms, &c. of the deed of trust, and of the articles of agreement. So far, therefore, as that deed, or those articles, encumber the property, it certainly remains encumbered in the hands of the assignee. To what  extent does either of those instruments affect the case? \nThe deed from the proprietors to Jarvis, Newman, and Hull, recites the grant of the State of Georgia, the conveyance of the grantees to Wetmore, Jarvis, and Newman, in trust for the New-England Company, the conveyance of those trustees to the members of the company to hold as tenants in common, according to their respective interests, and adds, that it is found necessary and expedient, that the premises should be conveyed \"in trust to Leonard  Jarvis, Henry Newman, and William Hull, Esquires, to have and to hold the same, subject to all the trusts, provisions, restrictions, covenants, and agreements, contained in certain articles of agreement, constituting the New-England Mississippi Land Company;\" therefore, and in consideration of 10 dollars, the parties of the first part, severally \"remise, release, and forever quit claim, to the said Jarvis, Newman, and Hull, all the interest, &c. which they have, or ever had, or of right ought to have, in the premises, subject, however, to and for the purposes mentioned in the agreement constituting the New-England Mississippi Land Company. The parties of the first part, each for himself,\" and no further, covenants, that the premises are free and clear of all incumbrances, by him made or suffered to be made, and warrants the same against himself and all claiming under him. \nA separate conveyance was made by Wetmore, Jarvis, and Newman, to John Peck, who conveyed  to Jarvis, Newman, and Hull. But these conveyances are not supposed to vary the case. \nIn this deed of trust, each proprietor covenants for his own title, not for that of his co-partners.This has been supposed  to give notice to the assignee of each certificate issued by the company, that the property conveyed did not constitute a common stock in the hands of the trustees, out of which each holder was to draw in proportion to his interest, as expressed in the face of his title paper; but that the interest of each co-partner was limited to the product of his own share, as under the original purchase, and that the holder of every certificate was bound to trace his title through the particular original purchaser under whom he claims, and in whose place he stands. \n We do not think the fact will sustain the argument. \nThis deed conveys the estate of each partner to the company, and the covenants it contains ascertain the extent of each partner's liability for the title it passes. The lands thus conveyed, are held by the company in like manner as if they had been conveyed by persons who were not members of it. The legal title is in the company; the power to sell is in the company; and if it was intended that the right of each individual to dispose of his interest, should depend on the validity of the title he had made, and that the purchaser of such interest took it subject to any  incumbrance with which the estate conveyed might have been burthened, previous to its conveyance, it would have been unnecessary to make any  provision respecting the sale of such interest. The right of sale is connected with the right of property, and without any regulation whatever, each member would have possessed it to the extent of his property. The object for granting the certificate seems to have been, to enable each share-holder to sell, unobstructed by those entangling embarrassments which may attend a mere equitable title. This object, in which every member was equally concerned, could not be effected without giving to each some evidence of his title, which should make it unnecessary for the purchaser to look further, in order to ascertain his interest in the general fund, whatever that fund might be. The history of the title, as well as the words of the certificate, would confirm this opinion. From its origin, every step of its progress was marked out and controlled by the company. The legal title was, by their order, conveyed to three persons, selected by themselves, and the deed contains no allusion to the interest of other purchasers. By this order,  also, the title which was then made to the several purchasers, was immediately re-conveyed to trustees in whom the company confided, to uses and purposes expressed in certain articles of agreement which the company had formed.They guarded the title against incumbrances from individuals, and this watchfulness was for the double purpose of enabling their agents to sell the lands themselves, for the common benefit, and enabling each member to sell to the best advantage his particular interest in that fund. It was scarcely possible for any individual to have encumbered the title after it was received by the first agents  of the company, and against defects in the title conveyed by the Georgia Company, the certificate does not profess to engage. \nThe articles of agreement, to which also the certificate refers, explain fully the views of the company. The great object of the association is to sell their lands to advantage. This is too plainly expressed to be mistaken. The words \"terms, conditions, covenants, and exceptions,\" contained in the certificate, refer chiefly to provisions respecting the sale of lands, and to others which recognize the absolute control over the property  which each member had ceded to the whole body. It is unnecessary to recite the particular articles which tend to this general result. It is the spirit which pervades the whole association. Only those articles which relate to the certificate need be adverted to. \nThe 11th article divides the whole purchase into 2,276 shares. \nThe 12th directs that a transferrable certificate shall be given to each proprietor, prescribes its form, directs it to be recorded, and declares that it shall be complete evidence to such person, of his right in the purchase. No assignee is admitted as a member, to vote in the affairs of the company, until his assignment shall be recorded. \nThe 13th declares, that no certificate shall issue for less than one share, and that the holder of any certificate for a larger quantity, may, at any time, surrender it to the trustees, and take out others for such quantities as he may choose. \nThe 16th obliges the directors to pay over to the  respective proprietors their proportions of the moneys received from any and every sale, as soon after the receipt thereof as may be. \nIt is not more apparent, that the general object of the association was to promote  the sale of their lands, than it is that the particular object of this certificate, and of the articles which relate to it, was to enable every proprietor to avail himself of his individual interest, and to bring it into circulation. On no other principle can we account for subdividing the stock of the company into such small shares; for issuing the certificate itself; for making it assignable; for declaring that it shall be complete evidence of title to that quantity of interest which is expressed on its face; for enabling every holder, by surrendering his certificate, to divide it as his convenience might suggest; and for declaring that each holder shall receive his proportion of the money arising from the lands which might be sold. All these provisions tend directly to the same object, and are calculated for the single purpose of affording to each member of the company every possible facility in selling his share of the stock. In this operation all were equally interested. Every member of the company was alike concerned in removing every obstruction to the free circulation of his own certificate, which could only be done by making it complete evidence of title; an advantage  which, to be acquired by him, must be extended to all. In the particular benefit accruing to each member of the company from this arrangement, a full consideration was received for his joining in it. It is a mutual assurance, in which all the  members pledge themselves for each, that he is really entitled to sell what he offers for sale. \nThe articles of agreement then strengthen, instead of weakening, the language of the certificate. They prove that the company must have intended to give it all the credit they could bestow on it, and to give to the assignee all the assurance they could give him, that he would stand on the same ground with other members, and was liable to no casualty to which they were not all exposed. It was scarcely possible for any member, unless it be one of the original agents, to have eluded the precautions of the company, and have parted with, or encumbered any portion of his estate. But suppose the fact to have happened, and a certificate to have issued from any accident whatever, to him for a larger interest than that to which he was really entitled, would an assignee, without notice, have  been affected by this error on the part  of the company? \nWe think it clear, that he would not. The company has itself undertaken to judge of his title; and, for its own purposes, for the advantage of all its members, to certify what that title is. The object and effect of that certificate is to stop inquiry. The company has pledged its faith, that the title under this certificate shall not be questioned. This is not all. The articles require that an assignee shall have his assignment recorded. Here is a second confirmation of title. \nWe find a number of persons associated together for the purpose of purchasing an immense body of land, which they expect to resell upon a profit.  They watch the progress of the title, direct its course, leave no power to individuals over their individual shares, but keep the whole under the control of the company until they are perfectly satisfied with the state in which they have placed it. The legal title is by their order vested in three trustees, who are to be controlled by seven directors. Then, in order to enable each proprietor to dispose of any portion of his interest which he may incline to sell, assignable certificates are issued, declaring that the holder is entitled  to a specified share of the land. This certificate refers to certain laws of the company, and these laws declare that such certificate shall be complete evidence of title, that the assignee shall become a member of the company, authorized to vote on having his assignment recorded in books kept for that purpose. These cortificates are offered to the public; confiding to the promise they contain, an individual becomes a purchaser, has his assignment recorded, and is received, without objection, as a member. If any latent defect exists in the title of one of the original purchasers, which was unknown to the company when the certificate issued, we think the company cannot set up this latent defect against an assignee. The Company possessed the means of obtaining full information of all circumstances which could affect the title, so far as information was attainable. They undertook to judge of it, and to assert unconditionally, that the holder of the certificate was entitled to the quantity of interest it specified. However true it may be, that the individual in whose default this defect originated,  might be held accountable for it, we cannot agree that the assignee stands  in his place. The company which would set it up against him, has inquired into the title; has, for its own purposes, assured him that it is perfect, and, upon the faith of this assurance, he has purchased. Had he taken an equitable interest in trust, relying upon the faith of the vendor, his equity, it is conceded, would not be better than that of the vendor; but he has relied upon the Company. He has mounted up to the source of the equitable title, and is there assured of its goodness. The Company can never be permitted to say, that being themselves mistaken, they have imposed innocently upon him; and that, therefore, they will throw the loss from themselves on him. \nIf, then, Mr. Wetmore had really, by any act of his, diminished the estate he carried into the common stock, and if the deduction of his share from the sum awarded to the company had been proper, he would have been personally answerable to the Company for such diminution; but we do not think this liability passes with the certificate to his assignee without notice. We do not think the Company could be permitted to assert against the assignee, the right they might assert against Mr. Wetmore. \nBut this is not a defect  in the title itself created, voluntarily created, by Mr. Wetmore. It is a still weaker case on the part of the Company. A sum of money, equal to the claim of the plaintiff, has been awarded to the Georgia, instead of the New-England Company, by the Commissioners, under the idea that so much of the original purchase money  remained unpaid, and that a lien on the lands they sold was still retained by the Georgia Compay. As this failure was on the part of Mr. Wetmore, the New-England Company claim the right of subjecting to this loss the shares of Mrs. Gilman, which were derived from certificates issued on the stock of Mr. Wetmore. On the part of Mrs. Gilman it is contended, 1. That this lien did not exist; and, if it did, 2. That it affects her only as a member of the Company. \nThe Commissioners determined in favour of the lien, because they considered the New-England Company as holding only an equitable estate. \nThe deeds from the Georgia to the New-England Company certainly purport to pass, and were intended to pass, the legal title. The only objection we have heard to their having the operation intended by the parties, is, that they were not recorded, and that the  legislature of Georgia passed an act which forbid their being recorded. \nBut by the laws of Georgia, a deed, though not recorded within the time prescribed by law, remains valid between the parties; and, were it even otherwise, it might well be doubted whether this deed would not retain all the validity it passessed when executed, since its being recorded is rendered impossible by act of law. Could it even be admitted that the deeds passed only an equitable estate, it might well be doubted, whether the Georgia Company, as plaintiffs in equity, could, under all the circumstances of this case, stand on better ground than if their deed had operated as they intended it should operate. \n But the Court considers the title at law as passing by the deeds to the New-England Company, and remaining with them, although those deeds were not recorded. If this opinion be correct, even admitting the law of England respecting the lien of vendors for the purchase money after the execution of a deed to be the law of Georgia, a point which we do not mean to decide, we think it perfectly clear that no lien was retained, and none intended to be retained, in this case. \nIt must have been well  known to the Georgia Company, that the purchase was made for the purpose of reselling the lands; and, of consequence, that it was of great importance to the purchasers to have a clear unincumbered title; and the event that the property might pass into other hands before the whole purchase money was paid, was not improbable. \nIn the original agreement, an express stipulation  is made that the property shall remain liable for the first payment, but that separate securities shall be taken for the residue of the purchase money. \nThe deed itself remains an escrow until the first payment shall be made, and is then to be delivered as the deed of the parties; after which the vendors consent to rely on the several notes of the respective purchasers. This is equivalent to a mortgage of the premises, to secure the first payment, and a consent to rely on the separate notes of the purchasers for the residue of the purchase money. The express contract, that the lien shall be retained to a  specified extent, is equivalent to a waiver of that lien to any greater extent. \nThe notes, too, for which the vendors stipulated, are to be endorsed by persons approved by themselves.  This is a collateral security, on which they relied, and which discharges any implied lien on the land itself for the purchase money. \nWe think this, on principles of English law, a clear case of exemption from lien. \nCould this be doubted, it would not alter the obligation of the New-England Company, to Mrs. Gilman. If they were in the situation of purchasers with notice, it must be with a very ill grace that they set up against her particular interest, after having induced her to purchase by the assurance that she came into the Company on equal terms. If they were purchasers without notice, the lien is gone. \nWe are unanimously of opinion, that the sum deducted ducted from the claim of the New-England Company, by the commissioners, is chargeable on the fund generally, not on the share of Mrs. Gilman particularly. \nSome doubt was entertained on the question, whether Mrs. Gilman should recover from the parties to this suit, her proportion of the money received by them, or her proportion after deducting therefrom, the sum she would be entitled to receive from those members, who obtained an order from the commissioners, by which they received directly, and not through the agents of  the Company, the sums to which they were entitled. The majority of the Court directs me to say, that in this respect also, the  decree is right, and that the Company, or their agents, have the right to proceed againt those members for what they have received beyond their just proportion of the whole sum awarded to the Company. \nDecree affirmed, with costs. 28 \n \n \n\n ", " \nOpinion \n\n \n \n  The opinion of the Court was delivered by Mr. Chief Justice MARSHALL. \nThis is an action of trover, brought by the Trustees of Dartmouth College against William H. Woodward, in the State Court of New Hampshire, for the book of records, corporate seal, and other corporate property, to whcih the plaintiffs allege themselves to be entitled. \nA special verdict, after setting out the rights of the parties, finds for the defendant, if certain acts of the legislature  of New-Hampshire, passed on the 27th of June, and on the 18th of December, 1816, be valid, and binding on the trustees without their assent, and not repugnant to the constitution of the United States; otherwise, it finds for the plaintiffs. \n The Superior Court of Judicature of New-Hampshire rendered a judgment upon this verdict for the defendant, which judgment has been brought before this Court by writ of error. The single question now to be considered is, do the acts to which the verdict refers violate the constitution of the United States? \nThis Court can be insensible neither to the magnitude nor delicacy of this question. The validity of a legislative act is to be examined; and the opinion of the highest law tribunal of a State is to be revised: an opinion which carries with it intrinsic evidence of the diligence, of the ability, and the integrity, with which it was formed. On more than one occasion, this Court has expressed the cautious circumspection with which it approaches the consideration of such questions; and has declared, that, in no doubtful case, would it pronounce a legislative act to be contrary to the constitution. But the American people have said,  in the constitution of the United States, that \"no State shall pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts.\" In the same instrument they have also said, \"that the judicial power shall extend to all cases in law and equity arising under the constitution.\" On the judges of this Court, then, is imposed the high and solemn duty of protecting, from even legislative violation, those contracts which the constitution of our country has placed beyond legislative control; and, however irksome the task may be, this is a duty from which we dare not shrink. \n The title of the plaintiffs originates in a charter dated the 13th day December, in the year 1769, incorporating twelve persons therein mentioned, by the name of \"The Trustees of Dartmouth College,\" granting to them and their successors the usual corporate privileges and powers, and authorizing the trustees, who are to govern the college, to fill up all vacancies which may be created in their own body. \nThe defendant claims under three acts of the legislature of New-Hampshire, the most material of which was passed on the 27th of June, 1816, and is entitled, \"an act to amend the charter,  and enlarge and improve the corporation of Dartmouth College.\" Among other alterations in the charter, this act increases the number of trustees to twenty-one, gives the appointment of the additional members to the executive of the State, and creates a board of overseers, with power to inspect and control the most important acts of the trustees. This board consists of twenty-five persons. The president of the senate, the speaker of the house of representatives, of New-Hampshire, and the governor and lieutenant governor of Vermont, for the time being, are to be members ex officio. The board is to be completed by the governor and council of New-Hampshire, who are also empowered to fill all vacancies which may occur. The acts of the 18th and 26th of December are supplemental to that of the 27th of June, and are principally intended to carry that act into effect. \nThe majority of the trustees of the college have refused to accept this amended charter, and have  brought this suit for the corporate property, which is in possession of a person holding by virtue of the acts which have been stated. \nIt can require no argument to prove, that the circumstances of this case constitute  a contract. An application is made to the crown for a charter to incorporate a religious and literary institution. In the application, it is stated that large contributions have been made for the object, which will be conferred on the corporation, as soon as it shall be created. The charter is granted, and on its faith the property is conveyed.  Surely in this transaction every ingredient of a complete and legitimate contract is to be found. \nThe points for consideration are, \n1. Is this contract protected by the constitution of the United States? \n2. Is it impaired by the acts under which the defendant holds? \n1. On the first point it has been argued, that the word \"contract,\" in its broadest sense, would comprehend the political relations between the government and its citizens, would extend to offices held within a State for State purposes, and to many of those laws concerning civil institutions, which must change with circumstances, and be modified by ordinary legislation; which deeply concern the public, and which, to preserve good government, the public judgment must control. That even marriage is a contract, and its obligations are effected by the laws respecting  divorces. That the clause in the constitution, if construed in its greatest latitude,  would prohibit these laws. Taken in its broad unlimited sense, the clause would be an unprofitable and vexatious interference with the internal concerns of a State, would unnecessarily and unwisely embarrass its legislation, and render immutable those civil institutions, which are established for purposes of internal government, and which, to subserve those purposes, ought to vary with varying circumstances. That as the framers of the constitution could never have intended to insert in that instrument a provision so unnecessary, so mischievous, and so repugnant to its general spirit, the term \"contract\" must be understood as intended to guard against a power of at least doubtful utility, the abuse of which had been extensively felt; and to restrain the legislature in future from violating the right to property. That anterior to the formation of the constitution, a course of legislation had prevailed in many, if not in all, of the States, which weakened the confidence of man in man, and embarrassed all transactions between individuals, by dispensing with a faithful performance of engagements.  To correct this mischief, by restraining the power which produced it, the State legislatures were forbidden \"to pass any law impairing the obligation of contracts,\" that is, of contracts respecting property, under which some individual could claim a right to something beneficial to himsel; and that since the clause in the constitution must in construction receive some limitation, it may be confined, and ought to be confined, to cases of this  description; to cases within the mischief it was intended to remedy. \nThe general correctness of these observations cannot be controverted. That the framers of the constitution did not intend to retrain the States in the regulation of their civil institutions, adopted for internal government, and that the instrument they have given us, is not to be so construed, may be admitted. The provision of the constitution never has been understood to embrace other contracts, than those which respect property, or some object of value, and confer rights which may be asserted in a court of justice. It never has been understood to restrict the general right of the legislature to legislate on the subject of divorces. Those acts enable some tribunal,  not to impair a marriage contract, but to liberate one of the parties because it has been broken by the other. When any State legislature shall pass an act annulling all marriage contracts, or allowing either party to annul it without the consent of the other, it will be time enough to inquire, whether such an act be constitutional. \nThe parties in this case differ less on general principles, less on the true construction of the constitution in the abstract, than on the application of those principles to this case, and on the true construction of the charter of 1769. This is the point on which the cause essentially depends. If the act of incorporation be a grant of political power, if it create a civil institution to be employed in the administration of the government, or if the funds of the college be  public property, or if the State of New-Hampshire, as a government, be alone interested in its transactions, the subject is one in which the legislature of the State may act according to its own judgment, unrestrained by any limitation of its power imposed by the constitution of the United States. \nBut if this be a private eleemosynary institution, endowed with a capacity  to take property for objects unconnected with government, whose funds are bestowed by individuals on the faith of the charter; if the donors have stipulated for the future disposition and management of those funds in the manner prescribed by themselves; there may be more difficulty in the case, although neither the persons who have made these stipulations, nor those for whose benefit they were made, should be parties to the cause. Those who are no longer interested in the property, may yet retain such an interest in the preservation of their own arrangements, as to have a right to insist, that those arrangements shall be held sacred. Or, if they have themselves disappeared, it becomes a subject of serious and anxious inquiry, whether those whom they have legally empowered to represent them forever, may not assert all the rights which they possessed, while in being; whether, if they be without personal representatives who may feel injured by a violation of the compact, the trustees be not so completely their representatives in the eye of the law, as to stand in their place, not only as respects the government of the college, but also as respects the maintenance of the college charter. \n It becomes then the duty of the Court most  seriously to examine this charter, and to ascertain its true character. \nFrom the instrument itself, it appears, that about the year 1754, the Rev. Eleazer Wheelock established at his own expense, and on his own estate, a charity school for the instruction of Indians in the christian religion. The success of this institution inspired him with the design of soliciting contributions in England for carrying on, and extending, his undertaking.In this pious work he employed the Rev. Nathaniel Whitaker, who, by virtue of a power of attorney from Dr. Wheelock, appointed the Earl of Dartmouth and others, trustees of the money, which had been, and should be, contributed; which appointment Dr. Wheelock confirmed by a deed of trust authorizing the trustees to  fix on a site for the college.They determined to establish the school on Connecticut river, in the western part of New-Hampshire; that situation being supposed favourable for carrying on the original design among the Indians, and the also for promoting learning among the English; and the proprietors in the neighbourhood having made large offers of land, on condition, that  the college should there be placed. Dr. Wheelock then applied to the crown for an act of incorporation; and represented the expediency of appointing those whom he had, by his last will, named as trustees in America, to be members of the proposed corporation. \"In consideration of the premises,\" \"for the education and instruction of the youth of the Indian tribes,\" &c. \"and also of English youth, and any other,\" the charter was granted, and the trustees of Dartmouth College were by that name created a body  corporate, with power, for the use of the said college, to acquire real and personal property, and to pay the president, tutors, and other officers of the college, such salaries as they shall allow. \nThe charter proceeds to appoint Eleazer Wheelock, \"the founder of said college,\" president thereof, with power by his last will to appoint a successor, who is to continue in office until disapproved by the trustees. In case of vacancy, the trustees may appoint a president, and in case of the ceasing of a president, the senior professor or tutor, being one of the trustees, shall exercise the office, until an appointment shall be made. The trustees have power to appoint and  displace professors, tutors, and other officers, and to supply any vacancies which may be created in their own body, by death, resignation, removal, or disability; and also to make orders, ordinances, and laws, for the government of the college, the same not being repugnant to the laws of Great Britain, or of New-Hampshire, and not excluding any person on account of his speculative sentiments in religion, or his being of a religious profession different from that of the trustees. \nThis charter was accepted, and the property both real and personal, which had been contributed for the benefit of the college, was conveyed to, and vested in, the corporate body. \nFrom this brief review of the most essential parts of the charter, it is apparent, that the funds of the college consisted entirely of private donations. It is, perhaps, not very important, who were the donors. The probability is, that the Earl of Dartmouth, and the other trustees in England, were, in fact, the largest  contributors. Yet the legal conclusion, from the facts recited in the charter, would probably be, that Dr. Wheelock was the founder of the college. \nThe origin of the institution was, undoubtedly, the  Indian charity school, established by Dr. Wheelock, at his own expense. It was at his instance, and to enlarge this school, that contributions were solicited in England. The person soliciting these contributions was his agent; and the trustees, who received the money, were appointed by, and act under, his authority. It is not too much to say, that the funds were obtained by him, in trust, to be applied by him to the purposes of his enlarged school. The charter of incorporation was granted at his instance. The persons named by him in his last will, as the trustees of his charity school, compose a part of the corporation, and he is declared to be the founder of the college, and its president for life. Were the inquiry material, we should feel some hesitation in saying, that Dr. Wheelock was not, in law, to be considered as the founder, 75 of this institution, and as possessing all the rights appertaining to that character. But be this as it may, Dartmouth College is really endowed by private individuals, who have bestowed their funds for the propagation of the christian religion among the Indians, and for the promotion of piety and learning generally. From these funds the salaries  of the tutors are drawn; and these salaries lessen the expense of education to the students. It  is then an eleemosynary, 76 and, as far as respects its funds, a private corporation. \nDo its objects stamp on it a different character? Are the trustees and professors public officers, invested with any portion of political power, partaking in any degree in the administration of civil government, and performing duties which flow from the sovereign authority? \nThat education is an object of national concern, and a proper subject of legislation, all admit. That there may be an institution founded by government, and placed entirely under its immediate control, the officers of which would be public officers, amenable exclusively to government, none will deny. But is Dartmouth College such an institution? Is education altogether in the hands of government? Does every teacher of youth become a public officer, and do donations for the purpose of education necessarily become public property, so far that the will of the legislature, not the will of the donor, becomes the law of the donation? These questions are of serious moment to  society, and deserve to be well considered. \nDoctor Wheelock, as the keeper of his charity school, instructing the Indians in the art of reading, and in our holy religion; sustaining them at his own expense, and on the voluntary contributions of the charitable, could scarcely be considered as a public officer, exercising any portion of those duties which belong to government; nor could the legislature have  supposed, that his private funds, or those given by others, were subject to legislative management, because they were applied to the purposes of education. When, afterwards, his school was enlarged, and the liberal contributions made in England, and in America, enabled him to extend his cares to the education of the youth of his own country, no change was wrought in his own character, or in the nature of his duties. Had he employed assistant tutors with the funds contributed by others, or had the trustees in England established a school with Dr. Wheelock at its head, and paid salaries to him and his assistants, they would still have been private tutors; and the fact, that they were employed in the education of youth, could not have converted them into public officers,  concerned in the administration of public duties, or have given the legislature a right to interfere in the management  of the fund. The trustees, in whose care that fund was placed by the contributors, would have been permitted to execute their trust uncontrolled by legislative authority. \nWhence, then, can be derived the idea, that Dartmouth College has become a public institution, and its trustees public officers, exercising powers conferred by the public for public objects? Not from the source whence its funds were drawn; for its foundation is purely private and eleemosynary -- Not from the application of those funds; for money may be given for education, and the persons receiving it do not, by being employed in the education of youth, become members of the civil government. Is it from  the act of incorporation? Let this subject be considered. \nA corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of its creation confers upon it, either expressly, or as incidental to its very existence. These are such as are supposed  best calculated to effect the object for which it was created. Among the most important are immortality, and, if the expression may be allowed, individuality; properties, by which a perpetual succession of many persons are considered as the same, and may act as a single individual. They enable a corporation to manage its own affairs, and to hold property without the perplexing intricacies, the hazardous and endless necessity, of perpetual conveyances for the purpose of transmitting it from hand to hand. It is chiefly for the purpose of clothing bodies of men, in succession, with these qualities and capacities, that corporations were invented, and are in use. By these means, a perpetual succession of individuals are capable of acting for the promotion of the particular object, like one immortal being. But this being does not share in the civil government of the country, unless that be the purpose for which it was created. Its immortality no more confers on it political power, or a political character, than immortality would confer such power or character on a natural person. It is no more a State instrument, than a natural person exercising the same powers would be. If, then,  a natural person, employed  by individuals in the education of youth, or for the government of a seminary in which youth is educated, would not become a public officer, or be considered as a member of the civil government, how is it, that this artificial being, created by law, for the purpose of being employed by the same individuals for the same purposes, should become a part of the civil government of the country? Is it because its existence, its capacities, its powers, are given by law? Because the government has given it the power to take and to hold property in a particular from, and for particular purposes, has the government a consequent right substantially to change that form, or to vary the purposes to which the property is to be applied? This principle has never been asserted or recognized, and is supported by no authority.Can it derive aid from reason? \nThe objects for which a corporation is created are universally such as the government wishes to promote. They are deemed beneficial to the country; and this benefit constitutes the consideration, and, in most cases, the sole consideration of the grant. In most eleemosynary institutions, the object would be  difficult, perhaps unattainable, without the aid of a charter of incorporation. Charitable, or public spirited individuals, desirous of making permanent appropriations for charitable or other useful purposes, find it impossible to effect their design securely, and certainly, without an incorporating act. They apply to the government, state their beneficent object, and offer to advance the money necessary for its accomplishment,  provided the government will confer on the instrument which is to execute their designs the capacity to execute them. The proposition is considered and approved. The benefit to the public is considered as an ample compensation for the faculty it confers, and the corporation is created. If the advantages to the public constitute a full compensation for the faculty it gives, there can be no reason for exacting a further compensation, by claiming a right to exercise over this artificial being a power which changes its nature, and touches the fund, for the security and application of which it was created. There can be no reason for implying in a charter, given for a valuable consideration, a power which is not only not expressed, but is in direct  contradiction to its express stipulations. \nFrom the fact, them, that a charter of incorporation has been granted, nothing can be inferred which changes the character of the institution, or transfers to the government any new power over it. The character of civil institutions does not grow out of their incorporation, but out of the manner in which they are formed, and the objects for which they are created. The right to change them is not founded on their being incorporated, but on their being the instruments of government, created for its purposes. The same institutions, created for the same objects, though not incorporated, would be public institutions, and, of course, be controllable by the legislature. The incorporating act neither gives now prevents this control. Neither, in reason, can the incorporating act  change the character of a private eleemosynary institution. \nWe are next led to the inquiry, for whose benefit the property given to Dartmouth College was secured? The counsel for the defendant have insisted, that the beneficial interest is in the people of New-Hampshire. The charter, after reciting the preliminary measures which had been taken, and the  application for an act of incorporation, proceeds thus: \"Know ye, therefore, that we, considering the premises, and being willing to encourage the laudable and charitable design of spreading christian knowledge among the savages of our American wilderness, and, also, that the best means of education be established, in our province of New-Hampshire, for the benefit of said province, do, of our special grace,\" &c. Do these expressions bestow on New-Hampshire any exclusive right to the property of the college, any exclusive interest in the labours of the professors? Or do they merely indicate a willingness that New-Hampshire should enjoy those advantages which result to all from the establishment of a seminary of learning in the  neighbourhood? On this point we think it impossible to entertain a serious doubt. The words themselves, unexplained by the context, indicate, that the \"benefit intended for the province\" is that which is derived from \"establishing the best means of education therein;\" that is, from establishing in the province Dartmouth College, as constituted by the charter. But, if these words, considered alone, could admit of doubt, that  doubt is  completely removed by an inspection of the entire instrument. \nThe particular interests of New-Hampshire never entered into the mind of the donors, never constituted a motive for their donation. The propagation of the christian religion among the savages, and the dissemination of useful knowledge among the youth of the country, were the avowed and the sole objects of their contributions. In these, New-Hampshire would participate; but nothing particular or exclusive was intended for her. Even the site of the college was selected, not for the sake of New-Hampshire, but because it was \"most subservient to the great ends in view,\" and because liberal donations of land were offered by the proprietors, on condition that the institution should be there established. The real advantages from the location of the college, are, perhaps, not less considerable to those on the west, than to those on the east side of Connecticut river. The clause which constitutes the incorporation, and expresses the objects for which it was made, declares those objects to be the instruction of the Indians, \"and also of English youth, and any others.\" So that the objects of the contributors, and the incorporating  act, were the same; the promotion of christianity, and of education generally, not the interests of New-Hampshire particularly. \nFrom this review of the charter, it appears, that Dartmouth College is an eleemosynary institution, incorporated for the purpose of perpetuating the application of the bounty of the donors, to the specified objects of that bounty; that its trustees or governors  were originally named by the founder, and invested with the power of perpetuating themselves; that they are not public officers, nor is it a civil institution, participating in the administration of government; but a charity school, or a seminary of education, incorporated for the preservation of its property, and the perpetual application of that property to the objects of its creation. \nYet a question remains to be considered, of more real difficulty, on which more doubt has been entertained than on all that have been discussed. The founders of the college, at least those whose contributions were in money, have parted with the property bestowed upon it, and their representatives have no interest in that property.The donors of land are equally without interest, so long as the corporation  shall exist. Could they be found, they are unaffected by any alteration in its constitution, and probably regardless of its form, or even of its existence. The students are fluctuating, and no individual among our youth has a vested interest in the institution, which can be asserted in a Court of justice. Neither the founders of the college, nor the youth for whose benefit it was founded, complain of the alteration made in its charter, or think themselves injured by it. The trustees alone complain, and the trustees have no beneficial interest to be protected. Can this be such a contract, as the constitution intended to withdraw from the power of State legislation? Contracts, the parties to which have a vested beneficial interest, and those only, it has been said, are the objects about  which the constitution is solicitous, and to which its protection is extended. \nThe Court has bestowed on this argument the most diliberate consideration, and the result will be stated. Dr. Wheelock, acting for himself, and for those who, at his solicitation, had made contributions to his school, applied for this charter, as the instrument which should enable him, and them, to perpetuate  their beneficent intention. It was granted. An artificial, immortal being, was created by the crown, capable of receiving and distributing forever, according to the will of the donors, the donations which should be made to it. On this being, the contributions which had been collected were immediately bestowed. These gifts were made, not indeed to make a profit for the donors, or their posterity, but for something in their opinion of inestimable value; for something which they deemed a full equivalent for the money with which it was purchased. The consideration for which they stipulated, is the perpetual application of the found to its object, in the mode prescribed by themselves. Their descendants may take no interest in the preservation of this consideration. But in this respect their descendants are not their representatives. They are represented by the corporation. The corporation is the assignee of their rights, stands in their place, and distributes their bounty, as they would themselves have distributed it, had they been immortal. So with respect to the students who are to derive learning from this source. The corporation is a trustee for them also. Their potential  rights, which, taken distributively,  are imperceptible, amount collectively to a most important interest. These are, in the aggregate, to be exercised, asserted, and protected, by the corporation. They were as completely out of the donors, at the instant of their being vested in the corporation, and as incapable of being asserted by the students, as at present. \nAccording to the theory to the British constitution, their parliament is omnipotent. To annual corporate rights might give a shock to public opinion, which that government has chosen to avoid; but its power is not questioned. Had parliament, immediately after the emanation of this charter, and the execution of those conveyances which followed it, annulled the instrument, so that the living donows would have witnessed the disappointment of their hopes, the perfidy of the transaction would have been universally acknowledged. Yet then, as now, the donors would have had no interest in the property; then, as now, those who might be students would have had no rights to be violated; then, as now, it might be said, that the trustees, in whom the rights of all were combined, possessed no private, individual, beneficial  interest in the property confided to their protection. Yet the contract  would at that time have been deemed sacred by all. What has since occurred to strip it of its inviolability?Circumstances have not changed it. In reason, in justice, and in law, it is now what it was in 1769. \nThis is plainly a contract to which the donors, the trustees, and the crown, (to whose rights and obligations New-Hampshire succeeds,) were the original  parties. It is a contract made on a valuable consideration. It is a contract for the security and disposition of property. It is a contract, on the faith of which, real and personal estate has been conveyed to the corporation. It is then a contract within the letter of the constitution, and within its spirit also, unless the fact, that the property is invested by the donors in trustees for the promotion of religion and education, for the benefit of persons who are perpetually changing, though the objects remain the same, shall create a particular exception, taking this case out of the prohibition contained in the constitution. \nIt is more than possible, that the preservation of rights of this description was not particularly  in the view of the framers of the constitution, when the clause under consideration was introduced into that instrument. It is probable, that interferences of more frequent recurrence, to which the temptation was stronger, and of which the mischief was more extensive, constituted the great motive for imposing this restriction on the State legislatures. But although a particular and a rare case may not, in itself, be of sufficient magnitude to induce a rule, yet it must be governed by the rule, when established, unless some plain and strong reason for excluding it can be given. It is not enough to say, that this particular case was not in the mind of the Convention, when the article was framed, nor of the American people, when it was adopted. It is necessary to go farther, and to say that, had this particular case been suggested, the language would have been so varied, as to exclude it, or it would have been made a special exception. The  case being within the words of the rule, must be within its operation likewise, unless there be something in the literal construction so obviously absurd, or mischievous, or repugnant to the general spirit of the instrument, as to justify  those who expound the constitution in making it an exception. \nOn what safe and intelligible ground can this exception stand. There is no expression in the constitution, no sentiment delivered by its contemporaneous expounders, which would justify us in making it. In the absence of all authority of this kind, is there, in the nature and reason of the case itself, that which would sustain a construction of the constitution, not warranted by its words? Are contracts of this description of a character to excite so little interest, that we must exclude them from the provisions of the constitution, as being unworthy of the attention of those who framed the instrument? Or does public policy so imperiously demand their remaining exposed to legislative alteration, as to compel us, or rather permit us to say, that these words, which were introduced to give stability to contracts, and which in their plain import comprehend this contract, must yet be so construed, as to exclude it? \nAlmost all eleemosynary corporations, those which are created for the promotion of religion, of charity, or of education, are of the same character. The law of this case is the law of all. In every literary  or charitable institution, unless the objects of the bounty be themselves incorporated, the whole legal interest is in trustees, and can be asserted only by them. The donors, or claimants of the bounty, if  they can appear in Court at all, can appear only to complain of the trustees. In all other situations, they are identified with, and personated by, the trustees; and their rights are to be defended and maintained by them. Religion, Charity, and Education, are, in the law of England, legatees or donees, capable of receiving bequests or donations in this form. They appear in Court, and claim or defend by the corporation. Are they of so little estimation in the United States, that contracts for their benefit must be excluded from the protection of words, which in their natural import include them? Or do such contracts so necessarily require new modelling by the authority of the legislature, that the ordinary rules of construction must be disregarded in order to leave them exposed to legislative alteration? \nAll feel, that these objects are not deemed unimportant in the United States. The interest which this case has excited, proves that they are not. The framers  of the constitution did not deem them unworthy of its care and protection. They have, though in a different mode, manifested their respect for science, by reserving to the government of the Union the power \"to promote the progress of science and useful arts, by securing for limited times, to authors and inventors, the exclusive right to their respective writings and discoveries.\" They have so far withdrawn science, and the useful arts, from the action of the State governments. Why then should they be supposed so regardless of contracts made for the advancement of literature, as to intend to exclude them from provisions, made for the security  of ordinary contracts between man and man? No reason for making this supposition is perceived. \nIf the insignificance of the object does not require that we should exclude contracts respecting it from the protection of the constitution; neither, as we conceive, is the policy of leaving them subject to legislative alteration so apparent, as to require a forced construction of that instrument in order to effect it. These eleemosynary institutions do not fill the place, which would otherwise be occupied by government, but that which  would otherwise remain vacant.They are complete acquisitions to literature. They are donations to education; donations, which any government must be disposed rather to encourage than to discountenance. It requires no very critical examination of the human mind to enable us to determine, that one great inducement to these gifts is the conviction felt by the giver, that the disposition he makes of them is immutable. It is probable, that no man ever was, and that no man ever will be, the founder of a college, believing at the time, that an act of incorporation constitutes no security for the institution; believing, that it is immediately to be deemed a public institution, whose funds are to be governed and applied, not by the will of the donor, but by the will of the legislature. All such  gifts are made in the pleasing, perhaps delusive hope, that the charity will flow forever in the channel which the givers have marked out for it. If every man finds in his own bosom strong evidence of the universality of this sentiment, there can be but little reason to imagine, that the framers of our constitution were  strangers to it, and that, feeling the necessity and  policy of giving permanence and security to contracts, of withdrawing them from the influence of legislative bodies, whose fluctuating policy, and repeated interferences, produced the most perplexing and injurious embarrassments, they still deemed it necessary to leave these contracts subject to those interferences. The motives for such an exception must be very powerful, to justify the construction which makes it. \nThe motives suggested at the bar grow out of the original appointment of the trustees, which is supposed to have been in a spirit hostile to the genius of our government, and the presumption, that, if allowed to continue themselves, they now are, and must remain forever, what they originally were. Hence is inferred the necessity of applying to this corporation, and to other similar corporations, the correcting and improving hand of the legislature. \nIt has been urged repeatedly, and certainly with a degree of earnestness which attracted attention, that the trustees deriving their power from a regal source, must, necessarily, partake of the spirit of their origin; and that their first principles, unimproved by that resplendent light which has been shed around them, must  continue to govern the college, and to guide the students. Before we inquire into the influence which this argument ought to have on the constitutional question, it may not be amiss to examine the fact on which it rests. The first trustees were undoubtedly named in the charter by the crown; but at whose suggestion were they named? By whom were they  selected? The charter informs us. Dr. Wheelock had represented, \"that, for many weighty reasons, it would be expedient, that the gentlemen whom he had already nominated, in his last will, to be trustees in America, should be of the corporation now proposed.\" When, afterwards, the trustees are named in the charter, can it be doubted that the persons mentioned by Dr. Wheelock in his will were appointed? Some were probably added by the crown, with the approbation of Dr. Wheelock. Among these is the Doctor himself. If any others were appointed at the instance of the crown, they are the governor, three members of the council, and the speaker of the house of representatives, of the colony of New-Hampshire. The stations filled by these persons ought to rescue them from any other imputation than too great a dependence on the  crown. If in the revolution that followed, they acted under the influence of this sentiment, they must have ceased to be trustees; if they took part with their countrymen, the imputation, which suspicion might excite, would no longer attach to them.The original trustees, then, or most of them, were named by Dr. Wheelock, and those who were added to his nomination, most probably with his approbation, were among the most eminent and respectable individuals in New-Hampshire. \nThe only evidence which we possess of the character of Dr. Wheelock is furnished by this charter. The judicious means employed for the accomplishment of his object, and the success which attended his endeavours, would lead to the opinion, that he united a sound understanding to that humanity and  benevolence which suggested his undertaking. It surely cannot be assumed, that his trustees were selected without judgment. With as little probability can it be assumed, that, while the light of science, and of liberal principles, pervades the whole community, these originally benighted trustees remain in utter darkness, incapable of participating in the general improvement; that, while the human race is rapidly  advancing, they are stationary. Reasoning a priori, we should believe, that learned and intelligent men, selected by its patrons for the government of a literary institution, would select learned and intelligent men for their successors; men as well fitted for the government of a college as those who might be chosen by other means. Should this reasoning ever prove erroneous in a particular case, public opinion, as has been stated at the bar, would correct the institution. The mere possibility of the contrary would not justify a construction of the constitution, which should exclude these contracts from the protection of a provision whose terms comprehend them. \nThe opinion of the Court, after mature deliberation, is, that this is a contract, the obligation of which cannot be impaired, without violating the constitution of the United States. This opinion appears to us to be equally supported by reason, and by the former decisions of this Court. \n2. We next proceed to the inquiry, whether its obligation has been impaired by those acts of the legislature of New-Hampshire, to which the special verdict refers. \n From the review of this charter, which has been taken, it appears,  that the whole power of governing the college, of appointing and removing tutors, of fixing their salaries, of directing the course of study to be pursued by the students, and of filling up vacancies created in their own body, was vested in the trustees. On the part of the crown it was expressly stipulated, that this corporation, thus constituted, should continue forever; and that the number of trustees should forever consist of twelve, and no more. By this contract the crown was bound, and could have made no violent alteration in its essential terms, without impairing its obligation. \nBy the revolution, the duties, as well as the powers, of government devolved on the people of New-Hampshire. It is admitted, that among the latter was comprehended the transcendent power of parliament, as well as that of the executive department. It is too clear to require the support of argument, that all contracts, and rights respecting property, remained unchanged by the revolution. The obligations then, which were created by the charter to Dartmouth College, were the same in the new, that they had been in the old government. The power of the government was also the same. A repeal of this charter  at any time prior to the adoption of the present constitution of the United States, would have been an extraordinary  and unprecedented act of power, but one which could have been contested only by the restrictions upon the legislature, to be found in the constitution of the State. But the constitution of the United States has imposed this additional limitation,  that the legislature of a State shall pass no act \"impairing the obligation of contracts.\" \nIt has been already stated, that the act \"to amend the charter, and enlarge and improve the corporation of Dartmouth College,\" increase the number of trustees to twenty-one, gives the appointment of the additional members to the executive of the State, and creates a board of overseers, to consist of twenty-five persons, of whom twenty-one are also appointed by the executive of New-Hampshire, who have power to inspect and control the most important acts of the trustees. \nOn the effect of this law, two opinions cannot be entertained.Between acting directly, and acting through the agency of trustees and overseers, no essential difference is perceived. The whole power of governing the college is transferred from  trustees appointed according to the will of the founder, expressed in the charter, to the executive of New-Hampshire. The management and application of the funds of this eleemosynary institution, which are placed by the donors in the hands of trustees named in the charter, and empowered to perpetuate themselves, are placed by this act under the control of the government of the State. The will of the State is substituted for the will of the donors, in every essential operation of the college.This is not an immaterial change. The founders of the college contracted, not merely for the perpetual application of the funds which they gave, to the objects for which those funds were given; they contracted also, to secure that application by the constitution of the corporation.  They contracted for a system, which should, as far as human foresight can provide, retain forever the government of the literary institution they had formed, in the hands of persons approved by themselves. This system is totally changed. The charter of 1769 exists no longer. It is reorganized; and reorganized in such a manner, as to convert a literary institution, moulded according to the will of its  founders, and placed under the control of private literary men, into a machine entirely subservient to the will of government. This may be for the advantage of this college in particular, and may be for the advantage of literature in general; but it is not according to the will of the donors, and is subversive of that contract, on the faith of which their property was given. \nIn the view which has been taken of this interesting case, the Court has confined itself to the rights possessed by the trustees, as the assignees and representatives of the donors and founders, for the benefit of religion and literature. Yet it is not clear, that the trustees ought to be considered as destitute of such beneficial interest in themselves, as the law may respect. In addition to their being the legal owners of the property, and to their having a freehold right in the powers confided to them, the charter itself countenances the idea, that trustees may also be tutors with salaries. The first president was one of the original trustees; and the charter provides, that in case of vacancy in that office, \"the senior professor or tutor, being one of the trustees, shall exercise the office of president,  until the trustees shall make choice  of, and appoint a president.\" According to the tenor of the charter, then, the trustees might, without impropriety, appoint a president and other professors from their own body. This is a power not entirely unconnected with an interest. Even if the proposition of the counsel for the defendant were sustained; if it were admitted, that those contracts only are protected by the constitution, a beneficial interest in which is vested in the party, who appears in Court to assert that interest; yet it is by no means clear, that the trustees of Dartmouth College have no beneficial interest in themselves. \nBut the Court has deemed it unnecessary to investigate this particular point, being of opinion, on general principles, that in these private eleemosynary institutions, the body corporate, as possessing the whole legal and equitable interest, and completely representing the donors, for the purpose of executing the trust, has rights which are protected by the constitution. \nIt results from this opinion, that the acts of the legislature of New-Hampshire, which are stated in the special verdict found in this cause, are repugnant to the constitution  of the United States; and that the judgment on this special verdict ought to have been for the plaintiffs. The judgment of the State Court must, therefore, be reversed. \nConcur by:", " \nOpinion \n\n \n \n  Mr. Chief Justice MARSHALL delivered the opinion of the Court. \nIn the case now to be determined, the defendant, a sovereign State, denies the obligation of a law enacted by the legislature of the Union, and the plaintiff, on his part, contests the validity of an act which has been passed by the legislature of that State. The constitution of our country, in its most interesting and vital parts, is to be considered; the conflicting powers of the government of the Union and of its members, as marked in that constitution, are to be discussed; and an opinion given, which may essentially influence the great operations of the government. No tribunal can approach such a question without a deep sense of its importance, and of the awful responsibility involved in its decision. But it must be decided peacefully, or remain a source of  hostile legislation, perhaps of hostility of a still more serious nature; and if it is to be so decided, by this  tribunal alone can the decision be made. On the Supreme Court of the United States has the constitution of our country devolved this important duty. \nThe first question made in the cause is, has Congress power to incorporate a bank? \nIt has been truly said, that this can scarcely be considered as an open question, entirely unprejudiced by the former proceedings of the nation respecting it. The principle now contested was introduced at a very early period of our history, has been recognized by many successive legislatures, and has been acted upon by the judicial department, in cases of peculiar delicacy, as a law of undoubted obligation. \nIt will not be denied, that a bold and daring usurpation might be resisted, after an acquiescence still longer and more complete than this. But it is conceived that a doubtful question, one on which human reason may pause, and the human judgment be suspended, in the decision of which the great principles of liberty are not concerned, but the respective powers of those who are equally the representatives of the people, are to be adjusted; if not put at rest by the practice of the government, ought to receive a considerable impression from that practice.  An exposition of the constitution, deliberately established by legislative acts, on the faith of which an immense property has been advanced, ought not to be lightly disregarded. \nThe power now contested was exercised by the first Congress elected under the present constitution.  The bill for incorporating the bank of the United States did not steal upon an unsuspecting legislature, and pass unobserved. Its principle was completely understood, and was opposed with equal zeal and ability. After being resisted, first in the fair and open field of debate, and afterwards in the executive cabinet, with as much persevering talent as any measure has ever experienced, and being supported by arguments which convinced minds as pure and as intelligent as this country can boast, it became a law. The original act was permitted to expire; but a short experience of the embarrassments to which the refusal to revive it exposed the government, convinced those who were most prejudiced against the measure of its necessity, and induced the passage of the present law. It would require no ordinary share of intrepidity to assert that a measure adopted under these circumstances was a bold  and plain usurpation, to which the constitution gave no countenance. \nThese observations belong to the cause; but they are not made under the impression that, were the question entirely new, the law would be found irreconcilable with the constitution. \nIn discussing this question, the counsel for the State of Maryland have deemed it of some importance, in the construction of the constitution, to consider that instrument not as emanating from the people, but as the act of sovereign and independent States. The powers of the general government, it has been said, are delegated by the States, who alone are truly sovereign; and must be exercised in subordination to the States, who alone possess supreme dominion. \n It would be difficult to sustain this proposition. The Convention which framed the constitution was indeed elected by the State legislatures. But the instrument, when it came from their hands, was a mere proposal, without obligation, or pretensions to it. It was reported to the then existing Congress of the United States, with a request that it might \"be submitted to a Convention of Delegates, chosen in each State by the people thereof, under the recommendation of  its Legislature, for their assent and ratification.\" This mode of proceeding was adopted; and by the Convention, by Congress, and by the State Legislatures, the instrument was submitted to the people. They acted upon it in the only manner  in which they can act safely, effectively, and wisely, on such a subject, by assembling in Convention. It is true, they assembled in their several States -- and where else should they have assembled? No political dreamer was ever wild enough to think of breaking down the lines which separate the States, and of compounding the American people into one common mass. Of consequence, when they act, they act in their States. But the measures they adopt do not, on that account, cease to be the measures of the people themselves, or become the measures of the State governments. \nFrom these Conventions the constitution derives its whole authority. The government proceeds directly from the people; is \"ordained and established\" in the name of the people; and is declared to be ordained, \"in order to form a more perfect union, establish justice, ensure domestic tranquillity, and secure  the blessings of liberty to themselves and to  their posterity.\" The assent of the States, in their sovereign capacity, is implied in calling a Convention, and thus submitting that instrument to the people. But the people were at perfect liberty to accept or reject it; and their act was final. It required not the affirmance, and could not be negatived, by the State governments. The constitution, when thus adopted, was of complete obligation, and bound the State sovereignties. \nIt has been said, that the people had already surrendered all their powers to the State sovereignties, and had nothing more to give. But, surely, the question whether they may resume and modify the powers granted to government does not remain to be settled in this country. Much more might the legitimacy of the general government be doubted, had it been created by the States. The powers delegated to the State sovereignties were to be exercised by themselves, not by a distinct and independent sovereignty, created by themselves. To the formation of a league, such as was the confederation, the State sovereignties were certainly competent. But when, \"in order to form a more perfect union,\" it was deemed necessary to change this alliance into an effective  government, possessing great and sovereign powers, and acting directly on the people, the necessity of referring it to the people, and of deriving its powers directly from them, was felt and acknowledged by all. \nThe government of the Union, then, (whatever may be the influence of this fact on the case,) is,  emphatically, and truly, a government of the people. In form and in substance it emanates from them. Its powers are granted by them, and are to be exercised directly on them, and for their benefit. \nThis government is acknowledged by all to be one of enumerated powers. The principle, that it can exercise only the powers granted to it, would seem too apparent to have required to be enforced by all those arguments which it enlightened friends, while it was depending before the people, found it necessary to urge. That principle is now universally admitted. But the question respecting the extent of the powers actually granted, is perpetually arising, and will probably continue to arise, as long as our system shall exist. \nIn discussing these questions, the conflicting powers of the general and State governments must be brought into view, and the supremacy of their  respective laws, when they are in opposition, must be settled. \nIf any one proposition could command the universal assent of mankind, we might expect it would be this -- that the government of the Union, though limited in its powers, is supreme within its sphere of action. This would seem to result necessarily from its nature. It is the government of all; its powers are delegated by all; it represents all, and acts for all. Though any one State may be willing to control its operations, no State is willing to allow others to control them. The nation, on those subjects on which it can act, must necessarily bind its component parts. But this question is not left to mere reason: the people have, in express terms, decided it, by saying,  \"this constitution, and the laws of the United States, which shall be made in pursuance thereof,\" \"shall be the supreme law of the land,\" and by requiring that the members of the State legislatures, and the officers of the executive and judicial departments of the States, shall take the oath of fidelity to it. \nThe government of the United States, then, though limited in its powers, is supreme; and its laws, when made in pursuance of the  constitution, form the supreme law of the land, \"any thing in the constitution or laws of any State to the contrary notwithstanding.\" \nAmong the enumerated powers, we do not find that of establishing a bank or creating a corporation. But there is no phrase in the instrument which, like the articles of confederation, excludes incidental or implied powers; and which requires that every thing granted shall be expressly and minutely described. Even the 10th amendment, which was framed for the purpose of quieting the excessive jealousies which had been excited, omits the word \"expressly,\" and declares only that the powers \"not delegated to the United States, nor prohibited to the States, are reserved to the States or to the people;\" thus leaving the question, whether the particular power which may become the subject of contest has been delegated to the one government, or prohibited to the other, to depend on a fair construction of the whole instrument. The men who drew and adopted this amendment had experienced the embarrassments resulting from the insertion of this word in the articles  of confederation, and probably omitted it to avoid those embarrassments. A constitution,  to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would probably never be understood by the public. Its nature, therefore, requires, that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves. That this idea was entertained by the framers of the American constitution, is not only to be inferred from the nature of the instrument, but from the language. Why else were some of the limitations, found in the ninth section of the 1st  article, introduced? It is also, in some degree, warranted by their having omitted to use any restrictive term which might prevent its receiving a fair and just interpretation. In considering this question, then, we must never forget, that it is a constitution we are expounding. \nAlthough, among the enumerated powers of government, we do not find the word \"bank\" or \"incorporation,\" we find the great powers to  lay and collect taxes; to borrow money; to regulate commerce; to declare and conduct a war; and to raise and support armies and navies. The sword and the purse, all the external relations, and no inconsiderable portion of the industry of the nation, are entrusted to its government. It can never be pretended  that these vast powers draw after them others of inferior importance, merely because they are inferior. Such an idea can never be advanced. But it may with great reason be contended, that a government, entrusted with such ample powers, on the due execution of which the happiness and prosperity of the nation so vitally depends, must also be entrusted with ample means for their execution. The power being given, it is the interest of the nation to facilitate its execution. It can never be their interest, and cannot be presumed to have been their intention, to clog and embarrass its execution by withholding the most appropriate means. Throughout this vast republic, from the St. Croix to the Gulf of Mexico, from the Atlantic to the Pacific, revenue is to be collected and expended, armies are to be marched and supported. The exigencies of the nation may require that the  treasure raised in the north should be transported to the south, that raised in the east conveyed to the west, or that this order should be reversed. Is that construction of the constitution to be preferred which would render these operations difficult, hazardous, and expensive? Can we adopt that construction, (unless the words imperiously require it,) which would impute to the framers of that instrument, when granting these powers for the public good, the intention of impeding their exercise by withholding a choice of means? If, indeed, such be the mandate of the constitution, we have only to obey; but that instrument does not profess to enumerate the means by which the powers it confers may be executed; nor does it prohibit the creation of a corporation,  if the existence of such a being be essential to the beneficial exercise of those powers. It is, then, the subject of fair inquiry, how far such means may be employed. \nIt is not denied, that the powers given to the government imply the ordinary means of execution. That, for example, of raising revenue, and applying it to national purposes, is admitted to imply the power of conveying money from place to place, as  the exigencies of the nation may require, and of employing the usual means of conveyance. But it is denied that the government has its choice of means; or, that it may employ the most convenient means, if, to employ them, it be necessary to erect a corporation. \nOn what foundation does this argument rest? On this alone: The power of creating a corporation, is one appertaining to sovereignty, and is not expressly conferred on Congress. This is true. But all legislative powers appertain to sovereignty. The original power of giving the law on any subject whatever, is a sovereign power; and if the government of the Union is restrained from creating a corporation, as a means for performing its functions, on the single reason that the creation of a corporation is an act of sovereignty; if the sufficiency of this reason be acknowledged, there would be some difficulty in sustaining the authority of Congress to pass other laws for the accomplishment of the same objects. \nThe government which has a right to do an act, and has imposed on it the duty of performing that act, must, according to the dictates of reason, be allowed  to select the means; and those who contend that it  may not select any appropriate means, that one particular mode of effecting the object is excepted, take upon themselves the burden of establishing that exception. \nThe creation of a corporation, it is said, appertains to sovereignty. This is admitted. But to what portion of sovereignty does it appertain? Does it belong to one more than to another? In America, the powers of sovereignty are divided between the government of the Union, and those of the States. They are each sovereign, with respect to the objects committed to it, and neither sovereign with respect to the objects committed to the other. We cannot comprehend that train of reasoning which would maintain, that the extent of power granted by the people is to be ascertained, not by the nature and terms of the grant, but by its date. Some State constitutions were formed before, some since that of the United States. We cannot believe that their relation to each other is in any degree dependent upon this circumstance. Their respective powers must, we think, be precisely the same as if they had been formed at the same time. Had they been formed at the same time, and had the people conferred on the general government the  power contained in the constitution, and on the States the whole residuum of power, would it have been asserted that the government of the Union was not sovereign with respect to those objects which were entrusted to it, in relation to which its laws were declared to be supreme? If this could not have been asserted, we cannot well comprehend the process of reasoning  which maintains, that a power a appertaining to sovereignty cannot be connected with that vast portion of it which is granted to the general government, so far as it is calculated to subserve the legitimate objects of that government. The power of creating a corporation, though appertaining to sovereignty, is not, like the power of making war, or levying taxes, or of regulating commerce, a great substantive and independent power, which cannot be implied as incidental to other powers, or used as a means of executing them. It is never the end for which other powers are exercised, but a means by which other objects are accomplished. No contributions are made to charity for the sake of an incorporation, but a corporation is created to administer the charity; no seminary of learning is instituted in order to  be incorporated, but the corporate character is  conferred to subserve the purposes of education. No city was ever built with the sole object of being incorporated, but is incorporated as affording the best means of being well governed. The power of creating a corporation is never used for its own sake, but for the purpose of effecting something else. No sufficient reason is, therefore, perceived, why it may not pass as incidental to those powers which are expressly given, if it be a direct mode of executing them. \nBut the constitution of the United States has not left the right of Congress to employ the necessary means, for the execution of the powers conferred on the government, to general reasoning. To its enumeration of powers is added that of making \"all  laws which shall be necessary and proper, for carrying into execution the foregoing powers, and all other powers vested by this constitution, in the government of the United States, or in any department thereof.\" \nThe counsel for the State of Maryland have urged various arguments, to prove that this clause, though in terms a grant of power, is not so in effect; but is really restrictive of the general  right, which might otherwise be implied, of selecting means for executing the enumerated powers. \nIn support of this proposition, they have found it necessary to contend, that this clause was inserted for the purpose of conferring on Congress the power of making laws. That, without it, doubts might be entertained, whether Congress could exercise its powers in the form of legislation. \nBut could this be the object for which it was inserted? A government is created by the people, having legislative, executive, and judicial powers. Its legislative powers are vested in a Congress, which is to consist of a Senate and House of Representatives. Each house may determine the rule of its proceedings; and it is declared that every bill which shall have passed both houses, shall, before it becomes a law, be presented to the President of the United States. The 7th section describes the course of proceedings, by which a bill shall become a law; and, then, the 8th section enumerates the powers of Congress. Could it be necessary to say, that a legislature should exercise legislative powers, in the shape of legislation? After allowing each house to prescribe  its own course of proceeding,  after describing the manner in which a bill should become a law, would it have entered into the mind of a single member of the Convention, that an express power to make laws was necessary to enable the legislature to make them? That a legislature, endowed with legislative powers, can legislate, is a proposition too self-evident to have been questioned. \nBut the argument on which most reliance is placed, is drawn from the peculiar language of this clause. Congress is not empowered by it to make all laws, which may have relation to the powers conferred on the government, but such only as may be \"necessary and proper\" for carrying them into execution. The word \"necessary,\" is considered as controlling the whole sentence, and as limiting the right to pass laws for the execution of the granted powers, to such as are indispensable, and without which the power would be nugatory. That it excludes the choice of means, and leaves to Congress, in each case, that only which is most direct and simple. \nIs it true, that this is the sense in which the word \"necessary\" is always used? Does it always import an absolute physical necessity, so strong, that one an absolute physical necessity, so strong,  that one thing, to which another may be termed necessary, cannot exist without that other? We think it does not. If reference be had to its use, in the common affairs of the world, or in approved authors, we find that it frequently imports no more than that one thing is convenient, or useful, or essential to another. To employ the means necessary to an end, is generally understood as employing any means calculated to  produce the end, and not as being confined to those single means, without which the end would be entirely unattainable. Such is the character of human language, that no word conveys to the mind, in all situations, one single definite idea; and nothing is more common than to use words in a figurative sense. Almost all compositions contain words, which, taken in their rigorous sense, would convey a meaning different from that which is obviously intended. It is essential to just construction, that many words which import something excessive, should be understood in a more mitigated sense -- in that sense which common usage justifies. The word \"necessary\" is of this description. It has not a fixed character peculiar to itself. It admits of all degrees  of comparison; and is often connected with other words, which increase or diminish the impression the mind receives of the urgency it imports. A thing may be necessary, very necessary, absolutely or indispensably necessary. To no mind would the same idea be conveyed, by these several phrases. This comment on the word is well illustrated, by the passage cited at the bar, from the 10th section of the 1st article of the constitution. It is, we think, impossible to compare the sentence which prohibits a State from laying \"imposts, or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws,\" with that which authorizes Congress \"to make all laws which shall be necessary and proper for carrying into execution\" the powers of the general government, without feeling a conviction that the convention understood itself to change materially  the meaning of the word \"necessary,\" by prefixing the word \"absolutely.\" This word, then, like others, in used in various senses; and, in its construction, the subject, the context, the intention of the person using them, are all to be taken into view. \nLet this be done in the case under consideration.  The subject is the execution of those great powers on which the welfare of a nation essentially depends. It must have been the intention of those who gave these powers, to insure, as far as human prudence could insure, their beneficial execution. This could not be done by confiding the choice of means to such narrow limits as not to leave it in the power of Congress to adopt any which might be appropriate, and which were conducive to the end. This provision is made in a constitution intended to endure for ages to come, and, consequently, to be adapted to the various crises of  human affairs. To have prescribed the means by which government should, in all future time, execute its powers, would have been to change, entirely, the character of the instrument, and give it the properties of a legal code. It would have been an unwise attempt to provide, by immutable rules, for exigencies which, if foreseen at all, must have been seen dimly, and which can be best provided for as they occur. To have declared that the best means shall not be used, but those alone without which the power given would be nugatory, would have been to deprive the legislature of the capacity to avail  itself of experience, to exercise its reason, and to accommodate its legislation to circumstances.  If we apply this principle of construction to any of the powers of the government, we shall find it so pernicious in its operation that we shall be compelled to discard it. The powers vested in Congress may certainly be carried into execution, without prescribing an oath of office. The power to exact this security for the faithful performance of duty, is not given, nor is it indispensably necessary. The different departments may be established; taxes may be imposed and collected; armies and navies may be raised and maintained; and money may be borrowed, without requiring an oath of office. It might be argued, with as much plausibility as other incidental powers have been assailed, that the Convention was not unmindful of this subject. The oath which might be exacted -- that of fidelity to the constitution -- is prescribed, and no other can be required. Yet, he would be charged with insanity who should contend, that the legislature might not superadd, to the oath directed by the constitution, such other oath of office as its wisdom might suggest. \nSo, with respect to the  whole penal code of the United States: whence arises the power to punish in cases not prescribed by the constitution? All admit that the government may, legitimately, punish any violation of its laws; and yet, this is not among the enumerated powers of Congress. The right to enforce the observance of law, by punishing its infraction, might be denied with the more plausibility, because it is expressly given in some cases. Congress is empowered \"to provide for the punishment  of counterfeiting the securities and current coin of the United States,\" and \"to define and punish piracies and felonies committed on the high seas, and offences against the law of nations.\" The several powers of Congress may exist, in a very imperfect state to be sure, but they may exist and be carried into execution, although no punishment should be inflicted in cases where the right to punish is not expressly given. \nTake, for example, the power \"to establish post offices and post roads.\" This power is executed by the single act of making the establishment. But, from this has been inferred the power and duty of carrying the mail along the post road, from one post office to another. And, from this  implied power, has again been inferred the right to punish those who steal letters from the post office, or rob the mail. It may be said, with some plausibility, that the right to carry the mail, and to punish those who rob it, is not indispensably necessary to the establishment of a post office and post road. This right is indeed essential to the beneficial exercise of the power, but not indispensably necessary to its existence. So, of the punishment of the crimes of stealing or falsifying a record or process of a Court of the United States, or of perjury in such Court. To punish these offences is certainly conducive to the due administration of justice. But courts may exist, and may decide the causes brought before them, though such crimes escape punishment. \nThe baneful influence of this narrow construction on all the operations of the government, and the absolute  impracticability of maintaining it without rendering the government incompetent to its great objects, might be illustrated by numerous examples drawn from the constitution, and from our laws. The good sense of the public has pronounced, without hesitation, that the power of punishment appertains to sovereignty,  and may be exercised whenever the sovereign has a right to act, as incidental to his constitutional powers. It is a means for carrying into execution all sovereign powers, and may be used, although not indispensably necessary. It is a right incidental to the power, and conducive to its beneficial exercise. \nIf this limited construction of the word \"necessary\" must be abandoned in order to punish, whence is derived the rule which would reinstate it, when the government would carry its powers into execution by means not vindictive in their nature? If the word \"necessary\" means \"needful,\" \"requisite,\" \"essential,\" \"conducive to,\" in order to let in the power of punishment for the infraction of law; why is it not equally comprehensive when required to authorize the use of means which facilitate the execution of the powers of government without the infliction of punishment?\" \nIn ascertaining the sense in which the word \"necessary\" is used in this clause of the constitution, we may derive some aid from that with which it is associated. Congress shall have power \"to make all laws which shall be necessary and proper to carry into execution\" the powers of the government. If the word \"necessary\"  was used in that strict and rigorous sense for which the counsel for the State of  Maryland contend, it would be an extraordinary departure from the usual course of the human mind, as exhibited in composition, to add a word, the only possible effect of which is to qualify that strict and rigorous meaning; to present to the mind the idea of some choice of means of legislation not straitened and compressed within the narrow limits for which gentlemen contend. \nBut the argument which most conclusively demonstrates the error of the construction contended for by the counsel for the State of Maryland, is founded on the intention of the Convention, as manifested in the whole clause. To waste time and argument in proving that, without it, Congress might carry its powers into execution, would be not much less idle than to hold a lighted taper to the sun. As little can it be required to prove, that in the absence of this clause, Congress would have some choice of means. That it might employ  those which, in its judgment, would most advantageously effect the object to be accomplished. That any means adapted to the end, any means which tended directly to the execution  of the constitutional powers of the government, were in themselves constitutional. This clause, as construed by the State of Maryland, would abridge, and almost annihilate this useful and necessary right of the legislature to select its means. That this could not be intended, is, we should think, had it not been already controverted, too apparent for controversy. We think so for the following reasons: \n1st. The clause is placed among the powers of Congress, not among the limitations on those powers. \n 2nd. Its terms purport to enlarge, not to diminish the powers vested in the government. In purports to be an additional power, not a restriction on those already granted. No reason has been, or can be assigned for thus concealing an intention to narrow the discretion of the national legislature under words which purport to enlarge it. The framers of the constitution wished its adoption, and well knew that it would be endangered by its strength, not by its weakness. Had they been capable of suing language which would convey to the eye one idea, and, after deep reflection, impress on the mind another, they would rather have disguised the grant of power, than its limitation.  In, then, their intention had been, by this clause, to restrain the free use of means which might otherwise have been implied, that intention would have been inserted in another place, and would have been expressed in terms resembling these. \"In carrying into execution the foregoing powers, and all others,\" &c. \"no laws shall be passed but such as are necessary and proper.\" Had the intention been to make this clause restrictive, it would unquestionably have been so in form as well as in effect. \nThe result of the most careful and attentive consideration bestowed upon this clause is, that if it does not enlarge, it cannot be construed to restrain the powers of Congress, or to impair the right of the legislature to exercise its best judgment in the selection of measures to carry into execution the constitutional powers of the government. If no other motive for its insertion can be suggested, a sufficient one is found in the desire to remove all doubts respecting  the right to legislate on that vast mass of incidental powers which must be involved in the constitution, if that instrument be not a splendid bauble. \nWe admit, as all must admit, that the powers of the government  are limited, and that its limits are not to be transcended. But we think the sound construction of the constitution must allow to the national legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional. \nThat a corporation must be considered as a means not less usual, not of higher dignity, not more requiring a particular specification than other means, has been sufficiently proved. If we look to the origin of corporations, to the manner in which they have been framed in that government from which we have derived most of our legal principles and ideas, or to the uses to which they have been applied, we find no reason to suppose that a constitution, omitting, and wisely omitting, to enumerate all the means for carrying into execution the great powers vested  in government, ought to have specified this. Had it been intended to grant this power as one which should be distinct and independent, to be exercised in any case whatever, it  would have found a place among the enumerated powers of the government. But being considered merely as a means, to be employed only for the purpose of carrying into execution the given powers, there could be no motive for particularly mentioning it. \nThe propriety of this remark would seem to be generally acknowledged by the universal acquiescence in the construction which has been uniformly put on the 3rd section of the 4th article of the constitution. The power to \"make all needful rules and regulations respecting the territory or other property belonging to the United States,\" is not more comprehensive, than the power \"to make all laws which shall be necessary and proper for carrying into execution\" the powers of the government. Yet all admit the constitutionality of a territorial government, which is a corporate body. \nIf a corporation may be employed indiscriminately with other means to carry into execution the powers of the government, no particular reason can be assigned for excluding the  use of a bank, if required for its fiscal operations. To use one, must be within the discretion of Congress, if it be an appropriate mode of executing the powers of government. That it is a convenient, a useful, and essential instrument in the prosecution of its fiscal operations, is not now a subject of controversy. All those who have been concerned in the administration of our finances, have concurred in representing its importance and necessity; and so strongly have they been felt, that statesmen of the first class, whose previous opinions  against it had been confirmed by every circumstance which can fix the human judgment, have yielded those opinions to the exigencies of the nation. Under the confederation, Congress, justifying the measure by its necessity, transcended perhaps its powers to obtain the advantage of a bank; and our own legislation attests the universal conviction of the utility of this measure. The time has passed away when it can be necessary to enter into any discussion in order to prove the importance of this instrument, as a means to effect the legitimate objects of the government. \nBut, were its necessity less apparent, none can deny its being  an appropriate measure; and if it is, the degree of its necessity, as has been very justly observed, is to be discussed in another place. Should Congress, in the execution of its powers, adopt measures which are prohibited by the constitution; or should Congress, under the pretext of executing its powers,  pass laws for the accomplishment of objects not entrusted to the government; it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say that such an act was not the law of the land. But where the law is not prohibited, and is really calculated to effect any of the objects entrusted to the government, to undertake here to inquire into the degree of its necessity, would be to pass the line which circumscribes the judicial department, and to tread on legislative ground. This court disclaims all pretensions to such a power. \n After this declaration, it can scarcely be necessary to say, that the existence of State banks can have no possible influence on the question. No trace is to be found in the constitution of an intention to create a dependence of the government of the Union on those of the States, for  the execution of the great powers assigned to it. Its means are adequate to its ends; and on those means alone was it expected to rely for the accomplishment of its ends. To impose on it the necessity of resorting to means which it cannot control, which another government may furnish or withhold, would render its course precarious, the result of its measures uncertain, and create a dependence on other governments, which might disappoint its most important designs, and is incompatible with the language of the constitution. But were it otherwise, the choice of means implies a right to choose a national bank in preference to State banks, and Congress alone can make the election. \nAfter the most deliberate consideration, it is the unanimous and decided opinion of this Court, that the act to incorporate the Bank of the United States is a law made in pursuance of the constitution, and is a part of the supreme law of the land. \nThe branches, proceeding from the same stock, and being conducive to the complete accomplishment of the object, are equally constitutional. It would have been unwise to locate them in the charter, and it would be unnecessarily inconvenient to employ the legislative  power in making those subordinate arrangements. The great duties of the bank are prescribed; those duties require branches; and the bank itself  may, we think, be safely trusted with the selection of places where those branches shall be fixed; reserving always to the government the right to require that a branch shall be located where it may be deemed necessary. \nIt being the opinion of the Court, that the act incorporating the bank is constitutional; and that the power of establishing a branch in the State of Maryland might be properly exercised by the bank itself, we proceed to inquire -- \n2. Whether the State of Maryland may, without violating the constitution, tax that branch? \nThat the power of taxation is one of vital importance; that it is retained by the States; that it is not abridged by the grant of a similar power to the government of the Union; that it is to be concurrently exercised by the two governments: are truths which have never been denied. But, such is the paramount character of the constitution, that its capacity to withdraw any subject from the action of even this power, is admitted. The States are expressly forbidden to lay any duties on imports  or exports, except what may be absolutely necessary for executing their inspection laws. If the obligation of this prohibition must be conceded -- if it may restrain a State from the exercise of its taxing power on imports and exports; the same paramount character would seem to restrain, as it certainly may restrain, a State from such other exercise of this power, as is in its nature incompatible with, and repugnant to, the constitutional laws of the Union. A law, absolutely repugnant to another, as entirely  repeals that other as if express terms of repeal were used. \nOn this ground the counsel for the bank place its claim to be exempted from the power of a State to tax its operations. There is no express provision for the case, but the claim has been sustained on a principle which so entirely pervades the constitution, is so intermixed with the materials which compose it, so interwoven with its web, so blended with its texture, as to be incapable of being separated from it, without rending it into shreds. \nThis great principle is, that the constitution and the laws made in pursuance thereof are supreme; that they control the constitution and laws of the respective States,  and cannot be controlled by them. From this, which may be almost termed an axiom, other propositions are deduced as corollaries, on the truth or error of which, and on their application to this case, the cause has been supposed to depend. These are, 1st. that a power to create implies a power to preserve. 2nd. That a power to destroy, if wielded by a different hand, is hostile to, and incompatible with these powers to create and to preserve. 3d. That where this repugnancy exists, that authority which is supreme must control, not yield to that over which it is supreme. \nThese propositions, as abstract truths, would, perhaps, never be controverted. Their application to this case, however, has been denied; and, both in maintaining the affirmative and the negative, a splendor of eloquence, and strength of argument, seldom, if ever, surpassed, have been displayed. \n The power of Congress to create, and of course to continue, the bank, was the subject of the preceding part of this opinion; and is no longer to be considered as questionable. \nThat the power of taxing it by the States may be exercised so as to destroy it, is too obvious to be denied. But taxation is said to  be an absolute power, which acknowledges no other limits than those expressly prescribed in the constitution, and like sovereign power of every other description, is trusted to the discretion of those who use it. But the very terms of this argument admit that the sovereignty of the State, in the article of taxation itself, is subordinate to, and may be controlled by the constitution of the United States. How far it has been controlled by that instrument must be a question of construction. In making this construction, no principle not declared, can be admissible, which would defeat the legitimate operations of a supreme government. It is of the very essence of supremacy to remove all obstacles to its action within its own sphere, and so to modify every power vested in subordinate  governments, as to exempt its own operations from their own influence. This effect need not be stated in terms. It is so involved in the declaration of supremacy, so necessarily implied in it, that the expression of it could not make it more certain. We must, therefore, keep it in view while construing the constitution. \nThe argument on the part of the State of Maryland, is, not that the  States may directly resist a law of Congress, but that they may exercise their  acknowledged powers upon it, and that the constitution leaves them this right in the confidence that they will not abuse it. \nBefore we proceed to examine this argument, and to subject it to the test of the constitution, we must be permitted to bestow a few considerations on the nature and extent of this original right of taxation, which is acknowledged to remain with the States. It is admitted that the power of taxing the people and their property is essential to the very existence of government, and may be legitimately exercised on the objects to which it is applicable, to the utmost extent to which the government may chose to carry it. The only security against the abuse of this power, is found in the structure of the government itself. In imposing a tax the legislature acts upon its constituents. This is in general a sufficient security against erroneous and oppressive taxation. \nThe people of a State, therefore, give to their government a right of taxing themselves and their property, and as the exigencies of government cannot be limited, they prescribe no limits to the exercise of this  right, resting confidently on the interest of the legislator, and on the influence of the constituents over their representative, to guard then against its abuse. But the means employed by the government of the Union have no such security, nor is the right of a State to tax them sustained by the same theory. Those means are not given by the people of a particular State, not given by the constituents of the legislature, which claim the right to tax them, but by the people of all the States. They are given by all,  for the benefit of all -- and upon theory, should be subjected to that government only which belongs to all. \nIt may be objected to this definition, that the power of taxation is not confined to the people and property of a State. It may be exercised upon every object brought within its jurisdiction. \nThis is true. But to what source do we trace this right? It is obvious, that it is an incident of sovereignty, and is co-extensive with that to which it is an incident. All subjects over which the sovereign power of a State extends, are objects of taxation; but those over which it does not extend, are, upon the soundest principles, exempt from taxation. This  proposition may almost be pronounced self-evident. \nThe sovereignty of a State extends to every thing which exists by its own authority, or is introduced by its permission; but does it extend to those means which are employed by Congress to carry into execution powers conferred on that body by the people of the United States? We think it demonstrable that it does not. Those powers are not given by the people of a single State. They are given by the people of the United States, to a government whose laws, made in pursuance of the constitution, are declared to be supreme. Consequently, the people of a single State cannot confer a sovereignty which will extend over them. \nIf we measure the power of taxation residing in a State, by the extent of sovereignty which the people of a single State possess, and can confer on its government, we have an intelligible standard, applicable  to every case to which the power may be applied. We have a principle which leaves the power of taxing the people and property of a State unimpaired; which leaves to a State the command of all its resources, and which places beyond its reach, all those powers which are conferred by the people of  the United States on the government of the Union, and all those means which are given for the purpose of carrying those powers into execution. We have a principle which is safe for the States, and safe for the Union. We are relieved, as we ought to be, from clashing sovereignty; from interfering powers; from a repugnancy between a right in one government to pull down what there is an acknowledged right in another to build up; from the incompatibility of a right in one government to destroy what there is a right in another to preserve. We are not driven to the perplexing inquiry, so unfit for the judicial department, what degree of taxation is the legitimate use, and what degree may amount to the abuse of the power. The attempt to use it one the means employed by the government of the Union, in pursuance of the constitution, is itself an abuse, because it is the usurpation of a power which the people of a single State cannot give. \nWe find, then, on just theory, a total failure of this original right to tax the means employed by the government of the Union, for the execution of its powers. The right never existed, and the question whether it has been surrendered, cannot arise. \n But, waiving this theory for the present, let us resume the inquiry, whether this power can be exercised  by the respective States, consistently with a fair construction of the constitution? \nThat the power to tax involves the power to destroy; that the power to destroy may defeat and render useless the power to create; that there is a plain repugnance, in conferring on one government a power to control the constitutional measures of another, which other, with respect to those very measures, is declared to be supreme over that which exerts the control, are propositions not to be denied. But all inconsistencies are to be reconciled by the magic of the word CONFIDENCE. Taxation, it is said, does not necessarily and unavoidably destroy. To carry it to the excess of destruction would be an abuse, to presume which, would banish that confidence which is essential to all government. \nBut is this a case of confidence? Would the people of any one State trust those of another with a power to control the most insignificant operations of their State government? We know they would not. Why, then, should we suppose that the people of any one State should be willing to trust those  of another with a power to control the operations of a government to  which they have confided their most important and most valuable interests? In the legislature of the Union alone, are all represented. The legislature of the Union alone, therefore, can be trusted by the people with the power of controlling measures which concern all, in the confidence that it will not be abused. This, then, is not a case of confidence, and we must consider it as it really is. \n If we apply the principle for which the State of Maryland contends, to the constitution generally, we shall find it capable of changing totally the character of that instrument. We shall find it capable of arresting all the measures of the government, and of prostrating it at the foot of the States. The American people have declared their constitution, and the laws made in pursuance thereof, to be supreme; but this principle would transfer the supremacy, in fact, to the States. \nIf the States may tax one instrument, employed by the government in the execution of its powers, they may tax any and every other instrument. They may tax the mail; they may tax the mint; they may tax patent rights; they  may tax the papers of the custom-house; they may tax judicial process; they may tax all the means employed by the government, to an excess which would defeat all the ends of government. This was not intended by the American people. They did not design to make their government dependent on the States. \nGentlemen say, they do not claim the right to extend State taxation to these objects. They limit their pretensions to property. But on what principle is this distinction made? Those who make it have furnished no reason for it, and the principle for which they contend denies it. They contend that the power of taxation has no other limit than is found in the 10th section of the 1st article of the constitution; that, with respect to every thing else, the power of the States is supreme, and admits of no control. If this be true, the distinction between property and  other subjects to which the power of taxation is applicable, is merely arbitrary, and can never be sustained. This is not all. If the controlling power of the States be established; if their supremacy as to taxation be acknowledged; what is to restrain their exercising this control in any shape they may please  to give it? Their sovereignty is not confined to taxation. That is not the only mode in which it might be displayed. The question is, in truth, a question of supremacy; and if the right of the States to tax the means employed by the general government be conceded, the declaration that the constitution, and the laws made in pursuance thereof, shall be the supreme law of the land, is empty and unmeaning declamation. \nIn the course of the argument, the Federalist has been quoted; and the opinions expressed by the authors of that work have been justly supposed to be entitled to great respect in expounding the constitution. No tribute can be paid to them which exceeds their merit; but in applying their opinions to the cases which may arise in the progress of our government, a right to judge of their correctness must be retained; and, to understand the argument, we must examine the proposition it maintains, and the objections against which it is directed. The subject of those numbers, from which passages have been cited, is the unlimited power of taxation which is vested in the general government. The objection to this unlimited power, which the argument seeks to remove, is stated  with fullness and clearness. It is, \"that an indefinite power of taxation in the latter (the government  of the Union) might, and probably would, in time, deprive the former (the government of the States) of the means of providing for their own necessities; and would subject them entirely to the mercy of the national legislature. As the laws of the Union are to become the supreme law of the land; as it is to have power to pass all laws that may be necessary for carrying into execution the authorities with which it is proposed to vest it; the national government might at any time abolish the taxes imposed for State objects, upon the pretence of an interference with its own. It might allege a necessity for doing this, in order to give efficacy to the national revenues; and thus all the resources of taxation might, by degrees, become the subjects of federal monopoly, to the entire exclusion and destruction of the State governments.\" \nThe objections to the constitution which are noticed in these numbers, were to the undefined power of the government to tax, not to the incidental privilege of exempting its own measures from State taxation. The consequences apprehended from  this undefined power were, that it would absorb all the objects of taxation, \"to the exclusion and destruction of the State governments.\" The arguments of the Federalist are intended to prove the fallacy of these apprehensions; not to prove that the government was incapable of executing any of its powers, without exposing the means it employed to the embarrassments of State taxation. Arguments urged against these objections, and these apprehensions, are to be understood as relating to the points they  mean to prove. Had the authors of those excellent essays been asked, whether they contended for that construction of the constitution, which would place with the reach of the States those measures which the government might adopt for the execution of its powers; no man, who has read their instructive pages, will hesitate to admit, that their answer must have been in the negative. \nIt has also been insisted, that, as the power of taxation in the general and State governments is acknowledged to be concurrent, every argument which would sustain the right of the general government to tax banks chartered by the States, will equally sustain the right of the States to tax banks  chartered by the general government. \nBut the two cases are not on the same reason. The people of all the States have created the general government, and have conferred upon it the general power of taxation. The people of all the States, and the States themselves, are represented in Congress, and, by their representatives, exercise this power. When they tax the chartered institutions of the States, they tax their constituents; and these taxes must be uniform. But, when a State taxes the operations of the government of the United States, it acts upon institutions created, not by their own constituents, but by people over  whom they claim no control. It acts upon the measures of a government created by others as well as themselves, for the benefit of others in common with themselves. The difference is that which always exists, and always must exist, between the action of the whole on a  part, and the action of a part on the whole -- between the laws of a government declared to be supreme, and those of a government which, when in opposition to those laws, is not supreme. \nBut if the full application of this argument could be admitted, it might bring into question  the right of Congress to tax the State banks, and could not prove the right of the States to tax the Bank of the United States. \nThe Court has bestowed on this subject its most deliberate consideration. The result is a conviction that the States have no power, by taxation or otherwise, to retard, impede, burden, or in any manner control, the operations of the constitutional laws enacted by Congress to carry into execution the powers vested in the general government. This is, we think, the unavoidable consequence of that supremacy which the constitution has declared. \nWe are unanimously of opinion, that the law passed by the legislature of Maryland, imposing a tax on the Bank of the United States, is unconstitutional and void. \nThis opinion does not deprive the States of any resources which they originally possessed. It does not extend to a tax paid by the real property of the bank, in common with the other real property within the State, nor to a tax imposed on the interest which the citizens of Maryland may hold in this institution, in common with other property of the same description throughout the State. But this is a tax on the operations of the bank, and is, consequently,  a tax on the operation of an instrument employed by the government  of the Union to carry its powers into execution. Such a tax must be unconstitutional. \nJUDGMENT. This cause came on to be heard on the transcript of the record of the Court of Appeals of the State of Maryland, and was argued by counsel. On consideration whereof, it is the opinion of this Court, that the Act of the Legislature of Maryland is contrary to the Constitution of the United States, and void; and, therefore, that the said Court of Appeals of the State of Maryland erred in affirming the judgment of the Baltimore County Court, in which judgment was rendered against James W. McCulloch; but that the said Court of Appeals of Maryland ought to have reversed the said judgment of the said Baltimore County Court, and ought to have given judgment for the said appellant, McCulloch. It is, therefore, Adjudged and Ordered, that the said judgment of the said Court of Appeals of the State of Maryland in this case, be, and the same hereby is, reversed and annulled. And this Court, proceeding to render such judgment as the said Court of Appeals should have rendered; it is further Adjudged and Ordered, that the  judgment of the said Baltimore County Court be reversed and annulled, and that judgment be entered in the said Baltimore County Court for the said James W. McCulloch. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Chief Justice MARSHALL delivered the opinion of the Court. The question decided in the Supreme Court for the State of Pennsylvania respected only the construction of a law of that State. It does not appear, from the record, that either the constitutionality of the law of Pennsylvania, or any act of Congress was drawn into question. \nIt would not be required, that the record should, in terms, state a misconstruction of an act of Congress, or that an act of Congress was drawn into question. It would have been sufficient to give this Court jurisdiction of the cause, that the record should show that an act of Congress was applicable to the case. That is not shown by this record. The act of Congress which is supposed to have been disregarded, and which, probably, was disregarded by the State Court, is that which gives the United States priority in cases of insolvency.Had the fact of insolvency appeared upon the record, that would have enabled this  Court to revise the judgment of the Supreme Court of Pennsylvania. But that fact does not appear.No other question is presented, than the correctness of the decision of the State Court, according to the laws of Pennsylvania, and that is a question over which this Court can take no jurisdiction. \nThe writ of error must be dismissed. \nWrit of error dismissed. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Chief Justice MARSHALL delivered the opinion of the Court. \n The Court has re-examined the opinion which it gave, when this cause was formerly before  it, and has not perceived any reason for changing that opinion. Nor do the new facts introduced into the cause, in any material degree, vary it. If there had been a settled course of decisions in Tennessee upon their local laws, different from the judgment pronounced by this Court, we should not hesitate to follow those decisions. But, upon an examination of the cases cited at the bar, we do not perceive that such is the fact. The judgment of the Circuit Court is, therefore, reversed, and the cause remanded for farther proceedings. \nJUDGMENT. -- This cause came on to be heard on the transcript of the record, and was argued by counsel. On consideration whereof, it is the opinion of this Court, that the Circuit Court erred in the instructions given to the jury: it is, therefore, Adjudged and Ordered, that the judgment of the Circuit Court for the District of East Tennessee, in this cause, be, and the same is, hereby reversed and annulled. And it is further ordered, that the said cause be remanded to the said Circuit Court for farther proceedings to be had therein, according to law. \n \n\n ", ". \nOpinion \n\n \n \n  Mr. Chief Justice MARSHALL delivered the opionion of the Court. \nIn this case, the appellee claims under the elder grant founded on the elder entry. Consequently, if his entry be valid, the bill of the appellant cannot be sustained. But the entry is so defective in description, that it was necessarily abandoned; and the appellee relies on his patent; anterior to the emanation of which, the appellant contends that the land was appropriated by his entry. The validity of this entry, also, is denied. But before we examine the objections made to it, we must consider those which have been urged against the jurisdiction of this Court as a Court of Equity. \nThe rule which prevails both in Kentucky and Ohio is, that, at law, the patent is the foundation of title, and that neither party can bring his entry  before the Court. In consequence of this rule, it has been also well settled, that the junior patentee, claiming under an elder entry, may, in Chancery, support his equitable title, and obtain a decree for a conveyance of so much of the land as under his entry he may be entitled to. But the general principle is supposed to be inapplicable to this case, because the words of the entry are introduced into the grant; and if they were too vague to appropriate the land when used in the entry, they must be too vague to appropriate it when used in the grant, which is a  question triable at law, and which was tried in the ejectment brought by the appellee for the land. \nWere the fact precisely as stated, it could not support the argument which is founded on it. When lands are granted, a description which will identify them is all that is necessary to the validity of the grant. But identity is not all that is necessary to the validity of an entry. The law requires that locations should be made with such certainty, that subsequent purchasers may be enabled to locate the adjacent residuum. All grants are founded on surveys. They recite the surveys, and all that is required in  an ejectment is to prove that the land claimed is that which was surveyed. But more is required in a contest respecting an entry. Nothing is more common than for Court to declare an entry void for uncertainty, notwithstanding the clearest proof that the land claimed, and that located, are the same. \nThere is then nothing in the resemblance between the words of the grant and of the entry, to distinguish this from other cases, in which the party claiming under the first good entry, comes into Chancery to obtain a conveyance of lands held under a senior patent. We proceed, then, to examine the entry under which the appellant claims. That entry is made for 1000 acress of land on Deer creek, \"beginning where the upper line of Ralph Morgan's entry crosses the creek, running with Morgan's line on each side of the creek 200 poles, thence up the creek 400 poles on a direct line, thence from each side of the  given line, with the upper line at right angles with the side lines, for quantity.\" \nThat entries, which contain such descriptive words as clearly to designate the place where the land lies, shall with respect to their more particular locative calls, be supported, if they  can on fair construction be supported, is a principle which pervades the whole of that curious and intricate fabric, which has been erected by the decisions on land titles in Kentucky, and has been taken as a model for those in the military district of Ohio. If a subsequent locator, brought to the spot where the lands lie, with the location in his hand, might by the application of the rules which the Courts have established, know how to place the entry so as to enable himself to locate the adjacent residuum, the entry must be sustained. \nIn this case it is admitted, that the beginning is described with sufficient certainty. The place where the upper line of Ralph Morgan's entry crosses Deer creek is ascertained. From that beginning the entry calls to run \"with Ralph Morgan's line on each side of the creek 200 poles.\" It is said to be entirely uncertain whether this line is to be 200 poles on each side of the creek, so as to amount to 400 poles, or to be only a line of 200 poles altogether. Did this ambiguity really exist in the words themselves, it is entirely removed by the other parts of the location. The entry is made for 1,000 acres of land, and cannot, on any construction,  be made to exceed 500 acres, unless the base line be 400 poles. We have then a given line of 400 poles. The entry then proceeds,  \"thence up the creek 400 poles on a direct line.\" The plain meaning of these words is, that the land lies up the creek, so that a direct line of 400 poles will reach its upper boundary. If the location stopped here, adding only \"for quantity,\" the decisions of Kentucky would establish it as a good entry for a square formed on the upper side of the base line of 400 poles, which would contain 1,000 acres of land. But the entry proceeds, \"thence from each side of the given line, with the upper line at right angles with the side lines, for quantity.\" This part of the description has been said to produce uncertainty, because two lines are given, and a subsequent locator could not tell to which reference was made. \nIf it would make any difference whether the base line or the line up the creek was taken as the given line, this might produce some difficulty; but if the entry must cover precisely the same ground, whether the one or the other be taken as the given line, it can make none. \n Let the base line be considered as the given line.  It is plain that the words from each side must mean from each end, because the land is to lie up the creek; whereas, if you proceed from each side; it would lie partly down the creek. The line, too, which is to give the quantity with the side lines is the upper line, and that is removed from the base line the distance necessary to include the quantity of land required. As this quantity is to be inclosed from the whole entry taken together, within lines which form a square, the entry must be understood to require, that the side lines should be drawn from the ends of the base line,  and the inaccuracy of the expression could not mislead. \nBut the entry is understood to refer as the given line to that which is last mentioned; that is, to the line of 400 poles, which is perpendicular to the base. You are then carried up the creek 400 poles in a direct line from the base line. From each side of this line you are carried \"with the upper line at right angles with the side lines,\" until you get 1,000 acres. This construction gives full effect to every word of the entry, and gives a square which will contain 1,000 acres. It is, we think, the natural construction. The entry  would be so understood by every subsequent locator. On any construction, then, which can be given to the words, the entry must not only have the same form, but must cover precisely the same land. \nIf, then, the original entry had never been amended, there could be no doubt of the right of the party claiming under it. This leads to the inquiry, whether the amendment affects this right. \nThe distinction between amending and withdrawing an entry is well established, and completely understood.An amended entry retains its original character, so far as it is unchanged by the amendment. So far as it is changed, it is a new entry. The survey, in this case, is understood to conform precisely to the amended entry; and it contains a part of the land comprehended in the original entry. So far as respects the land within the appellee's patent, which is comprehended by the original entry, the amended entry, and the survey, we think the  appellant was entitled to a decree, and, consequently, the Circuit Court erred in dismissing his bill. The decree is to be reversed, and the cause remanded to the Circuit Court, with directions to enter a decree conforming to this opinion. \nDECREE.  -- This cause came on to be heard on the transcript of the record of the Court of the United States for the seventh Circuit, and District of Ohio, and was argued by counsel. On consideration whereof, this Court is of opinion, that the plaintiff in the Circuit Court had a good title in equity to so much of the land contained in the defendant's patent, as is comprehended in the original entry made by George Matthews, in September, 1799, and also in his amended entry, and in his survey; and that the decree of the said Circuit Court, dismissing the bill, is erroneous, and ought to be reversed, and it is, accordingly, Reversed; and this Court doth farther Direct and Order, that the said cause the remanded to the said Circuit Court, with directions to enter a decree, directing the defendant to convey to the plaintiff so much of the land contained in his patent, as is comprehended in the original entry, and also in the amended entry and survey, on which the grant of the plaintiff was founded. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Chief Justice MARSHALL delivered the opinion of the Court. This is an action of ejectment brought by the lessee of David Ross against Charles M'Clung, for 5,000 acres  of land, lying in the district of East Tennessee. \nAt the trial of the cause, the plaintiff in the Court below gave in evidence two grants from the State of North Carolina, for the land in controversy, to Stockly Donalson and John Hackett, the one dated the 20th of September, 1787, and the other dated the 22d of February, 1795. He also gave in evidence a deed of conveyance of the said land, purporting to be from Stockly Donalson and John Hackett, dated the 29th of September, 1793, and registered in Hawkins county, Tennessee, on the 27th of December, 1793. The regular registration of this deed, so far as respected Stockly Donalson, was admitted by the defendant. Its registration as to John Hackett, was not admitted, and was proved only by the following endorsements. \n\"December Sessions, 1793. \nThis deed was proved in open Court, and ordered to record. Test. RICHARD MITCHELL, C. H. C. \nThis conveyance was registered 27th of December, 1793, in liber G. p. 127.  in the register's office of Hawkins county. THOMAS JACKSON, C. R.\" \nIt is stated in the bill of exceptions, that the execution of the deed on the part of Hackett, was not proved. \nThe defendant also claimed under Stockly Donalson; but his deeds being of subsequent date, could confer no title while the deed to Ross remained in force.  For the purpose  of invalidating this deed, he offered in evidence certain records of the County Court of Rhea, showing that the land had been sold for the non-payment of taxes, had been conveyed by the sheriff to the purchaser, and by the purchaser to the defendant. The regularity of this sale, and the validity of the deeds made in consequence of it, were contested, and the Court determined against their validity; to which opinion of the Court the counsel for the defendant excepted. \nIn the year 1803, the legislature of Tennessee passed an act, subjecting all lands to which the Indian claim was extinguished, held by deed, &c. to taxes. The 13th section of the act provides, that \"in case there shall not be any goods or chattels on which the sheriff can distress for public taxes, &c. he shall report the same to the Court of his county.\"  The Court is then directed to make out certain lists, and to direct certain publications, after which the Court may enter up judgment, on which execution may issue, and the lands be sold. In 1807, the legislature passed a supplementary act, the 3d section of which enacts, that it shall be the duty of the collector of taxes in each county, after the 1st day of January in each year, to make report to the Court in writing, \"of all such tracts or parts of tracts of land as have, from his own knowledge, or from the information of others, not been returned for taxation for the said preceding year; and it shall be the duty of the said Court to cause said report to be recorded in books to be kept for that purpose, and to cause judgment to be entered up for double the tax due on the  said land, not returned for taxation, and so unpaid, and shall order the same to be sold,\" &c. \nIn January, 1810, Miller Francis, collector of taxes in Rhea county for the year 1809, reported to the Court, that the following lands were not listed for taxation for the year 1809, to wit, 3c. Then follows a list of several tracts of land, among which is the tract in question, reported there several times  in the following terms: \n \n \nReputed owners. \nQuantity. \nNo. of title. \nDate of title. \nLocation. Tax. \n \nStockly Donalson, \n5000 \n269 \n20 Sept. 1787. \nPleasant, &c. \n \n \n \n \n \n \n \nS. Donalson and \n \n \n \n \n \nJohn Hackett, \n5000 \n1347 \n22 Feb. 1795. \n \n \n \n \n \n \n \n \nDavid Ross. \n5000 \n209 \n20 Sept. 1787. \n \nUpon the return of which report the Court entered up a judgment for the sale of the said lands, and after the publication required by law, an execution was directed, under which the said land was sold as being three distinct tracts; when Robert Farquharson became the purchaser of the tracts reported to belong to Stockly Donalson, and to Stockly Donalson and John Hackett; and the agent of David Ross became the purchaser of the tract reported to belong to David Ross. \nA question of considerable difficulty arises on the validity of these sales. Under the act of 1803, the power of the Court to render judgment in such cases for the sale of land, is founded on there being no personal property from which the tax might be made. The jurisdiction of the Court depends on that fact. Whether it is necessary that its existence should be shown in the judgment of the Court, is a question on which the State Courts  appear to have decided differently at different times. But the last, and we  believe, the correct opinion, reported in 5 Haywood, 394. establishes  the general principle, that in these summary proceedings, every fact which is necessary to give jurisdiction, ought to appear in the record of the Court. The act of 1807 directs the Court to proceed on the return of the collector, that the taxes of the preceding year are unpaid, or that the land has not been returned for taxation. Whether this act, which is supplemental to that of 1803, authorizes the Court to give judgment for the sale of land, although there may be personal property in the county sufficient to pay the tax; or only varies the mode of proceeding against the land, without varying the circumstances under which it may become liable, is a question which does not appear to have been decided in Tennessee, and which it is unnecessary to decide in this case, because we are all of opinion, that if the sale was valid, Ross is to be considered as the purchaser of his own title, and Farquharson as the purchaser of the title of Donalson and Hackett. The objection to this is, that the agent of Ross stood by,  and permitted Farquharson to bid. But this objection implies a knowledge on the part of Ross, or his agent, that the land sold in the name of Donalson and Hackett, was his land. There is no evidence that either of them possessed this knowledge; nor are the circumstances such as would justify its being presumed. Were the Court required to presume fraud on this occasion, it is not to Ross, or to his agent, that the evidence on this particular part of the transaction would justify us in ascribing it. We think, then, tht the defendants in the Court below,  acquired no title to Ross's land by the sheriff's sale or deeds. We think, then, that there was no error in rejecting these deeds. \nThe defendant, also, claimed the benefit of the act of limitations, which makes seven year's peaceable and adverse possession a complete bar to the action. 3 \n In support of this claim, he relied on the testimony of John Meriott, who swore, that in pursuance of an agreement between him and John Hackett, who informed him that the land belonged to him, Hackett,  and the defendant, M'Clung, he took possession of the land in March, 1807, built a house, and cleared seven or eight acres, and retained possession of the land until the contract was rescinded. By a contract with M'Clung, he agreed to hold possession for M'Clung and Hackett. It also appeared in evidence that Meriott remained in possession until the autumn of 1808, when he surrendered it to Hackett, who, in the succeeding spring, moved with his family into the house Meriott had built, where he resided until his death, since which event it has been occupied by his widow and family. \nThe plaintiff then proved, that in 1795, John Hackett showed this agent of Ross, the land in controversy as the land sold to him; that in the year 1813, the same agent agreed to lease a part of the land to one Cox, who, in pursuance of the said agreement entered thereon, and built a small house, but being threatened by M'Clung with a suit, he abandoned it. \nUpon this testimony, the defendant  in the Circuit Court moved the Court to charge the jury, 1st. That if they believed the possession taken by Meriott to have been on behalf of Hackett and M'Clung, and that Hackett continued said possession for himself and M'Clung, for sevey years before suit, it was adverse, and would bar the claim of the lessor of the plaintiff. And farther, that the possession of the land taken by Cox, as tenant of Ross, would not suspend the statute of limitations, and that the effect of the said statute could be defeated only by suit at law. \nThis instruction the judge refused to give, but did  charge the jury that Hackett was by law a tenant in common with Ross, of which character he could not discharge himself by agreement with a younger purchaser from Donalson, and that the statute would not bar his right. With respect to the occupancy of Cox, the judge said, that merely going upon the land would not stop the running of the statute, but that if an older adverse claimant took actual possession by building houses, clearing land, &c. the operation of the statute of limitations might be thereby suspended. To this opinion, also, the counsel for the defendant excepted. \nOn examining  the whole testimony stated in the bill of exceptions, it appears that the contract with Hackett, which is stated by Meriott in his deposition, was a contract for the sale and purchase of a part of the tract of 5,000 acres sold by Donalson to Ross, and that his contract with M'Clung was a sale of M'Clung's part of the same land, on condition that he would hold the whole tract for M'Clung and Hackett. The actual possession of Meriott, then, does not appear to have extended beyond his purchase. He does not allege that Hackett put him in possession of more land than was sold to him; nor does it appear that M'Clung put him in possession of any land farther than the virtual possession which was to be implied from the agreement which has been stated. The possession of Meriott, then, was actual possession of a part of the land under a purchase. It was his own possession, in his own right; and not the possession of Hackett and M'Clung. His agreement with M'Clung to hold  the residue of the land for Hackett and M'Clung, never having been followed, so far as is shown to the Court, by actual occupation of any part of that residue, cannot, we think, be  construed into  such a possession by Hackett and M'Clung as to affect the title of Ross. If the defendant cannot avail himself of the possession of Meriott, then it is not shown that the bar was complete when this suit was brought. The contract of sale with Meriott was rescinded in the autumn or winter of 1808, and Hackett entered into the land in the spring of 1809. This suit was instituted on the 27th of March, 1816. The testimony does not show that the entry of Hackett was anterior to the 27th of March, 1809. This, however, ought to be left to the jury. But the judge was of opinion that the possession of Hackett was not adverse to that of Ross, because they were tenants in common. \nThat one tenant in common may oust his co-tetenant and hold in severalty, is not to be questioned. But a silent possession, accompanied with no act which can amount to an ouster, or give notice to his co-tenant that his possession is adverse, ought not, we think, to be construed into an adverse possession. The principles laid down in Barr v. Gratz, (4 Wheat. 213.) apply to this case. \nNeither does it appear to this Court, that there is error in that part of the charge which respects the occupation of Cox on the  part of Ross. It is, that merely going upon the land will not stop the running of the statute, but that if an older adverse claimant took actual possession by building houses, clearing  land, &c., the operation of the statute of limitations might be thereby suspended. It has been contended, that the statute of Tennessee can be stopped only by actual suit. This is true, when the possession is such as by its continuance to constitute a bar. But to make it such, it must be peaceable for seven years. This is the fact which creates the bar. This fact cannot exist, if the person having the better title taks actual possession in pursuance of his right. It is unnecessary to inquire whether the subsequent abandonment of this possession rendered it in this case a nullity, because the point is rendered unimportant by the circumstances that Ross and Hackett were tenants in common. There is, then, no error in the charge so far as respects the statute of limitations. \nBut the counsel also requested the judge to charge the jury, that the name of Hackett being signed to the deed from Stockly and Donalson to Ross, since the delivery of said deed, amounts to such an alteration or  addition as will vitiate such deed, unless accounted for by the plaintiff. This charge, also, the judge refused to give, but did instruct the jury that the title was vested in Ross by the deed from Donalson, and could not be devested, although there might be an alteration or addition in a material part of the said deed, such as the name of Hackett being put to the deed not proved. \nThere is some ambiguity in this instruction, and there is some doubt in the state of the fact. The counsel for the defendant assumes the fact, that the signature of Hackett was affixed to the deed after its  delivery. This does not appear in the evidence as stated. Nor does it appear whether the signature of Hackett was affixed, before or after the deed was registered. It was not proved or registered as to Hacktt, and is void as to him. The Court is not, however, prepared to say, that it is void as to Donalson. But the instruction given by the judge is in terms which might mislead the jury, and which appear in fact to have misled them. He says, that the title was vested in Ross by the deed from Donalson, and could not be devested by the addition of the name of Hackett. Now, this suit  was instituted for the whole tract, and the title asserted by Ross was a title to the whole tract. The instruction of the judge might have been understood as informing the jury that the title vested by the deed conformed to the title claimed by Ross. In fact, it was so understood; for the jury found a verdict for the whole tract, and the Court gave its judgment for the whole. Now, Ross had no title to more than a moiety, and the judge ought so to have instructed the jury. For this reason, the judgment is to be reversed, and the cause remanded for a new trial. \nJudgment reversed. \nJUDGMENT. -- This cause came on to be heard on the transcript of the record of the Circuit Court for East Tennessee, and was argued by counsel. On consideration whereof, it is the opinion of this Court, that the Circuit Court erred in instructing the jury that the title to the whole tract of land in the proceedings mentioned, and for which judgment was  rendered in the said Circuit Court, was vested in David Ross, whereas the said Court ought to have instructed the jury that only a moiety of the said land was vested in him. It is, therefore, ADJUDGED and ORDERED, that the judgment of the said  Circuit Court in this case be, and the same is, hereby reversed and annulled. And it is further ordered, that the said cause be remanded to the said Circuit Court with directions to issue a venire facias de novo. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Chief Justice MARSHALL delivered the opinion of the Court. The indictment in this case is founded on the 12th section of the act, entitled, \"an act for the punishment of certain crimes against the United States.\" That section is in these words: \"And be it enacted, that if any seaman, or other person, shall commit manslaughter on the high seas, or confederate,\" &c.  \"such person or persons so offending,  and being thereof convicted, shall be imprisoned not exceeding three years, and fined not exceeding one thousand dollars.\" \nThe jurisdiction of the Court depends on the place in which the fact was committed. Manslaughter is not punishable in the Courts of the United States, according to the words which have been cited, unless it be committed on the high seas. Is the place described in the special verdict a part of the high seas? \nIf the words be taken according to the common understanding of mankind, if they be taken in their popular and received sense, the \"high seas,\" if not in all instances confined to the ocean which washes a coast, can never extend to a river about half a mile wide, and in the interior of a country. This extended construction of the words, it has been insisted, is still farther opposed, by a comparison of the 12th with the 8th section of the act. In the 8th section, Congress has shown its attention to the distinction between the \"high seas,\" and \"a river, haven basin, or bay.\" The well known rule that this is a penal statute, and is to be construed strictly, is also urged upon us. \nOn the part of the United  States, the jurisdiction of the Court is sustained, not so much on the extension of the words \"high seas,\" as on that construction of the whole act, which would engraft the words of the 8th section, descriptive of the place in which murder may be committed, on the 12th section, which describes the place in which manslaughter may be committed. This transfer of the words of one section to the other, is, it has been contended, in pursuance  of the obvious intent of the legislature; and in support of the authority of the Court so to do, certain maxims, or rules for the construction of statutes, have been quoted and relied on. It has been said, that although penal laws are to be construed strictly, the intention of the legislature must govern in their construction. That if a case be within the intention, it must be considered as if within the letter of the statute. So if it be within the reason of the statute. \nThe rule that penal laws are to be construed strictly, is perhaps not much less old than construction itself. It is founded on the tenderness of the law for the rights of individuals; and on the plain principle that the power of punishment is vested in the legislative,  not in the judicial department. It is the legislature, not the Court, which is to define a crime, and ordain its punishment. \nIt is said, that notwithstanding this rule, the intention of the law maker must govern in the construction of penal, as well as other statutes. This is true. But this is not a new independent rule which subverts the old. It is a modification of the ancient maxim, and amounts to this, that though penal laws are to be construed strictly, they are not to be construed so strictly as to defeat the obvious intention of the legislature. The maxim is not to be so applied as to narrow the words of the statute to the exclusion of cases which those words, in their ordinary acceptation, or in that sense in which the legislature has obviously used them, would comprehend. The intention of the legislature is to be collected from the words they employ. Where there is no ambiguity in  the words, there is no room for construction. The case must be a strong one indeed, which would justify a Court in departing from the plain meaning of words, especially in a penal act, in search of an intention which the words themselves did not suggest. To determine that a case  is within the intention of a statute, its language must authorise us to say so. It would be dangerous, indeed, to carry the principle, that a case which is within the reason or mischief of a statute, is within its provisions, so far as to punish a crime not enumerated in the statute, because it is of equal atrocity, or of kindred character, with those which are enumerated. If this principle has ever been recognized in expounding criminal law, it has been in cases of considerable irritation, which it would be unsafe to consider as precedents forming a general rule for other cases. \nHaving premised these general observations,  the Court will proceed to the examination of the act, in order to determine whether the intention to incorporate the description of place contained in the 8th section, into the 12th, be so apparent as to justify the Court in so doing. It is contended, that throughout the act the description of one section is full, and is necessarily to be carried into all the other sections which relate to place, or to crime. \nThe 1st section defines the crime of treason, and declares, that if any person or persons owing allegiance to the United States of America shall  levy war.\" &c. \"such person or persons shall be adjudged guilty of treason, &c. The second section defines misprision of treason; and in the description of the  persons who may commit it, omits the words \"owing allegiance to the United States,\" and uses without limitation, the general terms \"any person or persons.\" Yet, it has been said, these general terms were obviously intended to be limited, and must be limited, by the words \"owing allegiance to the United States,\" which are used in the preceding section. \nIt is admitted, that the general terms of the 2d section must be so limited; but it is not admitted, that the inference drawn from this circumstance, in favour of incorporating the words of one section of this act into another, is a fair one. Treason is a breach of allegiance, and can be committed by him only who owes allegiance either perpetual or temporary. The words, therefore, \"owing allegiance to the United States,\" in the first section, are entirely surplus words, which do not, in the slightest degree, affect its sense. The construction would be precisely the same were they omitted. When, therefore, we give the same construction to the second section, we  do not carry those words into it, but construe it as it would be construed independent of the first. There is, too, in a penal statute, a difference between restraining general words, and enlarging particular words. \nThe crimes of murder and of manslaughter, it has been truly said, are kindred crimes; and there is much reason for supposing, that the legislature intended to make the same provision for the jurisdiction of its Courts, as to the place in which either might be committed. In illustration of this position, the 3d and 7th sections of the act have been cited.  The 3d section describes the places in which murder on land may be committed, of which the Courts of the United States may take cognizance; and the 7th section describes, in precisely the same terms, the places on land, if manslaughter be committed in which, the offender may be prosecuted in the federal Courts. \nIt is true, that so far as respects place, the words of the 3d section concerning murder, are repeated in the 7th, and applied to manslaughter; but this circumstance suggests a very different inference from that which has been drawn from it. When the legislature is about to describe the places in  which manslaughter, cognizable in the Courts of the United States, may be committed, no deference whatsoever is made to a prior section respecting murder; but the description is as full and ample, as if the prior section had not been in the act. This would rather justify the opinion, that in proceeding to manslaughter, the legislature did not mean to refer us to the section on murder for a description of the place in which the crime might be committed, but did mean to give us a full description in the section on that subject. \nSo, the 6th section, which punishes those who have knowledge of the commission of murder, or other felony, describes the places on land in which the murder is to be committed, to constitute the crime, with the same minuteness which had been before employed in the 3d, and was, afterwards, employed in the 7th section. \nIn the 8th section, the legislature takes up the subject  of murder, and other felonies, committed on the water, and is full in the description of place. \"If any person or persons, shall commit upon the high seas, or in any river, haven, basin or bay, out of the jurisdiction of any particular State, murder,\" &c. \nThe 9th section of the  act applies to a citizen who shall commit any of the offences described in the 8th section, against the United States, or a citizen thereof, under colour of a commission from any foreign Prince or State. \nIt is observable, that this section, in its description of place, omits the words, \"in any river, haven, basin, or bay,\" and uses the words \"high sea\" only. It has been argued, and, we admit, with great force, that in this section the legislature intended to take from a citizen offending against the United States, under colour of a commission from a foreign power, any pretence to protection from that commission; and it is almost impossible to believe that there could have been a deliberate intention to distinguish between the same offence, committed under colour of such commission, on the high seas, and on the waters of a foreign State, or of the United States, out of the jurisdiction of any particular State. This would unquestionably have been the operation of the section, had the words, \"on the high seas,\" been omitted. Yet it would be carrying construction very far to strike out those words. Their whole effect is to limit the operation which the sentence would have without  them; and it is making very free with legislative language, to declare them totally useless, when they are sensible, and are calculated to have a decided  influence on the meaning of the clause. That case is not directly before us, and we may perhaps be relieved from ever deciding it. For the present purpose, it will be sufficient to say, that the determination of that question in the affirmative, would not, we think, be conclusive with respect to that now under consideration. The 9th section refers expressly, so far at least as respects piracy or robbery, to the 8th; and its whole language shows that its sole object is to render a citizen who offends against the United States or their citizens, under colour of a foreign commission, punishable in the same degree as if no such commission existed. The clearness with which this intent is manifested by the language of the whole section, might perhaps justify a latitude of construction which would not be allowable where the intent is less clearly manifested; where we are to be guided, not so much by the words in which the provision is made, as by our opinion of the reasonableness of making it. \nBut here, too, it cannot escape  notice, that  the legislature has not referred for a description of the place to the preceding section, but has inserted a description, and by that insertion has created the whole difficulty of the case. \nThe 10th section declares the punishment of accessories before the fact. It enacts, \"that every person who shall either upon the land or the seas, knowingly and wittingly, aid and assist, procure, command, counsel, or advise any person or persons to do or commit any murder or robbery, or other piracy,  aforesaid, upon the seas, which shall affect the life of such persons, shall,\" &c. \nUpon this section, also, as on the preceding, it has been argued, that the legislature cannot have intended to exclude from punishment those who shall be accessories before the fact to a murder or robbery committed \"in a river, haven, basin, or bay, out of the jurisdiction of any State;\" and now, as then, the argument has great weight. But it is again to be observed, that the legislature has not referred for a description of place to any previous parts of the law, but has inserted a description, and by so doing, has materially varied the obvious sense of the section. \"Every person  who shall, either upon the land or the seas, knowingly and wittingly aid,\" &c. The probability is, that the legislature designed to punish all persons amenable to their laws, who should, in any place, aid and assist, procure, command, counsel, or advise, any person or persons to commit any murder or piracy punishable under the act. And such would words, \"upon the land or the seas\" been omitted. But the legislature has chosen to describe the place where the accessorial offence is to be committed, and has not referred to a description contained in any other part of the act. The words are, \"upon the land or the seas.\" The Court cannot reject this description. If we might supply the words \"river, haven,\" &c. because they are stated in the 8th section, must we supply \"fort, arsenal,\" &c. which are used in the 3d section, describing the place in which murder may be committed on land? In doing so, we should  probably defeat the will of the legislature. Yet if we depart from the description of place given in the section, in which Congress has obviously intended to describe it, for the purpose of annexing to the word \"seas,\" the words \"river, haven, basin, or bay,\" found in  the 8th section, there would be at least some appearance of reason in the argument, which would require us to annex also ito the word \"land,\" the words \"fort, arsenal,\" &c. found in the 3d section. \nAfter describing the place in which the \"aid, assistance, procurement, command, counsel, or advice,\" must be given, in order to give to the Courts of the United States jurisdiction over the offence, the legislature proceeds to describe the crime so to be commanded or procured, and the place in which such crime must be committed. The crime is, \"any murder or robbery, or other piracy, aforesaid.\" The place is \"upon the seas.\" \nIn this section, as in the preceding, had the words \"upon the seas\" been omitted, the construction would have been that which, accordig to the argument on the part of the United States, it ought now to be. But these words are sensible and are material. They constitute the description of place which the legislature has closen to give us; and Courts cannot safely vary that description, without some sure guide to direct their way. \nThe observations made on this section apply so precisely to the 11th, that they need not be repeated. \nThe legal construction of those sections  is doubtful, and the Court is not now, and may perhaps never  be, required to make it. It is sufficient to say, that should it even be such as the Attorney General conrends it ought to be, the reasons in favour of that construction do not apply conclusively to the 12th section. They both contain a direct reference to the 8th section. They describe accessorial offences, which from their nature are more intimately connected with the principal offence, than distinct crimes are with each other. \nThe 12th section takes up the crime of manslaughter, which is not mentioned in the 8th; and, without any reference to the 8th, describes the place in which it must be committed, in order to give jurisdiction to the Courts of the United States. That place is \"on the high seas.\" There is nothing in this section which can authorize the Court to take jurisdiction of manslaughter committed elsewhere. \nTo prove the connection between this section and the 8th, the attention of the Court has been directed to the other offences it recapitulates, which are said to be accessorial to those enumerated in the 8th. They are admitted to be accessorial; but the Court draws a different inference  from this circumstance. Manslaughter is an independent crime distinct from murder, and the legislature annexes to the offence, a description of the place in which it must be committed in order to give the Court jurisdiction. The same section then proceeds to enumerate certain other crimes which are accessorial in their nature, without any description of places. To manslaughter, the principal crime, the right to punish which depends on the place in which it is committed, Congress has annexed a description of place. To the other crimes enumerated  in the same section, which are accessorial in their nature, and some of which at least may be committed any where, Congress has annexed no description of place. The conclusion seems irresistible, that Congress has not in this section, inserted the limitation of place inadvertently; and the distinction which the legislature has taken, must of course be respected by the Court. \nIt is the object of the law, among other things, to punish murder and manslaughter, on land, in plaoes within the jurisdiction of the United States; and also to punish murder and manslaughter, committed on the ocean. The two crimes of murder and manslaughter,  when committed on land, are described in two distinct sections, as two distinct offences; and the description of place in the one section, is complete in itself, and makes no reference to the description of place in the other. The crimes of murder and manslaughter, when committed on water, are also described as two distinct offences, in two sections, each containing a description of the place in which the offence may  be committed, without any reference in the one section to the other. That section which affixes the punishment to manslaughter on the seas, proceeds to describe other offences which are accessorial in their nature, without any limitation of place. In every section throughout the act, describing a crime, the right to punish which depends on place, and in some instances where the right of punishment does not depend upon place, the legislature has, without any reference to a preceding section, described the place in which it must be committed, in order to bring the offender within the act. This characteristic feature  of the law now to be expounded, deserves great consideration, and affords a powerful reason for restraining the Court from annexing  to the description contained in one section, parts of the description contained in another. From this review of the examination made of the act at the bar, it appears that the argument chiefly relied on, to prove that the words of one section descriptive of the place ought to be incorporated into another, is the extreme improbability that Congress could have intended to make those differences with respect to place, which their words import. We admit that it is extremely improbable. But probability is not a guide which a court, in construing a penal statute, can safely take. We can conceive no reason why other crimes which are not comprehended in this act, should not be punished. But Congress has not made them punishable, and this Court cannot enlarge the statute. \nAfter giving the subject an attentive consideration, we are unanimously of opinion, that the offence charged in this indictment is not cognizable in the Courts of the United States; which opinion is to be certified to the Circuit Court for the district of Pennsylvania. \nCERTIFICATE. This cause came on to be heard on the transcript of the record of the Circuit Court for the district of Pennsylvania, and on the question  on which the Judges of that Court were divided, and was argued by counsel; on consideration whereof, the Court is of opinion, that manslaughter committed in a river such as the river Tigris is described  to be, is not punishable by the laws of the United States, and that the Circuit Court of the United States, for the district of pennsylvania, has no jurisdiction over the offence. All which is ordered to be certified to the Circuit Court of the United States for the district of Pennsylvania. 23 \n Both in England and the other countries of Europe, the Court of Admiralty is a branch which has sprung from that ancient and venerable stock, the office of admiral. The etymology of the word serves to indicate the origin of the office, and the time when it was introduced, at least under that name, into Europe. The word admiral or ammiral, is doubtless derived from the Arabic word emir or amira, signifying a general officer or commander in chief, dominum vel praefectum. (Du Cange. Glossary. Verbo Admiralius. In the time of the crusades, by means of which so many oriental usages were brought into the west of Europe, it was introduced into France as the title of a commander in chief, either of land or sea forces. Accordingly, we find that the office, with that title, was unknown until the third race of French kings, under Charles IV., about the end of the thirteenth century, and it appeared in England about the same period in the reign of Edward I. After the term thus came to be exclusively applied to the commander in chief of naval forces in France, the station was filled with several illustrious characters, and in the scale of civil and military dignities ranked immediately after  the office of constable. The person who filled this high station had jurisdiction by himself or his deputies, of all crimes and offences committed on the sea, its ports, harbours, and shores. (Valin. Com. sur l'Ordon, l. 1. tit. 2. art. 10. De la Competence.) \nIn England, the office subsisted with the same title of high admiral, until the reign of Charles II., when it was filled by his brother, the Duke of York, (afterwards James II.) who being excluded from office as a Catholic by the test act in 1673, it was executed by commissioners, with the same power and authority as belonged to the Lord High Admiral: and since the accession of the house of Hanover, the office has also been vested in commissioners, who are styled the Lords Commissioners of the Admiralty. But the king is said still to hold, for certain purposes, the office of Lord High Admiral, though in a capacity distinguishable from his regal character; a distinction of practical importance in the law of prize, but immaterial to the present purpose. The judge of the High Court of Admiralty in England formerly held his place by patent from the Lord High Admiral, but since that office has only existed in contemplation of  law, he holds it by direct commission from the crown. The ancient criminal jurisdiction of the Court was modified by the statute of the 28th of Henry VIII. c. 15. which enacted, that offences upon the seas, and in havens, rivers, &c. should be tried by the admiral or his deputy, and three or four more, among whom two common law judges are usually appointed, the judge of the High Court of Admiralty presiding. (2 Bro. Civ. and Adm. Law, 458.) In Scotland, the Court is held before the delegate of the High Admiral, who may also name other inferior local deputies, and who is declared to be the king's Justice General upon the seas, or fresh water within flood and mark, and in all harbours and creeks. (2 Bro. Civ. and Adm. Law. 30.) \nThis remarkable conformity between the origin, history, and nature of the Courts of Admiralty in France and Great Britain, renders it highly probable that their jurisdiction, both civil and criminal, however it may have been shifted from its ancient foundations, was originally the same; and this supposition derives additional strength from the manner in which the history of the two countries is blended together during the middle ages, and from the circumstance  of both having derived their maritime institutions from the shores of the Mediterranean. \nThere appears to be no question, that the admiralty jurisdiction of England originally extended to all crimes and offences committed upon the sea, and in all ports, rivers, and arms of the sea, as far as the tide ebbs and flows. This is established by the ancient inquisitions, the records of which still remain in the black book of the admiralty, and by the articles given in charge at the admiralty sessions, as early as the reign of Edward III. (Clerk's Praxis. Roughton's articles, passim. Exton, c. 11, 12, 13. Selden, de Dom. Mar. l. 2. c. 24. p. 209.) But Lord Coke, in 4 Inst. 135. et seq. after admitting, that the admiralty had jurisdiction of all things done upon the sea, endeavours to establish the doctrine, that the sea, ex vi termini, did not include any navigable waters within the body of any county of the realm; and for proof of this, he mainly relies on certain authorities in Fitzherbert's Abridgment, (Avowry, 192. Corone, 399.) which, when carefully considered, will not support his position. The hostility of Lord Coke to the admiralty, and indeed to every other jurisdiction rivalling  the common law Courts, is well known; and Mr. Justice Buller has observed, that \"with respect to what is said relative to the admiralty jurisdiction in 4 Inst. 135. that part of Lord Coke's work has been always received with great caution, and frequently contradicted. He seems to have entertained not only a jealousy of, but an enmity against, that jurisdiction.\" All the authorities cited by Lord Coke, will be satisfactorily disposed of upon the supposition (which Lord Hale asserts to be the fact,) that before the thirty-fifth year of Edward III. the common law exercised, even upon the narrow seas, as well as in ports and havens within the ebb and flow of the tide, a concurrent jurisdiction with the admiralty. (2 Hale's, P.C. 13. et seq.) Neither does the case itself in Fitz. Abr. Corone, 399. 8 Edw. 2. warrant Lord Coke's assertion. Stantion, J. is there reported to have said, that it is not an arm of the sea where a man can see what is done on the one side of the water and the other; and that the coroner, in such cases, shall exercise his jurisdiction there. This dictum, taken literally, cannot be considered as law, for in the year books (22 Assisarum, 93.) it is expressly held,  that every water which flows and reflows, is called an arm of the sea, so far as it flows. \"Que chescum ewe, que flow et reflow, est appellee bras de mer cy tantaunt come el flowe.\" The same doctrine is quoted and confirmed by Lord Hale, who states, that the sea is either that which lies within the body of a county, or without; and that an arm or branch of the sea which lies within the fauces terrae, where a man may reasonably discern between shore and shore, is, or at least may be, within the body of a county.(Hale, De Jure Mar. c. 4. p. 10.) So that there is the strongest reason to question Lord Coke's authority in this respect, and to adhere to the evidence furnished by the records of the admiralty, of its ancient jurisdiction in ports and havens within the ebb and flow of the tide. \nHow far this ancient jurisdiction has been altered by statutes, is another question. The statute 13 Richard II. c. 5. enacts, \"that the admirals, and their deputies, shall not meddle benceforth of any thing done within the realm, but only of a thing done upon the sea, according as it hath been duly used in the time of the noble King Edward, (III.) grandfather of our Lord the King that now is.\" The  statute 15 Richard II. c. 3. enacts, \"that of all manner of contracts, pleas and quereles, and of all other things done, or arising within the bodies of counties, as well by land as by water, and also of wreck of the sea, the Admiral's Court shall have no manner of cognizance, power, nor jurisdiction; but all manner of contracts, pleas and quereles, and all other things rising within the bodies of counties, as well by land as by water, as afore, and also wreck of the sea, shall be tried, determined, discussed, and remedied, by the laws of the land, and not before, or by the admiral, nor his lieutenants, in any wise. Nevertheless, of the death of a man, and of a maihem done in great ships, being hovering on the main stream of great rivers, only, beneath the bridges of the same rivers nigh to the sea, and in none other places of the same rivers, the admiral shall have cognizance; and also, to arrest ships in the great flotes for the great voyages of the King, and of the realm; saving always to the King all manner of forfeitures and profits thereof coming; and he shall also have jurisdiction upon the said flotes during the said voyages, only saving always to the lords, cities, and boroughs,  their liberties and franchises.\" The true limit of the admiralty jurisdiction under these statutes was long a subject of angry contention between the civilians and the common lawyers. But it is admitted on all sides, that on the main or high seas, (which, as Blackstone states, begin at the low water mark, (1 Bl. Comm. 110.) the admiralty has jurisdiction exclusive of the common law; and that, between high water mark and low water mark, where the sea ebbs and flows, (which is technically the shore of the sea, or litlus maris,) (Hale de Jure Mar. c. 4. p. 12.) the common law and the admiralty have a divided empire (divisum imperium) or alternate jurisdiction, one upon the water when it is full sea, the other upon the land, when it is an ebb. (1 Bl. Comm. 110. Constable's case, 5 Co. Rep. 106, 107. Barber v. Whanton, 2 Lord Raym. 1452. 2 East's P.C. 803. 4 Bl. Comm. 268.) Upon the sea coast, therefore, it is incontestible, that the body of every county bordering on such coast, is bounded by the shore of the sea, and at no time extends below low water mark. \nBut what constitutes the boundary of counties bordering on arms of the sea, and navigable rivers, is a question concerning which  great differences of opinion have been expressed. It has been strenuously insisted by the judges of the admiralty, that, notwithstanding the statutes of Richard, the admiralty still continues to possess jurisdiction in all ports, havens, and rivers, where the sea ebbs and flows, below the first bridges. (1 Sir L. Jenkins' Life, xcii. Exton, b. 2. c. 3. et. seq. Zouoh, 92.) And Sir Henry Spelman adopts the same opinion. (Spelm. Reliq. 226.) The ground of this opinion is, that the same rule exists at the common law in respect to the bounds of counties on navigable waters and arms of the sea as is applied by the same law to the sea coast, viz. that they are limited by the ebb and flow of the tide; and that the statute of Richard was intended no further to restrict the admiralty, than as to crimes committed above the first bridges. (1 Sir L. Jenkins' Life, xcii. Exton, c. 10. to 20. Zouch, 92.) And it cannot be denied, that the agreement of the twelve judges in 1632, (cited at large, ante, vol. iii. p. 365. Note a.) strongly countenances this pretension. In Rex v. Soleguard (Andrew's Rep. 231.) also, Sir Edmund Isham cited an opinion delivered as recently as 1713, on a reference  to all the judges, in which ten of them (against Ward, C. B. and Gould, J.) held, \"that the admiralty hath a jurisdiction in all great navigable rivers from the bridges to the sea.\" And in that case, the Court did not deny the jurisdiction, but founded their judgment upon a supposed concurrent jurisdiction of the common law. On the other hand, Lord Coke, principally on the authority of the two cases before cited, (4 Inst.140. Fitz. Abr. Avowry, 192. and Corone, 399.) maintains that the bodies of counties comprehend all navigable waters where persons can see from one side to the other; or rather, as other authorities, with more accuracy, state it, the point, where a man standing on one side of the land, may see what is done on the other side. (Hawkins' P. C. c. 9. s. 14. 2 East, P.C. 804.) Lord Hale appears to speak with great doubt and hesitation on this subject, merely asserting that \"an arm or branch of the sea, where a man may reasonably discern between shore and shore, is, or at least may be, within the body of a county.\" And it may fairly be inferred as well from this cautious expression, as from his commentary on the statute of the 28th Hem. VIII. c. 15. (2 Hale's P.C. 16,  17.) that Lord Hale was not satisfied with Lord Coke's exposition of the common law boundary of counties. The whole question, however, became in a great degree unimportant in England after the enactment of the statute of the 28 Hen. VIII. c. 15. which gave to the High Commission Court, (of which the admiral or his deputy is the presiding judge,) cognizance of \"all treasons, felonies, robberies, murders and confederacies committed in or upon the sea, or in any other haven, river, creek, or place, where the admiral or admirals have, or pretend to have, jurisdiction.\" In the exposition of this statute, Lord Hale says, \"this seems to me to extend to great rivers where the sea flows and reflows below the first bridges, and also, in creeks of the sea at full water, where the sea flows and reflows, and upon high water upon the shore, though these possibly be within the body of the country, for the at least by the statute of 15 Rich. II. they [the admirals] have a jurisdiction; and thus accordingly it has been held at all times even when the Judges of the common law have been named, and sat in the commission; but we are not to extend the words (pretend to have) to such a pretence as is  without any right at all; and, therefore, although the admiral pretend to have jurisdiction upon the shore, when the tide is reflowed, yet he hath no cognizance of a felony committed there.\" (2 Hale's P.C. 16, 17.) This construction of the statute, in opposition to Lord Coke's, was solemnly adopted in a very recent case by the twelve judges; and sentence of death accordingly passed upon the prisoner upon a conviction under the statute.(Rex v. Bruce, 2 Leach's C.C. 1093. 4th Ed. cited at large, ante, vol. III. p. 371. Note a.) Sir Leoline Jenkins, in his charge given at the Admiralty Sessions at the Old Bailey, speaking of the commission given to the Judges under the statute, says: \"But the commission itself explains the word (pretend) in a more particular manner in directing the inquiry to be of things done, not only upon the sea, and in havens, creeks, and rivers, as in the statute, but also in all places whatsoever within the flowing of the water, to the full sea mark; and in all great rivers from those bridges downwards that are next the sea: which words, being in the commission, are the best comment upon the statute, it having so often passed the great seal in these last seven  score years, under the view and approbation of so many Lords Chancellors and Keepers, and of so many Attorney Generals, men of the greatest eminency in the laws of the land, so that the words of the statute, and the commission, being taken together, do not only ascertain the power of this Court to hear and determine offences done in all, or any of those places, but do also declare all, and every of the places themselves, to be within the jurisdiction of the admiralty; for otherwise, the jurisdiction of the commissioners since the statute, would be of larger extent, and in more places than the jurisdiction of the Admiral was before the statute, which it is clear was not intended by the law makers.\" (1 Sir L. Jenkins, xci.) But where such havens, creeks, and rivers, &c. are within the body of a county, it seems now generally agreed, that the Courts of Common Law have a concurrent jurisdiction over the same offences. (2 Hale's P.C. 15. 16. Rex v. Bruce, 2 Leach's C.C. 1093, 4th ed.) \nSupposing, however, Lord Coke's view of this matter to be correct, the limits of a county will still be confined to places in rivers, creeks, and arms of the sea, which are so narrow as that a person on  one side can reasonably discern and attest upon oath any thing done on the other side; for the reason assigned for this rule of limitation is, that the pais may there come and take inquisition of the facts. (4 Inst. 140. 2 East's P.C. 804.) And, in England, the Admiralty hath by the express provisions of the statute 15 Rich. II. c. 3. cognizance of every description of homicide and mayhem, \"happening in great ships being and hovering in the main stream of great rivers below the bridges of the same rivers, which, (as Blackstone observes,) are then a sort of port or haven; such (to use his own illustration,) as are the ports of London and Gloucester, though they lie at a great distance from the sea, (4 Bl. Comm. 268.) and though they be within the body of a county. (2 Hale's P.C. 16.) \nBut it is certainly very questionable how far the statutes of Richard II. are to be considered as restrictive of the grant of admiralty and maritime jurisdiction contained in the constitution of the United States. These statutes were never designed to apply to the colonies, for at that time the colonies did not exist; and in point of fact, the admiralty jurisdiction in the colonies has always depended  entirely upon the royal commission, and upon acts of parliament expressly extending to them. Hence, the colonial Vice Admiralty Courts have constantly exercised jurisdiction in many cases, such as revenue cases, of which the High Court of Admiralty in England has not recently taken jurisdiction. I say, recently, because it seems that formerly the Admiralty in England did take jurisdiction of the breaches of the navigation laws, and other laws of trade; either by the express provisions of those statutes, or in virtue of its original maritime jurisdiction. (1 Sir L. Jenkins' Life, Lxxii, xcv. et seq. 2 Sir L. J. p. 745. 746.) But it appears that the colonial Vice Admiralty Courts have uniformly exercised a jurisdiction over revenue cases upon their original inherent powers by virtue of their commissions, independent of any statute. (See a case cited in the Fabius, 6 Rob. 245.) Beside the restrictions contained in the statutes of 13 and 15 Rich. II. as to criminal jurisdiction, are purely arbitrary, and cannot be considered as declaratory of the pre-existing law. What reason is there why the Admiralty should have jurisdiction of homicide and mayhem in rivers, ports, and creeks of  the sea, and not of other crimes in the same places? Such a limitation has no foundation in the ancient constitution of the Court, and never at any time existed independent of the statute. It is also a well established rule in the construction of English statutes, that they are not to be considered as extending to the colonies, unless included by express words, or by inevitable implication; (1 Bl. Comm. 107, 108.) and it cannot be pretended, that the colonies are within the purview or the words of the statutes of the 13 and 15 Richard II. Why, then, should they be considered as extending to the colonies, which did not then exist, any more than to Scotland, which was not then united to the crown, but in which country the Admiralty still retains its ancient jurisdiction undiminished? \nThe commissions issued by the crown to the Vice Admiralty Courts in the colonies, were entirely inconsistent with the limitations imposed upon the Admiralty in England. One of the latest, which is probably copied from the others, is that issued to the Governor of New Hampshire, in 6 Geo. III. It empowers him \"to take cognizance of, and proceed in, all causes, civil and maritime, and in complaints,  contracts, offences or suspected offences, crimes, pleas, debts, exchanges, accounts, charter parties, agreements, suits, trespasses, inquiries, extortions, and demands, and all business, civil and maritime, whatsoever, &c. throughout all and every the sea shores, public streams, ports, fresh waters, rivers, creeks, and arms, as well of the sea, as of the rivers and coasts, whatsoever, of the province, &c. and territories dependent thereon, and maritime ports, whatsoever of the same, and thereto adjacent;\" and in this commission those places are referred to as within \"our maritime jurisdiction.\" ( De Lovio v. Boit, 2 Gallis. 470. Note 47.) It seems highly probable that the expression \"maritime jurisdiction,\" in the constitution, was borrowed from the language of those commissions, and was introduced ex abundanti cautela, and superadded to the term \"admiralty,\" in order to obviate any doubt as to the full extent of the authority meant to be conferred. \nIndeed it has already been, in effect, decided by this Court, that the statutes of Richard are not in force in the United States, as limitations of the admiralty and maritime jurisdiction granted in the constitution. By the judiciary  act of 1789, c. 20. s. 9. seizures under laws of impost, navigation, and trade, on waters navigable from the sea by vessels of ten or more tons burthen, as well as seizures on the high seas, are expressly included in the admiralty and maritime jurisdiction of the District Courts. It is evident that Congress could not give the District Courts, acting as Courts of Admiralty, cognizance of any causes which were not \"of admiralty and maritime jurisdiction,\" within the true meaning of the constitution; because, it would deprive the parties of their constitutional right of trial by jury. The objection was, therefore, very early taken, that seizures in ports, and in such navigable waters, as above stated, were not causes of admiralty and maritime jurisdiction, because those places were not, according to the common law interpretation in England of the statutes of Richard II. within the jurisdiction of the admiralty. But this Court has repeatedly overruled the objection, ( La Vengeance, 3 Dall. 297. The Sally, 2 Cranch, 406. the Betsey and Charlotte, 4 Cranch, 443. The Samuel, Ante, vol. 1. p. 9. the Octavia, ib. p. 20.) and thereby established the doctrine that the constitutional admiralty  jurisdiction includes ports, arms, and creeks of the sea, as far as the tide ebbs and flows. \nThe learned reader will observe, that the position is not disturbed by the decision of this Court in the case in the text, (The U.S. v. Wiltberger,) or by that of the United States v. Bevans; (Ante, vol. III. p. 336. 387.) the only question in those cases being, not what was the constitutional authority of Congress, but how far it had been exercised; not what was the extent of the admiralty and maritime jurisdiction granted in the constitution, but how far it had been conferred by Congress upon any particular Court of the Union. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Chief Justice MARSHALL delivered the opinion of the Court. The first and second points made by the counsel for the prisoner may be considered together. \nAs judgment can be arrested only for errors appaparent on the record, we should feel no difficulty in certifying our opinion of the insufficiency of these on that ground, were we not persuaded that from some inattention, the questions which arise properly on a motion for a new trial, have been stated by the clerk as a motion in arrest of judgment, and that the same points, if undecided now, will recur when judgment is about to be pronounced. In a criminal case especially, we think it proper to decide the question on its real, as well as technical merits. \nSo far as this Court can take any cognizance of that fact, Aury can have no power, either as Brigadier of the Mexican  Republic, a republic of whose existence we know nothing, or as Generalissimo of the Floridas, a province in the possession of Spain, to issue commissions to authorize private or public vessels to make captures at sea. Whether a person acting with good faith under such commission, may or may not, be guilty of piracy; we are all of opinion  that the commission can be no justification of the fact stated in this case. The whole transaction taken together, demonstrates that the Norberg was not captured jure belli, but seized and carried into Savannah animo furandi. It was not a belligerent capture, but a robbery on the high seas.And although the fraud practised on the Dane may not of itself constitute piracy, yet it is an ingredient in the transaction which has no tendency to mitigate the character of the offence. \nThe third and fourth errors assigned in arrest of judgment may also be considered together. The questions they suggest arise properly on the indictment, and require a reconsideration of the opinion given by the Court in Palmer's case. \nThe question propounded to the Court in that case was in these words: \"Whether the crime of robbery, committed by persons who are  not citizens of the United States, on the high seas, on board of any ship or vessel belonging exclusively to the subjects of any foreign State or sovereignty, or upon the person of any subject of any foreign State or sovereignty, not on board of any ship or vessel belonging to any subject or citizen of the United States, be a robbery or piracy within the true intent and meaning of the said 8th section of the act of Congress, aforesaid, and of which the Circuit Court of the United States hath cognizance, to hear, try, determine, and punish the same?\" \nThe same question was again propounded, so varied only as to comprehend the offence if committed  by American citizens in a vessel belonging to foreigners. \nThe Court, in concluding its exposition of the act, thus sums up its opinion: \"The Court is of opinion, that the crime of robbery, committed by a person on the high seas, on board of any ship or vessel belonging exclusively to subjects of a foreign State, on persons within a vessel belonging exclusively to subjects of a foreign State, is not a piracy within the true intent and meaning of the act for the punishment of certain crimes against the United States.\" The certificate  of the Court conforms entirely to this opinion. \nThis opinion and certificate apply exclusively to a robbery or murder committed by a person on board of any ship or vessel belonging exclusively to subjects of a foreign State. It is, we think, the obvious import of these words, that, to bring the person committing the murder or robbery within them, the vessel on board which he is, or to which he belongs, must be at the time, in point of fact, as well as right, the property of the subjects of a foreign State, who must have at the time, in virtue of this property, the control of the vessel. She must at the time be sailing under the flag of a foreign State, whose authority is acknowledged.This is the case which was presented to the Court; and this is the case which was decided. We are satisfied that it was properly decided. \nBut the reasoning which conducted the Court to this conclusion, is founded on sections of the act, the general words of which ought to be restricted to offences committed by persons who, at the time of  committing them, were within the ordinary jurisdiction of the United States; and the language employed may well be understood to indicate an opinion that  the whole act must be limited in its operation to offences committed by, or upon, the citizens of the United States. Upon the most deliberate reconsideration of that subject, the Court is satisfied, that general piracy, or murder, or robbery, committed in the places described in the 8th section, by persons on board of a vessel not at the time belonging to the subjects of any foreign power, but in possession of a crew acting in defiance of all law, and acknowledging obedience to no government whatever, is within the true meaning of this act, and is punishable in the Courts of the United States. Persons of this description are proper objects for the penal code of all nations; and we think that the general words of the act of Congress applying to all persons whatsoever, though they ought not be so construed as to extend to  persons under the acknowledged authority of a foreign State, ought to be so construed as to comprehend those who acknowledge the authority of no State. Those general terms ought not to be applied to offences committed against the particular sovereignty of a foreign power; but we think they ought to be applied to offences committed against all nations,  including the United States, by persons who by common consent are equally amenable to the laws of all nations. \nCERTIFICATE. -- This cause came on to be heard on the transcript of the record from the Circuit Court  for the District of Georgia, and was argued by counsel.On consideration whereof, this Court is of opinion: \n1st. That Aury's commission does not exempt the prisoner from the charge of piracy. \n2d. That although the fraud practised on the Dane may not in itself support the charge of piracy, the whole transaction, as stated in the indictment and in the facts inserted in the record, does amount to piracy. \n3d. That the prisoner is punishable under the provisions of the 8th section of the act of 1790. \n4th. That the act of the 30th of April, 1790, does extend to all persons on board all vessels which throw off their national character by cruizing piratically and committing piracy on other vessels. \n \n\n ", " \nOpinion \n\n \n \n Mr. Chief Justice MARSHALL delivered the opinion of the Court, that a writ of quo warranto could not be maintained except at the instance of the Government, and as this writ was issued by a private individual, without the authority of the Government, it could not be sustained, whatever might be the right of the prosecutor, or of the person claiming to exercise the office in question. The information must, therefore, be dismissed. \nJudgment reversed. \nJUDGMENT. This cause came on to be heard on the transcript of the record of the Circuit Court for the district of Ohio, and was argued by counsel. On consideration whereof, this Court is of opinion, that no writ of quo warranto can be maintained, but at the instance of the Government; and as this is a writ issued by an individual without the authority of Government, it is the opinion of this Court, that the same cannot be sustained, whatever may be the right of that individual, or of the person who claims to exercise the office, to try the title to which, the writ is brought. It is, therefore, the opinion of this Court, that the judgment  of the Circuit Court ought to be reversed, and the cause remanded to that Court, with directions to dismiss the information because it is not filed at the instance of the United States. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Chief Justice MARSHALL delivered the opinion of the Court. This case presents to the consideration of the Court a single question. It is this:  Has Congress a right to impose a direct tax on the District of Columbia? \nThe counsel who maintains the negative has contended; that Congress must be considered in two distinct characters. In one character as legislating for the States;  in the other, as a local legislature for the district. In the latter character, it is admitted, the power of levying direct taxes may be exercised; ut, it is contended, for district purposes only, in like manner as the legislature of a State may tax the people of a State for State purposes. \nWithout inquiring at present into the soundness of this distinction, its possible influence on the application in this district of the first article of the constitution, and of several of the amendments, may not be altogether unworthy of consideration. It will readily suggest itself to the gentlemen who press this argument, that those articles which, in general terms, restrain the power of Congress, may be applied to the laws enacted by that body for the district, if it be considered as governing the district in its character as the national legislature, with less difficulty than if it be considered a mere local legislature. \nBut we deem it unnecessary to pursue this investigation, because we think the right of Congress to tax the district does not depend solely on the grant of exclusive legislation. \nThe 8th section of the 1st article gives to Congress the \"power to lay and collect taxes, duties,  imposts and excises,\" for the purposes thereinafter mentioned. This grant is general, without limitation as to place. It, consequently, extends to all  places over which the government extends. If this could be doubted, the doubt is removed by the subsequent words which modify the grant. These words are, \"but all duties, imposts, and excises, shall be uniform throughout the United States.\" It will not be contended, that the modification of the power extends to places to which the power itself does not extend. The power then to lay and collect duties, imposts, and excises, may be exercised, and must be exercised throughout the United States. Does this term designate the whole, or any particular portion of the American empire? Certainly this question can admit of but one answer. It is the name given to our great republic, which is composed of States and territories. The district of Columbia, or the territory west of the Missouri, is not less within the United States, than Maryland or Pennsylvania;  and it is not less necessary, on the principles of our constitution, that uniformity in the imposition of imposts, duties, and excises, should be observed in  the one, than in the other. Since, then, the power to lay and collect taxes, which includes direct taxes, is obviously co-extensive with the power to lay and collect duties, imposts and excises, and since the latter extends throughout the United States, it follows, that the power to impose direct taxes also extends throughout the United States. \nThe extent of the grant being ascertained, how far is it abridged by any part of the constitution? The 20th section of the first article declares, that \"representatives and direct taxes shall be apportioned among the several States which may be included  within this Union, according to their respective numbers.\" \nThe object of this regulation is, we think, to furnish a standard by which taxes are to be apportioned, not to exempt from their operation any part of our country. Had the intention been to exempt from taxation those who were not represented in Congress, that intention would have been expressed in direct terms. The power having been expressly granted, the exception would have been expressly made. But a limitation can scarcely be said to be insinuated. The words used do not mean, that direct taxes shall be imposed on  States only which are represented, or shall be apportioned to representatives; but that direct taxation, in its application to States, shall be apportioned to numbers. Representation is not made the foundation of taxation. If, under the enumeration of a representative for every 30,000 souls, one State had been found to contain 59,000, and another 60,000, the first would have been entitled to only one representative, and the last to two. Their taxes, however, would not have been as one to two, but as fifty-nine to sixty. This clause was obviously not intended to create any exemption from taxation, or to make taxation dependent on representation, but to furnish a standard for the apportionment of each on the States. \nThe 4th paragraph of the 9th section of the same article will next be considered. It is in these words: \"No capitation, or other direct tax, shall be laid, unless in proportion to the census, or enumeration herein before directed to be taken.\" \n The census referred to is in that clause of the constitution which has just been considered, which makes numbers the standard by which both representatives and direct taxes shall be apportioned among the States. The  actual enumeration is to be made \"within three years after the first meeting of the Congress of the United States, and within every subsequent term of ten years, in such manner as they shall by law direct.\" \nAs the direct and declared object of this census is, to furnish a standard by which \"representatives, and direct taxes, may be apportioned among the several States which may be included within this Union,\" it will be admitted, that the onission to extend it to the district or the territories, would not render it defective. The census referred to is admitted to be a census exhibiting the numbers of the respective States. It cannot, however, be admitted, that the argument which limits the application of the power of direct taxation to the population contained in this census, is a just one. The language of the clause does not imply this restriction. It is not that \"no capitation or other direct tax shall be laid, unless on those comprehended within the census herein before directed to be taken,\" but \"unless in proportion to\" that census. Now this proportion may be applied to the district or terriories. If an enumeration be taken of the population in the district and territories,  on the same principles on which the enumeration of the respective States is made, then the information is acquired by which a direct tax may be imposed on the district and territories, \"in proportion to the  census or enumeration\" which the constitution directs to be taken. \nThe standard, then, by which direct taxes must be laid, is applicable to this district, and will enable Congress to apportion on it, its just and equal share of the burthen, with the same accuracy as on the respective States. If the tax be laid in this proportion, it is within the very words of the restriction. It is a tax in proportion to the census or enumeration referred to. \nBut the argument is presented in another from, in which its refutation is more difficult. It is urged against this construction, that it would produce the necessity of extending direct taxation to the district and territories, which would not only be inconvenient, but contrary to the understanding and practice of the whole government. If the power of imposing direct taxes be co-extensive with the United States, then it is contended, that the restrictive clause, if applicable to the district and territories, requires that  the tax should be extended to them, since to omit them would be to violate the rule of proportion. \nWe think, a satisfactory answer to this argument may be drawn from a fair comparative view of the different clauses of the constitution which have been recited. \nThat the general grant of power to lay and collect taxes, is made in terms which comprehend the district and territories as well as the States, is, we think, incontrovertible. The subsequent clauses are intended to regulate the exercise of this power, not to withdraw from it any portion of the community.  The words in which those clauses are expressed import this intention. In thus regulating its exercise, a rule is given in the 2d section of the first article for its application to the respective States. That rule declares how direct taxes upon the States shall be imposed. They shall be apportioned upon the several States according to their numbers. If, then, a direct tax be laid at all, it must be laid on every State, conformably to the rule provided in the constitution. Congress has clearly no power to exempt any State from its due share of the burthen. But this regulation is expressly confined to the States,  and creates no necessity for extending the tax to the district or territories. The words of the 9th section do not in terms require, that the system of direct taxation, when resorted to, shall be extended to the territories, as the words of the 2d section require that is shall be extended to all the States. They, therefore, may, without violence, be understood to give a rule  when the territories shall be taxed, without imposing the necessity of taxing them. It could scarcely escape the members of the convention, that the expense of executing the law in a territory might exceed the amount of the tax. But be this as it may, the doubt created by the words of the 9th section, relates to the obligation to apportion a direct tax on the territories as well as the States, rather then to the power to do so. \nIf, then, the language of the constitution be construed to comprehend the territories and district of Columbia, as well as the States, that language confers on Congress the power of taxing the district  and territories as well as the States. If the general language of the constitution should be confined to the States, still the 16th paragraph of the 8th section  gives to Congress the power of exercising \"exclusive legislation in all cases whatsoever within this district.\" \nOn the extent of these terms, according to the common understanding of mankind, there can be no difference of opinion; but it is contended, that they must be limited by that great principle which was asserted in our revolution, that prpresentation is inseparable from taxation. \nThe difference between requiring a continent, with an immense population, to submit to be taxed by a government having no common interest with it, separated from it by a vast ocean, restrained by no principle of apportionment, and associated with it by no common feelings; and permitting the representatives of the American people, under the restrictions of our constitution, to tax a part of the society, which is either in a state of infancy advancing to manhood, looking forward to complete equality so soon as that state of manhood shall be attained, as is the case with the territories; or which has voluntarily relinquished the right of representation, and has adopted the whole body of Congress for its legitimate government, as is the case with the district, is too obvious not to present itself to the  minds of all. Although in theory it might be more congenial to the spirit of our institutions to admit a representative from the district, it may be doubted whether, in fact, its interests would be rendered thereby  the more secure; and certainly the constitution does not consider their want of a representative in Congress as exempting it form equal taxation. \nIf it were true that, according to the spirit of our constitution, the power of taxation must be limited by the right of representation, whence is derived the right to lay and collect duties, imposts, and excises, within this district? If the principles of liberty, and of our constitution, forbid the raising of revenue from those who are not represented, do not these principles forbid the raising it by duties, imposts, and excises, as well as by a direct tax? If the principles of our revolution give a rule applicable to this case, we cannot have forgotten that neither the stamp act nor the duty on tea were direct taxes. \nYet it is admitted, that the constitution not only allows, but enjoins the government to extend the ordinary revenue system to this district. \nIf it be said, that the principle of uniformity, established  in the constitution, secures the district from oppression in the imposition of indirect taxes, it is not less true, that the principle of apportionment, also established in the constitution, secures the district from any oppressive exercise of the power to lay and collect direct taxes. \nAfter giving this subject its serious attention, the Court is unanimously of opinion, that Congress possesses, under the constitution, the power to lay and collect direct taxes within the District of Columbia, in proportion to the census directed to be taken by the constitution, and that there is no error in the judgment of the Circuit Court. \nJudgment affirmed. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Chief Justice MARSHALL delivered the opinion of the Court. This was an ejectment brought in the Circuit Court of the United States, for the District of West Tennessee. The plaintiff made title, under a grant from the State of Tennessee, dated in 1808, which comprehended the land in controversy. \nThe defendants claimed under a patent from the State of North Carolina, dated in 1794, containing the following description of the land granted, viz. \"A tract of land containing 5,000 acres, lying and being in our middle district, on the west fork of Cane Creek, the waters of Elk river, beginning at a hiccory running north 1000 poles to a white oak, then east 800 poles to a stake, then south 1000 poles to a stake, thence west 800 poles to the beginning,  as per plat hereunto annexed doth appear.\" \nFor the purpose of designating the land described in this grant, the defendants then gave in evidence the plat and certificate of survey annexed thereto, a certified copy of the entry on which the grant was  issued, and the general plan or plat filed in the cause. They also proved, that this plan or plat was a correct representation of Cane Creek, of the west fork thereof, and of the land claimed by them. They also proved, that in 1806, prior to the entry on which the plaintiff's grant was issued, a survey had been made, and a corner hiccory and white oak, and lines around the said tract, (as the defendants then claimed) were marked; and, prior to the plaintiffs' entry, were esteemed by the people in the neighbourhood to have been marked as the defendants' land. The land in dispute lay within the territory ceded to the United States by the Indians, in 1806, and no actual survey thereof had been made previous to the emanation of the grant. \nUpon this evidence, the counsel for the plaintiff requested the Court to inform the jury, that the said demarcation was not sufficient in law to locate the grant to the spot included in the  said lines; and that the locality of the said lines could not legally be ascertained, either by the plat annexed to the grant, or by the entry or general planf but the Court instructed the jury, that the said demarcation, entry, and general plan, might be used by them for that purpose. \nThe counsel for the plaintiffs excepted to this direction of the Court; and, a verdict and judgment having been given for the defendants, the cause is brought by writ of error before this Court. \nAs the first patentee was a fair purchaser of the quantity of land specified in his grant, and has placed his warrant, which was the evidence of that purchase,  in the hands of the surveyor, a public officer designated by the State to survey the land intended to be granted; and as the land claimed under this grant, was actually surveyed and marked out before the plaintiff made his entry, so as to give him full knowledge of the title of the defendants,  whatever that title might be; the plaintiff can put himself only on the strict law of his case. But to that strict law he is entitled. \nIt is contended, that the Circuit Court erred, 1st. Because the grant, under which the defendants claim,  is absolutely void for uncertainty; and, consequently, no testimony whatsoever ought to have been admitted to give it locality. \nThat disposition, which all Courts ought to feel, to support a grant fairly made for a valuable consideration, receives additional force from the situation in which the titles to land in Tennessee are placed; and the Courts of that State have invariably carried construction as far as could be justified to effect this purpose. \nIt is undoubtedly essential to the validity of a grant, that there should be a thing granted, which must be so described as to be capable to being distinguished from other things of the same kind. But it is not necessary that the grant itself should contain such a description as, without the aid of extrinsic testimony, to ascertain precisely what is conveyed. Almost all grants of land call for natural objects which must be proved by testimony consistent with the grant, but not found in it. Cane Creek, and its west fork, are to be proved by witnesses. So  the hiccory which is to constitute the beginning of a survey of a tract of land to lie on the west fork of Cane Creek. If, in the nature of things, it be impossible  to find this hiccory, all will admit the grant must be void. But if it is not impossible, if we can imagine testimony which will show any particular hiccory to be that which is called for in the grant, then it is not absolutely void for uncertainty, whatever difficulty may attend the location of it. \nNow suppose this grant to have been founded on actual survey; suppose the surveyor and chain carriers to go to the hiccory claimed by the defendants as their beginning, to show it marked as a beginning, to trace a line of marked trees from this beginning around the land, and to prove that this is the very land which was surveyed for the person in whose favour the grant issued. In such a case, the right of the defendants to hold the land would scarcely be questioned. Yet if the patent was void upon its face, these circumstances could not make it good. The grant purports to have been made on an actual survey; and the non-existence of that survey, though it may increase the difficulty of ascertaining the land granted, does not change the face of the instrument. \nIt has been said, that this patent does not call for a marked hiccory, and, therefore, no means exist of distinguishing it from  any other hiccory. But it may have been marked by the surveyor, as corner trees are generally marked, without noticing the fact in the grant; and it is identity, not notoriety, which is the subject of inquiry. \n Could it even have been known by the patentee, or by those who might purchase from him, that the land had not been surveyed, yet a beginning corner might have been marked, and if the beginning be established, the whole tract is easily found. \nWe think, then, that testimony might exist to give locality to this grant, and, therefore, that it is not void on its face for uncertainty. \n2d. We are next to inquiry, whether improper testimony was admitted, and whether the Court misdirected the jury. \nIt has been determined in this Court, that the plat and certificate of survey, annexed to the patent, may be given in evidence; and it has been determined in the Courts of Tennessee, that a copy of the entry on which the survey was made is also admissible. In admitting these papers, then, there was no error. But the Court also admitted what is called a general plan, and a survey made prior to the plaintiff's entry of the land as claimed by the defendants. \nThe bill of exceptions  does not so describe this general plan, as to enable the Court to say, with certainty, what it is. If it is a plan made by authority, in conformity with any act of the legislature, it may be submitted, with other evidence, to the consideration of a jury, to avail, as much as it may, in ascertaining boundary. But the Court has also permitted what is denominated a demarcation, which we understand to be a private survey made by direction of a party interested under the grant, and assented to by the defendants, to be given in evidence. \n This private survey might have been made on any other part of the west fork of Cane Creek, with as much propriety as on that where it has been made. It would have been equally admissible if placed any where else on that stream. To allow it any weight, would be to allow the grantee to appropriate, by force of a grant, lands not originally appropriated by that grant. This would subvert all those principles relative to conveyances of land which we have been accustomed to consider as constituting immutable rules of property. \nThe legislature of Tennessee has certainly not supposed that any individual possessed this power of fixing vagrant grants.  In the act of 1807, ch. 2. they have enacted, that any person claiming under a grant from the State of North Carolina, issued \"on a good and valid warrant, the locality of which said grant cannot be ascertained, on account of the vagueness of the calls by the surveyor, or from the calls and corners of the said survey becoming lost or destroyed, or on account of the surveyor and chain carriers being deceased, so that the marks and corners cannot be established, shall be entitled to obtain a grant for the same quantity of land called for in said grant.\" \nThis liberal provision would have been totally unnecessary if the grantee might have remedied every uncertainty in his patent by his own act. If under his patent he might survey any vacant land he chose, the privilege of obtaining a new patent would be a very useless one. \n It is obvious, that the legislature did not suspect the existence of this power to make new boundaries where none before had been made, or where none could be found. Neither, as we understand the cases, has this principle been established by the Courts of Tennessee. The case relied on for this purpose, is the heirs and devisees of Williamson v. Buchanan,  (2 Ten. Rep. 278.) \nIn this case, Judge White was of opinion, that the land was ascertained by the calls of the  patent, without resorting to the survey and marks made subsequent to its emanation. Both his argument, and his language, in coming to this conclusion, indicate the opinion that Buchanan's claim to the land in controversy depended on it. After having come to this conclusion, however, he throws out some hints calculated to suggest the idea, that these modern marks might possibly have been considered, had the case required it, as the renewal of ancient ones which had been destroyed. But these hints seem rather to have been intended to alarm those who were taking up land held by others under ancient grants, whose boundaries were not accurately defined, except by those modern marks, than to give any positive opinion on the point. At any rate, these suggestions were made in a case where the patent, as construed by the Judge, called to adjoin the upper line of another tract, and its general position was, consequently, ascertained. In such a case, where the body of the land was placed, its particular boundaries might be ascertained by testimony which not be deemed   sufficient where the patent contained no description which would fix its general position. \nJudge Overton, who also sat in this cause, gave more importance to the marks newly made; yet, his opinion too seems to be founded on the fact, that the body of the land was fixed by the description contained in the patent. \"Before the plaintiffs made their entry,\" he said, \"new marks for a corner were shown, running from which the courses of the grant, land would be included, sufficiently notorious in point of conformity with the calls of the grant. The general description, both of the entry and the grant, reasonably agrees with the locality of the land by these new marks.\" He then argues, that these new marks may be considered as replacing others which had been originally made. \nThe case, however, did not depend on this point, and it was not decided. Had it ever been decided, this Court would have felt much difficulty in considering a decision admitting marks as auxiliary evidence to prove precise boundary, in a case where the patent was admitted to contain a description sufficiently certain to place the body of the land, as authority for the admission of marks made by the party  himself, in a case where the patent only places the land on a stream, with the length of which we are unacquainted. \nWe think, then, that the Circuit Court erred in instructing this jury, that they might use this demarcation for the purpose of ascertaining the land contained in the grant under which the defendants claimed, and for this error the judgment must be reversed. \nDissent by:", " \nOpinion \n\n \n \n  Mr. Chief Justice MARSHALL delivered the opinion of the Court. This was an ejectment brought in the Circuit Court of the United States for the District of Kentucky, to recover land which the plaintiff claims under a grant from the State  of Kentucky, and which the defendants hold under a grant from the United States, as being part of Indiana. The title depends upon the question whether the lands lie in the State of Kentucky, or in the State of Indiana. \nAt this place, as appears from the plat and surveyor's certificate, the Ohio turns its course, and runs southward for a considerable distance, and then takes a northern direction, until it approaches within less than three miles, as appears from the plat, of the place where its southern course commences. A small distance above the narrowest part of the neck of land which is thus formed, a channel, or what is commonly termed in that country a bayou, makes out of the Ohio, and enters the same river a small distance below the place where it resumes its westward course. This channel, or bayou, is about nine miles by its meanders, three miles and a half in a straight line, and from four to five poles wide. The circuit made by the river appears to be from  fifteen to twenty miles. About mid-way of the channel two branches empty into it from the northwest, between six and seven hundred yards from each other; the one of which runs along the channel at low water,  eastward, and the other westward, until they both enter the main river. Between them is ground over which the waters of the Ohio do not pass until the river has risen about ten feet about its lowest state. It rises from forty to fifty feet, and all the testimony proves that this channel is made by the waters of the river, not of the creeks which empty into it. The people who inhabit this peninsula, or island, have always paid taxes to Indiana, voted in Indiana, and been considered as within its jurisdiction, both while it was a Territory, and since it has become a State. The jurisdiction of Kentucky has never been extended over them. \nThe question whether the lands in controversy lie within the State of Kentucky or of Indiana, depends chiefly on the land law of Virginia, and on the cession made by that State to the United States. \nBoth Kentucky and Indiana were supposed to be comprehended within the charter of Virginia at the commencement of the war of our revolution. At an early period of that war, the question whether the immense tracts of unsettled country which lay within the charters of particular States, ought to be considered as the property of those States, or as an acquisition  made by the arms of all, for the benefit of all, convulsed our confederacy, and threatened its existence. It was probably with a view to this question that Virginia, in 1779, when she opened her  land office, prohibited the location or entry of any land \"on the northwest side of the river Ohio.\" \nIn September, 1780, Congress passed a resolution, recommending \"to the several States, having claims to waste and unappropriated lands in the western country, a liberal cession to the United States, of a portion of their respective claims, for the common benefit of the Union.\" And in January, 1781, the Commonwealth of Virginia yielded to the United States \"all right, title, and claim, which the said Commonwealth had to the territory northwest of the river Ohio, subject to the conditions annexed to the said act of cession.\" One of these conditions is, \"that the ceded territory shall be laid out and formed into States.\" Congress accepted this cession, but proposed some small variation in the conditions, which was acceded to; and in 1783 Virginia passed her act of confirmation, giving authority to her members in Congress to execute a deed of conveyance. \nIt was intended then by Virginia,  when she made this cession to the United States, and most probably when she opened her land office, that the great river Ohio should constitute a boundary between the States which might be formed on its opposite banks. This intention ought never to be disregarded in construing this cession. \nAt the trial, the counsel for the defendants moved the Court to instruct the jury, \n1. That the lessor of the plaintiff cannot recover, the land in contest not being at any time subject to the laws of Kentucky, but to those of Indiana. \n 2. Because the evidence does not show that the land is within the limits of the State of Kentucky. \nThe Court instructed the jury that, admitting that the western and northwestern boundary of Kentucky included all the islands of the Ohio, and extended to the western and northwestern bank of the Ohio, yet no land could be called an island of that river, unless it was surrounded by the waters of the Ohio at low water mark; and to low water mark only, on the western or northwestern side of the Ohio, did the boundaries of the State of Kentucky extend. \nThe counsel for the plaintiff excepted to this opinion, and then moved the Court to instruct the jury,  that if they found the land in question was covered by the grant to the lessor of the plaintiff, and that it was surrounded by a regular water channel of the Ohio on the northwestern  side, and was, at the middle and usual state of the water in the Ohio, embraced and surrounded by the water of the Ohio, flowing in said channel, it was an island, and within the State of Kentucky. But the Court refused to give the instructions aforesaid, but instructed the jury, that if the water did not run through said channel at low water, but left part thereof dry, it was not an island, nor within the State of Kentucky. \nTo this opinion, also, the counsel for the plaintiff excepted. The jury found a verdict for the defendants, on which the Court rendered judgment; which judgment is now before this Court on a writ of error. \nThe two exceptions present substantially the same questions to the Court, and may therefore be considered  together. They are, whether land is properly denominated an island of the Ohio, unless it be surrounded with the water of the river, when law? and whether Kentucky was bounded on the west and northwest by the low water mark of the river, or at its  middle state? or, in other words, whether the State of Indiana extends to low water mark, or stops at the line reached by the river when at its medium height? \nIn pursuing this inquiry, we must recollect that it is not the bank of the river, but the river itself, at which the cession of Virginia commences. She conveys to Congress all her right to the territory \"situate, lying, and being, to the northwest of the river Ohio.\" And this territory, according to express stipulation, is to be laid off into independent States. These States, then, are to have the river itself, wherever that may be, for their boundary. This is a natural boundary, and in establishing it, Virginia must have had in view the convenience of the future population of the country. \nWhen a great river is the boundary between two nations or states, if the original property is in neither, and there be no convention respecting it, each holds to the middle of the stream. But when, as in this case, one State is the original proprietor, and grants the territory on one side only, it retains the river within its own domain, and the newly-created State extends to the river only. The river, however, is its boundary. \n\"In  case of doubt,\" says Vattel, \"every country lying upon a river, is presumed to have no other  limits but the river itself; because nothing is more natural than to take a river for a boundary, when a state is established on its borders; and wherever there is a doubt, that is always to be presumed which is most natural and most probable.\" \n\"If,\" says the same author, \"the country which borders on a river, has no other limits than the river itself, it is in the number of territories that have natural or indetermined limits, and it enjoys the right of alluvion.\" \nAny gradual accretion of land, then, on the Indiana side of the Ohio, would belong to Indiana, and it is not very easy to distinguish between land thus formed, and land formed by the receding of the water. \nIf, instead of an annual and somewhat irregular rising and falling of the river, it was a daily and almost regular ebbing and flowing of the tide, it would not be doubted that a country bounded by the river would extend to low water mark. This rule has been established by the common consent of mankind. It is founded on common convenience. Even when a State retains its dominion over a river which constitutes the  boundary between itself and another State, it would be extremely inconvenient to extend its dominion over the land on the other side, which was left bare by the receding of the water. And this inconvenience is not less where the rising and falling is annual, than where it is diurnal. Wherever the river is a boundary between States, it is the main, the permanent river, which constitutes that boundary; and the mind will find  itself embarrassed with insurmountable difficulty in attempting to draw any other line than the low water mark. \nWhen the State of Virginia made the Ohio the boundary of States, she must have intended the great river Ohio, not a narrow bayou into which its waters occasionally run. All the inconvenience which would result from attaching a narrow strip of country lying on the northwest side of that noble river to the States on its southeastern side, would result from attaching to Kentucky, the State on its southeastern border, a body of land lying northwest of the real river, and divided from the main land only by a narrow channel, through the whole of which the waters of the river do not pass, until they rise ten feet above the low water mark. \nThe  opinions given by the Court must be considered in reference to the case in which they were given. The sole question in the cause respected the boundary of Kentucky and Indiana; and the title depended entirely upon that question. The definition of an island which the Court was requested to give, was either an abstract proposition, which it was unnecessary to answer, or one which was to be answered according to its bearing on the facts in the cause. The definition of an island was only material, so far as that defintion might aid in fixing the boundary of Kentucky. In the opinion given by the Court on the motion made by the counsel for the defendants, they say, that \"no land can be called an island of the Ohio, unless it be surrounded by the waters of that river at low water mark.\" We  are not satisfied that this definition is incorrect, as respected the subject before the Court; but it is rendered unimportant, by the subsequent member of the sentence, in which they say, \"that to low water mark only, on the western and northwestern side of the Ohio, does the State of Kentucky extend.\" \nSo, in the motion made by the counsel for the plaintiff, the Court was requested to  say, that if the waters of the Ohio flowed in the channel, in its middle and usual state, it was not only an island, but \"within the State of Kentucky.\" \nIf the land was not within the State of Kentucky, the Court could not give the direction which was requested. The Court gave an instruction substantially the same with that which had been given on the motion of the defendant's counsel. \nIf it be true, that the river Ohio, not its ordinary bank, is the boundary of Indiana, the  limits of that State can be determined only by the river itself. The same tract of land cannot be sometimes in Kentucky, and sometimes in Indiana, according to the rise and fall of the river. It must be always in the one State, or the other. \nThere would be little difficulty in deciding, that in any case other than land which was sometimes an island, the State of Indiana would extend to low water mark. Is there any safe and secure principle, on which we can apply a different rule to land which is sometimes, though not always, surrounded by water? \nSo far as respects the great purposes for which the river was taken as the boundary, the two cases  seem to be within the same reason, and  to require the same rule. It would be as inconvenient to the people inhabiting this neck of land, separated from Indiana only by a bayou or ravine, sometimes dry for six or seven hundred yards of its extent, but separated from Kentucky by the great river Ohio, to form a part of the last mentioned State, as it would for the inhabitants of a strip of land along the whole extent of the Ohio, to form a part of the State on the opposite shore. Neither the one nor the other can be considered as intended by the deed of cession. \nIf a river, subject to tides, constituted the boundary of a State, and at flood the waters of the river flowed through a narrow channel, round an extensive body of land, but receded from that channel at ebb, so as to leave the land it surrounded at high water, connected with the main body of the country; this portion of territory would scarcely be considered as belonging to the State on the opposite side of the river, although that State should have the property of the river. The principle that a country bounded by a river extends to low water mark, a principle so natural, and of such obvious convenience as to have been generally adopted, would, we think, apply  to that case. We perceive no sufficient reason why it should not apply to this. \nThe case is certainly not without its difficulties; but in great questions which concern the boundaries of States, where great natural boundaries are established in general terms, with a view to public convenience, and the avoidance of controversy, we think the great object, where it can be distinctly perceived,  ought not to be defeated by those technical perplexities which may sometimes influence contracts between individuals. The State of Virginia intended to make the great river Ohio, throughout its extent, the boundary between the territory ceded to the United States and herself. When that part of Virginia, which is now Kentucky, became a separate State, the river was the boundary between the new States erected by Congress in the ceded territory, and Kentucky. Those principles and considerations which produced the boundary, ought to preserve it. They seem to us to require, that Kentucky should not pass the main river, and possess herself of lands lying on the opposite side, although they should, for a considerable portion of the year, be surrounded by the waters of the river flowing  into a narrow channel. \nIt is a fact of no inconsiderable importance in this case, that the inhabitants of this land have uniformly considered themselves, and have been uniformly considered, both by Kentucky and Indiana, as belonging to the last mentioned State. No diversity of opinion appears to have existed on this point. The water on the north western side of the land in controversy, seems not to have been spoken of as a part of the river, but as a bayou. The people of the vicinage, who viewed the river in all its changes, seem not to have considered this land as being an island of the Ohio, and as a part of Kentucky, but as lying on the north western side of the Ohio, and being a part of Indiana. \n The compact with Virginia, under which Kentucky became a State, stipulates, that the navigation of, and jurisdiction over, the river, shall be concurrent between the new States, and the States which may possess the opposite shores of the said river. This term seems to be a repetition of the idea under which the cession was made. The shores of a river border on the water's edge. \n Judgment affirmed, with costs, \n \n\n ", " \nOpinion \n\n \n \n  Mr. Chief Justice MARSHALL delivered the opinion of the Court. The questions submitted to the  Court on the statement of facts made by the parties were, 1st. \"Whether the said letters so offered by the defendants, or any of them, are competent and sufficient evidence to prove what matters of dispute or controversy were submitted to the said arbitrators under the said bond?\" \n2d. \"Whether the said award in the terms aforesaid, or taken in connexion with the evidence so offered by the defendant,  (if such evidence be decided by the Court to be competent and admissible,) is valid, and sufficient in law?\" \nThe matter contained in the letters was pleaded by the defendant in his rejoinder, as being part of the subject in controversy, and is, consequently, confessed by the demurrer. Had the demurrer been argued, therefore, the first question could not have arisen. But as a statement of facts has been substituted for the demurrer, we presume, the question respecting the admissibility of the evidence offered by the defendant is to be considered as if issue had been joined on the fact stated in the rejoinder. So considering it, there is, we think, no doubt of the admissibility of the testimony, nor of its competency, taken in connexion with the award itself, to prove, that a dispute existed respecting the lands mentioned in those letters, which was brought before the arbitrators. \nWe proceed to the second question, which respects the validity of the award. \nThe first exception taken to this award is, that it omits to state, whether the sum due from Jerusha Dennison, was due from her in her own right, or as  administratrix of Gideon Dennison. The claims upon her in both  characters, are submitted to the referees; and they ought to have decided upon all, and to have distinguished between those which she was required to pay in her representative character, and those for which she was bound personally. Had this case been depending in Chancery, where alone the two claims could have been united in one suit, the Chancellor would unquestionably have discriminated between them; and would, in his decree, have ascertained in what character the whole sum was to be paid, or how much was to be paid in each. If this award was made against Mrs. Dennison as administratrix, she would not only be deprived  by its form, of the right to plead a full administration, (a defence which might have been made before the arbitrators, and on which their award does not show certainly, that they have decided,) but also of the right to use it in the settlement of her accounts as conclusive evidence, that the money was paid in her representative character. If this objection to the award is to be overruled, it must be on the supposition, that it is made against her personally; yet the statement of facts shows the claim against her to be in her representative character.  There is certainly a want of precision in this part of the award, which exposes it to solid objection, and might subject Mrs. Dennison to serious inconvenience. \nThe second exception to which the Court will advert, affect still more deeply the merits of the award, as well as its justice. \nIt is apparent from the pleadings in the cause,  from the facts stated, and from the award itself, that titles to land were deposited by Gideon Dennison, in his lie time, with the plaintiffs, as collateral security for the debt claimed by them; and that the conveyances purported to be absolute. Not only was there uncertainty as to the right of redemption; but it was, so far as the Court can discover, absolutely uncertain what lands had been so conveyed. \nThis subject appears to have been brought before the arbitrators, and they have awarded upon it.Is their award sufficiently certain to give Jerusha Dennison the benefit they intended her? They have awarded \"that the said Joshua B. Bond and James Lyle, shall reconvey or release as the case may require, all lands heretofore conveyed or pledged to them, by the late Gideon Dennison, as a collateral security.\" The award does not determine  what lands were so conveyed. If the arbitrators had directed that all the lands conveyed or pledged by Gideon Dennison should be reconveyed, there would have been some difficulty in ascertaining what lands had been conveyed or pledged, from the uncertainty where deeds might have been recorded, and whether grants might not have been deposited without a conveyance; but they have directed that those lands only shall be reconveyed, which had been conveyed or pledged as collateral security. No one of these deeds exhibited on its face any mark of its being made as a collateral security. The question, whether a conveyance was absolute, or as a security only, was a material question, which ought to have been decided by the arbitrators. They have not decided  it, but have left it open to be decided by the parties themselves, or by some other tribunal. This is a very important part of the award, and with respect to this subject, it is incomplete. It is obviously as uncertain now, as it was before the award was made, what lands had been conveyed or pledged to Gideon Dennison as collateral security. This part of the award then is void, and the question is, whether that part which  directs the payment of money be void also? \nThat an award may be void in part, and good for the residue, will be readily admitted; but if that part which is void be so connected with the rest as to affect the justice of the case between the parties, the whole is void. 9 There is great good sense in this distinction. If A. be directed to pay B. $ 100, and also to do some other act not well enough defined to be obligatory, there is no reason why B. should not have his $ 100, because he cannot also get that other thing which was intended for him. But if A. be directed to pay B. $ 100, and B. to do something for the benefit of A., which is not so defined as to enable A. to obtain it, there is much reason why A. should not pay the $ 100; since he cannot obtain that which the arbitrators as much intended he should receive, as that he should pay the sum awarded against him. \nThe cause in 2 Saunders, 292, is in point. In that case the arbitrators awarded, that William Pope  should be satisfied and paid by John Brett, the money due and payable to the said William Pope, as well for task work as for day work, and then the said William should pay to the said John  the sum of # 25 lawful money of England. Mutual releases were also awarded. \nIt was admitted that so much of the award as directed payment to be made for task workk and day work, was void for uncertainty, inasmuch as the arbitrator had not ascertained how much was to be paid on those accounts; but it was contended that the award was good for the residue, inasmuch as enough remained to make it mutual. But the Court said, \"that if the clause of task work and day work be void, as it is admitted to be, the whole award is void, for it appears that William Pope was awarded to pay the # 25, and to give a general release, upon a supposition by the arbitrator, that he should be paid the task work and day work by virtue of that award; and that not being so, it was not the intention of the arbitrators, as appears by the award itself, that he should pay the money, and give a general release, and yet receive nothing for the task work and day work, as by reason of the uncertainty of the award in that part he could not.\" \nThe application of this case to that under consideration is complete. The award to reconvey all lands heretofore conveyed or pledged to the plaintiffs by Gideon Dennison, in  his life time, as collateral security, is as uncertain as the award to pay for task work and day work already performed; it was as much  the intention of the arbitrators that the parts of their award which are favourable to the different parties should be dependent on each other in this case, as in the case of Pope v. Brett. The arbitrators never could have designed that Bond and Lyle should get their money, and retain their deposits. \nIn his note upon this case, Sergeant Williams says, \"If by the nullity of the award in any part, one of the parties cannot have the advantage intended him as a recompense or consideration, for that which he is to do to the other, the award is void in the whole.\" \nThis just principle must always remain a part of the law of awards. \nThe objection to the part of the award which has been considered, applies equally to that part of it which respects bonds, notes, bills, or other securities. \nJudgment affirmed. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Chief Justice MARSHALL delivered the opinion of the Court. This was an ejectment brought by the plaintiff in the Circuit Court of the United States, for the District of Kentucky, to recover a lot of ground lying in Bardstown.  This town was laid off in 1780, on a tract of land consisting of 1000 acres, for which, in 1785, a patent was issued by the Commonwealth of Virginia to Bard and Owings. In 1788, the legislature of Virginia passed an act, vesting 100 acres, part of this tract, in trustees, to be laid off in lots, some of them to be given to settlers, and others to  be sold for the benefit of the proprietors. The cause depends, mainly, on the validity of this act. It is contended to be a violation of that part of the Constitution of the United States, which forbids a State to pass any law impairing the obligation of contracts. \nMuch reason is furnished by the record for presuming the consent of the proprietors to this law; but the Circuit Court has decided the question independently of this consent, and that decision in now to be reviewed. \nBefore we determine on the construction of the Constitution in relation to a question of this description, it is necessary to inquire whether the provisions of that instrument apply to any acts of the State legislatures which were of the date with that which it is now proposed to consider. \nThis act was passed in the session of 1788. Did the Constitution of the United States then operate upon it? \nIn September, 1787, after completing the great work in which they had been engaged, the Convention resolved that the Constitution should be laid before the Congress of the United States, to be submitted by that body to Conventions of the several States, to be convened by their respective legislatures;   and expressed the opinion, that as soon as it should be ratified by the Conventions of nine States, Congress should fix a day on which electors should be appointed by the States, a day on which the electors should assemble to vote for President and Vice President, \"and the time and place for commencing proceedings under this Constitution.\" \nThe Conventions of nine States having adopted the Constitution, Congress, in September or October, 1788, passed a resolution in conformity with the opinions expressed by the Convention, and appointed the first Wednesday in March of the ensuing year as the day, and the then seat of Congress as the place, \"for commencing proceedings under the Constitution.\" \nBoth Governments could not be understood to exist at the same time. The new Government did not commence until the old Government expired. It is apparent that the Government did not commence on the Constitution being ratified by the ninth State; for these ratifications were to be reported to Congress, whose continuing existence was recognised by the Convention, and who were requested to continue to exercise their powers for the purpose of bringing the new government into operation. In fact, Congress  did continue to act as a government until it dissolved on the first of November, by the successive disappearance of its members. It existed potentially until the 2d of March, and day preceding that on which the members of the new Congress were directed to assemble. \nThe resolution of the Convention might originally  have suggested a doubt, whether the Government could be in operation for every purpose before the choice of a President; but this doubt has been long solved, and were it otherwise, its discussion would be useless, since it is apparent that its operation did not commence before the first Wednesday in March, 1789, before which time Virginia had passed the act which is alleged to violate the Constitution. \nIn the trial of the cause, the defendant produced a witness to prove that the lot for which the suit was instituted, was a part of the 100 acres vested in trustees by the act of assembly. To this testimony the plaintiff objected, because the witness stated, that he had sold a lot in Bardstown, with warranty, and was in possession of another. He added, that no suit had been brought for the said lot, and that he was not interested in this suit. The Court admitted  the witness, and to this opinion also a bill of exceptions was taken. \nIt is so apparent that the witness had no interest in the suit in which he was examined, and it is so well settled that only an interest in that suit could affect his competency, as to make it unnecessary to say more, than that the Court committed no error in permitting his testimony to go to the jury. \nThere was also an exception taken to the opinion of the Court in allowing the book of the board of trustees, in which their proceedings were recorded, and other records belonging to the corporation, to be given in evidence. \nThe book was proved by the present clerk, who also proved the handwriting of the first  clerk, and of  the President, who were dead. The Trustees were established by the legislature for public purposes. The books of such a body are the best evidence of their acts, and ought to be admitted whenever those acts are to be proved. There was no error in the opinion admitting them. \nThere is the less necessity in this case for entering more fully into this question, because the record contains other evidence of the facts, which the testimony, to which exceptions were taken,  was adduced to prove. \nJudgment affirmed, with costs. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Chief Justice MARSHALL delivered the opinion of the Court. This is an appeal from a decree of the Circuit Court for the district of Pennsylvania, dismissing the bill of the plaintiffs. \nWithout going into the merits of the case, the counsel for the palintiffs contend, that the decree ought to be reversed, because it appears to have been pronounced in part on parol testimony, which has not been introduced into the record, and because the decree was made when the parties interested were not all before the Court. \nThe laws of the United States have always proceeded on the supposition, that in revising decrees  in Chancery, the facts, as well as the law, should be laid before this Court. The judiciary act, which directs that the mode of proof shall be by oral testimony, and that witnesses shall be examined, in open Court, also directs that a statement of facts shall be placed on the record. The act of 1802 leaves it to the discretion of the Courts in those States where testimony in Chancery is taken by depositions, to order, on the request of either party, the testimony of the witnesses to be taken by depositions. \nThe act of 1803 repeals those parts of the judiciary act which authorize a writ of error, and a statement of facts in Chancery cases; allows an appeal from the decrees of a Circuit Court sitting in Chancery; and directs that a copy of the bill, answer, depositions, and all other proceedings, of what kind soever. In the cause, shall be transmitted to this Court, and that no new evidence shall be heard. \n Previous to this act, the facts were brought before this Court by the statement of the judge. The depositions are substituted for that statement; and it would seem, since this Court must judge of the fact, as well as the law, that all the testimony which was before  the Circuit Court ought to be laid before this court. Yet the section which directs that witnesses shall be examined in open Court, is not, in terms, repealed. \nThe Court has felt considerable doubts on this subject, but thinks it the safe course to require that all the testimony on which the judge founds his opinion, should, in cases within the jurisdiction of this Court, appear in the record. The parties may certainly waive testimony by consent, but if this consent does not appear, it cannot be presumed; and where it is shown on the record that witnesses were examined in open Court, this Court cannot say how much the opinion of the Circuit Court was influenced, and ought to have been influenced, by their testimony. \nIn this case an interlouctory decree was rendered, whcih decided, to a great extent, the merits of the cause, at a time when one of the defendants named in the bill was not before the Court, and when it appeared that a person not made a defendant was deeply concerned in interest. This decree granted relief on certain conditions, to certain classes of the plaintiffs, and directed them to appear before commissioners, and to exhibit their proof that they came within the  descriptions of persons who were entitled to relief. They refused to appear before these commissioners;  and upon the coming in of the report, stating this fact, their bill was dismissed with costs. \nThe object of this will to obtain conveyances from John and William Penn of certain lands which they were supposed to hold as tenants in common, and to which the plaintiffs asserted an equitable title. It was irregular to make the decree which was made respecting the title, until both the defendants were before the Court. But it is the fault of the plaintiffs that they were not. The bill prays conveyances of the legal title on the payment of so much money as was still due on certain principles on which they allege their equitable title to have been acquired. It was referred to commissioners to ascertain the amount of these sums, as wen as to class the respective claimants according to the interlocutory decree. They refuse to appear before the commissioners, and to exhibit either their equitable titles, or to show the payments they have made. On what pretence can such plaintiffs claim the aid of a Court of Equity? What is a Court to do in such a state of things? Where  a party asking its aid refuses to comply with the conditions on which that aid must depend, a Court is certainly correct in refusing its aid, and may dismiss the bill. But in such a case, we think it would be harsh to make the decree of dismission a bar to a future action. It is not certain that this decree is on such a hearing as to be a bar to a future action; and this point is not positively decided. It is unnecessary to decide it, because we think the interlocutory decree was irregular, and ought not to have been made until William Penn, a tenant in common  with John  Penn, was before the court. The defendants are left at liberty to proceed with their legal title, and this must be sufficient to prevent the plaintiffs from practising unnecessary delays. \nFor the irregularities which have been stated, we think the decree ought to be reversed, and the cause remanded, that the proper proceedings may be had therein. \nDECREE. This cause came on to be heard on the transcript of the record, and was argued by counsel. On consideration whereof, this Court is of opinion, that the parol testimony stated by the Circuit Court, in the interlocutory decree, to have  been heard at the trial, ought to have appeared in the record, and that the interlocutory decree ought not to have been pronounced until William Penn was before the Court by his answer, or otherwise. This Court is, therefore, of opinion, that the decree of the Circuit Court for the district of Pennsylvania, dismissing the bill of the plaintiffs, ought to be reversed, and the same is hereby reversed, and the cause is remanded, that farther proceedings may be had therein, according to equity. All which is ORDERED and DECREED accordingly. \n \n\n ", " \nOpinion \n\n \n \n Mr. Chief Justice MARSHALL delivered the opinion of the Court, that it had no jurisdiction of the cause, as the District Judge could not sit in the Circuit Court on a writ of error from his own decision, and consequently there could be no division of opinion to be certified to this Court. 1 \n  JUDGMENT. This cause came on to be heard on the transcript of the record of the Circuit Court for the District of Pennsylvania, and was argued by counsel. On consideration whereof, it was ADJUDGED and ORDERED, that the said cause be remanded to the said Circuit Court, it not appearing from the said transcript that this Court has jurisdiction in said cause. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Chief Justice MARSHALL delivered the opinion of the Court. \nThis is a writ of error to a judgment rendered by the Circuit Court for the District of Columbia, sitting in Alexandria, in an action of debt; and the case depends on the laws of Virginia, as they stood when jurisdiction over the District was first exercised by Congress. \nBy the law of Virginia, the proceedings, until an issue is made up in a cause, are taken in the clerk's office  at monthly rules, and judgments by default become final on the last day of the succeeding term, till which day the defendant in any such action has a legal right to set the judgment aside, and to plead to issue. The Circuit Court held its regular session in April, 1818, and continued to sit regularly till the 16th day of May, when it adjourned to the fourth Monday of the following June. The clerk, considering the day on which the Court adjourned as the last day of the term, and the judgments at the rules as having, on that day, become final, issued an execution on one of these judgments, which had been obtained by the plaintiffs against Cave Withers and his common bail. When the Court met in June, the defendant appeared, and, on motion, was allowed to set aside the office judgment, give special bail, and plead to issue. The execution was, consequently, quashed. In the course of the term judgment  was confessed by the defendant, for the sum claimed in the declaration, and a writ of error was then sued out, the object of which was to reverse the last judgment, and  set aside all proceedings subsequent to the 16th of May, on the idea, that the judgment rendered  at the rules became final on that day. \nThe sole question in the cause is, whether the adjournment from the 16th of May to the fourth Monday in June, was a continuation of the April term, or constituted a distinct term? \nThere being nothing in any act of Congress which prevents the Courts of the District from exercising a power common to all Courts, that of adjourning to a distant day; the adjournment on the 16th of May to the fourth Monday in June, would be a continuance of the same term, unless a special act of Congress, expressly enabling the Courts of the District to hold adjourned sessions, may be supposed to vary the law of the case. That act is in these words: \"And the said Courts are hereby invested with the same power of holding adjourned sessions that are exercised by the Courts of Maryland.\" These words do not, in themselves, purport to vary the character of the session. They do not make the adjourned session a distinct session. They were, probably, inserted from abundant caution, and are to be ascribed to an apprehension, that Courts did not possess the power to adjourn to a distant day, until they should be enabled so to do by a legislative act. But this act, affirming  a pre-existing power, ought not to be construed to vary the nature of that power, unless words are employed which manifest  such intention. In this act, there are no such words, unless they are found in the reference to the Courts of Maryland. But on inquiry, we find, that in Maryland, an \"adjourned session\" is considered as the same session with that at which the adjournment was made. Since, then, the term at which this conditional or office judgment was to become final, was still continuing when it was set aside, and the defendant permitted to plead to the declaration, there was no error in that proceeding. \nJudgment affirmed. \n \n\n ", "Opinion by:  MARSHALL \nOpinion \n\n \n \n  This cause was argued at the last term, and at the present term the opinion of the Court was delivered by Mr. Chief Justice MARSHALL. \nThis was an action of ejectment instituted by the defendants in error against the plaintiffs, to recover 640 acres of land in Montgomery county. Upon the trial in the Court below, the lessors of the plaintiffs, in support of their title, read in evidence a grant  from the State of North Carolina to Stokeley Donaldson, dated the 12th of January, 1797; also a deed for the same land from the said Donaldson to John Love, dated the 13th of January, 1797, and registered in Montgomery county, on the 25th of July, 1815, upon a probate made in the County Court of Grange county, at May term of the said Court, 1814. \nThe defendants in that Court, to support their title, read in evidence a transcript of a record from the County Court of Montgomery county, at their July session of 1801, as follows, viz: \n\"Haydon Wells, who was appointed by the Court of January term, 1801, to receive the list of taxable property in Captain Boyd's company, reports to Court a list of taxable property in the county of Montgomery, not  listed for the year 1799, nor taxes paid thereon, to wit: among others, 'Stokeley Donaldson 2,560 acres on Yellow Creek waters.' \"HAYDON WELLS, T. P.\" \n\"Ordered, that the clerk make out a certificate of lands and tenements reported by Haydon Wells, Esq. for the year 1799, that are liable to the payment of taxes, agreeably to the 14th section of 'an act to ascertain what property in this State shall be deemed taxable, and the mode of collecting, accounting for, and paying public taxes.' And now, to wit, at January term, 1802, the following proceedings were had thereon, to wit, on motion, it is ordered, adjudged, and decreed, that the tracts of land entered in the names of the following persons, be subject  to the payment of taxes due thereon, agreeably to report of Haydon Wells, Esq. receiver of taxable property, as delinquent for the year 1799, agreeably to law, and that execution issue accordingly:\" (among others,) Stokeley Donaldson, 11 dollars 90 cents.Upon which order or judgment, an execution, bearing date the fourth Monday in March, 1802, was issued to the sheriff of Montgomery county, commanding him, that of the lands of Stokeley Donaldson, reported to be in arrears  for taxes for the year 1799, he cause to be made the sum of 11 dollars 90 cents, as, also, the sum of 1 dollar 40 cents, and charges, &c. Upon this execution the sheriff made the following return: \n\"Levied on 2133, and advertised agreeably to the old; not sold, because the new act which requires it to be advertised in the Gazette did not come forward till the day of sale. \n\"JOHN SAUNDERS, Sheriff M. C.\" \nOn the 1st of May, 1802, an alias execution issued, bearing date the fourth Monday in April, 1802, in the words of the former, on which the sheriff made the following return: \"The within land sold agreeably to law, on the 23d of July, 1802; at seven mills per acre.\" They also read in evidence a deed from John Cocke, Sheriff of Montgomery county, to Samuel Vance, one of the defendants, dated the 14th of April, 1808, reciting, that  whereas John Saunders, late Sheriff of Montgomery county, did, on the 23d of July, 1802; by virtue of an execution or order of sale, to him directed, from the Court of  Montgomery county, expose to sale 2,560 acres of land granted to Stokeley Donaldson, or so much thereof as would be sufficient to satisfy the taxes due thereon for the  year 1799, agreeably to an act of Assembly in such cases made and provided. And whereas Morgan Brown became the purchaser of 2,229 6-7 acres of the said land at seven mills per acre, he being the highest and best bidder. the taxes and costs due thereon being 17 dollars 10 cents; and the said Morgan Brown having authorized a deed to be made therefor to Samuel Vance: Now, the said John Cocke, in consideration of the said sum being paid to the said John Saunders, Sheriff, &c. doth sell and convey the said 2,229 6-7 acres of land, &c. The said deed then described one tract of 640 acres, the tract in question; also, two other tracts of 640 acres each; also, one other part of a survey of land of 309 acres granted to Stokeley Donaldson. \nThe lessors of the plaintiffs then introduced grants from the State of North Carolina to Stokeley Donaldson, all dated about the same time, for two different tracts of land of 640 acres each, a part of which are those described in the said Sheriff's deed, all lying upon the waters of Yellow Creek, and proved that the same lay in one connection of surveys adjoining each other, but those described in the Sheriff's deed were of much the greatest value. \nUpon  this evidence the Court instructed the jury, that it was for them to determine whether the said lands in the said Sheriff's deed mentioned, were the same lands which the former Sheriff Saunders had  sold or not. If not the same land, then the said Sheriff's deed was not good in law. And the Court farther instructed the jury, that the said record, or any thing therein contained, was not sufficient in law to authorize the sale of the lands made by the said Sheriff Saunders, nor the deed aforesaid made to the said Vance by the said John Cocke, the said successor of the said Saunders, and that the said sale and deed did not in law vest any title to said lands in the said Samuel Vance. \nTo this instruction of the Court, the counsel for the defendants excepted. In consequence of this instruction, the jury found a verdict for the plaintiffs, and a judgment was accordingly rendered in their favour. The cause was then brought by writ of error to this Court. \nThe objections made on the record to the title papers of the plaintiff, so far as respects their registration, have not been pressed in this Court, and do not appear to be sustainable. The plaintiffs in error rely principally  on the deed made by John Cocke, the sheriff of Montgomery county, on the 14th of April, 1808, and insist that the instruction given by the Circuit Court to the jury, on this point, is erroneous. \nThe validity of this deed depends on the act passed by the Legislature of the State of Tennessee, on the 25th of October, 1797, respecting the collection of taxes. The 3d section of that act directs the Court of each county, at its session, in the month of January, in each year, to appoint a justice of the  peace, for each captain's district in the county, to receive lists of the taxable property, for the then present year.\" \nThe 5th section makes it the duty of the sheriff to discover, and report in writing, to the clerk of the Court, such taxable property as may not have been returned within the time limited by law. \nThe 6th section directs non-residents to return to the Court an inventory of their taxable property. \nThe 9th section enacts, that if any non-resident \"shall fail, by himself, his agent, or attorney, to return his, her, or their taxable property, as by the act directed, the property of such person, so failing, shall be liable, and stand bound to pay a fine of fifty  dollars, and a double tax, to be collected and paid, as by this act directed, and the justice shall report the said property to the best of his knowledge and information as aforesaid.\" \nThe thirteenth section directs the sheriff, in the event of the non-payment of taxes by a specified time, \"to levy the same by distress and sale of the goods and chattels of every person so neglecting.\" \nAnd the 14th section directs the sheriff, in case there shall not be any goods and chattels on which distress may be made, to report the same to the Court of the county, whose duty it is \"forthwith to direct the clerk to make out a certificate of the lands and tenements liable for payment of the said taxes, together with the amount of taxes and charges due thereon.\" This is to be published, and if no person shall pay the taxes and other charges, within thirty days, the \"Court shall enter up judgment  for the amount of taxes due,\" &c. for which execution shall issue, under which execution the land may be sold and conveyed by the sheriff. \nThat no individual or public officer can sell, and convey a good title to, the land of another, unless authorized so to do by express law, is one of those  self-evident propositions to which the mind assents, without hesitation; and that the person invested with such a power, must pursue with precision the course prescribed by law, or his act is invalid, is a principle which has been repeatedly recognised in this Court. The validity of the sale and deed made by the sheriff of Montgomery county will then depend on the regularity of the order under which the sale was made, and on the question whether that order, if erroneous, will still support the sale which has been made in pursuance of it. \nPrevious to an order for the sale of lands for the non-payment of taxes, the sheriff is ordered to levy them by distress and sale of the goods and chattels of the delinquent; and if there be no such goods and chattels, he is to report the same to the Court, as the foundation of any proceeding against the lands. By this act, no jurisdiction is given to the Court over the lands of a person who has failed to pay his taxes, until the sheriff shall report that there are no goods and chattels out of which the taxes may be made. \n This being an important fact on which the jurisdiction of the Court depends, it ought, we think, to appear on record,  either in the judgment itself, or in the previous proceedings. \nIn this case no such report appears to have been  made. Could it even be contended that this report might be presumed, the answer is, that the terms of the order exclude such a presumption. It would appear, that the report of the magistrate, that the land in question had not been listed, was made in July, 1801, and that the Court immediately made that order which the law directs to be made on the sheriff's report, that there are no goods and chattels; and this order refers not to any report of the sheriff, not to any deficiency of goods and chattels, but to the report of the justice of peace, that the lands have not been listed. \nThis is not the only defect which appears in these proceedings. Previous to an order for a sale of land, and subsequent to the report of the sheriff, certain publications are to be made in the manner and form prescribed by the act. These publications are indispensable preliminaries to the order of sale. They do not appear to have been made. The judgment against the land was given at January term, 1802, on motion, without its appearing by recital or otherwise, that the requisites  of the law, in this respect, had been complied with, and that the tax still remained unpaid. \nWe think this ought to have appeared in the record. \nThe argument is, that the judgment, for these errors in the proceedings of the County Court, may be voidable, but is not void; that until it be reversed, it is capable of supporting those subsequent proceedings which were founded on it. \n We think otherwise. In summary proceedings, where a Court exercises an extraordinary power under a special statute prescribing its course, we think that course ought to be exactly observed, and those facts especially which give jurisdiction, ought to appear, in order to show that its proceedings are coram judice. Without this act of Assembly, the order for sale would have been totally void. This act gives the power only on a report to be made by the Sheriff. This report gives the Court jurisdiction; and without it, the Court is as powerless as if the act had never passed. \nIn construing the acts of the Legislature of a State, the decisions of the State tribunals have always governed this Court. In Tennessee, the question arising in this cause, after considerable discussion, seems to have  been finally settled on principles which are thought entirely correct. The case of Francis' Lessee v. Washburn & Russell, reported in 5 Haywood, is this very case, and was decided as this case was decided in the Circuit Court. On the authority of that case, and on principle, the Court is of opinion, that there is no error in the judgment of the Circuit Court. \nJudgment affirmed. \n \n\n ", " \nOpinion \n\n \n \n Mr. Chief justice MARSHALL delivered the opinion of the Court, that as by the local laws and practice of Louisiana, questions of fact in civil cases were tried by the Court, unless either of the parties demanded a jury, the interest upon the original judgment in Massachusetts might be computed, and make a part of the judgment in Louisiana, without a writ  of inquiry and the intervention of a jury. And that although the original suit was commenced by an attachment, yet that the defendant, Mayhew, had personal notice of the suit, and afterwards appeared and took defence, so that even supposing there was any objection to the proceeding by attachment, it was cured by the appearance of the defendant, and his litigating the suit. \nJudgment affirmed. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Chief Justice  MARSHALL delivered the opinion of the Court, that this case was not distinguishable from its former decisions on the same subject. 1 except by the circumstances, that the defendant, in the present case, was a citizen of the same State with the plaintiffs, at the time the contract was made in that State, and remained such at the time the suit was commenced in its Courts. But that these facts made no difference in the cases. The constitution of the United States was made for the whole people of the Union, and is equally binding upon all the Courts and all the citizens. \nJudgment reversed. \nJUDGMENT. This cause came on to be heard on the transcript of the record of the Supreme Court for the Eastern District of the Commonwealth of Pennsylvania, and was argued by counsel. On consideration whereof, the Court is of opinion, that the said Supreme Court for the Eastern District of the Commonwealth of Pennsylvania, erred in giving judgment for the defendant, on the demurrer of the plaintiffs to the plea of the said defendant. It is, therefore, adjudged and ordered, that the judgment of the said Supreme Court  for the Eastern District of the Commonwealth of Pennsylvania be, and  the same is hereby reversed and annulled. And it is farther ordered, that the said cause be remanded to the said Supreme Court for the Eastern District of the Commonwealth of Pennsylvania, with directions to enter judgment for the plaintiffs in the said Court. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Chief Justice MARSHALL delivered the opinion of the Court, that a suit may be brought in the Circuit Court by the endorsee against the endorser, whether a suit could be there brought against the drawer or not. In such a case, the endorser  does not claim through an assignment. It is a new contract  entered into by the endorser and endorsee, upon which the suit is brought; and if the endorsee is a citizen of a different State, he may bring an action against the endorser in the Circuit Court. As to the other objection insisted upon by the plaintiff in error, all that was incumbent upon the holder, was to give due notice to the endorser. No protest of a promissory note or inland bill of exchange is necessary. \nJudgment affirmed. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Chief Justice MARSHALL delivered the opinion of the Court. \nThis is a writ of error to a judgment rendered in the Court of Hustings for the borough of Norfolk, on an information for selling lottery tickets, contrary to an act of the Legislature of Virginia. In the State Court, the defendant claimed the protection of an act of Congress. A case was agreed between the parties, which states the act of Assembly on which the prosecution was founded, and the act of Congress  on which the defendant relied, and concludes in these words: \"If upon this case the Court shall be of opinion that the acts of Congress before mentioned were valid, and, on the true construction of those acts, the lottery tickets sold by the defendants as aforesaid, might lawfully be sold within the State of Virginia, notwithstanding the act or statute of the general assembly of Virginia prohibiting such sale, then judgment to be entered for the defendants: And if the Court should be of opinion that the statute or act of the General Assembly of the State of Virginia, prohibiting such sale, is valid, notwithstanding the said acts of Congress, then judgment to be entered that the defendants are guilty, and that the Commonwealth recover against them one hundred dollars and costs.\" \n Judgment was rendered against the defendants; and the Court in which it was rendered being the highest Court of the State in which the cause was cognizable, the record has been brought into this Court by writ of error. 31 \n The defendant in error moves to dismiss this writ, for want of jurisdiction. \nIn support of this motion, three points have been made, and argued with the ability which the importance of the question merits. These points are -- \n1st. That a State is a defendant. \n2d. That no writ of error lies from this Court to a State Court. \n3d. The third point has been presented in different forms by the gentlemen who have argued it. The counsel who opened the cause said, that the want of jurisdiction was shown by the subject matter of the case. The counsel who followed him said, that jurisdiction was not given by the judiciary act. The Court has bestowed all its attention on the arguments of both gentlemen, and supposes that their tendency is to show that this Court has no jurisdiction of the case, or, in other words, has no right to review the judgment of the State Court, because neither the constitution nor any law of the United States has been violated by that judgment. \nThe questions presented to the Court by the two  first points made at the bar are of great magnitude, and may be truly said vitally to affect the Union. They exclude the inquiry whether the constitution and  laws of the United States have been violated by the judgment which the plaintiffs in error seek to review; and maintain that, admitting such violation, it is not in the power of the government to apply a corrective. They maintain that the nation does not possess a department capable of restraining peaceably, and by authority of law, any attempts which may be made, by a part, against the legitimate powers of the whole; and that the government is reduced to the alternative of submitting to such attempts, or of resisting them by force. They maintain that the constitution of the United States has provided no tribunal for the final construction of itself, or of the laws or treaties of the nation; but that this power may be exercised in the last resort by the Courts of every State in the Union. That the constitution, laws, and treaties, may receive as many constructions as there are States; and that this is not a mischief, or, if a mischief, is irremediable. These abstract propositions are to be determined; for he who demands decision without permitting inquiry, affirms that the decision he asks does not depend on inquiry. \nIf such be the constitution, it is the duty of the Court to  bow with respectful submission to its provisions. If such be not the constitution, it is equally the duty of this Court to say so; and to perform that task which the American people have assigned to the judicial department. \n 1st. The first question to be considered is, whether the jurisdiction of this Court is excluded by the character of the parties, one of them being a State, and the other a citizen of that State? \nThe second section of the third article of the  constitution defines the extent of the judicial power of the United States. Jurisdiction is given to the Courts of the Union in two classes of cases. In the first, their jurisdiction depends on the character of the cause, whoever may be the parties. This class comprehends \"all cases in law and equity arising under this constitution, the laws of the United States, and treaties made, or which shall be made, under their authority.\" This clause extends the jurisdiction of the Court to all the cases described, without making in its terms any exception whatever, and without any regard to the condition of the party. If there be any exception, it is to be implied against the express words of the article. \n In the second class, the jurisdiction depends entirely on the character of the parties. In this are comprehended \"controversies between two or more States, between a State and citizens of another State,\" \"and between a State and foreign States, citizens or subjects.\" If these be the parties, it is entirely unimportant what may be the subject of controversy. Be it what it may, these parties have a constitutional right to come into the Courts of the Union. \nThe counsel for the defendant in error have stated that the cases which arise under the constitution must grow out of those provisions which are capable  of self-execution; examples of which are to be found in the 2d section of the 4th article, and in the 10th section of the 1st article. \nA case which arises under a law of the United States must, we are likewise told, be a right given by some act which becomes necessary to execute the powers given in the constitution, of which the law of naturalization is mentioned as an example. \nThe use intended to be made of this exposition of the first part of the section, defining the extent of the judicial power, is not clearly understood. If the intention be merely to distinguish  cases arising under the constitution, from those arising under a law, for the sake of precision in the application of this argument, these propositions will not be controverted. If it be to maintain that a case arising under the constitution, or a law, must be one in which a party comes into Court to demand something conferred on him by the constitution or a law, we think the construction too narrow. A case in law or equity consists of the right of the one party, as well as of the other, and may truly be said to arise under the constitution or a law of the United States, whenever its correct decision depends on the construction of either. Congress seems to have intended to give its own construction of this part of the constitution in the 25th section of the judiciary act; and we perceive no reason to depart from that construction. \nThe jurisdiction of the Court, then, being extended by the letter of the constitution to all cases arising under it, or under the laws of the United States, it follows that those who would withdraw  any case of this description from that jurisdiction, must sustain the exemption they claim on the spirit and true meaning of the constitution,  which spirit and true meaning must be so apparent as to overrule the words which its framers have employed. \nThe counsel for the defendant in error have undertaken to do this; and have laid down the general proposition, that a sovereign independent State is not suable, except by its own consent. \nThis general proposition will not be controverted. But its consent is not requisite in each particular case. It may be given in a general law. And if a State has surrendered any portion of its sovereignty, the question whether a liability to suit be a part of this portion, depends on the instrument by which the surrender is made. If, upon a just construction of that instrument, it shall appear that the State has submitted to be sued, then it has parted with this sovereign right of judging in every case on the justice of its own pretensions, and has entrusted that power to a tribunal in whose impartiality it confides. \nThe American States, as well as the American people, have believed a close and firm Union to be essential to their liberty and to their happiness. They have been taught by experience, that this Union cannot exist without a government for the whole; and they have been taught  by the same experience that this government would be a mere shadow, that must disappoint all their hopes, unless invested with lable portions of that sovereignty which belongs to independent States. Under the influence of this opinion, and thus instructed by experience,  the American people, in the conventions of their respective States, adopted the present constitution. \nIf it could be doubted, whether from its nature, it were not supreme in all cases where it is empowered to act, that doubt would be removed by the declaration, that \"this constitution, and the laws of the United States, which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby; any thing in the constitution or laws of any State to the contrary notwithstanding.\" \nThis is the authoritative language of the American people; and, if gentlemen please, of the American States. It marks, with lines too strong to be mistaken, the characteristic distinction between the government of the Union, and those of the States. The general government, though limited  as to its objects, is supreme with respect to those objects. This principle is a part of the constitution; and if there be any who deny its necessity, none can deny its authority. \nTo this supreme government ample powers are confided; and if it were possible to doubt the great purposes for which they were so confided, the people of the United States have declared, that they are given \"in order to form a more perfect union, establish justice, ensure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to themselves and their posterity.\" \n With the ample powers confided to this supreme government, for these interesting purposes, are connected many express and important limitations on the sovereignty of the States, which are made for the same purposes. The powers of the Union, on the great subjects of war, peace, and commerce, and on many others, are in themselves limitations of the  sovereignty of the States; but in addition to these, the sovereignty of the States is surrendered in many instances where the surrender can only operate to the benefit of the people, and where, perhaps, no other power  is conferred on Congress than a conservative power to maintain the principles established in the constitution. The maintenance of these principles in their purity, is certainly among the great duties of the government. One of the instruments by which this duty may be peaceably performed, is the judicial department. It is authorized to decide all cases of every description, arising under the constitution or laws of the United States. From this general grant of jurisdiction, no exception is made of those cases in which a State may be a party. When we consider the situation of the government of the Union and of a State, in relation to each other; the nature of our constitution; the subordination of the State governments to that constitution; the great purpose for which jurisdiction over all cases arising under the constitution and laws of the United States, is confided to the judicial department; are we at liberty to insert in this general grant, an exception of those cases in which a State may be a  party? Will the spirit of the constitution justify this attempt to control its words? We think it will not. We think a case arising under the constitution or laws of the  United States, is cognizable in the Courts of the Union, whoever may be the parties to that case. \nHad any doubt existed with respect to the just construction of this part of the section, that doubt would have been removed by the enumeration of those cases to which the jurisdiction of the federal Courts is extended, in consequence of the character of the parties. In that enumeration, we find \"controversies between two or more States, between a State and citizens of another State,\" \"and between a State and foreign States, citizens, or subjects.\" \nOne of the express objects, then, for which the judicial department was established, is the decision of controversies between States, and between a State and individuals. The mere circumstance, that a State is a party, gives jurisdiction to the Court. How, then, can it be contended, that the very same instrument, in the very same section, should be so construed, as that this same circumstance should withdraw a case from the jurisdiction of the Court, where the constitution or laws of the United States are supposed to have been violated? The constitution gave to every person having a claim upon a State, a right to submit his case to the  Court of the nation. However unimportant his claim might be, however little the community might be interested in its decision, the framers of our constitution thought it necessary for the purposes of justice, to provide a  tribunal as superior to influence as possible, in which that claim might be decided. Can it be imagined, that the same persons considered a case involving the constitution of our country and the majesty of the laws, questions in which every American citizen must be deeply interested, as withdrawn from this tribunal, because a State is a party? \nWhile weighing arguments drawn from the nature of government, and from the general spirit of an instrument, and urged for the purpose of narrowing the construction which the words of that instrument seem to require, it is proper to place in the opposite scale those principles, drawn from the same sources, which go to sustain the words in their full operation and natural import. One of these, which has been pressed with great force by the counsel for the plaintiffs in error, is, that the judicial power of every well constituted government must be co-extensive with the legislative, and must be capable of deciding  every judicial question which grows out of the constitution and laws. \nIf any proposition may be considered as a political axiom, this, we think, may be so considered. In reasoning upon it as an abstract question, there would, probably, exist no contrariety of opinion respecting it. Every argument, proving the necessity of the department, proves also the propriety of giving this extent to it. We do not mean to say, that the jurisdiction of the Courts of the Union should be construed to be co-extensive with the legislative, merely because it is fit that it should be so; but we mean to say, that this fitness furnishes an argument  in construing the constitution which ought never to be overlooked, and which is most especially entitled to consideration, when we are inquiring, whether the words of the instrument which purport to establish this principle, shall be contracted for the purpose of destroying it. \nThe mischievous consequences of the construction contended for on the part of Virginia, are also entitled to great consideration. It would prostrate, it has been said, the government and its laws at the feet of every State in the Union. And would not this be its effect?  What power of the government could be executed by its own means, in any State disposed to resist its execution by a course of legislation? The laws must be executed by individuals acting within the several States. If these individuals may be exposed to penalties, and if the Courts of the Union cannot correct the judgments by which these penalties may be enforced, the course of the government may be, at any time, arrested by the will of one of its members. Each member will possess a veto on the will of the whole. \nThe answer which has been given to this argument, does not deny its truth, but insists that confidence is reposed, and may be safely reposed, in the State institutions; and that, if they shall ever become so insane or so wicked as to seek the destruction of the government, they may accomplish their object by refusing to perform the functions assigned to them. \nWe readily concur with the counsel for the defendant,  in the declaration, that the cases which have been put of direct legislative resistance for the purpose of opposing the acknowledged powers of the government, are extreme cases, and in the hope, that they will never occur; but we cannot help believing,  that a general conviction of the total incapacity of the government to protect itself and its laws in such cases, would contribute in no inconsiderable degree to their occurrence. \nLet it be admitted, that the cases which have been put are extreme and improbable, yet there are gradations of opposition to the laws, far short of those cases, which might have a baneful influence on the affairs of the nation.  Different States may entertain different opinions on the true construction of the constitutional powers of Congress. We know, that at one time, the assumption of the debts contracted by the severa States, during the war of our revolution, was deemed unconstitutional by some of them. We know, too, that at other times, certain taxes, imposed by Congress, have been pronounced unconstitutional. Other laws have been questioned partially, while they were supported by the great majority of the American people. We have no assurance that we shall be less divided than we have been. States may legislate in conformity to their opinions, and may enforce those opinions by penalties. It would be hazarding too much to assert, that the judicatures of the States will be exempt from  the prejudices by which the legislatures and people are influenced, and will constitute perfectly impartial tribunals. In many States the judges are dependent for office and  for salary on the will of the legislature. The constitution of the United States furnishes no security against the universal adoption of this principle. When we observe the importance which that constitution attaches to the independence of judges, we are the less inclined to suppose that it can have intended to leave these constitutional questions to tribunals where this independence may not exist, in all cases where a State shall prosecute an individual who claims the protection of an act of Congress. These prosecutions may take place even without a legislative act. A person making a seizure under an act of Congress, may be indicted as a trespasser, if force has been employed, and of this a jury may judge. How extensive may be the mischief if the first decisions in such caes should be final! \nThese collisions may take place in times of no extraordinary commotion. But a constitution is framed for ages to come, and is designed to approach immortality as nearly as human institutions can approach  it. Its course cannot always be tranquil. It is exposed to storms and tempests, and its framers must be unwise statesmen indeed, if they have not provided it, as far as its nature will permit, with the means of self-preservation from the perils it may be destined to encounter. No government ought to be so defective in its organization, as not to contain within itself the means of securing the execution of its own laws against other dangers than those which occur every day.Courts of justice are the means most usually employed; and it is reasonable to expect that a government should repose on its  own Courts, rather than on others. There is certainly nothing in the circumstances under which our constitution was formed; nothing in the history of the times, which would justify the opinion that the confidence reposed in the States was so implicit as to leave in them and their tribunals the power of resisting or defeating, in the form of law, the legitimate measures of the Union. The requisitions of Congress, under the confederation, were as constitutionally obligatory as the laws enacted by the present Congress. That they were habitually disregarded, is a fact of universal  notoriety. With the knowledge of this fact, and under its full pressure, a convention was assembled to change the system. Is it so improbable that they should confer on the judicial department the power of construing the constitution and laws of the Union in every case, in the last resort, and of preserving them from all violation from every quarter, so far as judicial decisions can preserve them, that this improbability should essentially affect the construction of the new system? We are told, and we are truly told, that the great change which is to give efficacy to the present system, is its ability to act on individuals directly, instead of acting through the instrumentality of State governments. But, ought not this ability, in reason and sound policy, to be applied directly to the protection of individuals employed in the execution of the laws, as well as to their coercion.Your laws reach the individual without the aid of any other power; why may they not protect him from punishment for performing his duty in executing them? \n The counsel for Virginia endeavour to obviate the force of these arguments by saying, that the dangers they suggest, if not imaginary, are  inevitable; that the constitution can make no provision against them; and that, therefore, in construing that instrument, they ought to be excluded from our consideration.This state of things, they say, cannot arise until there shall be a disposition so hostile to the present political system as to produce a determination to destroy it; and, when that determination shall be produced, its effects will not be restrained by parchment stipulations. The fate of the constitution will not then depend on judicial decisions. But, should no appeal be made to force, the States can put an end to the government by refusing to act. They have only not to elect Senators, and it expires without a struggle. \nIt is very true that, whenever hostility to the existing system shall become universal, it will be also irresistible. The people made the constitution, and the people can unmake it. It is the creature of their will, and lives only by their will. But this supreme and irresistible power to make or to unmake, resides only in the whole body of the people; not in any sub-division of them. The attempt of any of the parts to exercise it is usurpation, and ought to be repelled by those to whom the  people have delegated their power of repelling it. \nThe acknowledged inability of the government, then, to sustain itself against the public will, and, by force or otherwise, to control the whole nation, is no sound argument in support of its constitutional  inability to preserve itself against a section of the nation acting in opposition to the general will. \nIt is true, that if all the States, or a majority of them, refuse to elect Senators, the legislative powers of the Union will be suspended. But if any one State shall refuse to elect them, the Senate will not, on that account, be the less capable of performing all its functions. The argument founded on this fact would seem rather to prove the subordination of the parts to the whole, than the complete independence of any one of them. The framers of the constitution were, indeed, unable to make any provisions which should protect that instrument against a general combination of the States, or of the people, for its destruction; and, conscious of this inability, they have not made the attempt. But  they were able to provide against the operation of measures adopted in any one State, whose tendency might  be to arrest the execution of the laws, and this it was the part of true wisdom to attempt. We think they have attempted it. \nIt has been also urged, as an additional objection to the jurisdiction of the Court, that cases between a State and one of its own citizens, do not come within the general scope of the constitution; and were obviously never intended to be made cognizable in the federal Courts. The State tribunals might be suspected of partiality in cases between itself or its citizens and aliens, or the citizens of another State, but not in proceedings by a State against its own citizens. That jealousy which might exist in the first case, could not exist in the last, and therefore the judicial power is not extended to the last. \n This is very true, so far as jurisdiction depends on the character of the parties; and the argument would have great force if urged to prove that this Court could not establish the demand of a citizen upon his State, but is not entitled to the same force when urged to prove that this Court cannot inquire whether the constitution or laws of the United States protect a citizen from a prosecution instituted against him by a State. If jurisdiction  depended entirely on the character of the parties, and was not given where the parties have not an original right to come into Court, that part of the 2d section of the 3d article, which extends the judicial power to all cases arising under the constitution and laws of the United States, would be mere surplusage. It is to give jurisdiction where the character of the parties would not give it, that this very important part of the clause was inserted. It may be true, that the partiality of the State tribunals, in ordinary controversies between a State and its citizens, was not apprehended, and therefore the judicial power of the Union was not extended to such cases; but this was not the sole nor the greatest object for which this department was created. A more important, a much more interesting object, was the preservation of the constitution and laws of the United States, so far as they can be preserved by judicial authority; and therefore the jurisdiction of the Courts of the Union was expressly extended to all cases arising under that constitution and those laws. If the constitution or laws may be violated by proceedings  instituted by a State against its own citizens,  and if that violation may be such as essentially to affect the constitution and the laws, such as to arrest the progress of government in its constitutional course, why should these cases be excepted from that provision which expressly extends the judicial power of the Union to all cases arising under the constitution and laws? \nAfter bestowing on this subject the most attentive consideration, the Court can perceive no reason founded on the character of the parties for introducing an exception which the constitution has not made; and we think that the judicial power, as originally given, extends to all cases arising under the constitution or a law of the United States, whoever may be the parties. \nIt has been also contended, that this jurisdiction, if given, is original, and cannot be exercised in the appellate form. \nThe words of the constitution are, \"in all cases affecting ambassadors, other public ministers, and consuls, and those in which a State shall be a party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction.\" \nThis distinction between original and appellate jurisdiction, excludes,  we are told, in all cases, the exercise of the one where the other is given. \nThe constitution gives the Supreme Court original jurisdiction in certain enumerated cases, and gives it appellate jurisdiction in all others. Among those in which jurisdiction must be exercised in the appellate  form, are cases arising under the constitution and laws of the United States. These provisions of the constitution are equally obligatory, and are to be equally respected. If a State be a party, the jurisdiction of this Court is original; if the case arise under a constitution or a law, the jurisdiction is appellate. But a case to which a State is a party may arise under the constitution or a law of the United States. What rule is applicable to such a case? What, then, becomes the duty of the Court? Certainly, we think, so to construe the constitution as to give effect to both provisions, as far as it is possible to reconcile them, and not to permit their seeming repugnancy to destroy each other. We must endeavour so to construe them as to preserve the true intent and meaning of the instrument. \nIn one description of cases, the jurisdiction of the Court is founded entirely on the  character of the parties; and the nature of the controversy is not contemplated by the constitution. The character of the parties is every thing, the nature of the case nothing. In the other description of cases, the jurisdiction is founded entirely on the character of the case, and the parties are not contemplated by the constitution. In these, the nature of the case is every thing, the character of the parties nothing. When, then, the constitution declares the jurisdiction, in cases where a State shall be a party, to be original, and in all cases arising under the constitution or a law, to be appellate -- the conclusion seems irresistible, that its framers designed to include in the first class  those cases in which jurisdiction is given, because a State is a party; and to include in the second, those in which jurisdiction is given, because the case arises under the constitution or a law. \nThis reasonable construction is rendered necessary by other considerations. \nThat the constitution or a law of the United States, is involved in a case, and makes a part of it, may appear in the progress of a cause, in which the Courts of the Union, but for that circumstance, would  have no jurisdiction, and which of consequence could not originate in the Supreme Court. In such a case, the jurisdiction can be exercised only in its appellate form. To deny its exercise in this form is to deny its existence, and would be to construe a clause, dividing the power of the Supreme Court, in such manner, as in a considerable degree to defeat the power itself. All must perceive, that this construction can be justified only where it is absolutely necessary. We do not think the  article under consideration presents that necessity. \nIt is observable, that in this distributive clause, no negative words are introduced. This observation is not made for the purpose of contending, that the legislature may \"apportion the judicial power between the Supreme and inferior Courts according to its will.\" That would be, as was said by this Court in the case of Marbury v. Madison, to render the distributive clause \"mere surplusage,\" to make it \"form without substance.\" This cannot, therefore, be the true construction of the article. \n But although the absence of negative words will not authorize the legislature to disregard the distribution of the power previously  granted, their absence will justify a sound construction of the whole article, so as to give every part its intended effect. It is admitted, that \"affirmative words are often, in their operation, negative of other objects than those affirmed;\" and that where \"a negative or exclusive sense must be given to them, or they have no operation at all,\" they must receive that negative or exclusive sense. But where they have full operation without it; where it would destroy some of the most important objects for which the power was created; then, we think, affirmative words ought not to be construed negatively. \nThe constitution declares, that in cases where a State is a party, the Supreme Court shall have original jurisdiction; but does not say that its appellate jurisdiction shall not be exercised in cases where, from their nature, appellate jurisdiction is given, whether a State be or be not a party. It may be conceded, that where the case is of such a nature as to admit of its originating in the Supreme Court, it ought to originate there; but where, from its nature, it cannot originate in that Court, these words ought not to be so construed as to require it. There are many cases in  which it would be found extremely difficult, and subversive of the spirit of the constitution, to maintain the construction, that appellate jurisdiction cannot be exercised where one of the parties might sue or be sued in this Court. \nThe constitution defines the jurisdiction of the  Supreme Court, but does not define that of the inferior Courts. Can it be affirmed, that a State might not sue the citizen of another State in a Circuit Court? Should the Circuit Court decide for or against its jurisdiction, should it dismiss the suit, or give judgment against the State, might not its decision be revised in the Supreme Court? The argument is, that it could not; and the very clause which is urged to prove, that the Circuit Court could give no judgment in the case, is also urged to prove, that its judgment is irreversible. A supervising Court, whose peculiar province it is to correct the errors of an inferior Court, has no power to correct a judgment given without jurisdiction, because, in the same case, that supervising Court has original jurisdiction. Had negative words been employed, it would be difficult to give them this construction if they would admit of any other.  But, without negative words, this irrational construction can never be maintained. \nSo, too, in the same clause, the jurisdiction of the Court is declared to be original, \"in cases affecting ambassadors, other public ministers, and consuls.\" There is, perhaps, no part of the article under consideration so much required by national policy as this; unless it be that part which extends the judicial power \"to all cases arising under the constitution, laws, and treaties of the United States.\" It has been generally held, that the State Courts have a concurrent jurisdiction with the federal Courts, in cases to which the judicial power is extended, unless the jurisdiction of the federal Courts be rendered exclusive  by the words of the third article. If the words, \"to all cases,\" give exclusive jurisdiction in cases affecting foreign ministers, they may also give exclusive jurisdiction, if such be the will of Congress, in cases arising under the constitution, laws, and treaties of the United States. Now, suppose an individual were to sue a foreign minister in a State Court, and that Court were to maintain its jurisdiction, and render judgment against the minister, could it be  contended, that this Court would be incapable of revising such judgment, because the constitution had given it original jurisdiction in the case? If this could be maintained, then a clause inserted for the purpose of excluding the jurisdiction of all other Courts than this, in a particular case, would have the effect of excluding the jurisdiction of this Court in that very case, if the suit were to be brought in another Court, and that Court were to assert jurisdiction. This tribunal, according to the argument which has been urged, could neither revise the judgment of such other Court, nor suspend its proceedings: for a writ of prohibition, or any other similar writ, is in the nature of appellate process. \nForeign consuls frequently assert, in our Prize Courts, the claims of their fellow subjects. These suits are maintained by them as consuls. The appellate power of this Court has been frequently exercised in such cases, and has never been questioned. It would be extremely mischievous to withhold its exercise. Yet the consul is a party on the record. The truth is, that where the words confer only appellate jurisdiction, original jurisdiction is most  clearly not given;  but where the words admit of appellate jurisdiction, the power to take cognizance of the suit originally, does not necessarily negative the power to decide upon it on an appeal, if it may originate in a different Court. \nIt is, we think, apparent, that to give this distributive clause the interpretation contended for, to give to its affirmative words a negative operation, in every possible case, would, in some instances, defeat the obvious intention of the article. Such an interpretation would not consist with those rules which, from time immemorial, have guided Courts, in their construction of instruments brought under their consideration. It must, therefore, be discarded. Every part of the article must be taken into view, and that construction adopted which will consist with its words, and promote its general intention. The Court may imply a negative from affirmative words, where the implication promotes, not where it defeats the intention. \nIf we apply this principle, the correctness of which we believe will not be controverted, to the distributive clause under consideration, the result, we think, would be this: the original jurisdiction of the Supreme Court, in cases where  a State is a party, refers to those cases  in which, according to the grant of power made in the preceding clause, jurisdiction might be exercised in consequence of the character of the party, and an original suit might be instituted in any of the federal Courts; not to those cases in which an original suit might not be  instituted in a federal Court. Of the last description, is every case between a State and its citizens, and, perhaps, every case in which a State is enforcing its penal laws. In such cases, therefore, the Supreme Court cannot take original jurisdiction. In every other case, that is, in every case to which the judicial power extends, and in which original jurisdiction is not expressly given, that judicial power shall be exercised in the appellate, and only in the appellate form. The original jurisdiction of this Court cannot be enlarged, but its appellate jurisdiction may be exercised in every case cognizable under the third article of the constitution, in the federal Courts, in which original jurisdiction cannot be exercised; and the extent of this judicial power is to be measured, not by giving the affirmative words of the distributive clause  a negative operation in every possible case, but by giving their true meaning to the words which define its extent. \nThe counsel for the defendant in error urge, in opposition to this rule of construction, some dicta of the Court, in the case of Marbury v. Madison. \nIt is a maxim not to be disregarded, that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision. The reason of this maxim is obvious. The question actually before the Court is investigated with care, and considered in its full extent. Other principles which may serve to illustrate it, are considered  in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated. \nIn the case of Marbury v. Madison, the single question before the Court, so far as that case can be applied to this, was, whether the legislature could give this Court original jurisdiction in a case in which the constitution had clearly not given it, and in which no doubt  respecting the construction of the article could possibly be raised. The Court decided, and we think very properly, that the legislature could not give original jurisdiction in such a case. But, in the reasoning of the Court in support of this decision, some expressions are used which go far beyond it. The counsel for Marbury had insisted on the unlimited discretion of the legislature in the apportionment of the judicial power; and it is against this argument that the reasoning of the Court is directed. They say that, if such had been the intention of the article, \"it would certainly have been useless to proceed farther than to define the judicial power, and the tribunals in which it should be vested.\" The Court says, that such a construction would render the clause, dividing the jurisdiction of the Court into original and appellate, totally useless; that \"affirmative words are often, in their operation, negative of other objects than those which are affirmed; and, in this case, (in the case of Marbury v. Madison,) a negative or exclusive sense must be given to them, or they have no operation at all.\" \"It cannot be presumed,\" adds the Court, \"that any clause in the constitution  is intended to be without  effect; and, therefore, such a construction is inadmissible, unless the words require it.\" \nThe whole reasoning of the Court proceeds upon the idea that the affirmative words of the clause giving one sort of jurisdiction, must imply a negative of any other sort of jurisdiction, because otherwise the words would be totally inoperative, and this reasoning is advanced in a case to which it was strictly applicable. If in that case original jurisdiction could have been exercised, the clause under consideration would have been entirely useless. Having such cases only in its view, the Court lays down a principle which is generally correct, in terms much broader than the decision, and not only much broader than the reasoning with which that decision is supported, but in some instances contradictory to its principle. The reasoning sustains the negative operation of the words in that case, because otherwise the clause would have no meaning whatever, and because such operation was necessary to give effect to the intention of the article. The effort now made is, to apply the conclusion to which the Court was conducted by that reasoning in the particular  case, to one in which the words have their full operation when understood affirmatively, and in which the negative, or exclusive sense, is to be so used as to defeat some of the great objects of the article. \nTo this construction the Court cannot give its assent. The general expressions in the case of Marbury v. Madison must be understood with the limitations which are given to them in this opinion; limitations  which in no degree affect the decision in that case, or the tenor of its reasoning. \nThe counsel who closed the argument, put several cases for the purpose of illustration, which he supposed to arise under the constitution, and yet to be, apparently, without the jurisdiction of the Court. \nWere a State to lay a duty on exports, to collect the money and place it in her treasury, could the citizen who paid it, he asks, maintain a suit in this Court against such State, to recover back the money? \nPerhaps not. Without, however, deciding such supposed case, we may say, that it is entirely unlike that under consideration. \nThe citizen who has paid his money to his State, under a law that is void, is in the same situation with every other person who has paid money by  mistake. The law raises an assumpsit to return the money, and it is upon that assumpsit that the action is to be maintained. To refuse to comply with this assumpsit may be no more a violation of the constitution, than to refuse to comply with any other; and as the federal Courts never had jurisdiction over contracts between a State and its citizens, they may have none over this. But let us so vary the supposed case, as to give it a real resemblance to that under consideration. Suppose a citizen to refuse to pay this export duty, and a suit to be instituted for the purpose of compelling him to pay it. He pleads the constitution of the United States in bar of the action, notwithstanding which the Court gives judgment against him. This would be a case arising  under  the constitution, and would be the very case now before the Court. \nWe are also asked, if a State should confiscate property secured by a treaty, whether the individual could maintain an action for that property? \nIf the property confiscated be debts, our own experience informs us that the remedy of the creditor against his debtor remains. If it be land, which is secured by a treaty, and afterwards  confiscated by a State, the argument does not assume that this title, thus secured, could be extinguished by an act of confiscation. The injured party, therefore, has his remedy against the occupant of the land for that which the treaty secures to him, not against the State for money which is not secured to him. \nThe case of a State which pays off its own debts with paper money, no more resembles this than do those to which we have already adverted. The Courts have no jurisdiction over the contract. They cannot enforce it, nor judge of its violation. Let it be that the act discharging the debt is a mere nullity and that it is still due. Yet the federal Courts have no cognizance of the case. But suppose a State to institute proceedings against an individual, which depended on the validity of an act emitting bills of credit: suppose a State to prosecute one of its citizens for refusing paper money, who should plead the constitution in bar of such prosecution. If his plea should be overruled, and judgment rendered against him, his case would resemble this; and, unless the jurisdiction of this Court might be exercised over it, the constitution would  be violated, and  the injured party be unable to bring his case before that tribunal to which the people of the United States have assigned all such cases. \nIt is most true that this Court will not take jurisdiction if it should not: but it is equally true, that it must take jurisdiction if it should. The judiciary cannot, as the legislature may, avoid a measure because it approaches the confines of the constitution. We cannot pass it by because it is doubtful. With whatever doubts, with whatever difficulties, a case may be attended, we must decide it, if it be brought before us. We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the constitution. Questions may occur which we would gladly avoid; but we cannot avoid them. All we can do is, to exercise our best judgment, and conscientiously to perform our duty. In doing this, on the present occasion, we find this tribunal invested with appellate jurisdiction in all cases arising under the constitution and laws of the United States. We find no exception to this grant, and we cannot insert one. \nTo escape the operation of these comprehensive  words, the counsel for the defendant has mentioned instances in which the constitution might be violated without giving jurisdiction to this Court. These words, therefore, however universal in their expression, must, he contends, be limited and controlled in their construction by circumstances. One of these instances is, the grant by a State of a patent of nobility. The Court, he says, cannot annul this grant. \n This may be very true; but by no means justifies the inference drawn from it. The article does not extend the judicial power to every violation of the constitution which may possibly take place, but to \"a case in law or equity,\" in which a right, under such law, is asserted in a Court of justice. If the question cannot be brought into a Court, then there is no case in law or equity, and no jurisdiction is given by the words of the article. But if, in any controversy depending in a Court, the cause should depend on the validity of such a law, that would be a case arising under the constitution, to which the judicial power of the United States would extend. The same observation applies to the other instances with which the counsel who opened the cause has illustrated  this argument. Although they show that there may be violations of the constitution, of which the Courts can take no cognizance, they do not show that an interpretation more restrictive than the words themselves import ought to be given to this article. They do not show that there can be \"a case in law or equity,\" arising under the constitution, to which the judicial power does not extend. \nWe think, then, that, as the constitution originally stood, the appellate jurisdiction of this Court, in all cases arising under the constitution, laws, or treaties of the United States, was not arrested by the circumstance that a State was a party. \nThis leads to a consideration of the 11th amendment. \nIt is in these words: \"The judicial power of the United States shall not be construed to extend to any  suit in law or equity commenced or prosecuted against one of the United States, by citizens of another State, or by citizens or subjects of any foreign State.\" \nIt is a part of our history, that, at the adoption of the constitution, all the States were greatly indebted; and the apprehension that these debts might be prosecuted in the federal Courts, formed a very serious objection to  that instrument. Suits were instituted; and the Court maintained its jurisdiction. The alarm was general; and, to quiet the apprehensions that were so extensively entertained, this amendment was proposed in Congress, and adopted by the State legislatures. That its motive was not to maintain the sovereignty of a State from the degradation supposed to attend a compulsory appearance before the tribunal of the nation, may be inferred from the terms of the amendment. It does not comprehend controversies between two or more States, or between a State and a foreign State. The jurisdiction of the Court still extends to these cases: and in these a State may still be sued. We must ascribe the amendment, then, to some other cause than the dignity of a State. There is no difficulty in finding this cause.Those who were inhibited from commencing a suit against a State, or from prosecuting one which might be commenced before the adoption of the amendment, were persons who might probably be its creditors. There was not much reason to fear that foreign or sister States would be creditors to any considerable amount, and there was reason to retain the jurisdiction of the Court in those   cases, because it might be essential to the preservation of peace. The amendment,  therefore, extended to suits commenced or prosecuted by individuals, but not to those brought by States. \nThe first impression made on the mind by this amendment is, that it was intended for those cases, and for those only, in which some demand against a State is made by an individual in the Courts of the Union. If we consider the causes to which it is to be traced, we are conducted to the same conclusion. A general interest might well be felt in leaving to a State the full power of consulting its convenience in the adjustment of its debts, or of other claims upon it; but no interest could be felt in so changing the relations between the whole and its parts, as to strip the government of the means of protecting, by the instrumentality of its Courts, the constitution and laws from active violation. \nThe words of the amendment appear to the Court to justify and require this construction. The judicial power is not \"to extend to any suit in law or equity commenced or prosecuted against one of the United States by citizens of another State, &c.\" \nWhat is a suit? We understand it to be the prosecution,  or pursuit, of some claim, demand, or request. In law language, it is the prosecution of some demand in a Court of justice. The remedy for every species of wrong is, says Judge Blackstone, \"the being put in possession of that right whereof the party injured is deprived.\" \"The instruments whereby this remedy is obtained, are a diversity of suits and actions, which are defined by the  Mirror to be 'the lawful demand of one's right.' Or, as Bracton and Fleta express it, in the words of Justinian, 'jus prosequendi in judicio quod alicui debetur.\" Blackstone then proceeds to describe every species of remedy by suit; and they are all cases were the party suing claims to obtain something to which he has a right. \nTo commence a suit, is to demand something by the institution of process in a Court of justice; and to prosecute the suit, is, according to the common acceptation of language, to continue that demand.By a suit commenced by an individual against a State, we should understand process sued out by that individual against the State, for the purpose of establishing some claim against it by the judgment of a Court; and the prosecution of that suit is its continuance. Whatever  may be the stages of its progress, the actor is still the same. Suits had been commenced in the Supreme Court against some of the States before this amendment was introduced into Congress, and others might be commenced before it should be adopted by the State legislatures, and might be depending at the time of its adoption. The object of the amendment was not only to prevent the commencement of future suits, but to arrest the prosecution of those which might be commenced when this article should form a part of the constitution. It therefore embraces both objects; and its meaning is, that the judicial power shall not be construed to extend to any suit which may be commenced, or which, if already commenced, may be  prosecuted against a State by the citizen of another State. If a suit, brought in one Court, and carried by legal process to a supervising Court, be a continuation of the same suit, then this suit is not commenced nor prosecuted against a State.It is clearly in its commencement the suit of a State against an individual, which suit is transferred to this Court, not for the purpose of asserting any claim against the State, but for the purpose of asserting a constitutional  defence against a claim made by a State. \nA writ of error is defined to be, a commission by which the judges of one Court are authorized to examine a record upon which a judgment was given in another Court, and, on such examination, to affirm or reverse the same according to law. If, says my Lord Coke, by the writ of error, the plaintiff may recover, or be restored to any thing, it may be released by the name of an action. In Bacon's Abridgment, tit. Error, L. it is laid down, that \"where by a writ of error, the plaintiff shall recover, or be restored to any personal thing, as debt, damage, or the like, a release of all actions personal is a good plea; and when land is to be recovered or restored in a writ of error, a release of actions real is a good bar; but where by a writ of error the plaintiff shall not be restored to any personal or real thing, a release of all actions, real or personal, is no bar.\" And for this we have the authority of Lord Coke, both in his Commentary on Littleton and in his Reports. A writ of error, then, is in the nature of a suit or action when it is to restore the party who obtains it to the possession of any thing which is withheld  from him,  not when its operation is entirely defensive. \nThis rule will apply to writs of error from the Courts of the United States, as well as to those writs in England. \nUnder the judiciary act, the effect of a writ of error is simply to bring the record into Court, and submit the judgment of the inferior tribunal to re-examination. It does not in any manner act upon the parties; it acts only on the record. It removes the record into the supervising tribunal. Where, then, a State obtains a judgment against an individual, and the Court, rendering such judgment, overrules a defence set up under the constitution or laws of the United States, the transfer of this record into the Supreme Court, for the sole purpose of inquiring whether the judgment violates the constitution or laws of the United States, can, with no propriety, we think, be denominated a suit commenced or prosecuted against the State whose judgment is so far re-examined. Nothing is demanded from the State. No claim against it of any description is asserted or prosecuted. The party is not to be restored to the possession of any thing. Essentially, it is an appeal on a single point; and the defendant who appeals from a judgment  rendered against him, is never said to commence or prosecute a suit against the plaintiff who has obtained the judgment. The writ of error is given rather than an appeal, because it is the more usual mode of removing suits at common law; and because, perhaps, it is more technically proper where a single point of law, and not the whole case, is to  be re-examined. But an appeal might be given, and might be so regulated as to effect every purpose of a writ of error. The mode of removal is form, and not substance. Whether it be by writ of error or appeal, no claim is asserted, no demand is made by the original defendant; he only asserts the constitutional  right to have his defence examined by that tribunal whose province it is to construe the constitution and laws of the Union. \nThe only part of the proceeding which is in any manner personal, is the citation. And what is the citation? It is simply notice to the opposite party that the record is transferred into another Court, where he may appear, or decline to appear, as his judgment or inclination may determine. As the party who has obtained a judgment is out of Court, and may, therefore, not know that his  cause is removed, common justice requires that notice of the fact should be given him. But this notice is not a suit, nor has it the effect of process. If the party does not choose to appear, he cannot be brought into Court, nor is his failure to appear considered as a default. Judgment cannot be given against him for his nonappearance, but the judgment is to be re-examined, and reversed or affirmed, in like manner as if the party had appeared and argued his cause. \nThe point of view in which this writ of error, with its citation, has been considered uniformly in the Courts of the Union, has been well illustrated by a reference to the course of this Court in suits instituted by the United States. The universally received opinion is, that no suit can be commenced  or prosecuted against the United States; that the judiciary act does not authorize such suits.Yet writs of error, accompanied with citations, have uniformly issued for the removal of judgments in favour of the United States into a superior Court, where they have, like those in favour of an individual, been re-examined, and affirmed or reversed. It has never been suggested, that such writ of error was a suit  against the United States, and, therefore, not within the jurisdiction of the appellate Court. \nIt is, then, the opinion of the Court, that the defendant who removes a judgment rendered against him by a State Court into this Court, for the purpose of re-examining the question, whether that judgment be in violation of the constitution or laws of the United States, does not commence or prosecute a suit against the State, whatever may be its opinion where the effect of the writ may be to restore the party to the possession of a thing which he demands. \nBut should we in this be mistaken, the error does not affect the case now before the Court. If this writ of error be a suit in the sense of the 11th amendment, it is not a suit commenced or prosecuted \"by a citizen of another State, or by a citizen or subject of any foreign State.\" It is not then within the amendment, but is governed entirely by the constitution as originally framed, and we have already seen, that in its origin, in judicial power was extended to all cases arising under the constitution or laws of the United States, without respect to parties. \n 2d. The second objection to the jurisdiction of the Court is, that  its appellate power cannot be exercised, in any case, over the judgment of a State Court. \nThis objection is sustained chiefly by arguments drawn from the supposed total separation of the judiciary of a State from that of the Union, and their entire independence of each other. The argument considers the federal judiciary as completely foreign to that of a State; and as being no more connected with it in any respect whatever, than the Court of a foreign State. If this hypothesis be just, the argument founded on it is equally so; but if the hypothesis be not supported by the constitution, the argument fails with it. \nThis hypothesis is not founded on any words in the constitution, which might seem to countenance it, but on the unreasonableness of giving a contrary construction to words which seem to require it; and on the incompatibility of the application of the appellate jurisdiction to the judgments of State Courts, with that constitutional relation which subsists between the government of the Union and the governments of those States which compose it. \nLet this unreasonableness, this total incompatibility, be examined. \nThat the United States form, for many, and for most important  purposes, a single nation, has not yet been denied. In war, we are one people. In making peace, we are one people. In all commercial regulations, we are one and the same people. In  many other respects, the American people are one, and the government which is alone capable of controling and managing their interests in all these respects, is the government of the Union. It is their government, and in that character they have no other. American has chosen to be, in many respects, and to many purposes, a nation; and for all these purposes, her government is complete; to all these objects, it is competent. The people have declared, that in the exercise of all powers given for these objects, it is supreme. It can, then, in effecting these objects, legitimately control all individuals or governments within the American territory. The constitution and laws of a State, so far as they are repugnant to the constitution and laws of the United States, are absolutely void. These States are constituent parts of the United States.They are members of one great empire -- for some purposes sovereign, for some purposes subordinate. \nIn a government so constituted, is it unreasonable  that the judicial power should be competent to give efficacy to the constitutional laws of the legislature? That department can decide on the validity of the constitution or law of a State, if it be repugnant to the constitution or to a law of the United States. Is it unreasonable that it should also be empowered to decide on the judgment of a State tribunal enforcing such unconstitutional law? Is it so very unreasonable as to furnish a justification for controling the words of the constitution? \nWe think it is not. We think that in a government  acknowledgedly supreme, with respect to objects of vital interest to the nation, there is nothing inconsistent with sound reason, nothing incompatible with the nature of government, in making all its departments supreme, so far as respects those objects, and so far as is necessary to their attainment. The exercise of the appellate power over those judgments of the State tribunals which may contravene the constitution or laws of the United States, is, we believe, essential to the attainment of those objects. \nThe propriety of entrusting the construction of the constitution, and laws made in pursuance thereof, to the judiciary  of the Union, has  not, we believe, as yet, been drawn into question. It seems to be a corollary from this political axiom, that the federal Courts should either possess exclusive jurisdiction in such cases, or a power to revise the judgment rendered in them, by the State tribunals. If the federal and State Courts have concurrent jurisdiction in all cases arising under the constitution, laws, and treaties of the United States; and if a case of this description brought in a State Court cannot be removed before judgment, nor revised after judgment, then the construction of the constitution, laws, and treaties of the United States, is not confided particularly to their judicial department, but is confided equally to that department and to the State Courts, however they may be constituted. \"Thirteen independent Courts,\" says a very celebrated statesman, (and we have now more than twenty such Courts,) \"of final jurisdiction over the same causes, arising upon the same laws, is a hydra in government, from  which nothing but contradiction and confusion can proceed.\" \nDismissing the unpleasant suggestion, that any motives which may not be fairly avowed, or which ought  not to exist, can ever influence a State or its Courts, the necessity of uniformity, as well as correctness in expounding the constitution and laws of the United States, would itself suggest the propriety of vesting in some single tribunal the power of deciding, in the last resort, all cases in which they are involved. \nWe are not restrained, then, by the political relations between the general and State governments, from construing the words of the constitution, defining the judicial power, in their true sense. We are not bound to construe them more restrictively than they naturally import. \nThey give to the Supreme Court appellate jurisdiction in all cases arising under the constitution, laws, and treaties of the United States. The words are broad enough to comprehend all cases of this description, in whatever Court they may be decided. In expounding them, we may be permitted to take into view those considerations to which Courts have always allowed great weight in the exposition of laws. \nThe framers of the constitution would naturally examine the state of things existing at the time; and their work sufficiently attests that they did so. All acknowledge that they were convened  for the purpose of strengthening the confederation by enlarging the powers of the government, and by giving efficacy  to those which it before possessed, but could not exercise. They inform us themselves, in the instrument they presented to the American public, that one of its objects was to form a more perfect union. Under such circumstances, we certainly should not expect to find, in that instrument, a diminution of the powers of the actual government. \nPrevious to the adoption of the confederation, Congress established Courts which received appeals in prize causes decided in the Courts of the respective States. This power of the government, to establish tribunals for these appeals, was thought consistent with, and was founded on, its political relations with the States. These Courts did exercise appellate jurisdiction over those cases decided in the State Courts, to which the judicial power of the federal government extended. \nThe confederation gave to Congress the power \"of establishing Courts for receiving and determining finally appeals in all cases of captures.\" \nThis power was uniformly construed to authorize those Courts to receive appeals from the sentences  of State Courts, and to affirm or reverse them. State tribunals are not mentioned; but this clause in the confederation necessarily comprises them. Yet the relation between the general and State governments was much weaker, much more lax, under the confederation than under the present constitution; and the States being much more completely sovereign, their institutions were much more independent. \nThe Convention which framed the constitution, on  turning their attention to the judicial power, found it limited to a few objects, but exercised, with respect to some of those objects, in its appellate form, over the judgments of the State Courts. They extend it, among other objects, to all cases arising under the constitution, laws, and treaties of the United States; and in a subsequent clause declare, that in such cases, the Supreme Court shall exercise appellate jurisdiction. Nothing seems to be given which would justify the withdrawal of a judgment rendered in a State Court, on the constitution, laws, or treaties of the United States, from this appellate jurisdiction. \nGreat weight has always been attached, and very rightly attached, to contemporaneous exposition. No  question, it is believed, has arisen to which this principle applies more unequivocally than to that now under consideration. \nThe opinion of the Federalist has always been considered as of great authority. It is a complete commentary on our constitution; and is appealed to by all parties in the questions to which that instrument has given birth. Its intrinsic merit entitles it to this high rank; and the part two of its authors performed in framing the constitution, put it very much in their power to explain the views with which it was framed. These essays having been published while the constitution was before the nation for adoption or rejection, and having been written in answer to objections founded entirely on the extent of its powers, and on its diminution of State sovereignty, are entitled to the more consideration where they  frankly avow that the power objected to is given, and defend it. \nIn discussing the extent of the judicial power, the Federalist says, \"Here another question occurs: what relation would subsist between the national and State Courts in these instances of concurrent jurisdiction? I answer, that an appeal would certainly lie from the latter,  to the Supreme Court of the United States. The constitution in direct terms gives an appellate jurisdiction to the Supreme Court in all the enumerated cases of federal cognizance in which it is not to have an original one, without a single expression to confine its operation to the inferior federal Courts. The objects of appeal, not the tribunals from which it is to be made, are alone contemplated. From this circumstance,  and from the reason of the thing, it ought to be construed to extend to the State tribunals. Either this must be the case, or the local Courts must be excluded from a concurrent jurisdiction in matters of national concern, else the judicial authority of the Union may be eluded at the pleasure of every plaintiff or prosecutor. Neither of these consequences ought, without evident necessity, to be involved; the latter would be entirely inadmissible, as it would defeat some of the most important and avowed purposes of the proposed government, and would essentially embarrass its measures. Nor do I perceive any foundation for such a supposition.Agreeably to the remark already made, the national and State systems are to be regarded as ONE WHOLE. The Courts  of the latter will of course be natural auxiliaries to the execution  of the laws of the Union, and an appeal from them will as naturally lie to that tribunal which is destined to unite and assimilate the principles of natural justice, and the rules of national decision. The evident aim of the plan of the national convention is, that all the causes of the specified classes shall, for weighty public reasons, receive their original or final determination in the Courts of the Union. To confine, therefore, the general expressions which give appellate jurisdiction to the Supreme Court, to appeals from the subordinate federal Courts, instead of allowing their extension to the State Courts, would be to abridge the latitude of the terms, in subversion of the intent, contrary to every sound rule of interpre ation.\" \nA contemp raneous exposition of the constitution, certainly of not less authority than that which has been just cited, is the judiciary act itself. We know that in the Congress which passed that act were many eminent members of the Convention which formed the constitution. Not a single individual, so far as is known, supposed that part of the act which gives the Supreme  Court appellate jurisdiction over the judgments of the State Courts in the cases therein specified, to be unauthorized by the constitution. \nWhile on this part of the argument, it may be also material to observe that the uniform decisions of this Court on the point now under consideration, have been assented to, with a single exception, by the Courts of every State in the Union whose judgments have been revised. It has been the unwelcome  duty of this tribunal to reverse the judgments of many State Courts in cases in which the strongest State feelings were engaged. Judges, whose talents and character would grace any bench, to whom a disposition to submit to jurisdiction that is usurped, or to surrender their legitimate powers, will certainly not be imputed, have yielded without hesitation to the authority by which their judgments were reversed, while they, perhaps, disapproved the judgment of reversal. \nThis concurrence of statesmen, of legislators, and of judges, in the same construction of the constitution, may justly inspire some confidence in that construction. \nIn opposition to it, the counsel who made this point has presented in a great variety of forms, the idea  already noticed, that the federal and State Courts must, of necessity, and from the nature of the constitution, be in all things totally distinct and independent of each other.If this Court can correct the errors of the Courts of Virginia, he says it makes them Courts of the United States, or becomes itself a part of the judiciary of Virginia. \nBut, it has been already shown that neither of these consequences necessarily follows: The American people may certainly give to a national tribunal a supervising power over those judgments of the State Courts, which may conflict with the constitution, laws, or treaties, of the United States, without converting them into federal Courts, or converting the national into a State tribunal. The one Court  still derives its authority from the State, the other still derives its authority from the nation. \nIf it shall be established, he says, that this Court has appellate jurisdiction over the State Courts in all cases enumerated in the 3d article of the constitution, a complete consolidation of the States, so far as respects judicial power is produced. \nBut, certainly, the mind of the gentleman who urged this argument is too accurate not  to perceove that he has carried it too far; that the premises by no means justify the conclusion. \"A complete consolidation of the States, so far as respects the judicial power,\" would authorize the legislature to confer on the federal Courts appellate jurisdiction from the State Courts in all cases whatsoever. The distinction between such a power, and that of giving appellate jurisdiction in a few specified cases in the decision of which the nation takes an interest, is too obvious not to be perceived by all. \nThis opinion has been already drawn out to too great a length to admit of entering into a particular consideration of the various forms in which the counsel who made this point has, with much ingenuity, presented his argument to the Court. The argument in all its forms is essentially the same. It is founded, not on the words of the constitution, but on its spirit, a spirit extracted, not from the words of the instrument, but from his view of the nature of our Union, and of the great fundamental principles on which the fabric stands. \nTo this argument, in all its forms, the same answer may be given. Let the nature and objects of  our Union be considered; let the  great fundamental principles, on which the fabric stands, be examined; and we think the result must be, that there is nothing so extravagantly absurd in giving to the Court of the nation the power of revising the decisions of local tribunals on questions which affect the nation, as to require that words which import this power should be restricted by a forced construction. The question then must depend on the words themselves; and on their construction we shall be the more readily excused for not adding to the observations already made, because the subject was fully discussed and exhausted in the case of Martin v. Hunter. \n3d. We come now to the third objection, which, though differently stated by the counsel, is substantially the same. One gentleman has said that the judiciary act does not give jurisdiction in the case. \nThe cause was argued in the State Court, on a case agreed by the parties, which states the prosecution under a law for selling lottery tickets,  which is set forth, and further states the act of Congress by which the City of Washington was authorized to establish the lottery. It then states that the lottery was regularly established by virtue of the  act, and concludes with referring to the Court the questions, whether the act of Congress be valid? whether, on its just construction, it constitutes a bar to the prosecution?and, whether the act of Assembly, on which the prosecution is founded, be not itself invalid? These questions were decided against the operation of the act of Congress, and in favour of the operation of the act of the State. \n If the 25th section of the judiciary act be inspected, it will at once be perceived that it comprehends expressly the case under consideration. \nBut it is not upon the letter of the act that the gentleman who stated this point in this form, founds his argument. Both gentlemen concur substantially in their views of this part of the case. They deny that the act of Congress, on which the plaintiff in error relies, is a law of the United States; or, if a law of the United States, is within the second clause of the sixth article. \nIn the enumeration of the powers of Congress, which is made in the 8th section of the first article, we find that of exercising exclusive legislation over such District as shall become the seat of government. This power, like all others which are specified,  is conferred on Congress as the legislature of the Union: for, strip them of that character, and they would not possess it. In no other character can it be exercised. In legislating for the District, they necessarily preserve the character of the legislature of the Union; for, it is in that character alone that the constitution confers on them this power of exclusive legislation. This proposition need not be enforced. \nThe 2d clause of the 6th article declares, that \n\"This constitution, and the laws of the United States, which shall be made in pursuance thereof, shall be the supreme law of the land.\" \nThe clause which gives exclusive jurisdiction is, unquestionably, a part of the constitution, and, as such, binds all the United States. Those who contend that acts of Congress, made in pursuance of  this power, do not, like acts made in pursuance of other powers, bind the nation, ought to show some safe and clear rule which shall support this construction, and prove that an act of Congress, clothed in all the forms which attend other legislative acts, and passed in virtue of a power conferred on, and exercised by Congress, as the legislature of the Union, is not a law  of the United States, and does not bind them. \nOne of the gentlemen sought to illustrate his proposition that Congress, when legislating for the District, assumed a distinct character, and was reduced to a mere local legislature, whose laws could possess no obligation out of the ten miles square, by a reference to the complex character of this Court.It is, they say, a Court of common law and a Court of equity. Its character, when sitting as a Court of common law, is as distinct from its character when sitting as a Court of equity, as if the powers belonging to those departments were vested in different tribunals. Though united in the same tribunal, they are never confounded with each other. \nWithout inquiring how far the union of different characters in one Court, may be applicable, in principle, to the union in Congress of the power of exclusive legislation in some places, and of limited legislation in others, it may be observed, that the forms of proceedings in a Court of law are so totally unlike the forms of proceedings in a Court of equity, that a mere inspection of the record gives decisive information of the character in which the Court sits, and consequeltly of the extent  of its powers. But  if the forms of proceeding were precisely the same, and the Court the same, the distinction would disappear. \nSince Congress legislates in the same forms, and in the same character, in virtue of powers of equal obligation, conferred in the same instrument, when exercising its exclusive powers of legislation, as well as when exercising those which are limited, we must inquire whether there be any thing in the nature of this exclusive legislation, which necessarily confines the operation of the laws made in virtue of this power to the place with a view to which they are made. \nConnected with the power to legislate within this District, is a similar power in forts, arsenals, dock yards, &c. Congress has a right to punish murder in a fort, or other place within its exclusive jurisdiction; but no general right to punish murder committed within any of the States. In the act for the punishment of crimes against the United States, murder committed within a fort, or any other place or district of country, under the sole and exclusive jurisdiction of the United States, is punished with death. Thus Congress legislates in the same act, under its exclusive and  its limited powers. \nThe act proceeds to direct, that the body of the criminal, after execution, may be delivered to a surgeon for dissection, and punishes any person who shall rescue such body during its conveyance from the place of execution to the surgeon to whom it is to be delivered. \n Let these actual provisions of the law, or any other provisions which can be made on the subject, be considered with a view to the character in which Congress acts when exercising its powers of exclusive legislation. \nIf Congress is to be considered merely as a local legislature, invested, as to this object, with powers limited to the fort, or other place, in which the murder may be committed, if its general powers cannot come in aid of these local powers, how can the offence be tried in any other Court than that of the place in which it has been committed? How can the offender be conveyed to, or tried in, any other place? How can he be executed elsewhere? How can his body be conveyed through a country under the jurisdiction of another sovereign, and the individual punished, who, within that jurisdiction, shall rescue the body. \nWere any one State of the Union to pass a law for trying  a criminal in a Court not created by itself, in a place not within its jurisdiction, and direct the sentence to be executed without its territory, we should all perceive and acknowledge its incompetency to such a course of legislation. If Congress be not equally incompetent,  it is because that body unites the powers of local legislation with those which are to operate through the Union, and may use the last in aid of the first; or because the power of exercising exclusive legislation draws after it, as an incident, the power of making that legislation effectual, and the incidental power may be exercised  throughout the Union, because the principal power is given to that body as the legislature of the Union. \nSo, in the same act, a person who, having knowledge of the comnission of murder, or other felony, on the high seas, or within any fort, arsenal, dock yard, magazine, or other place, or district of country within the sole and exclusive jurisdiction of the United States, shall conceal the same, &c. he shall be adjudged guilty of misprision of felony, and shall be adjudged to be imprisoned, &c. \nIt is clear, that Congress cannot punish felonies generally; and,  of consequence, cannot punish misprision of felony. It is equally clear, that a State legislature, the State of Maryland for example, cannot punish those who, in another State, conceal a felony committed in Maryland. How, then, is it that Congress, legislating exclusively for a fort, punishes those who, out of that fort, conceal a felony committed within it? \nThe solution, and the only solution of the difficulty, is, that the power vested in Congress, as the legislature of the United States, to legislate exclusively within any place ceded by a State, carries with it, as an incident, the right to make that power effectual. If a felon escape out of the State in which the act has been committed, the government cannot pursue him into another State, and apprehend him there, but must demand him from the executive power of that other State. If Congress were to be considered merely as the local legislature for the fort or other place in which the offence might be committed, then this principle would apply to them as to other local  legislatures, and the felon who should escape out of the fort, or other place, in which the felony may have been committed, could not be apprehended  by the marshal, but must be demanded from the executive of the State. But we know that the principle does not apply; and the reason is, that Congress is not a local legislature, but exercises this particular power, like all its other powers, in its high character, as the legislature of the Union.The American people thought it a necessary power, and they conferred it for their own benefit. Being so conferred, it carries with it all those incidental powers which are necessary to its complete and effectual execution. \nWhether any particular law be designed to operate without the District or not, depends on the words of that law. If it be designed so to operate, then the question, whether the power so exerclsed be incidental to the power of exclusive legislation, and be warranted by the constitution, requires a consideration of that instrument. In such cases the constitution and the law must be compared and construed. This is the exercise of jurisdiction. It is the only exercise of it which is allowed in such a case. For the act of Congress directs, that \"no other error shall be assigned or regarded as a ground of reversal, in any such case as aforesaid, than such as appears on  the face of the record, and immediately respects the before mentioned questions of validity or construction of the said constitution, treaties,\" &c. \nThe whole merits of this case, then, consist in the construction of the constitution and the act of Congress.  The jurisdiction of the Court, if acknowledged, goes no farther. This we are required to do without the exercise of jurisdiction. \nThe counsel for the State of Virginia have, in support of this motion, urged many arguments of great weight against the application of the act of Congress to such a case as this; but those arguments go to the construction of the constitution, or of the law, or of both; and seem, therefore, rather calculated to sustain their cause upon its merits, than to prove a failure of jurisdiction in the Court. \nAfter having bestowed upon this question the most deliberate consideration of which we are capable, the Court is unanimously of opinion, that the objections to its jurisdiction are not sustained, and that the motion ought to be overruled. \nMotion denied. \nThe cause was this day argued on the merits. \nMr. D. B. Ogden, for the plaintiffs in error, stated, that the question of conflict between  the act of Congress and the State law, which arose upon the record, depended upon the 8th section of the first article of the constitution, giving to Congress the exclusive power of legislation, in all cases whatsoever, over the District which had become the seat of the government of the United States, by cession from the States to whom it formerly belonged. Under this power, Congress has authorized the establishment of a lottery at the seat of government. Can  the State of Virginia prevent the sale of tickets in that lottery within her territory, consistently with the constitution? This question must depend upon the nature of the constitutional power of Congress, and of the law by which it is exercised. It was said by the counsel for the defendant in error, on the former argument, that the power is municipal, to be exercised over the District only, and, of course, confined in its operation to the limits of the District.But, in order to determine whether this is the true interpretation of the clause in question, we must more minutely examine what is the nature of the authority granted. The clause was not intended to give to Congress an unlimited power to legislate in  all cases, without reference to other provisions of the constitution. Otherwise Congress might pass bills of attainder and ex post facto laws, and exercise a despotic authority over the District of Columbia, and its citizens would thus be deprived of their rights entirely. Nor was it intended to authorize the exercise by congress of its general powers as a national legislature, within the District.Nor to exempt the District from the operation of those general powers. But the clause was inserted for the purpose of securing the independence of the national legislature, and government, from State control. The object in view was, therefore, strictly a national object. The District was created only for national purposes, and every law passed  for its government is peculiarly a national law. The words, \"exclusive  legislation in all cases whatsoever,\" were meant to exclude all State legislative power; and to vest in Congress, in addition to its general powers over the whole Union, all possible powers of legislation over the District. The law in question, is the expression of the national will on a national object. It is, then, an act of the general legislative  power of the Union, and its operation must be co-extensive with the limits of the Union, unless it is limited to the District of Columbia in express terms, or from the nature of the power itself being incapable of acting without the District. That the whole Union has an interest in the City of Washington, as the national capital, is shown by the cotemporaneous exposition of the constitution by its framers, and by the subsequent acts of the national legislature, providing for its improvement and embellishment. It is admitted, that some of the provisions of the law now in question, are local in their very nature, and, therefore, confined to the City, or the District, in their operation. But the power of the Corporation to establish lotteries, with the consent of the President, is not of this nature. Lottery tickets are an article of commerce, vendible in every part of the Union, as well as in the District of Columbia. A State law which forbids a citizen to sell or buy a ticket in a lottery, legally established by the national legislature, for national purposes, infringes the constitutional rights of the citizen, and tends to impede and defeat the exercise of this national power.  He cannot be punished by a State, for selling or buying that which Congress  has, in the exercise of a great national power, authorized to be bought or sold.The authority of establishing this lottery, so far from being confined to the City, could not be conveniently or effectually exercised without extending the saleable quality of the tickets throughout the Union. As a source of revenue, it would be inadequate to the objects for which it was established, without this extension. It is not one of the ordinary sources of revenue for the mere municipal wants of the City. It is a national grant for national purposes, to be used in each particular instance, with the approbation of the President. It is, then, a national law, enacted for a national purpose, and has no other limits in its operation than the limits of the legislative power itself. If Congress had intended to confine its operation within the District of Columbia, they would have expressed that intention. If, then, Congress have a right to raise a revenue, for any national purpose, by establishing a lottery, they had a right to establish this lottery; and no State law can defeat this, any more than the exercise  of any other national power. But even supposing that it is not a tax or duty, such as Congress have the express power of establishing; yet if it be necessary and proper, in the judgment of the Court, to carry into effect any power expressly granted, such as that of establishing and governing the City, it may be exercised throughout the Union. Congress have the same power to establish lotteries for this purpose, as the State legislatures, and every other legislature, have. The only difference is, that  with Congress it is the exercise of a national power, and must, therefore, be co-extensive in its operation with the Union, although the money to be raised by it cannot be applied to the use of any other City in the Union than that which is the national capital, and in which, consequently, all the States, and all the people, have a common interest. \nMr. Webster, contra, insisted, that Congress had not the power, under the constitution, of establishing a lottery in the District of Columbia, for municipal purposes, and of forcing the sale of the tickets throughout the Union, in contravention of the State laws; and, that even if they had the power, the law now in question did  not purport to authorize the Corporation of the City of Washington thus to force the sale of the tickets. It is clear that Congress, as a legislative body, exercise two species of legislative power: the one, limited as to its objects, but extending all over the Union: the other, an absolute, exclusive legislative power over the District of Columbia. The preliminary inquiry in the case now before the Court, is, by virtue of which of these authorities was the law in question passed? When this is ascertained, we shall be able to determine its extent and application. In this country, we are trying the novel experiment of a divided sovereignty, between the national government and the States. The precise line of division between these is not always distinctly marked. Government is a moral not a mathematical science; and the powers of such a government especially, cannot be defined with mathematical  accuracy and precision. There is a competition of opposite analogies.We arrive at a just conclusion by reasoning from these analogies, and by a general regard to the objects and purposes of this scheme of government. With a view to the present question, it may, perhaps, be  safely admitted, that there are certain acts of legislation passed by Congress, with a local reference to this District, which proceed from the general powers with which Congress are invested. They are local in their immediate operation and effect, but they are passed in virtue of general legislative powers. Such are the acts appropriating moneys for constructing the navy yard and the capitol. Some other acts are of a mixed nature. There are others clearly local, and passed in virtue of the local, exclusive jurisdiction. And of this latter class is the act now under consideration. It is for the establishment of a local City government, which arises from the exclusive power of legislation; and the clause authorizing the establishment of lotteries, is combined with other clauses of a mere municipal character: Noscitur a sociis. Every act of legislation must be limited by its subject matter, and there is nothing to show that this power is to be exercised more extensively than the other powers of the Corporation; nothing to show that this municipal power is to be carried beyond the City. It may be exercised within the City alone, and Congress has not said, and the Court cannot intend,  that it is to be exercised in other parts of the Union. Congress could not give such a charter to any other city in the Union, and if every federal  power granted in the constitution were destroyed, this power would remain. It exists independently, and  the legislative powers of the States can never conflict with it, because it can never operate within the States. Being a case of mere local legislation, it is not a casus faederis within that clause of the constitution which declares that the laws of the United States shall be the supreme law of the land.There can be no question of supremacy and subordination where there is no connection or conflict. The constitution makes this provision, because other legislative powers were to operate throughout the Union; the Congress and the States were to legislate over the same subjects, and over the same territory; and therefore there might be conflict. It was because the two codes were to prevail in the same places, and over the same persons. But the provision cannot extend to laws enacted by Congress for the mere local municipal government of the City, because the reason on which it is founded does not extend to  a case where all legislation is necessarily exclusive. There was no more reason in this instance to provide for a conflict of the two authorities, than in the case of the laws of a foreign State, which, except in the familiar example of questions relative to the lex loci contractus, cannot come in collision with out own laws, because they cannot operate extra-territorially. So here, from the very nature of things, there can arise no conflict between the local laws of the District of Columbia, and those of the States, because each code is confined to its own territory. Any sound interpretation of the law  in question, must limit it to the City of Washington. It does nto even extend to the other municipal Corporations within the District of Columbia, because it contains provisions expressly for the government of Washington alone, and does not profess to extend any of them beyond the limits of that City. A law cannot exceed the authority of the lawgiver, and that does not extend beyond the District, and is limited in its actual exercise to the City. There is no authority showing that a grant of power of this kind to a municipal Corporation, extends beyond the local limits  of the City. \nThe Attorney-General, for the plaintiffs in error, in reply, contended, that Congress, in passing the law under consideration, acted in the name of the whole nation, and for a great national object. Congress did not, as contended in the argument on the jurisdiction of the Court, succeed, by the cession, merely to the legislative powers of Maryland and Virginia, over this District.They are not the trustees of those States only; they are the trustees of the whole nion. The cession was to the Congress and government of the United States. The jurisdiction over the territory belongs to the entire people of the United States. It is not the power of Maryland and Virginia which Congress represents, but the power of all the States; and the territory ceded is to be looked at, not with reference to its origin, not as still forming ideally a part of Maryland and Virginia, but is to be regarded as if incorporated into every State in the Union. The question is not, then, to be solved by asking  what those States could do with respect to this territory, but what each State of the Union could do with regard to its own territory: because, to borrow an expression from the  municipal law, each State of the Union is seized jointly with all the rest, per me et per tout, of the whole jurisdiction over this territory. The acts of the Congress in legislating for the District of Columbia are the acts of all the people of all the States. It is therefore a fallacy in argument to represent Congress as succeeding merely to the same degree of power which Maryland and Virginia formerly had over this territory. Could those States have taxed the other States, or borrowed money on their credit, for the improvement of this territory, as Congress have done? Although the jurisdiction of the States who formerly held the sovereignty and domain of this territory has been supplanted by Congress, the substituted jurisdiction is far more extensive than that which they held. It is a jurisdiction, which in the instances mentioned, and many others which might be enumerated, is capable of affecting all the States. It cannot be denied that the character of the jurisdiction which Congress has over the District, is widely different from that which it has over the States; for, over them, Congress has not exclusive jurisdiction. Its powers over the States are those only which  are specifically given, and those which are necessary to carry them into effect: whilst over the District it has all the powers which it has over the States, and in addition to these, a power of legislation exclusive of  all the States. But although the jurisdiction over the District is of a different and more extensive character, yet it is not so circumscribed that it may not incidentally affect the States, although exerted for a local purpose, as it is called. Such is sometimes the delusive effect of single words and phrases, that the position, that in legislating for the District of Columbia, Congress is a local legislature, for local purposes, and therefore cannot affect the States by its laws, has almost become an aphorism with indolent or prejudiced inquirers. But in what sense can that be called a local government which proceeds from the whole body of the nation? And how can that be termed a local object, which is closely and inseparably connected with the general interest of the whole people of the Union? As well might it be asserted that Congress acted as a local legislature, when it established offices for the sale of lands in the western States, or fortifications  at particular points on the sea-coast. It will not be pretended that the first establishment of the seat of government in this District, was an act done by Congress in its character of a local legislature, and for local purposes. How then can the subsequent acts for the improvement and embellishment of the City be so regarded? The act of May 6th, 1796, authorized the commissioners for erecting the public buildings to borrow money for that purpose. Would it have been competent for the legislatures of the States to have impeded this loan by punishing their citizens for subscribing to this stock? And could the States prohibit the sale of the City lots within their territory, and thus arrest  the improvement of the City? And if they could not, is it not because what Congress in the legitimate exercise of its powers has made it lawful to sell, the States cannot make it unlawful to buy? Let us test  by these considerations the question before the Court: and let us distinguish between Congress legislating for the municipal government of the City, and Congress, in its national character, providing the means of adding necessary public improvements to the national  capital. Congress has itself made this distinction. When a regulation for the mere internal police of the City is to be made, it is done by the Corporation, or some other inferior agent, without the interference of the President of the United States. But, when an alteration of the plan of the City, or a public improvement affecting the whole of the City in a national point of view, is to be made, it is uniformly subjected to the control of the President. So here the specific purpose in view, and for which the lottery was authorized by the President, was, the establishment of a City Hall. a necessary consequence of the establishment of the City, which last was also a necessary consequence of the establishment of the seat of government. \nThe opinion of the Court was delivered by Mr. Chief Justice MARSHALL. \nThis case was stated in the opinion given on the motion for dismissing the writ of error for want of jurisdiction in the Court. It now comes on to be decided on the question whether the Borough Court of Norfolk, in overruling the defence set up under  the act of Congress, has misconstrued that act. It is in these words: \n\"The said Corporation shall have full power  to authorize the drawing of lotteries for effecting any important improvement in the City, which the ordinary funds or revenue thereof will not accomplish: Provided, that the sum to be raised in each year shall not exceed the amount of 10,000 dollars: And provided, also, that the object for which the money is intended to be raised shall be first submitted to the President of the United States, and shall be approved of by him.\" \nTwo questions arise on this act. \n1st. Does it purport to authorize the Corporation to force the sale of these lottery tickets in States where such sales may be prohibited by law? If it does, \n2d. Is the law constitutional? \nIf the first question be answered in the affirmative, it will become necessary to consider the second. If it should be answered in the negative, it will be unnecessary, and consequently improper, to pursue any inquiries, which would then be merely speculative, respecting the power of Congress in the case. \nIn inquiring into the extent of the power granted to the Corporation of Washington, we must first examine the words of the grant. We find in them no expression which looks beyond the limits of the City. The powers granted are all  of them local in their nature, and all of them such as would, in the common course of things, if not necessarily, be exercised  within the city. The subject on which Congress was employed when framing this act was a local subject; it was not the establishment of a lottery, but the formation of a separate body for the management of the internal affairs of the City, for its internal government, for its police. Congress must have considered itself as delegating to this corporate body powers for these objects, and for these objects solely. In delegating these powers, therefore, it seems reasonable to suppose that the mind of the legislature was directed to the City alone, to the action of the being they were creating within the City, and not to any extra-territorial operations. In describing the powers of such a being, no words of limitation need be used. They are limited by the subject. But, if it be intended to give its acts a binding efficacy beyond the natural limits of its power, and within the jurisdiction of a distinct power, we should expect to find, in the language of the incorporating act, some words indicating such intention. \nWithout such words, we cannot suppose  that Congress designed to give to the acts of the Corporation any other effect, beyond its limits, than attends every act having the sanction of local law, when any thing depends upon it which is to be transacted elsewhere. \nIf this would be the reasonable construction of corporate powers generally it is more especially proper in a case where an attempt is made so to exercise those powers as to control and limit the penal laws of a State. This is an operation which was not,  we think, in the contemplation of the legislature, while incorporating the City of Washington. \nTo interfere with the penal laws of a State, where they are not levelled against the legitimate powers of the Union, but have for their sole object the internal government of the country, is a very serious measure, which Congress cannot be supposed to adopt lightly, or inconsiderately. The motives for it must be serious and weighty. It would be taken deliberately, and the intention would be clearly and unequivocally expressed. \nAn act, such as that under consideration, ought not, we think, to be so construed as to imply this intention, unless its provisions were such as to render the construction inevitable. \n We do not think it essential to the corporate power in question, that it should be exercised out of the City. Could the lottery be drawn in any State of the Union? Does the corporate power to authorize the drawing of a lottery imply a power to authorize its being drawn without the jurisdiction of a Corporation, in a place where it may be prohibited by law? This, we think, would scarcely be asserted. And what clear legal distinction can be taken between a power to draw a lottery in a place where it is prohibited by law, and a power to establish an office for the sale of tickets in a place where it is prohibited by law? It may be urged, that the place where the lottery is drawn is of no importance to the Corporation, and therefore the act need not be so construed as to give power over the place, but that the right to sell tickets throughout the United  States is of importance, and therefore ought to be implied. \nThat the power to sell tickets in every part of the United States might facilitate their sale, is not to be denied; but it does not follow that Congress designed, for the purpose of giving this increased facility, to overrule the penal laws of the several States.  In the City of Washington, the great metropolis of the nation, visited by individuals, from every part of  the Union, tickets may be freely sold to all who are willing to purchase. Can it be affirmed that this is so limited a market, that the incorporating act must be extended beyond its words, and made to conflict with the internal police of the States, unless it be construed to give a more extensive market? \nIt has been said, that the States cannot make it unlawful to buy that which Congress has made it lawful to sell. \nThis proposition is not denied; and, therefore, the validity of a law punishing a citizen of Virginia for purchasing a ticket in the City of Washington, might well be drawn into question. Such a law would be a direct attempt to counteract and defeat a measure authorized by the United States. But a law to punish the sale of lottery tickets in Virginia, is of a different character. Before we can impeach its validity, we must inquire whether Congress intended to empower this Corporation to do any act within a State which the laws of that State might prohibit. \n In addition to the very important circumstance, that the act contains no words indicating  such intention, and that this extensive construction is not essential to the execution of the corporate power, the Court cannot resist the conviction, that the intention ascribed to this act, had it existed, would have been executed by very different means from those which have been employed. \nHad Congress intended to establish a lottery for those improvements in the City which are deemed national, the lottery itself would have become the subject of legislative consideration. It would be organized by law, and agents for its execution would be appointed by the President, or in such other manner as the law might direct. If such agents were to act out of the District, there would be, probably, some provision made for such a state of things, and in making such provisions Congress would examine its power to make them. The whole subject would be under the control of the government, or of persons appointed by the government. \nBut in this case no lottery is established by law, no control is exercised by the government over any which may be established. The lottery emanates from a corporate power. The Corporation may authorize, or not authorize it, and may select the purposes to which  the proceeds are to be applied. This Corporation is a being intended for local objects only. All its capacites are limited to the City. This, as well as every other law it is capable of making, is a by-law, and, from its nature, is only co-extensive with the City. It is not probable that  such an agent would be employed in the execution of a lottery established by Congress; but when it acts, not as the agent for carrying into effect a lottery established by Congress, but in its own corporate capacity, from its own corporate powers, it is reasonable to suppose that its acts were intended to partake of the nature of that capacity and of those powers; and, like all its other acts, be merely local in its nature. \nThe proceeds of these lotteries are to come in aid of the revenues of the City. These revenues are raised by laws whose operation is entirely local, and for objects which are also local; for no person will suppose, that the President's house, the Capitol, the Navy Yard, or other public institution, was to be benefitted by these lotteries, or was to form a charge on the City revenue. Coming in aid of the City revenue, they are of the same character with it; the  mere creature of a corporate power. \nThe circumstances, that the lottery cannot be drawn without the permission of the President, and that this resource is to be used only for important improvements, have been relied on as giving to this corporate power a more extensive operation than is given to those with which it is associated. We do not think so. \nThe President has no agency in the lottery. It does not originate with him, nor is the improvement to which its profits are to be applied to be selected by him. Congress has not enlarged the corporate power by restricting its exercise to cases of which the President might approve. \n We very readily admit, that the act establishing the seat of government, and the act appointing commissioners to superintend the public buildings, are laws of universal obligation. We admit, too, that the laws of any State to defeat the loan authorized by Congress, would have been void, as would have been any attempt to arrest the progress of the canal, or of any other measure which Congress may adopt. These, and all other laws relative to the District, have the authority which may be claimed by other acts of the national legislature; but their  extent is to be determined by those rules of construction which are applicable to all laws. The act incorporating the City of Washington is, unquestionably, of universal obligation; but the extent of the corporate powers conferred by that act, is to be determined by those considerations which belong to the case. \nWhether we consider the general character of a law incorporating a City, the objects for which such law is usually made, or the words in which this particular power is conferred, we arrive at the same result. The Corporation was merely empowered to authorize the drawing of lotteries; and the mind of Congress was not directed to any provision for the sale of the tickets beyond the limits of the Corporation. That subject does not seem to have been taken into view. It is the unanimous opinion of the Court, that the law cannot be construed to embrace it. \nJudgment affirmed. \n JUDGMENT. This cause came on to be heard on the transcript of the record of the Quarterly Session Court for the Borough of Norfolk, in the Commonwealth of Virginia, and was argued by counsel. On consideration whereof, it is ADJUDGED and ORDERED, that the judgment of the said Quarterly Session  Court for the Borough of Norfolk, in this case, be, and the same is hereby affirmed, with costs. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Chief Justice MARSHALL delivered the opinion of the Court, and after stating the facts, proceeded as follows: \nOn the first branch of the question certified from the Circuit Court, no doubt can be entertained. The defendants having received the cargo of the Henry Clay, and sold it, are accountable for the proceeds, although the cargo should be considered as the property of the plaintiffs. Whether the defendants are liable for the moneys actually advanced in Amsterdam, or for the net amount of sales in Baltimore, considering the goods as the property of the plaintiffs, still they are liable for something; and, of consequence, the action is sustainable. \n In deciding on the second branch of the instructions which  were required, it becomes material to examine the orders which were carried out by the Henry Clay on her voyage from Baltimore to Amsterdam, contained in the letters of the 25th of April, the one to the plaintiffs, the other to the master. \nIt is admitted, that no freight to Batavia could be obtained, and that the vessel could not be sold at the limited price; consequently, the only deviation from orders alleged by the defendants is, the purchase of the Russian  goods for the return cargo at Amsterdam, instead of sending the Henry Clay to St. Petersburg. \nThat the orders of the defendants to send their ship to St. Petersburg, in the event which had occurred, were positive; and that no authority was given to purchase her return cargo at Amsterdam, under any circumstances, are too apparent for controversy. That this purchase, thus made without authority, whether with, or without, the consent and concurrence of the master, must have been made at the risk of the plaintiffs, is also too clear for argument. But the liability of the plaintiffs for any loss which the defendants may have sustained by the breaking up of the voyage to St. Petersburg, depends on the question, whether  the control of that voyage was committed to them, or to the master. In considering this question, it is proper to take into view all the instructions which were given, and to compare the two letters written by the defendants with each other. \nIn the commencement of the letter written by  Mr. M'Kim, on the part of the defendants, he says, \"I have been directed by the owners to consign the ship to your house, also that part of the cargo which I consider belongs to the owners jointly.\" \nWhether this consignment was limited to the transactions in Amsterdam, or extended to any subsequent voyage in which the Henry Clay might be directed to engage, depends on other parts of the letter. \nMr. M'Kim then proceeds to direct, that certain parts of the outward cargo should \"remain as a fund for the purpose of loading the ship, if she should proceed to St. Petersburg.\" \nThese orders are precise and explicit, with respect to the funds which are to remain in the hands of the plaintiffs for the purchase of the cargo in St. Petersburg, but are silent respecting any agency of the plaintiffs in making that purchase. \nAfter communicating the desire of the defendants, that a freight should be  obtained for Batavia, the letter proceeds to say, \"And secondly, if the ship can be sold for 8,000 pounds sterling, you will dispose of her rather than send her to St. Petersburg.\" \nThis part of the letter may indicate, that in some other part of it, might be found an express order to send the Henry Clay to St. Petersburg, if the primary objects of the defendants should be unattainable, but does not in itself amount to such express order. The writer does not say, \"we request you, if the vessel cannot be sold, to send her to St. Petersburg;\" but, \"you will dispose of her, rather than send her to St. Petersburg;\" as if there were some authority  not communicated by these words, to which they have allusion. There is no such authority, unless it be implied in the general consignment of the vessel. \nThat consignment is completely satisfied by the agency which was to be exercised in Amsterdam. If it was designed to extend it to the eventual voyage to St. Petersburg, the Messrs. Willinks would naturally expect to find some instructions respecting that voyage; respecting the articles of which the cargo was to consist, and their conduct in the purchase of them. But they could  find no such instructions. In a subsequent part of the letter, Mr. M'Kim states the estimated value of the cargo he had ordered, and is explicit in his request, that they would advance the necessary funds for laying it in, should those placed in their hands be insufficient; but he is entirely silent with respect to their having any other agency in the voyage. \nIt was impossible for these gentlemen to read this letter without, at least, doubting their power to interfere farther, with respect to the voyage to St. Petersburg, than to advance the money which might be required for the cargo to be purchased at that place. The letter contains all the information, and all the power which was necessary for this purpose, but contains neither information nor power, for any other purpose. \nIt was natural for the Messrs. Willinks to require farther information on this subject, and to seek it from the master. He could have no motive for withholding his letter of instructions from them, and in that they would find, that the management of the  voyage was committed to him, and that the utmost confidence was reposed in his intelligence and integrity. \"I hope,\" says M'Kim, \"that every  exertion will be made to proceed to St. Petersburg immediately, if you do not go to Batavia, and the ship cannot be sold.\" These exertions were to be made by the master; he was to proceed immediately to St. Petersburg; and as no reference is here made to the Messrs. Willinks, the fair inference seems to be, that he was expected to proceed, not in consequence of any orders he should receive from them, but in consequence of the orders he had received from the owners. \"The same industry,\" he is told, \"must be used to get away from St. Petersburg.\" The letter then adds, \"the owners must also depend on your attention at St. Petersburg, that the hemp is good that you receive.\" \nBut the part of the letter which seems to be conclusive on this point, is that which relates to the consignment of the ship. \"The Messrs. Willinks,\" says the writer, \"will of course endeavour to consign the ship to a friend of theirs at St. Petersburg, but we have great confidence in a house recommended by Mr. Cumberland D. Williams, Messrs. Meyer and Buxner, and we wish you to consign the ship to them.\" \nThe owners then did not suppose, that they had empowered the plaintiffs to order the ship to St. Petersburg.  They did not suppose, that their original consignment of the Henry Clay to the Messrs. Willinks, implied a control over her after the transactions at Amsterdam should be terminated. Had  such a control existed, those gentlemen would not have consigned her to one of their friends. But these words show conclusively, that the defendants themselves directed the consignment of the ship from Amsterdam to St. Petersburg, and in executing their orders, the master is not merely directed to proceed without consulting the Messrs. Willinks, he is directed to disregard their advice should it be offered. \nThe plaintiffs could not compare this letter with that addressed to themselves, without perceiving that, with respect to the voyage to St.  Petersburg, every order was given directly to the master without reference to them, farther than to show, that their interference, with respect to the consignment of the ship, was to be disregarded; and that their agency was confined to advancing the necessary funds for the purchase of the return cargo. \nBoth the master and the Messrs. Willinks appear to have acted on this construction of their respective powers. The correspondence  between them contains no indication of an opinion in either, that the voyage to St. Petersburg depended on the orders of those gentlemen. The master does not require their orders, but asks their advice; they do not attempt to order, they only advise. This advice may have been dictated by their best judgment, or may have been dictated by a view to personal interest; still it is mere advice, and was both given and received as advice. \nThe conduct of the parties, then, is full proof of the opinion each entertained of the authority of each; and the first letters written after they had met in  Amsterdam, show that free communications had taken place between them. In a letter of the 19th of June, addressed to Captain Gantt, the Messrs. Willinks say, \"We have not received yet the promised note of the Russian goods that would be wanted for the Henry Clay.\" And in the captain's letter from the Helder, of the 18th of June, he says, \"Herewith, I annex you a copy of the order for Russian produce, which the owners of the Henry Clay wish to constitute her return cargo.\" \nThese letters strengthen the probability, that in the verbal communications which were made at Amsterdam, the captain  had stated his orders relative to the voyage to St. Petersburg; at any rete, they show, that the note for the cargo, which had not been transmitted to the Messrs. Willinks, had been entrusted to him. There is an expression in the last letter of the plaintiffs to the defendants, which seems to have some bearing on the question, whether the captain had communicated to them his letter of instructions. They say, \"You cannot expect, gentlemen, that we shall enter here into all the details of this business, which has been conducted by us, bona fide, with a view to your greatest benefit and advantage, faithfully relying on your promises, and considering the incomplete state of your instructions to us, that your captain was furnished with more particular orders.\" \nThere is a vagueness in these expressions, arising, probably, from the unskilfulness of the trauslation, if they were not written in our language, which  leaves it, in some measure, uncertain, whether the plaintiffs meant to assert, that the captain was furnished with more particular orders, or that they inferred this fact from the incomplete state of the instructions to themselves. If the case depended entirely on  the question, it might, perhaps, be proper to refer to the original; but we do not think, that the right of the defendants to the deduction they claim from the demand, depends entirely on the fact, that their orders to their captain were shown to the plaintiffs. Their letter to the plaintiffs was at best equivocal; and any evidence showing that the construction which the plaintiffs put on that letter, conformed to the intention of the defendants, will justity the plaintiffs, although that evidence was not in their possession pending the transaction. The defendants cannot be permitted to say, \"It is true, we did not intend to consign the Henry Clay to you, farther than was necessary to your agency in Amsterdam. We did not intend to give you any control over her voyage to St. Petersburg. We had committed that whole subject to our captain, and had given him precise orders respecting it. We had even gone so far as to direct him to disregard your consignment of the vessel, should you endeavour to make one. But you did not see these orders, and we will, therefore, make you responsible for not having understood our letter to you, as creating a duty which we did not intend it should  create.\" This, certainly, cannot be permitted. As little can they be permitted to charge the Messrs. Willinks, in consequence of the  advice they gave, with the profits which might possibly have been made on the voyage to St. Petersburg. Although the orders were broken with their advice, still they were broken by the master, to whom their execution was confided, not by the Messrs. Willinks, to whom their execution had not been confided. \nWere it even possible, that the Messrs. Willinks could be made responsible in any form of action which could be devised, for the possible loss resulting from the breaking up of the voyage to St. Petersburg, they cannot, we think, be made responsible in this. Having loaded the Henry Clay at Amsterdam, clearly without authority, the cargo was shipped at their risk. The defendants might have refused it altogether. But they have sold it, and received the money. This creates an assumpsit to pay the money received. This action, then, so far as respects the count for money received by the defendants to the plaintiffs' use, is founded on the transactions in Baltimore; and, were it even possible, which we are far from admitting, that the defendants  could be allowed to make a deduction of this supposed loss, from the sum to be recovered on the count for money laid out and expended to their use, provided that count could be supported, yet they cannot be allowed to make that deduction from the sum to be recovered on the count for money had and received to the use of the plaintiffs, for goods sold as the goods of the plaintiffs. \n CERTIFICATE. This cause came on to be heard on the transcript of the record of the Circuit Court, for the fourth Circuit and District of Maryland, and on the question on which the Judges of said Court were divided, and was argued by counsel. On consideration whereof, this Court is of opinion, that the plaintiffs have a demand in law against the defendants, which can be maintained in the action now depending in the Circuit Court, and that the defendants are not entitled to a deduction from the same for the amount of any loss which may have been sustained by them by reason of the alteration in the destination of the ship Henry Clay to St. Petersburg, and the loading her at Amsterdam. Which opinion is directed to be certified to the Circuit Court. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Chief Justice MARSHALL delivered the opinion of the Court. \nThis is a writ of error  to a judgment rendered by the Circuit Court for the District of Columbia and county of Alexandria, against Andrew Bartle and Samuel Bartle, on a writ issued by George Coleman against Andrew Bartle, on the service of which, Samuel Bartle became bail for his appearance. The defendant in the Court below not having entered his appearance, a conditional judgment was entered at the rules held in the clerk's office, against the defendant and his appearance bail. This being an action on the case, the judgment at the rules was for no specific sum, but for the damages which the plaintiff in that suit has sustained, which damages are to be inquired into, and ascertained by a jury. After this writ of inquiry shall be executed, and not till then, a final judgment for the damages assessed by the jury is rendered by the Court. In the mean time, the cause stands on the Court docket for trial. \nThe act of Assembly respecting this subject is in these words: \"And every judgment entered in the office against a defendant and bail,  or against a defendant  and sheriff, shall be set aside, if the defendant at the succeeding Court shall be allowed to appear without bail, put in good  bail, being ruled so to do, or surrender himself in custody, and shall plead to issue immediately.\" \"If the defendant shall fail to appear, or shall not give special bail, being ruled thereto by the Court, the bail for appearance may defend the suit, and shall be subject to the same judgment and recovery as the defendant might or would be subject to, if he had appeared and given special bail.\" \nThe Courts of Virginia have never construed this act strictly as to time. Although the absolute right given to the defendant to appear and set aside the judgment rendered in the office, is limited to \"the succeeding Court,\" he has always been allowed to appear, and set it aside, at any time before it became final. In all actions which sound in damages, the judgment cannot become final, until the damages shall be ascertained for which it is to be rendered. \nIn other respects, too, this law which authorizes a judgment against the appearance, or common bail, without the service of process on him, has been construed with great liberality. The cases which have been cited, show that the decisions in the Court of Appeals of Virginia, have settled principles which seem to decide this case. It has  not only been determined that the defendant may enter special bail, and defend the suit at any time before a final judgment, but also that if he appears and pleads, without giving special bail, or appears and confesses judgment, the appearance bail is discharged. \n It is also well known to be the settled practice of Virginia, if special bail be given, to discharge the appearance bail, although the defendant should not appear, but the judgment should become final, either on his default, or on the execution of a writ of inquiry. \nIt is then settled, that the appearance of the defendant, or the entry of special bail, before final judgment, discharges the appearance bail. \nLet these principles be applied to the case before the Court. While the writ of inquiry was depending, we find this entry on the record. \"In the case of George Coleman, plaintiff, and Andrew Bartle, defendant; and Andrew Bartle, plaintiff, and George Coleman, defendant; by consent of parties this case is referred to Joseph Deane,\" &c. \nCould this rule be made without consent? Or could this consent be given without the appearance of the party, by himself or his attorney? Both these questions must be answered  in the negative.What party, then, did appear and give this consent? Was it Andrew Bartle, the defendant in the cause, who is named as the party, or was it Samuel Bartle, his appearance bail, who is not named? In addition to the omission of the name of Samuel Bartle, an omission which could not have been made had he actually appeare, and been a party to the rule, it is to be observed that he had no power to consent to it. The law allows him to defend the suit, but does not allow him to refer it to arbitrators. We do not hazard much in saying, that no Court would or ought to permit such a rule as this to be made, without the consent of the defendant given in person, or by his attorney.  But were it even supposed to be in the power of Samuel Bartle to reter the suit of Coleman against Andrew Bartle, he could not refer that of Andrew Bartle against Coleman; and this suit also is embraced in the same rule. \nIt is then apparent, that it is Andrew Bartle who consented to this rule. \nIt has been contended, that the consent of Samuel Bartle must also be implied. We do not think so. It is reasonable to suppose that his name would have appeared, had he been a party to the rule.  But it was not necessary that he should be a party to it. Andrew Bartle was himself competent to make this reference, and the appearance bail never comes into Court, unless it be to defend the suit in consequence of the non-appearance of the defendant. But, were it even true that the consent of Samuel Bartle could be inferred, it would, nevertheless, be also true, that Andrew Bartle appeared, by the admission of the plaintiff; and such appearance, according to the decisions in Virginia, discharges his bail. \nIn the mode pursued by the clerk, in making his entry, the usual form of saying \"this day came the parties,\" &c. is not pursued. But this is immaterial, because the parties perform an act in Court, which could not be performed without appearing; they consent to a rule which implies appearance, and the form of the entry cannot affect its substance. Were it otherwise, the appearance of the defendant is entered in the usual form before final judgment. On the return of the  award, the following entry is made: \"And now here, &c. at this day, &c. came, as well the plaintiff aforesaid, by his said attorney, as the said defendant, by Thomas Swan, his attorney, and the  following award was returned,\" &c. The award is then recited, which shows, that the arbitrators proceeded on notice to Andrew Bartle only, and the judgment of the Court is immediately rendered for the amount of the award against \"Andrew Bartle, the defendant, and Samuel Bartle, the security for his appearance.\" Yet the appearance of Andrew Bartle is formally entered on the record previous to this judgment. If, instead of entering the judgment in pursuance of the award, it had been entered in pursuance of the confession of the defendant, this would have been the very case cited from 1 Hen. & Munf. 32. And what distinction can be taken between this case and that?The counsel for the defendant in error says, that a judgment by confession is a different judgment from that entered in the office, and, therefore, must be a substitute for it received by consent of the plaintiff. And is not this also a different judgment from that rendered in the office? And is it not entered at the instance of the plaintiff? \nWere it necessary to pursue this argument further, we should all be of opinion, that judgment could not be rendered against the appearance bail on this award, and without executing  the writ of inquiry, unless by his consent. But as we are of opinion, that the appearance of the defendant has discharged his bail, it is unnecessary to pursue the subject  farther.  The judgment against Samuel Bartle is erroneous, and as it is joint, it must be reversed against both. \nJudgment reversed. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Chief Justice MARSHALL delivered the opinion of the Court, and after stating the case, proceeded as follows: \nIt is perfectly clear that no such exception is contained in the statute of limitations, or in the act of Congress concerning insolvent debtors. If it is to be created at all, it must be by implication. It is contended in the first place, that the insolvent debtor, after his discharge, is to be considered in respect to his future property,  as a trustee for his creditors; and the statute of limitation does not run against a trust. If he is a trustee for his creditors, is he a trustee for those creditors only who were such at the time he obtained the benefit of the act? or, is he a trustee for those who afterwards become his creditors? It will not be pretended that he is exclusively a trustee for the former: and if he be a trustee for the benefit of all his creditors, then this suit should have been brought for the benefit of all, and not for the benefit of a single creditor. The proviso of the section respecting the liability of the future property of the insolvent, has been supposed to aid the argument that he is a trustee: But we are all of a different opinion; the previous part of the section having exempted his person from imprisonment, the object of the proviso was to make all his future effects liable, and to retain all the remedies against it, in the same manner as if his person had not been discharged. The act, therefore, did not intend to create any new liability, or any new trust. \nIt is farther insisted, that this is to be considered as an exception out of the statute of limitations, because   it is a debt of record. But a debt of record, in the sense of the common law, is a debt or contract created of record; such as a statute staple, or statute merchant, and not one whose previous existence is only admitted of record. The effect of recording this debt was merely an admission of its existence, and not a change of its nature. It would have been sufficient evidence, if five years had not elapsed after recording, to have sustained an issue on a replication of a new promise to the plea of the statute of limitations. But more than five years having elapsed, it could have no application in this case. It is the opinion of the Court, that the demurrer to the replication is sustained, and that judgment ought to be given for the defendant. \nDecree affirmed. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Chief Justice MARSHALL delivered the opinion of the Court. -- \nThis was an action of debt on a judgment which had been rendered in favour of the United States, against Thomas  Sheppard, and the two defendants in error. The marshal returned, as to Sheppard, non est inventus. The other two defendants pleaded that they were sureties to Sheppard, in the bond on which the former judgment was rendered: that the United  States took out a ca. sa. on that judgment, against Sheppard, by virtue of which he was imprisoned; whereupon William H. Crawford, the Secretary of the Treasury of the United States, released the said Sheppard from execution, on his paying costs, and conveying all his property, real, personal, and mixed, to the United States; with which condition, it is admitted, Sheppard complied. The United States demurred, and the Circuit Court gave judgment on the demurrer, pro forma, for the defendants; which judgment is now before this Court on a writ of error. \nIt is not denied, that at Common Law, the release of a debtor whose person is in execution, is a release of the judgment itself. Yet the body is not satisfaction in reality, but is held as the surest means of coercing satisfaction. The law will not permit a man to proceed at the same time against the person and estate of his debtor; and when the creditor has elected to take the person,  it presumes satisfaction, if the person be voluntarily released. The release of the judgment is, therefore, the legal consequence of the voluntary discharge of the person by the creditor. \nThis being the positive operation of the Common Law, it may unquestionably be changed by statute. \nThe United States contend, that it is changed by the Act providing for the relief of persons imprisoned for debts due to the United States. That Act authorizes the Secretary of the Treasury, on receiving a conveyance of the estate of a debtor confined in jail at the suit of the United States, or any collateral security, to the use of the United States, to discharge such debtor from his imprisonment under such execution; and he shall not be again imprisoned for the said debt; \"but the judgment shall remain good and sufficient in law, and may be satisfied out of any estate, which may then or at any time afterwards belong to the debtor.\" \nThe sole duty of the Court is to construe this statute according to its words, and the intent of the legislature. Did Congress design to discharge the sureties or to release the judgment? \nThe Act is \"For the relief of persons imprisoned for debts due to the United  States,\" not for the relief of their sureties; and does not contain a single expression conducing to the opinion, that the mind of the legislature was directed towards the sureties, or contemplated their discharge. The only motive for the Act, being to relieve debtors who surrender all their property, from the then useless punishment of imprisonment; there can be no motive for converting this Act of mere humanity, into the discharge of other debtors, whose condition it does not in any measure deteriorate. If the Act produces this  effect, it is an effect contrary to its intention, occasioned by a technical rule, originating in remote ages;  which has never been applied to a statutory discharge of the person. \nBut the language of the statute has guarded against this result. It has expressly declared, that the judgment shall remain good and sufficient in law. How can this Court say that it is not good, and is not sufficient? If it be good and sufficient, for what purpose is it so? Certainly, for the purposes for which it was rendered -- to enable the United States to proceed regularly upon it, as upon other judgments; with the single exception, made by the  Act itself. The voluntary discharge of a debtor, by his creditor, is a release of the judgment, because such is the law. But in this case, the legislature has altered the law. It has declared that the discharge of a debtor in the forms prescribed, shall amount solely to a liberation of the person -- not to a release of the judgment. That shall remain good and sufficient. Were Courts to say, that, notwithstanding this provision, the judgment is released, it would amount to a declaration that a technical rule, in the Common Law, founded in a presumption growing out of the simplicity of ancient times, and not always consistent with the fact, is paramount to the legislative power. It would in fact be to repeal the statute. It would unquestionably be to defeat the object of the legislature; since it would be no very hardy assertion to say, that, if the discharge of the person in custody discharged the other obligors, the imprisoned debtor would never be released, while the debt remained unpaid; unless the insolvency extended to all the obligors. \nThe second point made by the counsel for the defendants, that the sureties are exonerated by the compromise made with the principal without  their concurrence, is the same in principle with that which has been considered. No compromise of the debt has been made. The course prescribed by the law has been pursued. The whole property of the imprisoned debtor has been surrendered, and on receiving it, his person has been discharged. The Act of Congress declares, that the judgment shall still remain in force. If the creditor had entered into a compromise not prescribed by law, or had given any discharge not directed by statute, the question might have been open for argument. But, while the whole transaction is within the precise limits marked out by law, it cannot produce a result directly opposite to that intended by the statute. The only doubt which can be suggested respecting the intent of the legislature, is created by the last words of the sentence, declaring, that the judgment shall remain good and sufficient in law. They are \"and may be satisfied out of any estate which may then, or at any time afterwards belong to the debtor.\" These words are certainly  useless; and may be supposed to indicate an idea, that it could be satisfied out of the estate of the debtor only. That as they are not required to  render that estate liable, they may be understood to limit the right of the creditor to obtain satisfaction from the estate of any other person. We do not however think this the correct construction. The words are considered as mere surplusage, not as limiting the rights of the United States to proceed against all those who are bound by the judgment. \nWe think, then, that the Circuit Court ought to have sustained the demurrer; and that the judgment which overrules it ought to be reversed. But considering the plea, and the manner in which the cause has been brought up, the Court will not direct an absolute judgment to be entered for the United States; but will reverse the judgment and remand the same for further proceedings, that the Circuit Court may give leave to the defendants to plead. \nThis cause came on &c. on consideration whereof, It is adjudged and ordered, that the judgment of said Circuit Court in this cause be and the same is hereby reversed and annulled, and that the cause be remanded, that the said Circuit Court may give leave to the defendants to plead. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Chief Justice MARSHALL delivered the opinion of the Court. -- \nThis suit was brought in the Circuit Court for the district of Georgia, by George G. Belt, the trustee for Jane Heath and her children, who are infants, and by James P. Heath, husband of the said Jane, and father of her children, against the executors of John Pray, deceased, and Ann Pray, his widow, to recover a legacy bequeathed to them and others, by the said John Pray. \nThe executors resist the demand, on the principle that the bonds for which the suit is instituted, were required to pay the debts and legacies due from the testator, and to raise the 10,000 dollars to replace the buildings on lots 6 and 7, which were consumed by fire. They also contend, that their testator has submitted the construction of his will, absolutely, to their judgment, and that their decision against the claim of the legatees, is final. \nThe Circuit  Court established the claim of the plaintiffs, and decreed to them the proportion of the three bonds, which was estimated to be their part. \nFrom this decree, the executors have appealed to this Court. \nIn argument, several formal objections have been taken to the decree, which will be considered. The question on the  merits, depends on the construction of the will. The will is very inartificially drawn. It is in some parts rendered more confused than it would otherwise be, by a recurrence in different places to the same subject. In item 51, he says, in the first instance, that the three bonds which are the subject of controversy, \"shall be applied in aid of the payment of his just debts, if any due, and in the payment of the legacies by him left.\" He adds, \"It is my request, that my executors do also apply all funds which I may possess at my decease, as also dividends on all my bank stock, (except that part of dividends which I have directed to go immediately to some of my legatees,) and also to apply all moneys due to me, as soon as collected, and also all rents and crops of rice and cotton, first to pay any debts, and then legacies,\" &c. \nThe language of this part  of the will, in relation to these bonds, shows an intention to apply them to debts and legacies, if necessary; but indicates, we think, the expectation that it would not be necessary. They are to be applied in aid of the payment of his just debts, and in the payment of legacies. They are then to aid another fund. That fund is afterwards described in terms, which show it to be a large one. There is some reason to suppose, from this part of the will, that these three bonds were not comprehended in it, because the testator introduces the enunciation of its items, by saying \"it is my request that my executors do also apply all funds, &c.\" Again, he assigns as a reason for withholding interest from his legatees, \"that in all probability the resources and funds of his estate, will be equal to the payment of his debts and legacies, before the three bonds mentioned of John J. Maxwell, may fall due and be collected.\" \nThis shows, unequivocally, the belief of the testator, that these bonds would not be required for the debts and legacies. He then adds, \"in case all debts and legacies can be paid, before the three aforesaid bonds can be collected, then, and in that case, whatever balance  may remain to be collected, shall be equally divided between the following persons,\" &c. \nThis bequest does not depend on the fact, that the debts and legacies should be actually paid, before these three bonds were collected, but on the sufficiency of the fund for the object. Should the fund be sufficient, its application must be made; and whether made in fact or not, the right to the bonds vests in the legatees. \nThe testator then proceeds to say, \"it is my will, and I direct that all my estate, both real and personal, shall be kept and continued together, until all my just debts and legacies are paid.\" \nThis whole item, 51, shows the opinion, that the profits of  his estate, including dividends on his stock, added to the debts actually due at the time, were sufficient for the payment of debts and legacies. Yet his estate  is to be kept together till they shall be paid. The profits are of course to be applied to that object. If this fund amounted, before the 10th day of January 1820, when the first bond from J. J. Maxwell fell due, to a sufficient sum for the payment of debts and legacies, the right of the legatees to the three bonds then vested; -- if it  was not sufficient on that day, it may be doubted, whether such part of the first bond as was necessary for this primary object, might be brought to its aid immediately. We suppose it might. A codicil to the will is dated the 18th day of June 1819, and the will and codicil were proved on the 27th of the succeeding month. The executors qualified in the month of December; having ascertained, they say in their answer, the adequacy of the fund provided for debts and legacies, they commenced the division of the estate. \nSo far as the will has been considered, it is obvious that the right of the legatees, to whom the two parts of the three first bonds due from Maxwell were bequeathed, was vested. Their right to the first bond may be more questionable. If part of the fund, which was applicable in the first instance to debts and legacies, could not be made available immediately, and the first bond or any part of it was substituted for debts which could not be collected, it cannot be doubted that those debts, when collected, ought to replace the bond so substituted. The testimony in the cause does not show, with sufficient certainty, how this fact stands. It is remarkable that this first  bond was applied by the executors before the 10th of January 1820, when it became due. They state this fact in their answer. But we are decidedly of opinion, that this precipitate appropriation of the bond, could not affect the rights of the parties. They must remain, as they would have stood had the bond remained uncollected, till it became payable. \nThe contest in this suit would either not have arisen, or would have been confined to the first bond, had things remained as they stood before the 10th day of January 1820. But on that day the buildings on lots Nos. 6 and 7, were consumed by fire. \nIn that event, the testator had directed that his executors should, for the purpose of replacing the buildings, hold all his estate together until they can add 10,000 dollars to what may be received on insurance. He adds, \"In case of such an accident, if necessary, in order not to delay re-building, my executors will resort to a loan from the bank or banks.\" \"Whereas there is no doubt but there must be a considerable surplus fund of my estate, by debts due or crops on hand, or near  made, after my executors have paid all my debts and legacies, which my wife will come in for  -- if my executors discover that by such surplus that the same will not be equal to 10,000 dollars, in that case it is my will that they continue all my estate together until they can make up 10,000 dollars.\" \nInstead of conforming to this direction of the will; instead of keeping the estate together; the executors have applied the remaining two bonds payable the 10th of January 1821, and the 10th of January 1822, to this object. \nThey say, that having commenced the delivery of the estate, before this event took place, they thought hemselves bound to complete it; and considered themselves in the same situation as if it had been completed before the buildings were consumed. \nSuppose this opinion to be correct, ought they not also to have considered the bonds as delivered? This also was a specific legacy; and after being vested, stands, we conceive, on equal ground with other specific legacies. \nThese bonds do not constitute the fund on which the testator charges these 10,000 dollars, in the unlooked for event that the surplus of his estate should not be sufficient to raise it. He does not charge this sum on the principal, but on the profits of his estate; and the whole is to be kept  together in order to raise it. It is obvious from the whole will, that these bonds do not constitute a part of that surplus, comprehending debts; and in this particular part of it, when he speaks of debts, it is of debts due. No one of these bonds was due at the date of the will, or of the death of the testator. \nIt is then, we think, apparent, that the application of these bonds towards raising the sum of 10,000 dollars, was a misapplication of assets. \nIf the estate had really been delivered when the event occurred, the executors ought to have retained their rights upon it, to satisfy this contingent claim, and we presume that the property would have been liable to it in the hands of devisees and legatees. \nBut the plaintiffs in error contend, that should they have misconstrued the will of their testator, still their misconstruction binds the legatees, because the testator says: \"Whereas my will is lengthy, and it is possible I may have committed some error or errors. I therefore authorize and empower, as fully as I could do myself if living, a majority of my acting executors, my wife to have a voice as executrix, to decide in all cases, in case of any dispute or contention: whatever  they determine is my intention shall be final and conclusive without any resort to a Court of Justice.\" \nClauses of this description have always received such judicial  construction, as would comport with the reasonable intention of the testator. \nEven when the forfeiture of the legacy has been declared to be the penalty of not conforming to the injunction of the will, Courts have considered it, if the legacy be not given over, rather as an effort to effect a desired object by intimidation, than as concluding the rights of the parties. If an unreasonable use be made of the power, one not foreseen, and which could not be intended by the testator, it has been considered as a case in which the general power of Courts of Justice to decide on the rights of parties ought to be exercised. \nThis principle must be kept in view, in construing the clause now under consideration. \nThe acting executors, and executrix, are empowered, in all cases of dispute or contention, to determine what is the intention of the testator; and their decision is declared to be final. \nThis power is given, in the apprehension that he may have committed error. It is to be exercised in order to ascertain  his intent in such cases. It certainly does not include the power of altering the will. It cannot be contended, that this clause would protect the executors in refusing to pay legacies altogether, or in paying  to A, a legacy bequeathed to B, or in any other plain deviation from the will. In such case, what would be the remedy of the injured party? Is he concluded by the decision of the executors, or may he resort to a Court of Justice? But one answer can be given to these questions. So gross a departure from the manifest intent of the testator, cannot be the result of an honest endeavour to find that intent; and must be considered as a fraudulent exercise of a power, given for the purpose of preserving peace, and preventing expensive and frivolous litigation. \nBut who is to determine what is a gross misconstruction of the will, if the party who conceives himself injured may not submit his case to a Court of Justice? And if his case may be brought before a Court, must not that Court construe the will rightly? \nThis is not the only objection which the plaintiffs in error must encounter, in supporting their construction of this clause. The executors have not, we think,  this power, unaided by the executrix. \nIt is given to a majority of the acting executors, \"his wife, to have a voice as executrix.\" Her participating in the decision, is indispensable to its validity. \nIf this power was given to her solely, in her character as executrix, it is seriously doubted whether it can be exercised till she assumes that character. \nEven had she united with the executors, this would certainly  be a case which might well be considered as an exception from the general operation of the power. The bonds to which it was applied, are the bonds of one of the executors, and it was exercised by bestowing them on the executrix, instead of the persons to whom they were bequeathed by the testator. \nIn doing this, the executors have plainly misconstrued the will. The testator had not charged the $10,000, which were to be raised in order to rebuild the houses that were destroyed by fire, on these bonds, but on a different fund. It is, therefore, the very case put, of paying to the executors the legacy bequeathed to other persons. It may also be observed, that neither of the executors, nor Mrs. Pray, say in their answer, that this diversion of these bonds to  a different purpose from that directed by the testator, was made from a belief that it was his intention, in the event which had occurred. They refer to the clause, and rely upon it, as if it had empowered them to do whatever they thought best, in the progress of their administration; instead of doing what, in their best judgment, they believed to be his intention. \nBut, however correctly the will of the testator may have been construed in the Circuit Court, and we think it was construed correctly, at least so far as respects the two last bonds mentioned in item 51 of the will of John Pray, deceased; other objections have been taken to the proceedings in the Circuit Court, which seem to be well founded. \nThe legacy for which this suit is instituted, is given jointly to several persons in different families. The legatees take equally, and the numbers in neither family are ascertained by the will.Under such circumstances, we think all the claimants ought to be brought before the Court. The rights of each individual depend upon the number who are entitled, and this number is a fact, which must be inquired into, before the amount to which any one is entitled can be fixed. If this fact  were to be examined in every case, it would subject the executors to be harassed by a multiplicity of suits, and if it were to be fixed by the first decree, that decree would not bind persons who were not parties. The case cannot be distinguished from the rule which is applied to residuary legatees. \nThe bill filed in this case, does not even state the number of persons belonging to the different families, nor to that family in whose behalf this suit is brought. Nor does it assign any reason for not making the proper parties. It does not allege that the other legatees refuse to join, as plaintiffs, or that they cannot be made defendants. \nFor this cause the decree must be reversed, and the case remanded to the Circuit Court, that the plaintiffs may amend their bill. \n The objections to the report, are not entirely unfounded, and it is not quite satisfactory. \nIt does not, we think, show with sufficient clearness, whether the plaintiffs in that Court were entitled to the first bond. But as the case must go back to amend the bill, a new report will of course be made; and if that shows, that the funds of the estate were sufficient to pay the debts and legacies, without  applying this bond to that purpose, the plaintiffs below will be entitled to that also. \nThis cause came on, &c., in consideration whereof, It is decreed and ordered by this Court, that the decree of the Circuit Court in this cause be, and the same is hereby reversed and annulled; and it is further ordered, that the cause be remanded to the said Circuit Court, for further proceedings to be had therein, and that the plaintiffs may amend their bill. \n \n\n ", " \nOpinion \n\n \n \n  Mr Chief Justice MARSHALL delivered the opinion of the Court. \nThis writ of error is brought to a judgment of the court of the United States, for the district of Columbia, sitting in the county of Alexandria; which was rendered in a cause in which Joseph Lawrence, survivor of Lawrence & Poindexter, was plaintiff, and the Columbian Insurance Company of Alexandria were  defendants. \nThe suit was brought on a policy insuring a mill, stated in the representation and in the policy, to belone to Lawrence & Poindexter, the assured. Pending the suit, Poindexter died; and the suit was continued and tried in the name of Lawrence the survivor. The verdict and judgment were in favour of the plaintiff bolow.At the trial, the court,  on the motion of the defendant's counsel, instructed the jury on several questions of law which were made in the case; to which instructions the counsel for the defendants in the circuit court excepted, and the cause is now before this Court on those exceptions. \nThe plaintiff in the circuit court had exhibited his policy, the representation on which the contract of insurance was founded; his proofs of title and of loss, the notice which he gave of that loss, together with the documents which accompanied it, as preparatory to the assertion of his claim against the company; and the proceedings of the company in consequence of that claim, which terminated in a refusal to pay it. The counsel for the plaintiff in the circuit court, having thus concluded his case, the counsel for the defendants made three objections to his  right of action. \n1. That the interest claimed by the plaintiff in the property insured, as disclosed by the evidence; was not, at the respective times of effecting the insurance, and of the happening of the loss, an insurable interest and property. \n2. That it was not such an interest as is described in the original offer of the plaintiff's agent for insurance, and in the policy; nor such as is averred in the declaration. \n3. That the said documents produced as preliminary proof of loss, do not import a fulfilment, on the part of the plaintiff, of the terms and conditions upon which the loss is declared to be payable, by the ninth of the said printed rules anexed to the policy. \nAnd the counsel for the defendants thereupon prayed the opinion and direction of the court to the jury, that the said evidence was not admissible, competent, and sufficient to be left to the jury as proof of the plaintiff's title to recover for such loss in this action. \nThe court refused to give this instruction, being of opinion, 1. That the interest of the plaintiffs in the property insured, as disclosed by the said evidence, is a sufficient insurable interest to support the policy, and the averment of  interest in the plaintiffs' declaration in this action. \n2. That it is such an interest as is described in the original  offer for insurance, and in the policy, and in the declaration. \n3. That although the said certificate of Murray  Forbes is not such a certificate as is required by the said ninth rule annexed to the said policy; yet the evidence aforesaid is admissible, competent, and sufficient to be left to the jury; and from which they may infer, that the defendants waived the objection to the said certificate, and to the other preliminary proof aforesaid. \nThe counsel for the defendants in error have made some preliminary objections to the terms in which the opinion of the circuit court was asked. The counsel prayed the opinion and direction of the court to the jury, that the evidence offered by the plaintiff was not admissible, competent, and sufficient to be left to the jury as proof of the plaintiff's title to recover. This blending of an objection to the admissibility of evidence in the same application which questions its sufficiency, is said to be not only unusual; but to confound propositions distinct in themselves, and to be calculated to embarrass  the court, and the questions to be decided. \nIt is undoubtedly true, that questions respecting the admissibility of evidence, are entirely distinct from those which respect its sufficiency or effect. They arise in different stages of the trial, and cannot with strict propriety be propounded at the same time. If, therefore, the circuit court had proceeded no further than to refuse the instruction which was asked, this Court might have considered the refusal as proper; unless the entire prayer, as made, ought to have been granted. But the circuit court proceeded to give its opinion on the different points made by counsel, and these opinions must be examined. \n1. The first is, that the interest of the assured in the property insured, is a sufficient insurable interest to support the policy, and the averment of interest in the declaration. \nThe mill insured was built on an island in the Rappahannoc, which was demised by Charles Mortimer to Stephen Winchester, for three lives, renewable for ever, at the yearly  rent of £ 80, ($266 66 cents;) with a condition of re-entry for rent in arrear, &c. \n1801, Dec. 19. S. W. conveyed one undivided third part to Richard Winchester,  and another undivided third part to Joshua Howard. \n1806, May 9. R. and S. Winchester conveyed to Joshua Howard, by deed of mortgage in fee, their two thirds of the said island, with other property to a considerable amount, in order to secure the said Howard to the amount of $40,000. \n1813, Jan. 27. Joshua Howard conveyed the whole island to William and George Winchester. \n1813, Sept. 23. William and George Winchester conveyed the island to Joseph Howard and Joseph W. Lawrence. \n1818, July 22. Joseph Howard entered into an agreement with Joseph W. Lawrence, by which the said Lawrence was to take the island, &c. at the price of $30,000; for which amount in debts, due from Howard & Lawrence, he was to procure a release; on his doing which, Howard was to execute a deed for the property; on the failure or inability of Lawrence to procure this release, the contract was to be void. \n1822, Nov. 28. Joseph W. Lawrence enters into an agreement with Thomas Poindexter, Jun. for the sale of one half of the island, mills, &c.; for which the said Poindexter agrees to assume and take upon himself one half the debts due from Howard & Lawrence to the banks in Fredericksburg; which were secured  by a deed of trust. \nNov. 29. An agreement between Howard and Lawrence to work the mills in partnership. \nBy the deeds of January 27, and Sept. 23, 1813, all the title of Joshua Howard to the island on which the mills insured were erected, passed to Joseph Howard and Joseph W. Lawrence. What was that title? \nHe held one third part in his own right, and the remaining two thirds as mortgagee. \nThe agreement of July 22; 1818, between Howard and Lawrence, does not appear to have been performed on the part of Lawrence; nor is there any evidence of his ability  to perform it; but it does not appear that Howard has taken any step to avoid it, or has asserted any title in himself. \nThe agreement of Nov. 28, 1822, between Lawrence and Poindexter, admits Poindexter to an undivided moiety of any interest Lawrence might have in the property. \nLawrence & Poindexter then, when the insurance was made, were entitled to one third of the property under the deed made by Charles Mortimer, and to the remaining two thirds as mortgagees; but one moiety of the whole, which moiety was derived from Joseph Howard under the agreement of July 22, 1818, was held under an agreement which had not been  complied with, and which purported on its face to be void if not complied with; but the other contracting party had not declared it void, nor called for a compliance with it. \nIt cannot be doubted, we think, that the assured had an interest in the property insured. Lawrence had an unquestionable title to a moiety of one third, subject to the rent reserved in the original lease, and to a moiety of the remaining two thirds as mortgagee. He had such title to the other moiety as could be acquired by an agreement for a purchase, the terms of which had not been complied with \nThe title is thus stated, because those words which declare the contract to be void if Lawrence should fail to comply with it, do not, we think, render it absolutely void, but only voidable. No time for performance is fixed; and if Howard is content with what has been done by Lawrence, and does not choose to annul the contract, the underwriters of this policy cannot treat it as a nullity. Lawrence, having this title under an executory contract, sells to Poindexter one undivided moiety of the property. These two persons, being both in possession, partly under legal conveyances and partly under executory contracts,  require an insurance on it against loss by fire. Had they an insurable interest? \nThat an equitable interest may be insured is admitted. We can perceive no reason which excludes an interest held under an executory contract. While the contract subsists,  the person claiming under it has undoubtedly a substantial interest in the property. If it be destroyed, the loss in contemplation of law, is his. If the purchase money be paid, it is his in fact. If he owes the purchase money, the property is its equivalent, and is still valuable to him. The  embarrassment of his affairs may be such that his debts may absorb all his property; but this circumstance has never been considered as proving a want of interest in it. The destruction of the property is a real loss to the person in possession, who claims title under an executory contract, and the contingency that his title may be defeated by subsequent events does not prevent this loss. We perceive no reason why he should not be permitted to insure against it. The cases cited in argument, and those summed up in Phillips on Insurance, 26, on insurable interest, and in 1 Marshall, 104, ch. 4., and 2 Marshall, 787,  ch. 11, prove, we think, that any actual interest, legal or equitable, is insurable. \n2. Having declared the interest of Lawrence & Poindexter to be insurable, the circuit court instructed the jury that \"it is such an interest as is described in the original offer for insurance, and in the policy, and in the declaration.\" \nThe original offer for insurance was in these words, \"What premium will you ask to insure the following property belonging to Lawrence & Poindexter, for one year against loss or damage by fire? On their stone mill four stories high, covered with wood, on an island about one mile from Fredericksburg in the county of Stafford; the mill called Elba mill. Seven thousand dollars are wanted. Not within thirty yards of any other building, except a corn house, which is about twenty yards off.\" \nThe policy states that the underwriters insure Lawrence & Poindexter against loss or damage by fire, to the amount of $7000 on their stone mill, &c. \nThe declaration charges that the defendants insured the plaintiffs $7000 against loss or damage by fire on their stone mill, &c.; and avers that they were interested in, and the  equitable owners of the premises insured  as aforesaid at the time the insurance was made as aforesaid, &c. \nThe material inquiry is, does the offer for insurance state truly the interest of the assured in the property to be insured? The offer describes the property as belonging to Lawrence & Poindexter; and states it afterwards to be their stone mill. It contains no qualifying terms, which should lead the mind to suspect that their title was not complete and absolute. The plaintiffs in error contend that the terms import an absolute legal estate in the property; and that the insurers entered into the contract, having a right to believe that the interest of the assured was of this character. \nInstead of such an estate in the property as the representation justified the insurers in expecting, the proof shows that the insured held only one half of one third, under a lease for three lives, renewable for ever, and one half of the other two thirds as mortgagees; that the other moiety was held under a contract, the terms of which had not been complied with; and which, if complied with, would give them a title to two thirds of that moiety only as mortgagees. \nThe defendants insist that the representation is satisfied by an equitable  title under an executory contract, and that in truth and in fact, the mill did, at the time of its insurance and loss, belong to Lawrence & Poindexter. \nIt may be true, that a mill occupied by Lawrence and Poindexter, and held under a lease or an executory contract, would be generally spoken of by themselves and others as their mill. The property alluded to would be well understood, and no inconvenience could arise from this mode of designating it. But if Lawrence & Poindexter should proceed to sell the property as theirs, should describe it in the contract as belonging to them, no court would compel the purchaser to take the title they could make. \nThe assured then have not proved \"such an interest as is described in the original offer for insurance;\" and the circuit court, in this respect, misdirected the jury. It may  be proper to take some notice of the materiality of this misdirection. \nThe contract for insurance is one in which the underwriters, generally, act on the representation of the assured; and that representation ought consequently to be fair, and to omit nothing which it is material for the underwriters to know. It may not be necessary that the person requiring  insurance, should state every incumbrance on his property, which it might be required of him to state, if it was offered for sale; but fair dealing requires that he should state every thing which might influence, and probably would influence, the mind of the underwriter in forming or declining the contract. A building held under a lease for years about to expire, might be generally spoken of as the building of the tenant; but no underwriter would be willing to insure it as if it was his; and an offer for insurance, stating it to belong to him, would be a gross imposition. \nGenerally speaking, insurances against fire are made in the confidence, that the assured will use all the precautions to avoid the calamity insured against, which would be suggested by his interest. The extent of this interest must always influence the underwriter in taking or rejecting the risk, and in estimating the premium. So far as it may influence him in these respects, it ought to be communicated to him. Underwriters do not rely so much upon the principles as on the interest of the assured; and it would seem, therefore, to be always material that they should know how far this interest is engaged in guarding  the property from loss. Marshall, in treating on insurance against fire, p. 789, b. 4, ch. 2, says; \"It is not necessary, however, in order to constitute an insurable interest, that the insured shall, in every instance, have the absolute and unqualified property of the effects insured. A trustee, a mortgagee, a reversioner, a factor or agent, with the custudy of goods to be sold upon commission, may insure; but with this caution, that the nature of the property be distinctly specified.\" \nIn all the treatises on insurances, and in all the cases in which the question has arisen, the principle is, that a misrepresentation,  which is material to the risk, avoids the policy. In this case the circuit court has decided that there is no misrepresentation; that the interest of the assured was truly described in the offer for insurance; and consequently, no question on the materiality of the supposed variance was submitted to the jury. \nAs this court is of opinion that a precarious title, depending for its continuance on events which might or might not happen, is not such  a title as is described in the offer for insurance, construing the words of that offer as they are  fairly to be understood; the circuit court has in this respect mis-directed the jury. \n3. The third opinion given to the jury is, that the evidence given by the plaintiff in the circuit court, was admissible, competent and sufficient to be left to the jury, and from which they may infer that the defendants waived the objection to the said certificate, and to the other preliminary proof aforesaid. The certificate to which this instruction refers, is, by one of the rules which form conditions of the policy, declared to be an indispensable requisite; without the production of which, the loss claimed \"shall not be payable.\" A certificate intended by the assured to satisfy this condition, accompanied the proof of loss; but it is not such a certificate as the condition requires; and such was the opinion of the circuit court. The testimony which the court left to the jury as being sufficient to authorize them to infer a waiver on the part of the insurers of this certificate, consisted of entries on the minutes of the board, with some parol proof. \nOn the 20th of February 1824, the claim of Lawrence & Poindexter was submitted to the board with the policy and certificate of loss. \nOn the  13th of March, an order was made, requiring the title papers of Lawrence & Poindexter to the Elba mill. On the first of April, copies of the deed from William and George Winchester to Joseph Howard and Lawrence, of the agreement between Howard and Lawrence, and of the agreement between Lawrence and Poindexter, were laid before  the board. On the 16th of April, farther proof respecting the title was required, which was produced on the 22d of the same month. \nThe opinion of Mr Jones was taken on the case, which was submitted to the board on the 28th of June, when it was resolved, \"that the claim of Lawrence & Poindexter be resisted; and that the secretary furnish them with a copy of this resolution. \nThe opinion of Mr Jones turns on the interest of the assured, and on the question whether the loss was fair or fraudulent. \nOn the 11th of November, inquiry was made whether the board would enter into a compromise, \"it being understood that the agreement\" \"is not to be considered as an admission of the claim?\" Answered \"yes.\" \nOn the 18th of November, the board passed a resolution declining a compromise, which was communicated to the agent of Lawrence & Poindexter. \nOn the 11th  of December, a farther and more specific proposition for a compromise was made by the agent of the assured, which was rejected by the company. \nThe secretary of the company was examined, to prove the communications between him and the agent of the assured. When the documentary evidence was exhibited, he informed the agent that he would call a board to decide on the claim. After the board had met and adjourned, he informed the agent that the claim would probably be resisted; that the company thought the interest of the assured was not insurable; that the representation was not faithful; and that Poindexter had set fire to the mill. No objection was made to the preliminary papers.The custom of the board was, if the claim for indemnity was thought just, to refer the preliminary papers to their secretary to see if they were regular. In this case no such reference was made. \nFrom the first presentation of the papers in February, till the passing of the final resolution in June, the claim was pending undetermined before the board, waiting for the advice of counsel. This advice being delayed by the absence  and other engagements of counsel, an agreement was entered into with  the agent of the assured, that if the final resolution should be to resist the claim, the suit should be put as forward on the docket as if brought to the intervening April term. This agreement was complied with. All the orders and resolutions of the board which have been stated were communicated by the witness to the agent of the assured; and are the only communications which he was authorized to make. \nAccording to the invariable usage of the board, the sufficiency of the documents offered by way of preliminary proof of loss, as required by the ninth article of the rules annexed to the policy; was not to be considered by the board, till the principle of the claim should have been admitted, and then the course was to submit such documents to the secretary for a special report thereon; in this case the sufficiency of the documents was never discussed or considered by the board, nor referred to the secretary. It never was contemplated by the witness, nor to his knowledge by the board, to waive any compliance with this ninth article. The consideration of the documents offered under it, did not regularly come on till the claim should be admitted in principle. \nThe agent of the assured  was present at some of the meetings of the board when the witness was absent. He has understood that on these occasions the communications between them, turned entirely on questions respecting the fundamental objections to the claim. The regularity or irregularity of the preliminary proof was never mentioned. The opinion given by counsel was never communicated to the assured or their agent. To have done so, would have been contrary to the rules and to usage. \nThis evidence was left to the jury as testimony from which they might infer that the preliminary proof, required by the ninth rule annexed to the policy, as indispensable to entitle the assured to demand payment for a loss, had been waived by the underwriters. \nIt will not be pretended that any expression is to be found either in the resolutions of the board or in the conversations  held by their secretary with the agent of the assured, having the slightest allusion to this preliminary proof or to the waiver of it. If then the jury might infer a waiver, the inference must be founded on the opinion that the board was bound to specify this particular objection; or that they have taken some step or made some communication,  which presupposes an acquiescence in the certificate which was offered. \nThe resolution of the board to resist the claim is expressed in general terms, and consequently applies to every part of the testimony offered in support of it. We know of no principle nor usage which requires underwriters to  specify their objections, or which justifies the inference that any objection is waived. We know of no principle by which this preliminary proof should be separated from the other proofs which were required to sustain the claim, and its insufficiency be remarked to the assured. The general resolution of the board was notice to the assured that if they intended to assert their claim in a court of justice, they must come into court prepared to support it. \n2. Did the examination of the title and the proceedings of the board respecting it, presuppose an examination of the preliminary proofs, and an acquiescence in its sufficiency? \nWe think not. The proof of interest, and the certificate which was to precede payment, if the claim should be admitted; are distinct parts of the case to be made out by the assured. Neither of those parts depends on the other. The one or the other  may be first considered, without violating propriety or convenience. The consideration of the one does not imply a previous consideration and approval of the other. The language of the ninth rule does not imply that the proof it requires is first in order for consideration. After stating what shall be done by the assured, the rule requires the affidavit and certificate in question; and adds, that \"until such affidavit and certificate are produced, the loss claimed shall not be payable.\" The affidavit and certificate must precede the payment, but need not precede the consideration of the claim. \n The testimony of the secretary, if not conclusive on this point, is, we think, entitled to great weight. He states the invariable usage of the office to have been, to consider the merits of the claim before looking into the preliminary proof, which, after deciding favourably on the claim, was always referred to him for examination and report. In this case the decision having been unfavourable to the claimant, no reference was made to him. \nWe do not think the assured can be presumed ignorant of the standing usage of the office, to which he applied for insurance; or be admitted  to found upon that ignorance a claim to exemption from the necessity of producing a document required by the policy, as indispensable to his demand of payment for his loss. \nWe think the case exhibits no evidence of waiver; no evidence from which the jury could infer it, and consequently that this instruction of the court is erroneous. \nIt would have been subject of much regret, had the merits of the case been clearly in favour of the defendants in error, to reverse the judgment of the circuit court on account of the non-production of a document, which may perhaps be so readily supplied. But the cause must go back on the opinion expressed by the circuit court to the jury, that the title proved at the trial agrees with that stated in the offer for insurance. \nAfter the opinions which have been stated had been delivered to the jury, the defendants offered evidence to prove the insolvency of the plaintiffs, so as to disable them from obtaining a legal title; and additional embarrassments on the property; and again moved the court to instruct the jury, that the assured had not such an interest in the property as entitled them or either of them to recover. This instruction the court refused  to give, being still of opinion that the assured held an insurable interest in the mill. An exception was taken to this opinion. \nThe additional incumbrances to the title, and the circumstances of Lawrence & Poindexter, might constitute additional objections to the representation contained in the offer  for assurance; but do not, we think, disprove an insurable interest in those who were still in possession of the property, and claimed title to it under executory contracts. \nThe defendants in the circuit court then proved that the mill was a square building built of stone to the eaves, that the roof was framed and covered entirely of wood, and that the two gable ends running up perpendicularly from the stone wall to the top of the roof, were also constructed of wood. They also offered evidence to prove the general understanding, that the description of a stone house covered with wood was not verified or supported by a house whose gable ends were of wood; that the gable ends were understood to be a part of the wall, not of the roof or covering. They then moved the court to instruct the jury, that if two of the exterior walls terminated in upright gable ends; such gable  ends not properly forming, according to ordinary rules and terms of architecture, a part of the covering or roof; it was necessary in order to verify the said description, that such gable ends should have been of stone; and if, in point of fact, such gable ends as well as the covering or roof were of wood, which under any circumstances of actual conflagration might have increased either the risk of catching fire or the difficulty of extinguishing it; it amounted to a material misrepresentation, and avoids the policy; and it is not material whether the said misrepresentation was wilful and fraudulent, or from ignorance and without design; nor whether that actual loss was produced by such misrepresentation, or by having gable ends of wood instead of stone. \nThe court refused to give this instruction, being \"of opinion that it was competent to the jury, from all the facts given in evidence, to decide whether, in order to verify the said description in the said policy, it was necessary that the whole of the exterior walls from the foundation to the top of the roof should be of stone. And being also of opinion that under the first of the rules annexed to the said policy, and referred to  therein; no variation in the description of the property insured, from the true description thereof, not made fraudulently; would vitiate the policy unless by reason  of such variation the insurance was made at a lower premium than would otherwise have been demanded.\" \nTo this opinion also an exception was taken. The rule referred to in the opinion requires, that \n\"Persons desirous of making insurance on buildings should state in writing the following particulars, to wit, of what materials the walls and roof of each building are constructed,\" &c. \"And if any person shall cause the same to be described in the policy otherwise than as they really are, so as the same be charged at a lower premium than would otherwise be demanded, such insurance shall be of no force.\" \n If the court was correct in the construction of this rule, and of its effect upon the policy, it will become unnecessary te examine their opinion, leaving the question whether the property insured was truly described, entirely to the jury. \nThis rule takes up the subject of describing the property, and provides for it. It requires that the materials of which the walls and roof are constructed shall  be truly stated, and prescribes the penalty for a mis-statement. The penalty is, that the insurance shall be void, if the assured shall cause the building to be described in the policy otherwise than it really is, so as the same be charged at a lower premium than would otherwise be demanded. \nThe rule does not place the invalidity of the policy on an untrue description of the building; but on such a description as shall reduce the premium which would otherwise have been demanded. This was a question of fact which the jury alone could decide. \nThe rule having provided for the case, and prescribed the precise state of things in which the penalty shall be incurred, we do not think that it could be applied in any other state of things. The jury was of opinion that if the building was untruly described, still the misrepresentation was not such as to cause the same \"to be charged at a lower premium than would otherwise have been demanded.\" If this verdict was against evidence, the remedy was a new trial. \nThis court is of opinion that the circuit court erred in instructing the jury that the interest of the assured in the  property insured is such as is described in the original  offer for insurance and in the policy; and also in the opinion given to the jury that the evidence was sufficient to be left to them, from which they might infer that the defendants waived the objections to the certificate and other preliminary proof required by the ninth rule annexed to the policy. \nThe judgment is to be reversed, and the cause remanded to the circuit court that a venire facias de novo may be awarded. \nThis cause came on to be heard on the transcript of the record from the circuit court of the United States for the district of Columbia, and was argued by counsel; on consideration whereof, this Court is of opinion that the said circuit court erred in this; in instructing the jury that the interest of the assured in the property insured is such as is described in the original offer for insurance and in the policy. And also that the said circuit court erred in this; in the opinion to the jury, that the evidence was sufficient to be left to them, from which they might infer, that the defendants waived the objections to the certificate and other preliminary proof required by the ninth rule annexed to the policy. Whereupon, it is considered by this Court that the said  judgment of the said circuit court in this cause be, and the same is hereby reversed and annulled, and that the said cause be, and the same is hereby remanded to the said circuit court with directions to award a venire facias de novo, and for further proceedings to be had therein according to law and justice. \n \n\n ", " \nOpinion \n\n \n \n  Mr Chief Justice MARSHALL delivered the opinion of the Court. \nThis is a writ of error to a judgment rendered by the supreme court of Ohio for the county of Champaign, in an ejectment in which the lessee of Duncan M'Arthur was plaintiff, and John Reynolds was defendant. The plaintiff claimed the land in controversy, under a patent issued on the 12th day of October 1812, founded on an entry made in the year 1810, on a military land warrant granted by the state of Virginia for services during the war of the revolution, in the Virginia line, on continental establishment. \n The title of the defendant is thus stated. The land was sold by the United States at their land office in Cincinnati,  in the year 1805, to Henry Van Meter. It reverted to the United States in the year 1813 on account of the non-payment of the purchase money; and was again sold, during the same year at the same office, to Henry Van Meter, to whom a certificate of sale was issued, which he afterwards transferred to the defendant John Reynolds. \nThe verdict and judgment were in favour of the plaintiff in the state court. At the trial, the counsel for the defendant moved the court to instruct the jury on several points made in the cause, and excepted to the refusal of the court, to give these instructions. The judgment of the state court, having been against a title set up under several acts of congress, is brought before this Court by writ of error, that the construction put on those acts by that court may be re-examined. The inquiry will be, whether the court ought to have given any one of the instructions which were required. The several prayers for this purpose will be considered in the order in which they were made. \n1. The first instruction asked is, that the lands west of Ludlow's line, east of Roberts's line, and south of the Indian boundary line, had been withdrawn from appropriation under  and by virtue of military land warrants prior to the year 1810; and that as the same had, pursuant to the acts of congress in such case made and provided, been directed to be surveyed and sold, and had accordingly been surveyed and sold to the defendant, prior to the year 1810; the plaintiff's patent is void, and their verdict ought to be for the defendant. \nThis motion does not question the bounds of the lands reserved by Virginia for military bounties, but supposing the tract of country west of Ludlow's line, east of Roberts's line, and south of the Indian boundary line to be within that reserve, asks the court to say, that congress had, prior to the year 1810, when M'Arthur's entry was made, withdrawn it from appropriation under and by virtue of military land warrants. \n Before deciding on the propriety of refusing or granting this prayer, it will be necessary to review the legislation of congress on this subject. \nThe act of the 9th of June 1794 1 , taken in connection with the reservation in favour of their officers and soldiers contained in the deed of cession made by Virginia, unquestionably subjected the whole of the military reserve to the satisfaction of those  warrants, for which the reserve was made. Had congress, previous to the year 1810, withdrawn that portion of this reserve which lies between the line run by Ludlow, and that run by Roberts, from its liability to be so appropriated? \nSo early as the year 1785, congress passed \"an ordinance 2 for ascertaining the mode of disposing of lands in the western territory,\" in which, for the purpose of securing to the officers and soldiers of the Virginia line on continental establishment, the bounties granted them by that state, it is ordained \"that no part of the land between the rivers called Little Miami and Scioto, on the north west side of the river Ohio, be sold or in any manner alienated, until there shall first have been laid off and appropriated for the said officers and soldiers and persons claiming under them, the lands they are entitled to agreeably to the said deed of cession and act of congress accepting the same.\" \nThe scrupulous regard which this clause, in the ordinance of May 1785, manifests to this condition made by Virginia in her deed of cession, is the more worthy of remark, because at that time  no suspicion was entertained that the military warrants of Virginia would cover the whole territory; and it was even doubted, as the legislation of congress shows, whether any part of that territory would be required for them. Even under these circumstances, congress declared the determination not to sell or alienate any land between the Scioto and the Little Miami. \nIn May 1796 congress passed \"an act providing for the sale of the lands of the United States in the territory north  west of the river Ohio and above the mouth of Kentucky river 3 .\" \nThe second section enacts that, \"the part of the said land which has not been already conveyed,\" &c. \"or which has not been heretofore, and during the present session of congress may not be appropriated for satisfying military land bounties, and for other purposes, shall be divided,\" &c. \n This law then, from which the whole power of the surveyor general is derived, excludes from his general authority all lands previously appropriated for military land bounties and for other purposes; and consequently excludes from it the lands between the Scioto and the Little Miami. \nIn May 1800  4 , congress passed an act to amend the act of 1796, which enacts \"that for the disposal of the lands of the United States directed to be sold by the original act, there shall be four land offices established in the said territory.\" The places at which these land offices shall be fixed are designated in the act, and the district of country attached to each is described. One of these is Cincinnati, the place at which the lands in controversy were sold, and the district attached to it is that below the Little Miami. \nIt is perfectly clear from the language of this act, that it extends to those lands only which were comprehended in the act of May 1796, and that no one of the districts established by it, comprehends the land in controversy.Any general phrases which may be found in the law must, according to every rule of construction, be limited in their application to those lands which the original act authorized the surveyor general to lay off for the purpose of being sold. If he surveyed any lands to which that act does not extend, he exceeded his authority, and the survey is not sanctioned by the law. If land thus surveyed by mistake has been sold,  the sale was not authorized by the law under colour of which it was made. \nThe counsel for the plaintiff in error has pressed earnestly on the Court the grants made to John Cleves Symmes, and  to the purchasers under him. We are not sure that the argument on this point has been clearly understood, and have therefore examined that transaction, in order to discover its influence, if it can have any, on the question now under consideration. \nIn 1787 John Cleves Symmes applied to congress for a grant to himself and his associates of the lands lying within the following limits, viz. \"beginning at the mouth of the Great Miami river, thence running up the Ohio to the mouth of the Little Miami river, up the main stream of the Little Miami river to the place where a due west line, to be continued from the western termination of the northern boundary line of the grant to Messrs Sargent, Cutler & Co. shall intersect the said Little Miamiriver, thence due west, continuing the said western line to the place where the said line shall intersect the main branch or stream of the Great Miami, thence down the Great Miami to the place of beginning.\" \nIn consequence of this petition, a contract  was entered into for the sale of one million of acres of land to begin on the bank of the Ohio, twenty miles along its meanders above the mouth of the Great Miami, thence to the mouth of the Great Miami, thence up that river to a place whence a line drawn due east will intersect a line drawn from the place of beginning, parallel with the general course of the Great Miami, so as to include one million of acres within these lines and the said rivers, and from that place upon the said Great Miami river, extending along such lines to the place of beginning, containing as aforesaid one million of acres. \nThe language of this contract does not indicate any intention on the part of congress to encroach on the military reserve, which the ordinance of May 1785, then in full force, had excepted from sale or alienation. \nIn 1792 5 , congress, at the request of John C. Symmes, passed an act to alter this contract in such manner that the land sold should extend from the mouth of the Great Miami to the mouth of the Little Miami, and be bounded by the  river Ohio on the south, by the Great Miami on the west, by the Little Miami on the east, and by a parallel of latitude on the north, extending  from the Great Miami to the Little Miami, so as to comprehend the proposed quantity of one million of acres.\" \nThe lands then which might be granted to John C. Symmes, in pursuance of this act of congress, lay between the Great and Little Miami, and were to lie below the Little Miami. The Scioto is above that river; so that congress could not have intended that this grant to Symmes should interfere with the military reserve. \nOn the 36th of September, in the year 1794, a deed was executed in pursuance of the act of 1792, conveying to John C. Symmes that tract of land beginning at the mouth of the Great Miami river, and extending from thence along the river Ohio to the mouth of the Little Miami river, bounded on the south by the river Ohio, on the west by the Great Miami, on the east by the Little Miami, and on the north by a parallel of latitude to be run from the Great Miami to the Little Miami, so as to comprehend the quantity of 311,682 acres of land. \nIt is obvious that this patent does not interfere with the military reserve. But John C. Symmes had sold to several persons who purchased in the confidence that he would comply with his contract  for one million of acres, and be enabled to convey the lands sold to them. \nIn March 1799 congress passed an act declaring that any person or persons, who, before the first day of April in the year 1797, had made any contract in writing with John C. Symmes for the purchase of lands between the Great and Little Miami rivers, which are not comprehended in his patent dated the 30th of September 1794, shall be entitled to a preference in purchasing of the United States all the lands so contracted for at the price of two dollars per acre. \nIn March 1801, congress passed an act extending this right of pre-emption to all persons who had, previous to the first day of January 1800, made any contract in writing with the said John C. Symmes or with any of his associates, for the purchase of lands between the Miami rivers, within the  limits of a survey made by Israel Ludlow, in conformity to an act of congress of the 12th of April 1792. \nThe provisions of this act are supposed to contemplate the survey and sale of the lands which had been sold to John C. Symmes between the Miami rivers; in like manner as had  been prescribed for other lands lying above the mouth of Kentucky  by the acts of 1796 and 1800. The right of pre-emption was limited to lands within Israel Ludlow's survey; but that survey contained less than 600,000 acres, and the contract of Symmes was for one million of acres; congress therefore resumed the consideration of this subject, and in May 1802 extended this right of pre-emption to all those who had purchased from John C. Symmes, lands lying between the Miami rivers, and without the limits of Ludlow's survey. It cannot be doubted that this right of pre-emption allowed to the purchasers under John C. Symmes, was limited to lands lying between the Miami rivers and lying within his contract. Congress could never have intended that this contract should interfere with the military reserve. The reserve was of lands lying above the Little Miami. The sale to Symmes was of lands lying below that river. It was made while an ordinance was in full force, declaring the resolution of congress not to alienate any part of that reserve.Their contract was made in subordination to that ordinance, and cannot have intended to violate it. The terms of the contract do not purport to violate it. The land sold to Symmes, and the pre-emption rights allowed  to the purchasers under him, are so described as to furnish no ground for the opinion that congress could have suspected them to interfere with the military reserve. If the Scioto and the Great Miami, contrary to all probability, should take such a direction as to produce a possible interference between the lands sold to Symmes and the reserve which congress had declared its resolution not to alienate, some difficulty might possibly arise in a case where one of the parties claimed under a military warrant, and the other under a pre-emption certificate. But that is not this case. The title of the plaintiff in error is under a purchase made at a sale of the lands of the United States at Cincinnati, by Henry Van Meter, who is  not stated to have held a pre-emption certificate, or to have been a purchaser under Symmes. \nThe instruction which the court was asked to give is, that the land between the lines of Ludlow and Roberts had been withdrawn from appropriation, under and by virtue of military land warrants, previous to the year 1810.This withdrawal is not in express terms, but is supposed to be implied from a direction to survey the lands between the Great and Little Miami  which had been exempted from the operation of the acts of 1796 and 1800, under the idea that they were comprehended in the contract with Symmes. Congress could not suspect that the lands to be surveyed under this law could interfere with the lands lying between the Little Miami and the Scioto; and consequently, cannot have intended by this act to vary the boundary of the military reserve. \nIt has been very truly observed, that all the laws on this subject should be taken together. The condition inserted in the deed of cession of Virginia, which reserves the land lying between the little Miami and the Scioto, for the purpose of satisfying the warrants granted to the officers and soldiers of that state; the ordinance of May 1785, declaring that no part of that reserve should be alienated; tht contract with Symmes for the sale of lands lying between the two Miami; the acts relative to pre-emptions, and which direct the survey and sale of the lands lying between the Miami; without any allusion to the military district; must be taken into view at the same time. \nIt is, we think, impossible to believe that congress supposed itself, when directing the survey and sale of lands between the  Great and Little Miami, to be abridging or altering the bounds of a district which Virginia had reserved in the deed of cession by which the country north west of the Ohio had been conveyed to the United States. \nWhen congress designed to act on this subject, the purpose was expressed; and overtures were made to the other party to the compact, to obtain her co-operation. \nIn executing the act of May 1800, the surveyor general had caused a line to be run, from what he supposed to be  the source of the Little Miami, towards what he supposed to be the source of the Scioto, which is the line denominated Ludlow's, and surveyed the lands west of that line in the manner prescribed by the act of congress. \nIn March 1804 6 , congress passed an act establishing that line as the western boundary of the reserve, provided the state of Virginia should, within two years after the passage of the act, accede to it. Virginia did not accede to it. \nIn 1812 7 , congress made another effort to establish this line. The president was authorised to appoint commissioners to meet others which should be appointed by Virginia, who were to agree on the western line  of the military reserve, and cause the same to be surveyed and marked out. These commissioners met; and after ascertaining the sources of the two rivers, employed Mr Charles Roberts to survey and mark a line from the source of the one to the source of the other. This line is called Roberts's line. The Virginia commissioners, however, refused to accede to this line. \nThis act provided, that until an agreement should take place between the commissioners, the line designated in the act of 1804, which is Ludlow's, should be considered and held as the proper boundary line. This enactment is provisional and prospective. \nIn 1816 8 , congress passed an act declaring that from the source of the Little Miami to the Indian boundary line, established by the treaty of Greenville, Ludlow's line should be considered as the western boundary of the military reserve, until otherwise directed by law; and that from the said Indian boundary line to the source of the Scioto river, the line run by Charles Roberts shall be so considered. \nWhen we review the whole legislation of congress on this subject, we think the conclusion inevitable,  that in the acts of 1801 and 1802, which have been cited, the legislature did not consider itself as altering the bounds of the military district, or as withdrawing before the year 1820 any part of the territory lying between the Little Miami and the Scioto  from being appropriated by the military land warrants granted by the state of  Virginia. If those acts have this effect, it is one which was not intended. \nBefore a court can be required to declare the law which would arise between conflicting statutes of this character, the fact that they do conflict, ought to be clearly established. The counsel for the plaintiff in error has argued this part of the case as if the fact was estasblished; as if a line drawn from the source of the Little Miami to the source of the Great Miami would include the land between Ludlow's line and that of Roberts; and this Court has thus far treated the question as it has been argued. But this fact is not established in this case. It is not among the facts agreed by the parties, nor was the state court required to instruct the jury, that if they should find the land west of Ludlow's, and east of Roberts's line to lie between the  Little and Great Miami, or within Symmes's purchase, \"that it had been withdrawn from appropriation, under and by virtue of said military land warrants, prior to the year 1810,\" and that M'Arthur's patent was consequently void. The court was not required to state the law hypothetically, as being dependant on the fact; but to assume the fact, and to state the law positively upon that assumption. The record, we think, did not authorise the court to consider this fact as established, and to withdraw it from the jury. \nThere is no error in refusing this instruction. \n2. The counsel for the defendant then asked the court to instruct the jury, that, as the third section of the act of the congress of the United States, of the 11th of April 1818, declares: \"That from the source of the Little Miami river to the Indian boundary line, established by the treaty of Greenville in 1795, the line designated as the westerly boundary line of the Virginia tract, by an act of congress passed on the 23d day of March 1804, entitled 'an act to ascertain the boundary of the lands reserved by the state of Virginia, north west of the river Ohio, for the satisfaction of her officers and soldiers on continental  establishment, and to limit the period for locating the said lands', shall be considered and held as such until otherwise directed by law;\" and as said  boundary line was run by Ludlow, under the directions of the surveyor general, pursuant to an act of congress, entitled \"An act to extend and continue in force the provisions of an act entitled 'an act giving a right of pre-emption to certain persons who have contracted with John Cleves Symmes, or his associates, for lands lying between the Miami rivers, in the territory north west of the Ohio, and for other purposes,'\" approved May 1st, 1802; and offered for sale at public auction, at the Cincinnati land office, pursuant to the act, entitled \"An act making provision for the disposal of public lands in the Indiana territory, and for other purposes,\" approved March 26th, 1804, must be construed as having relation back to the time the above recited act, entitled \"An act to ascertain the boundary of the lands reserved by the state of Virginia, north west of the river Ohio, for the satisfaction of the officers and soldiers on continental establishment, and to limit the period for locating said lands,\" approved 23d of March 1804;  was passed, and took effect; and as the plaintiff's patent covers lands west of that line, and south of the Greenville treaty line, and is based on an entry made in 1810, on a Virginia continental land warrant, which land had been surveyed and sold to the defendant, pursuant to the acts of congress prior to the year 1810, the plaintiff's patent is void: and their verdict ought to be for the defendant. \nThe prayer for this instruction is founded on the assertion that Ludlow's line was run under the direction of the surveyor general, pursuant to the act of congress of the 1st of May 1802, granting pre-emption rights to purchasers from John Cleves Symmes; and that the land in controversy was sold, pursuant to the act of the 26th of March 1804, making provision for the disposal of public lands in the Indian territory, and for other purposes. \nIf by the words \"pursuant to an act of congress,c as used in this prayer, it is intended to say that the boundary line run by Ludlow was correctly run as required by the act of May lst, 1802; and that the sale of the land in controversy was authorized by the act of the 2lth of March 1804, then the court is required to decide facts not admitted by  the parties,  which are proper for the consideration of the jury; and then to declare the law arising upon those facts. If those words mean no more than that the line was actually run under the authority of the surveyor general, and that the land in controversy was actually sold at the land office in Cincinnati by the officers of government, the question fairly arises, what influence have these facts on the rights of the parties? Do they, taken in connexion with the acts of the 23d of March 1804 and of the 11th of April 1818, justify the inference which the court is asked to draw, that the act of 1818 relates back to the act of 1804, and takes effect from its date, so as to avoid a patent issued in October 1812, on an entry and survey made in 1810. \nIt has already been stated that the act of the 23d of March 1804 establishes Ludlow's line, not absolutely, but on condition that Virginia should assent to it; and that Virginia never did assent to it. \nIt has also been stated that in 1812, congress authorized the president to appoint commissioners who should proceed in concert with such as might be appointed by Virginia, to run a line which should constitute the western boundary  of the Virginia military reserve. These commissioners did meet, and did cause a line to run from the source of the Little Miami to the source of the Scioto. This is called Roberts's line. The commissioners of Virginia did not assent to this line. Consequently it is of no operation. \nThe act of April the 11th, 1818, declares that Ludlow's line shall be considered and held as the true western boundary of the Virginia military reserve until otherwise directed by law. But from what time shall it be so considered and held? The language of the law is entirely prospective. It is a principle which has always been held sacred in the United States, that laws by which human action is to be regulated, look forwards, not backwards; and are never to be construed retrospectively unless the language of the act shall render such construction indispensable. No words are found in the act of 1818 which render this  odious construction indispensable. The language is that Ludlow's line shall be considered and held, that is, shall in future be considered and held as the  true western boundary of that reserve. That this was the understanding of the legislature, is rendered  the more probable from the clause which relates to patents. It does not annul patents already issued, but declares that no patent shall be granted on any location and survey that has been or may be made west of this line. Patents which have been granted are not affected directly by the words of this law, and must depend on the pre-existing act of congress. \nThe argument is, that this act declaring that Ludlow's line shall be considered and held as the westerly boundary line of the reserve until otherwise directed by law, proves that, according to the true construction of the deed of cession, this line is in reality the true boundary, and therefore that all titles previously acquired to lands lying west of this line are invalid. \nWe cannot admit the correctness of this argument. \nThat in the state of things which existed in 1812 and 1818, congress might establish the western boundary of the military reserve, so as to affect titles thereafter to be acquired, is not questioned. Congress might fix a reasonable time within which titles should be asserted, and might annex conditions to the extension of this time. But to look back to titles already acquired, to declare by a law what was  the meaning of the compact under which those titles were acquired, is to construe that compact and to adjudicate in the form of legislation. It would be the exercise of a judicial, not of a legislative power. This construction can never be admitted by the Court unless it be rendered indispensable by the language of the act. We do not think that the language of this act does require it. \nIf the language of the statute does not require this construction, neither do the facts that Ludlow's line was run by order of the surveyor general, and that the land in controversy was sold by the regular agents of government. These facts cannot we think carry back the act of 1818 to 1804, and give it a retrospective operation. \nWe do not inquire into the power of congress to pass such an act. There is undoubtedly much force in the argument suggested at the bar, that the general power of legislation,  which congress could exercise over the territory north west of the Ohio, passed to the new government when the territory was erected into a state; and that congress retained only the power of a proprietor with a capacity \"to dispose of and make all needful rules and regulations respecting  the property.\" But it is unnecessary to pursue this inquiry, because we are of opinion that this construction is inadmissible. \nThe Court therefore did right in rejecting this prayer. \nThe third instruction asked by the defendant is in these words; that according to the true intent and meaning of the act and deed of cession from Virginia to the United States, the land lying between the rivers Scioto and Little Miami, is bounded by a line extending from the source or point of land farthest removed from the mouths of these rivers, from which the rain descending on the earth runs down into their respective channels, along the tops of the ridges, dividing the waters of the Scioto from the waters of the Great Miami, which empties into the Ohio below the mouth of the Little Miami, as delineated on the diagram returned by the county surveyor for the defendant in this case; and as the plaintiff's patent covers land west or without the boundary of the district so bounded as aforesaid, and is based on an entry on a Virginia continental land warrant, which entry was made in the year 1810, and which said entry and patent cover land which had, pursuant to the acts of congress, been surveyed and  sold to the defendant prior to the date of the plaintiff's said entry, the plaintiff's patent is void: and their verdict ought to be for the defendant. \nIn the case of Doddridge vs. Thompson, 9 Wheaton, 469, this Court said that the territory lying between two rivers is the whole country from their sources to their mouths; and a straight line drawn from the source of one river to the source of the other was considered, in that case, as furnishing the western boundary of the lands lying between them. One or both of the rivers may pursue such a course, that a straight line from the source of one to the source of the other may cross one or both of them. Such a case may form an exception to the universal application of the straight line,  and may go far in showing that no general rule can be laid down which will fit every possible case. But this obvious and reasonable rule has been adopted by congress as well as by this Court. The act of 1804 adopts the straight line.The act of 1812 obviously contemplates a straight line, and the act of 1818 adopts Ludlow's line, from the source of the Little Miami to the Indian boundary line established at the treaty of Greenville, and  the line run by Roberts from the Indian boundary to the source of the Scioto. \nThe counsel for the defendant in the state court abandoned the rule adopted by congress and by this Court, by taking for his commencement \"that point of land which is farthest removed from the mouths of the respective rivers, and from which the rain descending on the earth runs down into their respective channels;\" and to draw a line from that point along the top of the ridges dividing the waters of the Scioto from the waters of the Great Miami. \nWe feel some difficulty in comprehending the principle which has suggested and can sustain this rule.Why should a line drawn along the top of the ridges which divide the waters of the Scioto from those of the Great Miami, constitute the true boundary of the country lying between the Great and Little Miami? Would such a line certainly lead to the source of the Scioto or to that of the Little Miami? We can give no satisfactory answer to these inquiries. It is some objection too to this instruction, that the jury would be much and unnecessarily perplexed in finding the point of land farthest removed from the mouth of each river, and from which the rain descending  on the earth runs down into their respective channels. If any point exists which would fit all parts of the description, and could be found  by the jury, it is by no means certain that such point would be in a line which would mark the boundary of the country between the two rivers. \nThe rule which the court was asked to lay down appears to us to be entirely arbitrary; and this prayer was properly rejected. \n4. The fourth instruction has been abandoned by the plaintiff in error. \n 5. The proposition on which the fifth prayer depends, is that the sources of the two rivers must be at that point in their respective channels at which, from the union of several streams, sufficient water flows at an ordinary stage on which to navigate small vessels laden.\" \nThis rule for ascertaining the source of a river is entirely new in this country. A stream may acquire the name of a river which is not navigable in any part. A river which is navigable, may retain that name above the highest navigable point. The meaning of words as commonly used must be changed before the source of a river can be confounded with its highest navigable point. \nThe Court did not err in rejecting  this prayer. \n6. The proposition on which the sixth prayer depends is, \"that the sources of the two rivers must be considered as commencing at that point in their respective channels from which the water flows at all seasons of the year.\" \nIs this proposition so invariably true as to become a principle of law? We think it is not. A stream may acquire the name of a river, in the channel of which, at some seasons of extreme drought, no water flows. For a great portion of the year parts of a stream may flow in great abundance, in which, during a very dry season, we may find only standing pools. It would be against all usage to say that the general source of the river was at that point in its channel from which the water always flows. \nThis prayer we think ought not to have been granted. \n7. The seventh prayer depends on the proposition, that the sources of the two rivers must be fixed at that point in their respective channels, farthest removed from their respective mouths, at which water is found at all seasons of the year. \nIf the terms of this proposition be taken according to their most obvious import, it would seem to vary from the sixth only in this: that the sixth fixes the  source of a river at the point in the channel from which water flows at all seasons in the year; while the seventh fixes it at that point which is farthest removed from its mouth, at which water is found at all seasons. Understanding it in this sense, the  proposition would not raise the question, which of several was the main branch; but at what point the source of that main branch was to be found. The remarks made on the sixth prayer would apply with equal propriety to this; and the Court would come to the same conclusion on both. But we understand from the argument, that the counsel for the plaintiff in error, intended, by this prayer, to furnish a rule by which the main branch might be designated. That rule is, that the branch in whose channel water might be found furthest removed from the mouth of the river, is its main branch. \nIs this proposition universally true. That branch of a river, which is entitled to the appellation given to the main river, is a conclusion of fact to be drawn from the evidence in the cause. Consequently no general rule can be laid down, which will, in all cases, guide us to a correct conclusion. One of the forks may have retained the  name of the main river, in exclusion of the others. The Scioto and Miami are both Indian names, and if any one branch of either had received from the natives, and retained exclusively, the name given to the main river, that would have been the stream referred to in the reserve, contained in the deed of cession; although water might have been found in a dry season of the year, in the channel of some other, at a greater distance from the mouth of the river; or the white men, who explored the country before the deed of cession was executed, may have fixed the name on some one of the branches of the respective rivers. \nWhen France ceded to Great Britain all her pretensions to the country lying east of the Mississippi, \"from its source to the river Iberville,\" no man could have been so extravagant as to assert, that the source of the Mississippi was to be looked for through all its branches, and fixed at that point in the channel of either in which water might be found farthest removed from the mouth of the river. \nThe size of the rivers, and the notoriety of the names by which they were designated, place the unreasonableness of such a pretension in so strong a point of view, that we can  scarcely bring ourselves to suppose that there is any resemblance  between the case put by way of illustration, and that under consideration. And yet, what is the real difference in principle? If one branch of a small river has by consent retained the name of the main river, in exclusion of the others, that branch must be considered, in the absence of other circumstances, as the true boundary intended by the parties, in a deed which calls for the stream by its name. The fact may be less certain and less notorious; but, if it exists, it must be followed by the same consequences. \nIf neither branch had notoriously retained the name of the river, the main branch is entitled to it. But the main branch is not necessarily that in whose channel water might be found at all seasons of the year, at the point farthest removed from its mouth. The largest volume of water is certainly one indication of the main stream, which does not necessarily accompany that which the counsel for the plaintiff in error has selected as the sole criterion by which it is to be determined. The length of the stream is another. It is obvious, that two branches may pursue such a course that the source  of the longest may be nearer the mouth of the river than that of the shortest. \nWe think the rule proposed in this prayer does not furnish a certain guide to conduct us to the source of the river; and therefore the instruction ought not to have been given. \n8. The eighth prayer requires the court to instruct the jury, that the source of each river is at that point farthest removed from its mouth, from which the rain runs down into its channel. \nWe cannot perceive in the rule which this instruction proposes, any principle which will conduct us to the source of the main stream.  Every objection to granting the seventh prayer, applies with equal force to this. They need not be repeated. \nThe court did not err in rejecting it. \nThe instructions to the jury, for which the plaintiff applied to the state court, are some of them mixed questions, involving fact with law, and requiring the court to decide the fact, and then to declare the law upon that fact. Others propose a rule, as of universal application, to ascertain the main  branch of a river, and the source of that main branch, which would unquestionably, in many cases, mislead us. They propose one single circumstance,  in exclusion of all otters, as being the infallible evidence of a complex fact dependeg on a number of varying circumstances. \nThe court very properly refused to give any of these instructions. \nThis Court is of opinion that there is no error in the judgment of the state court, and that it ought to be affirmed with costs. \n \n\n ", " \nOpinion \n\n \n \n  Mr Chief Justice MARSHALL delivered the opinion of the Court. \nThis was an action brought in the court of the United States, for the seventh circuit and district of Kentucky, against the defendants, owners, &c. \nThere being no special contract between the parties in this case, the principal question arises on the opinion expressed by the court, \"that the doctrine of common carriers does not apply to the case of carrying intelligent beings, such as negroes.\" \nThat doctrine is, that the carrier is responsible for every loss which is not produced by inevitable accident. It has been pressed beyond the general principles which govern the law of bailment, by considerations of policy. Can a sound distinction be taken between a human being in whose person another has an interest, and inanimate property? \nA slave has volition, and has feelings which cannot be entirely disregarded. These properties cannot be overlooked in conveying him from place to place. He cannot be stowed away as a common  package. Not only does humanity  forbid this proceeding, but it might endanger his life or health. Consequently this rigorous mode of proceeding annot safely be adopted, unless stipulated for by special contract. Being left at liberty, he may escape. The carrier has not, and cannot have, the same absolute control over him, that he has over inanimate matter. In the nature of things, and in his character, he resembles a passenger, not a package of goods. It would seem reasonable, therefore, that the responsibility of the carrier should be measured by the law which is applicable to passengers, rather than by that which is applicable to the carriage of common goods. \nThere are no slaves in England, but there are persons in whose service another has a temporary interest. We believe that the responsibility of a carrier, for injury which such person  may sustain, has never been placed on the same principle with his responsibility for a bale of goods. He is undoubtedly answerable for any injury sustained in consequence of his negligence or want of skill; but we have never understood that he is responsible farther. \nThe law applicable to common carriers is one  of great rigour. Though to the extent to which it has been carried, and in the cases to which it has been applied, we admit its necessity and its policy, we do not think it ought to be carried farther, or applied to new cases. We think it has not been applied to living men, and that it ought not to be applied to them. \nThe directions given by the court to the jury informed them, that the defendants were responsible for negligence or unskilful conduct, but not otherwise. \nSir William Jones, in his Treatise on Bailments, p. 14, says, \"When the contract is reciprocally beneficial to both parties, the obligation hangs in an even balance; and there can be no reason to recede from the standard; nothing more, therefore, ought in that case to be required than ordinary diligence, and the bailee should be responsible for no more than ordinary neglect.\" In another place (p. 144) the same author says, \"A carrier for hire ought, by the rule, to be responsible only for ordinary neglect; and in the time of Henry  VIII., it appears to have been generally holden, that a common carrier was chargeable in case of a loss by robbery, only when he had travelled by ways dangerous for robbing,  or driven by night, or at any inconvenient hour.\" \nThis rule, as relates to the conveyance of goods, was changed as commerce advanced, from motives of policy. But if the court is right in supposing, that the strict rule introduced for general commercial objects, does not apply to the conveyance of slaves, the ancient rule \"that the carrier is liable only for ordinary neglect,\" still applies to them. \nIf the slaves were taken on board the yawl to be conveyed in the steam boat, solely in consequence of their distress, and from motives of humanity alone, no reward, hire or freight being to be paid for their passage, as the first prayer of the plaintiff and the prayer of the defendant suppose, the carrier would certainly be responsible only in a case of gross neglect; and the qualification annexed to this construction was correct. \nWe think that in the case stated for the instruction of the circuit court, the defendants were responsible for the injury sustained, only in the event of its being caused by the negligence, or the unskilfulness of the defendants or their agents, and that there is no error in the opinion given. \nThis cause came on to be heard on a transcript of the record from  the circuit court of the United States for the district of Kentucky, and was argued by counsel; on consideration whereof, it is considered, ordered and adjudged by this Court, that the judgment of the said circuit court in this cause be, and the same is hereby affirmed with costs. \n \n\n ", " \nOpinion \n\n \n \n  Mr Chief Justice MARSHALL delivered the opinion of the Court. \nThis is a writ of error to a judgment rendered in the court of the United States for the sixth circuit and district of Georgia, in a case in which the plaintiff in error was plaintiff  in ejectment. The plaintiff derived title  from a grant dated in May 1787, which was issued by the governor of Georgia to Bazil Jones. At the trial, the counsel for the plaintiff moved the court to instruct the jury on several points, on all which the judges were divided; and therefore the instructions were refused, to which refusal exceptions were taken. The verdict and judgment were rendered in favour of the defendants; and the plaintiff has sued out this writ of error, by which the record is removed into this Court. The opinions refused by the court, and the exceptions taken by counsel, will be severally considered. \nThe first is in these words. \nThe plaintiff moreover gave evidence conducing to prove, that the south fork of the Oconee river, known as the Appalachie, runs through the land described by the grant and plat aforesaid, under which the plaintiff derives title; and that all the lands within the said grant, which are in possession of the defendants in this action, are on the north and east side of the said south fork of the Oconee river, and within the territorial limits of the state of Georgia, as defined by Hawkins's line, which said line was run by Benjamin Hawkins, under the authority of the United States,  to define the temporary boundary line between the state of Georgia and the Creek Indians: and that all the lands included within the aforesaid grant are situated on the waters of the said south fork of the Oconee river. And thereupon, the counsel for the said plaintiff moved the court to instruct the jury, that the grant from the state of Georgia to Bazil Jones, under which the plaintiff derives title to 7160 acres of land in Franklin county, in said state, was a legal and valid grant; which instruction the court, being divided in opinion, refused to give. \nThis prayer is expressed in such terms that the court could not with propriety have granted it without explanation; whatever opinion on the law of the case might have been entertained. Without stating a single fact, or placing the prayer on the belief of the jury that the evidence proved any fact, the court is asked to say positively, that the grant to Bazil Jones is legal and valid. Undoubtedly the presumption  is in favour of the validity of every grant issued in the forms prescribed by law; and it is incumbent on him who controverts it, to support his objections. The whole burthen of proof lies on him; but if his  objections depend on facts, those facts must be submitted to a jury. If opposing testimony be produced, that testimony also must be laid before the jury; and the court may declare the law on the fact, but cannot declare it on the testimony. In this case, the prayer states that the plaintiff offered testimony conducing to prove certain facts which were deemed essential to the validity of the grant, and asked the court to say, not that if the testimony was believed, or if those facts were proved, the grant was valid, but positively that the grant was valid. The court did not err in refusing to give this instruction. \nThe second exception states that the counsel for the plaintiff also moved the court to instruct the jury, that, upon the aforesaid evidence, taking the same as true, the said tract of land, so granted to Bazil Jones, was, at the time of the survey and grant thereof, within the territorial limits of the state of Georgia as ascertained by laws and treaties, within the limits of Franklin county as by law defined, and not within the Indian boundary line; which instruction, the court, being divided in opinion, refused to give. \nThis prayer is made on the admission of the testimony  stated in the first, and on its sufficiency to prove that the tract of land granted to Bazil Jones was situated on the waters of the south fork of the Oconee river; and that the land in controversy lay on the north and east side of that fork, and within the territorial limits of the state of Georgia, as defined by the line run by Benjamin Hawkins, under the authority of the United States, to define the temporary boundary line between the state of Georgia and the Creek Indians. \nFrom these facts the court is asked to draw the conclusion that the tract of land was, at the time of the survey and grant thereof, within the territorial limits of the state of Georgia, and within the limits of Franklin county, as by law defined; and not within the Indian boundary line. \nThis prayer requires the court to say what was the boundary  between that part of the state of Georgia, to which its jurisdiction was extended, and the Indians; and also what were the limits of Franklin county. As it requires an instruction respecting the whole tract, the court was bound to inquire whether the whole tract was within those limits. To ascertain these boundaries, the laws of Georgia, and the treaties  of that state with the Creek and Cherokee Indians, must be examined. \nOn the 31st day of May, in the year 1783, a treaty was made at Augusta, between the state of Georgia and the Cherokee Indians, describing the line which should there-after separate the settlements of the whites from the hunting grounds of the Indians. This line commences on the Savannah river, and is of no importance in this case until it reaches the top of the Currohee mountain. It is to proceed \"thence to the head or source of the most southern branch of the Oconee river including all the waters of the same, and thence down the middle of the said branch to the Creek line.\" \nOn the first day of November in the same year, the state of Georgia formed a treaty with the Creek Indians, for the purpose of drawing  the line between the settlements of the whites and the hunting grounds of the Indians. This line also commences on the Savannah river, and runs as described in the treaty to the top of the Currohee mountain. It proceeds \"thence to the head or source of the most southern branch of the Oconee river, including all the waters of the same, thence down the said river to the old line.\" \nA subsequent  treaty was held with the Creeks on the 1ith of November 1785, at Galphinton. the 4th article of this treaty declares, that \"the present temporary line reserved to the Indians for their hunting ground, shall be agreeable to the treaty held at Augusta in the year 1783. \nOn the 2 th of November 1785, the commissioners of the United States, held a treaty with the Cherokees at Hopewell; in which it was agreed that the boundary line should run from the top of the Currohee mountain cto the head of the south fork of Oconee river.\" \nThe treaty at Shoulder-bone, concluded in the year 1786,  confirmed the line as established in the treaties of Augusta and of Galphinton. all the treaties between Georgia and the Indians, stipulate that the lines shall be marked as soon as possible; but it does not appear that they were ever marked. A treaty was afterwards entered into at New York, between the United States and Creek Indians, on the 7th day of August in the year 1790, which fixes the boundary line from the top of the Currohee mountain, \"to the head or source of the main south branch of the Oconee river, called the Appalachie, thence down the middle of the said south branch to its confluence  with the Oakmulgee.\" \nn pursuance of this treaty the line from the Currohee mountain to the head or source of the main south branch of the river Oconee, was run by Benjamin Hawkins. \nSome ambiguity undoubtedly exists in the treaty made with the Creeks at Augusta, which, in a contest between Georgia and the Creeks, might claim a construction favourable to the pretension of the less powerful and less intelligent or skilful party to the compact. But in a controversy in which both parties claim title under the state of Georgia, it would seem reasonable to give the article that construction which Georgia herself has put upon it, provided it be reconcileable to the words. the line is to run \"to the source of the most southern branch of the Oconee river, including all the waters of the same.\" The source of the most southern branch is the source of the main stream of that branch. It is a point to which the line is to be run from the top of the Currohee mountain. This line, if the treaty gave no directions respecting its course, would be a straight line. But the treaty directs it to be so run as \"to include all the waters of the same;\" that is, \"all the waters\" of the most southern branch.  The line must therefore be drawn from the one given point to the other, in such direction as to include all the waters of the most southern branch of the Oconee. It must therefore, instead of being straight, pass round the sources of all those streams which empty into the south fork on its northern side, and are between the points of commencement and of termination. But it is obvious that no line from the top of the Currohee mountain to the  source of the most southern branch of the Oconee river, can include the waters which empty into it on the southern side. \nTo obviate this difficulty, the defendants insist that the line shall pass round the main branch of the south fork of the Oconee to the source of the lowest stream which empties into it on the south side, and proceed down that stream. \nThis line would include all the waters of the south fork, but is attended with other difficulties of no inconsiderable magnitude. The words of the treaty seem to require that the line should stop at the source of the main stream, not at the source of an inconsiderable rivulet. From this source the line is to proceed down the river. It is reasonable to suppose that it proceeds  down the river from the source of the river, not from the source of a small branch.It is to include all the waters, that is all the tributary streams of that at whose source it stops. But this construction requires it to stop at the source of a stream, which is itself tributary to the very river which is spoken of as one of its waters. \nIf this construction be admitted, and the source of the lowest stream on the south side be substituted for the source of the amin stream, still the line must run down that lowest water course to the south fork, and down the south fork to the old line. The case does not inform us, that even this line would include the whole tract granted to Bazil Jones. That tract is stated to lie on the waters of the south fork, but not on the Georgia side of the most extreme of those waters. So much of it as may be situated on the Indian side of that water course, would be within the Indian hunting grounds. \nThe treaty made with the Cherokees at Augusta on the 1st day of June 1783, is apparently intended to establish the same line which was afterwards adopted in the treaty with the Creeks. the only variance in the language is that in the treaty with the Cherokees,  the line from the source of the southern branch of the Oconee river, is to run \"down the middle of the said branch;\" in the treaty with the Creeks, it is to run \"down the river.\" It is not probable that different lines could have been intended. \nIf the state of Georgia has construed this treaty by any  subsequent acts manifesting her understanding of it, we should not hesitate to adopt that construction in this case. But the bill of exceptions contains no fact, showing that Georgia has adopted a construction of her treaties with the Indians, which would establish the boundary claimed by the plaintiff. On the contrary, in February 1787, an act was passed \"for the appointment of commissioners to run the line designating the Indian hunting grounds.\" This act directs the commissioners to proceed in conjunction with those to be appointed by the Creek nation, to trace and mark \"the temporary boundary line, as heretofore established; that is to say, from the Currohee mountain, in the direction of the present temporary line from Zugalo river, till the same shall strike the head or source of the main direct stream of the south branch of  Oconee river, called also Appalachie,  by which is to be understood the main fork of Oconee river, next above Little river.\" \nThis act seems to reject all claim, on the part of Georgia, to lands lying south of the main stream of the south branch of Oconee, and to adopt the construction of the treaties at Augusta, which appears to have been adopted by the commissioners of the United States, at the treaty at Hopewell, in 1785. \nThe prayer we are considering, also requested the court to instruct the jury that the tract of land granted to Bazil Jones was within the limits of Franklin county as by law defined. \nIn February 1784, the legislature passed an act for laying off two more counties to the westward. One of these was the county of Franklin. \nThe first section declares, \"that the present temporary line, circumscribing the Indian hunting ground, shall be marked by a line drawn from that part of the north branch of Savannah river, known by the name of the Owee, which shall be intersected by a line north east from the Oconee mountains; thence in the same direction to Zegalo rover; from thence in a direct line to the top of Currohee mountain; thence to the head or source of the most southern stream of the Oconee river, including  all the waters of the  same; thence down the said river to the old line, thence along the old line.\" \nThe only difference between this legislative description of the line, circumscribing the Indian hunting ground, and that in the treaty, is in the substitution of the word \"stream,\" for the word \"branch.\" In the treaty, \"the branch,\" and in the law, \"the stream,\" appear to be considered as \"the river.\" The line is to run from its source \"down the said river.\" This language would seem to indicate, that a considerable, or main brnach, or stream; one which had acquired the name of river; not a small rivulet, was in the mind of the legislature. the line which runs to it from the top of the Currohee mountain is subject to all the uncertainty which attends the same line, as described in the treaty of Augusta. \nThe 2d section of the act proceeds to define the exterior lines of the county of Franklin. They run from the Savannah river to the south branch of the Oconee river; thence, up the said river, to the head or source of the most southern stream thereof; thence along the temporary line, separating the Indian hunting ground, to the northern branch of the Savannah, &c. \nThe southern  boundary of Franklin county, from the place where the line from the Savannah strikes the most southern branch of the Oconee river, is up that river to the head or source of the most southern stream thereof. You find the head or source of this most southern stream, by proceeding up the river. \nIt may well be doubted whether this description will admit of leaving the river for any of its small rivulets. The words the most southern stream of the south branch of the Oconee, whose source is to be found by proceeding up the river, may be satisfied, either by pursuing the most southern stream which has acquired the name of river, or the most southern stream which empties into the river. It can scarcely be imagined that Georgia has not settled practically the limits of Franklin county; and any such settlement ought to have been conclusive with the circuit court. But no such settlement is stated in the record, and the court is required  to say, in what manner its boundary lines are to be drawn, in pursuance of the act of assembly by which it was constituted. The court is relieved from the difficulty by the same circumstance which made it unnecessary to determine the line which  circumscribed the Indian hunting grounds. The statement of fact on which the opinion of the court is asked, does not affirm that the land lies on the northern, or Georgia side of the most southern stream, but that it lies on the waters of the south branch of the Oconee river. For this reason this instruction ought not to have been given as asked. \nThe third exception states, that the said counsel for the plaintiff also moved the court to instruct the jury that the said grant to Bazil Jones, under which plaintiff derived title, was a legal and valid grant, for all the lands exhibited on the plat as lying north and east of the south fork of the Oconee river, now called Appalachie, including all the waters of the same; which instruction, the court, being divided in opinion, refused to give. \nThe court understands the words, \"including all the waters of the same,\" to mean waters north and east of the south fork of the Oconee river. This application, like the second, is supposed to be made on the assumption that the facts stated in the first are true. If they are, then all the land contained in the patent, lying north and east of the south branch of Oconee, is on the Georgia side of  the line circumscribing the Indian hunting ground, and within the county of Franklin, as described by law. the application supposed to be made to the court, is to instruct the jury that the grant is good for so much land as lies within the county of Franklin, although part of the tract may be without that county and within the Indian boundary. The counsel for the defendants insist that, under the laws of Georgia, the whole patent is void, if any part of the land it purports to grant be within the Indian boundary. the counsel for the plaintiff contend that the laws, so far as they have declared patents to be void, are entirely retrospective; and that prospectively, they only inflict penalties on persons who shall make surveys in contravention of the statute. \n In January 1780, an act was passed \"for the more speedy and effectual settling of this state.\" The 19th section enacts, \"that no warrant, survey or plat, made or laid out in the lands yet within the lines of the Indians, shall be held valid, and the same is hereby declared null and void to all intents and purposes whatever; nor shall any grant which may hereafter be surreptitiously obtained, be deemed legal or of  any effect.\" \nWe do not think the language of this section entirely retrospective. The words \"made or laid out,c may apply to the future as well as the past, and comprehend warrants and surveys which shall be, as well as those which have been, made or laid out in the lands yet within the lines of the Indians. \nIn February 1783, Georgia passed an act  for opening her land office. The 11th section of this are is retrospective so far as it annuls surveys and grants. Its prospective provisions only inflict penalties on the persons who shall make surveys or attempt to obtain a grant. But the 13th section, after describing the limits of the state, provides, \"that nothing herein before contained shall extend, or be construed to extend, to authorize or empower any surveyor, or other person or persons whatsoever, to survey, run, or make lines upon the lands, before described as being allowed to the Indians for hunting ground, or any part or parcel thereof, before or until permission for that purpose shall be granted by the legislature and made known by proclamation.\" \nIn consequence of this proviso, the land office could not be considered as opened for lands within the Indian  boundary. \nThe 5th section of the act of 1785, which has been relied on, is retrospective. \nThe act of February 1787, for the appointment of commissioners to run the line designating the Indian hunting ground, inflicts additional penalties on those who shall thereafter survey or cause to be surveyed, or obtain grants for any lands beyond the temporary line designating the Indian hunting ground. The 3d section is in these words, \"whereas, notwithstanding the most positive laws to the  contrary, many persons, from design or accident, have run large quantities of land and obtained grants for the same, southward of the present temporary line between the good citizens of this state and the Indians, and expect to hold the same when a cession of said land can be obtained. Be it therefore enacted, that the surveys or grants for such land be considered, and they are hereby declared to be null and void, and of no effect whatever.\" \nThis enactment is undoubtedly retrospective. It manifests, however, unequivocally the opinion of the legislature, that all the surveys and grants which are declared void, had been made and issued contrary to the most postive laws. However these laws  may be construed, it is, we think, obvious, that the office was not opened for lands situated within the Indian hunting grounds, and that grants for them were not authorized. \nBut is the whole grant a nullity because it contains some land not grantable? \nIn the nature of the thing, we perceive no reason why the grant should not be good for land which it might lawfully pass, and void as to that part of the tract for the granting of which the office had not been opened. It is every dayhs practice to make grants for lands, which have in fact been granted to others. It has never been suggested that the whole grant is void because a part of the land was not grantable. \nThe act of February 1807, after stating \"that many persons had run large quantities of land, and obtained grants for the same southward of the present temporary line between the good citizens of this state and the Indians,\" enacts \"that the surveys or grants for such lands shall be considered null and void;\" and the survey in this case was made in September 1786. \nThis enactment might with as much propriety be construed to apply to those surveys only, which were made entirely within the Indian boundary as to that part of  a survey which lies on the Georgia side of that boundary. Neither construction would probably pursue the real intent of the legislature. Georgia was willing to grant all the lands as  far as the Indian boundary, but unwilling to pass that line. The sole object of the enactment, was to restrain her citizens from passing it, by making void all surveys and grants of lands beyond it. It is therefore a reasonable construction of the act, to consider it as applying to surveys and grants, so far only as they were contrary to law. There is a plain difference between a grant comprehending lands which may, with lands which may not be granted, and one made on a fraudulent misrepresentation or illegal consideration which extends to, and vitiates the whole isntrument. Understanding this prayer as involving the validity of the grant, so far only as respects its extending in part into the Indian country, we think it ought to have been granted. \nThe 4th prayer, if not a repetition of the 3d, varies from it only by omitting the words \"including all the waters of the same;\" consequently, the opinion which has been expressed on the third, is applicable to this. \nThe principle that a  patent conveying lands lying partly within and partly without the territory retained by the Indians, was void as to so much as lay within it and valid for the residue, was settled by this court in the case of Darnforth vs. Wear 1 . That decision was made on a patent depending on the statutes of North Carolina, which contain prohibitions at lwast as strong as those of Georgia. \nThe 5th prayer states, that the plaintiff moreover gave evidence conducing to identify and prove certain corner trees, station trees, and lines, of the said tract of land, granted to Bazil Jones aforesaid, before described, and including all the lands on the north and east side of the south fork of the Oconee river, in the possession of the defendants. And thereupon, the counsel for the said plaintiff moved the court to instruct the jury, that neither the want of the line and station trees required by any law, nor the omission of the surveyor to note on his plat the beginning corner, nor any mistake in platting the water courses, nor any fraud, irregularity, negligence, or ignorance of the officers of government, prior to the issuing of the grant to Bazil Jones, under which   the plaintiff derives title, did, or could, legally affect the right of the plaintiff to recover; that the existence of the grant is, in itself, a sufficient ground to infer that every prerequisite has been performed; and that as to all irregularities, omissions, acts of fraud, negligence, or ignorance of the officers of government, prior to the emanation of the grant, the government of Georgia, and not the plaintiff claiming under her grant, must bear the consequences resulting from them; which instruction, the court being divided in opinion, refused to give. \nThis prayer is, in some of its parts, unexceptionable. In others, it is expressed in such vague and general terms, as to make it unsafe for any court to grant it. In the case of Polk's lessee vs. Wendle 2 ,  this court decided that a grant raises a presumption that every prerequisite has been performed; consequently, that no negligence or omission of the officers of government anterior to its emanation can affect it. The part of the prayer which respects the defects supposed to be in the plat, speaks of the want of the line and station trees required by any law, without specifying the laws alluded to, and the omission  of the surveyor to note on his plat the beginning, and of any mistake in platting the water courses. \nThe act for opening the land office contains no particular rules respecting plats; and the act which requires surveyors to note the beginning corner of their surveys, passed in December 1789, long after the emanation of this patent. It would seem that the officer by whom the patent was issued, was the proper judge of all things apparent on the face of the plat, and that the patent itself presupposes that the plat was sufficient in law as to those requisites of which he could judge by inspection. This part of the instruction might have been given. But it is connected with a request that the court would instruct the jury that no fraud on the part of the officers of government could affect the plaintiff's title. It is not easy to perceive the extent of this instruction; and it could not, we think, have been safely given. \n The 6th exception states, that the said plaintiff moreover gave evidence conducing to prove that the title of Bazil Jones, the grantee of the said land, had been regularly and legally conveyed to the lessor of the  plaintiff in this action, before the commencement thereof; and that all the lands in the possession of the defendants, and of each of them, at the time of the service of the process in this action, were within the lines described by the said grant to the said Bazil Jones, and were on the north and east side of the said south fork of the Oconee river. And thereupon, the said counsel for the plaintiff moved the court to instruct the jury, that, upon the aforesaid evidence, if the jury believed the same, the palintiff was, by law, entitled to recover the premises in dispute; which instruction, the court, being divided in opinion, refused to give. \nThis prayer states more explicitly the facts contained in the 3d and 4th, and is understood to come completely within the opinion of the court on them. \nIt is the opinion of this court that the circuit court erred in not instructing the jury that the grant under which the plaintiff made title was valid as to the lands in possession of the defendants; and that for refusing to give this instruction the judgment of the said circuit court ought to be reversed and the cause remanded, that a venire facias de novo may be awarded. \n \n\n ", " \nOpinion \n\n \n \n Mr Chief Justice MARSHALL delivered the opinion of the Court. \nIn the present case, a majority of the Court are of opinion that this Court has no jurisdiction in the case; the value in controversy not being sufficient to entitle the party by law to claim an appeal. The value is not the value of the minor's estate, but the value of the office of guardian. The present  is a controversy merely between persons claiming adversely as guardians, having no distinct interest of their own. The office of guardian is of no value; except so far as it affords a compensation for labour and services thereafter to be earned. \n \n\n ", " \nOpinion \n\n \n \n  Mr Chief Justice MARSHALL delivered the opinion of the Court. \n This suit was brought by the plaintiff, against the defendants, the acting executors of Mrs Martha Washington, late of Mount Vernon, to obtain payment of legacies bequeathed to him in her last will. \nThe testatrix, after several devises and bequests, devised as follows: \"Item, it is my will and desire, that all the rest and residue of my estate, of whatever kind and description, not herein specifically devised or bequeathed, shall be sold by the executors of this my last will, for ready money, as soon after my decease as the same can be done, and that the proceeds thereof, together with all the money in the house, and the debts due to me, (the debts due from me and the legacies bequeathed being first satisfied) shall be invested by my executors in eight per cent. stock of the funds of the United States, and shall stand on the books in the name of my executors, in their character of executors of my will; and it is my desire that the interest thereof shall be applied to the  proper education of Bartholomew Henley, and Samuel Henley, the two youngest sons of my sister Henley, and also to the education of John Dandridge, son of my deceased nephew John Dandridge, so that they may be severally fitted and accomplished in some useful trade; and to each of them who shall have lived to finish his education, or to reach the age of twenty-one years, I give and bequeath one hundred pounds to set him up in his trade. \n\"Item, my debts and legacies being paid, and the education of Bartholomew Henley, Samuel Henley, and John Dandridge aforesaid being completed, or they being all dead before the completion thereof, it is my will and desire, that all my estates and interests, in whatever form existing, whether in money, funded stock, or any other species of property, shall be equally divided among all the persons hereinafter mentioned, who shall be living at the time that the interest of the funded stock shall cease to be applicable, in pursuance of my will herein before expressed, to the education of my nephews, Bartholomew Henley, Samuel Henley, and John Dandridge; namely, among Anna Maria Washington, daughter of my niece, and John Dandridge, son of my nephew, and all  my great grandchildren living at the time  that the interest of the said funded stock shall cease to be applicable to the education of the said B. Henley, S. Henley, and John Dandridge; and the same shall cease to be so applied when all of them shall die before they arrive to the age of twenty-one years, or those living shall have finished their education, or arrived at the age of twenty-one years; and so long as any one of the three lives, who has not finished his education or arrived to the age of twenty-one years, the division of the said residuum is to be deferred, and no longer.\" \nThe bill charges that the executors have not paid the several sums of money bequeathed to him by their testatrix; and prays that they may be decreed to pay the same with interest. \nThe process was executed on one of the executors only. He failed to answer, and the bill as to him was taken for confessed, and the court ordered the master commissioner to ascertain the period when the complainant attained his age of twenty-one years, and what would have been a competent sum for his education, according to the true intent and meaning of the last will of Martha Washington, and make report to the  court. At a subsequent term the defendants were ordered to settle their accounts before the commissioner. The defendant, Thomas Peter, afterwards appeared, and filed his answer, in which he admits the last will of Martha Washington deceased, and that his co-defendant and himself alone have qualified as executors thereof. He says that they have paid the legacy of one hundred pounds, and advanced a considerable sum of money to the guardian of B. Henley, S. Henley, and the complaint, to fit them for some useful trade. He also alleges that the executors have been prevented from dividing the residuum, by the unreasonableness of the demand made by the complainant. \nThe master's report shows that the complainant attained his age of twenty-one years on the 21st day of November 1817; that the defendants were on that they indebted to the estate for principal, the sum of $7282.30, and for interest accruing thereon and remaining in their hands, the sum of $7345.11. That they had paid the legacy of 100 pounds, and  had advanced to the guardian of the complainant for his education the sum of $166.67. \nThe cause came on to be heard in April 1827, when the bill was dismissed for want  of proper parties. \nAt the argument, the counsel for the defendants have insisted that not only Bartholomew and Samuel Henley, but all the residuary legatees should have been made parties. \nThis Court is clearly of opinion that the two Henleys who participated with the complainant in the fund applicable to their education, ought to have been parties to a suit which asks the distribution of that fund. This would be  admitted if the whole was distributable among them. But the Court thinks it also proper, though a different construction should be put on the will. The fund is not so large that the claims of each, while all were under age, might be satisfied without taking into view the claims of the other two. In determining how much ought to have been applied to the education of the complainant, the Court would find it necessary to take into consideration the amount of the fund and the relative situation of all the persons entitled to it. They ought to have been parties to a suit in which their interests were involved. \nThe question whether the whole interest accruing on the residuum ought to be divided among the legatees to whose education it was applicable, or only so  much thereof as was necessary for the purpose for which it was given, has been earnestly discussed at the bar. In considering this question, as in all others depending on wills, the intention of the testatrix is to be collected from the will, and from the circumstances under which it was made. In this case the testatrix does not appear to have intended a pecuniary donation to the parties in the particular bequest under consideration. Her intention in that respect was effected by the gifts of 100 pounds to each, to set him up in his trade. This bequest seems to have been made out with a view of adding to their private fortunes, but with a view to their education and preparation for that particular business which they were afterwards to pursue. They are not therefore entitled to the  whole fund, whatever may be its amount, but to so much of it as is required for the object it is to accomplish. \nIn ascertaining the amount which is so applicable, the plaintiffs contend that one of the learned professions may be taken as the standard, with as much propriety as the trade or art of a mechanic. The Court does not think so. The distinction between a profession and a trade  is well understood; and they are seldom, if ever, confounded with each other in ordinary language. If the testatrix had contemplated what in the common intercourse of society is denominated a profession, she would scarcely have used a term which is generally received as denoting one of the mechanical arts. \nBut we do not think the bequest is confined to the expense of acquiring the trade, so as to be enabled to exercise it in the common way. Such does not appear to have been the intent of the testatrix. Her bounty is extended to the proper education of three relatives, so that they may be severally fitted and accomplished in some useful trade. Their education is a primary object, as well as their acquisition of of the trade; and when we consider the situation and character of the parties, and the language of the will, we cannot doubt that the testatrix intended such an education as would fit her relatives to hold a distinguished place in that line of life in which she designed them to move. The sum allowed for the object ought to be liberal, such as would accomplish it, if the fund from which it was to be drawn would admit of it. \nIn a suit for the distribution of this fund we  do not think the residuary legatees necessary parties. They have undoubtedly an interest in reducing the sum to be allowed out of it to the complainant, but they have the same interest in reducing every demand on the estate. Whatever remains sinks into the residuum, and that residuum is diminished as well by the claims of creditors and specific legatees as by this. In all such cases the executors represent the residuary legatees, and guard their interests. It is a part of that duty which requires them to protect the interests of the estate.  In such suits the residuary legatees are never made parties. To require it would be an intolerable burthen on those who have claims on an estate in the hands of executors. \nWe do not think that the bill ought to have been dismissed for want of proper parties, unless the complainant refused to make such as were really necessary; and then it might have been dismissed without prejudice. \nThe circuit court can make no decree for the distribution of the residuum, unless all those entitled to distribution are brought before the court; but it may grant all other relief to which the complainant may be entitled, on making Bartholomew and  Samuel Henley parties. \nThis Court is of opinion, that the decree of the circuit court, dismissing the complainant's bill, ought to be reversed, and the cause remanded to the said circuit court, with leave to the plaintiff to make new parties; after which the cause ought to be referred to the master, with instructions to compute the several sums which ought to be allowed out of the fund applicable to the education of Bartholomew Henley, Samuel Henley and John Dandridge, in conformity with the will of Mrs Martha Washington deceased; on which sums interest ought to be allowed; and also to compute the sum to which the plaintiff may be entitled, as one of the residuary legatees of the said Martha Washington deceased; provided the other residuary legatees be brought before the Court as parties; on failure to do which, the plaintiff's bill is to be dismissed, so far as it claims a part of the residuary estate, without prejudice. \nThis cause came on to be heard on the transcript of the record from the circuit court of the United States for the district of Columbia, holden in and for the county of Alexandria, and was argued by counsel; on consideration whereof, this Court is of opinion, that  the circuit court erred in dismissing the plaintiff's bill for want of proper parties, and that the said decree ought to be reversed. Whereupon it is ordered and decreed by this Court, that the decree of the  said circuit court in this cause be, and the same is hereby reversed; and this Court doth further order that the said cause be, and the same is hereby remanded to the said circuit court, with directions to give leave to the plaintiff to make new parties, that the proper accounts may be taken in order to a final decree; in which decree, the plaintiff ought to be allowed interest on the sum due to him for his education out of the money applicable to that object. \n \n\n ", " \nOpinion \n\n \n \n  Mr Chief Justice MARSHALL delivered the opinion of the Court. \nThis cause was fully argued at the last term on the validity of the deed made by the administrators; and several acts, which were supposed to illustrate that question to which it is unnecessary now to refer, were cited and relied on. As it was a question of great interest, on which many titles depended, which was to be decided entirely by the statutes of Ohio; and as the Court was informed that the very case was depending before the highest tribunal of the state, the case was held under advisement. The cause depending before the state court, which was an ejectment for other land sold by the same administrators under the same orders of the court of common pleas, has been since decided, and the supreme court of the state has determined: \n 1. That there was no law in the territory prior to the act of 1795, authorizing administrators to sell the lands and tenements of an intestate. \n 2. That this law was repealed, and ceased to have effect from and after the 1st day of June 1805. \n3. That the order of the court of common pleas of May term 1804, directing the administrators of Israel Ludlow to sell a part of the real estate of said Ludlow for the payment of his debts, did not embrace the premises in question. \n4. That the parol testimony offered in evidence to prove an order of sale at the May term 1805, was incompetent. \n5. That the order of the said court at the August term 1805, was coram non judice and void; and that the lessors of the plaintiffs could not be divested of their title, in consequence of any act done in pursuance of that order. \nAt this term the cause has been again argued, and the counsel for the plaintiffs in error have made several points which they suppose to be still open. \nThey contend, that the repeated declaration of this Court, that it will conform to the construction of the statutes of a state made by its own tribunals, does not apply to the decision respecting the order made  in August 1805. They insist that the power of the court to make this entry as of the May term preceding, depends upon the common law, not on the statutes of Ohio, and that the question is still open for discussion. \nSupposing it to be open, they maintain that the omission to enter the order in May, when it was made, was a clerical misprision, which the court might correct in August, and enter the order as of May term. It has, they contend, the the same effect as if it had been actually entered in May; and, allowing this, the subsequent repeal of the law before the sale was made, could not affect the power to sell which was given by the order, and therefore the sale is valid. \nTo sustain this argument, all the propositions on which it rests must be true. The decision of the state tribunal must be of a character which this Court will consider, undoubtedly, with great respect, but not as conclusive authority. The court of common pleas must have had the power in august, after the repeal of the law under which the order was made, to enter it as of May, and the administrators must have had the power to sell in virtue of the order, after the law by authority of which it was made, had  been repealed. If the  plaintiffs in error have failed in sustaining any one of these propositions, the conclusion which has been drawn from them is not supported. \nThe judges are not united in opinion on these several propositions, but concur in thinking that the conclusion drawn from the whole of them is not sustained. The power of the inferior courts of a state, to make an order at one term, as of another, is of a character so peculiarly local, a proceeding so necessarily dependent on the judgment of the revising tribunal of the state, that a majority considers that judgment as authority, and we are all disposed to conform to it. \nBut, were this question entirely open, the considerations which appear to have influenced the judgment of the supreme court of Ohio, are certainly entitled to great weight. That a court of record, whose proceedings can be proved by the record alone, should, at a subsequent term, determine that an order was made at a previous term, of which no trace could be found on its records, and that too after the repeal of the law which gave authority to make such an order; is a proceeding of so much delicacy and danger, which is liable to so much abuse;  that some of us question the existence of the power. \nIn the case, as depending before this Court, there is still a stronger objection to the validity  of the order of August 1805. Its language does not import that the administrators had applied to the court at the preceding May term, for an extension of the order of May 1804, and that the court had granted their application, and made the order, which the clerk had omitted to enter, and that therefore the order is now made, with a direction that it should be entered as of May. This is not its language. It makes no allusion to any proceeding in May.It purports to have been made on an original application by the administrators, in August, for an extension of the order of May 1804. On this original application, the court allows the administrators to sell the house and lots in Cincinnati, and adds, \"this entry to be considered as of May term 1805.\" The entry, on its face, does not import to be the correction of the record, by placing on it an order which had in fact been made in the preceding May,  and which the clerk had omitted to enter; but to be an original proceeding in August, to which the court by its own  authority gives a retrospective operation. If any explanatory testimony could have been received in the circuit court, none was offered. That court was required to infer from the words, \"this entry to be considered as of May term 1805,\" that it was in fact made at that term, and that the clerk had totally omitted it. The certainty which is necessary in judicial records, and the principle that they prove themselves, forbade the court to draw this inference. The law being then repealed, the order was certainly, coram non judice. \nIt is also the opinion of one of the judges, that had the order even been made in May term, the repeal of the law before the sale, terminated the power to sell. \nThe counsel for the plaintiffs in error have also conterded, that the interest of the administrators in the real estate, as trustees for the creditors, was a vested interest, which the repeal of the law could not divest; and that they might proceed to sell under the sanction of an order made even after the law was repealed. \nThis is a point on which we cannot doubt. The lands of an intestate descend not to the administrators, but to the heir. They vest in him, liable, it is true, to the debts  of his ancestor, and subject to be sold for those debts. The administrator has no estate in the land, but a power to sell under the authority of the court of common pleas. This is not an independent power, to be exercised at discretion, when the exigency in his opinion may require it; but is conferred by the court in a state of things prescribed by the law. The order of the court is a pre-requisite, indispensable to the very existence of the power; and if the law which authorised the court to make the order be repealed, the power to sell can never come into existence. The repeal of such a law divests no vested estate, but is the exercise of a legislative power which every legislature possesses. The mode of subjecting the property of a debtor to the demands of a creditor, must always depend on the wisdom of the legislature. \nIt is also contended that the jurisdiction of the court of  common pleas, in testamentary matters, is established by the constitution, and that the exclusive power of the state courts to construe legislative acts does not extend to the paramount law, so as to enable them to give efficacy to an act which is contrary to the constitution. \nWe cannot  admit this distinction. The judicial department of every government is the rightful expositor of its laws; and emphatically of its supreme law. If in a case depending before any court, a legislative act shall conflict with the constitution, it is admitted that the court must exercise its judgment on both, and that the constitution must control the act. The court must determine whether a repugnancy does or does not exist; and in making this determination, must construe both instruments.That its construction of the one is authority, while its construction of the other is to be disregarded, is a proposition for which this Court can perceive no reason. \nBut, had the question never been decided in Ohio, this Court can perceive no sufficient ground for declaring, that the legislature of the state might not repeal the law by which the court of common pleas was authorized to direct, in a summary way, the sale of the lands of an intestate. \"Jurisdiction of all probate and testamentary matters,\" may be completely exercised, without possessing the power to order the sale of the lands of an intestate. Such jurisdiction does not appear to us to be identical with that power, or to comprehend  it. The constitution did not mean and could not mean, to deprive the legislature of the power of exercising its wisdom on a subject so vitally interesting to the people; nor do its words convey such an intent. Were it even true, which we cannot admit, that the constitution established the jurisdiction of the court of common pleas in the case, still the legislature might prescribe the rule by which that jurisdiction should be exercised. \nWe are satisfied that there was no error in the instruction given by the circuit court to the jury. \nThe plaintiffs in error contend that the court erred in overruling the motion to appoint commissioners to value the improvements in pursuance of the occupant law of Ohio;  and in rendering judgment without conforming to that law. The first section of the act provides that \"an occupying claimant,\" circumstanced as was the plaintiff in error, \"shall not be evicted or turned out of possession, until he or she shall be fully paid the value of all lasting and valuable improvements made by such occupying claimant,\" \"previous to receiving actual notice by the commencement of suit;\" &c. \"unless such occupying claimant shall refuse to pay the person  so setting up and proving an adverse and better title, the value of the land without the improvements made thereon,\" &c. \nThe 2d section proceeds to direct the court to appoint commissioners to make the valuation, which had been prescribed by the proceding section. \nThe counsel for the defendant in error insists that this law is repugnant to the 10th section of the first article of the constitution of the United States; and to the ordinance of  1787 for the government of the north western territory. \nThis Court does not think that these questions properly arise in the present actual state of this controversy. The 7th amendment to the constitution of the United States declares that \"in suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved.\" This is a suit at common law, and the value in controversy exceeds twenty dollars. The controversy is not confined to the question of title.The compensation for improvements is an important part of it, and if that is to be determined at common law, it must be submitted to a jury. \nIt has been said that the occupant law of Ohio, must, in conformity with the 34th  section of the judicial act, be regarded as a rule of decision in the courts of the United States. \nThe laws of the states, and the occupant law, like others, would be so regarded independent of that special enactment; but the exception contained in that section must be regarded likewise. The law, so far as it consists with the constitution of the United States and of the states of Ohio, is a rule of property, and of course a rule of decision in the  courts of the United States; but that rule must be applied consistently with their constitution. \nAdmitting that the legislature of Ohio can give an occupant claimant a right to the value of his improvements, and can authorize him to retain possession of the land he has improved, until he shall have received that value; and assuming that they may also annex conditions to the change of possession, which, so far as they are constitutional, must be respected in all courts; still that legislature cannot change radically the mode of proceeding prescribed for the courts of the United States; or direct those courts, in a trial at common law, to appoint commissioners for the decision of questions which a court of common law must submit  to a jury. \nBut this inability of the courts of the United States to proceed in the mode prescribed by the statute, does not deprive the occupant of the benefit it intended him. The modes of proceeding which belong to courts of chancery are adapted to the execution of the law; and to the equity side of the court he may apply for relief. Sitting in chancery, it can appoint commissioners to estimate improvements as well as rents and profits, and can enjoin the execution of the judgment at law until its decree shall be complied with. If any part of the act be unconstitutional, the provisions of that part may be disregarded while full effect will be given to such as are not repugnant to the constitution of the United States or of the state or to the ordinance of 1787. The question whether any of its provisions be of this description, will properly arise in the suit brought to carry them into effect. \nWe think there is no error in the judgment, and it is affirmed with costs. \n \n\n ", " \nOpinion \n\n \n \n  Mr Chief Justice MARSHALL delivered the opinion of the Court. \nThis is a suit in chancery, brought by the plaintiffs in the court of the United States for the seventh circuit and district of Kentucky, to obtain a conveyance of lands, to which the defendant has a legal title, but to which the plaintiffs claim the equitable title, under prior entries which they allege to be valid. At the hearing, the bill was dismissed with costs. From this decree the plaintiffs have appealed to this Court. \nThe plaintiffs derive  their title from John Floyd, deceased. As the patent of the defendant is anterior to that under which the plaintiffs claim, their equitable title cannot be sustained, unless it be founded on prior valid entries. These entries, therefore, must be examined. \nIn 1779, John Floyd obtained a certificate for a settlement right of 400 acres, and a pre-emption right to 1000 acres to adjoin his settlement. On the 3d of November 1779, he made an entry of this 400 acres, to include a plantation called Woodstock. The validity of this entry is not controverted, nor is it otherwise important than as it may serve to establish the entry of the pre-emption warrant, so far as that entry depends upon the settlement. \nOn the 31st of May 1783, John Floyd's pre-emption warrant was entered in the following words: \nJohn Floyd's heirs enter 1000 acres of land on a pre-emption warrant, No. 1054, joining the settlement at Woodstock, on the north, east, and south sides thereof, so as not to run into the old military surveys, which are legal. \nTwo objections have been made to this entry; the first is, that it is made in the name of the heirs of John Floyd, without naming them. \nThat there is less precision  and certainty in this description  than if the heirs  were named, must be admitted, but the Court is not prepared to say that the entry is on that account a nullity. No case has been adduced, in which the courts of Kentucky have so decided; and as the description is sufficiently certain to identify the persons entitled under it, we should feel great difficulty in declaring it to be void. \nIn considering this question, the peculiar situation of Kentucky at the time cannot be overlooked; warrants had been issued for more land, perhaps, than was to be found in the country; certainly for more than was valuable. These warrants had been most generally placed in the hands of locators by the proprietors, who resided in the atlantic states. The communication between the principal and agent was tedious and uncertain. The holder of the warrant might often hear of the death of its proprietor, at a critical moment; when its immediate location was very interesting to the family of the deceased; and when he was not informed of the names of the persons entitled to the warrant. To delay in making the entry until this information could be gained, might, and probably would  be very injurious to the family of the deceased; and no injury could result to any, from making it in the name of the heirs generally. If they were not all entitled, they would all be trustees for those who were. The entry is an incipient step towards obtaining a title. Its object is at the same time to appropriate the land it covers, and to give notice to others that the land is appropriated. We do not think the technical objection to substituting a legal description, which cannot be misunderstood, for the more definite description by the proper names of the persons who are heirs; is of such substantial importance as to vitiate the transaction. We are confirmed in this opinion, by the fact that the survey was made in pursuance of the entry in the name of the heirs of John Floyd generally, and that the patent was issued on this survey. Several other entries and surveys were made for the heirs, without specifying their names, and patents issued on them all.The objection was certainly not deemed valid by the officer who was entrusted with the power of granting titles to land. \nA second, and more serious objection has been taken to  the language of the entry. It is,  to join the settlement on the north, east, and south sides thereof, so as not to run into the old military surveys, which are legal. \nThe old military surveys, forming together a parallelogram, adjoined Floyd's settlement on the north west, making an acute angle with its northern line; so that the portion of his pre-emption warrant which adjoined his settlement on the north, could not be extended the whole length of the northern line without interfering with them. It is contended that this limitation on the entry, \"so as not to run into the old military surveys, which are legal,\" renders the whole so uncertain as to make it void. \nWe do not think so. The rules which are settled in Kentucky would require that this entry, had the restriction respecting the military surveys been omitted, should be surveyed equally on the north, east, and south sides of the settlement; the whole land to be included by rectangular lines. The old military surveys, therefore, must be so contiguous to the settlement as to stop one or two of these lines. A subsequent locator knew where to look for them, and the testimony in the cause informs us, that he would encounter no difficulty in finding them. The  evidence is, that they were well known; and that the lines were plainly marked, so as to be traced without difficulty. \nWe consider the last words of the entry, \"which are legal,\" merely as an affirmance that they are so, not as leaving it doubtful; and consequently, that they make no change in the entry. Understanding them in this sense, we perceive no sufficient objection to the entry. We cannot perceive any reason, why the lines might not be stopped by an old military survey which is well known, as well as by any other well known object.The shape and form of the land, independent of this reference, being given by the settled rules in Kentucky, the position of the old military surveys must be such as to vary that shape. A subsequent locator could find no real difficulty in fixing the form of the entry. But if this restriction be entirely discarded, and the entry be surveyed without regard to the old military surveys, it will make very little difference in the degree of interference between  the claims of the parties, and no difference in the decree which will be made by this Court. It will therefore not be necessary to decide at this time, in what manner this entry  ought to be construed. \nThe lands held by the defendant also interfere with another entry made by Floyd. \nOn the 29h of April 1780, John Floyd entered 1600 acres upon a military warrant, on Boon's creek, adjoining David Robinson's west line, extending along said line, and westwardly for quantity. \nDavid Robinson had a survey made in 1776, on a military warrant. He afterwards entered a settlement and pre-emption warrant to adjoin this military survey; and surveyed them in September 1780.The counsel for the defendant objects to the legality of this entry, because it does not designate the tract for the west line of which it calls; and because David Robinson's survey had not sufficient notoriety to inform a subsequent locator, on what part of Boon's creek he was to search for it. \nThe first objection is certainly not well founded. Floyd's entry was made before David Robinson's settlement and preemption were surveyed; possibly, before they were entered. But, were it otherwise, this settlement and pre-emption form one tract with his military survey so as to have the same west line. \nThere is more weight in the second objection. The testimony to establish the notoriety of Robinson's  survey is far from being conclusive. John Bradford deposes that he was conversant in the quarter in which these lands lie in November 1779; that he had no knowledge of the military survey of David Robinson, but from the records, except from common conversation, but does not know at what time he first heard it spoken of. He knows that Robinson and Hickman have military surveys in that neighbourhood, but never understood their precise situation. He believes the M'Gees,  at M'Gee's station, knew, and could show the lands of David Robinson, but of this he is not certain. \nRobert Boggs deposes, that he was at the making of David Robinson's military survey, and that he has been conversant  in the neighbourhood from the year 1775 to the time of giving his deposition. To the question, \"from your first knowledge of those surveys (Robinson's and others') were they known and familiarly spoken of by the names of their proprietors, as aforesaid?\" he answers, \"he thinks they were, shortly after.\" He says, \"he thinks the lines of Robinson's and Martin's surveys could have been found by reasonable inquiry, at any time after they were made, for they were plainly marked.\" He  left Kentucky, and returned in the year 1779. He left it again in the fall of 1780, and returned in 1783. He is not certain that any person was acquainted with the lines of David Robinson's military survey on the 29th day of April 1780, except David and William Robinson, David M'Gee, John Haye, and Jacob Boughman. The Robinsons and Boughman lived in Virginia, M'Gee at his station, about one and a half, or two miles from the survey. The body of the land was spoken of, and he believes, was known by many. \nIn estimating the weight of this testimony, it must be recollected that the depositions were taken more than forty years after Floyd's entry was made. Few persons who were alive and in the neighbourhood at the time, now survive. A fact resting mainly in memory, which might have been established with ease in 1780, would be ascertained with difficulty in 1825. Examining the testimony under this aspect of circumstances, we think, although it may not be conclusive, it is sufficient to sustain the entry. John Bradford had no personal knowledge of Robinson's survey, but intimates that he was acquainted with it from the records and from common conversation. His deposition is not explicit  as to time. His deposition, however, appears rather to refer to a remote time. The people at that time were in stations, and the nearest, certainly one within two miles of the place, was M'Gee's. He believes, but is not certain, that the M'Gees knew and could have shown the land. Robert Boggs was present at the survey. It was known and spoken of as Robinson's shortly afterwards. Though he mentions only five persons who, in addition to himself knew that lines, three of whom resided in Virginia; still, he says the body of the land was spoken of, and he believes, was known by many. \n A military survey, made before the land office was opened, must have attracted the general attention of those in the neighbourhood; and after the office was opened, must have excited general inquiry. Those surveys were established by law; and it was consequently an object with locators, to obtain exact information respecting them, in order to avoid them. Robinson's survey was spoken of at M'Gee's, the very place where inquiry would be made. Other witnesses whose knowledge of that part of the country commenced five or six years afterwards, speak of Robinson's survey as having then acquired  general notoriety. There is then strong reason to believe that a subsequent locator, having Floyd's entry in his hands, could, with reasonable inquiry, have found the west line of Robinson's entry. \nThe defendant also relies on an adversary possession in himself and those under whom he claims, for more than twenty years. His proof of this fact is sufficient; and it is well settled both in the courts of Kentucky and in this Court, that a possession which will bar an ejectment, is also a bar in equity. But in this case, the plaintiffs also have been in possession. John W. Hunt deposes that he took possession of the tract of land in controversy, for the plaintiffs, leased it out for a number of years, and accounted with them for the rent. He exhibits the copy of an agreement made with Isaac Johnson and Thomas Coleman, on the 12th day of August 1800, for three years; and says that other tenants succeeded them, who continued to pay him the rent for the plaintiffs, until the year 1815. The rent he received in that year was, he believes, for the year 1814. Each of the parties then has held possession of distinct parts of the land in controversy. In this state of things, it is well  settled 1 , that the party having the better right, is in constructive possession of all the land not occupied in fact by his adversary. If then the plaintiffs in this case have the better title, that title is barred by the possession of the defendant, so far as that possession was actual, but not farther. \nNo Question can arise in this case, under the act which  makes the possession of seven years a bar, because the plaintiffs were in actual possession of part of the land until the year 1815, and this suit was instituted in April 1820. \nIf then, the title of John Floyd is regularly vested in the plaintiffs, we perceive no sufficient obstacle to their recovering at least a part of the land in controversy. \nThe plaintiffs claim 694 acres of land, part of the entries which have been considered; and charge generally in their bill, that they have regularly obtained a conveyance for the same from the heirs of the said Floyd, by metes and bounds, without specifying the persons through whom the title is derived. \nThe will of John Floyd, proved and admitted to record in Jefferson county, in March 1794, is among the exhibits in the cause.  In that will he devised his tract of land called Woodstock (which includes the land in controversy) to his daughter Mourning Floyd, and to his son George Floyd. Patents issued on the entries and surveys for the lands in dispute, to Mourning Floyd, John Floyd, George Floyd, and Jane Floyd, widow of the said John Floyd, as tenants in common. \nIt appears from another exhibit in the cause, that in the year 1815 the plaintiffs with others filed their bill in the circuit court of Fayette county, in the state of Kentucky, sitting in chancery, against the heirs and devisees of Thomas Turpin and of John Floyd deceased, praying for a conveyance of 699 acres of land, part of the Woodstock tract. \nThe bill states that in January 1798, Thomas Turpin sold to John W. Hunt and Abijah Hunt 699 acres of land, part of John Floyd's survey, called and known by the name of Woodstock tract; and on the same day executed his bond to them in the penalty of $4000, with a condition for the conveyance  thereof, on or before the first day of March thereafter. The said Abijah Hunt and Thomas Turpin both departed this life, no conveyance of the land being made. Abijah Hunt by his last will, devised  his interest in the land to the plaintiffs; and the legal estate of Thomas Turpin descended to his heirs \nThe bill farther states that John Floyd devised his tract of  land called Woodstock consisting of 4000 acres, of which the land sold by Thomas Turpin was part, to his daughter Mourning Floyd, since intermarried with John Stewart, and his son George Floyd, to be equally divided between them; that the said Stewart and wife did execute a deed for the said 669 acres of land to Thomas Turpin in his life time; but they are informed that the same was burnt in the office of the county court of Fayette, when the same was destroyed by fire. \nA subpoena issued on this bill, which was not executed on several of the defendants, among whom were included John Stewart and Mourning his wife, they being no inhabitants of the country. \nIn February 1815, the court ordered that unless the nonresident defendants shall appear and answer on or before the first day of the next June term, the bill should be taken for confessed against them; and that a copy of the order be inserted in some authorised newspaper of the commonwealth, for eight weeks in succession, agreeably to law. \nIt appearing  that this order was published, and that process was served on the resident defendants, the court, in June term 1816, decreed that the bill should be taken for confessed, and that a commissioner appointed by the court should convey the title of the defendants to the plaintiffs. \nThe plaintiffs in this suit claim title to the lands in controversy under the conveyance executed in pursuance of this decree. The defendant insists that no title passes by it, because Floyd's heirs were not parties to the suit. \nThe laws of Kentucky authorise their courts in chancery to make decrees against absent defendants, on the publication of an order, such as was made in this cause by the circuit court of Fayette county, for two months successively, in some paper authorised to make the publication, and on fixing it up at certain public places prescribed by the act.This publication is considered as a constructive service of the process. The court of Fayette county obviously supposed a publication for eight weeks to be a compliance with this law; but we understand that the supreme court of the state has determined otherwise. That tribunal has decided  that the publication must be continued  for two calendar months. Under this construction of the act, the heirs of John Floyd were never before the court, and the decree was made against persons who were not parties to the suit. It cannot affect them 2 . The court therefore has no evidence that the legal or equitable right of Floyd's devisees has been acquired by the plaintiffs. They cannot be allowed to assert the equity of those devisees against the defendant, without making them parties to the suit. \nBut as the plaintiffs claimed under a conveyance made in pursuance of a decree of a court of competent jurisdiction; we do not think their bill ought to have been dismissed. The circuit court ought to have given leave to make new parties; and on their failing to bring the proper parties before the court, the dismission should be without prejudice. \nThe decree of the circuit is reversed, and the cause remanded; with directions that the plaintiffs have leave to amend their bill, and make new parties. \nThis cause came on to be heard, on the transcript of the record from the circuit court of the United States for the district of Kentucky, and was  argued by counsel; on consideration whereof, it is considered, ordered and decreed by this court, that the decree of the said circuit court in this cause be, and the same is hereby reversed and annulled; and that this cause be, and the same is hereby remanded to the said circuit court with directions that the plintiffs have leave to amend their bill and make new parties. \n \n\n ", " \nOpinion \n\n \n \n  Mr Chief Justice MARSHALL delivered the opinion of the Court. \nThis is an action of debt brought by the plaintiff in error, in the court of the United States for the district of Mississippi, as the assignee of Henry Clay, executor of James Morrison deceased. The defendant pleaded in abatement, that the will of James Morrison had not been proved or recorded in the state of Mississippi,  nor had letters testamentary therein been granted to Henry Clay the executor. To this plea there was a replication, which set out the probate of the will in the state of Kentucky, the letters testamentary to the executor, and the assignment, in the state of Kentucky, of the note on which the action was brought to the plaintiff in error. To this replication the defendant demurred. The court gave judgment for the defendant, and the plaintiff has sued out this writ of error. \nThe district court proceeded on the idea that the executor could not transfer a chose in action in Kentucky, because the obligor did not reside in that state. This court supposes the law to be otherwise. The assignment in Kentucky could not enable the assignee to sue in the courts of Mississippi, unless the law of the court authorized an assignee to sue in his own name.But since this is permitted in the courts of Mississippi, the plea in abatement cannot be sustained. \n The judgment is reversed, and the cause remanded to the district court with directions to over-rule the demurrer. \n \n\n ", " \nOpinion \n\n \n \n Mr Chief Justice MARSHALL delivered the opinion of the Court. \nThe question now referred to this Court differs from that which was decided in Patton's lessee vs. Easton, 1 Wheat.  476, in this, that the defendant who sets up a possession of seven years in bar of the plaintiff's title, endeavours to connect himself with a grant. The sale and conveyance however, by which this connexion is to be formed, are admitted to be void. The conveyance being made by a person having no authority to make it, is of no validity, and cannot connect the purchaser with the original grant. We are therefore of opinion that the law is for the plaintiff, and that this be certified as the  opinion of this Court. \nThis cause came on to be heard on a certificate of division of opinion of the judges of the circuit court of the United States for the district of west Tennessee, and on the questions and points on which the said judges of that court were divided in opinion, and which have been certified to this Court; and was argued by counsel: on consideration whereof, this Court is of opinion, that under the statute of limitations of Tennessee, of seventeen hundred and ninety seven, a possession of seven years is a protection only when held under a grant or under valid mesne conveyances, or a paper title, which are legally or equitably connected with a grant; and that a void deed is not such a conveyance, as that a possession under it will be protected under the statute of limitations; all which is directed and ordered to be certified to the said circuit court of the United States, for the seventh circuit and district of west Tennessee. \n \n\n ", " \nOpinion \n\n \n \n  Mr Chief Justice MARSHALL delivered the opinion of the Court. \n This is a motion to dismiss a writ of error to a judgment rendered in the court of the United States, for the seventh circuit and southern district of New York in favour of the post master general. The foundation of the motion is, that this Court has no jurisdiction of the cause. \nThe original judgment was rendered in the court for the northern district of New York, on which congress had conferred jurisdiction as a circuit court also. That judgment was removed into the circuit court sitting in the southern district by writ of error, and was affirmed in that court. \nIn May 1826, congress enacted \"that appeals  and writs of error shall lie from decisions in the district court for the northern district of New York, when exercising the powers of a circuit court; and from decisions which may be made by the circuit court for the southern district of said state, in causes heretofore removed to said circuit court from the said district court sitting as a circuit court, to the Supreme Court of the United States, in the same manner as from circuit courts.\" \n The doubt respecting the jurisdiction of the Court is produced by this act. \nBy the judicial act the district courts have cognizance concurrent with the circuit court of all cases where the United States sue. By the act of the 3d of March 1815, Vol. IV. p. 855, it is enacted that the district courts of the United States shall have cognizance, concurrent, &c. of all suits at common law where the United States or any officer thereof under the authority of any act of congress, shall sue, &c. This act gave the district court jurisdiction of all suits brought by the postmaster general. It has been construed by this Court to give the circuit courts cognizance of the same causes. \nThe district courts which exercise circufit court jurisdiction,  do not distinguish in their proceedings whether they sit as a circuit or a district court. That is determined by the subject matter of their judgments. their records are all kept as the records of a district cofurt. If the court for the northern district of New York sat as a circuit court when the original judgment was rendered against the plaintiff  in error, this Court can take jurisdiction of the judgment affirming it, which was rendered in the circuit court; if the original judgment was rendered by a district court, no writ of error lies to the judgment of affirmance pronounced in the circuit court. \nHad the court for the northern district of New York possessed no circuit court powers, it could still have taken cognizance of this cause. By conferring on it the powers of a circuit court, congress has added nothing to its jurisdiction in this case. In taking cognizance of it, a district court has exercised the ordinary jurisdiction assigned to that class of courts. No extraordinary powers were brought into operation. We cannot say that a district court, performing the appropriate duty of a district court is sitting as a circuit court, because it possesses the powers  of a circuit court also. \nThe writ of error must be dismissed, this Court having no jurisdiction in the case. \nThis cause came on to be heard on the transcript of the record from the circuit court of the United States for the southern district of New York, and on the motion of the attorney general made in this cause at a prior day of this term, to wit, February 7th, 1829, to dismiss this cause for want of jurisdiction, and was argued by counsel; on consideration whereof, it is considered, ordered and adjudged by this Court, that the writ of error in this cause be and the same is hereby dismissed for want of jurisdiction. \n \n\n ", " \nOpinion \n\n \n \n  Mr Chief Justice MARSHALL delivered the opinion of the Court. \nAs an objection was made to the jurisdiction of the Court in this case, it may be proper, in order to prevent a possible misunderstanding of the principle on which jurisdiction is sustained, briefly to state it. \nThe bill is filed in the court of the United States, sitting in Kentucky, by aliens and by a citizen of Pennsylvania. The defendants are citizens of Kentucky, except one who is a citizen of Ohio, on whom process was served in Ohio. The jurisdiction of the court cannot be questioned, so far as respects the alien plaintiffs. As between the citizen of Pennsylvania and of Ohio, neither of them being a citizen of the state in which the suit was brought, the court could exercise no jurisdiction. Had the cause come on for a hearing in this state of parties, a decree could not have been made in it for the want of jurisdiction. The name of the citizen plaintiff, however, was struck  out of the bill before the cause was brought before the court; and the question is, whether the original defect was cured by this circumstance; whether the court, having jurisdiction over all the parties then in the cause, could make a decree. \nThe counsel for the defendants maintain the negative of  this question. They contend that jurisdiction depends on the state of the parties at the commencement of the suit; and that no subsequent change can give or take it away. They say, that if an alien becomes a citizen pending the suit, the jurisdiction which was once vested is not divested by this circumstance. So, if a citizen sue a citizen of the same state, he cannot give jurisdiction by removing himself, and becoming a citizen of a different state. \nThis is true, but the court does not understand the principle to be applicable to the case at bar. Where there is no change of party, a jurisdiction depending on the condition of the party is governed by that condition, as it was at the commencement of the suit. The court in the first case had complete original jurisdiction; in the last it had no jurisdiction either in form or substance. But if an alien should sue a citizen,  and should omit to state the character of the parties in the bill: though the court could not exercise its jurisdiction while this defect in the bill remained; yet it might, as is every day's practice, be corrected at any time before the hearing, and the court would not hesitate to decree in the cause. \nSo in this case. The substantial parties plaintiffs, those for whose benefit the decree is sought, are aliens; and the court has original jurisdiction between them and all the defendants. But they prevented the exercise of this jurisdiction, by uniting with themselves a person between whom and one of the defendants the court cannot take jurisdiction. Strike out his name as a complainant, and the impediment is removed to the exercise of that original jurisdiction which the court possessed, between the alien plaintiffs and all the citizen defendants. We can perceive no objection, founded in convenience or in law, to this course. \nUpon examining the record, the judges are divided in opinion on the question, whether the defendants, who are purchasers, have taken the lands charged with the equity which was attached to it, while in possession of Campbell and his heirs; or are to be considered  as purchasers without notice. It would be useless to state the arguments and facts in support of each opinion. The decree is affirmed by a divided Court. \n \n\n ", " \nOpinion \n\n \n \n  Mr Chief Justice MARSHALL delivered the opinion of the Court. \nThis suit was brought by the plaintiffs in error in the court of the United States, for the eastern district of Louisiana, to recover a tract of land lying in that district, about thirty miles east of the Mississippi, and in the possession of the defendant. The plaintiffs claimed under a grant  for 40,000 arpents of land, made by the Spanish governor, on the 2d of January 1804, to Jayme Joydra, and ratified by the king of Spain on the 29th of May 1804. The petition and order of survey are dated in September 1803, and the return of the survey itself was made on the 27th of October in the same year. The defendant excepted to the petition of the plaintiffs, alleging that it does not show a title on which  they can recover; that the territory, within which the land claimed is situated, had been ceded, before the grant, to France, and by France to the United States; and that the grant is void, being made by persons who had no authority to make it. The court sustained the exception, and dismissed the petition. The cause is brought before this Court by a writ of error. \nThe case presents this very intricate, and at one time very interesting question: To whom did the country between the Iberville and the Perdido rightfully belong, when the title now asserted by the plaintiffs was acquired? \nThis question has been repeatedly discussed with great talent and research, by the government of the United States and that of Spain. The United States have perseveringly and earnestly  insisted, that by the treaty of St Ildefonso, made on the 1st of October in the year 1800, Spain ceded the disputed territory as part of Louisiana to France; and that France, by the treaty of Paris, signed on the 30th of April 1803, and ratified on the 21st of October in the same year, ceded it to the United States. Spain has with equal perseverance and earnestness maintained, that her cession to France comprehended that territory only which was at that time denominated Louisiana, consisting of the island of New Orleans, and the country she received from France west of the Mississippi. \nWithout tracing the title of France to its origin, we may state with confidence that at the commencement of the war of 1756, she was the undisputed possessor of the province of Louisiana, lying on both sides the Mississippi, and extending eastward beyond the bay of Mobile. Spain was at the same time in possession of Florida; and it is understood that the river Perdido separated the two provinces from each other. \nSuch was the state of possession and title at the treaty of Paris, concluded between Great Britain, France, and Spain, en the 10th day of February 1763. By that treaty France ceded to Great  Britain the river and port of the Mobile, and all her possessions on the left side of the river Mississippi, except the town of New Orleans and the island on which it  is situated: and by the same treaty Spain ceded Florida to Great Britain. The residue of Louisiana was ceded by France to Spain, in a separate and secret treaty between those two powers. The king of Great Britain being thus the acknowledged sovereign of the whole country east of the Mississippi, except the island of New Orleans, divided his late acquisition in the south into two provinces, East and West Florida. The latter comprehended so much of the country ceded by France as lay south of the 31st degree of north latitude, and a part of that ceded by Spain. \nBy the treaty of peace between Great Britain and Spain, signed at Versailles on the 3d of September 1783, Great Britain ceded East and West Florida to Spain: and those provinces continued to be known and governed by those names, as long as they remained in the possession and under the dominion of his catholic majesty. \nOn the 1st of October in the year 1800, a secret treaty was concluded between France and Spain at St Ildefonso, the third article of  which is in these words: \"His catholic majesty promises and engages on his part to retrocede to the French republic, six months after the full and entire execution of the conditions and stipulations relative to his royal highness the duke of Parma, the colony or province of Louisiana, with the same extent that it was has in the hands of Spain, and that it had when France possessed it, and such as it should be after the treaties subsequently entered into between Spain and the other states.\" \nThe treaty of the 30th of April 1803, by which the United States acquired Louisiana, after reciting this article, proceeds to state, that \"the first consul of the French republic doth hereby cede to the United States, in the name of the French republic, forever and in full sovereignty, the said territory with all its rights and appurtenances as fully and in the same manner as they have acquired by the French republic, in virtue of the above mentioned treaty concluded with his catholic majesty.\" The 4th article stipulates that \"there shall be sent by the government of France a commissary to Louisiana, to the end that he do every act necessary, as well to receive from the officers of his catholic   majesty the said country, and its dependencies, in the name of the French republic, if it has not been already done, as to transmit it in the name of the French republic to the commissary or agent of the United States.\" \nOn the 30th of November 1803, Peter Clement Laussatt, colonial prefect and commissioner of the French republic, authorised, by full powers dated the 6th of June 1803, to receive the surrender of the province of Louisiana, presented those powers to Don Manuel Salcedo, governor of Louisiana and West Florida, and to the marquis de Casa Calvo, commissioners on the part of Spain, together with full powers to them from his catholic majesty to make the surrender. These full powers were dated at Barcelona the 15th of October 1802. The act of surrender declares that in virtue of these full powers, the Spanish commissioners, Don Manuel Salcedo and the marquis de Casa Calvo, \"put from this moment the said French commissioner, the citizen Laussatt, in possession of the colony of Louisiana and of its dependencies, as also of the town and island of New Orleans, in the same extent which they now have, and which they had in the hands of France when she ceded them to  the royal crown of Spain, and such as they should be  after the treaties subsequently entered into between the states of his catholic majesty and those of other powers.\" \nThe following is an extract from the order of the king of Spain referred to by the commissioners in the act of delivery. \"Don Carlos, by the grace of God, &c.\" \"Deeming it convenient to retrocede to the French republic the colony and province of Louisiana, I order you, as soon as the present order shall be presented to you by general Victor or other officer duly authorised by the French republic, to take charge of said delivery; you will put him in possession of the colony of Louisiana and its dependencies, as also of the city and island of New Orleans, with the same extent that it now has, that it had in the hands of France when she ceded it to my royal crown, and such as it ought to be after the treaties which have successively taken place between my states and those of other powers.\" \nPrevious to the arrival of the French commissioner, the  governor of the provinces of Louisiana and West Florida, and the marquis de Casa Calvo, had issued their proclamation, dated the 18th of May 1803; in  which they say, \"his majesty having before his eyes the obligations imposed by the treaties, and desirous of avoiding any disputes that might arise, has deigned to resolve that the delivery of the colony and island of New Orleans, which is to be made to the general of division Victor, or such other officer as may be legally authorised by the government of the French republic, shall be executed on the same terms that France ceded it to his majesty; in virtue of which, the limits of both shores of the river St Louis or Mississippi, shall remain as they were irrevocably fixed by the 7th article of the definitive treaty of peace, concluded at Paris the 10th of February 1763, according to which the settlements from the river Manshac or Iberville, to the line which separates the American territory from the dominions of the king, remain in possession of Spain and annexed to West Florida.\" \nOn the 21st of October 1803, congress passed an act to enable the president to take possession of the territory ceded by France to the United States: in pursuance of which commissioners were appointed, to whom Monsieur Laussatt, the commissioner of the French republic, surrendered New Orleans and the province  of Louisiana on the 20th of December 1803. The surrender was made in general terms; but no actual possession was taken of the territory lying east of New Orleans. The government of the United States, however, soon manifested the opinion that the whole country originally held by France, and belonging to Spain when the treaty of St Ildefonso was concluded, was by that treaty retroceded to France. \nOn the 24th of February 1804, congress passed an act for laying and collecting duties within the ceded territories, which authorised the president, whenever he should deem it expedient, to erect the shores, &c. of the bay and river Mobile, and of the other rivers, creeks, &c. emptying into the gulph of Mexico east of the said river Mobile, and west thereof to the Pascagoula inclusive, into a separate district, and to establish a port of entry and delivery therein. The  port established in pursuance of this act was at fort Stoddert, within the acknowledged jurisdiction of the United States; and this circumstance appears to have been offered as a sufficient answer to the subsequent remonstrances of Spain against the measure. It must be considered, not as acting on the territory,  but as indicating the American exposition of the treaty, and exhibiting the claim its government intended to assert \nIn the same session, on the 26th of March 1804, congress passed an act erecting Louisiana into two territories. This act declares that the country ceded by France to the United States south of the Mississippi territory, and south of an east and west line, to commence on the Mississippi river at the 33d degree of north latitude and run west to the western boundary of the cession, shall constitute a territory under the name of the territory of Orleans. Now the Mississippi territory extended to the 31st degree of north latitude, and the country south of that territory was necessarily the country which Spain held as West Florida; but still its constituting a part of the territory of Orleans depends on the fact that it was a part of the country ceded by France to the United States. No practical application of the laws of the United States to this part of the territory was attempted, nor could be made, while the country remained in the actual possession of a foreign power. \nThe 14th section enacts \"that all grants for lands within the territories ceded by the French republic  to the United States by the treaty of the 30th of April 1803, the title whereof was at the date of the treaty of St Ildefonso in the crown, government, or nation of Spain, and every act and proceeding subsequent thereto of whatsoever nature towards the obtaining any grant, title or claim to such lands, and under whatsoever authority transacted or pretended, be, and the same are hereby declared to be, and to have been from the beginning, null, void, and of no effect in law or equity.\" A proviso excepts the titles of actual settlers acquired before the 20th of December 1803, from the operation of this section. It was obviously intended to act on all grants made by Spain after her retrocession of Louisiana to France, and  without deciding on the extent of that retrocession, to put the titles which might be thus acquired through the whole territory, whatever might be its extent, completely under the control of the American government. \nThe president was authorised to appoint registers or recorders of lands acquired under the Spanish and French governments, and boards of commissioners who should receive all claims to lands, and hear and determine in a summary way all matters  respecting such claims. Their proceedings were to be reported to the secretary of the treasury, to be laid before congress for the final decision of that body. \nPrevious to the acquisition of Louisiana, the ministers of the United States had been instructed to endeavour to obtain the Floridas from Spain. After that acquisition, this object was still pursued, and the friendly aid of the French government towards its attainment was requested.On the suggestion of Mr Talleyrand that the time was unfavourable, the design  was suspended. The government of the United States however soon resumed its purpose; and the settlement of the boundaries of Louisiana was blended with the purchase of the Floridas, and the adjustment of heavy claims made by the United States for American property, condemned in the ports of Spain during the war which was terminated by the treaty of Amiens. \nOn his way to Madrid, Mr Monroe, who was empowered in conjunction with Mr Pinckney, the American minister at the court of his catholic majesty, to conduct the negotiation, passed through Paris; and addressed a letter to the minister of exterior relations, in which he detailed the objects of his mission,  and his views respecting the boundaries of Louisiana. In his answer to this letter, dated the 21st of December 1804, Mr Talleyrand declared, in decided terms, that by the treaty of St Ildefonso, Spain retroceded to France no part of the territory east of the Iberville which had been held and known as West Florida; and that in all the negotiations between the two governments, Spain had constantly refused to cede any part of the Floridas, even from the Mississippi to the Mobile. He added that he was authorized by his imperial majesty to say, that at the beginning  of the year 1802, general Bournonville had been charged to open a new negotiation with Spain for the acquisition of the Floridas; but this project had not been followed by a treaty. \nHad France and Spain agreed upon the boundaries of the retroceded territory before Louisiana was acquired by the United States, that agreement would undoubtedly have ascertained its limits. But the declarations of France made after parting with the province cannot be admitted as conclusive. In questions of this character, political considerations have too much influence over the conduct of nations, to permit their declarations to  decide the course of an independent government in a matter vitally interesting to itself. \nSoon after the arrival of Mr Monroe at his place of destination, the negotiations commenced at Aranjuez. Every word in that article of the treaty of St Ildefonso which ceded Louisiana to France, was scanned by the ministers on both sides with all the critical acumen which talents and zeal could bring into their service. Every argument drawn from collateral circumstances, connected with the subject, which could be supposed to elucidate it, was exhausted. No advance towards an arrangement was made, and the negotiation terminated, leaving each party firm in his original opinion and purpose. Each persevered in maintaining the construction with which he had commenced. The discussion has since been resumed between the two nations with as much ability and with as little success. The question has been again argued at this bar, with the same talent and research which it has uniformly called forth. Every topic which relates to it has been completely exhausted; and the Court by reasoning on the subject could only repeat what is familiar to all. \nWe shall say only, that the language of the article  may admit of either construction, and it is scarcely possible to consider the arguments on either side, without believing that they proceed from a convniction of their truth. The phrase on which the controversy mainly depends, that Spain retrocedes Louisiana with the same extent that it had when France possessed it, might so readily have been expressed  in plain language, that it is difficult to resist the persuasion that the ambiguity was intentional. Had Louisiana been retroceded with the same extent that it had when Frence ceded it to Spain, or with the same extent that it had before the cession of any part of it to England, no controversy respecting its limits could have arisen. Had the parties concurred in their intention, a plain mode of expressing that intention would have presented itself to them. But Spain has always manifested infinite repugnance to the surrender of territory, and was probably unwilling to give back more than she had received. The introduction of ambiguous phrases into the treaty, which power might afterwards construe according to circumstances, was a measure which the strong and the politic might not be disinclined to employ. \nHowever this  may be, it is, we think, incontestable, that the American construction of the article, if not entirely free from question, is supported by arguments of great strength which cannot be easily confuted. \nIn a controversy between two nations concerning national boundary, it is scarcely possible that the courts of either should refuse to abide by the measures adopted by its own government. There being no common tribunal to decide between them, each determines for itself on its own rights, and if they cannot adjust their differences peaceably, the right remains with the strongest. The judiciary is not that department of the government, to which the assertion of its interests against foreign powers is confided; and its duty commonly is to decide upon individual rights, according to those principles which the political departments of the nation have established. If the course of the nation has been a plain one, its courts would hesitate to pronounce it erroneous. \nWe think then, however individual judges might construe the treaty of St Ildefonso, it is the province of the Court to conform its decisions to the will of the legislature, if that will has been clearly expressed. \nThe convulsed  state of European Spain affected her influence over her colonies; and a degree of disorder prevailed  in the Floridas, at which the United States could not look with indifference. In October 1810, the president issued his proclamation, directing the governor of the Orleans territory to take possession of the country as far east as the Perdido, and to hold it for the United States. This measure was avowedly intended as an assertion of the title of the United States; but as an assertion, which was rendered necessary in order to avoid evils which might contravene the wishes of both parties, and which would still leave the territory \"a subject of fair and friendly negotiation and adjustment.\" \nIn April 1812, congress passed \"an act to enlarge the limits of the state of Louisiana.\" This act describes lines which comprehend the land in controversy, and declares that the country included within them shall become and form a part of the state of Louisiana. \nIn May of the same year, another act was  passed, annexing the residue of the country west of the Perdido to the Mississippi territory. \nAnd in February 1813, the president was authorized \"to occupy and hold all that  tract of country called West Florida, which lies west of the river Perdido, not now in possession of the United States.\" \nOn the third of March 1817, congress erected that part of Florida which had been annexed to the Mississippi territory, into a separate territory, called Alabama. \nThe powers of government were extended to, and exercised in those parts of West Florida which composed a part of Louisiana and Mississippi, respectively; and a separate government was erected in Alabama. U.S.L. c. 4, 409. \nIn March 1819, \"congress passed an act to enable the people of Alabama to form a constitution and state government.\" And in December 1819, she was admitted into the union, and declared one of the United States of America. The treaty of amity, settlement and limits, between the United States and Spain, was signed at Washington on the 22d day of February 1819, but was not ratified by Spain till the 24th day of October 1820; nor by the United States, until the 22d day of February 1821.So that Alabama was  admitted into the union as an independent state, in virtue of the title acquired by the United States to her territory under the treaty of April 1803. \nAfter these acts of  sovereign power over the territory in dispute, asserting the American construction of the treaty by which the government claims it, to maintain the opposite construction in its own courts would certainly be an anomaly in the history and practice of nations. If those departments which are entrusted with the foreign intercourse of the nation, which assert and maintain its interests against foreign powers, have unequivocally asserted its rights of dominion over a country of which it is in possession, and which it claims under a treaty; if the legislature has acted on the construction thus asserted, it is not in its own courts that this construction is to be denied. A question like this respecting the boundaries of nations, is, as has been truly said, more a political than a legal question; and in its discussion, the courts of every country must respect the pronounced will of the legislature. Had this suit been instituted immediately after the passage of the act for extending the bounds of Louisiana, could the Spanish construction of the treaty of St Ildefonso have been maintained? Could the plaintiff have insisted that the land did not lie in Louisiana, but in West Florida; that the  occupation of the country by the United States was wrongful; and that his title under a Spanish grant must prevail, because the acts of congress on the subject were founded on a misconstruction of the treaty? If it be said, that this statement does not present the question fairly, because a plaintiff admits the authority of the Court, let the parties be changed. If the Spanish grantee had obtained possession so as to be the defendant, would a Court of the United States maintain his title under a Spanish grant, made subsequent to the acquisition of Louisiana, singly on the principle that the Spanish construction of the treaty of St Ildefonso was right, and the American construction wrong? Such a decision would, we think, have subverted those principles which govern the relations between the legislative and judicial departments, and mark the limits of each. \n If the rights of the parties are in any degree changed, that change must be produced by the subsequent arrangements made between the two governments. \nA \"treaty of amity, settlement, and limits, between the United States of America and the king of Spain,\" was signed at Washington on the 22d day of February 1819. By  the 2d article \"his catholic majesty cedes to the United States in full property and sovereignty, all the territories which belong to him, situated to the eastward of the Mississippi, known by the name of East and West Florida.\" \nThe 8th article stipulates, that \"all the grants of land made before the 24th of January 1818 by his catholic majesty, or by his lawful authorities, in the said territories ceded by his majesty to the United States, shall be ratified and confirmed to the persons in possession of the lands, to the same extent that the same grants would be valid if the territories had remained under the dominion of his catholic majesty.\" \nThe Court will not attempt to conceal the difficulty which is created by these articles. \nIt is well known that Spain had uniformly maintained her construction of the treaty of St Ildefonso. -- His catholic majesty had perseveringly insisted that no part of West Florida had been ceded by that treaty, and that the whole country which had been known by that name still belonged to him. It is then a fair inference from the language of the treaty, that he did not mean to retrace his steps, and relinquish his pretensions; but to cede on a sufficient  consideration all that he had claimed as his; and consequently, by the 8th article, to stipulate for the confirmation of all those grants which he had made while the title remained in him. \nBut the United States had uniformly denied the title set up by the crown of Spain; had insisted that a part of West Florida had been transferred to France by the treaty of St Ildefonso, and ceded to the United States by the treaty of April 1803; had asserted this construction by taking actual possession of the country; and had extended its legislation over it. The United States therefore cannot be understood to have admitted that this country belonged to his catholic  majesty, or that it passed from him to them by this article. Had his catholic majesty ceded to the United States \"all the territories situated to the estward of the Mississippi known by the name of East and West Florida,\" omitting the words \"which belong to him,\" the United States in receiving this cession, might have sanctioned the right to make it, and might have been bound to consider the 8th article as co-extensive with the second. The stipulation of the 8th article might have been construed to be an admission that  West Florida to its full extent was ceded by this treaty. \nBut the insertion of these words materially affects the construction of the article. They cannot be rejected as surplusage. They have a plain meaning, and that meaning can be no  other than to limit the extent of the cession. We cannot say they were inserted carelessly or unadvisedly, and must understand them according to their obvious import. \nIt is not improbable that terms were selected which might not compromise the dignity of either government, and which each might understand, consistently with its former pretensions. But if a court of the United States would have been bound, under the state of things existing at the signature of the treaty, to consider the territory then composing a part of the state of Louisiana as rightfully belonging to the United States, it would be difficult to construe this article into an admission that it belonged rightfully to his catholic majesty. \nThe 6th article of the treaty may be considered in connexion with the second. The 6th stipulates \"that the inhabitants of the territories which his catholic majesty cedes to the United States by this treaty, shall be incorporated in  the union of the United States, as soon as may be consistent with the principles of the federal constitution.\" \nThis article, according to its obvious import, extends to the whole territory which was ceded. The stipulation for the incorporation of the inhabitants of the ceded territory into the union, is co-extensive with the cession. But the country in which the land in controversy lies, was already incorporated into the union. It composed a part of the  state of Louisiana, which was already a member of the American confederacy. \nA part of West Florida lay east of the Perdido: and to that the right of his catholic majesty was acknowledged. There was then an ample subject on which the words of the cession might operate, without discarding those which limit its general expressions. \nSuch is the construction which the Court would put on the treaties by which the United States have acquired the country east of New Orleans. But an explanation of the 8th article seems to have been given by the parties which may vary this construction. \nIt was discovered that three large grants, which had been supposed at the signature of the treaty to have been made subsequent to the 24th  of January 1818, bore a date anterior to that period. Considering these grants as fraudulent, the United States insisted on an express declaration annuling them. This demand was resisted by Spain; and the ratification of the treaty was for some time suspended. At length his catholic majesty yielded, and the following clause was introduced into his ratification: \"desirous at the same time of avoiding any doubt or ambiguity concerning the meaning of the 8th article of the treaty, in respect to the date which is pointed out in it as the period for the confirmation of the grants of lands in the Floridas made by me, or by the competent authorities in my royal name, which point of date was fixed in the positive understanding of the three grants of land made in favour of the duke of Alagon, the count of Punon Rostro, and Don Pedro de Vargas, being annulled by its tenor; I think it proper to declare, that the said three grants have remained and do remain entirely annulled and invalid; and that neither the three individuals mentioned, nor those who may have title or interest through them, can avail themselves of the said grants at any time or in any manner; under which explicit declaration,  the said 8th article is to be understood as ratified.\" One of these grants, that to Vargas, lies west of the Perdido. \nIt has been argued, and with great force, that this explanation forms a part of the article. It may be considered  as if introduced into it as a proviso or exception to the stipulation, in favour of grants anterior to the 24th of January 1818. The article may be understood as if it had been written, that \"all the grants of land made before the 24th of January 1818, by his catholic majesty or his lawful authorities in the said territories, ceded by his majesty to the United States, (except those made to the duke of Alagon, the count of Punon Rostro and Don Pedro de Vargas,) shall be ratified and confirmed, &c.\" \nHad this been the form of the original article, it would be difficult to resist the construction that the excepted grants were withdrawn from it by the exception, and would otherwise have been within its provisions. Consequently, that all other fair grants within the time specified, were as obligatory on the United States, as on his catholic majesty. \nOne other judge and myself are inclined to adopt this opinion.The majority of the Court however  think differently. They suppose that these three large grants being made about the same time, under circumstances strongly indicative of unfairness, and two of them lying east of the Perdido, might be objected to on the ground of fraud common to them all: without implying any opinion that one of them, which was for lands lying within the United States, and most probably in part sold by the government, could have been otherwise confirmed. The government might well insist on closing all future controversy relating to these grants, which might so materially interfere with its own rights and policy in its future disposition of the ceded lands; and not allow them to become the subject of judicial investigation; while other grants, though deemed by it to be invalid, might be left to the ordinary course of the law. The form of the ratification ought not, in their opinion, to change the natural construction of the words of the 8th article, or extend them to embrace grants not otherwise intended to be confirmed by it. An extreme solicitude to provide against injury or inconvenience, from the known existence of such large grants, by insisting upon a declaration of their absolute nullity,  can in their opinion furnish no satisfactory proof that the government meant to recognise  the small grants as valid, which in every previous act and struggle it had proclaimed to be void, as being for lands within the American territory. \nWhatever difference may exist respecting the effect of the ratification, in whatever sense it may be understood, we think the sound construction of the eighth article will not enable this Court to apply its provisions to the present case. The words of the article are, that \"all the grants of land made before the 24th of January 1818, by his catholic majesty, &c. shall be ratified and confirmed to the persons in possession of the lands, to the same extent that  the same grants would be valid if the territories had remained under the dominion of his catholic majesty.\" Do these words act directly on the grants, so as to give validity to those not otherwise valid; or do they pledge the faith of the United States to pass acts which shall ratify and confirm them? \nA treaty is in its nature a contract between two nations, not a legislative act.It does not generally effect, of itself, the object to be accomplished, especially so far  as its operation is infra-territorial; but is carried into execution by the sovereign power of the respective parties to the instrument. \nIn the United States a different principle is established. Our constitution declares a treaty to be the law of the land. It is, consequently, to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself without the aid of any legislative provision. But when the terms of the stipulation import a contract, when either of the parties engages to perform a particular act, the treaty addresses itself to the political, not the judicial department; and the legislature must execute the contract before it can become a rule for the Court. \nThe article under consideration does not declare that all the grants made by his catholic majesty before the 24th of January 1818, shall be valid to the same extent as if the ceded territories had remained under his dominion. It does not say that those grants are hereby confirmed. Had such been its language, it would have acted directly on the subject, and would have repealed those acts of congress which  were repugnant to it; but its language is that those  grants shall be ratified and confirmed to the persons in possession, &c. By whom shall they be ratified and confirmed? This seems to be the language of contract; and if it is, the ratification and confirmation which are promised must be the act of the legislature. Until such act shall be passed, the Court is not at liberty to disregard the existing laws on the subject. Congress appears to have understood this article as it is understood by the Court. Boards of commissioners have been appointed for East and West Florida, to receive claims for lands; and on their reports titles to lands not exceeding acres have been confirmed, and to a very large amount. On the 23d of May 1828, an act was passed supplementary to the several acts providing for the settlement and confirmation of private land claims in Florida; the 6th section of which enacts, that all claims to land within the territory of Florida, embraced by the treaty between Spain and the United States of the 22d of February 1819, which shall not be decided and finally settled under the foregoing provisions of this act, containing a greater quantity of land than the commissioners were authorized to decide, and which have not  been reported as antedated or forged, &c., shall be received and adjudicated by the judge of the superior court of the district within which the land lies, upon the petition of the claimant,\" &c. Provided, that nothing in this section shall be construed to enable the judges to take cognizance of any claim annulled by the said treaty, or the decree ratifying the same by the king of Spain, nor any claim not presented to the commissioners or register and receiver. An appeal is allowed from the decision of the judge of the district to this Court. No such act of confirmation has been extended to grants for lands lying west of the Perdido. \nThe act of 1804, erecting Louisiana into two territories, has been already mentioned. It annuls all grants for lands in the ceded territories, the title whereof was at the date of the treaty of St Ildefonso in the crown of Spain. The grant in controversy is not brought within any of the exceptions from the enacting clause. \n The legislature has passed many subsequent acts previous to the treaty of 1819, the object of which was to adjust the titles to lands in the country acquired by the treaty of 1803. \nThey cautiously confirm to residents  all incomplete titles to lands, for which a warrant or order of survey had been obtained previous to the 1st of October 1800. \nAn act, passed in April 1814, confirms incomplete titles to lands in the state of Louisiana, for which a warrant or order of survey had been granted prior to the 20th of December 1803, where the claimant or the person under whom he claims was a resident of the province of Louisiana on that day, or at the date of the concession, warrant, or order of survey; and where the tract does not exceed 640 acres. This act extends to those cases only which had been reported by the board of commissioners; and annexes to the confirmation several conditions, which it is unnecessary to review, because the plaintiff does not claim to come within the provisions of the act. \nOn the 3d of March 1819, congress passed an act confirming all complete grants to land from the Spanish government, contained in the reports made by the commissioners appointed by the president for the purpose of adjusting titles which had been deemed valid by the commissioners; and also all the claims reported as aforesaid, founded on any order of survey, requete, permission to settle, or any written evidence  of claim derived from the Spanish authorities, which ought in the opinion of the commissioners to be confirmed; and which by the said reports appear to be derived from the Spanish government before the 20th day of December 1803, and the land claimed to have been cultivated or inhabited on or before that day. \nThough the order of survey in this case was granted before the 20th of December 1803, the plaintiff does not bring himself within this act. \nSubsequent acts have passed in 1820, 1822 and 1826, but they only confirm claims approved by the commissioners, among which the plaintiff does not allege his to have been placed. \nCongress has reserved to itself the supervision of the titles  reported by its commissioners, and has confirmed those which the commissioners have approved, but has passed no law, withdrawing grants generally for lands west of the Perdido from the operation of the 14th section of the act of 1804, or repealing that section. \nWe are of opinion then, that the court committed no error in dismissing the petition of the plaintiff, and that the judgment ought to be affirmed with costs. \n This cause came on to be heard on the transcript of the record  from the district court of the United States for the eastern district of Louisiana, and was argued by counsel; on consideration whereof, this Court is of opinion that the said district court committed no error in dismissing the petition of the plaintiffs; therefore it is considered, ordered and adjudged by this Court, that the judgment of the said district court in this cause be, and the same is hereby affirmed with costs. \n \n\n ", " \nOpinion \n\n \n \n  Mr Chief Justice MARSHALL delivered the opinion of the Court. \nThe motion made is, to dismiss this case for want of jurisdiction. But a motion to dismiss a suit, for want of jurisdiction, applies solely to cases where this Court has not jurisdiction of the cause, and not to cases where the circuit court has exceeded its proper powers in the particular case. In the present case, this Court has, certainly, jurisdiction to revise the decree complained of in the circuit court. Whether that decree was proper or not, after the mandate of this Court, is matter for discussion upon an argument upon the merits of that decree; but  not on a motion like the present. The motion is, therefore, overruled. \n \n\n ", " \nOpinion \n\n \n \n   Mr Chief Justice MARSHALL delivered the opinion of the Court. \nThis case was argued on its merits at a preceding term; but a doubt having arisen with the Court respecting its jurisdiction in cases of prohibition, that doubt was suggested to the bar, and a re-argument was requested. It has been reargued at this term. \nThe power of this Court to revise the judgments of a state tribunal, depends on the 25th section of the judicial act. That section enacts \"that a final judgment or decree in any suit in the highest court of law or equity of a state in which a decision in the suit could be had,\" \"where is drawn in question the validity of a statute or of an authority exercised under any state, on the ground of their being repugnant to the constitution, treaties, or laws of the United States, and the decision is in favour of such their validity,\" \"may be re-examined and reversed or affirmed in the Supreme Court of the United States.\" \nIn this case the city ordinance of Charleston is the exercise of an \"authority under the state of South Carolina,\"  \"the validity of which has been drawn in question on the ground of its being repugnant to the constitution,\"  and \"the decision is in favour of its validity.\" The question therefore which was decided by the constitutional court, is the very question on which the revising power of this tribunal is to be exercised, and the only inquiry is, whether it has been decided in a case described in the section which authorises the writ of error that  has been awarded. Is a writ of prohibition a suit? \nThe term is certainly a very comprehensive one, and is understood to apply to any proceeding in a court of justice, by which an individual pursues that remedy in a court of justice, which the law affords him. The modes of proceeding may be various, but if a right is litigated between parties in a court of justice, the proceeding by which the decision of the court is sought, is a suit. The question between the parties, is precisely the same as it would have been in a writ of replevin, or in an action of trespass. The constitutionality of the ordinance is contested; the party aggrieved by it applies to a court; and at his suggestion, a writ of prohibition, the appropriate remedy, is issued. The opposite party appeals; and, in the highest court, the judgment is reversed and judgment given for  the defendant. This judgment was, we think, rendered in a suit. \nWe think also that it was a final judgment in the sense in which that term is used in the 25th section of the judicial act. If it were applicable to those judgments and decrees only in which the right was finally decided, and could never again be litigated between the parties, the provisions of the section would be confined within much narrower limits than the words import, or than congress could have intended. Judgments in actions of ejectment, and decrees in chancery dismissing a bill without prejudice, however deeply they might affect rights protected by the constitution, laws, or treaties of the United States, would not be subject to the revision of this Court. A prohibition might issue, restraining a collector from collecting duties, and this Court would not revise and correct the judgment. The word \"final\" must be understood in the section under consideration, as applying  to all judgments and decrees which determine the particular cause. \nWe think then that the writ of error has brought the cause properly before this Court. \nThis brings us to the main question. Is the stock issued for loans made  to the government of the United States liable to be taxed by states and corporations? \nCongress has power \"to borrow money on the credit of the United States.\" The stock it issues is the evidence of a debt created by the exercise of this power. The tax in question is a tax upon the contract subsisting between the government and the individual. It bears directly upon that contract, while subsisting and in full force. The power operates upon the contract the instant it is framed, and must imply a right to affect that contract. \nIf the states and corporations throughout the union, possess the power to tax a contract for the loan of money, what shall arrest this principle in its application to every other contract? What measure can government adopt which will not be exposed to its influence? \nBut it is unnecessary to pursue this principle through its diversified application to all the contracts, and to the various operations of government. No one can be selected which is of more vital interest to the community than this of borrowing money on the credit of the United States. No power has been conferred by the American people on their government, the free and unburthened exercise of  which more deeply affects every member of our republic. In war, when the honour, the safety, the independence of the nation are to be defended, when all its resources are to be strained to the utmost, credit must be brought in aid of taxation, and the abundant revenue of peace and prosperity must be anticipated to supply the exigences, the urgent demands of the moment. The people, for objects the most important which can occur in the progress of nations, have empowered their government to make these anticipations, \"to borrow money on the credit of the United States.\" Can any thing be more dangerous, or more injurious, than the admission of a principle which authorizes every state and every corporation in  the union which possesses the right of taxation, to burthen the exercise of this power at their discretion? \nIf the right to impose the tax exists, it is a right which in its nature acknowledges no limits. It may be carried to any extent within the jurisdiction of the state or corporation which imposes it, which the will of each state and corporation may prescribe. A power which is given by the whole American people for their common good, which is to be exercised at  the most critical periods for the most important purposes, on the free exercise of which the interests certainly, perhaps the liberty of the whole may depend; may be burthened, impeded, if not arrested, by any of the organized parts of the confederacy. \nIn a society formed like ours, with one supreme government for national purposes, and numerous state governments for other purposes; in many respects independent, and in the uncontrolled exercise of many important powers, occasional interferences ought not to surprise us. The power of taxation is one of the most essential to a state, and one of the most extensive in its operation. The attempt to maintain a rule which shall limit its exercise, is undoubtedly among the most delicate and difficult duties which can devolve on those whose province it is to expound the supreme law of the land in its application to the cases of individuals. This duty has more than once devolved on this Court. In the performance of it we have considered it as a necessary consequence from the supremacy of the government of the whole, that its action in the exercise of its legitimate powers, should be free and unembarrassed by any conflicting powers in the  possession of its parts; that the powers of a state cannot rightfully be so exercised as to impede and obstruct the free course of those measures which the government of the states united may rightfully adopt. \nThis subject was brought before the Court in the case of M'Cullough vs. The state of Maryland, 2 when it was thoroughly argued and deliberately considered. The question decided in that case bears a near resemblance to that  which is involved in this. It was discussed at the bar in all its relations, and examined by the Court with its utmost attention. We will not repeat the reasoning which conducted us to the conclusion thus formed; but that conclusion was that \"all subjects over which the sovereign power of a state extends, are objects of taxation; but those over which it does not extend, are upon the soundest principles exempt from taxation.\"  \"The sovereignty of a state extends to every thing which exists by its own authority, or is introduced by its permission;\" but not \"to those means which are employed by congress to carry into execution powers conferred on that body by the people of the United States.\" \"The attempt to use\" the power of taxation  \"on the means employed by the government of the union in pursuance of the constitution, is itself an abuse, because it is the usurpation of a power which the people of a single state cannot give.\" \nThe Court said in that case, that \"the states have no power by taxation, or otherwise, to retard, impede, burthen, or in any manner control the operation of the constitutional laws enacted by congress, to carry into execution the powers vested in the general government.\" \nWe retain the opinions which were then expressed. A contract made by the government in the exercise of its power, to borrow money on the credit of the United States, is undoubtedly independent of the will of any state in which the individual who lends may reside, and is undoubtedly an operation essential to the important objects for which the government was created. It ought, therefore, on the principles settled in the case of M'Cullough vs. The State of Maryland, to be exempt from state taxation, and consequently from being taxed by corporations deriving their power from states. \nIt is admitted that the power of the government to borrow money can not be directly opposed, and that any law directly  obstructing its operation would be void; but, a distinction is taken between direct opposition and those measures which may consequentially affect it; that is, that a law prohibiting loans to the United States would be void, but a tax on them to any amount is allowable. \nIt is, we think, impossible not to perceive the intimate  connexion which exists between these two modes of acting on the subject. \nIt is not the want of original power in an independent sovereign state, to prohibit loans to a foreign government, which restrains the legislature from direct opposition to those made by the United States. The restraint is imposed by our constitution. The American people have conferred the power of borrowing money on their government, and by making that government supreme, have shielded its action, in the exercise of this power, from the action of the local governments. The grant of the power is incompatible with a restraining or controlling power, and the declaration of supremacy is a declaration that no such restraining or controlling power shall be exercised. \nThe right to tax the contract to any extent, when made, must operate upon the power to borrow before it is exercised,  and have a sensible influence on the contract. The extent of this influence depends on the will of a distinct government. To any extant, however inconsiderable, it is a burthen on the operations of government. It may be carried to an extent which shall arrest them entirely. \nIt is admitted by the counsel for the defendants, that the power to tax stock must affect the terms on which loans will be made; but this objection, it is said, has no more weight when urged against the application of an acknowledged power to government stock, than if urged against its application to lands sold by the United States. \nThe distinction is, we think, apparent. When lands are sold, no connexion remains between the purchaser and the government. The lands purchased become a part of the mass of property in the country with no implied exemption from common borthens. All lands are derived from the general or particular government, and all lands are subject to taxation. Lands sold are in the condition of money borrowed and re-paid. Its liability to taxation in any form it may then assume is not questioned. The connexion between the borrower and the lender is dissolved. It is no burthen on loans,  it is no impediment to the power of borrowing, that the money, when re-paid, loses its exemption from taxation.  But a tax upon debts due from the government, stands, we think, on very different principles from a tax on lands which the government has sold. \n\"The Federalist\" has been quoted in the argument, and an eloquent and well merited eulogy has been bestowed on the great statesman who is supposed to be the author of the number from which the quotation was made. This high authority was also relied upon in the case of M'Cullough vs. The state of Maryland, and was considered by the Court. Without repeating what was then said, we refer to it as exhibiting our view of the sentiments expressed on this subject by the authors of that work. \nIt has been supposed that a tax on stock comes within the exceptions stated in the case of M'Cullough vs. The state of Maryland. We do not think so. The bank of the United States is an instrument esential to the fiscal operations of the government, and the power which might be exercised to its destruction was denied. But property acquired by that corporation in a state was supposed to be placed in the same condition with property acquired  by an individual. \nThe tax on government stock is thought by this Court to be a tax on the contract, a tax on the power to borrow money on the credit of the United States, and consequently to be repugnant to the constitution. \nWe are, therefore, of opinion that the judgment of the constitutional court of the state of South Carolina, reversing the order made by the court of common pleas, awarding a prohibition to the city council of Charleston, to restrain them from levying a tax imposed on six and seven per cent. stock of the United States, under an ordinance to raise supplies to the use of the city of Charleston for the year 1823, is erroneous in this; that the said constitutional court adjudged that the said ordinance was not repugnant to the constitution of the United States; whereas, this Court is of opinion that such repugnancy does exist. We are, therefore, of opinion that the said judgment ought to be reversed and annulled, and the cause remanded to the constitutional court for the state of South Carolina, that farther proceedings may be had therein according to law. \nThis cause came on to be heard on the transcript of the record from the constitutional court of the state  of South Carolina, and was argued by counsel; on consideration whereof, this Court is of opinion, that there is error in the judgment of the said court in this, that the said court decided that an ordinance passed by the city council of Charleston for the year 1823, entitled, an ordinance to raise supplies for the use of the city of Charleston for the year 1823, is, so far as the same imposes a tax on the six and seven per cent. stock of the United States, consistes, consistent with the constitution of the United States. Whereas, it is the opinion of this Court, that so much of the said ordinance as imposes the said tax, is repugnant to the constitution of the United States, and void. Whereupon it is considered, ordered and adjudged by this Court, that the said judgment be, and the same is hereby reversed and annulled, and that the said cause be, and the same is hereby remanded to the said constitutional court for the state of South Carolina, that such further proceedings may be had therein as may consist with law and justice. \nDissent by:", " \nOpinion \n\n \n \n  Mr Chief Justice MARSHALL  delivered the opinion of the Court. \nIn 1793, the state of Maryland passed an act incorporating the bank of Columbia, which contains the following section: \"And, whereas it is absolutely necessary that debts due to the said bank should be punctually paid, to enable the directors to calculate with certainty and precision on meeting the demands that may be made upon them. Be it enacted, that whenever any person or persons are indebted to the said bank for moneys borrowed by them, or for bonds, bills or notes given or indorsed by them, with an express consent  in writing that they may be made negotiable at the said bank, and shall refuse or neglect to make payment at the time the same becomes due, the president shall cause a demand in writing on the person of the said delinquent or delinquents, having consented as aforesaid, or if not to be found, have the same left at his last place of abode; and if the money so due shall not be paid within ten days after such demand made, or notice left at his last place of abode as aforesaid, it shall and may be lawful for the president, at his election, to write to the clerk of the general court, or of the county in which the said delinquent  or delinquents may reside, or did at the time he or they contracted the debt reside, and send to the said clerk the bond, bill, or note due, with proof of the demand made as aforesaid, and order the said clerk to issue capias ad satisfaciendum, fieri facias, or attachment by way of execution, on which the debt and costs may be levied, by selling the property of the defendant for the sum or sums of money mentioned in the said bond, bill or note; and the clerk of the general court, and the clerks of the several county courts, are hereby respectively required to issue such execution or executions, which shall be made returnable to the court whose clerk shall issue the same which shall first sit after the issuing thereof, and shall be as valid, and as effectual in law, to all intents and purposes, as if the same had issued on judgment regularly obtained in the ordinary course of proceeding in the said court, and such execution or executions shall not be liable to be stayed or delayed by any supersedeas, writ of error, appeal, or injunction from the chancellor; provided always, that before any execution shall issue as aforesaid, the president of the bank shall make an oath, (or affirmation  if he shall be of such religious society as allowed by this state to make affirmation) ascertaining whether the whole or what part of the debt due to the bank on the said bond, bill or note, is due; which oath or affirmation shall be filed in the office of the clerk of the court from which the execution shall issue; and if the defendant shall dispute the whole or any part of the said debt, on the return of the execution, the court before whom it is returned shall and may order an issue to be joined, and trial  to be had in the same court at which the return is made; and shall make such other proceedings that justice may be done in the speediest manner.\" \nIn pursuance of these provisions of the act, a capias ad satisfaciendum was issued by the bank, against the defendant, on a promissory note, signed by him and indorsed to the bank. The defendant appeared in court, and claimed the right allowed by the act to dispute the debt; upon which the court ordered an issue to be made up between the parties. \nThe plaintiff offered to file a declaration, tendering an issue on a wager, to which the defendant objected, and the court sustained the objection. A declaration in assumpsit  was then filed, to which the defendant pleaded the statute of limitations. \nOn the trial, the defendant moved the court to instruct the jury, that if they should be satisfied by the evidence, that three years had elapsed, between the expiration of the time limited for the payment of the said note, and the issuing of the execution by the clerk in this cause, upon the letter and paper sent by the president of the bank, and given in evidence; they ought to find a verdict for the defendant, on the issue joined on the plea of the statute of limitations. \nThe court gave the instruction required, and the jury found a verdict for the defendant. The counsel for the plaintiff excepted to the opinion, and has brought the cause into this Court by writ of error. \nThe execution being the first process under this extraordinary act, its emanation must be equivalent, so far as respects the bar created by the act of limitations, to suing out original process in a suit commenced in the usual way. There is, therefore, no error in that part of the instruction which relates to the period to which time was to be calculated; and the only inquiry is, whether the defendant could avail himself of the act of  limitations. \nThe great object of the incorporating act appears to have been, to give the bank the most expeditious remedy possible, for the collection of the money due to it. The affidavit of the president supplies the place of a judgment, and those proceedings after judgment, which are allowed for the purposes  of justice, but may be used for mere delay, are taken away. The execution \"shall not be liable to be stayed or delayed by any supersedeas, writ of error, appeal, or injunction from the chancellor.\" But the law did not intend, by this summary process, to deprive the debtor of all defence. Although all delay was cut off, he was permitted, on the return of the execution, to dispute the whole, or any part of the debt. But while the law allows him to dispute the debt, it still guards against delay.An issue is to be made up immediately, and tried at the same term. While the law thus carefully guards against procrastination, it does not interfere with the defence which the party is at liberty to set up. It does not prescribe the nature of that defence, or deprive him of any which might have been used, had the action been commenced in the ordinary way. Had the bank   of Columbia proceeded in the common course of law, the defendant could have pleaded the act of limitations, in bar of the action. If we are correct in saying, that the object of the section of the incorporating act which has been recited, was expedition, not the ademption of legal defences; we think this a mode of disputing the debt, of which he might still avail himself. \nThere is no error in the judgment of the circuit court, and it is affirmed with costs. \nThis cause came on to be heard on a transcript of the record from the circuit court of the United States for the district of Columbia, holden in and for the county of Washington, and was argued by counsel; on consideration whereof, it is considered, ordered and adjudged by this Court, that the judgment of the said circuit court in this cause be, and the same is hereby affirmed with costs. \n \n\n ", " \nOpinion \n\n \n \n  Mr Chief Justice MARSHALL delivered the opinion of the Court. \nThe defendants in error deny the jurisdiction of this Court, because, they say, the record does not show that the constitutionality of the act of the legislature, under which the plaintiff claimed to support his action, was drawn into question. \nUndoubtedly the plea might have stated in terms that the act, so far as it authorized a dam across the creek, was repugnant to the constitution of the United States; and it might have been safer, it might have avoided any question respecting  jurisdiction, so to frame it. But we think it impossible to doubt that the constitutionality of the act was the question, and the only question, which could have been discussed in the state court. That question must have been discussed and decided. \nThe plaintiffs sustain their right to build a dam across the creek by the act of assembly. Their declaration is founded upon that act. The injury of which they, complain is to a right given by it. They do not claim for themselves any right independent of it.They rely entirely upon the act of assembly. \nThe plea does not controvert the existence of the act, but denies its capacity to authorise the construction of a dam across a navigable stream, in which the tide ebbs and flows; and in which there was, and of right ought to have been, a certain common and public way in the nature of a highway. This plea draws nothing into question but the validity of the act; and the judgmen of the court must have been in favour of its validity.Its consistency with, or repugnancy to the constitution of the United States, necessarily arises upon these pleadings, and must have been determined. This Court has repeatedly decided in favour of its jurisdiction  in such a case. Martin vs. Hunter's lessee( 1 ),  Miller vs. Nicholls ( 2 ), and Williams vs. Norris ( 3 ), are expressly in point. They establish, as far as precedents can establish any thing, that it is not necessary to state in terms on the record, that the constitution or a law of the United States was drawn in question. It is sufficient to bring the case within the provisions of the 25th section of the judicial act, if the record shows, that the constitution or a law or a treaty of the United States must have been misconstrued, or the decision could not be made. Or, as in this case, that the constitutionality of a state law was questioned, and the decision has been in favour of the party claiming under such law. \nThe jurisdiction of the Court being established, the more doubtful question is to be considered, whether the act incorporating the Black Bird Creek Marsh Company is repugnant to the constitution, so far as it authorizes a dam across the creek. The plea states the creek to be navigable, in the nature of a highway, through which the tide ebbs and flows \nThe act of assembly by which the plaintiffs  were authorized to construct their dam, shows plainly that this is one of those many creeks, passing through a deep level marsh adjoining the Delaware, up which the tide flows for some distance. The value of the property on its banks must be enhanced by excluding the water from the marsh, and the health of the inhabitants probably improved. Measures calculated to produce these objects, provided they do not come into collision with the powers of the general government, are undoubtedly within those which are reserved to the states. But the measure authorised by this act stops a navigable creek, and must be supposed to abridge the rights of those who have been accustomed to use it. But this abridgement, unless it comes in conflict with the constitution or a law of the United States, is an affair between the government of Delaware and its citizens, of which this Court can take no cognizance. \nThe counsel for the plaintiffs in error insist that it comes  in conflict with the power of the United States \"to regulate commerce with foreign hations and among the several states.\" \nIf congress had passed any act which bore upon the case; any act in execution of the power to regulate  commerce, the object of which was to control state legislation over those small navigable creeks into which the tide flows, and which abound throughout the lower country of the middle and southern states; we should feel not much difficulty in saying that a state law coming in conflict with such act would be void.But congress has passed no such act. The repugnancy of the law of Delaware to the constitution is placed entirely on its repugnancy to the power to regulate commerce with foreign nations and among the several states; a power which has not been so exercised as to affect the question. \nWe do not think that the act empowering the Black Bird Creek Marsh Company to place a dam across the creek, can, under all the circumstances of the case, be considered as repugnant to the power to regulate commerce in its dormant state, or as being in conflict with any law passed on the subject. \nThere is no error, and the judgment is affirmed. \nThis cause came on to be heard on the transcript of the record from the high court of  errors and appeals of the state of Delaware, and was argued by counsel; on consideration whereof this Court is of opinion, that there is no error in the judgment  of the said high court of errors and appeals of the state of Delaware; whereupon it is considered, ordered and adjudged by this Court, that the judgment of the said court in this cause, be, and the same is, hereby affirmed with costs. \n \n\n ", " \nOpinion \n\n \n \n   Mr C.J. MARSHALL delivered the opinion of the Court. \nA motion has been made to dismiss his writ of error because the court has no jurisdiction over it. The plaintiff below claimed more than  two thousand dollars in his declaration, but obtained a judgment for a less sum. The defendant below has sued out a writ of error, and contends now that the matter in dispute is not determined by the judgment, but by the sum claimed in the declaration. \nThis court has jurisdiction over final judgments and decrees of the circuit court, where the matter in dispute exceeds the sum or value of two thousand dollars. The jurisdiction of the court has been supposed to depend on the sum or value of the matter in dispute in this court, not on that which was in dispute in the circuit court. If the writ of error be brought by the plaintiff below, then the sum which his declaration shows to be due may be still recovered, should the judgment for a smaller sum be reversed; and consequently the whole sum claimed is still in dispute. But if the writ of error be brought by the defendant in the original action, the judgment of this court can only affirm that of the circuit  court, and consequently the matter in dispute cannot exceed the amount of that judgment. Nothing but that judgment is in dispute between the parties. The counsel for the plaintiff in error relies on the case of Wilson vs. Daniel, 3 Dall. 401. That case, it is admitted, is in point. It turns on the principle that the jurisdiction of this court depends on the sum which was in dispute before the judgment was rendered in the circuit court. Although that case was decided by a divided court, and although we think, that upon the true construction of the twenty-second section of the judicial act, the jurisdiction of the court depends upon the sum in dispute between the parties as the case stands upon the writ of error, we should be much inclined to adhere to the decision in Wilson vs. Daniel, had not a contrary practice since prevailed. In Cooke vs. Woodrow,  5 Cranch, 13, this court said, \"if the judgment below be for the plaintiff, that judgment ascertains the value of the matter in dispute.\" This however was said in a case in which the defendant below was plaintiff in error, and in which the judgment was a sufficient sum to give jurisdiction. \nThe case of Wise and Lynn vs.  The Columbian Turnpike Company, 7 Cranch, 276, was dismissed because the sum for which judgment was rendered in the circuit court was not sufficient to give jurisdiction, although the claim before the commissioners of the road, which was the cause of action and the matter in dispute in the circuit court, was sufficient. The reporter adds, that all the judges were present. \nSince this decision we do not recollect that the question has been ever made. The silent practice of the court has conformed to it. The reason of the limitation is that the expense of litigation in this court ought not to be incurred, unless the matter in dispute exceeds two thousand dollars. This reason applies only to the matter in dispute between the parties in this court. \nWe are all of opinion that the writ of error be dismissed, the court having no jurisdiction of the cause. \nThis cause came on to be heard on the transcript of the record from the district court of the United States for the district of East Louisiana, and was argued by counsel; on consideration whereof, and of the motion made by Mr. Ogden in this cause on a prior day of this term, to wit, on Thursday, the 28th of January of the present term  of this court, to dismiss this writ of error for want of jurisdiction, the amount in controversy not exceeding the sum of two thousand dollars; it is ordered and adjudged by this court that the writ of error in this cause be and the same is hereby dismissed for want of jurisdiction, on the  ground that the sum in controversy does not exceed the sum of two thousand dollars, and the same is dismissed accordingly. \n \n\n ", " \nOpinion \n\n \n \nIt is ordered that the said motion be overruled; and that the leave prayed for be refused; as under the practice of this court, the appellants would have a right during the present term to lodge a transcript of the record of said appeal with the clerk of this court, and move to have the appeal reinstated; whereas to grant the present prayer or motion would be to prejudge such a motion. Per Mr Chief Justice  MARSHALL. \n \n\n ", " \nOpinion \n\n \n \n  Mr Chief Justice MARSHALL delivered the opinion of the Court. \nThis is a writ of error brought to a judgment rendered in an ejectment by the court of the United States, for the western district of Virginia. The judgment was pronounced on a case agreed. Three questions have been made at the bar: \n1. Is the condition on which the testator has devised his real estate in trust to William King, a condition precedent or subsequent? \n2. If subsequent, at what time does the estate vest in possession? \n3. What is the nature of the estate, when vested? \n1. Is the condition precedent or subsequent? \nThe words of the will are, \"In case of having no children, I then leave and bequeath all my real estate at the death of my wife to William King, son of brother James King, on on condition of his marrying a daughter of William Trigg and my niece Rachel his wife, lately Rachel Finlay, in trust  for the eldest son or issue of said marriage, and in case such marriage should not take place, I leave and bequeath said estate to any child, giving preference to age, of William and Rachel Trigg that will marry a child of my brother James King's, or of sister Elizabeth's, wife of John Mitchel, and to their issue.\" \nIt was admitted in argument, and is certainly well settled 2 , that there are no technical appropriate words which always determine whether a devise be on a condition precedent or subsequent. The same words have been determined differently; and the question is always a question of intention. If the language of the particular clause, or of the whole will,  shows that the act on which the state depends, must be performed before the estate can vest, the condition is of course precedent; and unless it be performed, the devisee can take nothing. If, on the contrary, the act does not necessarily precede the vesting of the estate, but may accompany or follow it, if this is to be collected from the whole will, the condition is subsequent. \nIn the case under consideration, the testator does not in terms give his  real estate to William King on his marrying the daughter of William and Rachel Trigg, but at the death of his, the testator's wife, on condition of his marrying a daughter of William and Rachel Trigg. Whatever doubt may be entertained respecting the lands not given to the wife for life, the testator has expressed clearly his intention, that the lands encumbered with his wife's life estate should come to the possession of William King at her death. He gives the estate at that time, without requiring that the condition annexed to it should be previously performed. The estate then vests in possession, whether the condition on which it was to depend be or be not performed. It cannot be supposed to have been his intention that the devisee should take possession under this devise, before the interest vested in him. The interest, therefore, must have vested previously, or at the time. The language of the testator does not indicate the intention that the marriage must take place during the life of his wife; nor do the circumstances of the parties justify us in imputing such an intention to him. The time of her death was uncertain, and it might follow close upon his own. The contemplated  marriage could not possibly take place until the lapse of many years, because one of the parties  had not come into existence. William and Rachel Trigg had not at the time, and never have had, a daughter. The testator therefore has fixed a time when the estate is to vest, which might probably precede the happening of the event on which its continuance is to depend. This is clearly a condition subsequent as to those lands in which an estate for life is given to the wife of the testator. \nDoes any reason exist which will authorise a distinction between those lands in which the wife took a life estate, and  those of which no other present disposition is made in the will? \nThe testator makes no distinction. In one clause he gives \"his whole real estate at the death of his wife to William King, son of his brother James King, on condition,\" &c. If, as the language would seem to indicate, the devisee was entitled to possession of the whole property at the same time, that is, at the death of the testator's wife, it would follow that the condition on which the whole depends is a condition subsequent.If the devise should be construed, as the defendant in error contends,  to give william King a right to the immediate possession of that part of the estate of which no other disposition is made, does this circumstance furnish any reason for the opinion, that this part of the state depends on a condition precedent? We think not. The will might then be construed as if it were expressed thus: \"in case of having no children, I then leave and bequeath all my real estate, subject to the devise to my wife for life, to William King, son of my brother James King, on condition of his marrying,\" &c. This is the most unfavourable manner for the defendant in error in which the question can be presented. It waives the benefit derived from fixing a time for the possession of a considerable part of the estate, which might very probably precede the event on which its continuance is made to depend. Had even this been the language of the will, the estate in the lands would, we think, depend on a condition subsequent. \nIt is a general rule, that a devise in words of the present time, as I give to A. my lands in B. imports, if no contrary intent appears, an immediate interest which vests in the devisee on the death of the testator. It is also a general rule, that if  an estate be given on a condition, for the performance of which no time is limited, the devisee has his life for performance. The result of those two principles seems to be, that a devise to A., on condition that he shall marry B., if uncontrolled by other words, takes effect immediately; and the devisee performs the condition, if he marry B. at any time during his life. The condition is subsequent. We have found no case in which a general devise  in words, importing a present interest in a will, making no other disposition of the property, on a condition which may be performed at any time, has been construed from the mere circumstance that the estate is given on condition, to require that the condition must be performed before the estate can vest. There are many cases in which the contrary principle has been decided 3 . We think then that the condition on which the devise to William King depended, was a condition subsequent. \n2. The second point is one of more difficulty. Does that part of the real estate which is not otherwise expressly disposed of,  vest in William King immediately, or at the death of the testator's wife? \nThe words are, \"in case of having no children, I then leave and bequeath all my real estate, at the death of my wife, to William King, son of brother James King, on condition,\" &c. \nThese words certainly import that the whole estate should vest in possession at the same time, and mark with precision when that time shall be. This express provision can be controlled only by a strong and manifest intent, to be collected from the whole will. But the intent of the testator is the cardinal rule in the construction of wills; and if that intent can be clearly perceived, and is not contrary to some positive rule of law, it must prevail; although in giving effect to it some words should be rejected, or so restrained in their application, as materially to change the literal meaning of the particular sentence. \nThe counsel for the defendant in error insists that the intent to give the real estate not otherwise disposed of immediately to William King, is apparent on the face of the will, and must control the construction of the clause under consideration. This proposition has been so fully discussed at the bar, that the  court need only restate the principles which have been already advanced in the argument. \n Of the immense estate left by the testator, about one half, including her dower, was given to his wife and others for her life. The residue was given to William King immediately, on the trust mentioned in the will, or given by implication to the testator's wife, or was permitted to descend to his heir at law. \nAs the devise to William King was on a condition subsequent, it may be construed, so far as respects the time of taking possession, as if it had been conditional. The condition opposes no obstacle to his immediate possession, if the intent of the testator shall require that construction. \nWe will first consider the supposed implied devise to the wife. \nAs William King was not the heir of the testator, a devise to him at her death does not necessarily imply an estate in her during life; and the will itself furnishes strong reason for rejecting this construction. His wife, as might well be supposed, was first in his mind, and was kept in mind throughout the will. He notices her legal right to dower, so as to avoid a possible implication that what he gave her was in lieu of  dower, and to secure her from the necessity of relinquishing all interest in the estate bequeathed to her as preliminary to claiming her dower. She claims her dower under the will, as she does the other large estate bequeathed to her. It is not probable that a person who was careful to notice even that to which she would have been entitled under the law, would have omitted totally a very large property which she could claim only under the will. He even notices the remainder of a small property in the occupancy of his father; and  mentions his wife in many other parts of his will, in a manner to add to the improbability of his having totally omitted her name, when a very large benefit was intended. It seems to us to be contrary to reason and to the ordinary rules of construction to intend, that a large estate is given by an unnecessary implication to a wife who takes her dower in the whole, and also a large part by express words. We think it very clear that there is no implicative devise to the wife. \nDoes the property in question descend to the heir at law  during the life of the wife? Was it the purpose of the testator to die intestate with respect to it  until her death? \nWe cannot think that such was his purpose; or that his will authorizes the court to say so. \nThe introductory clause indicates an intention to dispose of all his estate. He says, \"I, William King, have thought proper to make and ordain this to be my last will and testament, leaving and bequeathing my worldly estate in the manner following.\" These words are entitled to considerable influence in a question of doubtful intent, in a case where the property is given, and the question arises between the heir and devisee respecting the interest devised. The words of the particular clause also carry the whole estate from the heir, but they fix the death of the testator's wife as the time when the devisee shall be entitled to possession. They are, \"In case of having no children, I then leave and bequeath all my real estate, at the death of my wife, to William King, son of brother James King,\" &c. \nIt is admitted that if this clause stood alone, unexplained by other parts of the will, the real estate, not otherwise disposed of, would descend to the heir. The law gives to him whatever is not given to others. But if other provisions in the will show an intent that the legal  title of the heir should not prevail, those other provisions must be respected in construing the instrument 4 . \nWhen the will was made, the testator's father was alive, and was consequently to be considered as his heir. He was an old man; and the provision made for him seems to have contemplated only a comfortable supply for the wants of one who had grown up and lived in simple unexpensive habits. The testator gives him for life the houses in which he then resided, with so much land as he might choose to farm, what fruit he might want, and the spring house, subject to the direction of his wife; also the sum of $200 per annum during his life; and, if fire should destroy his Fincastle house, a  farther sum of $220 per annum, while his income from that source should be suspended. This property is given to his wife for life on the death of his father. These moderate provisions for the heir, contemplating only the ease and comfortable supply of the wants of an old man, comport very little with the idea of leaving an immense estate, consisting among  other articles of numerous tracts of land, remote from each other, most probably of very difficult management, to descend to him. It is not probable that this estate would be left to descend to him for the life of Mrs King. Her surviving him was probable, and the testator expected she would survive him. The lands devised to him are given to her for life. \nThe father, who was the presumptive heir when the will was made, died during the life of the testator. This event is not supposed to affect the construction of the will. But were it otherwise; were it supposed that he might look forward to that event, and contemplate his brothers and sisters as his probable heirs; he will furnishes arguments of great weight in support of the opinion, that he did not intend them to take any thing not expressly devised to them. The heirs of the testator, at the time of his death, were James King, a brother of the whole blood, Nancy Finlay, a sister of the whole blood, Elizabeth and Polly, the daughters of Elizabeth Mitchel, a sister of the whole blood, Samuel King, a brother of the half blood, and Hannah Allen, a sister of the half blood. Each of these persons is noticed in the will. For some  of them, an ample provision is made. To others, less favour is shown. The legacies to his brother and sister of the half blood are inconsiderable; while his bequests to those of the whole blood are large. No one of them is omitted. The circumstances that his mind was clearly directed to each, and that he has carefully measured out his bounty to each, discriminating between them so as to show great inequality of affection, operate powerfully against the opinion, that he intended to leave a very large property to descend upon them by the silent operation of law. \nThe whole will proves the primary intention of the testator  to have been to keep his immense real estate together, and to bestow this splendid gift on some individual who should proceed from the union of his own family with that of his wife. In case of having no children, he gives all his real estate, at the death of his wife, to William, the son of his brother James, on condition of his marrying a daughter of William Trigg and Rachel his wife, in trust for the eldest son or issue of said marriage. If such marriage should not take place, he gives said estate to any child, giving preference to age, of William  and Rachel Trigg, who should marry a child of his brother James, or of his sister Elizabeth. William Trigg was the brother of his wife. His primary object then is the issue of a marriage between his nephew William King and a daughter of William Trigg, by his then wife, the niece of the testator. His second object was the issue of any marriage which might take place between any child of William and Rachel Trigg, and any child of his brother James or his sister Elizabeth. That both these objects have been defeated by the course of subsequent events, does not change the construction of the will. The testator undoubtedly expected the one or the other of them to take place, and his intention respecting the immediate interest of the devisee or the descent to the heir, is the same as if a daughter had afterwards been born to William and Rachel Trigg, who had intermarried with William King. The will therefore is to be construed in that respect, as if the contemplated marriage had been actually consummated. It was not very probable, at the date of the will, that the devisee of this immense fortune might come into existence in less than  twenty years, nor that the wife might  live fifty years. In the mean time no provision whatever is made for him. To what purpose should the profits of the estate intended for him be withheld during the life time of the testator's wife, since those profits were not to be received by her? Why should her death be the event on which lands in which no interest was given to her, should be enjoyed by the devisee? We perceive at once the reason why the devise of those lands in which she had a life estate, should take effect at her death; but there is no reason for postponing the possession of lands from which she could derive no  benefit, and which were not given to others to the same period. \nThe devise over too has considerable influence in this question. It may be on a contingency too remote to be supported by law; but the testator's intention is not the less manifested on that account. He did not suppose it too remote; and in fact it might have happened in a few years. Had William King, the devisee, died young, or had William or Rachel Trigg died without leaving a daughter, a fact which has actually happened, and any child of William and Rachel Trigg had married a child of James King or of Elizabeth Mitchel,  then the whole estate is given to such child, and to the issue of the marriage. Had either of these events taken place, the estate is given from the heirs. It consists very well with the general intention of the testator and his mode of thinking, as manifested in his will, to suppose an intention that the profits should accumulate for the benefit of those for whom the estate was designed; we can perceive nothing in the will to countenance the idea, that he contemplated the descent of these lands to his heirs. Nothing could be more contrary to his general purpose than the distribution which the law would make of his real estate among his heirs. This may be the result of a total failure of all the provisions in the will, but cannot be considered as the immediate effect, if a contrary intention is perceived, and if the words can be so construed as to support that intention. \nThe words used by the testator show that nothing was farther from his mind than a partial intestacy. He says, he has thought proper to make his will, \"leaving and bequeathing his worldly estate in manner following:\" after making a considerable provision for his wife, and devising to others during her life, he  gives \"all his real estate at her death\" to his nephew, on condition, and on failure to perform the condition, gives \"the said estate\" over. Being about to devise all his estate to his nephew, and knowing that his wife and others would hold a large part of it for her life, it was obvious that his nephew could not take all till her death. But if he devised the whole estate, that which could not be taken by the wife or by others for her life, would pass to the nephew,  if a clear intention appears in the whole will to intercept the descent to the heir; although the clause taken literally, would postpone the possession, even of that part in which the wife has no interest, till her death. To effect this intention, the court will vary the strict meaning of words, and sometimes transpose them. 1 Call, 132.The word \"all\" may be transposed, so that the clause may read, \"in case of having no children, I then leave my real estate, all, at the death of my wife, to William King,\" &c. Let the clause be thus read, and no one could hesitate on its construction. The whole estate is devised to William King; but the possession of that part of it which is given to the wife or others for  her life, is postponed till her death. The whole will bears marks of being written by a man whose language was far from being accurate, and whose words, if taken literally, would in some instances defeat his intention. That intention, we think, was to devise his whole real estate to William King, in trust, on a condition subsequent, postponing the possession of that part of it which was given to the wife and others for her life, till her death. \n3. The third point is one of great interest to the parties. Did William King take an estate which, in the events that have happened, enures to his own benefit, or is he in the existing state of things to be considered as a trustee for the heirs of the testator? \nThis question cannot properly be decided in this cause. It belongs to a court of chancery, and will be determined when the heirs shall bring a bill to enforce the execution of the trust. We do not mean to indicate any opinion upon it. The legal title is, we think, in William King, whoever may claim the beneficial interest, and the judgment is therefore affirmed with costs. \nDissent by:", " \nOpinion \n\n \n \n  Mr Chief Justice MARSHALL delivered the opinion of the court. \nThis is a petition for a writ of habeas corpus to bring the body of Tobias Watkins before this court, for the purpose of inquiring into the legality of his confinement in gaol. The petition states that he is detained in prison by virtue of a judgment of the circuit court of the United States, for the county of Washington, in the district of Columbia, rendered in a criminal prosecution carried  on against him in that court. A copy of the indictment and judgment is annexed to the petition, and the motion is founded on the allegation that the indictment charges no offence for which the prisoner was punishable in that court, or of which that court could take cognizance; and consequently that the proceedings are coram non judice, and totally void. \nThis application is made to a court which has no jurisdiction in criminal cases ( 3 Cranch, 169;) which could not revise this judgment; could not reverse or affirm it, were the record brought up directly by writ of error. The power, however, to award writs of habeas corpus is conferred expressly on this court by the fourteenth section of the judicial act, and has been repeatedly exercised. No doubt exists  respecting the power; the question is, whether this be a case in which it ought to be exercised. The cause of imprisonment is shown as fully by the petitioner as it could appear on the return of the writ; consequently the writ ought not to be awarded, if the court is satisfied that the prisoner would be remanded to prison. \nNo law of the United States prescribes the cases in which this great writ shall be issued, nor  the power of the court over the party brought up by it. The term is used in the constitution, as one which was well understood; and the judicial act authorises this court, and all the courts of the United States, and the judges thereof, to issue the writ \"for the purpose of inquiring into the cause of commitment.\" This general reference to a power which we are required to exercise, without any precise definition of that power, imposes on us the necessity of making some inquiries into its use,  according to that law which is in a considerable degree incorporated into our own. The writ of habeas corpus is a high prerogative writ, known to the common law, the great object of which is the liberation of those who may be imprisoned without sufficient cause. It is in the nature of a writ of error, to examine the legality of the commitment. The English judges, being originally under the influence of the crown, neglected to issue this writ where the government entertained suspicions which could not be sustained by evidence; and the writ when issued was sometimes disregarded or evaded, and great individual oppression was suffered in consequence of delays in bringing prisoners  to trial. To remedy this evil the celebrated habeas corpus act of the 31st of Charles II. was enacted, for the purpose of securing the benefits for which the writ was given. This statute may be referred to as describing the cases in which relief is, in England, afforded by this writ to a person detained in custody. It enforces the common law. This statute excepts from those who are entitled to its benefit, persons committed for felony or treason plainly expressed in the warrant, as well as persons convicted or in execution. \nThe exception of persons convicted applies particularly to the application now under consideration. The petitioner is detained in prison by virtue of the judgment of a court, which court possesses general and final jurisdiction in criminal cases. Can this judgment be re-examined upon a writ of habeas corpus? \nThis writ is, as has been said, in the nature of a writ of error which brings up the body of the prisoner with the cause of commitment. The court can undoubtedly inquire into the sufficiency of that cause; but if it be the judgment of a court of competent jurisdiction, especially a judgment withdrawn by law from the revision of this court, is not that  judgment in itself sufficient cause? Can the court, upon this writ, look beyond the judgment, and re-examine the charges on which it was rendered. A judgment, in its nature, concludes the subject on which it is rendered, and pronounces the law of the case. The judgment of a court of record whose jurisdiction is final, is as conclusive on all  the world as the judgment of this court would be. It is as conclusive on this court as it is on other courts. It puts an end to inquiry concerning the fact, by deciding it. \nThe counsel for the prisoner admit the application of these principles to a case in which the indictment alleges a crime cognizable in the court by which the judgment was pronounced; but they deny their application to a case in which the indictment charges an offence not punishable criminally according to the law of the land. But with what propriety can this court look into the indictment? We have no power to examinethe proceedings on awrit of error, and it would be strange, if, under colour of a writ to liberate an individual from unlawful imprisonment, we could substantially reverse a judgment which the law has placed beyond our control. An imprisonment  under a judgment cannot be unlawful, unless that judgment be an absolute nullity; and it is not a nullity if the court has general jurisdiction of the subject, although it should be erroneous. The circuit court for the district of Columbia is a court of record, having general jurisdiction over criminal cases. An offence cognizable in any court, is congizable in that court. If the offence be punishable by law, that court is competent to inflict the punishment. The judgment of such a tribunal has all the obligation which the judgment of any tribunal can have. To determine whether the offence charged in the indictment be legally punishable or not is among the most unquestionable of its powers and duties. The decision of the this question is the exercise of jurisdiction, whether the judgment be for or against the prisoner. The judgment is equally binding in the one case and in the other; and must remain in full force unless reversed regularly by a superior court capable of reversing it. \nIf this judgment be obligatory, no court can look behind it. If it be a nullity, the officer who obeys it is guilty of false imprisonment. Whould the counsel for the prisoner attempt to maintain  this position? \nQuestions which we think analogous to this have been frequently decided in this court. Kemp's Lesse vs. Kennedy et al. 5 Cranch, 173, was a writ of error to a judgment in  ejectment, rendered against her in the circuit court of the United States for the district of New Jersey. An inquisition taken under the confiscating acts of New Jersey, had been found against her, on which a judgment of condemnation had been rendered by the inferior court of common pleas for the county of Hunterdon. The land had been sold under this judgment of condemnation, and this ejectment was brought against the purchaser. The title of the plaintiff being resisted under those proceedings, his counsel prayed the court to instruct the jury that they ought to find a verdict for him. The court refused the prayer, and did instruct the jury to find for the defendants. an exception was taken to this direction, and the cause brought before this court by writ of error. On the argument the counsel for the plaintiff made two points. 1. That the proceedings were erroneous.2. That the judgment was an absolute nullity. He contended that the individual against whom the inquest was found,  was not comprehended within the confiscating acts of New Jersey. Consequently, the justice who took the inquisition had  no jurisdiction as regarded her. He contended also that the inquisition was entirely insufficient to show that Grace Kemp, whose land had been condemned, was an offender under those acts. He then insisted that the tribunal errected to execute these laws, was an inferior tribunal, proceeding by force of particular statutes out of the course of the common law; it was a jurisdiction limited by the statute, both as to the nature of the offence, and the description of persons over whom it should have cognizance. Every think ought to have been stated in the proceedings which was necessary to give the court jurisdiction, and to justify the judgment of forfeiture. If the jurisdiction does not appear upon the face of the proceedings, the presumption of law is, that the court had not jurisdiction, and the cause was coram non judice; in which case no valid judgment could be rendered. \nThe court said, that however clear it might be in favour of the plaintiff on the first point, it would avail him nothing unless he succeeded on the second. \nThe court admitted  the law respecting the proceedings  of inferior courts in the sense in which that term was used in the English books; and asked, \"was the court in which this judgment was rendered an inferior court in that sense of the term? \n\"All courts from which an appeal lies, are inferior courts in relation to the appellate courts, before which their judgment may be carried; but they are not therefore inferior courts in the technical sense of those words. They apply to courts of special and limited jurisdiction, which are erected on such principles that their judgments taken alone are entirely disregarded, and the proceedings must show their jurisdiction. The courts of the United States are all of limited jurisdiction, and their proceedings are erroneous if the jurisdiction be not shown upon them. Judgments rendered in such cases may certainly be reversed; but this court is not prepared to say that they are absolute nullities, which may be totally disregarded.\" \nThe court then proceeded to review the powers of the courts of common pleas in New Jersey. They were courts of record, possessing general jurisdiction in civil cases, with the exception of suits for real property. in treason,  their jurisdiction was over all who could commit the offence. \nAfter reviewing the several acts of confiscation, the court said, that they could not be fairly construed to convert the courts of common pleas into courts of limited jurisdiction. They remained the only courts capable of trying the offences described by the laws. \nIn the particular case of Grace Kemp, the court said, that \"the court of common pleas was constituted according to law; and if an offence had been in fact committed, the accused was amendable to its jurisdiction, so far as respected her property in the state of New Jersey. The question whether this offence was or was not committed, that is, whether the inquest, which is substituted for a verdict on an indictment, did or did not show that the offence had been committed, was a question which the court was competent to decide. The judgment it gave was erroneous; but it is a judgment, and, until reversed, cannot be disregarded.\" \n This case has been cited at some length, because it is thought to be decisive of that now under consideration. \nHad any offence against the laws of the United States been in fact committed, the circuit court for the district  of Columbia could take cognizance of it.The question whether any offence was, or was not committed, that is, whether the indictment did or did not show that an offence had been committed, was a question which that court was competent to decide.If its judgment was erroneous, a point which this court does not determine, still it is a judgment, and, until reversed, cannot be disregarded. \nIn Skillern's Executors vs. Executors, 6 Cranch, 267, a decree pronounced by the circuit court for the district of Kentucky had been reversed, and the cause was remanded to that court, that an equal partition of the land in controversy might be made between the parties. When the cause against came on before the court below, it was discovered that it was not within the jurisdiction of the court; whereupon the judges were divided in opinion, whether they ought to execute the mandate, and their division was certified to this court. This court certified, that the circuit court is bound to execute its mandate, \"although the jurisdiction of the court be not alleged in the pleadings.\" The decree having been pronounced, although in a case in which it was erroneous for want of the averment of jurisdiction,  was nevertheless obligatory as a decree. \nThe case of Williams et al. vs. Armroyd et al. 7 Cranch, 423, was an appeal from a sentence of the circuit court for the district of Pennsylvania, dismissing a libel which had been filed for certain goods which had been captured and condemned under the Milan decree. They were sold by order of the governor of the island into which the prize had been carried, and the present possessor claimed under the purchaser. It was contended, that the Milan decree was in violation of the law of nations, and that a condemnation professedly under that decree could not change the right of property. This court affirmed the sentence of the circuit court, restoring the property to the claimant, and said \"that  the sentence is avowedly made under a decree subversive of the law of nations, will not help the appellant's case in a court which cannot revise, correct, or even examine that sentence. If an erroneous judgment binds the property on which it acts, it will not bind that property the less, because its error is apparent. Of that error, advantage can be taken only in a court which is capable of correcting it.\" \nThe court felt the less difficulty  in declaringthe edict under which the condemenation had been made to be \"a direct and flagrant violation of national law,\" because the declaration had already been made by the legislature of the union. But the sentence of a court junder it was submitted to, as being of complete obligation. \nThe cases are numerous, which decide that the judgments of a court of record having general  jurisdiction of the subject, although erroneous, are binding until reversed. It is universally understood that the judgments of the courts of the United States, although their jurisdiction be not shown in the pleadings, are yet binding on all the world; and that this apparent want of jurisdiction can avail the party only on a writ of error. This acknowledged principle seems to us to settle the question now before the court. The judgment of the circuit court in a criminal-case is of itself evidence of its own legality, and requires for its support no inspection of the indictments on which it is founded. The law trusts that court with the whole subject, and has not confided to this court the power of revising its decisions. We cannot usurp that power by the instrumentality of the writ of habeas  corpus. The judgment informs us that the commitment is legal, and with that information it is our duty to the satisfied. \nThe counsel for the petitioner contend, that writs of habeas corpus have been awarded and prisoners liberated in cases similar to this. \nIn the United States vs. Hamilton, 3 Dall. 17, the prisoner was committed upon the warrant of the district judge of Pennsylvania, charging him with high treason. He was, after much deliberation, admitted to bail. This was a proceeding contemplated by the thirty-third section of the judicial act, which declares that in cases where the punishment  may be death, bail shall not be admitted but by the supreme or a circuit court, or by a justice of the supreme court, or a judge of the district court. \nIn the case Ex parte Burford, 3 Cranch, 447, the prisoner was committed originally by the warrant of several justices of the peace for the county of Alexandria. He was brought by a writ of habeas corpus before the circuit court, by which court he was remanded to gaol, there to remain until he should enter into recognizance for his good behaviour for one year. He was again brought before the supreme court on a writ of habeas  corpus. The judges were unanimously of opinion that the warrant of commitment was illegal, for want of stating some good cause certain supported by oath. The court added that, \"if the circuit court had proceeded, denovo, perhaps it might have made a difference; but this court is of opinion that that court has gone only on the proceedings before the justices. It has gone so far as to correct two of the errors committed, but the rest remain.\" The prisoner was discharged. \nIn the case of Bollman vs. Swartwout, the prisoners were committed by order of the circuit court, on the charge of treason.The habeas corpus was awarded in this case on the same principle on which it was awarded in the case of 3 Dall. 17. the prisoners were discharged, because the charge of treason did not appear to have been committed. In no one of these cases was the prisoner confined under the judgment of a court. \nThe case Ex parte Kearney, 7 Wheat. 39, was a commitment by order of the circuit court for the district of Columbia, for a contempt. The prisoner was remanded to prison. The court, after noticing its want of power to revise the judgment of the circuit court in any case where a party had been convicted  of a public offence, asked, \"if then this court cannot directly revise a judgment of the circuit court in a criminal case what reason is there to suppose that it was intended to vest it with the authority to do it indirectly.\" The case ex parte Kearney bears a near resemblance to that under consideration. \nThe counsel for the prisoner rely, mainly, on the case of Wise vs. Withers, 3 Cranch, 330. This was an action of trespass vi et armis, for entering the plaintiff's house and taking away his goods. The defendant justified as collector of the militia fines. The plaintiff replied that he was not subject to militia duty, and on demurrer this replication was held ill. This court reversed the judgment of the circuit court, because a court martial had no jurisdiction over a person not belonging to the militia, and its sentence in such a case being coram non judice, furnishes no protection to the officer who executes it. \nThis decision proves only that a court martial was considered as one of those interior courts of limited jurisdiction, whose judgments may be questioned collaterally. They are not placed on the same high ground with the judgments of a court of record. The  declaration, that this judgment against a person to whom the jurisdiction of the court could not extend is a nullity; is no authority for inquiring into the judgments of a court of general criminal jurisdiction, and regarding them as nullities, if, in our opinion, the court has misconstrued the law, and has pronounced an offence to be punishable criminally, which, as we may think, is not so. \nWithout looking into the indictments under which the prosecution against the petitioner was conduded, we are unanimously of opinion that the judgment of a court of general criminal jurisdiction justifies his imprisonment, and that the writ of habeas corpus ought not to be awarded. \nOn consideration of the rule granted in this case, on a prior day of this term, to wit, on Tuesday the 26th of January of the present term of this court, and of the arguments thereupon had; it is considered, ordered and adjudged by this court, that the said rule be, and the same is hereby discharged, and that the prayer of the petitioner for a writ of habeas corpus be, and the same is hereby refused. \n \n\n ", " \nOpinion \n\n \n \n  Mr Chief Justice MARSHALL delivered the opinion of the Court. \nThis is a writ of error to a judgment rendered in the court of the United States, for the first circuit and district of Massachusetts, in a suit brought by Cunningham & Co. against Bell, De Yough & Co., on a special contract. \nCunningham & Co., merchants of Boston, had let their vessel, the Halcyon, to Messrs Atkinson and Rollins, of the same place, to carry a cargo of sugars from the Havana to Leghorn. The cargo was consigned to Messrs Bell, De Yough & Co., merchants of Leghorn; and Cunningham & Co. addressed a letter to the same house, instructing them to invest the freight, which was estimated at four thousand six hundred petsos, two thousand two hundred  in marble tiles, and the residue after paying disbursements in wrapping  paper. Messrs Bell, De Yough  & Co. undertook to execute these orders. Instead however of investing the sum of two thousand two hundred petsos in marble tiles, they invested the whole amount of freight which came to their hands, amounting to three thousand four hundred and forty-nine petsos, and seven-thirds, instead of four thousand six hundred, in wrapping paper, which was received by the captain of the Halcyon, shipped to the Havana, and sold on account of Messrs Cunningham & Co. One of the partners of Messrs Bell, De Yough & Co. having visited Boston on business, this suit was instituted against the company. At the trial, all the correspondence between the parties was exhibited, from which it appeared that Cunningham & Co. as soon as information was received that their orders had been broken, addressed a letter to Messrs Bell, De Yough & Co., expressing in strong terms their disapprobation of this departure from orders, but did not signify their determination to disavow the transaction entirely, and consider the wrapping paper as sold on account of the house in Leghorn. \nIn addition to the correspondence, several depositions were read to the jury, which proved that the orders respecting the marble tiles  might have been executed without difficulty, but that the house in Leghorn, expecting to receive more money on account of freight than actually came to their hands, had contracted for so much wrapping paper as to leave so inconsiderable a sum for the tiles, that they determined to invest that small sum also in wrapping paper. \nAt the trial, the counsel for the defendants in the court below, prayed the court to instruct the jury on several points which arose in the cause. Exceptions were taken to the rejection of these prayers, and also to instructions which were actually given by the court, and the cause is now heard on these exceptions. \nThe defendants' counsel prayed the court to instruct the jury, that the letter of the 9th of December 1824, from the defendants to the plaintiffs, was notice to them of the exercise of the aforesaid authority in contracting for five thousand reams of paper, to be paid for out of the freight money of the Halcyon, and was admitted by the plaintiffs in their  letter of the 7th of March 1825, to be a rightful exercise of such authority; and that the freight money of the Halcyon was pledged for payment of the said quantity of paper. \nBut the  court so refused to instruct the jury, because it did not appear, on the face of the said letter, at what price the said wrapping paper was purchased, so as to put the plaintiffs in possession of the whole facts, that there had been a purchase of paper to an extent, and at a price which would amount to a deviation from the orders of the plaintiffs, or that defendants had deviated from such orders, without which there could arise no presumption of notice of any deviation from such orders, or of any ratification of any such deviation from such orders. But the court did instruct the jury, that if, from the whole evidence in the case, the jury were satisfied that the letter of the 9th of December, connected with the letter of the 14th of January, did sufficiently put the plaintiffs in possession of all the facts relative to such purchase, and the price thereof, and of such deviation, and that the letter of the 7th of March, in answer thereto, was written with a full knowledge and notice of all the facts, and that the plaintiffs did thereupon express their approbation of all the proceedings and acts of the defendants relative to such purchase, then, in point of law, it amounted to a ratification  thereof, even though there had been a deviation from the orders in this behalf. \nThis first exception is very clearly not supported by the fact, and was very properly overruled for the reasons assigned by the judge. The plaintiffs in that court, when the letter of the 7th of March 1825 was written, had no reason to presume that their orders had been violated, and consequently could not be intended to mean by that letter to sanction such violation. \nThe said defendants' counsel further prayed the court to instruct the jury, that, if they believed, from the evidence submitted to them, that the required quantity of tiles could be had in season for the return cargo of the Halcyon, without any previous contract therefor, and that the five thousand reams of paper could not be had in season for said vessel, without a previous contract therefor, that, inasmuch as the  plaintiffs admit, in their declaration, that they did not furnish the defendants with freight money enough to purchase twenty-two hundred petsos worth of tiles, and pay the disbursements, and pay for the said five thousand reams of wrapping paper, but only with three thousand four hundred and forty-nine petsos, 7.3,  (as in their declaration is expressed), and which latter sum was only sufficient for the payment of said disbursements, and for the performance of the defendants' own contract in paying for said wrapping paper, the defendants were not holden to purchase any tiles, but were holden to ship the said five thousand reams of paper on board the Halcyon, as the property of the plaintiffs. \nBut the court refused so to instruct the jury; and the court did instruct the jury, that if the defendants undertook to comply with the original written orders of the plaintiffs, and no deviation therefrom was authorised by the plaintiffs, the defendants were bound, if funds to the amount came into their hands, in the first instance to apply two thousand two hundred petsos of the funds which should come into their hands and be applied to this purpose, to the purchase of tiles, and in the next place, to deduct and apply as much as was necessary to pay the disbursements, and then to apply the residue to the purchase of paper: that if it were necessary or proper under the circumstances to make a purchase of the paper, before the arrival of the vessel, the defendants were authorised to act upon the presumption  that four thousand six hundred petsos would come into their hands, and therefore the plaintiffs would have been bound by any purchase of paper made by the defendants, to the amount of the balance remaining of the said four thousand six hundred petsos, after deducting the two thousand two hundred petsos for tiles, and the probable amount of such disbursements. But that it was the duty of the  defendants, if they had funds, to deduct in the first instance, from the whole amount, two thousand two hundred petsos for tiles; and if they did not, but chose to purchase paper without any reference thereto, it was a deviation from the plaintiffs' orders, and unless ratified by the plaintiffs, the defendants  were answerable therefor: that if the defendants had purchased paper, before the arrival of the vessel, to the amount only of such residue or balance as aforesaid, and the funds had afterwards fallen short of the expected amount of four thousand six hundred petsos, the defendants were not bound to apply any more than the sum remaining in their hands, after deducting the amount of such purchase of paper, and such disbursements, to the purchase of tiles: and that after  the receipt of the letters of the 20th of September, and the duplicate of the 15th of September, if the defendants undertook to perform the orders therein contained, there was an implied obligation on them to apply the seven hundred petsos mentioned therein for the plaintiffs' benefit, to the purposes therein stated: that, to illustrate the case, if the jury were satisfied that the whole funds which came into the hands of the defendants for the plaintiffs (independent of the seven hundred petsos) were three thousand four hundred and fifty petsos, then the said seven hundred petsos should be added thereto, as funds in the defendants' hands, making in the whole four thousand one hundred and fifty petsos. \nIn the view of the facts thus assumed by the court, and to illustrate its opinion, the practical result under such circumstances would be thus: the defendants were authorised to act on the presumption of funds to the amount of four thousand six hundred petsos. Deduct two thousand two hundred petsos for tiles and six hundred and fifty for probable disbursements, the balance left to be invested in paper would be one thousand seven hundred and fifty. The defendants would then be authorised,  if the circumstances of the case required it, to contract for, or purchase, to the amount of one thousand seven hundred and fifty petsos in paper, before the arrival of the vessel: and if the funds should afterwards fall short of the expected amount of four thousand six hundred petsos, the sum of one thousand seven hundred and fifty petsos, and the disbursements, say six hundred and fifty petsos, were to be first deducted out of the funds received, and the balance only invested in tiles. That if the  funds which actually came to the defendants' hands (without the seven hundred petsos), and the sum of seven hundred petsos were also received, the whole amount would be four thousand one hundred and fifty petsos, then the defendants would be justified in deducting therefrom, for the purchase of paper, one thousand seven hundred and fifty petsos, and disbursements six hundred and fifty petsos; leaving the sum of one thousand seven hundred and fifty petsos to be invested in tiles: and to this extent, if there was ratification, the defendants would be bound to invest for the plaintiffs in tiles, and were guilty of a breach of orders if they did not so invest, and the plaintiffs  entitled to damages accordingly. But the court left the whole facts for the consideration of the jury, and stated the preceding sums only as illustrations of the principles of decisions, if they were found conformable to the facts. \nThis prayer was properly overruled for the reasons assigned by the court. The orders were peremptory to apply two thousand two hundred petsos in the first instance to the purchase of tiles. The residue only of the funds which came to the hands of Bell, De Yough and Co. was applied to the purchase of wrapping paper; and the instruction that Bell, De Yough and Co. were justifiable in acting on the presumption that the whole sum mentioned in the letter of Cunningham and Co. would be received, and in contracting by anticipation for wrapping paper on that presumption, was as favourable to Bell, De Yough and Co. as the law and evidence would warrant. The only questionable part of the instruction is that which relates to the seven hundred petsos, mentioned in the postscript of that copy of the letter of the 15th of September 1824 which went by the Halcyon. That postscript is in these words: \"P.S. We have further engaged whatever may be necessary to fill the  brig on half profits, on adcount of which seven hundred petsos are to paid in Leghorn. After purchasing the tiles and paying the disbursements, you will invest the balance in paper as before mentioned. In previous orders the reams have been deficient in the proper number of sheets. We will thank you  to pay particular attention to this, as well as having all the sheets entire.\" \nThe court instructed the jury that if the defendants undertook to perform the orders, there was an implied obligation on them to apply the seven hundred petsos mentioned therein to the purposes therein mentioned. \nNo doubt can be entertained of the existence of this implied obligation if the seven hundred petsos were in fact received. This fact however could not be decided by the court, and was proper for the consideration of the jury. If the court took it from them, the instruction would be erroneous. Some doubt was at first entertained on this part of the case; but on a more attentive consideration of the charge that doubt is removed. The declaration that there was an implied obligation to apply the seven hundred petsos as directed in the letter and postscript, is not made in answer to any  prayer for an instruction respecting the reception of this money, but respecting its application. The answer therefore which relates solely to the application ought not to be construed as deciding that it was received. The judge afterwards, by way of illustration, shows the sum which might have been invested in wrapping paper consistently with the orders given by Cunningham and Co. on the hypothesis that the freight money would amount to four thousand six hundred petsos, and also on the hypothesis that the additional seven hundred petsos were received; and adds: \"But the court left the whole facts for the consideration of the jury, and stated the preceding sums only as illustrations of the principles of decisions, if they were found conformable to the facts.\" We think then that the question, whether the seven hundred petsos were actually received by Bell, De Yough and Co. was submitted to the jury on the evidence, and that there is no error in this instruction. \n The defendants' counsel did further pray the court to instruct the jury that inasmuch as the plaintiffs admit, in their declaration, that the freight money received by the defendants was three thousand four hundred  and forty-nine petsos 7.3; and it appearing that the whole of that sum had been absorbed  in the purchase of five thousand reams of wrapping paper, disbursements, and reasonable and customary charges; and that as the said plaintiffs did accept and sell the said five thousand reams of paper on their own account at the Havana; that such receipt and sale of the paper on their account, is, in law, a ratification of the acts of the defendants at Leghorn, in the application of the whole of said freight money. \nBut the court refused so to direct the jury, because the instruction prayed for assumed the decision of matters of facts and because the plaintiffs did not admit that the sut of three thousand four hundred and ferty nine petsos 7.3 was the whole sum or funds received as freight money by the defendants, but contended that the additional sum of seven hundred petsos was so received, and ought to be added thereto; and because, whether the receipt and sale of the paper at Havana was a ratification of the acts of the defendants at Leghorn or not, was matter of fact for the consideration of the jury, under all the circumstances of the case, and not matter of law to be decided by  the court in the manner prayed for. \nWe think this instruction was properly refused by the court ofr the reasons assigned by the judge. It may be added in support of the statement made by the court, that though the first and second new count in the declaration claim only the sum mentioned by counsel in their prayer the thrid claims a larger sum, and consequently left the plaintiffs in the court below at liberty to ask from the jury such sum within the amount demanded by the third count as the evidence would in their opinion prove to have come to the hands of the defendants. The question whether the receitp and sale of the sugars at the Havana amounted to ratification of the acts of Bell, De Yough and Co. at Leghorn, certainly depended on the circumstances attending that transaction. If Cunningham and Co., with full knowledge of all the facts, acted as owners of the wrapping paper without signifying any intention of disavowing the acts of their agents, an inference in favour of ratification might be fairly  drawn by the jury. If the cargo from Leghorn was received and sold in the HAvana under directions given at a time when Cunningham and Co. felt a just confidence that  their orders would be faithfully executed by Bell, De Yough and Co. such an inference would be in a high degree unreasonable. This subject was therefore very properly left to the jury. \nAnd the defendants' counsel furthermore prayed the court to instruct the jury, as the plaintiffs' first new count, filed at this term, by leave of court, that, inasmuch as the plaintiffs have set forth the letter of the plaintiffs to the defendants of the 1kth of September 1824, as containing the special contract between the plaintiffs and defendants; and as the postscript to that letter contains a material part of the cofntract; and as the said postscript is not set forth in said count as part of said letter, but as wholly omitted; that the evidence offered by the plaintiffs, in this behalf, does not support and prove the contract as in that count is alleged. \nBut the court refused so to instruct the jury, being of opinion that the said postscript did not necessarily as a matter of law establish any variance between the first new count and the evidence in the case; and the court left it to the jury to consider upon the whole evidence in the case, whehter that count was established in proof, and if  in their opinion there was a variance, then to find their verdict for the defendants on that count. \nOn the 15th of September 1824, Cunningham and Co. addressed a letter to Bell, De Yough and Co. containing the orders which have given rise to this controversy. This letter was sent by the Halcyon, and contained the postscript mentioned in this prayer for instructions to the jury. It was received on the 20th of January 1825. \nAs the Halcyon was to make a circuitous voyage by the Havana, and Cunningham and Co. were desirous of communicating the contents of their letter by that vessel previous to her arrival, a duplicate was sent by the Envoy, which sailed a few days afterwards direct for Leghorn. \nIn this letter the postscript was omitted. It was received  on the 30th of November 1824, and was answered soon afterwards with an assurance that the orders respecting the tiles and wrapping paper would be execufted. \nThe first new count in the declaration is on the special contract, and sets out at large the letter sent by the Envoy, which was first received, and to which the answer applied, in which Bell, De Yough and Co. unertook to execute the orders that were contained in that  letter. It is undoubtedly true that a declaration which proposes to state a special contract in its words, must set it out truly; but this cofntract was completed by the answer to the letter first received, and the obligation to apply the funds when received was then created. The plaintiffs below might certainly count upon this letter as their contract. Other counts in the declaration are general, and both letters may be given in evidence on them. The defendants might have objected to the reading of the letter by the Halcyon on the first new count; but the whole testimony was laid before the jury without exception, and the counsel prayed the court to instruct the jury that as the postscript was omitted in the letter stated in the first count, the evidence did not support the contract as in that count alleged. \nThis prayer might perhaps have been correctlv made, had no other letter been given in evidence than that received by the Halcyon. But as the very letter on which the count is framed, and which was the foundation of the contract was given in evidence, the court could not have said with propriety that this count was not sustained. It was left to the jury to say whether there  was a variance between the evidence and this count, and if in their opinion such variance did exist, they were at liberty to find for the defendants on that count. If there was any error in this instruction, it was not to the prejudice of the plaintiffs in error. \nThe fifth, sixth and seventh exceptions appear to have been abandoned by the counsel in  argument, and were certainly very properly abandoned. These several prayers are founded on the assumption of contested facts, which were submitted and ought to have been submitted to the jury. \nThe eighth and last prayer is in these words: \"The defendants'  counsel prayed the court to instruct the jury, that if they should find that any contract or promise was made by the defendants as to the purchase and shipment of twentytwo hundred petsos worth of tiles, and not performed, (but broken), that the measure of damages was the value of the said sum of twenty-two hundred petsos at Leghorn and not at Havana: and that as the plaintiffs have taken and accepted another article of merchandise at Leghorn, viz. five thousand reams of wrapping paper, of greater value than two thousand two hundred petsos, and which was purchased  with the same moneys which plaintiffs aver should have been invested in marble tiles as aforesaid, the plaintiffs are not entitled to recover any damages in this action. \nBut the court refused so to instruct the jury, because the instruction prayed for called upon the court to decide on matters of fact in controversy before the jury. And the court did instruct the jury, that if upon the whole evidence they were satisfied that the orders of the plaintiffs had been broken by the defendants in not purchasing the tiles in the manner stated in the declaration, and that there had been no subsequent ratification by the plaintiffs of the acts and proceedings of the defendants; then that the plaintiffs were entitled to recover their damages for the breach thereof; that what the proper damages were, must be decided by them upon the whole circumstances of the case; that in their assessment of damages they were not bound to confine themselves to the state of things at Leghorn, and they were not precluded from taking into consideration the voyage to the Havana, and the fact of the arrival of the vessel there, the state of the markets, and the profits which might have been made by the plaintiffs,  if their orders as to the tiles had been complied with; that the court would not lay down any rule for their government, except that they were at liberty to compensate the plaintiffs for their actual losses sustained, as a consequence from the default of the defendants, but they were not at liberty to give vindictive damages. \nThis prayer consists of two parts. 1st. The measure of damages if the jury should be of opinion that the contract was broken. 2. The ratification of the acts of Bell, De Yough,  and Co, by accepting at Havana another article in lieu of the tiles. \n1. The measure of damages. The plaintiffs in error contend, that the value of the money at Leghorn, which ought to have been invested in tiles, and not its value at the Havana, ought to be the standard by which damages should be measured. That is, if his views are well understood, that the value of two thousand two hundred petsos at Leghorn, with interest thereon, and not the value of the titles in which they ought to have been invested at the Havana, ought to be given by the jury. \nThis instruction ought not to have been given unless it be true, that special damages for the breach of a contract can  be awarded under no circumstances whatever; that an action for the breach of contract was equivalent, and only equivalent, to an action for money had and received for the plaintiffs' use. That the breach of contract consisted in the non-payment of two thousand two hundred petsos; not in the failure to invest that sum in tiles. In fact, that under all circumstances, if no money came to the hands of the defendants, the damages in such an action must be nominal. This can never be admitted. \nThe faithful execution of orders which an agent or correspondent has contracted to execute, is of vital importance in commercial transactions, and may often affect the injured party far beyond the actual sum misapplied. A failure in this respect may entirely break up a voyage, and defeat the whole enterprise. We do not mean that speculative damages, dependent on possible successive schemes, ought ever to be given; but positive and direct loss, resulting plainly and immediately from the breach of orders, may be taken into the estimate.Thus in this case -- an estimate of possible profit to be derived from investments at the Havana, of the money arising from the sale of the tiles, taking into view  a distinet operation, would have been to transcend the proper limits which a jury ought to respect; but the actual value of the tiles themselves, at the Havana, affords a reasonable standard for the estimate of damages. The instructions of the judge seem to contemplate this course, and his restraining  power would have corrected, by granting a new trial, any great excess in this particular. The rule that the jury was to compensate the plaintiffs for actual loss, and not to give vindictive damages, is thought by this court to have been correct. The declaration expressly claims the loss of the profits which would have accrued from the sale of the tiles. \nThat part of this prayer which relates to the ratification of the acts of Bell, De Yough, and Co. by the receipt of the wrapping paper at the Havana, has been fully noticed in the observations on the third exception. \nThis court is of opinion that there is no error in several instructions given by the circuit court to the jury, and that the judgment ought to be affirmed with costs and six per cent damages. \nThis cause came on to be heard on the transcript of the record from the circuit court of the United States for the  district of Massachusetts, and was argued by counsel; on consideration whereof, it is ordered and adjudged by this court, that the judgment of the said circuit court in this cause be, and the same is hereby affirmed, with costs and damages, at the rate of six per centum per annum. \n \n\n ", " \nOpinion \n\n \n \n Mr Chief Justice MARSHALL delivered the opinion of the court as follows: \nThe practice has uniformly been, ever since the seat of government was removed to Washington, for the clerk to enter, at the first term to which any writ of error or appeal is returnable, the appearance of the attorney general in every case to which the United States are a party, by entering his name on the docket. This practice must have been known to every attorney general, and has never been objected to  It might be considered, therefore, as having an implied acquiescence on the part of the attorney general; although it is admitted that there is no evidence of any express assent. We do not say that this practice would be conclusive against the attorney general, if he should at the first term withdraw such appearance, or move to strike it out, in order to take advantage of any irregularity  in the service of process. But if he lets it pass for that term, without objection; we think it is conclusive upon him as to an appearance. \nThe decisions of this court have uniformly been that an appearance cures any defect in the service of process; and there is nothing to distinguish this case from the general doctrine. The cause therefore is ordered to be reinstated. \nOn consideration of the motion made by the attorney general on the part of the defendants in error in this cause, to dismiss the writ of error in this cause, on the ground that the citation is made returnable to a day during the vacation, to wit, on the first Monday in January, A.D. 1828, whereas the return day should have been the second Monday in January, A.D. 1828, it is ordered by the court, that inasmuch as the said defect is cured by the appearance of the attorney general on the part of the defendant, said motion be, and the same is hereby overruled. \n \n\n ", " \nOpinion \n\n \n \n  Mr Chief Justice MARSHALL delivered the opinion of the Court. \nThis action was brought by the Union bank of Georgetown against George B. ,agruder, as indorser of a promissory  note made by George Magruder. The maker of the note died before it became payable; and letters of administration on his estate were taken out by the indorser. When the note became payable, suit was commenced against the indorser,  without any demand of payment other than the suit itself, without any protest for non-payment, and without any notice that the note was not paid, and that the holder looked to him as indorser for payment. Upon these circumstances the counsel for the defendant moved the court to instruct the jury, that before the plaintiff can recover in this action, it is essential for him to prove demand, and notice to the indorser of the non-payment; which not being done,  the verdict should be for the defendant. But the court refused to give this instruction, and charged the jury, that no demand or notice of non-payment was necessary. To this opinion the counsel for the defendant in the circuit court excepted, and has brought the cause to this court by writ of error. \nThe general rule that payment must be demanded from the maker of a note, and notice of its non-payment forwarded to the indorser within due time, in order to render him liable, is  so firmly settled that no authority need be cited in support of it. The defendant in error does not controvert this rule, but insists that this case does not come within it; because demand of payment and notice of non-payment are totally useless, since the indorser has become the personal representative of the maker. He has not however cited any case in support of this opinion, nor has he shown that the principle has been ever laid down in any treatise on promissory notes and bills. The court ought to be well satisfied of the correctness of the principle, before it sanctions so essential a departure from established commercial usage. \nThis suit is not brought against George B. Magruder as administrator of George Magruder, the maker of the note, but against him as indorser. These two characters are as entirely distinct as if the persons had been different. A recovery against George B. Magruder, as indorser, will not affect the assets in his hands as administrator. It is not a judgment against the maker, but against the indorser of the note. The fact that the indorser is the representative of the maker does not oppose any obstacle to proceeding in the regular course. the regular  demand of payment may be made, and the note protested for non-payment, of which notice may be given to him as indorser with as much facility as if the indorser had  not been the administrator. It is not alleged that any difficulty existed in proceeding regularly; -- the allegation is, that it was totally useless. \nThe note became payable on the 8th day of November 1824. The writ was taken out against the indorser on the 26th day of April 1825. If this unusual mode of proceeding can be sustained, it must be on the principle that, as the indorser must have known that he had not paid the note, as the representative of the maker, notice to him was useless. Could this be admitted: does it dispense with the necessity of demanding payment? It is possible that assets which might have been applied in satisfaction of this debt, had payment been demanded, may have received a different direction. It is possible that the note may have been paid by the maker before it fell due. Be this as it may, no principle is better settled in commercial transactions, than that the undertaking of the indorser is conditional. It due diligence be used to obtain payment from the maker, without  success, and notice of non-payment be given to him in time, his undertaking becomes absolute; not otherwise. Due diligence to obtain payment from the maker, is a condition precedent, on which the liability of the indorser depends. As no attempt to obtain payment from the maker was made in this case, and no notice of non-payment was given to the indorser, we think the circuit court ought to have given the instruction prayed for by the defendant in that court. \nThe judgment is reversed, and the cause remanded, with directions to award a venire facias de novo. \nThis cause came on to be heard on the transcript of the record from the circuit court of the United States for the district of Columbia, holden in and for the county of Washington, and was argued by counsel; on consideration whereof, it is ordered and adjudged by this court, that the judgment of the said circuit court in this cause be, and the same is hereby reversed, and that the said cause be and the same is hereby remanded to the said circuit court, with directions to award a venire facias de novo in said cause. \n \n\n ", " \nOpinion \n\n \n \n  Mr Chief Justice MARSHALL delivered the opinion of the court \nThe judgment in this cause was rendered by the court of the United States, for the western district of Virginia, in an ejectment brought by the defendants in error, to recover  fifty thousand acres of land, a part of which was in the occupation of the defendants in the court below. The defendants in that court disclaimed as to the part of the land for which judgment was entered against the casual ejector, and went to trial as to the residue. The original plaintiffs having the eldest title, the case depended entirely on the question whether their grant covered the land in dispute. If it be surveyed according to the courses and distances called for, it will entirely exclude  that land. The plaintiffs, however, claim to survey it in such manner as to comprehend the tenements in possession of the defendants. \nA survey was made, and the diagram of the surveyor, with his report, exhibits the respective claims of the parties. The diagram A. B. C. D. E. F. A. represents the land claimed by the plaintiffs. A. B. C. D. G. H. A. represents the land, which, as the defendants contend, the grant to the plaintiffs ought to cover. A. B. C. and D. form the northern side of the tract, and are admitted by both parties to be correctly laid down. The question is whether the next line should run from D. to E. as contended by the plaintiffs, or from D. to G. as contended by the defendants. The line from D. to G. corresponds in course and distance with the call of the patent; it is S. nine W. four thousand six hundred poles. The line from D. to E. is S. twenty-eight degrees nine minutes west, four thousand eight hundred and fifty-four poles, varying nineteen degrees nine minutes from the course, and two hundred and fifty-four poles from the distance. This variance places the corner at E. about five miles west from that at G., and produces a correspondent change in the  two remaining lines which form the southern and western sides of the land. \nAt the trial, the defendants demurred to the plaintiffs' testimony, and the jury found a verdict for the plaintiffs, subject to the opinion of the court on the demurrer. The court overruled the demurrer and gave judgment for the plaintiffs. \nThe demurrer states that at the trial the plaintiff gave in evidence the plat and report made by the surveyor, which show that the lines from A. to D. which bind the land on north, conform to the patent. That the other three lines D.  E., E.F. and F.A. which inclose the land on the west, south, and east, are not marked, nor is any corner found at F. At E. two chesnut oaks were found where two chesnut oaks were called for in the patent. They are marked as a corner previously made for Robert Young. The lines D. G., G. H. and H. A. laid down by the directions of the defendants conformably to the patent, are not marked. \nThe plaintiffs also gave in evidence the patent under which they claimed, dated the 9th of July 1796, the conveyance of the patentees to them, and an official copy of the plat and certificate of survey on which the grant was founded. The land  is described as lying on the waters of Tygart valley river, Cheat river, to include the waters of Pheasant run and a part of Clover run, part of the waters of Benjamin Hornback's and Cherry Tree fork of Leading creek. They also gave in evidence the grants under which the defendants claimed, with the entries and surveys on which they were founded, which were younger than that under which the plaintiffs claimed. They also read the deposition of William Wilson. He deposes that he made the survey of fifty thousand acres in 1795. He proves that he began at A. and ran the line on the north side of the tract to D. He then protracted a line intended to strike two chesnut oaks near the head of James's run by the side of a path leading from Tygart valley to the mouth of Seneca, which was a corner he had previously marked to a survey of one hundred thousand acres he had made for Robert Young. From those two chesnut oaks he ran to Tygart valley river. Not having a sufficient distance, and finding that the line would cross the river serveral times, he extended the course and called for a white oak, because he knew there were white oaks there about. He does not know whither the course and  distance would have carried him to the east or west side of the river. He then protracted a line to the beginning. On being cross examined  he said he made the line from D. to E. in his office, and laid it down, intending to hit the two chesmut oaks near James's run. He went to the two chesnut oaks and ran to the river (not quite half the line E. F.) where he stopped, and continued the line E. F. the proper distance, and also protracted the closing line F. A. He had no axeman  with him, consequently marked no trees. He was accompanied by only one individual, and does not allege that a chain was stretched. \nThe defendants in the district court having withdrawn their cause from the jury be a demurrer to evidence, or having submitted to a verdict for the plaintiffs subject to that demurrer, cannot hope for a judgment in their favour, if, by any fair construction of the evidence, the verdict can be sustained. If this cannot be done, the judgment rendered for the defendants in error must be reversed. \nIt is an obvious principle that a grant must desceribe the land to be conveyed, and that the subject granted must be identified by the description given of it in  the instrument itself. For the purpose of furnishing this description and of separating the land from that which is not appropriated, the law directs a survey to be made by sworn officers, who, \"at the time of making such survey, shall see the same bounded plainly by marked trees, except where a water course or ancient marked line shall be the boundary.\" The persons employed to carry the chain are to be sworn by the surveyor to measure justly and exactly to the best of their abilities. The description of the land thus made by a survey is transferred into the grant. It consists of the courses and distances run by the surveyor, and of the marked trees at the lines and corners, or other natural objects which ascertain the very land which was actually surveyed. The courses and distances are less certain and less permanent guides to the land actually surveyed and granted, than natural and fixed objects on the ground; but they are guides to some extent, and, in the absence of all others, must govern us. If a grant be made which describes the land granted by course and distance only, or by natural objects not distinguishable from others of the same kind, course and distance, though not  safe guides, are the only guides given us, and must be used. \nIn the case at bar the line from D. to E. or form D. to G. which forms the western boundary of jthe land intended to be granted, was never run or marked. In his office, the surveyor assumed a course and distance, and terminates the line at two small chesnut oaks. But where are we to look  for these two small chesnut oaks in a wilderness in which one man takes up fifty thousand acres of land, and another one hundred thousand? Or how are we to distinguish them from other chesnut oaks? The guide and the only guide given us by the survey, or by the grant, is the course and distance. We are to find them at the end of a line of our thousand six hundred poles, to be run south nine degrees west from the established corner at D. We are furnished with no other guide which may conduct us to them. That the surveyor had in his mind the two small chesnut oaks which he had marked as a corner to robert Young can be of no avail, since he has not indicated this intention on his survey. He has impliedly indicated the contrary. When the established line or corner of a prior survey is made part of a boundary, it is usual to  designate such marked line or corner by naming the person whose line or corner it is. The call for two small chesnut oaks without farther description, would rather exclude the idea that they were already marked as the corner of a previous survey. \nThe fact that the surveyor on a subsequent day went to Young's corner, and without marking it as a corner for the survey he was then employed to make, walked along the line he intended for the southern boundary of the land nearly half the distance, without marking a single tree, cannot in any manner affect the case. \nIn estimating this evidence we may inquire what weight would be allowed to it if the grantee claimed to hold the land actually within his patent lines, and this testimony was opposed to him by a junior patentee within those lines? We believe that no person would hesitate an instant to say that his title to the land actually within the lines of his patent, was unquestionable. He cannot be permitted after the grant has issued to elect what ground it shall cover. \nThis opinion derives some additional weight from the generall descritpion of the country as made in the grant, and as shown on the plat and report of the survey made  by order of court in the cause. \nThe grant calls to be on the waters of Tygart valley, and to include part of the waters of Hornback's run, and the  Cherly Tree fork of Leading creek. This description accords with the survey as required by the plaintiffs in error. The grant, if placed as the defendants in error claim to place it, will include, as is shown by the survey made in the cause, not only part of the waters of Hornback's run and the Cherry Tree fork of Leading creek, but all these two streams, and even all Leading creek itself, of which they are small branches. It will also, instead of being on the waters of Tygart's valley river, lie on the river itself, which it crosses several times. The general description then contained in the grant fits the land comprehended within the lines of the patent much better than it does that which is claimed by the defendants in error. \nIt is admitted that the course and distance called for in a grant may be controlled and corrected by other objects of description which show that the survey actually covered other ground than the line of the grant would comprehend. If the grant, in this case, had called for two small chesnut oaks  marked as a corner to Robert Young's survey of one hundred thousand acres, the mistake in the course and distance would not have prevented the line from being run from the corner at D. to the chesnut oaks. So if a plain marked line, originally run from the one corner to the other, had shown that the land claimed was the land actually surveyed. But neither the grant nor the face of the plat furnishes any information by which the corner called for in the grant can be controlled.We are therefore of opinion that the defendant in error is not entitled to the land shown by the survey made in the cause to be  in possession of the plaintiffs in error, and that the demurrer ought to have been sustained. \nThe judgment is reversed and the cause remanded with directions to enter judgment in favour of the defendants in the district court. \n \n\n ", " \nOpinion \n\n \n \n  Mr Chief Justice MARSHALL delivered the opinion of the Court. \nIn December 1796, the general assembly of Virginia passed an act entitled \"an act  concerning corporations,\" declaring, \"that from and after the passing thereof, the mayor, aldermen, and commonalty of the corporate towns within the said commonwealth, and their successors should, upon request of any person desirous thereof, grant licenses to exercise, in such town, the trade or business of an auctioneer; provided, that no such license should be granted until the person or persons requesting the same should enter into bond with one or more sufficient sureties, payable to the mayor, aldermen, and commonalty of such corporate town, and their successors, in such penalty, and with such  condition, as by the laws and ordinances of the town shall be required. \nIn the year 1779 the town of Alexandria was incorporated by the name of \"the mayor and commonalty of the town of Alexandria.\" The corporation consisted of the mayor, recorded, alderman, and common council men. \nThe mayor, recorder, and aldermen, and their successors, were constituted justices of the peace, with power to appoint constables, surveyors of the streets and highways, and to hold a court of hustings once in every month; and to appoint clerks, a sergeant, and other proper officers. \nIn the year  1800 the mayor and commonalty passed an ordinance \"for licensing auctioneers agreeably to an act of the general assembly, passed on the 22d of December 1796;\" by which it was enacted, that the mayor and commonalty shall grant to any person or persons during the same, a license to exercise the trade or business of an auctioneer within the town. Provided that no such license shall be granted until the person or persons applying shall enter into bond, with one or more good securities, in the sum of twenty thousand dollars, payable to the mayor and come onalty, and conditioned for the payment of the annual rent of five hundred dollars, to the mayor and commonalty, in quarterly payments, for the said office, and for the due and faithful performance of all the duties of the same; which bond shall not become void on the first recovery, but may be put in suit and prosecuted from time to time, by, and at the costs of any person injured by a breach thereof, until the whole penalty shall be recovered. \nIn 1804 congress passed an act \"to amend the charter of Alexandria,\" in which provision was made for the election of a common council. The judicial duties of the mayor, recorder, and aldermen,  having been transferred to the circuit court of the United States for the county of Alexandria, it was enacted that the common councils elected \"and their successors shall be, and hereby are made a body politic and corporate, by the name of the common council of Alexandria.\" The estate, &c. vested in the mayor and commonalty was transferred to the common council, and the usual corporate  powers to sue and be sued, &c to erect work-houses, &c. to provide for the police of the town, &c. were conferred on that body. They were authorised \"to appoint a superintendent of police, commissioners and surveyors of the streets, constables, collectors of the taxes, and all other officers who may be deemed necessary for the execution of their laws, who shall be paid for their services a reasonable compensation, and whose duties and powers shall be prescribed in such manner as the common council shall deem fit for carrying into execution the powers hereby granted.\" \nThe twelfth section enacts \"that so much of any act or acts of the general assembly of Virginia, as comes within the purview of this act, shall be, and the same is hereby repealed.  Provided, that nothing herein  contained shall be construed to impair or destroy any right or remedy which the mayor and commonalty of Alexandria now possess or enjoy, to or concerning any debts, claims, or demands against any person or persons whatsoever, or to repeal any of the laws and ordinances of the mayor and commonalty of the said town, now in force, which are not inconsistent with the act.\" \nIn June 1817 the common council of Alexandria passed \"an act to amend the act for licensing auctioneers, and for other purposes,\" in the following words: \"be it enacted by the common council of Alexandria, that every person or persons obtaining a license to exercise the business of an auctioneer within the town of Alexandria, shall annually apply for, and obtain a renewal of his or their license, and shall also annually renew his or their bonds for the same, in the manner provided by law; and every person failing to renew such license, and give bond annually, shall cease to exercise the business of an auctioneer, and shall be proceeded against accordingly.\" \nThe declaration, after reciting the act of 1796, and the several ordinances of the corporate body of the town of Alexandria, charges, that the common council of  Alexandria, on the day of, in the year 1815, in the town of Alexandria, did grant a license to one Philip G. Marsteller, to exercise the trade and business of an auctioneer, within the said town, for the term of one year; and at the expiration  of the said year, did renew the said license to the said Philip G. Marsteller for one other year, and did continue to renew the said license from the end of the said license from the end of the said last mentioned year, from year to year, until the day of, in the year 1819, during all which time, that is to say, from the day of, in the year 1815, to the day of, in the year 1819, he, the said Philip G. Marsteller, did exercise the trade and business of an auctioneer, in the said town of Alexandria, under the said license and authority of the said common council, and that, during the period aforesaid, the said plaintiff delivered to him, the said Philip G. Marsteller, sundry goods, wares, and merchandize, to be sold by him at auction, in the said town of Alexandria, and that the said Philip did, from time to time, during the period he so carried on the trade of an auctioneer, under the license aforesaid, sell at auction the said goods,  &c. so delivered to him by the plaintiff, to the amount of $1583 39, which said sum, the said Philip, though often requested, failed to pay to the said plaintiff. \nThe declaration then states, that a judgment was obtained against the said Philip for the said sum, which he was totally unable to pay; by means of which premises the plaintiff became entitled to the benefit of the bond and security, which ought to have been taken by the common council previous to granting the said license to exercise the trade of auctioneer as aforesaid. Yet the defendants, not regarding their duty in that behalf, but contriving to deceive and injure the plaintiff, did not, and would not take any bond and security as aforesaid, from the said Philip G. Marsteller, during the time when the transactions aforesaid took place; but on the contrary, so carelessly, negligently, and improperly conducted themselves in the premises, that by and through the negligence, carelessness, and default of the defendants, no bond and security was taken from the said Philip, and that the money due from the said Philip was wholly lost to him, the said plaintiff, to his damage $3000. \nTo this declaration the defendants filed  a general demurrer, and at the same time pleaded the general issue. \nThe counsel for the plaintiff objected to receiving at the  same time a demurrer, and a plea to the whole declaration; but the court overruled the objection, under the act of assembly, which is in these words: \"the plaintiff in replevin, and the defendant in all other actions, may plead as many several matters, whether of law or fact, as he shall think necessary for his defence.\" \nThe court, having sustained the demurrer, and entered judgment for the defendants; the plaintiff has brought the cause by writ of error into this court. \nThe power to license auctioneers, and to take bonds for their good behaviour in office, not being one of the incidents to a corporation, must be conferred by an act of the legislature; and in executing it, the corporate body must conform to the act. The legislature of Virginia conferred this power on the mayor, aldermen, and commonalty of the several corporate towns within that commonwealth, of which Alexandria was one; \"provided that no such license should be granted until the person or persons requesting the same should enter into bond, with one or more sufficient securities,  payable to the mayor, aldermen, and commonalty of such corporation.\" This was a limitation on the power. \nThough the corporate name of Alexandria was \"the mayor and commonalty,\" it is not doubted that a bond taken in pursuance of the act would have been valid. Jones, 261. \nIn the year 1800, when the corporation of Alexandria determined to act upon this law, an ordinance was passed authorising \"the mayor and commonalty\" to grant licenses to auctioneers, provided that no such license should be granted, until bond with sufficient sureties should be given, payable to \"the mayor and commonalty.\" It may well be doubted, whether this ordinance is sustained by the legislative act, in pursuance of which it was made. That act authorised \"the mayor, aldermen and commonalty\" to grant licenses to auctioneers, first taking bonds payable to the \"mayor, aldermen and commonalty.\" The ordinance omits the \"aldermen,\" both in the clause which empowers the body to grant licences, and in that which names the obligees in the bond. \nBut supposing this difficulty to be entirely removed, we  are next to inquire whether the powers to grant licenses to auctioneers, and to take bonds for the performance  of their duty, which were given by the act of 1796 to the mayor, aldermen and commonalty, and by the ordinance of 1800 to the mayor and commonalty, have been transferred to, and vested in the common council of Alexandria. \nThis depends on the act of congress, passed in 1804, \"to amend the charter of Alexandria.\" Under this instrument, the corporate body consists of the common council alone. The mayor  is separated from them, and the aldermen are discontinued. The power of the mayor and commonalty are not transferred generally to the common council, but the powers given them are specially enumerated. We do not find, in the enumeration, the power to grant licenses to auctioneers. If it could be maintained that the repealing clause does not comprehend the act of 1796, still the act amending the charter changes the corporate body so entirely, as to require new provisions to enable it to execute the powers conferred by that act. The corporated body is organized anew, and does not retain those parts which are required for the execution of the act of 1796. An enabling chause, empowering the common council to act in the particular case, or some general clause which might embrace  the particular case, is necessary under the new organization of the corporate body. It has been already said that we find no particular provision, and the general powers granted are so limited by the language of the grant, that they cannot be fairly construed to comprehend the subject of licenses to auctioneers. \nIt may be admitted that the ordinance of 1800 is not repealed by the act amending the charter. But that ordinance is not adapted to the new corporate body, and could not be carried into execution by the common council, till modified by some act of legislation. \nThe common council took up this subject in 1817, and passed the act recited in the declaration. We are relieved from inquiring whether this act removed or could remove the difficulties which have been stated, by the circumstance tha the declaration changes the nonfeasance, which is the  foundation of the action, as commencing in the year 1815. We do not think any law then existed which empowered the common council of Alexandria to license auctioneers, or to take bonds for the faithful performance of their duty. The injury alleged in the declaration, as the foundation of the action, is the omission on  take the bond required by law. Now if the common council was not required or enabled by law to take a bond, the action cannot be sustained. \nIf the declaration is to be considered as stating the cause of action to be the granting a license, without previously requiring a bond; it will not, we think, held the case. The common council has granted a license to carry on the trade of an auctioneer, which the law did not empower that body to grant. Is the town responsible for the losses sustained by individuals from the fraudulent conduct of the auctioneer? He is not the officer or agent of the corporation, but is understood to act for himself as entirely as a tavern keeper, or any other person who may carry on any business under a license from the corporate body. \nIs a municipal corporation, established for the general purposes of government, with limited legislative powers, liable for losses consequent on its having misconstrued the extent of its powers, in granting a license which it had not authority to grant, without taking that security for the conduct of the person obtaining the license which its own ordinances had been supposed to require, and which might protect those who transacted  business with the person acting under the license? We find no case in which this principle has been affirmed. \nThat corporations are bound by their contracts is admitted; that money corporations, or those carrying on business for themselves, are liable for torts, is well settled: but that a legislative corporation, established as a part of the government of the country is liable for losses sustained by a nonfeasance, by an omission of the corporate body to observe a law of its own, in which no penalty is provided, is a principle for which we can find no precedent. We are not prepared to make one in this case. \nIn permitting the defendant below to demur and plead to  the whole declaration, the circuit court has construed the act on that subject as it has been construed by the courts of Virginia. \nThere is no error, and the judgment is affirmed with costs. \nThis cause came on to be heard on the transcript of the record from the circuit court of the United States, for the district of Columbia, held in and for the county of Alexandria, and was argued by counsel; on consideration thereof, it is ordered and adjudged by this court, that the judgment of the said circuit court  in this cause be, and the same is hereby affirmed with costs. \n \n\n ", " \nOpinion \n\n \n \nMr Chief Justice MARSHALL stated, \nWhen this case was brought before the court, it was admitted by the counsel to be essentially the same with Gardner vs. Collins, reported in 2 Peters's Rep. 58; but he relied on certain evidences which he exhibited of a settled judicial construction  of the act on which the cause depended, different from that which had been made by this court. Had the court been satisfied on this point, that settled construction would undoubtedly have been respected. But the court was not convinced that the construction which prevails in Rhode Island is opposed to that which was made by this court. On communicating this decision to the bar, counsel declined arguing the cause; and a certificate, similar to that which was given in the former case, was about to be prepared: but on inspecting the record, it was perceived that the judges of the circuit court, instead of dividing on one or more points, had divided on the whole cause; and had directed the whole case to be certified to this court. Considering this as irregular, the court directs the cause to be remanded to the circuit court; that further proceedings may be had therein according to law. \n \n\n ", " \nOpinion \n\n \n \n  Mr Chief Justice MARSHALL delivered the opinion of the Court. \nThis is a writ of error to a judgment rendered by the circuit court of the United States, for the county of Washington, in the district of Columbia, in an action of indebitatus assumpsit, brought by the first indorser of a promissory note against the second indorser, to recover half its amount. The note was made by Samuel Turner, Jun. and indorsed George B. Magruder, John G. M'Donald. At the trial of the cause a case was agreed by the parties, and the judgment of the circuit court was rendered in favour of the plaintiff on a verdict given by the jury, subject to the opinion of the court. \nThat a prior indorser is, in the regular course of business, liable to his indorsee, although that indorsee may have afterwards indorsed the same note, is unquestionable. When he takes up the note  he becomes the holder as entirely as if he had never parted with it, and may sue the indorser for the amount. The first indorser undertakes that the maker shall pay the note; or that he, if due diligence be used, will pay it for him. This undertaking makes him responsible to every holder, and to every person whose name is on the note subsequent to his own, and who has been compelled to pay its amount. \n This is the regular course of business where notes are indorsed for value: but it is contended that where less than the amount is received, the indorser is responsible to his immediate indorsee only for the sum actually paid; consequently, if nothing is paid, the mere indorsement does not bind the indorser to pay his immediate indorsee any thing. If B. indorses to C. the note of A. without value, and A. fails to take it up, it is as between B. and C. a contract without consideration, on which no action arises. This is undoubtedly true if C. retains the note in his own possession; and may be equally true if he indorses it for value. When he repays the money he has received, he is replaced in the situation in which he would have been had he never parted with the note.  If he puts it into circulation on his own account, new relations may be created between himself and his immediate indorsee, which may be affected by circumstances. In the case under consideration, the note took the direction intended by all the parties. It was indorsed by Magruder for the purpose of enabling Turner to discount it at the bank. To insure this object, Turner applied to M'Donald, who placed his name also on the paper. No intercourse took place between the indorsers. No contract express or implied existed between them other than is created by their respective liabilities, produced by the act of in dorsement. What are these liabilities? The first indorser gave his name to the maker of the note for the purpose of using it in order to raise the money mentioned on its face. He made himself responsible for the whole sum upon the sole credit of the maker. His undertaking is undivided. He does not understand that any person is to share this responsibility with him. \nBut either the bank is unwilling to discount the note on the credit of the maker and his single indorser, or the maker supposes his object will be insured by the additional credit given by another name. He presents the note therefore to M'Donald, and asks his name also. M'Donald accedes to his request, and puts his name on the instrument. If the maker passes the note for value, the liability of M'Donald to the holder is the same as if that value had been received  by M'Donald himself. Why is this? No consideration is received by M'Donald, and this fact is known to the holder and discounter of the note. But a consideration is paid by the holder to the maker, and paid on the credit of M'Donald's name. He cannot set up the want of a consideration received by himself; he is not permitted to say that the promise is made without consideration; because money paid by the promissee to another, is as valid a consideration as if paid to the promissor himself. \nIn what does the claim of the second on the first indorser differ from that of the holder on  the second indorser? Neither has paid value to his immediate indorser; but the holder has paid value to the maker on the credit of all the names to the instrument. The second indorser, if he takes up the note, has paid value to the holder in virtue of the liability created by his indorsement. If this liability was  founded equally on the credit of the maker and of the first indorser, if his undertaking on the credit of both subjects him to the loss consequent on the payment of the note; how can the contract between him and his immediate indorser be said to be without consideration? \nIf it be true, as we think it is, that Magruder, when he indorsed the note, and returned it to the maker to be discounted, made himself responsible for its amount on the failure of the maker, if this responsibility was then complete, how can it be diminished by the circumstance that M'Donald became a subsequent indorser? How can the legal liability of a first indorser to the second, who has been compelled to take up the note, be changed otherwise than by an express or implied contract between the parties? \nThis question has arisen and been decided in the courts of several states. Wood vs. Repold, 3 Harris & Johns. 125, was a bill drawn by A. Brown, Jun. at Baltimore, on Messrs Goold and Son of New York in favour of G. Wood & Co., and indorsed by G. Wood & Co. and afterwards by Repold, the plaintiff. The bill was drawn and indorsed for the purpose of raising money for the drawer, and was discounted at the bank of  Baltimore. On being protested for non-payment, it was taken up by repold, and this suit brought against the  first indorser. Payment was resisted because the indorsement was, without consideration, for the accommodation of the drawer; but the court sustained the action. The same question arose in Brown vs. Mott, 7 Johns. 361, on a promissory note, and was decided in the same manner. In that case the court said, that if he had taken it up at a reduced price, it would seem that he could only recover the amount paid. Undoubtedly, if M'Donald had been compelled to pay a moiety of this note, he could have recovered only that moiety from Magruder. \nThe case of Douglass vs. Waddle, 1 Hammond, 413, was determined differently. This case was undoubtedly decided on general principles; but the custom of the country and a statute of the state are referred to by the court as entitled to considerable influence. The weight of authority as well as of usage is, we think in favour of the liability of the first indorser. \nThe claim of Magruder has also been maintained on the principle that they are co-sureties, and that he who has paid the whole note may demand contribution from the  other. \nThe principle is unquestionably sound if the case can be brought within it. Co-sureties are bound to contribute equally to the debt they have jointly undertaken to pay; but the undertaking must be joint, not separate and successive. Magruder and M'Donald might have become joint indorsers. Their promise might have been a joint promise. In that event each would have been liable to the other for a moiety. But their promise is not joint. They have indorsed separately and successively, in the usual mode. No contract, no communication, has taken place between them which might vary the legal liabilities these indorsements are known to create. Those legal liabilities therefore remain in full force. \nUpon this question of contribution, the counsel for the defendants in error rely on two cases, reported in 2 Bos. & Pull. 268 and 270. The first, Cowell vs. Edwards, was a suit by one surety on a bond against his co-surety for contribution. \n It was intimated by the court that each surety was liable for his aliquot part, but not liable at law to any contribution on account of the insolvency of some of the sureties. The party who had paid more than his just proportion  of the debt could obtain relief in equity only. \nThe second case, Sir Edward Deering vs. The Earl of Winchelsea, Sir John Rous, and the Attorney General, was a suit in chancery, in the exchequer. Thomas Deering had been appointed receiver of fines, &c. and had given three bonds conditioned for faithful accounting, &c. In one of these the plaintiff was surety, in another lord Winchelsea, and in the third, sir John Rous. Judgment was obtained on the bond in which the plaintiff was surety, and this suit was brought against the sureties to the two other bonds for contribution. It was resisted on the ground that there was no contract between the parties, they having entered into special obligations. The lord chief baron was disposed to consider the right to contribution as founded rather on the equity of the parties than on contract, and the court decreed contribution. \nIn this case the parties were equally bound, were equally sureties for the same purpose, and were equally liable for the same debt. Neither had any claim upon the other superior to what that other had on him. The parties stood in the same relation, not only to the crown, to whom they were all responsible, and to the  person for whom they were sureties, but to each other. Under these circumstances contribution may well be decreed ex equali jure. But, in the case at bar, the parties do not stand in the same relation to each other. The second indorser gives his name on the faith of the first indorser as well as of the maker. The first indorser gives his name on the faith of the maker only. Unquestionably these liabilities may be changed by contract; but no contract existing between these parties, it is not a case to which the principle of contribution applies. \nNo notice has been taken of the form of the action. It is admitted that Magruder, having paid the whole note,  may recover a moiety from M'Donald, if their undertaking is to be considered as joint; if he, as first indorser, is not responsible to M'Donald for any part of it which M'Donald may have paid. \nThe judgment is to be reversed, and the cause remanded, with directions to set aside the verdict, and enter judgment as on a nonsuit. \n \n\n ", " \nOpinion \n\n \n \n  Mr Chief Justice MARSHALL delivered the opinion of the court. \nThis case depends entirely on the title of the  defendant in error to the premises in the avowry mentioned, who is one of the brothers and heirs of James Spratt deceased. \nJames Spratt was a native of Ireland, who arrived in the United States previous to the 18th of June 1812, and resided therein until his death. On the 14th of April in the year 1817, he made report of himself to the clerk of the circuit court of the United States for the district of Columbia, in the county of Washington,  which report was recorded; and, on the 17th of May thereafter, he appeared in the same court, and made the declaration on oath required by the first condition of the first section of the act \"to establish an uniform rule of naturalization,\" &c. passed the 14th of April 1802; which proceeding was recorded, and a certificate thereof granted in the following words: \n\"District of Columbia, to wit: James Spratt, a native of Ireland, aged about twenty-six years, bearing allegiance to the king of Great Britain and Ireland, who emigrated from Ireland and arrived in the United States on the 1st of June 1912, and intends to reside within the jurisdiction and under the government of the United States, makes report of himself for naturalization  according to the acts of congress in that case made and provided, the 14th of April anno domini 1817, in the clerk's office of the circuit court of the district of Columbia, for the county of Washington: and on the 14th of May 1817, the said James Spratt personally appeared in open court, and declared on oath, that it is his intention to become a citizen of the United States, and to  renounce all allegiance and fidelity to every foreign prince,\" &c. \nThis certificate was given under the hand and seal of the clerk. On the 11th of October 1821, James Spratt again appeared in open court, and took the oath required by law, and was admitted as a citizen. The certificate of his admission states that the three first conditions required by the act of the 14th of April 1802 had been complied with. \nThe said James Spratt intermarried with the plaintiff in error, Sarah Spratt, and departed this life in March 1824, without issue, and intestate. The plaintiff in replevin is a native born subject of the king of Great Britain and Ireland, and was not naturalized at the time of the institution of this suit. \nIn the year 1791, the state of Maryland passed an act entitled \"an act concerning  the territory of Columbia and the city of Washington;\" the sixth section of which provides, \"that any foreigner may, by deed or will, to be hereafter made, take and hold lands within that part of the said territory which lies within this state, in the same manner as if he was a citizen of this state; and the same lands may be conveyed by him, and transmitted to, and be inherited by his heirs or relations, as if he and they were citizens of this state.\" \nThis act continues in force. \nA decree was made by the circuit court for the sale of the estate of Simon Meade, deceased, to satisfy his creditors, on certain conditions therein specified. In pursuance of this decree, Joseph Forrest, who was appointed to carry the same into execution, did, on the 21st of May 1821, offer the real estate of the said Simon Meade for sale on the terms and conditions following, to wit: that the purchase money should be paid in four equal instalments, at six, twelve, eighteen, and twenty-four months, respectively, from the day of sale, with interest; and that a conveyance of the property in fee simple should be made to the purchaser upon the ratification of the sale by the court, and the payment of all the  said instalments of the purchase money, with interest. At this sale the said  James Spratt became the purchaser of the lot in the avowry mentioned. On the 15th of October 1821 the said Joseph Forrest made his report to the court; and on the 24th of December 1822, an interlocutory decree was made for confirming the sale; and on the 26th of January 1824, the final decree of confirmation was passed. No deed was executed during the life time of the said James Spratt. The bidding at the sale was made while the said James Spratt was an alien; but before any other step was taken he became a citizen. \nUpon this state of facts, the circuit court gave judgment for the plaintiff in replevin; which judgment has been brought before this court by writ of error. \nThis cause has been argued very elaborately by counsel. It appears to the court to depend essentially on two questions. \n1. Was James Spratt a citizen of the United States? \n2. If he became a citizen, did the premises in the avowry mentioned pass to his alien relations who are his next of kin. \n1. The first question depends on the act of 1802, for establishing an uniform rule of naturalization. The act declares that an alien  may be admitted to become a citizen of the United States \"on the following conditions, and not otherwise.\" The act then prescribes four conditions, the three forst of which were applicable to James Spratt, and were literally observed. \nThe second section enacts, \"that in addition to the directions aforesaid, all free white persons, being aliens, who may arrive in the United States after the passing of this act, shall, in order to become citizens of the United States, make registry and obtain certificates in the following manner, to wit: every person desirous of being naturalized, shall, if of the age of twenty-one years, make report of himself, &c.\" The law then directs what the contents of the report shall be; orders it to be recorded, and that a certificate thereof shall be granted to the person making the report: \"which certificate shall be exhibited to the court by every alien who may arrive in the United States after the passing of this act, on his  application to be naturalized, as evidence of the time of his arrival  within the United States.\" \nAs James Spratt arrived within the United States after the passage of the act of 1802, he is embraced by the second  section of that act, and was under the necessity of reporting himself to the clerk, as that section requires. Must this report be made five years before he can be admitted as a citizen? \nThe law does not in terms require it. The third condition of the first section provides, \"that the court admitting such alien shall be satisfied that he has resided within the United States five years at least;\" but does not prescribe the testimony which shall be satisfactory. This section was in force when James Spratt was admitted to become a citizen, and was applicable to his case. But the second section requires, in addition, that he shall report himself in the manner preseribed by that section; and requires that such report shall be exhibited, \"on his application to be naturalized, as evidence of the time of his arrival within the United States.\" The law does not say that this report shall be the sole evidence, nor does it require that the alien shall report himself within any limited time after his arrival. Five years may intervene between his arrival and report, and yet the report will be valid. The report is undoubtedly conclusive evidence of the arrival, and must be so received by the  court; but if the law intended to make it the only admissible evidence, and to exclude the proof which had been held sufficient, that intention ought to have been expressed. Yet the inference is very strong from the language of the act, that the time of arrival must be proved by this report; and that a court, about to admit an alien to the rights of citizenship, ought to require its production. \nBut is it any thing more than evidence which ought indeed to be required to satisfy the judgment of the court, but the want of which cannot annul that judgment? The judgment has been rendered in a form which is unexceptionable. Can we look behind it, and inquire on what testimony it was pronounced? \n The act does not require that the report shall be mentioned in the judgment of the court, or shall form a part of the certificate of citizenship. The judgment and certificate are valid, though they do not allude to it. This furnishes reason for the opinion, that the act directed this report as evidence for the court; but did not mean that the act of admitting the alien to become a citizen should be subject to revision at all times afterwards, and to be declared a nullity, if the  report of arrival should not have been made five years previous to such admission. \nThe act of 1816, sec. 6, has, we think, considerable influence on this question. That act requires that the certificates of report and registry, required as evidence of the time of arrival in the United States, and of the declaration of intention to become a citizen, \"shall be exhibited by every alien, on his application to be admitted a citizen of the United States, who shall have arrived within the limits and under the jurisdiction of the United States since the 18th day of June 1812; and shall each be recited at full length in the record of the court admitting such alien; and any pretended admission of an alien, who shall have arrived within the limits and under the jurisdiction of the United States since the said 18th day of June 1812, to be a citizen, after the promulgation of this act, without such recital of each certificate at full length, shall be of no validity.\" \nJames Spratt arrived within the United States previous to the 18th day of June 1812, and is consequently not within the provisions of the act of 1816. \nThis act is not intended to explain the act of 1802, but to add to its provisions.  It prescribes that which the previous law did not require; and prescribes it for those aliens only who arrive within the United States after the 18th day of June 1812. It annuls the certificates of citizenship which may be granted to such aliens, without the requisite recitals; consequently, without this act, such certificates would have been valid. The law did not require the insertion of these recitals in the certificate of James Spratt. \nThe various acts upon the subject, submit the decision on the right of aliens to admission as citizens to courts of record.  They are to receive testimony, to compare it with the law, and to judge on both law and fact. This judgment is entered on record as the judgment of the court. It seems to us, if it be in legal form, to close all inquiry; and, like every other judgment, to be complete evidence of its own validity. \nThe inconvenience which might arise from this principle, has been pressed upon the court. But the inconvenience might be still greater, if the opposite opinion be established. It might be productive of great mischief, if, after the acquisition of property on the faith of his certificate, an individual might be exposed  to the disabilities of an alien, on account of an error in the court, not apparent on the record of his admission. We are all of opinion, that James Spratt became a citizen of the United States on the 11th of October 1821. \n2. Did the property mentioned in the avowry descend to his alien relations? \nSince aliens are incapable of taking by descent, the answer to this question depends on the enabling act of the state of Maryland in the year 1791. That act does not enable aliens who may come into the district of Columbia to transmit all real estate, however acquired, to their alien relations by descent; but such lands only as shall be thereafter acquired by deed or will. This is a qualification of the power, which cannot be disregarded. The words are not senseless; and would not, we must suppose, have been inserted, had they not been intended to operate. They limit the capacity of an alien to inherit from his alien ancestor residing within this district, to lands which he had taken by deed or will. It is not for us to weigh the reasons which induced the legislature to impose this limitation. It is enough for a court of justice to know that the legislature has imposed it, and that  it forms part of the law of the case. \nIf any equivalent act might be substituted for a deed, no such equivalent act can be found in this case. The auction at which this property was sold certainly took place while James Spratt was an alien; but that the sale was entirely conditional, and the purchase depended on the payment of  the instalments, on the confirmation of the court, and the final decree of the court. Before the first instalment became due, before even the report was returned to the court, James Spratt became a citizen. He did not, therefore, while an alien, hold this land by a deed or by any title equivalent to a deed. \nIn a controversy between the alien heirs of James Spratt and Sarah Spratt, 1 Peters, 343, this court determined that land which James Spratt took and held under the enabling act of Maryland, descended to his alien heirs, but, that land which he took and held as a citizen, did not pass to those heirs. \nThe lot mentioned in the avowry comes, we think, within the last description; and did not descent to the plaintiff in replevin. \nThe judgment of the circuit court is reversed, and the cause remanded, with directions to enter judgment for the  avowant. \n This cause came on to be heard on the transcript of the record from the circuit court of the United States for the district of Columbia, holden in and for the county of Washington, and was argued by counsel; on consideration whereof, it is ordered and adjudged by this court that the judgment of the said circuit court in this cause be, and the same is hereby reversed, and that this cause be, and the same is hereby remanded to the said circuit court with instructions to enter judgment in the said court for the avowant in said cause. \n \n\n ", " \nOpinion \n\n \n \n Mr Chief Justice MARSHALL said, that this was not like the case of several defendants, where a service on one might be good, though not on another. Here the service prescribed by the rule was to be upon the governor and upon the attorney general. A service on one was not sufficient to entitle the court to proceed against the state. \nMr Wirt then said, that he should be glad to have a day assigned to argue the point of jurisdiction, if the court chose, before another subpoena issued; as it might, if decided against the plaintiffs, prevent unnecessary expenses. He would be willing that it should be at so distant a day, as to enable the state of New York to appear and employ counsel. He mentioned three weeks from the day of the application. \nMr Chief Justice Marshall said, the court had no difficulty in assigning that day for the motion. It might be as well to give notice to the state of New York, as they might employ counsel in the interim. If, indeed, the argument should be merely  ex parte, the court would not feel bound by its decision; if the state of New York afterward desired to have the question again argued 1 . \n Motion granted, and notice directed. \n In conformity with the direction of the court, notice of the day appointed for hearing the motion for a subpoena was  forthwith served on the governor, and on the attorney general of the state of New York; and on the day assigned by the court, the 6th of March 1830, Mr Southard, attorney general of the state of New Jersey, and Mr Wirt, attended as counsel for the complainants. No counsel appeared for the state of New York. \nThe counsel for the state of New Jersey inquired of the court if they would hear an argument on the motion that a subpoena might issue to be served on the governor and attorney general of the state of New York, stating that they were willing and prepared to go into the same. \nMr Chief Justice MARSHALL said, as no one appears to argue the motion on the part of the state of New York, and the precedent for granting the process has been established upon very grave and solemn argument, in the case of Chisholm vs. The State of Georgia, 2 Dall. Rep. 419, and Grayson vs. The State of Virginia, 3 Dall. 320, the court do not think it proper to require an ex parte argument in favour of their authority to grant  the subpoena, but will follow the precedent heretofore established. \nThe court are the more disposed to adopt this course, as the state of New York will still be at liberty to contest the  proceeding at a future time in the course of the cause, if it shall choose to insist upon the objection. \nOn consideration of the motion made by Messrs Southard and Wirt, solicitors for the complainant in this cause, on Saturday the 13th day of February of the present term of this court, praying the court to postpone the consideration of this cause until Saturday the 6th of March of the present term of this court, with leave to the counsel for the said complainant on that day either to argue the point of jurisdiction, or to move the court for a decree in pursuance of the notice therein recited, or for new process in case the court should determine that the service of the process in this case was not sufficient to entitle the court to proceed against the state of New York, or for such other order as to the court may seem meet: it is considered by the court, that as no one appears to argue this motion on the part of the state of New York, and the precedent has been established in the case  of Chisholm's Executors against the State of Georgia, the court do not consider it proper to require an ex parte argument, but will follow the precedent so established after grave and solemn argument. The court is the more disposed to adopt this course, as the state of New York will be at liberty to contest this proceeding at any time in the course of the cause. Whereupon it is ordered by the court that, as the service of the former process in this cause was defective, inasmuch as it was not served sixty days before the return day thereof, as required by the rules of this court, process of subpoena be, and the same is hereby awarded as prayed for by the complainant 2 . \n \n \n\n ", " \nOpinion \n\n \n \n  Mr Chief Justice MARSHALL delivered the opinion of the Court. \nThe court is unanimously of opinion that the rule ought not to be granted. \nThis is not a case in which the judge has refused to sign a bill of exceptions. The judge has signed such a bill as he thinks correct. If the court had granted a rule upon the district judge to sign a bill of exceptions, the judge could have returned that he had performed that duty. But the object of the rule is, to oblige the judge to sign a particular bill of exceptions, which had been offered to him. The court granted the rule to show cause; and the judge has shown causes,  by saying he has done all that can be required from him; and that the bill offered to him is not such a bill as he can sign. \nNothing can be more manifest, than that the court cannot order him to sign such a bill of exceptions. The person who offers a bill of exceptions ought to present such a one as the judge can sign. The course to be pursued is, either to endeavour to draw up a bill, by agreement, which the judge can  sign; or to prepare a bill to which there will be no objection, and present it to the judge. \nThe court will observe, that there is something in this proceeding which they cannot, and which they ought not to sanction. A bill of exceptions is handed to the judge several weeks after the trial of the cause, and he is asked to correct it from memory. The law requires that a bill of exceptions should be tendered at the trial. But the usual practice is to request the judge to note down in writing the exceptions, and afterwards, during the session of the court, to hand him the bill of exceptions, and submit it to his correction from his notes. If he is to resort to his memory, it should be handed to him immediately, or in a reasonable time after the trial.  It would be dangerous to allow a bill of exceptions of matters dependent on memory, at a distant period, when he may not accurately recollect them. And the judge ought not to allow it. \nIf the party intends to take a bill of exceptions, he should give notice to the judge at the trial; and if he does not file it at the trial, he should move the judge to assign a reasonable time within which he may file it. A practice to sign it after the term must be understood to be a matter of consent between the parties, unless the judge has made an express order in the term, allowing such a period to prepare it. \nIt is ordered by the court that the mandamus as prayed for be, and the same is hereby refused; and that the rule heretofore granted in this cause be, and the same is hereby discharged. \n \n\n ", " \nOpinion \n\n \n \n  Mr Chief Justice MARSHALL delivered the opinion of the Court: Justices THOMPSON, JOHNSON, and M'LEAN dissenting. \nThis is a writ of error t a judgment rendered in the court of last resort, in the state of Missouri; affirming a judgment obtained by the state in one of its inferior courts against Hiram Craig and others, on a promissory note. \nThe judgment is in these words: \"and afterwards at a court,\" &c. \"the parties came into court by their attorneys, and, neither party desiring a jury, the cause is submitted to the court; therefore,  all and singular the matters and things being seen and heard by the court, it is found by them, that the said defendants did assume upon themselves, in manner and form, as the plaintiff by her counsel alleged. And the court also find, that the consideration for which the writing declared upon the assumpsit was made, was for the loan of loan office certificates, loaned by the state at her loan office at Chariton; which certificates were issued, and the loan made in the manner pointed out by an act of the legislature of the said state of Missouri, approved the 27th day of June 1821, entitled an act for the establishment of loan offices, and the acts amendatory and supplementary thereto: and the court do further find, that the plaintiff has sustained damages by reason of the non-performance of the assumptions and undertakings of them, the said defendants, to the sum of two hundred and thirty-seven dollars and seventy-nine cents, and do assess her damages to that sum. Therefore it is considered,\" &c. \nThe first inquiry is into the jurisdiction of the court. \nThe twenty-fifth section of the judicial act declares, \"that a final judgment or decree in any suit in the highest court of law  or equity of a state, in which a decision in the suit could be had, where is drawn in question\" \"the validity of a statute of, or an authority exercised under any state, on the ground of their being repugnant to the constitution, treaties or laws of the United States, and the decision is in favour of such their validity,\" \"may be re-examined, and reversed or affirmed in the supreme court of the United States.\" \nTo give jurisdiction to this court, it must appear  in the  record, 1. That the validity of a statute of the state of Missouri was drawn in question; on the ground of its being repugnant to the constitution of the United States. 2. That the decision was in favour of its validity. \n1. To determine whether the validity of a statute of the state was drawn in question, it will be proper to inspect the pleadings in the cause, as well as the judgment of the court. \nThe declaration is on a promissory note, dated on the 1st day of August 1822, promising to pay to the state of Missouri, on the 1st day of November 1822, at the loan office in Chariton, the sum of one hundred and ninety-nine dollars ninety-nine cents, and the two per cent, per annum, the interest  accruing on the certificates borrowed from the 1st of October 1821. This note is obviously given for certificates loaned under the act, \"for the establishment of loan offices.\" That act directs that loans on personal securities shall be made of sums less than two hundred dollars. This note is for one hundred and ninety-nine dollars ninety-nine cents. The act directs that the certificates issued by the state shall carry two per cent interest from the date, which interest shall be calculated in the amount of the loan. The note promises to repay the sum, with the two per cent interest accruing on the certificates borrowed, from the 1st day of October 1821. It cannot be doubted that the declaration is on a note given in pursuance of the act which has been mentioned. \nNeither can it be doubted that the plea of non assumpsit allowed the defendants to draw into question at the trial the validity of the consideration on which the note was given. Every thing which disaffirms the contract, every thing which shows it to be void, may be given in evidence on the general issue in an action of assumpsit. The defendants, therefore, were at liberty to question the validity of the consideration  which was the foundation of the contract, and the constitutionality of the law in which it originated. \nHave they done so? \nHad the cause been tried before a jury, the regular course would have been to move the court to instruct the jury that the act of assembly, in pursuance of which the note was given, was repugnant to the constitution of the United States;  and to except to the charge of the judges, if in favour of its varidity: or a special verdict might have been found by the jury, stating the act of assembly, the execution of the note in payment of certificates loaned in pursuance of that act; and referring its validity to the court. The one course or the other would have shown that the validity of the act of assembly was drawn into question, on the ground of its repugnancy to the constitution; and that the decision of the court was in favor of its validity. But the one course or the other, would have required both a court and jury. Neither could be pursued where the office of the jury was performed by the court. In such a case, the obvious substitute for an instruction to the jury, or a special verdict, is a statement by the court of the points in controversy,  on which its judgment is founded. This may not be the usual mode of proceeding, but it is an obvious mode; and if the court of the state has adopted it, this court cannot give up substance for form. \nThe arguments of counsel cannot be spread on the record. The points urged in argument cannot appear. But the motives stated by the court on the record for its judgment, and which form a part of the judgment itself, must be considered as exhibiting the points to which those arguments were directed, and the judgment as showing the decision of the court upon those points. There was no jury to find the facts and refere the law to the court; but if the court, which was substituted for the jury, has found the facts on which its judgment was rendered; its finding must be equivalent to the finding of a jury. Has the court, then, substituting itself for a jury, placed facts upon the record, which, connected with the pleadings, show that the act in pursuance of which this note was executed was drawn into question, on the ground of its repugnancy to the constitution? \nAfter finding that the defendants did assume upon themselves, &c. the court proceeds to find \"that the consideration for which  the writing declared upon and the assumpsit was made, was the loan of loan office certificates loaned by the state at her loan office a Chariton; which certificates were issued and the loan made, in the manner pointed out  by an act of the legislature of the said state of Missouri, approved the 27th of June 1821, entitled,\" &c. \nWhy did not the court stop immediately after the usual finding that the defendants assumed upon themselves? Why proceed to find that the note was given for loan office certificates issued under the act contended to be unconstitutional, and loaned in pursuance of that act; if the matter thus found was irrelevant to the question they were to decide? \nSuppose the statement made by the court to be contained in the verdict of a jury which concludes with referring to the court the validity of the note thus taken in pursuance of the act; would not such a verdict bring the constitutionality of the act, as well as its construction, directly before the court? We think it would: such a verdict would find that the consideration of the note was loan office certificates, issued and loaned in the manner prescribed by the act. What could be referred to the court  by such a verdict, but the obligation of the law? It finds that the certificates for which the note was given, were issued in pursuance of the act, and that the contract was made in conformity with it. Admit the obligation of the act, and the verdict is for the plaintiff; deny its obligation, and the verdict is for the defendant. On what ground can its obligation be contested, but its repugnancy to the constitution of the United States? No other is suggested. At any rate, it is open to that objection. If it be in truth repugnant to the constitution of the United States, that repugnancy might have been urged in the state, and may consequently be urged in this court; since it is presented by the facts in the record, which were found by the court that tried the cause. \nIt is impossible to doubt that, in point of fact, the constitutionality of the act, under which the certificates were issued that formed the consideration of this note, constituted the only real question made by the parties, and the only  real question decided by the court. But the record is to be inspected with judicial eyes; and, as it does not state in express terms that this point was made, it has  been contended that this court cannot assume the fact that it was made or determined in the tribunal of the state. \n The record shows distinctly that this point existed, and that no other did exist; the special statement of facts made by the court as exhibiting the foundation of its judgment contains this point and no other. The record shows clearly that the cause did depend, and must depend, on this point alone. If in such a case, the mere omission of the court of Missouri, to say, in terms, that the act of the legislature was constitutional, withdraws that point from the cause, or must close the judicial eyes of the appellate tribunal upon it; nothing can be more obvious, than that the provisions of the constitution, and of an act of congress, may be always evaded; and may be often, as we think they would be in this case, unintentionally defeated. \nBut this question has frequently occurred; and has, we think, been frequently decided in this court. Smith vs. The State of Maryland, 6 Cranch, 286. Martin vs. Hunter's Lessee, 1 Wheat. 355. Miller vs. Nicholls, 4 Wheat. 311. Williams vs. Norris, 12 Wheat. 117. Wilson and others vs. The Black Bird Creek Marsh Company, 2 Peters,  245, and Harris vs. Dennie in this term; are all, we think, expressly in point. There has been perfect uniformity in the construction given by this court to the twenty-fifth section of the judicial act. That construction is, that it is not necessary to state, in terms, on the record, that the constitution, or a treaty or law of the United States has been drawn in question, or the validity of a state law, on the ground of its repugnancy to the constitution. It is sufficient if the record shows that the constitution, or a treaty or law of the United States must have been construed, or that the constitutionality of a state law must have been questioned; and the decision has been in favour of the party claiming under such law. \nWe think, then, that the facts stated on the record presented the question of repugnancy between the constitution of the United States and the act of Missouri to the court for its decision. If it was presented, we are to inquire, \n2. Was the decision of the court in favour of its validity? \nThe judgment in favour of the plaintiff is a decision in favour of the validity of the contract, and consequently of  the validity of the law by the authority  of which the contract was made. \nThe case is, we think, within the twenty-fifth section of the judicial act, and consequently within the jurisdiction of this court. \nThis brings us to the great question in the cause: Is the act of the legislature of Missouri repugnant to the constitution of the United States? \nThe coursel for the plaintiffs in error maintain, that it is repugnant to the constitution, because its object is the emission of bills of credit contrary to the express prohibition contained in the tenth section of the first article. \nThe act under the authority of which the certificates loaned to the plaintiffs in error were issued, was passed on the 26th of June 1821, and is entitled \"an act for the establishment of loan offices.\" The provisions that are material to the present inquiry, are comprehended in the third, thirteenth, fifteenth, sixteenth, twenty-third and twenty-fourth sections of the act, which are in these words: \nSection the third enacts: \"that the auditor of public accounts and treasurer, under the direction of the governor, shall, and they are hereby required to issue certificates, signed by the said auditor and treasurer, to the amount of two hundred thousand  dollars, of denominations not exceeding ten dollars, nor less than fifty cents (to bear such devices as they may deem the most safe), in the following form, to wit: \"This certificate shall be receivable at the treasury, or any of the loan offices of the state of Missouri, in the discharge of taxes or debts due to the state, for the sum of $ , with interest for the same, at the rate of two per centum per annum from this date, the day of 182.\" \nThe thirteenth section declares: \"that the certificates of the said loan office shall be receivable at the treasury of the state, and by all tax gatherers and other public officers, in payment of taxes or other moneys now due to the state or to any county or town therein, and the said certificates shall also be received by all officers civil and military in the state, in the discharge of salaries and fees of office.\" \nThe fifteenth section provides: \"that the commissioners  of the said loan offices shall have power to make loans of the said certificates, to citizens of this state, residing within their respective districts only, and in each district a proportion shall be loaned to the citizens of each  county therein, according to the number thereof,\" &c. \nSection sixteenth. \"That the said commissioners of each of the said offices are further authorised to make loans on personal securities by them deemed good and sufficient, for sums less than two hundred dollars; which securities shall be jointly and severally bound for the payment of the amount so loaned, with interest thereon,\" &c. \nSection twenty-third. \"That the general assembly shall, as soon as may be, cause the salt springs and lands attached thereto, given by congress to this state, to be leased out, and it shall always be the fundamental condition in such leases, that the lessee or lessees shall receive the certificates hereby required to be issued, in payment for salt, at a price not exceeding that which may be prescribed by law: and all the proceeds of the said salt springs, the interest accruing to the state, and all estates purchased by officers of the said several offices under the provisions of this act, and all the debts now due or hereafter to be due to this state; are hereby pledged and constituted a fund for the redemption of the certificates hereby required to be issued, and the faith of the state is hereby  also pledged for the same purpose.\" \nSection twenty-fourth.\"That it shall be the duty of the said auditor and treasurer to withdraw annually from circulation, one-tenth part of the certificates which are hereby required to be issued,\" &c. \nThe clause in the constitution which this act  is supposed to violate is in these words: \"No state shall\" \"emit bills of credit.\" \nWhat is a bill of credit? What did the constitution mean to forbid? \nIn its enlarged, and perhaps its literal sense, the term \"bill of credit\" may comprehend any instrument by which a state engages to pay money at a future day; thus including a certificate given for money borrowed. But the language  of the constitution itself, and the mischief to be prevented, which we know from the history of our country, equally limit the interpretation of the terms. The word \"emit,\" is never employed in describing those contracts by which a state binds itself to pay money at a future day for services actually received, or for money borrowed for present use; nor are instruments executed for such purposes, in common language, denominated \"bills of credit.\" To \"emit bills of credit,\" conveys to the mind the idea  of issuing paper intended to circulate through the community for its ordinary purposes, as money, which paper is redeemable at a future day. This is the sense in which the terms have been always understood. \nAt a very early period of our colonial history, the attempt to supply the want of the precio is metals by a paper medium was made to a considerable extent; and the bills emited for this purpose have been frequently denominated bills of credit. During the war of our revolution, we were driven to this expedient; and necessity compelled us to use it to a most fearful extent. The term has acquired an appropriate meaning; and \"bills of credit\" signify a paper medium, intended to circulate between individuals, and between government and individuals, for the ordinary purposes of society. Such a medium has been always liable to considerable fluctuation. Its value is continually changing; and these changes, often great and sudden, expose individuals to immense loss, are the sources of ruinous speculations, and destroy all confidence between man and man. To cut up this mischief by the roots, a mischief which was feit through the United States, and which deeply affected the interest  and prosperity of all; the people declared in their constitution, that no state should emit bills of credit. If the prohibition means any thing, if the words are not empty sounds, it must comprehend the emission of any paper medium, by a state government, for the purpose of common circulation. \nWhat is the character of the certificates issued by authority of the act under consideration? What office are they to perform? Certificates signed by the auditor and treasurer of the state, are to be issued by those officers to the  amount of two hundred thousand dollars, of denominations not exceeding ten dollars, nor less than fifty cents. The paper purports on its face to be receivable at the treasury, or at any loan office of the state of Missouri, in discharge of taxes or debts due to the state. \nThe law makes them receivable in discharge of all taxes, or debts due to the state, or any county or town therein; and of all salaries and fees of office, to all officers civil and military within the state; and for salt sold by the lessees of the public salt works. It also pledges the faith and funds of the state for their redemption. \nIt seems impossible to doubt the intention  of the legislature in passing this act, or to mistake the character of these certificates, or the office they were to perform. The denominations of the bills, from ten dollars to fifty cents, fitted them for the purpose of ordinary circulation; and their reception in payment of taxes, and debts to the government and to corporations, and of salaries and fees, would give them currency. They were to be put into circulation; that is, emitted, by the government. In addition to all these evidences of an intention to make these certificates the ordinary circulating medium of the country, the law speaks of them in this character; and directs the auditor and treasurer to withdraw annually one-tenth of them from circulation. Had they been termed \"bills of credit,\" instead of \"certificates,\" nothing would have been wanting to bring them within the prohibitory words of the constitution. \nAnd can this make any real difference? Is the proposition to be maintained, that the constitution meant to prohibit names and not things? That a very important, act big with great and ruinous mischief, which is expressly forbidden by words most appropriate for its description; may be performed by the substitution  of a name? That the constitution, in one of its most important provisions, may be openly evaded by giving a new name to an old thing? We cannot think so. We think the certificates emitted under the authority of this act, are as entirely bills of credit, as if they had been so denominated in the act itself. \nBut it is contended, that though these certificates should be  deemed bills of credit, according to the common acceptation of the term, they are not so in the sense of the constitution; because they are not made a legal tender. \nThe constitution itself furnishes no countenance to this distinction. The prohibition is general. It extends to all bills of credit, not to bills of a particular description. That tribunal must be bold indeed, which, without the aid of other explanatory words, could venture on this construction. It is the less admissible in this case, because the same clause of the constitution contains a substantive prohibition to the enactment of tender laws. The constitution, therefore, considers the emission of bills of credit, and the enactment of tender laws, as distinct operations, independent of each other, which may be separately performed. Both  are forbidden. To sustain the one, because it is not also the other; to say that bills of credit may be emitted, if they be not made a tender in payment of debts; is, in effect, to expunge that distinct independent prohibition, and to read the clause as if it had been entirely omitted. We are not at liberty to do this. \nThe history of paper money has been referred to, for the purpose of showing that its great mischief consists in being made a tender; and that therefore the general words of the constitution may be restrained to a particular intent. \nWas it even true, that the evils of paper money resulted solely from the quality of its being made a tender, this court would not feel  itself authorised to disregard the plain meaning of words, in search of a conjectural intent to which we are not conducted by the language of any part of the instrument. But we do not think that the history of our country proves either, that being made a tender in payment of debts, is an essential quality of bills of credit, or the only mischief resulting from them. It may, indeed be the most pernicious; but that will not authorise a court to convert a general into a particular prohibition. \n We learn from Hutchinson's History of Massachusetts, vol. 1, p. 402, that bills of credit were emitted for the first time in that colony in 1690. An army returning unexpectedly from an expedition against Canada, which had proved as disastrous as the plan was magnificent, found the government  totally unprepared to meet their claims. Bills of credit were resorted to, for relief from this embarrassment. They do not appear to have been made a tender; but they were not on that account the less bills of credit, nor were they absolutely harmless. The emission, however, not being considerable, and the bills being soon redeemed, the experiment would have been productive of not much mischief, had it not been followed by repeated emissions to a much larger amount.The subsequent history of Massachusetts abounds with proofs of the evils with which paper money is fraught, whether it be or be not a legal tender. \nPaper money was also issued in other colonies, both in the north and south; and whether made a tender or not, was productive of evils in proportion to the quantity emitted. In the war which commenced in America in 1755, Virginia issued paper money at several successive  sessions, under the appellation of treasury notes. This was made a tender. Emissions were afterwards made in 1769, in 1771, and in 1773. These were not made a tender; but they circulated together; were equally bills of credit; and were productive of the same effects. In 1775 a considerable emission was made for the purposes of the war. The bills were declared to be current, but were not made a tender. In 1776, an additional emission was made, and the bills were declared to be a tender. The bills of 1775 and 1776 circulated together; were equally bills of credit; and were productive of the same consequences. \nCongress emitted bills of credit to a large amount; and did not, perhaps could not, make them a legal tender. This power resided in the states. In May 1777, the legislature of Virginia passed an act for the first time making the bills of credit issued under the authority of congress a tender so far as to extinguish interest. It was not until March 1781 that Virginia passed an act making all the bills of credit which had been emitted by congress, and all which had been emitted by the state, a legal tender in payment of debts. Yet they were in every sense of the word bills  of credit, previous to that time; and were productive of all the consequences of paper money. We cannot then assent to the proposition,  that the history of our country furnishes any just argument in favour of that restricted construction of the constitution, for which the counsel for the defendant in error contends. \nThe certificates for which this note was given, being in truth \"bills of credit\" in the sense of the constitution, we are brought to the inquiry: \nIs the note valid of which they form the consideration? \nIt has been long settled, that a promise made in consideration of an act which is forbidden by law is void. It will not be questioned, that an act forbidden by the constitution of the United States, which is the supreme law, is against law. Now the constitution forbids a state to \"emit bills of credit.\" The loan of these certificates is the very act which is forbidden. It is not the making of them while they lie in the loan offices; but the issuing of them, the putting them into circulation, which is the act of emission; the act that is forbidden by the constitution. The consideration of this note is the emission of bills of credit by the state.They very  act which constitutes the consideration, is the act of emitting bills of credit, in the mode prescribed by the law of Missouri; which act is prohibited by the constitution of the United States. \nCases which we cannot distinguish from this in principle, have been decided in state courts of great respectability; and in this court. In the case of the Springfield Bank vs. Merrick et al. 14 Mass. Rep. 322, a note was made payable in certain bills, the loaning or negotiating of which was prohibited by statute, inflicting a penalty for its violation. The note was held to be void. Had this note been made in consideration of these bills, instead of being made payable in them, it would not have been less repugnant to the statute; and would consequently have been equally void. \nIn Hunt vs. Knickerbocker, 5 Johns. Rep. 327, it was decided that an agreement for the sale of tickets in a lottery, not authorised by the legislature of the state, although instituted under the authority of the government of another state, is contrary to the spirit and policy of the law, and void. The consideration on which the agreement was founded being illegal, the agreement was void. The books, both of   Massachusetts and New York, abound with cases to the same effect. They turn upon the question whether the particular case is within the principle, not on the principle itself. It has never been doubted, that a note given on a consideration which is prohibited by law, is void. Had the issuing or circulation of certificates of this or of any other description been prohibited by a statute of Missouri, could a suit have been sustained in the courts of that state, on a note given in consideration of the prohibited certificates? If it could not, are the prohibitions of the constitution to be held less sacred than those of a state law? \nIt had been determined, independently of the acts of congress on that subject, that sailing under the license of an enemy is illegal. Patton vs. Nicholson, 3 Wheat. 204, was a suit brought in one of the courts of this district on a note given by Nicholson to Patton, both citizens of the United States, for a British license. The United States were then at war with Great Britain; but the license was procured without any intercourse with the enemy. The judgment of the circuit court was in favour of the defendant; and the plaintiff sued out a writ of error.  The counsel for the defendant  in error was stopped, the court declaring that the use of a license from the enemy being unlawful, one citizen had no right to purchase from or sell to another such a license, to be used on board an American vessel. The consideration for which the note was given being unlawful, it followed of course that the note was void. \nA majority of the court feels constrained to say that the consideration on which the note in this case was given, is against the highest law of the land, and that the note itself is utterly void. In rendering judgment for the plaintiff, the court for the state of Missouri decided in favour of the validity of a law which is repugnant to the constitution of the United States. \nIn the argument, we have been reminded by one side of the dignity of a sovereign state; of the humiliation of her submitting herself to this tribunal; of the dangers which may result from inflicting a wound on that dignity: by the other, of the still superior dignity of the people of the United States;  who have spoken their will, in terms which we cannot misunderstand. \nTo these admonitions, we can only answer: that if the exercise of  that jurisdiction which has been imposed upon us by the constitution and laws of the United States, shall be calculated to bring on those dangers which have been indicated: or if it shall be indispensable to the preservation of the union, and consequently of the independence and liberty of these states: these are considerations which address themselves to those departments which may with perfect propriety be influenced by them. This department can listen only to the mandates of law; and can tread only that path which is marked out by duty. \nThe judgment of the supreme court of the state of Missouri for the first judicial district is reversed; and the cause remanded, with directions to enter judgment for the defendants. \nThis cause came on to be heard on the transcript of the record from the supreme court of the state of Missouri, for the first judicial district, and was argued by counsel; on consideration whereof, this court is of opinion, that there is error in the rendition of the judgment of the said court in this, that in affirming the judgment rendered by the circuit court for the county of Chariton, that court has given an opinion in favour of the validity of the act of the  legislature of Missouri, passed on the 27th of June 1821, entitled \"an act for the establishment of loan offices,\" which act is, in the opinion of this court, repugnant to the constitution of the United States; whereupon it is considered by the court, that the said judgment of the said supreme court of the state of Missouri for the first judicial district ought to be reversed and annulled; and the same is hereby reversed and annulled; and the cause remanded to that court, with directions to enter judgment in favour of the defendant to the original action. \nDissent by:", " \nOpinion \n\n \n \n  Mr Chief Justice MARSHALL delivered the opinion of the Court. \nThis was an ejectment brought in the court of the United States for the western district of Virginia.The jury found a verdict for the plaintiffs, on which  the judgment of the court was rendered; which judgment has been brought to this court by writ of error. At the trial, three bills of exception were taken to opinions given by the court to the jury, and the cause depends on the correctness of these opinions. The first bill of exceptions is in substance; the plaintiffs at the trial of this cause produced a grant, (setting it forth in words and figures therein.) This grant is issued to John Young, dated the 10th of June 1786, for four thousand acres, bounded as follows: Beginning at a black oak corner to land entered by George Jackson, and running thence N. 3 deg. W. 1001 poles, crossing waters of Stone Coal creek to a beech, thence N 80 deg. E 641 poles, crossing a branch of said creek to a white oak S. 3 deg. E. 1001 poles, by lands surveyed for Thomas Laidley, to a white oak, and thence S. 80 deg. W. 660 poles, crossing waters by lands of said waters to the beginning. Also the plat and report of the surveyor, Thomas Haymond, made in this cause, in pursuance of an order, &c. The plaintiff also offered in evidence a number of entries of recent date, made by the defendant Stringer within the bounds of the tract of land designated  on said report as John Young's four thousand acres, being the land claimed by the plaintiffs; and attempted to prove by a witness, that Young, when  he made said entries, had heard of the plaintiffs' claim to the land in controversy.The defendants thereupon offered to introduce as evidence, official copies of entries made by other and third persons, since the date of the plaintiffs' grant, for the purpose of proving a general opinion that the lands contained in the report and diagram of the surveyor, made in this cause, were vacant at the date of such entries, and to disprove notice to Stringer of the identity of the plaintiffs' claim when he made the entries under which  the defendants claim; but the court declared its opinion to be that the said evidence was inadmissible, and rejected the same. \nThe testimony offered by the defendants was unquestionably irrelevant. Entries made subsequent to the plaintiffs' grant, whatever might be the impression under which they were made, could not possibly affect the title, and were therefore clearly inadmissible. This principle has never been controverted; but the plaintiffs in error insist that they had a right to introduce  this testimony, in order to rebut other equally irrelevant testimony which had been offered by the plaintiffs in ejectment. This testimony was the recent entries made by Stringer, and the witness who proved that at the time of making them, he had no notice of the plaintiffs' claim. This testimony was undoubtedly irrelevant, and had it been opposed, could not have been properly admitted. Had the defendant moved the court to instruct the jury that it must be utterly disregarded, that it must not be considered by them as testimony, and this instruction had been refused, the refusal to give it would have been error. The defendant, however, has not taken this course; but has chosen ro repel the testimony by other evidence, which was clearly inadmissible. Whether a case may exist in which improper testimony may be calculated to make such an impression on the jury that no instruction given by the judge can efface it, and whether in such a case testimony not otherwise admissible may be introduced, which is strictly and directly calculated to disprove it, are questions on which this court does not mean to indicate any opinion. It is unnecessary, because the testimony rejected by the court  is not of this character. Entries  made subsequent to the plaintiffs' grant by others, can have no tendency to disprove the evidence of notice by the defendant when his entries were made. \nThe second bill of exceptions is in these words. Upon the trial of this cause, the plaintiffs, in support of the issue on their part, introduced a grant to the lessor of the plaintiffs in the words and figures following: \"Patrick Henry, &c.\" The defendants thereupon offered to introduce the surveyor's book of Monongalia county, to prove no such survey had ever been returned to the office of said surveyor, and recorded in the book of said office; and further, offered to introduce evidence that Henry Fink, the deputy upon whose survey said grant purports to have issued, resided at the date of the said survey in Harrison county, and was not a deputy surveyor of Monongalia county. The defendants offered said evidence to prove the said grant issued without any survey having been made, and that the register of the land office issued said grant without proper authority, and that the same was therefore void. To the giving of which evidence the plaintiffs, by their counsel, objected, and the  court declared its opinion to be, that such evidence could not be given for the purposes aforesaid, and rejected the same. Whereupon the defendants, by their counsel, offered the same evidence to disprove the identify of the land contained in the plaintiffs' grant with that now claimed by the plaintiffs, and represented by the figure in the said surveyor's report. But the court declared its opinion to be, that the said evidence ought not to be received for the last mentioned purpose. \nIn rejecting this testimony, the court decided that the non appearance of the survey on which the grant of the plaintiffs had been issued on the book of the surveyor of Monongalia county, where it ought to have been recorded; and the fact that the person who made the survey was not at the time a deputy surveyor of Monongalia county, could not avoid the patent; and that the evidence of those facts was consequently inadmissible. \nThe land law of Virginia directs that within three months after a survey is made, the surveyor shall enter the plat and  certificate thereof in a book, well bound, to be provided by the court of his county, at the county charge. After prescribing this among other  duties, the law proceeds to enact, that any surveyor failing in any of the duties aforesaid, shall be liable to be indicted, &c. The law, however, does not declare that the validity of such survey shall depend in any degree on its being recorded. \nThe act also directs, that the surveyor \"shall, as soon as it can conveniently be done, and within three months at the farthest after making the survey, deliver to his employer or his order, a fair and true plat and certificate of such survey,\" &c. This plat and certificate is to be returned into the land office within twelve months at farthest. It may be returned immediately, and consequently may be returned to the land office before the expiration of the three months allowed to the surveyor for recording it in his book. This plat and certificate of survey is an authority to the register to issue a patent. \nThe surveyor undoubtedly neglects his duty, if he fails to record the plat and certificate of survey, and is punishable for this neglect; but the act furnishes no foundation for the opinion that the validity of the survey or of the patent is in any degree affected by it. \nThis point occurred in the case or Taylor vs. Brown, 2 Cranch,  234. That was a suit in chancery, brought by a junior patentee to establish an elder equitable title against the leder patent. Both claimed under old military surveys, made in virtue of military warrants, granted for services under the regal government, an entry of which with the surveyor was not required by law; consequently the survey was the foundation of a title to be asserted in a court of equity, against a title which was valid at law. The omission of any circumstance affecting his title was not, as in this case, cured by the patent. \nIn answer to the objection that the survey was not recorded within the time prescribed by the act of 1748, which contains a similar provision to that which is found in the present land law, the court said \"this section is merely directory to the surveyor. It does not make the validity of the survey  dependent on its being recorded, nor does it give the proprietor any right to control the conduct of the surveyor in this respect. His title, where it can commence without an entry, begins with the survey; and it would be unreasonable to deprive him of that title, by the subsequent neglect of an officer not appointed  by himself,  in not performing an act which the law does not pronounce necessary to his title, the performance of which he has not the means of coercing.\" We adhere to this opinion. \nThe circumstance that Fink, who is stated not to have resided at the time in Monongalia, nor to have been a deputy surveyor of that county, has also been considered as vitiating the patent. \nThe chief surveyor appoints deputies at his will, and no mode of appointment is prescribed. The survey made by his deputy is examined and adopted by himself, and is certified by himself to the register of the land office. He recognizes the actual surveyor as his deputy, in that particular transaction; and this, if it be unusual or irregular, cannot effect the grant. This point also appears to have been substantially decided in the case of Taylor vs. Brown. In that case Taylor's survey was made by Hancock Taylor, who was killed by Indians, so that he never returned the plat and certificate of survey to William Preston, the principal surveyor, as was required by law. His field notes, however, were brought to the principal surveyor, who made out a plat and certificate of survey from them. To the objection that the plat and certificate  not having been returned to the office, the survey was not completed, the court answered, \"this survey then is in law language made by William Preston. It is confirmed as a survey made by him. The law recognizes it as his survey. Assuredly then his certificate may authenticate it.\" \nIt cannot escape observation, that if these objections were properly overruled when urged in support of the legal title, against an equity dependent entirely on the survey; they can have no weight when urged against the validity of a patent which has been regularly issued in all the forms of law. \nIn Virginia, the patent is the completion of title, and establishes  the performance of every pre-requisite. No inquiry into the regularity of those preliminary measures which ought to precede it, is made in a trial at law. No case has shown that it may be impeached at law, unless it be for fraud; not legal and technical, but actual and positive, fraud in fact, committed by the person who obtained it; and even this is questioned. \nIn Hambledon et al. vs. Wells, reported in a note in 1 Hen. & Mumf. 307, the defendants in ejectment in the district court offered evidence to prove that the grant under  which the lessor claimed, was defective in several pre-requisites to a patent. The court of appeals overruled these objections; but determined \"that the district court erred in not permitting the appellants to give evidence that the appellee procured the plat on which the patent was obtained to be returned to the office, knowing that an actual survey had not been made.\" In this case the objectionable act was a fraud knowingly committed by the patentee himself. Even this case has been questioned; though not, as far as is known, expressly overruled. \nIn Witherington vs. M'Donald, 1 Hen. & Mumf. 306, the defendant in ejectment offered evidence to show that the survey upon which the plaintiff's patent was founded was illegal; and also that the patent was obtained upon a certificate signed by Charles Lewis, as clerk of the land office, instead of being signed by the register or his deputy, as is required by law. The defendant excepted to the opinion of the court rejecting this testimony, and appealed to the court of appeals. The judgment was unanimously affirmed in that court. In the course of the trial, the case of Hambledon vs. Wells was mentioned by several of the judges with disapprobation;  and it was said, that a single case decided by three judges against two, was not considered as conclusively settling the law. \nThe case of Hoofnagle vs. Anderson, 7 Wheat. 212, was a suit in chancery, brought to obtain a conveyance for a tract of land in the Virginia military reserve, in the state of Ohio, for which Anderson had obtained a patent. After its emanation, the plaintiff had located a military land warrant  on the same land, issued for services performed by an officer in the Virginia line, on continental establishment. The services performed by the officer on whose warrant Anderson's patent had been issued, were in the state line; though the warrant was expressed, by mistake, to be for services in the continental line. This court said, \"It is not doubted that a patent appropriates the land. Any defects in the preliminary steps which are required by law, are cured by the patent. It is a title from its date, and has always been held conclusive against all whose rights did not commence previous to its emanation.\" \nAfter the rejection of this testimony, when offered to defeat the patent, it was offered for the purpose of disproving that the land contained in  the patent was the same land claimed in the suit. The court rejected it when offered for this purpose also. \nIt is admitted to have been indispensably necessary to the plaintiffs' action, to show a valid title to the land in controversy; and that the defendants were at liberty to meet this testimony by any evidence tending in any degree to disprove this identity. But the defendants were not at liberty to offer evidence having no such tendency, but which might either effect a different purpose, or be wholly irrelevant. The question of its relevancy must be decided by the court; and any error in its judgment would be corrected by an appellate tribunal. \nNow this court cannot perceive that the omission of the surveyor to record the survey, or the fact that the survey was made by a person not a regular deputy, had any tendency to prove that the land described in the patent was not the land for which the suit was instituted. \nThe third exception stated that the plaintiffs had offered in evidence a grant as set forth in the second bill of exceptions, &c. The defendants thereupon offered in evidence a certified copy of an act of the assembly of Virginia, establishing the county of Harrison  in the words and figures following: \"An act for dividing, &c.\" and a copy of the certificate of survey on which said grant issued, in the words and figures following: \"December 13th 1784, &c.\" and proved  that the land purported to be granted, and the land claimed as having been surveyed, lay in the bounds of the county of Harrison, established as aforesaid; and therefore the defendants moved to instruct  the jury, that if they are satisfied, from the testimony, that the land lay in a different county from that in which the survey purports to have been made, that the grant was void; and that it was not competent for the plaintiffs to contradict the call for the county in the patent and survey; but the court then and there declared its opinion to the jury, that if even the facts aforesaid were true, they could not avail the defendants in the present action, and that the grant under these circumstances would not be void. \nThe warrant was entered for the land in controversy with the surveyor of Monongalia county on the 7th of April 1784. At the May session of that year the general assembly divided the county of Monongalia, and created a new county, to take effect  in July, by the name of Harrison. The land on which Young's warrant was entered lay in the new county. The certificate of survey is dated in December 1784, and, in accordance with the entry, states the land to lay in Monongalia. The grant conforms with the certificate. \nThe land law of Virginia enacts that warrants shall be lodged with the surveyor of the county in which the lands lie, and that the party shall direct the location thereof specially and precisely. It also enacts, that \"every chief surveyor shall proceed with all practicable dispatch to survey all lands entered for in his office.\" No provision is made for the division of a county between the entry and survey. The act establishing the county of Harrison, does not direct that the surveyor of the county of Monongalia shall furnish the surveyor of the new county with copies of the entries of lands lying in Harrison, and with the warrants on which they were made.In this state of things the survey was made under the authority of the surveyor of Monongalia, and the plat and certificate on which the patent afterwards issued were transmitted to the land office. It was not till the year 1788 that the legislature passed an  act on this subject, which directs that when any county shall be thereafter divided, the  surveyor of the new county shall be furnished with copies of the entries of all the surveyed lands lying in his county. \nIf in this uncertain state of the law, the surveyor of Monongalia county has surveyed an entry properly made in his office, for land which by a subsequent division of the county falls into Harrison, and has made his certificate as if the county still remained undivided; ought this error, if it be an error of the officer, to annul the patent, and deprive the un-offending patentee of his property? \nThe counsel for the plaintiffs in error has produced several cases to show that a mistake of this character in a royal grant, or any misinformation to the officers of the crown, will vitiate the instrument. We are not sure that grants which may be supposed to proceed from royal munificence, are to be placed precisely on the same footing with grants which are the completion of a contract of sale, every preliminary step in which is taken by officers appointed for the purpose by government, who act without the control of the purchaser. After making his location, he may show  the land located, but has nothing to do with the authority of the surveyor, or the language in which he may make out his plat and certificate of survey. In this case there could have been no imposition attempted on the government by the purchaser. The mistake is accounted for, and there can be no imputation on the intrinsic fairness of the transaction. The misnomer of the county might take place, as has been suggested at the bar, in a case in which all the proceedings were perfectly regular. Had the survey been made the day before the law dividing the county of Monongalia took effect, the plat and certificate of the surveyor must have stated the land to be in Monongalia. The patent could not have issued until six months afterwards, and must have stated the lands to lie in Monongalia; although at the time of its emanation they would in fact lie in Harrison. To say in such a case that the misnomer of the county could avoid the patent, would shock every sense of justice and of law too much to be maintained. This misnomer of the county then must admit of explanation; and if explanation can be received, the patent is not absolutely void. \n The circumstances on which the  motion to reject the grant was made, might be very proper for the consideration of the jury, on the question whether it comprehended the land in controversy; but do not, we think, destroy its validity. \nA vast deal of testimony, of which the court can take no notice, is crowded into this record. The bills of exceptions taken to the opinions of the district judge present the only points which we are at liberty to consider. In those opinions there is, we think, no error. The judgment is affirmed, with costs. \nThis cause came on to be heard on the transcript of the record from the district court of the United States for the district of West Virginia, and was argued by counsel; on consideration whereof, it is ordered and adjudged by this court, that the judgment of the said district court in this cause be, and the same is hereby affirmed with costs. \n \n\n ", " \nOpinion \n\n \n \n  Mr Chief Justice MARSHALL delivered the opinion of the Court. \nThe single question in this case is, whether the United States, or certain other creditors of the defendant, John Morrison, have the prior lien on lands of the said Morrison which have been conveyed to those creditors. \nIn October 1819, the United States obtained a judgment against John Morrison in the district court of Virginia, on  which a fieri facias issued. The goods taken in execution were restored to the debtor according to the law of Virginia, and a bond taken with a condition to have them  forthcoming on the day and place of sale. This bond being forfeited, an execution was awarded thereon by the judgment of the district court, on the 2d of April 1822. A fieri facias was issued on the second judgment, the return on which was, that the costs were made, and all further proceedings suspended by order of the agent of the treasury department. The conveyances under which the defendants claim were dated in February and March 1823. The United States contend that the judgment of April 1822 created a lien on these lands which overreaches these conveyances. \nThere is no statute in Virginia which, in express terms, makes a judgment a lien upon the lands of the debtor. As in England, the lien is the consequence of a right to take out an elegit. During the existence of this right, the lien is universally acknowledged. Different opinions seem at different times to have been entertained of the effect of any suspension of the right. \nThe statute concerning executions enacts, that \"all persons who have recovered or shall hereafter recover any debt, damages or costs in any court of record, may at their election prosecute writs of fieri facias, elegit, and capias ad satisfaciendum  within the year, for taking the goods, lands and body of the debtor.\" The third section provides that when any writ of execution shall issue, and the party at whose suit the same is issued shall afterwards desire to take out another writ of execution at his own proper costs and charges, the clerk may issue the same, if the first be not returned and executed; and where upon a capias ad satisfaciendum, the sheriff shall return that the defendant is not found, the clerk may issue a fieri facias, and he shall return that the party hath no goods, or that only part of the debt is levied, in such case it shall be lawful to issue a capias ad satisfaciendum on the same judgment; and where part of a debt shall be levied upon an elegit, a new elegit shall issue for the residue; and where nihil shall be returned upon any writ of elegit, a capias ad satisfaciendnm or fieri facias may issue, and so vice versa. \n By the construction put by the circuit court on this section, the party who had sued out a fieri facias could not resort to an elegit, until the remedy on the fieri facias was shown by the return to be exhausted. The United States had sued out a fieri facias on the judgment of  April 1822, and the remedy on that writ was not exhausted in February and March 1823, when the deeds of trust under which the defendants' claim were executed. In the opinion of that court, the United States could not, at the date of those deeds, have sued out an elegit. As the lien is the mere consequence of the right to take out an elegit, that court was of opinion that it did not overreach a conveyance made when this right was suspended. \nA case was soon afterwards decided in the court of appeals, in which this question on the execution law of the state was elaborately argued and deliberately decided. That decision is; that the right to take out an elegit is not suspended by suing out a writ of fieri facias, and consequently, that the lien of the judgment continues pending the proceedings on that writ. This court, according to its uniform course, adopts that construction of the act which is made by the highest court of the state. The decree therefore is to be reversed and annulled, and the cause remanded to the circuit court, that its decree may be reformed, as is required by this opinion. \nThis cause came on to be heard on the transcript of the record from the circuit court  of the United States for the fifth circuit, and district of East Virginia, and was argued by counsel; on consideration whereof, this court is of opinion, that the claim of the United States to the lands conveyed by the deeds of February and March 1823, under the lien created by their judgment of April 1822, ought to have been sustained, and that so much of the decree of the said circuit court as dismisses the original and amended bill of the plaintiffs, so far as it claims to charge the property conveyed by the deed of trust of the 14th of February, in the year 1823, from John Morrison to James A. Lane and William Ward, and by the deed of the 21st of February, in  the year 1823, from John Morrison to James W. Ford, and by the deed of the 9th of March, in the year 1823, from the said Morrison to Inman Horner, is erroneous, and ought to be reversed. This court doth therefore reverse the said decree, as to so much thereof, and doth remand the cause to the court of the United States for the fifth circuit and district of Virginia, with directions to reform the said decree so far as it is hereby declared to be erroneous, and to affirm the lien of the United States on the lands  in the said deed mentioned. All which is ordered and decreed accordingly. \n \n\n ", " \nOpinion \n\n \n \n  Mr Chief Justice MARSHALL delivered the opinion of the Court. \nThis is a  writ of error to a judgment of the court of the United States, for the first circuit and district of Massachusetts, in an action of replevin claiming the restitution of twenty-three cases of silks which had been attached at the suit of the United States, against George D'Wolf. The property was claimed by the plaintiff in replevin, under a deed dated on the 19th of November 1822, executed by George D'Wolf and John Smith, in which they acknowledged themselves to be severally indebted to the said James  D'Wolf, in large sums of money, and agreed, in consideration thereof, and in consideration of other advances to be made by the said James D'Wolf, to convey, and did convey, to the said James D'Wolf the ship Octavia, then lying in the port of New York nearly ready for sea, and the three brigs Quill, Arab, and Friendship, then actually at sea, their tackle, &c. and the proceeds and investments of their cargoes, &c. which said vessels and cargoes were the property of the said George D'Wolf and John Smith. To this conveyance a condition was annexed, that it should be void on the payment to James D'Wolf of the money which should be due to him; on the failure to pay which it should  be lawful for the said James D'Wolf, at any time or times, to enforce the pledge by process, and arrest of the premises or any part thereof in all courts or places whatsoever, and cause the same to be sold, and the proceeds to be applied in satisfaction of the moneys which may then be due from them, or either of them. The silks were part of the return cargo of one of these vessels. \nThe defendant pleaded that the said silks were not the property of the plaintiff, but of George D'Wolf and Smith; and justified the taking thereof, as marshal of the district, by virtue of a writ of attachment sued out of the court of the United States for the said district, in which suit the United States obtained judgment against the said George D'Wolf. \nAt the trial, the plaintiff proved his deed of assignment, that the silks were part of the proceeds of the cargoes of the ship Octavia and brig Arab, that he had used all proper means to take possession of them, and that they were attached by the defendant, as marshal, by virtue of process sued out by the United States. He also proved debts against George D'Wolf and John Smith, severally, on account of his advances for them, which were intended to be  secured by the deed of assignment, to a very large amount. \nThe defendant proved that the said silks were imported into the United States, consigned to George D'Wolf and John Smith, and that at the time of the importation of said silks, said George D'Wolf and John Smith were indebted to the United States in bonds given by them respectively for  duties which were then due and unpaid, to an amount much exceeding the value of the silks replevied. The defendant also proved, that at the time the deed of assignment was executed, the ship Octavia lay at New York, with her cargo on board, nearly ready for sea; but that possession was not delivered, nor were the bills of lading indorsed or delivered to the plaintiff. The cargoes were consigned to the several masters for sales and returns. \nMany other circumstances were given by the plaintiff in evidence, to show the fairness of the deed of assignment; which were met on the part of the defendant by other circumstances, on which he relied to show that in point of law it was fraudulent. These do not affect the opinions given by the circuit court, to which exceptions were taken; and therefore are not recited. \nAfter the testimony  was closed, the defendant's counsel moved the court to instruct the jury that the deed of assignment was fraudulent  as to creditors, and void. This instruction the court refused to give; but left it to the jury to determine upon all the evidence of the case, whether the said deed was executed with an intent to defraud or delay the creditors of the said George D'Wolf and John Smith, and if so executed, then the same was fraudulent, and void as to such creditors. \nAs the whole question of fraud was submitted to the jury, it is incumbent on the plaintiff in error, if he would support this exception, to show some defect in the deed itself, which makes it absolutely void as to creditors, whatever may be the fairness of intent with which it was executed. He relies on the fact, that possession of the Octavia was not delivered as making the deed of assignment absolutely void. \nThis question was decided upon full consideration in the case of Conard vs. The Atlantic Insurance Company, 1 Peters, 386, and this court is well satisfied with that opinion. \nThe counsel for the defendant also prayed the court to instruct the jury, that although the deed of assignment might be valid, it  could not transfer a right to the proceeds of the outward bound cargoes; which instruction the court refused to give. \n This question also is decided in the case of Conard vs. The Atlantic Insurance Company. \nThe counsel for the plaintiff also moved the court to instruct the jury, that the failure of George D'Wolf and John Smith to deliver to James D'Wolf the copies of the bills of lading which were in their possession, severally, when the bills of lading were executed, leaves the property subject to the attachment of creditors who had no notice of the deed.This instruction the court refused to give. \nIn the case of Conard vs. The Atlantic Insurance Company, the court determined that a deed of assignment, such as was executed in this case, was capable of transferring the right to the proceeds of the outward cargo as between the parties; of consequence such transfer gives the assignee a right to take those proceeds and hold them against any person but the consignee of the cargo, or person who is a purchaser from the consignee, without notice. These principles were settled in the case which has been already cited. \nThe counsel also moved the court to instruct the jury, that  if the consignees of the said silks were at the time indebted to the United States, on duty bonds remaining due and unpaid, then, that by virtue of the sixty-second section of the act for the collection of duties, passed the 2d of March 1799, the said goods were, as to the United States, the goods of the said consignees, notwithstanding the said deed, and in the legal custody of the said collector; and that the attachment in favour of the United States was good and sufficient to bar the action. \nThis instruction was refused. \nThis question was considered and determined in the case of Harris vs. Dennie, decided at this term. \nThe questions raised in this cause have all been decided in this court as they were decided by the circuit court. There is no error in the opinions to which exceptions have been taken; and the judgment of the circuit court is affirmed with costs. \n \n\n ", " \nOpinion \n\n \n \n Mr Chief Justice MARSHALL stated, \nThe court have held the two cases of Soulard and John T. Smith against the United States under advisement. After bestowing upon them the most deliberate attention, we are unable to form a judgment which would be satisfactory to ourselves, or which ought to satisfy the public. \nIn the treaty by which Louisiana was acquired, the United  States stipulated that the inhabitants of the ceded territory should be protected in the free enjoyment of their property. The United States, as a just nation, regard this stipulation as the avowal of a principle which would have been held equally sacred, though it had not been inserted in the contract \nThe term \"property,\" as applied to lands, comprehends every species of title inchoate or complete. It is supposed to embrace those rights which lie in contract; those which are executory; as well as those which are executed. In this respect  the relation of the inhabitants to their government is not changed. The new government takes the place of that which has passed away. \nIn the full confidence that this is the sentiment by which the government of the United States is animated, and which has been infused into its legislation, the court have sought sedulously for that information which would enable it to discern the actual rights of the parties; and to distinguish between claims founded on legitimate contracts with those authorised to make them on the part of the crown, or its immediate agents, and such as were entirely dependent on the mere pleasure of those who might be in power; such as might be rejected without giving just cause of imputation against the faith of those in office. The search has been unavailing. \nWhen Louisiana was transferred to the United States, very few titles to lands, in the upper part of that province especially, were complete. The practice seems to have prevailed for the deputy governor, sometimes the commandants of posts, to place individuals in possession of small tracts, and to protect that possession without further proceeding. Any intrusion on this possession produced a complaint to  the immediate supervising officer of the district or post, who inquired into it, and adjusted the dispute. The people seem to have remained contented with this condition. The colonial government, for some time previous to the cession, appears to have been without funds, and to have been in the habit of remunerating services with land instead of money. Many of these concessions remained incomplete. \n If the duty of deciding on these various titles is transferred by the government to the judicial department, the laws and principles on which they depend ought to be supplied. The edicts of the preceding governments in relation to the ceded territory; the powers given to the governors, whether expressed in their commissions, or in special instruction; and the powers conferred on and exercised by the deputy governors, and other inferior officers, who may have been authorised to allow the inception of title; are all material to a correct decision of the cases now before the court, and which may come before it. We cannot doubt the disposition of the government to furnish this information if it be attainable. We are far from being confident that it is attainable; but have determined  to hold the cases which have been argued under advisement until the next term, in the hope that, in the mean time, we may be relieved from the necessity of deciding conjecturally on interests of great importance. \nThe chief justice added: Since the determination which has been communicated had been agreed upon, the court has been informed that the edict of August the 24th 1770 is in the office of the secretary of state. \nHad that edict been sufficient for the decision of the court, they would have disposed of the cases at this term.But other information is required, which has been referred to in the opinion. It is therefore considered proper to hold the cases under advisement. \n \n\n ", " \nOpinion \n\n \n \n  Mr Chief Justice MARSHALL delivered the opinion of the Court. \nIn the case of the motion to amend the mandate, the court directs the amendment to be made, and the judgment of the court to be reformed, allowing interest at the  rate of six per cent. The reason is, that by a rule of this court, when there are no special circumstances, six per cent. interest is allowed upon the amount of the judgment in the court below; under special circumstances, damages to the amount of ten per cent. are awarded by the court. The omission is deemed by this court a mere clerical error. \nOn consideration of the motion made by Mr Vinton, of counsel for the defendants in error, in this cause, on a prior day of this term, to amend the judgment of this court rendered in this cause at the January term of this court  in the year of our Lord 1829: to wit, on the 14th day of February of the said last mentioned year, by giving to the defendants in error in said cause on said judgment damages at the rate of six per centum per annum: it is ordered and adjudged by this court that the said judgment of this court of February 14, A.D. 1829, be reformed by the amendment of damages at the rate of six per centum per annum, so that the judgment read thus: \"it is adjudged and ordered by this court that the judgment of the said circuit court in this case be, and the same is hereby affirmed, with costs and damages at the rate of six  per centum per annum. \n \n\n ", " \nOpinion \n\n \n \n  Mr Chief Justice MARSHALL. The court has had under its consideration the application of Mr Tillinghast for admission to this bar. \nThe court finds that he comes within the rules established  by this court. The circumstance of his having been stricken off the roll of counsellors of the district court of the northern district of New York, by the order of the judge of that court for a contempt, is one which the court do not mean to say was not done for sufficient cause, or that it is not one of a serious character; but this court does not consider itself authorised to punish here for contempts which may have been committed in that court. \nWhen, on a former occasion, a mandamus was applied for to restore Mr Tillinghast to the roll of counsellors of the district  court, this court refused to interfere with the matter; not considering the same within their cognizance. \nThe rules of this court having been in every respect complied with, Mr Tillinghast must be admitted a counsellor of this court. \nOn consideration of the motion made by Mr Hoffman, it is ordered by the court that John L. Tillinghast, Esq. of the state of New York, be admitted as an attorney and counsellor of this court, and he was sworn accordingly. \n \n\n ", " \nOpinion \n\n \n \n  Mr Chief Justice MARSHALL delivered the opinion of the Court. \nThis was an action of trespass vi et armis, brought by the plaintiff against the defendant, in the circuit court for the county of St Louis, in the state of Missouri, for the purpose of trying the right of the plaintiff to freedom. \nThe general issue was pleaded, and a verdict found for the defendant. The judgment on this verdict was carried by appeal to the supreme court for the third judicial district, where it was affirmed. This judgment has been brought into this court by writ of error. \nThe pleadings do not show that any act of congress was drawn into question; but the counsel for the plaintiff has read a petition for a rehearing, which sets forth a claim to freedom, under  the ordinance of congress, passed on the 13th of July 1787, for the government of the territory of the United States north west of the river Ohio. But as a petition for rehearing forms no part of the record, it cannot be noticed. The jurisdiction of the court depends on the matter disclosed in the bill of exceptions. \nAt the trial, the plaintiff proved that Pascal Carre, in 1816, was desirous of selling the plaintiff, who was then his slave, and the defendant wished to purchase him. The offer of the defendant was declined, because the witness was  desirous of selling the slave to some person who would take him out of St Louis. Some time afterwards he sold the slave to Pierre Menard, a resident of Kaskaskias, in the state of Illinois, for the sum of five hundred dollars. \nPierre Menard deposed that some time in the year 1816, Pascal Carre offered to sell the plaintiff to him; which proposition was rejected, because he resided in Illinois, where slavery was not tolerated. On understanding that the defendant was desirous of purchasing a slave, the witness informed him that Mr Carre had one for sale; but the defendant replied that Carre would not sell the slave to him,  because he resided in St Louis. It was suggested by Mr Berthold that the witness might purchase the slave for Mr Chouteau; which witness declined doing, because it would be treating his friend Carre incorrectly. He, however, ultimately agreed to buy the said slave for Mr Chouteau, take him down the river, and keep him there some months, and then deliver him to the defendant. He accordingly bought the slave, took him to St Genevieve in Missouri, and put him to work at mine La Motte, with some other hands. Some time afterwards he was sent to Kaskaskias, and put on board a keel boat as a hand. After remaining there about two days, he went in the boat to New Orleans, whence he returned to Kaskaskias about the 30th of March 1817, as a hand in the boat. After remaining a few days for the purpose of unlading the boat, he was sent in her to the Big Swamp in Girardeau county, state of Missouri, where he remained five or six weeks; after which he returned in the boat to Kaskaskias, from which place, after two or three days, he was sent to St Louis, and delivered to the defendant, who returned to the witness the five hundred dollars he had advanced for him. The witness stated that he purchased  the said slave for the defendant, and not for himself, and that he never intended to make Kaskaskias the place of his (the slave's) residence. Some other testimony substantially proving the same fact was introduced  by the parties. Upon this testimony the plaintiff's counsel moved the court to instruct the jury. \n1. That if they shall be of opinion that the plaintiff remained in the state of Illinois with the person who purchased  him, and who was a resident of the said state, they must find for the plaintiff. This instruction was refused. \n2. That the right of the plaintiff to his freedom is not affected by any secret trust or understanding between the person who purchased and brought him to Illinois and any other person whatsoever. This also was refused. \n3. That if the jury shall be of opinion that the plaintiff was, during any time, lawfully a resident of the state of Illinois, and in the service of a citizen of that state, claiming property in, and owner of the said plaintiff, they shall find for the plaintiff. This instruction was given. \n4. That if the jury shall be of opinion that the plaintiff was sold absolutely by a citizen of the state of Missouri  to a citizen of the state of Illinois, and belonged under such sale to such purchaser; no secret understanding between said purchaser and a third person shall affect the rights which the plaintiff may otherwise have to his liberty, as a consequence of his residence in the state of Illinois. The court refused to give this instruction as asked; but did instruct the jury, that if they believed the plaintiff was bought by colonel Menard for his own use, and taken to Illinois and kept there with the intention to make that his permanent place of residence, they ought to find for the plaintiff. \nThe counsel for the plaintiff excepted to the opinions given by the court, and to its refusal to give those which were asked. \nThe right of the plaintiff to liberty was supposed by the court to depend on the question of his being purchased in fact by a citizen of Illinois, and on his being carried to Illinois with a view to a residence in that state. The facts were left to the jury, and found for the defendant. It is not perceived that any act of congress has been misconstrued. The court is therefore of opinion that it has no jurisdiction of the case. \nThe writ of error is dismissed; and the cause  remanded to the supreme court for the third judicial district of Missouri, that the judgment may be affirmed. \n \n\n ", " \nOpinion \n\n \n \n  Mr Chief Justice MARSHALL delivered the opinion of the Court. \nThis is a writ of error to a judgment rendered in the highest court for the state of Rhode Island, in an action of trespass brought by the plaintiff in error against the defendant. \nIn November 1791 the legislature of Rhode Island grant-a charter of incorporation to certain individuals, who had associated themselves together for the purpose of forming a banking company. They are incorporated by the name of the \"President, Directors, and Company of the Providence Bank;\" and have the ordinary powers which are supposed to be necessary for the usual objects of such associations. \nIn 1822 the legislature of Rhode Island passed \"an act imposing a duty  on licensed persons and others, and bodies corporate within the state;\" in which, among other things, it is enacted that there shall be paid, for the use of the state, by each and every bank within the state, except the Bank of the United States, the sum of fifty cents on each and every thousand dollars of the capital stock actually paid in.\" This tax was afterwards augmented to one dollar and twenty-five cents. \nThe Providence Bank, having determined to resist the payment of this tax, brought an action of trespass against the officers by whom a warrant of distress was issued against and served upon the property of the bank, in pursuance of the law. The defendants justify the taking set out in the declaration under the act of assembly imposing the tax; to which plea the plaintiffs demur, and assign for cause of demurrer that the act is repugnant to the constitution of the United States, inasmuch as it impairs the obligation of the contract created by their charter of incorporation. Judgment  was given by the court of common pleas in favour of the defendants; which judgment was, on appeal, confirmed by the supreme judicial court of the state: that judgment has been brought  before this court by a writ of error. \nIt has been settled that a contract entered into between a state and an individual, is as fully protected by the tenth section of the first article of the constitution, as a contract between two individuals; and it is not denied that a charter incorporating a bank is a contract. Is this contract impaired by taxing the banks of the state? \nThis question is to be answered by the charter itself. \nIt contains no stipulation promising exemption from taxation. The state, then, has made no  express contract which has been impaired by the act of which the plaintiffs complain. No words have been found in the charter, which, in themselves, would justify the opinion that the power of taxation was in the view of either of the parties; and that an exemption of it was intended, though not expressed. The plaintiff's find great difficulty in showing that the charter contains a promise, either express or implied, not to tax the bank. The elaborate and ingenious argument which has been urged amounts, in substance, to this. The charter authorises the bank to employ its capital in banking transactions, for the benefit of the stockholders. It binds  the state to permit these transactions for this object. Any law arresting directly the operations of the bank would violate this obligation, and would come within the prohibition of the constitution. But, as that cannot be done circuitously which may not be done directly, the charter restrains the state from passing any act which may indirectly destroy the profits of the bank. A power to tax the bank may unquestionably be carried to such an excess as to take all its profits, and still more than its profits for the use of the state; and consequently destroy the institution. Now, whatever may be the rule of expediency, the constitutionality of a measure depends, not on the degree of its exercise, but on its principle. A power therefore which may in effect destroy the charter, is inconsistent with it; and is impliedly renounced by granting it. Such a power cannot be exercised without impairing  the obligation of the contract. When pushed to its extreme point, or exercised in moderation, it is the same power, and is hostile to the rights granted by the charter. This is substantially the argument of the bank. The plaintiffs cite and rely on several sentiments expressed,  on various occasions by this court, in support of these positions. \nThe calim of the Providence Bank is certainly of the first impression. The power of taxing moneyed corporations has been frequently exercised; and has never before, so far as is known, been resisted. Its novelty, however, furnishes no conclusive argument against it. \nThat the taxing power is of vital importance; that it is essential to the existence of government; are truths which it cannot be necessary to reaffirm. They are acknowledged and asserted by all. It would seem that the relinquishment of such a power is never to be assumed. We will not say that a state may not relinquish it; that a consideration sufficiently valuable to induce a partial release of it may not exist: but as the whole community is interested in retaining it undiminished; that community has a right to insist that its abandonment ought not to be presumed, in a case in which the deliberate purpose of the state to abandon it does not appear. \nThe plaintiffs would give to this charter the same construction as if it contained a clause exempting the bank from taxation on its stock in trade. But can it be supposed that such a clause would not  enlarge its privileges? They contend that it must be impled; because the power to tax may be so wielded as to defeat the purpose for which the charter was granted. And may not this be said with equal truth of other legislative powers? Does it not also apply with equal force to every incorporated company? A company may be incorporated for the purpose of trading in goods as well as trading in money. If the policy of the state should lead to the imposition of a tax on unincorporated companies, could those which might be incorporated claim an exemption, in virtue of a charter which does not indicate such an intention? The time may come when a duty may be imposed on  manufactures. Would an incorporated company be exempted from this duty, as the mere consequence of its charter? \nThe great object of an incorporation is to bestow the character and properties of individuality on a collective and changing body of men. This capacity is always given to such a body. Any privileges which may exempt it from the burthens common to individuals, do not flow necessarily from the charter, but must be expressed in it, or they do not exist. \nIf the power of taxation is inconsistent with  the charter, because it may be so exercised as to destroy the object for which the charter is given; it is equally inconsistent with every other charter, because it is equally capable of working the destruction of the objects for which every other charter is given. If the grant of a power to trade in money to a given amount, implies an exemption of the stock in trade from taxation, because the tax may absorb all the profits; then the grant of any other thing implies the same exemption; for that thing may be taxed to an extent which will render it totally unprofitable to the grantee. Land, for example, has, in many, perhaps in all the states, been granted by government since the adoption of the constitution. This grant is a contract, the object of which is that the profits issuing from it shall enure to the benefit of the grantee. Yet the power of taxation may be carried so far as to absorb these profits. Does this impair the obligation of the contract? The idea is rejected by all; and the proposition appears so extravagant, that it is difficult to admit any resemblance in the cases. And yet if the proposition for which the plaintiffs contend be true, it carries us to this point.  That proposition is, that a power which is in itself capable of being exerted to the total destruction of the grant, is inconsistent with the grant; and is therefore impliedly relinquished by the grantor, though the language of the instrument contains no allusion to the subject. If this be an abstract truth, it may be supposed universal. But it is not universal; and therefore its truth cannot be admitted, in these broad terms, in any case. We must look for the exemption in the language of the instrument; and if we do  not find it there, it would be going very far to insert it by construction. \nThe power of legislation, and consequently of taxation, operates on all the persons and property belonging to the body politic. This is an original principle, which has its foundation in society itself. It is granted by all, for the benefit of all. It resides in government as a part of itself, and need not be reserved when property of any description, or the right to use  it in any manner, is granted to individuals or corporate bodies.However absolute the right of an individual may be, it is still in the nature of that right, that it must bear a portion of the public  burthens; and that portion must be determined by the legislature. This vital power may be abused; but the constitution of the United States was not intended to furnish the corrective for every abuse of power which may be committed by the state governments. The interest, wisdom, and justice of the representative body, and its relations with its constituents, furnish the only security, where there is no express contract, against unjust and excessive taxation; as well as against unwise legislation generally. This principle was laid down in the case of M'Cullough vs. The State of Maryland, and in Osborn et al. vs. The Bank of the United States. Both those cases, we think, proceeded on the admission that an incorporated bank, unless its charter shall express the exemption, is no more exempted from taxation, than an unincorporated company would be, carrying on the same business. \nThe case of Fletcher vs. Peck has been cited; but in that case the legislature of Georgia passed an act to annul its grant. The case of the State of New Jersey vs. Wilson has been also mentioned; but in that case the stipulation exempting the land from taxation, was made in express words. \nThe reasoning of  the court in the case of M'Cullough vs. The State of Maryland has been applied to this case; but the court itself appears to have provided against this application. Its opinion in that case, as well as in Osborn et al. vs. The Bank of the United States, was founded, expressly, on the supremacy of the laws of congress, and the necessary consequence of that supremacy to exempt its instruments employed  in the execution of its powers, from the operation of any intefering power whatever. In reasoning on the argument that the power of taxation was not confined to the people and property of a state, but might be exercised on every object brought within its jurisdiction, this court admitted the truth of the proposition; and added, that \"the power was an incident of sovereignty, and was co-extensive with that to which it was an incident. All powers the court said, over which the sovereign power of a state extends, are subjects of taxation. The sovereignty of a state extends to every thing which exists by its own authority, or is introduced by its permission; but does it extend to those means which are employed by congress to carry into execution powers conferred on that body  by the people of the United States? We think not. \nSo in the case of Osborn vs. The Bank of the United States, the court said, \"the argument\" in favour of the right of the state to tax the bank, \"supposes the corporation to have been originated for the management of an individual concern, to be founded upon contract between individuals, having private trade and private profit for its great end and principal object. \nIf these premises were true, the conclusion drawn from them would be inevitable. This mere private corporation, engaged in its own business, would certainly be subject to the taxing power of the state as any individual would be.\" \nThe court was certanly not discussing the question whether a tax imposed by a state on a bank chartered by itself, impaired the obligation of its contract; and these opinions are not conclusive as they would be had they been delivered in such a case: but they show that the question was not considered as doubtful, and that inferences drawn from general expressions pointed to a different subject cannot be correctly drawn. \nWe have reflected seriously on this case, and are of opinion that the act of the legislature of Rhode Island, passed in 1822,  imposing a duty on licensed persons and others, and bodies corporate within the state, does not impair the obligation of the contract created by the charter granted to the  plaintiffs in error. It is therefore the opinion of this court, that there is no error in the judgment of the supreme judicial court for the state of Rhode Island, affirming the judgment of the circuit court in this case; and the same is affirmed; and the cause is remanded to the said supreme judicial court, that its judgment may be finally entered. \nThis cause came on to be heard on the transcript of the record from the supreme judicial court of the state of Rhode Island and Providence plantations, and was argued by counsel; on consideration whereof, it is ordered and adjudged by this court, that the judgment of the said supreme judicial court in this cause be, and the same is hereby affirmed, with costs. \n \n\n ", " \nOpinion \n\n \n \n  Mr Chief Justice MARSHALL delivered the opinion of the Court. \nThis is  an action on the case brought by Adam Lynn as executor of John Wise, for the use of Thomas C. Lyles and others, against William Yeaton, in the circuit court of the  United States, sitting in the county of Alexandria. The declaration contains two counts; one for money paid by the plaintiff Lynn, as executor for the use of the defendant, and the other on an account settled by the said plaintiff, as executor, with the defendant for money due by the defendant to the plaintiff as executor, as aforesaid. \nThe course was tried on the issue of non assumpsit, and the jury found a verdict for the plaintiff below, subject to the opinion of the court on a case agreed. Judgment was given for the plaintiff, and the then defendant has brought that judgment before this court by a writ of error. \nThe case agreed is in the words following. \nThe plaintiff to support the issue on his part gave evidence to prove that John Wise the testator, in his life time, had indorsed a note as security for the defendant to one Robert Young, for the sum of -, upon which note judgment was obtained by said Young against such drawer and indorser, and execution of one of the said judgments being levied  upon the goods, &c. of the defendant, he gave a forthcoming bond with the said testator as his security in such bond, upon which bond judgment was regularly entered against principal and security in the life time of testator. The plaintiff then produced and read in evidence to the jury, the proceedings in two chancery causes, the one by the said Robert Young against the said Adam Lynn et al; the other by the bank of Alexandria, against the same defendants, thereto annexed. And the plaintiff in order to show that the decree in the first of the said chancery cases had been paid and satisfied by the plaintiff, by way of a discount between him and the said Young, gave evidence to prove that the plaintiff had indorsed a note as security for said Young, discounted for his said Young's use in the branch bank of the United States, upon which note the said bank had recovered judgment against the said Young for three hundred dollars with interest, from the 4th of March 1817, till paid, and costs. The said note and judgment had been taken up by plaintiff, as security for said Young, on the 24th of March 1820, and thereupon assigned over to the plaintiff; and that the said Robert Young, by  way of indemnity and payment to the plaintiff, assigned over to him the said judgment obtained by Young against the defendant and all his claims and remedies,  &c. upon the estate of the testator, as by a short copy of the said judgment and assignment indorsed thereon thereunto annexed. That the plaintiff before the institution of the said suits in chancery, and after the death of the testator, had sold out sufficient of the stocks mentioned in the said deed, to pay the said debt due the said Young; but without any reference to the said suits or to the said Young's claim, nor for the purpose of satisfying any creditor of the testator; and, at the time of the institution of said suits, had the money in his hands proceeding from such sales, which money he has retained as against such of the cestuis que trust named in the said deed as are named as equitable plaintiffs in this case; that the will of the said John Wise was duly proved and recorded in the orphans' court, and letters testamentary thereon duly granted to the plaintiff, and other proceedings relative there to therein had, as appeared by the annexed transcript of proceedings in the orphan's court, and that the said  bank of Alexandria recovered judgment of the plaintiff, as appeared by the annexed record of he said judgment to bind assets. \nAnd it is agreed that the verdict to be rendered in this cause shall be subject to the opinion of the court, whether the plaintiff is entitled to recover in this action for so much of the assets which the said deed purports to convey in trust, as has been appropriated under the said decree in manner aforesaid, to satisfy the said debt due to the said Robert Young, and discounted with the plaintiff as aforesaid. \nThe judgment which was obtained by Robert Young, against John Wise, in his life time and William Yeaton, the defendant, is stated in the case agreed to have been for the proper debt of the defendant, for which John Wise was surety. This debt has never been paid by the defendant, and was not paid by John Wise in his life time. \nAfter this judgment William Yeaton became insolvent; and John Wise sold his real estate in Alexandria, and invested the proceeds in bank stock, in the name of Adam Lynn, the plaintiff; after which he executed a declaration of trust in favour of his children and grandchildren, and departed this life, having first made his last  will and testament of which he appointed the plaintiff executor, who took upon himself the execution thereof. \n The chancery causes mentioned in the case agreed were instituted in July 1818, for the purpose of setting aside as fraudulent with respect to creditors, this deed to Adam Lynn the plaintiff, and for obtaining payment of the debt due to the plaintiffs respectively, out of that fund. The court, in July 1824, decreed that the deed of trust be annulled and vacated, so far as respects the complainants, and  that the said Adam Lynn do sell and dispose of so much of the trust fund as will satisfy and pay to the complainants their debt aforesaid with interest and costs. The case shows that previous to this decree, on the 24th of March 1820, the plaintiff had paid this judgment obtained by Young against Yeaton, with Wise as his surety; and that he had sold a sufficient quantity of the stock standing in his name to meet the claim, the proceeds of which sale he held in his hands at the time the debt was paid to Young. \nIt is obvious that the debt due from Yeaton, the defendant, to Young, for which Wise was surety, has been paid out of the estate of Wise. Consequently,  that estate has an unquestionable claim on Yeaton for the amount paid. The judgment rendered by the circuit court in favour of Adam Lynn, who was both executor and trustee of John Wise, is resisted on the ground that he has sued as executor, though he paid the money either on his private account or as trustee. \nThe bill in chancery on which all the proceedings between Wise and Lynn were annulled, so far as respected this debt, and by the decree on which Adam Lynn was directed to pay the sum due to Robert Young, states that Lynn was both executor and trustee. The executor and trustee were both necessary parties to the suit, and had they been distinct persons must both have been brought before the court. The two characters being united in the same person and that person being directed to execute the decree, it would seem reasonable to presume that he acted in the character in which he ought to perform the particular act, especially if it be necessary to give the act its full effect, and to make it rightful. \nThe trust property had been sold in anticipation of the decree, and the money retained by the trustee and executor. When the investment in the name of Lynn, and the declaration  of trust, were vacated and declared void, so far as respected  this debt, the money into which the trust property had been converted, and which remained in the hands of Wise's executor, became a part of Wise's estate, and consequently were assets subject to this debt. The payment of this money to Robert Young was rightful if made by the executor; and being part of the funds of the estate ought to enure to the benefit of the estate. We think, therefore, that the action is sustainable in the name of the executor. \nThe form in which the question on the case is submitted to the court, strengthens this opinion. It assumes that the money for which the suit was brought composed a part of the assets, and had been appropriated under the decree of the court to satisfy the debt due to Robert Young. \nThe plaintiff in error further contends, that this judgment ought to be reversed, because the letters testamentary granted to Adam Lynn were revoked by the orphan's court of Alexandria, before it was rendered. \nThe powers of the orphan's court of Alexandria are made by act of congress identical with the powers of an orphan's court under the laws of Maryland. It is a court of limited  jurisdiction, and is authorized to revoke letters testamentary in two cases: a failure to return an inventory; or to account. The proceedings against Adam Lynn were not founded on either of these omissions. A petition was filed by his sureties, stating their apprehension of loss from their suretyship, and praying that the proper measures might be taken for their relief. The appropriate remedy given by the law in such case, is to require counter security, and, on the failure of the executor to give it, to take the estate out of his hands and place it in the hands of his sureties. The statute forbids the judge to exercise any implied power. On the failure of the executor in this case to give counter security, the judge, instead of making the order prescribed by the act, revoked the letters testamentary. Some of the judges are of opinion that the orphan's court transcended its powers, and that the judgment of revocation is void. It is unnecessary to decide this point, because we are all of opinion that, as the issue tried by the jury was on the plea of non assumpsit; as the plaintiff was incontestably executor when this suit was brought and when that issue was joined, and could  rightfully maintain this action;  as the revocation of the executorship was not brought before the court by a plea since the last continuance, as it might have been; the defendant is to be considered as waving the defence, and resting his cause on the general issue. There is the more reason for supposing that the defendant Yeaton made this election, because a plea since the last continuance waves the issue previously joined, and puts the cause on that plea. It is also remarkable that the case agreed states expressly that letters testamentary were granted to Adam Lynn, but does not state the revocation of those letters. the proceedings of the orphan's court are referred to generally. \nIt is not doubted that this revocation might have been pleaded, and we think it ought to have been pleaded, in order to bring the fact judicially to the view of the circuit court. It ought to appear upon the record that judgment was given against the plaintiff in that court, because he was no longer executor of John Wise; and not because the defendant was not indebted to the estate of Wise, and had not made the assumpsit mentioned in the declaration. \nThe rule is general, that a plea in  bar admits the ability of the plaintiff to sue; and, if the parties go to trial on that issue, the presumption is reasonable that this admission continues. \nIn principle this case is not unlike a suit brought by an administrator, during the minority of the executor. His power as administrator is determined when the executor has attained his full age; and the fact that he has not attained his full age must be averred in the declaration. But if this averment be omitted, and the defendant pleads in bar, he admits the ability of the plaintiff to sue, and the judgment is not void. 5 Com. Dig. title Plead. 2 D. 10, 267. The inference that he could not be permitted to give this fact in evidence is very strong. \nA distinction seems to be taken between an action brought by a person who has no right to sue, and an action brought by a person capable of suing at the time, but who becomes incapable  while it is depending. In the first case the plaintiff may be non suited at the trial; in the last the disability must be pleaded. 1 Chitty on Pleading, 437, Am. Ed. 319. 4 T. R. 361. 3 T. R. 631. \nThe rule is, that \"when matter of defence has arisen after the commencement of a suit,  it cannot be pleaded in bar of the  action generally, but must, when it has arisen before plea or continuance, be pleaded as to the further maintenance of the suit; and when it has arisen after issue joined, puis darrein continuance.\" 1 Chitty, 635, Am. Ed. 456. \nIt may safely be affirmed, that a fact which destroys the action, if it cannot be pleaded in bar, cannot be given in evidence on a plea in bar to which it has no relation. This is decided in 7 Johnson, 194. \n\"If any matter of defence has arisen after an issue in fact, it may be pleaded by the defendant; as that the plaintiff has given him a release;\" \"or in an action by an administrator, that the plaintiff's letters of administration have been revoked.\" \nIn Stonner vs. Gibbons, Moore, 871, an action of debt was brought against an administrator, and pending the action, after demurrer joined, the letters of administration were repealed. The court refused to allow this matter to be pleaded after demurrer, though it might after issue joined. The distinction between allowing the plea after demurrer and after issue, is not now sustained; but certainly the defence could not have been received, as the plea was disallowed. \n Upon this point the court is unanimous. We are all of opinion that the revocation of the letters testamentary not having been pleaded, could not be given in evidence. The judgment is affirmed with costs, and damages at the rate of six per cent per annum. \nThis cause came on to be heard on the transcript of the record from the circuit court of the United States for the district of Columbia, holden in and for the county of Alexandria, and was argued by counsel; on consideration whereof, it is considered, ordered and adjudged, by this court, that the judgment of the said circuit court in this cause be, and the same is hereby affirmed, with costs and damages at the rate of six per centum per annum. \n \n\n ", " \nOpinion \n\n \n \n  Mr Chief Justice MARSHALL delivered the opinion of the Court. \nJames Lawrason in his life time filed his bill in the circuit court of the United States, sitting in chancery for the county of Alexandria, stating, that being seized of a warehouse and one moiety of a wharf in the town of Alexandria, of which his son Thomas Lawrason was seized of the other moiety, he agreed to rent the premises to Lawrason and Fowle, a commercial house in the said town, of which the defendant William Fowle is the surviving partner; the said Lawrason and Fowle entered into the premises under the contract, and  retained possession thereof several years. The plaintiff says, he understood and supposed that he was to receive sixteen hundred dollars each year, for the property, and that it was reasonably worth that sum; but that no express stipulation was entered into fixing the amount of rent. The plaintiff also had other dealings with Lawrason and Fowle, and the account remained unsettled until the death of Lawrason. who was the son of the plaintiff. \n The bill states that the parties agreed to leave the whole subject to arbitration, and that the arbitrators reported a large sum in his favour. A suit was instituted on this award; and the court being of opinion that it was void in law, for informality, gave judgment for the defendant. This suit is brought to establish the settlement of the accounts between the parties, which was made by the arbitrators; or if that cannot be done, for a settlement of them under the authority of a court of chancery. \nThe suit abated by the death of the plaintiff, and was revived in the name of his executor. It appearing, that the representatives of Thomas Lawrason the son, who owned a maiety of the wharf occupied by Lawrason and Fowle, were interested  in the controversy; they were made parties. The answers were then filed. The defendant Fowle admits the occupation of the premises without any specific agreement as to the amount of rent; and admits the reference to arbitrators after the death of his partner. \nHe understood that the whole rent payable both for the warehouse and wharf was claimed by James Lawrason, until after the award was made; and the arbitrators, he is satisfied, made the award under this impression. On understanding that Thomas Lawrason's executors asserted a right to so much of the rent as was equivalent to his interest in the wharf, the defendant requested that it might be apportioned between them; and then discovered that James Lawrason claimed the whole rent awarded as being for his interest; leaving the defendant liable to the executors of Thomas Lawrason. Every effort to adjust this difference having proved unavailing, the defendant refused to perform the award; and the suit instituted thereon by James Lawrason was decided against the plaintiff. \nThe answer of Thomas Lawrason's administrators asserts the right of their intestate to so  much of the rent, as will be a just compensation for his  interest in the wharf. \nThe accounts were referred to a commissioner who reported the sum of two thousand six hundred and thirty-eight dollars and eighty-three cents, with interest from the 26th day of August 1819, to be due to the executors of James Lawrason; should he be entitled to the whole rent accruing on the demised  premises: should the rent on the moiety of the wharf owned by Thomas Lawrason be deducted, the plaintiffs were entitled to nothing. \nThe court decreed the sum reported by the commissioner, without prejudice to any claim which the representatives of Thomas Lawrason, deceased, may make upon the estate of James Lawrason, deceased, for any portion of the rents decreed to be paid by the defendant Fowle. \nFrom this decree the defendants appealed to this court. Two errors have been assigned. \n1. The party complaining had a plain and adequate remedy at law. \n2. The decree ought to have settled finally the rights of Thomas Lawrason's executor. \nThat a court of chancery has jurisdiction in matters of account cannot be questioned, nor can it be doubted that this jurisdiction is often beneficially exercised; but it cannot be admitted that a court of equity may take  cognizance of every action, for goods, wares and merchandize sold and delivered, or of money advanced, where partial payments have been made, or of every contract, express or implied, consisting of various items, on which different sums of money have become due and different payments have been made. Although the line may not be drawn with absolute precision; yet it may be safely affirmed that a court of chancery cannot draw to itself every transaction between individuals in which an account between parties is to be adjusted. In all cases in which an action of account would be the proper remedy at law, and in all cases where a trustee is a party, the jurisdiction of a court of equity is undoubted. It is the appropriate tribunal. But in transactions not of this peculiar character, great complexity ought to exist in the accounts, or some difficulty at law should interpose, some discovery should be required, in order to induce a court of chancery to exercise jurisdiction. 1 Mad. Chan. 86. 6 Ves. 136. 9 Ves. 437. In the case at bar these difficulties do not occur. The plaintiff sues on a contract by which real property is leased to the defendant, and admits himself to be infull possession  of all the testimony he requires to support his action. The defendant opposes to this claim as an offset, a sum of money  due to him for goods sold and delivered, and for money advanced; no item of which is alleged to be contested. We cannot think such a case proper for a court of chancery. We are, therefore, of opinion that the decree of the circuit court ought to be reversed; and the cause remanded with directions to dismiss the bill, the court having no jurisdiction. \nThis cause came on to be heard on the transcript of the record, from the circuit court of the United States, for the district of Columbia, holden in and for the county of Alexandria, and was argued by counsel; on consideration whereof, it is considered, ordered and decreed by this court, that the decree of the said circuit court in this cause be, and the same is hereby reversed, and that this cause be, and the same is hereby remanded to the said circuit court, with directions to dismiss the bill, the court having no jurisdiction. \n \n\n ", " \nOpinion \n\n \n \n  Mr Chief Justice MARSHALL delivered the opinion of the Court. \nThis is a suit in chancery brought by the appellee in the court of the United States for the district of Columbia, to enforce the specific performance of a contract entered into between him and James L. Cathcart, one of the appellants, for the sale and purchase of a tract of land, called Howard, lying in the county of Alexandria; and also to subject a claim of the said Cathcart on the United States under the provisions of the eleventh article of the treaty with Spain, signed at Washington on the 22d of February 1819, to the payment of the purchase money. \n The agreement, which was executed on the 10th of September 1822, stipulated that Robinson should convey to Cathcart the place called Howard as soon as a proper deed could be made: that Cathcart should pay therefor the sum of eight thousand dollars by instalments; the first payment of five thousand dollars to be made on the 1st of January 1825, and the residue in three equal annual payments, to commence from that time. To secure these payments, Cathcart agreed to execute four bonds, bearing interest from the first day of January 1825; and, as a further security, to execute a deed of trust, with his wife's relinquishment of dower, upon Howard, and likewise on the total amount of his claim on the United States, under the provisions of the eleventh article of the treaty with Spain, signed at Washington on the 22d of February 1819: and the contract concluded with the following words: \"In further confirmation of the said agreement, the parties bind themselves, each to the other in the penal sum of one thousand dollars.\" \n At the date of this agreement Howard was in possession of a tenant, John T. O. Wilbar, who had a right to hold the premises till the end of the year. Under  an arrangement with Cathcart he surrendered possession of the place soon after the purchase was made. \nPrevious to the contract of the 10th of September 1822, on the 10th of November 1818, James L. Cathcart executed a deed conveying to John Woodside, the father of Mrs Cathcart, for her benefit, all his property, including his claim under the Spanish treaty. This deed conveying wills is recorded in the proper office for the recording of deeds conveying lands in the city of Washington. \nThe answer of Cathcart resists the claim for the performance of the contract on three grounds. \n1. That he was induced to enter it by the fraudulent misrepresentations of the plaintiff. \n2. That the price was excessive. \n3. That he executed the contract under an impression, sanctioned by the conduct of the plaintiff, that at any time before its completion, he might release himself from it by paying the penalty of one thousand dollars. \nThe answer of Woodside claims the Spanish fund as trustee for Mrs Cathcart; denies being consulted about the purchase of Howard, or that he was party or privy to the contract; and avers that he never assented to any appropriation of that fund to purchase any estate from  Robinson. \nThe misrepresentations alleged in the answer respect the boundaries of Howard, its value, and its fitness for an academy, the purpose for which it was avowedly purchased. \nAt the date of the contract Mr Robinson was in possession of a small adjoining tract called Riddle's, his title to which was incomplete, a part of which, comprehending a peach orchard, was within the fence that enclosed Howard. The answer charges that Mr Robinson represented all the land within this fence as being part of the Howard tract. \nAs this allegation avers new matter, not responsive to the bill, it cannot be regarded unless it be proved. Miss Amelia H. Cathcart deposes to the truth of the statements of conversations when the agreement was executed, which are contained in an affidavit previously made by James Hutton. She adds, \"I  likewise am willing to declare on oath, that William Robinson stated that Howard was a beautiful place, that it was remarkably healthy, that it had a great deal of fruit on it, and a fine peach orchard up by the fence, or near the fence that divided Howard from Riddle's place.\" She adds, that the family believed that the peach orchard was on Howard, and  that the fence which Mr Robinson referred to was the division line between the Howard estate and Riddle's place. \nThe peculiar language of the witness, that she \"is willing to declare on oath\" what William Robinson stated; instead of declaring expressly what he did state; may be an accidental form of expression not entitled to much attention. If we understand the deponent as averring on oath what she declares she is willing to aver on oath, she represents Mr Robinson as saying, that Howard had on it a fine peach orchard near the fence that divided it from Riddle's place. This implies that the fence was the dividing line between the two places, which would be a misrepresentation of boundary. \nIt is difficult to assign a reason for this voluntary and useless misrepresentation. It is understood to have been made on the day on which the contract was signed. It could not be as an inducement to the contract, because that was formed previously. In a letter of the 9th of September, addressed to Wilbar the tenant, Robinson informs him that the farm is sold to Cathcart, who was extremely desirous to take  immediate possession; and he had assured him that Wilbar was willing to  accommodate him immediately: he therefore requests Wilbar to deliver possession. The misrepresentation, therefore, at that time could be of no avail. Mr Cathcart in his answer does not aver that it was made at that time. He says that having advertised his desire to purchase a small farm, where he might establish a boarding school, the defendant offered him Howard as a place adapted to his purpose. The complainant afterwards visited this place, but did not see the defendant, who resided at a considerable distance from it. The farm was occupied by a tenant. Mr Cathcart says that, after this visit, Mr Robinson informed him that all the land, between the fence near the brick house (on the place called Riddle's) and the house on Howard, belonged to Howard place. He does not say when this communication was made. \n James Hutton, one of the witnesses to the contract, was examined. He deposes expressly and particularly to the conversation respecting the penalty of one thousand dollars, but is silent as to that respecting the boundary of Howard. \nIn his letter of the 17th of August 1822, in which Mr Robinson states the terms on which he will sell Howard, he says, \"The forty  acres adjoining I would sell to you for two thousand dollars,\" &c. \"This is the place whereon the brick house, built for a wagon tavern, stands.It has a good well of water at the door, and orchard of fine fruit.\" That part of the letter which respects Howard is silent respecting fruit. \nOn the 29th of October Robinson addressed a letter to Cathcart stating, that he had performed his part of the agreement, and requesting Cathcart to call on Mr Jones who would deliver him a deed regularly executed for Howard on receiving the papers which were to be executed on the part of Cathcart. This letter was answered on the 14th of December. Mr Cathcart expresses his willingness to give the security proposed, but objects to incurring any expense in the preparation of the papers. It is answered more particularly on the 8th of February 1823. In this letter, he says, he had called twice on Mr Jones, but had found that gentleman too much occupied to attend to the business in question. He adds, \"I am in no hurry for the deed, although the plot of the land would be of service, and would indicate what part of the land appertains to Howard.\" \"The land\" is a term which must apply to Howard and Riddle's  place; because both were the property of Mr Robinson and had been occupied by Wilbar. The expression is with difficulty to be reconciled to an opinion that the fence was the dividing line between them. The same inference may be drawn from Mr Cathcart's letter of the 24th of August 1822, announcing his determination to make an offer for Howard not differing essentially from the proposals of Mr Robinson. After expressing his expectation of being permitted to hold Riddle's place as Wilbar held it, and that he should be preferred as a purchaser, on the same terms, to any other person when Mr Robinson should complete his title to it, he adds, as a proviso to his offer, \"that if I do not purchase it, I shall not be put to any expense in the division and fencing off the said.\" The word \"said\" must refer to Howard place, and indicates  a knowledge at that time that it was not divided from Riddle's by the fence. \nIn the early part of June 1823, Mr Thompson F. Mason, on the part of Mr Robinson, waited on Mr Cathcart to complete the transaction by obtaining his signature to the necessary papers. Mr Cathcart declined signing them, and declared his determination to relinquish the  purchase and pay the penalty. He said nothing to Mr Mason of any misrepresentation made by Mr Robinson. In a letter to Mr Mason, written soon afterwards, he enumerates all his objections to the conduct of Mr Robinson, and does not include his misrepresentation respecting the boundary of Howard among them, although he does complain of not having Riddle's place. He also says, \"In one of my letters I requested Mr Robinson to send me the deed of Howard. The reason is explained in another letter; \"as I wished to know the boundaries, for as yet I know not its extent.\" \nOn the 21st of April 1824, Mr Cathcart wrote again to Mr Mason. In this letter, after professing to take a brief retrospect of the premises, he again enumerates his causes of complaint against Mr Robinson, and does not place the misrepresentation of boundary among them. \nUpon this review of the testimony in the cause, the court is of opinion that the charge of misrepresentation respecting the boundary of Howard is not supported. It is quite probable, as the views of the appellant and of his family were directed to the adjoining place called Riddle's as well as to Howard, places then occupied by the same tenant, that  the witness might not have distinguished exactly between the places, and might have applied to one, expressions intended for the other. Mr Cathcart himself may also have confounded the conversations with each other. \nThe answer also charges the complainant with misrepresentation as to the fitness of Howard for an academy, and as to the value of the property. \nSo far as its fitness for an academy depended on situation or on the buildings, Mr Cathcart was capable of deciding for himself, and must have acted on his own judgment -- so far as it depended on health, the testimony in the cause proves that general reputation was in its favour, and that families  from the city sometimes repaired to it for the sake of health. Mr Robinson's representation was mere matter of opinion, and the record affords no reason for believing it was not his real opinion. It is true that Mr Cathcart's family, after settling on the place, was sickly; but this circumstance may have been produced by other causes, and is not certainly attributable to the place. \nOn the subject of value, the answer charges Mr Robinson, not with any positive assertion that the property was worth a specific sum, but  that it had cost him more than eight thousand dollars, and that he had held it at ten thousand dollars. The assertion that the property cost him more than eight thousand dollars is proved, and that he had held the property at ten thousand dollars is not disproved. Mr Peake deposes that he, sometime in 1822,  was engaged in a negotiation with Mr Robinson, the object of which was the exchange of some property in Alexandria for Howard. He has an indistinct impression that the cash value set upon Howard at that time was five thousand dollars, but does not know that it was derived from Mr Robinson. This witness certainly does not prove at what price Mr Robinson had held Howard; and we think that misrepresentation is not justly imputable to him. \nThe second objection to a specific performance is the excessive price at which it was sold. \nWithout recapitulating the testimony on this point, we can say it proves quite satisfactorily that Howard was sold beyond its real value at the time. If the witnesses are to be believed, and there is no reason to doubt them, five thousand dollars would have been a full price for it. But Mr Robinson had given more for it and might estimate  it himself higher than it was estimated by others. The value of real property had fallen. Its future fluctuation was matter of speculation. At any rate, this excess of price over value, if the contract be free from imposition, is not in itself sufficient to prevent a decree for a specific performance. \nBut, though it will not, standing alone, prevent a court of chancery from enforcing a contract, it is an ingredient which, associated with others, will contribute to prevent the interference of a court of equity. We must bear it in mind while considering  the next objection made by the plaintiffs in error to the decree of the circuit court. \nMr Cathcart alleges in his answer, that at the time of executing the articles of agreement, he explicitly and peremptorily refused to insert the sum of twenty thousand dollars, which the complainant had proposed as a penalty for the nonfulfilment of the agreement; and also the sum of ten thousand dollars which was afterwards proposed: that he then refused to agree to any large penalty, assigning as his reason that he had been long in the service of government, and was then an applicant for an appointment, that he might be sent abroad  or to some other part of the United States, when it would be more for his interest to pay the forfeiture than to comply with the contract. \"And he positively avers that the sum of one thousand dollars was inserted with the full belief on his part that he might either take the property at the stipulated price or pay the said sum, at his option; and that the agreement was executed by said complainant with full knowledge that such was the belief and understanding of this defendant.\" \nMr Cathcart has been uniform in declaring that this was the understanding with which he executed the agreement. \nJames Hutton, a subscribing witness, deposes; \"that while Cathcart was drawing the articles in form, from notes which had been prepared by Robinson, he was interrupted by a remark made by one of the parties, the deponent does not recollect which, suggesting the propriety of providing for the payment of a pecuniary forfeiture in the event of a non-performance of the stipulations of the agreement by either of the parties. The said Cathcart referred to the said Robinson to say how much the said penalty should be, to which the said Robinson answered, he did not care how much, it made no difference  to him, or words to that amount, and added twenty thousand dollars. To this the said Cathcart decidedly and promptly objected and refused to accede to, declaring it to be entirely too much, and assigned as the reason for his objection, that he had passed a large part of his life in the public service, was then endeavouring to, and had expectation of being again employed; in which case it might become more to his advantage to give up the place; that the expected employment  might be such as indeed to justify and enable him to pay the smaller penalty if he found it necessary or expedient to violate the agreement, though it should not be such as to enable him to pay the larger one. He then stipulated one thousand dollars as the amount of the penalty, to which the said Robinson acceded, under (as it clearly appeared to the witness,) a full understanding of the privilege of relinquishment reserved by the said Cathcart on the payment of the penalty of one thousand dollars as aforesaid; which said sum of one thousand dollars was inserted as the amount of the penalty in the articles of agreement, which were then and there (as before declared) made out in duplicates and signed  by the said Cathcart and Robinson as parties thereto, and by myself and another person (now deceased) as witnesses thereto.\" \nThis testimony was first given by Hutton in July 1824, in the form of an ex parte affidavit; and was afterwards verified by a deposition. \nMiss Amelia H. Cathcart deposes to the truth of the statement made in the affidavit of James Hutton. \nCharles William Cathcart was passing sometimes in and sometimes out of the room, while the parties were reducing the agreement to form, but recollects perfectly that J. L. Cathcart, Sen. objected to the penalty of twenty thousand dollars; and said if the penalty was more than one thousand dollars he would not make any agreement with Mr Robinson. \nJames L. Cathcart, Jun. deposes to the declaration of his father, that unless the penalty was made small, and such as he could pay, he would make no agreement whatever, because he expected to get some appointment soon; and, if in that case he relinquished the agreement, Mr Robinson would receive at the rate of five hundred dollars a year for his place. He would agree to pay a penalty of one thousand dollars, but nothing more; and if Mr Robinson did not agree to this sum, he would  break off the negotiation. Mr Robinson then agreed to this proposal. \nIf these witnesses are entitled to any credit, if they have not concurred in fabricating conversations which never took place, Mr Cathcart signed the agreement in the full belief that he might relieve himself from it by paying the penalty. This belief was openly expressed, was communicated to Mr Robinson,  and the penalty was reduced, by consent, to one thousand dollars, on the condition on which alone Mr Cathcart would agree to sign the contract. \nThe credibility of this testimony has been attacked, and it must be admitted that it appears under circumstances not entirely free from suspicion. It would have been more satisfactory had the depositions been all taken in the usual  manner; but the reputation of all the witnesses stands unimpeached, and the conduct of Mr Robinson has no tendency to discredit them. \nMr Cathcart's refusal to execute the contract was founded in part on the alleged misrepresentations of Mr Robinson, but chiefly on the right, reserved expressly when he signed the agreement, of relieving himself from it by the payment of the penalty. This right was asserted in terms,  and accompanied by a statement of circumstances, which might be expected to induce Mr Robinson to controvert the fact if it was untrue. It does not appear that he has ever controverted it. \nIn the conversation which took place with Mr Mason, when, as the attorney of Mr Robinson, he called on Mr Cathcart to complete the transaction by executing the papers which had been prepared for the purpose, this objection was fully and strongly stated; and the answer of Mr Mason was, that he mistook the law, and that it was advisable for him to consult counsel upon the subject. After consulting counsel, Mr Cathcart addressed a letter to Mr Mason, as the agent of Mr Robinson. In this letter he states at large his objections to the completion of the contract. On this subject he says, \"when the penalty of the agreement was in discussion, Mr Robinson proposed to make it double the amount of the purchase, i.e. sixteen thousand dollars. This I objected to in toto, and before the subscribing witnesses and a number of the members of my family, for the agreement was made in my house; I assigned as my reason for objecting to so heavy a penalty, that I had been in public service for many years, and was  a candidate for an appointment under government. That it might happen that I would be sent abroad, or to some other part of the country; when, in that case, it would be more to my interest to forfeit the penalty than to comply with the terms of the agreement; and under the impression that Mr Robinson might either reassume possession, or that I might cancel the  agreement by paying the penalty, it was agreed to make it one thousand dollars; and the last time Mr Robinson was at may house, he acknowledged that he verily believed that I was under the above impression when I signed the agreement.Does, then, Mr Robinson really wish to take advantage of my supposed ignorance, knowing it at the time? I trust not.\" \nThis letter was of course transmitted to Mr Robinson, and returned by him to Mr Mason, with some remarks on it respecting the price at which Howard had been sold, and respecting his own propositions to Mr Cathcart. No notice is taken of what is said respecting the penalty. A charge, which might be expected to be repelled with some indignation if untrue, is passed over in total silence. The letter, with the remarks of Mr Robinson, is annexed to the deposition of Mr  Mason. \nJohn B. B. Carden, to a question propounded by the plaintiff in error, answers, that in the latter end of June, or beginning of July 1824, he met Mr Robinson near Alexandria, and was informed by him that he had secured all the money Mr Cathcart had in the treasury; but as that was not enough, he would have it, Howard, put up to sale and buy it in himself. \"I suggested to Mr Robinson (continues the witness) the difficulty on account of the conveyance to Mrs Cathcart and children, to which Mr Robinson replied, that he had it safe enough, that he had not seen the thousand dollars, but that he knew how to manage it.\" \nThese circumstances taken together satisfy the court not only that Mr Cathcart signed the agreement, believing that it left him at liberty to relieve himself from it by paying the penalty, but that Mr Robinson knew how he understood it. Mr Cathcart insisted on reducing the penalty to one thousand dollars, that, should a change of circumstances make it advantageous, he might be enabled to relieve himself from it by the payment of a sum he thought within his resources. He insisted on this as the condition on which alone he would sign the agreement. He stated the  object for which the condition was demanded. Mr Robinson, without hinting that the object would not be obtained by the condition, assented to it, and the agreement was signed. \nIf this be a correct view of the transaction, it is not simply  an instrument executed by a person who mistakes its legal effect, as it would have been had it been prepared with a penalty of one thousand dollars, and silently executed by Mr Cathcart in the full conviction that it left him the option to perform the contract or to pay the penalty. It is something more. The assent of Mr Robinson to this reduction of the penalty, when demanded avowedly for the purpose of enabling Mr Cathcart to terminate his obligation by paying it, is doing something active on his part to give effect to the mistake, and turn it to his advantage. It is in some measure co-operating with Mr Cathcart in the imposition he was practising on himself. \nHad Mr Robinson induced Mr Cathcart to sign this agreement by suggesting that in point of law he might relieve himself from it by paying the penalty, a court of equity would not aid him in an attempt to avail himself of the imposition. The actual case is undoubtedly not of  so strong a character. No untruth has been suggested; but if Mr Robinson knew that Mr Cathcart was mistaken, knew that he was entering into obligations much more onerous than he intended, that gentleman is not entirely exempt from the imputation of suppressing the truth. \nThis is not a bill to set aside the contract. Mr Cathcart does not ask the aid of equity. He asks that the parties may be left to their legal rights, or that the contract shall be enforced no farther than as avowedly understood at the time of its signature. \nThe difference between that degree of unfairness which will induce a court of equity to interfere actively by setting aside a contract, and that which will induce a court to withhold its aid, is well settled. 10 Ves. 292. 2 Coxe's Cases in Chancery, 77. It is said that the plaintiff must come into court with clean hands; and that a defendant may resist a bill for specific performance, by showing that under the circumstances the plaintiff is not entitled to the relief he asks. Omission or mistake in the agreement; or that it is unconscientious or unreasonable; or that there has been concealment, misrepresentation, or any unfairness; are enumerated   among the causes which will induce the court to refuse its aid. 1 Mad. Chancery, 405. If to any unfairness a great inequality between  price and value be added, a court of chancery will not afford its aid. 2 Coxe's Cases in Chancery, 77. In the case at bar this inequality is very considerable.This inequality gives importance to the mistake under which the purchaser executed the agreement; a mistake to which the vendor contributed, by consenting to reduce the penalty to the sum which the vendee said he could pay should circumstances make it his interest to absolve himself from the contract by its payment. \nBut, as the plaintiff in error has entirely failed in supporting that part of his answer which alleges such misrepresentation on the part of the vendor as would turn him out of court; as his whole equity consists in a right to surrender the land and pay the stipulated penalty, instead of performing the whole agreement by receiving the land and paying the purchase money; as he insists upon this as being the true spirit of the contract, according to his understanding of it, which understanding was countenanced by the conduct of the vendor at the time; every principle of  equity and fair dealing requires that he should do what he claims the right to do, in order to relieve himself from the still more onerous pressure of a contract into which he has voluntarily entered. He ought to pay the penalty, as the equitable condition on which alone he can be permitted to resist a decree for a specific performance of the whole. \nIt has been argued by the defendant in error that the subsequent conduct of Mr Cathcart; his eagerness to take possession of the property; his apparent satisfaction with it; his willingness to complete the transaction by executing the necessary papers, and receiving the deeds, as was manifested in his conversations with Mr Jones; his entire silence on the subject of reliquishing the contract and paying the penalty until June 1823, when his scheme of an academy had failed, and when he communicated this intention to Mr Mason, the attorney of Mr Robinson; his failure even then to tender the penalty; are circumstances which ought to deprive him of this defence: \nWe do not attach quite so much importance to these circumstances as is attached to them by the defendant in error. \nUndoubtedly Mr Cathcart was satisfied with his contract on the  10th of September 1822, or he would not have entered  into it. Yet at this time he stipulated, as he supposed, for the right to relieve himself from it on the payment of one thousand dollars. The time during which this privilege should continue was not fixed. By what is it to be limited? The mind can prescribe no other limitation than while the contract continued executory. Had the parties executed the contract without inserting this privilege, it must have been terminated; but while the contract remained executory, it retained its original force, unless expressly or impliedly released. The failure of Mr Cathcart to tender the penalty would have some weight was it not accounted for by the circumstances of the case. It was perfectly understood that Mr Robinson would not receive it, and the only fund from which it could have been raised, the Spanish claim, was bound to him. The court therefore does not perceive in this conduct of Mr Cathcart sufficient cause to overrule his defence. \nIt has been urged by his counsel that if the penalty only can be decreed, this bill ought to be dismissed because the penalty might have been recovered at law. \nWe do not think so. The  right of a vendor to come in to a court of equity to enforce a specific performance is unquestionable. Such subjects are within the settled and common jurisdiction of the court. It is equally well settled that if the jurisdiction attaches, the court will go on to do complete justice, although in its progress it may decree on a matter which was cognizable at law. Mr Robinson could not have sued for the penalty at law without abandoning his right to enforce the contract of sale. He could not be required or expected to do this. Consequently he came properly into a court of equity, and the court ought to do him justice. It ought to direct Mr Cathcart to pay that which he says was to be, according to his understanding, a substitute for the principal subject of the contract. In addition to these considerations, the application to this court to subject the Spanish fund to the claim is unquestionably proper. \nMr Cathcart also attempts to oppose some equitable sets-off to this penalty, the money he paid to Wilbar to obtain immediate possession, and the expenses incurred for repairs which Wilbar ought to have made. \nMr Robinson did not undertake to deliver possession until   the 1st of January 1823. The right of Wilbar to retain the premises to that time was perfectly understood. If Mr Cathcart's impatience to obtain immediate possession induced him to make a very improvident and losing contract with Wilbar, it furnishes no pretext for throwing that loss on Mr Robinson. \nIf then Mr Cathcart ought not to be coerced to receive the deed for Howard and to pay the purchase money, because he believed, and was encouraged by Mr Robinson to believe, that he had introduced a clause into the agreement which would permit him to abandon the contract on the payment of one thousand dollars, he cannot be permitted to abandon it, but on the payment of that sum; and the court ought, when it refuses to compel him to pay the purchase money to decree him to pay the penalty, if Mr Robinson shall prefer receiving it to a resort to his remedy at law. \nA point of considerable importance to the parties remains to be considered. \nMr Cathcart, in the contract of the 10th of September 1822, agreed to secure the payment of the purchase money for Howard by the execution of a deed of trust \"on the total amount of his claim on the United States, under the provisions of the 11th article  of the treaty with Spain.\" If the penalty be substituted for the purchase money, it should certainly retain the protection of the same security. But the plaintiff in error alleges that he had disabled himself from complying with this part of the contract, by his previous conveyance of this fund to John Woodside in trust for Mrs Cathcart and her issue. \nThis being a voluntary conveyance is, at this day, held by the courts of England to be absolutely  void under the statute of 27 Elizabeth, against a subsequent purchaser, even although he purchased with notice, 1 Mad. Ch. 271, 18 Ves. 110. 2 Taunton, 523. Their decisions do not maintain that a transaction, valid at the time, is rendered invalid by the subsequent act of the party.They do not maintain that the character of the transaction is changed, but that testimony afterwards furnished may prove its real character. The subsequent sale of the property is carried back to the deed of settlement, and considered as proving that deed to have been executed with a fraudulent intent to deceive a subsequent purchaser. \n The statute of Elizabeth is in force in this district. The rule, which has been uniformly observed  by this court in construing statutes, is to adopt the construction made by the courts of the country by whose legislature the statute was enacted.This rule may be susceptible of some modification, when applied to British statutes which are adopted in any of these states. By adopting them they become our own as entirely as if they had been enacted by the legislature of the state. The received construction in England at the time they are admitted to operate in this country, indeed to the time of our separation from the British empire, may very properly be considered as accompanying the statutes themselves, and forming an integral part of them. But however we may respect subsequent decisions, and certainly they are entitled to great respect, we do not admit their absolute authority. If the English courts vary their construction of a statute which is common to the two countries, we do not hold ourselves bound to fluctuate with them. \nAt the commencement of the American revolution, the construction of the statute of 27 Elizabeth seems not to have been settled. The leaning of the courts towards the opinion that every voluntary settlement would be deemed void, as to a subsequent purchaser,  was very strong; and few cases are to be found in which such conveyance has been sustained. But these decisions seem to have been made on the principle that such subsequent sale furnished a strong presumption of a fraudulent intent; which threw on the person claiming under the settlement the burthen of proving it from the settlement itself, or from extrinsic circumstances, to be made in good faith: rather than as furnishing conclusive evidence not to be repelled by any circumstances whatever. \nThere is some contrariety and some ambiguity in the old cases on the subject: but this court conceives that the modern decisions establishing the absolute conclusiveness of a subsequent sale to fix fraud on a family settlement, made without valuable consideration, fraud not to be repelled by any circumstances whatever -- go beyond the construction which prevailed at the American revolution; and ought not to be followed. \nThe universally received doctrine of that day unquestionably  went as far as this. A subsequent sale, without notice, by a person who had made a settlement not on valuable consideration, was presumptive evidence of fraud; which threw on those claiming under such  settlement the burthen of proving that it was made bona fide. This principle, therefore, according to the uniform course of this court, must be adopted in construing the statute of 27 Elizabeth as it applies to this case. \nThe strong presumption of fraud arising from the subsequent conveyance to Mr Robinson, is not repelled by a single circumstance.On the contrary, all the circumstances which can be collected from the record come in aid of it. \nThe conveyance to Mr Woodside, so far as we can judge from the evidence in the cause, contained all, or nearly all the property of Mr Cathcart. He continued to act as the owner of it. His correspondence shows that he offered even the lots in Washington for sale, and he undoubtedly appeared as the absolute owner of this Spanish claim. His negotiations with Mr Robinson respecting it appear to have been carried on openly; and there is no reason to believe that they were unknown to his family or his trustee. The agreement by which he bound it to Mr Robinson was signed at his own house, in the midst of his family; and his want of power over the subject was never suggested.It is also worthy of observation, that Mrs Cathcart, in January 1824, after  the determination to relinquish the contract for Howard, addressed a letter to the trustee requesting him to make an assignment of this claim for the purpose of paying debts contracted by Cathcart. We think, therefore, that under all the circumstances of this case, the conveyance to John Woodside, on the 10th of November 1818, in trust for Mrs Cathcart and her children, does not withdraw the property in question from the claim of Mr Robinson, he being a subsequent purchaser without notice. \nIt is the opinion of this court that the circuit court erred in decreeing the defendant in that court to receive a conveyance for the tract of land in the proceedings mentioned, called Howard, and to pay therefor the purchase money stipulated in the contract dated the 10th of September 1822; and that so much of the said decree ought to be reversed: and that the cause be remanded to that court, with instructions to reform the said decree so far as to direct the defendant to pay the penalty of  one thousand dollars with interest thereon from the time the money due from the government, and enjoined by order of that court, was directed to be placed out at interest, and to direct the title  papers filed in the cause by the complainant to be re-delivered to him. But if the complainant shall prefer to pursue his remedy at law he is to be at liberty to dismiss his bill without costs and without prejudice. \nMr Justice BALDWIN dissented as to the construction of the statute of 27 Elizabeth. On the other points he agreed with the court. \nThis cause came on to be heard on the transcript of the record from the circuit court of the United States for the District of Columbia, holden in and for the county of Washington, and was argued by counsel; on consideration whereof, it is the opinion of this court that the circuit court erred in decreeing the defendant in that court to receive a conveyance for the tract of land in the proceedings mentioned, called Howard, and to pay therefor the purchase money stipulated in the contract dated the 10th of September 1822, and that so much of the said decree ought to be reversed: and that the cause be remanded to that court with instructions to reform the said decree so far as to direct the defendant to pay the penalty of one thousand dollars with interest thereon from  the time the money due from the government and enjoined by order  of that court was directed to be placed out at interest, and to direct the title papers filed in the cause by the complainant to be re-delivered to him. But if the complainant shall prefer to pursue his remedy at law, he is to be at liberty to dismiss his bill without costs and without prejudice. Whereupon it is ordered, adjudged, and decreed by this court that the circuit court erred in decreeing the defendant in that court to receive a conveyance for the tract of land in the proceedings mentioned, called Howard, and to pay therefor the purchase money stipulated in the contract dated the 10th of September 1822: and that so much of the said decree be and the same is hereby reversed, and that this cause be, and the same is hereby remanded to the said circuit court, with instructions to reform the said  decree so far as to direct the defendant to pay the penalty of one thousand dollars with interest thereon from the time the money due from the government, and enjoined by order of that court, was directed to be placed out at interest, and to direct the title papers filed in the cause by the complainant to be re-delivered to him. But if the complainant shall prefer to pursue  his remedy at law, he is to be at liberty to dismiss his bill without costs and without prejudice. \n \n\n ", " \nOpinion \n\n \n \n Mr Chief Justice MARSHALL delivered the opinion  of the Court. \nThis is a writ of error to a judgment rendered in the court of the United States for the district of Alabama, dismissing a suit brought by the Bank of the United States in that court, for want of jurisdiction. Consequently, the jurisdiction of that court presents the only question to be considered. \nThe act, which establishes a district court in the state of Alabama, declares that the judge thereof \"shall in all things have and exercise the same jurisdiction and powers which were by law given to the judge of the Kentucky district, under an act entitled, \"An act to establish the judicial courts of the United States,\" and an act entitled, \"An act in addition to the act entitled 'An act to establish the judicial courts of the United States,'\" approved the second of March 1793. \nThe 10th section of the judiciary act provides, \"that the  district court in Kentucky shall, besides the jurisdiction aforesaid, have jurisdiction of all other causes, except appeals and writs of error hereinafter made cognizable in a circuit court, and shall proceed therein in the same manner as a circuit court.\" \nThe 11th section of the same act describes the jurisdiction of the circuit  court. A bank of the United States did not then exist; and it was determined by this court in the case of the Bank of the United States vs. Deveaux, \"that the courts of the United States could not take jurisdiction of actions brought by the bank, unless the declaration contained averments which enabled the court to look behind the corporate character of the plaintiff.\" the judicial act, not having given the circuit courts jurisdiction over causes instituted by the bank of the United States, cannot be construed to have given that jurisdiction to the district court of Kentucky.Of course, it has not been conferred on the district court of Alabama, by the act establishing that court. Neither has it been conferred by the act establishing the bank of the United States. \nThe judgment is affirmed with costs. \nThis cause came on to be heard on the transcript of the record from the district court of the United States for the southern district of Alabama, and was argued by counsel. On consideration whereof, it is the opinion of this court that there was no error in the judgment of the said district court in dismissing this cause for want of jurisdiction. Whereupon, it is considered, ordered,  and adjudged by this court, that the judgment of the said district court in this cause be, and the same is hereby affirmed, without costs. \n \n\n ", " \nOpinion \n\n \n \n  Mr Chief Justice MARSHALL delivered the opinion of the Court. \nThis was an ejectment brought by the plaintiffs in error against the defendant, in the circuit court of the United States for the district of Columbia. \n The plaintiffs, who are the heirs of John Peltz, gave the title of their ancestor in evidence. \nThe defendant then proved that the land, for which this ejectment was brought, was sold under a decree of the circuit court for the district of Columbia, and purchased by him, he being the highest bidder. That he gave his notes to Charles Glover and John Davis, the trustees appointed to make the sale under the decree;  was put into possession of the premises by them; had paid nearly all the purchase money, and declared his readiness to pay the residue on receiving a title. He also gave in evidence a deed of mortgage, executed by John Peltz, in his life time, conveying the premises to Frederick Gammar. \nThe plaintiffs then proved, that a decree for the foreclosure and sale of the mortgaged  premises, had been obtained by the representatives of the mortgagee. The defendant acting under the advice of one of the trustees, appointed to execute this decree, paid in part for his purchase the money due upon the mortgage, and the return showed the admission of the mortgagee that it was settled. \nThe plaintiffs prayed the court to instruct the jury, that this mortgage was not an outstanding title which could bar the plaintiffs' right to recover. The court refused to give this instruction, and the plaintiffs excepted to its opinion. The jury found a verdict for the defendant, and the judgment rendered on that verdict has been removed into this court by writ of error. \nIt is undoubtedly well settled as a general principle, that a court of law will not permit an outstanding satisfied mortgage to  be set up against the mortgagor. This is fully proved by the cases cited in argument by the counsel for the plaintiffs. Yet the legal title is not technically released by receiving the money. This rule must then be founded on an equitable control exercised by courts of law over parties in ejectment. It would be contrary to the plainest principles of equity and justice, to permit a stranger, who had no interest in the mortgage, to set it up when it had been satisfied by the mortgagor himself, to defeat his title. But if this stranger had himself paid it off, if this mortgage had been bought in by him, he would be considered as an assignee, and might certainly use it for his protection. \n In the case at bar, the defendant is the owner of the quitable estate, and has paid off the mortgage on his own account, and for his own benefit. This incumbrance, under these circumstances, is the property of him to whom the estate belongs in equity. The reason of the rule does not apply to the case. We do not think that the mortgagor, his interest having been sold under a decree of court, could demand a reconveyance from the mortgagee to himself, the mortgage being satisfied by  the purchase under that decree. \nThere is no error in the judgment of the circuit court; and it is affirmed, with costs. \nThis cause came on to be heard on the transcript of the record from the circuit court of the United States for the district of Columbia, holden in and for the county of Washington, and was argued by counsel; on consideration whereof, it is considered, ordered and adjudged by this court, that the judgment of the said circuit court in this cause be, and the same is hereby affirmed, with costs. \n \n\n ", " \nOpinion \n\n \n \n  Mr Chief Justice MARSHALL delivered the opinion of the Court. \nThis is a writ of error to a judgment of the court of appeals of Kentucky, affirming a judgment of the Union circuit court of that state. \nThe plaintiff brought an ejectment in the Union circuit court against the defendant, and in June term 1823 obtained judgment; on which a writ of habere facias possessionem was awarded. On the succeeding day it was ordered on the motion of the defendant, \"that Josiah Williams and others be, and they are hereby appointed commissioners, who, or any five of whom, being first sworn, do, on the second Saturday in July next, go on the lands from which the said defendant has been evicted in that action, and made assessment of what damage  and waste the said defendant has committed since the 20th of May 1822, and the rent and profit accruing since the 17th of June 1823, and of the value of improvements made on said land at the time of such assessment, regarding it as if such improvement had not been made; all which they shall separately and distinctly specify, and report to the next term of this court, until which time this motion is continued.\" \n The report of the commissioners was made to the September term following, and was continued. On the 15th of March 1824  it was, on the motion of the defendant, ordered to be recorded. The improvements were valued at one thousand three hundred and fifty dollars. John Fisher, the plaintiff in the ejectment, and defendant on this motion, did not appear; and judgment was rendered against him for the sum reported to be due for improvements. Afterwards, to wit, on the 20th of the same month, the said Fisher appeared and tendered the following bill of exceptions, which was signed: \"be it remembered, that in this cause the defendant moved the court to quash the report of the commissioners appointed to value the improvements, assess the damages, &c., but the  court refused to quash the same, to which opinion of the court the defendant excepts,\" &c. The said Fisher then appealed to the court of appeals. \nA citation was issued by the clerk of the court of appeals, which was served. Among the errors assigned by the plaintiff in error was the following: \"The plaintiff deriving title from Virginia, the act or acts of the state of Kentucky on which this court has founded its opinion is repugnant as to the compact with Virginia; therefore void as to the case before the court, being against the constitution of the United States.\" \nThe cause was argued in the court of appeals in June 1827, and the judgment of the circuit court was affirmed. That judgment is now brought before this court by a writ of error. \nThe seventh article of the compact between Virginia and Kentucky is in these words. \"That all private rights and interests of lands within the said district, derived from the laws of Virginia, prior to such separation, shall remain valid and secure under the laws of the proposed state, and shall be determined by the laws now existing in this state.\" \nThis is the article, the violation of which is alleged by the plaintiff in error. To bring  his case within its protection, he must show that the title he asserts is derived from the laws of Virginia prior to the separation of the two states. If the title be not so derived, the compact does not extend to it; and the plaintiff alleges no other error. \nThe judgment in the ejectment is rendered on a general verdict, and the title of the plaintiff is not made a part of the  record by a bill of exceptions, or in any other manner. The clerk certifies that certain documents were read in evidence on the trial, and among these is the patent under which the plaintiff claimed. This patent was issued by the governor of Kentucky, and is founded on rights derived from the laws of Virginia. Can the court notice it? Can it be considered as part of the record. \nIn cases at common law, the course of the court has been uniform not to consider any paper as part of the record which is not made so by the pleadings, or by some opinion of the court referring to it. This rule is common to all courts exercising appellate jurisdiction, according to the course of the common law. The appellate court cannot know what evidence was given to the jury, unless it be spread on the record in  proper legal manner. The unauthorized certificate of the clerk that any document was read, or any evidence given, to the jury, cannot make that document or that evidence a part of the record, so as to bring it to the cognizance of this court. We cannot perceive, then, from the record in the ejectment cause, that the plaintiff in error claimed under a title derived from the laws of Virginia. \nThe order made after the rendition of the judgment, directing commissioners to go on the land from which the defendants had been evicted, and value the improvements, contains no allusion to the title under which the land was recovered. \nThe plaintiff in error might have resisted this order, by showing that his title was derived from the laws of Virginia, and thus have spread his patent on the record. He has not done so. \nOn moving to quash the report of the commissioners, a fair occasion was again presented for making his patent the foundation of his motion, and thus exhibiting a title derived from the laws of Virginia. He has not availed himself of it. He has made his motion in general terms, assigning no reason for it. The judgment of the court overruling the motion is also in general terms. \n The record, then, of the Union circuit court does not show that the case is protected by the compact between Virginia and Kentucky. This court cannot know judicially that it was not a contest between two citizens, each claiming entirely under the laws of that state. \n When the record of the Union circuit court was transferred to the court of appeals, the course of that court requires that the appellant, or the plaintiff in error, should assign the errors on which he means to rely. This assignment contains the first intimation that the title was derived from Virginia, and that the plaintiff in error relied on the compact between the two states. \nBut this assignment does not introduce the error into the record, or in any manner alter it. The court of appeals was not confined to the inquiry whether the error assigned was valid in point of law. The preliminary inquiry was whether it existed in the record. If upon examining the record that court could not discover that the plaintiff had asserted any right or interest in land derived from the laws of Virginia, the question, whether the occupying claimants' law violated the compact between the states, could not arise. \nThe  twenty-fifth section of the act to establish the judicial courts of the United States, which gives to this court the power of revising certain judgments of state courts, limits that power in these words. \"But no other error shall be assigned or regarded as a ground of reversal in any such case as aforesaid than such as appears on the face of the record, and immediately respects the before mentioned questions of validity or construction of the said constitution, treaties, statute, commissions or authorities in dispute.\" \nIf the view which has been taken of the record be correct, it does not show that the compact with Virginia was involved in the case. Consequently, the question whether the act for the benefit of occupying claimants was valid or not does not appear to have arisen; and nothing is shown on the record which can give jurisdiction to this court. \nThe counsel for the plaintiff in error has referred  to former decisions of this court, laying down the general principle, that the title under a treaty or law of the United States need not be specially pleaded; that it need not be stated on the record that a construction has been put on a treaty or law which this court  may deem erroneous; or that an unconstitutional statute of a state has been held to be constitutional. It is sufficient, if the record shows that such misconstruction must have taken place or the decision could not have been made. Harris vs. Dennie, 3 Peters, 292, is a  strong case to this effect. That case recognizes the principle on which the plaintiff in error relies; and says \"it is sufficient if from the facts stated such a question must have arisen, and the judgment of the state court would not have been what it is if there had not been a misconstruction from some act of congress, &c. &c. &c.\" but this misconstruction must appear from the facts stated, and those facts can be stated only on the record \nIn the case of Harris vs. Dennie a special verdict was found, and the court confined itself to a consideration of the facts stated in that verdict. Goods, in the custody of the United States until the duties should be secured, and a permit granted for their being landed, were attached by a state officer at the suit of a private creditor. This fact was found in the special verdict, and the state court sustained the attachment. This court reviewed the act of congress  for regulating the collection of duties on imports and tonnage, and came to the opinion \"that the goods in the special verdict mentioned were not by the laws of the United States, under the circumstances mentioned in the said verdict liable to be attached by the said Dennie under the process in the said suit mentioned; but that the said attachment so made by him, as aforesaid, was repugnant to the laws of the United States, and therefore utterly void.\" In this case no fact was noticed by the court which did not appear in the special verdict. \nSo in the case of Craig et al. vs. The State of Missouri. The parties in conformity with a law of that state dispensed with a jury, and referred the facts as well as law to the court. The court, in its judgment, stated the facts on which that judgment was founded. It appeared from this statement that the note on which the action was brought was given to secure the repayment of certain loan office certificates, which a majority of the court deemed bills of credit in the sense of the constitution. This statement of facts made by the court of the state, in its judgment in a case in which the court was substituted for a jury, was thought equivalent  to a special verdict. In this case too the court looked only at the record. \nWe say with confidence that this court has never taken jurisdiction, unless the case as stated in the record was brought within the provisions of the twenty-fifth section of the judicial act. There are some cases in which the jurisdiction of  the court has been negatived, that are entitled to notice. Owings vs. Norwood's Lessee, 5 Cr. 344, was an ejectment brought in the general court of Maryland for a tract of land lying in Baltimore county. The defendant set up as a bar to the action, an outstanding title in a British subject, which, he contended, was protected by the treaty of peace. Judgment was given for the plaintiff, and this judgment being affirmed in the court of appeals, was brought before this court. The judgment was affirmed; and the court said \"whenever a right grows out of or is protected by a treaty, it is sanctioned against all the laws and judicial decisions of the states; and, whoever may have this right, it is to be protected: but if the party's title is not affected by the treaty, if he claims nothing under a treaty, his title cannot be affected by the treaty.\" \nUpon the  same principle the person who would claim the benefit of the compact between Virginia and Kentucky must show, and he can only show it on the record, that his case is within that compact. \nThe case of Miller vs. Nicholls, 4 Wheat. 312, bears, we think, a strong resemblance to this. William Nicholls collector, &c. being indebted to the United States, executed on the 9th of June 1798, a mortgage to Henry Miller for the use of the United States for the sum of fifty-nine thousand four hundred and forty-four dollars, conditioned for the payment of twenty-nine thousand two hundred and seventy-one dollars. Process was issued on this mortage from the supreme court of the state of Pennsylvania; in March 1802, a levdri facias was levied, the property sold, and the money, amounting to fourteen thousand five hundred and thirty dollars, brought into court, and deposited with the prothonotary subject to the order of the court. \nOn the 22d of December 1797, the said Nicholls was found, on a settlement, indebted to the commonwealth of Pennsylvania in the sum of nine thousand nine hundred and eighty-seven dollars and fifteen cents, and judgment therefor was entered on the 6th of September 1798. These  facts were stated in a case agreed; and the following question was submitted to the court: \"Whether the said settlement of the said public accounts of the said William Nicholls, as aforesaid, on the 22d of Dec. 1797, was and is a lien from the date thereof, on the  real estate of the said William Nicholls, and which has since been sold as aforesaid.\" \nOn a rule made on the plaintiff in error to show cause why the amount of the debt due to the commonwealth should not be taken out of court, the attorney for the United States came into court and suggested \"that the commonwealth of Pennsylvania, ought not to be permitted to have and receive the money levied and produced by virtue of the execution in the suit, because the said attorney in behalf of the United States saith, that as well by virtue of the said execution, as of divers acts of congress, and particularly of an act of congress entitled an act to provide more effectually for the settlement of accounts between the United States and receivers of public monies, approved the 3d of March 1797, the said United States are entitled to have and receive the money aforesaid, and not the said commonwealth of Pennsylvania.\" \nJudgment  was rendered in favour of the state of Pennsylvania, which judgment was brought before this court by writ of error. \nA motion was made to dismiss this writ of error, because the record did not show jurisdiction in this court under the twenty-fifth section  of the judicial act. It was dismissed, because the record did not show that an act of congress was applicable to the case. The court added \"the act of congress which is supposed to have been disregarded, and which probably was disregarded by the state court, is that which gives the United States priority in cases of insolvency. Had the fact of insolvency appeared upon the record, that would have enabled this court to revise the judgment of the court of Pennsylvania.But that fact does not appear.\" \nIn this case the suggestion filed by the attorney for the United States alleged in terms, the priority claimed by the government under an act of congress which was specially referred to. But the case agreed had omitted to state a fact on which the application of that act depended. It had omitted to state that Nicholls was insolvent, and the priority of the United States attached in cases of insolvency only. \nIn this case  the act of congress under which the United States claimed, was stated in the record, and the claim under it was expressly made. But the fact which was required to  support the suggestion did not appear in the record. The court refused to take jurisdiction. \nIn the case at bar, the fact that the title of the plaintiff in error was derived from the laws of Virginia; a fact without which the case cannot be brought within the compact, does not appear in the record: for we cannot consider a mere assignment of errors in an appellate court as a part of the record, unless it be made so by a legislative act. The question whether the acts of Kentucky in favour of occupying claimants were or were not in contravention of the compact with Virginia, does not appear to have arisen; and consequently the case is not brought within the 25th section of the judicial act. \nIn the argument we have been admonished of the jealousy with which the states of the union view the revising power intrusted by the constitution and laws of the United States to this tribunal. To observations of this character, the answer uniformly given has been, that the course of the judicial department is marked out  by law. We must tread the direct and narrow path prescribed for us. As this court has never grasped at ungranted jurisdiction, so will it never, we trust, shrink from the exercise of that which is conferred upon it. \nThe writ of error is dismissed, the court having no jurisdiction. \nThis cause came on to be heard on the transcript of the record, from the court of appeals for the state of Kentucky, being the highest court of law in said state, and was argued by counsel; on consideration whereof, it is considered, ordered and adjudged by this court, that the writ of error in this cause be, and the same is hereby dismissed for want of jurisdiction. \nDissent by:", " \nOpinion \n\n \n \n  Mr Chief Justice MARSHALL delivered the opinion of the Court. \nThis is a bill filed by the state of New Jersey against the state of New York, for the purpose of ascertaining and settling the boundary between the two states. \nThe constitution of the United States declares that \"the judicial power shall extend to controversies between two or more states.\" It also declares that \"in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party, the supreme court shall have original jurisdiction.\" \nCongress has passed no act for the special purpose of prescribing the mode of proceeding in suits instituted against a state, or in any suit in which the supreme court is to exercise the original jurisdiction  conferred by the constitution. \nThe act to establish the judicial courts of the United States, section thirteen, enacts \"that the supreme court shall have exclusive jurisdiction of all controversies of a civil nature where a state is a party, except between a state and its citizens; and except also between a state and citizens of other states or aliens; in which latter case it shall have original but not exclusive jurisdiction.\" It also enacts, section fourteen, \"that all the before mentioned courts of the United States shall have power to issue writs of scire facias, habeas corpus, and all other writs not specially provided by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law.\" By the seventeenth section it is enacted, \"that all the said courts of the United States shall have power\" \"to make and establish all necessary rules for the ordinary conducting business in the  said courts, provided such rules are not repugnant to the laws of the United States.\" \n\"An act to regulate processes in the courts of the United States\" was passed at the same session with the judicial act, and was depending  before congress at the same time. It enacts \"all writs and processes issuing from a supreme or a circuit court shall bear teste,\" &c. This act was rendered perpetual in 1792. The first section of the act of 1792 repeats the provision respecting writs and processes, issuing from the supreme or a circuit court. The second continues the form of writs, & c. and the forms and modes of proceeding in suits at common law prescribed in the original acts, and in those of equity, and in those of admiralty and maritime jurisdiction, according to the principles, rules and usages which belong to courts of equity and to courts of admiralty respectively, as contradistinguished from courts of common law; except so far as may have been provided for by the act to establish the judicial courts of the United States: subject however to such alterations and additions as the said courts respectively shall in their diseretion deem expedient, or to such regulations as the supreme court of the United States shall think proper, from time to time, by rule, to prescribe to any circuit or district court concerning the same.\" \nAt a very early period in our judicial history, suits were instituted in this court  against states; and the questions concerning its jurisdiction and mode of proceeding were necessarily considered. \nSo early as August 1792, an injunction was awarded at the prayer of the state of Georgia, to stay a sum of money recovered by Brailsford, a British subject, which was claimed by Georgia under her acts of confiscation. This was an exercise of the original jurisdiction of the court, and no doubt of its propriety was ever expressed. \n In February 1793, the case of Oswald vs. The State of New York came on. This was a suit at common law. The state not appearing on the return of the process, proclamation was made, and the following order entered by the court. \"Unless the state appear by the first day of the next term, or show cause to the contrary, judgment will be entered by default against the said state.\" \n At the same term, the case of Chisholm's Executors vs. The State of Georgia, came on and was argued for the plaintiffs by the then attorney general, Mr Randolph. The judges delivered their opinions seriatim; and those opinions bear ample testimony to the profound consideration they had bestowed on every question arising in the case. Mr Chief  Justice Jay, Mr Justice Cushing, Mr Justice Wilson, and Mr Justice Blair decided in favour of the jurisdiction of the court; and that the process served on the governor and attorney general of the state was sufficient. Mr Justice Iredell thought an act of congress necessary to enable the court to exercise its jurisdiction. \nAfter directing the declaration to be filed and copies of it to be served on the governor and attorney general of the state of Georgia, the court ordered, \"that unless the said state shall either in due form appear, or shown cause to the contrary in this court, by the 1st day of the next term, judgment by default shall be entered against the said state.\" \nIn February term 1794, judgment was rendered for the plaintiff, and a writ of inquiry was awarded, but the eleventh amendment to the constitution prevented its execution. \nGrayson us. The State of Virginia, 3 Dal. 320, 1 Peters's Cond. Rep. 141, was a bill in equity. The subpoena having been returned executed; the plaintiff moved for a distringas to compel the appearance of the state. The court postponed its decision on the motion, in consequence of a doubt whether the remedy to compel the appearance of the state  should be furnished by the court itself, or by the legislature. At a subsequent term, the court, \"after a particular examination of its power,\" determined that though \"the general rule prescribed the adoption of that practice which is founded on the custom and usage of courts of admiralty and equity,\" \"still it was thought that we are also authorized to make such deviations as are necessary to adapt the process and rules of the court to the peculiar circumstances of this country, subject to the interposition, alteration, and control of the legislature. We have therefore agreed to make the following general orders. \n\"1. Ordered, that when process at common law or in equity shall issue against a state, the same shall be served upon the governor or chief executive magistrate, and the attorney general of such state. \n \"2. Ordered, that process of subpoena issuing out of this court in any suit in equity, shall be served on the defendant sixty days before the return day of the said process; and farther, that if the defendant, on such service of the subpoena, shall not appear at the return day contained therein, the complainant shall be at liberty to proceed ex parte.\" 3 Dall.  320; 1 Peters's Cond. Rep. 141. \nIn Huger et al. vs. The State of South Carolina, the service of the subpoena having been proved, the court determined that the complainant was at liberty to proceed ex parte. He accordingly moved for and obtained commissions to take the examination of witnesses in several of the states. 3 dall. Rep. 371; 1 Peters's Cond. Rep. 156. \nFowler et al. vs. Lindsey et al. and Fowler vs. Miller, 3 Dall. 411; 1 Peters's Cond. Rep. 189, were ejectments depending in the circuit court for the district of Connecticut, for lands over which both New York and Connecticut claimed jurisdiction. A rule to show cause why these suits should not be removed into the supreme courty by certiorari was discharged, because a state was neither nominally nor substantially a party. No doubt was entertained of the propriety of exercising original jurisdiction, had a state been a party on the record. \nIn consequence of the rejection of this motion for a certiorari, the state of New York, in August term 1799, filed a bill against the state of Connecticut, 4 Dall. 1, 1 Peters's Cond. Rep. 203, which contained an historical account of the title of New York to the soil and jurisdiction  of the tract of land in dispute; set forth an agreement of the 28th of November 1783, between the two states on the subject; and prayed a discovery, relief, and injunction to stay the proceedings in the ejectments depending in the circuit court of Connecticut. The injunction was, on argument, refused; because the state of New York was not a party to the ejectments, nor interested in their decision. \nIt has then been settled by our predecessors, on great deliberation, that this court may exercise its original jurisdiction in suits against a state, under the authority conferred by the constitution and existing acts of congress. The rule respecting the process, the persons on whom it is to be served, and the time of service are fixed. The course of the court on the failure  of the state to appear, after the due service of process, has been also prescribed. \nIn this case the subpoena has been served as is required by the rule. The complainant according to the practice of the court, and according to the general order made in the case of Grayson vs. The Commonwealth of Virginia, has a right to proceed ex parte; and the court will make an order to that effect, that the cause  may be prepared for a final hearing. If upon being served with a copy of such order, the defendant shall still fail to appear or to show cause to the contrary, this court will, as soon thereafter as the cause shall be prepared by the complainant, proceed to a final hearing and decision thereof. But inasmuch as no final decree has been pronounced or judgment rendered in any suit heretofore instituted in this court against a state; the question of proceeding to a final decree will be considered as not conclusively settled, until the cause shall come on to be heard in chief. \nMr Justice BALDWIN did not concur in the opinion of the court directing the order made in this cause. \nThe subpoena in this cause having been returned executed sixty days before the return  day thereof, and the defendant having failed to appear, it is, on motion of the complainant, decreed and ordered, that the complainant be at liberty to proceed ex parte: and it is further decreed and ordered, that unless the defendant, being served with a copy of this decree sixty days before the ensuing August term of this court, shall appear on the second day of the next January term thereof, and answer the bill  of the complainant, this court will proceed to hear the cause on the part of the complainant, and to decree on the matter of the said bill. \n \n\n ", " \nOpinion \n\n \n \n  Mr Chief Justice MARSHALL delivered the opinion of the Court. \nThis was an action brought in the court for the first circuit and district for Massachusetts, against John Winship, Amos Binney and John Binney, merchants and partners, trading under the name and firm of John Winship, as indorser of several promissory notes, made by Samuel Jacques, Jun. At the trial the maker was called by the plaintiffs, and sworn. He was objected to by the defendants as an interested witness, an instrument being produced purporting to be a release in the name of John Winship of all liability of the maker on the said notes. The operation of the said instrument, as a release of the notes in suit, was controverted by the plaintiffs.  It is unnecessary to state the instrument, or to discuss the question arising on it, or on the competency of the witness; because the court is divided on the effect of the instrument and on the competency of the witness. \nThe witness testified that he knew from general reputation that the defendant, John Winship, was concerned with the other defendants, Amos and John Binney, in the soap and candle business; that Winship avowed the partnership; that he had dealings with Winship soon after its commencement, and supplied him with rosin, for which he sometimes gave a note signed John Winship, which the witness always took on the credit of the Binneys. Winship and the witness were in the habit of lending their names to each other, and Winship always represented that the notes made or indorsed by the witness for his accommodation were for the use of the firm. \n Several other witnesses were examined on the part of the plaintiff to prove the partnership, whose testimony was rendered unimportant by the production of the articles themselves. The defendants exhibited them, and they are in the following words: \n\"The memorandum of an agremeent made this twenty-fifth day of September  1817, between Amos Binney and John Binney of Boston, county of Suffolk, and John Winship, of  Charlestown, county of Middlesex, all in the commonwealth of Massachusetts, for the manufacture of soap and candles, witnesseth: \n\"That the said Amos and John Binney agree to furnish for the above purpose the sum or capital stock of ten thousand dollars, at such times as may be wanted to purchase stock or materials for carrying on the aforesaid manufacture; and the said John winship agrees on his part to conduct and superintend the manufactory, and to pay his whole and undivided attention to the business; to manufacture or cause to be manufactured, every article in the best possible manner, and to use his utmost skill and exertions to promote the interest of the establishment, under the name and firm of John Winship, and without any charge for his personal labours, and to keep a fair and regular set of books and accounts, open and subject at all times to the inspection of the parties interested in the concern, and annually on the first day of October of each year, to make and exhibit a statement of the state of the business, the amount of purchases and sales, and the profits, if  any, of the business, that have been made; the expenses of conducting the business; and the profits to be divided in the following manner: to say, from the profits is to be paid interest for the capital stock of ten thousand dollars, at the rate of six per centum per annum, all expenses of rent, labour, transportation, fuel, and utensils, that it may be necessary to purchase or have, and the remainder of the profits, if any, to be equally divided between the said Winship and Binneys, one half thereof to the said John Winship and the other half to A. and J. binney; and in case no profit should be made, but a loss, then the loss is to be borne and sustained one half by the said A. and J. Binney, and the other half by the said John Winship. \n\"The agreement to continue in force for two years from the first day of October next ensuing, and then for a further term, provided all parties agree thereto. And to the true and faithful performance of the foregoing conditions each party bind themselves to the other in the penal sum of ten thousand dollars.\" \nOn the back of which were receipts signed by said Winship, acknowledging that he had received of Amos Binney one thousand dollars on the 6th  of September 1817, and four  thousand dollars on the 9th of October 1817; and on the 27th of December 1827 he had in his hands ten thousand dollars, as said Amos's proportion of the capital; and that he had received of John Binney two thousand five hundred dollars on the 1st of October 1817, and five hundred dollars on the 3d of November 1817, and five hundred dollars on the 17th November 1817, and one thousand five hundred dollars on the 13th of June 1820, and on the 2d of June 1821, he had in his hands ten thousand dollars, as said John's proportion of the capital stock. \nThey also gave in evidence a bond given by said Winship to said Amos, on the 25th of September 1817, in the penal sum of ten thousand dollars, with the condition following: \n\"The conditions of this obligation are such, that whereas the above bounden John winship has this day made an agreement with Amos Binney and John binney, both of Boston aforesaid, for the purpose of carrying on a manufactory of soap and candles on joint account of the parties aforesaid; and whereas the said A. Binney hath engaged to indorse the notes given by the said John Winship, for the purchase of stock and raw materials for manufacturing,  when necessary to purchase on a credit, and in consideration of which the said John Winship hath engaged not to indorse the notes, paper, or become in any manner responsible or security for any person or persons other than the said Amos Binney, for the term of two years from the first day of October 1817. \n\"Now, therefore, if the said John Winship shall faithfully observe the conditions, and wholly abstain from becoming the surety or indorser of any person to any amount other than the same Amos Binney for the aforesaid term of two years from the first day of October 1817, then this obligation to be void and of no effect; otherwise to remain in full force and virtue.\" \nThe defendants also produced witnesses whose testimony furnished some foundation for the presumption that the money arising from the notes, on which the suits were brought, was not applied by Winship to the purposes of the firm. Other testimony led to the belief that a part, if not the whole of the money was so applied. All the notes in suit were discounted by and applied to the credit of John Winship. \n The testimony being closed, the counsel for the defendant insisted, FirsT, \"that the said co-partnership  between them was, in contemplation of law, a secret co-partnership, and did not authorize the giving of credit to any other name that that of the said Winship;\" but to this the counsel for the plaintiffs did then and there insist before the said court, that this was an open or avowed, and not a secret co-partnership. And the presiding justice of the said court did state his opinion to the jury on this point, as follows: \"That according to his understanding of the common meaning of 'secret partnership,\" those were deemed secret, where the existence of certain persons as partners was not avowed or made known to the public, by any of the partners. That where the partners were all publicly known, whether this was done by all the partners, or by one only, it was no longer a secret partnership; for secret partnership was generally used in contra-distinction to notorious and open partnership: that whether the business was carried on in the nam and firm of one partner only, or of him and company, would, in this respect, make no difference: that if it was the intention of the Binneys that their names should be concealed, and the business of the firm was to be carried on in the name of Winship  only; and yet that Winship, against their wishes, in the course of the business of the firm, publicly did avow and make known to the partnership, so  that it became notorious who were the partners; such partnership could not, in the common sense of the terms, be deemed any longer a secret partnership: that if 'secret,' in any sense, it was under such circumstances, using the terms in a peculiar sense. That, however, nothing important in this case turned upon the meaning or definition of the terms 'secret partnership;' since the case must be decided upon the principles of law, applicable to such a partnership, as this was in fact proved to be. That there was no stipulation for secrecy as to the Binneys being partners, on the face of the original articles of co-partnership; and when those articles, by their own limitation, expired, the question what the partnership was, and how it was carried on for the future; whether upon the same terms as were contained in the original articles or otherwise; was matter of fact from the whole evidence: that if the evidence was believed, Winship constantly avowed the partnership, and that the Binneys were  his partners in the  soap and candle manufactory business, and obtained credit thereby.\" \nBut he left the jury to judge for themselves as to the evidence. \nSecond exception. And the said counsel of the defendants did then and there further insist, that the said jury had a right to infer from the evidence aforesaid, notwithstanding the entries of the shipments in the invoice book dept by said Winship, that the said Amos Binney and John Binney had no knowledge thereof; and therefore could not be presumed to have adopted or ratified the conduct of said Winship making said shipments. But the presiding judge did then and there instruct the jury as follows: \n\"That whether the said Amos and John binney, or either of them, knew of the said entries or not, was matter of fact for the consideration of the jury, upon all the circumstances of the case. That, ordinarily, the presumption was, that all the parties had access to the partnership books, and might know the contents thereof. But this was a mere presumption from the ordinary course of business, and might be rebutted by any circumstances whatsoever, which either positively or presumptively repelled any inference of access; such for instance, as the distance  of place in the course of business of the particular partnership, or any other circumstances raising a presumption of non-access.\" \nAnd he left the jury to draw their own conclusion as to the knowledge of the Binneys, of the entries in the partnership books, from the whole evidence in the case. \nThird exception. And the said counsel of the defendants did then and there further insist, that by the tenor of the said recited articles of agreement and bond, the said Winship had no right or authority to raise money on the credit of the said firm, or to bind the firm by his signature for the purpose of borrowing money. But the presiding judge did then and there instruct the jury as follows: \n\"That if the particular terms of the articles of co-partnership were not known to the public, or to persons dealing with the firm in the course of the business thereof, they had a right to deal with the firm in respect to the business thereof, upon the general principles and presumptions of limited partnership  of a like nature; and that any secret and special restrictions contained in such articles of co-partnership, varying the general rights and authorities of partners in such limited  partnerships, and of which they are ignorant, did not affect them. That the case of Livingston vs. Roosevelt, 4 Johns. Rep. 251, had been cited by the defendants' counsel as containing the true principles of law on this subject; and this court agreed to the law, as to limited partnership, as therein held by the court. That it was not denied by the defendants' counsel, and was asserted in that case, that it was within the scope and authority of partners, generally, in limited partnerships, to make and indorse notes, and to obtain advances and credits for the business and benefit of the firm; and if such was in fact the ordinary course and usage of trade, the authority must be presumed to exist. The court knew of no rule established to the contrary. That the authority of one partner in limited partnerships did not extend to bind the other partners in transactions, or for purposes, beyond the scope and object of such partnerships. That in the present articles of copartnership Winship was in effect constituted the active partner, and had general authority given him to transact the business of the firm. That he had, so far as respects third persons, dealing with and trusting the firm,  and ignorant of any of the restrictions in such articles, authority to bind the firm, to the same extent and in the same manner as partners in limited partnerships of a like nature usually possess in the business or for the objects within the general scope of such a firm. \n\"That the articles limited the partnership to a particular period; after which it expired, unless the parties chose to give it a future existence. That no new written articles were proved in the case, and the terms and circumstances under which it was subsequently carried on, were matters to be decided upon the whole evidence. The fair presumption was, that it was subsequently carried on, on the same terms as before, unless other facts repelled that presumption. That the bond executed at the time of the execution of the articles ought to be considered as a part of the same transaction and contract.\" \nAnd the said counsel of the defendants did then and there further request the said court to instruct the said jury as follows, to wit: \n First. That if upon the whole evidence they are satisfied that the co-partnership, proved to have existed between the defendants, under the name of John Winship, was  known or understood by the plaintiffs, to be limited to the manufacturing of soap and candles, they must find a verdict for the defendants, unless they are also satisfied that these notes were given in the ordinary course of the co-partnership business, or that the moneys obtained upon them went directly to the use of the firm, with the consent of Amos Binney and John Binney; and that if they are satisfied that any part of these moneys did go to the use of the firm with such consent, that they they must find a verdict for the plaintiffs for such part only, and not for the residue. And, \nSecondly. That if they are also satisfied that the Messrs Binneys furnished Winship with  sufficient capital and credit for carrying on the business of the firm, no such consent can be implied from the mere fact that Winship applied these moneys, or any part of them, to the payment of partnership debts. \nBut the presiding judge refused to give the instructions first prayed for, unless with the following limitations, explanations, and qualifications, viz. \"that the defendants as co-partners are not bound to pay the notes sued on, or money borrowed or advanced, unless the indorsements of  the same notes and the borrowing of such money, was in the ordinary course of the business of the firm, for the use and on account of the firm. But if the said Winship offered the notes for discount, as notes of the firm, and for their account, and he was entrusted by the partnership as the active partner, to conduct the ordinary business of the firm, and the discount of such indorsed notes was within such business; then, if the plaintiffs discounted the notes upon the faith of such notes being so offered by the said Winship, and as binding on the firm, the plaintiffs were entitled to recover; although Winship should have subsequently misapplied the funds received from the discount of said notes; if the plaintiffs were not parties or privies thereto, or of any such intention. And if Winship borrowed money or procured any advances on the credit and for the use of the firm, and for purposes connected with the business of the firm, in like manner, and under like circumstances, and money was lent or advanced on the faith and credit of the partnership, the money so borrowed  and advanced bound the partnership; and they were liable to pay therefor; although the same had been  subsequently misapplied by Winship, the lender not being party or privy thereto, or of any such intention. \nAnd with these limitations, explanations, and qualifications, he gave the instructions so first prayed for. \nAnd the presiding judge gave the instruction secondly prayed for, according to the tenor thereof. \nTo these opinions and decisions of the court, the defendants excepted. \nA verdict was found for the plaintiffs, and judgment entered thereon; which is brought before this court by writ of error. \nThe exceptions will now be considered. All must admit that the opinion asked in the first instance by the counsel for the defendant in the circuit court, ought not to have been given.That court was required to decide on the fact as well as law of the case, and to say on the whole testimony, that it did not warrant giving credit to any other name than that of John Winship. But, though this prayer is clearly not sustainable, the counsel for the plaintiff in error contends, that the instructions actually given were erroneous. \nThe first part of the charge turns chiefly upon the definition of a secret partnership, which is believed to be correct; but the judge proceeds to say, that  if incorrect, it would have no influence on the cause; and adds, \"that the case must be decided on the principles of law applicable to such a partnership as this was in fact proved to be;\" \"that when the original articles expired by their own limitation, the question what the partnership was, and how it was carried on for the future, whether upon the same terms as were contained in the original article or otherwise, was matter of fact from the whole evidence.\" \nThe error supposed to be committed in this opinion is in the declaration, that nothing important in this case turned on the meaning or definition of the terms \"secret partnership.\" This is not laid down as an abstract proposition, universally true, but as being true in this particular case. The articles were produced, and the judge declared that the case must depend on the principles of law applicable to such a partnership as this was in fact. This instruction could not, we think,  injure the plaintiff in error. Its impropriety is supposed to be made apparent by considering it in connexion with the third exception. \nThe second instruction appears to be unexceptionable, and the counsel for the plaintiff in error  is understood not to object to it. \nThe third instruction asked in the circuit court, goes to the construction of the articles of co-partnership. The plaintiff in error contends, that those articles gave Winship no authority to raise money on the credit of the firm, or to bind it by his signature, for the purpose of borrowing money. \nThe instruction given was, that if the particular terms of the articles were unknown to the public, they had a right to deal with the firm in respect to the business thereof, upon the general principles and presumptions of limited partnerships of a like nature; and that any special restrictions did not affect them: that in such partnerships, it was within the general authority of the partners to make and indorse notes, and to obtain advances and credits for the business and benefit of the firm; and if such was the general usage of trade, the authority must be presumed to exist: but that it did not extend to transactions beyond the scope and object of the co-partnership. That in the present articles, Winship was in effect constituted the active partner, and has general authority to transact the business of the firm, and a right to bind the firm in transacting  its ordinary business with persons ignorant of any private restriction, to the same extent that partners in such limited partnerships usually possess. \nThe amount of the charge is, that if Winship and the two Binneys composed a joint company for carrying on the soap and candle business, of which Winship was the acting partner, he might borrow money for the business on the credit of the company, in the manner usually practised in such partnerships; notwithstanding any secret restriction on his powers, in any agreement between the parties: provided such restriction was unknown to the lender. \nThe counsel for the plaintiff in error has objected to this instruction with great force of easoning. He contends very truly, that in fact scarcely any unlimited partnerships  exist. they are more or less extensive; they may extend to many or to few objects; but all are in some degree limited. \nThat the liability of a partner arises from pledging his name, if his name is introduced into the firm, or from receiving profits if he is a secret partner. \n No man can be pledged but by himself. If he is to be bound by another, that other must derive authority from him. The power  of an agent is limited by the authority given him; and if he transcends that authority, the act cannot affect his principal, he acts no longer as an agent. The same principle applies to partners. One binds the others, so far only as he is the agent of the others. \nIf the truth of these propositions be admitted, yet their influence on the case may be questioned. Partnerships for commercial purposes; for trading with the world; for buying and selling from and to a great number of individuals; are necessarily governed by many general principles, which are known to the public, which subserve the purpose of justice, and which society is concerned in sustaining. One of these is, that a man who shares in the profit, although his name may not be in the firm, is responsible for all its debts. Another, more applicable to the subject under consideration, is, that a partner, certainly the acting partners, has power to transact the whole business of the firm, whatever that may be, and consequently to bind his partners in such transactions, as entirely as himself. This is a general power, ssential to the well conducting of business; which is implied in the existence of a partnership. When  then a partnership is formed for a particular purpose, it is understood to be in itself a grant of power to the acting members of the company to transact its business in the usual way. If that business be to buy and sell, then the individual buys aud sells for the company, and every person with whom he trades in the way of its business, has a right to consider him as the company, whoever may compose it. It is usual to buy and sell on credit; and if it be so, the partner who purchases on credit in the name of the firm must bind the firm. This is a general authority held out to the world, to which the world has a right to trust. The articles of copartnership are perhaps never published. They are rarely if every seen, except by the partners themselves. The stipulations  they may contain are to regulate the conduct and rights of the parties, as between themselves. The trading world, with whom the company is in perpetual intercourse, cannot individually examine these articles, but must trust to the general powers contained in all partnerships. The acting partners are identified with the company, and have power to conduct its usual business, in the usual way. This power  is conferred by entering into the partnership, and is perhaps never to be found in the articles. If it is to be restrained, fair dealing requires that the restriction should be made known. These stipulations may bind the partners; but ought not to affect those to whom they are unknown, and who trust to the general and well established commercial law. 2 Hen. Black. 235, 17 Ves. 412.Gow. on Part. 17. \nThe counsel for the plaintiff in error supposes, that though these principles may be applicable to an open avowed partnership, they are inapplicable to one that is secret. \nCan this distinction be maintained? If it could, there would be a difference between the responsibility of a dormant partner, and one whose name was to the articles. But their responsibility, in all partnership transactions, is admitted to be the same. Those who trade with a firm on the credit of individuals whom they believe to be members of it, take upon themselves the hazard that their belief is well founded. If they are mistaken, they must submit to the consequences of their mistake; if their belief be verified by the fact, their claims on the partners, who were not ostensible, are as valid as on those whose  names are in the firm. This distinction seems to be founded on the idea that, if partners are not openly named, the resort to them must be connected with some knowledge of the secret stipulations between the partners, which may be inserted in the articles. But this certainly is not correct. The responsibility of unavowed partners depends on the general principles of commercial law, not on the particular stipulation of the articles. \nIt has been supposed that the principles laid down in the third instruction, respecting these secret restrictions, are inconsistent with the opinion declared in the first; that in this case, where the articles were before the court, the question whether this was in its origin a secret or an avowed partnership  had become unimportant. If this inconsistency really existed, it would not affect the law of the case; unless the judge had laid down principles in the one or the other instruction which might affect the party injuriously. but it does not exist. The two instructions were given on different views of the subject, and apply to different objects. The first respected the parties to the firm, and their liability, whether they were or were  not known as members of it: the last applies to secret restrictions on the partners, which change the power held out to the world, by the law of partnership. The meaning of the terms \"secret partnership,\" or the question whether this did or did not come within the definition of a secret partnership, might be unimportant; and yet the question whether a private agreement between the partners, limiting their responsibility, was known to a person trusting the firm, might be very important. \nThe proposition of the defendants in the circuit court was, that Winship had no right or authority to raise money on the credit of the firm, or to bind the firm by his signature for the purpose of borrowing money. \nThis can scarcely be considered as a general question. In the actual state of the commercial world, it is perhaps impossible to conduct the business of any company without credit. Large purchases are occasionally made on credit; and it is a question of convenience to be adjusted by the parties, whether the credit shall be given by the vendor or obtained at the bank. If the vendor receives a note, he may discount it at the bank. If, for example, the notes given by Winship to Jacques for  rosin to carry on his manufacture, which have been mentioned by the witness, had been discounted in bank, it would not have been distinguishable from money borrowed in any other form. The judge said, that if it was within the scope and authority of partners generally, in limited partnerships, to make and indorse notes, and to obtain advances and credits for the business and benefit of the firm, and if such was in fact the ordinary course and usage of trade, the  authority must be presumed to exist. Whether this was the fact or not was left to the jury. \nDoes any thing in the articles of agreement restrain this general authority? \n The articles state the object of the company to be, the manufacture of soap and candles; the capital stock to be ten thousand dollars, which sum is to be paid in by Amos and John Binney; John Winship to conduct and superintend the manufactory; the name of the firm to be John Winship; the profit and loss to be divided. They are silent on the subject of borrowing money. If the fact that the Binneys advanced ten thousand dollars for the stock in trade implied a restriction on the power of the manager to carry on the business on credit,  it would be implied in almost every case. \nBut the bond given by Winship to Amos Binney, which is admitted by the judge to constitute a part of the partnership agreement, is supposed to contain this restriction. The condition of the bond recites that \"whereas Amos Binney had engaged to indorse the notes given by the said John Winship for the purchase of stock and raw materials for manufacturing, when necessary to purchase on credit, in consideration of which the said John Winship hath engaged not to indorse the notes, paper, or become in any manner responsible or security for any person or persons, other than the said Amos binney.\" \"Now, if the said John Winship shall faithfully observe the conditions, and wholly abstain from becoming the surety or indorser of any person, to any amount, other than the said Amos Binney, then,\" &c. \nThe agreement recited, but not inserted in this condition, that Amos Binney would indorse the notes of Winship when it should be necessary to purchase on credit; while it implies that the power was incident to the act of partnership; was not in itself a positive restriction on that power. The affirmative engagement on the part of Amos Binney, that he will  indorse, is not a prohibition on Winship to obtain any other indorser. The exigencies of trade might require the negotiation of a note in the absence of Mr Binney, and this may have been a motive for leaving this subject to the discretion of the acting partner. If he has abused this confidence, the loss must fall where it always falls when a partner, acting within his authority, injures his co-partners. If, then, the agreement between Amos Binney and John Winship contains nothing more than is recited in the condition, it contains no inhibition on Winship to negotiate notes in the ordinary course of  business. The restriction on Winship is not in this recital, but in his engagement expressed in the condition of the bond. \nHe engages not to indorse the notes, paper, or become in any manner responsible or security for any person or persons, other than the said Binney. \nThe obvious import of this engagement is that Winship will not make himself responsible for another. Had he made an accommodation note for Jacques, it would have been as much a violation of this agreement as if he had indorsed it. The undertaking is not to indorse notes for another. But this note is indorsed  for himself. It is negotiated in bank in the name of the firm, and the money is carried to the credit of the firm. Had not Winship misapplied this money, no question would have arisen concerning the liability of his partners on this note. The stipulation in the bond, not to indorse or become security for another, would not have barred the action. But, be this as it may, this stipulation between the parties is a secret restriction on a power given by commercial law and usage, generally known and understood; which is obligatory on the parties, but ought not to affect those from whom it is concealed. \nThe counsel for the defendants in the circuit court then prayed an instruction to the jury, that if they were satisfied that th epartnership was known to the plaintiffs to be limited to the soap and candle business, they must find for the defendants; unless they were also satisfied that these notes were given in the ordinary course of the partnership business, or that the moneys obtained upon them went, directly to the use of the firm, with the consent of Amos Binney and John Binney; and that if they are satisfied that any part of these moneys did go to the use the firm with such consent,  that they they must find a verdict for such part only; and not for the residue. \nThis instruction was not given as asked; but was given with \"limitations, explanations, and qualifications.\" \nThe judge instructed the jury, in substance, that the defendants were not bound to pay the notes sued on, unless the indorsements thereon were in the ordinary course of the business of the firm, for the use and on account of the firm; but if they were satisfied that the notes were so offered and discounted, and that the said Winship was entrusted by the partnership, as the active partner, to conduct the ordinary business of  the firm, and the discount of such indorsed notes was within such business, then the plaintiffs were entitled to recover; although Winship should have subsequently misapplied the funds, received from the discount of said notes, if the plaintiffs were not parties or privies thereto, or of any such intention. \nThe plaintiffs in error contend, that the instruction ought to have been given, as prayed, without any qualification whatever. The instruction required is, that although the jury should be satisfied that the money went to the use of the firm, they should find  for the defendants; unless they should be also satisfied, that the consent of Amos and John Binney was given to its being so applied. That is, that a note discounted by the acting and ostensible partner of a firm for the use of a firm, the money arising from which was applied to that use, could not be recovered from the firm, by the holder, unless the application was made with the consent of all the partners. \nThe counsel for the plaintiffs in error is too intelligent to maintain this as a general proposition. He must confine it to this particular case. He is understood as contending, that under the secret restrictions contained in the bond given by Winship to Amos Binney, Winship was restrained from discounting these notes even for the use of the firm; and that no application of the money to the purposes of the co-partnership could cure this original want of authority, and  create a liability which the note itself did not create; unless such application was made with the consent of all the partners. So understood, it is a repetition of the matter for which the third exception was taken, and is disposed of with that exception. The instruction, therefore, ought not to  have been given as prayed. Still, if the court has erred in the instruction actually given, that error ought to be corrected. That instruction is, that if the notes were offered in the usual course of business for the firm, by the partner entrusted to conduct its business, and were so discounted, and if such discount was within such business; then the subsequent misapplication of the money, the holders not being parties or privies thereto, or of such intention, would not deprive them of their right of action against the co-partnership. \nWe think this opinion entirely correct. It only affirms the common principle that the misapplication of funds raised by  authority, cannot affect the person from whom those funds are obtained. \nWe think there is no error in the opinions given by the judge to the jury. The court being divided, on the competency of Samuel Jacques as a witness. The judgment is affirmed, with costs and damages at the rate of six per centum per annum, by a divided court. \nThis cause came on to be heard on the transcripit of the record from the circuit court of the United States for the district of Massachusetts, and was argued by counsel; on consideration  whereof it is considered, ordered, and adjudged by this court, that the judgment of the said circuit court in this cause be, and the same is hereby affirmed, with costs and damages, at the rate of six per centum per annum. \nDissent by:", " \nOpinion \n\n \n \n  Mr Chief Justice MARSHALL delivered the opinion of the Court. \nThese suits were decided in the court of  the United States for the second circuit and southern district of New York, in May term 1830. At the trial the court gave opinions on several points of law, which were noted at the time, and a right to except to them reserved. According to the practice in New York, bills of exceptions were prepared by counsel in vacation, and tendered to the circuit judge for his signature. The bills comprehend not only the points of law made at the trial, but the entire charge to the jury. The judge corrected the bills by striking out his charge to the jury. This motion  is made for a writ of mandamus \"to be directed to the circuit court of the United States for the southern district of New York in the second circuit, commanding the said circuit court to review its settlement of the proposed bills of exceptions,\" \"and to correct, settle, allow and insert, in the said bills, the charge delivered to the said jury in each case, or the substance thereof.\" \nA doubt has been suggested respecting the power of the court to issue this writ. The question was not discussed at the bar, but has been considered by the judges. It is proper that it should be settled, and the opinion of the court  announced. We have determined that the power exists. Without going extensively into this subject, we think it proper to state, briefly, the foundation of our opinion. \nIn England the writ of mandamus is defined to be a command issuing in the king's name, from the court of king's bench, and directed to any person, corporation, or inferior court of judicature within the king's dominions, requiring them to do some particular thing therein specified, which appertains to their office and duty, and which the court of king's bench has previously determined, or at least supposes to be consonant to right and justice. Blackstone adds, \"that it issues to the judges of any inferior court, commanding them to do justice according to the powers of their office, whenever the same is delayed. For it is the peculiar business of the court of king's bench to superintend all other inferior tribunals, and therein to enforce the due exercise of those judicial or ministerial powers with which the crown or legislature have invested them: and this, not only by restraining their excesses, but also by quickening their negligence, and obviating their denial of justice.\" 3 Bl. Com. \nIt is, we think, apparent  that this definition, and this description of the purposes to which it is applicable by the court of king's bench, as supervising the conduct of all inferior tribunals, extends to the case of a refusal by an inferior court to sign a bill of exceptions, when it is an act which \"appertains to their office and duty,\" and which the court of king's bench supposes \"to be consonant to right and justice.\" Yet we do not find a case in which the writ has issued from that  court. It has rarely issued from any court; but there are instances of its being sued out of the court of chancery, and its form is given in the register. It is a mandatory writ commanding the judge to seal it, if the fact alleged by truly stated: \"si ita est.\" \nThere is some difficulty in accounting for the fact, that no mandamus has ever issued from the court of king's bench, directing the justice of an inferior court to sign a bill of exceptions. As the court of chancery was the great officina  brevium of the kingdom, and the language of the statute of Westminster the second was understood as requiring the king's writ to the justice, the application to that court for the writ might be supposed proper.  In 1 Sch. and Lef. 75, the chancellor superseded a writ which had been issued by the cursitor, on application; declaring that it could be granted only by order of the court. He appears, however, to have entertained no doubt of his power to award the writ on motion. Although the course seems to have been to apply to the chancellor, it has never been determined that a mandamus to sign a bill of exceptions may not be granted by the court of king's bench. \nIt is said by counsel in argument in Bridgman vs. Holt, Show. P. C. 122, that by the statute of Westminster the second, ch. 31, in case the judge refuses, then a writ to command him, which is to issue out of chancery, quod apponat sigillum suum. The party grieved by denial, may have a writ upon the statute commanding the same to be done, &c. \"That the law is thus, seems plain, though no precedent can be shown for such a writ: it is only for this reason, because no judge did ever refuse to seal a bill of exceptions; and none was ever refused, because none was ever tendered like this, so artificial and groundless.\" \nThe judicial act, sect. 13, enacts, that the supreme court shall have power to issue writs of prohibition to the district  courts when proceeding as courts of admiralty and maritime jurisdiction; and writs of mandamus in cases warranted by the principles and usages of law, to any courts appointed, or persons holding offices under the authority of the United States. A mandamus to an officer is held to be the exercise of original jurisdiction; but a mandamus to an inferior court of the United States, is in the nature of appellate jurisdiction.  A bill of exceptions is a mode of placing the law of the case on a record, which is to be brought before this court by a writ of error. \nThat a mandamus to sign a bill of exceptions is \"warranted by the principles and usages of law,\" is, we think, satisfactorily proved by the fact that it is given in England by statute; for the writ given by the statute of Westminster the second, is so in fact, and is so termed in the books. The judicial act speaks of usages of law generally, not merely of common law. In England it is awarded by the chancellor; but in the United States it is conferred expressly on this court, which exercises both common law and chancery powers; is invested with appellate power; and exercises extensive control over all the courts of  the United States. We cannot perceive a reason why the single case of a refusal by an inferior court to sign a bill of exceptions, and thus to place the law of the case on the record, should be withdrawn from that general power to issue writs of mandamus to inferior courts, which is conferred by statute. \nIn New York, where a statute exists similar to that of Westminster the second, an application was made to the supreme court for a mandamus to an inferior court to amend a bill of exceptions according to the truth of the case. The court treated the special writ given by the statute as a mandamus, and declared that it was so considered in England; and added, that \"though no instance appears of such a writ issuing out of the king's bench, where an inferior court refused to seal a bill of exceptions, there is no case denying to that court the power to award the writ.\" \"It ought to be used where the law has established no specific remedy, and where in justice and good government there ought to be one.\" \"There is no reason why the awarding of this particular writ does not fall within the jurisdiction of this court, or why it should be exclusively confined to the court of chancery.\" \n In the opinion then of the very respectable court, which decided the motion made for a mandamus in Sikes vs. Ransom, 6 Johns. Rep. 279, the supreme court of New York possesses the power to issue this writ, in virtue of its general superintendence of inferior tribunals. The judicial act confers the power expressly on this court. No other tribunal exists by which it can be exercised. \n We proceed to the inquiry whether a proper case has been made out, on which the writ ought to be issued. \nThe affidavit of Mr Bronson, the attorney for the defendants in the circuit court, is the evidence on which the motion is to be sustained. He says \"that the suits were tried on a full understanding, that each party was to be considered as excepting to any decision or opinion of the said court which he might desire to review on a writ of error, whether such exception was formally announced at the trial or not; and it was also fully understood, in the event of verdicts for the plaintiff, that the deponent would, after the trials, prepare bills of exception, and carry the cases by writs of error to the supreme court of the United States.\" The charge of the judge was formally excepted to  in one of the cases, before the jury left the bar. \nIn the case of Nathaniel Crane, the counsel for each party submitted certain written points or questions of law for the decision of the court, which were decided: after which the presiding judge delivered a charge to the jury, in which he went at large into the law and facts of the case. \nIn the case of Samuel Kelly, the counsel for the defendant submitted certain legal questions growing out of the facts of the case, and requested the court to decide them before the cause should be argued to the jury; to the end that he might know what questions would be left to the jury. This was not done, and the cause was argued; after which the court delivered its opinion on the said questions of law, and then the presiding judge delivered a charge on the law and facts of the case. That in each case the decision of the proposed points of law consisted, as to most of the questions, in giving an affirmative or negative answer to the propositions; but in the charge subsequently delivered in each case, the judge went at large into the law of the cases, and commented upon it to an extent and in a manner much more likely to impress the minds of the  jury, than in the brief answers previously given. That in the judgment of the deponent, the remarks of the judge in his charge, did in effect present the law of the case to the jury differently from what it had been given to them in answer to  some of the points submitted; and in such a manner that a full and fair review of the judgments of the circuit court cannot be had without putting the charge in each case upon the record.  He therefore, in each case, inserted the substance of the charge in the bill of exceptions. That in the charge the remarks of the judge upon the law and facts of each case were so blended, that the deponent did not, and does not believe it practicable to separate the remarks upon the law from those upon the facts of the case, in such a manner as to give the defendants a full and fair opportunity to review the judgments of the circuit court. \nThe bills of exceptions, which had been offered in December to the presiding judge for his signature, were returned; the whole of the charge in each case being stricken out. \nThe subject was again brought before the judge, who returned the following answer to the application. \n\"Dear Sir: -- I have  read the letter you put into my hands this morning, which you had received from Mr Bronson, in relation to the bills of exceptions in the Astor causes. The charge, as contained in the bills of exceptions, was stricken out in conformity to what I understand to be the rule laid down in the supreme court in the case of Carver. It purports to set out at length the whole charge (how far this is correctly done, I do not stop to inquire); which I understand the supreme court to say is a practice they decidedly disapprove. There can be no doubt that a party is entitled to his exception, if he sees fit to take one, upon every question of law stated to the jury. I have not the bill of exceptions now before me. I am not aware of any question of law arising upon the charge, which is not embraced within some one of the points specifically submitted to the court, and upon which the court gave an opinion: all which are contained in the bill of exceptions. If this is not the case, and it is pointed out, it ought to be added to the bill of exceptions, and I will again look at it. But the exception must be confined to some matter of law.\" \nThe counsel for the defendants still insisted that the  whole scope and bearing of the charge, rather than any particular expression in it, tended to lead the jury to a different result from what they would have been likely to attain from the law, as laid down in answer to the points made at the bar. He designed to complain, that \"though it may not in terms have departed from the instructions given in answer to those points, yet it did so in effect.\" \n The judge still refusing to sign the bill of exceptions containing the whole charge, this motion is made. \nThe affidavit of Mr Lord, counsel for the plaintiff in the circuit court, is also exhibited. He states the proceedings at the trial. The counsel for the defendants requested the opinion of the court on various propositions of law, \"and the court did then and there, in presence of the jury and of counsel, pronounce distinctly its opinion and decision upon every such proposition;\" after which the judge proceeded to charge the jury on the evidence. After the conclusion of his remarks, in the case against Crane, some discussion arose between the defendants' counsel and the court, in presence of the jury, in which some passages of the charge appearing not to have been rightly  understood by the defendants' counsel, or not to have been clearly stated; the court again stated to the jury its charge on the points thus stated anew. \nThe bills of exceptions, prepared by the counsel for the defendants, were submitted to the deponent as counsel for the plaintiff, who objected to the insertion of the charge, and stated his reasons for the objection. The counsel on both sides attended the judge, who said, \"that he considered that which in the bills of exceptions is called the charge, and which purports to contain all the remarks of the judge on the evidence, improper to be inserted in the bills of exceptions, and not permitted by law or the practice of the court; that it was incumbent on the party excepting, to specify the matters of law complained of, and that if any thing could be specified, which was not expressed in the decisions aforesaid of the points submitted (which decisions are stated in the bills of exceptions), he would allow the same to be inserted in the bills of exceptions; but if that were not done, he should allow the amendment of the plaintiff, and the statement called the charge, to be struck out.\" \nThe judge then was willing to allow exceptions  to his opinions on the questions of law which were made in the cause. He was also willing to sign exceptions to any matter of law advanced by him to the jury, which was not contained in the points reserved at the trial. The counsel for the defendants insisted on spreading the whole charge upon the record. \n It appears to be customary in New York, as in several other states, for the judge, after the arguments are closed, to sum up the evidence at length to the jury, and to state the law applicable to facts; leaving it to the jury, however, to decide what facts that evidence proved. Such a charge must necessarily consist chiefly of a compendium of the testimony. To spread the charge upon the record, is to bring before the appellate court the view taken by the judge of the testimony given to the jury. If any law was mixed with this summary of evidence, the right of either party to except is admitted. The question is whether an exception is allowable which brings before the superior court so much of the charge as relates to evidence. \nIn Carver's case, 4 Peters, 80, this court said, \"we take this occasion to express our decided disapprobation of the practice (which seems  of late to have gained ground) of bringing the charge of the court below, at length, before this court for review. It is an unauthorized practice, and extremely inconvenient both to the inferior and to the appellate court. With the charge of the court to the jury, upon mere matters of fact, and with its commentaries upon the weight of evidence, this court has nothing to do. Observations of that nature are understood to be addressed to the jury, merely for their consideration, as the ultimate judges of matters of fact; and are entitled to no more weight or importance, than the jury in the exercise of their own judgment choose to give them. They neither are, nor are they understood to be binding upon them, as the true and conclusive exposition of the evidence. If indeed, in the summing up, the court should mistake the law, that justly furnishes a ground for an exception;  but the exception should be strictly confined to that mis-statement: and by being made known at the moment, would often enable the court to correct an erroneous expression, or to explain or qualify it in such a manner as to make it wholly unexceeptionable, or perfectly distinct. We trust, therefore,  that this court will hereafter be spared the necessity of examining the general bearing of such charges.\" \nAfter such an expression of the opinion of this court, it could not be expected that a judge on his circuits would so  utterly disregard it, as to allow an exception to his whole charge. If, however, the opinion be unsupported by law, it ought to be reconsidered and reversed. \nAt common law, a writ of error lay for error in law apparent on the record, but not for an error in law not apparent on the record. If a party alleged any matter of law at the trial, and was overruled by the judge, he was without redress the error not appearing on the record. 2 Inst. 42. To remedy this evil the statute was passed, which gives the bill of exceptions. It is to correct an error in law. Blackstone, speaking of this subject, says, \"and if either in his directions or decisions, he (the judge) mistakes the law by ignorance, inadvertence or design, the counsel on either side may require him publicly to seal a bill of exceptions, stating the point wherein he is supposed to err.\" \"This bill of exceptions is in the nature of an appeal.\" 2 Blackstone, 372. \nIt is also stated in the  books, that a bill of exceptions ought to be upon some point of law either in admitting or denying evidence, or a challenge on some matter of law arising upon a fact not denied, in which either party is overruled by the court. A bill of exceptions is not to draw the whole matter into examination again; it is only for a single point, and the truth of it can never be doubted after the bill is sealed. The judges in Bridgman vs. Holt, speaking of evidence to be left to a jury, say; but no bill of exceptions will lie in such a case by the statute when the evidence is admitted and left to the jury. Show P. C. 120. Bul. Nisi Prius, 316. Bac. Abr. tit. Bill of Exceptions. \nIf an exception may be taken in such form as to bring the whole charge of the judge before the court, a charge in which he not only states the results of law from the facts, but sums up all the evidence, the exception will not be on a single point; it will not bring up some matter of law arising upon a fact not denied; it will draw the whole matter into examination again. \nThe affidavit in support of the motion gives us the strongest reason for the course the mover has pursued, that the remarks of the judge upon the  law and facts were so blended, that it was believed to be impracticable to separate the remarks upon the law from those upon the facts of the case, in such a  manner as to give the defendants a full and fair opportunity to review the judgment of the circuit court. \nThe difficulty, then, which appeared to the counsel to be insurmountable, must be overcome by this court. We must perform the impracticable task of separating the remarks on the law from those on the facts of the case, and thus draw the whole matter into examination again. \nThe inconvenience of this practice has been seriously felt and has been seriously disapproved. We think it irregular and improper. The motion is denied. \nMotion overruled, and mandamus prayed for refused. \nDissent by:", " \nOpinion \n\n \n \n  Mr Chief Justice MARSHALL delivered the opinion of the Court. \nThis suit was brought in the court of the United States for the fourth circuit and district of Maryland, on the following bond: \nKnow all men by these presents, that we, Thomas Robertson, Levin Ballard, Arnold E. Jones, Mathias Dashiell, Charles Jones, Marcey Maddux, William Done, George W. Jackson and John H. Bell, all of Somerset county and state of Maryland, are held and  firmly bound unto the United States of America, in the sum of one hundred thousand dollars, current money of the United States, to be paid to the said United States, their certain attorney or attorneys, to the which payment well and truly to be made and done, we hereby bind ourselves, our heirs, executors and administrators, jointly and severally, firmly by these presents, as witness our hands and seals this 15th day of July, in the year 1820. \nWhereas, on the first day of August 1817, the Bank of Somerset  became indebted to the United States for the sum of sixty-nine thousand and seventy-nine dollars and sixty-two cents, deposited in said bank, by George Brown, collector, and others, for the final payment of which sum, and the better security of the United States, an agreement has this day been entered into between the United States on the one part, and the president and directors of the said Bank of Somerset, on the other part, in the words following, viz. \n\"The directors agree to pledge to the government of the United States, the entire estate of the corporation as a security for the payment of the original principal of the claim, on or before the expiration of the term  of five years, from the date of the compromise, and for the fulfilment of this engagement they will bind themselves individually to the United States, in a sum equal to the amount of the debt; and in order that no misunderstanding may hereafter arise respecting the true intent and meaning of the phrase, \"the entire estate of the corporation,\" and the nature and extent of the  individual obligation, it is hereby declared to be distinctly understood by both parties, that the entire estate of the corporation means not only all the real estate of the said Bank of Somerset, but also all the debts of every description which are now due and owing unto the said bank, or to which the said bank may have any legal or equitable right whatever; and it is also understood by both parties that the bond of individuals is not intended as a contract for the absolute payment of the said sum of money from their private estates, but as a guarantee that the said president and directors and their successors will fulfil their agreement to preserve entire the estate of the corporation, until the United States are paid and satisfied the said original principal of their claim, and to give a preference  to the United States over any other creditor of the bank. The United States agree, upon receiving the bond of individuals, to assign the direction and management of the suit which has been instituted in the district court of Maryland, against the bank, to the individuals who thus enter into bond; and at the expiration of the said term of five years, upon the payment of the sum of sixty-nine thousand and seventy-nine dollars and sixty-two cents, on or before the day of payment, the United States will give a full and free acquittal to the said corporation for the whole claim.\" \n Now the condition of the foregoing obligation is such, that if the sad president and directors and their successors shall on their part well and faithfully perform the said contract, and shall, in preference to any other claim against the said bank, pay into the treasury of the United States the said sum of sixty-nine thousand and seventy-nine dollars and sixty-two cents, on or before the 15th of July 1825, then the foregoing obligation to be void, otherwise to remain in full force and virtue in law. \nSigned and sealed by Thomas Robertson, Levin Ballard, Jun., Arnold E. Jones, Mathias Dashiell, Charles  Jones, Marcey Maddux, William Done, and George W. Jackson. \nJohn H. Anderson, witness. \nThe issues joined on several special pleas, filed by the defendant, were withdrawn by consent; and nil debet pleaded, under an agreement that the parties might give any matter in eivdence which might have been given under any form of pleadings. \nIt will be perceived from the condition of the bond, that the Bank of Somerset had become indebted to the United States in a large sum of money, on account of deposits made by a collector, and that a suit had been instituted against the bank in the court of the United States for the district of Maryland. On the 15th of July 1820, an agreement was entered into between the United States and the president and directors of the Bank of Somerset, which is recited in the condition of the bond. The principal object of this agreement was to secure the whole estate and property of the bank of every description for the payment of the principal debt, on or before the expiration of five years from the date of the agreement. For the performance of this engagement, the directors agree to bind themselves individually in a sum equal to the amount of the debt; but this  bond of individuals is not to be understood as a contract for the absolute payment of the said sum of money, but as a guarantee that the president and directors, and their successors, will fulfil their agreement to preserve the entire estate of the corporation, until the United States are satisfied with the principal, and to give a preference to the United States over any other creditor of the bank. The United States on  their part agree, on receiving this bond, to assign the direction and management of the suit to the obligors. \nThe construction of this bond has been discussed at the bar, as a preliminary question to the several points made in the cause. The United States contend, that the agreement recited in the condition of the bond, is made by the then president and directors of the Bank of Somerset, in their individual as well as corporate character, and that the defendant is bound individually, not merely to the extent of the obligation created by the bond, but also as far as he would have been bound had he signed the agreement in his private character. \nThe defendant contends, that the agreement was made by the president and directors for the bank, as its legitimate  agents, and is to be treated as an engagement made in their corporate character; and that the bond is an undertaking by the obligors, in pursuance of that agreement, by which they become sureties for the bank, that the president, directors and their successors, will perform their engagements with good faith. \nIn pursuing this inquiry, the form of the instrument and the nature of the transaction must be considered. \nThe agreement between the United States and the bank is not spread on the record, otherwise than as it is recited in the condition of the bond. It does not appear to have been signed by the president and directors individually. This could not have been omitted, had they intended to bind themselves individually by that agreement. As an official act, it was sufficient that it be entered on their journals; as an undertaking of individuals, it ought to be signed by them. It is referred to in the recital of the condition in these words: \"and whereas, an agreement has this day been entered into between the United States on the one part, and the president and directors of the said Bank of Somerset of the other part, in these words,\" &c. This language indicates, we think, an  agreement by the president and directors, in the corporate character in which they are mentioned, rather than in heir individual characters in which they are not mentioned. If the president and directors are bound in their private character, is every member of the board bound, whether he was present and assented to the agreement or not? The incorporating act declares, that the affairs of the bank shall be managed by a president and ten  directors. Are they all bound by this agreement? If not, who of them are? The paper itself, as recited, does not inform us. If we look out of the condition of the bond to the journals of the corporation for instruction; we are informed, that at a meeting of the board on the 15th of July 1820, the president and six directors attended.If it be contended that this record fixes the members present, one of them, George Jones, who was a party to the agreement, did not sign the bond. Is he bound? If we are  permitted to travel out of the bond, and search the journals of the bank for information on this subject, the same record informs us that this whole business was transacted by the board in their corporate character, as acting  for the bank. \nThe great object of the agreement was to pledge the estate of the bank, to secure, as far as it would secure, the payment of the debt due to the United States. None could give this pledge, but those whose official duty it was to manage that property; and they could only give it in the character in which they were entrusted with its management. They alone, in their political character, and their successors, could redeem this pledge; for only those who retained the management of the affairs of the bank during the five years given for the payment of the debt, could keep the estate together, and apply it exclusively to the use of the United States. \nTo what purpose should the United States require that the directors should bind themselves individually, if they were already bound individually by the agreement itself? This stipulation, being for the benefit of the United States, must be considered as introduced at their instance; and if we may look at the proceedings of the board on the 15th of July 1820, we are informed that the agent of the board, who carried propositions to the secretary of the treasury, reported, that he had made a compromise on the basis of the second  proposition, with this modification made by the treasury. But without going out of the bond, this stipulation must be considered as being made on the part of the United States. For what purpose, we repeat, was it made? If the individual members of the board were bound by the agreement, why require a bond from the same persons as sureties for themselves? They could be sued upon the original agreement as well as upon the bond.  Why this complex proceeding? Upon the hypothesis of individual obligation under the agreement, it is inexplicable. Upon the hypothesis that the original agreement was a mere corporate act, the whole transaction is accounted for. The agreement being a corporate act, could not affect the members of the board in their private characters: it was a mere pledge of the faith of the corporation, for the violation of which, the corporate funds would alone be responsible, and would add nothing to the security of the government; because the liability of those funds was already as complete as any corporate act could make it. The obligation of individuals therefore was required, who should be sureties that the corporate body would faithfully observe its  contract. This is expressly declared to be the effect of the bond, and the purpose for which it was given. The words are: \" and it is also understood by both parties, that the bond of individuals is not intended as a contract for the absolute payment of the said sum of money from their private estates, but as a guarantee that the said president and directors, and their successors [not their heirs and executors] will fulfil their agreement to preserve entire the estate of the corporation,\" &c. \nThe words which follow the recital of the condition, serve still farther to show the understanding of the parties. They are, \"now the condition of the foregoing obligation is such, that if the said president and directors, and their successors, shall on their part well and faithfully perform the said contract,\" &c. then the foregoing obligation to be void, &c.; obviously referring to a contract made by the corporate body, and to be performed by the corporate body. \nAn argument against this construction of the instrument has been founded on the following clause. \"The United States agree, upon receiving the bond of individuals, to assign the direction and management of the suit which has  been instituted in the district court of Maryland to the individuals who thus enter into bond; and at the expiration of the said term of five years, upon the payment of the sum of sixty-nine thousand and seventy-nine dollars and sixty-two cents, on or before the day of payment, the United states will give a full and free acquittal to the said corporation for the whole claim.\" \nThe court does not allow to this clause that influence over  the agreement for which the counsel for the United States contends. Being a stipulation to assign the management of the suit, not the judgment which should be obtained, the power might have been conferred on the president and directors and their successors, without releasing the debt.If, as we suppose, it was intended as an inducement to incur personal responsibility by affording security to those who should incur it, the clause rather furnishes an argument in favour of that construction for which the defendant contends. \nWe are of opinion that the agreement recited in the condition of the bond on which this suit is instituted, is in fact made, and was understood by the parties to be made by the United States, with the Bank of Somerset acting  by its lawful agents, the president and directors of that bank; and that the obligors bound themselves, as sureties, that the bank would faithfully perform its engagements. \nAt the trial of the cause, the following points were made at the bar by the counsel for the United States, and the opinion of the court was asked upon them. \n1. That, by the bond on which this suit is brought, the defendant has undertaken that the estate of the bank, including its debts, shall be applied in the first instance to extinguish the debt due to the United States in five years, if that estate was sufficient to extinguish it; and if the jury shall be of the opinion that the estate, at the date of the bond, was sufficient, and might, by the use of proper means on the part of the defendant and his co-obligors, have been rendered available to that purpose, within the time limited by the bond, the defendant is answerable for any portion of the debtascertained upon the face of the bond, which remained due to the United States at the expiration of the five years given by that bond, and which still remains due. \n2. That it being admitted the statement of the condition of the bank, on the 11th May 1820, which  has been offered in evidence, proceeded from the obligors in the bond, and has been furnished by them, it is an admission on their part that the estate of the bank was at that time sufficient to have paid the debt due to the United States, and throws the burthen of proof on the defendant to show how it afterwards became insufficient; and, in the absence  of satisfactory proof on this  point, the estate of the bank is to be held sufficient to have paid the debt due to the United States within the five years given by the bond, and the defendant is answerable for any portion of that debt which remains unpaid to the United States. \n3. That, among the duties imposed on the defendant by the bond, was that of calling in the debts due to the bank in the most expeditious and effectual manner; and if the jury shall believe that a resort to attachment against the bank debtors in the name of the United States, on the judgment which had been obtained by the United States against the bank, was the most expeditious and effectual manner, and that the obligors in the bond have not resorted to this mode of proceeding, they have been guilty of a breach of their undertaking in the  bond, and are answerable for the full value of any debt which might have been secured by that mode of proceeding. \n4. That by the bond, on which this suit is brought, the obligors were bound to use diligence in enforcing the collection of the outstanding debts due to the Bank of Somerset at the date of the bond; and that if they have failed to employ the best means which the law placed in their power, to enforce such collection, they are responsible for all losses proceeding from their neglect to use those means, &c. \n5. That having been authorized to proceed against the debtors of the bank on the judgment which had been obtained by the United States against the Bank of Somerset, and to enforce the proceedings against those debtors as garnishees, which had already been instituted in that suit, as well as to take out new attachments against other debtors in the name of the United States, the plaintiffs in that judgment; if, instead of resorting to these proceedings, they brought new actions against their debtors in the state courts, and by the adoption of this latter course, debts have been lost which might have been saved by resorting to the process of attachment against those debtors  under the judgment before mentioned, the defendants are liable for all such losses. \n6. That if the jury shall be satisfied that the statement of the condition of the bank, on the 11th May 1820, was its true condition at that time, and that no proof has been offered by the defendants to show that this condition was variant at the date of the bond, the defendants can repel the inference of the  solvency of the bank in no other way, than by showing to the satisfaction of the jury, that the debtors, whose debts compose the aggregate of one hundred and six thousand nine hundred and ninety-five dollars presented on the statement, were wholly or partially insolvent; and that the defendant was unable to collect the debts, either by reason of such insolvency, or by some legal impediment which they could not control; and that, in the absence of such proof, the legal presumption will be that such debtors were solvent, and that those debts might have been collected by the use of due diligence; and if they have not been collected and paid over to the United States, that the defendant is liable for the amount of the debt acknowledged in the bond to be due to the United States, or for  whatever balance of that amount remains unpaid to the United States. \n7. That attachments at the suit of the United States which had been laid in the hands of the debtors to the Bank of Somerset, prior to the date of the bond, fixed the debts in the hands of such debtors; and that such debts could be discharged only by the payment of good and lawful money, equal in value to the amount of such debts; and that if the obligors in the bond on which this suit is brought, did afterwards receive such debts from the debtors, in depreciated notes of the Bank of Somerset or any other depreciated paper, the defendant is liable to the United States, in good and lawful money, for the amount of debts so received in depreciated paper, if there be no proof that such debtors were in circumstances so insolvent, as that they could not have paid their debts in good and lawful money. \n8. That by virtue of the agreement recited in the bond, on which this suit is brought, and of the bond itself, the debts due to the bank were so pledged to the United States, that the obligors in the bond had no right to receive these debts in the depreciated notes of the Bank of Somerset; and that if after the date of the  bond they did so receive them, they are liable to the United States, in good and lawful money for the amount so received, if there be no proof that the debtors from whom they were so received were in circumstances so insolvent, that they could not have paid these debts in good and lawful money. \n9. That by virtue of the bond and the agreement therein  recited, the defendant was bound to see that the estate of the bank, as described in the agreement and bond, should be applied in the first instance to the payment of the debt due to the United States, before any payment made to any other creditor; and that if any portion of that estate has been paid to the holders of certificates of deposit, which were outstanding at the date of the bond, or if these certificates have been received in payment of debts due by the holders to the bank, the defendant is liable for all sums so paid to the holders of such certificates, and for the amount of all debts for which such certificates have been received in payment, if there be no proof that the debtors from whom they were so received were in circumstances so insolvent, that they could not have paid those debts in good and lawful money. \n 10. That in all cases where, after the date of the bond, moneys have been shown to have been paid under executions at the suit of the bank, placed in the hands of Charles Jones, the sheriff of the county, who is admitted to have been one of the obligors in the bond, the defendant is liable for all such amounts so received by the said Charles Jones. \n11. That the defendant had no authority to pay away any part of the estate of the bank, as described in the bond, to the purpose of relieving liens on the estates of the debtors to the bank; but their duty was to have collected the debts due to the bank out of the estate of such debtors, which they will be presumed to have been capable of doing until the contrary is proved; and in the absence of such proof, they are liable to all sums paid away for such liens. \n12. That as it was in the power of the obligors to have proceeded by attachment against  the debtors of the bank, under the judgment which had been obtained in the district court of the United States, the institution of new suits against such debtors in the county court of Somerset was unnecessary, until it shall be proved that they could not have so proceeded; and that  the costs and expenses attending these suits were incurred by the obligors, in their own wrong, and must fall upon them; and the defendant is entitled to no credit on account of such costs and expenses, but must answer for the value of these debts clear of any other costs and expenses, than would have arisen from his proceeding by attachment in the courts of the United States. \n 13. That the defendant was not authorized to diminish the amount of the estate of the bank, by the payment of a commission for collection to William Done, one of the obligors. \n14. That if the resolution of the board of directors, of date the 16th June 1818, authorizing the stockholders to assign their stock at ninety dollars, in discharge of their debts, was made for the purpose of shielding the stockholders from the judgment of the United States and the process of attachment against the debtors of the bank which the United States were authorized to sue out against these debtors, such transfers of stock were fraudulent and void; and it was the duty of the obligors to have re-asserted these debts, as they stood prior to such transfer of stock, and to have proceeded to recover them by the legal process  of attachment in the name of the United States; and that if they failed to do so, such failure was a breach of their duty under the said bond and contract; and if such debts might have been so recovered by the use of due diligence, the defendant is liable for the amount. \n15. That if process of attachment, at the suit of the United States, had been served on these stockholders, prior to such transfer in payment of their debts, such debts became fixed thereby to the United States; and the subsequent transfer of stock in extinguishment of them was a void act, and these debts constituted a part of the estate of the bank, which the defendant was bound to apply to the payment of the debt of the United States, and not having done so he is liable for those amounts. \nAnd the counsel for the defendants made the following points: \n1. That by the true construction of the bond, the obligors undertook for the acts of the corporation only, and not for their own conduct as individuals, or the conduct of any other individuals, not being the agents of the corporation. \n2. That payment made to the sheriff is no payment made to the bank, and that the defendant is not liable for any money received by  the aforesaid Charles Jones as sheriff, unless the same was paid over to the bank, or to the agents of the bank lawfully authorized to receive the same. \n3. That the bank is not liable for any depreciation in the  money, which the bank was compelled to receive by the judgment of the Maryland courts. \n4. That the corporation had not the right to use the attachments which had issued from the district or circuit court; nor to order any process connected with the suit or judgment of the United States against the Bank of Somerset, and cannot therefore have been guilty of negligence or misconduct, by reason of not attempting to use the said attachments or to issue process on said judgment. \n5. That the defendant is not liable for any depreciation in the money, which the bank was compelled to receive by the judgment of the Maryland courts, unless the jury find that the bank was guilty of culpable negligence or misconduct, in prosecuting their claims in the courts of Maryland, instead of using the attachments issued from the district or circuit court of the United States. \n6. That if the jury believe that the property, from which the liens were removed, by payments of the Bank of  Somerset, as stated in the evidence, has come to the hands and possession of the plaintiffs, and is worth more than such liens, and that the payment of such liens was made with an honest intention and view, for the benefit of the United States, then the plaintiffs are not entitled to recover the amount so paid for such liens, as stated in the evidence. \n7. That if the jury find from the evidence, that the taxes, officers' fees, counsel fees and commissions, paid by the bank, were actually due, and that the said taxes were lawfully chargeable on the said property, when in the hands of the bank, as the agent of the United States, and that the said officers' fees and counsel fees and commissions became due on account of suits instituted by the bank, as the agent of the United States, under the contract upon which this suit is brought, and that the said fees and commissions were lawful and reasonable; that then the plaintiffs are not entitled to recover the amount so paid by the bank, of taxes, officers' fees, counsel fees and commissions, unless the jury find that, in instituting the said suits, the said bank from negligence and misconduct violated its duty to the United States. \nUpon  these points too the instructions of the court to the jury were requested. \n The record states that the judges being opposed in opinion on each of these questions, ordered them on motion of the counsel for the plaintiffs to be certified to this court for its decision; and discharged the jury. \nSome general propositions have been stated in argument which bear upon all the points; and which will be considered before we proceed to apply them to the several specific questions which have been certified by the circuit court. \nThe counsel for the United States insists, that by the act of 1818, the United States were empowered to enforce payment of the judgment they might obtain against the bank, in specie, by summoning the debtors of the corporation as garnishees and obtaining judgments against them. The act provides, that in any suit thereafter instituted by the United States against any corporate body for the recovery of money upon any bill, note or other security, it shall be lawful to summon as garnishees the debtors of such corporation, who are required to state on oath the amount in which they stand indebted, at the time of serving the summons, for which amount judgment  shall be entered in favour of the United  States in the same manner as if it had been due and owing to the United States. \nThis act operates a transfer from the bank to the United States of those debts which might be due from the persons who should be summoned as garnishees. They become by the service of the summons the debtors of the United States, and cease to be the debtors of the bank. But they owe to the United States precisely what they owed to the bank, and no more. On the 9th of February 1819, the legislature of Maryland, passed an act, declaring that in payment of any debt due to, or judgment obtained by any bank within that state, the note of such bank should be received. This act, so far as respects debts on which judgments have not been obtained, embodies the general and just principles respecting offsets which are of common application. Every debtor may pay his creditor with the notes of that creditor. They are an equitable and legal tender. So far as these notes were in possession of the debtor at the time he was summoned as a garnishee, they form a counter claim, which diminishes the debt due to the bank to the extent of that counter claim. But the  residue becomes a  debt to the United States, for which judgment is to be rendered. May this judgment be discharged by the paper of the bank? \nOn this question the court are divided. Three judges are of opinion that by the nature of the contract and by the operation of the act of Maryland upon it, an original right existed to discharge the debt in the notes of the bank; which original right remains in full force against the United States, who come in as assignees in law, not in fact; and who must therefore stand in the place of the bank. \nThree other judges are of opinion, that the right to pay the debt in the notes of the bank does not enter into the contract. A note given to pay money generally, is a note to pay in legal currency, and the right to discharge it with a particular paper, is an extrinsic circumstance depending on its being due to the person or body corporate responsible for that paper, which right is terminated by a transfer of the debt. \nThe counsel for the United States also contend, that the obligors are responsible in this suit for the act of any individual who has signed the bond, by which any portion of the estate of the bank may have been lost: and  for the omission of the obligors to perform any act within their power, which might have enabled the corporate body to collect its debts, in money of more value than its own notes. \nWe do not think so. Whatever obligations a sense of right might have imposed upon them as members of the corporation, the obligation imposed by the bond itself is measured by its terms. They do not undertake for their general conduct as individuals. They do not undertake for each other as to any matter not expressed in the bond. They undertake that the bank shall perform the contract recited in the condition and for nothing more. \nThe bond does not stipulate that the obligors will do any thing which may facilitate the operations of the bank in collecting its debts and performing its contract with the United States. \nIt has been urged that they might have used the power to direct and manage the suit, so as to compel the debtors to the bank, by summoning them as garnishees, to discharge their debts in specie. The United States have not required them to make  any use of the power to manage and direct the suit. Nothing is specified, nor is any thing either demanded or undertaken on this subject.  Were this court to insert it, we should add a new term to the bond, and create an obligation which the parties have not imposed upon themselves. We should do something more than construe and enforce the contract. \nIn the state in which the record now appears, this question does not regularly arise. If the obligors were bound to use their power to direct and manage the suit, in the manner most advantageous to the United States; if we could suppose that the power was given, not for the benefit of the obligors who obtained it, but for the benefit of the United States, who agreed to surrender it unconditionally, for something else stipulated in the bond: still this obligation, so to use the power, could not commence until the power was given. This we think is not shown by the record. \nThe bond was executed to the United States, and this action is a proof that it was accepted. So far as respects the liability of the obligors, as sureties for the bank, the acceptance has relation to the date: but so far as respects the liability to be created by a subsequent act of the obligee, this relation cannot be sustained. The actual time of acceptance becomes a subject of inquiry. \nThe record  furnishes reason for the opinion, that the bond was not accepted at its date, on the 15th of July 1830. The acceptance being a fact in pais, we may look out of the bond for proof of it. \nThe directors agree to bind themselves individually for the performance of the contract recited in the condition. This was required by the treasury department, in terms implying that all the directors should so bind themselves. The act incorporating the Bank of Somerset makes the board to consist of a president and ten directors; the bond is executed by the president and seven directors. It remained some time for the signature of others, and was incomplete at its date. It might, without the slightest breach of faith, have been rejected by the secretary of the treasury; and, as it did not conform to his original proposition, remained as an escrow until approved by him. The record furnishes some evidence that it was not immediately approved. \nOn the 26th of June 1821, the board of directors ordered,  \"that William Done proceed as soon as convenient to the seat of government, for the purpose of finally settling the arrangement entered into with the treasury department; and he is also  requested to ascertain the state of the suit or suits brought by the United States against the bank and its garnishees, in the district court of Maryland.\" \nIf then the power claimed for the obligees, to direct and manage the suit of the United States, was conferred by the mere operation of the bond: it could not be conferred until the bond was actually accepted, and the time of acceptance ought, for this particular purpose,  to be shown. But this power is not conferred by the mere operation of the bond. It requires a distinct and independent act on the part of the government. \"The United States agree, upon receiving the bond of individuals, to assign the direction and management of the suit which has been instituted in the district court of Maryland against the bank, to the individuals who thus enter into bond.\" Till this authority was actualy given, the attorney for the United States would have disregarded, and ought to have disregarded any orders received from the obligors in the bond. \nSuits were instituted by the bank against its debtors in the courts of the state; by whose judgment the bank was compelled to receive not only its own notes, but the certificates of  deposit held by its debtors. The counsel for the United States insists that the bank is responsible for the sums so received, in violation of its agreement to give a preference to the United States over other creditors. So far as this act was voluntary on the part of the bank, it is a violation of the contract, for which its sureties are liable. But how far was it voluntary? The bank possessed no other means of collecting its debts than through the medium of the state courts. It might therefore be necessary to resort to those courts in order to avoid a total loss. The act of limitations, independent of those casual insolvencies which might occur, would have formed a serious deduction from that estate; which it was their duty to preserve entire for the United States. The bank, perhaps, might have made, and sound morality required that they should have endeavoured to make new arrangements with the United States. It is not certain that any arrangements which would remove difficulties  with which the whole transaction was embarrassed, were practicable. But, be this as it may, we perceive no other course which was prescribed by duty and by contract, with respect to their  debts generally, than to sue in the state courts. With respect to those debts which were attached by the United States, the same division of opinion exists as with respect to their payment in the notes of the bank. \nWe will now apply these principles to the particular points on which the judges of the circuit court were divided. \nOn the first question propounded by the counsel for the United States, and also on the first question propounded by the counsel for the defendant, this court is of opinion, that the obligors undertook for the faithful performance by the president and directors, of the contract recited in the condition of the bond, on which the suit is instituted; and not for their own conduct as individuals; and that they are responsible for any failure on the part of the bank to perform that engagement. \nOn the second and sixth questions propounded by the plaintiffs, this court is of opinion, that the statement of the condition of the bank of the 11th of May 1820, which appears in the record, is evidence to be submitted to the jury, who are to judge on the whole testimony how far the estate of the bank was at that time sufficient to pay the debt due to the United States;  and if any part of that estate has been wasted or misapplied by the corporate body or their agents, or has been appropriated unnecessarily to any purpose other than towards the debt of the United States, or is otherwise unaccounted for; the defendant is responsible for such misapplication or waste, and for any sum not accounted for. \nOn the third and fourth questions propounded by the plaintiffs, this court is of opinion, that the obligors did not undertake by their bond to call in the debts due to the bank. That duty was to be performed by the president and directors of the bank; for whose faithful performance of it the obligors are responsible. \nThe court does not perceive the application of the fifth question on the part of the plaintiffs to the cause, unless the president and directors of the bank be considered as the obligors, which idea is negatived in the answer to the first question.  The obligors had no power to bring actions against the debtors of the bank in the state courts. \nOn the seventh question propounded by the plaintiffs, this court is of opinion that the attachments at the suit of the United States which had been laid in the hands of the debtors to  the Bank of Somerset, prior to the date of the bond, fixed the debts in the hands of such debtors, as to the sum remaining due after deducting the legal offsets against the bank then in the hands of such debtors. This court gives no opinion as to the money or paper in which the sum so remaining due was demandable. \nThe eighth instruction required by the plaintiffs ought not to be given as asked. \nThe ninth question is answered in the opinions given by this court on the preceding inquiries. \nOn the tenth question propounded by the plaintiffs, and the second propounded b ythe defendant, this court is of opinion that the bank is liable for the money received by Charles Jones, as their collector; and the defendant is liable therefor as their surety; but that the bank is not liable for the money which came to his hands as sheriff, unless the president and directors were guilty of negligence in using the appropriate means to draw it out of his hands in reasonable time. \nOn the eleventh question propounded by the plaintiffs, and the sixth propounded b ythe defendant, this court is of opinion that it was the duty of the president and directors to collect the debts due to the bank. In the  performance of this duty it might be necessary to purchase property pledged to the bank which was subject to prior liens, and to relieve such property from its prior incumbrances, in order to avoid a total loss of the debt. This may have been advantageous, or may have been disadvantageous to the United States. \nWe think the transaction, with all its circumstances, ought to be submitted to the jury; and that the liability of the defendant can in no event exceed the actual loss sustained by the United States, in consequence of the bank having taken the property, by discharging the prior incumbrances instead of suing the debtor in the state court. \nOn the twelfth question propounded by the plaintiffs, and  the seventh, propounded by the defendant; this court is of opinion, that the president and directors of the Bank of  Somerset, had no power over the judgment of the United States. They could therefore proceed only in the state courts; and were entitled to credit for such necessary expenses, as were incurred in such suits as it was prudent to bring. \nOn the thirteenth question, propounded by the plaintiffs; this court is of opinion; that the propriety of allowing  the commissions paid to William Done depends on their reasonableness. \nOn the fourteenth and fifteenth questions, propounded by the counsel for the plaintiffs; this court is of opinion, that the instructions ought to have been given as asked; except so much of the fourteenth, as states it to have been the duty of the obligors, instead of the president and directors, to reassert these debts; and so much as supposes a power to proceed by the legal process of attachment in the name of the United States; and except so much of the fifteenth as supposes a power in the defendant to apply the funds of the bank. \nThe court is of opinion, that the third, fourth, and fifth instructions, moved by the counsel for the defendants, ought to be given as asked; except so much of the fifth as submits to the jury the question on the power of the bank, to use the attachments issued from the district court of the United States. \nAll which is to be certified to the circuit court, for the fourth circuit and district of Maryland. \nDissent by:", " \nOpinion \n\n \n \n  Mr Chief Justice MARSHALL delivered the opinion of the Court. \nThis is a writ of error to a judgment rendered in favour of the defendants, in an ejectment brought by the plaintiffs in the court of the United States, for the seventh circuit, and district of Kentucky. \nThe plaintiffs claimed title as heirs of the Reverend James Madison, deceased, under a patent issued to him by the governor of Kentucky, on the 8th day of August 1798. A verdict and judgment having been rendered for the defendants, the plaintiffs have brought the cause into this court by writ of error. The case depends on several bills of exceptions taken to certain opinions given by the court at the trial of the cause. \nThe plaintiffs gave in evidence the patent to their ancestor. It grants to the Reverend James Madison a certain tract or parcel of land containing eighteen hundred and fifty acres, by survey,  &c. and \"bounded as follows.\" It then describes the exterior lines of the whole tract, after which the following words are used; \"including within said bounds five hundred and twenty-two acres of land entered for John Preston, four hundred and twenty-five acres for William Garrard: both claims have been excluded in the calculation of the plot with its appurtenances, &c.\" \nThey then gave evidence conducing to prove the death of the grantee before the institution of the suit; that the plaintiffs Susannah and James C. were his heirs at law, and that the plaintiff Susannah had intermarried with the plaintiff Robert G. Scott. They then introduced Mrs Eppes as a witness, who swore that she resided in Petersburg, Virginia, and that Bishop Madison resided in Williamsburg, Virginia; that while she resided in Petersburg she had seen Bishop Madison, and was acquainted with his daughter only by report; that she had never seen her or Mr Scott, but recollects to have heard of her marriage in Petersburg, as she thought, before the death of her father; that she could not state from whom she heard the report, but she had three cousins who went to college at the time that she lived in Petersburg, and  had no doubt that she heard them speak of the marriage; that she heard of the marriage of Miss Madison before her own marriage, as she thought, which was in 1810; that she was,  as she believed, in 1811, in Williamsburg, and was told that Mr Madison was dead. \nOn the motion of the defendants, the court excluded this testimony as incompetent; and the counsel for the plaintiffs excepted to this opinion. \nIn considering this exception some diversity of opinion has prevailed in this court, with respect to that part of it which related to the time of the intermarriage between the plaintiffs, Robert G. Scott and Susan his wife. Some of the judges think that the evidence given by Mrs Eppes respecting the time, as well as that respecting the fact of intermarriage, comes within the general rule excluding hearsay testimony, which was laid down by this court in the case of Mima Queen and child against Hepburn, 7 Cranch, 290. That rule is, \"that hearsay evidence is incompetent to establish any specific fact, which fact is in its nature susceptible  of being proved by witnesses who speak from their own knowledge.\" Others think that the fact of the marriage being established  by other testimony, the circumstance that this fact was communicated to the witness before another event took place, becomes itself a fact, and is evidence that the marriage was anterior to that other event. It becomes unnecessary to decide on this principle, because we are all of opinion that so much of the testimony of Mrs Eppes as goes to prove the death of Mr Madison was admissible, and ought not to have been excluded. \nOn the motion of the defendants, the court also instructed the jury \"that if the plaintiffs did not show to their satisfaction, that the defendants resided within the plaintiff's grant, and outside of the land claimed of Preston and Garrard, they ought to find for the defendants. An exception was taken to this opinion; and the plaintiffs contend that it is erroneous, because the grant comprehends all the land within the exterior lines of the survey; and that the exception of the equitable claims of Preston and Garrard did not impair the legal effect of the grant, but subjected the grantee to the equitable demands of those claimants. \nPatents of this description are not unfrequent in Kentucky. They have been always held valid so far as respected the land not excluded,  but to pass no legal title to the land excepted from the grant. The plaintiff does not controvert this general principle,  but contends that the peculiar language of this grant forms an exception to the general rule; and exempts this patent from its operation. The language is, that the lands entered for John Preston and William Garrard are included within the same bounds, but \"both claims have been excluded in the calculation of the plot, with its appurtenances, &c.\" We think these words manifest an intent to except the lands of Preston and Garrard from the patent. The government could not mean to convey to Madison lands belonging to others, by a grant which recognizes the title of those others. If we entertained doubts on this subject, those doubts would be removed by the construction which we understand the courts of the state have put on this very patent. \nThe defendants claimed under a patent issued by the governor of Kentucky to John Grayham, on the 3d day of January 1814, and showed two deeds from John Grayham, one to Silas Ratliffe one of the defendants for one hundred acres of land, dated the 12th of August 1814, the other to Thomas Owings, also a defendant, for  four hundred acres of land, dated the 25th of March 1816. They also gave evidence conducing to prove that they, and those under whom they claimed, had a continued possession by actual settlement, more than seven years next before the bringing this suit. The plaintiffs then moved the court to instruct the jury that seven years possession, as aforesaid, was no bar to the plaintiffs' recovery; but the court overruled the motion, and instructed the jury that if they believed from the evidence that the plaintiffs had been more than seven years in possession next before the bringing the action, that the act, commonly called the seven years limitation act, of Kentucky, passed in 1809, was a bar to the plaintiffs' recovery; unless the jury should find that Susan Madison was a feme covert when her father, the patentee, died, or was so at the time the defendants acquired their titles by contract or deed from the patentee, John Grayham. \nThe plaintiffs excepted to this instruction. \nTheir counsel admits the constitutionality of the act of limitations referred to in the opinion of the court; and that it is a bar to the action as to those defendants, who show title under John Grayham; but insists  that only two of the defendants  show such title, and that the plaintiffs are entitled to judgment against the others. \nThere is no question respecting the law as applicable to the fact; but some doubt exists respecting the fact. It is understood to be settled in Kentucky, that their limitation act of 1809 protects those only who are connected with a patent from government, by paper title; and the record shows conveyances from Grayham to Ratliffe and Owings only: but it cannot escape us, that the object of the plaintiffs' motion and exception was to bring into review and question the constitutionality of the act of 1809. He therefore does not discriminate between those who have and those who have not title. His motion comprehends all the defendants. The instruction given by the judge is also in general terms: obviously not contemplating any difference of situation or right between the several defendants. We find expressions in the conclusion of the instruction, leading to the opinion that in fact there was no distinction between the defendants. After declaring that the statute was a bar, the judge adds, \"unless the jury should find that Susan Madison was a feme covert  when her father, the patentee, died; or was so at the time the defendants acquired their titles by contract or deed from the patentee, John Grayham.\" The words \"at the time the defendants acquired their titles by contract or deed from the patentee, John Grayham,\" can apply to those defendants only who did so acquire their title. The language of the judge cannot be construed to indicate, that the conveyance to Ratliffe and Owings could avail those who did not claim under them. The defendants might all claim under them. Some confusion, undoubtedly, exists in the statement of the fact, both in the motion and in the instruction; but we think both may be fairly understood as applying only to defendants claiming under John Grayham. We cannot say that this instruction is erroneous. \nThe judgment is reversed, for error in the entire exclusion of the testimony of Mrs Eppes; and the cause is to be remanded, with instructions to award a venire facias de novo. \nThis cause came on to be heard on the transcript of the record,  from the circuit court of the United States for the seventh circuit and district of Kentucky, and was argued by counsel. On consideration whereof, this court  is of opinion that there is error in the proceedings and judgment of the said circuit court in this, that the testimony of Mrs Eppes, a witness in the said cause, was totally excluded; whereas the same ought to have  been admitted, so far as it conduced to prove the death of James Madison, the ancestor of the plaintiffs. Therefore it is considered, ordered and adjudged by this court, that the said judgment be, and the same is hereby reversed and annulled; and that the cause be and the same is hereby remanded to the said circuit court with directions to award a venire facias de novo. \n \n\n ", " \nOpinion \n\n \n \n  Mr Chief Justice MARSHALL delivered the opinion of the Court: \nThis suit was instituted by Drake and Mitchel, merchants of Havana, in Cuba, against Charles Edmonston, merchant of Charleston, in the court of the United States for the sixth circuit and district of South Carolina; in order to recover the balance of an account due to Drake and Mitchel from J. and T. Robson, who were merchants and partners of Columbia, in South Carolina. \nThomas Robson being about to proceed to the Havana, for the purpose of making a speculation in coffee, obtained from Mr Edmonston the following letter of credit. \nCharleston, April 16, 1825. \nMessrs Castillo and Black, -- Gentlemen,  -- The present is intended  as a letter of credit in favour of my regarded friends, Messrs. J. and T. Robson, to the amount of forty or fifty thousand dollars, which sum they may wish to invest through you in the produce of your island. Whatever engagements these gentlemen may enter into will be punctually attended to. With my best wishes for the success of this undertaking, I am, gentlemen, yours respectfully, Charles Edmondston. \nOn his arrival in Havana, Mr Robson presented his letter of credit to Messrs Castillo and Black; who being unable to undertake the business, introduced him to Drake and Mitchel, and showed them the letter of Mr Edmondston, but did not deliver it to them. At this interview an agreement was entered into between Robson, and Drake and Mitchel, the particulars of which are stated in the following letter. \nHavana, April 28, 1825. \nMessrs Drake and Mitchel, -- Gentlemen, -- I intend sailing to-morrow morning in the schooner Felix bound for Charleston, South Carolina, wind and weather permitting.I will thank you to execute the following order, at your earliest convenience, provided you feel yourselves warranted in so doing from the letter of credit  I produced, viz. two to three thousand bags of prime green Havana coffee, provided the same can be had at prices from eleven to thirteen dollars, and for extra prime large lots thirteen and a half. Bills on New York at sixty days at two and a half to five per cent premium, and to be governed in said purchase by the rise and fall in foreign markets, exercising your better judgment thereon.Said coffee to be forwarded, by first good opportunity, to Charleston, South Carolina, on board of a good, sound and substantial vessel, addressed to the care of Boyce and Henry, Kunhart's wharf, Charleston. Bills of loading to be immediately forwarded to New York, and insurance ordered thereon to the full amount. Invoice of coffee, with duplicate loading, to be made out in the name of J. and T. Robson, and forwarded with advice of drafts to the care of Boyce and Henry, Charleston. Wishing you success in said purchase; and claiming your particular attention thereto; I am, gentlemen, your obedient servant, Tho. Robson. \nPlease inform me the name of the house to whom the bills of loading, &c. will be addressed. \n On the succeeding day, notice of this arrangement was communicated to Charles  Edmondston in the following letter. \nHavana, April 29, 1825. \nCharles Edmondston, Esquire, -- Dear Sir, -- In virtue of your letter of credit to Messrs Castello and Black in favour of Messrs J. and T. Robson, and at their request, we have consented to purchase two thousand bags of coffee to be consigned to Messrs Boyce and Henry of your city; the insurance to be effected by Messrs Goodhue and Co. of New York, upon whom we are to draw for the amount, by reason of the facility of negotiations; Mr Robson, or his friends, remitting the money to these gentlemen to meet our drafts. Mr. Robson, who carries this, will no doubt explain to you in person this negotiation, and we trust that there will be no demur in forwarding the necessary funds, with the cost of insurance. We are, &c. Drake and Mitchel. \nOn the 25th of May, a short letter on business from Charles Edmondston to Drake and Mitchel concluded in these terms: \n\"In acknowledging the receipt of yours of the 29th of April, I cannot help expressing my grateful feelings at the manner you treated my letter of credit in Robson's favour; I am, &c. Charles Edmondston.\" \nThe shipment of coffee for J. and T. Robson was completed by the 17th  of May; and on the 21st of that month, Drake and Mitchel had drawn bills on New York for nearly fifteen thousand dollars, which were regularly paid. On that day they determined, of their own accord, to change the mode of reimbursement; and on the 25th drew bills on London for four thousand pounds sterling. This was communicated to  Messrs Boyce and Henry, the agents of J. and T. Robson, at Charleston, in the following letter: \n21st May 1825. \nGentlemen, -- We crave reference to our last respects per brig Catharine, which vessel we hope is safely arrived at this date. We have this day received accounts from your city and from New York, announcing to us the decline in the price of coffee; it is therefore well that we had not gone to the full extent of the instructions of Mr Robson. We also  note the decline of your exchange on London, and as ours is still maintained at fourteen per cent, it has occurred to us to alter our plan of reimbursements for the benefit of the interested in these coffee purchases, by drawing on London for the balance of our shipments -- for some houses here are drawing on the United States at par, to one per cent; a rate which we cannot  submit to; we are accordingly about to value on our friends Messrs Campbell, Bowden and Co., to be covered by you, or Messrs Goodhue & Co. as you may direct, to the amount of four thousand pounds sterling, which at four hundred and forty-four dollars, at fourteen per cent, amounts to twenty-thousand two hundred and forty-six dollars and forty cents. And we have already drawn upon Messrs Goodhue and Co. twelve thousand six hundred and ninety-nine dollars twelve cents, with premium, three, and two and a half per cent; three hundred and thirty-sevne dollars and forty-three cents, and to complete this account we have again drawn on the same, two thousand and seventy-one dollars and thirty-four cents, at two and a half per cent, two thousand one hundred and twenty three dollars and twelve cents; making together thirty-five thousand four hundred and six dollars seven cents, from which deducting our commission for drawing and negotiating, two and a half per cent, the remainder, thirty-four thousand five hundred and twenty-two dollars, will then be equal to the amount of our three invoices per Eagle, Hannah and Catharine, as per inclosed statement. We trust that these dispositions will meet  your approbation, and we pray you to make the necessary remittances to Messrs Campbell, Bowden & Co. including their commission and any other incidental charges. \nOn the same day Drake and Mitchel drew their last bill on New York, which was duly honoured. \nJ. and T. Robson, afterwards, on the 4th of June, assented to this alteration in the mode of reimbursement; and directed their agents Boyce and Henry to conform to it. They remitted a bill drawn by J. B. Clough on his firm of Crowder, Clough and Co. of Liverpool, at sixty days sight, for four thousand pounds sterling, on account of Drake and Mitchel. \nNo notice of this transaction appears to have been given to Mr Edmondston. On the 16th September, Drake and Mitchel inclosed  to him for collection, a small order on T. Robson, in the following words: \nHavana, 16th September 1825. \nThomas Robson, Esq., Charleston. -- Please pay Charles Edmondston, Esq., or order, the sum of twenty-six dollars, for balance of your account with, dear sir, your obedient servants, Drake and Mitchel. \nThe bill on Crowder, Clough and Co. having been returned under dishonour, Drake and Mitchel, in a letter of the 15th of October, employed Mr  Edmondston as their agent, to obtain its amount from the Robsons, or from Boyce and Henry. in a letter of the 5th of November, Mr Edmonston informed Drake and Mitchel of the ill success of his endeavours to procure payment. The Robsons, who were insolvent, considered themselves as discharged from the debt, by remitting the bill on London, in conformity with the direction sof Drake and Mitchel; and Boyce and Henry, whose names were not on the bill, said they had acted only as agents of the Robsons, and of Drake and Mitchel. After some correspondence between Mr Edmondston, and Drake and Mitchel, on the liability of the former for the protested bill on Crowder, Clough and Co., in the course of which Mr Edmondston transmitted to them a copy of his letter to Castillo and Black; this suit was instituted on the original letter of credit of the 16th of April 1825, and on the letter addressed by Edmondston to Drake and Mitchel, on the 25th of May following. \nAt the trial of the cause, the following bills of exceptions were taken: \nFirst Exception. The counsel for the defendant insisted that the letter of the defendant, of the 16th of April 1825, addressed to Castillo and Black, was not a  general letter of credit, but an engagement only to guaranty the contracts of J. and T. Robson with Castillo and Black, and not with the plaintiffs; and that the said guarantee was not assignable; and that the defendant on the said letter was not accountable to the plaintiffs. But the court instructed the jury, that the said letter of the 16th of april 1825 was a general letter of credit, in favour of J. and T. Robson; that it authorized the said Castillo and Black,  not only to give, but to producre a credit for the said Robsons; and if the jury believed that under the said letter the said Castillo and Black had procured such credit for them with Drake and Mitchel, that Drake and Mitchel, the plaintiffs, had, under this letter, the same right to call on the defendant to make good the contracts of J. and T Robson with them the plaintiffs, as Castillo and Black would have had, if they, Castillo and Black, had, on the fiath of this letter, contracted with the said J. and T. Robson. \nSecond. And the counsel for the defendant contended, and so moved the court to instruct the jury, that in order to make the defendant liable to the plaintiffs, under the said contract, they were  bound by the law merchant to give him due notice thereof; and as the defendant neither received notice of, nor ever assented to the subsequent change as to the place or form of payment, he was fully discharged therefrom; on which the court, being divided in opinion, refused to give the instruction. It was, therefore, not given to the jury. And, on the contrary, his honor judge Lee, one of the presiding judges, charged and instructed the jury, that they, the plaintiffs, were not bound to give the defendant notice of the original contract, and though they gave him notice of it, they were not bound to give him notice of the alteration made in it. \nThird. And the counsel for the defendant argued to the court, and requested the court so to instruct the jury, that if the defendant  was bound at all to the plaintiffs, he was bound for the performance of the agreement made between the Robsons and the plaintiffs, as set forth in the letter of Thomas Robson to them, dated the 28th of April, and the plaintiffs' letter of the 29th of April 1825, to the defendant; and that the arrangement afterwards made between the plaintiffs and Robson, for payment in London, instead of New York,  was an alteration of the contract; and the defendant not having consented thereto, was not bound for the performance of the agreement thus altered, but was discharged from his liability, if, in fact, he was at all liable: but, the court being divided, refused to give such instruction. \nFourth. And the counsel for the defendant further argued to the court, and requested the court so to charge and instruct the jury, that the guarantee of the defendant was not a continuing  guarantee, and could not be extended to any other engagements than those mentioned in the letter of the plaintiffs to him, of the 29th of April aforesaid, and set forth in that of Thomas Robson to them, of the 28th of April aforesaid; and that the change in the place of payment, from New York to London, made without due notice thereof given to the defendant, discharged him from the said guarantee: but the court, being divided in opinion, refused to give such instruction. \nFifth. And the counsel for the defendant further argued to the court, and requested the court so to charge and instruct the jury, that the plaintiffs in their letter of the 29th of April, having given notice to the defendant of the contract  made by them with the Robsons, in virtue of his the defendant's letter of the 16th of April, were bound to give him notice of the change of the contract; and as they did not give him any such notice, he is thereby discharged. But the court, being divided in opinion, refused to give the instruction: it was therefore not given to the jury; and on the contrary, his honor judge Lee, one of the presiding judges, charged and instructed the jury, that the plaintiffs were not bound to give the defendant notice of the original contract; and though they gave him notice of it, they were not bound to give him notice of any alteration made in it. \nThe jury found a verdict for the plaintiffs; the judgment on which is brought before this court by writ of error. \nIn the view which the court takes of the case, it is unnecessary to decide on the first instruction given by the circuit court. If the letter of the 16th of April 1825 was limited to Castillo and Black, that of the 25th of May, unquestionably sanctioned the advances made by Drake and Mitchel on its authority; and made Edmondston responsible for Robson's contract with them. It is on his part a collateral undertaking, which binds him as  surety for the Robsons, that they will comply with their contract. No doubt exists respecting his original liability. The inquiry is, has the subsequent conduct of the parties released him from it? \nIt is necessary to ascertain exactly what the contract really was. The evidence of it is to be found in the letter of T. Robson to Drake and Mitchel, of the 28th of April 1825, and in the letter written by Drake and Mitchel to Edmondston on  the succeeding day. The first states the order to be executed by Drake and Mitchel. It is for \"two to three thousand bags of prime green Havana coffee, provided the same can be had at prices from eleven to thirteen dollars, and for extra prime large lots, thirteen and a half. Bills on New York at sixty days, at two and a half to five per cent premium, and to be governed in said purchase by the rise or fall in foreign markets, exercising your better judgment thereon.\" The last states it to Edmondston in the following words: \"We have consented to purchase two thousand bags of coffee, to be consigned to Messrs Boyce and Henry of your city, the insurance to be effected by Messrs Goodhue and Co. of New York, upon whom we are to draw for  the amount, by reason of the facility of negotiation; Mr Robson or his friends remitting the money to these gentlemen to meet our drafts.\" \nThe contract consists of the quantity of coffee to be purchased, the house to which it was to be shipped, and the mode of payment.On the quantity to be purchased, Drake and Mitchel were to exercise their judgment. It was to be from two to three thousand bags, as the rise or fall of foreign markets might render advisable. The letter of Drake and Mitchel, giving notice of the contract to Edmondston, shows their determination to limit their purchase to two thousand bags. On the other parts of the contract, if we are to judge from its language, they could exercise no discretion. The coffee was to be shipped to Boyce and Henry of Charleston, and the mode of payment was settled definitively. It was to be by remittances to Messrs Goodhue and Co. of New York, on whom Drake and Mitchel were to draw at a rate of exchange settled between the parties. This contract was obligatory in all its parts, and when communicated to Mr Edmondston, gave him precise information of the extent of his liability. His letter of the 25th May was written with a view to  the particular contract, which had been thus communicated. \nIn estimating the influence of this notice on the cause, it has been supposed of some consequence to establish its necessity. The district judge, sitting in the circuit court, informed the jury that it was not necessary. The attempt has not been made to sustain this instruction in its terms, but to explain it so as to limit it to the necessity of giving Mr Edmondston notice  of the mode in which Drake and Mitchel were to be reimbursed for the coffee. This was probably the intention of the judge. It would indeed be an extraordinary departure from that exactness and precision which peculiarly distinguish commercial transactions, which is an important principle in the law and usage of merchants, if a merchant should act on a letter of this character, and hold the writer responsible, without giving notice to him that he had acted on it. The authorities quoted at the bar, on this point, unquestionably establish this principle. \nIf it were incumbent on Drake and Mitchel to give notice to Mr Edmondston that they had acted on his letter of credit, did the nature of the transaction require a communication of that part  of the contract which stipulated for the mode of payment? \n It cannot be alleged that this part of it was of no importance, or that it did not concern Mr Edmondston. It is an essential article in all contracts, and was of peculiar interest to Mr Edmondston in this. The parties thought the particular mode of reimbursement of sufficient importance to stipulate for it, expressly, in their agreement. We cannot determine positively whether it was or was not a matter of indifference to them. They selected this; and when selected, it became a part of the contract. Each had consequently a right to insist upon it. \nWe have said that this part of the agreement was of peculiar interest to Mr Edmondston. For any failure in it, he was responsible. Being informed of the place on which bills were to be drawn by Drake and Mitchel, and to which remittances to meet them were to be made, he was enabled to bestow that general attention on the course of the business which he might think necessary for his own safety. He might observe, generally, the shipments made on account of the Robsons to New York, and be led to farther inquiry by any apparent remissness. Drake and Mitchel seem to  have given him the information with this view. After saying they are to draw on Messrs Goodhue & Co. of New York, they add, \"Mr Robson, or his friends, remitting the money to these gentlemen to meet our drafts.\" It was essential to Mr Robson, or to the friends by whom the remittances might be made,  that the place and persons to whom they might be made should be fixed. \nWe cannot consider this part of the agreement as immaterial. It was the part in which Mr Edmondston was most deeply interested. \nBeing part of the contract, it is not pretended that Drake and Mitchel could alter it without the consent of the Robsons. They could no more vary a contract made, than they could make one originally. The one, as much as the other, requires the consent of both parties. \nDrake and Mitchel, and the Robsons, being capable of binding themselves by an original contract, were equally capable of varying that contract at will. But though capable of binding themselves, they were not capable of binding Mr Edmondston. To this his own consent was indispensable. Any new stipulation introduced into it was so far a new contract, which could only affect themselves. Mr Edmondston was a stranger  to it, unless his letter to Castillo and Black of the 16th of April 1825, in connexion with his letter to Drake and Mitchel of the 25th of May, in the same year, made him a party to it. \nThe letter of the 16th of April, in its object and its language, is limited to a contract to be made by Mr Robson during his stay in the Havana. It was written for a special purpose, and its obligation could be extended no farther when that purpose was accomplished. It was intended to pledge the credit of the writer to the amount of forty or fifty thousand dollars, to be invested by Mr Robson in the purchase of the produce of the island. The letter was directed to an operation for which Mr Robson went to the Havana, and which was to be completed while there. It was addressed to merchants of that place, and relates to an operation to be performed in that place. If instead of proceeding to the Havana, and purchasing the produce of the island, he had proceeded to Great Britain, and purchased a cargo of woollens; it would scarcely be pretended that the vendor trusted to this letter. Still less could it be pretended, if, after actually making the contract in Havana, he had proceeded to Europe, and  made purchases in that part of the world. The cases cited in argument show that in law and in the understanding of  commercial men, the credit given by such a letter is confined to the particular operation and to the particular time. It extended to no contract made by Robson after returning to the United States. \nStill less can the letter of the 25th of May avail the defendants in error. That is obviously confined to the contract stated in the letter of Drake and Mitchel, to which it is an answer. \nThe credit then given in the letter of Mr Edmondston was exhausted by the contract made by Robson while at Havana, and the extent of his responsibility under those letters is confined to that contract. Drake and Mitchel, and the Robsons could no more affect him by any change in its terms, than by an entirely new stipulation, or an entirely new contract. \nIt has been said that this change was made for the advantage of the Robsons, and with their consent. It is immaterial whether it was made for the benefit of the Robsons, or of Drake and Mitchel, or of both. They had no right to vary a contract for their own benefit at the hazard of Mr Edmondston. \nIt has been urged that  the risk of remittances to New York was as great as the risk of bills on England. Were this true, it could not affect the case. Mr Edmondston had a right to exercise his own judgment on the risk; and the persons who varied this contract had no right to judge for him. \nBut is it true that the risk was not increased? While payments were to be made in New York, the agents in the transaction were in some measure within the view of Mr Edmondston. He could observe their situation, and act for his own safety. This power is essentially diminished, when a bill without his knowledge, on a house of whose stability he may be ignorant, is remitted at sixty days sight to England. It is on every reasonable calculation, at all events, a prolongation of the risk. \nThe contract at the Havana may be considered as one to be performed immediately. It does not appear that any time was given for the shippment of the coffee; and the whole transaction has the appearance that the bills were to be drawn as soon as the coffee was shipped. The last bill on New York was drawn on the 21st of May, and notice of the bill on London  was given on the 26th of that month. It may be considered then,  as a transaction to be completed as soon as the nature of the business would permit. It might be reasonably supposed, that it would be completed before the condition of the parties would be essentially changed. Had the bill which was drawn on London been drawn at the same time on New York, there is reason to believe that it would have been paid. \nThe change in the mode of payment, by substituting  a bill on London at long sight, necessarily prolonged the time at which payment should be made, and prolonged the risk of Mr Edmondston. This they had no right to prolong, without his consent. \nIt is admitted that Drake and Mitchel could not change the mode of payment, without the consent of the Robsons. Then, it is a part of the contract; of that contract, for which alone Mr Edmondston became responsible. \nIt has been said that the engagement respecting the place of payment was contingent, dependent on the facility of negotiations, and subject to any future arrangement to be made between the parties. \nWe do not so understand the agreement. Its terms are positive, dependent upon no contingency. \"The facility of negotiations\" was the motive for the stipulation. No hint of  a reserved power to change it, is given either in the letter of T. Robson to Drake and Mitchel, or in theirs to Edmondston. It was not a contingent but an absolute arrangement, as absolute as any other part of the contract. \nWe think the court erred in not giving the second, third, fourth, and fifth instructions to the jury, and the judgment ought to be reversed, and the cause remanded with directions to award a venire facias de novo. \nThis cause came on to be heard on the transcript of the record from the circuit court of the United States, for the district of South Carolina, and was argued by counsel: on consideration whereof, it is ordered and adjudged by this court, that the judgment of the said circuit court in this cause be, and the same is hereby reversed; and that this cause be, and the same is hereby remanded to the said circuit court, with instructions to award a venire facias de novo. \n \n\n ", " \nOpinion \n\n \n \n  Mr Chief Justice MARSHALL delivered the opinion of the Court. \nThis bill is brought by the Cherokee nation,  praying an injunction to restrain the state of Georgia from the execution of certain laws of that state, which, as is alleged, go directly to annihilate the Cherokees as a political society, and to seize, for the use of Georgia, the lands of the nation which have been assured to them by the United States in solemn treaties repeatedly made and still in force. \nIf courts were permitted to indulge their sympathies, a case better calculated to excite them can scarcely be imagined. A people once numerous, powerful, and truly independent, found by our ancestors in the quiet and uncontrolled possession of an ample domain, gradually sinking beneath our superior policy, our arts and our arms, have yielded their lands by successive treaties, each of which contains a solemn guarantee of the residue, until they retain no more of their formerly extensive territory than is deemed necessary to their comfortable subsistence. To preserve this remnant, the present application is made. \nBefore we can look into the merits of the case, a preliminary inquiry presents itself. Has this court jurisdiction of the cause? \nThe third article of the constitution describes the extent of the judicial power.The  second section closes an enumeration of the cases to which it is extended, with \"controversies\" \"between a state or the citizens thereof, and foreign states, citizens, or subjects.\" A subsequent clause of the same section gives the supreme court original jurisdiction in all  cases in which a state shall be a party. The party defendant may then unquestionably be sued in this court. May the plaintiff sue in it? Is the Cherokee nation a foreign state in the sense in which that term is used in the constitution? \nThe counsel for the plaintiffs have maintained the affirmative of this proposition with great earnestness and ability. So much of the argument as was intended to prove the character of the Cherokees as a state, as a distinct political society, separated from others, capable of managing its own affairs and governing itself, has, in the opinion of a majority of the judges, been completely successful. They have been uniformly treated as a state from the settlement of our country. The numerous treaties made with them by the United States recognize them as a people capable of maintaining the relations of peace and war, of being responsible in their political character  for any violation of their engagements, or for any aggression committed on the citizens of the United States by any individual of their community. Laws have been enacted in the spirit of these treaties. The acts of our government plainly recognize the Cherokee nation as a state, and the courts are bound by those acts. \nA question of much more difficulty remains. Do the Cherokees constitute a foreign state in the sense of the constitution? \nThe counsel have shown conclusively that they are not a state of the union, and have insisted that individually they are aliens, not owing allegiance to the United States. An aggregate of aliens composing a state must, they say, be a foreign state. Each individual being foreign, the whole must be foreign. \nThis argument is imposing, but we must examine it more closely before we yield to it. The condition of the Indians in relation to the United States is perhaps unlike that of any other two people in existence. In the general, nations not owing a common allegiance are foreign to each other. The term foreign nation is, with strict propriety, applicable by either to the other. But he relation of the Indians to the United States is marked by  peculiar  and cardinal distinctions which exist no where else. \n The Indian territory is admitted to compose a part of the United States. In all our maps, geographical treatises, histories, and laws, it is so considered. In all our intercourse with foreign nations, in our commercial regulations, in any attempt at intercourse between Indians and foreign nations, they are considered as within the jurisdictional limits of the United States, subject to many of those restraints which are imposed upon our own citizens. They acknowledge themselves in their treaties to be under the protection of the United States; they admit that the United States shall have the sole and exclusive right of regulating the trade with them, and managing all their affairs as they think proper; and the Cherokees in particular were allowed by the treaty of Hopewell, which preceded the constitution, \"to send a deputy of their choice, whenever they think fit, to congress.\" Treaties were made with some tribes by the state of New York, under a then unsettled construction of the confederation, by which they ceded all their lands to that state, taking back a limited grant to themselves, in which  they admit their dependence. \nThough the Indians are acknowledged to have an unquestionable, and, heretofore, unquestioned right to the lands they occupy, until that right shall be extinguished by a voluntary cession to our government; yet it may well be doubted whether those tribes which reside within the acknowledged boundaries of the United States can, with strict accuracy, be denominated foreign nations. They may, more correctly, perhaps, be denominated domestic dependent nations. They occupy a territory to which we assert a title independent of their will, which must take effect in point of possession when their right of possession ceases. Meanwhile they are in a state of pupilage. Their relation to the United States resembles that of a ward to his guardian. \nThey look to our government for protection; rely upon its kindness and its power; appeal to it for relief to their wants; and address the president as their great father. They and their country are considered by foreign nations, as well as by ourselves, as being so completely under the sovereignty and dominion of the United States, that any attempt to acquire their lands, or to form a political connexion with them, would   be considered by all as an invasion of our territory, and an act of hostility. \nThese considerations go far to support the opinion, that the framers of our constitution had not the Indian tribes in view, when they opened the courts of the union to controversies between a state or the citizens thereof, and foreign states. \nIn considering this subject, the habits and usages of the Indians, in their intercourse with their white neighbours, ought not to be entirely disregarded. At the time the constitution was framed, the idea of appealing to an American court of justice for an assertion of right or a redress of wrong, had perhaps never entered the mind of an Indian or of his tribe. Their appeal was to the tomahawk, or to the government. This was well understood by the statesmen who framed the constitution of the United States, and might furnish some reason for omitting to enumerate them among the parties who might sue in the courts of the union. Be this as it may, the peculiar relations between the United States and the Indians occupying our territory are such, that we should feel much difficulty in considering them as designated by the term foreign state, were there no  other part of the constitution which might shed light on the meaning of these words. But we think that in construing them, considerable aid is furnished by that clause in the eighth section of the third article; which empowers congress to \"regulate commerce with foreign nations, and among the several states, and with the Indian tribes.\" \nIn this clause they are as clearly contradistinguished by a name appropriate to themselves, from foreign nations, as from the several states composing the union. They are designated by a distinct appellation; and as this appellation can be applied to neither of the others, neither can the appellation distinguishing either of the others be in fair construction applied to them. The objects, to which the power of regulating commerce might be directed, are divided into three distinct classes -- foreign nations, the several states, and Indian tribes. When forming this article, the convention considered them as entirely distinct. We cannot assume that the distinction was lost in framing a subsequent article, unless there be something in its language to authorize the assumption. \nThe counsel for the plaintiffs contend that the words \"Indian   tribes\" were introduced into the article, empowering congress to regulate commerce, for the purpose of removing those doubts in which the management of Indian affairs was involved by the language of the ninth article of the confederation. Intending to give the whole power of managing those affairs to the government about to be instituted, the convention conferred it explicitly; and omitted those qualifications which embarrassed the exercise of it as granted in the confederation. This may be admitted without weakening the construction which has been intimated: Had the Indian tribes been foreign nations, in the view of the convention; this exclusive power of regulating intercourse with them might have been, and most probably would have been, specifically given, in language indicating that idea, not in language contradistinguishing them from foreign nations. Congress might have been empowered \"to regulate commerce with foreign nations, including the Indian tribes, and among the several states.\" This language would have suggested itself to statesmen who considered the Indian tribes as foreign nations, and were yet desirous of mentioning them particularly. \nIt has been also said, that  the same words have not necessarily the same meaning attached to them when found in different parts of the same instrument: their meaning is controlled by the context. This is undoubtedly true. In common language the same word has various meanings, and the peculiar sense in which it is used in any sentence is to be determined by the context. This may not be equally true with respect to proper names. Foreign nations is a general term, the application of which to Indian tribes, when used in the American constitution,  is at best extremely questionable. In one article in which a power is given to be exercised in regard to foreign nations generally, and to the Indian tribes particularly, they are mentioned as separate in terms clearly contradistinguishing them from each other. We perceive plainly that the constitution in this article does not comprehend Indian tribes in the general term \"foreign nations;\" not we presume because a tribe may not be a nation, but because it is not foreign to the United States. When, afterwards, the term \"foreign state\" is introduced, we cannot impute to the convention the intention to desert its former meaning, and to comprehend Indian tribes  within it, unless the context force that  construction on us. We find nothing in the context, and nothing in the subject of the article, which leads to it. \nThe court has bestowed its best attention on this question, and, after mature deliberation, the majority is of opinion that an Indian tribe or nation within the United States is not a foreign state in the sense of the constitution, and cannot maintain an action in the courts of the United States. \nA serious additional objection exists to the jurisdiction of the court.Is the matter of the bill the proper subject for judicial inquiry and decision? It seeks to restrain a state from the forcible exercise of legislative power over a neighbouring people, asserting their independence; their right to which the state denies. On several of the matters alleged in the bill, for example on the laws making it criminal to exercise the usual powers of self government in their own country by the Cherokee nation, this court cannot interpose; at least in the form in which those matters are presented. \nThat part of the bill which respects the land occupied by the Indians, and prays the aid of the court to protect their possession, may  be more doubtful. the mere question of right might perhaps be decided by this court in a proper case with proper parties. But the court is asked to do more than decide on the title. The bill requires us to control the legislature of Georgia, and to restrain the exertion of its physical force. The propriety of such an interposition by the court may be well questioned. It savours too mch of the exercise of political power to be within the proper province of the judicial department. But the opinion on the point respecting parties makes it unnecessary to decide this question. \nIf it be true that the Cherokee nation have rights, this is not the tribunal in which those rights are to be asserted. If it be true that wrongs have been inflicted, and that still greater are to be apprehended, this is not the tribunal which can redress the past or prevent the future. \nThe motion for an injunction is denied. \nDissent by:", " \nOpinion \n\n \n \n  Mr Chief Justice MARSHALL delivered the opinion of the Court. \nThis is an appeal from a decree of the court of the United States for the seventh circuit and district of Kentucky, dismissing the plaintiffs  bill filed in that court, with costs. \nThe bill states that the plaintiffs are the heirs and representatives of Sarah G. Elliott, deceased, who departed this life  intestate, seised of a valuable estate in the county of Woodford, which descended to them. That in her life time, in the year 1813, James Elliott, her husband, caused a deed to be made and recorded, purporting to be executed by the said Sarah G. and himself, for the purpose of conveying the said land to Benjamin Elliott, who immediately re-conveyed the same to the said James Elliott. The complainants allege, that this deed was never properly executed by their ancestor; that she was induced by the said James to believe, that it conveyed only an estate for her life; that she was prevailed on under this belief to accompany him to the clerk's office, where she acknowledged the said deed without any privy examination, which is required by law. The deed was recorded on her acknowledgement without any certificate of privy examination. The said Sarah G. departed this life in the year 182, soon after which her heirs brought an ejectment in the circuit court for the recovery of the land. While it was depending, in November  1823, the said James Elliott, having failed in an attempt to induce the clerk to alter the record, prevailed on the county court of Woodford, on the motion of Benjamin Elliott, to make the following order. \n\"Woodford county, sct. -- November county court, 1823. \n\"On motion of Benjamin Elliott, by his attorney, and it appearing to the satisfaction of the court by the indorsement on the deed from James Elliott and wife to him, under date of the 12th of June 1813, and by parol proof that the said deed was acknowledged in due form of law by Sarah Elliott, before the clerk of this court, on the 11th day of September 1813, but that the certificate thereof was defectively made out, it is ordered that the said certificate be amended to conform to the provisions of the law in such cases, and that said deed and certificate, as amended, be again recorded; whereupon the said certificate was directed to be amended to read in the words and figures following, to wit: \n\"Woodford county, sct. -- September 11, 1813. \n\"This day the within named James Elliott, and Sarah his wife, appeared before me, the clerk of the court for the county aforesaid,  and acknowledged the within indenture to be  their act and deed; and the said Sarah being first examined privily and apart from her said husband, did declare that she freely and  willingly sealed and delivered said writing, which was then shown and explained to her by me, and wished not to retract it, but consented that it should be recorded.\" The said deed, order of court, and certificate, as directed to be amended, is all duly recorded in my office. \nTeste, JOHN MCKINNEY, JR., C.W.C.C. \nIndorsements on the back of the foregoing deed, to wit: -- James Elliott et ux. to Benjamin Elliott -- Deed. \nAcknowledged by James Elliott and Sarah G. Elliott, September 11, 1813. \nAtt. J. MCKINNEY, JR., C.W.C. \nR.B.F. page 199. Recorded deed-book K, page 56, 57. \nAtt. C.H.Mc., D. Clk. \nThe said James Elliott departed this life during the pendency of the ejectment: it was revived against James Elliott, his son, as terre tenant, and determined in favour of the plaintiffs in November 1823. The bill, which was filed during the term at which the judgment in ejectment was rendered, alleges that the defendants retain possession of the premises by themselves and their tenants, who are doing great waste by cutting and destroying  the timber, and who threaten to continue their possession by suing out a writ of error to the judgment of the court. It charges that the defendants are receiving the rents, which some of them will be unable to repay; prays for an injunction to stay waste; that a receiver may be appointed; that the rents, from the death of Sarah G. Elliott, may be accounted for; that the deed may be surrendered up to be cancelled; and for further relief. \nThe injunction was awarded. \nThe writ of error to the judgment of the circuit court came on to be heard in this court at January term 1828, 1 Peters, 328, when the judgment was affirmed; this court being of opinion that the deed from James Elliott and Sarah G. his wife, was totally incompetent to convey the title of the said Sarah G. to the tract of land therein mentioned. \nIn November 1828, the defendants filed their answer, in which they claim the land in controversy as heirs of James Elliott, deceased. They insist that the deed from James Elliott and Sarah G. his wife, recorded in the court of Woodford county, was fairly and legally executed, and conveyed the  land it purports to convey.That Sarah G. Elliott was privily examined according  to law, and that the omission to record her privy examination was the error of the clerk, which was afterwards corrected by order of the court, so as to conform to the truth of the case. They deny that the deed from Sarah G. Elliott was obtained by any misrepresentation; and say, they have heard that the judgment of the circuit court has been affirmed in the supreme court, and that they have not determined to prosecute any other suit, but hope they will be left free on that subject. \nIn May term 1829, the cause came on to be heard, when the bill of the plaintiffs was dismissed with costs. They appeal from the decree to this court. \nThe principal object of the bill was to quiet the title by removing the cloud hanging over it, in consequence of the outstanding deed executed by James Elliott and Sarah G. his wife. This application is resisted in the argument, upon the principle, that the deed, having been declared by this court to be void on its face, can do no injury to the plaintiffs; who ought not therefore to be countenanced by a court of equity in an application to obtain the surrender of a paper from which they can have nothing to apprehend; by which application the defendants  are exposed, without reasonable cause, to unnecessary expense. That under such circumstances a court of equity can have no jurisdiction over the cause. \nThe court is well satisfied that this would be a proper case for a decree according to the prayer of the bill, if the defectiveness of the conveyance was not apparent on its face, but was to be proved by extrinsic testimony. The doubt respecting the propriety of the interference of a court of equity, is produced by the facts that the deed is void upon its face; and has been declared to be void by this court. It is therefore an unimportant paper, which cannot avail its possessor. The question whether a court of equity ought, in any case, to decree the possessor of such a paper to surrender it, is involved in considerable doubt; and is one on which the chancellors of England seem to have entertained different opinions. Lord Thurlow was rather opposed to the exercise of this jurisdiction, 3Bro. Ch. Rep. 15, 18; and Lord Loughborough appears to have concurred with him, 3 Ves. 368; and in Gray v. Matthias, 5 Ves. 286, the  court of exchequer refused to decree, that a bond which was void upon its face should be delivered up;  principally on account of the expense of such a remedy in equity, when the defence at law was unquestionable. In this case Chief Baron M'Donald said, that the defendant should have demurred to the action upon that bond. Instead of that, he comes here professing that it is a piece of waste paper. He goes through a whole course of equitable litigation, at the expense of two or three hundred pounds. In such a case, though equity may have concurrent jurisdiction, it is not fit in the particular case that equity should entertain the bill. \nLord Eldon inclined to favour the jurisdiction, 7 Ves. 3; 13 Ves. 581. He thought the power to make vexatious demands upon an instrument, as often as the purpose of vexation may urge the party to make them, furnished a reason for decreeing its surrender. \nIn 1 Johnson's Ch. Reports, 517, Chancellor Kent concludes a very able review of the cases on this subject with observing, \"I am inclined to think, that the weight of authority, and the reason of the thing, are equally in favour of the jurisdiction of the court, whether the instrument is or is not void at law, and whether it be void from matter appearing on its face, or from proof taken in the cause,  and that these assumed distinctions are not well founded.\" \nThe opinion of this learned chancellor is greatly respected by this court. He modifies it in some degree by afterwards saying, \"but,  while I assert the authority of the court to sustain such bills, I am not to be understood as encouraging applications where the fitness of the exercise of the power of the court is not pretty strongly displayed. Perhaps the cases may all be reconciled on the general principle, that the exercise of this power is to be regulated by sound discretion, a the circumstances of the individual case may dictate; and that the resort to equity, to be sustained, must be expedient, either because the instrument is liable to abuse from its negotiable nature; or because the defence not arising on its face, may be difficult or uncertain at law, or from some other special circumstance peculiar to the case, and rendering a resort here highly proper, and clear of all suspicion of any design to promote expense or litigation. If, however, the defect appears  on the bond itself, the interference of this court will still depend on a question of expediency, and not on a question of jurisdiction.\" \n The court forbears to analyse and compare the various decisions which have been made on this subject in England; because, after considering them, much contrariety of opinion still prevails, both on the general question of jurisdiction, where the instrument is void at law on its face, and on the expediency in this particular case of granting a perpetual injunction, or decreeing the deed to be delivered up and cancelled; and because we think that, although the prayer of the bill be rejected, the decree of dismission ought to be modified. \nThe defendants, in their answer, insist upon their title both at law and in equity, and on being left free to assert that title, if they shall choose so to do: a general dismission of the bill with costs, the court assigning no reason for that dismission, may be considered as a decree affirming the principles asserted in the answer; as leaving the defendants at full liberty to assert their title in another ejectment, and as giving some countenance to that title. \nWe also think that the bill ought not to have been dismissed with costs. In addition to the fact that the controversy respecting the title was not abandoned by the defendants, a fact which  is entitled to some influence on the question of costs, other considerations bear on this point. The bill prays that the defendants might be enjoined from committing waste whilst they retained possession of the premises; that a receiver might be appointed, and that an account of rents might be taken. These are proper objects of equity jurisdiction. If they had been accomplished when the decree was pronounced, the bill might have been dismissed, but not so far as is disclosed by the record, with costs. The defendants were not, we think, entitled to costs. We are therefore of opinion that the decree of the circuit court ought to be so modified as to express the principles on which the bill of the plaintiffs is to be dismissed, and ought to be reversed as respects costs. \nThis cause came on to be heard on the transcript of the record from the circuit court of the United States for the district  of Kentucky, and was argued by counsel; on consideration whereof, this Court is of opinion that the decree of the circuit court ought to have shown that the bill was dismissed, because the deed therein mentioned being void at law for matter apparent on its face, the plaintiff had  not shown any circumstances which disclosed a case proper for the interference of a court of equity to relieve against such void deed. And this court is further of opinion, that so much of the said decree as dismisses the bill with costs is erroneous and ought to be reversed. This court doth therefore reverse and annul the said decree, and direct that the case be remanded to the said circuit court with directions to modify the same according to the principles of this decree; and the parties are to bear their own costs in this Court. \n \n\n ", " \nOpinion \n\n \n \n  Mr Chief Justice MARSHALL delivered the opinion of the Court. \nThis case comes up from the court of the United States for the seventh circuit, and district of West Tennessee, on a certificate that the judges of that court were divided in opinion on the following questions. 1. Whether the plea of the statute of limitations is a bar to the recovery of the plaintiff, on the second count in the declaration? 2. Whether an action of debt can be supported on the cause of action set forth in said second count? 3. Whether the averment of the citizenship of Thomas Ramsey & Co., the payees of the note in the said second count, is sufficient to sustain the jurisdiction of this  court, under the provisions of the eleventh section of the judiciary act of 1789? \nThe second  count is a declaration in debt on a promissory note executed by the defendants, made payable to Thomas Ramsey & Co., then citizens of Tennessee, and indorsed by them, after becoming citizens of Alabama, to the plaintiff, a citizen of Alabama, who instituted the suit as assignee of the said note. \nThe first question depends on an act of the state of North Carolina, passed in the year 1715, and was the law of Tennessee; the eighth section of which enacts \"that all actions of trespass, detinue, actions sur trover and replevin for taking away of goods and chattels, all actions of account, and upon the case, all actions of debt for arrearages of rent, and all actions of assault, menace, battery, wounding and imprisonment, or any of them, which shall be sued or brought at any time after the ratification of this act, shall be brought within the time and limitation in this act expressed, and not after; that is to say, actions of account render, actions upon the case, actions of debt for arrearages of rent, actions of detinue, replevin and trespass, quare clausum fregit, within three years next after the ratification of this act, or within three years next after the cause of such action or  suit, and not after.\" \nThis statute bars the particular actions it recites, and no others. It does not bar actions of debt generally, but those only which are brought for arrearages of rent. This is not brought for arrearages of rent; and is consequently not barred. \nThe action of debt, unless it be brought for arrearages of rent, not being within this statute, the court perceives no other which bars it. If the seventh section of the thirty-first chapter of the act of 1715 was even to be considered as adopting the act of limitations of the fourth of James I., it would not affect this case, because the suit was brought within the time allowed by that act. \nThe act of 1786, chapter 4, was intended to make all bills, bonds, &c. negotiable, though under seal, and to enable the assignee to sue in his own name, and to bring an action on the case, notwithstanding the seal. The proviso of the fifth section, that \"the act of limitations shall apply to all bonds, bills, and other securities hereafter executed, made transferable by this  act, after the assignment or indorsement thereof, in the same manner as it operates by law against promissory notes,\" cannot, we think, be fairly  construed to extend the act of limitations in its operation on promissory notes. \nWe are therefore of opinion that the plea of the statute of limitations is not a bar to the recovery of the plaintiff, on the second count in his declaration. \nThe second question propounded is, whether an action of debt can be supported on the cause of action set forth in the second count? \nThe cause of action is a promissory note made by the defendants, and indorsed by the payees to the plaintiff. \nIn 1762 the legislature of North Carolina passed an act, chapter 9, \"for the more easy recovery of money due upon promissory notes, and to render such notes negotiable.\" The second section declares that all such notes, payable to order, \"may be assignable over in like manner as inland bills of exchange are by custom of merchants in England,\" and that the person or persons \"to whom such money is, or shall be payable, may maintain an action for the same, as they might upon such bill of exchange,\" and the person or persons \"to whom such note so payable to order is assigned or indorsed, may maintain an action against the person or persons,\" &c. \"who signed or shall sign such notes, or any who shall have indorsed  the same, as in cases of inland bills of exchange.\" The note claimed in the second count of the declaration is payable to order. \nIn 1786 the legislature passed \"an act to make the securities therein named negotiable,\" by which notes not expressed to be payable to order are placed on the same footing with those which are made so payable. The indorsee being thus entitled to sue in his own name, in like manner as on inland bills of exchange in England, the inquiry is, whether the indorsee of an inland bill of exchange may maintain an action of debt thereon in England. \nThis question was fully considered by this court in the case of Raburg et al. v. Peyton, reported in 2 Wheat. 385, which was an action of debt brought by the indorsee of a bill of exchange against the acceptor. The cases were reviewed in the opinion then given, and the court decided clearly, that both on principle and authority the action was maintainable. \n We therefore think that an action of debt can be supported on the cause of action set forth in the second count. \nThe third question asks, \"whether the averment of the citizenship of Thomas Ramsey & Co., the payees of the notes in the said second count,  is sufficient to sustain the jurisdiction of this court under the provisions of the eleventh section of the judiciary act of 1789? \nThat section gives jurisdiction to the circuit courts of the United States, where \"the suit is between a citizen of the state where the suit is brought, and a citizen of another state.\" This suit is brought in the circuit court for the state of Tennessee, by a citizen of Alabama, against a citizen of Tennessee. It comes, therefore, within the very words of the section, and  is within the jurisdiction of the court, unless taken out of it by the exception. The words of the exception, so far as they apply to the case, are, \"nor sball any district or circuit court have cognizance of any suit to recover the contents of any promissory note or other chose in action in favour of an assignee, unless a suit might have been prosecuted in such suit to recover the said contents if no assignment had been made.\" \nWhen this note was assigned, the payees, as is averred in the second count, had become citizens of Alabama, and might, consequently, have prosecuted a suit to recover the contents of the said note in the circuit court of the United States for Tennessee,  if no assignment had been made. The averment of the citizenship of Thomas Ramsey & Co. in the said second count, is therefore sufficient to sustain the jurisdiction of that court, under the provisions of the eleventh section of the judiciary act of 1789. \nAll which was ordered to be certified to the circuit court of the United States for the seventh circuit, and district of West Tennessee. \n \n\n ", " \nOpinion \n\n \n \n  Mr Chief Justice MARSHALL delivered the opinion of the Court. \nThis is a writ of error to a judgment in ejectment brought by the plaintiffs in error against the defendants in the court of the United States for the seventh circuit and district of Kentucky. The declaration was delivered to the defendants in March 1815. The declaration  contains a single count on the demise of Stephen Sicard. \nIn November term 1821, the plaintiff obtained leave to  amend his declaration by laying a demise in the names of the heirs of the original grantee of the commonwealth, or intermediate grantees; which amended  declaration was filed. The issues were joined in the usual form, and a jury sworn who found a verdict for the defendants, on which judgment was rendered by the court. \nAt the trial the plaintiff gave in evidence to the jury the patent to Joseph Phillips, and proved that it covered the land in controversy, and that the defendants were in adverse possession at the time of the commencement of this suit. He also offered in evidence copies of deeds which purported to convey the title from the patentee to Benjamin Stephens, from Stephens to Samuel Robert Marshall, and from Marshall to the plaintiff. The deed from Phillips to Stephens, dated the 16th day of October 1797, is attested by three subscribing witnesses, and the deed from Stephens to Marshall, dated the 25th day of December 1797, is attested by two subscribing witnesses. Each deed was proved by one of the subscribing witnesses thereto in June 1798, before Hilary Baker, mayor of the city of Philadelphia, who gave his official certificate thereof in the usual form. The deed from Marshall to the plaintiff, Sicard, dated the 25th day of May 1798, is attested by two subscribing witnesses, and is acknowledged by the grantor before the  mayor of Philadelphia in July 1798, who has given his official certificate thereof. These deeds were admitted to record on this testimony in April 1803, in the court of appeals in Kentucky. \nTo prove the loss of the originals, the plaintiff produced the receipt of Alexander Parker, dated the 9th of February 1803, acknowledging the receipt of the said deeds for the purpose of being recorded in the office at Frankfort in Kentucky; also the affidavit of the said Parker stating his receipt, and the purpose for which the deeds were delivered to him; as also that he had caused them to be recorded. Some time after this, being admitted to record, he was directed by Sicard to send them to him in Philadelphia. Some time before August 1804, he applied to Thomas Wallace to carry them, who undertook to do so, and directed him to leave them with the clerk of the said Wallace that evening. The affiant inclosed the three deeds in a sheet of paper directed to the said Sicard,  which he delivered that evening to the said Wallace's clerk, he believes William Scott, who promised to deliver them to the said Wallace. The affiant has never seen them since, but has heard that they were lost. He  believes the deeds to have been originals. He paid the taxes on said six thousand six hundred and eighty acres of land for several years, and saw it entered for taxation in the auditor's office. He believes that the said William Scott departed this life twelve or fifteen years ago. The plaintiff also produced the affidavit or deposition of Thomas Wallace, who proved that Mr Alexander Parker did say, that in the summer of 1803 he left at the store, or delivered to a young man (probably Mr Scott), then living with the deponent, sundry papers said to be deeds, the property of the said Sicard, to be carried from Lexington to Philadelphia by the deponent. He knows nothing of the papers, nor does he recollect ever to have seen them. He has searched for them among his papers, but cannot find them. He verily believes they were not delivered to him. \nThe plaintiff also produced the deposition of Mary Powell, widow of Benjamin Powell, one of the subscribing witnesses to the deed from Benjamin Stephens to Samuel Robert Marshall, who deposed that she understood from her husband that he had witnessed a deed from Stephens to Marshall; that he had been dead about two years. Some time previous to  his death, he accompanied the plaintiff, Sicard, for the purpose of attesting the fact of his having subscribed the said deed as a witness; and from several conversations which passed between the said Sicard and her husband, in her presence, she is convinced her husband had a perfect recollection of having subscribed his name as a witness to the said deed. Also the deposition of Joseph Spencer, the subscribing witness to the deed from Phillips to Stephens, who proved the same before the mayor of Philadelphia in June 1798, who says, that he has some recollection of having witnessed an instrument of writing supposed by him to be a conveyance of land, he knew not to whom granted, at the house of Jonathan Phillips, deceased, of Maidenhead, now Lawrence township, Hunterdon county, state of New Jersey, some twenty years ago or more (this deposition was taken in April 1822); and of his meeting again one or more of the family, he believes Doctor Joseph Phillips of that place or neighbourhood  was one, in the city of Philadelphia, at the office of Hilary Baker, who was then mayor of the said city, to authenticate the hand-writing to the said instrument of conveyance as party or witness,  or both; but has no certain date in his memory whereby he can be more particular. Also the deposition of George Heyl, notary public of Philadelphia, who says, that he was called on in his official capacity on the 17th of January 1803, to certify and attest to three several copies of original deeds, one from Joseph Phillips to Benjamin Stephens, one from Stephens to Samuel Robert Marshall, and the third from Marshall to Stephen Sicard, dated the 25th of May 1798, all for a tract of land lying and being, &c., containing six thousand six hundred and eighty acres; and that he did, at the request of Stephen Sicard, examine and compare the said three several copies with the original deeds submitted to him by the said Stephen Sicard for that purpose, and found them to be true and faithful copies of the same; that the said deeds appeared to him, in every respect, originals, fair and genuine papers, the parchment, ink, signatures, &c. wearing that aspect. That the said Stephen Sicard told him at the time that his motive for requiring notarial copies of said originals, was that he was going to send said originals to Kentucky to be recorded. That the said deponent had a knowledge of the signature  of Hilary Baker, the mayor of the city, before whom they were proved, and of the seal of the city, and believed them genuine; that in the spring of the year 1818 the said Stephen Sicard again called on him, and took his deposition before alderman Douglass to the above fact, to which  deposition were annexed the said three notarial copies. \nThe notarial copies mentioned in the foregoing deposition agree with the copies from the record of the court of appeals of Kentucky. \nThe plaintiff also offered as a witness the clerk of the court of appeals, who deposed that the deeds had been recorded by Thomas S. Hinde, his deputy, now living beyond the reach of the process of this court; but he recollected to have noticed them at the time, and they had, so far as he recollected, every appearance of genuine documents. The plaintiff also introduced Ralph Phillips, who stated, that he was long acquainted with Joseph Phillips, and Stephens, and Marshall, and he  heard them speak of the conveyance of the tract of land in controversy, as made by Phillips to Stephens, and by Stephens to Marshall, may years ago; but he does not recollect to have seen the deeds. \nThe defendants gave  in evidence patents of the commonwealth of junior date to that of the plaintiff; proved the boundaries of those junior grants, and that they included the defendants: and gave evidence that they had settled under faith of those junior grants, and held adversely to the patent offered in evidence by the plaintiff. \nOn motion of the defendants, the court rejected the copies of the deeds aforesaid from Phillips to Stephens, and from Stephens to Marshall, and from Marshall to Sicard; because there was no proof of the execution of the deeds from Phillips to Stephens, or from Stephens to Marshall, so as to let in copies of the original deeds. \nThe defendants then proved that in the year 1794, they had adverse possession of the land in controversy, and had continued ever since to hold it adversely. Whereupon the defendants moved the court to instruct the jury. \n1. That the plaintiff has given no evidence to support the first count on the demise of Sicard; and none to support the demise from any of the other lessors, except such as are heirs of Joseph Phillips the patentee. \n2. That if the jury find from the evidence that the patents of Joseph Phillips and William Loving do interfere and lap,  as represented in the connected plat, and that the defendants and those under whom they hold did enter, claiming under said Loving's survey, and took the first possession within the said interference, the said patent of Joseph Phillips, being (at the date of such patent and possession taken under Loving's patent) unoccupied by any person holding or claiming under said Phillips's patent, then and in that case, the possession of the defendants to taken, was not limited to their actual inclosure, but was co-extensive with the boundaries by which they claimed. \n3. That if the jury find from the evidence that the possession of the lands in controversy was taken in the lifetime of Joseph Phillips, the ancestor of the lessors of the plaintiff, and adversely to said Phillips, and that the defendants and those  under whom they hold, have continued to hold adversely to said Phillips, the ancestor, and his heirs ever since, and for more than twenty years before the 17th of January 1822, when the second count in the declaration was filed, and shall moreover find that said ancestor, Joseph Phillips, died more than ten years before the said 17th of January 1822, when the second count  was filed; then the said lessors, the heirs of Joseph Phillips, are barred by the statute of limitations; which instructions were given accordingly: to each of which instructions, as well in excluding the deeds as in instructing the jury, the plaintiffs excepted. \nThe first exception is to the refusal of the court to permit the copies of deeds offered by the plaintiff to be given in evidence to the jury. These copies were rejected \"because there was no proof of the execution of the deeds from Phillips to Stephens, or from Stephens to Marshall.\" This objection would have applied to the originals as strongly as to the copies: consequently, we must inquire whether the plaintiff offered such evidence of the execution of the originals as is required by law. \nIn 1796 the legislature of Kentucky passed a law respecting conveyances, the first section of which enacts, \"that no estate of inheritance or freehold, or for a term of more than five years, in lands or tenements, shall be conveyed from one to another, unless the conveyance be declared by writing, sealed and delivered; nor shall such conveyance be good against a purchaser for a valuable consideration, not having notice thereof, or any  creditor, unless the same writing be acknowledged by the party or parties who shall have sealed and delivered it, or be proved by three witnesses to be his, her or their act, in the office of the clerk of the court of appeals of a district court, or in a court of quarter sessions or county court, in the manner prescribed by law, or in the manner hereinafter directed, within eight months after the time of sealing and delivering, and be lodged with the clerk of such court to be there recorded.\" \nThe third section enacts that \"if the party who shall sign and seal any such writing, reside not in this commonwealth, the acknowledgement by such party, or the proof by the number of witnesses requisite, of the sealing and delivering of the writing before any court of law, or the mayor or other chief  magistrate of any city, town or corporation of the county in which the party shall dwell, certified by such court, or mayor, or chief magistrate, in the manner such acts are usually authenticated by them, and offered to the proper court to be recorded within eight months after the sealing and delivering, shall be as effectual as if it had been in the last mentioned court.\" \nThis act  reduces into one the laws previously existing on this subject. It does not create a right to convey property which any individual may possess, but restrains that right by certain rules which it prescribes, and which are deemed necessary for the public security. The original right to transfer property remains unimpaired, except so far as it is abridged by the statute. \nHow far does the statute restrain an individual in the exercise of this general original right? \nThe words are, \"that no estate of inheritance, &c. in lands or tenements, shall be conveyed from one to another, unless the conveyance be declared by writing, sealed and delivered.\" \nThe only requisites then to a valid conveyance  of an estate of inheritance in lands are, that it shall be in writing, and shall be sealed and delivered. \nThe statute proceeds, \"nor shall such conveyance be good against a purchaser for a valuable consideration, not having notice thereof, or any creditor, unless the same writing be acknowledged,\" &c. \nThe acknowledgement or the proof which may authorise the admission of the deed to record, and the recording thereof, are provisions which the law makes for the security of creditors and  purchasers. They are essential to the validity of the deed, as to persons of that description, not as to the grantor. His estate passes out of him and vests in the grantee, so far as respects himself, as entirely, if the deed be in writing, sealed and delivered, as if it be also acknowledged or attested and proved by three subscribing witnesses, and recorded in the proper court. In a suit between them, such a deed is completely executed, and would be conclusive, although never admitted to record, nor attested by any subscribing witness. Proof of sealing and delivery would alone be required, and the acknowledgement of the fact by the party, would be sufficient proof of it. \n If the original deed remained in existence, proof of the hand writing, added to its being in possession of the grantee, would, it is presumed, be prima facie evidence that it was sealed and delivered. No reason is preceived why such evidence should not be as satisfactory in the case of a deed as in the case of a bond. But the deed is lost, and positive proof of the handwriting is not to be expected or required. The grantee must depend on other proof. \nThe deed purports to have been executed more than  thirty years past. The mayor of Philadelphia, the person entrusted by law with receiving and certifying the acknowledgement or proof of the deed, has certified in legal form that it was proved to him by one of the subscribing witnesses. Had it been also proved by the other two, the probate would have been sufficient; not only as against the party, but as against purchasers and creditors. It has remained from the time of its execution until its loss, in the possession of those claiming title under it; and in the long course of time which has elapsed since its alleged execution, the grantor has never controverted its existence, nor set up any title to the property it purported to convey. Parker, the agent of the plaintiff, respecting this transaction, as is presumed, though not averred in terms, from the facts that he brought the deeds from Philadelphia, procured them to be recorded, and took measures for returning them to him; says that he saw them entered for taxation in the auditor's office, and paid the taxes on them for several years. Samuel Robert Marshall, the grantee of Stephens, and who conveyed the land afterwards to Sicard by a deed regularly authenticated and recorded, which  recites the deed from Phillips, and conveys the land with general warranty, is a subscribing witness to that executed by Phillips. The notary, who at the instance of Sicard took notarial copies before the deeds were transmitted to Kentucky to be recorded; deposes that the appearance of the originals was perfectly fair. \nAdd to these strong circumstances, the testimony which after the long lapse of time the plaintiff has been enabled to procure. Phillips and Stephens have been long dead; Marshall has conveyed the land to Sicard with a general warranty, by a deed regularly authenticated and recorded, and is of course, if alive, disqualified as a witness. One witness deposes that he was  long acquainted with Joseph Phillips and Stephens and Marshall, that he heard them speak of the conveyance of the tract of land in controversy as made by Phillips to Stephens, and by Stephens to Marshall. Joseph Spencer, the subscribing witness to the deed made by Phillips, who proved its execution before the mayor of Philadelphia, has some recollection of having witnessed an instrument of writing, supposed by him to be a conveyance of land, at the house of Jonathan Phillips deceased, twenty  years or more before giving his deposition, and of meeting again one or more of the family, he believes doctor Joseph Phillips was one, in the city of Philadelphia, at the office of Hilary Baker, mayor of the city, to authenticate the hand writing to the said instrument of conveyance, as party or witness, or both. Although he does not recollect the transaction with that precision which might be expected from an interested party, he remembers as much as could be expected after so long an interval from an unconcerned person, and enough, we think, to satisfy a court, in connexion with other circumstances, that the deed to which he subscribed his name as a witness was executed, and is the deed, a copy of which was offered by the plaintiff. He remembers attesting an instrument of writing at the house of Jonathan Phillips, which he believed to be a conveyance of land; he remembers meeting some of the family, one of whom was Joseph Phillips, at the office of Hilary Baker, mayor of Philadephia, for the purpose of authenticating the same instrument. This instrument was authenticated by him before the mayor, as appears by his certificate. The deposition of the widow of Benjamin Powell, too,  is entitled to consideration. \nWe think that in a contest between Joseph Phillips and Stephen Sicard, this testimony and these circumstances would have been held sufficient to prove the execution of his deed; and would have proved that his title was conveyed by it. \nIf the title of Phillips was conveyed to Sicard, then Sicard could assert that title in a court of justice as effectually as Phillips might assert it; unless the defendants were protected from his claim by some provision of the statute. The first section, after declaring that no estate of inheritance, &c. \"in lands or tenements shall be conveyed from one to another,  unless the conveyance be declared by writing, sealed and delivered,\" adds, \"nor shall such conveyance be good against a purchaser for valuable consideration, not having notice thereof, or any creditor, unless the same writing be acknowledged,\" &c. \nThese words, we think, can apply only to purchasers of the title asserted by virtue of the conveyance, and to creditors of the party who has made it. They protect such purchasers from a conveyance of which they had no notice, and which, if known, would have prevented their making the purchase; because  it would  have informed them that the title was bad, that the vendor had nothing to sell. But the purchaser from a different person of a different title, claimed under a different patent, would be entirely unconcerned in the conveyance. To him it would be entirely unimportant, whether this distinct conflicting title was asserted by the original patentee or by his vendee. The same general terms are applied to creditors and to purchasers; and surely the word creditors can mean only creditors of the vendor. \nThis construction of this part of the statute has, we believe, been uniformly made. \nA conveyance then in writing, sealed and delivered by the vendor in each case, was sufficient to pass the title from Phillips to Stephens, and from Stephens to Marshall. The conveyance from Marshall to Sicard is unexceptionable. \nIf the original deeds had been produced, their execution was, we think, so proved, that they ought to have been submitted to the jury. If this be correct, it cannot be doubted that the copies were admissible. The loss of theoriginals is proved incontestably, and the truth of the copies is beyond question. \nWe think, therefore, that the court erred \"in rejecting  the copies of the deeds from Phillips to Stephens, and from Stephens to Marshall, and from Marshall to Sicard.\" Consequently, the first instruction to the jury, \"that the plaintiff has given no evidence to support the first count on the demise of Sicard,\" ought not to have been given. \nThe second instruction, that a possession taken under a junior patent, which interferes with a senior patent, the lands covered by which are totally unoccupied by any person holding or claiming under it, is not limited by the actual inclosure,  but is co-extensive with the boundaries claimed under such junior patent, is entirely correct, and conforms to the decisions of this court. \nThe third instruction is also correct. The second count in the declaration, being on a demise from a different party asserting a different title, is not distinguishable, so far as respects the bar of the act of limitations, from a new action. See Miller's Heirs v. M'Intyre, at this term. The construction of the act of limitations, that if adverse possession be taken in the life time of the ancestor, and be continued for twenty years, and for ten years after the death of the ancestor, no entry being made by the  ancestor or those claiming under him, the title is barred, is established by the decisions of this court as well as of the courts of Kentucky. 4 Wheat. 213. This point may perhaps determine the cause ultimately in favour of the defendants. But as this court cannot know judicially that the verdict of the jury was founded on the bar created by the adverse possession of the defendants, and not on the want of title in the plaintiffs, whose title deeds were excluded by the circuit court; the judgment must be reversed, and the cause remanded with directions to award a venire facias de novo. \nThis cause came on to be heard on the transcript of the record from the circuit court of the United States for the district of Kentucky, and was argued by counsel; on consideration whereof, this Court is of opinion, that there is error in the proceedings and judgment of the said court in this, that the said court rejected the copies of the deeds offered by the plaintiffs as evidence, being of opinion that there was no proof of the execution of two of them. Therefore it is considered by the Court, that the judgment of the said circuit court be reversed and annulled, and that the cause be remanded to the  said circuit court with directions to award a venire facias de novo. \n \n\n ", " \nOpinion \n\n \n \n  Mr Chief Justice MARSHALL delivered the  opinion of the court: that the case was not within the jurisdiction of this court. The division of opinion was not upon any matter arising at the trial of the cause, but was upon a mere matter arising upon the service of the execution by the marshal; and was a mere question for the circuit court upon a collateral contest between the marshal and the bank, as to his right to fees. It was not therefore a case within the purview of the judicial act of 1802. \n \n\n ", "Opinion by: M'LEAN \nOpinion \n\n \n \n  Mr Justice M'LEAN delivered the opinion of the Court. \nIn the circuit court for the district of Columbia, from which this cause is brought by writ of error, the plaintiffs commenced their action on the case, against the defendant, as indorser of a promissory note. The general issue was pleaded, and at the trial the plaintiffs read in evidence the following note: \n$1000 -- Sixty days after date, I promise to pay John O. Dunn, or order, one thousand dollars, for value received, negotiable and payable at the United States Branch Bank in Washington. \n JOHN SCOTT. \nOn the back of which was indorsed, \nJ. O. DUNN. \nOVERTON CARR. \nThe signatures of the parties were admitted, and proof was given of demand at the bank, and notice to the indorsers. \nThe defendant then offered as a witness Overton Carr, an indorser of said note, who testified, that before he indorsed the same, he had a conversation with John Scott, the maker, and was informed by him, that certain bank stock had been pledged, or was to be pledged, by Roger C. Weightman, as security for the ultimate payment of the said note, and that there would be no risk in indorsing it. That the witness then  went into the room of the cashier of the plaintiffs' office of discount and deposit at Washington, and found there the said cashier, and Thomas Swann the president of the said office; to whom he communicated the conversation with Mr Scott, and from whom he understood, upon inquiry, that the names of two indorsers, residing in Washington, were required upon the said note, as a matter of form; and that he would incur no responsibility (or no risk) by indorsing the said note. He does not recollect the conversation in terms, but such was the impression he received from it. \n That he went immediately to the defendant, and persuaded him to indorse the note, by representing to him, that he would incur no responsibility, or no risk, in indorsing it, as the payment was secured by a pledge of stock; and to whom he repeated the conversation with Mr Scott, and said president and cashier. That no person was present at the conversation, the terms of which he does not recollect; but that the impression he received from this conversation with the aforesaid president and cashier, and with the said Scott, and which impression he conveyed to the defendant, was, that the indorsers of said note would not be looked to for payment, until the security pledged had been first resorted to; but, that the said indorsers would be liable in case of any deficiency of the said security to supply the same. That neither this witness, nor Mr Dunn, was at the time able to pay such a sum, and that both indorsed the note as volunteers and without any consideration; but under the belief that they incurred no responsibility (or no risk), and were only to put their names to the paper for form sake. \nTo which evidence the plaintiffs, by their counsel, objected, but the court permitted it  to go to the jury. \nThe plaintiffs examined as a witness Richard Smith, the cashier, whose testimony was overruled: and then Thomas Swann, the president of the bank, was offered as a witness and rejected; it appearing that they were both stockholders in the bank. To this decision of the court, a bill of exceptions was taken by the plaintiffs; and exception was also taken to the evidence of Overton Carr. \nOn this last exception, the plaintiffs rely for a reversal of  the judgment of the circuit court. And, first, the question as to the competency of this witness is raised. \nHe is not incompetent, merely from the fact of his name being indorsed on the bill. To exclude his testimony, on this ground, he must have an interest in the result of the cause. Such interest is not apparent in this case; and any objection which can arise from his being a party to the bill, goes rather to his credibility than his competency. \nBut it is a well settled principle, that no man who is a party to a negotiable note, shall be permitted, by his own testimony, to invalidate it. Having given it the sanction of his name, and thereby added to the value of the instrument by giving it currency,  he shall not be permitted to testify, that the note was given for a gambling consideration, or under any other circumstances which would destroy its validity. This doctrine is clearly laid down in the case of Walton et al. assignees of Sutton v. Shelley, reported in 1 Term Rep. 296, and is still held to be law, although in 7 Term Rep. 56, it is decided, that in an action for usury, the borrower of the money is a competent witness to prove the whole case. \nSeveral authorities are cited by the plaintiff's counsel to show that parol evidence is not admissible to vary a written agreement. \n In the case of Hoare and others v. Graham and another, 3 Camp. 56, the court lay down the principle, that \"in an action on a promissory note or bill of exchange, the defendant cannot give in evidence a parol agreement entered into when it was drawn, that it should be renewed and payment should not be demanded when it became due. \nThis court, in the case of Renner v. The Bank of Columbia, 9 Wheat. 587, in answer to the argument that the admission of proof of the custom or usage of the bank would go to alter the written contract of the parties, say, \"if this is the light in which it is to  be considered, there can be no doubt that it ought to be laid entirely out of view: for there is no rule of law better settled, or more salutary in its application to contracts, than that which precludes the admission of parol evidence, to contradict or substantially vary the legal import of a written agreement.\" \nParol evidence may be admitted to explain a written agreement  where there is a latent ambiguity, or a want of consideration may be shown in a simple contract; or, to defeat the plaintiff's action, the defendant may prove that the note was assigned to the plaintiff, in trust, for the payer. 6 Mass. 432. \nIt is competent to prove by parol that a guarantor signed his name in blank, on the back of a promissory note, and authorised another to write a sufficient guarantee over it. 7 Mass. 233. \nTo show in what cases parol evidence may be received to explain a written agreement, and where it is not admissible, the following authorities have been referred to. 8 Taun. 92.1 Chit. 661. Peake's Cases, 40. Gilbert's Rep. 154. \nOn the part of the defendant's counsel it is contended, that between parties and privies to an instrument not under seal, a want of consideration  in whole or in part may be shown. That the indorsement in question was made in blank; and that it is competent for the defendant to prove under what circumstances it was made. That if an assurance were given at the time of the indorsement, that the names of the defendant and Carr were only required as a matter of form, and that a guarantee had been given for the payment of the note, so as to save the indorsers from responsibility; it may be proved, under the rule which permits the promissor to go into the consideration of a note or bill between the original parties. \nIn support of this position authorities are read from 5 Serg. & Rawle, 363, and 4 Wash. C. C. Rep. 480. In the latter case, Mr Justice Washington says, \"the reasons which forbid the admission of parol evidence to alter or explain written agreements and other instruments, do not apply to those contracts implied by operation of law, such as that which the law implies in respect to the indorser of a note of hand. The evidence of the agreement made between the plaintiffs and defendants, whereby the latter were to be discharged on the happening of a particular event, was therefore properly admitted.\" The decision in 5 Serg.  & Rawle, was on a question somewhat analogous to the one under consideration, except in the present case there is no allegation of fraud, and the decision in that case was made to turn in part, at least, on that ground. \nIn Pennsylvania there is no court of chancery, and it is known that the courts in that state admit parol proof to affect  written contracts, to a greater extent than is sanctioned in the states where a chancery jurisdiction is exercised. The rule has been differently settled in this court. \nThe note in question was first indorsed by the defendant to Carr, and by him negotiated with the bank. It was discounted on the credit of the names indorsed upon the note. This is the legal presumption that arises from the transaction, and if the first indorser were permitted to prove that there was a secret understanding between himself and his assignees that he should not be held responsible for the payment of the note, would it not seriously affect the credit of this description of paper? Might it not, in many cases, operate as a fraud upon subsequent indorsers? \nThe liability of parties to a bill of exchange or promissory note, has been fixed on certain principles,  which are essential to the credit and circulation of such paper. These principles originated in the convenience of commercial transactions, and cannot now be departed from. \nThe facts stated by the witness Carr are in direct contradiction to the obligations implied from the indorsement of the defendant. By his indorsement, he promised to pay the note at maturity, if the drawer should fail to pay it. The only condition on which this promise was made, was, that a demand should be made of the drawer when the note should become due, and a notice given to the defendant of its dishonour. But the facts stated by the witness would tend to show that no such promise was made. Does not this contradict the instrument; and would not the precedent tend to shake, if not destroy, the credit of commercial paper. On this ground alone the exception would be fatal; but the most decisive objection to the evidence is, that the agreement was not made with those persons who have power to bind the bank in such cases. It is not the duty of the cashier and president to make such contracts; nor have they the power to bind the bank, except in the discharge of their ordinary duties. \nAll discounts are made  under the authority of the directors, and it is for them to fix any conditions which may be proper in loaning money. If, therefore, the evidence were clear of other legal objections, it could not have the effect to release the defendant from liability. The assurances relied on, if made,  were not made by persons authorised to make them. The bank is not bound by them; nor would it be bound if the assurances had been made in so specific and direct a manner as to create a personal responsibility on the part of the cashier and president. \nUpon a full view of the case, the court are clearly of the opinion, that the evidence of Carr should have been overruled by the circuit court; or they should have instructed the jury that the facts proved were not in law sufficient to release the defendant from liability on his indorsement. The judgment of the circuit court must  therefore be reversed, and a venire de novo awarded. \nThis cause came on to be heard on the transcript of the record from the circuit court of the United States for the district of Columbia, holden in and for the county of Washington, and was argued by counsel; on consideration whereof it is ordered and  adjudged by this Court, that the judgment of the said circuit court in this cause be, and the same is hereby reversed; and that this cause be, and the same is hereby remanded to the said circuit court, with directions to award a venire facias de novo. \n \n\n ", " \nOpinion \n\n \n \n Mr Chief Justice MARSHALL delivered the opinion of the Court. \nUpon an inspection of the record, it appears that the plaintiff claims in his declaration the sum of twelve  hundred and forty-one dollars as remaining due to him, and he has laid the ad damnum at one thousand dollars. Under such circumstances, a general verdict having been given against him, the matter in dispute is, in our opinion, the sum which he claims in the ad damnum. The court cannot judicially take notice, that by computation it may possibly be made out as matter of inference from the declaration, that the plaintiff's claim, in reality, must be less than one thousand dollars: much less can it take such notice in a case where the plaintiff might be allowed interest on his claim by the jury, so as to swell his claim beyond one thousand dollars. The motion to dismiss for want of jurisdiction is overruled. \n \n\n ", " \nOpinion \n\n \n \n  Mr Chief Justice MARSHALL delivered the opinion of the Court. \n The court have had the return made in this case under consideration. It considers the demurrer filed in this case by the attorney-general of New York, as being an appearance for the state, he being a practitioner in this court; and therefore, that the demurrer is regularly filed. If the attorney general did not so mean it, it is not  a paper which can be considered as in the cause, or be placed on the files of the court. We say this now, that the attorney-general may have due notice, if he did not intend to enter any appearance for the state; it being otherwise a paper not to be received. \nThe demurrer, then, being admitted as containing an appearance by the state, the court is of opinion, that it amounts to a compliance with the order at the last term. In that order, the word \"answer,\" is not used in a technical sense, as an answer to the charges in the bill under oath; but an answer, in a more general sense, to the bill. A demurrer is an answer in law to the bill, though not in a technical sense an answer according to the common language of practice. \nThe court, therefore, direct the demurrer to be set down for argument, on the first Monday of March of this term, according to the motion of the plaintiffs. \n \n\n ", " \nOpinion \n\n \n \n  Mr Chief Justice MARSHALL delivered the opinion of the Court. \nThis is a writ of error to a decree pronounced by the supreme court of the state of Ohio, sitting in and for the county of Brown, in a case in which the defendant in error was plaintiff. The case must therefore be brought within the twenty-fifth section of the judicial act, or this court cannot take jurisdiction of it. \nThe plaintiff in error alleges that the construction of an act of congress was drawn in question on the trial, and that the decision was against the title set up under the act; and also, that the construction  of a state law was drawn in question, as being contrary to an act of congress, and the decision was in favour of the party claiming under the state law. \nJosiah Parker obtained a land warrant from the land office of Virginia, for his services in the Virginia line, on continental  establishment. The defendant in error having located the warrant on lands in the military reserve, and received a patent therefor, instituted a suit in chancery against the plaintiff in error, who held the same land under a prior grant, and obtained a decree for a conveyance. This court cannot examine the general merits of the decree. Our inquiries are in this case limited to the question, whether the record shows that an act of congress has been misconstrued, to the injury of the plaintiff in error, or the title of the defendant in error has been sustained by a law of a state which is repugnant to a law of the United States. Both questions depend on the construction of the act by which Virginia ceded the territory she claimed northwest of the river Ohio to the United States, of the resolution accepting the deed of cession, and of the acts of congress prolonging the time for completing titles  to lands within the Virginia military reservation. \nThe deed of cession was executed by the members of congress, then representing the state of Virginia, on the 1st of March 1784; in virtue of a power conferred on them by the act of cession, which act it recites. One of the conditions on which the cession is made, is, 1 Laws U.S. p. 474, \"that in case the quantity of good lands on the southeast side of the Ohio,\" \"which have been reserved by law, for the Virginia troops or continental establishment, should\" \"prove insufficient for their legal bounties, the deficiency should be made up to the said troops, in good lands to be laid off between the rivers Sciota and Little Miamis, on the northwest side of the river Ohio, in such proportions as have been engaged to them by the laws of Virginia.\" \nThe deed was accepted by congress according to its terms. The act of cession to which the deed refers was passed on the 20th of December 1783. \nIn his answer to an amended bill filed by the plaintiff in the state court, the defendant says \"that if the complainant's entry does contain that certainty and precision which the law requires, in order to constitute a valid entry, yet the complainant  has no equitable claim to the lands in question, because, first, said entry is based upon a resolution warrant, which is not protected by any act of congress; and cannot, therefore, be a foundation on which to base a valid entry.\" \n The warrant to which the answer refers is in the usual form, and does not purport to have been issued in virtue of a resolution. But the warrant did in fact issue on a resolution which appears in the proceedings in the cause. \nIt appears that Colonel Josiah Parker presented a petition to the general assembly of Virginia, in which he stated himself to have served two years and ten months in the Virginia line or continental establishment, after which he resigned his commission as a colonel in the army. That since his resignation he had been called into service as colonel, commanding a corps of militia, during every invasion of the state. He prays that the assembly will grant him a colonel's allowance of lands. This petition was referred to a committee, whose report stated the facts, and concluded with the following resolution. \"Resolved, that the petition of the said Josiah Parker, praying that he may be allowed the bounty in lands, by law  given to a colonel in the continental line, is reasonable. This resolution was approved by the senate, and was passed the 20th of November 1783. \nIn March 1807, congress passed an act, extending the time for locating Virginia military land warrants, which enacts 'that the officers and soldiers of the Virginia line or continental establishment, their heirs or assigns, entitled to bounty lands within the tract reserved by Virginia, between the little Miami and Sciota rivers, for satisfying the legal bounties to her officers and soldiers upon continental establishment, shall be allowed a further time,\" &c. This act was continued by subsequent acts, so as to be in force when the survey was made under which the complainant in the state court obtained his decree. Does the act cover his case? \nWe think it extends to every case which comes within the reservation made by Virginia in her act of cession. The deficiency of good lands on the southeast of the river Ohio, having been admitted by congress, the inquiry is, whether the warrant granted to Josiah Parker is among those for which the reserve on the northwestern side of that river was made? \nThe resolution grants the land to Josiah Parker  as a colonel in the continental line. At the time it was passed, Virginia possessed the territory in which it was located in  absolute sovereignty.The deed of cession had not been executed, nor had the act been passed by which that deed was authorised. Congress,  by accepting the cession, admitted the right to make it, and that right has never since been drawn into question. \nThe resolution then gave to Josiah Parker all the right it purported to give. What was that? \"The bounty in lands by law given to a colonel in the continental line.\" By this resolution Josiah Parker was placed by the state of Virginia on precisely the same footing with a colonel who claimed under the act which had previously been passed. Had the cession never been made, no distinction could have been taken between them.The officer by whom the warrant was issued, perceived no distinction, and the warrant is expressed to be \"for his services for three years as a colonel in the Virginia continental line.\" To discover what services the legislature received as an equivalent for two months of this time, services performed at the head of corps of militia, we must look at the petition and the  report of the committee. \nBut the legislature at that time possessed the same power to bestow their bounty on an officer who had performed the services stated in Colonel Parker's petition, and in the report of the committee, as on one who had completed his three years in the continental line. They possessed the same power to bestow that bounty on an individual in the form of a resolution, as on their officers, generally, in the form of an act. The one conferred the same rights as the other, and was equally obligatory on the state. Had the lands been retained by Virginia, no distinction could have been made between these claims, and it is impossible to perceive any reason why she should have distinguished between them in the reservation contained in her act of cession. Do the words of the act set up this distinction? \nThey are \"that in case the quantity of good land on the southeast side of the Ohio, which have been allowed by law for the Virginia troops upon continental establishment, should,\" \"prove insufficient for their legal bounties, the deficiency should be made up,\" &c. \nIt cannot be doubted that Colonel Parker's warrant might have been located on the land \"reserved by law  on the southeast  side of the Ohio, for the Virginia troops upon continental establishment.\" \nThis reservation is made in general terms. It is not connected with the allotment of specific quantities for specific services. Provisions were afterwards made for this subject, and those provisions varied at different times. At one time, service was required during the war; by another act three years service entitled the officer to his bounty, and an increased bounty was allowed for those who had served six years and upwards. Officers who resigned after serving three years, were entitled to the bounty by an act which was passed so late as the year 1782. Particular resolutions were passed afterwards, in favour of officers who were deemed by the legislature to have performed services as meritorious as if they had remained in the regular army for three years. All these warrants were equally entitled to be satisfied out of the land \"reserved by law on the southeast side of the Ohio for the Virginia troops on continental establishment.\" They were equally \"legal bounties,\" equally bounties \"which had been engaged to them by the laws of Virginia,\" before her cession of the territory  northwest of the Ohio; for a resolution receiving the assent of both houses, is a law as operative as an act of assembly. \nIf, then, under the laws of Ohio, we may consider the petition of Colonel Parker and the report of the committee as part of the record in this cause, the court of Ohio does not appear to us to have misconstrued the act of cession or any act of congress. \nThe decree of the supreme court of the state of Ohio sitting in and for the county of Brown is affirmed with costs. \nThis cause came on to be heard on the transcript of the record, from the supreme court of the state of Ohio, setting in and for the county of Brown, and was argued by counsel; on consideration whereof, it is ordered, adjudged and decreed by this Court, that the judgment and decree of the said supreme court in this cause be, and the same is hereby affirmed, with costs. \n \n\n ", " \nOpinion \n\n \n \n Mr Chief Justice MARSHALL delivered  the opinion of the Court. \nThere were two pleas by the defendant: 1. That the defendant was not indebted to the plaintiff. 2. That the subject matter of the suit was res adjudicata. The former plea was triable by the jury; the latter by the court.There was a trial by the jury of the issue, and the jury found a verdict for the defendant. Upon the plea of \"res adjudicata\" there does not appear to have been any replication or denial, so as to make any issue to the court. There is nothing on the record to  show that the question of res adjudicata was even submitted to the jury upon the trial. Their verdict, for aught that appeared on the record, was simply confined to the first and proper issue, triable by the jury. This issue being found for the defendant, the other plea became immaterial to the defendant. The court then cannot infer that it was ever tried. There is then no error apparent on the record, and the judgment is affirmed with costs. \n \n\n ", " \nOpinion \n\n \n \n  Mr Chief Justice MARSHALL delivered the opinion of the Court. \nThis case is adjourned to this court from the court of the United States for the seventh circuit and district of East Tennessee, on a point on which the judges of that court were divided in opinion. \nThe plaintiff brought an action of trover and conversion against the defendant, for several slaves in his declaration mentioned. He claimed the slaves under the following clause in the will of Britain B. Goodwin: \"also, I give to my wife, Elizabeth Goodwin, all my personal estate whatsoever and wheresoevery, and of what nature, kind and quality soever, after payment of my debts, legacies and funeral expenses, which personal estate I give and bequeath unto my said wife, Elizabeth Goodwin, to and for her own use and benefit, and disposal absolutely; the remainder of the said  estate after her decease, to be for the use of the said Jesse Goodwin.\" \n Elizabeth Goodwin took the estate of the testator into her possession, and intermarried with Robert Bell, the defendant. After which the said Jesse Goodwin sold his interest therein to the plaintiff, who, after the death of Elizabeth, instituted this suit.Upon the trial the following questions occurred, on which the judges were divided in opinion: \"whether, by the will of said Britain B. Goodwin, said Elizabeth Goodwin had an absolute title to the personal estate of said Britain B. Goodwin, or only a life estate; and also, whether said Jesse Goodwin, by said will, had a vested remainder that would come into possession on the death of said Elizabeth, or was said remainder void?\" \nThe first and great rule in the exposition of wills, to which all other rules must bend, is, that the intention of the testator expressed in his will shall prevail, provided it be consistent with the rules of law. Doug. 322; 1 Black. Rep. 672. This principle is generally asserted in the construction of every testamentary disposition. It is emphatically the will of the person who makes it, and is defined to be \"the legal  declaration of a man's intentions, which he wills to be performed after his death.\" 2 Black. Com. 499. These intentions are to be collected from his words, and ought to be carried into effect if they be consistent with law. \nIn the construction of ambiguous expressions, the situation of the parties may very properly be taken into view. The ties which connect the testator with his legatees, the affection subsisting between them, the motives which may reasonably be supposed to operate with him, and to influence him in the disposition of his property, are all entitle to consideration in expounding doubtful words, and ascertaining the meaning in which the testator used them. \nIn the will under consideration, but two persons are mentioned -- a wife and a son. The testator attempts, in express words, to make a provision for both out of the same property. The provision for the wife is immediate, that for the son is to take effect after her death. The words of the will make both provisions, but it is doubted whether both can have effect. In the first member of the sentence he says, \"I give to my wife, Elizabeth Goodwin, all my personal estate whatsoever and wheresoever, and of what nature,  kind and quality soever,  after payment of my debts, legacies and funeral expenses; which personal estate I give and bequeath unto my said wife, Elizabeth Goodwin, to and for her own use and benefit and disposal absolutely.\" \nIt must be admitted that words could not have been employed which would be better fitted to give the whole personal estate absolutely to the wife; or which would more clearly express that intention. But the testator proceeds: \"the remainder of said estate, after her decease, to be for the use of the said Jesse Goodwin.\" Jesse Goodwin was his son. \nThese words give the remainder of the estate, after his wife's decease, to the son, with as much clearness as the preceding words give the whole estate to his wife. They manifest the intention of the testator to make a future provision for his son, as clearly as the first part of the bequest manifests his intention to make an immediate provision for his wife. If the first bequest is to take effect according to the obvious import of the words taken alone, the last is expunged from the will. The operation of the whole clause will be precisely the same as if the last member of the sentence were stricken out;  yet both clauses are equally the words of the testator, are equally binding, and equally claim the attention of those who may construe the will. We are no more at liberty to disregard the last member of the sentence than the first. No rules is better settled, than that the whole will is to be taken together, and is to be so construed as to give effect, if it be possible, to the whole. Either the last member of the sentence must be totally rejected, or it must influence the construction of the first so as to restrain the natural meaning of its words: either the bequest to the son must be stricken out, or it must limit the bequest to the wife, and confine it to her life. The limitation in remainder, shows that, in the opinion of the testator, the previous words had given only an estate for life. This was the sense in which he used them. \nIt is impossible to read the will without perceiving a clear intention to give the personal estate to the son after the death of his mother. \"The remainder of the said estate, after her decease, to be for the use of the said Jesse Goodwin.\" Had the testator been asked whether  he intended to give any thing  by this bequest  to his son, the words of the clause would have answered the question in as plain terms as our language affords. \nIf we look to the situation of the parties, to the motives which might naturally operate on the testator, to the whole circumstances, so far as they appear, in the case; we find every reason for supporting the intention, which the words, giving effect to all, of themselves import. \nThe only two objects of the testator's bounty, were his wife and his son. Both must have been dear to him. The will furnishes no indication of his possessing any land. His personal estate was probably small, too small to be divided. It appears to have consisted of a negro woman and four others, probably her children. Their relative ages, which are stated in the plaintiff's declaration, would indicate that the woman was the mother of the other four. A sixth is sued for, but he was not born at the death of the testator. The value of the other articles, which constituted his personal estate, is not mentioned, but it was probably inconsiderable. Farmers and planters, having no real estate, and only five slaves -- a woman and four children, have rarely much personal estate in addition to their  slaves. The testator was not in a condition to make any present provision for an only child, without lessening that he wished to make for his wife. He therefore gives to his son only a horse and one feather bed.The residue is given to his wife. \nWhat feelings, what wishes might be supposed to actuate a husband and a father, having so little to bestow on a wife and child he was about to leave behind him? His affections would prompt him to give something to both. He could not be insensible to the claims of either. But if his property would not, in his opinion, bear immediate division, the only practicable mode of accomplishing his object, would be to give a present interest to one, and a future interest to the other. All his feelings would prompt him to make, as far as was in his power, a comfortable provision for his wife during her life, and for his child after her decease. This he has attempted to do. Not principle in our nature could prompt him to give his property to the future husband of his wife, to the exclusion of his only child. Every consideration, then, suggested by the relation of the parties and the circumstances of the case, comes  in aid of that construction  which would give effect to the last as well as first clause in the will; which would support the bequest of the remainder to the son, as well as the bequest to the wife. It is not possible to doubt that this was the intention of the testator. \nIs this intention controverted by any positive rule of law? Has the testator attempted to do that which the law forbids? \nThe rule that a remainder may be limited, after a life estate in personal property, is as well settled as any other principle of our law. The attempt to create such limitation is not opposed by the policy of the law, or by any of its rules. If the intention to create such limitation is manifested in a will, the courts will sustain it. Some other rule of law then must bear on the case, or the intention will prevail. \nIt is stated in many cases, that where there are two intents inconsistent with each other, that which is primary will control that which is secondary: but the intent to provide for the wife during life, is not inconsistent with the intent to provide for the son, by giving him the same property after her decease. The two intents stand very well together, and are consistent; as well with the probable intention,  as with the words of the testator. The intention to give the personal estate absolutely to the wife, is, it is true, inconsistent with the intention to give it after her decease to his son; but which of them is the primary intent? which ought to control the other? If we are governed by the words, if we endeavour to give full effect to them all, or if we are influenced by the relation of the parties, and the motives which probably governed in making the will, no such inconsistent intentions exist: but if they do exist, we perceive no motive for ascribing any superior strength to that which would provide for those who might claim the estate of the wife after her decease; to that which would provide, after her decease, for the only child of the testator. \nTo create these inconsistent intentions -- this intention to do, in limiting this remainder, what the policy of the law forbids, the bequest to the wife must be construed to give her the power to sell or consume the whole personal estate during her life; which is totally incompatible with a gift of what remains at her death. The remainder, after such a bequest, is said to be void for uncertainty. \n As this construction  destroys totally the legacy, obviously intended for the son by his father, it will not be made unless it be indispensable. No effort to explain the words in a different sense, can do so much violence to the clause, as the total rejection of the whole bequest, given in express terms to an only son. \nThe first part of the clause which gives the personal estate to the wife, would undoubtedly, if standing alone, give it to her absolutely. But all the cases admit that a remainder limited on such a bequest would be valid, and that the wife would take only for life. The difficulty is produced by the subsequent words. They are \"which personal estates I give and bequeath unto my said wife, Elizabeth Goodwin, to and for her own use and benefit, and disposal absolutely.\" The operation of these words, when standing alone, cannot be questioned. But suppose the testator had added the words \"during her life.\" These words would have restrained those which preceded them; and have limited the use and benefit, and the absolute disposal given by the prior words, to the use and benefit, and to a disposal for the life of the wife. 13 Ves. 444. The words then are susceptible of such limitation. It  may be imposed on them by other words. Even the words \"disposal absolutely\" may have their absolute character qualified by restraining words, connected with, and explaining them to mean, such absolute disposal as a tenant for life may make. \nIf this would be true, provided the restraining words \"for her life\" had been added, why may not other equivalent words, others which equally manifest the intent to restrain the estate of the wife to her life, be allowed the same operation. The words \"the remainder of said  estate, after her decease, to be for the use of the said Jesse Goodwin,\" are, we think, equivalent. They manifest with equal clearness the intent to limit the estate given to her, to her life, and ought to have the same effect. They are totally inconsistent with an estate in the wife, which is to endure beyond her life. \nNotwithstanding the reasonableness and good sense of this general rule, that the intention shall prevail, it has been some times disregarded. If the testator attempts to effect that which the law forbids, his will must yield to the rules of law. But  courts have sometimes gone farther. The construction put upon words in one will,  has been supposed to furnish a rule for construing the same words in other wills; and thereby to furnish some settled and fixed rules of construction which ought to be respected. \nWe cannot say that this principle ought to be totally disregarded; but it should never be carried so far as to defeat the plain intent; if that intent may be carried into execution without violating the rules of law. It has been said truly, 3 Wils. 141, \"that cases on wills may guide us to general rules of construction; but, unless a case cited be in every respect directly in point, and agree in every circumstance, it will have little or no weight with the court, who always look upon the intention of the testator as the polar star to direct them in the construction of wills.\" \nIn Porter v. Tournay, 3 Ves. 311, Lord Alvanley declared his opinion to be, \"that a gift for life, if specific, of things quae ipson usu consumuntur, is a gift of the property; and that there cannot be a limitation after a life interest in such articles.\" In the case of Randall v. Russell, 3 Mer. 190, the master of the rolls inclines to the same opinion. But these cases do not turn on the construction of the wills, but on the general  policy of the law in cases where the legacy is of articles where \"the use and the property can have no separate existence.\" \nOne of the strongest cases in which the court of chancery has decided that the legatee first named took absolutely, though there was a limitation in remainder, is that of Bule v. Kingston, 1 Mer. 314. \nAnn Ashby, by her will, gave the sum of fifteen hundred pounds, bank annuities, to John Earl Talbot, his executors, &c. in trust for her sister Charlotte Williams for her separate use; and \"all other sums that may be due to her,\" she left in trust with the said John Earl Talbot for the use of her said sister: \"what I have not otherwise disposed of, I give to my said sister the unlimited right of disposing of by will, excepting to E.P. &c.; and in case my said sister dies without a will, I give all that may remain of my fortune at her decease to my godson William Ashby. The rest and residue of my fortune I give to my sister Charlotte Williams, making her the sole executrix of this my last will and testament.\" \n Charlotte Williams made a will, by which she appears to have disposed of the whole of her own estate, but not to have executed the power contained  in the will of Ann Ashby.What remained of her estate was claimed by the representative of the husband, who survived his wife, Charlotte Williams; and also by William Ashby, under the bequest to him of what might remain at the decease of Charlotte Williams; if she should die without a will. The master of the rolls being of opinion that the whole vested in Charlotte Williams, decided in favour of the representative of her husband, and that the bequest to William Ashby was void. \nIn support of this decree it might be urged that, as the remainder to William Ashby was limited on the event of her sister dying without a will, which event did not happen, the remainder could not take effect. Or, which is stronger ground, that the whole will manifests an intention to give every thing to her sister; and that the eventual limitation in favour of William Ashby, accompanied as it is by various explanatory provisions, does not show such an intention in his favour as to defeat the operation of the clauses in favour of Charlotte Williams, which show a superior solicitude to provide for her. The testatrix gives to her sister the unlimited right of disposing of whatever may not have been bequeathed  by herself, thereby enabling her to defeat the contingent remainder to William Ashby; and then gives to her sister all the rest and residue of her fortune. The sister is obviously, on the face of the whole will taken together, the favourite legatee; and no violence is done to the intention, by giving to bequests to her their full effect, uncontrolled by the contingent remainder to William Ashby. \nBut the master of the rolls does not place his decree on this ground, and we must understand it as he understood it himself. \nHe says, it is impossible to make sense of the will, if the residuary clause is to be taken as distinct from what goes before it. \"It is evident the testatrix perceived a defect in her intended disposition of the entire property in favour of Mrs Williams, and that she had only given a power where she meant to give the absolute interest. To supply that defect she gives the residue by the clause in question; and then the will  is to be read as if it stood thus: -- 'I give to Charlotte Williams the residue of my estate, together with the right of disposing of the same by will, except to E.P.; and if she dies without a will, then I give whatever may remain  at her death to William Ashby.' She gives to Charlotte Williams, as a married woman, the right of disposing by will of the property vested in her, independently of the control of her husband, and she intended at the same time, that if any thing was left undisposed of by her, it should go to William Ashby. But this is an intention that must fail on account of its uncertainty. Charlotte therefore took the absolute interest in the property,\" &c. \nThis opinion is not so carefully expressed as to remove all doubts respecting its real meaning, and to show precisely whether the uncertainty which destroyed the validity of the remainder belonged to all cases in which property was given in general terms, with a power to use it and to dispose of it; or belonged to those cases only in which analogous circumstances were found. The master of the rolls admits that the testatrix intended to dispose of the entire property in favour of Mrs Williams, but perceived that she had only given a power, where she meant to give the absolute interest.  In speaking afterwards of the right given to Charlotte Williams of disposing by will, he says, it is \"of the property vested in her independent  of the control of her husband.\" \nThe whole opinion furnishes strong reason to believe that the master of the rolls considered himself as pursuing the intention of the testatrix in declaring the remainder void, and that Charlotte Williams took absolutely. It would be difficult, we think, to support the proposition, that a personal thing, not consumed by the use, could not be limited in remainder after a general bequest to a person in being, with a power to use and even dispose of it; provided the whole will showed a clear intention to limit the interest of the first taker to his life. \nIn Upwell v. Halsey, 1 P.W. 651, the testator directs \"that such part of his estate as his wife should leave of her subsistence should return to his sister and the heirs of her body.\" The court observed, \"as to what has been insisted on, that the wife had a power over the capital or principal sum; that is true, provided it had been necessary for her subsistence,  not otherwise; so that her marriage was not a gift in law of this trust money. Let the master see how much of this personal estate has been applied for the wife's subsistence; and for the residue of that which came to the defendant,  the second husband's hands, let him account.\" \nThis decree is founded on the admission, that in a case in which the first taker might expend an uncertain part of the thing given, a remainder might be limited. The uncertainty of the sum which might remain, formed no objection. The cases are numerous in which the intent has controlled express words. \nIn the case of Cowper v. Earl Cowper, 2 P.W. 720, several questions were discussed, which arose on the will of Robert Booth; one of which was founded on a bequest of money to Mr Samuel Powell, to be laid out in lands, to be settled \"in trust for and to the use of my son and daughter, William Cowper, Esquire, and Judith his wife, for the term of their lives, and after the decease of my daughter then to the child or children,\" &c. It became a question for some importance whether the limitation over took effect on the death of the daughter, or on the death of the husband, who survived her. The master of the rolls was of opinion, that it took effect on the death of the wife, being of opinion that the express words giving the estate to both for their joint lives, though always adjudged to carry the estate to the survivor, were restrained  to the wife by the subsequent words which give the remainder \"after the decease of his daughter.\" \"If the latter words be not so taken, they must,\" he says, \"be totally rejected.\" \nAfter reviewing the various decisions on the effect of such limitations, he adds, \"so in our case, the words subsequent to the limitation, 'and after the decease of my daughter to the child or children,' &c., show the testator's intent, and must determine the effects of the limitation, especially in a will, where the intent overrules the legal import of the words; be they never so express and determinate.\" \nIn finding this intent every word is to have its effect. Every word is to be taken according to the natural and common import; but whatever may be the strict grammatical construction of the words, that is not to govern, if the intention of the testator  unavoidably requires a different construction. 4 Ves. 329, 57, 311. \nThe court said in Sims v. Doughty, 5 Ves. 247, \"and if two parts of the will are totally irreconcileable, I know of no rule but by taking the subsequent words as an indication of a subsequent intention.\" \nBlackstone, in his Commentaries, Vol. II. 380, asserts the same principle.  The approved doctrine, however, unquestionably is, that they should, if possible, be reconciled, and the intention be collected from the whole will. \nIn the case before the court, it is, we think, impossible to mistake the intent. The testator unquestionably intended to make a present provision for his wife, and a future provision for his son. This intention can be defeated only by expunging, or rendering totally inoperative, the last clause of the will. In doing so, we must disregard a long series of opinions, making the intention of the testator the polar star to guide us in the construction of wills, because we find words which indicate an intention to permit the first taker to use part of the estate bequeathed. \nThis suit is brought for slaves, -- a species of property not consumed by the use, and in which a remainder may be limited after a life estate. They composed a part, and probably the most important part, of the personal estate given to the wife \"to and for her own use and benefit, and disposal absolutely.\" But in this personal estate, according to the usual condition of persons in the situation of the testator, there were trifing and perishable articles, such as the  stock on a farm, household furniture, and the crop of the year, which would be consumed in the use; and over which the exercise of absolute ownership was necessary to a full enjoyment. These may have been in the mind of the testator when he employed the strong words of the bequest to her. But be this as it may, we think the limitation to the son on the death of the wife restrains and limits the preceding words so as to confine the power of absolute disposition, which they purport to confer of the slaves, to such a disposition of them as may be made by a person having only a life estate in them. This opinion is to be certified to the circuit court. \n This cause came on to be heard on the transcript of the record from the circuit court of the United States for the district of East Tennessee, and on the points and questions on which the judges of the said circuit court were opposed in opinion, and which were certified to this Court for its opinion, agreeably to the act of congress in such case made and provided, and was argued by counsel on the part of the plaintiff; on consideration whereof, this Court is of opinion, that Elizabeth Goodwin took only a life estate,by the  will of Britain B. Goodwin, in the slaves belonging to the personal estate of the said Britain B. Goodwin, and that Jesse Goodwin had, by said will, a vested remainder in the said slaves that would come into possession on the death of the said Elizabeth. All of which is hereby ordered and adjudged to be certified to the said circuit court as the opinion of this Court. \n \n\n ", " \nOpinion \n\n \n \n  Mr Chief Justice MARSHALL delivered the opinion of the Court. \nThis cause depends entirely on the question whether the plaintiffs are within the exception of the statute of limitations, made in favour of \"such accounts as concern the trade of merchandise between merchant and merchant.\" \nThe plaintiffs  in error brought an action on the case against the defendants, in the proper court of the state of. Maine,  which was removed by the defendants into the circuit court of the United States for the district of Maine. \nThe first count was for balance of accounts annexed to the writ; the second was for money had and received. The defendants pleaded non-assumpsit and the statute of limitations. Issue was joined on the first plea. To the second, the plaintiffs replied that the accounts and promises mentioned in the declaration are, and arose from such accounts as concern the trade of merchandise between merchant and merchant, their factors and servants; and issue was joined on this replication. \nAt the trial the plaintiffs produced the bill of lading of the outward cargo of the barque Morning Star, signed by Andrew M. Spring, the master of said barque, with the contract on the back of it, signed by William Gray, the testator of the defendants, and by Seth Spring and Sons, the plaintiffs and owners of the barque Morning Star; which bill of lading and contract are in these words: \n Shipped in good order and well conditioned, by William Gray of Boston, a native citizen  of the United States of America, for his sole account and risk, in and upon the barque called the Morning Star, whereof is master for this present voyage, Andrew M. Spring, now in the harbour of Boston, and bound for Algiers; to say: [The merchandize is here described by marks, numbers and quantities]; being marked and numbered as in the margin, and are to be delivered in like good order and well conditioned at the aforesaid port of Algiers, (the dangers of the seas only excepted), unto Andrew M. Spring, or to his assigns, he or they paying freight for the said goods, as per agreement indorsed hereon, without primage or average. In witness whereof, the said master of the said barqu bath affirmed to four bills of lading of this tenor and date, one of which being accomplished, the other three then to stand void. Dated in Boston, May 26, 1810. \nANDREW M. SPRING. \nThe proceeds of the within cargo, amounting to thirty-five thousand two hundred and two dollars eighty-three cents, as per invoice, costs and charges, is to be invested in Algiers or some other port (after deducting all charges, consignee's commission included, except freight and premium of insurance within, of which two  last mentioned charges are to be made  on the goods), and returned in the said barque Morning Star to Boston, when Seth Spring and Sons (owners of said barque) are to recover one half of the net profits thereon, in lieu of freight and primage, the voyage round. The consignee's commissions to be two and a half per cent on the sales of the within cargo; and no commissions to be charged in Boston except what is paid an auctioneer. \nSETH SPRING & SONS, \nWILLIAM GRAY. \n$35,202 83. \nThe plaintiffs also produced several letters and papers from William Gray, the master of the Morning Star, and others, respecting the outward voyage of the barque; together with the bills of lading and invoices of her inward cargo, which was delivered to the defendants. They also produced an account from the books of Seth Spring and Sons, as follows: \n \n \nDr. William Gray, Esq., of Boston, Mass., in account \n \nwith Seth Spring and Sons. \n \n1810 Sept. For loss sustained on \n \n \nthe sloop Fanny, captain Eben- \n \n \nezer Jordan, master, which said \n \n \nGray insured \n2,500 00 \n \n1811, Oct. For 35,000 gallons oil \n \n \nin casks delivered him from \n \n \nbarque Morning Star, William \n \n \nNason, master, at Boston, at 7s. \n \n \n6d. per gal. \n43,750 00 \n \n127 cases oil delivered by same, at \n \n \n$10 per case \n1,270 00 \n \n53,803 1bs. cotton left with Mr Lear, \n \n \nand afterwards paid for by the \n \n \nDey of Algiers to Com. Stephen \n \n \nDecatur, at 30 cents per 1b. \n16,140 90 \n \nCash paid by A. M. Spring to Bain- \n \n \nbridge & Co. merchants, Eng- \n \n \nland, and by them passed to the \n \n \ncredit of said Gray \n2,000 00 \n \nPaid A. M. Spring his commissions, \n \n \nat 2 1/2 per cent on said barque's \n \n \noutward cargo as per agreement \n880 00 \n \n1829. Interest on loss on sloop \n \n \nFanny 19 years \n2,850 00 \n \nInterest on one half the profite of \n \n \nMorning Star's voyage, per \n \n \nagreement \n14,758 41 \n \n1811. By amount of \n \n \nthe outward cargo of \n \n \nthe barque Morning \n \n \nStar, as per original \n \n \ninvoice and bill of \n \n \nlading \n35,202 83 \n \nHis half the profits of \n \n \nsaid Morning Star's \n \n \nvoyage \n14,469 03 \n \n1829. Balance now \n \n \ndue from estate of \n \n \nsaid William Gray. \n34,477 45 \n When the plaintiffs had closed their evidence, the court asked whether they had any other cause of action than such as arose from the bill of lading of the outward cargo of the barque  Morning Star, and the contract indorsed thereon; and they answered that they had not. \nThe counsel for the defendants then moved the court to instruct the jury that inasmuch as the plaintiffs had admitted that their whole cause of action arose from said bill of lading and contract indorsed thereon, the said bill of lading and contract, with the other papers, documents and testimony aforesaid, were not sufficient evidence in point of law to maintain the issue joined on the part of the plaintiffs, in respect to their replication of merchants' accounts. \nThe plaintiffs' counsel objected to such instructions, and prayed the court to instruct the jury that the evidence introduced was sufficient to prove, and did prove, the issue joined on the part of the plaintiffs. \nThe court instructed the jury that inasmuch as the plaintiffs had admitted that their whole cause of action arose from said last mentioned bill of lading and contract indorsed thereon, the said bill of lading and contract, with the  other papers, documents and testimony aforesaid, were not sufficient evidence in point of law to maintain the issue last aforesaid on the part of the plaintiffs. To this instruction an exception was taken. \nA verdict was found for the defendants; and this writ of error brings up the judgment which was rendered thereon. \nThe statute of Maine is copied from the 20th of James I., and its words are, \"all actions of account and upon the case, other than such accounts as concern the trade of merchandise between merchant and merchant, their factors or servants, &c. shall be commenced,\" &c. \nIt would seem to be the necessary construction of these words, that the actions on the case to which the exception applies, must be founded on an account. The language of the act conveys the same meaning as if it had been \"all actions of account, and all actions on the case, other than such as are founded on such account as concerns the trade of merchandise,\" &c. The foundation of the action must be an account, not a contract. \nFrom the association of actions on the case, a remedy given by the law for almost every claim for money, and for the redress of every breach of contract not under seal, with  actions  of account, which lie only in a few special cases; it may reasonably be conceived that the legislature had in contemplation to except those actions only for which account would lie. Be this as it may, the words certainly require that the action should be founded on an account. The account must be one \"which concerns the trade of merchandise.\" The case  protected by the exception is not every transaction between merchant and merchant, not every account which might exist between them, but it must concern the trade of merchandise. It is not an exemption from the act, attached to the merchant merely as a personal privilege, but an exemption which is conferred on the business as well as on the persons between whom that business is carried on. The account must concern the trade of merchandise: and this trade must be, not an ordinary traffic between a merchant and any ordinary customers, but between merchant and merchant. This \"trade of merchandise,\" which can furnish an account protected by the exception, must be not only between merchant and merchant, but between the plaintiff and defendant. The account -- the business of merchandise which produces it  -- must be between them. \nIf these propositions be well founded, and we believe they are, let us apply them to the case. \nThe defendants were undoubtedly merchants. The plaintiffs, Seth Spring and Sons, were also merchants. But they were likewise ship owners. They were the proprietors of vessels which they hired to others for freight. A charter party, a contract by which the owner lets his vessel to another for freight, does not change its character because the parties happen to be merchants. It is still a special contract, whereby a compensation is stipulated for a service to be performed; and not an account concerning the trade of merchandise. It is no more \"an account,\" and no more connected with \"the trade of merchandise,\" than a bill of exchange or a contract for the rent of a house, or the hire of a carriage, or any other single transaction which might take place between individuals who happened to be merchants. An entry of it on the books of either could not change its nature, and convert it from an insulated transaction between individuals, into an account concerning the trade of merchandise, between merchant and merchant. This must depend on the nature and character  of the  transaction, not on the book in which either party may choose to enter a memorandum or statement of it. \nHad the freight contracted for been a sum in gross, or a sum dependent on the space occupied by the cargo, or on its weight, or on any estimate of its value, it would have been perceived at once to be a claim founded on contract, and not on account. \nIs the nature of the transaction varied by the fact, that the freight to be paid by the charterer, instead of being a specific sum, or a sum to be ascertained by some given rule, is dependent on the profits of the adventure? That the sales of the outward and inward cargo, and all the expenses attendant on the enterprize, must be examined in order to ascertain the amount of freight? This process must undoubtedly be gone through in an action on the contract, but does its necessity convert the action, which ought to be on the contract, into one founded on an account concerning the trade of merchandise between merchant and merchant? The account of the sales of the outward cargo is to be adjusted between the shipper and his consignee, not between the shipper and the ship owner in his adventitious character of a merchant.  So the sales of the return cargo must be examined in order to ascertain whether any and how much profit has been made, and whether the ship owner is entitled to any and how much freight. But this account is not founded on trade and merchandise between the owner and affreighter of the vessel. It is founded on the trade of the affreighter alone, to which reference must be made in order to ascertain the amount of freight. Mr Gray could not be considered as the factor of Seth Spring and Sons, selling their goods. He was settling his own; and the relation between them was not that of merchant and factor, but of charterer and charteree of a vessel by special contract. \nIf we were to decide this case on the words of the statute, we should not think that the plaintiffs had brought themselves within the exception. We should not consider the action as founded on \"such an account as concerns the trade of merchandise between merchant and merchant.\" \nThis opinion is not changed by cases which are to be found in the books. \nIn Webber v. Tivil, 2 Saunders, 121, the plaintiff's declaration contained two counts, one in indebitatus assumpsit for  money had and received by the defendant  for the plaintiff's use, and for goods, wares and merchandise sold and delivered, and the other on an insimul computasset. To the plea of the act of limitations the plaintiff replied, that the money in the several provisions mentioned became due and payable on trade between the plaintiff and defendant as merchants, and wholly concerned merchandise. The defendant demurred, and the whole court gave judgment in his favour. \nMorton, Justice, was of opinion, that only actions of account were within the exception. The report does not contain the reasons assigned by the other judges, otherwise than by stating that they were the reasons given by Mr Jones in his argument. These were that the statute intends to except nothing concerning merchandise between merchants, but only accounts current between them, whereas the declaration in the second court was on an account stated and agreed. He also contended, that the first count did not make a case to be brought within the exception, it being only a bargain for wares sold and for money lent; and although it concerned merchandise, and was between merchants, yet that was no reason why it should be excepted out of the statute; for if it should  be excepted, by the same reason every contract made between merchants would also be excepted; which was not the intention of the statute; for in the statute accounts between merchants only are excepted, and not contracts likewise. He also contended, that actions of account only were within the exception. This point has been since overruled, though it seems to have been long considered as settled law. \nThis case having been decided, as the reporter informs us, for the reasons assigned by Jones, his argument must be taken as the opinion of the court. It decides, that only accounts, not contracts, between merchants, even although they may concern the trade of merchandise, are within the exception, and that the accounts must be current. \nIn Cotes v. Harris, at Guildhall, Dennison,  Justice, held that the clause in the statute of limitations about merchants' accounts extended only to cases where there were mutual accounts, and reciprocal demands between two persons. This was only the decision of a singlde judge; but Mr Justice Buller seems to have given it his sanction, also, by introducing it into his work.  Bul. Ni. Pri. 150. And Lord Kenyon quoted it with approbation  in Cranch v. Kirkman, Peake's Ni. Pri. 121, adding that he had furnished his note of the case to Mr Justice Buller. \nThe distinction between an account current and an account stated, has been often taken, 1 Ves. 456; 4 Mod. 105; 2 Ves. 400; 1 Mod. 270; and is now admitted. \nThe English cases certainly do not oppose the opinion we have formed on the words of the statute. \nThe American cases, as far as they go, are in favour of it. \nIn Mandeville v. Wilson, 5 Cr. 15, this court said, that the exception extended to all accounts current, which concerned the trade of merchandise between merchant and merchant. The only addition made in this part of the opinion, to the words used in the statute, is the introduction of the word \"current.\" The statute saves \"accounts current.\" The opinion proceeds to say that an account closed by the cessation of dealing between the parties, is not an account stated, and that it is not necessary that any of the items should be within five years. This decision maintains the distinction between accounts current and accounts stated. \nIn Ramchandu against Hammond, 2 Johns. 200, the court determined that the statute of New York, though slightly varying in its  language from the English statute, was to be construed in the same manner, and \"must be confined to actions on open or current accounts.\" \"It must be a direct concern of the trade: liquidated demands, or bills and notes which are only traced up to the trade or merchandise, are too remote to come within this description.\" \nIn the ease of Coster et al. v. Murray et al., 5th Johns. Ch. Rep. 522, a purchase of goods was made by the agents of the parties at Copenhagen, and shipped to the defendants, merchants in New York, on joint account under an agreement made by the agents, that the goods should be sold by the defendants, free from commission, and one-third of the proceeds paid to the plaintiffs, who were insurers. The goods were received and sold byd the defendants, who mingled the money with their own, and refused to pay any part of it to the plaintiffs, unless on terms to which the plaintiffs would not accede. To a bill filed by the plaintiffs, the defendants pleaded the act of limitations. The plaintiffs contended that the claim was within  the exception of the statute in favour of accounts between merchants, and also that it related to the execution of a trust, and  was therefore not within the statute. \nOn the first point, Chancellor Kent said, \"to bring a case within the exception of the statute, there must be mutual accounts, and reciprocal demands between two persons. \n\"In the present case there was no account current between the parties. There are no mutual and reciprocal demands.\" \n\"The defendants took charge of and agreed to be accountable for some goods, or the proceeds thereof, in which the parties had a joint interest; and as concerns the parties, and as between them, this hardly seems to be a trade of merchandise between merchant and merchant.\" \nThe chancellor took a very elaborate review of all the English cases in which this exception had been discussed. Many of them went off on other points, many were indecisive, and some of them seem to be opposed to each other, though not on the precise question which has been argued in this case. \nHe concluded this review by observing: \"assuming the case before me to be one that concerned the trade of merchandise between merchant and merchant, I should rather be inclined to think the statute was well pleaded, and that the case did not fall within the exception.\" \nA decree was made in favour  of the plaintiff on the other point, from which the defendant appealed to the court of errors. \nThe cause was argued on several points, the first of which was, \"whether it came within the exception of the statute concerning the trade of merchandise between merchant and merchant, their factors or servants.\" \nMr Chief Justice Spencer said the chancellor had examined the case very elaborately, and had come to the conclusion that the statute was well pleaded; and that the case does not fall within the exception. He added, \"whether the statute is at all applicable to a case of mutual dealing and mutual credits between merchant and merchant, is a question not now necessary to be decided, because the present is not a case of that kind. On the part of the respondents, this is no account at all. This is a case of an account merely on the part of the appellants; there is no selling or trading. It is a case of a joint purchase of  goods, where one of the purchasers takes the whole goods, and is to account for one-third of the proceeds. In such a case, where the items of an account are all on one side, in my judgment it is not within the reason or principle of the exception; which  must have intended open and current accounts, where there was mutual dealing and mutual credits.' \nJudges Platt and Woodworth concurred. There was some division in the court of errors; but the decree of the chancellor was affirmed. \nThis case is stronger than that under consideration, and turns on principles which decide it. \nNo doubt is expressed in it on the necessity of accounts being mutual, and being open and current, to bring them within the exception of the statute. \nOn a commercial question, especially on a question deeply interesting to merchants, and to merchants only, the settled law of New York is entitled to great respect elsewhere. \nWe have found no conflicting decision in any of the states. \nThe account from the books of the plaintiffs contains one item not founded on the contract for the freight of the barque Morning Star, the loss on the sloop Francis, insured by said Gray.But this item itself is not within the  exception, and was abandoned by the plaintiffs, who declared that their whole cause of action arose from the contract. The claim, to bring the case within the exception, rests entirely on the sale of the inward cargo. This single transaction has  not equal (certainly not superior) pretensions to being an account current between merchant and merchant, a case of mutual accounts between them, with the sale made by the Murrays, in Carter et al. v. Murray et al., of goods purchased on joint account, shipped to the defendants on joint account, and sold by the defendants on joint account. \nWe are of opinion that this action is not founded on an account concerning the trade of merchandise between merchant and merchant, their factors or servants; and is not within the exception of the statute of limitations. There is no error in the instructions given by the circuit court, and the judgment is affirmed, with costs. \n \n\n ", " \nOpinion \n\n \n \nMr Chief Justice MARSHALL delivered the opinion of the court, overruling the motion. The declaration is for a balance of accounts of nine hundred and eighty-eight dollars and ninety-four cents; and the ad damnum is laid at two thousand dollars. The bill of exceptions shows, that the United States claimed interest on the balance due to them.There is a general verdict for the defendant. Under these circumstances, it is no objection to the jurisdiction that the bill of exceptions was taken by the counsel for the United States to a refusal of the circuit court to grant an instruction asked by the United States, which was applicable to certain items of credit only, claimed by the defendant, which would reduce the debt below the sum of one thousand dollars.The court cannot judicially know what influence that refusal had upon the verdict. \nThe motion was overruled. \n \n\n ", " \nOpinion \n\n \n \n  Mr Chief Justice MARSHALL delivered the opinion of the Court. \nThis is a writ of ejectment originally brought by Joseph Bartholomew and others, trustees of the town of Clarksville, in the circuit court for the county of Clark in the state of Indiana, and removed on the petition of the original defendant into the court of the United States for that district. \nThe parties agreed on a case in the following words: \n\"John Doe ex dem. Joseph Bartholomew, &c. Trustees of the Town of Clarksville v. James Hughes. \nThe lessors of the plaintiff derive their title to the lands in  the declaration mentioned, from the state of Virginia, by virtue of an act of the general  assembly of said state of Virginia, passed in the year 1783, and entitled \"an act for surveying and apportioning the lands granted to the Illinois regiment, and establishing a town within the said grant;\" and also of another act of the general assembly of the state of Virginia, passed in the year 1790, entitled \"an act to amend an act entitled an act for surveying and apportioning the lands granted to the Illinois regiment, and establishing a town within the said grant;\" which said acts are in the words and figures following, to wit: \n\"An act for the locating and surveying the one hundred and fifty thousand acres of land granted by a resolution of assembly, to Col. George Rogers Clark, and the officers and soldiers who assisted in the reduction of the British post in the Illinois. Be it enacted by the general assembly, that William Fleming, John Edwards, John Campbell, Walker Daniel, Gentlemen, and George Rogers Clark, John Montgomery, Abraham Chaplain, John Bailey, Robert Todd, and William Clark, officers in the Illinois regiment, shall be, and they are hereby constituted a board of commissioners, and that they, or a major part of them, shall settle and determine the claims to land  under the said resolution. That the respective claimants shall give in their claims to the said commissioners, on or before the 1st day of April 1784, and, if approved and allowed, shall pay down to the commissioners, one dollar for every hundred acres of land, such claim, to enable them to survey and apportion the said lands. The said commissioners shall appoint a principal surveyor, who shall have power to appoint his deputies, to be approved by the said commissioners, and to contract with him for his fees. That from and after the 1st day of April 1784, the said commissioners, or a major part of them, shall proceed with the surveyor, to lay off the said hundred and fifty thousand acres of land on the north-west side of the Ohio river, the length of which shall not exceed double the breadth; and after laying out one thousand acres, at the most convenient place therein for a town, shall proceed to lay out and survey the residue, and divide the same by fair and equal lots among the claimants; but no lot or survey shall exceed five hundred acres. That the said commissioners, in their apportionments  of the said land, shall govern themselves by the allowances made by law  to the officers and soldiers in the continental army. That the said commissioners shall, as soon as may be, after the said one hundred and forty-nine thousand acres shall be surveyed, cause a plat thereof, certified on oath, to be returned to the register's office, and thereupon a patent shall issue to the said commissioners, or the survivors of them, who shall hold the same in trust for the respective claimants: and they, or a major part of them, shall thereafter, upon application, execute good and sufficient deeds for conveying the several portions of land to the said officers and soldiers. \n\"And be it further enacted, that a plat of the said one thousand acres of land laid off for a town, shall be returned by the surveyor to the court of the county of Jefferson, to be by the clerk thereof recorded, and thereupon the same shall be, and is hereby, vested in William Fleming, John Edwards, Walker Daniel, John Campbell, George Rogers Clark, John Montgomery, Abraham Chaplain, John Bailey, Robert Todd, and William Clark, gentlemen, trustees, to be by them, or any five of them, laid off into lots of half an acre each, with convenient streets and public lots, which shall be, and the same  is hereby, established a town by the name of Clarksville. That, after the said land shall be laid off into lots and streets, the said trustees, or any five of them, shall proceed to sell the same, or so many as they shall judge expedient, at public auction, for the best price that can be had, the time and place of sale being previously advertised two months, at the court houses of the adjacent counties; the purchasers, respectively, to hold their said lots subjectt o the condition of building on each a dwelling house twenty feet by eighteen, at least, with a brick or stone chimney, to be finished within three years from the day of sale; and the said trustees or any five of them, are hereby empowered to convey the said lots to the purchasers thereof, in fee simple, subject to the condition aforesaid, and the money arising from such sale, shall be applied by the said trustees in such manner as they shall judge most beneficial for the inhabitants of said town. That the said trustees, or the major part of them, shall have power, from time to time, to settle and determine all disputes concerning the bounds of said lots, and to settle such rules and orders for the regular building there   on as to them shall seem best and most convenient; and in case of death, removal out of the county, or other legal disability of any of the said trustees, the remaining trustees shall supply such vacancies by electing others, from time to time, who shall be vested with the same powers as those particularly nominated in this act. The purchasers of the said lots, so soon as they shall have saved the same according to their respective deeds of conveyance, shall have and enjoy  all the rights, privileges, and immunities, which the freeholders and inhabitants of other towns, in this state, not incorporated, hold and enjoy. If the purchaser of any lot shall fail to build thereon within the time before limited, the said trustees, or a major part of them, may thereupon enter into such lot, and may either sell the same again, and apply the money towards repairing the streets or in any other way for the benefit of the said town, or appropriate such lot to the public use of the inhabitants of the said town.\" \n\"An act to amend an act, entitled 'an act for surveying and apportioning the lands granted to the Illinois regiment, and establishing a town within the said grant,'  passed the 10th of December 1790. Be it enacted by the general assembly, that so much of the act entitled 'an act for surveying and apportioning the lands granted to the Illinois regiment, and establishing a town within the said grant' as requires that one thousand acres of land for a town shall be laid off into half acre lots, and each to be improved by building, subject to the condition of building on each a dwelling house twenty feet by eighteen at least, with a brick chimney, to be finished within three years from the day of sale, is hereby repealed. \n\"The trustees of the said town are hereby directed to convey to those who have already purchased a lot or lots in said town, titles in fee simple, although the said lots may not have been improved agreeably to the requisitions of the said recited act. \n\"And be it further enacted, that the said trustees, or any five of them, are authorised and required to sell at public auction the residue of the said one thousand acres of land, for the best price that can be had for the same at twelve months' credit, in lots not exceeding twenty acres, nor less than half an acre, taking from the purchasers bond, with approved security, for the payment  thereof, and when received, to be applied to the  benefit of the said town; notice of the time and place of such sale being previously advertised two months successively in the Kentucky Gazette. \n\"And be it further enacted, that the said trustees shall convey to the said purchasers titles in fee; and that the said lots shall not be liable to forfeiture on account of any failure in improving the same, but that the titles thereof shall be absolute and unconditional, any thing in the said recited act to the contrary notwithstanding.\" \nIn pursuance of the act first above recited, the board of commissioners thereby constituted, appointed William Clark principal surveyor, and proceeded to lay off the one hundred and fifty thousand acres of land, and laid off for a town the said one thousand acres of land, a plat of which was, by the said surveyor, returned to the court of the county of Jefferson, to be by the clerk thereof recorded, which survey and return is in the words and figures following, to wit, and of which survey the annexed map is substantially a copy, upon which the land in controversy is correctly represented between the letters X and Y, and between two dotted lines  upon the margin of the river. 1 \n\"Surveyed one thousand acres of land on the northwest side of the Ohio river for the town of Clarksville, agreeably to an act of the assembly, entitled 'an act for the surveying and apportioning the lands granted to the Illinois regiment, and establishing a town within the said grant.' Beginning on the bank of the Ohio river, at a small white thorn, white oak and hickory, a little below the mouth of Silver creek; running thence north, crossing Silver creek twice, one hundred and seventy poles, to a sweet gum, beech, and sugar tree; thence east, crossing said creek again, three hundred and twenty-six poles, to three beeches; thence south 40 deg. east, eighty-six poles, to a beech and sugar tree; thence one hundred and seventy-six poles to a large sweet gum, sugar tree, and dogwood, on the bank of Mill creek; thence south, crossing said creek, one hundred and eighty poles, to a sugar and two ash trees; thence east, one hundred and fifty-eight poles, to three beeches; thence south, crossing Pond creek, two hundred and eighty poles, to  the Ohio, at two white ashes and two hickory trees; thence down the Ohio river,  with its meanders, to the beginning. W. CLARK, P. Surveyor.\" \nThe said trustees, named in the above recited act, entered upon the said one thousand acres of land, and had the same laid off into streets and lots, and sold a part of the same; and and as vacancies occurred by death, removal out of the county or otherwise, the remaining trustees supplied such vacancies by electing others, from time to time: so that on the 1st day of July 1827, the said lessors of the said plaintiff, to wit, Joseph Bartholomew, John Prather, Willis W. Goodwin, Andrew Fite, John Weathers, William D. Beach, Charles Fuller, Orlando Raymond, Isaac Howk, and Peter Bottorff, were the trustees of Clarksville, by being duly elected, from time to time, under the provisions of the above recited act. \nAt a meeting of the board of trustees of the town of Clarksville, on the 18th of March 1803, the following resolution was adopted by the board, and entered on the book of their proceedings, to wit: \"the trustees, taking into consideration the great advantage that would result to the trustees of the town of Clarksville and the public in general, by opening a canal round the falls of the Ohio, on the application of George  Rogers Clark, it is resolved by the board, that the rights, privileges and advantages of the ground between the front lots on the Ohio, and the Ohio from the upper line of the town of Clarksville, adjoining Isaac Bowman's lot, No. 1, in the Illinois grant, to the mouth of Mill c reek, be exclusively granted to William Clark, his heirs and assigns, to be appropriated to the use of opening a canal through any part of said slip of land, on which to erect mills, wharfs, store houses, or any kind of water works that may be of public utility, or for the erection of gates, locks, &c., for the passage of boats, vessels, &c., reserving, however, between the south and eastwardly line of said front lots and the canal, the distance of hirty feet; for which privilege, the said William Clark, his heirs and assigns, are to pay the trustees or their successors one per cent on the production of all water works that may be erected on said canal, and five per  cent on the toll of all kind of craft that may pass through the said canal. Provided, however, that the said William Clark, his heirs and assigns, do complete the said  canal for the erection of water works, within seven  years from this day. \nAt a meeting of the trustees of the town of Clarksville, on the 5th day of December 1807, the following order and resolution was adopted by said trustees, and also entered on their book of proceedings, to wit: \"a memorial from William Clark, praying that the trustees will prolong the time for his complying with the conditions of a grant made to him by a former board of trustees on the 18th day of March 1803, of a slip of ground from the upper part of the town to the mouth of Mill run, was read. On motion, it was resolved, that a further time of three years be allowed for complying with the condition of said grant, on condition that the said William Clark, his heirs, &c, shall relinquish, under the former grant, the distance of thirty feet, reserved for a street between the front lots and any canal that may be opened, making a space of sixty feet the whole distance between such canal and said front lots, and that the former grant shall not extend further than to the lower basin, and that the said William Clark, his heirs, &c., shall bind himself, his heirs, &c., to build and keep up good and sufficient bridges across said canal at the intersection of every cross  street, and to erect, within the period mentioned, to wit, by the 18th of March 1813, a mill or mills, to be of public utility, or open a canal agreeably to the conditions of the former grant, and to reserve to the trustees the stone in the river not necessary for the uses of effecting and continuing the improvements therein contemplated.\" \nOn the 21st November 1810, an act of the general assembly of the territory of Indiana was passed in the words and figures following, to wit: \"an act for the relief of Daniel Fetter, James Hughes and Solomon Fuller. \n\"Whereas it has been represented to the general assembly of this territory, by sundry petitions and other documents, that by the act of the state of Virginia incorporating the town of Clarksville in this territory, the trustees thereof were authorised to dispose of the land upon which said town was laid off in half acre lots, at public auction or otherwise, as they might think proper, and whereas the said trustees, by their orders and resolutions, did dispose of a certain part of said town to general William Clark, in fee conditional, who transferred the  same to the aforesaid Fetter, Hughes and Fuller, and whereas it seems  to have been the intention of the legislature of Virginia to subject the lots and land whereon the said town of Clarksville was laid off, to the control and disposition of the trustees of the said town, who, for the benefit of the proprietors therein, and for the interest of the public at large, did dispose en masse, in the manner aforesaid, of a number of lots, and it appearing by the memorial of the said Fetter, Hughes and Fuller, that the intention is to erect, for the public utility and convenience, mills and other water works on the said ground: \n\"SEC. 1. Therefore, be it enacted by the legislative council and house of representatives, and it is hereby enacted by the authority of the same, that the said Daniel Fetter, James Hughes, and Solomon Fuller, their heirs and assigns, be, and they are hereby considered, and shall be taken, deemed and holden, as the legal and equitable proprietors of the lots and land contained in the orders and resolutions of the said board of trustees, and the deed of transfer thereof from the said William Clark, subject nevertheless to the terms and conditions upon which the same was granted by the said board of trustees to the said William Clark.\" Passed  November 21, 1810. \nThe said William Clark, prior to the passage of the act last above recited, had transferred his interest in and to the said slips of land, mentioned in said resolutions of the said trustees of Clarksville, to the said Fetter, Hughes and Fuller, and some of the persons composing the board of trustees of Clarksville at that time, individually signed the petition of said Fetter, Hughes and Fuller, to the said general assembly, for the passage of the above recited act. \nFetter, Hughes and Fuller entered upon the said slip of land, under the aforesaid orders and resolutions of said trustees, and erected thereon, on the margin of the Ohio river, a saw mill, with a pair of mill stones for grinding, in the fall of the year 1810, which mill was shortly after swept away by the floods. That in the year 1812, they erected and put into operation a grist mill, of public utility, on the same slip of land, and on the margin of the Ohio river, which remains unto this day; that to furnish a head of water for said mill, they cut through a ridge of rock in the bed of said river, lying between a channel of said river next the shore and an outer channel,  by which the water  from the outer channel was brought into the channel next the shore; and that they expended in making said improvements from twelve to twenty thousand dollars. \nAt a meeting of the board of trustees of the town of Clarksville, on the 17th day of December 1816, the following resolution was adopted, and entered on the book of said trustees, to wit: \"on motion of Willis W. Goodwin, resolved, that the clerk of this board be directed to call on Messrs Fetter and Hughes, assignees of William Clark, and inform them that it is the request of this board that they do make out and exhibit, at our next meeting, an accurate statement of all the productions of the water works, mills, canals, &c., erected on the slip of ground granted them by the trustees of Clarksville, since their commencement to the present date, and that the same be supported by affidavit.\" At a meeting of the said board of trustees on the 18th day of August 1817, the following entry and order were made by said trustees, on the book of their proceedings, to wit: \"Messrs Fetter and Hughes produced to this board a statement of the quantity of flour manufactured at their mills, on the slip of ground granted to them by the trustees  of the town of Clarksville, from the commencement to the 1st day of January 1817, showing the net proceeds thereon, by which it appears they are indebted to the trustees the sum of sixty-nine dollars ten and a half cents, and it was ordered that they pay the same to the clerk of this board.\" \n Shortly after the making of the order last above recited, the said Fetter and Hughes paid to the clerk of the said board of trustees the sum of sixty-nine dollars ten and a half cents, in pursuance of said order. The said Fuller duly transferred his interest in said slip of land and appurtenances to said Fetter and Hughes, and said Fetter transferred his interest in the same to said Hughes, defendant herein, who, at the time of the commencement of this suit, was in possession of said slip of land and appurtenances; the said slip of land is a part of the one thousand acres laid off for a town, as above stated, and delineated on the map aforesaid, and is the land in the plaintiff's declaration mentioned; and the said trustees of the town of Clarksville, on the 1st day of September 1826, duly notified the said defendant to quit the possession of said slip of  land and appurtenances,  on or before the 18th day of March then next, and defendant refused, and still refuses to quit possession thereof. It is agreed, that the parties and the court shall not be precluded by this statement of facts from inferring the existence of such other facts as may reasonably and properly be deduced from those stated.\" \nThe district court rendered judgment in favour of the plaintiffs in the ejectment; and that judgment is now before this court on a writ of error. \nQuestions both new and intricate have arisen in this cause; and the doubts we have entertained respecting some of them were not easily removed. \nThe plaintiffs in error deny that the act of 1783, from which the trustees derive their title, could pass any legal estate to them in the lands which are the subject of it. \nThe act appoints commissioners who are to proceed with the surveyor, from and after the 1st day of April 1784, to lay off the said one hundred and fifty thousand acres of land on the north west side of the Ohio river; and after laying out one thousand acres at the most convenient place therein for a town, shall proceed to lay out and survey the residue, and to divide the same by fair and equal lots among the  claimants. A plat of the survey of the one hundred and forty-nine thousand cres thus to be divided is, when completed, to be returned to the register's office; \"and thereupon a patent shall issue to the said commissioners, or the survivor or survivors of them, who shall hold the same in trust for the respective claimants.\" They are directed to execute deeds, &c. \nThis act empowers the commissioners to receive the claims of the several officers and soldiers of the Illinois regiment, and to cause the survey to be made; but no legal estate passes to them until the patent shall be issued on the survey. The date of the patent does not appear, but the survey on which it was to be issued could not be made until after the 1st of April 1784; and consequently the patent must have been issued on a subsequent day. \nThe law further enacts, that a plat of the said one thousand acres directed to be laid off for a town, shall be returned by the surveyor to the court of the county of Jefferson, to be by the clerk thereof recorded, and thereupon the same shall be and is  hereby vested in William Fleming, &c. trustees, to be by them or any five of them laid off into lots, &c. \nThe time when  this plat was returned is not stated, but it must have been after the 1st of April 1784. \nPrevious to that day, in December 1783, Virginia passed an act ceding the territory she claimed north-west of the river Ohio to the United States; and the deed of cession was executed on the 1st of March 1784. This deed contains the following among other reservations: \"that a quantity not exceeding one hundred and fifty thousand acres of land promised by this state shall be allowed and granted to the then colonel, now general George Rogers Clark, and to the officers and soldiers of his regiment who marched with him when the posts of Kaskaskia and St Vincent were reduced, and to the officers and soldiers that have been since incorporated into the said regiment, to be laid off in one tract, the length of which not to exceed double the breadth, in such place on the north-west side of the Ohio as a majority of the officers shall choose; and to be afterwards divided among the said officers and soldiers in due proportions, according to the laws of Virginia.\" \nThe plaintiff in error contends, that as the state of Virginia had conveyed all her territory north-west of the river Ohio to the United States,  before any legal title was vested in the commissioners or trustees appointed by the act of 1783, the title at law was vested in the United States, and could pass only from them. That the reservation in favour of Clark's regiment, is not an exception of so much land from the deed of cession; but a stipulation that congress shall comply with the promise made y virginia to that regiment. Consequently that the plaintiffs in ejectment had no legal title. \nHad the court been required to expound these laws immediately after the deed of cession was executed, it is probable that the construction made by the plaintiff in error would have been adopted. But the opposite construction has prevailed, and all the titles in that reserve depend upon it. It is too late to controvert it. \nThe title of the plaintiffs in ejectment has been contested on other ground, which is more tenable. \nThe act directs the plat for the town to be returned to the office of Jefferson to be recorded, and declares that \"thereupon  the same shall be and is hereby vested in William Fleming, &c. trustees, to be by them or any five of them, laid off into lots of half an acre each, with convenient streets and public  lots, which shall be and the same is hereby established a town by the name of Clarksville.\" The act proceeds to prescribe the duties and the powers of the trustees. They are to sell the lots in the manner and on the conditions required by the law; to convey them to the purchasers; to determine all disputes concerning their bounds; and to settle rules and orders for regulr building thereon. This enumeration of duties and powers is concluded with the following provision: \"and in case of death, removal out of the country, or other legal disability of any of the said trustees, the remaining trustees shall supply such vacancies by electing others from time to time, who shall be vested with the same powers as those particularly nominated by this act.\" It is also enacted that \"if the purchaser of any lot shall fail to build  thereon within the time before limited, the said trustees, or a major part of them, may thereupon enter into such lot, and may either sell the same again,\" \"or appropriate such lot to the public use of the inhabitants of the said town.\" \nThe legal title is undoubtedly vested in William Fleming and the other persons who are named as trustees of the town. The  possession of this legal estate, however, would not have enabled them to perform the various acts which were necessary to the accomplishment of the object of the legislature. The thousand acres intended as a town, is to be laid out by these persons in their character of commissioners; and after the plat thereof shall be recorded, it is vested in them by name, after which the law prescribes their duties and powers. These are expressly enumerated. They do not grow out of the estate, but are conferred by the words of the act. Had the title been vested in other persons, the same powers might have been conferred on, and exercised by the trustees of the town. No one of their powers depends on their possessing the legal title. They might lay off the town in lots and streets, sell and convey the lots, determine their boundaries, and settle rules and orders for the regular building thereon, although the mere title should reside in others. The legal title is not identified with these powers, or connected with them by the words of  the law. The grantees are made trustees, but they receive the grant as individuals; and the mere legal estate must descend according to the law  of descents, unless otherwise directed by the particular statute. \nNo one of the persons in whom the land is vested by the act, nor any person claiming title under any one of them, is a party to this ejectment. The inquiry then is, has the legal title, which was vested in William Fleming and others, been divested by the act, and transferred to the defendants in error? This must be determined by the act itself. The words are, \"in case of death, &c. of any of the trustees, the remaining trustees shall supply such vacancies by electing others from time to time, who shall be vested (not with the same estate, but) with the same powers as those particularly nominated in this act.\" If the estate be not indispensable to the existence or exercise of the powers, and we think it is not; if the powers do not grow out of the estate, but are conferred by special words in the act, no necessity is perceived for supplying words which are not used in the act, and implying a transfer of the estate which the legislature has not made. It is unquestionable, that no inconvenience would result from such a construction; and we may conjecture that had it occurred to the legislature that the transfer of  the estate to the new trustees might be useful, it would have been directed; but we cannot do that which the law has not done: we cannot take a trust estate from William Fleming and others, and vest it in their successors as trustees, when the law does not make the transfer. \nIt is probable that the legislature contemplated the immediate execution of the powers conferred by the act, which would transfer the legal estate to the purchasers. They do not appear to have contemplated the permanent residence of the legal estate in the body of the trustees, for the purposes of the act. If the trustees were to do any thing in virtue of the estate, and not of their special powers, we might expect it to be a re-entry for breach of the condition contained in the deeds they made. Yet, after providing for their continuance, even this powers is expressly given to them. The legislature appears to have lost sight of the legal estate, and to have relied entirely on the powers given to the trustees and their successors for the accomplishment of their object. The powers are given to the  trustees and their successors; the estate is not given to their successors. We do not think the grant  of the powers draws after it the estate. If any use is to be made of the estate which cannot be effected by the employment of the powers, it still remains, we think, in the original grantees or their heirs. If any part of the one hundred and forty-nine thousand acres has not been conveyed, the title to such part remains in the same persons. The inconvenience of resorting to the holders of the legal title is the same in both cases. \nThe court has not come to this conclusion without considerable doubt and difficulty: but, pursuing the words of the statute, and finding in them no transfer of the estate, we must consider it as remaining where it was placed by the legislature. \nThe trustees contend that the defendants below were estopped from denying their title, by the agreement of the 18th of March 1803. The legal effect of that agreement, they say, was to create a tenancy from year to year; and consequently to establish the relation of landlord and tenant between the trustees nd those who claim under it. \nThat a lessee will not be allowed to deny the title of his lessor, is admitted; but it is not admitted that a contract executed for the purpose of conveying and acquiring an estate  in fee, but wanting those legal formalities which are required to pass the title, may be converted into an agreement contemplated by neither party; and by this conversion estop the purchaser, while it leaves the seller free to disregard his express stipulations. \nThe resolutions entered into by the board of trustees on the 18th of March 1803, constitute a contract which was intended by all parties to invest William Clark with a permanent estate. The trustees resolve \"that the rights, privileges and advantages of the ground\" described in the resolution, \"be exclusively granted to William Clark, his heirs and assigns, to be appropriated to the use of opening a canal through any part of the said slip of land, on which to erect mills, wharfs, store houses, or any kind of water works that may be of public utility, or for the erection of gates, locks, &c. for the passage of boats, vessels, &c.\" For this privilege, the trustees reserved \"one per cent on the production of all water works that may be erected on the said canal, and five per cent on the toll of all kind of craft that may pass through said canal.\" To this  grant was annexed this provision. \"Provided, however, that  the said William Clark, his heirs and assigns, do complete the said canal for the crection of water works within seven years from this day.\" This time was afterwards extended to ten years. \nThe assignees of William Clark took possession of the premises under this agreement, and  sold to others, who have expended from one to two thousand dollars on the work; and have erected a saw mill, which has been carried away; and a grist mill, which is now in operation, and of great public utility. \nIt is impossible to doubt the intention of the parties to this contract. The grant for which the trustees stipulate is to William Clark, his heirs and assigns.A tenancy from year to year, is directly repugnant to this stipulation. The money to be expended on the great works in contemplation, is entirely inconsistent with any other than a permanent estate. The views of the parties are entirely defeated; the contract is annulled by treating it as one which the trustees might determine at their will, or at the end of any year. Had the contract been clothed with legal form by the execution of a deed, such deed would have conveyed an estate to William Clarke, his heirs and assigns. The reservation  of the per centage on the building and canal, as the consideration of the grant, instead of a sum in gross; could not affect the permanence of the estate. The trustees could not have maintained an ejectment after the execution of such deed, unless some one of the conditions contained in it on which a right to re-enter was reserved, should be broken; which breach it would be incumbent on the plaintiffs in ejectment to show. Had these resolutions then amounted to a deed, or had the trustees placed the purchaser, in point of law, in the situation in which both parties intended by the contract to place him, this ejectment could not have been maintained, on any other principle than the breach of some condition in the deed which authorised a re-entry. \nBut a legal title has not been made, and those who claim under the contract cannot defend their possession by it in this action. The trustees themselves deny its validity for this purpose, and assert a title in opposition to it. While they would turn the purchaser out of possession, because this contract  tract has no legal operation in this action, they would give it a legal obligation on the defendant in the ejectment, which  is to restrain him from making a defence which would protect his equitable rights under it. The contract binds him, but leaves them at perfect liberty. The moral policy of the law cannot permit this. It is forbidden by the clearest principles of justice. The case of Blight's Lessee v. Rochester, 7 Wash. 534, asserts this doctrine in a case nearly resembling this. The plaintiff claimed under John Dunlap, whose title was not valid, but he insisted that the defendant must trace his title up to Dunlap, and therefore could not contest it. The court sai, \"if he claims under a sale from Dunlap, the plaintiffs themselves assert a title against this contract. Unless they show that it was conditional, and that the condition is broken, they cannot, in the very act of disregarding it themselves, insist that it binds the defendant, in good faith, to acknowledge a title which has no real existence.\" \nUpon the authority of this case, and upon the sound principles of morality and justice which belong to the law, we do not think that the plaintiffs, while asserting a title against their contract, can be permitted to insist that the same contract binds the defendant to admit their title. \nThis  opinion is founded on the idea that the action is brought to obtain possession against the contract, not for any failure to perform its conditions. The trustees themselves do not place their right to re-enter and hold the premises on that ground. The case does not state a re-entry for conditions broken; nor does it show expressly that any condition has been broken. If it be admitted, that William Clark or his assignees would in this case be bound to acknowledge the title of the trustees, provided the trustees, on their part, acknowledge the obligation of their resolutions on themselves; it becomes necessary to inquire whether the conditions contained in those resolutions have been broken. What are those conditions? \nThe resolutions are not drawn with such distinctness as to make the object of the parties clearly intelligible, or to show the extent of the engagements into which Clark entered, so as not to be misunderstood. \nThey are introduced by a preamble stating the \"advantages that would result\" \"by opening a canal round the falls of the  Ohio.\" They then proceed to say, \"on the application of George Rogers Clark, it is resolved by the board, that the rights, privileges  and advantages of the ground between the front lots on the Ohio, and the Ohio from the upper line of the town of Clarksville,\" &c. \"to the mouth of Mill Creek, be exclusively granted to William Clark, his heirs and assigns, to be appropriated to the use of opening a canal through any part of said slip of land, on which to erect mills, wharfs, store houses, or any kind of water works that may be of public utility, or for the erection of gates, locks, &c. for the passage of boats, vessels, &c. \nThe preamble undoubtedly indicates that the trustees contemplated \"the advantage which would result from a canal round the falls,\" but whether they meant to bind Clark to make the whole of that canal, is to be determined by the resolutiosn declaring the purposes of the grant to him. \nThe canal which Clark was to make, was, it is presumed, to be made through the ground ceded to him by the trustees. This extends to the mouth of Mill Creek. The case does not state whether Mill Creek empties into the Ohio below the falls. If it does not, this fact would go far in the construction of the resolutions. If it does, the fact, or something equivalent, should be shown in the case. \nThe resolutions add  that the rights, &c. exclusively granted, \"are to be appropriated to the use of opening a canal through any part of the said slip of land, on which to erect mills, wharfs, store houses, or any kind of water works that may be of public utility.\" \nThis canal is \"to pass through any part of the said slip of land;\" but is not required to pass through the whole of it, and to empty into the river at the mouth of Mill creek. Its expressed purpose is to erect mills, wharfs, &c., but the erection of all of them is not required, nor is the grantee himself required to erect any of them. The canal is to be adapted to the purpose, and if it be so adapted, the requisition of the resolution is complied with. An alternative application of the canal is allowed.the resolution proceeds to say, \"or for the erection of gates, locks, &c., for the passage of boats,  vessels, &c. These two members of the resolutions are not connected by the copulative \"and,\" but by the disjunctive \"or.\"  The resolution does not require that the canal should be fitted for both purposes, but is satisfied if it be fitted for either. \nThe limitation of time is \"provided, however, that the said William  Clark, his heirs and assigns, do complete the said canal, for the erection of water works, within seven years from this day.\" Clark and his assignees are within the requirement of the proviso, if they complete the canal for the erection of water works within seven years; though no works of any description should be erected. \nAt a meeting of the trustees, held in december 1807, this subject was again taken up. A farther time of three years was allowed, on condition, among other things, that the former grant shall not extend farther than to the lower basin, and that the said William Clark shall bind himself, his heirs, &c. \"to build and keep up good and sufficient bridges across said canal, at the intersection of every cross street, and to erect within the period mentioned, to wit by the 18th of March 1813, a mill or mills to be of public utility, or open a canal agreeably to the conditions of the former grant, &c.\" \nThe alternative is given to Clark and his assigns, either to build a mill or mills to be of public utility, or open the canal. \nThe case states that the mill was erected, which remains to this day. It also states, that in December 1816, the trustees called on the assignees  of William Clark for a statement of the production of the water works, which account was rendered, and the money appearing to be due on it was paid.We are not informed that there was any subsequent failure in the payment of the money which became due under the contract. We are not, therefore, at liberty to suppose that the conditions of the contract have been broken on the part of Clark's assignees. The trustees, then, to sustain this ejectment, must consider themselves as absolved from the contract. Acting upon this principle, they cannot set it up against the plaintiffs in error. They cannot be permitted, while denying its obligation on themselves, to enforce it on others. Both are free, or both are bound. We are of opinion that the plaintiffs in error were at liberty in this case to controvert the title set up by the trustees in the court below. \nThe assignees of Clark have relied upon an act of the territorial legislature of Indiana, passed in November 1810, supplying  the want of a conveyance; and declaring the assignees of the said Clark to be \"the legal and equitable proprietors of the lots and land contained in the orders and resolutions of the said board of  trustees,\" \"subject, nevertheless, to the terms and conditions upon which the same was granted.\" \nWe do not mean to deny the right of the legislature to modify the future exercise of the powers possessed by the trustees of the town of Clarksville; provided they do not impair vested rights: but we are not prepared to decide this case on an act which changes the chracter and operation of a contract after it has been made. \nThis case has been decided in the state court of Indiana, and is reported in 1 Blatchford, 422. This court has considered that decision with the respect to which it is justly entitled. In that case the court did not examine and decide on the legal title of the trustees, because legal effect was given to the contract so far as to defeat the action. The relation of landlord and tenant, therefore, was preserved between the parties, and bound both. That relation defeated the plaintiff's action, though it estopped the defendants from controverting his title. Notwithstanding the plaint meaning of the contract made by the resolutions of March 1803, to grant a permanent estate; yet that contract, though incapable of passing an estate at law to the extent intended, was  capable of passing at law an estate from year to year, and in that action might be so construed. The necessary effect of this construction was the admission of the title of the lessor: but in this action no legal effect whatever is given to the contract, and it cannot therefore estop the defendant from contesting the title asserted in hostility to it. \nWe do not consider the case as depending on local law. \nWe are of opinion that the plaintiff below did not show title to the possession of the premises claimed in the declaration; and that there is error in the judgment of the court for the district of Indiana in his favour. \nThat judgment is reversed, and judgment entered for the defendant. \n This cause came on to be heard on the transcript of the record from the district court of the United States for the district of Indiana, and was argued by counsel; on consideration whereof, it is the opinion of this Court, that the plaintiff below did not show title to the possession of the premises claimed in the declaration, and that there is error in the judgment of the court for the district of Indiana in his favour; whereupon it is ordered and ajudged by this Court, that the judgment  of the said district court in this cause be, and the same is hereby reversed, and that this cause be, and the same is hereby remanded to the said district court, with directions to that court to enter judgment for the defendant below. \nDissent by:", " \nOpinion \n\n \n \n  Mr Chief Justice MARSHALL stated it to be the opinion of the court, that the third section of the act of congress, entitled \"an act more effectually to provide for the punishment of certain crimes against the United States, and for other purposes,\" passed March 3, 1825, is to be limited to the laws of the several states in force at the time of its enactment. This was ordered to be certified to the circuit court for the southern district of New York. \n \n\n ", " \nOpinion \n\n \n \n  The judges having severally expressed their opinion, Mr Chief Justice MARSHALL said, the evidence objected to is understood to be offered to prove that certain proceedings have  been had at different times in the legislature of Rhode Island, on private petitions of a similar nature with that before the court;  and that there have been certain usages and proceedings in the legislature of Rhode Island, in regard to the administration and sale of the estates of deceased persons for their debts, which will establish, that it has for a long period by usage, and rightfully, exercised the authority contended for by the defendant. The public laws of a state may without question be read in this court; and the exercise of any authority which they contain, may be deduced historically from them: but private laws, and special proceedings of the character spoken of, are governed by a different rule. They are matters of fact, to be proved as such in the ordinary  manner. This court cannot go into an inquiry as to the existence of such facts upon a writ of error, if they are not found on the record. The evidence, if not objected to, might have been heard; but since it is controverted, the matter of fact must be ascertained in the circuit court. \n[Upon this decision, the parties consented to remand the cause to the circuit court for further inquiry into the facts.] \nDissent by:", " \nOpinion \n\n \n \n  Mr Chief Justice MARSHALL delivered the opinion of the Court. \n This action was brought by Grant and Townsend against E. and H. Raymond, to recover damages for an infringement of their right under a patent granted to the plaintiff Joseph Grant, in April 1825. It recited that a former patent had been issued in August 1821, to the same person for the same improvement, \"which had been cancelled, owing to the defective specification on which the same was granted.\" The exclusive privilege given by the patent on which  the suit is brought, is to continue fourteen years from the day on which the original was issued. \nOne of the pleas filed by the defendants, contained the following averment: \"and the defendants aver that said specification does not correctly or accurately describe the improvement claimed by the said Joseph Grant as his invention, but said specification, and the drawings pereto annexed, are altogether defective in this, among other things, namely: in said specification no proportion, sizes or distances are given, and the bigness or size of none of the principal parts of said machine is given in said specifications or drawings, but the same is wholly omitted; and in other particulars, said specifications and drawings are wholly defective: and the defendants aver that said specification annexed to and making part of said letters patent, with the drawings thereto annexed, do not contain a written description of his the said Joseph Grant's invention and improvement aforesaid, and manner of using it, in such full, clear and exact terms, as to distinguish the same from all other things before known, and so as to enable any person skilled in the art of which said machine or improvement is  a branch, or with which it is most nearly connected, to make and use the same; and that for the cause aforesaid, said letters patent are void.\" \nThe plaintiffs reply that they ought not to be barred, \"because they say that the specification mentioned in the said last mentioned plea, does correctly and accurately describe the improvement claimed by the said Joseph Grant as his invention; and because they say further, that neither the said specification, nor the  drawings thereto annexed, are defective in any of the particulars in that behalf alleged in the said last mentioned plea, and this they pray may be inquired of by the country.\" On this replication issue was joined. \n At the trial the counsel for the defendants objected that the secretary of state had no power by law to accept a surrender of, and to cancel the said letters patent, or to inquire into or to decide upon the causes for so doing, or to grant said second patent for the same invention with an amended specification, for the unexpired portion of the term of fourteen years which had been granted by the first patent. \nThe court decided that such surrender might be made when the defect arose from inadvertence  or mistake, and without any fraud or misconduct on the part of the patentee; and that the secretary of state had authority to accept such surrender, and cancel the record of the patent, and to issue a new patent for the unexpired part of the fourteen years granted under the old patent, in manner aforesaid. To which decision the counsel for the defendants excepted. \nAfter adducing the testimony on which they relief to support their plea herein before stated, the counsel for the defendants moved the court to instruct the jury that if they found that the defendants had maintained and proved their averments in that respect, that they must find the same for the defendants; which instructions the court refused to give, but instructed the jury that the patent would not be void on this ground, unless such defective or imperfect specification or description arose from design, and for the purpose of deceiving the public; to which opinion the counsel for the defendants also excepted. \nThe jury found a verdict for the plaintiffs, and assessed their damages to three thousand two hundred and sixty-six dollars sixty-six cents: the judgment on which is brought before this court by a writ of error. \n The first question in the cause respects the power of the secretary of state to receive a surrender of a patent, cancel the record thereof, and issue a new patent for the unexpired part of the fourteen years for which the original had been granted. The court was of opinion that this might be done \"when the defect in the specification arose from inadvertence or mistake, and without any fraud or misconduct on the part of the patentee.\" \nThe right of the patentee to surrender his patent has not been denied, but the plaintiffs in error insist that no power exists to grant a new patent for the unexpired term. The  words of the act, they say, do not confer this power. It cannot be exercised with its necessary guards by the department of state; and inconvenience of no inconsiderable magnitude might result to the public from its exercise. The secretary of state is, in the act of making out patents, a mere ministerial officer, and can exercise no power which is not expressly given. \nIt is undoubtedly true, that the secretary of state may be considered, in issuing patents, as a ministerial officer. If the prerequisites of the law be complied with, he can exercise no judgment  on the question whether the patent shall be issued.It is equally true that the act of congress contains no words which expressly authorise the secretary to issue a corrected patent, if the original, from some mistake or inadvertence in the patentee, should be found incompetent to secure the reward which the law intended to confer on him for his invention. The force of this objection, and of the argument founded on it is felt. If the new patent can be sustained, it must be on the general spirit and object of the law, not on its letter. \nTo promote the progress of useful arts, is the interest and policy of every enlightened government. It entered into the views of the framers of our constitution, and the power \"to promote the progress of science and useful arts, by securing for limited times to authors and inventors, the exclusive right to their respective writings and discoveries,\" is among those expressly given to congress. This subject was among the first which followed the organization of our government. It was taken up by the first congress at its second session, and an act was passed authorising a patent to be issued to the inventor of any useful art, &c. on his petition,  \"granting to such petitioner, his heirs, administrations or assigns, for any term not exceeding fourteen years, the sole and exclusive right and liberty of making, using, and vending to others to be used, the said invention or discovery.\" The law farther declares that the patent \"shall be good and available to the grantee or grantees by force of this act, to all and every intent and purpose herein contained.\" The emendatory act of 1793 contains the same language, and it cannot be doubted that the settled purpose of the United States has ever been, and continues to be, to confer on the authors of useful inventions an exclusive right in their inventions for the time mentioned in their patent. It is  the reward stipulated for the advantages derived by the public for the exertions of the individual, and is intended as a stimulus to those exertions. The laws which are passed to give effect to this purpose ought, we think, to be construed in the spirit in which they have been made; and to execute the contract fairly on the part of the United States, where the full benefit has been actually received: if this can be done without transcending the intention of the statute, or countenancing  acts which are fraudulent or may prove mischievous. The public yields nothing which it has not agreed to yield; it receives all which it has contracted to receive. The full benefit of the discovery, after its enjoyment by the discoverer for fourteen years, is preserved; and for his exclusive enjoyment of it during that time the public faith is pledged. That sense of justice and of right which all feel, pleads strongly against depriving the inventor of the compensation thus solemnyly promised, because he has committed an inadvertent or innocent mistake. \nIf the mistake should be committed in the department of state, no one would say that it ought not to be corrected. All would admit that a new patent, correcting the error, and which would secure to the patentee the benefits which the law intended to secure, ought to be issued. And yet the act does not in terms authorise a new patent, even in this case. Its emanation is not founded on the words of the law, but is indispensably necessary to the faithful execution of the solemn promise made by  the United States. Why should not the same step be taken for the same purpose, if the mistake has been innocently committed by  the inventor himself? \nThe counsel for the plaintiffs in error have shown very clearly that the question of inadvertence or mistake is a judicial question, which cannot be decided by the secretary of state. Neither can he decide those judicial questions on which the validity of the first patent depends. Yet he issues it without inquiring into them. Why may he not, in like manner, issue the second patent also? The correct performance of all those preliminaries on which the validity of the original depends, are always examinable in the court in which a suit for its violation shall be brought. Why may not those points on which the validity of the amended patent depends, be examined  before the same tribunal? In the case under consideration those questions were not supposed by the circuit court to have been decided in the department of state, but were expressly submitted to the jury. The rightfulness of issuing the new patent is declared to depend on the fact, that \"the defect in the specification arose from inadvertence or mistake, and without any fraud or misconduct on the part of the patentee.\" The jury were of course to inquire into the fact. The condition on which  the right to issue the patent dependent, could be stated to them for no other purpose. \nIt has been said that this permission to issue a new patent on a reformed specification, when the first was defective through the mistake of the patentee, would change the whole character of the act of congress. \nWe are not convinced of this. The great object and intention of the act is to secure to the public the advantages to be derived from the discoveries of individuals, and the means it employs are the compensation made to those individuals for the time and labour devoted to these discoveries, by the exclusive right to make, use and sell, the things discovered for a limited time. That which gives complete effect to this object and intention, by employing the same means for the correction of inadvertent error which are directed in the first instance, cannot, we think, be a departure from the spirit and character of the act. \nAn objection much relied on is, that after the invention has been brought into general use, those skilled in the art or science with which it is connected, perceiving the variance between the specification and the machine, and availing themselves of it, may have constructed,  sold and used the machine without infringing the legal rights of the natentee, or incurring the penalties of the law. The new patent would retro-act on them, and expose them to penalties to which they were not liable when the act was committed. \nThis objection is more formidable in appearance than in reality. It is not probable that the defect in the specification can be so apparent as to be perceived by any but those who examine it for the purpose of pirating the invention. They are not entitled to much favour. But the answer to the objection is, that this defence is not made in this case; and the  opinion of the circuit court does not go so far as to say that such a defence would not be successful. That question is not before the court, and is not involved in the opinion we are considering.The defence when true in fact may be sufficient in law, notwithstanding the validity of the new patent. \nIt has been also argued that the new patent must issue on the new specification, and on the application which accompanies it. Consequently, it will not be true that the machine was \"not known or used before the application.\" \nBut the new patent, and the proceedings on which  it issues, have relation to the original transaction. The time of the privilege still runs from the date of the original patent. The application may be considered as appended to the original application; and, if the new patent is valid, the law must be considered as satisfied if the machine was not known or used before that application. \nIt has been urged that the public was put into possession of the machine by the open sale and use of it under the defective specification, and cannot be deprived of it by the grant of a new patent. The machine is no longer the subject of a patent. \nThis would be perfectly true, if the second patent could be considered as independent of the first. But it is in no respect so considered. The communication of the discovery to the public has been made in pursuance of law, with the intent to exercise a privilege which is the consideration paid by the public for the future use of the machine.If, by an innocent mistake, the instrument introduced to secure this privilege fails in its object, the public ought not to avail itself of this mistake, and to appropriate the discovery without paying the stipulated consideration. The attempt would be disreputable  in an individual, and a court of equity might interpose to restrain him. \nIt will not be pretended that this question is free from difficulty. But the executive departments, it is understood, have acted on the construction adopted by the circuit court, and have considered it as settled. We would not willingly disregard this settled practice in a case where we are not satisfied it is contrary to law, and where we are satisfied that it is required by justice and good faith. \n We will not proceed to the second exception. \nThe plea assigns the particular defect supposed to exist in the specification, and then proceeds to aver, in the very words of the act, that it \"does not contain a written description of his the said Joseph Grant's invention and improvement aforesaid, and manner of using it, in such full, clear, and exact terms as to distinguish the same from all other things before known, and so as to enable any person skilled in the art, &c. to make and use the same,\" &c. \nThe plea alleges, in the words of the act, that the pre-requisites to the issuing a patent had not been complied with. \nIf the matter alleged in this plea constituted no bar to the action, the plaintiffs  might have demanded, and have submitted the question of law to the court. But they have chosen to deny the facts alleged in the plea, and to aver in their replication \"that neither the specification nor the drawings thereto annexed, are defective  in any of the particulars in that behalf alleged.\" Issue was joined upon this replication, and it is that issue which the jury were sworn to try. \nAt the trial the counsel for the defendants, after the evidence was closed, asked the court, in substance, to instruct the jury that if they should be of opinion that the defendants had maintained and proved the facts alleged in their plea, they must find for the defendants. The court refused this instruction. Ought it to have been refused? If in the opinion of the jury the defendants have proved and maintained every fact alleged in the plea on which the issue they are sworn to try is joined, ought not the jury to find that issue for the defendants? Is not this required by their oaths? The conclusion, \"and that for the cause aforesaid, said letters patent are void,\" is an inference of law from the facts previously alleged; not the allegation of a distinct fact to be submitted to  the jury. \nThe court proceeded to instruct the jury \"that the patent would not be void on this ground, unless such defective or imperfect specification or description arose from design or for the purpose of deceiving the public.\" \nNow this \"design,\" this \"purpose of deceiving the public,\" constituted no part of the issue. The defendants had not alleged it, and could not be supposed to come prepared to prove it. A verdict for them would not imply it. The instruction is  understood to direct a verdict which finds in fact that the description or specification is not defective; and this verdict against the evidence is to be found because that defect \"arose not from design, or for the purpose of deceiving the public.\" \nBut we must inquire whether the instruction, independent of its departure from the issue, be consistent with law. IT is \"that the patent would not be void unless,\" &c. \nThe fifth section of the act gives the party aggrieved an action for the infringement of his patent right. The sixth provides \"that the defendant in such action shall be permitted to plead the general issue, and given this act in evidence, and to give in evidence any special matter, of which  notice in writing may have been given to the plaintiff or his attorney thirty days before trial, tending to prove that the specification filed by the plaintiff does not contain the whole truth relative to his discovery, or that it contains more than is necessary to produce the describe effect; which concealment or addition shall fully appear to have been made for the purpose of deceiving the public; or that the thing thus secured,\" &c. \"in either of which cases judgment shall be rendered for the defendant with costs, and the patent shall be declared void.\" \nCourts did not, perhaps, at first distinguish clearly between a defence which would authorise a verdict and judgment in favour of the defendant in the particular action, leaving the plaintiff free to use his patent, and to bring other suits for its infringement; and one which, if successful, would require the court to enter a judgment not only for the defendant in the particular case, but one which declares the patent to be void. This distinction is now well settled. \nIf the party is content with defending himself, he may either plead specially; or plead the general issue, and give the notice required by the sixth section of any  special matter he means to use at the trial. If he shows that the patentee has failed in any of those pre-requisites on which the authority to issue the patent is made to depend, his defence is complete. He is entitled to the verdict of the jury and the judgment of the court. But if, not content with defending himself, he seeks to annul the patent, he must proceed in precise conformity to the sixth section. If he depends on evidence \"tending to prove that the specification filed by the plaintiff  does not contain the whole truth relative to his discovery, or that it contains more than is necessary to produce the described effect,\" it may avail him so far as respects himself, but will not justify a judgment declaring the patent void, unless such \"concealment or addition shall fully appear to have been made for the purpose of deceiving the public;\" which purpose must be found by the jury to justify a judgment of vacatur by the court. The defendant is permitted to proceed according to the sixth section, but is not prohibited from proceeding in the usual manner, so far as respects his defence; except that special matter may not be given in evidence on the general issue  unaccompanied by the notice which the sixth section requires. The sixth section is not understood to control the third. The evidence of fraudulent intent is required only in the particular case, and for the particular purpose stated in the sixth section. \nThis instruction was material if the verdict ought to have been for the defendants, provided the allegations of the plea were sustained, and if such verdict would have supported a judgment in their favour; although the defect in the specification might not have arisen from design, and for the purpose of deceiving the public. That such is the law we are entirely satisfied. The third section requires, as preliminary to a patent, a correct specification and description of the thing discovered. This is necessary in order to give the public, after the privilege shall expire, the advantage for which the privilege is allowed, and is the foundation of the power to issue the patent. The necessary consequence of the ministerial character in which the secretary acts, is that the performance of the pre-requisites to a patent must be examinable in any suit brought upon it. If the case was of the first impression, we should come to this  conclusion; but it is understood to be settled. \nThe act of parliament concerning monopolies contains an exception on which the grants of patents for inventions have issued in that country. The construction of so much of that exception as connects the specification with the patent, and makes the validity of the latter dependent on the correctness of the former, is applicable, we think, to proceedings under the third section of the American act. The English books  are full of cases in which it has been held that a defective specification is a good bar when pleaded to, or a sufficient defence when given in evidence on the general issue, on an action brought for the infringement of a patent right. They are very  well summed up in Godson's Law of Patents, title Specification: and also in the chapter respecting the infringement of patents: also in Holroyd on Patents, where he treats of the specification, its form and requisites. It is deemed unnecessary to go through the cases, because there is no contrariety in them, and because the question is supposed to be substantially settled in this country. Pennock and Sellers v. Dialogue, 1 Peters, 1, was not, it is true,  a case of defect in the specification or description required by the third section, but one in which the applicant did not bring himself within the provision of the first section, which requires that before a patent shall issue the petitioner shall allege that he has invented a new and useful art, machine, &c. \"not known or used before the application.\" \nThis pre-requisite of the first section, so far as a failure in it may affect the validity of the patent, is not distinguishable from a failure of the pre-requisites of the third section. \nOn the trial evidence was given to show that the patentee had permitted his invention to be used before he took out his patent. The court declared its opinion to the jury, that if an inventor makes his discovery public, he abandons the inchoate right to the exclusive use of the invention. \"It is possible,\" added the court, \"that the inventor may not have intended to give the benefit of his discovery to the public.\" \"But it is not a question of intention,\" \"but of legal inference, resulting from the conduct of the inventor, and affecting the interests of the public.It is for the jury to say whether the evidence brings this case within the principle  which has been stated. If it does, the court is of opinion that the plaintiff is not entitled to a verdict.\" \nThe jury found a verdict for the defendants, an exception was taken to the opinion, and the judgment was affirmed by this court. \nThis case affirms the principle that a failure on the part of the patentee, in those pre-requisites of the act which authorise a patent, is a bar to a recovery in an action for its infringement; and that the validity of this defence does not depend on  the invention of the inventor but is a legal inference upon his conduct. \nUpon these authorities and this reasoning we are of opinion that the instruction was erroneous, and that the judgment ought to be reversed and the cause remanded. One of the judges composing the majority thinks, that the direction would have been erroneous on a plea properly framed upon the third section of the act, and averring the facts of a defective specification, and a non-compliance with other requisitions of that section, for that such a plea would be a good bar and defence to the action: but, in his view, the plea relies upon the facts as avoiding the patent entirely, and avers it to be void. He thinks,  however, that the replication puts the facts, and not the point whether void or not, in issue; and that the direction of the court was erroneous, since it was equivalent to a declation, that if all the facts were proved, the issue ought not to be found for the defendants, unless the imperfection of the specification arose from a fraudulent design. \nThe judgment is reversed, and the cause remanded with directions to issue a venire facias de novo. \nThis cause came on to be heard on the transcript of the record from the circuit court of the United States for the southern district of New York, and was argued by counsel. On consideration whereof, it is the opinion of this Court that the said circuit court erred in instructing the jury \"that the patent would not be void on this ground, unless such defective or imperfect specification or description arose from design, and for the purpose of deceiving the public.\" Whereupon it is ordered and adjudged by this Court, that the judgment of the said circuit court in this cause be, and the same is hereby reversed, and that this cause be, and the same is hereby remanded to the said circuit court, with directions to award a venire facias de novo. \n \n\n ", " \nOpinion \n\n \n \n  Mr Chief Justice MARSHALL delivered the opinion of the Court. \nThe court is of opinion that the present is not a proper case for the interposition of this court, by way of mandamus. The application to set aside the default and inquest, was an application to the discretion of the district court; and is not distinguishable in principle from applications  to grant new trials. This court has always considered such applications as resting in the sound discretion of the court where the cause is depending, and not a matter for a mandamus  or writ of error. \n \n\n ", " \nOpinion \n\n \n \n  Mr Chief Justice MARSHALL delivered the opinion of the Court. \nThis cause, in every point of view in which it can be placed, is of the deepest interest. \nThe defendant is a state, a member of the union, which has exercised the powers of government over a people who deny its jurisdiction, and are under the protection of the United States. \nThe plaintiff is a citizen of the state of Vermont, condemned to hard labour for four years in the penitentiary of Georgia; under colour of an act which he alleges to be repugnant to the constitution, laws, and treaties of the United States. \nThe legislative power of a state, the controlling power of the constitution and laws of the United States, the rights, if they have any, the political existence of a once numerous and powerful people, the personal liberty of a citizen, are all involved in the subject  now to be considered. \nIt behoves this court, in every case, more especially in this, to examine into its jurisdiction with scrutinizing eyes; before it proceeds to the exercise of a power which is controverted. \nThe first step in the performance of this duty is the inquiry whether the record is properly before the court. \nIt is certified by the clerk of the court, which pronounced the judgment of condemnation under which the plaintiff in error is imprisoned; and is also authenticated by the seal of the court. It is returned with, and annexed to, a writ of error issued in regular form, the citation being signed by one of the associate justices of the supreme court, and served on the governor and attorney-general of the state, more than thirty days before the commencement of the term to which the writ of error was returnable. \nThe judicial act (sec. 22, 25, 2 Laws U.S. 64, 65), so far as it prescribes the mode of proceeding, appears to have been literally pursued. \nIn February 1797, a rule (6 Wheat. Rules) was made on this subject, in the following words: \"It is ordered by the court, that the clerk of the court to which any writ of error shall be directed, may make return of the same  by transmitting a true  copy of the record, and of all proceedings in the same, under his hand and the seal of the court.\" \nThis has been done. But the signature of the judge has not been added to that of the clerk. The law does not require it. The rule does not require it. \nIn the case of Martin v. Hunter's Lessee, 1 Wheat. 304, 361, an exception was taken to the return of the refusal of the state court to enter a prior judgment of reversal by this court; because it was not made by the judge of the state court to which the writ was directed: but the exception was overruled, and the return was held sufficient. In Buel v. Van Ness, 8 Wheat. 312, also a writ of error to a state court, the record was authenticated in the same manner. No exception was taken to it. These were civil cases. But it has been truly said at the bar, that, in regard to this process, the law makes no distinction between a criminal and civil case. The same return is required in both. If the sanction of the court could be necessary for the establishment of this position, it has been silently given. \nM'Culloch v. The State of Maryland, 4 Wheat. 316, was a qui tam action, brought to recover a penalty,  and the record was authenticated by the seal of the court and the signature of the clerk, without that of a judge. Brown et al. v. The State of Maryland, was an indictment for a fine and forfeiture. The record in this case, too, was authenticated by the seal of the court and the certificate of the clerk. The practice is both ways. \nThe record, then, according to the judiciary act, and the rule and the practice of the court, is regularly before us. The more important inquiry is, does it exhibit a case cognizable by this tribunal? \nThe indictment charges the plaintiff in error, and others, being white persons, with the offence of \"residing within the limits of the  Cherokee nation without a license,\" and \"without having taken the oath to support and defend the constitution and laws of the state of Georgia.\" \nThe defendant in the state court appeared in proper person, and filed the following plea: \n\"And the said Samuel A. Worcester, in his own proper person, comes and says, that this court ought not to take further  cognizance of the action and prosecution aforesaid, because, he says, that, on the 15th day of July in the year 1831, he was, and still is, a resident  in the Cherokee nation; and that the said supposed crime or crimes, and each of them, were committed, if committed at all, at the town of New Echota, in the said Cherokee nation, out of the jurisdiction of this court, and not in the county Gwinnett, or elsewhere, within the jurisdiction of this court: and this defendant saith, that he is a citizen of the state of Vermont, one of the United States of America, and that he entered the aforesaid Cherokee nation in the capacity of a duly authorised missionary of the American Board of Commissioners for Foreign Missions, under the authority of the president of the United States, and has not since been required by him to leave it: that he was, at the time of his arrest, engaged in preaching the gospel to the Cherokee Indians, and in translating the sacred scriptures into their language, with the permission and approval of the said Cherokee nation, and in accordance with the humane policy of the government of the United States for the civilization and improvement of the Indians; and that his residence there, for this purpose, is the residence charged in the aforesaid indictment: and this defendant further saith, that this prosecution the state  of Georgia ought not to have or maintain, because, he saith, that several treaties have, from time to time, been entered into between the United States and the Cherokee nation of Indians, to wit, at Hopewell, on the 28th day of November 1785; at Holston, on the 2d day of July 1791; at Philadelphia, on the 26th day of June 1794; at Tellico, on the 2d day of October 1798; at Tellico, on the 24th day of October 1804; at Tellico, on the 25th day of October 1805; at Tellico, on the 27th day of October 1805; at Washington city, on the 7th day of January 1805; at Washington city, on the 22d day of March 1816; at the Chickasaw Council House, on the 14th day of September 1816; at the Cherokee Agency, on the 8th day of July 1817; and at Washington city, on the 27th day of February 1819: all which treaties have been duly ratified by the senate of the United States of America; and, by which treaties, the United States of America acknowledge the said Cherokee nation to be a sovereign nation, authorised to govern themselves, and all persons who have settled within their territory, free from any right of legislative interference by the several states composing  the United States of America,  in reference to acts done within their own territory; and, by which treaties, the whole of the territory now occcupied by the Cherokee nation, on the east of the Mississippi, has been solemnly guarantied to them; all of which treaties are existing treaties at this day, and in full force. by these treaties, and particularly by the treaties of Hopewell and Holston, the aforesaid territory is acknowledged to lie without the jurisdiction of the several states composing the union of the United States; and, it is thereby specially stipulated, that the citizens of the United States shall not enter the aforesaid territory, even on a visit, without a passport from the governor of a state, or from some one duly authorised thereto, by the president of the United States: all of which will more fully and at large appear, by reference to the aforesaid treaties. And this defendant saith, that the several acts charged in the bill of indictment were done, or omitted to be done, if at all, within the said territory so recognized as belonging to the said nation, and so, as aforesaid, held by them, under the guarantee of the United States: that, for those acts, the defendant is not amenable to the laws  of Georgia, nor to the jurisdiction of the courts of the said state; and that the laws of the state of Georgia, which profess to add the said territory to the several adjacent counties of the said state, and to extend the laws of Georgia over the said territory, and persons inhabiting the same; and, in particular, the act on which this indictment against this defendant is grounded, to wit, 'an act entitled an act to prevent the exercise of assumed and arbitrary power, by all persons, under pretext of authority from the Cherokee Indians, and their laws, and to prevent white persons from residing within that part of the chartered limits of georgia occupied by the Cherokee Indians, and to provide a guard for the protection of the gold mines, and to enforce the laws of the state within the aforesaid territory,' are repugnant to the aforesaid treaties; which, according to the constitution of the United States, compose a part of the supreme law of the land; and that these laws of Georgia are, therefore, unconstitutional, void, and of no effect; that the said laws of Georgia are also unconstitutional and void, because they impair the obligation of the various contracts formed by and between  the afore-said Cherokee nation and the said United States of America,  as above recited: also, that the said laws of Georgia are unconstitutional and void, because they interfere with, and attempt to regulate and control the intercourse with the said Cherokee nation, which, by the said constitution, belongs exclusively to the congress of the United States; and because the said laws are repugnant to the statute of the United States, passed on the day of March 1802, entitled 'an act to regulate trade and intercourse with the Indian tribes, and to preserve peace on the frontiers:' and that, therefore, this court has no jurisdiction to cause this defendant to make further or other answer to the said bill of indictment, or further to try and punish this defendant for the said supposed offence of offences alleged in the bill of indictment, or any of them: and, therefore, this defendant prays judgment whether he shall be held bound to answer further to said indictment.\" \nThis plea was overruled by the court.And the prisoner, being arraigned, plead not guilty. The jury found a verdict against him, and the court sentenced him to hard labour, in the penitentiary, for the  term of four years. \nBy overruling this plea, the court decided that the matter it contained was not a bar to  the action. The plea, therefore, must be examined, for the purpose of determining whether it makes a case which brings the party within the provisions of the twenty-fifth section of the \"act to establish the judicial courts of the United States.\" \nThe plea avers, that the residence, charged in the indictment, was under the authority of the president of the United States, and with the permission and approval of the Cherokee nation. That the treaties, subsisting between the United States and the Cherokees, acknowledge their right as a sovereign nation to govern themselves and all persons who have settled within their territory, free from any right of legislative interference by the several states composing the United States of America. That the act under which the prosecution was instituted is repugnant to the said treaties, and is, therefore, unconstitutional and void. That the said act is, also, unconstitutional; because it interferes with, and attempts to regulate and control, the intercourse with the Cherokee nation, which belongs, exclusively, to congress;  and, because, also, it is repugnant to the statute of the United States, entitled \"an act to  regulate trade and intercourse with the Indian tribes, and to preserve peace on the frontiers.\" \nLet the averments of this plea be compared with the twenty-fifth section of the judicial act. \nThat section enumerates the cases in which the final judgment or decree of a state court may be revised in the supreme court of the United States.These are, \"where is drawn in question the validity of a treaty, or statute of, or an authority exercised under, the United States, and the decision is against their validity; or where is drawn in question the validity of a statute of, or an authority exercised under any state, on the ground of their being repugnant to the constitution, treaties or laws of the United States, and the decision is in favour of such their validity; or where is drawn in question the construction of any clause of the constitution, or of a treaty, or statute of, or commission held under the United States, and the decision is against the title, right, privilege or exemption, specially set up or claimed by either party under such clause of the said constitution, treaty, statute  or commission.\" \nThe indictment and plea in this case draw in question, we think, the validity of the treaties made by the United States with the Cherokee Indians; if not so, their construction is certainly drawn in question; and the decision has been, if not against their validity, \"against the right, privilege or exemption, specially set up and claimed under them.\" They also draw into question the validity of a statute of the state of Georgia, \"on the ground of its being repugnant to the constitution, treaties and laws of the United States, and the decision is in favour of its validity.\" \nIt is, then, we think, too clear for controversy, that the act of congress, by which this court is constituted, has given it the power, and of course imposed on it the duty, of exercising jurisdiction in this case. This duty, however unpleasant, cannot be avoided. Those who fill the judicial department have no discretion in selecting the subjects to be brought before them.We must examine the defence set up in this plea. We must inquire and decide whether the act of the legislature of Georgia, under which the plaintiff in error has been prosecuted and condemned, be consistent with, or repugnant  to, the constitution, laws and treaties of the United States. \n It has been said at the bar, that the acts of the legislature of Georgia seize on the whole Cherokee country, parcel it out among the neighbouring counties of the state, extend her code over the whole country, abolish its institutions and its laws, and annihilate its political existence. \nIf this be the general effect of the system, let us inquire into the effect of the particular statute and section on which the indictment is founded. \nIt enacts that \"all white persons, residing within the limits of the Cherokee nation on the 1st day of March next, or at any time thereafter, without a license or permit from his excellency the governor, or from such agent as his excellency the governor shall authorise to grant such permit or license, and who shall not have taken the oath hereinafter required, shall be guilty of a high misdemeanour, and, upon conviction thereof, shall be punished by confinement to the penitentiary, at hard labour, for a term not less than four years.\" \nThe eleventh section authorises the governor, should he deem it necessary for the protection of the mines, or the enforcement of the laws in force  within the Cherokee nation, to raise and organize a guard,\" &c. \nThe thirteenth section enacts, \"that the said guard or any member of them, shall be, and they are hereby authorised and empowered to arrest any person legally charged with or detected in a violation of the laws of this state, and to convey, as soon as practicable, the person so arrested, before a justice of the peace, judge of the superior, or justice of inferior court of this state, to be dealt with according to law.\" \nThe extra-territorial power of every legislature being limited in its action, to its own citizens or subjects, the very passage of this act is an assertion of jurisdiction over the Cherokee nation, and of the rights and powers consequent on jurisdiction. \nThe first step, then, in the inquiry, which the constitution and laws impose on this court, is an examination of the right-fulness of this claim. \nAmerica, separated from Europe by a wide ocean, was inhabited by a distinct people, divided into separate nations, independent of each other and of the rest of the world, having institutions of their own, and governing themselves by their  own laws. It is difficult to comprehend the proposition,  that the inhabitants of either quarter of the globe could have rightful original claims of dominion over the inhabitants of the other, or over the lands they occupied; or that the discovery of either by the other should give the discoverer rights in the country discovered, which annulled the pre-existing rights of its ancient possessors. \nAfter lying concealed for a series of ages, the enterprise of Europe, guided by nautical science, conducted some of her adventurous sons into this western world. They found it in  possession of a people who had made small progress in agriculture or manufactures, and whose general employment was war, hunting, and fishing. \nDid these adventurers, by sailing along the coast, and occasionally landing on it, acquire for the several governments to whom they belonged, or by whom they were commissioned, a rightful property in the soil, from the Atlantic to the Pacific; or rightful dominion over the numerous people who occupied it? Or has nature, or the great Creator of all things, conferred these rights over hunters and fishermen, on agriculturists and manufacturers? \nBut power, war, conquest, give rights, which, after possession, are conceded  by the world; and which can never be controverted by those on whom they descend. We proceed, then, to the actual state of things, having glanced at their origin; because holding it in our recollection might shed some light on existing pretensions. \nThe great maritime powers of Europe discovered and visited different parts of this continent at nearly the same time. The object was too immense for any one of them to grasp the whole; and the claimants were too powerful to submit to the exclusive or unreasonable pretensions of any single potentate.To avoid bloody conflicts, which might terminate disastrously to all, it was necessary for the nations of Europe to establish some principle which all would acknowledge, and which should decide their respective rights as between themselves. This principle, suggested by the actual state of things, was, \"that discovery gave title to the government by whose subjects or by whose authority it was made, against all other European  governments, which title might be consummated by possession.\" 8 Wheat. 573. \nThis principle, acknowledged by all Europeans, because it was the interest of all to acknowledge it, gave to the nation making the  discovery, as its inevitable consequence, the sole right of acquiring the soil and of making settlements on it. It was an exclusive principle which shut out the right of competition among those who had agreed to it; not one which could annul the previous rights of those who had not agreed to it. It regulated the right given by discovery among the european discoverers; but could not affect the rights of those already in possession, either as aboriginal occupants, or as occupants by virtue of a discovery made before the memory of man. It gave the exclusive right to purchase, but did not found that right on a denial of the right of the possessor to sell. \nThe relation between the Europeans and the natives was determined in each case by the particular government which asserted and could maintain this pre-emptive privilege in the particular place. The United States succeeded to all the claims of Great Britain, both territorial and political; but no attempt, so far as is known, has been made to enlarge them. So far as they existed merely in theory, or were in their nature only exclusive of the claims of other European nations, they still retain their original character, and remain dormant.  So far as they have been practically exerted, they exist in fact, are understood by both parties, are asserted by the one, and admitted by the other. \nSoon after Great Britain determined on planting colonies in America, the king granted charters to companies of his subjects who associated for the purpose of carrying the views of the crown into effect, and of enriching themselves. The first of these charters was made before possession was taken of any part of the country. They purport, generally, to convey the soil, from the Atlantic to the South Sea. This soil was occupied by numerous and warlike nations, equally willing and able to defend their possessions. The extravagant and absurd idea, that the feeble settlements made on the sea coast, or the companies under whom they were made, acquired legitimate power by them to govern the people, or occupy the lands from  sea to sea, did not enter the mind of any man. They were well understood to convey the title which, according to the common law of European sovereigns respecting America, they might rightfully convey, and no more. This was the exclusive right of purchasing such lands as the natives were willing to sell.  The crown could not be understood to grant what the crown did not affect to claim; nor was it so understood. \nThe power of making war is conferred by these charters on the colonies, but defensive war alone seems to have been contemplated. In the first charter to the first and second colonies, they are empowered, \"for their several defences, to encounter, expulse, repel, and resist, all persons who shall, without license,\" attempt to inhabit \"within the said precincts and limits of the said several colonies, or that shall enterprise or attempt at any time hereafter the least detriment or annoyance of the said several colonies or plantations.\" \nThe charter to Connecticut concludes a general power to make defensive war with these terms: \"and upon just causes to invade and destroy the natives or other enemies of the said colony.\" \nThe same power, in the same words, is conferred on the government of Rhode Island. \nThis power to repel invasion, and, upon just cause, to invade and destroy the natives, authorizes offensive as well as defensive war, but only \"on just cause.\" The very terms imply the existence of a country to be invaded, and of an enemy who has given just cause of war. \nThe  charter to William Penn contains the following recital: \"and because, in so remote a country, near so many barbarous nations, the incursions, as well of the savages themselves, as of other enemies, pirates, and robbers, may probably be feared, therefore we have given,\" &c. The instrument then confers the power of war. \nThese barbarous nations, whose incursions were feared, and to repel whose incursions the power to make war was given, were surely not considered as the subjects of Penn, or occupying his lands during his pleasure. \nThe same clause is introduced into the charter to Lord Baltimore. \n The charter to Georgia professes to be granted for the charitable purpose of enabling poor subjects to gain a comfortable subsistence by cultivating lands in the American provinces, \"at present waste and desolate.\" It  recites: \"and whereas our provinces in North America have been frequently ravaged by Indian enemies, more especially that of South Carolina, which, in the late war by the neighbouring savages, was laid waste by fire and sword, and great numbers of the English inhabitants miserably massacred; and our loving subjects, who now inhabit there, by reason of  the smallness of their numbers, will, in case of any new war, be exposed to the like calamities, inasmuch as their whole southern frontier continueth unsettled, and lieth open to the said savages.\" \nThese motives for plainting the new colony are incompatible with the lofty ideas of granting the soil, and all its inhabitants from sea to sea. They demonstrate the truth, that these grants asserted a title against Europeans only, and were considered as blank paper so far as the rights of the natives were concerned. The power of war is given only for defence, not for conquest. \nThe charters contain passages showing one of their objects to be the civilization of the Indians, and their conversion to Christianity -- objects to be accomplished by conciliatory conduct and good example; not by extermination. \nThe actual state of things, and the practice of European nations, on so much of the American continent as lies between the Mississippi and the Atlantic, explain their claims, and the charters they granted. Their pretensions unavoidably interfered with each other; though the discovery of one was admitted by all to exclude the claim of any other, the extent of that discovery was the subject  of unceasing contest. Bloody conflicts arose between them, which gave importance and security to the neighbouring nations. Fierce and warlike in their character, they might be formidable enemies, or effective friends. Instead of rousing their resentments, by asserting claims to their lands, or to dominion over their persons, their alliance was sought by flattering professions, and purchased by rich presents.The English, the French, and the Spaniards, were equally competitors for their friendship and their aid. Not well acquainted with the exact meaning of  words, nor supposing it to be material whether they were called the subjects, or the children of their father in Europe; lavish in professions of duty and affection, in return for the rich presents they received; so long as their actual independence was untouched, and their right to self government acknowledged, they were willing to profess dependence on the power which furnished supplies of which they were in absolute need, and restrained dangerous intruders from entering their country: and this was probably the sense in which the term was understood by them. \nCertain it is, that our history furnishes no example,  from the first settlement of our country, of any attempt on the part of the crown to interfere with the internal affairs of the Indians, farther than to keep out the agents of foreign powers, who, as traders or otherwise, might seduce them into foreign alliances. The king purchased their lands when they were willing to sell, at a price they were willing to take; but never coerced a surrender of them. He also purchased their alliance and dependence by subsidies; but never intruded into the interior of their affairs, or interfered with their self government, so far as respected themselves only. \nThe general views of Great Britain, with regard to the Indians, were detailed by Mr Stuart, superintendent of Indian affairs, in a speech delivered at Mobile, in presence of several persons of distinction, soon after the peace of 1763. Towards the conclusion he says, \"lastly, I inform you that it is the king's order to all his governors and subjects, to treat Indians with justice and humanity, and to forbear all encroachments on the territories allotted to them; accordingly, all individuals are prohibited from purchasing any of your lands; but, as you know that, as your white brethren cannot  feed you when you visit them unless you give them ground to plant, it is expected that you will cede lands to the king for that purpose. But, whenever you shall be pleased to surrender any of your territories to his majesty, it must be done, for the future, at a public meeting of your nation, when the governors of the provinces, or the superintendent shall be present, and obtain the consent of all your people. The boundaries of your hunting grounds will be accurately fixed, and no settlement permitted to be made upon them. As you may be assured that all treaties  with your people will be faithfully kept, so it is expected that you, also, will be careful strictly to observe them.\" \nThe proclamation issued by the king of Great Britain, in 1763, soon after the ratification of the articles of peace, forbids the governors of any of the colonies to grant warrants of survey, or pass patents upon any lands whatever, which, not having been ceded to, or purchased by, us (the king), as aforesaid, are reserved to the said Indians, or any of them. \nThe proclamation proceeds: \"and we do further declare it to be our royal will and pleasure, for the present, as aforesaid, to reserve,  under our sovereignty, protection, and dominion, for the use of the said Indians, all the lands and territories lying to the westward of the sources of the rivers which fall into the sea, from the west and northwest as aforesaid: and we do hereby strictly forbid, on pain of our displeasure, all our loving subjects from making any purchases or settlements whatever, or taking possession of any of the lands above reserved, without our special leave and license for that purpose first obtained. \n\"And we do further strictly enjoin and require all persons whatever, who have, either wilfully or inadvertently, seated themselves upon any lands within the countries above described, or upon any other lands which, not having been ceded to, or purchased by us, are still reserved to the said Indians, as aforesaid, forthwith to remove themselves from such settlements.\" \nA proclamation, issued by Governor Gage, in 1772, contains the following passage: \"whereas many persons, contrary to the positive orders of the king, upon this subject, have undertaken to make settlements beyond the boundaries fixed by the treaties made with the Indian nations, which boundaries ought to serve as a barrier between the  whites and the said nations; particularly on the Ouabache.\" The  proclamation orders such persons to quit those countries without delay. \nSuch was the policy of Great Britain towards the Indian nations inhabiting the territory from which she excluded all other Europeans; such her claims, and such her practical exposition of the charters she had granted: she considered them as nations capable of maintaining the relations of peace and war; of governing themselves, under her protection; and she  made treaties with them, the obligation of which she acknowledge. \nThis was the settled state of things when the war of our revolution commenced. The influence of our enemy was established; her resources enabled her to keep up that influence; and the colonists had much cause for the apprehension that the Indian nations would, as the allies of Great Britain, add their arms to hers. This, as was to be expected, became an object of great solicitude to congress. Far from advancing a claim to their lands, or asserting any right of dominion over them, congress resolved \"that the securing and preserving the friendship of the Indian nations appears to be a subject of the utmost  moment to these colonies.\" \nThe early journals of congress exhibit the most anxious desire to conciliate the Indian nations. Three Indian departments were established; and commissioners appointed in each, \"to treat with the Indians in their respective departments, in the name and on the behalf of the United Colonies, in order to preserve peace and friendship with the said Indians, and to prevent their taking any part in the present commotions.\" \nThe most strenuous exertions were made to procure those supplies on which Indian friendships were supposed to depend; and every thing which might excite hostility was avoided. \nThe first treaty was made with the Delawares, in September 1778. \nThe language of equality in which it is drawn, evinces the temper with which the negotiation was undertaken, and the opinion which then prevailed in the United States. \n\"1. That all offences or acts of hostilities, by one or either of the contracting parties against the other, be mutually forgiven, and buried in the depth of oblivion, never more to be had in remembrance. \n\"2. That a perpetual peace and friendship shall, from henceforth, take place and subsist between the contracting parties aforesaid,  through all succeeding generations: and if either of the parties are engaged in a just and necessary war, with any other nation or nations, that then each shall assist the other, in due proportion to their abilities, till their enemies are brought to reasonable terms of accommodation,\" &c. \n3. The third article stipulates, among other things, a free  passage for the American troops through the Delaware nation; and engages that they shall be furnished with provisions and other necessaries at their value. \n\"4. For the better security of the peace and friendship now entered into by the contracting parties against all infractions of the same by the citizens of either party, to the prejudice of the other, neither party shall proceed to the infliction of purishments on the citizens of the other, otherwise than by securing the offender or offenders, by imprisonment, or any other competent means, till a fair and impartial trial can be had by judges or juries of both parties, as near as can be to the laws, customs and usages of the contracting parties, and natural justice,\" &c. \n5. The fifth article regulates the trade between the contracting parties, in a manner entirely equal. \n 6. The sixth article is entitled to peculiar attention, as it contains a disclaimer of designs which were, at that time, ascribed to the United States, by their enemies, and from the imputation of which congress was then peculiarly anxious to free the government. It is in these words: \"Whereas the enemies of the United States have endeavoured, by every artifice in their power, to possess the Indians in general with an opinion that it is the design of the states aforesaid to extirpate the Indians, and take possession of their country: to obviate such false suggestion the United States do engage to guaranty to the aforesaid nation of Delawares, and their heirs, all their territorial rights, in the fullest and most ample manner, as it hath been bounded by former treaties, as long as the said Delaware nation shall abide by, and hold fast the chain of friendship now entered into.\" \nThe parties further agree, that other tribes, friendly to the interest of the United States, may be invited to form a state, whereof the Delaware nation shall be the heads, and have a representation in congress. \nThis treaty, in its language, and in its provisions, is formed, as near as may be, on the model  of treaties between the crowned heads of Europe. \nThe sixth article shows how congress then treated the injurious calumny of cherishing designs unfriendly to the political and civil rights of the Indians. \n During the war of the revolution, the Cherokees took part with the British.After its termination, the United States, though desirous of peace, did not feel its necessity so strongly as while the was continued. Their political situation being changed, they might very well think it advisable to assume a higher tone, and to impress on the Cherokees the same respect for congress which was before felt for the king of Great Britain. This may account for the language of the treaty of Hopewell.There is the more reason for supposing that the Cherokee chiefs were not very critical judges of the language, from the fact that every one makes his mark; no chief was capable of signing his name. It is probable the treaty was interpreted to them. \nThe treaty is introduced with the declaration, that \"the commissioners plenipotentiary of the United States given peace to all the Cherokees, and receive them into the favour and protection of the United States of America, on the following  conditions.\" \nWhen the United States gave peace, did they not also receive it? Were not both parties desirous of it? If we consult the history of the day, does it not inform us that the United States were at least as anxious to obtain it as the Cherokees? We may ask, further: did the Cherokees come to the seat of the American government to solicit peace; or, did the American  commissioners go to them to obtain it? The treaty was made at Hopewell, not at New York. The word \"give,\" then, has no real importance attached to it. \nThe first and second articles stipulate for the mutual restoration of prisoners, and are of course equal. \nThe third article acknowledges the Cherokees to be under the protection of the United States of America, and of no other power. \nThis stipulation is found in Indian treaties, generally.It was introduced into their treaties with Great Britain; and may probably be found in those with other European powers. Its origin may be traced to the nature of their connexion with those powers; and its true meaning is discerned in their relative situation. \nThe general law of European sovereigns, respecting their claims in America, limited the intercourse  of Indians, in a  great degree, to the particular potentate whose ultimate right of domain was acknowledged by the others. This was the general state of things in time of peace. It was sometimes changed in war. The consequence was, that their supplies were derived chiefly from that nation, and their trade confined to it. Goods, indispensable to their comfort, in the shape of presents, were received from the same hand. What was of still more importance, the strong hand of government was interposed to restrain the disorderly and licentious from intrusions into their country, from encroachments on their lands, and from those acts of violence which were often attended by reciprocal murder. The Indians perceived in this protection only what was beneficial to themselves -- an engagement to punish aggressions on them. It involved, practically, no claim to their lands, no dominion over their persons. It merely bound the nation to the British crown, as a dependent ally, claiming the protection of a powerful friend and neighbour, and receiving the advantages of that protection, without involving a surrender of their national character. \nThis is the true meaning of the stipulation,  and is undoubtedly the sense in which it was made. Neither the British government, nor the Cherokees, ever understood it otherwise. \nThe same stipulation entered into with the United States, is undoubtedly to be construed in the same manner. They receive the Cherokee nation into their favour and protection. The Cherokees acknowledge themselves to be under the protection of the United States, and of no other power. Protection does not imply the destruction of the protected. The manner in which this stipulation was understood by the American government, is explained by the language and acts of our first president. \nThe fourth article draws the boundary between the Indians and the citizens of the United States. But, in describing this boundary, the term \"allotted\" and the term \"hunting ground\" are used. \nIs it reasonable to suppose, that the Indians, who could not write, and most probably could not read, who certainly were not critical judges of our language, should distinguish the word \"allotted\" from the words \"marked out.\" The actual subject of contract was the dividing line between the two nations;  and their attention may very well be supposed to have been confined  to that subject. When, in fact, they are ceding lands to the United States, and describing the extent of their cession, it may very well be supposed that they might not understand the term employed, as indicating that, instead of granting, they were receiving lands. If the term would admit of no other signification, which is not conceded, its being misderstood is so apparent, results so necessarily from the whole transaction; that it must, we think, be taken in the sense in which it was most obviously used. \nSo with respect to the words \"hunting grounds.\" Hunting was at that time the principal occupation of the Indians, and their land was more used for that purpose than for any other. It could not, however, be supposed, that any intention existed of restricting the full use of the lands they reserved. \nTo the United States, it could be a matter of no concern, whether their whole territory was devoted to hunting grounds, or whether an occasional village, and an occasional corn field, interrupted, and gave some variety to the scene. \nThese terms had been used in their treaties with Great Britain, and had never been misunderstood. They had never been supposed to imply a right in the  British government to take their lands, or to interfere with their internal government. \nThe fifth article withdraws the protection of the United States from any citizen who has settled, or shall settle, on the lands allotted to the Indians, for their hunting grounds; and stipulates that, if he shall not remove within six months the Indians may punish him. \nThe sixth and seventh articles stipulate for the punishment of the citizens of either country, who may commit offences on or against the citizens of the other. The only inference to be drawn from them is, that the United States considered the Cherokees as a nation. \nThe ninth article is in these words: \"for the benefit and comfort of the Indians, and for the prevention of injuries or oppressions on the part of the citizens or Indians, the United States, in congress assembled, shall have the sole and exclusive right of regulating the trade with the Indians, and managing all their affairs, as they think proper.\" \nTo construe the expression \"managing all their affairs,\"  into a surrender of self-government, would be, we think, a perversion of their necessary meaning, and a departure from the construction which has been  uniformly put on them. The great subject of the article is the Indian trade. The influence it gave, made it desirable that congress should possess it. The commissioners brought forward the claim, with the profession that their motive was \"the benefit and comfort of the Indians, and the prevention of injuries or oppressions.\" This may be true, as respects the regulation of their trade, and as respects the regulation of all affairs connected with their trade, but cannot be true, as respects the management of all their affairs. The most important of these, are the cession of their lands, and security against intruders on them. Is it credible, that they should have considered themselves as surrendering to the United States the right to dictate their future cessions, and the terms on which they should be made? or to compel their submission  to the violence of disorderly and licentious intruders? It is equally inconceivable that they could have supposed themselves, by a phrase thus slipped into an article, on another and most interesting subject, to have divested themselves of the right of self-government on subjects not connected with trade. Such a measure could not be  \"for their benefit and comfort,\" or for \"the prevention of injuries and oppression.\" Such a construction would be inconsistent with the spirit of this and of all subsequent treaties; especially of those articles which recognise the right of the Cherokees to declare hostilities, and to make war. It would convert a treaty of peace covertly into an act, annihilating the political existence of one of the parties. Had such a result been intended, it would have been openly avowed. \nThis treaty contains a few terms capable of being used in a sense which could not have been intended at the time, and which is inconsistent with the practical construction which has always been put on them; but its essential articles treat the Cherokees as a nation capable of maintaining the relations of peace and war; and ascertain the boundaries between them and the United States. \nThe treaty of Hopewell seems not to have established a solid peace. To accommodate the differences still existing between the state of Georgia and the Cherokee nation, the treaty of  Holston was negotiated in July 1791. The existing constitution of the United States had been then adopted, and the government, having  more intrinsic capacity to enforce its just claims, was perhaps less mindful of his sounding expressions, denoting superiority. We hear no more of giving peace to the Cherokees. The mutual desire of establishing permanent peace and friendship, and of removing all causes of war, is honestly avowed, and, in pursuance of this desire, the first article declares, that there shall be perpetual peace and friendship between all the citizens of the United States of America and all the individuals composing the Cherokee nation. \nThe second article repeats the important acknowledgement, that the Cherokee nation is under the protection of the United States of America, and of no other sovereign whosoever. \nThe meaning of this has been already explained. The Indian nations were, from their situation, necessarily dependent on some foreign potentate for the supply of their essential wants, and for their protection from lawless and injurious intrusions into their country. That power was naturally termed their protector. They had been arranged under the protection of Great Britain: but the extinguishment of the British power in their neighbourhood, and the establishment of that of the United States  in its place, led naturally to the declaration, on the part of the Cherokees, that they were under the protection of the United States, and of no other power. They assumed the relation with the United States, which had before subsisted with Great Britain. \nThis relation was that of a nation claiming and receiving the protection of one more powerful: not that of individuals abandoning their national character, and submitting as subjects to the laws of a master. \nThe third article contains a perfectly equal stipulation for the surrender of prisoners. \nThe fourth article declares, that \"the boundary between the United States and the Cherokee nation shall be as follows: beginning,\" &c. We hear no moreof \"allotments\" or of \"hunting grounds.\" A boundary is described, between nation and nation, by mutual consent. The national character of each; the ability of each to establish this boundary, is acknowledged by the other. To preclude for ever all disputes, it is agreed  that it shall be plainly marked by commissioners, to be appointed by each party; and, in order to extinguish for ever all claim of the Cherokees to the ceded lands, an additional consideration is to be paid by  the United States. For this additional consideration the Cherokees release all right to the ceded land, for ever. \nBy the fifth article, the Cherokees allow the United States a road through their country, and the navigation of the Tennessee river. The acceptance of these cessions is an acknowledgement of the right of the Cherokees to make or withhold them. \nBy the sixth article, it is agreed, on the part of the Cherokees, that the United States shall have the sole and exclusive right of regulating their trade. No claim is made to the management of all their affairs. This stipulation has already been explained. The observation may be repeated, that the stipulation is itself an admission of their right to make or refuse it. \nBy the seventh article the United States solemnly guaranty to the Cherokee nation all their lands not hereby ceded. \nThe eighth article relinquishes to the Cherokees any citizens of the United States who may settle on their lands; and the ninth forbids any citizen of the United States to hunt on their lands, or to enter their country without a passport. \nThe remaining articles are equal, and contain stipulations which could be made only with a nation admitted  to be capable of governing itself. \nThis treaty, thus explicitly recognizing the national character of the Cherokees, and their right of self government; thus guarantying their lands; assuming the duty of protection, and of course pledging the faith of the United States for that protection; has been frequently renewed, and is now in full force. \nTo the general pledge of protection have been added several specific pledges, deemed valuable by the Indians.Some of these restrain the citizens of the United States from encroachments on the Cherokee country, and provide for the punishment of intruders. \nFrom the commencement of our government, congress has passed acts to regulate trade and intercourse with the Indians; which treat them as nations, respect their rights, and manifest  a firm purpose to afford that protection which treaties stipulate. All these acts, and especially that of 1802, which is still in force, manifestly consider the several Indian nations as distinct political communities, having territorial boundaries, within which their authority is exclusive, and having a right to all the lands within those boundaries, which is not only acknowledged, but guarantied  by the United States. \n In 1819, congress passed an act for promoting those humane designs of civilizing the neighbouring Indians, which had long been cherished by the executive. It enacts, \"that, for the purpose of providing against the further decline and final extinction of the Indian tribes adjoining to the frontier settlements of the United States, and for introducing among them the habits and arts of civilization, the president of the United States shall be, and he is hereby authorized, in every case where he shall judge improvement in the habits and condition of such Indians practicable, and that the means of instruction can be introduced with their own consent, to employ capable persons, of good moral character, to instruct them in the mode of agriculture suited to their situation; and for teaching their children in reading, writing and arithmetic; and for performing such other duties as may be enjoined, according to such instructions and rules as the president may give and prescribe for the regulation of their conduct in the discharge of their duties.\" \nThis act avowedly contemplates the preservation of the Indian nations as an object sought by the United States,  and proposes to effect this object by civilizing and converting them from hunters into agriculturists. Though the Cherokees had already made considerable progress in this improvement, it cannot be doubted that the general words of the act comprehend them. Their advance in the \"habits and arts of civilization,\" rather encouraged perseverance in the laudable exertions still farther to meliorate their condition. This act furnishes strong additional evidence of a settled purpose to fix the Indians in their country by giving them security at home. \nThe treaties and laws of the United States contemplate the Indian territory as completely separated from that of the states; and provide that all intercourse with them shall be carried on exclusively by the government of the union. \n Is this the rightful exercise of power, or is it usurpation? \nWhile these states were colonies, this power, in its utmost extent, was admitted to reside in the crown. When our revolutionary struggle commenced, congress was composed of an assemblage of deputies acting under specific powers granted by the legislatures, or conventions of the several colonies. It was a great popular movement, not perfectly  organized; nor were the respective powers of those who were entrusted with the management of affairs accurately defined. The necessities of our situation produced a general conviction that those measures which concerned all, must be transacted by a body in which the representatives of all were assembled, and which could command the confidence of all: congress, therefore, was considered as invested with all the powers of war and peace, and congress dissolved our connexion with the mother country, and declared these United Colonies to be independent states. Without any written definition of powers, they employed diplomatic agents to represent the United States at the several courts of Europe; offered to negotiate treaties with them, and did actually negotiate treaties with France.From the same necessity, and on the same principles, congress assumed the management of Indian affairs; first in the name of these United Colonies; and, afterwards, in the name of the United States. Early attempts were made at negotiation, and to regulate trade with them. These not proving successful, war was carried on under the direction, and with the forces of the United States, and the efforts to make  peace, by treaty, were earnest and incessant. The confederation found congress in the exercise of the same powers of peace and war, in our relations with Indian nations, as with those of Europe. \nSuch was the state of things when the confederation was adopted. That instrument surrendered the powers of peace and war to congress, and prohibited them to the states, respectively, unless a state be actually invaded, \"or shall have received certain advice of a resolution being formed by some nation of Indians to invade such state, and the danger is so imminent as not to admit of delay till the United States in congress assembled can be consulted.\" This instrument also gave the United States in congress assembled the sole and exclusive right of \"regulating the trade and managing all the affairs with the Indians, not  members of any of the states: provided, that the legislative power of any state within its own limits be not infringed or violated.\" \nThe ambiguous phrases which follow the grant of power to the United States, were so construed by the states of North Carolina and Georgia as to annual the power itself. The discontents and confusion resulting from these conflicting  claims, produced representations to congress, which were referred to a committee, who made their report in 1787. The report does not assent to the construction of the two states, but recommends an accommodation, by liberal cessions of territory, or by an admission, on their part, of the powers claimed by congress. The correct exposition of this article is rendered unnecessary by the adoption of our existing constitution. That instrument confers on congress the powers of war and peace; of making treaties, and of regulating commerce with foreign nations, and among the several states, and with the Indian tribes. These powers comprehend all that is required for the regulation of our intercourse with the Indians. They are not limited by any restrictions on their free actions.The shackles imposed on this power, in the confederation, are discarded. \nThe Indian nations had always been considered as distinct, independent political communities, retaining their original natural rights, as the undisputed possessors of the soil, from time immemorial, with the single exception of that imposed by irresistible power, which excluded them from intercourse with any other European potentate than the  first discoverer of the coast of the particular region claimed: and this was a restriction which those European potentates imposed on themselves, as well as on the Indians. The very term \"nation,\" so generally applied to them, means \"a people distinct from others.\" The constitution, by declaring treaties already made, as well as those to be made, to be the supreme law of the land, has adopted and sanctioned the previous treaties with the Indian nations, and consequently admits their rank among those powers who are capable of making treaties. The words \"treaty\" and \"nation\" are words of our own language, selected in our diplomatic and legislative proceedings,  by ourselves, having each a definite and well understood meaning. We  have applied them to Indians, as we have applied them to the other nations of the earth. They are applied to all in the same sense. \nGeorgia, herself, has furnished conclusive evidence that her former opinions on this subject concurred with those entertained by her sister states, and by the government of the United States. Various acts of her legislature have been cited in the argument, including the contract of cession made in the  year 1802, all tending to prove her acquiescence in the universal conviction that the Indian nations possessed a full right to the lands they occupied, until that right should be extinguished by the United States, with their consent: that their territory was separated from that of any state within whose chartered limits they might reside, by a boundary line, established by treaties: that, within their boundary, they possessed rights with which no state could interfere: and that the whole power of regulating the intercourse with them, was vested in the United States. A review of these acts, on the part of Georgia, would occupy too much time, and is the less necessary, because they have been accurately detailed in the argument at the bar. Her new series of laws, manifesting her abandonment of these opinions, appears to have commenced in December 1828. \nIn opposition to this original right, possessed by the undisputed occupants of every country; to this recognition of that right, which is evidenced by our history, in every change through which we have passed; is placed the charters granted by the monarch of a distant and distinct region, parcelling out a territory in possession of others  whom he could not remove and did not attempt to remove, and the cession made of his claims by the treaty of peace. \nThe actual state of things at the time, and all history since, explain these charters; and the king of Great Britain, at the treaty of peace, could cede only what belonged to his crown. These newly asserted titles can derive no aid from the articles so often repeated in Indian treaties; extending to them, first, the protection of Great Britain, and afterwards that of the United States. These articles are associated with others, recognizing their title to self government. The very fact of repeated treaties with them recognizes it; and the settled doctrine  of the law of nations is, that a weaker power does not surrender its independence -- its right to self government, by associating with a stronger, and taking its protection. A weak state, in order to provide for its safety, may place itself under the protection of one more powerful, without stripping itself of the right of government, and ceasing to be a state. Examples of this kind are not wanting in Europe. \"Tributary and feudatory states,\" says Vattel, \"do not thereby cease to be sovereign and independent  states, so long as self government and sovereign and independent authority are left in the administration of the state.\" At the present day, more than one state may be considered as holding its right of self government under the guarantee and protection of one or more allies. \nThe Cherokee nation, then, is a distinct community occupying its own territory, with boundaries accurately described, in which the laws of Georgia can have no force, and which the citizens of Georgia have no right to enter, but with the assent of the Cherokees themselves, or in conformity with treaties, and with the acts of congress. The whole intercourse between the United States and this nation, is, by our constitution and laws, vested in the government of the United States. \nThe act of the state of Georgia, under which the plaintiff in error was prosecuted, is consequently void, and the judgment a nullity. Can this court revise, and reverse it? \nIf the objection to the system of legislation, lately adopted by the legislature of Georgia, in relation to the Cherokee nation, was confined to its extra-territorial operation, the objection, though complete, so far as respected mere right, would give this court  no power over the subject. But it goes much further. If the review which has been taken be correct, and we think it is, the acts of Georgia are repugnant to the constitution, laws, and treaties of the United States. \nThey interfere forcibly with the relations established between the United States and the Cherokee nation, the regulation of which, according to the settled principles of our constitution, are committed exclusively to the government of the union. \nThey are in direct hostility with treaties, repeated in a succession of years, which mark out the boundary that separates  the Cherokee country from Georgia; guaranty to them all the land within their boundary; solemnly pledge the faith of the United States to restrain their citizens from trespassing on it; and recognize the pre-existing power of the nation to govern itself. \nThey are in equal hostility with the acts of congress for regulating this intercourse, and giving effect to the treaties. \nThe forcible seizure and abduction of the plaintiff in error, who was residing in the nation with its permission, and by authority of the president of the United States, is also a violation of the acts which authorise the  chief magistrate to exercise this authority. \nWill these powerful considerations avail the plaintiff in error? We think they will. He was seized, and forcibly carried away, while under guardianship of treaties guarantying the country in which he resided, and taking it under the protection of the United States.He was seized while performing, under the sanction of the chief magistrate of the union, those duties which the humane policy adopted by congress had recommended.He was apprehended, tried, and condemned, under colour of a law which has been shown to be repugnant to the constitution, laws, and treaties of the United States. Had a judgment, liable to the same objections, been rendered for property, none would question the jurisdiction of this court. It cannot be less clear when the judgment affects personal liberty, and inflicts disgraceful punishment, if punishment could disgrace when inflicted on innocence. The plaintiff in error is not less interested in the operation of this unconstitutional law than if it affected his property. He is not less entitled to the protection of the constitution, laws, and treaties of his country. \n This point has been elaborately  argued and, after deliberate consideration, decided, in the case of Cohens v. The Commonwealth of Virginia, 6 Wheat. 264. \nIt is the opinion of this court that the judgment of the superior court for the county of Gwinnett, in the state of Georgia, condemning Samuel A. Worcester to hard labour, in the penitentiary of the state of Georgia, for four years, was pronounced by that court under colour of a law which is void, as being repugnant to the constitution, treaties, and laws of the United States, and ought, therefore, to be reversed and annulled. \nMr Justice BALDWIN dissented: stating that in his opinion, the record was not properly returned upon the writ of error; and ought to have been returned by the state court, and not by the clerk of that court. As to the merits, he said his opinion remained the same as was expressed by him in the case of Cherokee Nation v. The State of Georgia, at the last term. \nThe opinion of Mr Justice Baldwin was not delivered to the reporter. \nThis cause came on to be heard on the transcript of the record from the superior court for the county of Gwinnett, in the state of Georgia, and was argued by counsel; on consideration whereof, it is the opinion  of this Court, that the act of the legislature of the state of Georgia, upon which the indictment in this case is founded, is contrary to the constitution, treaties, and laws of the United States; and that the special plea in bar pleaded by the said Samuel A. Worcester, in manner aforesaid, and relying upon the constitution, treaties, and laws of the United States aforesaid, is a good bar and defence to the said indictment, by the said Samuel A. Worcester; and as such ought to have been allowed and admitted by the said superior court for the county of Gwinnett, in the state of Georgia, before which the said indictment was pending and tried; and that there was error in the said superior court of the state of Georgia, in overruling the plea so pleaded as aforesaid. It is therefore ordered and adjudged, that the judgment rendered in the premises, by the said superior court of Georgia, upon the verdict upon the plea of Not guilty afterwards pleaded by the said Samuel A. Worcester, whereby the said Samuel A. Worcester is sentenced to hard labour in the penitentiary of the state of Georgia, ought to be reversed and annulled. And this court proceeding to render such judgment as the said  superior Court, of the state of Georgia should have rendered, it is further ordered and adjudged, that the said judgment of the said superior court be, and hereby is reversed and annulled; and that judgment be, and hereby is awarded, that the special plea in bar, so as aforesaid pleaded, is a good and sufficient plea in bar in law to the indictment aforesaid; and that all proceedings on the said indictment do for ever surcease; and that the said Samuel A. Worcester be, and hereby is henceforth dismissed therefrom, and that he go thereof quit without day. And that a special mandate do go from this court, to the said superior court, to carry this judgment into execution. \nIn the case of Butler, Plaintiff in Error v. The State of Georgia, the same judgment was given by the court, and a special mandate was ordered from the court to the superior court of Gwinnett county, to carry the judgment into execution. \nConcur by:", " \nOpinion \n\n \n \n Mr Chief Justice MARSHALL delivered the opinion of the Court. \nThis suit was brought in the court of the United States for the seventh circuit, and district of Ohio, to obtain a conveyance for land which the defendants hold by a senior patent, and which the plaintiffs claim under a prior entry. The bill was dismissed by the circuit court, and the plaintiffs have appealed to this court. \nSerious doubts exist respecting the validity of the entry under which the claim has been made, and several points have been discussed at the bar. It is unnecessary to decide more than one of these questions, because that is decisive of the case. David Anderson, in whose name the entry under which the plaintiffs claim was made, was  dead at the time. The entry, therefore, as was determined in Galt and others v. Galloway, 4 Peters, 332, 345, is, in the state of Ohio, a nullity. This being the foundation of the plaintiffs' title, they must fail in their action. \nCounsel at the bar have endeavoured to distinguish this case from that, by treating the entry as one made in the name of the wrong person, through the mistake of the surveyor. \nWe do not think he is sustained by the fact or the law of the case. The decree is affirmed with costs. \n \n\n ", " \nOpinion \n\n \n \n Mr Chief Justice MARSHALL delivered the opinion of the Court. \nIn this case the court is of opinion that the jurisdiction can be sustained. The defendant in error is alleged in the proceedings to be a citizen of the United States, naturalized in Louisiana, and residing there. This is equivalent to an averment that he is a citizen of that state.  A citizen of the United States, residing in any state of the union, is a citizen of that state. \nThe authorities on this question have gone far enough; and this court is not disposed to narrow any more the limitations which have been imposed by the decided cases. They have gone as far as it would be reasonable and proper to go. The judgment of the district court of Louisiana is affirmed. \n \n\n ", " \nOpinion \n\n \n \n  Mr Chief Justice MARSHALL delivered the opinion of the Court. \nThis was an ejectment brought by the plaintiff in error in the court of the United States for the seventh circuit and district of East Tennessee. \nAt the trial the plaintiff gave in evidence a patent from the state of North Carolina to Stockley Donelson, which covered the land in controversy. He then offered a deed of conveyance from the said Stockley Donelson and John Hackett to David Ross, the lessor of the plaintiff, for five thousand acres, being the same land contained in the aforesaid grant, which deed of conveyance is dated the 9th day of September 1793, and is witnessed by Walter King, Thomas N. Clark, and Meriwether Smith; and of which deed of conveyance a copy was annexed, and made a part of the bill of exceptions; and on the back of said deed is the following indorsement of probate and registration, viz. \nDecember sessions, 1793. This deed was proven in open court, and ordered to be recorded. RICHARD MITCHELL, Clerk. \nThis conveyance is registered 27th December 1793,  in liber G, page 127, in the register's office of Hawkins county.THOMAS JACKSON, C.R. \nState of Tennessee. At a court of pleas and quarter sessions began and held for the county of Hawkins, at the court-house in Rogersville, on the second Monday of December 1793. Present, Thomas Henderson, Isaac Lane, James Berry, and Thomas Amey, Esquires. A deed of conveyance from Stockley Donelson and John Hackett to David Ross, proved in open court by M. Smith that he saw Donelson sign for himself, and signed as attorney for Haget, and ordered to be registered. \n State of Tennessee. I, Stockley D. Mitchell, clerk of the court of pleas and quarter sessions of Hawkins county, in the state aforesaid, do certify the foregoing to be a true copy from the records of my office. Given under my hand, at office in Rogersville, this 16th day of October, A.D. 1828. STOCKLEY D. MITCHELL, Clerk of the Court of Pleas, &c. for Hawkins county, Tennessee. \nTo the reading of which deed of conveyance on the probates and registration aforesaid, the defendant objected, and the court sustained the objection, and would not permit said deed to be read. Plaintiff then offered to prove by Meriwether Smith,  who was one of the subscribing witnesses to said deed, that he proved the execution of said deed in the court of pleas and quarter sessions for Hawkins county, at December sessions of said court, in the year 1793; and plaintiff also offered to prove by Mitchell, whose name was subscribed to the probate on the back of said deed, that he, Richard Mitchell, was the clerk of the court of pleas and quarter sessions for Hawkins county in the year 1793; and that the foregoing deed was the one proved by Meriwether Smith, the subscribing witness thereto, at December term of said court, in the year 1793; but the court would not permit said proof to be given in support of the probate of said deed. \nPlaintiff offered to prove further, that said deed and grant covered the land sued for, and that Anne Hackett, the defendant, was in possession at the time of the institution of this suit; but said proof was rejected by the court. The jury found a verdict for defendant, and lessor of the plaintiff moved for a new trial, and produced and read the affidavit of Thomas Hopkins, trustee, annexed, market C; but the court refused a new trial. \nNote. -- While the cause was before the jury, plaintiff offered  to read a grant from the state of North Carolina to Stockley Donelson and John Hackett, for five thousand acres of land, dated the 22d day of February 1795; which last mentioned grant also covered the land in  dispute; which grant the court considered as read to the jury. \nThe jury found a verdict for the defendant, the judgment on which is brought before this court by a writ of error. \n The plaintiff contends that the instructions given by the court are erroneous, and that the deed from Donelson and Hackett to Ross ought to have been admitted. \nIn the year 1715, the state of North Carolina passed an act concerning the registration of deeds, the fifth section of which is in these words, \"no conveyance or bill of sale for lands other than mortgages, in what manner soever drawn, shall be good and available in law, unless the same shall be acknowledged by the vendor, or proved by one or more evidences on oath, either before the chief justice or in the court of the precinct where the land lieth, and registered by the public register of the precinct where the land lieth, within twelve months after the date of the said deed; and that all deeds so drawn and executed  shall be valid and pass estates in land or right to other estate, without livery of seisin, attornment or other ceremony in the law whatsoever.\" \nUnder this act two requisites are essential to the validity of a deed: -- probate; and registration in the precinct or county in which the land lies. The proof which shall be sufficient to establish these requisites, is not prescribed by the act with such precision as to exclude difference of opinion respecting it. But the questions which grow out of the language of the act, so far as they have been settled by judicial decisions, cannot be disturbed by this court. Whatever might have been our opinion on the case, had it remained open for consideration, the peace of society and the security of titles require that we should conform to the construction which has been made in the courts of the state, if we can discern what that construction is. \nThe plaintiff contends that the deed ought to have been admitted on the certificates of probate and registration indorsed on it. First, the certificate of probate. It is in these words, \"December session, 1783. This deed was proven in open court and ordered to be recorded.\" \nThe act requires that  the deed should be acknowledged by the vendor, or proved by one or more witnesses in the court of the county in which the land lieth. \nIt appears to be universally understood that the proof ought to be made by a subscribing witness to the deed; and certainly an instrument to which there are subscribing witnesses ought  to be proved by some one of them, if any one be living. The fact, too, to which the witness testifies ought to be stated on the record, that a judgment may be formed on its sufficiency. The order of the court that it should be recorded does not, the defendant contends, cure this defect. The court proceeds ex parte, in a summary manner, and the correctness of its proceedings ought to appear on the record. Its judgment is not presumed to be right as when acting in a regular course. \nIn Knox v. Bowman's Lessee, decided in the supreme court of Tennessee, at Knoxville, on exceptions taken in the inferior court, a question arose on the probate of a deed indorsed thus, \"State of Tennessee, Washington county. At a court held for the county of Washington on the first Monday of November 1789, the within deed of conveyance from Bradley Gamble to Michael Massingile  was proved in court by the oath of Starns. Given under my hand at office 27th of November 1819. JAMES SEVIER, Clerk.\" \nThis deed was admitted. On considering the exception taken to its admission, the court observed, \"the clerk should have given a copy from the minute-book verbatim, and not a history of what had taken place; because the court, and not he, must judge of the conclusions which are proper to be made from the naked fact appearing on the record book. Had an exact copy been given, the court should have presumed, after such a lapse of time, at least until the contrary were shown, that Starns was a subscribing witness.\" The court added, \"where enough is stated by the clerk to show that a witness was sworn, or that the deed was acknowledged by the bargainor, however informally or unscientifically the clerk may have expressed the fact, the legality of the probate or acknowledgement should be enforced, and such old probate should be presumed to have been made in the proper county until the contrary appear.\" \nThe general principles laid down by the court in the last sentence, show that every reasonable presumption will be made to support an ancient probate where the entry has  been informal or unscientific; but the decision on the particular point seems applicable to the very case before the court. The clerk certifies that the deed was proved by the oath of Starns. This is undertaking to know what in point of law is proof,  and to certify his conclusion instead of stating the fact which the witness did prove, so as to enable the court to draw the inference of law from it. So in this case; instead of stating the fact to which the witness testified, the clerk certifies that the deed was proved. This, according to the decision in the case cited, is a legal inference which the court alone could draw from the fact as certified. \nIn the same case a deed was offered from Gales to the lessor of the plaintiff, indorsed thus. \"February session 1802. This deed was legally admitted to record.\" The court allowed this deed also to be given in evidence, and an exception was taken to its admission. In commenting on this opinion the supreme court observed, \"it is not said in what county, nor upon what ground, whether because proved by witnesses, or acknowledged by the bargainor, or for some other cause.\" \nBoth these exceptions were sustained, and the judgment  of the inferior court was reversed. The ground of reversal appears to be, that the certificate of probate stated the legal inference, without stating the fact from which that inference was drawn. In the one case it was stated that the deed was proved in court by the oath of Starns; in the other that it was legally admitted to record. If legally admitted, it could not be material to inquire whether it was admitted on the acknowledgment of the vendor, or the proof of witnesses. The error, therefore, must be, that the conclusion to which the court  came is indorsed on the deed, and not the fact which led to that conclusion. In the probate of deeds, the court has a special limited jurisdiction; and the record should state facts which show its jurisdiction in the particular case. If this rule be disregarded, every deed admitted to record, on whatever evidence, must be considered as regularly admitted. \nThe counsel for the plaintiff has endeavoured to cure this defect in the indorsement on the deed, by a distinct entry made in Hawkins county court, at the same session of December 1793. That entry is in these words. \"At a court of pleas and quarter sessions began and held  for the county of Hawkins, at the court house in Rogersville, on the second Monday of December 1793. Present, Thomas Henderson, Isaac Lane, James Berry and Thomas Amey, Esquires. A deed of conveyance from Stockley Donelson and John Hackett, to David Ross, proved  in open court by Mr Smith, that he saw Donelson sign for himself, and signed as attorney for Haget, and ordered to be registered.\" \n\"State of Tennessee. I Stockley D. Mitchell, clerk of the court of pleas and quarter sessions of Hawkins county, in the state aforesaid, do certify the foregoing to be a true copy from the records of my office. Given under my hand at office in Rogersville, this 16th day of October A.D. 1828. STOCKLEY D. MITCHELL, Clerk of the Court of Pleas, &c. for Hawkins county, Tennessee. \nThe difficulty of applying this certificate to the deed offered in evidence, is insurmountable. The deed offered in evidence purports to have been executed by Stockley Donelson and John Hackett, each for himself, and not by attorney.The probate indorsed on the deed, represents it to have been so executed. The entry certified by Stockley D. Mitchell in 1828, shows the probate of a deed executed by Stockley  Donelson for himself, and as attorney in fact for John Hackett. They cannot be presumed to be the same. Stockley Donelson and John Hackett may have conveyed more than one tract of land to David Ross: and it is not at all improbable that Meriwether Smith may have witnessed both deeds. \nAn attempt has been made to reconcile this incompatibility, by parol testimony. Richard Mitchell, who was clerk of the court for Hawkins county in the year 1793, was offered as a witness, to prove that the deed now offered in evidence was the one proved by Meriwether Smith, the subscribing witness thereto, at December term 1793, but the court would not permit this proof to be given in support of the deed; and to this opinion, also, an exception was taken. \nThis is an attempt by parol testimony to vary a record. It is an attempt to prove by the officer of the court, that his official certificate of probate, indorsed on the deed, did not conform to the true state of the proof. This is in such direct opposition to the settled rules of evidence, as to render it unnecessary to remark the danger of trusting to memory in such a case after a lapse of thirty-five years. \nThere are other objections to the  admission of this certificate which would require very serious consideration, if it were necessary to decide them. It is questioned whether the order  made on the second Monday of December 1793, even if it related to the deed under which the plaintiff claims, could be given in evidence, as it was not indorsed on the deed or registered with it. The plaintiff's counsel has cited several acts of assembly, which are supposed to settle this point in his favour. It was fully considered in the case of Minick's Lessee v. Hodges, Brown and others, decided in the supreme court of Tennessee, in July 1831. A decision on it is unnecessary, because the court is satisfied that the order must relate to a different deed. \nWe are of opinion that there is no error in the opinions given by the circuit court. The judgment is affirmed, with costs. \nThis cause came on to be heard on the transcript of the record from the circuit court of the United States for the district of East Tennessee, and was argued by counsel; on consideration whereof, it is adjudged and ordered that the judgment of the said circuit court in this cause be, and the same is hereby affirmed, with costs. \n \n\n ", " \nOpinion \n\n \n \n  On consideration whereof, it is now here considered and ordered by this court, that the rule prayed for be, and the same is hereby granted, returnable to the first day of the next January term of this court, to wit, on the second Monday of January, in the year of our Lord one thousand eight hundred and thirty-three. Per Mr Chief Justice Marshall. \n \n\n ", " \nOpinion \n\n \n \n  Mr Chief Justice MARSHALL delivered the opinion of the Court. \nIn this case the plaintiffs in error contend that the circuit court misdirected the jury; in consequence of which, the verdict ought to be set aside, the judgment reversed, and a venire facias de novo awarded. \nThey had brought an ejectment for a tract of land, the title to which was shown to have been in their ancestor; but which the defendants claimed under a conveyance thereof made by the sheriff of Williamson county, in West Tennessee, in pursuance of a sale made by him under a writ of venditioni exponas, issued on a judgment rendered in a suit commenced by attachment. \nOn the  12th day of February 1807, the attachment was regularly issued, and was levied on the 13th of the same month on the land in controversy. The defendants in the attachment did not appear, or replevy the property, but made  default; on which judgment was rendered on the 18th of October 1807. On motion, the property attached was condemned, and a writ of venditioni exponas awarded, which issued on the 24th, and came to the hands of the officer on the 28th of October 1807, who sold on the 2d of January 1808. \nThe plaintiffs proved that the county of Williamson was divided on the 16th of November 1807, and that part of the land for which the ejectment was brought lay in the new county called Maury. He therefore moved the court to instruct the jury that the sale was void as to that part of the land which was situated in the county of Maury, at the time of the sale; and that the conveyance of the sheriff did not transfer that portion of it. \nThe court instructed the jury that the sale was good by relation to the levy. To this instruction  a bill of exceptions was taken, and the cause is brought up by writ of error. \nThe counsel for the plaintiffs in error has argued  the cause as if the process under which the sale was made had been the usual execution awarded on a judgment rendered against a person brought into court by regular process. Without inquiring whether his objections to the charge would have been well founded, had that been the character of the case, it is sufficient to observe that, in the actual cause, the land itself was attached. Not having been released, it remained in the custody of the officer subject to the judgment of the court. An interest was vested in him for the purposes of that judgment. The judgment did not create a general lien on it, but was a specific appropriation of the property itself to the satisfaction of that particular judgment. The process which issued did not direct the officer to levy it on the property of the defendants, but to sell that specific property which was already in his possession by virtue of the attachment and was already condemned by the judgment of the competent tribunal. The subsequent division of the county could not divest this vested interest, or deprive the officer of the power to finish a process which was rightly begun. \nThere is no error in the charge, and the judgment is affirmed  with costs. \n \n\n ", " \nOpinion \n\n \n \n  Mr Chief Justice MARSHALL delivered the opinion of the Court. \nIn this case the grand jury had found an indictment against the prisoner for robbing the mail, to which he had pleaded not guilty. Afterwards, he withdrew this plea, and pleaded guilty. On a motion by the district attorney, at a subsequent day, for judgment, the court suggested the propriety of inquiring as to the effect of a certain pardon, understood to have been granted by the president of the United States to the defendant, since the conviction on this indictment, alleged to relate to a conviction on another indictment, and that the motion was adjourned till the next  day. On the succeeding day the counsel for the prisoner appeared in court, and on his behalf waived and declined any advantage or protection which might be supposed to arise from the pardon referred to; and thereupon the following points were made by the district attorney: \n1. That the pardon referred to is expressly restricted to the sentence of death passed upon the defendant under another conviction, and as expressly reserves from its operation the conviction now before the court. \n2. That the prisoner can, under this conviction, derive no advantage from the pardon without bringing the same judicially before the court. \nThe prisoner being asked by the court whether he had any thing to say why sentence should not be pronounced for the crime whereof he stood convicted in this particular case, and whether he wished in any manner to avail himself of the pardon  referred to, answered that he had nothing to say, and that he did not wish in any manner to avail himself, in order to avoid the sentence in this particular case, of the pardon referred to. \nThe judges were thereupon divided in opinion on both points made by the district attorney, and ordered them to be certified  to this court. \nA certiorari was afterwards awarded to bring up the record of the case in which judgment of death had been pronounced against the prisoner. The indictment charges a robbery of the mail, and putting the life of the driver in jeopardy. The robbery charged in each indictment is on the same day, at the same place and on the same carrier. \nWe do not think that this record is admissible, since no direct reference is made to it in the points adjourned by the circuit court: and without its aid we cannot readily comprehend the questions submitted to us. \nIf this difficulty be removed, another is presented by the terms in which the first point is stated on the record. The attorney argued, first, that the pardon referred to is expressly restricted to the sentence of death passed upon the defendant under another conviction, and as expressly reserves from its operation the conviction now before the court. Upon this point the judges were opposed in opinion. Whether they were opposed on the fact, or on the inference drawn from it by the attorney; and what that inference was; the record does not explicitly inform us. If the question on which the judges doubted was, whether such  a pardon ought to restrain the court from pronouncing judgment in the case before them, which was expressly excluded from it; the first inquiry is, whether the robbery charged in the one indictment is the same with that charged in the other. This is neither expressly affirmed nor denied. If the convictions be for different robberies, no question of law can arise on the effect which the pardon of the one may have on the proceedings for the others. \nIf the statement on the record be sufficient to inform this court, judicially, that the robberies are the same, we are not told on what point of law the judges were divided. The only inference we can draw from the statement is, that it was  doubted whether the terms of the pardon could restrain the court from pronouncing the judgment of law on the conviction before them. The prisoner was convicted of robbing the mail, and putting the life of the carrier in jeopardy, for which the punishment is death. He had also been convicted on an indictment for the same robbery, as we now suppose, without putting life in jeopardy, for which the punishment is fine and imprisonment; and the question supposed to be submitted is, whether a  pardon of the great offence, excluding the less, necessarily comprehends the less, against its own express terms. \nWe should feel not much difficulty on this statement of the question, but it is unnecessary to discuss or decide it. \nWhether the pardon reached the less offence or not, the first indictment comprehended both the robbery and the putting life in jeopardy, and the conviction and judgment pronounced upon it extended to both. After the judgment no subsequent prosecution could be maintained for the same offence, or for any part of it, provided the former conviction was pleaded. Whether it could avail without being pleaded, or in any manner relied on by the prisoner, is substantially the same question with that presented in the second point, which is, \"that the prisoner can, under this conviction, derive no advantage from the pardon, without bringing the same judicially before the court by plea, motion or otherwise.\" \nThe constitution gives to the president, in general terms, \"the power to grant reprieves and pardons for offences against the United States.\" \nAs this power had been exercised from time immemorial by the executive of that nation whose language is our language,  and to whose judicial institutions ours bear a close resemblance; we adopt their principles respecting the operation and effect of a pardon, and look into  their books for the rules prescribing the manner in which it is to be used by the person who would avail himself of it. \nA pardon is an act of grace, proceeding from the power entrusted with the execution of the laws, which exempts the individual, on whom it is bestowed, from the punishment the law inflicts for a crime he has committed. It is the private, though official act of the executive magistrate, delivered to the  individual for whose benefit it is intended, and not communicated officially to the court. It is a constituent part of the judicial system, that the judge sees only with judicial eyes, and knows nothing respecting any particular case, of which he is not informed judicially. A private deed, not communicated to him, whatever may be its character, whether a pardon or release, is totally unknown and cannot be acted on. The looseness which would be introduced into judicial proceedings, would prove fatal to the great principles of justice, if the judge might notice and act upon facts not brought  regularly into the cause. Such a proceeding, in ordinary cases, would subvert the best established principles, and overturn those rules which have been settled by the wisdom of ages. \nIs there any thing peculiar in a pardon which ought to distinguish it in this respect from other facts? \nWe know of no legal principle which will sustain such a distinction. \nA pardon is a deed, to the validity of which delivery is essential, and delivery is not complete without acceptance. It may then be rejected by the person to whom it is tendered; and if it be rejected, we have discovered no power in a court to force it on him. \nIt may be supposed that no being condemned to death would reject a pardon; but the rule must be the same in capital cases and in misdemeanours. A pardon may be conditional; and the condition may be more objectionable than the punishment inflicted by the judgment. \nThe pardon may possibly apply to a different person or a different crime. It may be absolute or conditional. It may be controverted by the prosecutor, and must be expounded by the court. These circumstances combine to show that this, like any other deed, ought to be brought \"judicially before the court by plea,  motion or otherwise.\" \nThe decisions on this point conform to these principles. Hawkins, b. 2, ch. 37, sect. 59, says, \"but it is certain that a man may waive the benefit of a pardon under the great seal, as where one who hath such a pardon doth not plead it, but takes the general issue, after which he shall not resort to the  pardon.\" In sect. 67, he says, \"an exception is made of a pardon after plea.\" \nNotwithstanding this general assertion, a court would undoubtedly at this day permit a pardon to be used after the general issue. Still, where the benefit is to be obtained through the agency of the court, it must be brought regularly to the notice of that tribunal. \nHawkins says, sect. 64, \" it will be error to allow a man the benefit of such a pardon unless it be pleaded.\" In sect. 65, he says, \"he who pleads such a pardon must produce it sub fide sigilli, though it be a plea in bar, because it is presumed to be in his custody, and the property of it belongs to him. \nComyn, in his Digest, tit. Pardon, letter H, says, \"if a man has a charter of pardon from the king, he ought to plead it in bar of the indictment; and if he pleads not guilty he waives his pardon.\" The same  law is laid down in Bacon's Abridgement, title Pardon; and is confirmed by the cases these authors quote. \nWe have met with only one case which might seem to question it. Jenkins, page 169, case 62, says, \"if the king pardons a felon, and it is shown to the court, and yet the felon pleads guilty, and waives the pardon, he shall not be hanged; for it is the king's will that he shall not, and the king has an interest in the life of his subject. The books to the contrary are to be understood where the charter of pardon is not shown to the court.\" \nThis vague dictum supposes the pardon to be shown to the court. The waiver spoken of is probably that implied waiver which arises from pleading the general issue: and the case may be considered as determining nothing more than that the prisoner may avail himself of the pardon by showing it to the court, even after waiving it by pleading the general issue. If this be, and it most probably is the fair and sound construction of this case, it is reconciled with all the other decisions, so far as respects the present inquiry. \nBlackstone, in his 4th vol. p. 337, says, \"a pardon may be pleaded in bar.\" In p. 376, he says, \"it may also be pleaded  in arrest of judgment.\" In p. 401, he says, \"a pardon by act  of parliament is more beneficial than by the king's charter; for a man is not bound to plead it, but the court must, ex officio, take notice of it; neither can he lose the benefit of it by his own laches or negligence, as he may of the king's charter of pardon. The king's charter of pardon must be specially pleaded, and that at a proper time; for if a man is indicted and has a pardon in his pocket, and afterwards puts himself upon his trial by pleading the general issue, he has waived the benefit of such pardon. But if a man avails himself thereof, as by course of law he may, a pardon may either be pleaded on arraignment, or in arrest of judgment, or, in the present stage of proceedings, in bar of execution.\" \nThe reason why a court must ex officio take notice of a pardon by act of parliament, is that it is considered as a public law; having the same effect on the case as if the general law punishing the offence had been repealed or annulled. \nThis court is of opinion that the pardon in the proceedings mentioned, not having been brought judicially before the court by plea, motion or otherwise, cannot be noticed  by the judges. \nThis cause came on to be heard on the transcript of the record from the circuit court of the United States for the third circuit and eastern district of Pennsylvania, and on the question on which the judges of that court were divided in opinion, and was argued by the attorney-general on the part of the United States: on consideration whereof, this court is of opinion that the pardon alluded to in the  proceedings, not having been brought judicially before the court by plea, motion or otherwise, ought not to be noticed by the judges, or in any manner to affect the judgment of the law. All which is directed and adjudged to be certified to the judges of the said circuit court of the United States for the eastern district of Pennsylvania. \n \n\n ", " \nOpinion \n\n \n \n  Mr Chief Justice MARSHALL delivered the opinion of the court. \n This is  an appeal from a decree pronounced in the court of the United States for the district of Kentucky, by which Thomas Deye Owings, James W. Blakey, Ralph Phillips, Milton Stapp, John L. Head and Charles Buck were directed to convey and release to the complainant all their right, title and interest in a tract of land mentioned in the decree. An appeal was allowed, and a bond executed by Lewis W. R. Phillips, Sally Head and Nancy Head, the condition of which recites \"that, whereas Lewis W. R. Phillips, Sally Head and Nancy Head have prayed for and have obtained an appeal from the seventh circuit court of the United States in and for the Kentucky district to the supreme court of the United States, in a certain suit in chancery wherein said Andrew Kincannon was complainant and Thomas D. Owings, Ralph Phillips, the ancestor of the said L. W. R. Phillips, and John L. Head, the husband of said Sally Head and ancestor of Nancy Head, were defendants. \n\"Now, if the said Lewis W. R. Phillips shall well and truly prosecute,\" &c. \nThe particular statement in the bond is considered by the court as explaining the general entry granting the appeal, so as to show that from a joint decree against six  defendants, only two, represented by their heirs, have appealed. \nA motion is now made to dismiss this appeal, because the decree being joint, all the parties ought to join in the appeal. \nUpon principle it would seem reasonable, that the whole cause ought to be brought before the court, and that all the parties who are united in interest ought to unite in the appeal. We have however found no precedent, in chancery proceedings, for our government in this case. But in the case of Williams v. The Bank of the United States, 11 Wheat. 114, which was a writ of error, sued out by one defendant to a joint judgment against three, the writ was dismissed; the court being of opinion that it had issued irregularly, and that all the defendants ought to have joined in it. \nBy the judicial act of 1789, decrees in chancery pronounced in a circuit court could be brought before this court only by writ of error. The appeal was given by the act of 1803. That act declares \"that such appeals shall be subject to the  same rules, regulations and restrictions as are prescribed by law in cases of writs of error.\" \nPrevious to the passage of this act, the decree under consideration could have  been brought into this court only by writ of error, in which writ all the defendants must have joined. The language of the act which gives the appeal, appears to us to require that it should be prosecuted by the same parties who would have been necessary in a writ of error. We think also that the same principle would be applicable, from the general usage of chancery, to make one final decree binding on all the parties united in interest. \nThe appeal must be dismissed, having been brought up irregularly. \nOn consideration of the motion made in this cause on a prior day of the present term of this court, to wit, on Thursday the 17th day of January, by Mr Bibb, of counsel for the appellee, to dismiss this appeal, on the ground that only two of the parties, represented by their heirs, have joined in this appeal, the decree of the said circuit court being a joint decree against six persons, and of the arguments of counsel thereupon had: It is considered by the court that this appeal be dismissed, because only a part of those against whom the decree was made have joined in the appeal. Whereupon, it is ordered, adjudged and decreed by this court that this appeal be, and the same is hereby  dismissed, it having been brought up irregularly. And it is further ordered, adjudged and decreed by this court that said appeal be, and the same is hereby dismissed with costs. \n \n\n ", " \nOpinion \n\n \n \n  Mr Chief Justice MARSHALL delivered the opinion of the Court. \nThis is an appeal from a decree pronounced by the judge of the superior court for the district of East Florida, confirming the title of the appellee to two thousand acres of land lying in that territory, which he claimed by virtue of a grant from the Spanish governor, made in December 1815. The title laid before the district court by the petitioner, consists of a petition presented by himself to the governor of East Florida, praying for a  grant of two thousand acres of land in the place called Ockliwaha, situated on the margins of St John's river; which  he prays for in pursuance of the royal order of the 29th of March 1815, granting lands to the military who were in St Augustine during the invasion in the years 1812 and 1813; to which the following grant is attached. \nSt Augustine of Florida, 12th of December 1815. Whereas this officer, the party interested, by the two certificates inclosed, and which will be returned to him for the purposes which may be convenient to him, has proved the services which he rendered in the defence of this province, and in consideration also of what is provided in the royal order of the 29th of March last past, which he cites, I do grant him the two thousand acres of land which he solicits, in absolute property, in the indicated place, to which effect let a certified copy of this petition and decree be issued to him from the secretary's office, in order that it may be to him in all events an equivalent of a title in form. \nESTRADA. \nIn a copy of the grant, certified by Thomas de Aguilar, secretary of his majesty's government, the words \"which documents will at all events serve  him as a title in form,\" are employed instead of the words \"in order that it may be to him in all events an equivalent of a title in form.\" \nThe petitioner also filed his petition to the governor for an order of survey dated the 31st of December 1815, which was granted on the same day; and a certificate of Robert M'Hardy, the surveyor, dated the 20th of August 1813, that the survey had been made. \nThe attorney of the United States for the district, in his answer to this petition, states, that on the 28th of November 1823 the petitioner sold and conveyed his right in and to the said tract of land to Francis P. Sanchez, as will appear by the deed of conveyance to which he refers; that the claim was presented by the said Francis P. Sanchez to the register and receiver, while acting as a board of commissioners to ascertain claims and titles to land in East Florida, and was finally acted upon and rejected by them, as appears by a copy of their report thereon. As the tract claimed by the petitioner contains less than three thousand five hundred acres of land, and had been rejected by the register and receiver acting as a board of commissioners,  the attorney contended that the  court had no jurisdiction of the case. \nAt the trial the counsel for the claimant offered in evidence a copy from the office of the keeper of public archives, of the original grant on which the claim is founded, to the receiving of which in evidence the attorney for the United States objected, alleging that the original grant itself should be procured, and its execution proved. This objection was overruled by the court, and the copy from the office of the keeper of the public archives, certified according to law, was admitted. The attorney for the United States excepted to this opinion. \nIt appears, from the words of the grant, that the original was not in possession of the grantee. The decree which constitutes the title, appears to be addressed to the officer of the government whose duty it was to keep the originals and to issue a copy. Its language, after granting in absolute property, is, \"for the attainment of which let a certified copy of this petition and decree be issued to him from the secretary's office, in order that it may be to him in all events equivalent to a title in form.\" This copy is, in contemplation of law, an original. \nIt appears too from the opinion of the  judge, \"that by an express statute of the territory, copies are to be received in evidence.\" The judge added, that \"where either party shall suggest that the original, in the office of the keeper of the public archives, is deemed necessary to be produced in court, on motion therefor a subpoena will be issued by order of the court to the said keeper to appear and produce the said original for examination.\" \nThe act of the 26th of May 1824, \"enabling the claimants of lands within the limits of the state of Missouri and territory of Arkansas to institute proceedings to try the validity of their claims,\" in its fourth section, makes it the duty of \"the keeper of any public records who may have possession of the records and evidence of the different tribunals which have been constituted by law for the adjustment of land titles in Missouri, as held by France, upon the application of any person or persons whose claims to lands have been rejected by such tribunals or either of them, or on the application of any person interested,  or by the attorney of the United States for the district of Missouri, to furnish copies of such evidence, certified under his official signature, with  the seal of office thereto annexed, if there be a seal of office.\" \nThe act of the 23d of May 1828, supplementary to the several acts providing for the settlement and confirmation of private land claims  in Florida, declares in its sixth section, that certain claims to lands in Florida, which have not been decided and finally settled, \"shall be received and adjudicated by the judge of the superior court of the district within which the land lies, upon the petition of the claimant, according to the forms, rules, regulations, conditions, restrictions and limitations prescribed by (for) the district and claimants in the state of Missouri by act of congress approved May 26th, 1824, entitled \"an act enabling the claimants,\" &c. \nThe copies directed by the act of 1824 would undoubtedly have been receivable in evidence on the trial of claims to lands 2( M2>>31 2. E=) )A>3( _'2\"' \"316: 3&) A ) _2 ' \"3(' )+1A6 ;3 \") ;3 A&&6 2(on of the act of May 23d, 1828, admits of this application. \nThe fourth section of the act of May 26th, 1830, \"to provide for the final settlement of land claims in Florida,\" adopts, almost in words, the provision which has been cited from the sixth section  of the act of May 23d, 1828. \nWhether these acts be or be not construed to authorize the admission of the copies offered in this cause; we think that, on general principles of law, a copy given by a public officer whose duty it is to keep the original, ought to be received in evidence. \nWe are all satisfied that the opinion was perfectly correct, and that the copies ought to have been admitted. \nWe proceed then to examine the decree which was pronounced, confirming the title of the petitioner. \nThe general jurisdiction of the courts not extending to suits against the United States, the power of the superior court for the district of East Florida to act upon the claim of the petitioner Percheman, in the form in which it was presented, must be specially conferred by statute. It is conferred, if at all, by  the act of the 26th of May 1830, entitled \"an act to provide for the final settlement of land claims in Florida.\" The fourth section of that act enacts \"that all the remaining claims which have been presented according to law, and not finally acted upon, shall be adjudicated and finally settled upon the same conditions, restrictions and limitations, in every respect, as  are prescribed by the act of congress approved the 23d of May 1828, entitled \"an act supplementary,\" &c. \nThe claim of the petitioner, it is admitted. \"had been presented according to law;\" but the attorney for the United States contended, that \"it had been finally acted upon.\" The jurisdiction of the court depends on the correctness of the allegation. In support of it, the attorney for the United States produced an extract from the books of the register and receiver acting as commissioners to ascertain claims and titles to land in East Florida, from which it appears that this claim was presented by Francis P. Sanchez, assignee of the petitioner, on which the following entry was made. \"In the memorial of the claimant to this board, he speaks of a survey made by authority in 1819. If this had been produced, it would have furnished some support for the certificate of Aguilar. As it is, we reject the claim.\" \nIs this rejection a final action on the claim, in the sense in which those words are used in the act of the 26th of May 1830? \nIn pursuing this inquiry, in endeavouring to ascertain the intention of congress, it may not be improper to review the acts which have passed on the  subject, in connexion with the actual situation of the persons to whom those acts relate. \nFlorida was a colony of Spain, the acquisition of which by the United States was extremely desirable. It was ceded by a treaty concluded between the two powers at Washington, on the 22d day of February 1819. \nThe second article contains the cession, and enumerates its objects. The eighth contains stipulations respecting the titles to lands in the ceded territory. \nIt may not be unworthy of remark, that it is very unusual, even in cases of conquest, for the conqueror to do more than to displace the sovereign and assume dominion over the country. The modern usage of nations, which has become law,  would be violated; that sense of justice and of right which is acknowledged and felt by the whole civilized world would be outraged, if private property should be generally confiscated, and private rights annulled: The people change their allegiance; their relation to their ancient sovereign is dissolved: but their relations to each other, and their rights of property, remain undisturbed. If this be the modern rule even in cases of conquest, who can doubt its application to the case of an  amicable cession of territory? Had Florida changed its sovereign by an act containing no stipulation respecting the property of individuals, the right of property in all those who became subjects or citizens of the new government would have been unaffected by the change. It would have remained the same as under the ancient sovereign. The language of the second article conforms to this general principle. \"His catholic majesty cedes to the United States in full property and sover-eignty, all the territories which belong to him situated to the eastward of the Mississippi, by the name of East and West Florida.\" A cession of territory is never understood to be a cession of the property belonging to its inhabitants. The king cedes that only which belonged to him. Lands he had previously granted, were not his to cede. Neither party could so understand the cession. Neither party could consider itself as attempting a wrong to individuals condemned by the practice of the whole civilized world. The cession of a territory by its name from one sovereign to another, conveying the compound idea of surrendering at the same time the lands and the people who inhabit them, would be necessarily  understood to pass the sovereignty only, and not to interfere with private property. If this could be doubted, the doubt would be removed by the particular enumeration which follows. \"The adjacent islands dependent on said provinces, all public lots and squares, vacant lands, public edifices, fortifications, barracks and other buildings which are not private property, archives and documents which relate directly to the property and sovereignty of the said provinces, are included in this article.\" \nThis special enumeration could not have  been made, had the first clause of the article been supposed to pass not only the objects thus enumerated, but private property also. The grant  of buildings could not have been limited by the words \"which are not private property,\" had private property been included in the cession of the territory. \nThis state of things ought to be kept in view when we construe the eighth article of the treaty, and the acts which have been passed by congress for the ascertainment and adjustment of titles acquired under the Spanish government.That article in the English part of it is in these words. \"All the grants of land made before the 24th  of January 1818 by his catholic majesty, or by his lawful authorities, in the said territories ceded by his majesty to the United States, shall be ratified and confirmed to the persons in possession of the lands, to the same extent that the same grants would be valid if the territories had remained under the dominion of his catholic majesty.\" \nThis article is apparently introduced on the part of Spain, and must be intended to stipulate expressly for that security to private property which the laws and usages of nations would, without express stipulation, have conferred. No construction which would impair that security further than its positive words require, would seem to be admissible. Without it, the titles of individuals would remain as valid under the new government as they were under the old; and those titles, so far at least as they were consummate, might be asserted in the courts of the United States, independently of this article. \nThe treaty was drawn up in the Spanish as well as in the English language. Both are originals, and were unquestionably intended by the parties to be identical. The Spanish has been translated, and we now understand that the article, as expressed  in that language, is, that the grants \"shall remain ratified and confirmed to the persons in possession of them, to the same extent, &c.,\" -- thus conforming exactly to the universally received doctrine of the law of nations. If the English and the Spanish parts can, without violence, be made to agree, that construction which establishes this conformity ought to prevail. If, as we think must be admitted, the security of private property was intended by the parties; if this security would have been complete without the article, the United States could have no motive for insisting on the interposition of government in order to give validity to titles which, according  to the usages of the civilized world, were already valid. No violence is done to the language of the treaty be a construction which conforms the English and Spanish to each other. Although the words \"shall be ratified and confirmed,\" are properly the words of contract, stipulating for some future legislative act; they are not necessarily so. They may import that they \"shall be ratified and confirmed\" by force of the instrument itself. When we observe that in the counterpart of the same treaty, executed at  the same time by the same parties, they are used in this sense, we think the construction proper, if not unavoidable. \nIn the case of Foster v. Elam, 2 Peters, 253, this court considered these words as importing contract. The Spanish part of the treaty was not then brought to our view, and we then supposed that there was no variance between them. We did not suppose that there was even a formal difference of expression in the same instrument, drawn up in the language of each party. Had this circumstance been known, we believe it would have produced the construction which we now give to the article. \nThis understanding of the article, must enter into our construction of the acts of congress on the subject. \nThe United States had acquired a territory containing near thirty millions of acres, of which about three millions had probably been granted to individuals. the demands of the treasury, and the settlement of the territory, required that the vacant lands should be brought into the market; for which purpose the operations of the land office were to be extended into Florida. The necessity of distinguishing the vacant from the appropriated lands was obvious; and this could be effected  only by adopting means to search out and ascertain pre-existing titles. This seems to have been the object of the first legislation of congress. \nOn the 8th of May 1822, an act was passed, \"for ascertaining claims and titles to land within the territory of Florida.\" \nThe first section directs the appointment of commissioners for the purpose of ascertaining the claims and titles to lands within the territory of Florida, as acquired by the treaty of the 22d of February 1819. \n It would seem from the title of the act, and from this declaratory section, that the object for which these commissioners were appointed, was the ascertainment of these claims and titles. That they constituted a board of inquiry, not a court exercising judicial power and deciding finally on titles. By the act \"for the establishment of a territorial government in Florida,\" previously passed at the same session, superior courts had been established in East and West Florida, whose jurisdiction extended to the trial of civil causes between individuals. These commissioners seem to have been appointed for the special purpose of procuring promptly for congress that information which was required for the  immediate operations of the land office. In pursuance of this idea, the second section directs that all the proceedings of the commissioners, the claims admitted, with those rejected, and the reason of their admission and rejection, be recorded in a well bound book, and forwarded to the secretary of the treasury to be submitted to congress. To this desire for immediate information we must ascribe the short duration of the board. Their session for East Florida was to terminate on the last of June in the succeeding year; but any claims not filed previous to the 31st of May in that year to be void, and of none effect. \nThese provisions show the solicitude of congress to obtain, with the utmost celerity, that information which ought to be preliminary to the sale of the public lands. The provisions, that claims not filed with the commissioners previous to the 30th of June 1823 should be void, can mean only that they should be held so by the commissioners, and not allowed by them. Their power should not extend to claims filed afterwards. It is impossible to suppose  that congress intended to forfeit real titles not exhibited to their commissioners within so short a period. \n The principal object of this act is further illustrated by the sixth section, which directed the appointment of a surveyor who should survey the country; taking care to have surveyed and marked, and laid down upon a general plan to be kept in his office, the metes and bounds of the claims admitted. \nThe fourth section might seem in its language to invest the commissioners with judicial powers, and to enable them to decide  as a court in the first instance, for or against the title in cases brought before them; and to make such decision final if approved by congress. It directs that the \"said commissioners shall proceed to examine and determine on the validity of said patents,\" &c. If, however, the preceding part of the section to which this clause refers be considered, we shall find in it almost conclusive reason for the opinion that the examination and determination they were to make, had relation to the purpose of the act, to the purpose of quieting speedily those whose titles were free from objection, and procuring that information which was necessary for the safe operation of the land office; not for the ultimate decision, which, if adverse, should bind the proprietor.  The part of the section describing the claims into the validity of which the commissioners were to examine, and on which they were to determine, enacts, that every person, &c. claiming title to lands under any patent, &c. \"which were valid under the Spanish government, or by the law of nations, and which are not rejected by the treaty ceding the territory of East and West Florida to the United States, shall file, &c.\" \nIs it possible that congress could design to submit the validity of titles, which were \"valid under the Spanish government, or by the law of nations,\" to the determination of these commissioners? \nIt was necessary to ascertain these claims, and to ascertain their location, not to decide finally upon them. The powers to be exercised by the commissioners under these words, ought therefore to be limited to the object and purpose of the act. \nThe fifth section, in its terms, enables them only to examine into and confirm the claims before them. They were authorized to confirm those claims only which did not exceed one thousand acres. \nFrom this review of the original act, it results, we think, that the object for which this board of commissioners was appointed, was to  examine into and report to congress suchf claims as ought to be confirmed; and their refusal to report a claim for confirmation, whether expressed by the term \"rejected,\" or in any other manner, is not to be considered as a final judicial  decision on the claim, binding the title of the party; but as a rejection for the purposes of the act. \nThis idea is strongly supported by a consideration of the manner in which the commissioners proceeded, and by an examination of the proceedings themselves, as exhibited in the reports to congress. \nThe commissioners do not appear to have proceeded with open doors, deriving aid from the argument of counsel, as is the usage of a judicial tribunal, deciding finally on the rights of parties: but to have pursued their inquiries like a board of commissioners, making those preliminary inquiries which would enable the government to open its land office; whose inquiries would enable the government to ascertain the great bulk of titles which were to be confirmed, not to decide ultimately on the titles which those who had become American citizens legally possessed. \nOn the 3d of March 1823, congress passed a supplementary act, which also provided  for the survey and disposal of the public lands in East Florida. It authorizes the appointment of a separate board of commissioners for East Florida, and empowers the commissioners to continue their sessions until the second Monday in the succeeding February, when they were to return their proceedings to the secretary of the treasury. \nThis act dispenses with the necessity of deducing title from the original grantee, and authorizes the commissioners to decide on the validity of all claims derived from the Spanish government in favour of actual settlers, where the quantity claimed does not exceed three thousand five hundred acres. The act \"to extend the time for the settlement of private land claims in the territory of Florida,\" passed on the 28th of February 1824 enacts that no person shall be deemed an actual settler, \"unless such person, or those under whom he claims title, shall have been in the cultivation or occupation of the land, at and before the period of the cession.\" \nOn the 8th of February 1827, congress passed an act extending the time for receiving private land claims in Florida, and directing them to be filed on or before the 1st day of the following November, with  the register and receiver of the district;  \"whose duty it shall be to report the same with their decision thereon,\" on or before the 1st day of January 1828, to be laid before congress at the next session. \nThese acts are not understood to vary the powers and duties of the tribunals authorized to settle and confirm these private land claims. \nOn the 23d of May 1828 an act passed supplementary to the several acts providing for the settlement and confirmation of private land claims in Florida. \nThis act continues the power of the register and receiver till the first Monday in the following December, when they are to make a final report; after which it shall not be lawful for any of the claimants to exhibit any further evidence in support of their claims. \nThe sixth section of this act transfers to the court all claims \"which shall not be decided and finally settled under the foregoing provisions of this act, containing a greater quantity of land than the commissioners were authorized to decide, and above the amount confirmed by this act, and which have not been reported as antedated or forged,\" and declares that they \"shall be received and adjudicated by the judge of the district  court in which the land lies, upon the petition of the claimant, according to the forms,\" &c. \"prescribed,\" &c. by act of congress approved May 26th, 1824, entitled \"an act enabling the claimants to land within the limits of  the state of Missouri and territory of Arkansas to institute proceedings,\" &c. A proviso excepts from the jurisdiction of the court any claim annulled by the treaty or decree of ratification by the king of Spain, or any claim not presented to the commissioners or register and receiver. \nThe thirteenth section enacts that the decrees which may be rendered by the district or supreme court \"shall be conclusive between the United States and the said claimants only, and shall not affect the interests of third persons.\" \nIn all the acts passed upon this subject previous to that of May 1830, the decisions of the commissioners, or of the register and receiver acting as commissioners, have been confirmed. Whether these acts affirm those decisions by which claims are rejected, as well as those by which they are recommended for confirmation, admits of some doubt: whether a rejection  amounts to more than a refusal to recommend for confirmation, may  be a subject for serious inquiry: however this may be, we think it can admit of no doubt that the decision of the commissioners was conclusive in no case until confirmed by an act of congress.The language of these acts, and among others that of the act of 1828, would indicate that the mind of congress was directed solely to the confirmation of claims, not to their annulment. The decision of this question is not necessary to this case. The claim of the petitioner was not contained in any one of the reports which have been stated. \nOn the 26th of May 1830 congress passed \"an act to provide for the final settlement of land claims in Florida.\" This act contains the action of congress on the report of the 14th of January 1830, which contains the rejection of the claim in question. The first section confirms all the claims and titles to land filed before the register and receiver of the land office under one league square, which have been decided and recommended for confirmation. The second section confirms all the conflicting Spanish claims, recommended for confirmation as valid titles. \nThe third confirms certain claims derived from the former British government, and which have been  recommended for confirmation. \nThe fourth enacts \"that all remaining claims which have been presented according to law, and not finally acted upon, shall be adjudicated and finally settled upon the same conditions,\" &c. \nIt is apparent that no claim was finally acted upon until it had been acted upon by congress; and it is equally apparent that the action of congress on the report containing this claim, is confined to the confirmation of those titles which were recommended for confirmation. Congress has not passed on those which were rejected. They were, of consequence, expressly submitted to the court. \nThe decision of the register and receiver could not be conclusive for another reason. Their power to decide did not extend to claims exceeding one thousand acres, unless the claimant was an actual settler: and it is not pretended that either the petitioner, or Francisco de Sanchez, his assignee,  was settler, as described in the third section of the act of 1824. \nThe rejection of this claim, then, by the register and receiver did not withdraw it from the jurisdiction of the court, nor constitute any bar to a judgment on the case according to its merits. \nAn objection not  noticed in the decree of the territorial court, has been urged by the attorney-general; and is entitled to serious consideration. The governor, it is said, was empowered by the royal order on which the grant professes to be founded, to allow to each person the quantity of land established by regulation in the province, agreeably to the number of persons composing each family. \nThe presumption arising from the grant itself of a right to make it, is not directly controverted; but the attorney insists that the documents themselves prove that the governor has exceeded his authority. \nPapers translated from a foreign language, respecting the transactions of foreign officers, with whose powers and authorities we are not well acquainted, containing uncertain and incomplete references to things well understood by the parties, but not understood by the court; should be carefully examined before we pronounce that an officer, holding a high place of trust and confidence, has exceeded his authority. \nThe objection rests on the assumption that the grant to the petitioner is founded entirely on the allowance made in the royal order of the 29th of March 1815 at the request of the governor of East  Florida; and the petition to the governor undoubtedly affords strong ground for this assumption; but we are far from thinking it conclusive. The petitioner says, \"that, in virtue of the bounty in lands which, pursuant to his royal order of the 29th of March of the present year, the king grants to the military who were of this place in the time of the invasion which took place in the years 1812 and 1813, and your petitioner considering himself as being comprehended in the said sovereign resolution, as it is proved by the annexed certificates of his lordship brigadier Don Sebastian Kindelan, and by that which your lordship though proper to provide herewith, which certificates express the merits and services  rendered by your petitioner at the time of the siege, in consequence of which said bounties were granted to those who deserved them;\" \"therefore he most respectfully supplicates your lordship to grant him two thousand acres of land in the place,\" &c. The governor granted the two thousand acres of land for which the petitioner prays. \nThe attorney contends that the royal order of the 29th of March 1815, empowered the governor to grant so much land only, as, according to  the established rules, was allowed to each settler. This did not exceed one hundred acres to the head of a family, and a smaller portion for each member of it. \nThe extraordinary facts that an application for two thousand acres should be founded on an express power to grant only one hundred, that this application should be accompanied by no explanation whatever; and that the grant should be made without hesitation, as an ordinary exercise of legitimate authority, are circumstances well calculated to excite some doubt whether the real character of the transaction  is understood, and to suggest the propriety of further examination. \nThe royal order is founded on a letter from governor Kindelan to the captain-general of Cuba, in which he recommends the militia as worthy the gifts to which the supreme governor may think them entitled; \"taking the liberty of recommending the granting of some, which may be as follows: to each officer who has been in actual service in said militia, a royal commission for each grade he may obtain as provincial, and to the soldiers a certain quantity of land as established by regulation in this province, agreeably to the number of persons composing  each family, and which gifts can also be exclusively made to the married officers and soldiers of the said third battalion of Cuba.\" \nThe words \"and which gifts,\" &c. in the concluding part of the sentence, would seem to refer to that part which asks lands for the soldiers of the militia; and yet it is unusual in land bounties for military service, to bestow the same quantity on the officers as on the soldiers. \nBut be this as it may, the application of governor Kindelan is confined to the privates who served in the militia, and to the married officers and soldiers of the third battalion of Cuba.  The petitioner was in either of these corps. He was an ensign of the corps of dragoons. \nThe royal order alluded to, is contained in a letter of the 29th of March 1815, from the minister of the Indies; who, after stating the application in favour of the militia, and the third regiment of Cuba, adds, \"at the same time that his majesty approves said gifts, he desires that your excellency will inform him as to the reward which the commandant of the third battalion of Cuba, Don Juan Jose de Estrada, who acted as governor pro tem. at the commencement of the rebellion, the officers of  artillery, Don Ignacia Salus, Don Manuel Paulin, and of dragoons, Don Juan Percheman, are entitled to as mentioned by the governor in his official letter. By royal order I communicate the same to his excellency for your information and compliance therewith, enclosing the royal commissions of local militia, according to the note forwarded by your excellency.\" \nThe governor adds, \"I forward you a copy of the same, enclosing also the documents above mentioned, that you may give their correspondent direction, with the intention, by the first opportunity of informing his majesty of what I consider just as to the remuneration before mentioned.\" \nIt appears then that the part of the royal order which is supposed to limit this power of the governor to grants of one hundred acres does not comprehend the petitioner; that he is mentioned in that order as a person entitled to the royal bounty, the extent of which is not fixed, and respecting which the governor intended to inform his majesty. \nThe royal order then is referred to in the petition, as showing the favourable intentions of the crown towards the petitioner; not as ascertaining limits applying to him, which the governor could not transcend. \n The petition also refers to certificates granted by general Kindelan, and by the governor himself, expressing his merits and services during the siege. These could have no influence if the amount of the grant was fixed. \nIn his grant annexed to the petition, the governor says, \"whereas this officer, the party interested by the two certificates enclosed, has proved the services which he rendered in defence of  this province, and in consideration also of what is provided in the voyal order of the 29th of March last past, which he cites, I do grant him,\" &c. \nMilitary service, then, is the foundation of the grant, and the royal order is referred to only as showing that the favourable attention of the king had been directed to the petitioner. \nThe record furnishes other reasons for the opinion that the power of the governor was not so limited in this case, as is supposed by the attorney for the United States. \nThe objection does not appear to have been made in the territorial court, where the subject must have been understood. It was neither raised by the attorney for the United States, nor noticed by the court. \nThe register and receiver, before whom the claim was laid by  Sanchez, the assignee of the present petitioner, did not reject it because the governor had exceeded his power in making it, but because the survey was not exhibited. \"If this\" (the survey), say the register and receiver, \"had been produced, it would have furnished some support for the certificate of Aguilar. As it is, we reject the claim.\" \nIt may be added that other claims under the same royal order for the same quantity of land, have been admitted by the receiver and register; and have been confirmed by congress. \nWe do not think the testimony proves that the governor has transcended his power. \nThe court does not enter into the inquiry, whether the title has been conveyed to Sanchez or remains in Percheman. That is a question in which the United States can feel no interest, and which is not to be decided in this cause. It was very truly observed by the territorial court, that this objection \"is founded altogether on a suggestion of a private adverse claim:\" but adverse claims, under the law giving jurisdiction to the court, are not to be decided or investigated. The point has not been made in this court. \nThe decree is affirmed. \n \n\n ", " \nOpinion \n\n \n \n  Mr Chief Justice MARSHALL delivered the opinion of the Court. \nThe judgment brought up by this writ of error having been rendered by the court of a state, this tribunal can exercise no jurisdiction over it, unless it be shown to come within the provisions of the twenty-fifth section of the judicial act. \nThe plaintiff in error contends that it comes within that clause in the fifth amendment to the constitution,  which inhibits the taking of private property for public use, without just compensation. He insists that this amendment, being in favour of the liberty of the citizen, ought to be so construed as to restrain the legislative power of a state, as well as that of the United States. If this proposition be untrue, the court can take no jurisdiction of the cause. \nThe question thus presented is, we think, of great importance, but not of much difficulty. \nThe constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual states. Each state established a constitution for itself, and, in that constitution, provided such limitations and restrictions on the powers of its particular government as its judgment dictated. The people of the United States framed such a government for the United States as they supposed best adapted to their situation, and best calculated to promote their interests. The powers they conferred on this government were to be exercised by itself; and the limitations on power, if expressed in general terms, are naturally, and, we think, necessarily applicable to the government  created by the instrument. They are limitations of power granted in the instrument itself; not of distinct governments, framed by different persons and for different purposes. \nIf these propositions be correct, the fifth amendment must be understood as restraining the power of the general government, not as applicable to the states. In their several constitutions they have imposed such restrictions on their respective  governments as their own wisdom suggested; such as they deemed most proper for themselves. It is a subject on which they judge exclusively, and with which others interfere no farther than they are supposed to have a common interest. \nThe counsel for the plaintiff in error insists that the constitution was intended to secure the people of the several states against the undue exercise of power by their respective state governments; as well as against that which might be attempted by their general government. In support of this argument he relies on the inhibitions contained in the tenth section of the first article. \nWe think that section affords a strong if not a conclusive argument in support of the opinion already indicated by the court. \nThe preceding  section contains restrictions which are obviously intended for the exclusive purpose of restraining the exercise of power by the departments of the general government. Some of them use language applicable only to congress: others are expressed in general terms. The third clause, for example, declares that \"no bill of attainder or ex post facto law shall be passed.\" No language can be more general; yet the demonstration is complete that it applies solely to the government of the United States. In addition to the general arguments furnished by the instrument itself, some of which have been already suggested, the succeeding section, the avowed purpose of which is to restrain state legislation, contains in terms the very prohibition. It declares that \"no state shall pass any bill of attainder or ex post facto law.\" This provision, then, of the ninth section, however comprehensive its language, contains no restriction on state legislation. \nThe ninth section having enumerated, in the nature of a bill of rights, the limitations intended to be imposed on the powers of the general government, the tenth proceeds to enumerate those which were to operate on the state legislatures. These  restrictions are brought together in the same section, and are by express words applied to the states. \"No state shall enter into any treaty,\" &c. Perceiving that in a constitution framed by the people of the United States for the government of all, no limitation of the action of government on  the people would apply to the state government, unless expressed in terms; the restrictions contained in the tenth section are in direct words so applied to the states. \nIt is worthy of remark, too, that these inhibitions generally restrain state legislation on subjects entrusted to the general government, or in which the people of all the states feel an interest. \nA state is forbidden to enter into any treaty, alliance or confederation. If these compacts are with foreign nations, they interfere with the treaty making power which is conferred entirely on the general government; if with each other, for political purposes, they can scarcely fail to interfere with the general purpose and intent of the constitution. to grant letters of marque and reprisal, would lead directly to war; the power of declaring which is expressly given to congress. To coin money is also the exercise of  a power conferred on congress. It would be tedious to recapitulate the several limitations on the powers of the states which are contained in this section. They will be found, generally, to restrain state legislation on subjects entrusted to the government of the union, in which the citizens of all the states are interested. In these alone were the whole people concerned. The question of their application to states is not left to construction. It is averred in positive words. \nIf the original constitution, in the ninth and tenth sections of the first article, draws this plain and marked line of discrimination between the limitations it imposes on the powers  of the general government, and on those of the states; if in every inhibition intended to act on state power, words are employed which directly express that intent; some strong reason must be assigned for departing from this safe and judicious course in framing the amendments, before that departure can be assumed. \nWe search in vain for that reason. \nHad the people of the several states, or any of them, required changes in their constitutions; had they required additional safeguards to liberty from the apprehended  encroachments of their particular governments: the remedy was in their own hands, and would have been applied by themselves. A convention  would have been assembled by the discontented state, and the required improvements would have been made by itself. The unwieldy and cumbrous machinery of procuring a recommendation from two-thirds of congress, and the assent of three-fourths of their sister states, could never have occurred to any human being as a mode of doing that which might be effected by the state itself. Had the framers of these amendments intended them to be limitations on the powers of the state governments, they would have imitated the framers of the original constitution, and have expressed that intention. Had congress engaged in the extraordinary occupation of improving the constitutions of the several states by affording the people additional protection from the exercise of power by their own governments in matters which concerned themselves alone, they would have declared this purpose in plain and intelligible language. \nBut it is universally understood, it is a part of the history of the day, that the great revolution which established the constitution  of the United States, was not effected without immense opposition. Serious fears were extensively entertained that those powers which the patriot statesmen, who then watched over the interests of our country, deemed essential to union, and to the attainment of those invaluable objects for which union was sought, might be exercised in a manner dangerous to liberty. In almost every convention by which the constitution was adopted, amendments to guard against the abuse of power were recommended. These amendments demanded security against the apprehended encroachments of the general government -- not against those of the local governments. \nIn compliance with a sentiment thus generally expressed, to quiet fears thus extensively entertained, amendments were proposed by the required majority in congress, and adopted by the states. These amendments contain no expression indicating an intention to apply them to the state governments. This court cannot so apply them. \nWe are of opinion that the provision in the fifth amendment to the constitution, declaring that private property shall not be taken for public use without just compensation, is intended solely as a limitation on the exercise  of power by the government  of the United States, and is not applicable to the legislation of the states. We are therefore of opinion that there is no repugnancy between the several acts of the general assembly of Maryland, given in evidence by the defendants at the trial of this cause, in the court of that state, and the constitution of the United States. This court, therefore, has no jurisdiction of the cause; and it is dismissed. \nThis cause came on to be heard on the transcript of the record from the court of appeals for the western shore of the state of Maryland, and was argued by counsel: on consideration whereof, it is the opinion of this court that there is no repugnancy between the several acts of the general assembly of Maryland, given in evidence by the defendants at the trial of this cause in the court of that state, and the constitution of the United States; whereupon, it is ordered and adjudged by this court that this writ of error be, and the same is hereby dismissed for the want of jurisdiction. \n \n\n ", " \nOpinion \n\n \n \n  Mr Chief Justice MARSHALL delivered the opinion of the Court. \nThis suit was instituted in the court of the United States for the eastern district of Louisiana, by Theodore Nicolet and J. J. Sigg, subjects of the republic of Switzerland, merchants and partners, trading under the firm of Theodore Nicolet & Co., against James W. Breedlove and William L. Robeson, members of a commercial company consisting of J. R. Bedford, James W. Breedlove and William L. Robeson, merchants and partners, formerly doing business under the firm of Bedford, Breedlove and Robeson. \nThe petition, which in the courts of Louisiana supplies the place of a declaration  at common law, is founded on a promissory note in the following words: \n $296410. New Orleans, Nov. 22, 1826. \nSixty days after date we promise to pay to order of Messrs Theodore Nicolet & Co. twenty-nine hundred sixty-four and ten hundredths dollars, value received. \nBEDFORD, BREEDLOVE AND ROBESON. \nIn June 1829, the defendants filed their plea and answer, setting forth that after the execution of the said note, their affairs having become embarrassed, they made out a full and complete schedule, exhibiting all their property and the debts due to and from them, which said property was duly accepted by the judge of the Parish court for the benefit of the creditors placed on the said schedule, among whom were the plaintiffs Theodore Nicolet & Co., who were then and at the time of the execution of the said note, residents of New Orleans. The answer then sets forth at large the proceedings after the acceptance of the property, and the final discharge of the defendants by the judgment of the Parish court, given in pursuance of the laws of the state, which judgment they plead in bar of the action. \nAfterwards, in January 1830, the cause came on for trial, when the following  entry was made. \"This cause came on for hearing before the court, when, after hearing the arguments of counsel in part, it is ordered that this cause be set for trial on the jury docket on the plea filed this day.\" And afterwards, on the same day, \"came the defendants by their counsel and filed the following plea.\" \nThis plea objects to the jurisdiction of he court, because the note in the petition mentioned was drawn by Bedford, Breedlove and Robeson, payable to the order of Theodore Nicolet & Co., which said firm of Theodore Nicolet & Co. is composed of other persons than the said Theodore Nicolet and the said J. J. Sigg: to wit, Germain Musson and others, all and each of whom are citizens of the United States and state of Louisiana. \nThe plea farther alleges, that Frederick Beckman,  a remote indorser on the said note, had since the indorsement become a citizen. The plaintiffs objected to the reception of this plea to the jurisdiction, because it came too late. \nAfterwards, in May 1830, the court, on a re-hearing, over-ruled  the plea to the jurisdiction which had been received at the January term. The defendants excepted to this decision. \nThe cause came  on for trial before the court, a jury not having been required, when the following admissions were made. \n\"It is admitted that the persons composing the firm of T. Nicolet & Co. were residents of the state at the time of the execution of the note sued, and have continued so up to the present date; that they are, however, absent about six months in the year, but, when so absent, have their agents to attend to their business; and that their commercial house has existed in New Orleans ever since the execution of the said note. It is also admitted, that, at the time of the execution of the said note, the defendants J. W. Breedlove and William L. Robeson were residents of the city of New Orleans, and citizens of the state of Louisiana.\" \nThese admissions are of no importance in the cause. The residence of aliens within the state constitutes no objection to the jurisdiction of the federal court. \nThe defendants offered in evidence the record of the bankrupt proceedings from the parish court. It was admitted that the meeting of the creditors was duly advertised in the public prints. The plaintiffs objected to the admission of this record, but the court determined that it should be read. \n The defendants also gave in evidence the record of the proceedings of the court in a suit brought by the plaintiff, J. J. Sigg, on the same note, against Bedford, Breedlove and Robeson, to which the defendants, James W. Breedlove and William L. Robeson, appeared, and pleaded to the jurisdiction of the court, on which the suit was discontinued on motion of the plaintiffs' counsel. \nIn June 1830, the court rendered its judgment in favour of the plaintiffs for the amount of the note, with interest; which judgment is brought before this court by writ of error. \nThe plaintiffs assign the following errors in the proceedings of the district court. \n1st. The action was irregularly instituted, no process having been sued out against Bedford, one of the partners, and the contract being joint as well as several. \n 2d. Neither in the petition, writ, or in any part of the proceedings, is the christian name of Sigg set forth. \n3d. There is no evidence that the petitioners are aliens. They are shown to have been at the date of the note, and to the time of the trial, residents of New Orleans. \n4th. If originally aliens, their residence in New Orleans renders them incapable of suing in  the courts of the United States. \n5th. There is no averment or proof that Bedford, one of the parties to the note, was subject to the jurisdiction of the court. \n6th. The plea to the jurisdiction was properly filed, and ought not to have been taken from the files of the court. \n7th. The plaintiffs being parties to the insolvent proceedings, were stopped from questioning the sufficiency of the discharge. \n1. The first error assigned, that the suit is brought against two of three obligors, might be fatal at common law. But the courts of Louisiana do not proceed according to the rules of the common law. Their code is founded on the civil law, and our inquiries must be confined to its rules. \nThe note being a commercial partnership contract, is what the law of Louisiana denotes a contract in solido, by which each party is bound severally as well as jointly, and may be sued severally or jointly. The Civil Code of Louisiana, article 2080, directs, \"that in every suit on a joint contract all the obligors must be made defendants; and the succeeding article directs that \"judgment must be rendered against each defendant separately, for his proportion of the debt or damages.\" \nArticle 2086  says, \"there is an obligation in solido on the part of the debtors, where they are all obliged to the same thing, so that each may be compelled for the whole.\" Article 2088 says, \"an obligation in solido is not presumed; it must be expressly stipulated.\" \nThis rule ceases to prevail only in cases where an obligation in solido takes place of right by virtue of some provisions of the law.\" Pothier, from whom this article appears to be taken, part 2, ch. 3, art. 8, gives, in number 266, as one of the instances in which the law presumes it, \"where partners in commerce contract some obligation in respect of their joint concern.\" \nThis then is a contract in solido, on which the parties may  be sued severally or jointly, and by which each is liable for the whole. \nThe Civil code, so far as we are informed, does not affirm or deny that a suit may be sustained on such a contract against two of three obligors. The rules of practice in Louisiana, so far as we understand them, require that the petition should state the truth of the case, and should show a right in the petitioner to recover. It is not denied that this petition states the case truly, nor is it denied that the petitioner  has a right to recover from the defendants the sum demanded. It is alleged that he has not a right to recover it in the form of action which he has adopted. He might have obtained a judgment against each for the whole sum, but not, it is said, against two of them,' in one action. If this be the rule of the common law, it is a mere technical rule, not supported by reason or convenience. No reason other than what is merely technical can be assigned for requiring the additional labour and expense of two actions for the attainment of that which may be as well attained by one. We have no reason for supposing that this technical principle has been engrafted on the civil law. The contrary is to be inferred from the practice of that branch of it with which we are familiar. It is a rule in chancery that all those against whom a decree can be made, shall be brought before the court, if they are within its jurisdiction. A court of equity, proceeding on the principles of the civil law, would not tolerate separate actions in this case. That court, in a case of which it would take cognizance, might require that all those bound in the note should be  brought before it in the same  suit, not that separate actions should be brought against those who might be sued in one. On the principles of the civil law it would seem that the defendants may be required to account for not joining the third promisor in the suit, not for joining two of them. The record contains ample evidence to this point. \nIn the bankrupt proceedings given in evidence by the defendants in the district court, the petitioners state John R. Bedford to be a resident of the state of Alabama, and the schedule required by law also states him to be of Alabama. \nIn the record of the proceedings brought by J. J. Sigg on the same note, against Bedford, Breedlove and Robeson, the defendants  pled to the jurisdiction of the court, and alleged in their plea that John R. Bedford, one of the members of the firm of Bedford, Breedlove and Robeson, was not a citizen of the state of Louisiana, but is an inhabitant and citizen of the state of Alabama. The suit was discontinued on the motion of the plaintiffs' counsel. \nIt was then fully shown to the court that Bedford could not have been joined in the action; and it has been repeatedly decided that in chancery, if the court can make a decree according  to justice and equity between the parties before them, that decree shall not be withheld because a party out of its jurisdiction is not made a defendant, although he must have been united in the suit had he been within reach of the process of the court. In this case the judgment conforms to right and justice, since the plaintiffs were entitled to claim the full sum from each of the defendants. \nIn a question of doubtful practice, it ought not to be entirely disregarded, that the defendants in the district court have not taken this objection, though they pled to the jurisdiction of the court. 2 Pothier, p. 2, ch. 3, art. 8, no. 270, 271, would seem to indicate that more than one, and less than all the obligors, when bound in solido, may be joined in the same suit. \nWe think there was no error in joining two of the defendants in the same action. \n2. The plaintiff Sigg is denominated in the petition and writ J. J. Sigg. The omission of his christian name, at full length, is alleged to be error. He may have had no christian name. He may have assumed the letters \"J.J.\" as distinguishing him from other persons of the surname of Sigg. Objections to the name of the plaintiff cannot be  taken advantage of after judgment. If J. J. Sigg was not the person to whom the promise was made, was not the partner of Theodore Nicolet & Co., advantage should have been taken of it sooner. It is now too late. \n3. The petition avers that they are aliens. This averment is not contradicted on the record, and the court cannot presume that they were citizens. \n4. If originally aliens, they did not cease to be so, or lose their right to sue in the federal court, by a residence in Louisiana. Neither the constitution nor acts of congress require  that aliens should reside abroad to entitle them to sue in the courts of the United States. \n5. The suit not having been brought against Bedford, it was not necessary to aver or prove that he was subject to the jurisdiction of the courts of the United States. \n6. The sixth objection is, that the plea to the jurisdiction was lawfully filed, and ought not to have been taken from the files of the court. \nThis plea was, that the firm of Theodore Nicolet & Co. consisted of other persons in addition to those named in the writ and petition, and that those other persons were citizens of Louisiana. \nIt is admitted that a constitutional or  legal disability in the court to exercise jurisdiction over the parties, may be taken advantage of by plea in abatement, but they must be parties. If they are not, the objection is of a different character. In the case at bar those persons who, if named as plaintiffs, might have ousted the jurisdiction of the court, were not plaintiffs. To make them so, was preliminary to any objection to them. The plea, therefore, was to be considered as objecting to the writ and petition, because all the members of the firm of Theodore Nicolet & Co. are not named. The incapacity of those members to sue, was to be considered after they became plaintiffs. If persons who ought to join in a suit do not join in it, the objection is not to the jurisdiction of the court on account of their invalidity to sue, but because the proper plaintiffs have not all united in the suit. The plea is to be considered as if the averment that Germain Musson and others were citizens of Louisiana, had not been contained in it. \nThis plea was offered after issue was joined on a plea in bar, and the argument of the cause had commenced. The court might admit it, and the court might also reject it. It was in the discretion  of the court to allow or refuse this additional plea. As it did not go to the merits of the case, the court would undoubtedly have acted rightly in rejecting it. But it was received, and the question is, whether, after its reception, all power over it was terminated. \nAll the proceedings are supposed to be within the control of the court while they are in paper, and before a jury is sworn or  a judgment given. If so, the orders made may be revised, and such as in the judgment of the court may have been irregularly or improperly made, may be set aside. If such be the discretion of the court, this is not a case in which a supervising tribunal will control that discretion. The court very properly thought that after issue was joined and the argument commenced, an additional plea not going to the merits, but which might defeat the action, ought not to have been received. We are not prepared to say, they exceeded their power in correcting this order and setting it aside. If they did not exceed their power, they have committed no error in this exercise of it. \n7. The seventh and last error assigned is, that the plaintiffs, being parties to the insolvent proceedings, were  stopped from questioning the sufficiency of the discharge. \nThe act of Louisiana, passed on the 20th of February 1817, section 8, relative to the voluntary surrender of property, and to the mode of proceeding, &c. directs when the judge shall be satisfied that the debtor is entitled to the benefit of the act, \"he shall order that the  creditors of said debtor be called in the manner and within the time prescribed for respites by the Civil Code, art. 4, title 16, book 3; and he shall appoint a counsellor to represent the creditors absent or residing out of the state, if there be any mentioned in the schedule.\" \nThe provision referred to, is in title 18, articles 3052, 3053, 3054, in the volume in possession of the court. \nThe language of the code is, \"the respite is either voluntary or forced. It is voluntary when all the creditors consent, &c.\" \n\"It is forced when a part of the creditors refuse to accept the debtor's proposal, and when the latter is obliged to compel them, by judicial authority, to consent to what the others have determined in the cases directed by law.\" \nThe forced respite takes place when the creditors do not all agree, for then the opinion of the three-fourths,  in number and in amount, prevails over the of the creditors forming the other fourth, and the judge shall approve such opinion, and it shall be binding on the other creditors who did not agree to it. \nBut in order that a respite may produce that effect, it is necessary. \n1. That the debtor should deposit, &c. \n 2. That a meeting of the creditors of such debtor, domiciliated in the state, shall be called on a certain day at the office of a notary public by order of the judge, at which meeting the creditors shall be summoned to attend, by process issued from the court, if the creditors live within the parish where the meeting shall take place, or by letters addressed to them by the notary, if they are not residing in the parish. \nIt is further directed that the meeting, as well as its object, be advertised in English and in French. \nIt was admitted that this advertisement was made; but it is not admitted nor proved that the petitioners were summoned to attend by process from the court, or by letters addressed to them by the notary. Nor did they appear voluntarily. \nIs the judgment binding on them? \nIt is unquestionable that summary proceedings of this description must be  regular, and that their regularity must be shown by the party who relies on them. Notice to the creditors is material, and the law prescribes that notice and defines it. Advertisement in the papers is not sufficient. Personal notice must be given to a resident within the parish, by process; to a non-resident, by a letter from the notary. The law deems this notice indispensable, and the court cannot dispense with it. For want of it the judgment of discharge was no bar to this action. \nThere are other irregularities in the proceedings, but want of notice is fatal, and it is unnecessary to notice them. \nJudgment affirmed, with costs and damages, at the rate of six per cent per annum. \n \n\n ", " \nOpinion \n\n \n \n  Mr Chief Justice MARSHALL delivered the opinion of the Court. \nThe case is not a case where the property is in custody of a court of admiralty, or brought within its jurisdiction, and in the possession of any private person. It is not, therefore, one for the exercise of that jurisdiction. It is a mere personal suit against a state to recover proceeds in its possession, and in such a case no private person has a right to commence an original suit in this court against a state. \n \n\n ", " \nOpinion \n\n \n \n  Mr Chief Justice MARSHALL delivered the opinion of the Court. \nThese are appeals from a decree pronounced in the court of the United States for the seventh circuit and district of Kentucky, on a bill filed by Walter Brashear, on which an injunction was awarded to stay proceedings on two judgments obtained against him in that court, by Francis West. The final decree  perpetuated the injunction as to the sum of four thousand and eleven dollars and sixty-eight cents, the supposed  amount of a judgment obtained against the complainant as special bail for West, and dismissed the bill as to the residue, with ten per cent damages thereon. Both parties have appealed to this court. \nFrancis Brashear, the plaintiff, a resident of Kentucky, being in Philadelphia, executed two notes on the 28th of February 1807, to Francis West, a citizen of Philadelphia, for three thousand five hundred and twenty-seven dollars and eighty-two cents each, payable fifteen months after date. On the 13th of July 1808, he executed a paper writing, in Kentucky, acknowledging the balance of an account due from himself to West, amounting to two thousand one hundred and forty-seven dollars and seventy-six cents. \nThe two notes, executed in February 1807, were assigned soon after their date to John Nixon of Philadelphia, as collateral security for a debt due from West to him. \nOn the 21st of April 1807, West assigned all his estate to trustees to be sold, and the money paid, first to certain preferred creditors, and afterwards to his creditors generally; with a proviso  that no creditor should be entitled to receive any dividend who should not, within ninety days from the date of the deed, execute a release of all claims and demands upon the said Francis West, of any nature or sort whatsoever. \nThe plaintiff was also indebted to James Latimer of Philadelphia, to whom he consigned a quantity of ginseng with instructions to pay the proceeds, after discharging his own debt, to certain other creditors of the consignor, pro rata. \nOn the 10th of December 1808, James Latimer, to prevent other creditors, as he alleges, from obtaining a prior lien on the property in his hands, sued out a foreign attachment against the effects of Brashear, summoning himself as garnishee, and requiring bail in the sum of eight thousand dollars. He gave immediate notice of this proceeding to Brashear. \nEarly in the year 1809, he took a large part of the ginseng to himself, as purchaser, at six months credit; which he shipped on his own account to China, in March of that year. In the following May he shipped the residue, on account of himself and William Redwood. \nOn the 11th of March 1809, Francis West sued out a foreign attachment to the use of his assignees, against Brashear,  and  summoned Latimer as garnishee. The process was executed the 7th of April. \nOn the 23d of September 1809, an attachment was sued out by Nixon's executors, which was returned executed on the 9th of October. \nThe attachments sued out in the name of West, by his assignees, and by Nixon's executors, were prosecuted to judgment. \nIn August 1811, James Latimer became insolvent, and assigned all his property for the benefit of his creditors. His debt to Brashear amounted to four thousand nine hundred and eighty-five dollars and thirty-five cents; no part of which could be collected, his whole estate being absorbed by preferred creditors. \nSuits were instituted, in the name of Francis West, on the notes assigned to John Nixon, and on the acknowledged account herein before mentioned, in the circuit court of the United States for the district of Kentucky, and judgments obtained thereon. A bill was filed by Walter Brashear to be relieved from these judgments. \nThe bill alleges that the assignment to Nixon, and also that to Mifflin and others, trustees for general creditors, are fraudulent and void. It also alleges, that in September 1808, the plaintiff had become special bail  for the said Francis in a suit instituted against him in one of the courts of Kentucky, by a certain George Anderson, in which judgment was obtained against him, and afterwards against the plaintiff as his special bail, for the sum of four thousand and eleven dollars and sixty-eight cents. That on the 3d day of November 1808, the said Francis West received for the plaintiff one hundred and twenty dollars, from the commissioner of loans in the city of Philadelphia, on account of the claim of William Bush; to which the plaintiff was entitled. And that the said Francis West was responsible for the money lost by the plaintiff in the hands of James Latimer; that loss having been caused by the attachments sued out to attach his effects in the hands of the said Latimer, and by  the negligent and illegal manner in which the said attachments were prosecuted. \nThe answers admit that the assignment to Nixon was made for the purpose of securing a debt due to him, amounting to  rather more than two thousand dollars. They insist that the assignment to Mifflin and others, for the benefit of the creditors of West, was fair and legal; and that Brashear had notice of it before  he became special bail for West at the suit of Anderson. \nThey contend that the attachments were legal, and were conducted regularly, and without fraud. \nJames Latimer, who was sworn as a witness, deposes that he shipped part of the ginseng on his own account, before the attachments were laid by the assignees of West; and that he shipped the residue after the attachment sued out by Mifflin and others, trustees for the creditors, had been served. He says there was not any collusion, agreement or consent between the executors of MR Nixon, or the assignees of Mr West and himself, that the property or money attached should remain in his hands, should be shipped abroad, or used or disposed of in any way; other than the consent of the assignees of Mr West, that the ginseng might be sold; which consent was after their attachment, and before that of Mr Nixon's executors; nor was there any consent on the part of the said assignees or executors to any delay or procrastination of payment on his part. \nThe court admitted and allowed the claim to a set off for the money paid by the plaintiff as special bail for West, at the suit of Anderson, but rejected the other claims. \nIt is admitted that  Nixon's exccutors have no interest in the notes assigned to their testator, beyond the debt intended to be secured; and to that extent their claim cannot be controverted. The suggestions made in the bills against it, are unsupported; and are denied in the answer. \nThe first inquiry is into the validity of the general assignment to Mifflin and others, trustees for the creditors of West. \nThis instrument conveys to Samuel Mifflin, John Lapseley and Henry Nixon, all his estate, real, personal and mixed, in trust to sell the same as soon as conveniently may be, and to collect all debts due to the said West, and to pay and discharge the debts due from him, first to certain preferred creditors, and afterwards to creditors generally; \"provided, nevertheless, that none of the above described creditors shall be entitled to receive any part or dividend of the property hereby conveyed, or its proceeds, who shall not, within ninety days from the date  hereof, sign and execute a full and complete release of all claims and demands upon the said Francis West, of any nature or sort whatsoever.\" \nThis deed was executed on the 21st day of April 1807, was acknowledged before the mayor of  the city of Philadelphia on the 22d, and was recorded in the proper office of the city and county on the 27th of the same month. Its validity appears never to have been questioned in the state of Pennsylvania. \nThe objections made to it in argument are, \n1. That the creditors were not consulted. \n2. That they do not appear to have assented to the deed. \n3. That possession was not delivered. \n4. That the assignment is in general terms. \n5. That it excludes all creditors who shall not, within ninety days, execute a release of all claims and demands on the said Francis West, of any nature or sort whatsoever. \n1. It is not necessary to the validity of a deed of assignment that creditors should be consulted, though the propriety of pursuing such a course will generally suggest it, where they can be conveniently assembled. But be this at it may, it cannot be necessary that the fact should appear on the face of the deed. Had it been material, it ought to have been suggested in the bill. The fact would then have been put in issue, and might have been proved. \n2. The same answer may be given to the second objection. The bill does not allege the refusal of the creditors to assent to the  deed of assignment. That fact is not put in issue. The acceptance of the trust by the trustees, and the acquiescence of the creditors for more than twenty years, afford presumptive evidence in favour of their assent: and that is sufficient, in a case in which it is not made a subject of direct inquiry by the pleadings. \n3. The real estate passed by delivery of the deed. The claims on Brashear were not objects of delivery. They could be assigned only in equity; and notice, when given, consummated the assignment. The question of delivery is not made in the proceedings. It is not alleged that West retained possession of any part of the property conveyed in the deed. Fraud may be given in evidence, but is not to be presumed. \n 4. It is also objected that the assignment is in general terms, and that no schedule of the property is annexed. \nThat a general assignment of all a man's property is, per se, fraudulent, has never been alleged in this country. The right to make it results from that absolute ownership which every man claims over that which is his own. That it is a circumstance entitled to consideration, and in many cases to weighty consideration; is not to be  controverted. If a man were to convey his whole estate, and afterwards to contract debts, there would be much reason to suspect a secret trust for his own benefit. The transaction would be closely inspected, and a sweeping conveyance of his whole property would undoubtedly form an important item in the testimony to establish fraud. So, in many other cases which might be adduced. But a conveyance of all his property for the payment of his debts, is not of this description. It is not of itself calculated to excite suspicion. Creditors have an equitable claim on all the property of their debtor; and it is his duty, as well as his right, to devote the whole of it to the satisfaction of their claims. The exercise of this right by the honest performance of this duty cannot be deemed a fraud. If transferring every part of his property, separately, to individual creditors in payment of their several debts, would be not only fair but laudable; it cannot be fraudulent to transfer the whole to trustees for the benefit of all. \nIn England such an assignment could not be supported, because it is by law an act of bankruptcy, and the law takes possession of a bankrupt's estate and disposes  of it. But, in  the United States, where no bankrupt law exists for setting aside a deed honestly made for transferring the whole of a debtor's estate, for the payment of his debts; the preference given in this deed to favoured creditors, though liable to abuse, and perhaps to serious objections, is the exercise of a power resulting from the ownership of property, which the law has not yet restrained. It cannot be treated as a fraud. \n5. The fifth and most serious objection is, that the deed excludes all creditors who shall not within ninety days execute a release of all claims and demands on the said Francis West, of any nature or kind whatsoever. \n The stipulation cannot operate to the exemption of any portion of a debtor's property from the payment of his debts. If a surplus should remain after their extinguishment, that would be rightfully his. Should the fund not be adequate, no part of it is relinquished. The creditor releases his claim only to the future labours of his debtor. If this release were voluntary, it would be unexceptionable. But it is induced by the necessity arising from the certainty of being postponed to all those creditors who shall  accept the terms by giving the release. It is not therefore voluntary. Humanity and policy however both plead so strongly in favour of leaving the product of his future labour to the debtor, who has surrendered all his property, that, in every commercial country known to us, except our own, the principle is established by law. This certainly furnishes a very imposing argument against its being deemed fraudulent. \nThe objection is certainly powerful, that its tendency is to delay creditors. If there be a surplus, this surplus is placed, in some degree, out of the reach of those who do not sign the release, and thereby entitle themselves under the deed. The weight of this argument if felt. But the property is not entirely locked up. A court of equity, or courts exercising chancery jurisdiction, will compel the execution of the trust; and decree what may remain to those creditors who have not acceded to the deed. Yet we are far from being satisfied that, upon general principles, such a deed ought to be sustained. \nBut whatever may be the intrinsic weight of this objection, it seems not to have prevailed in Pennsylvania. The construction which the courts of that state have put  on the Pennsylvania statute of frauds must be received in the courts of the United States. \nIn Lippincott and Annesly v. Barker, 2 Binney, 174, this question arose, and was decided, after elaborate argument, in favour of the validity of the deed. This decision was made in 1809; and has, we understand, been considered ever since as settled law. \nIn Pierpoint and Lord v. Graham, 4 Wash. Rep. 232, the same question was made, and was decided by Judge Washington in favour of the validity of the deed. This decision was  made in 1816. We are informed of no contrary decision in the state of Pennsylvania, and must consider it as the settled construction of their statute. The validity of the deed cannot now be controverted, no actual fraud being imputed to it. \n2. The assignment of the debt due from Brashear to West being valid in equity, has Brashear a right to set off, in equity, against judgments obtained for the use of the assignees in the name of West, his claims against West for the money paid to Anderson, and for the money received on Bush's claim? \nThe question, whether he might have availed himself of these offsets at law, does not now arise. Can he avail himself of  them as plaintiff in equity? \nThat a chose in action is assignable in equity, is not controverted. Equity will protect and enforce the assignment. If subsequent to its being made, and, before notice of it, any counter claims be acquired by the debtor, these claims may unquestionably be sustained. But if they be acquired after notice, equity will not sustain them. If it were even true that they might have been offered in evidence in a suit at law brought in the name of the assignor, he who has neglected to avail himself of that advantage, cannot, after the judgment, avail himself of such discounts as plaintiff in equity. To deprive a party of the fruits of a judgment at law, it must be against conscience that he should enjoy them. The party complaining must show that he has more equity than the party in whose favour the law has decided. This cannot be done in a case like the present, unless the equity of the debtor accrued before notice of the assignment. The right to these discounts then depends on the fact of notice. \nThe assignment was made on the 21st of April 1807. In September 1808, Brashear became special bail for West in a suit instituted by George Anderson. The bill  alleges that at the time of becoming special bail, Brashear had no notice of the assignment. The answer avers that he had notice. \nIt is contended in argument, that the fact of notice is not sufficiently proved by the answer. This cannot be admitted. The defendant has a judgment at law, and the plaintiff comes into court to set aside that judgment by his superior equity. He must show that equity. \nA circumstance appears in evidence which has some tendency  to support the answer. In July 1808, the account was settled between Brashear and West, and the balance acknowledged. This account calculates interest up to the 21st of April 1808, the day on which the assignment was made; and strikes the balance on that day. The coincidence countenances the belief that the calculation of interest stopped on that day, because the account was then transferred; and increases the probability that West, who acknowledged the account, was informed of the reason. \nWe think then that Brashear, having had notice of the assignment when he became special bail for West, cannot be permitted to set off the money paid on that account against the judgment, unless he was induced to trust West by  the conduct of the assignees. Of this we find no evidence in the record. \nThe money received by West for Bush's claim is a still later transaction, and is consequently subject to the same rule. \n5. The last point to be considered is the claim of Brashear to compensation for the loss of the money attached in the hands of Latimer. \nThe bill charges that this money would have been paid by Latimer, had he not been restrained by the attachments; that those suits  were wilfully or negligently procrastinated by the plaintiffs, whose duty it was to have brought them to a conclusion, and to have obtained the money which ought to have been adjudged to them, before Latimer became insolvent; and farther, that the effects attached ought to have been secured by measures which the law authorized, but which were totally omitted. \nThe answers deny these charges, and aver that the suits were prosecuted with diligence, and every step taken to secure the debts which the law prescribed. \nThe first impression would be that the creditors who sued out their attachments were desirous of obtaining their money, and would not intentionally interpose obstacles to the accomplishment of their object.  It may also be stated with some confidence, that those who sue out process authorized by law, are not responsible for the loss consequent from that process, unless that loss is produced by the improper use made of it. The charges made in the bill and denied in the answers, must be  supported by evidence, or the plaintiff cannot prevail. He relies on the proceedings in the attachment as furnishing this evidence. \nThe writ sued out by the assignees of Francis West, in his name, was returnable to June term 1809. The defendant not appearing, judgment was rendered against him at the third term, on the 20th of January 1810; which was as soon as by the course of the court it was attainable. No further step appears to have been taken in this cause. The court is not satisfied that, had a scire facias been sued out against the garnishee, judgment could have been obtained before he became insolvent. \nNixon's executors sued out their attachment in October 1809, and obtained judgment at the third term by default. A writ of inquiry of damages was awarded in March and executed in June term 1811; and final judgment rendered for eight thousand three hundred and twenty-eight dollars and  thirty cents, the damages assessed by the jury. A scire facias was immediately sued out against Latimer, the garnishee, returnable to September court. In the preceding August, Latimer became insolvent. \nThe only delay with which Nixon's executors can be chargeable is the interval between the rendition of the judgment and the awarding of the writ of inquiry. \nIs this delay so culpable as to charge the executors with the loss resulting from the insolvency of Latimer? In pursuing this inquiry, the situation of the parties and of the cause must be taken into view. \nWhen this attachment was sued out, no property on which it could be served was in the hands of the garnishee. The ginseng had been all shipped by Latimer, and the money in his hands had been attached by himself and by the assignees of West, both of which had a right to prior satisfaction. Had they proceeded with as much expedition as the course of the court would admit, to ascertain the amount of their damages, and to sue out upon the judgment for those damages, a scire facias against the garnishee, there must have been some complexity and delay in ascertaining the amount of the prior claims of the attachments of Latimer  and of West's assignees, both of which had priority to theirs. It is not shown that a judgment against the garnishee could have been obtained before he became insolvent. At any rate, there was much reason to  believe that the affair would be more expeditiously as well as more satisfactorily arranged by the parties themselves. \nIn November 1809, Nixon's executors addressed a letter to Walter Brashear, informing him of their attachment, as well as of that issued by West's assignees, and urging him to make provision for the sum which would remain due after exhausting the fund in the hands of Latimer. The letter concludes with saying, \"we think a direction from you to Mr Latimer to pay over the balance due on your ginseng on the attachments would save you much interest; as many months must elapse before the law will possess either the assignees or us of our legal claims.\" \nThe record shows that the proceedings of the executors were embarrassed by the claims of West's assignees, on account of the surplus due on the notes assigned to John Nixon after payment of his debts. In a letter of the 7th of March 1810, to the assignees, they say, \"enclosed is our reply of the 28th ultimo  to Mr West's objections to the account of the late Mr Nixon, as rendered on his assignment. You will oblige us by considering our remarks, and withdrawing all opposition to our attachment on Dr Brashear's property in the hands of Latimer. You certainly can demand of us a settlement, and we must pay over to you any thing recovered beyond what will satisfy the just demand of Mr Nixon's estate.\" The letter referred to is also in the record. It shows that Mr West made specific objections to their claims. \nAfter judgment against Latimer, the executors consulted counsel, whose opinion was that the garnishee might safely pay the money in his hands into court. The letter communicating this opinion is in the record. Mr Latimer states the fact in his deposition, but says that his counsel thought differently. \nLate in 1810, or early in 1811, Dr Brashear was in Philadelphia. The executors addressed a letter to him of the 2d of February, in which they say, \"we beg leave to call your attention to the following letter, and to state, your funds in Mr Latimer's hands must lie without interest under the attachment until they are divided; unless you order him to pay over the same in the proportions  that are due, first to Mr West's assignees for the balance of your account as settled with Mr West when in Kentucky; and what remains on the two  notes in our possession, as stated in our letter of the 4th of November last, together seven thousand and fifty-five dollars sixty-three cents.\" \nIn a letter to Dr Brashear, after the failure of Latimer, they say, \"it was our hope that before your departure for Kentucky an arrangement would have been made by you with Mr Latimer, which would have enabled us to have received from your effects in his hands the amount of your notes in our possession. In this expectation we were disappointed. Being left to legal remedy under the attachment, judgment has been had, &c.\" \n It appears that Dr Brashear had full knowledge of the attachments, and might have directed Mr Latimer to bring the money into court. He was himself in Philadelphia, and might then have arranged the business according to his own judgment. He does not appear to have taken any step to facilitate its termination. He might have given special bail, and have released the attached effects. He has not done so. \nWe think the delay of Nixon's executors to proceed  with the execution of the writ of inquiry to assess damages, is accounted for; and that it is by no means certain that had they proceeded with the utmost despatch, they could have forced the money out of the hands of the garnishee before his failure. We think that more blame attaches to Doctor Brashear than to the executors, and that the loss is to be ascribed to himself in a greater degree than to them. \nThe attachment sued out by the assignees of Mr West, in his name, is attended by different circumstances, and presents a question of more difficulty. The interval between their judgment and the failure of Latimer, was nineteen months. Their claim on the fund due from Latimer to Brashear, had priority to that of any other creditor. Mr Brashear states in his deposition, that a part of the ginseng, more than one third, was in his possession when the attachment for the use of the assignees was served. This ginseng was soon afterwards shipped by himself and another on their own account, and the sale was made with the consent of the assignees. \nThe act \"about attachments\" directs that the manner of executing the writ \"shall be by the officer's going to the house, or to the person in  whose hands or possession the defendant's goods or effects are supposed to be, and then and there declaring in the presence of one or more credible persons in the  neighbourhood, that he attacheth the same goods or effects. From and after which declaration, the goods, money or effects, so attached, shall remain in the officer's power, and be by him secured; in order to answer and abide the judgment of the court in that case, unless the garnishee will give security therefor.\" \nThe language of the act seems to require that the specific property attached should be taken into possession by the officer, unless the garnishee will give security therefor. At all events the law provides positively that they shall remain in his power. The reasonable construction of the act would seem to be, that if the officer leaves them in possession of the garnishee without security, he is himself surety for their forthcoming; and in the mean time he retains the power to remove them. The possession of the garnishee must be virtually his possession: and thus that power of the officer over the attached effects which the law requires would be preserved. \nMr Sergeant, in his Treatise on Attachment,  p. 14, 15, says, \"there can be no difficulty in the service of the writ in this case where the property is shown to the officer, and is admitted by the person in possession to be the property of the defendant in the attachment as alleged or supposed by the plaintiff. But the garnishee may conceal the alleged property, or contest the ownership, liability, &c. And of these and other circumstances, the officer cannot judge, but they are subsequently to be examined into and decided upon by interrogatories or by evidence on trial.\" In these cases the officer would not be bound to take possession or security from the garnishee, unless indemnified by the plaintiff. \nIn consequence of these and other difficulties, Mr Sergeant continues, \"the usual practice is, where there is a garnishee, merely to serve a copy of the writ of attachment on the person named as garnishee with notice annexed by the officer, that by virtue of the writ of which that is a copy, he attaches all and singular the goods and chattels of the defendant in his hands or possession, and summons him as garnishee: in which case the return of the officer is in the same general terms; leaving the existence, nature, extent, and  liability of the property to be developed in the subsequent proceedings by interrogatory or by evidence on the trial. \nIn the case at bar the officer proceeded in what Mr Sergeant  says, is the usual manner. The service and the return were general, and the property remained in the possession of the garnishee. Yet there was no concealment of the property, nor contest about the ownership. The difficulties which caused the practice stated by Mr Sergeant did not arise. We are not informed whether this practice is understood in Pennsylvania to have so far changed the law, that no responsibility is in any case incurred by the officer who leaves the attached effects in the hands of the garnishee without security: nor are we informed whether these effects are supposed to remain in the power of the officer. \nThey must undoubtedly be to a certain extent in the custody of the law. If, under this modern practice, they are understood to be confided by the law to the garnishee, still he must keep them safely; and he is not at liberty to change them, to convert them into money, or to exercise any act of ownership over them. \nThe attachment for the use of the assignees was served in  April 1809, and before the attached effects were shipped to China by the garnishee on account of himself and William Redwood. The assignees, as is stated by the garnishee, consented to the sale. They have then, by their own acts, aided the garnishee in violating the confidence reposed in him by the law, and the duty growing out of that confidence. If the goods were, in legal contemplation, still in the power of the officer, they have combined with the garnishee to take them out of his power. By this act a total loss has been produced. By converting this ginseng into a debt due from the garnishee they have made it his interest, if in declining circumstances, to interpose obstacles to the regular course of the law, and to delay the proceedings as far s might be in his power. He refused to bring the money into court when urged to do so by Nixon's executors. It is not probable that he would have refused to produce the ginseng. The plaintiff, on the most reasonable presumption, has lost the value of the ginseng which was attached in the name of West for his assignees, by this unjustifiable interference. We think them legally responsible for this loss. \nThe counsel for West's assignees  contend that  the testimony of Latimer ought not to be regarded, because, supposing the fact to be as charged in the bill, it is not proved as charged. The  allegation of the bill is that the attaching creditors \"permitted the whole fund to remain subject to the management of Latimer, even assenting and encouraging its export.\" Latimer says, \"there was not any collusion, agreement or consent between the executors of Mr Nixon, or the assignees of Mr West and myself, that the property or money attached should remain in my hands, should be shipped abroad or should be used or disposed of in any way, other than the consent of the assignees of Mr West that the ginseng might be sold; which consent was after their attachment and before that by Mr Nixon's executors. \nAt a time then when the ginseng was placed in the custody of the law, and withheld from the control of Brashear by the attachment of West's assignees, they consented to its being taken out of the custody of the law and sold. The loss of the article, so far as we can judge, is the consequence of this consent. That they did not mention its eportation, in terms, is we think unimportant. The place of sale  was not prescribed. The foreign was the ultimate and the best market for the article. An unlimited power to sell, given to a person in the habit of exporting it to China, without mentioning the place of sale, included, and must have been understood to include a power to dispose of it in the usual manner. \nThe assignees also insist that the accounts furnish cause for believing that the witness is mistaken, in supposing that part of the ginseng was shipped after their attachment was levied. \nIf any obscurity exists in the testimony, the diniculty may be removed by leaving the fact to be investigated in the circuit court. \nThe assignees also insist on the fact that Latimer was the agent of Brashear for the purpose of selling his ginseng; and must still be considered as his agent in the sale itself. He must therefore be understood as selling with the consent of Brashear, as well as with that of the assignees. \nBut the attachment suspended all power of selling under the authority given by Brashear. To implicate him in this transaction, some actual interference on his part must be shown. None is even alleged. It is not to be presumed; for Latimer could not have paid the proceeds of  the ginseng to Brashear while the attachment remained. \nThe counsel have insisted that the attaching creditors could  not have taken the property out of the hands of the garnishee. Admitting them to state the law of Pennsylvania correctly, and we cannot doubt it, still the property was in the custody of the law, and would have remained safely in its custody, so far as we are informed by the testimony, had not the assignees consented to the removal of that protection. \nWe are of opinion that the plaintiff ought to have been allowed a credit for the amount of the ginseng sold by the garnishee with the consent of the assignees of West, and shipped by Latimer, for himself and Redwood. But that he ought not to have been allowed a credit for the money paid by him as special bail for George Anderson. The decree is to be reversed and the cause remanded to the circuit court with directions to reform the said decree according to this opinion. The parties to bear their own costs in this court. \nOn consideration of this cause, this court is of opinion that there is error in the decree of the said circuit court, in allowing to the said Walter Brashear, credit for the money paid by  him as special bail for Francis West, at the suit of George Anderson; and also in refusing to allow the said Walter Brashear credit for the value of the ginseng, shipped and sold by the said James Latimer, with the assent of the assignees of Francis West, after the same had been attached in his hands, by the said assignees. It is therefore decreed, and ordered, that the decree pronounced in this cause by the court of the United States, for the seventh circuit, in the district of Kentucky, be reversed and annulled, and that the cause be remanded to that court, with instructions to perpetuate the injunction as to the sum which shall be equal to the amount of the ginseng shipped and sold by the said James Latimer, after the attachment sued out by Francis West for the use of Samuel Mifflin, James Lapseley, and Henry Nixon, assignees for the benefit of his creditors, was levied; and to dismiss the bill as to the residue. \nAnd it is further ordered, that the parties pay their own costs in this court. \nThe same decree was entered in the case of West and others v. Brashear. \n \n\n ", " \nOpinion \n\n \n \n  Mr Chief Justice MARSHALL delivered the opinion of the Court. \n In this case a decree was pronounced by the court of the United States for the county of Alexandria in December 1829, from which the defendants in that  court appealed, but did not bring up the record. At January term 1832, the appellees, in pursuance of a rule of this court, brought in the record, filed it, and moved that the suit should be dismissed. The court ordered a dismission. On the 9th day of March 1832, a citation was signed by the chief justice of the court for the district of Columbia, citing the plaintiffs in the original action to appear before the supreme court, then in session, and show cause why the decree of the circuit court should not be corrected. \nA copy of the record was returned with this citation \"executed,\" and filed with the clerk. The appellees move to dismiss the suit because the record has been irregularly brought up. \nThe act of March 1803, which gives the appeal from decrees in chancery, subjects it to the rules and regulations which govern writs of error. Under this act it has been always held that a decree may be prayed in court when the decree is pronounced; but if the appeal be prayed after the court has risen, the party must proceed in the same manner as had been previously directed in writs of error. \nThe judicial act directs that a writ of error must be allowed by a judge, and that a citation  shall be returned with the record; the adverse party having at least twenty days notice. This notice, we understand, is twenty days before the return day of the writ of error. \nIn this case the appeal is not allowed by the judge, and the citation is to appear before the court then sitting. The record is brought up irregularly, and the cause must be dismissed. \nOn consideration of the rule granted in this cause, and of the arguments of counsel, as well for the appellants as for the appellees, thereupon had, after mature deliberation, it is the opinion of this court that the record is brought up irregularly, and that this appeal should be dismissed: whereupon, it is ordered and decreed by this court, that the appeal be, and the same is hereby dismissed with costs. \n \n\n ", " \nOpinion \n\n \n \n  Mr Chief Justice MARSHALL delivered the opinion of the Court. \nThis suit was originally brought in the court of the United States for the seventh circuit and district of Ohio, sitting in chancery, by Thomas S. Hinde and Belinda his wife, for the conveyance of a lot of ground in the town of Cincinnati, designated in the plan of the town by the number 86. \nThe bill alleges that Abraham Garrison, under whom all parties claim, sold and  conveyed the said lot of ground to William and Michael Jones, as is proved by his receipt in the following words. \"Received, Cincinnati, 10th September 1790, of William and Michael Jones, fifty pounds thirteen shillings and three pence, in part, of a lot opposite Mr Coun's in Cincinnati, for two hundred and fifty dollars, which I will make them a warrantee deed for, on or before the 20th day, this instant. \n\"Signed, ABRAHAM GARRISON. \n\"Test, JACOB AWL.\" \nThat a deed was executed the succeeding day, which has been lost. That on the 26th of March 1800, William Jones, acting for and in the name of William and Michael Jones, conveyed the lot to Thomas Doyle, Jun. then an infant; and  that his father, Thomas Doyle, took possession of it in the name of his son, and retained possession until his death; that the said Thomas Doyle, Jun. having survived both his parents, died under age in the year 1811, leaving the plaintiff, Belinda, his sister by the mother's side, and heir at law. \nThe bill then alleges, that in the year 1814 the plaintiff, Thomas S. Hinde, in right of his wife, took possession of the said lot and placed a tenant on it; after which, in the year 1819, he obtained  a deed of confirmation from William Jones. \nThe bill further charges, that James Findley, Charles Vattier, Robert Ritchie, William Lytle, George Ely and William Dennison, knowing the title of the plaintiffs, but discovering that the deed from Garrison to William and Michael Jones was lost, have procured a deed from Garrison to some one of them, and have turned his tenant out of possession. The plaintiffs have commenced an ejectment against the tenants in possession, but are advised that they cannot support it. They therefore pray for a conveyance, for discovery and for general relief. \nThe receipt of Abraham Garrison to William and Michael Jones, and the deed of William, purporting to convey for Michael and himself, with the deed of confirmation executed by Michael, are filed as exhibits. The record also contains a deed of John C. Symmes, dated the 31st of July 1795, conveying the lot to Abraham Garrison. The deed from Jones to Doyle is in the name of William and Michael Jones, and is signed W. and M. Jones; but concludes,  \"in witness whereof the said William Jones hath hereunto set his hand and seal, the day and year first above mentioned.\" \nJames Findley answers,  that having obtained a judgment for a large sum against Charles Vattier, the lot 86, with other real property to a large amount, was transferred to him in the year 1807 in satisfaction thereof, and possession of the lot was given. In the year 1815 he was informed that Abraham Garrison claimed the lot, and on searching the record, could find no conveyance from him for it. He purchased it from Garrison for the sum of seven hundred dollars, on condition of his conveying twenty-three feet, part thereof, to Abraham Garrison,  Jun., the son of the vendor. Conveyances were executed in pursuance of this contract. Previous to this purchase, he understood that Thomas Doyle was once the owner of the lot, that it had been sold at a sheriff's sale as his property, and purchased by Charles Vattier. When he purchased, Garrison assured him that he had never sold the lot; and his inquiries among the old settlers respecting the sale to William and Michael Jones, were answered by assurances that they knew nothing more than report, that Thomas Doyle had claimed the lot, and that it was sold by the sheriff as his property. Never heard that the plaintiff, T. S. Hinde, had been in possession.  In April 1818, on a compromise with Charles Vattier, he conveyed to him all his interest in the lot. \nThe deed from Findley to Vattier is made in consideration of one dollar, and a final settlement of all claims. \nThe answer of Charles Vattier states, that in the year 1800 the lot was advertised by the sheriff of Hamilton county to be sold under execution, issued on a judgment he obtained against Thomas Doyle, at which sale he became the purchaser, at the price of twenty dollars. Neither the return of the sale, nor the deed made to him by the sheriff can be found. He has no other knowledge of the title to Thomas Doyle, than that the lot was called his. he held possession under the sale, until James Findley became possessed thereof in 1807. In the year 1818 James Findley conveyed the lot to him for a valuable consideration, after which he conveyed to William Lytle. \nThe answer of William Lytle states that he purchased part of the lot 86 from Charles Vattier in 1818, for fifteen thousand four hundred dollars. He had no knowledge of the claim of Thomas Doyle, Jun. Some time before the purchase, he had heard that Mr Hinde had taken possession of some lots claimed by Thomas Doyle,  deceased, but does not recollect which lots. \nThe answer of Robert Ritchie states, that he is a purchaser for a valuable consideration, without notice of that part of the lot No. 86, which was conveyed by James Findley to Abraham Garrison, Jun. \nSundry depositions were taken and exhibits filed, after which the cause came on to be heard, and the court decreed Charles  Vattier and Robert Ritchie severally to convey to the plaintiffs the parts they respectively held of the lot 86. From this decree the defendants appealed to this court. \nOn a hearing the decree was reversed, because Abraham Garrison was not made a party; and the cause was remanded to the circuit court with directions to permit the plaintiffs to amend their bill, and make Abraham Garrison a party, and to proceed de novo. \nOn the return of the cause to the circuit court, the death of the plaintiff, Belinda, being suggested, the suit was revived as to her heirs; and a bill of revior, and an amended and supplemental bill was filed, making Abraham Garrison a party. \nThe bill, after reciting the matter of the original bill, and stating the death of Belinda Hinde without issue, whereby the plaintiff, T. S. Hinde,  became entitled to a life estate, as tenant by the courtesy, and the other plaintiffs, who are infants, were entitled as the only issue and heirs of the said Belinda; prays that the suit and all the proceedings in it may stand revived and be prosecuted by the said Thomas, for himself, and for them as their next friend. The bill then charges, that James Bradford, Thomas Doyle and John Bradshaw were brother officers; that Bradshaw executed a voluntary bond to Thomas Doyle, the son of Thomas Doyle, binding himself to convey to him two hundred and fifty acres of land, part of a large tract, which is very valuable. This bond was delivered to Thomas Doyle, the father, for the benefit of his son, who afterwards sold the land to Samuel C. Vance for a large sum of money, which he received. To indemnify his son, he procured the lot No. 86 to be conveyed to him. This intention was declared at the time. He was then indebted, but not insolvent. Cincinnati then contained not more than one hundred inhabitants, and this transaction was generally known. After the execution of the bond to T. Doyle, the son, J. Bradshaw departed this life leaving a will in which he devised his whole estate to  T. Doyle the elder. The estate of the father descended to his son, and on his death to his half sister Belinda, after which the plaintiff, T. S. Hinde, confirmed the sale to Vance. \nAfter T. Doyle, the father, had taken possession of lot No.  86 for his son, sundry lots in Cincinnati were sold as his property under execution, some of which were purchased by Vattier; but lot 86 was not among them. \nIt remained open and unimproved until 1814, when the plaintiff, T. J. Hinde, took possession, and placed a tenant on it. \nVattier, erroneously supposing himself to have purchased this lot 86 among others, examined into the title, and must have become fully apprized of the title of T. Doyle the younger, as the deed from Jones to him was on record, and recites the deed from Garrison to Jones. In consequence of this, he took depositions in perpetuam rei memoriam, to prove that the consideration of the deed to the son moved from the father. \nAbout the year 1807, Vattier, being largely indebted to Findley, transferred to him a large quantity of property, among which lot 86 was supposed to be included. It is understood that no money passed on this arrangement between Vattier and Findley,  nor were the relations of the parties changed. \nFindley examined into the title and became acquainted with its history from the recorder,  T. Henderson. He determined to acquire the legal title from Garrison, which he did acquire at the price of seven hundred dollars, and the conveyance of twenty-three feet, part of the lot, to the son of the vendor. The lot was then worth thirty thousand dollars. \nIn 1818 Findley and Vattier readjusted their affairs, and lot No. 86, so far as Findley retained the title, was reconveyed to Vattier. He sold to Lytle for fifteen thousand dollars, who never paid any money; and the contract has been cancelled. The bill prays for a discovery and for a conveyance. \nThe answer of Abraham Garrison acknowledges the sale and conveyance to William and Michael Jones, and the receipt of the purchase money. He admits the receipt filed in the cause. He was induced to make the conveyance to Findley, by the assurance that the equitable title was already in him. He disclaims all title or interest, and prays to be dismissed. \nThe defendant, Garrison, having disclaimed all interest, and it appearing that he was a citizen of Illinois; and the defendants,  who purchased the twenty-three feet of land, sold by Findley to Abraham Garrison, Jun., having filed their answers denying notice; and the plaintiffs admitting that notice could  not be fixed on them; the court, with the consent of the plaintiffs, decreed that the bill be dismissed as to them. \nThe answer of Charles Vattier states, the amendment of the bill, by which Garrison was made a party, and the subsequent dismission of the bill as to him; wherefore, he prays that the whole bill may be dismissed. \nHe does not admit that Belinda Bradford was the heir at law of James Bradford, or that she was born in lawful wedlock; nor does he admit the marriage of Thomas Doyle with the mother of the said Belinda, or the birth of T. Doyle, Jun. \nHe denies that the said Belinda was the heir of T. Doyle, Jun. He admits the conveyance of the lot from John Cleves Symmes in 1795 to A. Garrison, and that some contract was made by Garrison with W. and M. Jones, and that W. and M. Jones sold their equitable title to T. Doyle, who took possession in his own right, and not in right of his son. The consideration moved from the father; consequently, if the conveyance was made to the son, he held  in trust for his father. \nThe deed from Jones was made, he says, to the son fraudulently, for the sole purpose of defrauding creditors. He denies that the father was indebted to the son. He denies that the lot lay open and unimproved. It was in possession of the defendant, who made some small improvements on it. \nHe obtained a judgment against the elder Doyle in February 1801, upon which an execution issued, which was levied on lot 86. An inquest summoned to ascertain the value of the premises, returned that Thomas Doyle was seised of lot No. 86, and that its clear yearly value was twelve dollars. A writ of venditioni exponas was issued, which was stayed by supersedeas; but the judgment was affirmed: after which the lot was sold under execution, and the defendant, Vattier, became the purchaser. There having been lots sold on the same day, the sheriff conveyed to Mr Barnet the lot sold to the defendant, and to the defendant the lot sold to Mr Barnet. The mistake was corrected by Mr Bennet, so far as his own interest was concerned, but was neglected by the defendant. \nSome time after his purchase, he heard of the claim of young Doyle, and on being told by Jones that the purchase  money  was paid by the father, he took depositions to perpetuate testimony. \nHe denies that Belinda, the late wife of T. S. Hinde, was the heir of T. Doyle, Jun. \nHe admits that upon a final settlement with Findley, the lot was reconveyed to him at the price of fifteen thousand dollars. He also admits the sale to Lytle, and a reconveyance of the property, the purchase money not having been paid. \nThe same defendant afterwards filed an amended answer, in which he states, that at the time of filing the original bill, Belinda Hinde, the plaintiff, whose right was asserted therein, had no title to the lot 86. That on the 5th day of October 1814, she, with her husband, Thomas S. Hinde, executed and delivered to Alexander Cummins, a deed of bargain and sale, whereby they conveyed the said lot to him in fee simple, which deed was recorded in the court of Hamilton county, a copy of which is exhibited with the answer. \nIn their replication the plaintiffs admit the execution of the deed set forth in the amended answer, but aver that if the deed was sufficient in law to transfer the estate of the said Belinda in the premises, which they do not admit, it was intended to vest the same  in the said Alexander, in trust to reconvey the same to the said Thomas, to be held by him in trust for the use and benefit of the said Belinda and her heirs; and for this purpose the said Alexander did, on the 5th day of October 1814, reconvey the said lot to the said Thomas. And afterwards, in March 1815, did execute another deed for the same purposes, which last mentioned deed was properly recorded in Hamilton county. \nThe defendants rejoin to this replication. \nOn a hearing, the court dismissed the bill as to Lytle and Findley, they appearing to have no interest in the premises; and decreed that Charles Vattier do, within sixty days, release to the plaintiffs so much of lot 86 as was conveyed to him by James Findley. From this decree the defendant, Charles Vattier, appealed to this court. \nThe counsel for the appellant assigns several errors in the decree. The first is, that the court had no jurisdiction, the defendant  Garrison being a citizen of the state of Illinois. He contends that, in suits between citizens of the United States, all the parties on one side must be citizens of the state in which the suit is brought; and that the jurisdiction of the court depends  on the state of parties at the institution of the suit. In support of this proposition he cites Nollan et al. v. Torrance, 9 Wheat. 537. In that case, a plea to the jurisdiction averred that the plaintiff and defendant are both citizens of the state of Mississippi. On demurrer this plea was held ill, because the jurisdiction of the court depended on the state of the parties at the institution of the suit, and not at the time of the plea pleaded. \n The same objection was made, and the same case cited in support of it, in Connolly et al. v. Taylor et al., 2 Pet. 556. In that case the court said, \"where there is no change of party, a jurisdiction depending on the condition of the party is governed by that condition as it was at the commencement of the suit.\" But this principle was not supposed to be applicable to a suit brought by or against several individuals, whose names were struck out during its progress. In the case of Connolly et al. v. Taylor et al. the plaintiffs were aliens and a citizen of Pennsylvania. The defendants were citizens of the state of Kentucky, in which the suit was brought, except one who was a citizen of Ohio. as between the citizen of Pennsylvania  and of Ohio, the court, sitting in Kentucky, could exercise no jurisdiction. \"Had the cause,\" said the court, \"come on for a hearing in this state of parties, a decree could not have been made in it for the want of jurisdiction.\" The name of the citizen of the United States, who was originally a plaintiff, was, however, struck out before the cause came to a hearing, and the jurisdiction was sustained. \nThis case is, we think, in point. A decree between all the original parties could not have been made. Those plaintiffs who had a right to sue all the defendants, had in their bill united with themselves a person between whom and one of the defendants the court could not take jurisdiction. By striking out his name, the impediment was removed, and the jurisdiction between the other parties remained as it would have stood had his name never been inserted in the bill. The  court could perceive no objection founded in convenience or in law to this course. \nIt is impossible to draw a distinction, so far as respects jurisdiction, between striking out the name of a plaintiff and of a defendant. The citizen of Ohio may have been a more necessary party in the cause than the citizen  of Pennsylvania. Had it been otherwise, the same principle which sustained the one alteration would have sustained the other. \nIn the case of Cameron v. M'Roberts, 3 Wheat. 591, John M'Roberts, a citizen of Kentucky, filed his bill in the court of the United States against Charles Cameron, a citizen of Virginia, and other defendants, without any designation of their citizenship. The defendants appeared and answered, and a decree was pronounced for the plaintiff. Upon a motion to set aside the decree, and to dismiss the suit for want of jurisdiction, the judges were divided in opinion on the following points, which was certified to this court. \n\"Had the district court jurisdiction of the cause as to the defendant Cameron and the other defendants? If not, had the court jurisdiction as to the defendant Cameron alone?\" \nThe certificate of this court was, that if a joint interest vested in Cameron and the other defendants, the court had no jurisdiction over the cause. If a distinct interest vested in Cameron, so that substantial justice (so far as he was interested) could be done without affecting the other defendants, the jurisdiction of the court might be exercised as to him alone. \n The other defendants were represented, on the motion, to be citizens of Kentucky; but this is of no importance, since the jurisdiction of the court was as much affected by the omission to aver that they were aliens or citizens of some other state, as it would have been by the averment that they were citizens of Kentucky. \nThis certificate applies to the state of parties at the time of the decree, and affirms this principle. If the defendants have distinct interests, so that substantial justice can be done by decreeing for or against one or more of them, over whom the court has jurisdiction, without affecting the interests of the others, its jurisdiction may be exercised as to them. \nIf then, when this cause came on for hearing, Abrahan  Garrison had still been a defendant, a decree might then have been pronounced for or against the other defendants, and the bill have been dismissed as to him, if such decree could have been pronounced as to them without affecting his interests. \nWe perceive no principle of reason or law which opposes this course. The incapacity of the court to exercise jurisdiction over Garrison could not affect their jurisdiction over other defendants whose  interests were not connected with his, and from whom he was separated by dismissing the bill as to him. \nThe second error assigned is attended with more difficulty. It is, that Abraham Garrison is a necessary party, without whom a decree ought not to be made. This objection derives additional force from the fact, that the former decree was reversed because he had not been made a party. Did the case now appear under precisely the same circumstances as at the former hearing, the same decree would undoubtedly be now pronounced. But it is insisted by the counsel for the appellees, that circumstances have so changed as to require a different decision. It did not appear in the record, as formerly brought up, that Garrison was not within the jurisdiction of the court. This circumstance is undoubtedly entitled to great consideration, and has always received it. It is the settled practice in the courts of the United States, if the case can be decided on its merits between those who are regularly before them, to decree as between them. Although other persons, not within their jurisdiction, may be collaterally or incidentally concerned, who must have been made parties had they been amenable  to its process, this circumstance shall not expel other suitors who have a constitutional and legal right to submit their case to a court of the United States, provided the decree may be made without affecting those interests. \nIn the case of Osborn et al. v. The Bank of the United States, 9 Wheat. 738, this point was made and relied on by the appellants. A tax had been imposed by the legislature of Ohio on the Bank of the United States, which had been forcibly levied by the officer employed to collect it. A bill was filed against this officer, and against the auditor and treasurer of the state, praying that the money might be restored to the bank, the act imposing the tax being unconstitutional. The  process was served while the money was yet in the hands of the officer. The court decreed the restoration of the money, and the defendants appealed. The appellants insisted that the state of Ohio was the party really interested; that the treasurer, auditor, and collecting officer  were its agents; and that no decree could be made unless the principal could be brought before the court. \nThis court admitted the direct interest of the state, and added, \"had it  been within the power of the bank to make it a party, perhaps no decree ought to have been pronounced in the cause until the state was before the court. But this was not in the power of the bank.\" The jurisdiction of the court was sustained, and the decree affirmed. \nThis is a stronger case than that under consideration. The money in contest would have been paid into the treasury of the state, had the bill been dismissed for want of proper parties. The decree arrested the money in its progress to the treasury, and restored it to the bank. All must admit that the state ought to have been made a party, had it been amenable to the process of the court. Yet this direct interest did not restrain the court from deciding the merits of the cause between the parties before it. \nIn the case at bar, Abraham Garrison has no claim, legal or equitable, to the property in contest. No decree could be made against him, and he has filed his answer disclaiming all interest in the cause. It is true that his answer is not evidence as an answer, since the court had no jurisdiction as to him. But in a question concerning himself only; in a question whether the court will abstain from exercising its  jurisdiction between parties, in some of whom the whole title in law and equity is vested, lest his interests should be affected; his disclaimer of all interest, appearing in the form in which it appears, cannot be disregarded. \nThe rule that the court will proceed, although persons interested are not parties, if those persons are not within its jurisdiction, has been adopted also by the court of chancery in England. There, as here, the general rule is that \"all persons materially interested in the subject ought to be parties, in order to prevent a multiplicity of suits, and that there may be a  complete decree between all parties having material interests; but this being a general rule, established for the convenient administration of justice, is subject to some exceptions, introduced from necessity, or with a view to practical convenience. \"Thus,\" continues Mr Maddock (vol. 2, p. 142), \"where persons interested are out of the jurisdiction of the court, and it is stated so in the bill and proved, it is not necessary to make them parties.\" \nHad the case on the former hearing appeared as it now appears; had it been then known as it is now known, that making Garrison a party  would turn the plaintiffs out of court, and that he disclaimed all interest in the cause; had these facts appeared in the former record; we think the decree would not have been reversed for the cause assigned for its reversal. We are therefore of opinion that the court committed no error in making their decree between the remaining parties, after the bill had been dismissed as to Abraham Garrison. \nThese preliminary objections being removed, we proceed to consider the rights of the parties. \nA question has been made respecting the admissibility of great part of the testimony on which these rights depend. \nBefore the original decree was made, while the cause was depending in the circuit court, the parties, by their counsel, filed a consent in writing for the admission of all the testimony which had been taken in several suits which were depending between some of the same parties, relative to the same controversy, in all the suits both in law and equity. Under this agreement all the depositions were read without objection, at the hearing of the cause. When the decree then pronounced was reversed, and the cause remanded, the counsel for Vattier objected to such of the depositions as  were not regularly taken; and now allege, in support of the objection, that the consent was no longer binding. That the order to proceed de novo was equivalent in effect to dismissing the bill without prejudice; and that new parties are brought into the cause. \nThe only really new party was Abraham Garrison, and the testimony was never used for or against him. The bill, as to him, was dismissed before the cause came to a hearing. The  new parties plaintiffs are the representatives of Belinda Hinde, an original plaintiff, and the proceedings are revived in their names by the order of the court on their bill of revivor. Under such circumstances, the settled practice is to use all the testimony which might have been used had no abatement occurred. The representatives take the place of those whom they represent, and the suit proceeds in its new form unaffected by the change of name. \nThe reversal of the original decree cannot annul the written consent of parties for the admission of testimony. That consent was not limited in its terms to the first hearing, but was co-extensive with the cause. The words in the decree of reversal, that the parties may proceed de novo, are  not equivalent to a dismission of the bill without prejudice; nor could the court have understood them as affecting the testimony in the cause, or as setting aside the solemn agreement of the parties. The testimony, therefore, is still admissible to the extent of that agreement. \nAs the appellees claim under Thomas Doyle, Jun., the first inquiry is into the validity of his title. \nIt is derived, as is stated in the original bill, from Abraham Garrison, who sold to William and Michael Jones. This sale is proved by the receipt given for the purchase money, which receipt also contains a stipulation for a conveyance. \nAn objection is made to its admission in evidence, because it has not been proved by the subscribing witness. Some affidavits were filed, which state that after diligent inquiries at his former place of residence, no intelligence could be obtained respecting him, nor had he been heard of for many years. These affidavits are also objected to, because not regularly taken on notice. \nThe validity of this objection need not be examined, because the receipt is more than thirty years old, and is not only free from suspicion, but is supported by other testimony. In such a case  the subscribing witness may be dispensed with. Bul. Nisi Prius, 255; 1 Starkie's Law of Evidence, 342. This paper vests an equitable title in William and Michael Jones. The bill alleges that a deed in pursuance of it was soon afterwards executed, and there is  much reason to believe that the  allegation is true; but the deed is lost, and the proof of its existence is not thought sufficient to establish it. \nIn March 1800, a deed was executed by William Jones, for and on behalf of his partner Michael and himself, conveying the lot 86 to Thomas Doyle, Jun. \nThe appellants insist that this deed is fraudulent; that the consideration moved from Thomas Doyle the father; and that the conveyance was made at his instance to his son, then an infant, for the purpose of protecting the property from the creditors of the father, who was then insolvent. \nThe appellees insist that the money paid, was in truth the money of the son then in the hands of the father, and that the transaction was a fair one. They admit that Thomas Doyle, Sen. was indebted, but not insolvent. The bill states that the money of the son came to the hands of his father, in the following manner. \nJohn  Bradshaw, the intimate friend and brother officer of Thomas Doyle, being an old bachelor without near relations, executed a voluntary bond to the son of his friend, for two hundred and fifty acres of valuable land, part of a larger tract, which he deposited with the father for the use of the son. This statement is corroborated by the will of Bradshaw, in which he gives the residue of the land, and all his other property to Thomas Doyle. What is denominated a bond, is in substance a deed poll. It describes the tract of land, of which the two hundred and fifty acres it purports to convey are a part; and then, for a valuable consideration, bargains and sells the said two hundred and fifty acres to Thomas Doyle, Jun. son of major Thomas Doyle, a major in the service of the United States. This bond or deed is attested by two witnesses, and bears date the 7th day of January 1794. The handwriting of one of the subscribing witnesses who is dead, is proved; and a witness testifies that he has heard nothing concerning the other, though he has made inquiry for him. The hand writing of Bradshaw is also proved. \nOn the 17th of May 1796, Thomas Doyle, the father, made the following assignment  of this instrument. \"In consideration of four hundred dollars to me in hand paid, I sign over in behalf of my son, Thomas Doyle, Jun., my right and title to the within  mentioned tract of land, and obligate my self in the penalty of six hundred dollars, that when he becomes of sufficient age, that he will sign over his right and title of the same, agreeable to law.\" Signed, Thomas Doyle. The payment of the consideration money specified in the assignment is proved. \nThomas Doyle, then, was in May 1796, indebted to his son for money received to his use, in the sum of four hundred dollars. Although the son might, when of age, have refused to receive this money, and have asserted his title to the two hundred and fifty acres, had the tract of which it was a part, remained the property of his father the devisee of Bradshaw, or of a purchaser with notice, yet he was not compellable to assert it; and, his title not being on record, he could not have asserted it against a purchaser without notice. Thomas Doyle the son then was a bona fide creditor of his father, for the sum of four hundred dollars. The circumstances under which this debt was created, or the relationship between  the parties, cannot render it less sacred. \nIn March 1800, Thomas Doyle, being thus indebted to hisson, directed the conveyance of lot No. 86, to be made to him, declaring at the time, that it was made in consideration of the debt he owed for his son's land sold to Vance. Had this transaction been in favour of any other creditor than a son, its fairness could never have been impeached. Had he, as guardian for any other person, secured a debt under the same circumstances, the helpless infancy of the ward would not have tained the transaction with fraud. The connexion between the parties may excite suspicion, may justify a more scrutinizing investigation of all the circumstances; but if the result of this investigation be, as we think it is, that the conveyance was in payment of a debt of the most sacred obligation, a debt which a conscientious debtor ought to have paid, it is valid in law. The consideration mentioned in the deed, is three hundred and fifty dollars, and it is not suggested that the lot was worth more than that sum. \nThis deed could pass only the interest of William Jones. But it purported to convey the interest of both partners. The presumption arising from the  language of the deed and the connexion between the parties, that the land was considered as  an article of merchandize, and supposed to be conveyed as such an article, is strengthened, if not confirmed by the deed of confirmation afterwards made by Michael Jones, the other partner and joint owner of the lot, and by his deposition which states that the purchase was made by William, the acting partner, who directed the conveyance to be made to the firm. \nThis being the title of Thomas Doyle, Jun., we are next to inquire whether it has descended on Belinda, the plaintiff in the original suit, and his sister on the part of the mother. \nThe plaintiffs make two objections to her title. \n1st. That she was not born in lawful wedlock, and was therefore incapable of taking lands by descend. \n2d. That if legitimate, she could not inherit this from her half brother; because she is not of the blood of the first purchaser. \n1. Belinda was the daughter of James and Margaret Bradford. Several witnesses testify that they lived together as man and wife, acknowledged each other in that character, and were reputed to be lawfully married. The will made by Mr Bradford, after being mortally  wounded, bequeathes one half of his estate to his wife, Margaret Bardford, \"now pregnant;\" and the other half to his child \"of which\" she was then pregnant. \nTo this testimony the appellant opposes some rumors that they were married by a military officer, a person not authorized to perform the ceremony. \nWe cannot hesitate on this question. Belinda Bradford, the child mentioned in the will of her father, must unquestionably be considered as legitimate. \n2. It is alleged that she could not inherit this lot, unless Thomas Doyle, Jun. died before the enactment of a law which limited the inheritable  capacity of the half blood to the blood of the first purchaser; and the appellants insist that this fact is not proved. \nThe court has not inquired into it, because Thomas Doyle, Jun. is himself the first purchaser, and may transmit the lot to his half sister, whether on the part of the father or mother. The plaintiff Belinda then succeeds to all the rights of Thomas Doyle, Jun. in the lot in controversy. \n We are next to inquire how those rights are affected by the title of the appellants. \nCharles Vattier, the appellant, claims under a sale made in 1802, by the sheriff  of Hamilton county, by virtue of an execution issued on a judgment obtained against Thomas Doyle, which he says was levied on lot No. 86. At this sale he alleges that he was the highest bidder, and, as such, became the purchaser. The sheriff made the deed on the 14th of July 1828. The consideration expressed is ninety dollars. \nThe appellees do not admit the fact that this lot was really sold as the property of Thomas Doyle. The testimony, which would seem to be conclusive, that this lot was sold as alleged by Vattier, is repelled by circumstances of great weight. But, admitting this fact to be completely established, its influence in the cause is countervailed by the circumstance that Thomas Doyle had no semblance of title in law or equity to the lot on which the execution was levied. The deed of William Jones, in the name of William and Michael Jones, conveying the lot to Thomas Doyle, Jun., was recorded in March 1800. If persons were not bound to notice this deed because the title of Jones did not appear on the record, still there was no trace of title from any person whatever to Thomas Doyle. This sale, then, was totally unauthorized, and could convey nothing. No title being  in Vattier, he could convey none to Findley. If then, at any time before the deed from Garrison to Findley, a controversy had arisen respecting the title to this lot between the heirs of Thomas Doyle, Jun. and Charles Vattier or his vendee, each claiming a conveyance of the legal title, the decision must have been in favour of Doyle's heirs. They had, if not the legal right, a complete equitable title, to which no single objection could be made. \nWas the conveyance from Garrison to Findley made under circumstances which ought to defeat this title? \nCharles Vattier having become largely indebted to James Findley, this lot with other property is said to have been transferred to him in 1807, in part satisfaction of the debt. The conveyance, if any was made, is not adduced; nor have we any satisfactory evidence, if one was made, that it included this lot. It is not pretended that any money was paid in consequence  of this arrangement. Some considerable time after it, Findley, having become fully apprized of the defect in his title, and of the conveyance to Thomas Doyle, Jun., applied to Garrison, and, in 1815, obtained a conveyance from him. He afterwards conveyed this  property to Vattier. If Vattier can now be deemed a purchaser without notice, his title cannot be disturbed. \nIt is not alleged that either Vattier or Findley was without knowledge of the rights of the appellees when the legal title was acquired. It is contended that they acquired the property and paid the purchase money without this knowledge, and might therefore conscientiously protect themselves by getting in the legal estate. \nLet this allegation be examined. \nIn 1802 Vattier purchased the title of Thomas Doyle, the elder, who had no title whatever. Whether he knew that a conveyance had been made to Thomas Doyle, the younger, or not, is immaterial. He could acquire nothing. The principle caveat emptor is completely applicable. \nThe rules respecting a purchaser without notice are framed for the protection of him who purchases a legal estate and pays the purchase money without knowledge of an outstanding equity. They do not protect a person who acquires no semblance of title. They apply fully only to the purchaser of the legal estate. Even the purchaser of an equity is bound to take notice of any prior equity. Vattier's original purchase, then, cannot avail him, because he  was bound to notice the equity of Doyle. But there is, we think, much reason to believe that he had actual notice of that equity; or, at any rate, was informed of circumstances which ought to have led to such inquiry as would have obtained full notice. \nThe title of Garrison, under whom Doyle was supposed to claim, is presumed by the law to have been known to Vattier. He ought to have inquired into it. In his answer, he says, \"he has been informed and believes that some kind of a contract was made by the said Abraham Garrison with William and Michael Jones for the sale to them of the lot aforesaid.\" He does not state the time when this information was obtained, nor is there any reason to believe that it was subsequest to his  purchase. He also admits his information and belief that W. and M. Jones sold their right to Thomas Doyle the elder, who paid them the full consideration for the same, and took in his own right, and in the right of his son. He does not say when this information was obtained. He says he had no other knowledge of the title of Thomas Doyle to the lot than its being called his, and being sold as his. These circumstances lead to the opinion that this  information was received anterior to his purchase. \nIn so small a society as was then settled in Cincinnati, it is not probable that the title of Thomas Doyle the son, which was of record, should have been unknown. It would, most probably, be the subject of conversation. But be this as it may, a purchaser was bound to make inquiries from Garrison. Had the lot been sold as the property of Garrison, full notice of the equity of Jones and of Doyle would be required to defeat the rights of the purchaser; but, being sold as the property of Thomas Doyle, Sen., the purchaser was bound to inquire into his title. In making these inquiries, Vattier, if he then possessed a knowledge of the sale to Jones; and if he did not, he ought to have been more explicit in his answer; should have searched for a conveyance from Jones to Doyle. He must have found one from Jones to Thomas Doyle, Jun. Under these circumstances,  Vattier ought to have taken notice of the prior equity of Doyle. If he did not, he is chargeable with negligence. \nBut it has been argued, that Findley purchased what he supposed to be a legal title, and might protect himself after discovering his mistake. \nSeveral  answers have been given to this argument. \nThe lot was understood to have been sold as the property of Thomas Doyle, Sen., and the sheriff's deed to Vattier stated it to be sold as the property of John C. Symmes, under an execution against him. Symmes had no title. If it was actually sold as the property of T. Doyle, Sen., he could show no semblance of title. James Findley, therefore, was bound to know that he received from Vattier a property to which the vendor had no other right than was given by possession. He was, consequently, bound to take notice of all existing equities, and  could not maintain his possession against them. Had he been about to make a purchase, he must have examined the title of Vattier, and must have discovered that he had none. Upon such examination, the deed from Jones could scarcely have escaped his notice. \nFindley had paid no money for the lot. The character of the transaction between Vattier and himself is not explained. A new arrangement of all their affairs appears to have taken place, by which this lot was returned. Previous to this new arrangement, he had full notice of the title of the appellees, and with this notice purchased  from Garrison at a great undervalue. It is not alleged, nor can we presume that he was driven to this purchase as the only refuge to protect himself from loss. Had such an allegation been made, it would require an examination of the contract and transactions between himself and Vattier; but it is not made. \nUpon a full consideration of all the circumstances under which Findley bought from Garrison, we cannot consider him as entitled to that protection which a court of equity affords to a man who purchases a legal title and pays the purchase money, without notice of an equity existing against the property which had been sold to him. At the time of acquiring the legal title, he had full notice of the equity of the appellees; and we do not think he has shown himself to have been placed in a situation which would justify his procuring a conveyance from Garrison. If he was not himself protected against the equity of Doyle's representatives, he could communicate no protection to Vattier, who had himself full notice. \nThe conveyance to Lytle, and the reconveyance from him, cannot affect the case, because no money was paid. \nIf, then, the case of the appellees had been correctly stated  in their bill, we should have thought them entitled to the relief for which they prayed. But it was not correctly stated. The bill sets forth a title in Belinda, the wife of Thomas S. Hinde, by direct descent from her brother to herself, and insists on this title. \nThe answer resists the claim because the land had been conveyed by the plaintiffs, before the institution of their suit,  to Alexander Cummings. The plaintiffs, in their replication, admit the execution of the deed to Cummings, but aver that it was made in trust to reconvey the same rights to the said Thomas, to be held by him in trust for the use and benefit of the said Belinda and her heirs, and to enable the said Thomas the more conveniently to manage, litigate and protect the said rights; and that the said Alexander Cummings did afterwards, in execution of the said trust, make a deed to the said Thomas, which is recorded in the proper county. The deed referred to is exhibited, but expresses no trust for the wife and her heirs. \nWill the rules of the court of chancery permit this departure in the replication from the statements of the bill? \nIt is well settled that a decree must conform to the allegations  of the party, as well as to his proofs. The answer, supported as it is by the deed to Cummings, would have put the plaintiffs out of court, had they not made a new case in their replication. Ought not this case to have been made in their bill, and can the omission to make it be supplied by averments in the replication? \nThe act for regulating processes in the courts of the United States, vol. 2, p. 299, enacts, that \"the forms and modes of proceedings\" in courts of equity and in those of admiralty and maritime jurisdiction, shall be \"according to the principles, rules and usages which belong to courts of equity and to courts of admiralty respectively, as contradistinguished from courts of common law;\" subject, however, to such alterations, &c. \nThis act has been generally understood to adopt the principles, rules and usages of the court of chancery of England. By the principles, rules and usages of that court, the plaintiffs, in such a case as this, must have amended their bill. 2 Mad. Ch. 275, 286; Mitf. Pl. 256. They could not have been permitted to make a new case in their replication. \nThe act permits this court to prescribe rules for the practice of the circuit courts. Rules  have been prescribed in pursuance of this power, but they allow a special replication to be filed only with leave of the court. This replication was filed without leave, and is consequently not saved by the rule. We think it obviously proper that the real case should have been stated in the bill, and that the decree ought not to have been  pronounced in the actual state of the pleadings. For this fault we are of opinion that the decree ought to be reversed, and the cause remanded, with directions to permit the plaintiffs to amend their bill. \nThis cause came on to be heard on the transcript of the record from the circuit court of the United States for the district of Ohio, and was argued by counsel: on consideration whereof, this court is of opinion, that to entitle themselves to the decree which was pronounced in their favour, the plaintiffs in the circuit court ought to have stated their case truly in their bill as it now appears on the record, and that after the amended answer was filed, showing the deed from Thomas S. Hinde and Belinda his wife to Alexander Cummings, the plaintiffs ought to have obtained leave to amend their bill, so as to introduce into it the reconveyance  from Alexander Cummings to  Thomas S. Hinde, on the trusts agreed on between the parties, instead of alleging this new matter in their replication. This court is further of opinion that the circuit court ought not to have pronounced its decree, and that for this cause the decree ought to be reversed, and is hereby reversed, so far as it directs a conveyance to be made by the appellant, Charles Vattier, and the cause is remanded to the circuit court, with directions to permit the plaintiffs to amend their bill. \n \n\n ", " \nOpinion \n\n \n \n  Mr Chief Justice MARSHALL delivered the opinion of the Court. \nThe appellants had filed their bill in the court of the United States for the county of Washington, alleging themselves to be the distributees and next of kin of Thaddeus Kosciuszko, deceased, who departed this life intestate, as they allege, with respect to personal property in the United States. The bill charges that Thaddeus Kosciuszko, being about to leave America, deposited with Mr Jefferson a paper writing purporting to be a will which was executed in Virginia, and is in the following words: \n\"I, Thaddeus Kosciuszko, being just on my departure from America, do hereby declare and direct, that, should I make no other testamentary disposition of my property  in the United States, I hereby authorize my friend, Thomas Jefferson, to employ the whole thereof in purchasing negroes from among his own, or any others, and giving them liberty in my name, in giving them an education in trade or otherwise, and in having them instructed for their new condition in the duties of morality, which may make them good neighbours, good fathers or mothers, husbands or wives, in their duty as citizens, teaching them to be defenders  of their liberty and country, and of  the good order of society, and in whatsoever may make them happy and useful; and I make the said Thomas Jefferson executor of this. \n\"T. KOSCIUSZKO. \n\"5th May 1798.\" \nAfter the testator's death, Mr Jefferson proved the will in the county court of Albemarle, but renounced the executorship. Letters of administration have since been granted on it in the county of Washington in this district, to Benjamin L. Lear, who is in possession of the fund which is referred to in the paper writing. The plaintiffs contend that this paper writing is not a will; or if a will, cannot have effect, the bequest contained in it being one which the law will not sustain. They therefore contend  that, this will being void and inoperative, they, as the next of kin, are entitled to this fund, there being no creditors to claim. \nThe answer insists on the validity of the will, and that the defendant is ready to carry the trust into execution. \nBefore the court can decide the intricate questions which grow out of this will, we think it necessary to possess some information which the record does not give. \nThe domicil of general Kosciuszko is not stated. He was a native of Poland, and died in Switzerland. Whether he was domiciliated in Switzerland or not does not appear. The law of domicil, with respect to wills in cases of testacy, or regulating distribution in cases of intestacy, may be material. \nIt also appears that the testator made a will in Europe. From the manner in which the subject is mentioned, we presume that this makes no disposition of his property in the United States; but, since we are informed of its existence, it would be desirable to see it. \nWe do not think the case properly prepared for decision; and therefore direct that the decree be reversed and the cause remanded, with liberty to the plaintiff to amend his bill. \n \n\n ", " \nOpinion \n\n \n \n  Mr Chief Justice MARSHALL delivered the opinion of the Court. \nThe United States had obtained judgment against P. F. Dubourg de St Colombe, in his lifetime, for a large sum of money. This judgment was revived after his death; or in the law language of Louisiana, declared executory; and the property of which he died possessed, ordered to be seized and sold to satisfy the demand of the United States. \nThe heirs of P. F. Dubourg de St Colombe filed their bill, praying an injunction to stay proceedings at law on this judgment. \n The bill alleges that the estate of their parents was  held in common at the death of their mother, and that the moiety belonging to their mother descended at her death on them, and was not liable for debts, afterwards contracted by their father. It also alleges that they were infants, and that their father took possession of their estate, which he had wasted to an amount exceeding his effects in their hands. The law of Louisiana, they say, gave them a lien at the death of their mother on all the estate of their father, to the extent of this waste, exempt from the claim of any subsequent creditor. \n Several witnesses were examined, and several documents filed to prove the amount of the estate, at the death of their mother. The accounts are complex and intricate. The judge examined them, and being of opinion that the estate was insolvent at the death of the mother, dissolved the injunction and decreed costs. This has been understood to be a final decree, and to be equivalent to dismissing the bill. The plaintiffs appealed to this court. \nWe are of opinion that a complex and intricate account is an unfit subject for examination in court, and ought always to be referred to a commissioner to be examined by him and reported,  in order to a final decree. To such report the parties may take any exceptions; and thus bring any question they may think proper before the court. The decree therefore is reversed, and the cause remanded to the court of the United States for the eastern district of Louisiana, with directions to refer the account to a commissioner, with instructions to settle and report the amount of the estate at the death of the wife, in order to a final decree; and to state such matters specially as he may think necessary, or as either party may require. \n \n\n ", " \nOpinion \n\n \n \n  Mr Chief Justice MARSHALL delivered the opinion of the Court. \nThis is a motion to dismiss an appeal from a decree of the court of the United States for this district, sitting in the county of Alexandria; because the matter in controversy does not amount to one thousand  dollars. \nThe bill was filed for the purpose of obtaining a decree for the sale of a lot, on which a deed of trust had been given to secure the payment of a sum of money amounting with interest to less than one thousand dollars. The bill was dismissed, and from this decree an appeal was taken. \nThe appellant alleges, in support of the jurisdiction of the court, that the real question is, whether the debtor be entitled to the lot, and as that is worth more than one thousand dollars, this court may take jurisdiction, though the sum claimed in the bill is less. \nThe court is of a different opinion. The real matter in controversy is the debt claimed in the bill; and though the title of the lot may be inquired into incidentally, it does not constitute the object of the suit. \nThe appeal is dismissed. \n \n\n ", " \nOpinion \n\n \n \n Mr Chief Justice MARSHALL delivered the opinion of the Court. \nAfter hearing counsel, and considering the cause shown by the honorable the judge for the court of the United States for the northern district of New York; this court is of opinion that it ought not to exercise any control over the proceedings of the district court in allowing or refusing to allow amendments in the pleadings; but that every party has a right to the judgment of this court in a suit brought by him in one of the inferior courts of the United States, provided the matter in dispute exceeds the sum or value of two thousand dollars. \nIn cases where the demand is not for money, and the nature of the action does not require the value of the thing demanded to be stated in the declaration, the practice of this court, and of the courts of the United States, is, to allow the value to be given in evidence. In pursuance of this practice, the demandant in the suits dismissed by order of the judge of the district court, had a  right to give the value of the property demanded in evidence, at or before the trial of the cause; and would  have a right to give it in evidence in this court. Consequently he cannot be legally prevented from bringing his case before this tribunal. The court doth therefore direct that a mandamus be awarded to the judge of the court of the United States for the northern district of New York, requiring the said judge to reinstate, and proceed to try and adjudge according to the right of the case, the several writs of right, and the mises thereon joined, lately pending in said court, between Martha Bradstreet, demandant, and Apollos Cooper et al. tenants. \nThe following mandamus was issued by order of the court. \nUnited States of America, ss. \nTo the honourable Alfred Concklin, judge of the district court of the United States for the northern district of New York, greeting: \nWhereas, one Martha Bradstreet hath heretofore commenced and prosecuted, in your court, several certain real actions, or writs of right, in your court lately pending between the said Martha Bradstreet, demandant, and the following named tenants severally and respectively, to wit, Apollos Cooper and others  [naming them]. And whereas, heretofore, to wit, at a session of the supreme court of the United States, held at Washington on the second Monday of January in the year 1832 it appeared, upon the complaint of the said Martha Bradstreet, among other things, that at a session of your said court, lately before holden by you, according to law, all and singular the said writs of right then and there pending before your said court, upon the several motions of the tenants aforesaid, were dismissed for the reason that there was no averment of the pecuniary value of the lands demanded by the said demandant in the several counts filed and exhibited by the said demandant against the several tenants aforesaid; which orders of your said court, so dismissing the said actions, were against the will and consent of said demandant: whereupon the said supreme court, at the instance of said demandant, granted a rule requiring you to show cause, if any you had, among other things, why a writ of mandamus from the said supreme court, should not be awarded and issued to you, commanding you to reinstate and proceed to try and adjudge, according to the law and right of the case, the several writs of right  aforesaid, and the mises therein joined. And whereas, at the late session  of the said supreme court held at Washington on the second Monday of January in the year 1833 you certified and returned to the said supreme court, together with the said rule, that after the mises had been joined in the several causes mentioned in the said rule, motions were made therein, on the part of the tenants, that the same should be dismissed upon the ground that the counts respectfully contained no allegation of the value of the matter in dispute, and that it did not therefore appear, by the pleadings, that the causes were within the jurisdiction of the court: that, in conformity with what appeared to have been the uniform language of the national courts upon the question, and your own views of the law, and in accordance especially with several decisions in the circuit court for the third circuit (see 4 Wash. C.C. Rep. 482, 624), you granted their motions; and assuming that the causes were rightly dismissed, it follows of course that you ought not to be required to reinstate them, unless leave ought also to be granted to the demandant to amend her counts: and whereas, afterwards, to wit  at the same session of the said supreme court last aforesaid, upon consideration of your said return and of the cause shown by you therein against the said rule's being made absolute, and against the awarding and issuing of the said writ of mandamus, and upon consideration of the arguments of counsel, as well on your behalf, showing cause as aforesaid, as on behalf of the said demandant, in support of the said rule, it was considered by the said supreme court, that you had certified and returned to the said court an insufficient cause for having dismissed the said actions, and against the awarding and issuing of the said writ of mandamus, pursuant to the rule aforesaid; the said supreme court being of opinion, and having determined and adjudged upon the matter aforesaid, that in cases where the demand is not made for money, and the nature of the action does not require the value of the thing demanded to be stated in the declaration, the practice of the said supreme court, and of the courts of the United States, is to allow the value to be given in evidence: that, in pursuance of this practice, the demandant in the suits dismissed by order of the judge of the district court, has a right  to give the value of the property demanded in evidence, either at or before the trial of the cause, and would have a right to give it in evidence  in the said supreme court; consequently that she cannot be legally prevented from bringing her cases before the said supreme court; and it was also then and there considered by the said supreme court that the peremptory writ of the United States issue requiring and commanding yon, the said judge of the said district court, to reinstate and proceed to try and adjudge, according to the law and right of the case, the several writs of right and the mises therein joined, lately pending in your said court between the said Martha Bradstreet, demandant, and Apollos Cooper and others, the tenants aforesaid: therefore, you are hereby commanded and enjoined, that immediately after the receipt of this writ, and without delay, you reinstate and proceed to try and adjudge, according to the law and right of the case, the several writs of right and the mises therein joined, lately pending in your said court between the said Martha Bradstreet, demandant, and the said Apollos Cooper and others, the tenants herein above named, so that complaint  be not again made to the said supreme court; and that you certify perfect obedience and due execution of this writ to the said supreme court, to be held on the first Monday in August next. Hereof fail not at your peril, and have then there this writ. \nWitness the honourable John Marshall, chief justice of said supreme court, the second Monday of January in the year of our Lord one thousand eight hundred and thirty-three. \nW. T. CARROL, \nClerk of the supreme court of the United States. \n \n\n ", " \nOpinion \n\n \n \n  Mr Chief Justice MARSHALL delivered the opinion of the Court. \nThis is a writ of error to a judgment rendered in the supreme court for the state of Missouri. \nIn 1826 an action of covenant  was instituted in the circuit court for the county of Cape Girardeau, by the state of Missouri, against Morgan Byrne, the plaintiff in error. \nThe declaration charges, that the defendant, on the 26th of October 1822, executed his certain writing obligatory, by which he promised to pay to the state of Missouri, on the 26th day of October in the year 1823, the sum of one hundred and thirty-five dollars, and the two per centum per annum on the said amount, it being the interest accruing on the certificates borrowed (by the said Byrne of the state), from the 1st day of October 1821, at the Jackson loan office for value; which said sum the defendant refuses to pay, &c. \nThe defendant appeared and pleaded in bar of the action, that the said state of Missouri, by an act of the legislature thereof, entitled an act for the establishment of loan offices,  approved by the governor of the said state on the 27th day of June 1821, divided said state into five districts, in each of which  districts was established a loan office; and by said act the auditor of public accounts and treasurer of said state, under the governor thereof, were required to issue certificates signed by  the said auditor and treasurer to the nominal amount of two hundred thousand dollars, of denominations not exceeding ten dollars, nor less than fifty cents, in the following form, to wit, \"this certificate shall be receivable at the treasury, or any of the loan offices of the state of Missouri, in discharge of taxes or debts due to the state, for the sum of dollars, with interest for the same, at the rate of two per centum from this date, the day of;\" and that by said act said certificates were made receivable at the treasury of said state, and by all the tax gatherers and other public officers in payment of taxes, and other moneys, then due or to become due to said state, or any county or town therein, and by all officers, civil and military, in said state, in discharge of salaries; and by said act it was further made the duty of said auditor and treasurer, according to the provisions of said act, to deliver to the clerk of said general loan offices a proportional amount of the certificate, by the said act required to be issued as aforesaid; and certain commissioners by said act required to be appointed, were by said act empowered to loan said certificates to the citizens of said  state residing within their respective districts, at interest not exceeding six per centum per annum on the amount, and to secure the repayment of the said loans by mortgages or personal security; and by said act, the salt springs belonging to the state were to be leased out, on the condition that the lessee or lessees should receive said certificates in payment for salt, not exceeding that which might be prescribed by law; and that the proceeds of said salt springs, the interest accruing to the state, and all estates purchased by the said loan offices under the provisions of said act, and all debts then due and to become due to the said state, were by said act pledged and made a fund for the redemption of the said certificates; and by the same act, the faith of the state was also pledged for the same purpose. And the defendant farther saith, &c., a large sum was deposited at the loan office at Jackson, &c., and that he has received from said loan office  the nominal sum of one hundred and thirty-five dollars in said certificates, for the loan of which certificates, and no other consideration whatever, the said defendant made and executed to said state said writing obligatory  mentioned. And said defendant avers, that said loan office certificates, so loaned to said defendant as aforesaid, were bills of credit, emitted by said state in violation of the constitution of the United States; all which said defendant is ready to verify: wherefore, &c. \nThe plaintiff demurred generally to this plea, and the defendant joined in demurrer. \nThe court sustained the demurrer, and rendered judgment for the plaintiff. This judgment was brought by writ of error into the supreme court of the judicial district in which it was rendered, the highest tribunal in that state which could take cognizance of it, where it was affirmed. \nThe defendants have prosecuted this writ of error, under the twenty-fifth section of the judicial act. \nThe pleadings in the cause bring the question, whether the act of the state of Missouri, by virtue of which the certificates which form the consideration of the writing obligatory, on which the judgment of the state court was rendered, be constitutional or not, directly and plainly before the court; and the decision of the state court was in favour of its validity. Consequently the case is within the twenty-fifth section of the judicial act;  and the only question before this court is, did the state court err in pronouncing that judgment? Is the act in question repugnant to, or consistent with the constitution of the United States? \nThis question was ably argued, and fully considered by the court in the case of Craig v. The State of Missouri, 4 Peters 410. In that case, a majority of the court were of opinion that the act was repugnant to the constitution; and the judgment of the state court was reversed. That decision is expressly in point, and on its authority the judgment in this case also must be reversed and the cause remanded, that judgment may be rendered for the defendant in that court, the plaintiff in error. \nThis cause came on to be heard on the transcript of the  record from the supreme court of the state of Missouri for the fourth judicial district, and was argued by counsel; on consideration whereof, this court is of opinion that there is error in the rendition of the judgment of the said court, in this, that in affirming the judgment rendered by the circuit court of the county of Cape Girardeau, in the state of Missouri, that court has given an opinion in favour of the validity of the act of the  legislature of Missouri, passed on the 27th of June 1821, entitled \"an act for the establishment of loan offices,\" which act is, in the opinion of this court, repugnant to the constitution of the United States: whereupon it is considered by the court, that the said judgment of the said supreme court of the state of Missouri for the fourth judicial district, ought to be reversed and annulled; and the same is hereby reversed and annulled, and the cause remanded to that court, with directions to enter judgment in favour of the defendant to the original action. \n \n\n ", " \nOpinion \n\n \n \n  Mr Chief Justice MARSHALL delivered the opinion of the Court. \nThe bill filed in this case is for the foreclosure of a mortgage, dated on the 4th of August 1809, to secure the payment of three promissory notes, given by the mortgagor John Peter, to the mortgagee Thomas B. Beale, the testator of the complainants. \nThe mortgaged premises were a house and several lots in Georgetown, which the mortgagor afterwards, on the 16th of  April 1810, sold and conveyed to Elizabeth Peter, who then paid the purchase money. The bill is filed in 1821 against John Peter and Elizabeth Peter. Soon after the service of process, Elizabeth Peter departed this life, and the suit was revived against her devisees. These defendants, in their answer, do not admit the mortgage, and  require proof of its existence. \nThe proof offered by the plaintiffs is an office copy of the deed, and the first question in the cause is on the admissibility of this copy. \nThe law of Maryland is the law of this part of the District of Columbia. \nThe acts of 1715 and of 1766 require that all conveyances of land shall be enrolled in the records of the same county where the lands, tenements or hereditaments conveyed by such deed or conveyance do lie, or in the provincial court, as the case may be. The courts of Maryland are understood to have decided, that copies of deeds thus enrolled may be given in evidence. \nIn a case reported, 6 Harris and Johnson 276, the defendant offered in evidence the record of a deed, to the admission of which the plaintiff objected; but the court overruled the objection. A bill of exceptions was taken, and the judgment, which was in favour of the defendant, was carried before the court of appeals. The counsel for the plaintiff in error contended, that as the acts requiring the enrolment of conveyances do not say that a copy of the enrolment shall be evidence, the general principle of law is, that the deed itself, unless shown to have been lost, must  be produced. \nChief Justice Buchanan, delivering the opinion of the court, said, this case comes before us on three bills of exceptions. The first presents the question, whether the enrolment of a deed of bargain and sale is competent evidence of title to lands in the trial of an action of ejectment, or whether the original must be produced? The court before whom the cause was tried, decided that it was, and that the original need not be produced; and certainly it is too late, at this day, to question the correctness of that decision. Copies of deeds that are not required to be enrolled, cannot be admitted in evidence; but deeds of bargain and sale are, by the laws of the state, required  to be enrolled, and by the uniform tenor of the decisions of the courts of the state, exemplifications of records of deeds of bargain and sale are as good and competent evidence as the originals themselves. \nIn the circuit court, the plaintiff offered testimony to account for the absence of the original deed. Objections were made to the reception and sufficiency of this testimony; but as, by the settled law of Maryland, the copy of the deed was admissible without proving the loss of  the original, it is unnecessary to examine the validity of these objections. \nThe original existence of the mortgage being established, we proceed to inquire into the validity of the objections raised to its being still in force, so as to avail the plaintiffs in the circuit court. These objections are, \n1st. That it has been released. \n2d. That the silence of the said mortgagee, during his whole life, respecting his claim, thus concealing it from Elizabeth Peter for more than eleven years, whereby she and her representatives have lost all possibility of recovering the purchase money from John Peter; has forfeited his right, both in law and equity, to proceed against the mortgaged premises. \nThe instrument by which, as the defendants in the court below contend, this debt was released, is dated the 27th of April 1820. It was signed and sealed by several of the creditors of the mortgagor, and among others, by Thomas B. Beale the mortgagee. \nJohn Peter, who was engaged extensively in commerce, had sustained heavy losses by fire. Several of his friends and creditors agreed to receive a conveyance of all his remaining property, to be distributed rateably among them, and to advance him  a considerable sum of money to set him up again in business. The defendants in error allege, that this agreement was on the condition, that all his creditors should sign a release of his debts, so as to leave his future acquisitions exonerated from their claims; and that some of his creditors refused to sign the release, in consequence of which refusal the whole became inoperative. \n The deed conveying his property to a trustee for the use of his creditors, and the instrument of release, were both produced, and appear in the record. The deed of release enumerates  the creditors of John Peter, some of whom have not executed it. It is absolute on its face, and the plaintiffs in error deny that it was intended to be conditional. They also contend, that no parol evidence is admissible to very a written contract, by introducing into it a condition which entirely changes its character. The argument has turned chiefly on the admissibility of this testimony. The court will not inquire, whether the parol evidence offered in this case can be introduced to vary the contract, because a preliminary question arises to which the testimony is, they think, certainly applicable.  That question is, Has the contract been executed? It is set up by the defendants in their answer, and the general replication puts it in issue. It was therefore incumbent on those who sought to avail themselves of it to prove it. \nThomas Nevit, the subscribing witness to the signature of Thomas B. Beale, has not been examined. If this omission can be accounted for, inferior evidence would undoubtedly be admissible to establish this all important fact; but the whole of this evidence must be examinable. The delivery itself, and the circumstances under which it was made, are open to both parties. The questions whether the instrument ever became a deed; whether it was delivered as an escrow, whose completion depended on subsequent events, which never happened, or was a complete contract when signed by those whose signatures are affixed to it; are entirely distinct from the question how far a written contract may be varied by parol evidence. \nThe plaintiffs in error rely on the fact, that the instrument was left in possession of Mr Peter. This circumstance is certainly entitled to consideration; but it is not conclusive. It is open to explanation; and all the testimony shows, that  it was placed in his hands to obtain the signature of his creditors. Clemen Smith expressly avers it. \nThe deposition of Mr John Peter was taken, on the part of the plaintiffs in error, for the purpose of showing, among other things, that the release was unconditional. But he is a party to the suit on the record, and his deposition is not admissible. \nThe deposition of George Peter, one of the creditors of John Peter who executed the deed of release, is also taken for the same purpose. He was one of the devisees of Elizabeth Peter;  but released his interest in the property before he gave his deposition. He also is a party on the record, and this objection is made to his testimony. \nAll objections to the competency and admissibility of these depositions, were reserved by the defendants in error, and may be now made. They cannot therefore be read. \nThe defendants in error produced the record of a suit in chancery, in which John Peter and George Peter, among others, were plaintiffs, for the purpose of showing, that the release was not fully executed. But the devisees of Elizabeth Peter were not parties to that suit, and cannot be affected by it. They also produced several  depositions. \nFrancis Dodge was one of the creditors of John Peter, but did not execute the release. He was applied to by Mr Peter to sign it, who stated, as well as the deponent recollects, \"that if any one of his creditors objected to sign, the whole arrangements would fail.\" \nClement Smith, who was trustee of the effects of John Peter which was assigned for the benefit of his creditors, was asked, \"Was it not a part of the said scheme, that it should be inoperative and void in respect of all parties, including the said John Peter, his friends, and releasing creditors, in case any of his creditors should refuse to release said John Peter from his debts?\" He says, \"I answer without hesitation, that such was my impression. I did then, and do now, believe that it was so understood by all the parties, who on that condition alone signed the release.\" This witness signed the deed of release as attorney for some of the releasing creditors. He also states several circumstances confirmatory of the opinion, that the release was not to take effect unless signed by all the creditors of John Peter. \nThe record also contains two letters, addressed while the transaction was depending, to William  Fowle & Co., who were among his creditors. \nThe first is dated the 25th of April 1820. In that, speaking of his friends, he says, \"They have come forward and agreed to loan me a cash capital of fifteen thousand dollars; but on the special condition that I obtain a release from all my creditors, and keep my old and new business entirely separate.\" \n His second letter, dated the 28th of April expresses his regret that William Fowle & Co were not at liberty to sign the release; repeats the idea, that his friends, who had promised him a loan of fifteen thousand dollars, had made a condition, that he should obtain a release from all his creditors; and after renewing his application respecting the release from Fowle & Co. adds, \"every day's delay may diminish the zeal of my friends, therefore let me hear from you by return of mail, with an authority, I hope, to Clement Smith to release as it respects me.\" Clement Smith says that \"J. Peter called on him for the notes and funds which his friends had deposited with Smith, to be delivered to Peter, when the condition on which they were to be delivered should be performed. The deponent declined complying with this request, because  he understood that some of the creditors had refused to sign the release.\" He left the room, and returned in a few moments with a letter in his hand, and said, \"The business is all at an end.\" \"Mr Fowle, or some other person to whom he had written, having refused to sign or release his debt.\" \nThe letter to Mr Fowle, and that part of the deposition of Mr Smith which has just been cited, refer particularly to the contract for advancing money to enable Mr Peter to recommence business; but they are not without influence on the question, whether the release was completely executed. That instrument was dated on the 27th of April 1820. It purports to be made between John Peter and his creditors, indorsers, and sureties; that is, all his creditors, &c. It states the assignment made by Peter of all his remaining effects to Clement Smith, for their benefit; their purpose to advance  him a sum of money, that he may again go into business; but their unwillingness to do so, so long as the new capital of the said J. P. may be liable to his former debts; that they \"are willing, in consideration of the premises, to release him from all his debts and liabilities, so that he may hold  his future property and stock in trade exempt from their respective claims.\" After reciting the names of the creditors, and stating the amount of their several claims, it proceeds to say, that \"in consideration of the premises, the creditors, &c., have released, &c., and do release, &c., the said John Peter, his heirs, &c., from all their aforesaid several claims, &c.\" The same instrument proceeds to appoint Clement  Smith, who is a party thereto, trustee of all the estate and effects assigned by John Peter, for their benefit. \nThe release is in consideration of the assignment. The advance of money and the release are obviously parts of the transaction, and are closely connected with each other. The purpose intended by all those who signed the release could not be accomplished unless it should be signed by all. \nIt is in evidence too, that the failure of the release prevented the trustee from carrying the deed of assignment which constituted its consideration, into execution. \nOn a full consideration of these circuinstances, we are of opinion, that the release was never fully executed, and did not become the deed of the parties. \nThe plaintiffs in error also contend, that  Thomas B. Beale, by his conduct in his lifetime, forfeited his right to enforce the payment of the mortgage debt against the said Elizabeth Peter, or her representatives. The answer alleges, 1st. That though he lived more than eleven years after the execution of the mortgage, he never did assert any claim, or even intimate to the said Elizabeth, or to any of her friends or advisers, the existence of such claim. \n2dly. That by concealment of the said mortgage debt, lapse of time, all collusion with th said John, in the said sale to said elizabeth, he had his representatives have lost all claim, either in law or in quity. \nThese objections, it may be observed, cannot be connected with the release. That bears date in 1820, and the mortgage deed was executed in 1809. If, therefore, he never did assert any claim, or intimate its existence to the said Elizabeth or her friends, he was not restrained from doing so by having released it. But the mortgage deed was recorded, and this is considered in law, as notice to all the world, and dispenses with the necessity of personal notice to all the world, and dispenses with the necessity of personal notice to purchasers. A deed cannot with  any propriety be said to be concealed, which is placed upon the public record, as required by law; nor can a previous conveyance and delivery of title deeds to a purchaser, be justly denominated collusion, because a subsequent incumbrance is taken on the same property. Common prudence would have directed Mrs Peter to search the records of the county, before she paid the purchase money. Had she done so, she would  have found the deed to Mr Beale. It is not in proof that he has done any act to deceive or mislead her. He has been merely silent respecting a deed which was recorded as the law directs. \nWe are opinion that there is no error in the decree of the circuit court. \nIt is affirmed, with costs. \nThis cause came on to be heard on the transcript of the record from the circuit court of the United States, for the District of Columbia, holden in and for the county of Washington, and was argued by counsel; on consideration whereof, it is the opinion of this court, that there is no error in the decree of the said circuit court in this cause. Whereupon, it is considered, ordered and decreed by this court, that the decree of the said circuit court in this cause be, and the  same is hereby affirmed with costs and damages, at the rate of six per cent per annum. \n \n\n ", " \nOpinion \n\n \n \n  Mr Chief Justice MARSHALL delivered the opinion of the Court. \nThis is an appeal from a decree pronounced by the circuit court of the United States for the District of Columbia, sitting in chancery, for the county of Alexandria. \nA subpoena, which was regularly issued,  was served on some of the defendants; after which the record states, that the complainant appeared by his attorney, and filed his bill, which was taken for confessed against those defendants on whom process was served. The clerk certifies, that no bill appears among the papers in the cause. \nSeveral answers are then filed, which purport to be answers to a bill filed, not by the plaintiff, Roderick Burt, but by Romulus Riggs. The record contains several accounts, and a report by certain trustees of an unchartered bank, the members of which, as may be inferred from the statements on the record, are the defendants in this case, against whom the suit is brought, to recover a note or notes held by the plaintiff. The court then proceeds to render a decree in the cause, from which the defendants have prayed an appeal to this court. \nThere being no bill, the court cannot inquire into the merits of this decree. The regular course of proceeding would be, on the suggestion of diminution, to award a certiorari for a fuller record. But no counsel appears to suggest diminution, or ask for a certiorari; and the court is satisfied that no fuller record could be brought up. \nIn the year 1817,  several suits were brought against sundry individuals who had associated to form a bank called the Merchants  Bank of Alexandria. The proceedings were regularly carried on in one of them, brought by Romulus Riggs; and a decree was pronounced by the court, from which the defendants appealed. On a hearing, the decree was reversed, 1 and the cause remanded for further proceedings, in conformity with certain principles prescribed in the decree of reversal. It appears that decrees were pronounced in all the causes, though regular proceedings were had only in the case of Romulus Riggs. Under such circumstances the court can only reverse the decree for want of a bill. Under the particular circumstances, the whole business appearing to have been conducted in the confidence that the pleadings in the case of Romulus Riggs could be introduced into the other causes, the case is remanded to the circuit court, with directions to allow a bill to be filed, and to proceed thereon according to law. \nThis cause came on to be heard on the transcript of the record from the circuit court of the United States, for the District of Columbia, holden in and for the county  of Alexandria, and was argued by counsel; on consideration whereof, it is the opinion of this court, that the decree of the said circuit court, under the circumstances of the case, should be reversed, for the want of a bill; and that the cause should be remanded to the said court, with directions to allow a bill to be filed, and to proceed thereon according to law. Whereupon it is considered, ordered and decreed by this court, that the decree of the said circuit court in this cause be, and the same is hereby reversed for want of a bill; and that this cause be, and the same is hereby remanded to the said circuit court, with directions to allow a bill to be filed in this cause, and to proceed thereon according to law. \n \n\n ", " \nOpinion \n\n \n \n  Mr Chief Justice MARSHALL delivered the opinion of the Court. \nIn pursuance of a warrant of inquisition issued at the instance of the Chesapeake and Ohio Canal Company, by John Cox, a justice of the peace, in and for the county of Washington, in the District of Columbia, and addressed to the marshal of the said district, an inquest of office was held by the said marshal,  on certain lands in the said warrant mentioned, lying in the said county. The inquisition of the marshal and jurors, returned to the circuit court for the county of Washington, estimated the value of the lands in the warrant mentioned, and all the damages that the owners thereof would sustain by cutting the said canal through the said land, at one thousand dollars. Upon the return of the said warrant, the Chesapeake and Ohio Canal Company by their counsel, moved the court for an order to have the same affirmed and recorded, unless good cause  be shown to the contrary. At a subsequent day, the Union Bank of Georgetown appeared by attorney, and filed certain objections to the said inquisition, which being argued,  it was considered by the court, that the said inquisition be quashed; which judgment was brought before this court, by writ of error. \nThis proceeding is in conformity with the charter of the Chesapeake and Ohio Canal Company, which was originally passed by the legislature of Virginia, in January 1824; and afterwards by the legislature of Maryland, in December of the same year. The act of Virginia was ratified and confirmed by the congress of the United States, in March 1825; so far as may be necessary for enabling the company formed by authority of the act, to carry into effect the provisions thereof in the District of Columbia. \nThe charter empowers the president and directors of the company \"to agree with the owners of any land through which the said canal is intended to pass, for the purchase, or use and occupation thereof; and in case of disagreement, to apply to a justice of the peace of the county in which the land may lie, for a warrant of inquisition, on which such proceedings are directed as have been had in this case. The officer is to return this inquisition to the clerk of his county, and unless good cause be shown against it, it shall be affirmed by the court and recorded;  but if the said inquisition should be set aside, or if, from any cause, no inquisition shall be returned to such court within a reasonable time, the said court may, at its discretion, as often as may be necessary, direct another inquisition to be taken, in the manner above prescribed.\" \nBefore entering on the merits of the judgment of the circuit court for quashing this inquisition, a preliminary question is made to the jurisdiction of this court. Its appellate jurisdiction is extended by the act of congress, creating the circuit court for the district, to \"any final judgment, order or decree, in said circuit court, where the matter in dispute, exclusive of costs, shall exceed the value, &c.\" \nThe order or judgment in quashing the inquisition in this case, is not final. The law authorises the court, \"at its discretion, as often as may be necessary, to direct another inquisition to be taken.\" The order or judgment, therefore, quashing  the inquisition, is in the nature of an order setting aside a verdict, for the purpose of awarding a venire facias de novo. \nThe writ of error is to be dismissed, the court having no jurisdiction of the cause. \nThis cause came on to be heard  on the transcript of the record from the circuit court of the United States, for the District of Columbia, holden in and for the county of Washington, and was argued by counsel; on consideration whereof, it is considered, ordered and adjudged by this court, that this writ of error be, and the same is hereby dismissed, for want of jurisdiction. \n \n\n ", " \nOpinion \n\n \n \n  Mr Chief Justice MARSHALL delivered the opinion of the Court. \n This appeal is from a decree of the court of the United States for the district of Louisiana. The first error assigned in the proceedings is, that the petition, which, in the practice of Louisiana, is substituted for a declaration, does not show, with sufficient certainty, that the parties were within the jurisdiction of the court. If this objection be well founded, it is undoubtedly fatal. \nThe petition avers, that the plaintiff, Richard Raynal Keene, is a citizen of the state of Maryland; and that James Brown, the defendant, is a citizen or resident of the state of Lousiiana, holding  his fixed and permanent domicil in the parish of St Charles. The petition, then, does not aver positively, that the defendant is a citizen of the state of Louisiana, but in the alternative, that he is a citizen or a resident. Consistently with this averment, he may be either. \nThe additional words of description, \"holding his fixed and permanent domicil in the parish of St Charles,\" do not aid this defective description. A citizen of the United States may become a citizen of that state in which he has a fixed and permanent domicil; but the petition does not aver that the plaintiff is a citizen of the United States. The question is, whether the jurisdiction of the court is sufficiently shown by these averments. \nThe constitution extends the judicial power to \"controversies between citizens of different states;\" and the judicial act gives jurisdiction, \"in suits between a citizen of the state where the suit is brought, and a citizen of another state.\" \nThe decisions of this court require, that the averment of jurisdiction shall be positive, that the declaration shall state expressly the fact on which jurisdiction depends. It is not sufficient that jurisdiction may be inferred argumentatively  from its averments. \nIn Bingham v. Cabot et al., 3 Dall. 382, 1 Cond. Rep. 170, the court held clearly, that it was necessary to set forth the citizenship (or alienage, when a foreigner was concerned) of the respective parties, in order to bring the case within the jurisdiction of the court, and that the record was, in that respect, defective. \nIn Abercrombie v. Dupuis and another, 1 Cranch 343, the plaintiffs below aver, \"that they do severally reside without  the limits of the district of Georgia, to wit, in the state of Kentucky.\" The defendant is called \"Charles Abercrombie, of the district of Georgia, aforesaid.\" The judgment in favour of the plaintiff below was reversed on the authority of the case of Bingham v. Cabot. \nIn Wood v. Wagnon, 2 Cranch 9, the judgment in favour of the plaintiff below wasreversed, because his petition did not show the jurisdiction of the court. It stated the plaintiff to be a citizen of the state of Pennsylvania, and James Wood, the defendant, to be \"of Georgia, aforesaid.\" \nCapron v. Vanorden, 2 Cranch 126, was reversed, because the declaration did not state the citizenship or alienage of the plaintiff in the circuit court. \nThe same principle  has been constantly recognized in this court. \nThe answer of James Brown asserts, that botn plaintiff and defendant are citizens of the state of Louisiana. \nWithout indicating any opinion on the question, whether any admission in the plea can cure an insufficient allegation of jurisdiction in the declaration, we are all of opinion that this answer does not cure the defect of the petition. If the averment of the answer may be looked into, the whole averment must be taken together. It is, that both plaintiff and defendant are citizens of Louisiana. \nThe decree of the court for the district of Louisiana is to be reversed, that court not  having jurisdiction; and the appeal to be dismissed. \nThe cross appeal, Keene v. Brown, is to be dismissed, the court having no jurisdiction. \nThis cause came on to be heard on the transcript of the record from the district court of the United States, for the castern district of Louisiana, and was argued by counsel; on consideration whereof, it is the opinion of this court, that the said district court could not entertain jurisdiction of this cause, and that, consequently, this court has not jurisdiction in this cause, but for the purpose  of reversing the judgment of the said district court entertaining said jurisdiction: whereupon, it is ordered and adjudged by this court, that the judgment of  the said district court be, and the same is hereby reversed, and that this writ of error be, and the same is hereby dismissed, for the want of jurisdiction. All of which is hereby ordered to be certified to the said district court, under the seal of this court. \n \n\n ", " \nOpinion \n\n \n \n  Mr Chief Justice MARSHALL delivered the opinion of the Court. \nThis is an appeal from a decree pronounced by the United States court for the District of Columbia, sitting in chancery, for the county of Washington. \nThe Bank of the United States and others, alleging themselves to  be creditors of Abner Ritchie deceased, instituted this suit in chancery against John T. Ritchie administrator, and one of the heirs of the said Abner, and against John T. Ritchie, Jun. and others, who were the infant heirs of the said Abner, praying that his real estate may be subjected to the payment of the debts due to them, and that so much of the said estate might be sold as would satisfy their claims. \nThe bill charges, that Abner Ritchie died, possessed of a considerable estate, not having left personal estate sufficient to pay his debts. \nThe subpoena was returned, executed on John T. Ritchie, the other defendants not found. On being called, they appeared by attorney, whereupon, on motion of the plaintiffs,  Thomas Turner was appointed guardian to appear and answer for the infant defendants. The infant defendants answer that, according  to the belief and knowledge of their guardian, the said claims are, as alleged in said bill of complaint, due and owing to the several complainants; and that Abner Ritchie did die, leaving personal property insufficient for the payment of his debts, having, as is alleged, real property, & C; and that they have no objection  to the sale of a part thereof, sufficient to pay his debts. The answer is not sworn to by the guardian. \nThe answer of John T. Ritchie administrator, and one of the heirs of Abner Ritchie, admits that his intestate died considerably indebted; suggests that the claims of the compllainants should be referred to an auditor, alleges that he is himself a creditor, and that the personal assets of his testator are insufficient for the payment of his debts. He is willing that the real estate should be sold, and the proceeds applied to the payment of debts. \nThe cause came on to be heard by consent, and on the 21st day of June 1826, the court also by consent of parties, decreed that the real estate of Abner Ritchie deceased, or such part thereof as may be necessary for the purpose, be sold for the payment of the debts due to the complainants, and of such other creditors as should come in, &c., within the time prescribed in the decree. A trustee was appointed to make the sale, who, after giving bond with surety, and advertising the real property left by the said Abner, or so much thereof as might be deemed sufficient to satisfy his debts, at least three weeks, should proceed to sell the same  to the highest bidder; one fourth of the purchase money to be paid in cash, and the residue in four equal instalments, at six, twelve, eighteen and twenty-four months; for which the trustee is to take the notes of the purchaser, the property to stand as security for the payment of the purchase money. And, upon payment of said notes and interest, the said trustee, and the heirs of Abner Ritchie, as they respectively attain the age of twenty-one years, shall convey in fee. The trustee was directed to report his proceedings to the court at the succeeding term, and to pay into court the net proceeds of the first payment, and on payment of the balance, was to convey. The court appointed Joseph Forrest to report on such claims on the estate of Abner  Ritchie, as should be proved to him before the first Monday in the succeeding November, and the administrator of Abner Ritchie was directed to exhibit to him the settlement of his administration account with the orphan's court. \nOn the 28th of March 1828, the trustee reported, that after giving bond, and advertising as required by the decree, he had, on the 17th day of July 1826, sold the property at public sale, to John T. Ritchie,  the highest bidder, for the sum of two thousand seven hundred and fifteen dollars. That Mr Ritchie, having produced satisfactory evidence of his having paid all the debts, and becoming the only creditor to an amount exceeding the amount of sales, he had made to him a deed conveying the property. \nOn the 10th of June 1828, the auditor made his report, in which he disallows several claims to a large amount, made by John T. Ritchie, against the estate of Abner Ritchie. \nIn 1828 some of the infant heirs of Abner Ritchie, by their next friend, filed their bill of review against the complainants in the original suit, and against John T. Ritchie, the administrator of Abner Ritchie, and the purchaser of his real estate, and against such of the other defendants as do not become plaintiffs; in which they state the proceedings in the original suit, and assign various errors in the decree; for which, and for other errors therein, they pray that the same may be reviewed and reversed, that the deed made by the trustee to the defendant John T. Ritchie, and all deeds made by him to the other defendants, may be declared void and that the sales made by the trustee may be set aside. \nThe infant defendants  answer by their guardian, and admit the allegations of the bill. The other defendants also answer, and insist on the original decree. \nThe cause came on to be heard in May term 1830, by consent, when the court, being of opinion that there was manifest error in the original proceedings and on the face of the decrees, did adjudge, order and decree, that the same should be reversed and annulled, and that all proceedings of the trustee therein named, and all sales and deeds made by him by virtue thereof, to the defendant John T. Ritchie, or any other person, and all deeds made by the said John T. Ritchie of the said real estate, to either of the other defendants, or for their use,  so far as respects the interest of any of the heirs of Abner Ritchie, except the said John T. Richie, Senior, should be utterly null and void, and that the complainants be restored to their original estates. \nFrom this decree the defendants appealed to this court. A doubt has been suggested, whether a bill of review could be sustained in this case. The parties proceeded under an act of the legislature of Maryland, passed in the year 1785, ch. 72, entitled, \"an act for enlarging the power of the  high court of chancery.\" The fifth section enacts, \"that if any person hath died, or shall hereafter die, without leaving personal estate sufficient to discharge the debts by him or her due, and shall leave real estate, which descends to a minor, or person being idiot, lunatic, or non compos mentis, or shall devise real estate to a minor, or person being idiot, lunatic, or non compos mentis, or who shall afterwards become non composmentis, the chancellor shall have full power and authority, upon application of any creditor of any deceased person, after summoning such minor, and his appearance by guardian, to be appointed as atoresaid, and hearing as aforesaid, or after summoning the person being idiot, lunatic, or non composmentis, and his appearance by trustee, trustees, or committee, to be appointed as aforesaid, and hearing as aforesaid, and the justice of the claim of such creditor is fully established; if, upon consideration of all circumstances, it shall appear to the chancellor to be just and proper that such debts should be paid by a sale of such real estate, to order the whole, or part of the real estate so descending or devised, to be sold, for the payment of the debts due  by the deceased.\" \nFrom the language of this section some doubt was entertained, whether the act conferred a personal power on the chancellor, or was to be construed as an extension of the jurisdiction  of the court. If the former, it was supposed that a bill of review would not lie to a decree made in execution of the power. On inquiry, however, we are satisfied, that in Maryland, the act has been construed as an enlargement of jurisdiction, and that decrees for selling the lands of minors and lunatics, in the cases prescribed by it, have been treated, by the court of appeals of that state, as the exercise of other equity powers. \n We proceed then to examine the original decree, and the errors assigned in it. \nIn all suits brought against infants, whom the law supposes to be incapable of understanding and managing their own affairs, the duty of watching over their interests devolves, in a considerable degree, upon the court. 1 They defend by guardian to be appointed by the court, who is usually the nearrest relation not concerned, in point of interest, in the matter in question. 2 It is not error, but it is calculated to awaken attention that, in this case,  though the infants, as the record shows, had parents living; a person not appearing from his name, or shown on the record to be connected with them, was appointed their guardian ad litem. \nHe was appointed, on the motion of the counsel for the plaintiffs, without bringing the minors into court, or issuing a commission for the purpose of making the appointment. This is contrary to the most approved usage, 3 and is certainly a mark of inexcusable inattention. The adversary counsel is not the person to name the guardian to defend the infants. \nThe answer of the infant defendants is signed by their guardian, but not sworn to. It consents to the decree for which the bill prays, and, without any other evidence, the court proceeds to decree a sale of their lands. This is, we think, entirely erroneous. The statute under which the court acted, authorises a sale of the real estate, only where the personal estate shall be insufficient for the payment of debts, when the justice of the claims shall be fully established, and when, upon consideration  of all circumstances, it shall appear to the chancellor, to be just and proper that such debts should be paid, by a sale of the real estate. Independent of these special requisitions of the act, it would be obviously the duty of the court, particularly in the case of infants, to be satisfied on these points. \nThe insufficiency of the personal estate of Abner Richie to pay his debts, is stated in the answer of his administrator; but is not proved, and is admitted in that of the guardian of the  infants, but his answer is not on oath; and if it was, the court ought to have been otherwise satisfied of the fact. \nThe justice of the claims made by the complainants, is not established otherwise, than by the acknowledgement of the infant defendants in their answer, that, \"according to the belief and knowledge of their guardian, they are, as alleged in said bill, respectively due.\" \nThe court ought not to have acted on this admission. The infants were incapable of making it, and the acknowledgement of the guardian, not on oath, was totally insufficient. The court ought to have required satisfactory proof of the justice of the claims, and to have established such as were just,  before proceeding to sell the real estate. \nWithout knowing judicially that any debts existed, or the amount really due, or the value of the real estate, the court directed, \"that the real estate of the said Ritchie, or such part thereof as may be necessary for the purpose, be sold, for the payment of debts of said Richie to complainants, and to such other creditors of said Ritchie, as shall come in and bear their proper proportions of the costs and expenses of this suit, and shall exhibit their claims, with the proper proof thereof, to the auditor hereinafter appointed, &c.\" The decree does not postpone the sale until the claims, should be exhibited to the auditor; and, consequently, so far as other creditors were concerned, leaves the trustee without information as to the quantity of property it would be his duty to sell. He accordingly sold the whole estate. \nThe eighth section of the law which authorizes the sale of real estate descending to minors, enacts, \"that all sales made by the authority of the chancellor under this act, shall be notified to, and confirmed by the chancellor, before any conveyance of the property shall be made.\" This provision is totally disregarded. The  sale was never confirmed by the court; yet the conveyance has been made. It is a fatal error in the decree, that it directs the conveyance to be made on the payment of the purchase money without directing that the sale shall first \"be notified to, and approved by\" the court. \nThere are radical errors apparent on the face of the decree, which show that the interests of the infants have not been protected aa is required by law and usage; and that great injustice  may have been done them. The decree, therefore, ought to have been reversed. \nThe appellants contend, that, even admitting the propriety of reversing the original decree, the circuit court ought to have stopped at that point, and not to have set aside the conveyances which were made under its authority. \nAll the persons affected by the decree now under consideration, were parties when it was made. The bill of review prays for the relief which the court granted, and states all the facts which entitled them to that relief.The power of the court was, we think, competent to grant it; if it was required by the principles of equity and justice.The relief might be very imperfect, if, on the reversal of a decree, the party  could, under no circumstances, be restored to the property which had been improperly and irregularly taken from him. Cooper, in his Equity Pleading, page 95, says, \"the bill may pray, simply that the decree may be reviewed and altered, or reversed in the point complained of, if it has not been carried into execution; but if the decree has been carried into execution, the bill should also pray the further decree of the court, to put the party complaining of the former decree into the situation in which he would have been, if that decree had not been executed.\" \"A supplemental bill may likewise be added, if any event has happened which requirest it.\" \nIn addition to these general principles which  sustain the rule laid down by Cooper, circumstances exist, which require, in an eminent degree, its application to this particular case. The decree itself was disregarded by the trustee, in executing the conveyance. It directed him to receive one fourth of the purchase money in cash, and the residue in four equal instalments. The first payment is to be brought into court, and he is to make the conveyance on receiving the last. He is not authorised to pay the money to the creditors.  The court has not entrusted to him the right of deciding on the debts, and disposing of the purchase money. He is only to receive it before he conveys; and, consequently, should hold it subject to the order of the court. \nIt does not appear that he has ever received a cent. He undertakes to settle the account of Mr Ritchie, the purchaser, and to convey the property to him, in violation of the decree;  on being satisfied by him that he had paid all the debts, and was himself a creditor to an amount exceeding the purchase money. \nHe had no right to be satisfied of these facts. The court had not empowered him to inquire into, or decide on them. He has transcended his powers; and with the knowledge of the purchaser, and in combination wit him, has executed to him a deed which the law did not authorise. This whole proceeding was irregular, and ought to be set aside. The plaintiffs in the original suit will then be at liberty to prosecute their claims according to law. \nThe court is of opinion, that there is no error in the decree of the circuit court, and that it be affirmed with costs. \nThis cause came on to be heard on the transcript of the record from the circuit court  of the United States for the district of Colunibia, holden in and for the county of Washington, and was argued by counsel; on consideration whereof, it is ordered, adjudged and decree by this court, that the decree of the said circuit court, in this cause be, and the same is hereby affirmed with costs. \n \n\n ", " \nOpinion \n\n \n \n  Mr Chief Justice MARSHALL  delivered the opinion of the Court. \nThis was an action of ejectment, brought by the lessee of Amos Binney, in the court of the United States for the district of Columbia, sitting in the county of Washington. It was agreed by the parties that the declaration should be amended, by adding a demise from J. K. Smith, one from the heirs of Amos Cloud, and one from John Way. This amended declaration, however, does not appear in the record, and was not filed in the circuit court. \nThe following statement is made, as forming a case agreed: \nThe plaintiff's title depends on the title papers herewith shown to the court; the due authentication of which is admitted,  viz. the patents for Amsterdam and White Haven, and the several mesne conveyances, decrees, &c. from the patentees down to the plaintiffs; and it is admitted that the plaintiff's lessor, J. K. Smith, was in possession in June 1812, when the condemnation hereinafter mentioned was made of the land comprized within said condemnation, and that it is a part of the said two tracts of land. \nIt is admitted that the Potomac Company, in the year 1793, condemned certain lands, as appears by their said inquisition and condemnation  and plot hereto annexed, for their canal and locks through the aforesaid tracts of land, and other adjacent tracts, as noted on said plot. \nAnd it is admitted, that on the 23d of June 1812, an inquisition was held, and condemnation had by said company, as appears by the papers hereto annexed; and it is admitted that the location of the land so last condemned, and  the new locks erected thereon, and the old locks erected on the land condemned, as aforesaid, in 1793, is truly shown by a plot thereof made out by Thomas F. Percell and William Bussard, hereto annexed. \nAnd it is further admitted that the Potomac Company, after said respective condemnation, entered upon the lands so condemned, and erected thereon the locks as shown in the said plot, and continued in possession until transferred to these defendants, the Chesapeake and Ohio Canal Company; which said company have continued in possession ever since. \nUpon which case agreed, it is submitted to the court to say, first, whether the plaintiff has shown title? and, second, whether the condemnation of 1812 aforesaid divested the plaintiff's title, and gave a valid title to the Potomac Company? \nIt is agreed that all the  papers mentioned and referred to in the aforegoing case agreed, may be omitted in the record of this case, and may be used in the supreme court as if contained in the record. \nThe circuit court decided both points in favour of the defendants; and the plaintiffs have brought the cause before this court by writ of error. \nThe abstract laid before the court by consent of parties, does not show a regular title in the plaintiff; and the case does not, we think, find a possession of twenty years, anterior to the  inquisition, which would constitute a title in ejectment. It presents evidence from which a jury might be justified in finding possession; evidence from which possession may be inferred, but the court cannot infer it. \nThe counsel for the plaintiffs in error contend, that the Chesapeake and Ohio Canal Company, who claim their title under the inquest, have admitted it; and are not now at liberty to controvert it. On the influence of the inquest in this cause, some contrariety of opinion prevails among the judges; but the defendants in error have made a preliminary question, which, if decided in their favour, will terminate the present suit. \nThe declaration in ejectment  is dated on the 22d of May 1831, and the judgment was rendered on the 14th of January 1832. The plaintiff in ejectment counts on a demise made by Amos Binney, on the 1st day of January 1828. His title, as shown in the abstract, commenced on the 17th of May 1828, which is subsequent to the demise on which the plaintiff counts. Though the demise is a fiction, the plaintiff must count on one, which, if real, would support his action. \nWe find in the record an entry that the declaration is amended, by adding a demise from J. K. Smith, one from the heirs of Amos Cloud, and another from John Way. These counts, however, do not appear, and the court would feel great difficulty in framing them. \nIf this difficulty could be overcome, the abstract shows that J. K. Smith conveyed all his title on the 17th of May 1828, before this action was commenced. \nIt also shows that the title of Amos Cloud's heirs was conveyed from them by deeds bearing date in 1816 and 1819. \nJohn Way, the remaining lessor of the plaintiff, conveyed his title by deed, dated the 6th of October 1815. \nHad these additional counts been filed, neither of the lessors possessed any title when this ejectment was brought, or  when it was tried. The case, therefore, could not have been aided by counts on demises from them. \nThe counsel for the defendants have insisted, that if the cause cannot be decided on its supposed real merits, it ought to be remanded to the circuit court, for the purpose of receiving such modifications as will bring before this court those questions  of law on which the rights of the parties depend. Where error exists in the proceedings of the circuit court, which will justify a reversal of its judgment, this court may send back the cause, with such instructions as the justice of the case may require.But if, in point of law, the judgment ought to be affirmed, it is the duty of this court of affirm it. 1 We cannot, with propriety, reverse a decision which conforms to law, and remand a cause for further proceedings. \nThe judgment of the circuit court is affirmed with costs. \nThis cause came on to be heard on the transcript of the record from the circuit court of the United States for the district of Columbia, holden in and for the county of Washington, and was argued by counsel; on consideration whereof, it is ordered and adjudged  by this court, that the judgment of the said circuit court be, and the same is hereby affirmed with costs. \n \n\n ", " \nOpinion \n\n \n \n Mr Chief Justice MARSHALL delivered the opinion of the Court. \nThis was the case of a scire facias against devisees to revive a judgment. The acire facias is in its form without precedent, and a demurrer was filed to it. Process on the scire facias issued against four devisees, and service was made upon two only of them. An office judgment was  then taken against all the devisees. The two of them on whom the process was served, afterwards appeared, and the office judgment was set aside as to them, and they then pleaded the statute of limitations. There was a demurrer to the replication and judgment against all the devisees. \nThe present writ of error is brought by Mary Deneale \"and others,\" as plaintiffs; but who the others are cannot be known to the court, for their names are not given in the wirt of error,  as they ought to be. Mary Deneale cannot alone maintain a writ of error on this judgment: but all the parties must be joined and their names set forth, in order that the court may proceed to give a proper judgment on the case. The present writ of error must therefore be dismissed for irregularity; but a new one in due form may hereafter be brought to revise the judgment. \nThis cause came on to be heard on the transcript of the record from the circuit court of the United States for the district of Columbia holden in and for the county of Alexandria, and was argued by counsel; on consideration whereof, it is the opinion of this court, that this writ of error is irregular, and should be dismissed, inasmuch  as it is in the name of \"Mary Deneale and others,\" without naming who those others are; whereupon it is ordered and adjudged by this court, that this case be, and the same is hereby dismissed. \n \n\n ", " \nOpinion \n\n \n \n  Mr Chief Justice MARSHALL delivered the opinion of the Court. \nThe plaintiffs, with several other persons, had, previous to the year 1804, associated with each other under the name of the Marine Insurance Association of Alexandria, for the purpose of making insurances on vessels and cargoes, against sea risks. On the 26th day of June 1804, James Wilson obtained an insurance on the Governor Strong, on a voyage from Norfolk to Liverpool, to the amount of ten thousand dollars. The policy is inserted on the record. It is not a joint contract made by the association as a company, but by each for himself. Each subscribes the sum for which he becomes responsible. James Wilson had purchased the Governor Strong from Alexander Henderson & Co., and appears to have indorsed their notes in the Bank of the United States. After his death, his representatives, in September or October 1805, made a transfer of the vessel to the bank, for the security of that debt. \nSome time after the vessel had sailed, intelligence was received of injury sustained by the Governor Strong, and Wilson claimed from  the insurers a considerable sum on that account, informing them, at the same time, that the money belonged to the bank. Although the insurers were not satisfied of their liability, they agreed to advance their several notes, dated the 25th May 1805, to the said Wilson, payable sixty days after date at the office of discount and deposit, Washington. The  bill charges, that these notes were advanced on condition that the money should be returned to them by the bank, should it afterwards appear that they were not liable for the partial loss sustained by the Governor Strong, and that this agreement was communicated to the bank. These notes were passed to the bank, and paid by the several makers when due. \nIn a suit afterwards brought on the policy for the benefit of the bank, it was determined that the underwriters were not liable for the loss sustained by the Governor Strong; after which, application was made for the return of the money paid on the notes given to Wilson, which the bank refused, alleging, that the money had been paid absolutely on account of the debts due from Alexander Henderson & Co. \nThe charter of the bank having expired, and its affairs being committed  to trustees, the makers of the several notes which have been stated, united in this suit against the trustees. As they were non residents of the district, their property was attached in the hands of the debtors of the bank, who were also made defendants. \nJames Davidson afterwards undertook to perform the decree of the court, and the attachment was discharged. At a subsequent term, Davidson was, by consent, made a defendant, and his answer was received as an answer for the trustees. \nHe says, that in January 1806 the bank received promissory notes from James Wilson, executed to the plaintiffs severally, amounting to two thousand one hundred and twenty-four dollars and four cents, to be placed, when paid, to the credit of Alexander Henderson & Co., on account of a loss by the underwriters.  Should the underwriters not be liable, the notes were to be returned, if unpaid; if paid, the money was to be refunded. These notes, not being paid, were returned. He admits that the notes mentioned in the bill, were deposited on the 30th of May 1805, to go, when paid, to the credit of Alexander Henderson & Co., but has no recollection of any condition respecting their return. An  amended bill was filed, in which the said Davidson was against required to answer more precisely respecting the transaction: to say, whether he was not, at the time, cashier of the office at Washington; to state in what way the notes were deposited in bank on the 30th of May 1805; were they sent in a letter? if so, the defendant is required  to produce it, or a copy of it, and the entry made on the books of the bank in relation to the said notes. \nThe answer of Davidson refers to his former answer respecting the notes deposited on the 30th of May 1805, and says, that he has no other information than is there given. He does not recollect in what manner the notes were transmitted, nor whether they were accompanied by any letter. \"No such letter is now in his possession. No entry was made in the books of the bank in relation to said notes, except that they were to go, when paid, to the credit of Alexander Henderson & Co., to whose credit such of them as were paid were carried.\" \nThe entry on the bank books is made an exhibit, and is as stated in the answer of Davidson. \nA correspondence which took place on this subject with the then president of the office of the bank at  Washington, is contained in the record, and some testimony was taken by the plaintiffs. The letters and the depositions furnish strong presumptive evidence that if the bank supposed the notes to be paid absolutely on account of the debt due from Alexander Henderson & Co., the makers supposed them to be paid conditionally, and that the money was to be refunded, should they not be held responsible for the partial loss sustained by the Governor Strong. \nOn a hearing, the bill was dismissed with costs, and the plaintiffs appealed to this court. \nWhatever might be the condition on which the plaintiffs delivered their notes to Wilson, the bank cannot be affected by it, unless it was communicated to the office. The testimony, that it was communicated, has great plausibility, but when it is recollected that the deposit of January 1806 might be confounded with that of May 1805, we are not satisfied that the testimony ought to countervail the answer of the cashier, and the entry on the books of the bank. We are, however, relieved from the difficulty of deciding on a doubtful fact, by an objection taken by the appellees to the action. \nThe plaintiffs who unite in this suit, claim the return  of money paid by them severally on distinct promissory notes. They are several contracts, having no connexion with each other. These parties cannot, we think, join their claims in the same bill. \n The appellants contend, that several creditors may unite in a suit to attach the effects of an absent debtor. We do not think so. They may file their separate claims, and be allowed payment out of the same fund, but cannot unite in the same original bill. \nThe decree of the circuit court is affirmed with costs. \nThis cause came on to be heard on the transcript of the record from the circuit court of the United States, for the district of Columbia, holden in and for the county of Alexandria, and was argued by counsel; on consideration whereof, it is ordered and decreed by this court, that the decree of the said circuit court in this cause be, and the same is hereby affirmed with costs. \n \n\n ", " \nOpinion \n\n \n \n  Mr Chief Justice MARSHALL delivered the opinion of the Court. \nThis is a writ of error from a judgment of the district court of the United States for the district of Louisiana, rendered on the petition of the United States against Seaman  Field and others, the plaintiffs in error, as syndics or assignees of Lewis E. Brown, an insolvent debtor.The petition states, that Lewis E. Brown, being indebted to the United States on a certain bond, on which judgment had been obtained for a sum stated in the petition, became insolvent on or about the 20th of April 1830, and made a voluntary assignment of all his propertyto his creditors, under the laws of Louisiana; and that the original defendants were appointed syndics or assignees of the creditors; and had received and taken possession of all the property of Brown, and sold and disposed of the same to an amount far exceeding the debt due to the United States; that the defendants, at the time of their receiving and taking possession of the property aforesaid, well knew of the existence of the debt due to the United States; and though the same had been demanded of them, refused to pay it. Several other suits, of a similar nature, were brought for other debts, upon bonds due to the United States by Lewis E. BRown, which were afterwards consolidated with the present suit. Answers were duly put in by the defendants, which admitted the assignment, but denied that the syndics then  had funds applicable to the debt. The cause was finally submitted to the court upon a statement of facts (which is in the case) prepared by the parties; the trial by jury being waived by their consent. \nFrom this statement of facts it appears, that Lewis E. Brown, at the time of his failure and insolvency, on the 26th of May 1830, was surety for one John Brown, on certain custom house bonds, for duties, due at various times between the 26th of August 1830 and the 9th of January 1831; upon all of which bonds judgments were rendered in favour of the United States, before the commencement of the present suit, which was in March 1831. On these judgments writs of fieri facias issued against all the  parties, which were returned by the  marshal nulla bona; and none of them have as yet been paid. John Brown failed and became insolvent; and applied for the benefit of the insolvent act of Louisiana, on the 10th of June 1830. \nThe defendants made sale of Lewis E. Brown's property, on a credit of one, two and three years; and received promissory notes therefor. A part of these notes were paid before the 3d of December 1831; and the residue was secured by mortgage on  the property, and amounted to 24,898 dollars and 60 cents, one half of which fell due on the 31st of July 1832, and the other half on the 31st of July 1833. The United States never, in any manner, appeared in the proceedings had in the parish court, under the laws of Louisiana; in relation to the insolvency of Lewis E. Brown. At the time of his failure, there were certain mortgages and privileged debts on his estate. A part of these, as well as some other debts, had been paid by the assignees, and were stated in the tableau of distribution; which was rendered to and confirmed by the parish court, on the 15th of December 1831, upon due proceedings had thereon. On the 30th of December 1830, the marshal, acting under the writs of fieri facias on several of the judgments against Lewis E. Brown, seized the funds in the possession of the defendants as syndics, and gave notice to them of the seizure thereof to satisfy these judgments respectively. At the hearing of the cause, the court admitted certain evidence to prove that the marshal made a seizure, and gave notice to the defendants that he had seized any funds in their hands to satisfy the judgment on which the present petition was  founded; and an exception, by a bill of exceptions, was taken to such admission. And upon the final hearing, in February 1833, the court gave judgment for the United States, for the amount of all the bonds and the interest due thereon and costs. \nThe claim of the United States to the payment of the debts due to them out of the funds in the hands of the syndics, is founded upon the priority given them by the sixty-fifth section of the duty collection act of 1799, ch. 128; which, in cases of a general insolvency and assignment, like the present, provides that the debts of the United States shall be first satisfied out of the funds in the hands of the assignees. \nThe first objection now taken by the plaintiffs in error, is,  that the order of the parish court, confirming the tableau of distribution, was the judgment of a court of competent jurisdiction, in favour of each creditor whose debt was therein stated; and that the syndics were obliged to pay the proceeds of the sale to such creditors; and the United States, not being named as creditors therein, can have no right to the fund against the other creditors. If at the time of the confirmation of this tableau of distribution,  no debts due to the United States had been known to the syndics, and they had, in ignorance thereof, made a distribution of the whole funds among the other creditors; that might have raised a very different question. But in point of fact, it has not been denied that the syndics, long before that period, had notice of the existence of the debts due to the United States; and the present suit was commenced against them in the preceding March. The United States were, in is true, not parties to the proceedings in the parish court, nor were they bound to appear and become parties therein. The local laws of the state could not, and did not bind them in their rights. They could not create a priority in favour of other creditors in cases of insolvency, which should supersede that of the United States. The priority of the latter attached by the laws of the United States, in virtue of the assignment and notice to the syndics of their debts. And it was the duty of the syndics to have made known those debts in their tableau of distribution, as having such priority. There is no doubt that the mortgages upon particular estates sold, must be first paid out of the proceeds of the sales of those  estates. But if there be any deficiency of the proceeds of any particular estate, to pay the mortgages thereon; the mortgagees thereof cannot come in upon the funds and proceeds of the sales of the other estates, except as general creditors. The district judge was perfectly correct in the views taken by him in his opinion on this subject. \nIt appears from the papers in the record that the whole amount of the proceeds of all the sales exceeds 40,000 dollars, and that the mortgages are about 27,000 dollars; and making allowance for other privileged claims, if any, there will remain a balance in the hands of the syndics (when all the notes for the sales are paid) more than sufficient to pay all the debts due to the United States. But the difficulty is, that the notes for a large amount of their proceeds, viz. 24,898  dollars 60 cents, did not become due until July 1832, and July 1833 (a moiety in each year); the first being after the present suit was commenced, and the latter after the present judgment was rendered. Now the syndics are certainly not liable to the United States for the debts due to them, unless funds have actually come to their hands.The notes for the sales  may all be good, but as one moiety thereof was not paid at the time of the judgment, it does not judicially appear that, even at that time, they had funds out of which the United States were entitled to judgments. If the remaining moiety of the notes has been since paid, the United States will then have a legal claim thereon for their debts. For this reason, the judgment of the district court must be reversed; and the cause sent back for further proceedings. \nIn regard to the bill of exceptions, as the cause was by consent not tried by a jury, the exception to the admission of evidence was not properly the subject of a bill of exceptions. But if the district court improperly admitted the evidence, the only effect would be, that this court would reject that evidence, and proceed to decide the cause, as if it were not in the record. It would not, however, of itself, constitute any ground for a reversal of the judgment.But we are of opinion that the evidence was properly admissible as proof positive to the syndics of the debts due to the United States; and if the fact was material to enable the court to render suitable judgment on the statement of the parties, it is not easy to perceive  why it should have been objectionable. Without this evidence, there seems to be enough in the record to show that the syndics had full notice of the debts due to the United States. They do not  even set up in their answers any want of notice, as a defence. But in the present state of the case, this matter is the less important because they now have the most ample notice of the debts due to the United States; and these will, at all events, be payable out of the residue of the sales when it is received. \nWith the question of costs this court has nothing to do; and as the judgment is reversed for another cause, it becomes immaterial to be considered. \nThis cause come on to be heard on the transcript of the record  from the district court of the United States for the eastern district of Louisiana, and was argued by counsel; on consideration whereof, it is ordered and adjudged by this court, that the judgment of the said district court in this cause be, and the same is hereby reversed, and that this cause be, and the same is hereby remanded to the said district court for further proceedings to be had therein, according to law and justice, and in conformity to the  opinion of this court. \n \n\n ", " \nOpinion \n\n \n \n  Mr Chief Justice MARSHALL delivered the opinion of the Court. \nThis is a scire facias to revive a judgment obtained by the  executors of John Stump against George Deneale, on the 19th of December 1817, in the court of the United States for the county of Alexandria. The writ of scire facias is against the heirs and devisees of Deneale, and was issued on the 17th day of May 1828. The scire facias was returned executed on two of the defendants, the others not found. Two  nihils having been returned against the defendants who were not found, an office judgment was entered against them all. At the succeeding term, Mary Deneale and Nancy P. Deneale, on whom the process had been executed, set aside the office judgment and demurred to the scire facias. The plaintiffs joined in demurrer. The same defendants farther pleaded, \"that the plaintiffs ought not to have or maintain their said execution, because they say that the judgment recited in the said scire facias was rendered more than ten years next prior to the day of the date of the said scire facias.\" The plaintiffs reply, that after the death of the said George Deneale, the plaintiffs issued out of the circuit court of the said District of Columbia held for the county of Alexandria, a scire facias against the said Mary Deneale executrix of the said George Deneale, to show cause, if any she could, why the plaintiffs should not have execution of their judgment aforesaid of the goods and chattels which were of the said George Deneale, and which came to the hands of the said Mary Deneale to be administered. On which scire facias such proceedings were had, that by the judgment of the court it was considered  that the plaintiffs should have execution of their said judgment, &c.; on which said award of execution accordingly, on the 10th day of January 1820, an execution was by the plaintiffs issued out, returnable on the fourth Monday in March 1820, and on which execution the marshal made the following return -- \"no property found to levy this execution upon.\" \nTo this replication the defendants demurred, and the plaintiffs joined in demurrer. \nThe court, overruling the demurrer, both to the scire facias and to the replication, rendered judgment in favour of the plaintiffs against all the defendants. This judgment is brought before this court by writ of error. \nAlthough the scire facias is entirely informal, the court is not satisfied that the demurrer to it ought to be sustained, and  will therefore proceed to inquire whether the judgment be erroneous on other grounds. \nA joint judgment has been rendered against those defendants who were not found, and against those who appeared and pleaded. The law of Virginia, as it stood when jurisdiction over this district was vested in congress, is the law of the courts of Alexandria. \nIn the Revised Code of Virginia, vol. 1, p. 500, sec.  65, it is enacted, that \"on writs of scire facias for the reversal of judgments, no judgment shall be rendered on the return of two nihils, unless the defendant resides in the county, or unless he be absent from the commonwealth and have no known attorney therein. But such scire facias may be directed to the sheriff of any county in the commonwealth wherein the defendantor his attorneyshall reside or be found, which being returned served, the court may proceed to judgment thereupon as if the defendant had resided in the county.\" \nIt does not appear that the defendants did reside in the county, nor does it appear that they were absent from the district. But there is great difficulty in applying this act to writs of scire facias issued in the county of Alexandria. \nWithout deciding whether the office judgment against the defendants, not served with process, be legal or otherwise; the court will proceed to consider the demurrer to the plea of the act of limitations. \nIn the first volume of the Revised Code, p. 389, it is enacted, that \"judgments in any court of record within this commonwealth where execution hath not issued, may be revived by scire facias or an action of debt, brought  thereon, within ten years next after the date of such judgment, and not after.\" \n We are not informed that any decision applicable to the question arising in this case, has ever been made in the courts of the state. We must, therefore, construe the statute without the aid such decision would afford us. It certainly does not apply to any judgment on which an execution has issued: and if the proceedings which have taken place on the judgment obtained against George Deneale in December 1817, be equivalent to an execution, the demurrer to the replication was rightly overruled. \nThose proceedings are a scire facias against his executrix,  and an execution on the judgment rendered against her on that scire facias. The writ of scire facias is no more an execution than an action of debt would have been: and the execution, which was issued on the judgment against the executrix, is not an execution on the judgment against George Deneale. \nIt is understood to be settled in Virginia, that no judgment against the executors can bind the heirs, or in any manner affect them. It could not be given in evidence against them. \nIf the defence set up by the defendants in the district  court had rested on the presumption of payment, the scire facias against the executor would undoubtedly have accounted for the delay, and have rebutted that presumption; but the statute creates a positive bar to proceeding on any judgment on which execution has not issued, unless the plaintiff brings himself within one of the exceptions of the act. Proceedings against the personal representative is not one of those exceptions. We are therefore of opinion that the demurrer to the replication ought to have been sustained, and the judgment must be reversed, and the cause remanded to the circuit court for the county of Alexandria; with directions to enter judgment on the demurrer to the replication of the plaintiffs in favour of the defendants. \nThis cause came on to be heard on the transcript of the record of the United States court for the District of Columbia sitting in the county of Alexandria, and was argued by counsel; on consideration whereof, this court is of opinion that there is error in the judgment rendered by the said court, in this, that the demurrer filed by the defendants in that court to the replication of the plaintiffs filed to the plea of the statute of limitations  pleaded by the said defendants was overruled, whereas it ought to have been sustained. It is therefore considered by this court that the said judgment be reversed and annulled, and the cause remanded to the said court of the United States for the District of Columbia, in the county of Alexandria, with directions to enter judgment on the said demurrer to the replication of the plaintiffs, in favour of the defendants in that court. \n \n\n ", " \nOpinion \n\n \n \n  Mr Chief Justice MARSHALL delivered the opinion of the Court. \nThe title or caption of the bill, is no part of the bill, and does not remove the objection to the defects in the pleadings. The bill and proceedings should state the citizenship of the parties, to give the court jurisdiction of the case. \nThe only difficulty which could arise to the dismissal of the bill, presents itself upon the statement, \"that the defendant is of Philadelphia.\" This, it might be answered, shews that he is a citizen of Pennsylvania. \nIf this were a new question, the court might decide otherwise; but the decision of the court, in cases which have heretofore been before it, has been express upon the point; and the bill must be dismissed for want of jurisdiction. \nThis cause came on to be heard on the transcript of the record from the circuit  court of the United States for the eastern district of Pennsylvania, and was argued by counsel; on consideration whereof, it is the opinion of this court, that the said circuit court could not entertain jurisdiction of this cause, and that, consequently, this court has not jurisdiction in this cause, but for the purpose of reversing the decree  of the said circuit court, entertaining said jurisdiction: whereupon, it is ordered, adjudged and decreed by this court, that the decree of the said circuit court be, and the same is hereby reversed, and that this appeal be, and the same is hereby dismissed. All of which is hereby ordered to be certified to the said circuit court, under the seal of this court. \n \n\n ", " \nOpinion \n\n \n \nMr Chief Justice MARSHALL said: Though the case is not within any rule of this court, yet the court are of opinion, that as the appellant did not enter the appeal at the proper term, the other side ought not to be compelled peremptorily to go on with the cause at this term. \n \n\n ", " \nOpinion \n\n \n \n  Mr Chief Justice MARSHALL delivered the opinion of the Court. \nThe defendant was indicted in April 1833, in the circuit court for the district of Pennsylvania, for  passing a counterfeit note of the denomination of ten dollars, purporting to be a note of the Bank of the United States, with intent to defraud the bank, &c. \nHe pleaded that the note described in the indictment had been heretofore given in evidence on the trial of the defendant, upon a former indictment found against him for passing another counterfeit ten dollar note, upon which indictment he had been acquitted. \nThe United States demurred to this plea, and the defendant joined in demurrer. \nThe judges were opposed in opinion, on the question whether the judgment on the demurrer should be entered in favour of the United States or of the prisoner, which division of  opinion is ordered to be certified to the supreme court of the United States. \nThe offence for which the defendant was indicted, and to which indictment he pleaded the plea of a former acquittal, was entirely a distinct offence from that on which the verdict of acquittal was found. The plea does not show that he had ever been indicted for passing the same counterfeit bill, or that he had ever been put in jeopardy for the same offence. We are therefore of opinion, that the matter pleaded is no bar to the indictment,  and that the demurrer ought to be sustained. A certificate to this effect is to be given. \nThis cause came on to be heard on the transcript of the record from the circuit court of the United States for the district of Pennsylvania, and on the question and point on which the judges of the said circuit court were opposed in opinion, and which was certified to this court for its opinion, agreeably to the act of congress in such case made and provided, and was argued by counsel; on consideration whereof, it is the opinion of this court that judgment on the demurrer to the second plea pleaded by the defendant to the indictment filed against him, ought to be rendered for the United States. Whereupon, it is ordered and adjudged by this court, that it be certified to the said circuit court that judgment on the demurrer to the second plea pleaded by the defendant to the indictment filed against him, ought to be rendered for the United States. \n \n\n ", " \nOpinion \n\n \n \n  Mr Chief Justice MARSHALL delivered the opinion of the Court. \nThis motion is for an attachment against the  judge of the northern district of New York, for a contempt of this court in refusing to obey its mandamus, directing him to reinstate certain suits which had been dismissed from the docket of that court, and to proceed to adjudicate them according to law. \nThe suits were reinstated and ordered for trial as directed by this court; but delays have taken place so that a verdict has been given in only one of them, and in that judgment has not not yet been rendered. \nThe motion for the attachment is supported by an affidavit of the party, verified by the counsel, giving, at great length, a history of the proceedings which have taken place in these causes, both before and since the mandamus was awarded. It alleges, that since the causes have been reinstated delays have  taken place which are detailed at great length, and are considered as amounting to a contempt of this court, by disregarding its mandamus. \nWe have only to say, that a judge  must exercise his discretion in those intermediate proceedings which take place between the institution and trial of a suit; and if in the performance of this duty he acts oppressively, it is not to this court that application is to be made. \nA mandamus, or a rule to show cause why a mandamus should not issue, is asked in the case in which a verdict has been given, for the purpose of ordering the judge to enter up judgment upon the verdict. The affidavit itself shows that judgment is suspended for the purpose of considering a motion which has been made for a new trial. The verdict was given at the last term, and we understand it is not unusual in the state of New York, for a judge to hold a motion for a new trial under advisement till the succeeding term. There is then nothing extraordinary in the fact, that Judge Conklin should take time till the next term to decide on the motion for a new trial. This court entertains no doubt of his power to grant it. \nWe do not think that an attachment ought to be awarded, nor do we think that the present state of the case in which a verdict has been rendered, would justify this court in directing a rule to show cause why a mandamus should not  be issued. \nThe motion is dismissed. \n \n\n ", " \nOpinion \n\n \n \n  Mr Chief Justice MARSHALL delivered the opinion of the Court. \nIn April 1829, George J. F. Clarke, the defendant in error, filed  his petition in the court of the United States, for the eastern district of Florida, praying that court to decree a confirmation of his title to sisteen thousand acres of land, granted to him on the 6th day of April 1816, by Don Jose Coppinger, then acting governor of the province of East Florida. \nThe attorney for the district appeared, and by his answer denied all the material allegations of the petition. \nSeveral exhibits were filed, and several depositions were taken; and in May term 1832, the court adjudged the claim of the petitioner to be valid; from which judgment the district attorney, on behalf of the United States prayed an appeal to this court. \nAs the United States are not suable of common right, the party who institutes such suit must bring his case within the authority of some act of congress, or the court cannot exercise jurisdiction over it. The counsel for the United States contends, that George J. F. Clarke has not by his petition made a case in which the United States have consented to be sued; and, consequently, that the court of the district had no jurisdiction. To maintain this objection, he has stated several principles, and cited several decisions of this  court in support of them. The proposition, that in courts of a special limited jurisdiction, which that of East Florida unquestionably is in this case, the pleadings must contain averments which bring the cause within the jurisdiction of the court, or the whole proceeding will be erroneous, is admitted. The inquiry is, does the petition of George J. F. Clarke contain these averments. \nFlorida contained an immense quantity of vacant land which the United States desired to sell. Numerous tracts, in various parts of this territory, to an amount not ascertained, had been granted by its former sovereigns, and confirmed by treaty. To avoid any conflict between these titles and those which might be acquired under the United States, it was necessary to ascertain  their validity, and the location of the lands. For this purpose boards of commissioners were appointed, with extensive powers, and great progress was made in the adjustment of claims. But neither the law of nations, or the faith of the United States, would justify the legislature in authorizing these boards to annul pre-existing titles, which might consequently be asserted in the ordinary courts of the country, against  any grantee of the American government. The powers of the commissioners therefore were principally directed to the attainment of information, on which they might report to congress, who generally confirmed all claims on which they reported favourably. After considerable progress had been thus made in the adjustment of titles, congress, on the 26th of May 1830, passed an act for the final settlement of land claims in Florida This act, after confirming titles to a considerable extent, which are described in the first, second and third sections, enacts that all the remaining claims which have been presented according to law, and not finally acted upon, shall be adjudicated and finally settled upon the same conditions, restrictions and limitations, in every respect, as are prescribed by the act of congress, approved 23d of May 1828, entitled, \"An act,\" &c. \nIt was obviously the intention of congress to extend the jurisdiction of the court to all existing claims, and to have them finally settled. The purpose for which the act was made could not be otherwise accomplished. Any claim which the court was unable to decide on the petition of the claimant, would remain the subject of litigation.  This would defeat the obvious intention of congress, which ought to be kept in view in construing the act. \nThe words which confer jurisdiction, and describe the cases on which it may be exercised, are \"all the remaining cases which have been presented according to law, and not finally acted upon.\" The subsequent words \"shall be adjudicated,\" &c. prescribe the rule by which the jurisdiction previously given shall be exercised. \nThe petition of Clarke, after showing his  title under the government of Spain, adds, \"your petitioner farther states, that his aforesaid claim was filed before the board of commissioners, appointed to ascertain claims and titles to lands in East Florida, who, as he is informed and believes, refused to recommend  the same to the favourable notice of the United States government; and have rejected the same, but have not reported it forged or ante-dated.\" Do these averments satisfy the requisites of the statute? \nThe act requires that it shall \"have been presented according to law, and not finally acted upon.\" The petition states, \"that it was filed before the board of commissioners,\" which is presenting it \"according to law;\" and then  proceeds to state the action of the board upon it. That action is not by law made final, consequently the case is one of those which the court is directed to adjudicate and finally settle, on the principles contained in the act of 1828. Any defect in the title as exhibited, will be considered in deciding on the right, but does not constitute an objection to jurisdiction. \nThe title, as set out in the petition and exhibits filed with it, is as follows: \nOn the 16th of March 1816, George J. F. Clarke, styling himself a native of the province, presented a memorial to the governor of East Florida, in which he states the service he has rendered the public, by inventing and constructing a saw mill of great execution, and prays, in consideration thereof, a grant of the quantity of land which his honour had thought proper to assign to the water mills, equivalent to five miles square; which land he solicits on the western part of St John's River, above Black Creek, at a place entirely vacant, known by the name of White Spring. \nOn the 3d of April the governor made a decree, in which, after reciting that he had granted lands to other individuals on account of saw-mills or machines to be erected,  but with condition of being without effect until the establishments be made, and that Clarke had exhibited proof of the actual erection of a mill of great utility, grants to the said George Clarke the five miles square of land that he solicits, \"of which a title shall be issued, comprehending the place, and under the boundaries set forth in this petition, whichout injury to a third person.\" \nThe title was issued on the sixth of the same month.It recites that \"whereas by a royal order communicated to the government on the 29th of October 1790, by the captain-general of the island of Cuba and the two Floridas, it is provided, among other things, that to foreigners who, of their free will,  present themselves to swear allegiance to our sovereign, there be granted to them lands gratis, in proportion to the workers that each family may have; and whereas Don George Clarke, inhabitant of the town of Fernandina, has presented himself, manifesting that he has constructed, from his own ingenuity, a machine that, with four horses, saws eight lines at one time, cutting two thousand superficial feet of timber in a day, and soliciting in virtue thereof a grant in absolute property of  five miles square of land,\" &c.; \"therefore, and in consideration of the advantages arising from such improvements in this said province, and in order that, by rewarding the industrious and ingenious, it may serve as an example and stimulus to other inhabitants, I have found proper, by my decree of the third of the present month, to order the issue of a competent title of property of said five miles square of land, as will more fully appear,\" &c. \"Therefore I have resolved to grant, as in the name of his majesty I do grant,\" &c. \nAn order to survey the land contained in this grant was given by the governor on the 29th of December 1818. \nAfterwards, on the 25th of January 1819, Clarke presented a memorial to the governor, stating that the quantity of land required for his purpose could not be obtained at the place designated, and praying that the depth back might be contracted to about one and a half miles, and the residue be surveyed at a different place described in the memorial. This prayer was granted, and surveys were executed and returned, placing eight thousand acres on the ground described in the decree and grant, and the remaining eight thousand acres, in two surveys, on  the ground designated in the memorial of the 25th of January 1819. \nThe counsel for the United States contend, that the grant made to the petitioner, by the governor of East Florida, is void, because he had no power to make it. \nThe royal order of the 29th of October 1790, which is recited in the grant of the 6th of April 1816, most certainly does not authorize that grant. It was avowedly made for the purpose of inviting foreigners into the province, and Clarke was an inhabitant. It limited the quantity of land to be granted to a fixed number of acres for the workers that each family may have; and it is not doubted that the quantity actually  contained in the grant far exceeded the quantity authorized by that order. It is too plain for argument that, if the validity of the grant depends on its being in conformity with the royal order of 1790, it cannot be supported. But we do not think it does depend on that order. \nAlthough the order is recited, the grant does not profess to be founded on it. That it is not, is most apparent. The grant immediately proceeds to recite that Clarke is an inhabitant of Fernandina, which would of itself defeat his application if depending  on the order in favour of \"foreigners who of their free will present themselves to swear allegiance to the sovereign\" of the grantor. It then proceeds to state the real motive for which it is made. It is that he has constructed a machine of great value. It is for this, and not for this being willing to swear allegiance to the king of Spain, that he solicits the grant. \"Therefore,\" proceeds the grant, \"and in consideration of the advantages arising from such improvements in this said province, and in order that, by rewarding the industrious and ingenious, it may serve as an example and stimulus to other inhabitants, I have found proper, by my decree of the third of the present month, to order the issue of a competent title,\" &c. \"Therefore,\" that is in execution of the decree of the third, \"I have resolved to grant,\" &c. \nThe grant, then, of the 6th of April is avowedly made in execution of the decree of the 3d. That decree contains no allusion to the royal  order of October 1790, but professes to be founded entirely on the motives afterwards expressed in the grant itself in addition to that order. \nWe cannot think, that the recital of a fact entirely immaterial, on  which fact the grant does not profess to be founded, can vitiate an instrument reciting other considerations on which it does profess to be founded, if the matter, as recited, be sufficient to authorise it. \nWithout attempting to assign motives for the recital of that order, we are of opinion, that, in this case, the recital is quite immaterial, and does not affect the instrument. The real inquiry is, whether governor Coppinger had power to make it. \nBy the second article of the treaty of the 22d of February 1819, between the United States of America and Spain, his catholic majesty cedes to the United States, in full property  and sovereignty, all the territories which belong to him situated on the eastward of the Mississippi, known by the name of East and West Florida. \nThis article undoubtedly transfers to the United States, all the political power which our government could acquire, and all the royal domain held by the crown of Spain; but has never been supposed, so far as is now understood, to operate on the property of individuals. This court has uniformly expressed the opinion that it does not. \nThe eighth article was not intended to enlarge the cession. Its principal  object is to secure certain rights existing at the time, but not complete. It stipulates that all the grants of land (in Spanish \"concessions of land\") made before the 24th of January 1818, by his catholic majesty, or by his lawful authorities in the said territories, ceded by his majesty to the United States, shall be ratified and confirmed (in Spanish, shall remain ratified and confirmed) to the persons in possession of the lands (in the Spanish, in possession of them, that is, of the concessions) in the same extent that the same grants (in Spanish, they) would be valid, if the territories had remained under the dominion of his catholic majesty. \nIt may be worth observing, that the language of the article is not \"all grants made by his catholic majesty, or by his lawful authority,\" which might perhaps involve an inquiry into the precise authority or instructions given by the crown to the person making the grant, and might impose on the claimant the necessity of showing that authority in each case, but \"by his catholic majesty, or his lawful authorities in the said territories ceded by his majesty to the United States.\" That is, by those persons who exercised the granting power by  authority of the crown. This is the generally received meaning of the words. They are equivalent to the words, competent authorities, used in their place by the king of Spain in his ratification of the treaty. \nIt may be also not entirely unworthy of remark, that this article expressly recognises the existence of those \"lawful authorities\" in the ceded territories. \nIt is not unreasonable to suppose that his catholic majesty might be unwilling to expose the acts of his public and confidential officers, and the titles of his subjects acquired under  those acts, to that strict and jealous scrutiny which a foreign government, interested against their validity, would apply to them, if his private instructions or particular authority were to be required in every case, and that he might, therefore, stipulate for that full evidence to the instrument itself which is usually allowed to instruments issued by the proper officer. The subject matter of the article, therefore, furnishes no reason for construing its words in a more restricted sense than that in which they are uniformly used and understood. In that sense, they mean persons authorised by the crown to grant lands. \nThe  subsequent part of the sentence may, in some degree, qualify their meaning. The added words are, \"to the same extent that the same grant (they) would be valid, if the territories had remained under the dominion of his catholic majesty.\" \nIf this part of the sentence was intended as a limitation of the general provision which precedes it, the subject matter of the article may serve in some measure to explain it. \nThe general word \"grant\" may comprehend both the incipient and the complete title. The greater number of those in Florida appear to have been of the first description. Many of these contained conditions, on the performance of which the right to demand a complete title depended. Without this qualification, the article might have been understood to make these conditional concessions absolute. Therefore, they are declared to \"be ratified and confirmed,\" to the same extent that the same grants (they) would be valid if the territories had remained under the dominion of his catholic majesty.\" The parties add, (continuing the idea) \"but the owners in possession of such lands (the proprietors) who, by reason of the recent circumstances of the Spanish nation, and the revolutions  in Europe, have been prevented from fulfilling all the conditions of their grants (concessions) shall complete them within the terms limited in the same respectively from the date of this treaty; in default of which, the said grants (they) shall be null and void.\" \nBut whether the intention of that part of the article which declares the extent to which the titles it contemplates shall be valid, is limited to the conditions inserted in them, or qualifies the general preceding words, it cannot vary the sense of  the term \"lawful authorities,\" nor warrant the construction that a title derived from \"a lawful authority\" creates no presumption of right, and leaves the holder under the necessity of proving every circumstance which would be required to support it, had it proceeded from a person not holding an office on which the power of granting lands had been conferred. \nThese titles are to be valid to the same extent as if the territories had not been ceded. What is that extent? A grant made by a governor, if authorized to grant lands in his province, is prima facie evidence that his power is not exceeded. The connection between the crown and the governor, justifies the presumption  that he acts according to his orders. Should he disobey them, his hopes are blasted, and he exposes himself to punishment. His orders are known to himself and to those from whom  they proceed, but may not be known to the world. \nSuch a grant, under a general power, would be considered as valid, even if the power to disavow it existed, until actually disavowed. It can scarcely be doubted, so far as we may reason on general principles, that in a Spanish tribunal, a grant having all the forms and sanctions required by law, not actually annulled by superior authority, would be received as evidence of title. \nWe proceed then to inquire into the power of the governor of East Florida. \nIt will not be material to ascertain the rules by which lands were granted to the first settlers of America, or the officers from whom titles emanated. So early as the year 1735, an ordinance was passed by which the king reserved to himself the right of completing the titles given by his provincial officers. \nThe inconvenience resulting from this regulation was so seriously felt, that the ordinance was repealed in 1754, and the whole power of confirming, as well as originating titles, was transferred  to officers in the colonies. The power of appointing sub-delegate judges, to sell and compromise for the lands and uncultivated parts of the dominions of the Spanish crown in the Indies, was declared to belong to the viceroys and presidents of the royal audiences of those kingdoms; and  the same royal order directed that \"in the distant provinces of the audiencias, or where sea intervenes, as Caraccas, Havana, Carthagena Buenos Ayres, Panama, Yucatan, Cumana, Margarita, Puerto Rico, and in others of like situation, confirmations shall be issued by their governors, with the advice of the officiales reales (the king's fiscal ministers) and of the lieutenant general, hateado, where he may be stationed. \nIn 1768, this power of granting and confirming titles to lands was vested in the intendants. \nIn 1774, it was revested in the civil and military governors (see White's Compilation 218). In October 1798, this power was again conferred on the intendant, so far as respected Louisiana and West Florida; but this order did not extend to East Florida. In that province it remained in the governor. \nThe regulations of the governors O'Reilly and Gayoza, and the proceedings of the governors  Quisada, Estrada, White, Kindelan and Coppinger, of East Florida, and all the grants which have been brought to the view of this court, together with the reports of the commissioners appointed to adjust land titles in the territories ceded by Spain, show, that from the year 1774, the power of granting lands was vested in the governors, both of Louisiana and the Floridas. The ordinance of 1798, which transferred it to the intendant of Louisiana and West Florida, did not extend to East Florida: consequently it remained with the governor of that province. \nThis is admitted by the counsel for the United States. \nSo far then as respects East Florida, the term \"lawful authorities\" designates the governor as certainly as if he had been expressly named in the eighth article of the treaty. He is the officer who was empowered by his sovereign to make grants of lands in that province, and in ceding the province to the United States, his sovereign has stipulated that grants made by him shall be as valid as if the province had remained under his dominion. \nIt has been already stated that the acts of an officer, to whom a public duty is assigned by his king, within the sphere of that duty, are,  prima facie, taken to be within his power. This point was fully considered and clearly stated by this court in the case of Arredondo, and the principles on which the opinion rests are believed to be too deeply founded in law  and reason ever to be successfully assailed. He who would controvert a grant executed by the lawful authority, with all the solemnities required by law, takes upon himself the burden of showing that the officer has transcended the powers conferred upon him, or that the transaction is taiated with fraud. \nThis the counsel for the United States undertakes to do. He insists that governor Coppinger has transcended his powers in making the title now under consideration for a larger quantity of land than he was empowered to grant, and on a consideration not warranted by law. \nThe object of Spain, as of all the European powers who made settlements in America, was to derive strength and revenue from her colonies.To accomplish this, grants of lands to individuals became indispensable. History informs us that this measure was adopted by all.The immense territories held by Spain, affording an almost inexhaustible fund of lands claimed by the crown, could scarcely  fail to produce large grants to favourites, as well as a regular system for inviting population into her colonies.The viceroys in New Spain and Peru, who were also governors, possessed almost unlimited powers on this and other subjects; but in distant provinces, or where sea intervenes, the right of giving title to lands was vested in their governors with the advice of the king's fiscal ministers and of the lieutenant general, where he may be stationed. No public restraint appears to have been imposed on the exercise of this power. The officer and his conduct were of course under the supervision and control of the king and his ministers, and especially of his council of the Indies. \nIn 1735, this power was withdrawn from the provincial officers, but was restored to them in 1754. Wh. Comp. 49, Clarke's Land Laws 973. The royal order of 15th October 1754 confers this power in general terms without any limitation on the quantity or on the consideration which may move to the grant. It would excite surprise if, in a monarchy like that of Spain, no rewards in land could be granted for extra services, and no favours could be bestowed. Among the earliest laws for the government of America  (Wh. Comp. 30) is an order that the viceroys of Peru and Mexico \"grant such rewards, favours and compensation as to them may seem fit.\" A subsequent  order (Wh. Comp. 41), after directing extensive dispositions of territory, adds, \"all the remaining land may be reserved to us, clear of any incumbrance, for the purpose of being given as rewards, or disposed of according to our pleasure.\" In White's Comp. 29, we find the following law: \"it is our pleasure that services be remunerated where they shall have been  performed, and in no other place or province of the Indies.\" \nIt would seem that these remunerations, if in land, would be made by the governor, when empowered to grant them, provided no other officer was designated. \nTwo letters of the 3d of April 1800, from an officer authorized to grant lands, are published in Clarke's Land Laws 989, which would seem to countenance the opinion that they did not consider their powers as limited to small quantities, but that they might exercise discretion in this respect. They are written by the attorney-general under Morales. The first, addressed to Don Henry Peyroux, is in these words: \"I have to reply to your communication  No. 9, that I cannot at this time consent to the sale of lands in the manner and under the circumstances requested; and I have to make the same reply to that of the 6th of February last, No. 8, in which you ask for one hundred thousand arpens.\" \nThe language of this letter is rather that of a man who has exercised his discretion on a subject to which his power extends, than of one who might at once repel the application by referring to the orders of his sovereign. The second letter is of the same character. \nA royal order was issued on the 4th of January 1813, which recites that the general Cortes have decreed as follows: \"considering that the conversion of public lands into private property is one of the measures which the welfare of the people, as well as the advancement of agriculture and industry, most imperiously demands; and desiring, at the same time, that this class of lands should serve as an aid to the public necessities, a reward to the deserving defenders of the country, and a support to the citizens who are not proprietors, the general and extraordinary Cortes do decree: \n\"All the uncultivated or public lands, and those of the corporation of cities, with the timber thereon  or without it, both  in the peninsular and adjacent islands, as well as in the ultra marine provinces, except the commons necessary for the towns, shall be made private property.\" \n\"In whatever manner these lands be distributed, it shall be in full property.\" \nThis order was transmitted to the captain general of the Island of Cuba; but seems to have been repealed on the 22d of August 1814. \nWe do not find any limitation in the royal orders restricting the power of the governors to a league square in their grant. \nThe counsel for the United States searches for them in the regulations by colonial officers, prescribing the rules to be observed in the offices established for the purpose of carrying these orders into execution, and in special orders of the crown for specified objects. \nThe first to which reference has been made, were issued by Don Alexander O'Reilly, governor of Louisiana. He recites, among other things, the complaints and petitions which had been presented to him by the inhabitants, together with the knowledge he had acquired of their local concerns, by a visit lately made to the Cote des Allemands, &c. and from an examination made of the report of the inhabitants  assembled by his order in each district, states his conviction that the tranquillity of the inhabitants and the progress of culture required, which shall fix the extent of the grants of lands which shall hereafter be made, &c., and adds, \"for these causes, and having nothing in view but the public good and the happiness of every inhabitant, after having advised with persons well informed in these matters, we have regulated all these objects in the following articles: \n\"1st. There shall be granted to each newly arrived family,\" &c. \nThis is most obviously the language of a man who supposes himself to possess full power over the subject. The rules he prescribes for himself, do not purport to be limits imposed by a master, but to be marked out by his own discretion, and to be alterable at will. He makes no allusion to orders emanating from his sovereign, marking out the narrow path he is bound to tread; but gives the law himself, in the character of a man invested with full powers. \n The eighth article declares that, \"no grant in the Opelousas, Atacapas, and Natchitoches, shall exceed one league in front by one league in depth; but when the land granted shall not have that  depth, a league and a half in front by half a league in depth, may be granted.\" \nHad the limitation on the quantity to be granted been five miles square instead of a league square, is there any thing in the information we possess, which would enable us to say that the one more than the other would be an excess of power. \nThe instructions of governor Gayoso are dated in Septem ber 1797, till which time it may be presumed that those of O'Reilly remained in force. His instructions are for the government of the commandants of ports, who appear to have been entrusted with the power of making concessions. His regulations, so far as they varied those which pre-existed, constituted, it may be presumed, a new law for the commandants, but do not prove the existence of restrictions on his own power. Like those of O'Reilly, they give every indication of proceeding from an officer possessing general and very extensive powers. \nThe same observation applies to the regulations of Morales, who was intendant of Louisiana and West Florida. They are dated in July 1799, soon after receiving the order of the king of October 1798, which directed \"that the intendancy of these provinces be put in possession  of the privilege to divide and grant all kind of land belonging to his crown; which right, after his order of the 24th of August 1770, belonged to the civil and military government: Wishing to perform this important charge, &c. \n\"After having examined, with the greatest attention, the regulation made by his excellency, count O'Reilly, the 18th of February 1770, as well as that circulated by his excellency the present governor, Don Manuel Gayoso de Lernos, the 1st of January 1798, and with the counsel which has been given me on this subject by Don Manual Senaro, assessor of the intendency, and other persons of skill in these matters, that all persons who wish to obtain lands, may know in what manner they ought to ask for them, and on what condition  land can be granted and sold, &c., I have resolved that the following regulations shall be observed.\" \n He then proceeds to regulate, with great exactness, the course to be observed by those who seek to obtain concessions, the conditions on which they shall be granted, and the conduct to be observed before a complete title will be made. These regulations do not measure his power, but give the law to those who are  to execute his orders. \nThese are the proceedings of the officers who were entrusted with the power to divide and grant the crown lands in Louisiana and West Florida. It is not to be presumed that different powers were' conferred on the officers to whom the same duties were confided in East Florida. \nInternal regulations of police were issued by governor Quesada on the 2d of September 1790. They commence with saying, \"Whereas I am commanded by royal orders, agreeable to the public wants, to apply the most reasonable and quick remedies thereto: for the purpose, therefore, of accomplishing this, in the edict commonly called 'internal regulations of police,' I hve taken the most conducive steps, notwithstanding, much to my sorrow, there has been so much to amend and establish, that a voluminous code would scarcely be sufficient for me to comprise all, in proportion to the ardent desire which animates me for the prosperity of the province and the service of the sovereign; wherefore, merely for the present, and reserving hereafter, when permitted by my other duties, the right of attending particularly to this important subject, I therefore make known and order the following: \n\"1st. I  grant to all the inhabitants permanently settled, and subjects of his majesty, in his royal name, for their use, the quantity of land they may require, in proportion to their force, in any part of the desert province, without any exception. To this end, those desirous of obtaining the same, will present themselves to me, within twenty days, stating their circumstances, by memoril; what lands they have obtained to the present period, and to what quantity, and in what place they are desirous of locating them now: under the precise condition that it will be without injury to a third person, I will attend to their solicitude according to the examination I may make thereof; and although the laws of the Indies authorise me to make no absolute distribution of the same, and being in the case of tit. 12th, book 4th, I abstain, therefrom, from powerful motives.  But for the greator security of those interested, I will forward my ideas and representation on the subject to the king, persuaded that, in consequence thereof, those obtaining grants from me now will be confirmed in the possession of the same.\" \nThe law of the Indies to which the governor refers, is inserted in Clarke's  Land Laws, p. 967, and is in these words: \"That our subjects may apply themselves to the exploration and settlement of the Indies, and that they may live with comfort and convenience, which we desire, it is therefore our will, that houses, grounds, lands, cavallerias and peonias, be granted to all those who shall settle new lands, in the villages and places that the governor of the new settlement shall mark out for them. There shall be a distinction made between gentlemen and labourers (peones), and those who shall be of less grade and merit; and in proportion to their services, the lands shall be increased and ameliorated for prosecuting agriculture, and the tending of cattle.\" \nIt is not easy to comprehend precisely the influence which this law ought to have on the governors of the Spanish colonies. It was undoubtedly the same in them all. \nWe collect from the extracts from the laws of the Indies which are given us in Clarke's Land Laws, and White's Compilation, that they apply chiefly to the general purposes of population and settlement. For the attainment of these objects, general rules were framed, which contained affirmative instructions to the officers, to be observed in  the formation of new settlements, in donations to emigrants, and in the sale and distribution of crown lands. How far a discretion in the execution of these laws, or whether any discretion, was placed in those distant officers to whom they were directed, we have not the means of ascertaining. So far as we are informed, they contain no negative or prohibitory words, and the regular reports of governors must have kept their superiors informed of their proceedings. Mr White says, p. 9, \"I sought assiduously, but have been unable to discover a record or notice of the proceedings upon some grant or concession which had been made by a captain general, intendant or governor, and disapproved of by the king. I have been unable to ascertain whether any such exist.\" \nThe regulations of governor Quesada, which have been cited, and in which he appears to have deviated, in some  respects, from the law to which he refers, apply to the general objects of cultivation, population and settlement, and ought to conform to the laws which had been framed for those subjects. He seems to grant a general privilege to every individual to acquire lands at will. He retains to himself no discretion,  exercises no judgment in the case. \"I grant,\" he says, \"to all the inhabitants permanently settled, and subjects of his majesty, in his royal name, for their use, the quantity of land they may require in proportion to their force, in any part of the desert province, without exception.\" Yet he is persuaded that these grants will be confirmed. \nThese extraordinary regulations were in the exercise of that ordinary power to which general laws had been adapted. The right to bestow rewards on those individuals who had rendered any particular service, constituted a distinct branch of power, to which those general laws could not apply. White's Compilation abounds with extracts showing the disposition of the king, that they should be given liberally. \nGovernor White White succeeded governor Quesada.In conformity with usage, he proclaimed, in October 1803, the rules by which it was his purpose to be governed in the concessions and divisions of lands to the new settlers. He adopts a more rigid practice than had been observed by his predecessors; but these rules appear to emanate from his own judgment, and to be intended to apply only  to new settlers, who come to establish themselves  in the province. \nDon Nicholas Ganido, the agent of the duke of Allegon, to whom all or nearly all the uncultivated land of East Florida, had been granted by the king, addressed a letter to the governor, in February 1819, soliciting official information respecting the validity of titles which had emandated from him or his predecessors. It is not supposed that this letter, or the answer to it, can be received as authority; but when it is considered, that the duke of Allegon believed himself to be the lawful proprietor of all the lands not regularly vested in others, and was of course anxious to defeat the titles of others; and that the questions were asked by, and addressed to those who were best acquainted with the authority of the governor, and the principles on which he acted, we may, on a subject on which so little light can be shed, look at the letter, and the answer to it. \n Seventh. \"In what manner are those concessions considered, which were made to foreigners or natives, of large portions of land, who have disappeared, carrying with them their documents, without having cultivated or even seen the lands granted to them?\" \nEighth.\"Can those persons, to whom assignments  of large portions of territory have been made for the establishment of factories, such as water or steam mills, who did not then comply, nor have not since presented themselves to establish their machinery (allowing that none exists in the province which is known), be considered now, or in future, with any right? If, in a space of time, such as has elapsed until now, they have not established their works, will there be any reason why said lands should not be declared open, and revert to the class of public lands?\" \nThese questions are asked by the agent of the duke of Allegon, a favourite of the king. They relate exclusively to those large grants which are now said to have exceeded the power of the governor. They were of course known to the duke of Allegon, and, we must presume, to his master. Yet an excess of authority is not even suggested.No doubt seems to be entertained of the validity of those which had been completed by the grant of a full tile, or of those still incomplete, the conditions of which have been performed. The inquiry respects those persons only, who had totally neglected the conditions contained in their grants. Their titles alone seem to be doubted even by  the duke of Allegon. \nThis letter appears to have been referred by the governor to Ruperto Saavedra, who answers all the inquiries made by Ganido. He says, \"those who have titles of proprietorship, who have complied with the conditions pointed out to entitle them to them, or have obtained them as a remuneration for services, or other considerations deemed by the government sufficient for the purpose; in these cases there is a precise obligation to respect said titles, especially as the said conditions have been established at the will of the governors, and that the royal order of 1790, on the subject, impairs none, but expressly states, that lands shall be granted and surveyed gratis, to those foreigners who, of their own free will, present themselves to swear allegiance.\" \n After observing that the donation to the duke of Allegon, is limited \"to uncultivated lands which have not been granted,\" Saavedra says; \"yet it is proper to explain, in this particular, that the concessions made to foreigners or natives, of large or small portions of land, carrying their documents with them (which shall be certificates issued by the secretary), without having cultivated or even seen  the lands granted to them, such concessions are of no value or effect, and should be considered as not made, because the abandonment has been voluntary, and that they have failed in complying with the conditions prescribed for the encouragement of population. The assignments of extensive portions of territory, which have been made for the establishment of factories, to persons who did not then comply, nor have not since presented themselves to establish their mechanical works, ought also to be considered without any right or value, and said lands declared perfectly free, that they may revert into the class of public lands,\" &c. \nThis opinion was laid before governor Coppinger, and approved by him. It recognises the right to grant as \"a remuneration for services, or other considerations deemed by the government sufficient for the purpose;\" and speaks of concessions to foreigners or natives, for large or small portions of land as equally valid. The right they give to a complete title, depends on the conduct of the proprietor, on his compliance or non compliance with the conditions, not on the quantity conceded. The same principle applies \"to assignments of extensive portions of territory,  which had been made for the establishment of factories\" which have not been erected. The extensiveness of the territory assigned, is not made an objection; but the failure to perform the condition on which the concession was made. \nIt is apparent, that both the agent of the duke, and Saavedra, considered these large concessions as within the power of the governor. \nThe counsel for the United States relies confidently on the letter of governor Kindelan, of the 4th of June 1803, addressed to the captain general of Cubs, in which he recommends the militia who had served during the late insurrection, and third battalion of Cuba, as worthy the gifts to which the supreme governor may think them entitled. He suggests granting \"to  the soldiers a certain quantity of land, as established by regulations in this province, agreeably to the number of persons in each family.\" \nOn the part of the United States it is insisted, that this application could not have been made, had the governor been authorized by the existing laws to reward their services still more liberally. \nThe argument has undoubtedly great weight, but we do not think it conclusive. \nGrants to a whole class of individuals,  a distribution of lands among the body of the colonial militia, and a battalion of a different province, might be expected to belong rather to the general system of distribution than to that branch of it which authorizes rewards to individuals for particular special services, and might be expected to proceed directly from the crown, or to have its express sanction. \nIf not all the extracts from the laws of the  Indies, a least by far the greater part of them, which we find in White's Compilation, relating to rewards, contemplate services peculiar to the individual, not those which are of a general character. We do not think, therefore, that an application to superior authority for a distribution of lands among the militia who have served during a period of dangerous insurrection, is necessarily to be be ascribed to the consciousness of wanting power to give a reward in lands to an individual whose invention is deemed meritorious. \nThe favour of granting rewards is expressed in terms indicating the expectation that it is to be exercised by those governments who are also viceroys; but there are no prohibitory words, and the general power of granting lands, extended to the  governors of distant provinces, or where sea intervenes, may comprehend granting as a reward for individual merit. The facts that this power was exercised certainly as early as 1813, by the governor or East Florida, that the condition of the province and the exhausted state of the kingdom seemed to require and justify it, and that the king never disapproved the proceedings of the governor, existed when the treaty was formed. Such was the state of things to which the treaty applied. \nIt is stated that the practice of making large concessions  commenced with the intention of ceding the Floridas, and these grants have been treated as frauds on the United States. \nThe increased motives for making them have been stated in argument, and their influence cannot be denied. But admitting the charge to be well founded, admitting that the Spanish government was more liberal in its concessions after contemplating the cession than before, ought this circumstance to affect bona fide titles to which the United States made no objection. \nWhile Florida remained a province of Spain, the right of his catholic majesty, acting in person or by his officers, to distribute lands according to  his pleasure, was unquestioned. That he wasin the constant exercise of this power, was well known. If the United States were nor content to receive the territory, charged with titles thus created, they ought to have made, and they would have made, such exceptions as they deemed necessary. They have made these exceptions. They have stipulated that all grants made since the 24th of January 1818, shall be null and void. \nIt is understood that this stipulation was intended to embrace three large grants made by the king, which comprehended nearly all the crown lands in East Florida: However this may be, it shows that the subject was in the mind of the negotiators, and that the apprehended mischief was guarded against so far as the parties could agree. The American government was content with the security which this stipulation aforded, and cannot now demand farther and additional grounds. The acquisition of the Floridas was an object of immense importance to the United States. It was urged by other considerations of a still more powerful operation, in addition to vacant lands. It will be regarded, while our union lasts, as the highest praise of the administration which made it,  and of the negotiator who accomplished it. It cannot be doubted that the terms were highly advantageous, and that they were so considered by all. The United States were satisfied, and had reason to be satisfied, with the provision excluding grants made subsequent to the 24th of January 1818, when the fraud on that provision was prevented by the terms of the ratification of the treaty. All other concessions made by his catholic majesty, or his lawful authorities in the ceded territories  (in the ratification by the king of Spain, \"competent authorities\"), are as valid as if the cession had not been made.If it be shown by the person holding the concession, that it was made by the officer authorised to grant lands, that it was the duty of this officer to give a regular account of his official transactions, that no grant even made by the person thus entrusted, had even been disapproved; courts ought to require very full proof that he had transcended his powers, before they so determine. We do not think this full proof has been given in the present case. \nThe considerations then recited in the grant, in addition to the royal order of October 1790, are, we think, sufficient  to maintain it. \nIt will be proper to take a concise review of the legislation of congress on this subject. \nThe first act, passed on the 8th of May 1822, entitled \"an act for ascertaining claims and titles to land within the territory of Florida,\" (L. U.S. vol. 7, p. 103) directs that commissioners be appointed \"for the purpose of ascertaining the claims and titles to lands within the territory of Florida, as acquired by the treaty of the 22d of February 1819.\" The sixth section enacts, \"that every person, or the heirs or representatives of such persons, claiming titles to lands under any patent, grant, concession or order of survey, dated previous to the 24th day of January 1818, which were valid under the Spanish government or by the law of nations, and which are not rejected by the treaty ceding the territory of East and West Florida to the United States, shall file before the commissioners his, her or their claim, setting forth particularly its situation and boundaries, if to be ascertained, with the deraignment of title when they are not the grantees or original claimants,\" &c.\"And said commissioners shall proceed to examine and determine on the validity of said patents, grants,  concessions and orders of survey, agreeably to the laws and ordinances heretofore existing, of the governments making the grants respectively, having due regard, in all Spanish claims, to the conditions and stipulations contained in the eighth article of a treaty concluded at Washington, between his catholic majesty and the United States, on the 22d of February 1819; but any claim not filed previous to the 31st day of May 1823, shall be deemed and  held to be void and of none effect.\" They were directed to examine all these claims; and, if satisfied that they were correct and valid, to confirm them; \"provided that they shall not have power to confirm any claim, or part thereof, where the amount claimed is undefined in quantity, or shall exceed one thousand acres; but in all such cases shall report the testimony, with their opinions, to the secretary of the treasury, to be laid before congress for their determination.\" \nThe object of this law cannot be doubted. It  was to separate private property from the public domain, for the double purpose of doing justice to individuals, and enabling congress safely to sell the vacant lands in their newly acquired territories.  To accomplish this object, it was necessary that all claims, of every description, should be brought before the commissioners, and that their powers of inquiry should extend to all.Not only has this been done, but, further to stimulate the claimants, the act declares \"that any claim not filed previous to the 31st of May 1823, shall be deemed and held to be void and of none effect.\" This primary intention of congress is best promoted by determining causes finally, where their substantial merits can be discerned. \nThe subsequent acts of congress, respecting the board of commissioners, have no material influence on the question before the court. \nOn the 23d of May 1828, congress passed \"an act supplementary to the several acts providing for the settlement and confirmation of private land claims in Florida.\" \nThis act confirms all claims contained in the reports of the commissioners of Est Florida, and in the reports of the receiver and register acting as such, \"to the extent of the quantity contained in one league square,\" and continues the powers of the register and receiver, till the first Monday in the following December. \nThe sixth section enacts, \"that all claims to land within  the territory of Florida, embraced by the treaty between Spain and the United States, of the 22d of February 1819, which shall not be decided and finally settled under the foregoing provisions of this act, containing a greater quantity of land than the commissioners were authorised to decide, and above the amount confirmed by this act, and which have not been reported  as antedated or forged, by said commissioners, or register and receiver acting as such, shall be received and adjudicated by the judge of the superior court of the district in which the land lies, upon the petition of the claimant,\" &c. \nThe report of the register and receiver being made, congress, on the 26th of May 1830, passed \"an act for the final settlement of land claims in Florida.\" \nThis act, after confirming the claims it recites, declares that all the remaining claims which have been presented according to law, and not finally acted upon, shall be adjudicated and finally settled upon the same conditions, restrictions and limitations in every respect, as are prescribed by the act of congress, approved the 23d of May 1828, entitled \"an act supplementary to the several acts for the settlement and confirmation  of private land claims in Florida.\" \nThat act refers to the act approved May the 26th 1824, entitled \"an act enabling the claimants to land within the limits of the state of Missouri, and territory of Arkansas, to institute proceedings to try the validity of their claims.\" \nThis last recited act provides for the trial of claims \"protected or secured\" by the treaty which ceded Louisiana to the United States. After describing those claims in terms supposed to comprehend them all, the act proceeds, \"in each and every such case, it shall and may be alwful for such person or persons, or their legal representatives, to present a petition to the district court of the state of Missouri, setting forth fully, plainly and substantially, the nature of his, her or their claim to the lands, tenements or hereditaments, and particularly stating the date of the grant, concession, warrant or order of survey under which they claim, the name or names of any person or persons claiming the same, or any part thereof, by a different title from that of the petitioner, or holding possession of any part thereof, otherwise than by the leave or permission of the petitioner; and also, if the United States be interested,  on account of the lands within the limits of such claim, not claimed by any other person than the petitioner; also the quantity claimed, and the boundaries thereof, when the same may have been designated by boundaries; by whom issued, and whether the said claim has been submitted to the examination of either of the tribunals which have been constituted  by law for the adjustment of land titles, in the present limits of the state of Missouri, and by them reported on unfavourably, or recommended for confirmation.\" \nIt has been already stated, that this act does not define the jurisdiction conferred on the court of East Florida by the act of 1830, but directs the mode of proceeding and the rules of decision. Consequently those technicl averments which are required in the pleadings to show the jurisdiction of a court of limited jurisdiction are not indispensable, and it will be sufficient if the petition state a case substantially within the law. The court is satisfied that the petition of George J. F. Clarke is in this respect unexceptionable. It complies, we think, with all the requisites of the law. \nThe grant which constitutes the foundation of the petitioner's claim,  is a complete title, subject to no condition whatever, emanating from the governor of East Florida, who was the lawful authority of his catholic majesty, for making grants and concessions of land, in that proyince. The decree of the district court, so far as it affirms the validity of this grant, is, we think, correct. But it appears to us to confirm the title of the petitioner to lands not comprehended within it. \nIn his original application to governor Coppinger, the petitioner describes with precision the land he solicits. The decree conforms to the petition, and the full title to both. That instrument, after stating the prayer of Clarke, adds, \"and having pointed out a competent tract on the west side of St John's river, above Black creek, at a place called White Spring, that is vacant, &c., therefore I have resolved to grant, as in the name of his majesty I do grant, to the said George Clarke, the aforementioned five miles square of land, for himself, his heirs and successors, in absolute property, and I do issue, by these presents, a competent title, whereby I separate the royal domain from the right and dominion it had to said lands.\" &c. \nAfterwards on the 25th of January  1819, he again presented a petition to the governor, stating, that having examined the lands in the neighbourhood of White Spring, he finds that their extension back, is in no wise adequate to the expectation and intentions he had formed,  nor the purposes for which they were granted to him, by the government; and furthermore,  he fears that they will interfere with the lands appertaining to the house of John Forbes & Co., therefore he prays \"that the survey made in pursuance of an order granted by the governor, should be verified, with this only difference, that the depth back will be contracted to about one and a half miles, and that the said surveyor will survey the balance in the hammocks called langs and cones, situated on the south of Mizzelhs lake, which are vacant.\" \nThe prayer of the petitioner was granted, and the surveys were made. The plats were laid before the district court, and show that one, containing eight thousand acres, was surveyed within the bounds of the grant. Two others, one for five, and the other for three thousand acres, were surveyed elsewhere. The judge confirmed the title of the petitioner to the three surveys. \nThe grant conveyed  to Clarke the land described in the instrument, and no other.A permit to survey other lands, can be considered only as a new order of survey, depending for its validity on the power of the person who made it. On the 25th of January 1819, governor Coppinger did not possess this power. The treaty of February 1819, had declared that all grants (concessions) made after the 24th of January 1818, should be null and void. The acts of congress forbid the allowance of any order of survey made after that date. So much of the decree as sanctions these two surveys of fiv e and three thousand acres, is in our opinion, erroneous. \nBut we do not think these irregular surveys affect the title under the original grant, unless the lands have been acquired by others. The vacant lands within its bounds, still belong to the appellee, and may now be surveyed by him. \nIt is the opinion of this court, that there is no error in so much of the decree of the superior court for the district of East Florida, pronounced in this case in May term 1832, as doth order, adjudge and decree that this claim is valid, and as confirms the same unto the claimant, to the extent, and agreeably to the boundaries as in the  grant for the said lands, and in the plat of survey thereof, made by Don Andrew Burgevin, of eight thousand acres, and dated the 24th of February 1817, and that so much of the said decree ought to be affirmed, and it is hereby affirmed accordingly. But that so much of  the said decree as confirms to the claimant the lands contained in two other surveys thereof, made by the said Don Andrew Burgevin; one for five thousand acres, on the 10th of March 1819, and the other for three thousand acres, on the 12th of the same month; is erroneous and ought to be reversed, and the same is hereby reversed accordingly; and the cause is hereby remanded to the said district court, with directions to take farther proceedings therein, in such manner that the residue of the said granted land be surveyed to the said petitioner, within the limits of the grant. All which is ordered and adjudged by this court. \nThis cause came on to be heard on the transcript of the record from the superior court for the eastern district of Florida, and was arged by counsel; on consideration whereof, this court is of opinion, that there is no error in so much of the decree of the said court, pronounced in May  term 1832, as doth adjudge and decree that the claim of the petitioner in that court is valid, and in so much thereof as confirms the same unto the claimant, to the extent and agreeably to the boundaries as in the grant for the said lands, and in the plat of survey thereof, made by Don Andrew Burgevin, of eight thousand acres, and dated the 24th of February 1819, filed in this cause, and that so much of the said decree ought to be affirmed, and it is hereby affirmed accordingly. But that so much of the said decree as confirms to the claimants the lands contained in two other surveys thereof, made by the said Don Andrew Burgevin, filed also in this cause, one for five thousand acres on the 10th of March 1819, and the other for three thousand acres on the 12th of the same month, is erroneous, and ought to be reversed, and the same is hereby reversed accordingly; and this court doth remand the said cause to the said superior court, with directions to conform to this decree, and to take such further proceedings in the premises, that the remaining eight thousand acres, which have been improperly surveyed without authority, be surveyed on any lands, now vacant within the limits of the grant  made to the petitioner on the 6th of April 1816, and that the title of the petitioner to the land so surveyed be confirmed. All which is ordered, adjudged and decreed by this court. \n \n\n ", " \nOpinion \n\n \n \n Mr Chief Justice MARSHALL delivered the opinion of the Court. \nThis is an appeal from a decree of the judge of the superior court for the eastern district of Florida, declaring the claim of the appellee to twenty thousand acres of land to be valid. \nHis title commences with the following decree, made by governor Coppinger on the 18th of November 1817. \n\"In attention to what the interested party sets forth and represents, and in virtue of the powers which are annexed to my authority, also conforming to the laws and royal dispositions on the distribution of lands, the memorialist being one of those settlers who most contributes to the improvement of this province; I grant him, in the name of his majesty, and of his royal justice which I administer, the twenty thousand acres of land which he requests, in the places which be points out in his memorial, that he may possess them  in absolute property and dominion. And for confirmation, and his security until titles in form be delivered him, which will be as soon as he shall have accomplished the survey and demarcation of said lands by a surveyor, let the proceedings be lodged in the archieves of the notary, and an authenticated copy given to the interested.\" \nThe order of survey was made on the 5th of December 1820, and executed by Don Andrew Burgevin in three surveys, on the 4th and 5th of April 1821. The full title was granted on the 9th of the same month. \nThe court decreed that the claim was valid, and confirmed  the same \"to the claimant to the extent and agreeably to the boundaries, as in the three surveys of the said land made by Don Andrew Burgevin, and dated the 4th and 5th days of April 1821, and filed as herein is set forth. \nAs the surveys and full title were made after the 24th day of January 1818, the claim of the petitioner depends entirely on the concession of the 18th of November 1817; and such was the opinion of the district court. That concession having been unconditional, and the power of the governor to make it having been decided in the case of G. J. F. Clarke, the only remaining  question is, whether the land contained in the surveys is also contained in the concession. \nThe decree of the governor refers to the petition on which it was made, for a description of the property conveyed. \nThe petitioner, after setting forth his services and meritorious claims, proceeds, \"wherefore he prays your excellency to be pleased to grant him in absolute property and dominion, twenty thousand acres of land: to wit, ten thousand on both banks of the river St John's, between the place known by the name of Buffalo's Bluff, and another place named Mount Tucker; and the remaining ten thousand on the west side of Lake St George, the land to be divided into two parts by a brook or creek, which discharges itself into said lake, named Salt Spring, about ten miles more or less to the north of another creek, named Silver Creek.\" \nThe ten thousand acres on both banks of the river St John's, are laid off in two surveys of five thousand acres each. One on the east side of the river, between Buffalo's Bluff and Mount Tucker, and the other on the west side of that river. \nThese tracts appear to have been properly surveyed. \nThe other survey for ten thousand acres, is laid down on the west  side of Lake St George, and is divided into two parts, by a brook which discharges itself into the lake, and is in the decree named Salt Spring. In the certificate of the surveyor, it is called White Spring. The decree of the court corresponds precisely with the concession, as does the figure of the plat. No other discrepancy is found, than in the name of the spring. As no notice was taken of this discrepancy in the district court where the locality of the survey was understood, we suppose  that the spring may have been known by both names, or that some error may have taken place in transcribing the record. \nThe decree of the district court is affirmed. \nThis cause came on to be heard on the transcript of the record from the superior court for the eastern district of Florida, and was argued by counsel; on consideration whereof, it is ordered, adjudged and decreed by this court, that the decree of the said superior court confirming the title of the petitioner in this cause be, and the same is hereby affirmed, in all respects. \n \n\n ", " \nOpinion \n\n \n \n  Mr Chief Justice MARSHALL delivered the opinion of the Court. \nThis is an appeal from a decree of the court for the district of East Florida, in favour of the validity of his claim to fifteen thousand acres of land, under a grant made by governor Coppinger in 1817. \nHe has failed to allege in express terms, in his petition to the district court, that his claim is protected by the treaty of 1819, and this objection has been taken on the part of the United States. If the reference made in the acts of congress, which authorize this proceeding, to the act of the 26th of May 1824, for the conditions, restrictions and limitations according to which these claims should be adjudicated, was considered as made for the purpose of describing the jurisdiction of the court, the objection would perhaps be fatal. But it has been decided in the case  of Clarke, that the words to which this reference is made, do not describe the jurisdiction of the court, but the principles according to which this jurisdiction is to be exercised; and that if the petition shows a case which is really submitted to the court by the law, it is sufficient. This is fully shown by the petition before the court; it states the concession to have been made to him by the Spanish governor, and adds that he was in possession when the flags were changed. We think no valid objection exists to the petition. \nIt is also urged, that the motive to the grant is the service rendered by raising cattle, and the advantage to be derive  from the establishment of a cow-pen. It is added, that the petitioner has ceased to apply the land to the intended object. \nIt having been decided that land might be granted for meritorious services, the governor must necessarily judge of them; and the full title acknowledges that the conditions of the concession which was made by governor Kindelan, in October 1814, had been complied with. \nAfter reciting that the conditions of the concession have been fully performed, the grant proceeds: \"I have, therefore, granted, and by  these presents do grant, in the name of his majesty, to the said Don Juan Huertas, his heirs and successors, the said fifteen thousand acres of land in absolute property,\" &c. \nThe title to the land is complete, and cannot depend on his continuing to raise cattle or to keep up his cow-pen, after the change of government. The only question in the case which has not been already decided, respects the identity of the land decreed with that granted. \nThe decree confirms the title of the claimant, \"to the extent and agreeably to the boundaries, as in those surveys made by Don Andrew Burgevin;\" the plots of which are in the record. \nThe first, of five thousand acres, dated the 19th of September 1818, is situated on the east side of St John's, about six miles southward of Picolata, beginning on the margin of the river, near the mouth of Tocoy creek. \nThe description of the grant is five thousand acres, at a place called Tocoy, five miles above Picolata, and bounded on the west by the river St John's. The grant also mentions the adjoining lands of others, which the surveyor has omitted to mention. \nThe place called Tocoy in the grant, and the mouth of Tocoy creek mentioned in the survey,  may be considered as the same; since the land binds on the river into which Tocoy empties itself. The grant places the land five miles above Picolata, on the St John's; and the survey places it about six miles south of Picolata. Now the St John's runs from south; and, consequently, land on the river above Picolata, is south of Picolata. The identity of this trace is, we think, sufficiently proved. \nThe grant for the remaining ten thousand acres is placed on  the bank of the river, about twelve miles above a place called the Ferry, below A. Rayant's, bounded on the south by the lands of John Moore, and thence east, to the head of Deep Creek, taking in the east and west banks of the said creek, and bounded on the north by the south west line of Tocoy, and on the west by the river St John's. \n This part of the grant is surveyed in two tracts, one of six and the other of four thousand acres. The survey of six thousand acres is bounded on the west by the St John's river, and on the south by Moore's land, and by vacant land. The certificate of the surveyor does not mention the other boundaries described in the grant. But as the tract is bounded on the west by  the river St John's, and on the south by Moore's land, the omission of the other boundaries is not material. \nThe remaining survey of four thousand acres contains no description which connects it in any manner with the grant. The order for this survey having been made subsequent to the 24th of January 1818, could give no title to land not within the grant. \nThere is no error in so much of the decree as declares the claim to be valid, and as confirms the title of the claimant, to the extent and agreeably to the boundaries as in the surveys dated the 19th day of September 1818 and the 31st day of May 1820; and so far the same is affirmed: but there is error in so much of the said decree as confirms the title of the claimant to the extent and agreeably to the boundaries, as in the survey dated the 26th day of June 1820, and the said decree, so far as respects the title to the land contained in that survey, is reversed; and the cause is remanded to the said district court, with directions to reform the said decree, so as to conform the same to the decree of this court, by directing the said four thousand acres of land to be surveyed within the bounds of the grant to the claimant, if the  land be now vacant. \nThis cause came on to be heard on the transcript of the record from the superior court for the eastern district of Florida, and was argued by counsel; on consideration whereof, it is the opinion of this court, that there is no error in so much of the decree of the said superior court as declares the claim  of the petitioner to be valid, and as confirms the title of the claimant to the extent and agreeably to the boundaries in the surveys dated the 19th day of September 1818, and the 31st day of May 1820; and so far it is ordered, adjudged and decreed by this court, that the said decree be, and the same is hereby affirmed. But it is the opinion of this court, that there is error in so much of the said decree as confirms the title of the claimant to the extent and agreeably to the boundaries as in the survey dated the 26th day of June 1820; and that the said decree, so far as respects the title to the land contained in that survey be, and the same is hereby reversed. And it is further ordered and decreed by this court, that this cause be, and the same is hereby remanded to the said superior court, with directions to reform the said decree so as to conform  the same to the decree of this court, by decreeing the said four thousand acres to be surveyed within the bounds of the grant to the claimant, if the land be now vacant. \n \n\n ", " \nOpinion \n\n \n \n  Mr Chief Justice MARSHALL delivered the opinion of the Court. \nThis claim is founded on a concession made to the appellee in June 1817 by governor Coppinger, of sixteen thousand acres of land, lying in two places, designated in the petition and concession. The surveys were made in 1824. These surveys were laid before the register and receiver, whose report was unfavourable to the title. The appellee, believing it to be well founded, presented a petition to the judge of the district, praying an examination of his title, and that it be confirmed. \nThe attorney for the United States, in addition to his general objection to the want of power in the governor, contends, that his decree grants permission to cut timber, but does nto convey the land itself, and that the condition of the grant has not been performed. The proof is complete, that the mill, the building  of which was the consideration of the concession, was commenced in 1818, was in full operation in 1820, and has been kept up ever since. The material question is, whether the land itself, or the privilege  of cutting timber, was conceded.For this purpose the petition and concession are to be examined. \nDon Francisco Richard, after stating in his petition his intention to build a water saw mill, proceeds, \"and as for that purpose a fit situation is necessary, such as is offered on Pottsburg creek, bounded by the lands of Strawberry Hill, and the mentioned tract not being sufficient for the indicated objects, he requests that the quantity equivalent to the object of his petition, be granted to him, about one mile distant, east of M'Queen's mill, in order to get cypress for timber; therefore he supplicates your excellency submissively, to grant him your superior license, and the expressed tract of five miles of land for the purposes he proposes to himself, in order that, what he solicits being granted, he may, with all possible brevity, commence this advantageous work, and in order that he may have in the said tract the necessary timber.\" \nThe decree grants to the petitioner, \"license to construct a water saw mill, on the creek known by the name of Pottsburg, bounded by the lands of Strawberry Hill, and this tract not being sufficient, I grant him the equivalent quantity in Cedar Swamp,  about a mile east of M'Queen's mill, but with the precise condition, that as long as he does not erect said machinery, this grant will be considered null, and without value nor effect, until that event takes place; and then, in order that he may not receive any prejudice from the expensive expenditures which he is preparing, he will have the faculty of using the pines and other trees comprehended in the square of five miles, or the equivalent thereof, which five miles are granted to him in the mentioned place, the avails of which he will enjoy without any defalcation whatever.\" \nThis translation was made by order of the court, by the translator. \nAnother translation was made, also by order of the court, by the keeper of the public archives. The difference between them is unimportant. In the last, the petitioner, after stating his object; respectfully prays, that \"your excellency will grant him his superior permission, and also five miles square of land,  that he may possess thereon the necessary timber for the purposes aforesaid.\" \nThe decree grants the permission to build the mill on the lands adjoining Strawberrry Hill, and adds, \"if there be not sufficient lands, the  deficiency (to the amount granted), on Cedar Swamp.\" The condition of the grant is then stated nearly as in the preceding translation. \nThe petitioner asks permission to build the mill and a grant of land usually annexed to such permission. It is plainly to be inferred from these documents, that this quantity was five miles square. The same fact is collected from other similar grants.The doubt is, whether the land itself, or only the timber growing on it, is asked and conceded. \nThe petitioner, in the first translation, says, \"that the mentioned tract\" (on Pottsburg creek), \"not being sufficient for the indicated objects\" (that is, not amounting to five miles square), \"he requests that the quantity equivalent to the object of his petition, be granted to him in Cedar Swamp. He supplicates his excellency \"to grant him his license, and the expressed tract of five miles of land.\" \nThe application is obviously for land, not merely for the timber growing on it. \nThe concession is loosely worded, but is understood to allude to land. After granting permission to build a mill on the place designated, the governor adds, \"and this tract not being sufficient,\" plainly indicating the tract  on which the mill was to be constructed, \"I grant him the equivalent quantity in Cedar Swamp.\" The word \"tract\" means land, not timber, and the words \"equivalent quantity\" refer to the antecedent word \"tract,\" and consequently also mean land. After stating the condition of the grant, he adds, \"which five miles are granted to him in the mentioned place.\" \nThis construction is strengthened by the express permission to take timber while he is erecting the mill, for the purpose of executing the work. While the grant of the tract is of no effect, he is permitted to use the timber on it. The grant of the tract, which depends on building the mill, was obviously supposed to pass something more than was passed by the permission to cut timber until it should have effect. \nIt is difficult to conceive any motive for granting the timber  and withholding the land. That could not be granted to, or used by another, while the right to the timber existed. It is not to be believed that the government wished to restrain the grantee from cultivating a part of it. \nThe judge of the superior court construed this concession to be a grant of land, and we concur with him in this construction.  But the surveys laid before the court, were for a larger quantity of land than is expressed in the concession. That made on Pottsburg creek, which was intended for fourteen thousand four hundred acres, actually contains seventeen thousand six hundred and ten, being three thousand two hundred and ten more than was designed. This difference is accounted for, by the fact, that it includes other tracts previously appropriated, and a quantity of land covered with water. The superior court for the district has very properly, in its opinion, disallowed this excess, so far as respects the land covered with water. But after having adjudged the claim to be valid, \"  it confirmed and decreed the same to the said claimant, to the extent, and agreeably to the boundaries, as in the grant for the said land, and as in the surveys thereof, made by Andrew Burgevin; provided said surveys do not include a greater quantity of land than sixteen thousand acres.\" But the surveys do include a greater quantity, as the petitioner himself states in his petition. This conditional confirmation of the larger survey, according to the exterior boundaries as described in the plat, when the petitioner  is confessedly not entitled to all the vacant land lying within those boundaries, is, we think, not to be sustained. \nThis court is of opinion, that there is no error in so much of the decree of the superior court for the district of East Florida, made in this case, as declares the claim to be valid, and as confirms the title of the petitioner to the land described in the second survey mentioned in the said decree, containing sixteen hundred acres, made the 26th of November 1824, and doth affirm so much thereof. But this court is of opinion, that there is error in so much of the said decree as confirms the title of the petitioner to the land described in the first survey, made on the 1st day of November 1824, because the said survey is admitted by the petitioner to contain more than fourteen thousand four hundred acres of land not previously granted. This court doth,  therefore, reverse so much of the said decree as confirms the title of the petitioner to the land contained in the said survey, according to the exterior boundaries in the said decree described, and doth remand the cause to the said superior court, with directions to conform its decree to the decree of this  court, by ordering the said tract to be so surveyed as to contain fourteen thousand four hunred acres of land not previously granted, and no more. \nThis cause came on to be heard on the transcript of the record from the superior court for the eastern district of Florida, and was argued by counsel; on consideration whereof, this court is of opinion, that there is no error in so much of the decree of the superior court for the district of East Florida, made in this case, as declares to be valid, and as confirms the title of the petitioner to the land described in the second survey mentioned in the said decree, containing sixteen hundred acres, made the 26th of November 1824; and doth affirm so much thereof. But this court is of opinion, that there is error in so much of the said decree, as confirms the title of the petitioner to the land described in the first survey, made on the 1st day of November 1824, because the said survey is admitted by the petitioner, to contain more than fourteen thousand four hundred acres of land not previously granted. This court doth, therefore, reverse so much of the said decree as confirms the title of the petitioner to the land contained in the said  survey, according to the exterior boundaries in the said decree described; and doth remand the cause to the said superior court, with directions to conform its decree to the decree of this court, by ordering the said tract to be so surveyed, as to contain fourteen thousand four hundred acres of land not previously granted, and no more. \n \n\n ", " \nOpinion \n\n \n \n Mr Chief Justice MARSHALL delivered the opinion of the Court. \nThe appellee had obtained a concession for ten thousand acres of land, from governor Kindelan, in March 1813. The petitioner, in his application to the governor, sets forth many and great services rendered to the government, in the course of which he had sustained considerable loss, in the last insurrection. He also states that he has ten children, and fourteen slaves. \nGovernor Kindelan, in his decree making the concession, states his own knowledge of the facts set forth in the petition, but grants the ten thousand acres, with the precise condition to use the same for the purpose of raising cattle, \"without having the faculty of alienating the said tract, without the knowledge of this government.\" \nOn the 20th of July 1816, governor Coppinger granted a complete title to this land. His grant recites the  decree made by governor Kindelan, and the boundaries of the land. This claim was laid before the board of commissioners, and recommended for confirmation. Don Antonio Huertas presented his petition to the court for the district of East Florida, by which tribunal his claim was adjudged valid. It was confirmed to him to the extent, and agreeably to the boundaries as in the grant, and the plat of the survey of said land, made by Andrew Burgevin, on the 19th of September 1818, and filed in the cause. \nNo exception can be taken to this decree, unless the survey  made by Burgevin varies from the grant. The description in the survey corresponds, in many respects, with that in the grant; but does not pursue its calls with such regular precision as to prove, completely, their exact identity. But as this objection was not taken in the superior court for the district, where a survey could have been ordered, if deemed necessary; as the testimony in favour of identity greatly preponderates; and as the judge appears to have entertained no doubt that the survey represented truly the land granted: this court thinks the judgment ought not to be reversed on that account. It is, accordingly,  affirmed. \nThis cause came on to be heard on the transcript of the record from the superior court for the eastern district of Florida, and was argued by counsel; on consideration whereof it is ordered, adjudged and decreed by this court, that the decree of the said superior court in this cause be, and the same is hereby affirmed, in all respects. \n \n\n ", " \nOpinion \n\n \n \nMr Chief Justice MARSHALL delivered the opinion of the Court. \nThis claim is for twelve thousand acres of land, on Jupiter Island, in East Florida, for which a concession was made by governor Estrada, on the 16th day of July 1815. The concession is for services, and is unconditional. It was declared valid by the district court to the extent of the grant. The decree is affirmed. \nThis cause came on to be heard on the transcript of the record from the superior court for the eastern district of Florida, and was argued by counsel; on consideration whereof, it is ordered, adjudged and decreed by this court, that the decree of the said superior court in this cause be, and the same is hereby affirmed, in all respects. \n \n\n ", " \nOpinion \n\n \n \nMr Chief Justice MARSHALL delivered the opinion of the Court. \nThis claim is for twenty thousand acres of land, situated on the banks of the river St Sebastian, to the south of Indian river, between the eastern coast of Florida and the river St John's. The complete title was granted by governor Coppinger to George Fleming, the ancestor of the plaintiffs, on the 24th of September 1816. The court decided that it was a valid title, and confirmed it to the plaintiffs to the extent, and agreeably to the boundaries, as set forth in the grant. The judgment is affirmed. \nThis cause came on to be heard on the transcript of the record from the superior court for the eastern district of Florida, and was argued by counsel; on consideration whereof, it is ordered, adjudged and decreed by this court, that the decree of the said superior court in this cause be, and the same is hereby affirmed,  in all respects. \n \n\n ", " \nOpinion \n\n \n \n Mr Chief Justice MARSHALL delivered the opinion of the Court. \nMoses E. Levi presented his petition to the superior court for the district of East Florida, praying that his claim to sixty-five thousand acres of land might be declared valid, and confirmed to him, according to several different grants and surveys under which he derived title. He is not himself a grantee of any one of the tracts, but is a purchaser from various persons. \nThe first claim stated in his petition, is to twenty thousand acres of land, derived from Philip R. Younge. \nOn the 22d of February 1817, governor Coppinger granted, in full title, to Philip R. Younge, for services, \"twenty-five thousand acres of land, south of the place known by the name of Spring Garden, in this form: twelve thousand acres of them, adjoining the lake or pond called Second, and known by the name of Valdes, and the remaining  thirteen thousand acres on the pond farther above the preceding, known by the name of Long Pond, the whole west of the river St John's.\" \nThis survey was made on the 2d of August 1819, under an order granted by the governor, of the 25th of May of the same year. \nThe certificate and plat of the surveyor, show that the twelve thousand acre tract lies on the lake called Second, but omits to state that it was also known by the name of Valdes. \nThe thirteen thousand acre tract is stated to be on the long lake, called in the grant, Long Pond. \nThe fair presumption, under all circumstances, no objection  to identity having been made in the superior court for the district, is, that the places are the same. \nThe surveyor has returned another plat, describing eight thousand acres, part of the thirteen thousand acre tract, which, with the twelve thousand acre tract, were sold to the petitioner by William Travers, who purchased the same from the grantee. \nThe second claim stated in the petition, is to ten thousand four hundred acres of land, part of a larger tract of fifteen thousand acres, for which Antonio Huertas obtained a concession from the governor of East Florida, on the 15th  of September 1817. This land was divided into four tracts, one of which, amounting to ten thousand four hundred acres, was sold and conveyed by Huertas to the petitioner. \nThe concession grants the land as asked in the petition. The prayer of the petition is for a grant of fifteen thousand acres of land, on a stream which runs from the west and unites itself with the river St John, at about twelve miles south of lake George, the survey being to commence at four or five miles west of the river St John, and the said stream dividing the said tract in two parts.\" The full title was issued on the 10th day of April 1821, and the survey was made on the 5th day of the same month. It conforms to the concession, except that it does not state the distance from the St John, at which the survey commenced. This tract was confirmed to Antonio Huertas, as well as to Moses E. Levi; but the conveyance to Levi appears in the proceedings, and is admitted by the counsel for Huertas and for Levi. \nThe third claim stated in the petition, is to two other tracts of land, comprising together seven thousand four hundred acres, part of a tract of ten thousand acres, originally conceded in absolute property  to Pedro Miranda, on the 10th day of September 1817, by the governor of East Florida. These seven thousand four hundred acres of land have come, by regular conveyances, from Miranda to the petitioner. \nThe concession grants the land described in the petition. It lies on a stream running from the west, and entering the river St John, and called in English the Big Spring, about twenty-five miles south of St George's lake, one of the fronts  of the said tract to be on St John's river, and to be divided in two parts by the stream aforesaid. \nThe survey was made on the 5th of April 1821, and conforms, in all respects, to the concession. \nThe fourth claim stated in the petition is to two other tracts of land, comprising together eight thousand acres, being part of a larger parcel, containing ten thousand acres, granted in absolute property to Fernando de la Maza Arredondo, on the 20th of March 1817, the title to which eight thousand acres the petitioner derives from the grantee. \nThe land contained in the concession, is described in the petition as lying, \"five thousand of them, in a hammock to be found five or six miles east of Spring Garden, and the remaining five thousand  west of the river St John, contiguous to a creek called Black Creek, near Fleming's Island, and the pond called Doctor's Lake.\" Four thousand acres in each of these tracts have been conveyed to the petitioner, and the surveys conform to the concession. \nThe fifth claim of the petitioner is to twenty thousand acres, part of a tract of twenty-two thousand acres, granted to George J. F. Clarke. The complete title was made by the governor on the 17th of December 1817. The land is described in the grant as lying \"in the hammocks, known under the names of Cuscowillo and Chachala, situate west of the place of the river St John's, where there was a store of the house of Panton, Leslie & Co., and about thirty miles from it.\" \nThe survey was executed on the 2d of August 1819, in pursuance of an order from the governor, dated the 20th of April of the same year. It conforms to the grant. \nThe judge of the superior court for the district of East Florida decreed in favour of the validity of all these claims, and confirmed them to the petitioner, to the extent of the several concessions, grants and surveys, under which they were respectively held. \nThe validity of the several grants depends on  the principles which were discussed and decided in the case of the United States v. Clarke, so that the only question remaining undecided respects the conformity of the surveys with the valid title. This conformity exists in every case, unless it be in the tract of ten thousand four hundred acres, derived from Antonio Huertas.  In that concession, the land is required to lie on a stream, which is sufficiently designated, the survey to commence four or five miles from the St John's. The land lies on the stream which is required, but its distance from the St John's is not mentioned. Two decrees of confirmation are entered for this tract. One a separate decree on the 23d, and the other a general decree on the whole claim, on the 26th of May 1832. \nThis court is of opinion that there is no error in so much of the decrees of the superior court of the district of East Florida as declares the claim of Moses E. Levi to be valid, and in so much of the said decree as confirms to the petitioner the lands conveyed to him contained in the grant to Philip R. Younge on the 22d of February 1817, in the grant to Pedro Miranda on the 10th day of September 1817, in the grant to Fernando  de la Maza Arredondo on the 20th of March 1817, and in the grant to George J. F. Clarke on the 17th of December 1817, as described in the said decree; and this court doth affirm the same so far as respects the land claimed by the petitioner in these several grants and concessions. \nBut this court is of opinion, that there is error in so much of the decree pronounced on the 23d of May 1832, and in so much of the decree pronounced on the 26th of the same month, as confirms the title of the said Moses E. Levi to the land contained in the concession made to Antonio Huertas, according to the boundaries described in the said decrees, and doth so far reverse the same; and doth farther adjudge and decree, that the said cause be remanded to the superior court for the district of East Florida, with directions to conform, in all things, to this decree: and if it shall appear to that court that the tract of ten thousand four hundred acres has not been surveyed, according to the concession made to Antonio Huertas on the 15th of September 1817, that the same be resurveyed, on the land contained in the said concession, and be decreed and confirmed to the petitioner if the same be now vacant. \nThis  cause came on to be heard on the transcript of the record from the superior court for the eastern district of Florida, and was argued by counsel; on consideration whereof, this court is of opinion that there is no error in so much of the  decrees of the superior court of the district of East Florida, as declares the claim of Moses E. Levi to be valid, and in so much of the said decree as confirms to the petitioner, the lands conveyed to him contained in the grant to Philip R. Younge, on the 22d of February 1817; in the grant to Pedro Miranda on the 10th day of September 1817; in the grant to Fernando de la Maza Arredondo on the 20th of March 1817; and in the grant to George J. F. Clarke on the 17th of December 1817, as described in said decree, and this court doth affirm the same so far as it respects the land claimed by the petitioner in these several grants and concessions. But this court is of opinion that there is error in so much of the decree pronounced on the 23d of May 1832, and in so much of the decree pronounced on the 26th of the same month, as confirms the title of the said Moses E. Levi to the land contained in the concession made to Antonio Huertas according  to the boundaries described in the said decrees, and doth so far reverse the same, and doth further adjudge and decree that this cause be remanded to the superior court for the district of East Florida with directions to conform in all things to this decree, and if it shall appear to that court that the tract of ten thousand four hundred acres has not been surveyed according to the concession made to Antonio Huertas on the 15th of September 1817, that the same be resurveyed on the land contained in the said concession, and be decreed and confirmed to the petitioner if the same be now vacant. \n \n\n ", " \nOpinion \n\n \n \nMr Chief Justice MARSHALL delivered the opinion of the Court. \nThis is a claim for five thousand acres of land; part of a grant for twenty-five thousand acres, made by the governor of East Florida to the petitioner, on the 22d of February 1817. Part of this land, twenty thousand acres, was conveyed to Moses E. Levi, and both the validity of the claim, and the identity of the land were established, in the opinion given in that case. \nThe decree of the superior court for the district of East Florida is affirmed. \nThis cause came on to be heard on the transcript of the record from the superior court for the eastern district of Florida, and was argued by counsel; on consideration whereof, it is ordered, adjudged and decreed by this court, that the decree of the said superior court in this cause be, and the same is hereby affirmed, in all respects. \n \n\n ", " \nOpinion \n\n \n \n Mr Chief Justice MARSHALL delivered the opinion of the Court. \nThis was a petition presented in pursuance of the act of congress, of the 23d of May 1828, providing for the adjudication of private land claims in Florida. The petitioners state that their claim is founded upon a grant for ten thousand acres of land, made by the governor of the province, then under the dominion of the king of Great Britain, to their ancestor Philip P. Fatio, deceased; and that by the stipulations of the treaty between their Britannic and catholic majesties, dated the 3d of September 1783, provision was made in the fifth article, that the British proprietors should be allowed a specified period to sell their lands in the provinces of East and West Florida, which were by that treaty ceded to Spain. \nIt was further provided, that where the value of the possessions was such, that \"they should not be able to dispose of them within the said term, then  his catholic majesty shall grant them a prolongation proportioned to that end.\" \nProvision was also made by Spain in favour of such of the British proprietors as remained in the province, and became Spanish subjects. The ancestor of the petitioners remained and took the oath of allegiance, and the lands were surveyed and confirmed to him by the Spanish authorities. \nThe title was presented to the commissioners, and a report made in favour of the grant; and by the third section of the act of congress, approved May the 26th 1830, it was provided, \"that all claims derived from the former British government,  contained in the reports of the commissioners of East Florida, who did not avail themselves of the treaty between spain and England, signed at Versailles on the 20th of January 1783, by leaving said province, but who remained in the same and became Spanish subjects, and whose titles were approved by the Spanish authorities, and have been recommended by the commissioners, or the register and receiver acting as such, be, and the same are hereby confirmed.\" \nThe treaty referred to in the above recited act, was evidently intended to be that of the 3d of September 1783, and  the article is the fifth of that treaty, and not the third, as alleged in the petition. \nIn addition to the above laws and treaties, the petitioners have proved a possession, which constitutes a title by prescription, by the laws of Spain. \nIt is therefore considered, adjudged and decreed, that the decree of the superior court of East Florida, be affirmed. \nThis cause came on to be heard on the transcript of the record from the superior court for the eastern district of Florida, and was argued by counsel; on consideration whereof, it is ordered, adjudged and decreed by this court, that the decree of the said superior court in this cause be, and the same is hereby affirmed in all respects. \n \n\n ", " \nOpinion \n\n \n \nMr Chief Justice MARSHALL delivered the opinion of the Court. \nThis was a grant made by governor Grant, of East Florida, for ten thousand acres of land whilst that province was under the dominion of Great Britain, and another grant made by governor Tomyn, to Francis P. Fatio, for seven hundred and sixty acres. The first tract was conveyed by regular deeds to the ancestor of the petitioners. \nThe same questions are involved as in the case of the heirs of Francis P. Fatio. It is therefore considered by the court, that the decree of the superior court of East Florida be affirmed. \nThis cause came on to be heard on the transcript of the record from the superior court for the eastern district of Florida, and was argued by counsel; on consideration whereof, it is ordered, adjudged and decreed by this court, that the decree of the said superior court in this cause be, and the same is hereby affirmed  in all respects. \n \n\n ", " \nOpinion \n\n \n \n   Mr Chief Justice MARSHALL delivered the opinion of the Court. \nThis is a writ of error to a judgment rendered by the court for the correction of errors of the state of New York. \nThe defendants in error had obtained a judgment against Charles A. Davis in the supreme court of New York, which was removed by writ of error into the court for correction of errors. In that court the said Davis assigned for error, that he was, when the suit was instituted, and has ever since continued to be consul-general of his majesty the king of Saxony, in the United States, and ought, according to the constitution and laws of the United States, to have been impleaded in the said supreme court of the United States, or in some district  court of the said United States, and that the said supreme court had not jurisdiction, and ought not to have taken to itself the cognizance of the said cause. The defendants in error replied, that there was no error; and the court for the correction of errors affirmed the judgment of the supreme court. \nThis last judgment was brought before this court in conformity with the twenty-fifth section of the judicial act, and this court being of opinion \"that the said  Charles A. Davis being consul-general of the king of Saxony, exempted him from being sued in the state court, and that by reason thereof, the judgment rendered by the court for the correction of errors, was erroneous; therefore, it was considered, ordered and adjudged, that the judgment of the said court for the correction of errors should be, and the same is reversed; and that this cause be remanded to the said court for correction of errors, with directions to conform its judgment to this opinion.\" \nThe mandate issued in pursuance of this judgment having been received by the court for the correction of errors, that court declared and adjudged, \"that a consul-general of the king of Saxony is, by the constitution and law of the United States, exempt from being sued in a state court;\" and did further adjudge and declare, \"that the supreme court of the state of New York is a court of general common law jurisdiction, and that, by the laws of this state, this court [the court of errors] has no jurisdiction, power or authority to reverse a decision of the said supreme court for any error in fact, or any other error than such  as appears upon the face of the record and proceedings  of the said supreme court, and that no other errors can be assigned, or regarded as a ground of reversal of a judgment of the said supreme court, than such as appear upon the record and proceedings of the said supreme court, and which relate to questions which have actually been brought before the justices of that court for their decision thereon by a plea to the jurisdiction of the court, or otherwise; and that this court was not authorised to notice the allegations of the said Charles A. Davis assigned for error in this court, that he was consul-general of the king of Saxony, or to try the truth of the said allegation, or to regard the said allegation as true; and that, by the laws of this state, the replication of the defendant to an assignment of errors, that there is no error in the record  and proceedings aforesaid, or in the giving of the judgment of the supreme court, was not an admission of any matter assigned as error in fact, or which was not properly assignable for error in this court; and that if there was no error upon the face of the record and the proceedings in the supreme court, the defendant in error was entitled to a judgment of affirmance, according  to the laws of this state; any matter assigned for error in fact, to the contrary notwithstanding. And it is further declared and adjudged, that by the laws of this state, if there be any error in a judgment of the said supreme court, or in the proceeding, which is properly assignable for error in fact, the party aggrieved by such error may sue out a writ of error coram vobis, returnable to the said supreme court, upon which the plaintiff in error may assign errors in fact. And if such errors in fact are admitted, or are found to be true by the verdict of a jury, upon an issue joined thereon, the said supreme court may revoke their said judgment; and that for any error in the judgment of the said supreme court, upon the said writ of error coram vobis, this court has jurisdiction and authority, upon a writ of error to the said supreme court, to review the said last mentioned judgment, and to give such judgment in the premises as the said supreme court ought to have given. It is therefore the opinion of this court that, although the said Charles A. Davis, the plaintiff in error in this cause, might have been the consul-general of the king of Saxony, and, as such, was not liable to  be sued in the state court, yet inasmuch as the fact that he was such consul, no where appeared in the record of the judgment of the said supreme court, the defendant in error is entitled to the judgment of this court, affirming the judgment of the said supreme court. But the defendant in error, having, upon the filing of the said mandate of the said supreme court of the United States, applied to this court to dismiss the writ of error to the said supreme court of this state, it is therefore ordered and adjudged, that the last mentioned writ of error be quashed; and it is further ordered and adjudged, that the defendants in error recover against the plaintiff in error their costs, &c.\" \nThis judgment also has been brought before this court by writ of error, and it has been argued, that the mandate on the  former judgment has been disregarded, and that, consequently, this second judgment ought to be reversed. \nThe court has felt great difficulty on this question. The importance of preserving uniformity in the construction of the constitution, laws and treaties of the United States, must be felt by all; and the impracticability of maintaining this uniformity, unless the  power of supervising all judgments in which the constitution, laws or treaties of the United States may be drawn into question, be vested in some single tribunal, is too apparent for controversy. The people of the United States have vested that power in this tribunal, and its highest duty is to exercise it with fidelity. The point of difficulty in this case is to decide, whether the legitimate exercise of this power has been obstructed by the judgment of the court of errors of New York, now under consideration. \nIt is not to be admitted, that the court whose judgment has been reversed or affirmed, can re-judge that reversal or affirmance; but it must be conceded, that the court of dernier resort in every state, decides upon its own jurisdiction, and upon the jurisdiction of all the inferior courts to which its appellate power extends. Assuming these propositions as judicial axioms, we will inquire whether the judgment of the court of errors for the state of New York is in violation of the mandate of this court. \nThe original judgment of the court of errors, which was brought before this court, was reversed in terms. This reversal was not to depend upon any act to be performed,  or opinion to be given by the court of errors; but stood absolute by the judgment of this court. So is the law, and so was the judgment rendered by this court. Its language, after expressing the opinion that Charles A. Davis, being consul-general of the king of Saxony, exempted him from being sued in a state court, is, \"therefore it is considered, ordered and adjudged by this court, that the judgment of the said court for the correction of errors be, and the same is hereby reversed.\" On filing the mandate there, the said judgment stood reversed. \nNeither the judgment nor mandate of this court, prescribed, in terms, the judgment which should be rendered by the court or errors of New York. This court proceeded to order, that the cause be remanded to the said court for the correction of errors,  with directions to conform its judgment to the opinion of this court. The opinion expressed therein was, that Charles A. Davis, being consul-general of the king of Saxony, exempted him from being sued in the state court. \nThe judgment rendered in the court of errors being thus reversed, because of this exemption, it was for the court of errors to inquire and decide in what manner  it should conform its judgment to this opinion. Had that court re-entered its former judgment, the direct opposition of this proceeding to the mandate, would have been apparent. But this was not done. The court of error admitted the exemption of Charles A. Davis from being sued in the courts of a state; but added, that the fact did not appear in the record of the proceedings of the supreme court of New York; and that  its own power did not extend to the reversal of any judgment of that court, for an error of fact not apparent on the face of the record, though it should be assigned as error in the court for the correction of errors. \nThis court only be effected, regularly, by suing out a writ of error coram vobis, in the supreme court of the state, whose judgment on that writ might be revised in the court for the correction of errors. \nThe court also added its opinion, that the defendant in error was entitled to its judgment affirming that of the supreme court, but did not give the judgment of affirmance. Upon filing the mandate, the counsel for the defendant in error moved the court to dismiss the writ of error to the supreme court of the state, and the court ordered  it to be quashed. \nThe judgment of the court of errors then affirming the judgment of the supreme court of the state, stands reversed, and the writ of error to that judgment is quashed, leaving the defendant, in the original action, at full liberty to sue out and prosecute his writ of error coram vobis, for its reversal in the supreme court of New York. \nIf the jurisdiction of the court for the correction of errors does not, according to the laws by which the judicial system of New York is organised, enable that court to notice errors in fact in the proceedings of the supreme court, not apparent on the face of the record, it is difficult to perceive how that court could conform its judgment to that of this court, otherwise than  by quashing its writ of error to the supreme court. Had that been its original judgment, it is not believed that this court would have reversed it; and we do not think that as now rendered, it can be held to be erroneous. \nThe judgment is affirmed with costs. \nThis cause came on to be heard on the transcript of the record from the court for the correction of errors of the state of New York, and was argued by counsel; on consideration whereof, it  is the opinion of this court, that there is no error in the judgment of the said court for the correction of errors of the state of New York, quashing the writ of error from the supreme court of judicature of New York; whereupon it is ordered and adjudged by this court, that the said judgment of the said court for the correction of errors be, and the same is hereby affirmed with costs. \n \n\n ", " \nOpinion \n\n \n \n  Mr Chief Justice MARSHALL delivered the opinion of the Court. \nIn this cause the judges of the court for the seventh circuit and district of Kentucky, were divided in opinion on two questions, which were ordered to be certified to this court, in the following manner. \n1st. This court being then divided, and the judges opposed in opinion as to the jurisdiction over the case, and unable therefore to render a decree on the merits, they resolve to adjourn that question to the supreme court: to wit, under all the circumstances appearing as above, can this court entertain cognizance of the case. \n2d. The judges were also opposed in opinion on the point,  whether the complainants were entitled to a decree, in the absence of any proof that the persons made defendants in the amended bill, as heirs of George Boon, were, in fact, his heirs, both of which points occurred, and became material in this case. \n1st. The first question adjourned to this court is, \"under all the circumstances appearing as above, can this court (the circuit court for the district of Kentucky) entertain cognizance of the case. \n The circumstances mentioned above are, that Thomas Boon, a citizen and resident of Pennsylvania, filed a bill in that court, in January 1823, against William Chiles, and others, citizens and residents in Kentucky, praying that the defendant, Chiles, or such other of the defendants as may hold the legal title, may be decreed to convey to him certain lands in the bill mentioned, and for general relief. \nThe bill states, that Reuben Searcy, being entitled to one moiety of a settlement, and pre-emption right of fourteen hundred acres of land, located in Licking, sold the same to William Hay, in September 1781, and executed a bond for a conveyance. In December following, Hay assigned this bond to George Boon, who, in April 1783, assigned it to the plaintiff. Hay, while he held the bond, obtained an assignment of the plat and certificate of survey, which he caused to be registered; and the patent was issued in his name in 1785. \nThe bill states, that in 1802, the plaintiff made a conditional sale of this land to Hezekiah Boone, but the conditions were not complied with, and the contract was considered by both parties as a nullity. Yet, a certain William Chiles, and the said Hezekiah  Boon and George Boon, fraudulently uniting the plaintiff's name with their own, without his consent or knowledge, filed a bill in chancery, praying that the heirs of Hay might be decreed to convey the legal title to the said William Chiles, who claimed the right of Searcy, through the plaintiff, under his pretended sale to Hezekiah Boon. A decree was obtained, under which a conveyance was made to Chiles, by a commissioner appointed by the Court. The plaintiff avers his total ignorance of these transactions at the time, and disavows them. \nWhile this suit was depending, the decree of Bourbon court  was reversed in the court of appeals of the state, and the cause remanded to that court for farther proceedings. \nThe complainant died, and the suit was revived in the name of his heirs. \nThe case states, that the complainants amended their bill, showing a reversal of the decree of Bourbon court, and making the heirs of Hay defendants, and praying a conveyance from them. Their amended bill is not in the record. They also filed an amended bill, making the heirs of George Boon parties, and stating that his heirs disclaimed all title to the property. On of them answered and disclaimed  title. It is not stated whether process was, or was not executed on the other heirs of George Boon. \nThe defendant, William Chiles, in his answer states, that there were other heirs of Hay than those mentioned in the bill and made defendants, who are not residents of Kentucky. \nUpon this statement, the court is required to say, whether the circuit court for the district of Kentucky can take cognizance of the case? \nNo controversy exists between the plaintiffs and William Chiles, respecting the title of Searcy or his conveyance to Hay, or that of Hay to George Boon, or the conveyance of George Boon to Thomas Boon. Both claim under three several conveyances; both admit and assert their validity. Chiles contends, that Thomas Boon sold this equitable title to Hezekiah Boon, under whom he claims, which sale the plaintiffs deny. This then is the single point in issue between the parties. If the case is in such a situation as to enable the circuit court to take cognizance of this question, it has jurisdiction. \nThe bill states a contract between Thomas and Hezekiah Boon, for the sale of the property, which contract, it charges, became void by consent of parties; and that Chiles purchased  from Hezekiah Boon, with full knowledge that it was void, and that the equitable title still remained in Thomas Boon. That, with this knowledge, he fraudulently filed a bill, in the name of himself and of the said Thomas, who was totally ignorant of the transaction, praying that the heirs of Hay might be decree to convey to him. This decree was obtained, but has been since reversed. \nIt is clear, that the heirs of Hay can have no interest in this  contest between the heirs of Thomas Boon and William Chiles, and need not be made parties, but for the purpose of obtaining a conveyance of the legal title, if it still remains in them. The court may very properly decree as between Boon's heirs and Chiles, although the heirs of Hay should not be parties.Chiles is in possession of a contract for the sale of Boon's equitable title, which Boon alleged to be totally invalid, and to have been fraudulently acquired. His heirs now allege it. Chiles maintains that the ale from Thomas to Hezekiah Boon was absolute and bona fide; and that the whole equitable interest  of Thomas Boon is legally and justly vested in him. The heirs of Thomas Boon may certainly come into a  court of equity, and ask its decree to compel William Chiles to surrender this contract, if it has indeed become a nullity, or to enjoin him perpetually from the use of it, or to convey any legal title he may have acquired under colour of it, to those who possess the real equitable right. Should the court be unable to decree against Hay's heirs, it may decree as between Boon's heirs and William Chiles, so far as respects the title of Chiles under Boon; if the bill be so framed as to enable the court to grant that relief. \nThe original bill, as has already been shown, charges that Chiles purchased from Hezekiah Boon, knowing that he had no equitable right, and fraudulently prosecuted that right in the name of Thomas Boon, without his consent or knowledge. It prays for a conveyance of the legal title from those who may possess it, and also prays for general relief. This last prayer entitles the plaintiff to any relief which may be granted under his bill, and which is not inconsistent with the specific relief for which he asks. It must be admitted that had the bill prayed specifically for a surrender of the contract under which Chiles claimed, the court might have decreed it, had  the testimony justified such a decree: and it will be conceded that this relief is not inconsistent with that for which the bill particularly prays. \nWe think, therefore, that the question between the plaintiffs, and the defendant William Chiles, is within the jurisdiction of the circuit court for the district of Kentucky, and may be decided by that court, though Hay's heirs were not parties to  the suit. That they were made parties, cannot oust the jurisdiction as between those who are properly before the court. \nIt is not intended to say, that where there are several heirs, some out of the jurisdiction of the court, a decree may not be made for a conveyance of their own shares, from those on whom process has been served: but it is not thought necessary to decide that question in this case as it is stated. \nThe principles settled in the answer to the first question decide the second. George Boon's heirs are not necessarily defendants.They can have no interest in the contest, nor is any decree asked against them. If they are made defendants, and the answer admits that they are heirs, as is admitted by the defendant who has answered, no farther proof can be required. If  they do not answer, and the process is executed, so that the bill is taken for confessed, no farther proof is necessary. If the process be not executed, they are not before the court. \nWe do not perceive that in this case, as stated, any proof respecting the heirs of George Boon ought to be required. \nThe court directs the following certificate. \nThis cause came on to be heard on the transcript of the record from the circuit court of the United States for the district of Kentucky, and on the questions and points on which the judges of the said court were opposed in opinion, and which was certified to this court for its opinion, agreeably to the act of congress in such case made and provided, and was argued by counsel; on consideration whereof, this court is of opinion, 1. That under the circumstances stated in the certificate of the judges, the said circuit court could entertain cognizance of the case. 2. That the want of proof that the persons made defendants in the amended bill as the heirs of George Boon, were in fact his heirs, is no obstruction to a decree on the merits of the cause; all of which is hereby ordered and adjudged to be certified to the said circuit court under  the seal of this court. \n \n\n ", " \nOpinion \n\n \n \n  Mr Chief Justice MARSHALL. \nThe court are unanimous in refusing the motion. The object of the section in the duty law is to secure the prompt collection of duties, indisputably ascertained. When there are errors in calculating the duties, and they are alleged on affidavits, the delay of one term is allowed. And where there is a real defence, an opportunity to obtain evidence by a continuance, according to the circumstances of the case, must be given. There cannot be a case of this description where the opportunity should be denied. \nMandamus refused, and the motion overruled. \n \n\n ", " \nOpinion \n\n \n \n  Mr Chief Justice MARSHALL delivered the opinion of the Court in this and the preceding case. \nThe practice of this court is, not (except in cases of absolute necessity) to deliver any judgment in cases where constitutional  questions are involved, unless four judges concur in opinion, thus making the decision that of a majority of the whole court. In the present cases four judges do not concur in opinion as to the constitutional questions which have been argued. The court therefore direct these cases to be reargued at the next term, under the expectation that a larger number of the judges may then be present. \nNote. Mr Justice JOHNSON and Mr Justice DUVALL were absent when these cases were argued. \n \n\n ", " \nOpinion \n\n \n \n  Mr Chief Justice MARSHALL delivered the opinion of the Court, dismissing the appeal with costs; because the appeal was granted before there was a final decree in the case. \nOn appeal from the circuit court of the United States for the district of Columbia, holden in and for the county of Alexandria. On consideration of the motion  made in this cause yesterday, by Mr Edmund J. Lee of counsel for the appellees to dismiss this cause, because the appeal was granted before there was a final decree rendered in the court below, and of the arguments of counsel thereupon, had as well for the appellant as for the appellees: it is now here ordered, adjudged and decreed by this court, that this appeal be and the same is hereby dismissed with costs. \n \n\n ", "Opinion by: BALDWIN \nOpinion \n\n \n \n Mr Justice BALDWIN was of opinion, that in a cause of this sort, the court ought not to dispense with the regular course of proceedings, by the granting and service of a rule to show cause. \nMr Chief Justice MARSHALL said, that the grant of a rule to show cause and the service thereof, is a matter in the discretion of the court. The court may, in its discretion, grant an alternative mandamus, if it deems it more conducive to public  justice, and to prevent delays. Here all the parties express themselves ready to proceed in the cause. The district judge waives any formal rule and notice, and wishes no delay; and states his readiness now to show cause. Under such circumstances, all the purposes of a rule to show cause and notice are accomplished, and there  is no necessity for directing such a rule and notice. The court, therefore, in my opinion, may properly proceed at once to the hearing of the cause, for the purpose of ascertaining whether a mandamus ought or ought not to be awarded. \nThe other judges concurred in the opinion of the chief justice; and the court directed the motion to come up on the next motion day. \n \n\n ", " \nOpinion \n\n \n \n  Mr Chief Justice MARSHALL  delivered the opinion of the Court. \nThis is a writ of error to a judgment of restitution awarded by the court of the United States for the seventh circuit and district of Kentucky, whereby the tenant of the defendants in error was restored to the possession of a tract of land from which he had been improperly removed, under the process of that court. \nThe defendants in error filed their petition in the circuit court, stating that a declaration of ejectment had been brought by John Doe, on the demise of Samuel Smith, and notice served on Hiram and William bryant, the tenants of the petitioners;  and a judgment was rendered against them in May term 1818, on which no writ of habere facias possessionem has been issued. \nIn November term 1818, a judgment was rendered against other tenants, by virtue of which the marshal turned John Evans out of possession; who, as tenant of the petitioners, resided on the pace which had been occupied by the Bryants. \nA rule of show cause was granted, and on its return restitution was awarded. To this judgment of restitution, this writ of error is awarded. \nThe judicial act authorizes this court to issue writs of error to bring up any final judgment  or decree in a civil action or suit in equity, depending in the circuit court, &c. \nThis is not a final judgment in a civil action, nor a decree in a court of equity. It is no more than the action of a court on its own process, which is submitted to its own discretion. This court takes no jurisdiction in such a case. it is not, we think, given by the judicial act. \nThe writ of error is quashed and the suit dismissed, the court having no jurisdiction. \nIn error to the circuit court of the United States for the district of Kentucky. \nThis cause came on to be heard on the transcript of the record from the circuit court of the United States for the district of Kentucky, and was argued by counsel; on consideration whereof, it is the opinion of this court, that this is not a final judgment in a civil action, nor a decree in a court of equity, but no more than the action of a court on its own process, which is submitted to its own discretion, and that the court cannot take jurisdiction in such a case, it not being given by the judicial act; and that the writ of error must be quashed and the suit dismissed, the court having no jurisdiction. Whereupon, it is considered, ordered and adjudged  by this court, that this writ of error be, and the same is hereby dismissed for the want of jurisdiction. \n \n\n ", " \nOpinion \n\n \n \n  Mr Chief Justice MARSHALL delivered the opinion of the Court. \nThis is a case certified to this court from the circuit court of the United States, for the seventh circuit and district of Kentucky, on which the judges of that court were divided in opinion. \nAn indictment had been found against John Bailey upon the act of March 3d 1823, for the punishment of frauds committed against the United States. \nAfter the attorney for the prosecution had laid his whole case before the court and jury, the counsel for the prisoner moved the court to instruct the jury, that the evidence did not conduce to establish the offence denounced by the first section of the act of congress of the 3d of March 1823, entitled \"an act for the punishment of frauds committed on the government of the United States,\" nor any other act of congress under which the  indictment was framed; which motion, the attorney for the United States opposed, and on this question the judges were divided and their opinion opposed. Where-upon,  on motion of the attorney for the United States, the said question and disagreement were stated and ordered to be certified to the supreme court. \nThe 6th section of the act \"to amended the judicial system of the United States,\" enacts, \"that whenever any question shall occur before a circuit court, upon which the opinions of the judges shall be opposed, the point upon which the disagreement shall happen, shall, during the same term, upon the request of either party or their counsel, be stated under the direction of the judges, and certified under the seal of the court to the supreme court, at their next session, to be held thereafter; and shall by the said court be finally decided.\" The act also contains a provision, that \"nothing herein contained shall prevent the cause from proceeding; if, in the opinion of the court, farther proceedings can be had without prejudice to the merits.\" Story 856. \nThe language of the section shows, we think, conclusively, that congress intended to provide for a division of opinion  on single points, which frequently occur in the trial of a cause; not to enable a circuit court to transfer an entire cause into this court, before a final judgment. A construction which would authorize such transfer, would counteract the policy which forbids writs of error or appeal until the judgment or decree be final. If an introductory judgment or decree could be brought into this court, the same case might against be brought up after a final decision; and all the delays and expense incident to a repeated revision of the same cause, be incurred. So if the whole cause, instead of an insulated point, could be adjourned; the judgment or decree which would be finally given by the circuit court, might be brought up by writ of error or appeal, and the whole subject be re-examined. Congress did not intend to expose suitors to this inconvenience; and the language of the provision does not, we think, admit of this construction. A division on a point, in the progress of a cause, on which the judges may be divided in opinion; not the whole cause; is to be certified to this court. \nThe certificate of the judges leaves no doubt that the whole cause was submitted to the circuit court,  by the motion of the counsel for the prisoner. The whole testimony in support of the prosecution had been submitted to the court, and  upon this whole testimony, the counsel for the prisoner moved the court to instruct the jury, that the evidence did not conduce to establish the offence denounced by any act of congress, under which the indictment was framed. This instruction necessarily embraced the whole cause. Had it been given, the prisoner must have been acquitted. Had the court declared that the testimony did support the indictment, the whole law of the case would have been decided against the prisoner; and the jury must have convicted him, or have disregarded the instruction of the court. \nIt has been repeatedly decided, that the whole cause cannot be adjourned on a division of the judges; and as this is, we think, a case of that description, we cannot decide it in its present form. The case is remanded to the circuit court; this court not having jurisdiction over the question as stated. \nThis cause came on to be heard on the transcript of the record from the circuit court of the United States, for the district of Kentucky, and was argued by counsel; on consideration  whereof, it is the opinion of this court that the whole case has been certified to this court; and as it has been repeatedly decided by this court, that the whole case cannot be adjourned on a division of the judges, the court cannot decide this case in its present form. Whereupon, it is ordered and adjudged by this court, that this case be, and the same is hereby remanded to the said circuit court for further proceeding, to be had therein according to law and justice, this court not having jurisdiction over the question as stated. \n \n\n ", " \nOpinion \n\n \n \n  Mr Chief Justice MARSHALL delivered the opinion of the Court. \nThis is an appeal from a decree pronounced in the court of the United States for the district of Kentucky, directing the appellants to release and convey to the appellees, all the right and title which they hold, jointly or severally, in the tracts of land in the bill mentioned, with special warranty against themselves. \nThe bill filed in January 1824, by Sarah Carrington, widow and devisee of George Carrington deceased, claims from the defendants as purchasers from John R. Williams, heir at law of John Williams deceased, who is not an inhabitant of Kentucky, and therefore not a party to the suit, all the military lands of the said John Williams lying in the district of Kentucky, amounting to four thousand acres, which land was sold, as is alleged, by John Williams in his life time to George Carrington, the testator of the plaintiff in the circuit court. This claim is founded on a decree pronounced by the county court of Halifax, in the state of Virginia, sitting in chancery in November 1817, on a bill filed  in November 1815, by the said Sarah Carrington against the said John R. Williams, and on a deed of conveyance made, on the 18th day of March 1820, by the said John R. Williams to the said Sarah Carrington, in pursuance thereof. This decree was affirmed on appeal. The bill also refers to a suit brought by George Carrington, in his life time against the guardians of the said John R. Williams while an infant, in which a decree was obtained, directing the guardian of the said John R. Williams to convey and assign the entries and surveys of the said military lands to the said George Carrington. The plaintiff prays that these decrees, with the proceedings on which they were founded, and the conveyances made in pursuance of them, should be taken as a part of his bill. \nThe bill filed in the county court of Halifax, in November 1815, charges that George Carrington in his life time exchanged certain lands lying in the said county with John  Williams deceased, for a military claim of four thousand acres to which the said Williams was entitled. That the said George, by the direction of the said Williams, caused his land in Halifax to be conveyed to a certain John Camp who was put  in possession thereof; but the patents for the military lands not having been issued, no conveyance was made of the legal title to them. Some time after the death of the said Williams the said Carrington instituted a suit in the court of Halifax, against John Robert Williams, then an infant, the only child of the said John Williams, to obtain an assignment of the entries and surveys for the said four thousand acres of military land. As the bill filed in that suit contains a full statement of the contract with a description of the land it claims, the plaintiff prays that it may be taken as a part of the present bill as fully as if literally inserted. \nOn the 23d of May 1803, a decree was pronounced in the said suit, which, among other things, directed a certain John B. Scott, the then guardian of the said John R. Williams, to assign the entries and surveys of the said military lands to the said George Carrington, so as to enable him to obtain patents therefor in his own name; and did further order that the said John R. Williams should, on attaining his age of twenty-one years, release all his right to the said George Carrington. The plaintiff prays that this decree and all the proceedings  in the suit may be taken as a part of his bill. The assignments directed by the decree were made by the said John B. Scott, but George Carrington departed this life soon afterwards, not having obtained the patents. By his last will he devised these lands to the plaintiff, who has applied for patents, but is informed at the land office, that the assignment of the said Scott does not authorize the register of the land office in Kentucky to issue them. The said John R. Williams having attained his full age, not only refuses to release his claim and to assign the said entries and surveys, but has gone to Kentucky with a view of selling the said lands. The bill prays for an assignment of the entries and surveys, and a release of the right of the said John R. Williams, and that he may be enjoined from performing any act which may  disable him from making a complete title to the plaintiff. \nThe defendant in his answer denies the contract, and adds,  that if such a contract did exist, it was verbal, that no note or memorandum thereof was signed by either of the parties, and that it is void by the statute of frauds which he pleads. \nA general replication was filed and  depositions were taken, after which the following entry was made. \"And now at this day, to wit, at a court holden for the said county at the court house thereof, on the 27th day of October 1817, came the parties by their counsel, by whose consent this cause was this day heard upon the bill, answer, examinations of witnesses, the bill, answer, examinations of witnesses in a cause formerly depending in this court between George Carrington, plaintiff, and the defendant, by his guardian, defendant, and was argued by counsel; on consideration whereof, it is decreed and ordered, that the defendant do forthwith assign to the plaintiff in a proper and legal manner, the surveys and other title papers in the original bill mentioned. The defendant having appealed from this decree, it was affirmed at a superior court of chancery held at the town of Lynchburg, on the 19th day of May 1818.\" \nIn pursuance of these decrees, the said John R. Williams did, on the 18th day of March, in the year 1820, by his indenture of that date, convey to the plaintiff, the military lands in the bill mentioned, consisting of one tract of five hundred acres, lying on Beaver creek; also of one other tract of three  hundred and fifty acres, likewise lying on Beaver creek; also of one other tract of one thousand acres, lying on Russel's creek; also of one other tract of one hundred and fifty acres, lying on the first creek emptying into Little Barren; also of one other tract of one thousand acres, lying in the county of being the tract of land entered by John Williams on the 2d of August 1784; and also of one other tract of land containing one thousand acres lying in the county of entered on the 10th of August 1784. \nThe bill filed in this cause farther charges, that Samuel Brents, William Caldwell and Isaac Caldwell, citizens of the state of Kentucky, with full knowledge of the plaintiff's claims, entered into a contract, on or about the 6th day of January 1818, with the said John R. Williams, for the purchase of the two tracts of one thousand acres each, lying south of the Tennessee, for which entries had been made by the said John Williams in his life time on the 2d and 10th of August 1784; and that the said William  Caldwell on the 30th of August 1815, with full knowledge of the right of the plaintiff, entered into a contract with the said John R. Williams, for the purchase  of the tract of one thousand acres, near the town of Columbia, in the county of Adair; and that the said Samuel Brents also, with the full knowledge of the plaintiff's title, hath entered into a contract with the said John R. Williams for the said tracts, containing five hundred acres, and three hundred and fifty acres, lying on Beaver creek, in the county of and for the tract containing one hundred and fifty acres lying on the first creek emptying into the Little Barren, in the county of Under these contracts and other papers obtained from the said John R. Williams, the said Samuel Brents, William Caldwell and Isaac Caldwell, who are made defendants, have obtained legal titles to the said military surveys, and have also obtained assignments or transfers of the entries for two tracts of one thousand acres each, lying south of the Tennessee, for which they will obtain patents, unless restrained by order of this court. \nThe bill prays that the defendants may be decreed to convey to the plaintiff, and for general relief. \nThe defendants filed separate answers, each denying the contract, insisting that if any contract existed, it was by parol and consequently void by the statute  of frauds; and claiming to be purchasers without notice of any equity in the plaintiff. \nThe several defences are now to be examined. \nThe proceedings in the county court of Halifax, in the suit brought in 1815, are perfectly regular; and, according to the constitution and laws of the United States and the decisions of this court, are allowed the same full faith and credit in the courts of Kentucky, that they would receive in Virginia. If the decree pronounced by the court of Halifax in 1817, and afterwards affirmed in the superior court of chancery at Lynchburg, would have been enforced in Virginia; or if, had it been pronounced in Kentucky, it would have been enforced in Kentucky, then the decree for enforcing it which was pronounced by the court of the United States sitting in Kentucky is correct. \nThe first point to be considered is the contract itself. It is not in writing, and consequently admits only of parol evidence. \nPaul Carrington, the father of George, deposes that he owned a tract of land in the county of Halifax, called Dry Branch,  containing five hundred and ninety-six acres, the whole of which, at the close of the revolutionary war, he gave to his son  George, put him in possession, delivered the title papers, and directed him to prepare a deed. In 1787 or 1788, George requested the deponent to convey the land to John Williams, to whom he had sold it, in exchange for his military lands in Kentucky. Some little time afterwards, George requested the witness to convey the land to George Camp, to whom Williams had sold it. He conveyed to Camp. Some short time afterwards Williams and George Carrington were both at the house of the deponent, when Williams stated that he had purchased the land from George Carrington and sold it to Camp for 400 pounds. He has also frequently heard George Camp say that he purchased the land from Williams for 400 pounds. Has never heard Williams say he gave his military lands for the Dry Branch tract. \nClement Carrington has paid the taxes on the Kentucky military lands, on account of the estate of George Carrington, ever since they were taxed. \nNathaniel Terry was acquainted with the Dry Creek tract, and has heard Williams say he had given his western lands for it. He supposed Williams to have been in possession  of the Dry Branch tract, but he never worked hands on it. Carrington did not  work it after the sale to Williams, farther than to finish his crop. \nJames Eastham has frequently heard colonel John Williams say, that he had given his lands in the western country to George Carrington, in exchange for the Dry Branch tract, which he afterwards sold to George Camp. \nWilliam Yancy has heard John Williams say, that he purchased the Dry Branch tract from George Camp, and had given his claims to land in the western country in payment for it. He has been frequently in company with the said John Williams, when this trade was the subject of conversation, and Williams always gave the same account of it. Williams sold the Dry Branch tract to George Camp. \nThomas Roberts well recollects to have heard John williams say, that he had exchanged his Kentucky lands with George Carrington for his Dry Branch tract. \nThe depositions of William Yancy and Thomas Roberts were taken in the suit brought against the guardian of John R. Williams;  but as they were filed with the bill of 1815, and read by consent at the hearing, they are supposed to form a part of the record in this cause. \nNo counter testimony was offered. \nWe think the exchange by John williams of his military  land for the Dry Branch tract is fully established, and proceed to inquire into the validity of the contract. \nThe statute of frauds, of which the defendants claimed the benefit, avoids parol contracts for land, and will unquestionably avoid that between John Williams and George Carrington, unless the transactions between the parties take the case out of the statute. The appellees maintain the affirmative of this proposition, and contend that the complete execution of the contract on the part of George Carrington, by conveying the Dry Branch tract to the vendee of John williams, supplies in law the want of a memorandum in writing. For a considerable length of time this principle appeared to be firmly settled in the court of chancery in England. Maddock, in his Treatise on Chancery, vol. 1, p. 301, says, \"if therefore it be clearly shown what the agreement was, and that it has been partly performed, that is, that an act has been done, not a mere voluntary act, or merely introductory or ancillary to the agreement, but a part execution of the substance of the agreement, and which would not have been done unless on account of the agreement, an act, in short, unequivocally referring  to, and resulting from the agreement, and such that the party would suffer an injury amounting to fraud, by the refusal to execute that agreement; it such case the agreement will be decreed to be specifically performed. 2 Br. Cha. Ca. 140; 1 Br. Cha. Ca. 412; 3 Atk. 4; 2 Anstr. 424; Ambl. 586; 1 Sch. & Lef. 41; 14 Ves. 386. \nThis principle has been lately questioned in England, and, some of the judges have thought, has been carried too far; but it has not, we believe, been overruled. \nIt was undoubtedly supposed in Virginia to be the sound construction of the statute, when this contract was made and as the land then lay in Virginia, Kentucky being then a part of that state, this construction forms the law of the contract. In affirming the decree of the 27th of October 1817, the chancellor said, \"the court being of opinion that this is not a case  embraced by the act against frauds and perjuries, doth adjudge, &c.\" A change of the law afterwards made in Kentucky, cannot affect contracts previously valid. \nIt remains to inquire, whether the appellants are to be considered as purchasers without notice of the equity set up by the appellees. \nThe defendants do not deny notice,  in those explicit terms which courts of equity require. They deny notice of a valid claim; but not such notice as ought to put them on inquiry. \nThey are the joint purchasers of the two tracts of one thousand acres each, lying south of Tennessee river. They purchased these tracts from Williams on the 6th of January 1818. The articles of that date recognize the claim of Carrington's heirs, and contain a stipulation on the part of Williams, \"to use due diligence in having it extinguished and quieted.\" \nWilliam Caldwell purchased the tract of one thousand acres in the county of Adair, on the 30th day of August 1815. The contract of that date contains this stipulation: \"and the said Williams agrees that the said Caldwell shall not be bound to pay any farther part of the consideration aforesaid, except what is this day paid, until he, the said Williams, shall settle the dispute between himself and the heirs and representatives of George Carrington deceased, concerning the title to the said land.\" \nA contract was entered into between Williams and Samuel Brents on the 31st day of August 1815, by which Brents engages, for a part of the land, \"to attend to the securement of the titles to  the said lands,\" \"according to the laws of the state, by surveying, registering, and patenting the same, or by doing such other acts as may be necessary for the purposes aforesaid.\" He says in his answer, that on the 12th of November 1816, patents issued to the said John R. Williams for two tracts on Beaver creek, the one for three hundred and fifty acres, and the other for five hundred acres. The defendant agreed to take the tract of three hundred and fifty acres, and one hundred and fifty acres, part of the five hundred acre tract, for his services. Afterwards, on the 5th of January 1818, he contracted for the residue of the two tracts, for which he received a conveyance dated on the same day. The answer proceeds, \"at the time of receiving the said conveyance, or at any time  before, this respondent had no knowledge or information of any valid claim to said land, by any other person than the said John R. Williams. This respondent does not now recollect of hearing any thing of the claim of the complainants before his conveyance; but had only heard that some verbal or illegal claim was set up in some bill filed in some county court of Virginia; of which verbal claim  this respondent did not think himself bound to take notice.\" \nHe does not recollect that the claimant was named Carrington, but he does recollect having heard that a suit was instituted in one of the county courts of Virginia: but as the contract was by parol, he did not think himself  bound to notice it. Now he knew, or might have known, that the suit was instituted in the county of Halifax, that being the residence of williams, whose agent he was, and who was the defendant in the suit. He could have received full information from Williams himself, who never attempted to conceal the claim. His conveyance of the two thousand acres of his claim, lying south of the Tennessee river, dated the day after his conveyance to Brents; contains a stipulation respecting the claim of Carrington's heirs, showing plainly that the claim was previously well known to the parties. His deed to William Caldwell shows that it was known as early as 1815. \nIsaac Caldwell's claim is limited to his third part of the two thousand acres south of Tennessee, conveyed on the 6th of January 1818. In addition to the notice contained in the deed, he states in his answer, that he had seen the proceedings  in the suit brought by Carrington against Williams, in which the decree of 1803 was pronounced; had consulted eminent counsel on it, and had been advised that the title of Williams would prevail over that set up by Carrington. Under this advice he purchased. The record contains other evidence, to which it is thought unnecessary to refer. \nIn addition to these unequivocal proofs, that the appellants had received notice of the contract made by Carrington with John Williams, it is worthy of observation, that with the exception of Brents, they purchased equitable titles, and were bound to notice any prior equity. \nIt is too clear for controversy that the plaintiffs placed full confidence in the protection furnished by the statute of frauds;  and believed that the contract made between Carrington and Williams, being by parol was void, notwithstanding its full execution on the part of Carrington. \nThere is no error in the decree of the circuit court; and it is affirmed, with costs. \nThis cause came on to be heard on the transcript of the record from the circuit court of the United States for the district of Kentucky, and was argued by counsel; on consideration whereof, it is  ordered, adjudged and decreed by this court, that the decree of the said circuit court in this cause be, and the same is hereby affirmed, with costs. \n \n\n ", " \nOpinion \n\n \n \n  Mr Chief Justice MARSHALL delivered the opinion of the Court. \nThe United States had instituted their suit against Joseph Nourse in the circuit court for the District of Columbia, in the county of Washington, on an account authenticated according to law, by the proper accounting officers. The cause being at issue on the plea of non assumpsit, the following case was agreed between the parties. \n\"In this case it is agreed that the suit is instituted upon a transcript from the treasury of the United States, which is annexed to the record in a former proceeding originating in the district court of the district of Columbia, and brought before the supreme court by appeal.  And it is farther agreed, that the defendant shall have the same benefit of the proceedings in said case as if the same had been pleaded, or as if given in evidence upon the trial of the general issues; and upon this statement judgment shall be given as upon a case agreed, and either party be at liberty to refer to the printed record in said case of Nourse v. The United States, as if the same were fully incorporated into this record.\" \nThe case referred to in this special statement grew out of a warrant of distress, issued by the treasury department on the 14th day of July 1829, directed to the marshal of the district of Columbia, commanding him to levy and collect the sum of 11,769 dollars and 13 cents, by distress and sale of the goods and chattels of Joseph Nourse, late register of the treasury. This warrant was issued in pursuance of the act of May 15th, 1820, \"providing for the better organization of the treasury department.\" The third section of this act enacts in substance that \"if any officer employed in the civil, military or naval departments of the government to disburse the public money appropriated for the service of those departments respectively, shall fail to render  his accounts, or pay over in the manner required by law any sum of money remaining in the hands of  such officer, it shall be the duty of the officer charged with the revision of the accounts of such officer, to cause the same to be stated to the agent of the treasury, who is required to proceed against the delinquent in the manner directed in the preceding section.\" That section directs the agent of the treasury to issue a warrant of distress against such delinquent officer and his sureties, directed to the marshal, who shall proceed to levy and collect the money remaining due by distress and sale of the goods and chattels of such delinquent officer, having given ten days notice of such intended sale; and if the goods and chattels be not sufficient to satisfy the said warrant, the same may be levied on the person of such officer, &c. \nThe fourth section provides that if any person shall consider himself aggrieved by any warrant issued under the act, he may prefer a bill of complaint to any district judge, setting forth the nature and extent of the injury of which he complains, and thereupon the judge may grant an injunction to stay proceedings on such warrant altogether,  or for so much thereof as the nature of the case requires; and the same proceeding shall be had on such injunction as in other cases, except that no answer shall be required on the part of the United States. \nUnder the authority given by this section, an injunction was awarded by William Cranch, chief justice of the district of Columbia, and judge of the court of the United States for that district, to stay all farther proceedings on the said warrant. \nIn his bill, the complainant states that his public accounts as register of the treasury of the United States, and agent of the treasury department in disbursing certain funds, and settling certain accounts of contingencies and other miscellaneous matters, and as agent for the joint library committees of congress, have been settled at the treasury since his removal from office; upon which settlement a pretended balance has been found against him for the sum of 11,250 dollars and 26 cents, for which a warrant of distress has been issued by the agent of the treasury,  which has been levied on his lands, tenements, goods and chattels by the marshal of the district. That the said account is unjust and illegal, and so far from  any balance being due thereon to the United States, a considerable balance should have been struck thereon in favour of the complainant;  as appears by an account annexed to the bill, which he declares to be just and true. \nThat besides his regular duties as register, he was, from the year 1790 till his recent dismission from office, employed by the proper department of the government in the separate business of special agent for the disbursement of the contingent funds of the treasury department, and for the settlement of the numerous accounts connected therewith. These duties devolved upon him great labour and responsibility, and occupied a great portion of his private hours. When he undertook this branch of public employment, no stipulation was made for the precise amount of compensation. The usage of the treasury and other departments of the government has invariably been to allow commissions not only to unofficial persons so employed, but to official persons and clerks of the departments, when such duties were distinct from the stated duties appertaining to their offices. That he has regularly made out and presented his account to the proper accounting officers of  the treasury; charging his commission at the rate of two and a half per cent on the amount of his disbursements; which, if allowed, would leave the United States indebted to him in the sum of 9886 dollars and 24 cents, which he believes to be justly due to him. \nThe complainant further states that he is advised that the act of congress under which the said warrant of distress is pretended to have been issued, being a law in derogation of common right, ought to be construed with the utmost strictness: but that on no reasonable construction can this complainant or his accounts, either as register of the treasury, or as agent of the joint library committees of congress, be brought within the description of persons over whom that act gives jurisdiction to the agent of the treasury. The bill prays for an injunction and for further relief. \nThe United States in their answer refer to and rely on the general account of the complainant settled by the proper officer of the government, by which he was found indebted in the sum of 11,769 dollars and 13 cents. They admit that the complainant had rendered an account charging a commission of two and a half per cent on all the moneys which had passed  through his hands in the different agencies in which he had acted, exhibiting a balance in his favour of 9367 dollars and  87 cents. They deny the right of the complainant to a commission on the moneys disbursed by him; and contend that they were authorised by law to enforce the payment of the balance due to the government by warrant of distress. They therefore pray that the injunction may be dissolved, and that they may be permitted to pursue their legal remedies for the sum due to them. \nThe court determined that the said Joseph Nourse was entitled to compensation for the extra services he had rendered to the government, in the agencies mentioned in the bill; and appointed auditors to ascertain the value of his services and compensation, and to report thereon without delay. The report of the auditors allowed to the complainant, a commission of two and a half per cent, on the sum of 943,308 dollars and 83 cents, disbursed by him in the several agencies in which he had been employed, leaving a balance due to him from the United States. \nThe report was confirmed and the injunction made perpetual. \nSome farther proceedings were had in that cause which do not affect the case  now before this court. \nThis suit is instituted on the same account on which the distress warrant was issued, and against which the decree of the district judge was pronounced. The defendant relies on that decree as a bar to the action. The circuit court adjudged it to be a bar; and that judgment is now to be revised in this court. \nIt is a rule to which no exception is recollected, that the judgment of a court of competent jurisdiction, while unreversed, concludes the subject matter as between the same parties. They cannot again bring it into litigation. \nAn execution is the end of the law. It gives the successful party the fruits of his judgment, and the distress warrant is a most effective execution. It may act on the body and estate of the individual against whom it is directed. \nIt would excite some surprise if, in a government of laws and of principle, furnished with a department whose appropriate duty it is to decide questions of right, not only between individuals, but between the government and individuals; a ministerial officer might, at his discretion, issue this powerful  process, and levy on the person, lands and chattels of the debtor, any sum he might  believe to be due, leaving to that debtor no remedy, no appeal to the laws of his country, if he should believe the claim to be unjust. But this anomaly does not exist; this imputation cannot be cast on the legislature of the United States. Whne it was perceived that the public interest required a prompt remedy against public defaulters, the legislature was not unmindful of the rights of individuals, and provided that this remedy should not be used oppressively. The party who thinks himself aggrieved may appeal from the decision of the treasury to the law, and prefer a bill of complaint to any district judge of the United States, setting forth therein the nature and extent of the injury; who may grant an injunction to stay proceedings on such warrant altogether, or for so much thereof as the nature of the case requires. And the same proceedings shall be had on such injunctions as in other cases, except that no answer shall be required on the part of the United States. \nJoseph Nourse, in pursuance of the permission given by this section, did file his bill of complaint, alleging among other things, that he owed nothing to the United States, and praying the judge to enjoin all farther  proceedings on the warrant. The injunction was granted, and the whole cause thus transferred before the district judge, who was directed to proceed therein as in other cases. He had consequently full jurisdiction over it. After a reference to auditors, according to the course of courts of chancery in matters of account, he pronounced his final decree against the United States, and awarded a perpetual injunction. This decree  is now in full force, and was in force when this suit was instituted. The act of congress gave jurisdiction in the specific case to the district judge. He might have enjoined the whole or a part of the warrant. His decree might have been for or against the United States, for the whole or a part of the claim. On the sum which he found to be due, he is directed to assess the lawful interest; he may add such damages as, with the interest, shall not exceed the rate of ten per cent per annum on the principal sum. Had the district judge finally enjoined a part of the sum claimed by the United States, and decreed that the residue should be paid with interest, all would perceive the unfitness of asserting  a claim in a new action to that portion  of the debt which had been enjoined by the decree of the court. And yet between the obligation of a decree against the whole claim, and against a part of it, no distinction is perceived. \nAware of the difficulty of maintaining an action on a claim on which a court of competent jurisdiction has passed a judgment, still in force; the attorney-general questions the jurisdiction of the district court, and rests his argument for the reversal of the judgment of the circuit court chiefly on this point. He contends, that Joseph Nourse was not an officer contemplated by the act providing for the better organization of the treasury department; that the warrant of distress could not legally be issued against him; and consequently, that this is not a case in which the district court can exercise jurisdiction. He refers to the bill of complaint, which is drawn with a double aspect. It alleges that the complainant, is not indebted to the United States; and that, were it otherwise, he is not an officer contem lated by the act against whom a distress warrant can legally be issued. \nThis argument has been considered. \nDid the case depend upon the question whether Joseph Nourse, in any of the characters  in which he is charged in the account accompanying the warrant, was an officer subjected by law to this process, some difficulty would exist in finding in the record sufficient information on which to decide it. The following are the items of the account. To balance due, \n \n \nAs agent for the joint library committee of congress, \n$2,502 55 \n \nAs agent for paying the expenses of stating and printing the public \n \n \naccounts, \n934 98 \n \nAs agent for paying the superintendant and watchmen of the buildings \n \n \noccupied by the state and treasury departments, \n1,325 41 \n \nAs agent for paying the expenses of printing certificates of the \n \n \npublic debt, \n1,011 29 \n \nAs agent for paying the contingent expenses of the treasury \n \n \ndepartment. \n5,994 90 \n \n \n$11,769 13 \nWhether in any or all of these agencies, Joseph Nourse acted  as an officer against whom a distress warrant could legally be issued, for any sum in which he might be found a defaulter, the record does not furnish the means of deciding elearly. But the district court took no notice of that part of the bill which suggests this objection. It acted on the merits of the case, and decreed against the United States on those  merits. \nStill, however, the attorney-general contends, that in so doing, it transcended its jurisdiction, and has taken cognizance of a case which could not legally be brought before it. This is founded entirely on the assumption that the warrant was issued against a person not liable to it. \nLet this be conceded. \nIt would be strange indeed if the legislature, intending to give a prompt remedy against a particular class of debtors, should carefully guard that class against any abuse of the remedy; and yet leave all other persons, whether debtors or not, exposed to that abuse: that an officer liable to the process should be enabled to correct it, if it issued injuriously, by appealing to the law: and yet that an individual not liable to the process, should be compelled to submit to the oppression and to suffer the wrong. \nThe act is not chargeable with this inattention to the rights of individuals. \nThe sections which regulate the proceedings of the treasury department on the warrant, contemplate the officer against whom it may be issued, and confine it to him: but when the legislature turns its attention to the individual against whom it may issue, the language of the law is immediately  changed. The word person is substituted for officer, and the act declares \"that if any person should consider himself aggrieved by any warrant issued under this act, he may prefer a bill of complaint, &c., and thereupon the judge may grant an injunction, &c.\" \nThe character of the individual against whom the warrant may be issued is entirely disregarded by this part of the act. Be he whom he may, an officer or not an officer, a debtor or not a debtor; if the warrant be levied on his person or property, he is permitted to appeal to the laws of his country, and to bring his case before the district judge to be adjudicated by him. \n The district court then had complete jurisdiction over this case, and its decision is final. The judgment is consequently a bar to any subsequent action for the same cause. The judgment of the circuit court is affirmed. \nThis cause came on to be heard on the transcript of the record from the circuit court of the United States for the district of Columbia, holden in and for the county of Washington, and was argued by counsel; on consideration whereof, it is adjudged and ordered, that the judgment of the said circuit court in this cause be, and  the same is hereby affirmed. \n \n\n ", " \nOpinion \n\n \n \n  Mr chief Justice MARSHALL delivered the opinion of the Court. \nThis case depends on the correctness of an instruction given  by the circuit court to the jury at the trial of the cause, to which instruction the defendant in that court excepted. \nThe suit was instituted by the Washington, Alexandria and Georgetown Steamboat Company, for the hire of the steamboat Franklin, during the absence of the steamboat Sydney, the parties having disagreed with respect to the time for which the contract was made. After the testimony was concluded, the court instructed the jury, that if they \"shall believe, from the evidence aforesaid, that the said defendant did, on the 29th day of November 1831, write to the said plaintiff the said paper of that date, bearing his signature, and that the said plaintiff did accept the same by the said paper of the same date, and that the said defendant  and plaintiff did respectively write to each other the papers bearing date the 5th and 6th of December 1831, and that the said steamboat Sydney did in fact first arrive in the Potomac river, on the 6th of February 1832, and was placed on the route to Potomac creek, mentioned in the said evidence, on the 7th of February 1832, that then the said plaintiff is entitled to recover, under said contract so proved as aforesaid, at the rate of 35 dollars per diem, from the said 20th of November 1831, to the said 6th of February 1832, both inclusive.\" The defendant excepted to this instruction, and has sued forth a writ of error to the judgment, which was rendered on the verdict of the jury. \nThe original writ appears in the record, and bears date the 2d day of December 1831. It was returned executed on the first Monday in December, that being the first day of the succeeding term, the day to which it was made returnable. The following entry was made on that day: \"and the said William A. Bradley, being called, appears in court here, by Joseph H. Bradley, his attorney, and thereupon the said William A. Bradley, by his said attorney, prays, that the plaintiffs may declare against him, the said  defendant, in the plea aforesaid; whereupon it is ruled by the court here, that the said plaintiffs declare,\" &c. \nOne objection taken by the plaintiff in error to the instruction given by the circuit court is, that they directed the jury to find damages for the hire of the steamboat Franklin, from the 20th of November 1831 to the 6th of February 1832, whereas the suit was instituted on the 2d of December 1831. \n The counsel for the defendant does not contend that the hire of the Franklin could be estimated or damages given to any time posterior to the institution of the suit, but he insists that the writ is only intended to bring the party into court, and unless spread on the record by pleading, is no part of it. \nWithout entering into this inquiry, it is to be observed in the present case, that the defendant appeared in the circuit court in December 1831, and gave a rule to declare. These facts are entered on the record and must be noticed. This court, therefore, cannot fail to perceive that the jury was instructed to give damages to a time long posterior to the institution of the suit. \nThe judgment is reversed and the cause remanded, with directions to award a venire  facias de novo. \nThis cause came on to be heard on the transcript of the record from the circuit court of the United States for the district of Columbia, holden in and for the county of Washington, and was argued by counsel; on consideration whereof, it is adjudged and ordered by this court, that the judgment of the said circuit court in this cause be, and the same is hereby reversed, and that this cause be, and the same is hereby remanded to the said circuit court, with directions to award a venire facias de novo. \n \n\n ", " \nOpinion \n\n \n \n  Mr Chief Justice MARSHALL delivered the opinion of the Court. \nThe appellees claim title to a lot of ground in the city of New Orleans, as purchasers from the heirs of Catharine Gonzales, the widow of Thomas Beltran, alias Bertrand, who had been in possession of the lot for serveral years, by permission of the Spanish government. This incomplete title was regularly confirmed under the laws of the United States, and a patent was issued for the premises to Catharine Gonzales, on the 17th of February 1821. \nThe city of NEw Orleans, claiming this lot as being  part of a quay, dedicated to the use of the city in the original plan of  the town, and therefore, not grantable by the king, has enlarged the Levee so as to embrace it. The appellees brought their petitory action in the district court of the state of Louisiana, praying to be confirmed in their rights to the said lot of ground, and that the corporation might be enjoined from disturbing them in the exercise thereof. \nThe district court pronounced its judgment in favour of the petitioners, which, on appeal, was affirmed by the supreme court of the state. This judgment of affirmance has been removed into this court, under the twenty-fifth section of the judicial act. \nThe merits of the controversy cannot be revised in this tribunal. We can inquire only whether the record shows that the constitution, or a treaty, or a law of the United States, has been violated by the decision of the state court. The appelless move to dismiss the writ of error, because no such violation appears. \nIn support of his motion, the counsel has, we think, in his argument, prescribed too narrow a principle for the action of this court. He says, very truly, that the twenty-fifth section of the judicial  act is limited by the constitution, and must be construed so as to be confined within those limits; but he adds, that a case can  arise under the constitution or a treaty, only when the right is created by the constitution or by a treaty. We think differently. This construction would defeat the obvious purpose of the constitution, as well as of the act of congress. The language of both in struments extends the jurisdiction of this court to rights protected by the constitution, treaties, or laws of the United States, from whatever source those rights may spring. \nTo sustain the jurisdiction of the court in the case now under consideration, it must be shown that the title set up by the city of NEw Orleans, is protected by the treaty ceding Louisiana to the United States, or by some act of congress applicable to that title. The counsel in support of the motion contends, and we think correctly, that the treaty does not embrace the case. \nThe first article makes the cession, and the second describes its extent, as comprehending every right vested in France. The third is expressed in these words, \"the inhabitants of the  ceded territory shall be incorporated in  the union of the United States, and admitted as soon as possible, according to the principles of the federal constitution, to the enjoyment of all the rights, advantages and immunities of citizens of the United States; and in the mean time they shall be maintained and protected in the free enjoyment of their liberty, property, and the religion which they profess.\" No other article of the treaty is supposed to contain any stipulation for the rights of individuals. This article obviously contemplates two objects. One, that Louisiana shall be admitted into the union as soon as possible, upon an equal footing with the other states; and the other, that, till such admission, the inhabitants of the ceded territory shall be protected in the free enjoyment of their liberty, property and religion. Had any one of these rights been violated while this stipulation continued in force, the individual supposing himself to be injured, might have brought his case into this court, under the twenty-fifth section of the judicial act. But this stipulation ceased to operate when Louisiana became a member of the union, and its inhabitants were \"admitted to the enjoyment of all the rights, advantages and  immunities of citizens of the United States.\" The right to bring questions of title decided in a state court, before this tribunal, is not classed among these immunities. The inhabitants of Louisiana enjoy all the advantages of American citizens, in common with their brethren in their sister states, when their titles are decided by the tribunals of the state. \nThe counsel for the appellant scarcely hopes to maintain the jurisdiction of the court under the treaty, but seems to rely on the act of congress for admitting the state of Louisiana into the union. The section of that act which is supposed to apply, is in these words, \"be it enacted, &c., that the said state shall become, and is hereby declared to be one of the United States of America, and admitted into the union on an equal footing with the original states in all respects whatever, by the name and title of the state of Louisiana.\" \nThis simply carries into execution the third article of the treaty of cession; and cannot, as has already been observed, be construed to give appellate jurisdiction to this court over all questions of title between the citizens of Louisiana. If in any case such jurisdiction could be supposed  to be given, it might  be where an act of congress attempted to divest a title which was vested under the pre-existing government. Therefore, the counsel opposing the motion, contends, that the jurisdiction of the court is involved in the merits of the controversy, and cannot be separated from them. We do not think so. The controversy in the state court was between two titles: the one originating under the French, the other under the Spanish government. It is true the successful party had obtained a patent from the United States, acknowledging the validity of his previous incomplete title under the king of Spain. But this patent did not profess to destroy any previous existing title; nor could it so operate, nor was it understood so to operate by the state court. IT appears from the petition filed in the district court, that the patent was issued in pursuance of the act of the 11th of May 1820, entitled \"an act supplementary to the several acts for the adjustment of land claims in the state of Louisiana.\" That act confirms the titles to which it applies, \"against any claim on the part of the United States.\" The title of the city of NEw Orleans would not be affected  by this confirmation. But, independent of this act, it is a principle applicable to every grant, that it cannot affect pre-existing titles. The United States v. Arredondo, 6 Peters 738. \nThe judgment of the state court appears on the record to have depended on, and certainly ought to have depended on the opinion entertained by that court, of the legal rights of the parties under the crowns of France and Spain. The case in volves no principle on which this court could take jurisdiction, which would not apply to all the controversies respecting titles originating before the cession of Louisiana to the United States. It would also comprehend all controversies concerning titles in any of the new states, since they are admitted into the union by laws expressed in similar language. \nThe writ of error is dismissed, this court having no jurisdiction in the cause. \nOn consideration of the motion made in this cause on a prior day of the present term of this court, to wit, on Saturday the 24th of January past, and of the arguments of counsel thereupon had, as well for the plaintiffs in error as for the defendants  in error: it is now here ordered and adjudged by this court, that  this writ of error to the supreme court of the state of Louisiana, for the eastern district, be, and the same is hereby dismissed for the want of jurisdiction. \n \n\n ", " \nOpinion \n\n \n \n  Mr Chief Justice MARSHALL delivered the opinion of the Court. \nThis is an appeal from a decree pronounced by the court of the United States, for the district of Missouri, by which the claim and title of the petitioner, Charles Dehault Delassus, to a tract of land in his petition mentioned, under a concession alleged to be authorized by the laws of Spain, and protected by the treaties ceding Louisiana to the United States, was declared to be invalid. \nThe suit was instituted under the act of the 25th of May 1824, \"enabling the claimants to lands within the limits of the state of Missouri, and territory of Arkansas, to institute proceedings to try the validity of their claims.\" \n The petition, which is the institution of the suit, states that on the 3d  of March 1795, Don Pedro Dehault Delassus De Luzieres, the father of the petitioner, addressed his petition to Don Zenon Trudeau, lieutenant-governor of the province of upper Louisiana, praying that a concession or grant should be made to him and his heirs, of a tract of land containing seven thousand and fifty-six arpents, French measure, being a league square. That said lieutenant governor in compliance  with said petition, and in obedience to an official instruction addressed to him by the governor-general of the province of Louisiana, the baron Carondelet, did, by decree bearing date the 1st of April in the year 1795, grant to said De Luzieres and his heirs for ever, a tract of a square league situated on a branch of the river St Francis called Gaboury, and by said decree ordered Francois Valle, the captain commandant of the port of St Genevieve, to put De Luzieres forthwith in possession of the said tract of land, which was done on the 15th of the same month. A delay in the appointment of a surveyor for the province, prevented the survey from being immediately made. It was made on the 14th of December 1799. The petitioner proceeds to state that the requisites of  the laws for the preservation of his right had been observed, that his father is dead, and the title is vested in the petitioner. He prays that his title and claim be confirmed. \nThe answer of the district attorney professes ignorance of the facts; and insists that the petitioner be required to prove the validity of his claim. \nThe petition of Pierre Charles Dehault Delassus De Luzieres presented to Don Zenon Trudeau, lieutenant governor of the western part of Illinois, &c., states that in May 1793, he resolved to come to Illinois on the assurance of his lordship, the baron De Carondelet, governor-general of Louisiana, that he would order and authorize him, the said Don Zenon Trudeau, the lieutenant governor, &c., to grant him, the petitioner, a tract of land for the exclusive exploration of lead mines, &c., which assurance is fully expressed in a letter annexed to the petition, which, he adds, conforms to a letter addressed to the lieutenant governor on the same subject. The petition then ascribes the delay in its presentation to long and severe illness, and to the difficulty of finding a tract of land adapted to the  object. This being at length accomplished, and having  found a spot indicating that it contains lead mineral on one of the branches of the river St Francois called Gaboury; the petitioner prays a concession thereof to the extent of a league square. \nThe letter of the baron De Carondelet is in these words: \n\"To Zenon Trudeau. \n\"The knight Don Pierre Dehault Delassus has entered into contract with this intendancy to deliver yearly during the term of five years, thirty thousand pounds of lead, in balls or bars. In order that he may comply with his contract, your worship will put him in possession of the land he may solicit, for the exploration, benefit and enjoyment of the mines; for which purpose he is to present a memorial directed to me, and which your worship will transmit, that I may give him the corresponding decree of concession; being understood in the mean time your worship will put him in possession. God preserve your worship many years. \n\"EL BARON DE CARONDELET. \n\"New Orleans, May 7th 1793.\" \nOther letters from the baron De Carondelet, sustaining that above recited, were annexed to this petition; and on the 1st of April 1795, Zenon Trudeau, the lieutenant governor of the province, granted the required concession. \nThe regular  documents to prove the survey, and the possession of the premises by Delassus, were also laid before the district court. \nThe act of the 26th of May 1824, gives the district court authority to hear and determine all questions arising in any cause brought before it by the petition of any person claiming lands within the state of Missouri, \"by virtue of any French, or Spanish grant, concession, warrant, or order of survey legally made, granted, or issued, before the 10th day of March 1804, by the proper authorities, to any person or persons resident in the province of Louisiana at the date thereof, or on or before the tenth day of March 1804, and which was protected or secured by the treaty between the United States of America and the French Republic, of the 30th day of April 1803, and which might have been perfected into a complete title, under, and in  conformity to the laws, usages, and customs of the government under which the same originated, had not the sovereignty of the country been transferred to the United States.\" \nIn the first article of the treaty referred to, the consul of the French Republic ceded to the United States, in full sovereignty, the province of Louisiana,  with all its rights and appurtenances. The second article declares that in this cession \"are included the adjacent islands belonging to Louisiana, all public lots and squares, vacant lands, and all public buildings, fortifications, barracks and other edifices, which are not private property.\" The third article stipulates, \"that the inhabitants of the ceded territory shall be incorporated in the union of the United States, and admitted as soon as possible, according to the principles of the federal constitution, to the enjoyment of all the rights, advantages and immunities of citizens of the United States; and in the meantime they shall be maintained and protected in the free enjoyment of their liberty, property, and the religion which they profess.\" \nThese are the stipulations which afford that protection or security to claims to land under the French or Spanish government, to which the act of congress refers. They extend to all property until Louisiana shall become a member of the union; into which the inhabitants are to be incorporated as soon as possible, \"and admitted to all the rights, advantages and immunities of citizens of the United States.\" That the perfect inviolability  and security of property is among these rights, all will assert and maintain. \nThe right of property then is protected and secured by the treaty; and no principle is better settled in this country, than that an inchoate title to lands is property. \nIndependent of treaty stipulation, this right would be held sacred. The sovereign who acquires an inhabited territory, acquires full dominion over it; but this dominion is never supposed to divest the vested rights of individuals to property. The language of the treaty ceding Louisiana excludes every idea of interfering with private property; of transferring lands which had been severed from the royal domain. The people change their sovereign. Their right to property remains unaffected by this change. \nThe inquiry then is, whether this concession  \"was legally  made by the proper authorities;\" \"and might have been perfected into a complete title, under and in conformity to the laws, usages and customs of the government under which the same originated, had not the sovereignty of the country been transferred to the United States.\" \nThe concession was made in regular form on the 1st of April 1795, by Zenon Trudeau,  lieutenant governor of the western part of Illinois, in which the land lay, by special order of the baron De Carondelet, governor-general of the province; given in consequence of a contract entered into by De Luzieres with the government for the supply of lead. \nBy the royal order of 1774, the power of granting lands, which had been vested in the intendants by an order of 1768, was revested in the civil and military governors of provinces, who retained it till 1798. White's Compilation 218. In the execution of this power, the lieutenant governors or commandants of posts, as is fully shown by the proceedings before the various tribunals appointed under the authority of the United States, were employed to make the original concession and order of survey, and to put the grantee into possession. In 1795 then, when these acts were performed by the lieutenant governor, under the authority and by the special order of the governor-general, those officers were \"the proper authorities;\" and had full power to make the concession, and to perfect it by a complete title. Who can doubt that it would have been so perfected, \"in conformity to the laws, usages and customs of the Spanish government,  had not the sovereignty of the country been transferred to the United States?\" \nA grant or a concession made by that officer, who is by law authorized to make it, carries with it prima facie evidence that it is within his power. No excess of them, or departure from them, is to be presumed. He violates his duty by such excess, and is responsible for it. He who alleges that an officer entrusted with an important duty has violated his instructions, must show it. \nThis subject was fully discussed in the United States v. Arredondo, 6 Peters 691; Percheman v. The United States, 7 Peters 51, and the United States v. Clarke, 8 Peters 436. It is unnecessary to repeat the arguments contained in the opinions given by the court in those cases. \n The concession is unconditional; the land was regularly surveyed, and the party put into possession. \nThe objection made to this plain title is, that the concession is not made in pursuance of the regulations of O'Reilly. \nThis objection was considered in the cases heretofore decided by this court, and especially in 8 Peters 455. It is apparent that those regulations were intended for the general government of subordinate officers; not to  control and limit the power of the person from whose will they emanated. The baron De Carondelet, we must suppose, possessed all the powers which had been vested in Don O'Reilly; and a concession ordered by him is as valid as a similar concession directed by governor O'Reilly would have been. Had governor O'Reilly made such a grant, could it have been alleged that he had disabled himself by his instructions for the regulation of the conduct of his subordinate officers; instructions which the power that created must have been capable of varying or annulling; from exercising the power vested in him by the crown? \nThe lead mine has been mentioned. But the act of congress, on which this case depends, contains no reservation of lead mines. It extends the jurisdiction of the court to all claims, \"by virtue of any French or Spanish grant, concession, warrant or order of survey,\" legally made by the proper authorities, &c. This is such a concession. \nThe court is of opinion that the claim of the appellant is valid, and ought to be confirmed. The decree of the district court is reversed and annulled; and this court, proceeding to pronounce such decree as the district court ought to have  given, doth declare the claim of the petitioners to be valid; and doth confirm their title to the tract of land in their petition mentioned, according to the boundaries thereof, as described in the survey made by Antonio Soulard, principal deputy surveyor of upper Louisiana, on the 14th day of December 1799, and his certificate of the said survey, dated the 5th of March 1800, and appearing in the record of the proceedings of this cause. \nthis cause came on to be heard on the transcript of the record from the district court of the United States, for the district  of Missouri, and was argued by counsel; on consideration whereof, this court is of opinion that the claim of the appellant is valid, and ought to be confirmed. Whereupon, it is ordered, adjudged and decreed by this court, that the decree of the said district court in this cause be, and the same is hereby reversed and annulled; and this court, proceeding to pronounce such decree as the said district court ought to have given, doth declare the claim of the petitioner to be valid; and doth confirm his title to the tract of land in his petition mentioned, according to the boundaries thereof, as described in the survey  made by Antonio Soulard, principal deputy surveyor of upper Louisiana, on the 14th day of December 1799, and his certificate of the said survey, dated the 5th of March 1800, and appearing in the record of the proceedings of the cause. \n \n\n ", " \nOpinion \n\n \n \n  Mr Chief Justice MARSHALL delivered the opinion of the Court. \nAuguste A. Chouteau and others, devisees of Auguste Chouteau, presented their petition to the court of the United States for the district of Missouri, praying that their title to one thousand  two hundred and eighty-one arpents of land, near the town of St Louis, in the state of Missouri, which they claim under the following circumstances, be confirmed. \nThe late Auguste Couteau applied to the then existing governor of upper Louisiana for permission to establish a distillery in or near the town of St Louis; which permission was granted on the 3d of January 1800. \nHe then petitioned for a concession for one thousand two hundred and eighty-one superficial arpents of land, toi furnish fire wood for his distillery; which was granted in the following words. \n\"St Louis Illinois, January 5th 1800. \n\"Being satisfied that the applicant has sufficient means to make available in the term of the regulation of this province  the lands which he demands, the surveyor of this upper Louisiana, Mr Anthony Soulard, will put him in possession of the one thousand two hundred and eighty-one arpents of land in the place where he asks it; and afterwards the applicant will have to solicit the formal title of concessions of the intendant-general of these  provinces, to whom belongs, by order of his M --, the disposing and conceding every kind of vacant lands of the royal domains. \n \"CHARLES DEHAULT DELASSUS.\" \nThe permission of the governor-general to erect the distillery is alluded to in the following letter from him to Mr Delassus. \n\"New Orleans, May 20th 1799. \n\"My dear friend: Wishing to testify to you my esteem by every opportunity, I merely assure you of my esteem promising to answer your letter by the boat that just arrived; and which will leave here next week. \n\"In my instructions to Mr Delassus, I recommend him particularly to favour all your undertakings, &c. &c. \n\"Adieu: I am in such a hurry that I have but the time to tell you that I am your sincere friend and most humble servant, \n\"MANUEL GAYOSO DE LEMOS.\" \nThe order of survey was executed on the 10th of April 1801, and the petitioner put into possession, which he retained till his death, having first made his last will, in which he devised it to the petitioners, who have taken all the steps required by law, to preserve their claim. \nThe petition prays for a confirmation of the title. The answer of the district attorney admits nothing, and submits the case to the court on the proof to be made by the petitioners. The erection of the distillery, and the manufacture of spirits to a considerable extent,  the apparent motives to the grant, are fully proved. \nThe distinction between the case of Chouteau and others, and that of Delassus, whose title has been confirmed, consists in this. The concession to Delassus was made by the lieutenant governor of upper Louisiana by direction of the governor-general, at a time when the power of granting land was vested in  the governors of provinces. This power was transferred to the intendant-general in 1799, after which transfer in 1800, the order of survey under which Chouteau claimed, was made by the lieutenant governor. The validity of the order depends on the authority of the lieutenant governor to make it. Chouteau alleges in support of this authority, that the lieutenant-governor was also sub-delegate, in which character he was empowered to grant incomplete titles. \nSeveral documents have been laid before the court which satisfy us that the lieutenant governors were, by virtue of their office, sub-delegates. In the record in Soulard's case, which we understand is to be considered as an exhibit in this, a letter from the lieutenant governor Delassus to the surveyor-general is introduced, in which he recites a letter of Morales,  the intendant-general, to him, dated the 1st of December 1802; informing him that in consequence of the death of the assessor he had closed the tribunal of affairs and causes relating to grants and confirmations of royal lands. The letter adds: \"I make this communication in order that, apprised of this providence, you may not receive, frame or transmit memorials soliciting lands until farther orders.\" \nIn a letter of the 26th of August 1799, addressed by Morales to Don Carlos Dehault Delassus, in which he notices instructions given by Delassus to Roberto M'Kay, in his character of sub-delegate, he observes, \"I must say, that it being contrary to law that one sub-delegate should transfer his powers to another, the instruction given by you cannot, nor ought to have effect; and the more so as the sub-delegation of the intendancy is local.\" \nIn a certificate given by Don Gilberto Leonard, treasurer of the army, and Don Manuel Gonzalez Armirez, ministers of the royal treasury, &c. of the province of Louisiana, they certify that in pursuance of a decree of the senior intendant-general ad interim, the senior colonel Charles Dehault Delassus, formerly commandant of the port of New Madrid,  and lieutenant governor of St Louis of the Illinois, with the sub-delegation of the royal treasury in both situations, &c. \nIn the claims laid before the commissioners, and confirmed, are several which originated with Delassus after the power of granting lands were transferred from the governor to the intendant-general.  This very order of survey was executed by the surveyor-general in 1801. Possession was delivered to CHouteau which was retained by him during his life; and appears to have remained with his devisees since his death. \nOn this point the report made by the recorder and commissioners to congress under the act of the 9th of July 1832, and the 2d of March 1833, cannot be disregarded. They speak of the union of the two offices of lieutenant governor and sub-delegate, as being universally understood and admitted. \nCharles Dehault Delassus, lieutenant governor of upper Louisiana, whose deposition appears to be annexed to the report of the commissioners, deposes, \"that all the lieutenant governors of upper Louisiana were, in virtue of their offices as lieutenant governors, likewise sub-delegates. That the offices of lieutenant governor and sub-delegate were inseparable.\"  Morales, immediately after the sale of the royal lands had been transferred to his intendancy, assigns as one reason for issuing his regulations, \"that the commandants, as sub-delegates of the intendancy, may be informed of what they ought to observe.\" \nIf, as we think must be admitted, Delassus was sub-delegate as well as lieutenant governor, the transfer of the power of granting lands belonging to the royal domain from the governor to the intendant-general, did not affect his power to give the order of survey on which the title of the petitioners depends. That order is the foundation of title, and is, according to the acts of congress and the general understanding and usage of Louisiana and Missouri, capable of being perfected into a complete title. It is property capable of being alienated, of being subjected to debts, and is as such to be held as sacred and inviolate as other property. \nThe power of lieutenant governor Delassus in his character of sub-delegate to make this order of survey being established, all the principles settled in the preceding cases apply to this. No objection to the claim is perceived, and we think it ought to have been declared valid. \nThe decree of  the district court is reversed and annulled; and this court, proceeding to give  such decree as the district court ought to have given, doth declare the claim of the petitioners to the tract of land in their petition mentioned to be valid, and doth confirm their title to the same according to the boundaries  thereof, as described in the survey made by Antonio Soulard, principal deputy surveyor of upper Louisiana on the 5th day of March 1801, a certificate of which appears in the record dated the 10th day of April 1801. \nThis cause came on to be heard on the transcript of the record from the district court of the United States for the district of Missouri, and was argued by counsel; on consideration whereof, this court is of opinion that the claim of the appellants is valid and ought to be confirmed. Whereupon, it is ordered, adjudged and decreed by this court, that the decree of the said district court in this cause be, and the same is hereby reversed and annulled, and this court, proceeding to pronounce such decree as the said district court ought to have given, doth declare the claim of the petitioners to be valid, and doth confirm their title to the tract of  land in their petition mentioned, according to the boundaries thereof as described in the survey made by Antonio Soulard, principal deputy surveyor of upper Louisiana, on the 5th day of March 1801, a certificate of which appears in the record dated the 10th day of April 1801. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Chief Justice MARSHALL delivered the opinion of the Court. \nThis is an appeal from a decree of the district  court of Missouri, sitting under the act of the 26th of May 1824. \nThe devisees of Auguste Chouteau, a citizen of Missouri, presented their petition to the district court, in which they  state that their testator, on the 8th day of January 1798, being then a resident of upper Louisiana, obtained  from Don Zenon Trudeau, lieutenant governor of that province, a decree directing Don Antonio Soulard, the surveyor-general of the province, to put the said Chouteau in possession of the land prayed for; and to survey the same, and make a plat and certificate thereof, to enable the said Chouteau to solicit a complete title thereon from the governor-general; who, by the said decree, was informed that the said petitioner's circumstances were such as to entitle him to that favour. In pursuance of this decree, the survey was executed on the 20th of December 1803, and the said Chouteau put into possession of the tract surveyed, amounting to one league square, which he retained till his death, when he devised it to the petitioners, who have remained in possession ever since. \nAll the steps required by law for the preservation of the title acquired by the decree of the lieutenant governor, have been taken. \nThe petitioners pray that their right and title to the land they claim may be confirmed. \nThe answer of the district attorney admits nothing, and refers the claim to the court. \nSome testimony was taken to show that the said Auguste Chouteau was, at the date of his petition, and of the  decree of the lieutenant governor, and at the date of the said survey, possessed of at least one hundred head of tame cattle, from two to three hundred hogs, from one hundred and forty to one hundred and fifty horses, about forty sheep, and from fifty to sixty slaves. \nThe United States gave in evidence a petition of the said Auguste Chouteau, presented on the 24th day of January 1798, to the lieutenant governor of upper Louisiana, praying for a concession of seven thousand and fifty-six arpents of land, situated on the north bank of the Missouri, about one hundred and five miles from its mouth; which petition was granted on the succeeding day. A survey of this tract was executed on the 17th of March 1801; and it appears to have been conveyed by Auguste Chouteau to Daniel Clarke, by deed bearing date the 8th of September 1804. This claim was offered to the board of commissioners, but being \"unsupported by actual  inhabitation and cultivation,\" was rejected. The board at the same time observed, that the said concession is not duly registered. \nThe only objection which can be made to the validity of this concession is, that the petitioner did not possess as many tame cattle  as the regulations of O'Reilly required. The eighth article of those regulations declares, that no grant in the Opelousas, Attacapas and Natchitoches shall exceed one league in front by one league in depth. The ninth is in these words, \"to obtain in the Opelousas, Attacapas and Natchitoches, a grant of forty-two arpents in depth, the applicant must make it appear that he is possessed of one hundred head of tame cattle, some horses and sheep, and two slaves to look after them; a proportion which shall always be observed for the grants to be made of greater extent than that declared in the preceding article.\" \nThere is some confusion in these two articles, which would lead to a suspicion that the translation may not be accurate. The eighth declares that no grant shall exceed a league square; and the ninth, if to be understood literally, professes to prescribe the property which the applicant must possess to entitle him to a larger quantity than a league square. \nIt is also observable that this article is limited to the three districts mentioned, which are not in upper Louisiana; and that they are peculiarly adapted to a grazing country, and to a grazing country only. There could  be no motive for apportioning one hundred head of cattle to two slaves, in an agricultural country. It is probable that if the regulations of O'Reilly were extended to upper Louisiana, they were extended with modifications, at least of the ninth article: so as to adapt the proportions of property required to the country to which the article was extended. \nThis supposition derives great strength from the fact that the lieutenant governor, who must have understood his orders, certifies to the governor in his decree, \"that the said applicant is in the circumstances that merit this favour.\" The applicant is proved to have possessed more slaves than were required by the ninth article of O'Reilly's regulations, though not so many tame cattle. \nWe think also that in the spirit of the decisions which have  been heretofore made by this court, and of the acts of confirmation passed by congress, the fact that the applicant possessed the requisite amount of property to entitle him to the land be solicited, was submitted to the officer who decided on the application, and that he is not bound to prove it to the court, which passes on the validity of the grant. These incomplete titles  were transferable, and the assignee might not possess the means of proving the exact number of cattle in possession of the petitioner when the concession was made. \nIt is remarkable that, if we may trust the best information we have on the subject, neither the governor nor intendant-general has ever refused to perfect an incomplete title granted by a deputy governor or sub-delegate. \nWe cannot allow this objection to prevail. \nThe objection drawn by the United States from the concession made on the 24th of January 1798, is not, we think entitied to more weight. The eighth regulation made by O'Reilly, is not that no individual shall receive grants for more land than one league square, but that no grant shall exceed one league square. The words of the regulation do not forbid different grants to the same person; and so far as our information goes, it has never been so construed. Neither of these grants, so far as we understand the geography of the country, lies in Opelousas, Attacapas or Natchitoches. It does not appear that the grant made on the 24th of January has been established; and the record shows that it was rejected by the board of commissioners, for reasons on the sufficiency  of which we do not now decide. But it is conclusive that the concession of the 24th of January was subsequent to  that of the 8th, and consequently could not affect it. \nWe are of opinion that the district court erred in declaring the concession made to Auguste Chouteau on the 8th of January 1798 to be invalid; and that the same ought to be confirmed. \nThe decree of the district court is reversed and annulled, and this court, proceeding to give such decree as the district court ought to have given, doth declare, the claim of the petitioners to the tract of land in their petition mentioned, to be valid, and doth confirm their title to the same, according to the boundaries thereof, as described in the survey made by James Rankin,  deputy surveyor, and certified by Anthony Soulard, principal deputy surveyor of upper Louisiana, as appears by his certificate of the 29th of December 1803, contained in the record. \nThis cause came on to be heard on the transcript of the record from the district court of the United States for the district of Missouri, and was argued by counsel; on consideration whereof, this court is opinion that the claim of the appellants is valid,  and ought to be confirmed. Whereupon, it is ordered, adjudged and decreed by this court, that the decree of the said district court in this cause be, and the same is hereby reversed and annulled; and this court proceeding to pronounce such decree as the said district court ought to have given, doth declare the claim of the petitioners to the tract of land in their petition mentioned, to be valid, and doth confirm their title to the same according to the boundaries thereof, as described in the survey made by James Rankin, deputy surveyor, and certified by Antonio Soulard, principal deputy surveyor of upper Louisiana, as appears by his certificate of the 29th December 1803, contained in the record. \n \n\n ", " \nOpinion \n\n \n \n  Mr Chief Justice MARSHALL delivered the opinion of the Court. \nThe petition for a mandamus states, among other things, that Christopher Adams of Iberville, in Louisiana, on the 16th day of January 1824, at New Orleans, executed and acknowledged before a notary public, a mortgage of a plantation, called the Belle Plantation, in Iberville, with seventy slaves, for securing to the petitioners  divers sums of money, amounting to 32,522 dollars and 50 cents, at different periods, the last payment to fall due on the 18th day of January 1829, all bearing interest at the rate of seven per cent per annum. At the time of executing the said mortgage, sundry notes were also given for the payment of the same sums of money. \nIn consequence of the failure of the said  Adams to pay any part of the said debt, application was made to the honourable Thomas B. Robertson, then judge of the district court of the United States for the eastern district of Louisiana, for an order of seizure and sale, who granted the same, in the following words: \n\"Let the mortgaged premises, set forth and stated in the plaintiff's petition, be seized and sold, as therein prayed for, and in the manner directed by law, subject to the payment of the debts of the plaintiff. THOMAS B. ROBERTSON, Judge U.S. Eastern District of Louisiana.\" \nJohn Nicholson, the marshal, who seized the mortgaged property, and advertised the same for sale, was stopped by a writ of injunction, on which the following return was made: \"received this writ of injunction this 18th of March 1826, and served a copy thereof, and of  plaintiff's petition, on Ripley and Conrad; on same day released the property at suit of Life and Fire Insurance Company of New York against Christopher Adams, and returned into court the 20th of March instant.\" \nOn the 2d day of May 1826, the petitioners entered into a transaction with the said Christopher Adams, before a notary public, in which it was stipulated, that the injunction be dissolved, and in which the defendant agreed to confess judgment, and did confess judgment, on all the notes then due.  He further stipulated to confess judgment on the residue of the notes, in the deed of mortgage mentioned, as they should respectively become due, \"and in default of such confession of judgment, the said Christopher Adams did, by the said transaction, constitute and appoint Henry Eckford, president of the Life and Fire Insurance Company, or his successor in office for the time being, his attorney in fact, and irrevocable, in his name and stead to appear in said court and cause judgment to be entered up against him, the said Adams, for each and every of said notes, with interest, as aforesaid, whenever the same shall arrive at maturity, as aforesaid.\" And the said Adams further  gave to the said Henry Eckford or to his successor in office for the time being, attorney as aforesaid, full power of substitution in the premisses. \nAnd the said Life and Fire Insurance Company, in consideration of such confession of judgment, and preserving all their liens, mortgages and preferences in and over the mortgaged premises, agreed to stay execution until the 18th day of January 1829, when the last note would arrive at maturity. It was farther agreed, that this transaction shall be entered upon the records of the court of the United States for the eastern district of Louisiana, as a decree of said court, and shall have all the force and effect as though it were entered up in open court. \nIn pursuance of this transaction, a judgment was recorded in the said district court, on the 18th of May 1826; which the judge died without signing. The petitioners then transferred their interest in the said debt to Josiah Barker, in trust for the Mercantile Insurance Company of New York, with power to use their names in the collection thereof. In the instrument of transfer, the said Life and Fire Insurance Company constituted Josiah Barker, his executors, administrators and assigns,  their true and lawful attorney and attorneys irrevocable, in their names, but to and for the use of the said Mercantile Insurance Company of New York, to pursue and enforce in all courts and places whatever, the recovery and payment of the said money. \nThe honourable Samuel H. Harper, the successor of the honourable Thomas B. Robertson, having refused to complete the said judgment of his predecessor, by signing it; a mandamus  was directed by this court, ordering him to do so, in compliance with which, the said judgment was signed. \nThe judgment is in these words: \n\"Life and Fire Insurance Company of New York v. Christopher Adams. \n\"In this case, the plaintiffs having filed in this court a transaction, &c. 'it is therefore ordered, adjudged and decreed, that in pursuance of said transaction, the injunction in this case shall be dissolved; and it is further ordered, adjudged and decreed, that judgment be entered up in favour of the plaintiff, in pursuance of said transaction, for all the notes therein specified, which have become due and payable, with seven per cent interest thereon, &c. to wit, the sum of 1500 dollars, &c.' \n\"It is further ordered, adjudged and decreed,  in pursuance of the transaction aforesaid, that whenever any of the notes mentioned in the said transaction as not yet arrived at maturity, shall become due and payable, that the judgment shall be entered up for the plaintiffs upon all and every of the said notes as they arrive at maturity, &c. \n\"It is further ordered, adjudged and decreed, that there shall be a stay of execution, &c. until the 18th day of January 1829; and that if the amount of the judgment in this suit is not then paid, &c., that the lands, slaves and movable property described in the mortgage mentioned in the plaintiff's petition, shall be sold according to law, to satisfy the judgment in the premises.\" \nApplication was, at the same time, made to the district court, to enter a further judgment for the notes which had become due subsequent to the 16th day of May 1826, which was refused. \nThe petitioners insisted on their right to require a judgment for the whole sum, under the irrevocable power given to confess it; but the judge declared that without notice to the defendants, he would permit no further judgment to be entered. \nThe petition states at large the different views entertained by the judge and the petitioners  on the application. At length the following rule was entered. \n\"Life and Fire Insurance Company of New York v. Christopher Adams. \n\"On motion of George Eustis, counsel for the plaintiffs, on  filing all the notes referred to in the transaction on file, it is ordered, in pursuance of the mandamus of the supreme court of the United States, requiring the honourable judge of this court to sign the judgment rendered in the premises and to order execution to issue, that execution do issue for the whole amount of the judgment.\" \nUnder this rule an execution was issued for the whole sum claimed on all the notes, without any direction that it should be first levied on the mortgaged property. On this account, the  marshal, by order of the plaintiff's attorney, returned it unexecuted, and a new execution was demanded. \nIn consequence of the refusal of Judge Harper to enter judgment for the residue of the notes, Josiah Barker caused a paper to be read in open court, in which, as successor to, and as having entire control over, the said notes, and in virtue of full and irrevocable powers from the Life and Fire Insurance Company of New York, he did, in behalf of the defendant,  Christopher Adams, by virtue of the compromise entered into between him and Josiah Barker, agent for the said Life and Fire Insurance Company, on the 2d of May 1826, confirmed by decree of this court, confess judgment on all the said notes; which confession he requested might be entered on the clerk's minutes. The judge refused to allow the entry, without notice to the opposite party; but offered to grant a rule requiring the defendants to show cause why the judgment should not be entered. This rule being declined, the judge permitted the confession to be filed, subject to all legal exceptions. An execution for the whole sum was thereupon issued, which was accompanied by a letter from Josiah Barker to the marshal, requesting him to give notice to Christopher adams, and to Nathaniel Cox the provisional syndic of the estate of the said Adams, who had become insolvent, that he, the marshal, considered himself in possession of the property in virtue of the former seizure, and should proceed to sell the same: should the marshal refuse to do this, the marshal was required to seize the property and to sell it, by virtue of the execution then in his hand. \nSupposing from the proceedings  of the court in a similar case, in which also he was counsel, that the execution issued in this case would be quashed, and the said marshal having refused to proceed without indemnity against the estate of  Christopher Adams, which had been surrendered under the insolvent law of Louisiana, the said Josiah Barker requested the marshal to return this second execution. \nOn the 30th of April 1834, a new execution was issued on the judgment of the 18th of May 1826, to be levied on the mortgaged property in whose ever hands it might be found. \nThe marshal refused to execute this writ, further than by giving notice thereof to Nathaniel Cox, the provisional syndic for the creditors of Christopher Adams; whereupon a petition was presented to the Hon. Samuel H. Harper, praying the interposition of the court by commanding the marshal to sell the mortgaged premises without requiring any bond of indemnity; or by granting a rule requiring the marshal to show cause why he should not be attached for contempt of the court, in disobeying or refusing to execute its mandate. \nThe rule was granted before the time for returning the execution had elapsed, and was therefore discharged, whereupon  the marshal made the following return: \n\"May 1st, 1834. \n\"Gave notice of the seizure to Nathaniel Cox, esquire, provisional syndic of C. Adams, the defendant, the property having been previously surrendered by him to his creditors, and accepted by the court of the fourth judicial district of the state of Louisiana, and placed under the charge and control of N. Cox, esquire, as provisional syndic thereof. The further execution of this writ could not be effected. \n\"Returned 19th of May 1834. \n\"JOHN NICHOLSON, \nU.S. Marshal.\" \nOn the succeeding day a new rule was awarded against the marshal, who appeared on the return day thereof, and showed for cause against it his return on the writ as recited above. \nAfter solemn argument, the judge determined the return of the marshal, that he found the property in the hands of others, was prima facie evidence that it belonged to others; and that he should not require the marshal to take the responsibility of enforcing the execution without indemnity. \nOn the 27th of May, application was made to the judge, to  sign the confession of judgment, filed by Josiah Barker in the name of Christopher Adams, on the 10th of March, subject to all  legal exceptions, due notice of the filing thereof having been served on Christopher Adams and Nathaniel Cox; but the judge refused to sign the same, saying that it was not a judgment of the court. \nThe petitioners, conceiving that they are entitled to have the execution issued on the 30th day of April 1834 enforced against the mortgaged premises by the marshal of the United States, and to have a further execution for the balance of their aforesaid claim; either by the authority of the aforesaid mandamus, or by having the aforesaid confession of the 10th of March last signed; or by virtue of the original order of seizure and sale or otherwise: pray a further writ of mandamus, directed to Samuel H. Harper, judge of the district court of the United States for the eastern district of Louisiana; and if necessary, also to John Nicholson, marshal of the said court; or otherwise direct such a course of proceeding as will secure the due execution of the mandamus heretofore granted by this court, and afford them such other relief as they may be entitled to in the premises. \nJudge Harper appeared by his counsel, and showed for cause against issuing the mandamus for which application was made: \n That in obedience to a mandamus issued by the supreme court of the United States, he did, on the 7th day of March 1834, sign a judgment entered in this cause by his predecessor in office, on the 18th day of May 1826, and directed that execution should issue thereon. This was a specific judgment for the amount of all the notes which had then become due, and which were enumerated in a transaction between the parties then committed to record. It was stipulated in this act of compromise, on which the judgment was entered, that the defendant, Christopher Adams, should confess judgment on each of the remaining notes as it should fall due; and in default of such confession, he consented that Henry Eckford, president of the Life and Fire Insurance Company, or his successor in office for the time being, should appear in court and cause judgment to be entered against the defendant. No confession of judgment has been entered, nor has any  judgment been rendered on any one of the said notes. When the judgment  of the 18th of May 1826 was signed, Josiah Barker, agent for the plaintiffs, offered to confess judgment in the name and on behalf of Christopher Adams for the  residue of the notes. The court refused to receive this confession for the following reasons. The plaintiffs, instead of causing judgment to be confessed, in conformity with the stipulation contained in the transaction, appear to have abandoned their original suit. No step was taken until the 13th of April 1829, after all the notes had become due, when a new suit was instituted by the Mercantile Insurance Company of New York, to whom the claim had been assigned, to recover the whole amount due, including the judgment of the 18th of May 1826. The defendant filed an answer, charging the plaintiffs, among other things, with usury; upon which they, on the 12th of January 1831, suffered a nonsuit: when, after this proceeding, the agent for the plaintiffs offered to confess judgment in the name of the defendant, no notice of this intended confession had been given to the defendant, and a rule upon him to show cause against the judgment, was declined by the plaintiffs. Had the person offering to confess judgment even been the regularly constituted attorney of the defendant, there would have been, under all the circumstances of the case, some objection to receiving his confession without  notice. But he was not the regular attorney. In the transaction of the 2d of May 1826, Christopher Adams stipulated to confess judgment on all the notes as they should become due, \"and in default of such confession, he constituted and appointed Henry Eckford, president of the Life and Fire Insurance Company, or his successor in office for the time being, his attorney in fact, and irrevocable, in his name and stead, to appear in court and cause judgment to be entered up,\" &c.; and the said Adams further gave to the said Henry Eckford, president as aforesaid, or to his successor in office for the time being, attorney as aforesaid, full power of substitution in the premises, &c. Josiah Barker is not the substitute of Henry Eckford, or his successor in office for the time being. \nThe permission to file this paper, subject to all legal exceptions, did not convert it into a confession of judgment by the defendant or his attorney, nor could the mere notice that such a paper was filed add to its efficacy, there being no day fixed for contesting it. The transfer of the claim to Josiah Barker,  in trust for the Mercantile Company of New York, does not substitute him for Henry  Eckford, or his successor in office for the time being. \nIf either the mortgage acknowledged before the notary, or the transaction of the 22d May 1826, had itself the force of a judgment, no mandamus would be required to order the rendition of a new judgment; but these documents require judicial action to make them operative. \nIt is a circumstance which ought to suggest, and which has suggested circumspection in the proceedings to be taken in this cause, that though the judgment was recorded in May 1826, and Judge Robertson died late in 1828, and held several courts in the meantime, yet he never signed this judgment; nor was any application made to him for judgment on the notes which afterwards fell due during his life, though they amounted to six or seven. \nIn showing cause against a mandamus to compel the marshal to levy an execution on the mortgaged property whereever it may be found, Judge Harper observes, that after the emanation of the execution, Josiah Barker addressed a petition to the court, stating many facts connected with the execution, and complaining that the marshal refused to enforce it without being indemnified, and praying for a rule requiring him to show cause why  he should not be attached for contempt in disobeying the mandate of the court. The rule was granted. \nThe marshal returned, \"that he had given notice of seizure to Nathaniel Cox, provisional syndic of Christopher Adams, the defendant; the property having been previously surrendered by him to his creditors, and accepted by the court of the fourth judicial district of the state of Louisiana, and placed under the charge and control of Nathaniel Cox, as provisional syndic thereof; the further execution of the writ could not be effected.\" \nAccompanying this return was the following letter: \n\"John Nicholson, Esq., marshal. \n\"Dear sir, As counsel for N. Cox, syndic of the creditors of Christopher Adams, I am authorized to notify you, that any attempt to seize the property in his hands, at the suit of the  Life and Fire Insurance Company, will be resisted, and that you will proceed therein at your peril. \n\"Respectfully, \n\"G. STRAWBRIDGE.\" \nThe court was restrained from entering into any inquiry in whom the property was vested, by the considerations, that the creditors who claimed it were not before the court, and could not be brought before it on a rule upon the marshal. The trustee  for the Mercantile Company of New York contended, that the property still remained in possession of the marshal, under the order of seizure granted by judge Robertson; but the court ws of opinion that such presumption would be extravagant, inasmuch as the injunction continued in force for more than eight years; for, though dissolved in terms by the judgment of may 1826, that judgment, by the laws of Louisiana, had no force until it was signed in pursuance of the mandamus of the supreme court. In addition to this, it appears, from the return of the marshal, that the property was released on receiving the injunction. \nThe judge also conceived, that by a fair construction of the transaction of the 2d of May 1826, the plaintiffs must be understood to have agreed to discontinue their suit, in consideration of the dissolution of the injunction; as a prosecution of the suit, after the dissolution of the injunction, was not within the intention of the parties. He was also of opinion, that the property being found in possession of a third party, is no prima facie evidence that it belonged to that third party; but that this was a question which could not be investigated, on a rule against  the marshal, in the absence of the party interested. He was also of opinion, that the marshal, not being indemnified, and proceeding at his peril, ought to be governed by his  own judgment; and would make himself personally liable to the creditors of Adams, if they should thereafter establish their right to the property ceded to them. This liability has been established by the supreme court of Louisiana against this very marshal, in which the court said, \"that if acting in his capacity as marshal, he wrongs a citizen of a state, he is individually answerable, and in her courts.\" In another case judgment was given against the same marshal for the amount  of money made by him on an execution, issued out of the district court of the United States, under which he had seized and sold property in the hands of the syndic of the debtor. The judge adds, that he has never thought it his duty to compel the officers of the court to perform acts for the benefit of others, which might work their own ruin. \nCounsel have given more precision to the general application of the petitioners, by presenting five separate and alternative prayers for a mandamus commanding a particular  thing; each application founded on the rejection of that which precedes it. \nThe first is for such an execution as that which was issued on the 12th of March 1834, at the instance of the plaintiffs, being an execution for the amount of all the notes secured by the mortgage and transaction in the petition mentioned; to be levied on the mortgaged property: but if not sufficient, then on the property generally of the said Christopher adams, whereof he was owner on the 18th day of May 1826, into whose hands soever the same may have come. \nThe applicant does not inform us, whether the execution is to be issued on the judgment entered by Judge Robertson and signed by Judge Harper; or on the confession made by Josiah Barker, in the name of Christopher Adams, on the 10th day of March 1834. \nJudge Harper has shown for cause against an execution for the whole debt, on the judgment entered by Judge Robertson on the 18th day of May 1826, that the whole debt was not then due; and that the judgment in its terms, comprehends that portion of the debt only which was actually due. He shows for cause against any execution founded on the paper delivered by Josiah Barker, on the 10th day of March 1834,  that Josiah Barker exhibited no power of attorney from Christopher Adams, and showed no right to personate him. That the court did not receive his confession as the confession of Christopher adams, nor enter any judgment upon it. Of consequence, that act cannot warrant an execution of any description. \nThe record, we think, verifies these statements. \nIf the cause shown against a mandamus to issue such a writ of execution as is asked, or the judgment in its present state be deemed sufficient, then the petitioners ask for a mandamus  commanding the judge to amend such judgment; by extending the terms thereof, so as to make the same absolute upon all the notes and sums of money enumerated in the original transaction, &c. \nToextend the judgment to subjects not comprehended within it, is to make a new judgment. This court is requested to issue a mandamus to the court for the eastern district of Louisiana, to enter a judgment in a cause supposed to be depending in that court; not according to the opinion which it may have formed on the matter in controversy, but according to the opinion which may be formed in this court, on the suggestions of one of the parties. This court  is asked to decide that the merits of the cause are with the plaintiffs; and to command the district court to render judgment in their favour. It is an attempt to introduce the supervising power of this court into a cause while depending in an inferior court, and prematurely to decide it. In addition to the obvious unfitness of such a procedure, its direct repugnance to the spirit and letter of our whole judicial system cannot escape notice. The supreme court, in the exercise of its ordinary appellate jurisdiction, can take cognizance of no case until a final judgment or decree shall have been made in the inferior court. Though the merits of the cause may have been substantially decided, while any thing, though merely formal, remains to be done, this court cannot pass upon the subject. If from any intermediate stage in the proceedings an appeal might be taken to the supreme court, the appeal might be repeated to the great oppression of the parties. So if this court might interpose by way of mandamus in the progress of a cause, and order a judgment or decree; a writ of error might be brought to the judgment, or an appeal prayed from the decree: and a judgment or decree entered  in pursuance of a mandamus might be afterwards reversed. Such a procedure would subvert our whole system of jurisprudence. \nThe mandamus ordered at the last term, directed the performance of a mere ministerial act. In delivering its opinion the court said: \"on a mandamus a superior court will never direct in what manner the discretion of an inferior tribunal shall be exercised; but they will, in a proper case, require the inferior court to decide.\" To order the district court to give  judgment for the plaintiffs, is \"to direct in what manner its discretion shall be exercised.\" \nSufficient cause is shown against granting this prayer. \nIn the event of this prayer being rejected, the court is asked to award a mandamus to the district judge, commanding him to consummate the interlocutory part of the said judgment, by entering and signing final judgment upon and for all the notes and sums of money mentioned in the transaction aforesaid as not being then due; and thereupon to issue such execution, &c. \nThis prayer does not vary substantially from its predecessor. It requires the same interference of the supreme court in the proceedings of the inferior court while in progress;  and the same direction how its discretion shall be exercised. It requires a direction to the district court to give judgment for one of the parties, and prescribes the party for which it shall be given. The cause shown against granting the preceding prayer applies equally to this. \nShould this last prayer also be rejected, the court is next asked to award a mandamus commanding the district judge to compel the marshal duly to execute such process as may be issued;  notwithstanding the cession of the estate of the said Adams, and the appointment of a provisional syndic thereof. It is the duty of the marshal to execute all process which may be placed in his hands; but he performs this duty at his peril, and under the guidance of law. He must, of course, exercise some judgment in its performance. Should he fail to obey the exigit of the writ, without a legal excuse; or should he, in obeying its letter, violate the rights of others; he is liable to the action of the injured party. \nIn the particular case in which the creditor asks for a mandamus to the district judge to compel the officer to seize and sell the property mentioned in the writ, that property is no longer in  possession of the debtor against whom the process is directed; but has been transferred, by law, to other persons, who are directed, by the same law, in what manner they are to dispose of it.To construe this law, or to declare the extent of its obligation, the questions must be brought before the court in proper form, and in a case in which it can take jurisdiction. This case, so far as it is before any judicial tribunal, is depending in a district court of the United States, and perhaps  in a state court of Louisiana. The supreme court of the United states has no original jurisdiction over it, and cannot exercise appellate jurisdiction previous to a final judgment or decree, further than to order acts, purely ministerial, which the duty of the district court requires it to perform. This court cannot, in the present condition of the case, construe judicially the laws which govern it, or decide in whom the property is vested. In so doing, it would intrude itself into the management of a case requiring all the discretion of the district judge, and usurp his powers. \nThe mandamus cannot be granted as prayed. \nThe fifth prayer asks a mandamus requiring the judge to compel  the marshal to execute the writ of execution heretofore issued, on the 30th of April 1834, on the said judgment, for the amount of the notes of the said Adams, due on the 16th of May 1826, notwithstanding the cession and other matters mentioned by the marshal in the return thereof. \nThis prayer differs from that which preceded it only in the amount for which the execution is to issue. So far as respects the interference of the supreme court in construing laws not regularly before it, and controlling the discretion of the district court; they stand on precisely the same principle. The objections, therefore, which were stated to granting the fourth prayer, apply equally to the fifth. \nThe court cannot grant a mandamus ordering the district court to perform any one of the specific acts which have been stated in the petition; or in the more particular application contained in the statement presented by counsel. \nThough the supreme court will not order an inferior tribunal to render judgment for or against either party; it will, in a proper case, order such court to proceed to judgment. Should it be possible, that in a case ripe for judgment, the court before whom it was depending, could,  perseveringly, refuse to terminate the cause; this court, without indicating the character of the judgment, would be required by its duty to order the rendition of some judgment: but, to justify this mandate, a plain case of refusing to proceed in the inferior court ought to be made out. In Ex parte Bradstreet, 8 Peters 590, this court said: \n\"We have only to say, that a judge must exercise his discretion in those intermediate proceedings which take place  between the institution and trial of a suit; and if, in the performance of this duty, he acts oppressively, it is not to this court that application is to be made. \n\"A mandamus, or a rule to show cause, is asked in the case in which a verdict has been given, for the purpose of ordering the judge to enter up judgment upon the verdict. The affidavit itself shows that judgment is suspended for the purpose of considering a motion which has been made for a new trial. The verdict was given at the last term; and we understand it is not unusual in the state of New York for a judge to hold a motion for a new trial under advisement till the succeeding term. There is then nothing extraordinary in the fact, that Judge Conklin  should take time till the next term to decide on the motion for a new trial.\" \nIn the case now under consideration, no application is made for a mandamus directing the court generally to proceed to judgment. The petitioners require a mandamus ordering the judge to render a specific judgment in their favour. It is not even shown that the case is in a condition for a final judgment; nor is it shown that the judge is unwilling to render one. The contrary may rather be inferred from his readiness to grant a rule on the defendant, requiring him to show cause why judgment should not be rendered. In a case of such long standing, where it is more than possible the defendant might not be in court; where judgment is asked on a confession made by the agent of the plaintiffs, professing to be the attorney of the defendant; the judge may be excused for requiring that notice should be given to the defendant. \nThe rule is discharged. \nOn consideration of the motion made in this case for a mandamus to be addressed to the honourable Samuel H. Harper, district judge of the United States for the eastern district of Louisiana, and of the arguments of counsel thereupon had, as well in opposition  to, as in support of the motion: it is now here ordered and adjudged by this court, that the mandamus prayed for be, and the same is hereby refused, and that the said motion be, and the same is hereby overruled. \nConcur by:", " \nOpinion \n\n \n \n  Mr Chief Justice MARSHALL delivered the opinion of the Court. \nThis is an action of replevin instituted in the circuit court for the county of Alexandria, and removed, for trial, to the county of Washington. \nThe plaintiff in error, the original defendant, avowed as bailiff of William S. Moore, that the goods replevied were distrained for rent in arrear. The plaintiff in replevin, after craving oyer of the deed, by which the rent alleged to be in arrear was reserved, pleaded the statute of suury in bar of the claim. The plea alleged that the contract between  the parties was a corrupt and usurious lending of the sum of 5000 dollars, upon an interest of ten per centum per annum. \nOther issues were joined in the cause, but they are not noticed because they are of no importance. \nOn the trial, the plaintiff in replevin offered Jonathan Scholfield as a witness, who was objected to by the avowant, but admitted by the court, and to this admission the avowant excepted. \nIn support of his objection to the competency of the witness, the counsel for the avowant exhibited a deed, executed on the 11th of June 1814, by Scholfield and wife, to William S. Moore,  by whose authority the distress was made; by which the said Scholfield and wife, in consideration of 5000 dollars paid by the said Moore to the said Scholfield, granted to the said William S. Moore, his heirs and assigns for ever, one certain annuity or rent of 500 dollars, to be issuing out of and charged upon a lot of ground, and four brick tenements and appurtenances thereon erected, lying in the town of Alexandria, and particularly described in the deed. \nAlso a deed between the said Scholfield and wife of the first part, John Lloyd the plaintiff in replevin of the second part,  and Andrew Scholfield of the third part; conveying to the said John Lloyd the lot out of which the annuity or rent charge of 500 dollarS, had been granted to William S. Moore. This deed contains several covenants, and, among others, a stipulation that the lot shall remain subject to the annuity to William S. Moore. \n Also the following letter from Scholfield to Lloyd. \n\"Alexandria, June 9th 1824. \n\"Sir -- As you hold under me the property on which I granted a rent charge of 500 dollars a year to William S. Moore, I now give you notice, the contract by which that rent charge was created I consider to be usurious, and that I shall take measures to set aside the same; and I hereby require you to withhold from William S. Moore the payment of any farther money, on account of this rent charge; and in case distress should be made upon you for the rent, I promise to save you harmless if you will resist the payment by writ of replevy. I wish you to understand, that if you make any farther payments after receiving this notice, that you make them at your own risk.\" \nI am with great respect, yours, \nJONATHAN SCHOLFIELD. \nTo Mr JOHN LLOYD. \nThis letter was delivered to Mr Lloyd on  the day of its date. \nAlso a deed of the 18th of November 1826 from said Scholfield, making a conditional assignment of one-fifth of said annuity of 500 dollars to Thomas K. Beale in which he recites and  acknowledges his responsibility to Lloyd, on account of the distress for rent made by William S. Moore. \nAlso, an exemplification of the record of the proceedings in the county court of Fairfax, in the commonwealth of Virginia, upon the insolvency and discharge of the said Scholfield, as an insolvent debtor, in May 1822. \nWhereupon the plaintiff in replevin, to support the competency of the said Scholfield, laid before the court the following documents. \nA release from said Scholfied to the plaintiff in replevin, dated the 13th day of June 1831; whereby said Scholfield, in consideration of 5000 dollars released to him by the said Lloyd, out of a debt due by him to Lloyd, grants to said Lloyd all the right, title and interest, which he has, or may have, from the decision of the suit depending for the annuity or rent charge granted to Moore, or which he has, or may have thereafter, to the brick buildings upon which the said annuity or rent charge is secured. He also releases  the said Lloyd from all covenants or obligations, expressed or implied, arising out of the deed of assignment from him to said Lloyd; and also from all claims, &c., which now exist, or may hereafter arise out of the said deed, &c. Also a release from the same to the same, dated 25th April 1828, in which Scholfield releases to Lloyd all his right, &c., to the said suit, &c., and to all sums of money which may acfrue, and from all actions, &c., on account of the said suit, &c. \nAlso, a release of the same date from Thomas K. Beale and James M. M'Crea, releasing the said Jonathan Scholfield from 950 dollars, part of a debt of 2000 dollars, due from him to them. \nAlso, a release from Joseph Smith, of same date, releasing 1150 dollars, part of a debt of 3000 dollars, due to him from said Scholfield. \nAlso, a release of William Veitch and Benoni Wheat, discharging the said Scholfied from 250 dollars, part of a debt of 800 dollars, due to them from him. \nAlso an engagement of John Lloyd, dated the 25th of April 1828, binding himself to the several persons who executed the foregoing releases for the several sums released by them, in the  event of his succeeding in the suit then  depending between himself and Charles Scott, bailiff of William S. Moore. \nAlso a release from John Lloyd, stating, that whereas Jonathan Scholfield stood indebted to him in a large sum of money; he had agreed to release, and did thereby release, the said Scholfield from 5000 dollars, part of the said debt. \nIn discussing the competency of the witness, some diversity of opinion prevailed on the question whether he could be received to invalidate a paper executed by himself; but, without deciding this question, a majority of the court is of opinion that he is interested in the event of the suit. His letter of the 9th of June, to John Lloyd, the tenant in possession, requiring him to withhold from William S. Moore the payment of any farther sum of money, on account of this rent charge, contains this declaration: \"and in case distress should be made upon you for the rent, I promise to save ou harmless, if you will resist the payment by writ of replevy. I wish you to understand, that if you make any further payments after receiving this notice, that you make them at your own risk.\" \nThis is an explicit and absolute undertaking, to assume all the liabilities which Mr Lloyd might incur  by suing out a writ of replevin, if an attempt should be made to levy the rent by distress. Mr Scholfield then is responsible to Mr Lloyd for the costs of this suit. This is a plain and substantial interest in the event of the suit, from which Mr Lloyd alone can release him. This liability was incurred before the sale and release from Scholfield to Lloyd of the 13th of June 1831; and Mr Scholfield's responsibility depended on the decision of the suit in which he was called as a witness, unless his release to,a nd contract with Lloyd of the 13th of June 1831, could discharge him from it. That contract transferred to Lloyd all the interest of Scholfield, in the ground charged with the rent to Moore, but did not transfer with it his obligation to save Lloyd harmless, for resisting the claim of Moore to the rent in arrear. It produced a state of things which removed all motives, on the part of Schoflield, for incurring fresh liabilities, but did not discharge him from liabilities already incurred. It placed in his hands the entire management of the suit, but did not enable him to undo what was done, or to relieve himself from the claim of Moore to costs, should the suit terminate  in his favour.  The responsibility of Lloyd to Moore continued, and the correlative responsibility of Scholfield to Lloyd still continued also, unless Lloyd had released him from it. Now there is no expression in the conttacts between the parties, which purports to be such a release. It has been inferred as the result of the change in the situation of the parties; but we do not think the inference justified by the fact. The obligation is unequivocal; is expressed in plain and positive terms; is dependent on the event of a suit, and independent of the ownership of the property. The parties enter into a contract by which the property is transferred, without making any allusion to this obligation. It remains, we think, in full force; and, consequently, Jonathan  Scholfield was an interested and incompetent witness. \nIn the progress of the examination, the plaintiff's counsel put to the witness the following question -- \"did you, in the course of your discussions as to the time you were to keep the money, state your object in the application to be, to have the use of the 5000 dollars for a limited time?\" \nTo which the defendant's counsel objected, as being a  leading interrogatory. The plaintiff's counsel then varied the question as follows: \n\"Did you or did you not, in the course of your discussions, &c.\" To which the defendant's counsel made the same objection; but the court overruled the objection, and permitted the question to be put; and the defendant excepts to that decision. \nAlthough the plaintiff's counsel objected to this question, and said that he excepted to the opinion of the court; no exception is actually prayed by the party, or signed by the judge. This court, therefore, cannot consider the exception as actually taken, and must suppose it was abandoned. \nEvidence was given by the plaintiff in replevin, conducing to prove that the contract between Scholfield and Moore, under which the sum of 5000 dollars was advanced by the latter to the former, originated in an application for a loan of money; not for the purchase and sale of a rent charge or annuity. Scholfield applied to Moore to raise or borrow 5000 dollars, securing him on an annuity or ground rent fro one year: Moore proposed to let him have the money for ten years on the same security. After much discussion the parties agreed to split the  difference,  and that Scholfield should keep the money five years. Schfield says his first proposition was to allow ten per cent and to secure it by an annuity or ground rent on the houses mentioned in the deed. No other interest but ten per cent was mentioned; Scholfield had no in tention of selling the property. It was also in evidence that Moore was a money lender, and was in the habit of advancing money, secured on ground rents or annuities: and that Scholfield was a money borrower; and that the property was an ample security for the money lent, and for the annuity. \nOn the part of the avowant, it was proved, that the usual value of those ground rents or annuities charged on lots in Alexandria was such as to afford an interest of ten per cent per annum on the principal sum advanced; and it was admitted by Scholfield that he gave Moore no promise, stipulation or security for the return of the 5000 dollars, other than is contained in the deed itself. \nMany witnesses were examined, and a great deal of testimony, bearing more or less directly on the contract, was adduced. \nThe deed from Scholfield and wife to W. S. Moore, by which, in consideration of 5000 dollars, the annuity or rent charge  of 500 dollars per annum was created, contains a covenant \"that the said J. Scholfield, his heirs and assigns, will well and truly pay to the said W. S. Moore, his heirs and assigns, the said annuity or rent charge of 500 dollars, by equal half yearly payments, on the 10th day of June and on the 10th day of December, in each year, for ever hereafter, as the same shall become due; and that if the sae be not punctually paid, then it shall be lawful for the said W. S. Moore, his heirs and asigns, from time to time, on every such defautl, to enter on the premises charged, and to lvey, by distress and sale of the goods and chattels there found, the rent in arrear and the costs of distress and sale; and if the same shall remain in arrear and unpaid for the space of thirty days after any day of payment, as aforesaid, and no distress sufficient to satisfy the same can be found on the premises charged, then it shall be lawful for the said W. S. Moore, his heirs and assigns, to enter on the premises charged, and from thence to remove and expel the said J. Scholfield, his heirs and assigns, and to hold and enjoy  the same as his, and their, absolute estate for ever thereafter.\" \"And  tht the said J. Scholfield, his heirs and assigns, will for ever hereafter keep the buildings and improvements which now are, or hereafter may be erected on the premises charged, fully insured against fire, in some incorporated insurance office, and will assign the policies of insurance to such trustees as the said W. S. Moore, his heirs or assigns, may appoint; to the intent that if any damage or destruction from fire shall happen, the money received on such policies may be applied to rebuilding or repairing the buildings destroyed or damaged.\" \n\"And lastly, that he and his heirs will for ever warrant and defend the annuity or rent charge hereby granted to the said W. S. Moore, his heirs and assigns, against any defalcation or deduction, for or on account of any act of him, his heirs or assigns.\" \nThe deed contained a farther covenant, that if, at any time after five years, the said J. Scholfield should pay to the said W. S. Moore the sum of 5000 dollars, with all arrears of rent, & c., the said W. S. Moore will execute any deed releasing or extinguishing the said rent or annuity. \nWhen the testimony was closed, the counsel for the defendant and avowant prayed the court to instruct  the jury, \" that the contract between said Jonathan Scholfield and William S. Moore, such as it is evidenced by the deed from said Scholfield and wife to said Moore, set out in the proceedings, and given in evidence by the plaintiff as aforesaid, was lawful and free of the taint of usury; and in order to impeach it of usury, and support the issues of fact joined in this cause on the part of the plaintiff, it is necessary for the plaintiff to prove, that besides the contract imported by the terms of said deed, there was an actual contract between said Scholfield and Moore for the loan of 5000 dollars at usurious interest, to wit, at the rate of ten per cent per annum, to be disguised under the form and name of an annuity or rent charge; and that such sum was actually lent by said Moore to said Scholfield, and said deed given in pursuance and execution of such contract and loan, securing the said usurious interest under the form and name of such annuity or rent charge; that the facts given in evidence to the jury as aforesaid to support the issues above joined on the part  of the plaintiff, did not import such a lending of money by Moore to Scholfield, at usurious interest,  as was sufficient to support  the issues joined on the part of the plaintiff in replevin, upon the second and fourth pleas by the plaintiff in replevin, pleaded to the cognizance in this case.\" Which instruction the court refused to give; to which refusal the defendant and avowant, by his counsel, prayed an exception, which was signed. \nThe substantial merits of the case are involved in the subsequent instructions which the court actually gave; and it will be apparent when we proceed to the consideration of those instructions, that if they ought to have been given, this ought to have been refused. There are however, objections to the manner in which these instructions are framed; which ought not to have been overlooked by the court.The statute against usurry not only forbids the direct taking of more than six per centum per annum of rthe loan or forbearance of any sum of money, but it forbids any shift or device, by which this prohibition may be evaded and a greater interest be in fact secured. If a larger sum than six per cent by not expressly reserved, the instrument will not of itself expose the sury; but the real corruptness of the contract must be shown by extrinsic  circumstances, which prove its character. Those circumstances must of course be viewed in connection with the contract. The counsel for the avowant asks the court to separate the instrument from its circumstaces, and to inform the jury that the instrument itself was lawful,a nd free from the taint of usury; and that to fix this taint upon it, the plaintiff in replevin must prove, besides the contract in the deed, an actual contracT, stipulating interest at the rate of ten per centum per annum for the loan of 5000 dollars. HAd this instruction been given, circumstances which demonstrated the intention of the parties, and explained completely the contract actually made, if such existeD, must have been disregarded by the jury. The court is next requested to say to the jury, that the facts given in evidence did not import such a lending as would support the issue. \nThe court is thus asked to suurp the province of the jury, and to decide on the sufficiency of the testimony, in violation of the well established principle, that the law is referred to the court,  the fact to the jury. The court did not err in refusing to give this instruction. \n\"The plaintiff then prayed the  court further to instruct the jury, that the matters shown in evidence to the jury as aforesaid, are proper for the consideration of the jury, to determine, from the whole evidence, under the instruction of the court, as already given to them in this cause, whether the said contract so made between the said Moore and Scholfield waS, in substance and effect, a loan at usurious interest, or a bona fide contract for the bargain and sale of a rent charge; and if the jury, from the said whole evidence under the instructions as aforesaid, shall believe it to have been such a loan, they should find for the plaintiff; if otherwise, for the defendant.\" \nThe court gave this instruction, and the defendants excepted to it. Its correctness is now to be examined. \nThe statute declares, \"that no person shall, upon any contract, take, directly or indirectly, for loan of any money,\" &c., \"above the value of six dollars, for the forbearance of one hundred dollars for a year,\" &c. \nIt has been settled,t aht to constitute the offence, there must be a loan, upon which more than six per cent interest is to be received; and it is also settled, that where the contract is in truth for the borrowing and lending  of money, no form which can be given to it will free it from the taint of usury, if more than legal interest be secured. \nThe ingenuity of lenders has devised many contrivances, by which, under forms sanctioned by law, the statute may be evaded. Among the earliest and most common of these is the purchase of annuities, secured upon real estate or otherwise. The statute does not reach these, not only because the principal may be put in hazard, but because it was not the intention of the legislature to interfere with individuals in their ordinary transactions of buying and selling, or other arrangements made with a view to convenience or profit. The purchase of an annuity therefore, or rent charge, if a bona fide sale, as never been considered as usurious, though more than six per cent profit be secured. Yet it is apparent, that if giving this form to the contract will afford a cover which conceals it from judicial investigation, the statute would become a dead letter. Courts, therefore, perceived the necessity of disregarding the  form, and examining into the real nature of the transaction. If that be in fact a loan, no shift or device will protect it. \nThought this  principle may be extracted from all the cases, yet as each depends on its own circumstances, and those circumstances are almost infinitely varied, it ought not to surprise us if there should be some seeming conflict in the application of the rule by different judges. Different minds allow a different degree of weight to the same circumstances. \nThe King v. Drury, 2 Lev. 7, is a very strong case in favour of the avowant, and has been much pressed on the court by his counsel. \nBrown agreed to assign to Drue a lease of a house for forty years for the sum of 300 pounds. Drue not having the money, Drury, by agreement with Drue, paid the 300 pounds, took the assignment to himself, and then let the house to Drue for thirty-nine and three quarter years, at a rent, of which 30 pounds was payable to himself. Drury covenanted that if at the end of four years Drue paid the 300 pounds,he woudl convey the residue of the term to Drue. Per Hale, C. J. \"This is not usury within the statute; for Drue was not bound to pay the 300 pounds to Drury.\" \"It is no more in effect than a bargain for an annuity of 30 pounds yearly, for thirty-nine and three quearter years, for 300 pounds to be secured in this  manner, determinable sooner if the grantor pleases; but the grantee hath no remedy for his 300 pounds.\" \"And so the acceptance of the 7 pounds 10 shillings is not susury. But if Drury had taken security for the repayment of the 300 pounds, or it had been by any collateral agreement to be repaid, and all this method of bargaining a contrivance to avoid the statute; this had been usury.\" \nThis case has been cited to prove that, without an express stipulation for the repayment of the money advanced, a contract cannot be usurious, whatever profit may be derived from it. It must be admitted that although lord  Hale does not say so in terms, the case, as reported, countenances this construction. But the accuracy of the report must be questioned; and it is believed that such a principle would not now be acknowledged in the courts of England. \nChief Justice Hale considers the transaction simply as a bargain for an annuity, not as a loan of money. Whether  the circumstances of the case warranted this conclusion or not, it is the conclusion he drew from them. The negotiation between Drue and Drury, by which the latter advanced the money, became the assignee of the  term, and then loaned it to the former, accompanied with a power of redemption, are totally overlooked by the judges. It had no influence on the case.It was not considered as affording any evidence, that the transaction was in reality a loan of money. The principle of law announced by the judge is simply, that a bargain for an annuity is not usury. He adds, that if the repayment of the 300 pounds had been secured, and all this method of bargaining a contrivance to avoid the statute, this had been usury.\" \nHe connects the bargaining, being a contrivance to avoid the statute, with a security for the repayment of the sum advanced, as if he thought this security indispensable to the effect of the bargaining, without which the contract could not be usurious. \nIt is obvious that if this inference of law from the fact be admitted without qualification, it will entirely defeat the statute. If an express stipulation for the repayment of the sumadvanced be indispensable to the existence of usury, he must be a bungler indeed, who frames his contract on such terms as to expose himself to the penalities of the law. If a man purchases for 500 dollars an annuity for 200 dollars per annum redeemable  at the will of the grantor in ten years, without any express stipulation for the reqpayment of the 500 dollars; this, according to Drury's case, as reported, would be no more than a bargain for an annuity; and yet the grantor would receive excessive usury, and the grantee would be compelled, by the very terms of the contract, to repay the 500 dollars as certainly as if he had entered into a specific covenant for repayment, on which an action could be maintained. Lord Hale cannot have intended this. He has not said so in terms; and we must believe that he did not mean to require more than that the contract should not be such as, in effect, to secure the principal sum advanced with usurious interest. It would be a very unusual stipulation in the grant of an annuity, that the money should be returned otherwise than by the annuity itself. \nSo in Finch's case, reported in Comyn on Usury 43, Canfield secured to Ficnh more than the legal interest on the money  advanced by a rent issuing out of land, and the court determined that it was not usury, though Canfield had applied for a loan of money which Finch refused, offering at the same time to let him have the sum by way of annuity  or rent.This was held not to be usurious. \"This,\" said the court, \"is not a contract commenced upon a corrupt cause; but an agreement for a rent which it is lawful for every one to make.\" But it was said, tht if twelve pounds in the hundred had been offered to be paid, (the legal interest was then ten per cent) and the other had said that he would accept it, but that this would be in danger of the law, and therefore he did not like to contract upon these terms; but that if the other party would assure him an annual rent for his money then he would lend it; and upon this an agreement for the rent had been made: this would have been within the statute.\" The same principle is decided in Cro. James 252. These cases turn on the evidence which shall be sufficient to prove a loan to be the foundation of the contract; but do not withdraw the case from the statute, if a loan be its foundation. They decide that a mere application for a loan does not convert a subsequent annuity, which yields a profit beyond legal interest, into a usurious contract; but that an actual contract for the loan, if converted into an annuity in order to avoid the law, is within the statute. \nIn these cases the court  decides upon the fact, and determines that a variation in it, the importance of which is not distinctly perceived, would bring the contract within the law. In all of them, we think it probable, that a court of the present day would leave it to the jury to say, whether the contract was a fair purchase or a loan, and would direct the jury to find for the plaintiff or defendant, as their opinion on that fact might be. \nIn Fuller's case, 4 Leon. 208, and in Symonds v. Cockrell, Noy 151 and Brownlow 180, a distinction is taken between the purchase of an annuity without any communication respecting a loan, and a purchase where the negotiation commences with an application to borrow money, though no contract of loan followed such application. \nIn a case, between Murray and Harding, reported in Comyns on Usury 51, Markham, an attorney, at the request of Robert Harding, rector of Grafton Regis, applied to Mrs Mary Murray, to lay out 120 pounds in the purchase of an annuity  of 20 pounds a year for the defendant's life, charged on his rectory of Grafton, redeemable by him at the end of the first five years upon the payment of 109 pounds 10 shillings. There was no communication with  her about a loan, but merely about the purchae of such redeemable annuity; although Harding had mentioned to his attorney Markham, a wish to borrow 100 pounds or upwards. \nThis case was brought before the court. In giving his opinion on it, Chief Justice De Grey said, \"communication concerning a loan has sometimes infected the case and turned the contract into usury, but then the communication must be mutual.\" \"I know no case where even a meditated loan has been bona fide converted into a purchase, and afterwards held to be usurious. To be sure it is a strong and suspicious circumstance; but if the purchase comes out to be clearly a bona fide purchase, it will not withstanding be good.\" \n\"If a power of redemption be given, though only to one side, it is a strong circumstance to show it a loan, as in Lawley v. Hooper. But that alone will not be conclusive.\" \nThe chief justice added, \"in the present case the principal is precarious and secured only by the life of a clergyman, and his continuing to be beneficed.\" \nIn Lawley v. Hooper, 2 Atk. 278, Thomas  Lawley, being entitled to an annuity of 200 pounds a year for life; sold 150 pounds, part thereof, to Rowland Davenant  for 1050 pounds, with power to repurchase, on giving six months notice. After the death of Davenant, Lowry brought this bill against his executors for an account, and that upon payment of what should be due, the defendants might reassign the annuity to the plaintiff. \nIn giving his opinion, the chancellor said, \" there has been a long struggle between the equity of this court, and persons who have made it their endeavour to find out schemes to get exorbitant interest and toe vade the statutes of usury. The court very wisely hath never laid down any general rule beyond which it will not go.\" \ncIn this case there are two questions to be considered. 1. Whether this assignment is to be considered as an absolute sale, or a security for a loan. \n\"As to the first, I think, though there is no occasion to determine  it; there is a strong foundation for considering it a loan of money; and I really believe in my conscience, that ninety-nine in a hundred of these bargains are nothing but loans, turned into this shape to avoid the statutes of usury.\" \nThe chancellor then proceeds to state the circumstances under which the contract was made, and the character of the contract itself;  and although there was no treaty about a loan, he considers it as one. After enumerating the circumstances, he concludes with saying, \"therefore, upon all the circumstances, I think it was, and is to be taken as a loan of money turned into this shape, only to avoid the statute of usury; but I do not think I am under any absolute necessity to determine this point, for I am of opinion that this is such an agreement as this court ought not to suffer to stand, taking it as an absolute sale.\" The relief asked by the plaintiff in his bill, was granted. \nIn the noted case of Chesterfield, Executor of Spencer v. Janssen, reported in 1 Atk. and 1 Wils., 5000 pounds was advanced by Janssen, on the bond of Mr Spencer, to pay 10,000 pounds should he survive the duchess of Marlborough. After the death of Mr Spencer, this bond was contested by his executor; and one of the points made was, that it was usurious. The cause was argued with great ability, and determined not to be within the statutes, because the principal was in hazard. In giving this opinion, the judges define usury in terms applicable to the present case. \"To make this contract usurious,\" said Mr Justice Burnet, cit must be either  because it is within the express words, or an evasion or shift to keep out of the statutes.\" \"Whatever shift is used for the forbearance or giving day of payment, will make an agreement usurious; and is by a court and jury esteemed a colour only. Suppose a man purchase an annuity at eer such an under price; if the bargain was really for an annuity, t is not usury. If on the foot of borrowing and lending money, it is otherwise; for if the court are of opinion the annuity is not the real contract, but a method of paying more money for the reward or interest than the law allows, it is a contrivance that shall not avoid the statute.\" \nThe lord chancellor said,\" if there has been a loan of money, and an insertion of a contingency which gives a higher rate of interest than the statutes allow, and the contingency goes to  the interest only, though real and not colourable, and notwithstanding it be a hazard, yet it has been held usurious.Where the contingency has related to both principal and interest, and a higher interest taken than allowed by the statute, the courts have then inquired whether it was colourable or not.\" \nWilson reports the chancellor to have said, \"courts regard  the substance and not the mere words of contracts.Loans, on a fair contingency to risk the whole money, are not within the statute; a man may purchase an annuity as low as possible, but if the treaty be about borrowing and lending, and the annuity only colourable, the contract may be usurious, however disguised.\" \nRichards qui tam v Brown, Cowper 770, was an action on the statute of usury. Richard Heighway applied to Brown for a loan of money, to which Brown assented, and advanced part of the money, promising to advance the residue, being 400 pounds, in a fortnight. After some delays, Brown said he could not raise the money himself, but would try to get it of a friend, in the city, who was a hard man. Heighway said he would give twenty or thirty guineas rather than not have the money. Frown said, \"that his friend never lent money but on an annuity at six years purchase. However,\" he added, \"if you will take the money on those terms, I will engage to furnish you with money to redeem in three months' time.\" Heighway executed a bond and warrant of attorney, for conveying the annuity to one Waters. The money was really advanced by Brown, and the name of Waters was used by him. Heightway  deposed that Brown first proposed the annuity. He himself would not have granted one. Heighway pressed for the money to redeem, but Brown refused it. \nLord Mansfield told the jury that if they were satisfied, \"that, in the true contemplation of the parties, this transaction was a purchase by the one, and a sale by the other, of a real annuity, how much soever they might disapprove of, or condemn the defendant's conduct, they must find a verdict for him.But on the contrary, fi it appeared to them to have been in reality and truth, the intention of both parties, the one to borrow and the other to lend, and that the form o an annuity was only a mode forced on the necessity of the borrower by the lender, under colour of which he might take an usurious and exorbitant  advantage, then they might find for the plaintiff, notwithstanding the contingency of the annuitant dying within three months.\" \nThe jury found for the plaintiff. \nOn a motion for a new trial, lord Mansfield said, \"the question is, what was the substance of the transaction and the true intent and meaning of the parties, for they alone are to govern, and not the words used. The substance here was plainly a borrowing  and lending. Heighway had no idea of selling an annuity, but his declared object was to borrow money.\" \"IT is true there was a contingency during three months. It was that which occasioned the doubt, whether a contingency for three months is sufficient to take it out of the statute.c TThe new trial was granted. \n In the case of Irnham v. Child, 1 Br. Ch. Rep. 93, lord Thurlow is reported to have said (referring to previous dicta), \"all therefore that seems to be meant is this, that the annuity shall be absolutely sold without any stipulation for the return of the principal; and that it shall not be intended as a means of paying interest until such principal is returned. But where there is a sale it is not usurious to make it redeemable.\" \nIn Drew v. Power, 1 Schoales and Lefroy 182, the plaintiff being much embarrassed in his circumstances, communicated to the defendant his desire for raising money to extricate himself from his debts. After approving his purpose and increasing sufficiently his anxiety for its accomplishment, the defendant informed him that two of his estates, Poulagower and Knockavin, would shortly be out of lease, and that if he would make the defendant  a lease of them for three lives,a t the rent of 200 pounds per annum, he would, from friendship, advance him money sufficient to pay all his debts. The plaintiff assented to this proposition. The bill then proceeds to charge much unfairness and oppression on the part of the defendant in making advances towards paying the debts of the plaintiff, and states that he claimed a balance of 1015 pounds and 15 shillings, for which he demanded the plaintiff's bond. Tis was given.The defendant then required a lease for Poulagower and Knockavin, which was executed for three young lives, at the rent of 200 pounds per annum, which was greatly below their value. The defendant also obtained other leases  from the plaintiff. The bill details a great variety of other transactions between the parties, which are omitted as being inapplicable to the case now before this court. The bill was brought for a full settlement of accounts, and that on payment of the balance fairly due to the defendant, the leases he had obtained from the plaintiff might be set aside. \nThe defendant, in his answer, denied the charges of oppressive and inquitous conduct set up in the bill, and insisted that the  lands called Poulagower and Knockavin, having been advertised to be let, he agreed to take them at a valuation, and insisted that he paid a fair rent for them. \nThe cause came on to be heard before the master of the rolls, who directed several issues to try whether the full and fair value of the lands were reserved on the leases granted by the plaintiff to the defendant; and whether either, and which of them were executed, in consideration of any and what loan of money, and from whom. \nThe case was carried before the lord chancellor, who disapproved the issues, and gave his opinion at large on the case. After commenting on the testimony respecting the leases, he says, \"Hastings has distinctly proved, that the loan of money was the inducement to this lease, and if it was, it vitiates the whole transaction.I do not mean advancing money by way of fine or the like; but where it is a distinct loan of money to a distressed man, for which security is to be taken, and he is still to continue a debtor for it. If I were to permit this to be considered as a transaction which ought to stand, I should permit a complete evasion of the statute of usury.\" The chancellor concluded a strong view of  the testimony, showing a loan of money to be the consideration on which the leases were granted, with saying, \"there is no reason to send this case to a jury.\" \"There is sufficient to satisfy the conscience of the court, that these leases ought not to stand.\" \nThe case of Marsh v. Martindale, 1 Bos. and Pul. 153, was a judgment on a bond for 5000 pounds. The consideration on which the bond was given, was a bill drawn by Robert Wood on Martindale, Filet & Co., for 5000 pounds, payable three years after date.The bill was accepted, the interest discounted by Sir Charles Marsh, and the residue of the money paid to  Martindale, for the purpose of enabling him to discharge certain annuities for which he was liable. \nOn a motion for a new trial, lord Alvanley, chief justice, said, \"it was contended that the transaction was to all intents a purchase of an annuity; and this certainly was the strongest ground which the plaintiff could take; for it has been determined in all the cases on the subject, that a purchase of an annuity, however exorbitant the terms may be, can never amount to usury.But if the transaction respecting the annuity be under cover for the advancement of money  by way of loan, it will not exempt the lender from the penalty of the statute, or prevent the securities from being void. Then is this transaction the purchase of an annuity or is it not?\" After restating the transaction, the judge asked \"what is this but forbearing for three years to take the sum of 4250 pounds, for which forbearance, he was to receive interest on 5000 pounds.\" \nThe judge referred to the case in Noy 151, as applicable to this. \"There,\" he said, \" a question having arisen, whether a deed securing a rent charge were void for usury, the court agreed that if the original contract were to have a rent charge, that is not usury, but a good bargain; but if the party had come to borrow the money, and then such a bargain had ensued by security, then that is usury.\" \nDoe, on the demise of Grimes et al., assignees of Hammond (a bankrupt) v. Gooch, was an ejectment. Hammond had taken ground on a building lease at the rent of 108 pounds per annum. He assigned the premises to Roberts for 2300 pounds, a sum considerably above their then value, and at the same time took a lease from Roberts at the increased rent of 395 pounds, containing the same covenants for building as were  in the original lease, together with a stipulation that he should be at liberty, on giving six months notice, to re-purchase the premises at the same price for which he had sold them to Roberts. Hammond completed the houses; and, having become a bankrupt, his assignees brought this action against the tenant of Roberts. The judge left it to the jury to say whether the transaction between Hammond and Roberts was, substantially, a apurchase or a loan; and told them, \"that if they thought it was a loan, the deeds were void, the transacaction being usurious.\" The jury found a verdict for the plaintiff.  On a motion for a new trial, counsel contended that the deeds imported a purchase. That the principal money was altogether gone, unless Hammond chose to redeem; and, though it may be his interest so to do, this will not make it an usurious  transaction. If a person have an annuity secured on a freehold estate, it may be clearly his interest to redeem it; but such a power will not make the bargain usurious. Here Bailey, justice, observed, \"in that case the principal is in hazard from the uncertain duration of life. Here it is in the nature of an annuity for years,  and there is no case in which an annuity for years has been held not to be usurious, where, on calculation, it appeared that more than the principal, together with legal interest, is to be received.\" \nThe new trial was refused. \nIn the case of Low v. Waller, Doug. 735, lord Mansfield told the jury, \"that the statute of usury was made to protect men who act with their eyes open; to protect them against them-selves.\" \"They were to consider whether the transaction was not in truth a loan of money, and the sale of goods a mere contrivance and evasion.\" \nThe jury found the contract to be usurious. On a motion for a new trial, lord Mansfield said, \"the only question in all cases like the present, is, what is the real substance of the transaction, not what is the colour and form.\" \nGibson v. Fristoe, 1 Call 62, was an action of debt brought by Gibson against Fristoe et al., in the district court of Dumfries. Issue was joined on the plea of the statute of usury. Verdict and judgment for the defendant, and appeal to the court of appeals. \nThe case was shortly this, John Fristoe being indebted to John Gibson, by bond, for 45 pounds 11 shillings and 2 pence sterling, on the 17th of December  1787, assigned him bonds of perfectly solvent obligors for 780 pounds currency, at the agreed value of 382 pounds 8 shillings and 2 pence sterling, and gave a new bond with two sureties for a balance of 106 pounds 17 shillings and 2 pence sterling, payable in March following. \nMr Washington, for the appellant, said, \"in all these cases the first inquiry is, if there be a loan. I admit that if a real loan is endeavoured to be covered under any disguise whatever, it is still usury.\" He contended that here was no loan, \"but a purchase of property, for bonds are property.\" \n In giving his opinion, Mr Pendleton, the president of the court of appeals, said, \"an agreement by which a man secures to himself, directly or indirectly, a higher premium than six per cent for the loan of money, or the forbearance of a debt, is usury. If the principal or any considerable part be put in risk, it is not usury; because the excess in the premium is the consideration of that risk.\" But if the bargain proceeds from and is connected with a treaty for the loan or forbearance of money, it is usury; because the vendor is supposed to have submitted to a disadvantageous price under the influence  of that necessity which the statute meant to protect him against.\" \nThe judgment of the circuit court was affirmed. \nClarkson's Administrator v. Garland, and another reported in 1 Leigh, was a bill in chancery, brought by the plaintiff to be relieved against several contracts, bonds and deeds of trust, alleged to be usurious. The bill states numerous usurious and oppressive transactions, which are generally and particularly denied in the answers. Testimony was taken, and the case, so far as it is applicable in principle to that under consideration, is thus stated. \nClarkson, wanting to raise 2235 dollars, applied to Jacobs, and offered him as many slaves as would command that sum. Jacobs advanced him, on the 23d of March 1815, 2335 dollars, and took an absolute bill of sale for sixteen slaves. It was at the same time agreed that the salves should remain in Clarkson's possession on hire for one year, and if at the end of the year, Clarkson shall pay Jacobs 2935 dollars, Jacobs shall, in consideration thereof, resell the slaves to him. The plaintiff charged that his application to Jacobs was to borrow money, and that the substance of the transaction was a loan, reserving a higher  interest than is allowed by law. \nOn the 22d of May, Clarkson again applied to Jacobs, and obtained from him the further sum of 2666 dollars and 26 cents. For this sum he also gave Jacobs a bill of sale for fourteen salves, redeemable by the payment of 3394 dollars, on or before the 23d of March 1816. \nThe plaintiff avers that this also was a loan, and that the pretended sale of slaves was a device to cover the taking of usurious interest. \n Jacobs, in his answer, avers that both contracts were in truth what they purport to be, bona fide agreements to purchase and resell the slaves therein mentioned. \nThe salves not being redeemed, Garland, with full knowledge of the usury, as the bill charges, became jointly interested with Jacobs in both contracts. In August 1816, they procured Clarkson's bond for 7000 dollars, being the aggregate of both debts, with father usury for forbearance. \nThe court declared both contracts to be usurious. \nDouglass v. M'Chesney, 2 Randolph 109, was a bill, to be relieved from two bonds and a deed of trust, given by the plaintiff to the defendant. The bill states that Douglass applied to M'Chesney to borrow 500 dollars; M'Chesney replied that  it was his practice, whenever he lent money, to sell a horse, which Douglass professed his willingness to purchase. Some time afterwards the complainant went by appointment to the house of M'Chesney, who showed him a horse for which he asked 400 dollars. The plaintiff avers that the horse was not worth more than 80 or 100 dollars, but urged by his necessities, and knowing that he could not get the 500 dollars from M'Chesney, without giving his price for the horse, he assented to the proposal, and executed two bonds for the money, which were secured by a deed of trust. When the bonds became due, M'Chesney advertised the property for sale; and this bill was brought to enjoin farther proceedings, and to be relieved. \nThe testimony proved that the horse was not worth more than 100 dollars, and that it was reported to be M'Chesney's practice when he lent money, to sell a hose at an exorbitant price to cover an usurious gain. \nThe chancellor dissolved the injunction, and the plaintiff appealed. \nThe court of appeals was of opinion that a tacit understanding between the parties, founded on a known practice of the appellee to lend money at legal interest, if the borrower purchased   of him a horse at an unreasonable price, would be a shift to evade the statute of usury. \nThe decree was reversed; but the court being of opinion that the questions of fact would be decided more understandingly by a jury on viva voce testimony, temanded the cause  to the court of chancery, with directions to have issues tried to ascertain the value of the horse, and whether Douglass was induced to purchase him at the price of 400 dollars by the expectation of a loan. \nThe covenants in the deed of the 11th of June 1814, granting the annuity, have been stated. they secure the payment of ten per cent for ever on the sum advanced. There is no hazard whatever in the contract. Moore must, in something more than twenty years, receive the money which he advanced to Scholfield, with the legal interest on it, unless the principal sum should be returned after five years; in which event, he would receive the principal with ten per cent interest till repaid. The deed is equivalent to a bond for 5000 dollars, amply secured by a mortgage on real property, with interest thereon at ten per centum per annum, with liberty to repay the principal in five years. If the real contract was for  a loan of money, without any view to a purchase, it is plainly within the statute of usury; and this fact was very properly left to the jury. There is no error in this instruction. \nThe counsel for the defendant then prayed the court to instruct the jury, that if they shall believe from the evidence aforesaid, that the land out of which the said rent charge mentioned in said deed from Scholfield to Moore was to issue, was in itself, and independently of the buildings upon the same, wholly inadequate and insufficient security for said rent; that then the jury canot legally infer, from the clause in said deed, containing a covenant on the part of said Scholfield to keep the said houses insured, any thing affecting said contract with usuy or illegality; which instruction the court refused: whereupon the defendant prayed the court to instruct the jury as follows, to wit, that if the jury shall believe, from the evidence, that the fair and customary price of annuities and rent charges, at the date of the said deed from Scholfield, was in the market of Alexandria ten years' purchase, and so continued for a period of years; then, from the circumstances of the rent being ten per centum on  the amount advanced, the jury cannot legally infer from such circumstance, any thing usurious or illegal in the contract. \nBut the court refused to grant the said instructions, or either of them, as prayed by the counsel for the defendant; whereupon,  the said counsel excepted to the said opinion of the court, and its refusal to give either of the said instructions as prayed. \nIt is obvious that the instructions given by the court, at the prayer of the plaintiff's counsel, cover the whole matter contained in this prayer of the defendant. It is, in truth, an effort to separate the circumstances of the case from each other, and to induce the court, after directing the jury that they ought to be considered together, to instruct them that, separately, no one of them amounted in itself to usury. The court ought not to have given this instruction. It was proper to submit the case, with all its circumstances, to the consideration of the jury; and to leave the question whether the contract was, in truth, a loan, or the bona fide purchase of an annuity, to them. \nThere is no error in the opinion of the court refusing the second and fourth instructions prayed by the defendant and  avowant in the court below, nor in giving the instructions prayed by the plaintiff in replevin; but this court is of opinion, that the circuit court erred in deciding that Jonathan Scholfield was a combetent witness for the plaintiff in that court. This court doth, therefore, determine, that the judgment of the circuit court be reversed and annulled, and that the cause be remanded to that court with directions to set aside the verdict, and award a venire facias de novo. \nThis cause came on to be heard on the transcript of the record from the circuit court of the United States for the District of Columbia, holden in and for the county of Washington, and was argued by counsel; on consideration whereof, it is ordered and adjudged by this court, that the judgment of the said circuit court in this cause be, and the same is hereby reversed and annulled, and that this cause be and the same is hereby remanded to the said circuit court with directions to set aside the verdict and award a venire facias de novo. \n \n\n ", " \nOpinion \n\n \n \n  Mr Chief Justice MARSHALL delivered the opinion of the Court. \nThis case is in many respects similar to that which has been decided at this term, between the same parties. 1 The appellee  filed his petition before the district court of East Florida, asserting a title to twenty-six thousand acres of land, granted by Don Jose Coppinger,  governor of that territory, while under the dominion of his catholic majesty. \nThe petition presented by Clarke to the Spanish governor, asks, in consideration of services and as a remuneration for losses sustained, all which he states, twenty-six thousand acres of land in the following places: twenty-two thereof, in the Hammocks of Cuscoville and Chachala; and the four remaining at a vacant place called Yallahassa, on the west of the river St John. \nOn the 17th of December 1817, the governor passed a decree granting in absolute property to the said Don George Clarke the twenty-six thousand acres of land in the places he solicits in his petition; and a complete title was made in December 1817, to twenty-two thousand lying in the Hammocks, known by the names of Cuscoville and Chachala. The petition filed in the district court states, that twenty thousand acres, part of this tract, have been surveyed at the place designated, and sold to John De Centralgo. \nThe other four thousand acres were surveyed in conformity with the decree,  and a complete title made by governor Coppinger on the 4th of May 1818. \nThe court decreed the claim to be valid; and reciting that twenty thousand acres, part of the twenty-two thousand, had been on the same day confirmed to Moses E. Levy, on his petition for the same; proceeded to decree the remaining four thousand acres to the petitioner. \nThe United States appealed from this decree. \nThe only question not already decided, which is made in this case, arises from the fact, that the full title for the four thousand acres of land in controversy, was made after the 24th of January 1818. The petitioner therefore cannot avail himself of that grant, and must rest his claim on the concession made the 17th of December 1817. That concession is unconditional; but the counsel for the United States contends that it can give no valid title. The argument is understood to have been applied to concessions made absolutely, as well as to those made on condition; and the court will therefore consider it as applicable  to both. A concession on condition, becomes absolute when the condition is performed. \nThe validity of concessions is, we think expressly recognized both in the treaty,  and in the several acts of congress. \nThe eighth article allows the owners of lands the same time for fulfilling the conditions of their grants, from the date of the treaty, as is allowed in the grant from the date of the instrument; and the act of the 8th of May 1822, requires every person claiming title to lands under any patent, grant, concession, or order of surlvey, dated previous to the 24th day of January 1818, to file his claim before the commissioners appointed in pursuance of that act. All the subsequent acts on the subject observe the same language; and the titles held under these concessions have been uniformly confirmed, where the tract did not exceed a league square. The question is not now open for discussion. The decree is confirmed. \nThis cause came on to be heard on the transcript of the record from the superior court for the eastern district of Flordia, and was argued by counsel; on consideration whereof, it is ordered, adjudged and decreed by this court, that the decree of the said superior court in this cause confirming the title of the claimant be, and the same is hereby affirmed in all respects. \n \n\n ", " \nOpinion \n\n \n \n  Mr Chief Justice MARSHALL delivered the opinion of the Court. \nOn the 15th of September 1817, Antonio Huertas, an inhabitant of East Florida, petitioned the governor of that province for fifteen thousand acres of land; on which the following decree was made. \n\"In attention to what this petitioner represents, and whereas   the services he mentions are well known, I grant to him, in the name of his majesty, and of his royal justice, which I administer, the fifteen thousand acres of land which he solicits, in order that he may possess and enjoy them in absolute ownership; and in testimony, &c.\" \nThe land solicited is described in the petition as lying on a stream running west of St John's river, and emptying itself into it at the distance of about twelve miles south of the Lake George, and the survey to begin at about four or five miles west of the river St John, so that the said stream will divide the tract into two parts. \nIn December 1820, an order was obtained for surveying the land in four tracts; one of two thousand five hundred acres, another of one thousand five hundred, a third of six hundred, and the fourth of ten thousand four hundred acres. These surveys were executed in April 1821, and full titles granted in the same month. \nThese several tracts adjoin each other, and appear to lie on the stream required in the petition, and directed by the decree. But the certificate of the surveyor omits to state that the land lies four or five miles west of the river St John. \nThe order of survey, and  the full title granted for the land surveyed, could convey nothing not comprehended in the decree of the 15th of September 1817. That decree was for fifteen thousand acres of land lying in the place described in the petition. \nThe district court decided that the claim was valid, and confirmed it to the claimant \"to the extent, and agreeable to the boundaries, as in the grants for the said land, and the plats for the four surveys thereof made, by Don Andrew Burgevin, and dated the 5th day of April 1821, and filed herein, as set forth.\" \nThis court concurs with the district court, so far as respects the validity of the claim, but disapproves of that part of it which confirms the title to the lands described in the surveys made in April 1821. Those surveys do not appear to this court to conform to the concession made in 1817, under which alone the petitioner can claim. The decree of the district court is affirmed, so far as it declares the claim of the petitioner to be valid; and is reversed, so far as it confirms his title to the  lands described in the several plats of surveys referred to in the decree. And the cause is remanded to the district court, with directions  to cause a survey to be made of the lands contained in the said concession, according to the terms thereof, and to decree the same to the claimant, so far as he has retained his title thereto. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. delivered  the opinion of the court to the following effect: \nIt is admitted by the counsel in this case, that a bond cannot be delivered to the obligee as an escrow. But it is contended that where there are several obligees constituting a copartnership, it may be delivered as an escrow to one of the firm. The court, however, is of opinion that a delivery to one is a delivery to all. It can never be necessary to the validity of a bond that all the obligees should be convened together at the delivery. \nUpon the other point the counsel for the plaintiff in error has insisted that the plea is sufficient. \nBut the court thinks it so radically defective as to be bad even upon general demurrer. \nThere is no allegation of fraud, and the circumstances pleaded do not, in themselves, amount to fraud. \nFraud consists in intention, and that intention is a fact which ought to have been averred, for it is the gist of the plea, and would have been traversable. \nUpon what was the plaintiff below to take issue? Upon all the circumstances stated in the plea which are mere inducement, or upon the conclusion that \"the bond is void?\" If he had traversed the inducement, the issue would have been immaterial:   if he had traversed the conclusion, it would have been putting in issue to the jury matter of law. \nJudgment affirmed with costs. \nC. Lee suggested that there was also an exception to the refusal of the court to allow an amended plea to be filed, after the court had adjudged the pleas bad. \nBut the Chief Justice said that the court had, in an early part of this term, 2 decided that such refusal was no error for which the judgment could be reversed. \n \n\n ", " \nOpinion \n\n \n \n  Feb. 22. MARSHALL, Chief Justice, delivered the opinion of the Court. \nIn this case a single point is presented to the court. The plaintiff in error was a refiner of sugar, in the city of Philadelphia, and had a large quantity of refined sugars in his refinery, on the 1st of July, 1802. \nIn April, 1802, Congress passed an act to repeal the internal taxes. The first section of the repealing law enacts \"that from and after the 30th day of June next, the internal duties,\" &c. \nTo recover the duty on sugars refined before the 30th of June, and sent out afterwards, this action was brought. The single question is, Whether the duty had then  accrued, and was on that day outstanding? This is admitted on both sides; and the repealing law is to be construed, as if it had passed on the 30th of June, to take effect immediately, and the proviso had been expressed in words of the present tense, thus, \"provided, that for the recovery and receipt of such duties as have now accrued, and now remain outstanding, the provisions of the aforesaid act shall remain in full force and virtue.\" \nHad the duty accrued, and was it outstanding in contemplation of the legislature, on sugars refined, but not sent out of the building in which the operation was performed? \nThe solution of this question depends on the construction of the act by which the duty was imposed. \nThis act passed in June 1794, and is entitled \"an act laying certain duties on snuff and refined sugars.\" The first section imposes a duty on snuff, which shall be manufactured after the 30th of September then next ensuing, and the second section is in these words, \"And be it further enacted, that from and after the said 30th day of September next, there be levied, collected  and paid upon all sugar which shall be refined within the United States, a duty of two cents  per pound. \nThe fourth section of the act contains provisions respecting the duty on snuff, and the fifth section, after making several regulations requiring the refiner of sugars to report the building and utensils to be employed in the manufacture,  and to give bond with condition that he shall keep books in which he shall enter daily the sugars refined, as well as those sent out, proceeds to enact, \"that he shall on the 1st day of January, April, July, and October, in each year, render a just and true account of all the refined sugar, which he or she shall have sent out, or caused, or procured to be sent out, from the first time of his or her entry and report aforesaid, until the day which shall first ensue, of the days above mentioned, for the rendering of such account, and thenceforth successively, from the time when such account ought to have been, and up to which it shall have been last rendered, until the day next thereafter, of the days above mentioned, for the rendering of such account, producing and showing therewith the original book or paper, whereon the entries, from day to day, to be made as aforesaid, have been made: and he or she shall, at the time of rendering  cach account, pay or secure the duties, which by this act ought to be paid upon the refined sugar in the said account mentioned.\" \nOther sections of this act have been relied on by the counsel on both sides, and the phraseology of the law, in other acts said to be in pari materia has been brought into view. They have not been unnoticed by the court in forming the opinion now to be delivered; but as the case depends principally on the just construction of the sections which have been quoted, those sections only are stated for the present. \nThat a law is the best expositor of itself, that every part of an act is to be taken into view, for the purpose of discovering the mind of the legislature; and that the details of one part may contain regulations restricting the extent of general expressions used in another part of the same act, are among those plain rules laid down by common sense for the exposition of statutes  which have been uniformly acknowledged. If by the application of these rules it shall appear, that the duty on refined sugars did \"accrue, and was outstanding\" before the article was sent out of the building, then the refiner is unquestionably liable to pay  it, notwithstanding the repeal of the law by which it was imposed. \nTo support the proposition, that the duty did accrue, the words of the second section of the act for imposing it, have been relied on. These words are, \"that from and after the 30th day of September next, there be levied, collected and paid upon all sugar which shall be refined within the United states, a duty of two cents per pound.\" These words, it is said, contain an express charge upon all the sugars to be refined within the United States. \nIt is admitted by the counsel for the plaintiff in error, that such would be the operation of the section if unexplained, and not restrained by other parts of the law. \nIn order to determine the influence which other sections must necessarily have on this, it is proper to ascertain with precision the import of the words which have been stated. \n\"There shall be levied, collected and paid,\" &c. Each of these words implies a charge upon the article, and if either of them had been used singly, no doubt could have been entertained that the article would have been burthened with the tax. They present to the mind distinct ideas, and when used together seem to designate distinct  actions required by the law. \nIt would not, perhaps, be assuming more than is warranted to say, that either of them exclusively imports the creation and imposition of the duty. The word levy is selected for this purpose; and yet, in the succeeding section, the term is again used with a reference to that now under consideration, and very plainly designates the duty of the officer, not the operation of the act. The words of the third section are, \"that the duties aforesaid shall be levied, collected and accounted for by the same officers,\" &c. The meaning  of the term in this section is by no means equivocal, and there does not appear sufficient ground for saying, that it was used by the legislature in the preceding section in a different sense. Unquestionably the requisition that a duty shall be levied, collected or paid, implies the existence of that duty: it seems to be as clearly implied by the one term as by the other. But, however, this may be, they act on the same subject and at the same time. The object of each verb is precisely the same. \"There shall be levied\" -- on what? On \"all sugars to be refined within the United States.\" There shall be \"collected and  paid\" -- from and on what? \"all sugars to be refined within the United States.\" It has then been very correctly said, that these words, though not synonimous , are certainly as they stand in the sentence, co-extensive in their operation. They reach and embrace the same article at the same time. If then the other parts of the act demonstrate, that the words collected and paid, have not for their object all sugars to be refined, this section is necessarily restrained in its operation by those which follow and designate more particularly what is in the first instance expressed in general terms. \nThat such is the real effect of the law is acknowledged. It is admitted by the counsel for the defendant in error, that the duties are not to be collected and paid on all sugars to be refined, but on all sugars to be refined and sent out of the building. It follows then, that the general terms of the second section were intended by the legislature to be understood, in like manner, as if their intent had been expressly qualified, by adding the words \"according to the regulations herein after prescribed;\" or other words of similar import. \nBut admitting this view of the case to be correct,  the great difficulty remains to be solved. It is contended by the defendant in error, that the fifth section neither imposes a duty, nor restrains to a more limited object the duty which was before imposed, and that its only effect is to prescribe the time of payment -- that the duty on the article, taking the two sections together, constitutes a present debt to be paid in future. \nOn the other hand the plaintiff in error insists that  the general terms of the second section, are defined and restricted by the fifth, as well with respect to the object of the tax, as to the time of its collection and payment. \nThe court has felt great difficulty on this point. It is one on which the most correct minds may form opposite opinions, without exciting surprise. After the most attentive examination of the laws and the arguments of counsel, a judgment has at length been formed,  differing from that rendered in the circuit court. \nThe object of the act imposing the duty being revenue, and not to discourage manufactures, it is reasonable to suppose that the attention of the legislature would be devoted to the article in that state in which it was designed to be productive  of revenue. There could be no motive for imposing a duty never to be collected, or for imposing it on the article in that condition, in which it might remain forever, without yielding a cent to the treasury. The duty not being progressive, but complete in the instant of its commencement, being one entire thing, no purpose was to be effected by charging it on an object, from which it was not afterwards to be drawn. \nIf therefore, we find the whole attention of the legislature directed to the article in one state, if we find it productive only in one state, there is no reason for supposing, unless the words require that construction, that the duty was imposed upon it in a different state. \nAll those provisions of the act, which are calculated to bring the money arising from this tax, into the treasury, or to create any liability in the person who is to pay it, apply exclusively to sugars sent out of the building. \nOf those sugars only is an account to be rendered; on those only are the duties to be paid or secured. It can scarcely be imagined that the legislature, if imposing a duty on all sugars refined, should entirely neglect to take any means whatever, to secure the collection  of that duty, and should postpone those means until a subsequent event should happen, which might never occur. \n It is argued by the counsel for the defendant in error, that the happening of this event was certain, and that it was unnecessary for the legislature to perform any act which might occasion it, because the interest of the refiner, was a sure pledge for his sending out the sugars he had refined. \nThis is true, but the argument is not less strong when urged to prove, that the legislature might rely on this interest to produce the state of things, which would create the charge. If this interest was relied upon, for the fact on which a duty should become payable, it might well be relied upon to produce the fact on which the article should be chargeable with the duty; and it is unquestionably in the common course of legislative proceedings on the subject of revenue, to obtain security for the payment of duties, at the first convenient time after they shall have accrued. \nIf, as is contended for the defendant in error, the act of refining the sugar, creates a debt to be paid when sent out of the building, then the refiner becomes immediately the debtor of the government,  and his situation by sending out the sugar, is changed in no other respect whatever, than that the debt before created does by that fact become payable. The position to be proved is that A, the refiner of sugars, becomes the debtor of the United States, to the full amount of the sugars refined, which debt does not accrue but only becomes payable on the fact of their being sent out of the building. \nLet this proposition be examined. \nIf A becomes the debtor by the mere act of refining, then he remains the debtor until he shall be legally discharged. Suppose him to part with his manufactory and his capital stock, there being at the time of transfer a quantity of refined sugars in the building, which pass with it to the purchaser. If, by the act of refining, A became the debtor of the government, which debt became payable whenever the sugars should be sent out of the building, then A would remain the debtor-notwithstanding his sale, and would be liable for  those duties, if the purchaser should send them out without rendering any account of them, or securing their payment. \nYet this construction would be admitted to conflict with the obvious meaning of the law. Not only  the person who sends out the sugars, is to account and pay for them, but if he fails to do so, the consequences of his failure fall entirely on himself. The sugar is forfeited, and if lost to the purchaser, his recourse could only be against the person from whom he purchased. \nBut let it be supposed, that A sends out his sugars and parts with his building, before the day on which the account is to be rendered, and the duties paid or secured. Who then would be the debtor of the government? Who in that case would be liable for the duties that had thus accrued? It is believed that only one answer could be given to this question. The person who sent out the sugars, would unquestionably be liable for the duties on them, and if they should be seized for the non-payment of them, the purchaser would have recourse to him for compensation. \nIf these positions be correct, it would seem to be a plain and necessary deduction from them, that the fact of sending out the sugars, not the fact of refining them, created the debt, and that the person sending them out became the debtor. \nIt has been argued that the provision of the 5th section, which requires a daily entry to be made on the books,  of the quantity of sugars refined, evidences an intention in the legislature, to impose a tax on the article immediately. But this argument did not appear to be much relied on, and it is too apparent that the regulations of the 5th section were designed to furnish the means of detecting any fraud which might be attempted, in the account of sugars sent out of the building, to require that the court should employ any time in demonstrating the correctness of that construction. \nThe argument drawn from the 3d section, which uses the expression \"the duties aforesaid,\" does not  appear to operate more in favour of the construction contended for by the counsel for the defendant in error. The section is employed not in designating the tax to be collected, but the person to collect it, and the words have the same import, as if instead of \"the duties aforesaid,\" the language had been changed and the words, \"the duties imposed by this act\" had been used. \nThe sections respecting drawbacks have been relied on by both plaintiff and defendant, as completely supporting his own construction of the act, but the court can perceive nothing in those sections in any degree affecting the case. \n It has been stated by both parties, that all the revenue acts of the United States, may be considered as in pari materia , as forming one connected system, and therefore to be compared  together, when any one of them is to be construed. \nIn pursuance of this doctrine they have been resorted to by the defendant in error, to show that the terms used in the 2d section of the act under consideration are such as in all those acts import the imposition of a duty. \nThis is not questioned. It is not denied that a tax is imposed, nor would this have been denied if two of the three words used in the act had been omitted. It is the general phraseology of laws enacted for the purpose of raising money, but to reason by way of analogy, from the acts quoted to that under consideration, it would be necessary to show, that these general terms had been construed to be more extensive than the particular regulations, which follow for the purpose of carrying them into execution. It is not recollected that this has been attempted. \nIt has been argued that the duty on spirits of the home manufactory, is laid on their distillation, not on their removal, and that the legislature must therefore  be presumed also, to have imposed the duty on sugars, on the act of refining them, and not on the act of removal. \n But the force of this argument is not admitted. Those political motives which induce the legislature to select objects of revenue and to tax them under particular circumstances, are not for judicial consideration.Where the legislature distinguishes between different objects, and in imposing a duty on them evidences a will to charge them in different situations, it is not for the courts to beat down these distinctions on the allegation that they are capriciously made, and therefore to be disregarded. It is the duty of the court to discover the intention of the legislature, and to respect that intention. Where the provisions of two acts are so unlike each other, that the comparison exhibits only a contrast, instead of saying that their opposing regulations were designed to be similar, it would seem much more reasonable to say that the one act exhibits a legislative mind materially variant in the particulars where the difference exists from what is exhibited by the other. \nEvery regulation of the act imposing a duty on spirits distilled within the United States,  respects exclusively the time of distillation, and they are all essentially variant from the regulations of the act imposing a duty on snuff and refined sugars. \nThe duty on spirits is to be paid or secured previous to their removal. That on sugars is not to be paid or secured until after their removal. \nThe credit for the duties on distilled spirits is allowed from the date of a bond, to be quarter annually given for all the spirits distilled whether removed or not, so that the credit is as near as possible from the date of distillation. \nThe credit for the duties on refined sugars is allowed from the date of a bond quarter annually given for all the sugars removed from the building, so that the credit is as near as possible from the date of the removal. \nSpirits having a duty imposed on them at the time of distillation are liable to seizure and confiscation if removed without paying or securing the duty. \n Sugars not being liable for the duty till removed are not seizable nor confiscable unless the refiner, after removal, shall have failed to pay or secure the duties which became payable at a given day after their removal. \nWith respect to country stills, the tax  is laid on the capacity of the still, and is to be paid without regard to the quantity distilled, but if this tax should become oppressive it may be discharged by paying the duty on the quantity actually distilled. In this case no respect whatever is paid to the removal of the spirits. Their distillation alone attracts the attention of the legislature. \nWith respect to all refined sugars no duty can ever be demanded, unless the demand be predicated on the fact of removal. \nSpirits being chargeable with the duty when distilled cannot be removed without a permit. \nSugars being only chargeable when sent out may be removed at the will of the refiner. \nIt is going very far indeed to argue a sameness of intention from these dissimilar regulations. The court thinks it much more correct to say that the intention of the legislature with respect to these different objects was entirely different, and that in the case of spirits the duty was imposed on the distillation, while in the case of sugars the duty was imposed on the removal. \nIt is not improbable that the difference in the progress made in the two pursuits, and the greater degree of forbearance required by the one than by the  other; or that the difference in the facility with which frauds might be practised in the two cases, might occasion this apparent difference in the time of imposing the duty on the article. But this, it is repeated, is a legislative not a judicial inquiry and, if the difference exists, it must be respected, whatever may be the motives which produced it. \nSome arguments have been drawn from the repealing law which have too much weight to be unnoticed. \n It has been said that the provisions intended as a guard, to prevent frauds in the collection of duties on sugars sent out of the building, are dispensed with so far as respects sugars refined before the 30th of June, but sent out after that day, and from thence it is argued that the legislature could not have supposed sugars under such circumstances to be liable to a duty. The weight of this argument if supported by the fact, is so apparent that the counsel for the defendant in error, controverts the fact itself, and not the inference drawn from that fact, if it be correctly stated. \nIt is and must be admitted, that the first part of the first section of the repealing law does away any forfeiture which was to be produced  by the future operation of the act repealed. If therefore such forfeiture is retained, it must be by virtue of the saving in the subsequent part of the section. That saving clause is in these words, \"Provided, &c.\" It is contended that the forfeiture of sugars sent out after the 30th of June 1802, and refined before that period, is preserved by this proviso. \nBut this construction is deemed totally and clearly inadmissible. The forfeiture of the thing is not the recovery and receipt of a duty, but a punishment for the non-payment of it, and is never to be protected by a proviso extending only to remedies given for the recovery of the duty itself. To render this point still more clear, the proviso in express terms comprises  fines, penalties and forfeitures incurred before the 30th of June. It is impossible to suppose they would not have deemed it equally necessary, to provide expressly for the preservation of those which might afterwards be incurred, if it was contemplated that the state of things introduced by the act admitted of such subsequent forfeitures. \nThe force of this argument therefore remains undiminished. \nIt has very properly been observed at the bar,  that it was most apparently the object of the legislature through their whole system of imposts, duties and excises  to tax expense and not industry, and that, in the particular case of the duty now in question, this intent is manifested with peculiar plainness. The refiner of sugars never hazards the payment of the duty himself, because he is never to pay it until they are presumed to be sold, by being sent out of the building in which they have been refined. In most other cases it has been deemed sufficient to secure this object by a credit, which will allow time for the sale of the article, after which the duty must be paid whether the article be sold or not. But in the case of refined sugars, the refiner never can be liable for the duty, but on a fact which is considered, and properly considered, as evidencing a sale, after which a credit for the collection of the duty is still allowed him. With respect to the refiner of sugars, then, it must, on an inspection of the act, emphatically be said, that the legislature designed him to collect the duty from the consumer, but never to pay it from the manufacture; that the tax should infaillibly be imposed on expense, and  never on labour . If this proposition be true it furnishes an additional argument in favour of that construction which is believed to be correct. \nIf the duty is payable on sugars refined before the 30th of June 1802, whenever they may be sent out, that duty will fall on the refiner himself, because sugars refined before the 30th of June, must come into the market at the same price with those refined afterwards and cannot sell, in consideration of the duty with which they are burthened, at a higher price than sugars admitted not to be chargeable with that duty. So far as this effect would be produced by the repealing law, it would occasion an oppression which the enacting law has manifested a particular solicitude to avoid. \nThis effect, it is said, is produced in the case of those distilled spirits which are subjected to a duty on the quantity distilled or removed, and therefore the refiner of sugars ought to be considered as receiving the same measure. \nBut it has already been shown that a difference is made in the first creation of the tax between the distiller and the refiner; and the same difference may be perceived throughout. But if they were viewed with  precisely  the same degree of favor, yet there is a difference between relinquishing a right which was complete, when the law under which it accrued ceased to operate, and one depending on a fact afterwards to happen. \nThe argument which controverts the proposition, that the legislature designed in no instance to subject the refiner of sugars to the tax on the article till a sale should take place, is founded on the circumstance, that the refiner may be himself a retailer, and may remove his sugars from the building to his retail store, and thus become liable for the tax before the sale. \nBut the fallacy of this argument is immediately detected. A person acting in two distinct characters must in many respects be considered as two distinct persons. The refiner who is in a different place the retailer of sugars, must be considered as selling them from the manufactory, when he sends them out of it to his retail store. The law contemplates the fact exactly in the same manner, and must give to it the same effect as if they had been sent to the retail store of a different person and considers them as sold. \nIt has also been contended, that the proviso in the act would be unnecessary, and absolutely  inoperative, unless it be construed to apply to the duties on the sugars remaining in the building on the 30th of June. Those duties which were bonded, cannot, it said, be the object of the proviso, because they, in contemplation of law, are not outstanding: they are paid by the bond given by the debtor, and there remains only the duty on sugars not sent out, which is outstanding, and is to be preserved by this part of the act. \nIt requires but a very slight attention to the subject, to perceive that this argument is not entitled to the weight which has been attributed to it. \nThe act imposing the duty, does in terms speak of its being bonded in contradistinction to its being paid. The duty is either to be paid, or secured by bond. To say then, that a duty secured by bond was not outstanding in contemplation of the legislature, but was paid, would be violate the very words of the act. \n In addition to this circumstance, it ought to be observed, that the repeal takes effect at the close of the 30th of June, and the law has no existence on the 1st of July. Yet the duties on sugars sent out during the last quarter are to be secured or paid on the 1st of July. All admit  that there was no disposition to relinquish these duties. Of consequence, if the proviso could be necesary in any possible construction of the law, it was necessary in this case. \nAfter the most attentive consideration of the acts of Congress and the arguments of counsel, the court is of opinion, that the duties on refined sugars remaining in the building on the 1st of July, 1802, had not then accrued and were not then outstanding. The judgment of the circuit court, which was in favour of the plaintiff below, must therefore be reversed, and judgment rendered for the plaintiff in error. \n \n\n ", " \nOpinion \n\n \n \n   MARSHALL, Ch. J. delivered the opinion of the court. \nThis being a suit in chancery, brought by legatees claiming an account, in order to the payment of their legacies, and their bill having been dismissed without an account, the decree can only be supported, by showing that there are, in the hands of the administrator, no assets which ought to be applied to the purposes prayed in the bill. \nThe testator having bequeathed to each of his two sisters, Sarah and Abigail, who are the complainants, the interest on one thousand pounds sterling, and that being in arrears; and assets having come to the hands of his representative, the complainants are certainly entitled to an account, unless they have forfeited all pretensions to their legacies. \n The defendants say they have forfeited their rights, \n1st. By a letter, selecting a particular debt in satisfaction of their legacy, which debt is lost. \n2d. By their laches. \nThe better to understand the correspondence, which is relied upon, it must be recollected, that, by the will, the whole estate, real and personal, of the testator, was devised to executors and trustees, who were directed to place it out on public or private security,  in such manner as should, in their judgment, best promote the interests of the legatees. The testator then directs, among other bequests, that his trustees shall set apart one thousand pounds sterling, for each of his sisters, the interest of which shall be paid to them during their natural lives, after which, the principal is to be divided between the children of each, if they should marry and have children, but is given to his nephew, Enoch Silsby, in the event of the first legatees' dying unmarried, or without children. \nThis duty of the executor and trustee, being thus plainly marked, he addressed a letter to the legatees, in September, 1791, in which he mentions an offer which had been made him, of a mortgage of 2,000l. the amount of the sums to be set apart for them, which he will take, if it meets their approbation. If the plaintiffs had taken this mortgage, and the title had proved defective, or the mortgaged property had been destroyed, they would, most probably, have forfeited all claims upon the estate of their testator, and would have been, at least, censured by the legatee in remainder, for having destroyed,  by an improvident intervention in the management  of the estate, his right to the principal sum, on their dying unmarried. Such an interference, on their part, was unnecessary, because the executor was authorised, by the will, to place the estate either on private or public security, as he should think most advantageous, and would have been particularly indiscreet, because they could neither judge of the validity of the title, nor of the value of the premises proposed to be mortgaged. To have intermeddled  with the subject would, therefore, have been in them a departure from propriety and common prudence, not to be accounted for, nor justified. \nUnder these circumstances, they say, \"You mention an old friend of our dear brother's wishing to hire the 2,000l. on mortgage. We would willingly oblige him, but cannot. We choose to let it remain just as our brother left it.\" \nTo the court it seems, that this letter will admit of but one construction. It is a plain declaration, that they do not mean to intermeddle with the duties of the executor, but to leave him to perform them according to the directions of his testator. \"We choose to let it,\" (the legacy of 2,000l.) \"remain just as our brother left it,\" is plainly saying,  that the legacy must remain on the foundation on which the will placed it. The construction which would convert these words into a declaration, that they chose the debts of their testator not to be collected, and that they chose to take upon themselves the hazard of the solvency of any particular debtor, whose debt should remain outstanding, or of the executor, if he should happen to collect it, is really too violent a distortion of them to be tolerated for an instant. \nAs little foundation is there for the allegation, that the rights of the complainants have been forfeited by their laches. The court can perceive no laches on their part. It was not particularly incumbent on them to incur the expense of inquiring into the manner in which the executor performed his trust, with respect to the estate at large. They received their interest regularly, and there was no circumstance to awaken a suspicion that they were in danger. On the residuary legatee, and on his father and natural guardian, it was more particularly incumbent to examine into the conduct of the executor, and though he may be perfectly excusable for not having done so, he cannot throw the loss on others, whose conduct  has been perfectly faultless. \n The court is, therefore, clearly and unanimously of opinion, that the complainants have not forfeited their rights; and, consequently, that the decree must be reversed, and an account directed. \nIn considering the principles on which the account is to be taken, the court think it perfectly clear, that the specific pecuniary legacies must be set apart, before the defendant, Enoch Silsby, can be entitled to the residuum. The words annexed to the bequest of the residuary estate, which subject it to the same conditions with the bequest of the 1,500l. are understood, by the court, to relate to the condition of payment, at the age of 21, and to the limitations over, in case of the death of the residuary legatee, not to the question of abatement; and a residuum, ex vi termini, is that which remains after particular legacies are satisfied. \nThe court is also of opinion, that if there be not sufficient assets to satisfy all the specific legacies, the loss must fall exclusively on the 1,500l. given to Enoch Silsby, until that fund be exhausted. \nIt has been argued, that the words of the will limit this charge on that legacy to the contingency of an  insufficiency of assets at the death of the testator. The words are, \"It is my will and desire, that if the personal estate, and the produce arising from the real estate of which I shall die seised and possessed, shall not be sufficient to answer the several annuities and legacies herein before by me bequeathed, then, and in such case, I direct that the annuities and legacies shall not abate in proportion, but that the whole of such deficiency, if any there be, shall be deducted out of the said sum of 1,500l. herein before by me bequeathed to my said nephew, Enoch Silsby.\" \nThese words have undergone a very critical examination, and it has been contended, that the time at which the sufficiency mentioned in the will is to be determined, is fixed by the testator at his death, in like manner as if the expression had been, \"if my estate shall not, at the time of my death, be insufficient,\" &c. But the words do not appear to the court to demand such an interpretation. The words, \"the personal and real estate of  which I shall die seised and possessed,\" are no more in substance than the words \"all my real and personal estate\" would have been. They describe the subject, on  the insufficiency of which an abatement of a particular legacy is to take place, but not the time when that insufficiency is to be tested. In the opinion of the court, that time is when the will is carried into execution, by the application of the funds to their object. If, when that application is made, a deficiency appears, \"then, and in that case\" it is, that the abatement is to take place in the specific legacy to Enoch Silsby. \nThis specific pecuniary legacy, being given to the same person to whom the residuum is given, and on the same terms, assumes completely the character of a residuary bequest, and the testator does not appear to have intended to give it any preference over the residuum. He seems to have intended certain provisions to his opinion of their extent of which were apportioned to his opinion of their necessities, and which he did not leave in a situation to be enlarged or diminished by any incident which might affect the state of his affairs. Should his property be merely sufficient to pay those annuities and legacies, they were to sustain no deduction; should it be ever so much enlarged, they were to receive no increase; but all he might possess, exceeding those  specific donations, was to be given to his nephew. His bounty to his other legatees was measured; that to his nephew was not defined. As in every case where specific legacies are first given, so in this, it is the intent of the testator to prefer the specific legatees. There would have been no motive for giving a specific legacy, subject exclusively to abatement in case of deficiency, to the residuary legatee, but for the purpose of providing a fund for his  education and maintenance during his infancy. For every other purpose, this particular legacy to Enoch Silsby is to be considered as a part of the residuum. \nIt is not easy to assign a motive in the testator for intending a preference to his specific, over his residuary legatee, in the event of an insufficiency of assets at his death, which would not equally apply to an insufficiency which should take place afterwards. The only motive for this preference which could possibly have existed,  was his wish that, if the fund should not be adequate to pay all his legacies, yet, no deduction should be made from those which were particularly bequeathed. This wish originated in his particular feelings towards  his relations, and could not depend on the insufficiency which he provided against taking place at the time of his death, or a few months or years afterwards. If, at the time of his death, his estate had been sufficient, but before it could be collected and applied according to his will, bankruptcies, or any other casualties, had occasioned a deficiency, no reason can be perceived, by the court, for supposing that the contemplation of such a deficiency would have induced him to make a different arrangement of his affairs, from what he would have made had he contemplated a deficiency at his death. And between such a deficiency, and one occasioned by the fault or misfortune of an executor, chosen, not by his legatees, but by himself, the court can perceive no distinction. \nIt is, therefore, the opinion of this court, that the decree of the circuit court be reversed, and that the cause be remanded to the circuit court, that an account may be taken, in order to a final decree. \nReversed. \nDECREE. \nThis cause came on to be heard, on the bill, answers, exhibits, and other testimony in the cause, and was argued by counsel; on consideration whereof, the court is of opinion, that there is  error in the decree of the circuit court, in directing the bill of the complainants to be dismissed, and that the same ought to be reversed and annulled. And this court doth farther direct and order, that the said cause be remanded to the circuit court, that accounts may be taken of the assets which are in the hands of the defendant, Thomas Young, of the payments which have been made to Enoch Silsby, and of the sums which are due to the complainants, and of such other matters as may be necessary to a final decree. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Chief Justice MARSHALL delivered the opinion of the Court. \nIt was obviously the intention of the testator, that the Association should take in its character as an Assocation; and should, in that character, perform the trust created by the will. The members composing it must be perpetually changing; but, however they might change, it is \"The Baptist Assocation that  for ordinary meets at Philadelphia annually,\" which is to take and manage the \"perpetual fund\" intended to be created by this will. This Association is described  with sufficient accuracy to be clearly understood; but, not being incorporated, is incapable of taking this trust as a society. Can the bequest be taken by the individuals who composed the Association at the death of the testator? \nThe Court is decidedly of opinion that it cannot. No private advantage is intended for them. Nothing was intended to pass to them but the trust; and that they are not authorized to execute as individuals. It is the Association for ever, not the individuals, who, at the time of his death, might compose the Association, and their representatives, who are to manage this \"perpetual fund.\" \nAt the death of the testator, then, there were no persons in existence who were capable of taking this bequest. Does the subsequent incorporation of the Association give it this capacity? \nThe rules of law compel the Court to answer this question in the negative. The bequest was intended for a society which was not at the time, and might never be, capable of taking it. According to law, it is gone for ever. The legacy is void; and the property vest, if not otherwise disposed of by the will, in the next of kin. A body corporate afterwards created, had it even fitted  the description of the will, cannot devest this interest, and claim it for their corporation. \nThere being no persons who can claim the right to execute this trust, are there any who, upon the  general principles of equity, can entitle themselves to its benefits? Are there any to whom this legacy, were it not a charity, could be decreed? \nThis question will not admit of discussion. Those for whose ultimate benefit the legacy was intended, are to be designated and selected by the trustees. It could not be intended for the education of all the youths of the Baptist denomination who were designed for the ministry; nor for those who were the descendents of his father, unless, in the opinion of the trustees, they should appear promising. These trustees being incapable of executing this trust, or even of taking it on themselves, the selection can never be made, nor the persons designated who might take beneficially. \nThough this question be answered in the negative, we must still inquire, whether the character of this legacy, as a charity, will entitle it to the protection of this Court? \nThat such a legacy would be sustained in England, is admitted. But, it is contended for  the executors, that it would be sustained in virtue of the statute of the 43d of Elizabeth, or of the prerogative of the crown, or of both; and not in virtue of those rules by which a Court of Equity, exercising its ordinary powers, is governed. Should these propositions be true, it is farther contended, that the statute of Elizabeth does not extend to the case, and that the equitable jurisdiction of the Courts of the Union does not extend to cases not within the ordinary powers of a Court of Equity. \n On the part of the plaintiffs, it is contended, that the peculair law of charities, does not originate in the statute of Elizabeth. Had lands been conveyed in trust, previous to the statute, for such purposes as are expressed in this will, the devise, it is said, would have been good at law; and, of consequence, a Court of Chancery would have enforced the trust in virtue of its general powers. In support of this proposition, it has been said, that the statute of Elizabeth does not even profess to give any validity to devises or legacies, of any description, not before good, but only furnishes a new and more convenient mode for discovering and enforcing them; and that the  royal prerogative applies to those cases only where the objects of the trust are entirely indefinite; as a bequest generally to charity, or to the poor. \nIt is certainly true, that the statute does not, in terms, profess to give validity to bequests acknowledged not before to have been valid. It is also true, that it seems to proceed on the idea that the trusts it is intended to enforce, ought, in conscience, independent of the statute, to be carried into execution. It is, however, not to be denied, that if, at the time, no remedy existed in any of the cases described, the statute gives one. A brief analysis of the act will support this proposition. \nIt authorizes the Chancellor to appoint commissioners to inquire of all gifts, &c. recited in  the act, of the abuses, &c. of such gifts, &c.; and upon such inquiry to make such order as that the articles given, &c. may be duly and faithfully employed, to and for the charitable uses and intents, before rehearsed  respectively, for which they were given, &c. The statute then proceeds, \"which orders, judgments, and decrees, not being contrary or repugnant to the orders, statutes, or decrees, of the donors, or founders,  shall, by the authority of this present parliament, stand firm and good according to the tenor and purport thereof, and shall be executed accordingly, until the same shall be undone or altered by the Lord Chancellor of England,\" &c. \nSubsequent sections of the act direct these decrees, &c. to be certified to the Chancellor, who is to take such order for their execution as to him shall seem proper; and, also, give to any person aggrieved the right to apply to Chancery for redress. \nIt is not to be denied, that if any gifts are enumerated in this statute, which were not previously valid, or for which no previous remedy existed, the statute makes them valid, and furnishes a remedy. \nThat there were such gifts, and that the statute has given them validity, has been repeatedly determined. The books are full of cases, where conveyances to charitable uses, which were void by the statute of mortmain, or were, in other respects, so defective, that, on general principles, nothing passed, have been sustained under this statute. If this statute restores to its original capacity, a conveyance rendered void by an act of the legislature, it will, of course, operate with equal effect on any legal  objection to the gift which originates in any other manner, and which a statute can remove. \nThe authorities to this point are numerous. In the case of the Attorney General, on behalf of St. John's  College in Cambridge v. Platt, 62 the name of the corporate body was not fully expressed. This case was referred by the Chancellor to the judges, who certified, that though, according to the general principles of law, the devise was void; yet it was good under the statute of Elizabeth. This case is also reported in Cases in Chancery, 267. where it is said, the judges certified the devise to be void at law, but the Chancellor decreed it good under the statute. \nSo, in Chancery Cases, 134. it was decided, that a bequest to the parish of Great Creaton was good under the statute. Though this case was not fully nor clearly reported, enough appears to show that this bequest was sustained only under the statute of Elizabeth. The objections to it were, that it was void on general principles, the parish not being incorporated; and that it would not be decreed under the statute, the proceedings not being before commissioners, but by original bill. The Master  of the Rolls ordered precedents to be produced; and, on finding one in which four judges had certified that a party might, under the statute, proceed in chancery by original bill, he directed the legacy to be paid. Could this bequest have been sustained on doctrines applicable to charities independent of the statute, no question could have arisen concerning the rights to proceed by original bill. \nIn Collison's case, 63 the will made John Bruet and others, \"feoffees of a home, to keep it in reparation, and to bestow the rest of the profits on reparation of  certain highways.\" On a reference by the Chancellor, the judges declared, that \"this case was within the relief of the 43d of Elizabeth; for, though the devise were utterly void, yet it was within the words limited and appointed for charitable uses.\" \nIn these cases, it is expressly decided, that the bequests are void, independent of the statute, and good under it. It furnishes no inconsiderable additional argument, that many of the gifts recited in the 43 Eliz., would not, in themselves, be considered as charitable; yet they are all governed by the same rule. No dictum has been found indicating  an opinion that the statute has no other effect than to enable the Chancellor to inquire, by commission, into cases before cognizable in his Court by original bill. It may, then, with confidence be stated, that whatever doubts may exist in other points which have been made in the cause, there is none in this: The statute of the 43d of Eliz. certainly gave validity to some devises to charitable uses, which were not valid, independent of that statute. Whether this legacy be of that description, is a question of more difficulty. \nThe objection is, that the trust is void; and the description of the cestui que trust so vague, that no person can be found whose interest can be sustained. \nThe counsel for the plaintiff insists, that cases equally vague have been sustained in Courts of common law, before the statute; and would, a fortiori, have been sustained in Courts of equity. He relies on Porter's case, 64 and on Plowden, 522. \nPorter's case is this: Nicholas Gibson, in the 32d Hen. VIII.,  devised a wharf and house to his wife, upon condition that she should, on advice of learned counsel, in all convenient speed after his decease, assure, give,  and grant the said lands and tenements, for the maintenance, for ever, of a free school the testator had erected, and of alms men and alms women attached to it. The wife entered into the property, and, instead of performing the condition, conveyed it, in the 3d of Edw. VI., by a lease for forty years. Afterwards, in the 34th of Eliz., the heir at law entered for a condition broken, and conveyed to the queen. On the validity of this entry and conveyance the cause depended. \nOn the part of Porter, who claimed under the lease, it was contended, that the use was against the act of the 22d of Hen. VIII. c. 10. and, therefore, void, on which the estate of the wife became absolute. \nOn the part of the queen, it was argued, 1st. That the statute of Hen. VIII. avoided superstitious, and not charitable uses. But if it extended to this, still, that it made the use, and not the conveyance, void. The devisee, there being no consideration, would stand seized to the use of the heir. 2d. That in case the devise is to the wife, on condition that she would, by the advice of learned counsel, assure  his lands for the maintenance of the said free-school, and alms men and alms women;  this might be done lawfully, by procuring the king's letters patent incorporating them, and, afterwards, a letter of license to assure the lands to them. \nUpon these reasons the Court was of opinion, that  the condition was broken, and that the entry of the heir was lawful. \nIn this case no question arose concerning the possibility of enforcing the execution of the trust. It was not forbidden by law; and, therefore, the trustee might execute it. On failing so to do, the condition on which the estate was given was broken, and the heir might enter; but it is not suggested that the cestui que trust had any remedy. An estate may be granted on any condition which is not against law, as that the grantee shall go to Rome; and for breach of that condition, the heir may enter, but there are no means of compelling the journey to Rome. In the argument of Porter's case, the only mode suggested for assuring to the school the benefit intended, is by an act of incorporation, and a letter of license. \nIn considering this case, it seems impossible to resist the conviction, that Chancery could, then, afford no remedy to the cestui que trust. It is not probable that those claiming the beneficial  interest would have waited, without an effort, from the 32d of Hen. VIII. when the testator died, or, at any rate from the 3d of Edw. VI., when the condition was conclusively broken by the execution of the lease, until the 34th of Eliz., and then have restorted to the circuitous mode of making an arrangement with the heir at law, and procuring a conveyance from him to the queen, on whose will the charity would still depend, if a plain and certain remedy had existed, by a derect application to the Chancellor. \nIf, as there is much reason to believe from this, and from many other cases of the same character  which were decided at law anterior to the statute of Eliz., the remedy in Chancery was not then afforded, it would go far in deciding the present question; it would give much countenance to the opinion, that the original interference of Chancery in charities, where the cestui que trust had not a vested equitable interest which might be asserted in a Court of Equity, was founded on that statute, and still depends on it. \nThese cases, and the idea they suggest, that at the time Chancery afforded no remedy for the aggrieved, account for the passage of the statute of the 43d  of Elizabeth, and for its language, more satisfactorily than any other cause which can be assigned. \nIf, as has been contended, charitable trusts, however vague, could then, as how, have been enforced in Chancery, why pass an act to enable the Chancellor to appoint commissioners to inquire concerning them, and to make orders for their due execution, which orders were to be revised, established, altered, or set aside, by him? If the Chancellor could accomplish this, and was in the practice of accomplishing it in virtue of the acknowledged powers and duties of his office, to what purpose pass the act? Those who might suppose themselves interested in these donations, would be the persons to bring the case before the commissioners; and the same persons would have brought it before the Chancellor, had the law afforded them the means of doing so. The idea, that the commissioners were substituted for the Court as the means of obtaining intelligence not otherwise attainable, or of removing inconveniences in prosecuting claims by original bill which had been found so  great as to obstruct the course of justice, is not warranted by the language of the act, and is disproved by the  efforts which were soon made, and which soon prevailed, to proceed by way of original. \nThe statute recites, that whereas lands, money, &c. had been heretofore given, &c. some for the relief of aged, impotent, and poor people, &c. which lands, &c. \"nevertheless, have not been employed according to the charitable intent of the givers and founders thereof, by reason of\" -- what? of the difficulty of discovering that such trusts had been created? or of the expensiveness and inconvenience of the existing remedy? No. \"By reason of frauds, breaches of trust, and negligence in those that should pay, deliver, and employ the same.\" That is by reason of fraud, breach of trust, and negligence of the trustees. The statute then proceeds to give a remedy for these frauds, breaches of trust, and negligences. Their existence was known when the act passed, and was the motive for passing it. No negligence or fraud is charged on the Court, its officers, or the objects of the charity; only on the trustees. Had there been an existing remedy for their frauds and negligences, they could not, when known, have escaped that remedy. \nThere seem to have been two motives, and they were adequate motives,  for enacting this statute: The first, and greatest, was to give a direct remedy to the party aggrieved, who, where the trust was vague, had no certain and safe remedy for the injury sustained; who might have been completely defeated by any compromise between the heir of the feoffor  and the trustee; and who had no means of compelling the heir to perform the trust, should be enter for the condition broken. The second, to remove the doubts which existed, whether these charitable donations were included within the previous prohibitory statutes. \nWe have no trace, in any book, of an attempt in the Court of Chancery, at any time anterior to the statute, to enforce one of these vague bequests to charitable uses. If we have no reports of the decisions in Chancery at that early period, we have reports of decisions at common law, which notice points referred by the Chancellor to the judges. Immediately after the passage of the statute. Immediately questions, on the validity of wills containing charitable bequests, were propounded to, and decided by, the law judges. Collison's case was decided in the 15th of James I., only seventeen years after the passage of the act, and the  devise was declared to be void at law, but good under the statute. Two years prior to this, Griffith Flood's case, reported in Hobart, was propounded by the Court of Wards to the judges; and, in that case too, it was decided, that the will was void at law, but good under the statute. Had the Court of Chancery taken cognizance before the statute, of devises and  bequests to charitable uses, which were void at law, similar questions must have arisen, and would have been referred to the Courts of law, whose decisions on them would be found in the old reporters. Had it been settled before the statute, that such devises were good, because the use was charitable, these questions could not have arisen  afterwards; or, had they arisen, would have been differently treated. \nAlthough the earliest decisions we have, trace the peculiar law of charities to the statute of Elizabeth, and although nothing is to be found in our books to justify the opinion, that Courts of Chancery, in the exercise of their ordinary jurisdiction, sustained, anterior to that statute, bequests for charitable uses, which would have been void on principles applicable to other trusts, there are some  modern dicta in cases respecting prerogative, and where the proceedings are on the part of the king, acting as parens patiae, which have been much relied on at the bar, and ought not to be overlooked by the Court. \nIn 2 Peere Will. 119. the Chancellor says, \"In like manner, in the case of charity, the king, pro bono publico, has an original right to superintend the care thereof; so that, abstracted from the statute of Elizabeth relating to charitable uses, and antecedent to it, as well as since, it has been every day's practice to file informations in chancery, in the Attorney General's name, for the establishment of charities.\" \n\"This original right\" of the crown, \"to superintend the care\" of charities, is no more than that right of visitation, which is an acknowledged branch of the prerogative, and is certainly not given by statute. The practice of filing an information in the name of the Attorney General, if, indeed, such a practice existed in those early times, might very well grow out of this prerogative, and would by no means prove, that, prior to the statute, the law respecting charities was what it has been since. These  words were uttered for the purpose of illustrating  the original power of the crown over the persons and estates of infants, not with a view to any legal distinction between a legacy to charitable and other objects. \nLord Keeper Henly, in 1 Sir Wm. Blackstone's Reports, 91., says, \"I take the uniform rule of this Court before, at, and after the statute of Elizabeth, to have been, that where the uses are charitable, and the person has in himself full power to convey, the Court will aid a defective conveyance to such uses. Thus, the devises to corporations were void under the statute of Hen. VIII.; yet they were always considered as good in equity, if given to charitable uses.\" \nWe think we cannot be mistaken when we say, that no case was decided between the statute of mortmain, passed in the reign of Hen. VIII., and the statute of Elizabeth, in which a devise to a corporation was held good. Such a decision would have overturned principles uniformly acknowledged in that Court. The cases of devises, in mortmain, which have been held good, were decided since the statute of Elizabeth, on the principle, that the latter statute repeals the former so far as relates to charities. The statute of Geo. II. has been uniformly construed to repeal,  in part, the statute of Elizabeth, and charitable devises comprehended in that act have, ever since its passage, been declared void. On the same reason, similar devises must, subsequent to the statute of Henry VIII. and anterior to that of Elizabeth, have been also declared void. It is remarkable  that, in this very case, the Lord Keeper declares one of the charities to be void, because it is contrary to the statute of mortmain, passed in the reign of Geo. II. All the respect we entertain for the Reporter of this case, cannot prevent the opinion, that the words of the Lord Keeper have been inaccurately reported. If not, they were inconsiderately uttered. \nThe principles decided in this case are worthy of attention: \"Two questions,\" says the report, \"arose, 1st. Whether this was a conveyance to charitable uses under the statute of Elizabeth, and therefore, to be aided by this court. 2d. Whether it fell within the purview of the statute of mortmain, 9th of Geo. II. and was therefore a void disposition.\" \nIt is not even suggested that the defect of the conveyance could be remedied otherwise than by the statute of Elizabeth. The Lord Keeper says, \"the conveyance of the  22d of June, 1721, is admitted to be defective, the use being limited to certain officers of the corporation, and not to the corporate body; and therefore there is a want of persons to take in perpetual succession.\" (The very defect in the conveyance under the consideration of this court.) \"The only doubt,\" continues the Lord Keeper, \"is, whether the Court should supply this defect, for the benefit of the charity, under the statute of Elizabeth.\" \nIt is impossible, we think, to understand this declaration, otherwise than as an express admission, that a conveyance to officers, who compose the corporate body, instead of the corporate body itself, or in other words, a conveyance to any persons not incorporated  to take in succession, although for charitable purposes, would be void if not supported by the statute of Elizabeth. \nAfter declaring the conveyance to be good, the Lord Keeper proceeds: \"The conveyance, therefore, being established under the statute of Elizabeth, we are next to consider how it is affected under the statute of the 9th of Geo. II.\" \nThe whole opinion of the Judge, in this case, turns upon the statute of Elizabeth. He expressly declares the conveyance  to be sustained by that statute, and in terms admits it to be defective without its aid. The dictum, therefore, that before that statute, courts were in the habit of aiding defective conveyances to charitable uses, either contradicts his whole opinion on the point before him, or is misreported. The probability is, that the Judge applied this dictum to cases which occurred, not to cases which were decided before the statute. This application of it would be supported by the authorities, and would accord with his whole opinion in the case. \nIn the case of the Attorney General v. Bowyer, 65 the Chancellor, speaking of a case which occurred before the passage of the statute of wills, says, \"It does not appear that this  Court, at that period, had cognizance upon information for the establishment of charities. Prior to the time of Lord Ellesmere, as far as tradition in times immediately following goes, there were no such informations as this on which I am now sitting, but they made out the case as well as they could by law.\" \n Without attempting to reconcile these seemingly contradictory dicta, the court will proceed to inquire whether charities,  where no legal interest is vested, and which are too vague to be claimed by those for whom the beneficial interest was intended, could be established by a court of equity, either exercising its ordinary jurisdiction, or enforcing the prerogative of the King as parens patriae, before the 43d of Elizabeth. \nThe general principle, that a vague legacy, the object of which is indefinite, cannot be established in a court of equity, is admitted. It follows, that he who contends that charities formed originally an exception to the rule, must prove the proposition. There being no reported cases on the point anterior to the statute; recourse is had to elementary writers, or to the opinions given by judges of modern times. \nNo elementary writers sustain this exception as a part of the law of England. It may be considered as a part of the civil code, on which our proceedings in chancery are said to be founded; but that code is not otherwise a part of the law of England than as it has been adopted and incorporated by a long course of decisions. The whole doctrine of the civil law, respecting charties, has certainly not been adopted. For example: by the civil law, a legacy to a charity, if  there be a deficiency of assets, does not abate; by the English law, it does abate. It is not, therefore, enough to show that, by the civil law, this legacy would be valid. It is necessary to go farther, and to show, that this principle of the civil law has been engrafted  into the jurisprudence of England, and been transplanted into the United States. \nIn White v. White, 66 the testator had given a legacy to the Lying-in Hospital which his executor should appoint, and afterwards struck out the name of the executor. The legacy was established, and it was referred to a Master to say to which Lying-in Hospital it should be paid. In giving this opinion, Lord Thurlow said, \"the cases have proceeded upon notions adopted from the Roman and civil law, which are very favourable to charties, that legacies given to public uses not ascertained, shall be applied to some proper object.\" \nThese expressions apply, perhaps exclusively, to that class of cases in which legacies given to one charity have, since the statute of Elizabeth, been applied to another; or, in which legacies given so vaguely as that the object cannot be precisely defined have been applied  by the crown, or by the Court, acting in behalf of the crown, to some charitable object of the same kind. White v. White was itself a case of that description; and the words \"legacies given to public uses not ascertained,\" \"applied to some proper object,\" seem to justify this construction. If this be correct, the sentiment advanced by Lord Thurlow, would amount to nothing more than that the cases in which this extended construction was given to the statute of Elizabeth proceed upon notions adopted from the Roman and civil law. \nBut if Lord Thurlow used this language under the  impression that the whole doctrine of the English Chancery, relative to charities, was derived from the civil law, it will not be denied that his opinions, even when not on the very point decided, are entitled to great respect. Something like the same idea escaped Lord Eldon in the case of Moggridge v. Thackwell. 67 Yet upon other occasions, different opinions have been advanced, with an explicitness which supports the idea, that the Court of Chancery in England does not understand these dicta as they have been understood by the counsel for the plaintiff. In the case of Morrice v. The Bishop of  Durham, 68 where the devise was to the Bishop, in trust, to dispose of the residue \"to such objects of benevolence and liberality as he, in his own discretion, should most approve,\" the bequest was determined to be void, and the legacy decreed to the next of kin. The Master of the Rolls said, \"In this court, the signification of charity is derived principally from the statute of Elizabeth. Those purposes are considered charitable, which that statute enumerates, or which, by analogies, are deemed within its spirit and intendment.\" This case afterwards came before the Chancellor, who affirmed the decree, and said, \"I say with the Master of the Rolls, a case has not yet been decided, in which the court has executed a charitable purpose, unless the will contains a description of that which the law acknowledges to be a charitable purpose, or devotes the property to purposes of charity in general.\" 69 \nThe reference made by the Chancellor to the words of the Master of the Rolls, whose language he adopts, proves that he  uses the term \"law\" as synonymous with \"the statute of Elizabeth.\" \nAfterwards, in the same case, speaking  of a devise to charity generally, the Chancellor says, \"it is the duty of the trustees, or of the crown, to apply the money to charity, in the sense which the determinations have affixed to the word in this Court: viz. either such charitable purposes as are expressed in the statute, or to purposes analogous to those.\" \nHe adds, \"charitable purposes, as used in this Court, have been ascribed to many acts described in that statute, and analogous to those, not because they can with propriety be called charitable, but as that denomination is, by the statute, given to all the purposes described.\" \nIt has been also said that a devise to a charity generally is good, because the statute of Elizabeth uses that term. \nThese quotations show that Lord Eldon, whatever may have been the inclination of his mind when he determined the case of Moggridge v. Thackwell, was, on more mature consideration, decidedly of opinion, that the doctrines of the Court of Chancery, peculiar to charities, originated not in the civil law, but in the statute of Elizabeth. This opinion is entitled to the more respect, because it was given  after an idea, which might be supposed to conflict with it, had been  insinuated by Lord Thurlow, and in some degree followed by himself; it was given in a case which required an investigation of the question; it was given, too, without any allusion to the dicta uttered by Lord Thurlow and himself; a circumstance which would  scarcely have occurred, had he understood those dicta as advancing opinions he was then denying. It is the more to be respected, because it is sustained by all the decisions which took place, and all the opinions expressed by the judges soon after the passing of the statute of Elizabeth. In 1 Ch. Cas. 134. a devise to the Parish of Great Creaton, the Parish not being a corporation, was held to be void independent of the statute, but good under it. So, in the same book, p. 267. on a devise to a corporation which was misnamed, the Lord Keeper decreed the charity under the statute, though before the statute no such devise could have been sustained. The same point is decreed in the same book, p. 195. and in many other of the early cases. These decisions are totally incompatible with the idea that the principles on which they turned were derived from the civil law. \nThere can be no doubt that the power of the crown to superintend  and enforce charities existed in very early times; and there is much difficulty in marking the extent of this branch of the royal prerogative before the statute. That it is a branch of the prerogative, and not a part of the ordinary power of the Chancellor, is sufficiently certain. Blackstone, in v. 3. p. 47. closes a long enumeration of the extraordinary powers of the Chancellor, with saying, \"He is the general guardian of all infants, idiots, lunaties; and has the general superintendance of all charitable uses in the kingdom; and all this over and above the vast and extensive jurisdiction which he exercises in his judicial capacity in the Court of Chancery.\" In the same volume, p. 487. he says, \"the king, as parens  patrioe, has the general superintendance of all charities, which he exercises by the keeper of his conscience, the Chancellor; and, therefore, whenever it is necessary, the attorney general, at the relation of some informant, files, ex officio, an information in the Court of Chancery, to have the charity properly established.\" \nThe author of \"A Treatise of Equity\" says, \"so, anciently in this realm, there were several things that belonged to the king as parens  patriae, and fell under the care and direction of this Court: as, charities, infants, idiots, lunatics, &c.\" Cooper, in his chapter on the jurisdiction of the Court, says, \"the jurisdiction, however, in the three cases of infants, idiots or lunatics, and charities, does not belong to the Court of Chancery as a court of equity, but as administering the prerogative and duties of the crown.\" 70 \nIt would be waste of time to multiply authorities to this point, because the principle is familiar to the profession. It is impossible to look into the subject, without perceiving and admitting it. Its extent may be less obvious. \nWe now find this prerogative employed in enforcing donations to charitable uses, which would not be valid if made to other uses; in applying them to different objects than those designated by the donor; and in supplying all defects in the instrument by which the donation is conveyed, or in that by which it is administered. \nIt is not to be admitted that legacies not valid in themselves, can be made so by force of prerogative,  in violation of private rights. This superintending power of the crown, therefore, over charities,  must be confined to those which are valid in law. If, before the statute of Elizabeth, legacies like that under consideration would have been established, on information filed in the name of the Attorney General, it would furnish a strong argument for the opinion, that some principle was recognised prior to that statute, which gave validity to such legacies. \nBut although we find dicta of Judges, asserting, that it was usual before the statute of Elizabeth, to establish charities, by means of an information filed by the Attorney General; we find no dictum, that charities could be established on such information, where the conveyance was defective, or the donation was so vaguely expressed, that the donee, if not a charity, would be incapable of taking; and the thing given would vest in the heir or next of kin. All the cases which have been cited, where charities have been established, under the statute, that were deemed invalid independent of it, contradict this position. \nIn construing that statute, in a preceding part of this opinion, it was shown, that its enactments are sufficient to establish charities not previously valid. It affords, then, a broad foundation for the superstructure  which has been erected on it. And, although many of the cases go, perhaps, too far; yet, on a review of the authorities, we think they are to be considered as constructions of the statute not entirely to be justified, rather than as proving the existence of some other principle concealed in a dark and remote  antiquity, and giving a rule in cases of charity which forms an exception to the general principles of our law. \nBut even if in England the power of the king as parens patriae would, independent of the statute, extend to a cases of this description, the inquiry would still remain how far this principle would govern in the courts of the United States. Into this inquiry, however, it is unnecessary to enter, because it can arise only where the Attorney-General is made a party. \nThe Court has taken, perhaps, a more extensive view of this subject, than the particular case, and the question propounded on it, might be thought to require. Those who are to take this legacy beneficially, are not before the Court, unless they are represented by the surviving members of the Baptist Association, or by the present corporation. It was, perhaps, sufficient to show, that they are not  represented by either. This being the case, it may be impossible that a party plaintiff can be made to sue the executor, otherwise than on the information of the Attorney General. No person exists who can assert any interest in himself. The cestui que trust can be brought  into being only by the selection of those who are named in the will to take the legacy in trust, and those who are so named, are incapable of taking it. It is, perhaps, decisive of the question propounded to this Court to say, that the plaintiffs cannot take. But the rights of those who claim the beneficial interest, have been argued at great length, and with great ability; and there would have  been some difficulty in explaining satisfactorily, the reasons why the plaintiffs cannot take, without discussing also, the rights of those for whom they claim. The Court has, therefore, indicated its opinion on the whole case, as argued and understood at the bar. \nCERTIFICATE. This cause came on to be heard on the transcript of the record of the Court of the United States, for the Fifth Circuit, and the District of Virginia, and on the question therein stated, on which the Judges of that Court  were divided in opinion, and which was adjourned to this Court, and was argued by counsel: On consideration whereof, this Court is of opinion, that the plaintiffs are incapable of taking the legacy for which this suit was instituted; which opinion is ordered to be certified to the said Circuit Court. 71 \nAPPENDIX. \nNOTE I. \nON CHARITABLE BEQUESTS. \nVERY few cases upon the subject of charitable donations have originated in the United States; in some of which, however, it is highly probable the English doctrines on this subject may be of limited, and, perhaps, even of general application. Where this is not the case, they may gratify professional curiosity, and afford materials for illustration in analogous branches of the law, as there is hardly any portion of the science, in which more ingenious reasoning and indefatigable diligence have been employed. The object of the following sketch is to give a connected view of some of the principal features of the system. \nIt is highly probable, that the rudiments of the law of charities were derived from the civil law. One of the earliest fruits of the emperor Constantine's real or pretended  zeal for christianity, was a permission to his subjects to bequeath their property to the church. 1 This permission was soon abused to so great a degree, as to induce Valentinian to enact a mortmain law, by which it was restrained. 2 But this restraint was gradually relaxed, and in the time of Justinian it became fixed, as a maxim of Roman jurisprudence, that legacies to pious uses, which included all legacies destined for works of charity, whether they related to spiritual or temporal concerns, were of peculiar favour, and to be deemed privileged testaments. 3 The construction of testaments of this nature was most liberal; and the legacies were never permitted to be lost, either by the uncertainty or failure of the persons or objects for which they were destined. Hence, if a legacy was given to the church, or to the poor, generally, without any description of what church or what poor, the law sustained it, by giving it in the first case to the parish church of the place where the testator lived; and in the latter case, to the hospital of the same place; and, if there was none, then to the poor of the same parish. 4 And in all cases where the objects were indefinite, the legacy  was carried into effect, under the direction of the judge having cognizance of the subject. 5 So, if a legacy were given for a definite object, which either was previously accomplished, or which failed, it was, nevertheless, valid, and applied under judicial direction to some other object. 6 \nThe high authority of the Roman law, coinciding with the religious notions of the times, could hardly fail to introduce the principles of pious legacies into the common law of England; and the zeal and learning of the ecclesiastical tribunals must have been constantly exercised to enlarge their operation. Lord Thurlow 7 was clearly of opinion, that the doctrine of charities grew up from the civil law; and Lord Eldon, 8 in as senting to that opinion, has judiciously remarked, that, as at an early period  the Ordinary had power to apply a portion of every man's personal estate to charity, when afterwards the statute compelled a distribution, it is not impossible that the same favour should have been extended to charity in wills, which, by their own force, purported to authorize such a distribution. Be the origin, however, what it may, it cannot be denied, that many of the privileges attached to pious legacies have been for ages incorporated into the English law. Indeed, in former times, the construction of charitable bequests was pushed to a most alarming extravagance; and though it has been, in a great measure, checked in later and more enlightened times, there are still some anomalies in the law of this subject, which are hardly reconcilable with any sound principles of judicial interpretation, or the proper exercise of judicial authority. \nThe history of the law of charitable bequests, previous to the statute of the 43 Elizabeth, c. 4. which is emphatically called the statute of Charitable Uses, is extremely obscure. 9 Few traces remain of the exercise  of jurisdiction over charities in any shape, by any Courts, previous to that period. Of the jurisdiction of Chancery, nothing is ascertained with precision; and the few cases to be found at law, turned mainly upon the question, whether the uses were charitable, or whether they were superstitious, within the statutes against superstitious uses. One of the earliest cases is Porter's Case, 10 already alluded to in the decision of the Supreme Court in the text; 11 but there the parties made out their case at law upon general principles, without reference to any peculiar rules of construction as to charities; and Lord Eldon seems to think, that this was the usual course, prior to the time of Lord Ellesmere. 12 \nThe statute of Elizabeth is now considered as the principal source of the law of charities, and has given rise to various questions. It is  to this statute that the very extensive jurisdiction at present exercised by the Court of Chancery over subjects of this nature is generally, if not exclusively, to be referred. \nThe statute, in its preamble, 13 enumerates certain uses which it deems charitable. These are gifts, devises, &c. for the relief of aged, impotent, and poor people; for maintenance of sick and maimed soldiers and mariners; for schools of learning, free schools, and scholars of universities; for repairs of bridges, ports, havens, causeways, churches, sea banks, and highways; for education and preferment of orphans; for, or towards the relief, stock, or maintenance for houses of correction; for marriages of poor maids; for supportation, aid, and help, of young tradesmen, handicraftsmen, and persons decayed; for relief or redemption of prisoners or captives; and for aid, or ease of any poor inhabitants, concerning payments of fifteenths, setting out of soldiers, and other taxes. These are all the classes of uses, which the statute reaches. \nSince the passage of the statute, it has become a general rule, that no uses are  to be considered as charitable, and entitled as such to the protection of the law, except such as fall within the words, or obvious intent of the statute. Sir William Grant has observed, that the word \"charity,\" in its widest extent, denotes all good affections men ought to bear towards each other; in its most restricted and common sense, relief of the poor. In neither of these senses is it employed in the Court of Chancery. There its signification is chiefly derived from the statute of Elizabeth. 14 And, therefore, where a testatrix bequeathed her personal estate to the Bishop of Durham, &c. upon trust, to pay her debts and legacies, &c. and to dispose of the ultimate residue to such objects of benevolence and liberality, as the Bishop of Durham, in his own discretion, shall most approve of; and she appointed the Bishop her sole executor: upon a bill brought by the next of kin to establish the will, and all the legacies except the residuary bequest, and to declare that void, and a resulting trust for the next of kin, it was held, first, by the Master of the Rolls, and afterwards on appeal by the Lord Chancellor, that the residuary bequest was void, and that the property was a  resulting trust for the next of kin, upon the ground that objects of benevolence and liberality were not necessarily such as were within the statute of Elizabeth, and, therefore, were objects too indefinite to be executed by the Court; and if so, then the trust was void; for there can be no valid trust over which the Court of Chancery will not assume a control. The Master of the Rolls said, those purposes are considered as charitable which the statute enumerates, or which by analogies are deemed within its spirit or intendment; and to some such purpose every bequest to charity generally shall be applied. But it is clear, that liberality and benevolence can find numberless objects not included in the statute in the largest construction of it. The use of the word \"charitable\" seems to have been purposely avoided in this will. The question is not, whether the Bishop may not apply the residue upon purposes strictly charitable, but whether he is bound so to apply it. 15 \nThe statute appoints a mode of inquiring into, and enforcing all charitable uses, bequests, &c. by a commission  issuing out of Chancery; and the commissioners upon such inquiry are authorized to set down such orders, judgments, and decrees, as that the lands, &c. may be faithfully employed for the charitable uses to which they were appointed; which orders, judgments, and decrees, are to stand good until undone and altered by the Court of Chancery, upon due complaint of the party grieved. The statute, then, after enumerating certain exceptions to its operation, gives authority to the Court of Chancery to take order for the due execution of the orders, judgments, and decrees of the Commissioners returned into Chancery, and upon any complaint in the premises, and the hearing thereof, to \"annul, diminish, alter, or enlarge the said orders, judgments, and decrees, &c. as shall be thought to stand with equity and good conscience, &c.\" \nShortly after the statute passed, it became a question, whether the Court of Chancery could grant relief by original bill in cases within the statute, or whether the remedy was confined to the process by commission. That doubt remained until the reign of Charles II., when the question was finally settled in favour of the jurisdiction by original bill. 16 It is not  quite certain upon what grounds the Court arrived at this conclusion. The probability is, that in cases of charitable uses of a definite nature, where the trustees were alive, and the objects were certain, the Court exercised a general jurisdiction by original bill, upon the same grounds as other bills; for definite trusts are maintained upon its ordinary jurisdiction. And as the Court might upon all commissions alter, amend, and enlarge the decrees of the Commissioners in all cases of charities within the statute, whether definite or indefinite, the proceeding in both cases became mixed in practice, and was inveterately established before its correctness was very extensively questioned. And it was in reality more convenient for all parties, that the Court should do that in the first instance, which it certainly could do after the return of the commission upon complaint, so that public convenience and private interest might produce a general acquiescence in a course which settled the law of the case without any circuity, until it became too late successfully to combat its regularity. 17 \n Be this as it may, it is very certain, that Chancery will now relieve by original bill, or information upon gifts, bequests, &c. within the statute of Elizabeth; and informations by the Attorney General to settle, establish, or direct charitable donations, are very common in practice. 18 But where the gift is not a charity within the statute, no information lies in the name of the Attorney General to enforce it. 19 And if an information be brought in the name of the Attorney General, and it appears to be such a charity as the Court ought to support, though the information be mistaken in the title or prayer of relief, yet the bill will not be dismissed, but the Court will support and establish the charity in such manner as by law it may. 20 But the jurisdiction of Chancery over charities does not exist where there are local visiters appointed; for it then belongs to them and their heirs to visit and control the charity. 21 \n As to what charities are within the statute, they are enumerated with great particularity in Duke on Charitable Uses, and Comyn's Digest, tit. Charitable Uses, (N. 1.) It is clear, that no superstitious uses are within its purview, such as gifts of money for the finding or maintenance of a stipendiary priest, or for the maintenance of an anniversary or obiit, or of any light or lamp in any church or chapel, or for prayers for the dead, or to such purposes as the superior of a convent or her successor may judge expedient. 22 But there are certain uses, which, though not within the letter, are yet deemed charitable within the equity of the statute; such as money given to maintain a preaching minister; to maintain a schoolmaster in a parish; for the setting up a hospital for the relief of poor people; for the building of a sessions house for a city or county; the making a new or repairing an old pulpit in a church, or the buying of a pulpit cushion or pulpit cloth; or the setting up of new bells, where none are, or amending of them, where they are out of order. 23 \n And charities are so highly favoured in the law that they have always been more liberally construed, than the law will allow in gifts to individuals. In the first place the same words in a will, applied to individuals, may require a very different construction, when applied to the case of a charity. If a testator give his property to such person as he shall hereafter name to be his executor, and afterwards appoint no executor; or if, having appointed an executor, the latter dies in the life time of the testator, and no other person is appointed in his stead, in either of these cases, as to individuals, the testator must be held intestate, and his next of kin will take the estate. But to give effect to a bequest in favour of charity, Chancery will in both instances supply the place of an executor, and carry into effect that which in the case of individuals must have failed altogether. 24 Again; in the case of an individual, if an estate be devised to such person as the executor shall name, and no executor is appointed, or one being appointed, dies in the testator's life time, and no one is appointed in his place, the bequest amounts to nothing. Yet such bequest to charity would be  good, and the Court of Chancery would in such case assume the office of executor. 25 So, if a legacy be given to trustees to distribute in charity, and they die in the testator's life time, although the legacy is lapsed at law, (and if they had taken to their own use, it would have been gone forever,) yet it will be enforced in equity. 26 Again; although in carrying into execution a bequest to an individual, the mode, in which the legacy is to take effect, must be of the substance of the legacy; yet where the legacy is to charity, the Court will consider charity as the substance; and in such cases, and in such cases only, if the mode pointed out fail, it will provide another mode, by which the charity may take, but by which no other than charitable legatees can take. 27 A still stronger case is, that if the testator has expressed an absolute intention to give a legacy to charitable purposes, but has left uncertain, or to some future act, the mode by which it is to be carried into effect, there the Court of Chancery, if no mode is pointed out, will of itself supply the defect, and enforce the charity. 28 Therefore, it has been held, that if a man devises a sum of money to such charitable  uses as he shall direct by a codicil annexed to his will, or by a note in writing, and afterwards leaves no direction by note or codicil, the Court of Chancery will dispose of it to such charitable purposes as it thinks fit. 29 So, if a testator bequeath a sum for such a school as he should appoint, and he appoints none, the Court of Chancery may apply it for what school it pleases. 30 The doctrine has been pressed yet farther; and it has been established, that if the bequest indicate a charitable intention, but the object to which it is to be applied, is against the policy of the law, the Court will lay hold of the charitable intention, and execute it for the purpose of some charity, agreeable to the law, in the room of that contrary to it. 31 Thus a sum of money bequeathed to found a Jews' synagogue, has been taken by the Court, and judicially transferred to the benefit of a founding hospital!! 32 And a bequest for the education of poor children in the Roman Catholic faith has been decreed in Chancery to be disposed of by the King at his pleasure, under his sign manual. 33 \n Another principle, equally well established, is that if the bequest be for charity, it matters not how uncertain the persons or objects may be; or whether the persons who are to take, are in esse or not; or whether the legatee be a corporaion capable in law of taking or not; or whether the bequest can be carried into exact execution or not: in all these, and the like cases, the Court will sustain the legacy, and give it effect according to its own principles; and, where a literal execution becomes inexpedient or impracticable, will execute it cy prcs. 34 Thus a devise of lands to the church wardens of a parish, (who are not a corporation capable of holding lands) for a charitable purpose, though void at law, will be sustained in equity. 35 So, if a corporation for whose use a charity is designed is not in esse, and cannot come into existence but by some future act of the crown, as for instance, a gift to found a new college, which requires an incorporation, the gift is valid, and the Court will execute it. 36 So if a devise be to an existing corporation by a misnomer which makes it void at law. 37 So, where a devise was to the poor generally, the Court decreed it to be executed  in favour of three public charities in London. 38 So a legacy towards establishing a bishop in America, was held good, though none was yet appointed. 39 And where a charity is so given, that there can be no objects, the Court will order a new scheme; but if objects may, though they do not at present, exist, the Court will keep the fund for the old scheme. 40 And when objects cease to exist, the Court will new model the charity. 41 \n In further aid of charities, the Court will supply all defects of conveyances, where the donor hath a capacity and disposable estate, and his mode of donation does not contravene the provisions of any statute. 42 The doctrine is laid down with great accuracy by Duke, 43 who says that a disposition of lands, &c. to charitable uses is good, \"albeit there be defect in the deed, or in the will, by which they were first created and raised, either in the party trusted with the use, where he is misnamed, or the like; or in the party for whose use, or that are to have the benefit of the use, or where they are not well named, or the like; or in the execution of the estate, as where livery of seisin or attornment, is wanting, or the like. And therefore, if a copy holder doth dispose of copy hold land to a charitable use without a surrender; or a tenant in tail convey land to a charitable use without a fine; or a reversion without attornment or insolvency, and in divers such like cases, &c. this statute shall supply all the defects of assurance; for these are good appointments within the statute.\" 44 But a parol devise to charity out of lands being defective, as a will, which was the manner  of the conveyance the testator intended to pass it by, it can have no effect as an appointment, which he did not intend. 45 Yet it has been nevertheless held, that where a married woman, administratrix of her husband, and entitled to certain personal estates belonging to him, (viz. a chose in action,) afterwards intermarried, and then during coverture made a will disposing of that estate, partly to his heirs, and partly to charity, the bequest, though void at law, was good as an appointment under the statute of Elizabeth, for this reason, \"that the goods in the hands of administrators are all for charitable uses, and the office of the ordinary and of the administrator, is to employ them in pious uses, and the kindred and children have no property nor pre-eminence but under the title of charity.\" 46 \n With the same view the Court of Chancery was in former times most astute to find out grounds to sustain charitable bequests. Thus an appointment under a will to charitable uses, that was precedent to the statute of Elizabeth, and thus utterly void, was held to be made good by the statute. 47 And a devise which was not within the statute, was nevertheless decreed as a charity, and governed in a manner wholly different from that contemplated by the testator, although there was nothing unlawful in his intent; the Lord Chancellor giving as his reason \"summa est ratio, quoe pro religione facit;\" and because the charity was for a weekly sermon, to be preached by a person to be chosen by the greatest part of the best inhabitants of the parish, he treated this as a wild direction, and decreed that the bequests should be to maintain a catechist in the parish, to be approved by the bishop. 48 So, though the statute of Hen. VIII. of wills, did not allow of devises of land to corporations to be good, yet such devises to corporations for charitable uses, were held good, as appointments under the statute of Elizabeth. 49 Lord Chancellor Cowper, in a case where he was called upon to declare  a charitable bequest valid, notwithstanding the will was not executed according to the statute of frauds, and these cases were cited, observed, \"I shall be very loth to break in upon the statute of frauds and perjuries in this case, as there are no instances, where men are so easily imposed upon, as at the time of their dying, under the pretence of charity.\" \"It is true, the charity of judges has carried several cases on the statute of Elizabeth great lengths; and this occasioned the distinction between operating by will and by appointment, which surely the makers of that statute never contemplated.\" 50 \nIt has been already intimated, that the disposition of modern judges has been to curb this excessive latitude of construction assumed by the Court of Chancery in early times. But, however strange some of the doctrines already stated may seem to us, as they have seemed to Lord Eldon, yet they cannot now be shaken, without doing (as he says) that  in effect, which no judge will avowedly take upon himself, to reverse decisions that have been acted upon for centuries. 51 \nA charity must be accepted upon the same terms upon which it is given, or it must be relinquished to the right heir; for it cannot be altered by any new agreement between the heir of the donor and the donees. 52 And where several distinct charities are given to a parish for several purposes, no agreement of the parishioners can alter or divert them to other uses. 53 \nThe doctrine of cy pres, and applied to charities, was formerly pushed to a most extravagant length; § 54 but this sensible distinction now prevails, that the Court will not decree execution of the trust of a charity in a manner different from that intended, except so far as it is seen that the intention cannot be literally executed, but another mode may be adopted consistent with the general intention, so as to execute it, though  not in mode, yet in substance. If the mode becomes by subsequent circumstances impossible, the general object is not to be defeated, if it can be obtained. 55 And where there are no objects remaining to take the benefit of a charitable corporation, the Court will dispose of its revenues by a new scheme, and upon the principles of cy pres. The rule is, that if lands are given to a corporation for charitable uses, which the donor contemplates to last forever, the heir never can have the land back again; but if it becomes impracticable to execute the charity, another similar charity must be substituted, so long as the corporation exists. If the charity does not fail, but the trustees or corporation fail, the Court of Chancery will substitute itself in their stead, and carry on the charity. 56 \nWhen the increased revenues of a charity extend beyond the  original objects, the rule, as to the application of such increased revenues, is, that they are not a resulting trust for the heirs at law, but are to be applied to similar charitable purposes, and to the augmentation of the benefit of the charity. 57 \nIn former times, the disposition of Chancery to assist charities was so strong, that, in equity, assets were held to satisfy charitable uses before debts or legacies; though assets at law were held to satisfy debts before charities. But even at law, charities were then preferred before other legacies. 58 And this indeed was in conformity to the civil law, by which charitable legacies are preferred to all others. 59 The doctrine, however, is now altered, and charitable legacies, in case of a deficiency of assets, abate in proportions as well as other pecuniary legacies. 60 And the Courts have shown a disinclination to favour charities so far as to marshal a testator's assets, where the residue, bequeathed to charitable purposes, consists of mixed property, of real and personal estate, so as to direct the debts and other legacies to be paid out of the real estate, and reserve the personal to fulfil the charity, where the charity would  be void as to the real estate. 61 Yet where there are general legacies, and the testator has charged his estate with payment of all his legacies, if the personal estate be not sufficient to pay the whole, the Court has said the charity shall be paid out of the personal estate, and the rest out of the real estate, that the whole may be performed in toto. 62 \nIt has been already stated, that charitable bequests are not void on account of any uncertainty as to the persons or objects to which they are to be applied; although almost all the cases on this subject have been collected, compared, and commented on with his usual diligence and ability by Lord Eldon, in two recent decisions. The first was the case of Moggridge v. Thackwell, 63 where the testator gave the residue of her personal estate to James Vaston, his executors and administrators,  \"desiring him to dispose of the same in such charities as he shall think fit, recommending poor clergymen, who have large families and good characters;\" and appointed Mr. Vaston one of her executors. Mr. Vaston died in her life time, of which she had notice; but the will remained unaltered. The next of kin claimed the residue, as being lapsed by the death of Mr. Vaston; but the bequest was held valid, and established. In the next case, 64 the testator, by his will, after giving several legacies, proceeded, \"the rest and residue of all my effects I direct may be divided for promoting the gospel in foreign parts, and in England; for bringing up ministers in different seminaries and other charitable purposes, as I do intend to name hereafter, after all my worldly property is disposed of to the best advantage.\" The bill was filed by the next of kin, praying an account and distribution of the residue, as being undisposed of by the will or any codicil of the testator. The Master of the Rolls held the residuary bequest to charitable purposes void for uncertainty, and because the testator expressed not a present, but a future, intention to devise this property. Lord Eldon, however, upon  an appeal, reversed the decree, and established the bequest, as a good charitable bequest, and directed it to be carried into effect accordingly. \nIt has been made a question, whether a Court of Equity, sitting in one jurisdiction, can execute any charitable bequests for foreign objects in another jurisdiction. In the case last stated, no objection occurred to the residuary bequest, on the ground, that it contemplated the promotion of the gospel in foreign parts. In the case of Mr. Boyle's will, the bequest was not limited in terms to foreign countries or objects, but it was applied to a foreign object under a decree of the Court of Chancery; and when that object failed, a new scheme was directed. 65 There are several other cases, in which charities for foreign objects have been carried into effect. In the Provost, &c. of Edinburgh v. Aubery, 66 there was a devise of 3,500l. South Sea annuities to the plaintiffs, to be applied to the maintenance of poor labourers residing in Edinburgh and the towns adjacent; and Lord Hardwicke said he could not give any directions as to the distribution  of the money, that belonging to another jurisdiction, that is, to some of the Courts in Scotland; and, therefore, he directed that the annuities should be transferred to such persons as the plaintiffs should appoint, to be applied to the trusts in the will. So, in Oliphant v. Hendrie, where A. by will gave 300l. to a religious society in Scotland, to be laid out in the purchase of heritable securities in Scotland, and the interest thereof to be applied to the education of twelve poor children, the Court held it a good bequest. 67 In Campbell v. Radnor, the Court held a bequest of 7,000l. to be laid out in the purchase of lands in Ireland, and the rents and profits to be distributed among poor people in Ireland, &c. to be valid in law. § 68 So, a legacy towards establishing a bishop in America, was supported, although no bishop was yet established. 69 In the late case of Curtis v. Hutton, a bequest of personal estate for the maintenance of a charity (a college) in Scotland was established; 70 and in another still more recent case, a bequest in trust to the magistrates of Inverness in Scotland, to apply the interest and income for the education of certain boys, was enforced as a  charity. 71 Nor is the uniformity of the cases broke in upon by the doctrine in De Garcia v. Lawson. 72 There the bequests were to Roman Catholic clergymen, or for Roman Catholic establishments, and were considered as void and illegal, being equally against the policy and the enactments of the British legislature. \nIn respect to the mode of administering charities in Chancery, it is not easy to extract from the authorities any consistent doctrine. Where the trust is for definite objects, and a trustee is appointed to administer it, who is in esse and capable of performing it, all the Court does is to watch over the charity, and see that it is executed faithfully, and without fraud; and if the trustees should die, so that it remains unexecuted, the Court will then act as trustee, and do as the trustees ought to do, if living. But where money is given to charity generally, without trustees  or objects selected, in some cases the charity has been applied by the king under his sign manuel, and in others by the Court of Chancery, according to its usual course, that is, by a scheme reported by a Master and approved by the Court. It is not easy to perceive upon what principle the one case has in practice been distinguished from the other. Lord Eldon has observed, \"all I can say upon it is, I do not know what doctrine could be laid down, that would not be met with some authority upon this point; whether the proposition is, that the Crown is to dispose of it, or the Master by a scheme.\" 73 \nIt is laid down in books of authority that the king, as parens patriae, has the general superientendence of all charities not regulated by charter, which he exercises by the keeper of his conscience the Chancellor; and, therefore, the Attorney General, at the relation of some informant, when it is necessary, files ex officio an information in the Court of Chancery to have the charity properly established and applied. 74 And, it is added, that the jurisdiction thus established does not belong to the Court of Chancery, as a court of equity,  but as administering the prerogative and the duties of the crown. 75 And it seems also to be held, that the jurisdiction vested in the Lord Chancellor by the statute of Elizabeth, is personal, and not in his ordinary or extraordinary jurisdiction in Chancery; like that, in short, which he exercises as to ideots and lunatics. 76 It seems in the highest degree reasonable, that the king, as parens patriae, should have a right to guard and enforce all charities of a public nature, by virtue of his general superintending power over the public interests, where no other person is entrusted with such right. But where money is given to charity generally and indefinitely without any trustees, there does not seem to be any difficulty in considering it as a personal trust devolved on the crown to be executed by the crown; and whether it be executed by the keeper of the king's conscience, his Lord Chancellor, as his personal delegate, or by himself under his sign manual, is not very material, and may well enough be considered as an authority distinct from that belonging to a Court of Equity. But where there is a trust and trustees, with some general or specific objects pointed out, or trustees  for indefinite or general charity, it is not easy to perceive, why, as a matter of trust, a Court of Equity may not take cognizance of it in virtue of its ordinary jurisdiction; and the better authorities would seem to countenance this view of the subject. 77 At all events, where there are trustees, and the trust is for a definite object, and sustainable in law, there seems no reason why a Court of Equity, as such, may not take cognizance of such trust at the suit of any competent party, whether the Attorney General or any interested private relator, as well as of any other trust, the execution of which is sought of the Court. \n In respect, however, to cases of indefinite trusts, or trusts where some general objects are pointed out, the distinction which appears to be most reconcileable with the cases, and to be acted upon in the modern decision, is this: that where there is a general indefinite purpose, not fixing itself upon any object, the disposition is in the king by sign manual; but where the execution is to be by a trustee with general or some objects pointed out, whether such trustee survive the testator or not, there the administration of the trust will be taken by the Court of Chancery, (either as personal delegate of the crown, or as a Court of Equity,) and managed under a scheme reported by a Master, and approved by the Court. 78 \nAs to the remedy for misapplication of the charity funds, &c. in cases within the statute of Elizabeth, a proper, though not an exclusive remedy, is by commission under the statute. 79 But as the statute does not extend to any college, hospital, or free school, which have special visitors, or governors, or overseers, appointed by their founders, 80 it is necessary to consider what is the remedy for frauds or misconduct in such cases. As to this, it may  be observed, thal all trustees, who are the managers of the revenues of such charities, are subject to the general superintending power of the Court of Chancery, not as of itself possessing a visitatorial power, or a right to control the charity, but as possessing a general jurisdiction of an abuse of trusts, to redress grievances, and suppress frauds. 81 And if a corporation be the mere trustee of a charity, and grossly abuse the trust, the Court of Chancery will take it away from them, and vest it in other hands. 82 But the general controlling power of the Court over charities, does not extend to a charity regulated by governors under a charter, unless they have also the management of the revenues, and abuse their trust; and this will not be presumed, but must be apparent, and made out in evidence. 83 \n It seems, that with a view to encourage the discovery of charitable donations, given for indefinite purposes, it is the practice for the crown to reward the persons who make the communication, if they can bring themselves within the scope of the charity, by giving them a part of the fund; and the like practice, whether well or ill founded, takes place in relation to escheats. 84 \nThese are the principal doctrines and decisions under the statute of Elizabeth, of Charitable Uses, which it seemed most important to bring in review before the learned reader. And it may not be useless to add, that the statute of Mortmain and Charities of the 9th of George II. c. 36. has very materially narrowed the extent and operation of the statute of Elizabeth, and has formed a permanent barrier against what the statute declares a \"public mischief,\" which \"had of late greatly increased, by many large and improvident alienations or dispositions made by languishing and dying persons, or by others, to uses called charitable uses, to take place after their deaths, to the disherison of their lawful heirs.\" It was the original design of this  note, to have included a summary view of the principal clauses of this statute, and the decisions which have followed it; but is already extended to so great a length, that it is thought best to omit it. The learned reader will, however, find a very accurate statement of both in Mr. Justice Blackstone's Commentaries, (2 Bl. Com. 268.) and in Bridgman's Duke on Charitable Uses, and Highmore's History of Mortmain and Charitable Uses. This statute was never extended to or adopted by the colonies, in general. 85 But certain of the provisions of it, or of the older statutes of Mortmain, (7th of Edw. I. stat. 2. De Religiosis, the 13th of Edw. I.c. 32. the 15th of Richard II. c. 5. and the 23d of Hen. VIII. c. 10.) have been adopted by some of the States of the Union; 86 and it deserves the consideration of every wise and enlightened American legislator, whether provisions similar to those of this celebrated statute are not proper to be enacted in this country, with a view to prevent undue influence and imposition upon pious and feeble minds in their last moments, and to check that unhappy propensity, which sometimes is found to exist under a bigotted enthusiasm, and the desire to gain  fame as a religious devotee and benefactor, at the expense of all the natural claims of blood and parental duty to children. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. delivered the opinion of the court. \nThe first question which presents itself in this case is, was the defendant entitled to oyer of the letters testamentary at the term succeeding  that at which the executor was admitted a plaintiff in the cause? \nIt is contended, on the part of the defendant, that on the suggestion of the death of either plaintiff or defendant, a scire facias ought to issue, in order to bring in his representative; or, if a scire facias should not be required, yet, that the opposite party should have the same time to plead and make a proper defence as if such process had been actually sued. \nThe words of the act of congress do not seem to countenance this opinion. They contemplate the coming in of the executor as a voluntary act, and give the scire facias to bring him in, if it shall be necessary, and to enable the court \"to render such judgment against the estate of the  deceased party,\" \"as if the executor or administrator had voluntarily made himself a party to the suit.\" From the language of the act this may be done instante. The opinion, that  it is to be done on motion, and that the party may immediately proceed to trial, derives strength from the provision, that the executor or administrator, so becoming a party, may have one continuance. This provision shows, that the legislature supposed the circumstance of making the executor a party to the suit, to be no cause of delay. But as the executor might require time to inform himself of the proper defence, one continuance was allowed him for that purpose. The same reason not extending to the other party, the same indulgence is not extended to him. \nThere is, then, nothing in the act, nor is there any thing in the nature of the provision, which should induce an opinion, that any delay is to be occasioned where the executor makes himself a party and is ready to go to trial. -- Unquestionably, he must show himself to be executor, unless the fact be admitted by the parties; and the defendant may insist on the production of his letters testamentary, before he shall be permitted to prosecute; but if the order for his admission, as a party, be made, it is too late to contest the fact of his being an executor. \nIf the court has unguardedly permitted a person to prosecute who has  not given satisfactory evidence of his right to do so, it possesses the means of preventing any mischief from the inadvertence, and will undoubtedly employ those means. \nThe second point in the case is the demurrer of the defendant to the plaintiff's replication. \nTwo causes of demurrer are assigned. 1st. That it is a departure from the declaration. 2d. That the plea ought to have been traversed, and an issue tendered thereon. \nOn the first cause of demurrer, some difference has existed in the court, but the majority of the judges concur in the opinion, that the replication fortifies, and does not depart from the declaration. \n The averment, that the assignment was for value received, is an immaterial averment. The assignee, without value, can as well maintain his action as the assignee, on a valuable consideration. It is, therefore, mere surplusage, and does not require to be proved; nor does it affect the substantial part of the declaration. It is also the opinion of a part of the court, that the duty created by the trust, and which was discharged by the assignment, may be considered as constituting a valuable consideration to support the averment, and prevent the  replication from being a departure from the declaration. \n2d. The second cause of demurrer is clearly not maintainable. The matter of the replication does not deny, but avoids the allegations of the plea, and, consequently, the conclusion to the court is proper. \nIt has, indeed, been argued, that the replication is faulty, because it does not confess the matter alleged in the plea; but this is not assigned as a cause of demurrer, and it is, therefore, not noticed by the court. \nThe demurrer having been overruled, several exceptions were taken at the trial to the opinion of the court. \nThe first was to the admission of the note as evidence. This was objected to, because the declaration averred the note to be assigned for value received, and the assignment contained no expression of a valuable consideration, but was declared to be made \"without recourse.\" As the assignment is not set forth in hac verba, this exception is so clearly unmaintainable that it will require only to be mentioned. \nThe 2d exception requires more consideration. It is, that although the averment that the assignment was made for value received was immaterial, yet the plaintiff, having stated the fact in his  declaration, is bound to prove it. In support of this position, Bristow v. Wright, Doug. 665, has been quoted and relied on. \nThe strictness with which, in England, a plaintiff is bound to prove the averments of his declaration, although  they may be immaterial, seems to have relaxed from its original rigour. \nThe reasons stated by Lord Mansfield, in the case reported by Douglas, for adhering to the rule, do not apply in the United States, where costs are not affected by the length of the declaration. \nExamining the subject with a view to the great principles of justice, and to those rules which are calculated for the preservation of right and the prevention of injury, no reason is perceived for requiring the proof of a perfectly immaterial averment, unless that averment be descriptive of a written instrument, which, by being untruly described, may, by possibility, mislead the opposite party. \nWhere, then, the averment in the declaration is of a fact dehors the written contract, which fact is in itself immaterial, it is the opinion of the court that the party making the averment, is not bound to prove it. \nIn this case, the averment, that the assignment was made for value  received, is the averment of a fact, which is perfectly immaterial, and which forms no part of the written assignment; nor is it averred to be a part of it. It is an extrinsic fact, showing how the right of action was acquired, but which contributes nothing towards giving that right of action. The party making this useless averment ought not to be bound to prove it. \nNo case which has been cited at bar, comes up to this. The averments of the declaration, which the plaintiff has been required to prove, are all descriptive of records, or of written contracts; not of a fact, at the same time extrinsic and immaterial. The court is, therefore, unanimous  in the opinion, that this exception cannot be maintained. \nIn the progress of the trial, the counsel for the defendant, in the court below, also required that court to instruct the jury, that unless the plaintiff could show that the Ramsays, who were his agents, had the power  to collect some other debt from the defendant, the payments made by him, to them, should be credited on the notes given to them in trust for Codman, which instruction the court very properly refused to give. \nIndependent of the proof made  by the plaintiff, that the sums of money received by the Ramsays from Wilson, were really on their own account, the instruction would not have been proper as this case actually stood. There was a running account between the Ramsays and Wilson, who had large transactions with each other, and who reciprocally advanced large sums. This running account is not stated by the defendant, in the proposition for the opinion of the court. The effect it produces, is to make it proper for Wilson to prove, that advances made by him to the Ramsays, were not designed to satisfy their particular engagements with each other, but were intended to discharge the debt due to Codman. Terms are improperly used in the bill, which imply a fact contradicted by the testimony. The word payment is used instead of the word advance, and this , at first view, may produce an obscurity, which is dissipated on investigating the record. \nThe judgment is to be affirmed with costs. \n \n\n "}, "Story" -> {" \nOpinion \n\n \n \n STORY, Justice, on the 24th of February, all the judges being present. \nA writ of intrusion was brought by the United States against the Defendant in error to recover possession of an undivided part of certain land lying within the district of Maine. Upon the trial of the cause in the district Court of that district, a special verdict was found by the jury, upon which the same Court gave judgment in favor of the Defendant in error. This judgment was afterwards affirmed in the Circuit Court of Massachusetts, and is now before the Supreme Court for a final decision. \nBy the special verdict it appears that the claim of the United States to the land in controversy is under one  Nathaniel Dowse, who derived his title, if any, from an instrument stated at large in the same verdict, and executed in his favor by one John Nelson. The instrument is without a seal and was executed at the Island of Grenada, in the West  Indies, before a notary public, according to the mode prescribed, by the existing laws, to pass real estate in that colony -- and both parties were, at that time residents therein. \nBy the laws of Massachusetts, no estate of freehold in land can be conveyed unless by a deed or conveyance under the hand and seal of the party -- and to perfect the title as against strangers, it is further requisite that the deed should be acknowledged before a proper magistrace, and recorded in the registry of deeds for the county where the land lies. \nThe question presented for consideration, is whether the lex loci contractus or the lex loci rei sitae is to govern in the disposal of real estates. \nThe Court entertain no doubt on the subject; and are clearly of opinion that the title to land can be acquired and lost only in the manner prescribed by the law of the place where such land is situate. The judgment of the Circuit Court must, therefore, be affirmed. \n \n\n ", " \nOpinion \n\n \n \n  STORY, J. delivered the opinion of the court as follows: \nThe Plaintiffs in error brought an action of trespass quare clansum fregit -- to which the Defendant in error pleaded the statute of limitations. The replication in substance states that, at the time when the cause of action accrued, Christiana, wife of one of the Plaintiffs, and Elizabeth, wife of another of the Plaintiffs, \"were feme coverts, and ever since have continued feme coverts\" -- and \"that Kitty Hunter,\" one of the Plaintiffs, \"was a feme covert;\" and that the other Plaintiffs in whose right the suit was brought, at the time when the action accrued, and also at the commencement of the suit, were infants. To this replication there is a general demurrer and joinder on which the court below gave judgment for the Defendant. \nIt is contended by the Defendant that this replication is insufficient, inasmuch as it does not allege that Kitty Hunter continued a feme covert until within five years, the time prescribed by the statute of limitations for the pursuit of this remedy. And it is further contended, that, even if the replication be good, yet the Plaintiffs  ought not to recover, because the declaration charges the trespass by way of recital -- \"for that whereas the Defendant with force and arms,\" &c., and not by positive and direct allegations as the law requires. On this last exception the court do not intend to give any opnion; but unless the point were fully settled by authority, they would feel little inclination to sustain an objection which would seem directed more to the form than the merits of the action. \nThe objection to the replication deserves more consideration. It is certainly a rule of pleading that a replication should of itself contain a full and complete answer to the bar, and that a joint plea which is bad, affects with its consquences all the parties joining in it.  In the present case it may be true that Kitty Hunter was a feme covert at the time when the action accrued; and yet it may be equally true that five years have elapsed since the disalility was removed. It was therefore incumbent on the Plaintiffs, not barely to shew a coverture, but, by a proper averment, to shew its continuance to a time within which it would have been a perfect avoidance of the bar. The objection then would have been fatal  in a several action brought by Kitty Hunter. \nBut it is said that though the replication be bad as to one of the Plaintiffs, yet it can only bar her: that the infancy or coverture of the other Plaintiffs entitles them to a recovery in this action for the injury done to them; and that, as parceners and tenants in common are compellable to join in actions of this nature, it would be hard to affect them with the disability of a co-tenant. \nIt seems, however, to be a settled rule that all the Plaintiffs in a suit must be competent to sue, otherwise the action cannot be supported: and the case of Perry v. Jackson, cited from 4, Term Reports, 516, decides that a plea of the statute of limitations, which is good as to one partner, bars them both in a joint action. When once the statute runs against one of two parties entitled to a joint action, it operates as a bar to such joint action. \nIt is therefore the opinion of the Court that as this answer to the objection fails, the replication must be adjudged insufficient, and of course the bar must prevail. \nJudgment affirmed. \n \n\n ", " \nOpinion \n\n \n \n  STORY J. delivered the opinion of the Court, as follows: Several exceptions have been taken to the opinion of the Court below, which will be considered in the order in which the objections arising out of them have been presented to us. We are sorry to say that the practice of filing numerous bills of exceptions is very inconvenient;  for all the points of law might be brought before the Court in a single bill, with a simplicity, which would relieve the bar and the bench from every unnecessary embarrassment. \nAs the argument on the first exception has proceeded upon the ground, that the agreement of 1804 was completely executed and performed, and the objection relates only to a supposed mistake in the form of the declaration, it will at present be considered in this view. And we take it to be incontrovertibly settled, that indebitatus assumpsit will lie to recover the stipulated price due on a special contract,  not under seal, where the contract has been completely executed; and that it is not in such case necessary to declare upon the special agreement. -- Gordon v. Martin -- Fitzgibbon 303. -- Musson v. Price 4. East 147. -- Cook v. Munstone, 4. Bos. & Pul. 351. -- Clarke v. Gray, 6 East. 564, 569. 2. Sand. 350. note 2. -- In the case before the Court, we have no doubt that indebitatus assumpsit was a proper form of action to recover, as well for the work done under the contract of 1804, as for the extra work. It may, therefore, safely be admitted (as is contended by the Plaintiff in error,) that where there is a special agreement for building a house, and some alterations or additions are made, the special agreement shall notwithstanding be considered as subsisting so far as it can be traced. Pepper v. Burland, Peake's Rep. 103. The first exception therefore, wholly fails. \nUnder the second exception, the Plaintiff in error has made various objections. \n1. The first is, that though a promise would be implied by law, for the extra work against the corporation, yet that such promise was extinguished, by operation of law, by the provisions of the sealed contract of 1807. It is undoubtedly  true, that a security under seal, extinguishes a simple contract debt, because it is of a higher nature -- Cro. Car. 445. Raym. 449. 2. Jones 158. 1. Burr 9. -- 5. Com. Dig. tit. Pleader 2. G. 12. But this effect never has been attributed to a sealed instrument which merely recognizes an existing debt, and provides a mode to ascertain its amount and liquidation. At most, the sealed agreement of 1807, could not be  construed to extend beyond this import. In no sense could it be considered as a higher security for the money originally due. This objection therefore cannot prevail, even supposing that the agreement were the deed of the corporation. \n2. A second objection is, that the special agreements, connected with the certificates of admeasurement were inadmissible evidence under the general counts, and could be admissible only under counts framed on the special agreements. \nTo this objection an answer has already, in part, been given. And we would further observe that if the agreements connected with the admeasurements, were the means of ascertaining the value of the work, the evidence was pertinent under every count. 2. Saund. 122. note 2. And if the certificates  of admeasurement were of the nature of an award, they  were clearly admissible under the insimul computassent count. Kenn. v. Batshore 1. Esp. Rep. 194. \n3. Another objection is, that as the agreement of 1807 is sealed, and is connected, by reference with the prior agreement, they are to be construed as one sealed instrument, and assumpsit will not lie upon an instrument under seal. \nThe foundation of this objection utterly fails, for the agreement is not under the seal of the Corporation, but the seals of the committee; and if it were otherwise, it is too plain for argument, that the original agreement was not extinguished, but referred to, as a subsisting agreement. It is quite impossible to contend that the mere recital of a prior, in a later agreement, after it has been executed, extinguishes the former. \nTwo other objections are made under this exception; but as they are answered in the preceding observations, it is unnecessary to notice them farther. \nUnder the third exception, the only objections relied on, are in principle the same, as the objections urged under the former exceptions and they admit the same answers. \n The case has thus been considered  all along, as though the contracts were made between the Plaintiff's administrator and the Corporation, and indeed some points in the argument have proceeded upon this ground. It is very clear, however, that neither the first nor second agreements were made by the corporation, but by the committee in their own names. In consideration of the work being done, the committee, and not the corporation, personally and expressly agree to pay the stipulated price. A question has therefore occurred how far the corporation were capable of contracting, except under their corporate seal; and if it were capable, as no special agreement is found in the case, how far the facts proved, shew an express or an implied contract on the part of the corporation. \nAntiently it seems to have been held, that corporations could not do any thing without deed. 13. H. 8. 12. -- 4. H. 7, 6. -- 7. H. 7, 9. \nAfterwards the rule seems to have been relaxed, and they were, for conveniency's sake, permitted to act in ordinary matters without deed; as to retain a servant, cook, or butler. Plow. 91. b. -- 2 Sand. 305. and gradually this relaxation widened to embrace other objects. Bro. Corp. 51. -- 3. Salk. 191. --  3. Lev. 107. Moore 512. At length it seems to have been established that though they could not contract directly, except under their corporate seal, yet they might by mere vote or other corporate act, not under their corporate seal, appoint an agent, whose acts and contracts, within the scope of his authority, would be binding on the corporation. Rex v. Bigg, 3. P. Wms. 449; and Courts of equity, in this respect seeming to follow the law, have decreed a specific performance of an agreement made by a major part of a corporation, and entered in the corporation books, although not under the corporate seal, 1. Fonb. 305, Phil. ed. note (o.) -- The sole ground upon which such an agreement can be inforced, must be the capacity of the corporation, to make an unsealed contract. \nAs it is conceded, in the present case, that the committee were fully authorized to make agreements, there could then be no doubt, that a contract made by them in the name of the Corporation, and not in their own names,  would have been binding on the corporation. As, however, the committee did not so contract, if the principles of law on this subject stopped here, there would be no remedy for the Plaintiff,  except against the committee. \nThe technical doctrine, that a corporation could not contract, except under its seal, or, in other words, could not make a promise, if it ever had been fully settled, must have been productive of great mischiefs. Indeed as soon as the doctrine was established that its regularly appointed agent could contract in their name without seal, it was impossible to support it; for otherwise the party who trusted such contract would be without remedy against the corporation. Accordingly it would seem to be a sound rule of law, that wherever a corporation is acting within the scope of the legitimate purposes of its institution, all parol contracts made by its authorized agents, are express promises of the corporation; and all duties imposed on them by law, and all benefits conferred at their request, raise implied promises, for the enforcement of which, an action may well lie. And it seems to the Court, that adjudged cases fully support the position. Bank of England v. Moffat, 3.Bro. Ch. Rep. 262. -- Rex. v. Bank of England Doug. 524, and note ibidem. -- Gray v. Portland Bank, 3. Mass. Rep. 364. -- Worcester Turnpike Corporation v. Willard, 5. Mass. Rep. 80.  -- Gilmore v. Pope, 5. Mass. Rep. 491. -- Andover & Medford Turnpike Corporation v. Gould, 6. Mass. Rep. 40. \nIn the case before the Court, these principles assume a peculiar importance. The act incorporating the Bank of Columbia, (act of Maryland, 1793, ch. 30,) contains no express provision authorizing the corporation to make contracts. And it follows, that upon principles of the common law, it might contract under its corporate seal. No power is directly given to issue notes not under seal. The corporation is made capable to have, purchase, receive, enjoy and retain, lands, tenements, hereditaments, goods, chattels and effects, of what kind, nature, or quality, soever, and the same to sell, grant, demise, alien, or dispose of -- and the board of directors are authorized to determine the manner of doing business, and the rules and forms to be pursued; to appoint and pay the various officers, and dispose of  the money or credit of the bank, in the common course of banking, for the interest and benefit of the proprietors. Unless, therefore, a corporation, not expressly authorized, may make a promise, it might be a serious question, how far the bank notes of this bank  were legally binding upon the corporation, and how far a depositor in the bank could possess a legal remedy for his property confided to the good faith of the corporation. In respect to insurance companies also, it would be a difficult question to decide, whether the law would enable a party to recover back a premium, the consideration of which had totally failed. Public policy therefore, as well as law, in the judgment of the Court, fully justifies the doctrine which we have endeavored to establish. Indeed the opposite  doctrine, if it were yielded to, is so purely technical, that it could answer no salutary purpose, and would almost universally contravene the public convenience. Where authorities do not irresistibly require an acquiescence in such technical niceties, the Court feel no disposition to extend their influence. \nLet us now consider what is the evidence in this case, from which the jury might legally infer an express, or an implied promise of the corporation. The contracts were for the exclusive use and benefit of the corporation, and made by their agents for purposes authorized by their charter.The corporation proceed, on the faith of those contracts,  to pay money from time to time to the Plaintiff's intestate.Although, then, an action might have laid against the committee personally, upon their express contract, yet as the whole benefit resulted to the corporation, it seems to the Court, that from this evidence the jury might legally infer that the corporation had adopted the contracts of the committee, and had voted to pay the whole sum which should become due under the contracts, and that the Plaintiff's intestate, had accepted their engagement. As to the extra work, respecting which there was no specific agreement, the evidence was yet more strong to bind the corporation. \nIn every way of considering the case, it appears to the Court, that there was no error in the Court below, and that the judgment ought to be affirmed. \n \n\n ", " \nOpinion \n\n \n \n  STORY, J. delivered the opinion of the Court as follows: \n The present action is brought to recover freight pro rata itineris, under the following circumstances: \nThe Plaintiffs were the owners of the ship Hamilton and cargo, and effected insurance of her cargo on a voyage from Bordeaux to New York. The sum of $11,000 was underwritten by the Defendants -- the sum of $10,000 at Philadelphia, and the residue of the value of the cargo ($1986,) was left uninsured. During the voyage the ship and cargo were  captured, carried into Halifax, and there condemned. The Plaintiffs abandoned to the underwriters and received payment for a total loss. An appeal from the sentence of condemnation was interposed and the sentence finally reversed, and the proceeds of the cargo, which had been previously sold by order of Court, were paid over to the underwriters in proportion to the sums underwritten by them respectively. \n We are all of opinion that the Plaintiffs are not entitled to recover in the present action. \nIn the first place the Court are satisfied that, as between the insured and the underwriter on the cargo of a ship, the latter is in no case responsible for the payment of freight, whether there be an abandonment or not. It is a charge on the cargo against which he does not undertake to indemnify the owner; and if authority be necessary to support the position, it is fully borne out by the doctrine of lord Mansfield in Baillie v. Modigliani, Marshall, 728. \nIn the next place we are all of opinion that no freight whatsoever was, under the circumstances of this case, due. Freight, in general, is not due unless the voyage be performed. Here the ship and cargo never arrived at  their port of destination, and of course the whole freight could not be due. Was a pro rata freight due? We think not. The whole class of cases resting on the authority of Luke v. Lyde (2 Barr. 882.) proceed on the ground that there is a voluntary acceptance of the goods themselves at an intermediate port; and not, as in the present case, a compulsive receipt from the hands of the admiralty after capture and condemnation, and ultimate restoration upon the appeal. There is, in our judgment, no equity to support such a claim; and although  it receive countenance from some remarks incidentally thrown out in Baillie v. Modigliani, the current of more recent authority, as well as of principle, clearly points the other way. \nIt may be further added that as between the insured and the underwriter the existence of a lien on the cargo for freight does not vary the legal responsibility of the underwriter on such cargo after an abandonment. \nThe judgment of the Circuit Court is affirmed with costs. \n \n\n ", " \nOpinion \n\n \n \n  STORY, J. delivered the opinion of the Court as follows: \nSeveral exceptions have been taken in this cause. The first proceeds on the ground that the record was not authenticated by the clerk in due form of law. The statute of the United States of the 26th of Mary, 1790, declares that the records and judicial proceedings of the Courts of any state shall be proved and admitted in any other Court within the United States by the attestation of the clerk and the seal of the Court annexed, if there be a seal, together with a certificate of the judge, chief  justice, or presiding magistrate, as the case may be, that the said attestation is in due form of law. It is conceded that such a certificate accompanied the record objected to. It is therefore a case within the words of the law, and the Court below were precluded from receiving any other evidence to show that the attestation was not in due form of law. The record so authenticated was properly admitted in evidence. \nEven if the points had been open, the Court are not satisfied that any material variance existed between the attestations of the different clerks. \nThe Court are also of opinion that the second exception cannot be sustained. The writing produced did not purport to be a record; but a mere transcript of minutes extracted from the docket of the Court. There is no foundation laid to show its admissibility in the cause. \n The third exception has presented the chief difficulty which we have felt in deciding the cause. It is addressed to the variances between the declaration and the contract produced in evidence. The inducement of the declaration alleges \"that the said Walter as one of the administrators of William E. Berry, deceased, on, &c. at, &c. delivered  unto the said Enos in part of his claim against the estate of the said William three hogsheads of crop tabacco, &c. he, the said Enos, to be allowed percent. therefor the highest six month's credit price at the place aforesaid during that time after rescinding the embargo.\" The contract produced in evidence is without the words \"he the said Enos.\" There is therefore a literal variance, and its effect depends upon the consideration whether it materially changes the contract. \nIn general, Courts of law lean against an extension of the principles applied to cases of variance. Mistakes of this nature are usually mere slips of attornies, and do not touch the merits of the case.Lord Mansfield has well observed that it is extremely hard upon the party to be turned round and put to expense from such mistakes of his counsel, and it is hard also upon the profession. \nIt will be recollected that this does not purport on the face of the declaration to be a description of a written instrument, nor the recital of a deed or record in hoec verba. In respect to the latter, trifling variances have been deemed fatal: but as to the former, a more liberal rule has been adopted. In setting forth the material  parts of a deed or other written instruments, it is not necessary to do it in letters and words. It will be sufficient to state the substance and legal effect. whatever, however, is alleged should be truly alleged. A contract substantially different in description or effect would not support the averment of the declaration. \nIn the case at bar, it is very clear that the word \"Enos\" was by a mere slip inserted instead of \"Walter.\" It is repugnant to the sense and meaning of the contract that the creditor who received the tobacco at a stipulated price in part payment of his debt, should allow to himself that price. From the nature of the transaction the debtor must be entitled to the allowance.  If the same words had been introduced into the written contract itself, they must have been rejected as nonsensical or repugnaut, or have had imposed upon them a sense exactly the same as if the words had been \"the said Walter.\" And a declaration which should altogether have omitted the words, or have given that legal sense, would have well supported an action. Can a  different result take place, where the repugnancy is not in the contract, but in the declaration?  A majority of the Court are clearly of opinion that it cannot. The words of a contract stated in a declaration, must have the same legal construction as they would have in the contract itself. \nThe context manifestly, in this case, shows the repugnancy. It is impossible to read the declaration and not to perceive that the price is to be allowed to the debtor, and not to the creditor. Many cases have been cited where the variance has been held fatal, but no one cornes up to the present. The case of Bristow v. Wright, (I oug. 665) is the strongest. There the demise was alleged to be at a yearly rent payable quarterly. The demise proved was without any stipulation as to the times of payment. The court held that the demise laid and that proved were not the same. But if the demise had been truly laid, and the declaration had proceeded to allege that the rent was to be paid by the lessor to the lessee, we think that the action might well have been maintained notwithstanding the repugnancy. That in effect would be the same as the present case. \nIn King v. Pippet, 1T.R. 235, where the declaration set forth a precept and improperly inserted the word \"if,\" which made it conditional,  the Court rejected the word, and held the variance immaterial. The Court said it was impossible to read the declaration and not to know what it should be. There are other cases to the like effect. \nWe are therefore satisfied that the variance is immaterial, because it does not change the nature of the contract, which must receive the same legal construction, whether the words be in or out of the declaration. \nA second variance is supposed in the allegation that the promise was to return the tobacco or its value, if  the property in the bond of conveyance mentioned in the declaration was not recovered in the suit then depending for the recovery thereof; whereas the contract produced in evidence contained no limitation to a recovery in that particular suit. We are satisfied however that the Plaintiff has declared according to the true intent of the parties as apparent on the contract. It could never have been their intention to postpone the right to a return of the tobacco or its value, beyond the time of a recovery or failure in the suit then depending. Any other construction would have left the rights of the parties in suspense for an indefinite period, wholly inconsistent  with the avowed objects of the contract. \nOn the whole, it is the opinion of the Court that the judgment be affirmed with costs. \n \n\n ", " \nOpinion \n\n \n \n  MARSHALL, Ch. J. WASHINGTON, DUVALL and STORY, J. \nThe Court having taken time since last term to advise, \nSTORY, J. (after stating the facts of the case,) delivered the opinion of the Court as follows: \nIt is true, that the general rule is, that an heir shall not take by devise, when he may take the same estate in the land by descent. 1 Roll. Abr. 626. l. 30. Hob. 30. 1 Salk. 242. 1 Bl. Rep. 22. \nBut it is not denied that all the estates which each of the grandsons derived under the will, were estates by purchase. Admitting the executory devises over to be good, there could be no doubt as to any part of the estates; for the estates are of a quality different from what he parties would have taken in the course of descent. \nIt has been argued by the Plaintiff's counsel, upon the foregoing facts, that as to the whole estate immediately devised to John M'Connell, the lessors of the Plaintiff are entitled  to recover, in the events which have happened, as his heirs ex parte materna; and that as to the estate devised to him upon the contingency of the death of John B. Hammond under age and without issue, the lessors of the Plaintiff are entitled to recover as the heirs at law of John M'Connell, at the time when the contingency happened, although not heirs at the time of his death. \n The decision of these points depends upon the true construction of the statute of descents of Maryland, and the application thereto of the principles of the common law. \nthis statute of descents, (1786, ch. 45,) after reciting that the law of descents which originated with the feudal system and military tenures, is contrary to justice, and ought to be abolished, enacts, \"That if any person seized of an estate,\" &c. \"shall die intestate thereof, such lands,\" &c. \"shall descend to the kindred, male and female, of such person, in the following order, to wit: First, to the child or children, and their descendants, if any, equally, and if no child or descendant, and the estate descended to the intestate on the part of the father, then to the father, and if no farther living, then to the brothers and  sisters of the intestate of the blood of the father, and their descendants equally, and if no brother or sister as aforesaid, or descendant from such brother or sister, then to the grandfather on the part of the father, and if no such grandfather living, then to the descendants of such grandfather and their descendants, in equal degree equally, and if no descendant of such grandfather, then to the father of such grandfather, and if none such living, then to the descendants of the father of such grandfather in equal degree, and so on, passing to the next lineal male paternal ancestor, and if none such, to his descendants in equal degree, without end: And if no paternal ancestor, or descendant from such ancestor, then to the mother of the intestate, and if no mother living, to her descendants in equal degree equally, and if no mother living, or descendants from such mother, then to the maternal ancestors and their descendants in the same manner as is above directed as to the paternal ancestors and their descendants. And if the estate descended to the intestate on the part of the mother, and the intestate shall die without any child or descendant scendant as aforesaid, then the estate  shall go to the mother, and if no mother living, then to the brothers and sisters of the intestate of the blood of the mother, and their descendants in equal degree equally, and if no such brother or sister, or descendant of such brother or sister, then to the grandfather on the part of the mother, and if no such grandfather living, then to his descendants in equal degree equally, and if no such descendant  of such grandfather, then to the father of such grandfather, and if none such living, then to his descendants in equal degree, and so on, passing to the next mail maternal ancestor, and if none such living, to his descendants in equal degree, and if no such maternal ancestor, or descendant from any maternal ancestor, then to the father of the intestate, and if no father living, to his descendants in equal degree equally, and if no father living, or descendant from the father, then to the paternal ancestors and their descendants, in the same manner as is above directed as to the maternal ancestors.\" \n\"And if the estate is or shall be vested in the intestate by purchase, and not derived from or through either of his ancestors, and there be no  child or descendant  of such intestate, then the estate shall descend to the brothers and sisters of such intestate of the whole blood, and their descendants in equal degree equally, and if no brother or sister of the whole blood, or descendant from such brother or sister, then to the brothers and sisters of the half blood and their descendants, in equal degree equally, and if no brother or sister of the whole or half blood, or any if no brother or sister of the whole or half to the father, and if no father living, then to the mother, and if no mother living, then to the grandfather on the part of the father, and if no such grandfather living, then to the descendants of such grandfather, in equal degree equally, and if no such grandfather, or any descendant from him, then to the grandfather on the part of the mother, and if no such grandfather, then to his descendants in equal degree equally, and so on without end, alternating the next male paternal ancestor and his descendants, and the next male maternal ancestor and his descendants; and giving preference to the paternal ancestor and his descendants; and if there be no descendants or kindred of the intestate as aforesaid to take the estate, then the same  shall go to the husband or wife, as the case may be; and if the husband or wife be dead, then to his or her kindred in the like course as if such husband or wife had survived the intestate, and then had died entitled to the estate by purchase; and if the intestate has had more husbands or wives than one, and all shall die before such intestate, then the estate shall be equally divided among the kindred of the several husband or wives in equal degree equally.\" \n Three classes of cases are here in terms provided for. \n1. \"Estates descended to the intestate on the part of the father.\" \n2. \"Estates descended to the intestate on the part of the mother.\" \n3. \"Estates vested in the intestate by purchase and not derived from or through either of his ancestors.\" \nThe descent of an estate of purchase, from brother to brother, and from a son to parent, where the brother or the parent is the propositus, is not directly within the language of the statute. For, by the common law, a descent from brother to brother is held to be an immediate descent, and not from or through the parents; and the express provision of the statute of Maryland as to estates of purchase, necessarily involves  the same conclusion; and the same may be declared of a descent from a child to a parent under the same statute. \nIt has been argued that the legislature intended to from a complete scheme of descents; and that the Court ought not to construe any case to be a casus omissus, if by any reasonable construction the words can be extended to embrace it. Both parties accede to this argument, but they apply it in a very different manner. The Plaintiffs contend that the descent from brother to brother was meant to be included inthe first and second classes of descents, as the parents were the common link of connexion from and through whom the consanguinity was to be sought; that therefore the descent, in such case, is ex-parte paterna, or materna, as the father or mother happens to be the commune vinculum. And the Plaintiffs rely on the words \"and not derived from or through either of his ancestors,\" in the clause embracing the third class, as distinctly showing that the legislature deemed every case of descents to be completely within the preceding classes.On the other hand, the Defendants contend that whatever might be the legislative supposition, it is impossible to support the position,  that a descent from brother to brother, or from child to parent, is a descent ex-parte paterna or materna.  It is therefore, either a casus omissus, or the words \"and not derived from or through either of his ancestors\" are to be considered not as qualifying and limiting the preceding words, but as either constituting a fourth class of cases, embracing all such as are not included in the three preceding classes; or as explaining estates by purchase to include all cases which are not paternal or maternal descents. \nThere are certainly intrinsic difficulties in admitting either of these constructions. If the legislature have proceeded on a mistake, it would be dangerous to declare that a Court of law were bound to enlarge the natural import of words in order to supply deficiencies occasioned by that mistake. It would be still more dangerous to admit that because the legislature have expressed an intention to form a scheme of descents, the Court were bound to bring every case within the specified classes. In the present case, equal violence would be done to the ordinary use of the terms employed by adopting the construction contended for by either party. \nIt is not a descent  from or through the paternal or maternal line, in the sense of the common law. Nor is it a purchase. \nThe words \"and not derived from or through either of his ancestors\" are manifestly used as explanatory of the legal import of purchase. They are the exact words which the common law selects to distinguish the estate of a purchaser from the estate of an heir. \nIt is obvious that the legislature use the words descent and purchase in their technical and legal sense. They have also expressly provided for the case of a descent from brother to brother, passing by the parents; and of a parent from a child, when there are no brothers or sisters. These descents must therefore be direct and immediate; and the former case is so deemed also at the common law. It is therefore in our judgment perfectly clear, that a descent from brother to brother is not within the statute, and of course is a casus omissus, to be regulated by the common law. \nTo apply this to the present case. By the arrival of John M'Connell at the age of 21 years, all the estates  devised to him immediately became absolute estates in fee simple. On his death they passed to his half brother, John B. Hammond; and  upon his death they passed to the heirs at law of the latter. The lessors of the Plaintiff have therefore made no sufficient title thereto. \nLet us now consider the second question: whether the lessors of the Plaintiff have any  title to the estates which were devised over to John M'Connell upon the contingency of John B. Hammond's dying under age and without issue. \nIt has been argued by the Defendant's counsel that this executory devise is void because the contingency is too remote. \nIt is the acknowledged rule, that an executory devise is not too remote if the contingency may happen within a life or lives in being, or 21 years and a few months after. \nIn the present case the contingency must have happened within 21 years at all events. For if John B. Hammond attained bis full age the estate vested absolutely. To have defeated the estate over, it was sufficient either that he attained his full age, or died under age leaving issue. The authorities are conclusive on this point. 1 Wils. 140, 270. 2 Burr 873. 1 Saund. 174. 5 Bos. and Pul. 38. 12 East. 288. 2 Str. 1175.There is no validity therefore in this objection. \nIn the next place it will be necessary to consider  what is the nature of an executory devise as to its transmissibility to heirs, where the devisee dies before the happening of the contingency. \nAnd it seems very clear that at common law, contingent remainders and executory devises are transmissible to the heirs of the party to whom they are limited, if he chance to die before the contingency happens. Pollexfen 54. 1 Rep. 99. Cas. Temp. Talb. 117. In such case, however, it does not vest absolutely in the first heir so as upon his death to carry it to his heir at law, who is not heir at law of the first devise, but it devolves from heir to heir, and vests absolutely in him only who can make himself heir to the first devisee at  the time when the contingency happens, and the executory devise fails into possession. \nThis rule is adopted in analogy to that rule of descent which requires that a person who claims a fee simple by descent from one who was first purchaser of the reversion or remainder expectant on a freehold estate, must make himself heir of such purchaser at the time when that reversion or remainder falls into possession. Co. Lit. 11. (b.) 14, (a.) 3 Rep. 42. Nor does it vary the legal result that the person  to whom the preceding estate is devised, happens to be the heir of the executory devisee, for though on the death of the latter the executory devise devolves upon him, yet it is not merged in the preceding estate, but expects the regular happening of the contingency and then vests absolutely in the then heir of the executory devisee. The case of Goodrigth v. Searle, 2 Wils. 29, is decisive on this point and indeed runs on all fours with the present. \nBut it is contended that the statute of descents of Maryland has changed the rule of the common law in this respect; and has made the death of the intestate the point of time from which the descent and heirship are in every case to be traced. The third section, which is relied on for this purpose, enacts as follows: \"That no right in the inheritance shall accrue to or vest in any person, other than to children of the intestate and their descendants, unless such person is in being, and capable in law to take as heir at the time of the intestate's death; but any child or descendant of the intestate, born after the death of the intestate, shall have the same right of inheritance as if born before the death of the intestate.\" \nIn our judgment,  the conclusion drawn from this clause is not correct. The object of the section is to limit the natural capacity to take, as heirs, to persons in being at the time of the death of the intestate, where the estate is then capable of vesting in possession; and not to make persons heirs, who, if in being at the time, would not, by the common law, answer the description of absolute heirs, or to give a vested absolute interest, where the common law had given only a possible contingent interest. The legislature had in view cases of  posthumous children, and cases where a descent to an heir had been defeated by the subsequent birth of a nearer heir. The argument of the Defendants, on this point, ought not, therefore to prevail. No question has been made as to the land specifiedly devised to John B. Hammond in fee with a limitation over to his father in fee.As that limitation over was a good executory devise, and, in the events which happened, took effect, it is very clear that the lessors of the Plaintiff cannot claim title thereto. This is indeed conceded on all sides. \nThe result of this opinion accordingly is, that the lessors of the Plaintiff are entitled, as heirs of John  M'Connell, at the happening of the contingency, on the death of John B. Hammond, under age and without issue, to one moiety of the Church-hill lands, and the residuary estates as tenants in common with the heirs of John B. Hammond; but they are not entitled to any portion of the lands of which John M'Connell had an absolute vested fee at the time of his decease. \nAs, however, a tenant in common cannot in general maintain an action of ejectment against his co-tenant, and there are no facts found in this case to prove an actual ouster and to take it out of the general rule, the consequence is that the judgment, in the opinion of a majority of the Court, must be affirmed with costs. \n \n\n ", " \nOpinion \n\n \n \n  STORY, J. delivered the opinion of the Court as follows: \nThe question in this case is whether nil debet is a good plea to an action of debt brought in the Courts of this district on a judgment rendered in a Court of record  of the state of New York, one of the United States, \nThe decision of this question depends altogether upon the construction of the constitution and laws of the United States. \nBy the constitution it is declared that \"full faith an credit shall be given in each state to the public acts, records and judicial proceedings of every other state; and the congress may, by general laws, prescribe the manner in which such acts, records and proceedings shall be proved and the effect thereof.\" \nBy the act of 26th May, 1790, ch. 11, congress provided for the mode of authenticating the records and judicial proceedings of the state Courts, and then further declared that \"the records and judicial proceedings, authenticated as aforesaid, shall hae such faith and credit given to them in every Court within the United States as they have by law or usage in the Courts of  the state from whence the said records are or shall be taken.\" \nIt is argued that this act provides only for the admission of such records as evidence, but does not declare the effect of such evidence when admitted. This argument cannot be supported, The act declares that the record duly authentieated shall have such faith  and credit as it has in the state Court from whence it is taken. If in such Court it has the faith and credit of evidence of the highest nature, viz. record evidence, it must have the same faith and credit in every other Court. Congress have therefore declared the effect of the record by declaring what faith and credit shall be given to it. \nIt remains only then to inquire in every case what is the effect of a judgment in the state where it is rendered. In the present case the Defendant had full notice of the suit, for he was arrested and gave bail, and it is beyond all doubt that the judgment of the Supreme Court of New York was conclusive upon the parties in that state. It must, therefore, be conclusive here also. \nBut it is said that admitting that the judgment is concluslve still nil debet was a good plea; and nul tiel record could not be pleaded, because the record was of another state and could not be inspected or transmitted by certiorari. Whatever may be the validity of the ples of nil debet after verdict, it cannot be sustained in this case. The pleadings in an action are governed by the dignity of the instrument on which it is founded. \nIf it be a record, conclusive  between the parties, it cannot be denied but by the plea of nul tiel record; and when congress gave the effect of a record to the judgment it gave all the collateral consequences.There is no difficulty in the proof. It may be proved in the manner prescribed by the act, and such proof is of as high a nature as an inspection, by the Court, of its own record, or as an exemplification would be in any other Court of the same state. Had this judgment been sued in any other Court of New York, there is no doubt that nil debet would have been an inadmissible plea. Yet the same objection might be urged that the record could not be inspected. The law however is undoubted  that an exemplification would in such case be decisive. The original need not be produced. \nAnother objection is that the act cannot have the effect contended for, because it does not enable the Courts of another state to issue executions directly on the original judgment. This objection, if it were valid, would equally apply to every other Court of the same state where the judgment was rendered. But it has no foundation. The right of a Court to issue execution depends upon its own powers and organization.  Its judgments may be complete and perfect and have full effect independent of the right to issue execution. \nThe last objection is, that the act does not apply to Courts of this district. The words of the act afford a decisive answer, for they extend \"to every Court within the United States.\" \nWere the construction contended for by the Plaintiff in error to prevail, that judgments of the state Courts ought to be considered prima facie evidence only, this clause in the constitution would be utterly unimportant and illusory. The common law would give such judgments precisely the same effect. It is manifest however that the constitution contemplated a power in congress to give a conclusive effect to such judgments. And we can perceive no rational interpretation of the act of congress, unless it declares a judgment conclusive when a Court of the particular state where it is rendered would pronounce the same decision. \nOn the whole the opinion of a majority of the Court is that the judgment be affirmed with costs. \nDissent by:", " \nOpinion \n\n \n \n  STORY, J. delivered their opinion as follows, (MARSHALL Ch. J. and TODD J. being absent.) \nThe first question is, whether lord Fairfax was proproprietor of, and seized of the soil of the waste and unappropriated lands in the Northern Neck, by virtue of the royal grants, 2 Charles,  2 and 4 James 2, or whether he had mere seignoral rights therein as lord paramount, disconnected from all interest in the land, except of sale or alienation. \nThe royal charter expressly conveys all that entire tract, territory, and parcel of land, situate, &c. together with the rivers, islands, woods, timber, &c. mines, quarries of stone and coal, &c. to the grantees and their heirs and assigns, to their only and behoof, and to no other use, intent or purpose whatsoever. \nIt is difficult to conceive terms more explicit than these to vest a title and interest in the soil itself. The land is given, and the exclusive use thereof, and if the union of the title and the exclusive use do not constitute the dominium directum & utile, the complete and absolute dominion in property, it will not be easy to fix any which shall constitute such dominion. \nThe ground of the objection would seem to have been, that the royal charter had declared that the grantees should hold of the king as tenants in capite, and that it proceeded to declare that the grantees and their heirs and assigns should have power \"freely and without molestation of the king, to give, grant, or by any ways or means sell or alien  all and singular the granted premises, and every part and parcel thereof, to any person or persons being willing to contract for and buy the same,\" which words were to be considered as restrictive or explanatory of the preceding words of the charter, and as confining the rights granted to the mere authority to sell or alien. \nBut it is very clear that this clause imposes no restriction or explanation of the general terms of the grant. As the grantees held as tenants in capite of the king, they could not sell or alien without the royal license, and if they did, it was in ancient strictness an  absolute forfeiture of the land. 2 Ins. 66; and after the statute 1 Edw. 3 ch. 12, though the forfeiture did not attach, yet a reasonable fine was to be paid to the king upon the alienation. 2 Ins. 67. Staundf. Prer. 27. 2 Bl. Com. 72. It was not until ten years after the first charter, ( 12 Ch. 2 ch. 24,) that all fines for alienations and tenures of the king in capite were abolished. 2 Bl. Com. 77. So that the object of this clause was manifestly to give the royal assent to alienations without the claim of any fine therefor. \nWe are therefore satisfied, that by virtue of the  charter and the intermediate grants, lord Fairfax at the time of his death, had the absolute property of the soil of the land in controversy, and the acts of ownership exercised by him over the whole waste and unappropriated lands, as stated in the case, vested in him a complete seizin and possession thereof. Even if there had been no acts of ownership proved, we should have been of opinion, that as there was no adverse possession, and the land was waste and unappropriated, the legal seizin must be, upon principle, considered as passing with the title. \nOn this point we have the satisfaction to find, that our view of the title of lord Fairfax seems incidentally confirmed by the opinion of the Court of appeals of Virginia, in Picket v. Dowdell, 2 Wash. 106. Johnson v. Buffington, 2 Wash. 116, and Curry v. Burns, 2 Wash. 121. \nThe next question is as to the nature and character of the title which Denny Fairfax took by the will of lord Farifax, he being, at the time of the death of lord Fairfax, an alien enemy. \nIt is clear by the common law, that an alien can take lands by purchase, though not by descent; or in other words he cannot take by the act of law, but he may by the act of the  party. This principle has been settled in the year books, and has been uniformly recognized as sound law from that time. 11 Hen. 4, 26. 14, Hen. 4, 20. Co. Litt. 2 b. Nor is there any distinction, whether the purchase be by grant or by devise. In either case, the estate vests n the alien. Pow. Dev. 316, &c. Park.  Rep. 144. Co. Litt. 2 b. not for his own benefit, but for the benefit of the state; or in the language of the ancient law, the alien has the capacity to take, but not to hold lands, and they may be seized into the hands of the sovereign. 11 H. 4, 26. 14 H. 4, 20. But until the lands are so seized, the alien has complete dominion over the same. He is a good tenant of the freehold in a precipe on a common recovery. 4 Leon 84. Goldsb. 102. 10 Mod. 128. And may convey the same to a purchaser. Sheafe v. O'Neile, 1 Mass. Rep. 256. Though Co. Litt. 52 b, seems to the contrary, yet it must prebably mean that he can convey a defeasible estate only, which an office found will divest. It seems indeed to have been held, that an alien cannot maintain a real action for the recovery of lands.Co. Lit. 129 b. Thel. Dig. ch. 6. Dyer, 2. b. but it does not then follow that  he may not defend, in a real action, his title to the lands against all persons but the sovereign. \n We do not find that in respect to these general rights and disabilities, there is any admitted difference between alien friends and alien enemies. During the war, the property of alien enemies is subject to confiscation jure belli, and their civil capacity to sue is suspended. Dyer, 2 b. Brandon v. Nesbitt, 6 T.R. 23. 3 Bos. & Pull. 113. 5 Rob. 102. But as to capacity to purchase, no case has been cited in which it has been denied, and in The Attorney General v. Wheeden & Shales, Park. Rep. 267, it was adjudged that a bequest to an alien enemy was good, and after a peace might be enforced. Indeed the common law in these particulars seems to coincide with the Jus Gentium. Bynk. Quest. Pub. Jur. ch. 7. Vattel, b. 2, ch. 8, § 112, 114. Grot. lib. 2, ch. 6, § 16. \nIt has not been attempted to place the title of Denny Fairfax upon the ground of his being an antenatus, born under a common allegiance before the American revolution, and this has been abandoned upon good reason; for whatever doubts may have been formerly entertained, it is now settled that a British subject  born before, cannot, since the revolution, take lands by descent in the United States. 4 Cranch, 321, Dawson's Lessee v. Godfrey. \nBut it has been argued, that although D. Fairfax  had capacity to take the lands as devisee, yet he took to the use of the commonwealth only, and had therefore but a momentary seizin; that in fact he was but a mere trustee of the estate at the will of the commonwealth, and that by operation of law, immediately upon the death of the testator, lord Fairfax, the title vested in the commonwealth, and left but a mere naked possession in the devisee. \nIf we are right in the position, that the capacity of an alien enemy does not differ in this respect from an alien friend, it will not be easy to maintain this argument. It is incontrovertibly settled upon the fullest authority, that the title acquired by an alien by purchase, is not divested until office found. The principle is founded upon the ground, that as the freehold is in the alien, and he is tenant to the lord of whom the lands are holden, it cannot be divested out of him but by some notorious act, by which it may appear that the freehold is in another. 1 Bac. Abr. Alien C. p. 133. Now an  office of entitling is necessary to give this notoriety, and fix the title in the sovereign. So it was adjudged in Page's case, 5 Co. 22, and has been uniformly recognized. Park. Rep. 267. Park. 144. Hob. 231. Bro. Denizen, pl. 17. Co. Litt. 2. b. And the reason of the difference, why, when an alien dies, the sovereign is seized without office found, is because otherwise the freehold would be in abeyance, as an alien cannot have any inheritable blood. Nay even after office found, the king is not adjudged in possession, unless the possession were than vacant; for if the possession were then in another, the king must enter or seize by his officer, before the possession in deed shall be adjudged in him. 14 H. 7, 21. 15 H. 7, 6, 20. Staundf. Prerog. Reg. ch. 18, p. 54. 4 Co. 58. a. And if we were to yield to the authority of Staundford. (Prer. Reg. ch. 18, p. 56,) that in the case of alien enemy, the king \"ratione guerrae,\" might seize without office found, yet the same learned authority assures us, \"that the king must seize in those cases, ere he can have an interest in the lands, because they be penal towards the party.\" 4 Co. 58. b. And until the king be in possession by office  found, he cannot grant lands which are forfeited by alienage. Staundf. Pre. Reg. ch. 18. f. 54. Stat. 18 Hen. 6, ch. 6. \n To apply these principles to the present case, Denny Fairfax had a complete, though defeasible title, by virtue of the devise, and as the possession was either vacant or not adverse, of course the law united a seizin to his title in the lands in controversy; and this title could only be divested by an inquest of office, perfected by an entry and seizure where the possession was not vacant. And no grant by the commonwealth, according to the common law, could be valid, until the title was, by such means, fixed in the commonwealth. It is admitted that no entry or seizure was made by the commonwealth \"ratione guerrae\" during the war. It is also admitted, that no inquest of office was ever made pursuant to the acts on this subject at any time. And it would seem therefore to follow, upon common law reasoning, that the grant to the lessor of the original Plaintiff, by the public patent of 30th April, 1789, issued improvidently and erroneously, and passed nothing. And if this be true, and there be no act of Virginia altering the common law, it is quite  immaterial what is the validity of the title of the original Defendant as against the commonwealth; for the Plaintiff must recover by the strength of his own title, and not by the weakness of that of his adversary. \nBut it is contended, 1st, That the common law as to inquests of office and seizure, so far as the same respects the lands in controversy, is completely dispensed with by statutes of the commonwealth, so as to make the grant to the original Plaintiff in 1789 complete and perfect -- And secondly, and further, if it be not so, yet as the devisee died pending the suit, the freehold was thereby cast upon the commonwealth without an inquest, and thus arises a retroactive confirmation of the title of the original Plaintiff, of which he may now avail himself. -- As to the first point we will not say that it was not competent for the legislature, (suposing no treaty in the way) by a special act to have vested the land in the commonwealth without an inquest of office for the cause of alienage. But such an effect ought not, upon principles of public policy, to be presumed upon light grounds; that an inquest of office should be made in cases of alienage, is a useful and important  restraint upon public proceedings. No part of the United States seems to have been more aware of its importance, or  more cautious to guard against its abolition, than the Courts of Virginia. It prevents individuals from being harassed by numerous suits introduced by litigious grantees. It enables the owner to contest the question of alienage directly by a traverse of the office. It affords an opportunity for the public to know the nature, the value, and the extent of its acquisitions pro defectu haeredis; and above all it operates as a salutary suppression of that corrupt influence which the avarice of speculation might otherwise urge upon the legislature. The common law, therefore, ought not to be deemed to be repealed, unless the language of  a statute be clear and explicit for this purpose. \nLet us now consider the several acts which have been referred to in the argument, from which we think it will abundantly appear that, during the war, the lands in controversy were never, by any public law, vested in the commonwealth. We dismiss, at once, the act of 1777, ch. 9, and of 1779, ch. 14, as they are restrained to estates held by British subjects at the  times of their respective enactments, and do not extend to estates subsequently acquired. \nThe next act is that of 1782, ch. 8, the 24th sec. after reciting that \"since the death of the late proprietor of the Northern Neck, there is reason to suppose that the said proprietorship hath descended upon alien enemies,\" enacts, that persons holding lands in said Neck, shall retain sequestered in their hands, all quit rents which were then due, until the right of descent should be more fully ascertained; and that all quit rents, thereafter to become due, shall be paid into the public treasury, and the parties exonerated from the future claim of the proprietor. Admitting that this section, as to the quit rents, was equivalent to an inquest of office; it cannot be extended, by construction, to include the waste lands of the proprietor. Neither the words, nor the intention, of the legislature would authorize such a construction -- But it may well be doubted if, even as to the quit rents, the provision is not to be considered as a sequestration jure belli, rather than a seizure for alienage -- for it proceeds on the ground, that the property \"had descended, not upon aliens, but alien enemies.  So far as the treaty of peace might be deemed material in the case, this distinction would deserve consideration,\" \n The next is the act of 1782, ch. 33, which, after reciting that \"the death of lord Fairfax may occasion great inconvenience to those who may incline to make entries for vacant lands in the Northern Neck, proceeds (sec. 3.) to enact, that all entries made with the surveyors, &c. and returned to the office formerly kept by lord Fairfax, shall be held as good and valid as those heretofore made under his direction, \"until some mode shall be taken up and adopted by the General Assembly, concerning the territory of the Northern Neck.\" This act, so far from containing in itself any provision for vesting all the vacant lands of lord Fairfax in the commonwealth, expressly reserves, to a future time, all decisions as to the disposal of the territory. -- It suffers rights and titles to be acquired exactly in the same manner, and with the same conditions, which lord Fairfax had by permanent regulations prescribed in his office. -- No other acts were passed on the subject during the war. \nWe are now led to consider the act of 1785, ch. 47 -- which has presented some difficulty,  if it stand unaffected by the treaty of peace. The 4th sec. after a recital \"that since the death of the late proprietor, no mode hath been adopted to enable those who had before his death made entries within the said district according to an act, &c. (act 1782, ch. 33) to obtain titles to the same,\" enacts that in all cases of such entries, grants shall be issued by the commonwealth to the parties in the same manner, as by law is directed in cases of other unappropriated lands -- The 5th sec. then declares that the unappropriated lands within the Northern Neck should be subject to the same regulations, and be granted in the same manner, and caveats should be proceeded upon, tried and determined, as is by law directed, in cases of other unappropriated lands belonging to the commonwealth. The 6th sec. extinguishes for the future all quit rents. \nThe patent of the original Plaintiff issued pursuant to the 5th sec. of this act. \nIt has been argued, that the act of 1785 amounts to a legislative appropriation of all the lands in controversy. That it must be considered as completely divesting the title of Denny Fairfax for the cause of alienage, and  vesting it in the commonwealth  -- After the most mature reflection, we cannot subscribe to the argument -- In acts of sovereignty so highly penal, it is against the oridinary rule to enlarge, by implication and inference, the extent of the language employed. It would be to declare purposes which the legislature have not chosen to avow, and to create vested estates, when the common law would pronounce a contrary sentence, and the guardians of the public interests have not expressed an intention to abrogate that law. If the legislature have proceeded upon the supposition that the lands were already vested in the commonwealth, we do not perceive how it helps the case. If the legislature, upon a mistake of facts, proceed to grant defective titles, we know of no rule of law which requires a Court to declare, in penal cases, that to be actually done which ought previously to have been done. Perhaps as to grants under the 4th sec. where entries under the act of 1782, ch. 33, it might not be too much to hold, that such grants conveyed no more than the title of the commonwealth, exactly in the same state as the commonwealth itself held it, viz. an inchoate right, to be reduced into possession and consummated by a suit  in the nature, or with the effect, of an inquest of office. But we give no opinion on this point, because the patent of the original Plaintiff manifestly issued under the succeeding section -- and upon a construction, which we give to this section, it issued improvidently and passed no title whatever. -- That construction is, that the unappropriated lands in the Northern Neck should be granted in the same manner as the other lands of the commonwealth, when the title of the commonwealth was perfected by possession. It seems to us difficult to contend, that the legislature meant to grant mere titles and rights of entry, of the commonwealth, to lands in the same manner as it did lands of which the commonwealth was in actual possession and seizin. -- It would be selling suits and controversies through the whole country, and enacting a general statute in favor of maintenance, an offence which the common law has denounced with extraordinary severity. Consistent therefore with the manifest intention of the legislature, grants were to issue for lands in the Northern Neck, precisely in the same manner as for lands in other parts of the state, and under the same  limitation, viz.  that the commonwealth should have, at the time of the grant, a complete title and seizin. \nWe are the more confirmed in this construction by the act concerning escheators, (act 1779, ch. 45,) which regulates the manner of proceeding in cases of escheat, and was by a subsequent  act. (act 1785, ch. 53,) expressly extended to the counties in the Northern Neck. This act of 1779 expressly prohibits the granting of any lands, seized into the hands of the commonwealth upon office found, till the lapse of twelve months after the return of the inquisition and verdict into the office of the general Court, and afterwards authorizes the proper escheator to proceed to sell in case no claim should be filed, within that time, and substantiated against the commonwealth. It is apparent, from this act, that it was not the intention of the legislature to dispose of lands, accruing by escheat, in the same manner as lands to which the commonwealth already possessed a perfect title. It has not been denied that the regulations of this act were designed to apply as well to titles accruing upon alienage, (which are not in strictness, escheats,) as upon forfeitures for other causes; and, but  for the act of 1785, ch. 47, we do not perceive but that the vacant lands were, by the devise of lord Fairfax, in the Northern Neck, would have been completely within the act regulating proceedings upon escheats. \nThe real fact appears to have been, that the legislature supposed that the commonwealth were in actual seizin and possession of the vacant lands of lord Fairfax, either upon the principle that an alien enemy could not take by devise, or the belief that the acts of 1782, ch. 8, and ch. 33, had already vested the property in the commonwealth. In either case it was a mistake which surely ought not to be pressed to the injury of third persons. \nBut if the construction, which we have suggested, be incorrect, we think that, at all events, the title of Hunter, under the grant of 1789, cannot be considered as more extensive than the title of the commonwealth, viz. a title inchoate and imperfect; to be consummated by an actual entry under an inquest of office, or its equivalent, a suit and judgment at law by the grantee. \n This view of the acts of Virginia, renders it wholly unnecessary to consider a point, which has been very elaborately argued at the bar, whether the  treaty of peace, which declares \"that no future confiscations shall be made,\" protects from forfeiture, under the municipal laws respecting alienage, estates held by British subjects at the time of the ratification of that treaty. -- For we are well satisfied that the treaty of 1794 completely protects and confirms the title of Denny Fairfax, even admitting that the treaty of peace left him wholly unprovided for. \nThe 9th article is in these words: \"It is agreed that British subjects who now hold lands in the territories of the United States, and American citizens who now hold lands in the dominions of his majesty, shall continue to hold them according to the nature and tenure of their respective estates and titles therein; and may grant, sell or devise the same to whom they please in like manner as if they were natives, and that neither they nor their heirs or assigns shall, so far as respects the said lands and the legal remedies incident thereto, be considered as aliens.\" \nNow, we cannot yield to the argument that Denny Fairfax had no title, but a mere naked possession or trust estate. In our judgment, by virtue of the devise to him, he held a fee simple in his own right. At the  time of the commencement of this suit (in 1791) he was in complete possession and seizin of the land. That possession and seizin continued up to and after the treaty of 1794, which being the supreme law of the land, confirmed the title to him, his heirs and assigns, and protected him from any forfeiture by reason of alienage. \nIt was once in the power of the commonwealth of Virginia, by an inquest of office or its equivalent, to have vested the estate completelyin itself or its grantee. But it has not so done, and its own inchoate title (and of course the derivative title, if any, of its grantee) has by the operation of the treaty become ineffectual and void. \nIt becomes unnecessary to consider the argument as to the effect of the death of Denny Fairfax pending the  suit, because admitting it to be correctly applied in general, the treaty of 1794 completely avoids it. The heirs of Denny Fairfax were made capable in law to take from him by descent, and the freehold was not, therefore, on his death, cast upon the commonwealth. \nOn the whole, the Court are of opinion that the judgment of the Court of appeals of Virginia ought to be reversed, and that the judgment of the  District Court of Winchester be affirmed with costs, &c. \nDissent by:", " \nOpinion \n\n \n \n  STORY, J. delivered the opinion of the Court as follows: \nThe present action was brought by the Plaintiffs  in error as joint owners of the brig Active and cargo to compel the Defendant who was master of the said brig to account for the proceeds of said cargo, which was sold during a voyage to the West Indies. Young owned three eighths, Deblois three eighths, and Lawrason two eighths of the cargo. \n At the trial upon the general issue several exceptions were taken by the Plaintiffs, which have been argued, and we are now to pronounce our decision respecting their validity. \nThe Defendant offered in evidence a record of a former suit between the same parties, in which judgment was rendered for the Defendant, supported by parol proof that the former suit was for the same cause of action as the present suit. The Plaintiffs denied its admissibility under the general issue; and we are all of opmion that the objection cannot be supported. \nIt has been long since established that under non assumpsit the Defendant may give in evidence any thing which shows that no debt was due at the time when the action was commenced, whether it arise from an inherent defect in the original promise or a subsequent discharge and satisfaction. And the precise point now in controversy has been adjudged  to be completely within the rule. If the former judgment had been for the Plaintiff, there would be no doubt that it would have extinguished the demand; and it is not less conclusive because it was for the Defendant. The controversy had passed in rem judicatam, and the identity of the causes of action being once established, the law would not suffer them again to be drawn into question. \nThe second exception was taken to the decision of the Court admitting evidence to show that the Defendant had a subinterest in that portion of the joint cargo which belonged to Lawrason -- an interest which was not proved to have been known to or acknowledged by the other owners. And we are all of opinion that the Circuit Court erred in admitting that evidence. The other owners had nothing to do with any private contract between Lawrason and the Defendant. Any right of retainer which the latter might have against Lawrason could be enforced only in an action against Lawrason himself; but it offered no legal defence to the express contract proved to have been made with all the joint owners. It might have been contended with as much propriety that the Defendant was entitled in such an action to  a set off of a separate debt due from either of the owners. Nor is there any equity in such a claim  against the Plaintiffs. As joint owners they had a lien upon the proceeds for the general balance between them; and had a right to have them applied in the first instance in discharge of the joint debts. Whether, after a final settlement of the accounts of the voyage, any thing would have been due to Lawrason does not appear; and yet this evidence, admitted as it was, would have applied the general property to discharge his private contracts, although the joint account might have finally turned out against him. We hold it a sound rule of law, that a joint contract can never be defeated by the mere private contract of an individual of the concern, to whom the other parties have confided no authority for this purpose. Our opinion on this exception disposes also of the third, which is taken to parol evidence offered to show the acknowledgment of Lawrason of the subinterest of the Defendant. \nThe last exception is of a novel character. The Plaintiffs upon the whole evidence offered to demur, and prayed the Court to compel the Defendant to join in the demurrer. The Court  refused to do this, and in our opinion their refusal was perfectly correct. \nA demurrer to evidence is an unusual proceeding, and is allowed or denied by the Court in the exercise of a sound discretion under all the circumstances of the case. The party demurring is bound to admit as true, not only all the facts proved by the evidence introduced by the other party, but also all the facts which that evidence legally may conduce to prove. It follows that it onght never to be admitted where the party demurring refuses to admit the facts which the other side attempts to prove; and it would be as little justifiable where he offers contradictory evidence, or attempts to establish inconsistent propositions. In the present case the Plaintiffs admit that they denied the whole defence of the Defendant, and offered evidence to contradict the evidence by which that defence was attempted to be supported. There would therefore have been the most manifest impropriety in acceding to the prayer of the Plaintiffs. \nThe Court give no opinion whether a refusal to compel a party to join in a demurrer to evidence can in any case be assigned for error. \n On the whole, for the error of the Circuit  Court in admitting the evidence disclosed under the second and third exceptions,  the judgment must be reversed and the cause remanded with directions to award a venire facias de novo. \nConcur by:", " \nOpinion \n\n \n \n  STORY, J. delivered the opinion of the Court as follows: \nThe Plaintiff in this case contends, that there was a total loss, which authorized an abandonment by both of the perils stated in the declaration viz. \n1st. By the perils of the seas, and \n2d. By barratry of the master. \nAnd first, as to a total loss by the perils of the seas \n It seems now clear that a technical total loss may arise from the mere deterioration of a cargo by any of the perils insured against, if the deterioration be ascertained at an intermediate port, of necessity, short of the port of destination. In such case, although the ship be in a capacity to perform the voyage, yet if the voyage be not worth pursuing,  or the thing insured be so damaged and spoiled as to be of little or no value, the insured has a right to abandon the projected adventure, and throw upon the underwriter the unprofitable and disastrous subject of insurance. It has therefore been held, that if a cargo be damaged in the course of the voyage, and it appear that what has been saved is less in value than the amount of the freight, it is a clear case of a total loss. It does not, however, appear that the exact quantum of damage which shall authorize an abandonment as for a total loss, has ever become the direct subject of adjudication in the English Courts. The celebrated treatise Le Guidon, ch. 7, art. 1, considers that a damage exceeding the moiety of the value of the thing insured, is sufficient to authorize an abandonment. This rule has received some countenance from more recent elementary writers; and, from its public convenience and certainty, has been adopted as the governing principle in some of the most respectable commercial states in the union; and perhaps is now so generally established as not easily to be shaken. 1, John. c. 141. 1, John. R. 335, 406. Marsh. Ins. 562. Note 92, Am. edit. 1810. Park, 194,  6 edition. \nBut this rule has never been deemed to extend to a cargo consisting wholly of memorandum articles. The legal effect of the memorandum is to protect the underwriter from all partial losses; and if a loss by deterioration, exceeding a moiety in value, would authorize an abandonment, the great object of the stipulation would be completely evaded. It seems, therefore, to be the settled doctrine that nothing short of a total extinction, either physical or in value, of memorandum articles at an intermediate port, would entitle the insured to turn the case into a total loss, where the voyage is capable of being performed. And perhaps, even as to an extinction in value, where the commodity specifically remains, it may yet be deemed not quite settled whether.  under the like circumstances, it would authorize an abandonment for a total loss. Dyson v. Rowcroft, 3, Bos. and Pull. 474. Maggrath v. Church, 1, Caines R. 212. Cocking v. Frazer, Marshall, 227. Park, 152, 6th edition. \nThe case before the Court is of a mixed character. It embraces articles of both descriptions; some within and others without the purview of the memorandum. If, in such a case, a deterioration  exceeding a moiety in value, be a proper case of technical total loss, it will follow that, in many cases, the underwriter will, indirectly, be rendered responsible for partial losses on the memorandum articles. Suppose, in such a case, the damage of the memorandum articles were 40 per cent. and to the other articles 10 per cent. in the whole amounting to half the value of the cargo, the underwriter would be responsible for the technical total loss, and thereby made to bear the whole damage, from which the memorandum meant to exempt him. Indeed cases might arise in which the damage might exclusively fall on memorandum articles; and if it exceeded the moiety, in value, of the whole cargo, might load him with the burthen of a partial loss, in manifest contravention of the intention of the parties. A construction which leads to such a consequence cannot be admitted unless it be unavoidable. And we are entirely satisfied that such a construction ought not to prevail. The underwriter is, in all cases of deterioration, entitled to an exemption from  partial losses on the memorandum articles; and in order to effectuate this right, it is necessary, where a technical total loss  is sought to be maintained upon the mere ground of deterioration of the cargo, at an intermediate port, to a moiety of its value, to exclude from that estimate all deterioration of the memorandum articles. Upon this principle, on a cargo of a mixed character, no abandonment for mere deterioration in value during the voyage, can be valid, unless the damage on the non-memorandum articles exceed a moiety of the value of the whole cargo including the memorandum articles. The case is considered, as to the underwriter, the same as though the memorandum articles should exist in their original sound state. In this way, full effect is given to the contract of the parties. The underwriter  is never made responsible for partial losses on memorandum articles, however great; and the technical total losses for which alone he can be liable, are such as stand unaffected by the perishable nature of the commodity which he insures. \nIn the present case, the facts alleged by the Plaintiff do not show a depreciation of a moiety in value, excluding the memorandum articles. There is no evidence of the quantum of depreciation of any part of the cargo. The forced sales at Antigua could not,  under the circumstances, constitute a medium by which to ascertain it. Admitting, therefore, the rule to be correct, that the party had a right to abandon where the depreciation exceeds a moiety of the value, the Plaintiff has not brought himself within that rule as applied to a cargo of a mixed character like the present. The Court below were right, therefore, in deciding that there was no total loss proved by the perils of the seas. \nThe next question is, whether there was a total loss by the barratry of the master. And this depends exclusively upon the consideration, who was owner of the brig for the voyage; for it is conceded, on all sides, that the conduct of the master was barratrous, if he was in a situation to commit that offence. Barratry is an act committed by the master or mariners of a ship, for some unlawful or fraudulent purpose, contrary to their duty to their owners, whereby the latter sustain an injury. It follows, therefore, from the very terms of the definition, that it cannot be committed by a master who is owner for the voyage; because he cannot commit a fraud against himself. But it may be committed against a person who is owner for the voyage, although  he may not be the general owner of the ship. A person may be owner for the voyage, who, by a contract with the general owner, hires the ship for the voyage, and has the exclusive possession, command and navigation of the ship. Such is understood to have been the case of Vallejo v. Wheeler, Cowp. 143. But where the general owner retains the possession, command and navigation of the ship, and contracts to carry a cargo on freight for the voyage, the charter party is considered as a mere affreightment sounding in covenant, and the freighter is not clothed with the character  or legal responsibility of ownership; such was the case of Hooe & Co. v. Groverman in this Court, 1 Cr. 214. In the first case, the general freighter is responsible for the conduct of the master and mariners during the voyage; in the latter case, the responsibility rests on the general owner. On examining the charter-party in the present case, there can be no doubt, from the terms and stipulations, that it falls within the latter class of cases. The master, who was the general owner, retained the exclusive possession, command and management of the vessel, and she was navigated at his expense during  the voyage. The whole charter party, except the introductory clause, sounds merely in covenant. The ownership was no divested by the covenant of affreightment, and, consequently, the master was incapable of committing barratry. There was, then, no total loss on the second count in the declaration. \nThe opinion of the Circuit Court on this exception must be sustained. But there are other exceptions on the record, in which it is admitted by the parties that the Circuit Court erred. The points intended to be raised in these exceptions have, in effect, being decided by this Court in Caze and Richaud v. The Baltimore Insurance Company, at Feb. term, 1813. For the errors in these exceptions the judgment must be reversed, with directions to the Circuit Court to award a venire facias de novo. \n \n\n ", " \nOpinion \n\n \n \n  STORY, J. after stating the facts of the case, delivered the opinion of the Court as follows: \nThe Court below, at the trial, held that  the Plaintiff, under the circumstances, was not entitled to abandon as for a total loss; and the correctness of that opinion remains for the decision of this Court. \nWhether the turning away of a ship from the port of destination in consequence of a blockade, be, in any case, a good cause for abandonment, so as to entitle the assured to recover from the underwriter as for a total loss by the breaking up of the voyage; and, if so, whether the doctrine could apply to a policy with a warranty of neutrality, the legal effect of such warranty being to compel the party to abandon the voyage, if it cannot be pursued consistent with neutrality, are questions of great importance, upon which the Court do not think it necessary to express any opinion, because this cause may well be decided upon an independent ground. \nThe loss of the voyage, in the case at bar, was occasioned (if at all) by the arrest and restraint of the British blockading squadron. The right to blockade an enemy's port with a competent force, is a right secured to every belligerent by the law of nations. No neutral can, after knowledge of such blockade, lawfully enter, or attempt to enter, the blockaded port. It would be  a violation of neutral character, which, according to established usages, would subject the property engaged therein to the penalty of confiscation.In such a case, therefore, the arrest and restraint of neutral ships attempting to enter the port is a lawful arrest and restraint by the blockading squadron. It would follow, therefore, from this consideration, that the arrest and restraint, on account of which a recovery is now sought, is not a risk within the policy against which the under writer has engaged to indemnify the Plaintiff. \n But it is contended by the counsel for the Plaintiff, in order to escape from this conclusion, that the word \"unlawful,\" in the policy, is confined in its operation to arrests, and does not extend to \"restraints and detainments.\" To this construction the Court cannot assent. The grammatical order of the words and the co-herence of the sentence require a different construction. It is not against every \"unlawful arrest\" that the underwriter undertakes to indemnify, but against \"unlawful arrests, &c. of all kings, princes, and people,\" which have always been held to mean the arrests of kings, princes, or people, in their sovereign and national  capacity, and not as individuals. The necessary connexion of the sentence, therefore, requires that \"arrests, restraints and detainments,\" should be coupled together; and, if so, the qualification of undawful must be annexed to them all. The intent of the parties, also, urges to the same conclusion; for every arrest is a restraint and detainment; and it would be strange if the party could, under the allegation of a restraint, recover a loss from which the underwriter is expressly  exempted by an unambiguous exception in the policy. \nOn the whole, the Court are of apinion that the judgment of the Circuit Court must be affirmed. \n \n\n ", " \nOpinion \n\n \n \n STORY, J. delivered the opinion of the Court as follows: \nThe single point in this case is whether the Circuit Court of the district of Columbia, erred in rejecting the deposition of Tunis Craven. \nIndependant of all other grounds, the Court are of opinion that the fact of the depositions, not having been opened in Court, is a fatal objection. \nThe statute of 24th September, 1789, ch. 20, sec. 30, is express on this head. \nThe judgment of the Circuit Court must be affirmed. \n \n\n ", " \nOpinion \n\n \n \n  STORY, J. after stating the case, delivered the opinion of the Court as follows: \nIt is contended by the Plaintiffs in error that the direction of the Circuit Court was erroneous, 1. Because the Plaintiffs' intestate had a good and valid title to the land surveyed under his patent, and was, therefore, entitled under the 5th section of the Maryland statute of 1791, to the money received by the Defendant's intestate therefor. 2. That this right was not barred by the statute of limitations. \n In support of the first point the Plaintiffs contend that the land belonging to the state did not, by the cession of the territorial jurisdiction under the statute of 1791, pass to the United States, and was consequently liable to be appropriated by individuals under warrants pursuant to the laws of Maryland. That until 1801 the jurisdiction of Maryland continued over the whole ceded territory; and titles, therefore, might legally be acquired therein according to the public laws: and the patent of Beatty, being obtained in pursuance of those laws, gave him a complete and valid title. \nOn the other hand the Defendant denies each of these positions, and further contends, that the Plaintiffs are without the purview of the 5th section of the act of 1791, because that section extends only to titles then existing, and Beatty's title did not commence until April, 1792. \nIt is not necessary to consider the correctness of the positions urged by the respective parties as to this point, because we are of opinion that the case may well be decided upon the second point. \nThe action for money had and received is clearly embraced by the statute of limitations; and it is incumbent upon the Plaintiffs  to show that the present case forms an exception to its operation. \nIt is contended that the present suit, being a statute remedy, is not within the purview of the statute of limitations.  But we know of no difference in this particular between a common law and statute right. Each must be pursued according to the general rule of law, unless a different rule be prescribed by statute; and where the remedy is limited to a particular form of action, all the general incidents of that action must attach upon it. Upon any other construction it would follow that the case would be without any limitation at all; for it would be quite impossible, upon any acknowledged principles, when a right had assumed the shape of a claim in personam, to attach to it a limitation which exclusively applied  to the reality. Now the statute of limitations has been emphatically declared a statute of repose, and we should not feed at liberty to break in upon its general construction by allowing an exception which has not acquired the complete sanction of authority. \nIt is further contended, that by the operation of the act of 1791, ch. 45, Burns must be considered as a mere trustee of  Beatty, and trusts are not within the statute of limitations. We are of a different opinion. The land in controversy was claimed by Burnes in his own right, and adversely to the Plaintiffs' intestate.The money was received by him for his own use and in his own right as an original proprietor. He never admitted or acknowledged the title of the Plaintiff, and no claim or demand was ever made upon him in his life time. So far then from being received in trust, it was expressly received under a peremptory denial of any trust or right in the opposite party. Nor was the statute meant to make the adverse possessor without title a trustee for the party having title. It only substituted the action of assumpsit for the ordinary legal remedy by ejectment; and the adverse possessor of the land could no more be deemed a trustee of the money, than he could be deemed a trustee of the land itself, for the benefit of the rightful owner, against whom he held by an adverse title. \nThe Court are, therefore, of opinion that the statute of limitations is a good bar, and, therefore, that the judgment must be affirmed. \n \n\n ", " \nOpinion \n\n \n \n STORY, J. delivered the opinion of the Court as follows: \nThe principal question in this case is, whether goods and merchandize, the importation of which into the United States was prohibited by the act of 18th of April, 1806, vol. 8, p. 80, were within the purview of the 50th section of the collection act of 2d of March, 1799, vol. 4, p. 360, so that the unlading of them without a permit, &c. was an offence subjecting them to forfeiture. \nIt has been contended on behalf of the claimant that they were not within the purviow of the 50th section, because that section applies only to goods, wares and merchandize, the importation of which is lawful. To this construction the Court cannot yield assent. The language of the 50th section is, that \"no goods, wares or merchandize, &c. shall be unladen, &c. without a permit;\" it  is therefore broad enough to cover all goods, whether lawful or unlawful. The case, being then within the letter, can be extracted from forfeiture only by shewing that it is not within the spirit of the section. To us it seems clear that the case is within the policy and mischief of the collection act, since the necessity of a permit is some check upon unlawful importations, and is one reason why it is required. The act of 1806 does not profess to repeal the 50th section of the collection act as to the prohibited goods, and a repeal by implication ought not to be presumed unless from the repugnance of the provisions the inference be necessary and  unavoidable. No such manifest repugnance appears to the court. The provisions may well stand together and indeed serve as mutual aids. \nIn fact the very point now presented was decided by this court in the case of Locke, claimant, v. the United States, at February term 1813. \nThe judgment of the Circuit Court is affirmed with costs. \n \n\n ", " \nOpinion \n\n \n \n  STORY, J. delivered the opinion of the Court as follows: \n The facts of this case, and the grounds upon which a decree of condemnation was pronounced in the Circuit Court, fully appear in the opinion of that Court which accompanies this record. That opinion has been submitted to my brethren, and a majority of them concur in the decree of condemnation, upon the reasons and principles therein stated. It is not thought necessary to repeat those reasons and principles in a more formal manner; it is sufficient to declare as the result of them, that we hold, that the sailing on a voyage under the license and passport of protection of the enemy, in furtherance of his views or intereste, constitutes such an act of illegality, as subjects the ship and cargo to confiscation as prize of war; and that the facts of the present case afford irrefragable evidence of such act of illegality. \nThe judgment of the Circuit Court is therefore affirmed  with costs. \nThe following is the opinion of the Circuit Court of Massachusetts referred to, in the foregoing opinion. \n\"The Julia and cargo were captured, as prize, by the United States' frigate Chesapeake, commanded by captain Evans, on the 31st December, 1812. From the preparatory evidence and documents it appears that she sailed from Baltimore, on or about the 31st October, 1812,  bound on a voyage to Lisbon, with a cargo of corn, bread and flour; and the capture took place on the return voyage to the United States. The vessel and cargo were documented as American, and as owned by the Claimants, who are American citizens. The vessel had on board sundry documents of protection from British agents, which were delivered up to the captors, and, together with the other ship's papers, were put on board of the prize, in the custody of the prize master; and these documents were the unquestionable cause of the capture. It appears that the American master and crew were left on board the prize, and, during the subsequent voyage to the United States, these British documents were taken from the custody of the prize master surreptitiously and without his knowledge as to the time  or manner: he alleged expressly that they were stolen, and this allegation seems  admitted by the master, in a supplementary affidavit, who, however, denies any knowledge or connexion in the transaction. The prize master took exact copies of these documents, for the purpose of sending them to the secretary of the nevy; which copies have been produced in Court, and verified by his affidavit. All the other original documents have been faithfully produced. Upon the examination of the master upon the stainding interrogatories, on the 18th February, 1812, although there are several interrogatories, and particularly the 16th and 27th, which point directly to the subject matter, he did not state the existence of any British document, passport, safeguard or protection; and, what is quite as remarkable, he expressly declared that he knew not upon what pretence nor for what reason the vessel and cargo were captured. It was not until after the time assigned for the trial, and on the 8th of March, 1813, that the master, by a supplementary affidavit, (which was admitted through great indulgence, and contrary to the general practice of prize Courts.) attempted to explain his omission,  and to vindicate his miscomduct. The apology is equally weak and futile. At the time when these examinations were taken, the interrogatories had been drawn up with care and deliberation. The commissioners were present to explain to the understanding of every man intent on truth, the meaning of any question which might appear obscure. The master was a part owner of the vessel and cargo, and the regular depository of all the papers connected with the voyage. It is utterly incredible that he should not recollect, on his examination, the existence of those British documents. They were put on board for the special safeguard and security of the vessel and cargo. Indeed, independent of them, the risque of the capture would have been immient. A master can never be admitted to be heard, in a prize Court, to aver his ignorance or forgetfulness of the documents of his ship.It is his duty to know what they are; and he cannot be believed ignorant of their contents, without overthrowing all the presumptions which govern in prize proceedings. Looking to the whole conduct of the master, seems to be irreconcilable with the rules of morality and fair dealing; and I have great difficulty in  exempting him from the imputation of being guilty of a wilful suppression of the truth. \n At the hearing, a preliminary objection was taken to the introduction of the copies of the British documents, upon the ground that the originals, as the best evidence, ought to be produced. The rule undoubtedly applies when the originals are in existence, and in the possession of control of the party. The extravordinary disappearance of these important papers, under the circumstances of this case, I can have little doubt was occasioned by a fraudulent substraction. There is no reason to impute this substraction to the prize master.The documents were to him a very important protection; they constituted the avowed reason of the capture, as the mate and some of the seamen testify. It is true that the master has declared that he knew not the pretence of capture; but it can hardly be believed that he could be ignorant of a fact which so materially affected his interest. I feel myself bound to make very unfavorable inferences against him; and if, in odium spoliatoris, I impute the substraction to some person on board connected with the voyage, and in the confidence of the master, it  is measuring out no injustice to one who appears to deem mis-statements and concealments no violent breach of good faith. I shall, therefore, admit the copies, verified as they are, as good evidence in these proceedings; and I will add, that if a single material fact in favor of the Claimants had depended upon the supplementary affidavit of the master, I should have felt myself compelled to repudiate it in order to vindicate the regularity of prize proceedings, and suppress the efforts of fraud to derive benefit from after thoughts and contrivances. These remarks are not made without regret; but public duty requires that manifest aberrations from moral propriety should not receive shelter in this Court. \nHaving disposed of this preliminary objection, I now proceed to consider the two questions which have been so ably discussed in this case. \n1st. Whether the use of an enemy's license or protection, on a voyage to a neutral country in alliance with the enemy, be illegal so as to affect the property with confiscation. \n2d. If not, whether the terms of the present license disinguish this case unfavorably from the general principle. \n The British documents which were on  board, and which, for conciseness, I have termed a license, are as follows: \nIt is tought unnecessary to insert these documents here, as they are to be found at length in the argument of the Claimant's counsel in the former part of this report. \nIn approaching the more general question which has been raised in this case, I am free to acknowledge that I fell no inconsiderable diffidence, both from the importance of the question, and the different opinions which eminent jurists have entertained respecting it: Nor am I insensible, als, that it has entered somewhat into political discussions, and awakened the applanse and zeal of some, and the denunciations of others, considered merely as a subject of national policy, and not of legal investigation. It has now become may duty to examine it; and, whatever may be my opinion, I feel a consolation that it is in the power of a higher tribunal to revise my errors, and award ample justice to the parties. \n At the threshold of this enquiry, I lay it down as a fundamental proposition, that strictly speaking, in war all intercourse between the subjects and citizens of the belligerent countries is illegal, unless sanctioned by the authority  of the government, or in the exericse of the rights of humanity. I am aware that the proposition is usually laid down in more restrieted terms by elementary writers, and is confined to commercial intercourse. Bynkershoek says, \"Ex natura billi, commercia inter hostes cessare, non est dubitandum. Quamvis nulla specialis sit commerciorum prohibitio, ipso tamen jure belli commercia esse vetita, ipose indictiones bellorum satis declarant.\" Bynk. Q.J.P. book 1, c. 3. And yet it seems not difficult to perceive that his reasoning extends to every species of intercourse. Valin, in his commentary on the French ordinance, speaking of the reason of requiring the aname and domicil in a policy, says, \"Est encore de connaitre, en temps de guerre, si malgre l'interdiction de commerce, qu' emporte toujours toute declaration de guerre, les sujects du Roi ne font point commerce avec les ennemis de l' Etat, ou avec des amis ou allies, par l'interposition desquels on ferait passer aux ennemis  des munitions de guerre et de bouche, ou d' autres effects prohibes; car tout cela, etant defendu comme prejudiciable a l' etat, serait sujet a confiscation, et a etre declare de bonne prise.\" Lib.  1, tit. 6, art. 3, p. 31. In another place, adverting to a case of neutral, allied, and French property on board an enemy ship, &c. he declares it subject to confiscation, because \"C' est favoriser le commerce de l' ennemi et faciliter le transport de ses denress et marchandises, ce qui ne peut convenir aux traits d' alliance ou de neutralite, encore moins aux sujets du Roi auxquels toute communication avec l' ennemi est etroitement defendu sur peine meme de la vie.\" Lib. 3, tit. 9, art. 7 p. 253. And Valin, Traite des Prises, chap. 5, sec. 5, p. 62. \nFrom this last expression it seems clear that Valin did not understand the interdiction as limited to mere commercial intercourse. In the elaborate judgment of sir W. Scott, in the Hoop, 1, Rob. 165, 196, the illegality of commercial intercourse is fully established as a doctrine of national law: but it does not appear that the case before him required a more extended examination of the subject. The black book of the admiralty contains an article which deems every intercourse with the public enemy an indictable offence. This article, which is supposed to be as old as the reign of Edw. III, directs the grand inquest \"Soit enquis de  tous ceux qui etnrecommunent, vendent ou achetent avec aucuns des enemis de notre Seigneur le Roi sans license special du Roi ou de son admiral.\" But, independent of all authority, it would seem a nesessary result of a state of war to suspend all regotiations and intercourse between the subjects of the belligerent nations. By the war every subject is placed in hostility to the adverse party. He is bound by every effort of his own to assist his own government, and to counteract the measures of its enemy. Every aid, therefore, by personal communication, or by other intercourse, which shall take off the pressure of the war, or foster the resources, or increase the comforts of the public enemy, is strictly inhibited. No contract is considered as valid between enemies, at least so far as to give them a remedy in the Courts of either government; and they have, in the language of the civil law, no ability to sustain a persona standi in judicio. The ground upon which a trading with the enemy  is prohibited, is not the criminal intentions of the parties engaged in it, or the direct and immediate injurty to the state. The principle is extracted from a more enlarged policy, which  looks to the general interests of the nations, which may be sacrified under the temptation of unlimited intercourse, or sold by the cupidity of corrupted averice. In the language of sir William Scott, I would ask, \"Who can be insensible to the consequences that might follow, if every person, in time of war, had a right to carry on a commercial intercourse with the enemy, and, under color of that, had the means of carrying on any other species of intercourse he might think fit? The inconvenience to the public might be extreme; and where is the inconvenience on the other side, that the merchant should be compelled, in such a situation of the two countries, to carry on his trade between them (if necessary) under the eye and control of the government charged with the care of the public safety?\" \nNor is there any difference between a direct intercourse between the enemy countries, and an intercourse through the medium of a neutral port.The latter is as strictly prohibited as the former. 4 Rob. 65, 79. The Jonge Pieter. \nIt is argued that the cases of trading with the enemy are not applicable, because there is no evidence of actual commerce; and an irresistible presumption arises from  the nature of the voyage to a neutral port, that no such trade is intended. If I am right in the position, that all intercourse, which humanity or necessity does not require, is prohibited, it will not be very material to decide whether there be a technical commerce or not. But is it clear, beyond all doubt, that no inference can arise of an actual commerce? The license is issued by the agents of the British government, and, I must presume, under its authority. It is sold (as it is stated) in the market; and if it be a valuable acquisition, the price must be proportionate.If such licenses be an article of sale, I beg to know in what respect they can be distinguished from the sale of merchandize? If purchased directly of the British government, would it not be a traffic with an enemy? If purchased indirectly, can it change the nature of the transaction? It has been said  that if purchased of a neutral, the trade in licenses is no more illegal than the purchase of goods of the enemy fabric bona fide, conveyed to neutrals. Perhaps this may, under circumstances, be correct: but I do not understand that the purchase of goods of enemy manufacture, and avowedly belonging  to an enemy, is legalized by the mere fact of the sale being made in a neutral port. The goods must have become incorporated into the general stock of neutral trade, before a belligerent can lawfully become a purchaser. If such licenses be a ligitimate article of sale, will they not enable the British government to raise a revenue from our citizens, and thereby add to their resources of war? Admit, however, that they are not so sold, but are a  measure of policy adopted by Great Britain to further her own interests, and ensure a constant supply of the necessaries of life, either in or through neutral countries; can it be asserted that an American citizen is wholly blameless, who enters into stipulations and engagements to effect their purposes? Is not the enemy thereby relieved from the pressure of the war, and enabled to wage it more successfully against the other branches of the same commerce not protected by this indulgence? \nIt is said that the case of a personal license is not distinguishable from a general order of council authorizing and protecting all trade to a neutral country. In my judgment they are very distinguishable. The first pre-supposes a personal  communication with the enemy, and an avowed intention of furthering his objects, to the exclusion of the general trade by other merchants to the same country; it has a direct tendency to prevent such general trade; and relives the enemy from the necessity of resorting to a general order of protection; it contaminates the commercial enterprizes of the favored individual with purposes not reconcilable with the general policy of his country; exposes him to extraordinary temptations to succour the enemy by intelligence; and separates him from the general character of his country, by clothing him with all the effective interests of a neutral. Now these are some of the leading principles upon which a trade with the enemy has been adjudged illegal by the law of nations.On the other hand, a general order opens the whole trade of the neutral country to every merchant. It pre-supposes no incorporation in enemy  interests: It enables the whole mercantile enterprize of the country to engage upon equal terms with the traffic; and it separates no individual from the general national character. It relaxes the vigor of war, not only in that particular trade, but collaterally opens a  path to other commerce. There is all the difference between the cases that there is between an active personal co-operation in the measures of the enemy, and the merely accidental aid afforded by the pursuit of a fair and legitimate commerce. \nIn the purchase or gratuity of a license for trade, there is an implied agreement that the party shall not employ it to the injury of the grantor; that he shall conduct himself in perfectly neutral manner, and avoid every hostile conduct. I say there is an implied agreement to this effect, in the very terms and nature of the engagement. I am warranted in declaring this, from the uniform construction put by Great Britain on the conduct of her own subjects acting under licenses. Can an American citizen be permitted in this manner to carve out for himself a neutrality on the ocean, when his country is at war? Can he justify himself in refusing to aid his countrymen who have fallen into the hands of the enemy on the ocean, or decline their rescue? Can he withdraw his personal services, when the recessities of the nation require them? Can an engagement be legal, which imposes upon him the temptation or necessity of deeming his personal interest  at variance with the legitimate objects of his government? I confess that I am slow to believe that the principles of national law, which formerly considered the lives and properties of all enemies as liable to the arbitrary disposal of their adversary, are so far relaxed that a part of the people may claim to be peace, while the residue are involved in the desolations of war. Before I shall believe the doctrine, it must be taught me by the highest tribunal of the nation; in whose superior wisdom and sagacity I shall most cheerfully repose. \nIt has been said that no case of condemnation can be found an account of the use of an enemy license. Admitting the fact, I am not disposed to yield to the inference that it is therefore lawful. It is one of the many novel questions which may be presumed to arise out of  the extraordinary state of the world. The silence of adjudged cases proves nothing either way: It may well admit of opposite interpretations. The case of the Vrow Elizabeth, 5 Rob. 2, has been cited by the captors in support of the more general doctrine. It was a case where the ship had the flag and pass and documents of an enemy's ship; and the Court held that  the owner was bound by the assumed character. There is no similiarity in the case before the Court. The ship and cargo were documented as American and not as British property. As little will the Clarissa, (5 Rob. 4,) cited on the other side, apply. It was, at most, but a license given by the Dutch government, allowing a neutral to trade within its own colony: in all other respects the ship and property were avowedly neutral; and, unless so far as the English doctrines, as to the colonial trade could apply there was nothing illegal or improper in waving any municipal regulations of colonial monopoly in favor of a neutral. There was nothing which compromitted the allegiance or touched the interest of the neutral country. If, however, this license had conferred on the neutral the special privileges of a Dutch merchant, or had facilitated the Dutch policy in warding off the pressure of the war, it would probably have received a very different determination. See the Vreede Scholtys, 5 Rob. 5, note (a.) The Rendsborg, 4 Rob. 98, 121. We all know that there are many acts which inflict upon neutrals the penalty of confiscation, from the subserviency which they are supposed to indicated  to enemy interests; the carrying of enemy dispatches; the transportation of military persons; and the adopting of the coasting trade of the enemy. The ground of these decisions is the voluntary interposition of the party to further the views and interests of one belligerent at the expense of the other: and I cannot doubt that the Clarissa would have shared the general fate, but from some circumstance of peculiar exemption. \nBy the prize code of Lewis XIV. (which I quote the more readily because it is, in general, a compilation of prize law as recognized among civilized nations,) it is a sufficient ground of condemnation that a vessel bears commissions from two different states. Valin (Traite des prises, p. 53,) says, \"A l'egard du vaissean ou se trouverent des commissions de deux differens princes ou  stats, it est egalement just qu' il soit declare de bonne prise, soit parce qu' il se peut arborer le pavillon de l'un, en consequence de sa commission, sans faire injure a l'autre, ceci. au reste, regarde les Francais comme les etrangers.\" In what consists the substantive difference between navigating  under the commissions of our own and also of another sovereign,  and navigating under the protection of the passport of such sovereign which confers or compels a neutral character? Valin, in another place (sur l'ordinance, lib. 3, tit. 9, art. 4, p. 241,) declares, \"si sur unnavire Francais il y a une commission d'un prince etranger avec cette de France, il sera de bonne prise, quoiqu'il n'ait arbore que le pavillon Francais.\" It is true that he just before observes, \"que ce circonstance de deux conges ou passe-ports, ou de deux connaissements, dont l'un est de France, et l'antre d'un pays ennemi, ne suffit pas seule faire declarer le navire ennemi de bonne prise, et que cela doit dependre des circonstances capables de faire deconvrir sa veritable destination.\" But Valin is referring to the case of an enemy ship having a passort of trade from the sovereign of France. I infer from the language of Valin, that a French ship sailing under the passport, conge, or license of its enemy, without the authority of its own sovereign, would have been lawful prize. \nThis leads me to another consideration; and that is, that the existence and employment of such a license affords a strong presumption of concealed enemy interest, or, at least, of ultimate destination  for enemy use. It is inconceivable that any government should allow its protection to an enemy trade, merely out of favor to a neutral nation, or to an ally, or to its enemy. Its own particular and specil interests will govern its policy; and the quid pro quo must materially enter into every such relaxation of belligerent rights. It is, therefore, a fair inference, either that its subjects partake of the trade under cover, or that the property, or some portion of the profits, finds its way into the channel of the public interests. \nIt has been argued that the use of false or simulated papers is allowable in war as a stratagem to deceive the enemy and elude his vigilance. However this may be, it certainly cannot authorize the use of real papers of a hostile character, to carry into effect the avowed purpose  of the enemy. We may be allowed to deceive our enemy; but we can never be allowed to set up, as such a deception, a concert in his own measures for the very purposes he has prescribed. \nAn allusion has been made to the passports or safeconducts granted, in former times, to the fishing vessels of enemies; and it has been argued that such passports or safe-conducts  have never been supposed to induce the penalty of confiscation. This will at once be conceded, as to the belligerent nation who granted these indulgences; but as to the other nation, where such passports were not guaranteed by treaty or mutual pacts, I have no authority to lead me to an accurate decision. The French ordinance of 1543 authorized the admiral to make fishing truces with the enemy; and, where no such truces were made, to deliver to the subject of the enemy, safe-conducts for fishing upon the same stipulations as they should be delivered to French subjects by the enemy. This, therefore, was an authority to be exercised only in cases of reciprocity; and it seems to have been abolished from the manifest inconveniences which attended the practice. Valin, sur ord. lib. 1, p. 689, 699. I do not think that any argument in favor of the validity of the present license, (unrecognized as it is by our government,) can be drawn from these ancient examples as to fisheries. \nIt has been argued that the voyage was lawful to a neutral port, and the mere use of a license cannot cover a lawful voyage with the taint of illegality. This, how, ever, is assuming the very point in controversy.  It is not universally true that a destination to a neutral port gives a bona fide character to the voyage. If the property be ultimately destined for an enemy port or an enemy use, it is clear that the interposition of a nectral port will not save it from condemnation. 4 Rob. 65, 79. The Jone Pieter. Suppose, in the present case, the vessel and cargo had been destined to Lisbon for the express use of the British fleet there, could there be a doubt that it would have been a direct trade with an enemy? Whether the voyage, therefore, be legal or not, depends not merely upon the destination, but the ultimate application of the property, or the ascertained intentions of the party. A contract to carry provisions to St. Bar,  tholomews for the ultimate supply of the British West India islands, would be just as much an infringement of the law of war, as a contract for a direct transportation. On the whole, I adopt, as a salutary maxim of war, the doctrine of Bynkershock. \"Vetatur quoquo modo hostium utilitati consulere.\" It is unlawful in any manner to lend assistance to the enemy, by attaching ourselves to his policy, sailing under his protection, facilitating his supplies,  and separating ourselves from the common character of our country. \nI am aware that the opinion which I have formed as to the general rature of licenses, is encountered by the decisions of learned judges for whom I entertain every possible respect. This circumstance alone, independent of the novelty and importance of the question, would awaken in my own mind an unusual hesitation as to the correctness of my own opinion: but, after much reflection upon the subject, I have not been able to find sufficient grounds to yield it; and my duty requires that, whatsoever may be its imperfections, my own judgment should be pronounced to the parties. \nI am glad, however, to be relieved from the painful necessity of deciding the more general question, by the peculiar terms of the present license, which I consider as affording irrefragable proof of an illicit intercourse with the enemy, and a direct contract to transport the cargo for the use of the British armies in Spain and Portugal. The very preamble to the license of admiral Sawyer show this in a most explicit manner, and discloses facts which it is no harshness to declare, are not very honorable to the principles or the character of the  parties. \nIt has been attempted to distinguish the present Claimants from Mr. Elwell, to whom the original license was granted. It could hardly have been expicted that such an attempt would be successful. The assignees cannot place their derivative title on a better footing than the original party. They must be considered as entering into the views and contracting to effectuate the intentions of the latter; and, at all events, the illegality of the employment of the license attaches indissolubly to their conduct. If it were material, however, it might deserve consideration how far an actual assignment is  shown in the case. It  rests on the affidavit of one of the Claimants, and on the mere face of papers which carry no very decisive character, and are quite reconcileable with concealed interests in other persons, as the records of prize Courts abundantly show. However, I only glance at this subject, as it in no degree enters into the ingredients of my judgment. \nA very bold proposition was, at one time, advanced in the argument by the Claimants' counsel, that if this cargo had been actually destined to Portugal for the use of the allied armies of Great  Britain and Portugal, or even for the use of the British army, it would not be an offence against the laws of war. In the sequel, if I rightly understand, this proposition, in this alarming extent, was not contended for; and certainly it is ntterly untenable upon the principles of national law. \nBut it was insisted on, that the British armies in Portugal and Spain were to be considered as incorporated into the armies of those kingdoms, and as not holding the British character. \nIf I could so far forget the public facts of which, sitting in a prize Court, I am bound to take notice, there is sufficient in the papers before me to prove the contrary of this suggestion. In admiral Sawyer's license and Mr. Allen's certificate they are expressly called the allied armies; thereby plainly admitting a separate character and organization: and so, in point of fact, we all know it to be; if, indeed, the British character be not predominant throughout these countries. I reject the distinction, therefore, as utterly insupportable in point of fact. \nIt has been further argued that, if the conduct be illegal, it is but a personal misdemeanor in no degree affecting the vessel and cargo; and at all  events, that the illegality was extinguished by the termination of the outward voyage. The principles of law afford no countenance to either part of the proposition. If the property be engaged in an illegal traffic with the enemy, or even in an attempt to trade, it is liable to confiscation as well on the return as on the outward voyage: and it may be assumed as a proposition, liable to few, if any, exceptions,  that the property which is rendered auxiliary or subservient to enemy interests, becomes tainted with forfeiture. \nI cannot but remark that the license in this case, issued within our own territory by an agent of the British government, carries with it a peculiarly obnoxious character. This circumstance, which is founded on an assumption of consular authority that ought to have ceased with the war, affords the strongest evidence of improper intercourse. The public dangers to which it must unavoidably lead, by fostering interests, within the bosom of the country, against the measures of the government, and the breach of faith which it imports in a public functionary receiving the protection of the government, can never be lost sight of in a tribunal of justice.  I forbear to dwell further on this delicate subject. \nUpon the whole, I consider the property engaged in this transaction as stamped with the hostile character; and I entirely concur in the decision of the district judge, which pronounced it subject to condemnation.\" \n \n\n ", " \nOpinion \n\n \n \n  STORY, J. delivered the opinion of the Court as follows: \nThis is a writ of right brought by the Demandant against the tenants, to recover seizin of a large tract of land set forth in the count. At the trial in the Circuit Court for Kentucky district, several questions arose upon which the Court were divided; and these questions are now certified for the opinion of this Court. \nAs to the first question, we are satisfied that the Circuit Court had jurisdiction of the cause.  Taking the 11th and 20th sections of the judicial act of 1789, ch. 20, in connexion, it is clear that the jurisdiction attaches where the property demanded exceeds $500 in value; and if, upon the trial, the Demandant recover less, he is not allowed his costs; but, at the discretion of the Court, may be adjudged to pay costs. \nAs to the second question, we are of opinion that, at common law, a writ of right will not lie, except against the tenant of the freehold demanded. If there are several tenants claiming several parcels of land by distinct titles, they cannot lawfully be joined in one writ; and if they are, they may plead in abatement of the writ. If the Demandant demands against any tenant more land than he holds, he may plead non-tenure as to the parcel not holden; and this plea, by the ancient common law, would have abated the whole writ. But the statute 25, Edw. 3, ch. 6, which may be considered as a part of our common law, having been in force at the emigration of our ancestors, cured  the defect, and declared that the writ should abate only as to the parcel whereof non-tenure was pleaded, and admitted or proved. In fact the act of Virginia of 1792, ch. 125,  which is in force in Kentucky, enacts substantially the same provision as the statute of Edward. \n But it is supposed, in argument, that the act of Kentucky, to amend proceedings in chancery and common law, which provides that if the Plaintiff at law shall prove part of his demand or claim set up in his declaration, he shall not be non-suited, but shall have judgment for what he proves, entitles the Demandant in this case to join parties who hold severalty by distinct titles. \nTo this doctrine the Court cannot accede. At common law, in many instances, if the party demanded in his writ more than he proved was his right, he lost his action by the falsity of his writ. It was to cure this ancient evil that the act of Kentucky was made. It enables the party to recover, although he should prove only part of the claim in his declaration. But it does not tend to enable him to join parties in an action, who could not be joined at the common law. It could no more entitle a Demandant in a real action to recover against several tenants claiming by distinct and separate titles, than it could entitle a Plaintiff to maintain a joint action of assumpsit, where the contracts were several  and independent. Infinite inconvenience and mischief would result from such a construction; and we should not incline to adopt it, unless it were unavoidable. \nAs to the third question. It is clear, at the common law, that non-tenure, joint-tenure, sole-tenure and several-tenure, were good pleas in abatement to a writ of right. But they could only be pleaded in abatement; for the tenant, by joining the mise, or pleading in bar, admitted himself tenant of the freehold. Such pleading in bar was an admission that he had a capacity to defend the suti; and he was estopped, by his own act, from denying it. The act of Virginia of 1786, ch. 27, reforming the proceedings on writs of right, was not intended to vary the rights or legal predicament of the parties. It did not, therefore, intend to change the nature and effect of the pleadings; and, notwithstanding that act, the tenant shall still have the full benefit of the ordinary pleas in abatement. It is true that the act provides that the tenant, at the trial, may, on the general issue, give in evidence any matter which might have been specially pleaded. But this provision is manifestly confined to matters in bar. It would be absurd  to suppose that the legislature meant to give to a mere  exception in abatement the full effect of a perfect bar on the merits; which would be the case if such an exception would authorize a verdict for the tenant on issue joined on the mere right. The time and manner of filing the pleadings must, of course, be left to the established practice and rules in the Circuit Court. \nAs to the fourth point, we are of opinion that, under the act of Virginia of 1786, the tenant may, at his election, plead any special matter in bar, in a writ of right, or give it in evidence on the mise joined. The act is not deemed compulsive but cumulative. \nThe fifth question is that which has been deemed most important; and to this the counsel on each side have directed their efforts with great ability. \nIt is clear, by the whole amount of authority, that actual seizing, or seizin in deed, is, at the common law, necessary to maintain a writ of right. Nor is this peculiar to actions on the mere right.It equally applies to writs of entry; and the language of the count, in both cases, is, that the Demandant, or his ancestor, was, within the time of limitation, seized in his demesne as of fee, &c.  taking the esplees, &c. It is highly probable that the foundation of this rule was laid in the earliest rudiments of titles at the common law. It is well known that, in ancient times, no deed or charter was necessary to convey a fee simple. The title, the full and perfect dominion, was conveyed by a mere livery of seizin in the presence of the vicinage. It was the notoriety of this ceremony, performed in the presence of his peers, that gave the tenant his feudal investiture of the inheritance. Deeds and charters of feoffment were of a later age; and were held not to convey the estate itself, but only to evidence the nature of the conveyance. The solemn act of livery of seizin was absolutely necessary to produce a perfect title, or as Fleta calls it, juris et seisince conjunctio. But, whatever may be its origin, the rule as to the actual seizin has long since become an inflexible doctrine of the common law. \nIt has been argued, that the act of Virginia, of 1786, ch. 27, meant in this respect to change the doctrine of the common law, because that act has given the form of  the count in a writ of right, and omits any allegation of seizin and taking esplees. There is  certainly some countenance in the act for the argument. But, on mature consideration, we are of opinion that it cannot prevail. The form of joining the mise in a writ of right, is also given in the same act; and that form includes the same inquiry, viz: \"which hath the greater right,\" as the forms at common law. It would seem to follow that the legislature did not mean to change the nature of the facts which were to be inquired into, but only to provide a more summary mode of proceeding. The clause in the same act allowing any special matter to be given in evidence on the mise joined, may also be called in aid of this construction. That clause certainly shews that it was not intended to relieve the Demandant from the effect of any existing bar; and want of seizin was, at the common law, a fatal bar. The statute of limitations of Virginia, of 19th December, 1792, ch. 77, which, as to this point, is a revival of the old statute, limits a writ of right upon ancestral seizin, to 50 years, and upon the Demandant's own seizin, to 30 years next before the teste of the writ. It is therefore incumbent on the Demandant to prove a seizin within the time of limitation; otherwise he is without  remedy; and if so, it must be involved in the issue joined on the mere right. We are therefore of opinion, that the act of 1786 did not mean to change the nature of the inquiry as to the titles of the parties, but merely to remedy some of the inconveniences in the modes of proceeding. \nIf, then, an actual seizin or seizin in deed, be necessary to be proved, it becomes material to enquire what constitutes such a seizin. It has  been supposed, in argument, that an actual entry under title, and perception of esplees were necessary to be proved in order to shew an actual seizin. But this is far from being true, even at the common law. There are cases in which there is a constructive seizin in deed, which is sufficient for all the purposes of action in legal intendment. In Hargrave's note, 3 Co. Litt. 24, a. it is said, that an entry is not always necessary to give a seizin in deed; for if the land be in lease for years, curtesy may be without entry or even receipt of rent. The same is the doctrine as to seizin in a case of possessio fratris. So if a grantee or heir of several parcels of land in the same county enter into one parcel  in the name of the whole,  where there is no conflicting possession, the law adjudges him in the actual seizin of the whole. Litt. s. 417. 418. -- In like manner, if a man have a title of entry into lands, but dare not enter for fear of bodily harm, and he approach as near the land as he dare, and claim the land as his own, he hath presently, by such claim, a possession and seizin in the lands, as well as if he had entered in deed. Litt. s. 419. And living within the view of the land will, under circumstances, give the feofiee a seizin in deed as effectually as an actual entry. There are, therefore, cases in which the law gives the party a constructive seizin in deed. They are founded upon this plain reason, that either the claim is made sufficiently notorious by an actual entry into part, of which the vicinage can take notice, or the party has done all that, under the circumstances of the case, he was bound to do. Lex non cogit seu ad vana aut impossibilia. The same is the result of conveyances deriving their effect under the statute of uses; for there, without actual entry or livery of seizin, the bargainee has a complete seizin in deed. Com. Dig. uses, [B. 1.] [I.] -- Cro. Eliz. 46. -- 1 Cruise  Dig. 12. -- Shep. Touch. 223, &c. Harg. Co. Litt. 271, note. And the Kentucky act respecting conveyances, which is, in substance, like the statute of uses, gives to private deeds the same legal effect. \nIt has, however, been supposed, in argument, that not only an actual seizin or complete investitute of the land, but also a perception of the profits, or, as it is technically called, a taking of the esplees, is absolutely necessary to support a writ of right. It cannot, however, be admitted that the taking of the esplees is a traverseable averment in the count. It is but evidence of the seizin; and the seizin in deed once established, either by a pedis positio, or by construction of law, the taking of the esplees is a necessary inference of law. If, therefore, a seizin be established, although the lands be leased for a term of years, and thereby the profits belong to the tenant, still the legal intendment is that the esplees follow the seizin. And so it would be although a mere trespasser, without claiming title, should actually take the profits during the time of the seizin alleged and proved. And, indeed, of certain real property, as a barren rock, a complete seizin may exist  without the existence of esplees. \n The result of this reasoning is, that wherever there exists the union of title and seizin in deed, either by actual entry and livery of seizin, or by intendment of law, as by conveyances under the statute of uses, or in the other instances which have been before stated, there the esplees are knit to the title, so as to enable the party to maintain a writ of right. And it will be found extremely . difficult to maintain that a deed, which, by the lex loei, conveys a perfect title to waste and vacant lands, without further ceremony, will not yet enable the grantee to support that title by giving him the highest remedy applicable to it, without an actual entry. \nLet us consider how far a perfect title to waste and vacant lands can be considered as having passed by a patent under the land law of Virginia of 1779, ch. 13. It is argued that such a patent conveys only a right or title of entry, which, until consummatedy by actual possession, gives the patentee no actual investiture or seizin of the land: and it is likened to the case of a patent from the crown. Some countenance is lent by authority to this position, so far as respects patents  from the crown; but a careful examination will be found by no means to establish its correctness. No livery of seizin is necessary to perfect a title by letters patent. The grantee, in such case, takes by matter of record; and the law deems the grant of record of equal notoriety with an actual tradition of the land in the view of the vicinage. The contrary is the fact, as to feoffments. The deed is inoperative without livery of seizin. This difference alone would seem to carry a pretty strong implication that actual seizin passed by operation of law, on a patent from the crown; for it is the union of a right and seizin that constitutes a perfect title; and when once the law has declared a title perfect, it must include every thing necessary to produce that effect. Accordingly we find it expressly held in Barwick's case, 5 Co. 94, that letters patent under the great seal do amount to a livery in law. What is a livery in law, but such an act as in legal contemplation, amounts to a delivery of seizin? If, for instance, a feoffment include divers parcels of land in the same county, livery of seizin of one parcel, in the name of the whole, is livery of all not in an adverse seizin.  This, therefore, as to all the parcels except that whereof livery is actually made, is but a livery  in law; and yet to all intents and purposes it is as effectual as livery in deed. And it was upon the footing of this doctrine that, in Barwick's case, the court held that the conveyance of a freehold by letters patent to commence in futuro, was void as much as if the conveyance had been by feoffment; because in neither case could there be a present livery of the future freehold estate. The livery must operate at the time when it is made, or not at all. It is not therefore admitted by this Court, that letters patent of the crown do not convey a perfect title, where there is no interfering possession. \nBut even admitting it were otherwise, still we think a patent under the land law of Virginia must be considered as a statute grant, which is to have all the legal effects attached to it, which the legislature intended. It cannot be doubted that the legislature were competent to give their patentees a perfect title and possession without actual entry. Have they so done? We think that it is impossible, looking  to the language of their acts, or the state of the  country, to doubt that whole legal estate and seizin of the commonwealth in the lands, passed to the patentee, upon the issuing of his patent, in as full an extent and beneficial a manner, (subject only to the rights of the commonwealth,) as the commonwealth itself held them. At the time of the passing of the act of 1779, Kentucky was a wilderness. It was the haunt of savages and beasts of prey. Actual entry or possession was impracticable; and, if practicable, it could answer no beneficial purpose. It could create no notoriety; it could be evidence to no vicinage of a change of the property. An entry therefore would have been a vain and useless and perilous act: and if there ever was a case in which the maxim would apply that the law does not oblige to vain or impossible things, we think it is such a one as the present. There is no pretence that the legislature have expressly made an entry a pre-requisite to the completion of the title. Such a pre-requisite, if it exist at all, must arise from mere implication only, and under circumstances which would render it nugatory or absurd. We do not, therefore, feel at liberty to insert in the operation of the grant a limitation which  the law has not of itself interposed. \n And this leads us to say, that even if, at common law, an actual pedis positio, followed up by an actual perception of the profits, were unnecessary to maintain a writ of right, which we do not admit, the doctrine would be inapplicable to the waste and vacant lands of our country. The common law itself in many cases dispenses with such a rule; and the reason of the rule itself ceases when applied to a mere wilderness. The object of the law in requiring actual seizin, was to evince notoriety of title to the neighborhood, and the consequent burthens of feudal duties. In the simplicity of ancient times there were no means of ascertaining titles but by the visible seizin; and, indeed, there was no other mode, between subjects, of passing title, but livery of the land itself by the symbolical delivery of turf and twig. The moment that a tenant was thus seized, he had a perfect investiture; and, if ousted, could maintain his action in the realty, although he had not been long enough in possession even to touch the esplees. The very object of the rule, therefore, was notoriety, to prevent frauds upon the land and upon the other tenants.  But in a mere uncultivated country, in wild and impenetrable woods, in the sullen and solitary haunts of beasts of pray, what notoriety could an entry, a gathering of a twig or an acorn convey to civilized man at the distance of hundreds of miles? The reason of the rule could not apply to such a state of things; and cessante ratione, cessat ipsa lex. We are entirely satisfied that a conveyance of wild or vacant lands gives a constructive seizin thereof, in deed, to the grantee, it attaches to him all the legal remedies incident to the estate. A fortiori, this principle applies to a patent; since, at the common law, it imports a livery in law, Upon any other construction, infinite mischiefs would result. Titles by descent and devise, and purchase, where the parties from whom the title was derived was never in actual seizin, would, upon principles of the common law, be utterly lost. \nAs to the sixth question. We are of opinion that in Kentucky, a patent is the completion of the legal title of the parties; and it is the legal title only that can come in controversy in a writ of right. The previous stages of title are merely equitable, which a Court of chancery may inforce, but a  Court of common law will not entertain.In this opinion, we adopt the principles which the  Courts of Kentucky have been understood uniformly to sanction. And this opinion is also an answer to the seventh question. \nAs to the eighth question. We are of opinion that a better subsisting adverse title in a third person, is no defence in a writ of right. That writ brings into controversy only the mere rights of the parties to the suit. \nAs to the ninth question. We have already expressed our opinion that tenants claiming different parcels of land by distinct titles cannot be joined in a writ of right. If, however, they omit to plead in abatement and join the mise, it is an admission that they are joint tenants of the whole; and the verdict, if for the Demandant for any parcel of the land, may be general, that he hath more mere right to hold the same than the tenants; and if of any parcel for the tenants, that they have more mere right to hold the same than the Demandant. \nAs to the tenth question. The general rule is, that if a man enter into lands, having title, his seizin is not bounded by his actual occupancy, but is held to be co-extensive with his title. But if a  man enter without title, his seizin is comined to his possession by metes and bounds. In the case put by the Court below, the first patentee had the better legal title; and his seizin presently, by virtue of his patent, gave him the best mere right to the whole land, upon the principles which we have already stated. A fortiori, he must have the best mere right to the land not included in the actual close of the second patentee. For, by construction of law, he has the eldest seizin as well as the eldest patent. \nAs to the eleventh point. We are of opinion, that if a man having title to land enter into a part in the name of the whole, he is, upon common law principles, adjudged in seizin of the whole, notwithstanding an adverse seizin thereof. But if the land be in seizin of several tenants claiming different parcels thereof in severalty, an entry into the parcel held by one tenant will not give seizin to the parcels held by the other tenants; but there must be an entry into each. Co. Litt. 252, b. By parity of reason, an entry into a parcel which is vacant, will not give seizin of a parcel which is in an adverse seizin. But an entry into the last parcel, in the name of the whole,  will enure as an entry  into the vacant parcel. It does not appear, in the question put by the Court below, into which parcel the entry is supposed to be made. \nSuch are the unanimous opinions of this Court, which are to be certified to the Circuit Court of Kentucky. \n \n\n ", " \nOpinion \n\n \n \n STORY, J. delivered the opinion of the Court as follows: \nThe Appellants, who are heirs at law of Sally Carter deceased, petitioned the Orphan's Court of the county of Alexandria to revoke and repeal the probate of a will of the said Sally Carter procured by the respondents, upon the ground that the said will was admitted to probate without notice to the Appellants, and that the supposed testatrix was an inhabitant of and resident in Virginia at the time of her death, and left no assets real or personal or debts in the county of Alexandria. The Orphan's Court, without issuing a summons to the respondents, dismissed the petition, and upon an appeal this dismissal was confirmed by the Circuit Court of the district of Columbia. \nTwo objections have been taken to the sustaining to  the appeal to this Court -- 1. That by the act of congress of 27th February, 1801, ch. 86, s. 12, (vol. 5, p. 272) it is enacted that on appeals from the Orphan's  Court to the Circuit Court, the latter \"shall therein have all the powers of the chancellor\" of the state of Maryland; and by the laws of Maryland the decree of the chancellor in a like case would be final. 2. That the decree of dismissal is not any final judgment, order, or decree of the Circuit Court wherein the matter in dispute, exclusive of costs, exceeds one hundred dollars. \nThe majority of the Court cannot yield assent to the validity of either of these objections. As to the first, we are of opinion that the conclusiveness of its sentence forms no part of the essence of the powers of the Court. Its powers to act are as ample, independant of their final quality, as with it. Besides the act of February 27, 1801, § 8. (vol. 5, p. 270) has expressly allowed an appeal from \"all final judgments, orders and decrees of the Circuit Courts\" where the matter in dispute exceeds the limited value, and there is nothing in the context to narrow the ordinary import of the language. We cannot admit that construction  to be a sound one, which seeks by remote inferences to withdraw a case from the general provisions of a statute, which is clearly within its words and perfectly consistent with its intent. The case of Young v. the Bank of Alexandria, 4 Cranch, 384, is, in our judgment, decisive against this objection. \nAs to the second objection, it is conceded by both parties that the estate devised to the respondent, Sally C. Cutting, is worth several thousand dollars. If, then, the probate of the will had any legal operation and was not merely void, the controversy as to the validity of that probate was a matter in dispute equal to the value of the estate devised away from the heirs. It cannot be doubted that the Orphan's Court had jurisdiction to allow probate of wills made by persons in foreign states; and that probate, once allowed, operated as a sentence affirming the validity of such wills between the parties so far as the lex loci could give them operation. It is understood that a will regularly proved in another state in strict conformity with the laws of that state, acquires, if it possess the other legal requisites, a binding efficacy in Virginia, so that it may be admitted to record  there. The estate devised is understood to be situated  in Virginia, and the title of the heirs thereto would consequently be affected by the probate in this district. The probate then not being merely void, but affecting the title to lands exceeding one hundred dollars in value is a matter in controversy beyond that value within the purview of the act of 1801. \nThe decree of the Circuit Court dismissing the petition is reversed, and the cause is to be remanded to that Court with directions to proceed to a hearing upon the merits. \n \n\n ", " \nOpinion \n\n \n \n  STORY, J. delivered the opinion of the  Court. \nThis case cannot be distinguished from that of the Rapid. It was there decided that property engaged in an illicit intercourse with the enemy, is liable to confiscation  as prize of war, and the only remaining question now before us, is, to whom it shall be condemned -- to the captors, or to the United States. \nBy the general law of prize, property engaged in an illegal intercourse with the enemy, is deemed enemy property. It is of no consequence whether it belong to an ally or to a citizen; the illegal traffic stamps it with the hostile character, and attaches to it all the penal consequences of enemy ownership. In conformity with this rule, it has been solemnly adjudged, by the same course of decisions which has established the illegality of the intercourse, that the property engaged therein must be condemned as prize to the captors, and not to the crown. This principle has been fully recognized by sir William Scott, in the Nelly, 1 Rob. 219; and, indeed, seems never to have admitted a serious doubt. \nBut a claim is interposed by the United States, claiming a priority of right to the property in question, upon the ground of an antecedent forfeiture to the United  States, by a violation of the non-intercourse act, (of March 1, 1809, vol. 9, p. 246, § 5) the goods having been put on board at a British port, with an intent to import the same into the United States. \nWe are all of opinion that this claim ought not to prevail. The municipal forfeiture under the non-intercourse act, was absorbed in the more general operation of the law of war. The property of an enemy seems hardly to be within the purview of mere municipal regulations; but is confiscable under the jus gentium. \nBut even if the doctrine were otherwise, which we do not admit, we are all satisfied that the prize act of 26th June, 1812, ch. 107, operates as a grant from the United States of all property rightfully captured by commissioned privateers, as prize of war. The language of the 4th, 6th and 14th sections is decisive. \nThe decree of the Circuit Court, condemning the vessel and cargo to the captors, is affirmed. \n \n\n ", " \nOpinion \n\n \n \n  STORY, J. delivered the opinion of the Court. \n The ship Thomas Gibbons, laden with a cargo of British manufactures, on account of British and American merchants, sailed from Liverpool, in Great Britain, on the 16th August, 1812, bound for Savannah, in Georgia, and was captured on the 12th of the ensuing October, on the high seas, off Tybee light-house, by the private armed vessel Atas, Thomas M. Newhall, commander, and,  on the same day brought into Savannah as prize of war. The ship sailed from Liverpool, under the protection of a special license, dated the 21st of July 1812, granted by lord Sidmouth, by order of the privy council, whereby the ship and cargo were protected from British capture, not only on the voyage to the United States, but also on the return voyage to Liverpool, in case the master should not be permitted to land the cargo in the United States; and the master was further allowed, in case of return, to receive his freight, and proceed in ballast to any port not blockaded. \nThe commission of the Atas was granted on the 24th of September, 1812, accompanied by a copy of the president's instruction of the 28th of August, 1812. \nA libel was filed in the District Court of Georgia, upon which regular proceedings were had against the ship, as prize of war. The respondents interposed their claims and the district attorney also interposed a claim in behalf of the United States. At the hearing, the district Court dismissed the libel of the captors, and upon appeal, the decree was affirmed in the Circuit Court. \nThe principal question which has been moved at bar, is, whether the capture of  the ship was lawful: and that depends upon the authority of the president to issue that instruction, and upon the true construction of it, if rightfully issued. \nAs to the authority of the president, we do not think it necessary to consider how far he would be entitled, in his character of commander in chief of the army and navy of the United States, independent of any statute provision, to issue instructions for the government and direction  of privateers. That question would deserve grave consideration; and we should not be disposed to entertain the discussion of it, unless it become unavoidable. In the  case at bar, no decision on the point is necessary; because we are all of opinion that, under the eighth section of the prize act of 1812, ch. 107, the president had full authority to issue the instruction of the 28th of August.That section provides, that the president shall be authorized \"to establish and order suitable instructions for the better governing and directing the conduct\" of private armed vessels commissioned under the act, their officers and crews.The language of this provision is very general, and in our opinion it is entitled to a liberal construction,  both upon the manifest intent of the legislature, and the ground of public policy. \nIt has been argued, that privateers acquire by their commissions, a general right of capture under the prize acts, which it is not in the president's power to remove or restrain, while the commission is in force; that therefore his right to issue instructions must be construed as subordinate to the general authority derived from the commission; and that, in this view, his instructions should extend only to the internal organization, discipline and conduct of privateers. \nWe cannot, on mature deliberation, yield assent to this argument.It is very clear that the president has, under the prize act, power to grant, annul and revoke, at his pleasure, the commissions of privateers; and by the act declaring war, he is authorized to issue the commission in such form as he shall deem fit. The right of capture is entirely derived from the law: It is not an absolute, vested right which cannot be taken away or modified by law: It is a limited right, which is subject to all the restraints which the legislature has imposed, and is to be exercised in the manner which its wisdom has prescribed. The commission, therefore,  is to be taken in its general terms, with reference to the laws under which it emanates, and as containing within itself all the qualifications and restrictions which the acts giving it existence have prescribed. In this view, the commission is qualified and restrained by the power of the president to issue instructions. The privateer takes it subject to such power, and contracts to act in obedience to all the instructions which the president may lawfully promulgate. \nPublic policy, also, would confirm this construction.  It has been the great object of every maritime nation to restrain and regulate the conduct of its privateers: They are watched with great anxiety and vigilance, because they may often involve the nation, by irregularities of conduct, in serious controversies, not only with public enemies, but also with neutrals and allies. If a power did not exist to restrain their operations in war, the public faith might be violated, cartels and flags of truce might be disregarded, and endless embarrassments arise in the negotiations, with foreign powers. Considerations of this weight and importance are not lightly to be disregarded; and when the language of the  act is so broad and comprehensive, we should not feel at liberty to narrow or weaken its force by a construction not pressed by the letter, or the spirit, or the policy of the clause. On the whole, we are all of opinion that the instruction of the president of the 28th of Angust, is within the authority delegated to him by the prize act. \nBut it is argued, that, admitting its legal validity, this instruction cannot protect the ship and cargo from capture as prize of war, because the cargo was shipped after a full knowledge of the war, and not \"in consequence of the alleged repeal of the British orders in council.\" \nWe are of a different opinion. We think that a shipment made even after a knowledge of the war, may well be deemed to have been made in consequence of the repeal of the orders in council, if made within so early a period as would leave a reasonable presumption that the knowledge of that repeal would induce a suspension of hostilities, on the part of the United States. Congress have evidently acted upon this principle; and have themselves fixed the time, (the 15th of September, 1812.) before which, shipments might be reasonably made upon the faith of that presumption.  Act of 2d January 1813. ch. 149. We are not inclined to hold a less liberal construction in favor of the acts of individuals proceeding from a confidence in the avowed intentions of the government. \nIt is further argued, that the ship was not within the description of vessels intended by the instruction to be exempted from capture, because she was engaged in an illicit intercourse with the enemy, under an enemy passport, and therefore was quasi enemy property.We  cannot assent to this argument. The vessels exempted from capture are \"vessels belonging to citizens of the United States, coming from British ports to the United States.\" The ship, in this case, was duly documented as an American, was coming to the United States, and from a British port. How can it be possible to bring a case more perfectly within the terms of the description? The argument proceeds upon the supposition that by the mere act of illicit intercourse, the property of an American citizen becomes divested ipso facto; but, in point of law, this is not the operation of the rule. The property is only liable to be condemned as enemy property, or as adhering to the enemy, if rightfully captured during  the voyage. But it has never been supposed that the documentary character of the ship itself, or the character of the owner, were completely changed for every other purpose. It is sufficient, however, in our opinion, that no such distinction as that assumed in the argument, is to be found in the instruction itself; and we therefore hold the case within the natural and ordinary import of the language. \nIt is further argued, that, at all events, the property intended to be protected by the instruction from capture, was American property, and not British property; and therefore that, as to the latter, the capture was rightful. This is a question of some difficulty; but, on full consideration, a majority of the Court are of opinion that the instruction meant to protect all British merchandize on board an American ship, without any exception on account of British proprietary interest. It was supposed that British as well as American merchants might, upon the repeal of the orders in council, be induced to make shipments, upon the faith that  such repeal would suspend the further operations of hostilities. The government meant to reserve to themselves the ultimate disposal  of such property, in order that they might restore or condemn it, as public policy or the national interests might require. This construction is supported and confirmed by the act of congress, of 13th July, 1813, ch. 10, which, after relinquishing all the right and title of the United States, to the property of British Subjects, captured on the high seas and shipped from British ports since the declaration of war, expressly excepts such property as had been captured in violation  of the presidents instruction of the 28th of August, 1812. In giving this construction, therefore, we are satisfied that we conform to the import of the language of the instruction, and do not contravene any policy avowed by the government itself. \nOn the whole, we are of opinion that the decree of the Circuit Court, dismissing the libel of the captors, ought to be affirmed, and that the cause should be remanded to the Circuit Court for further proceedings as between the United States and the Claimants. \n \n\n ", " \nOpinion \n\n \n \n  STORY, J. delivered the opinion of the Court as follows: \nThis is an action of debt brought upon a bond given under the first section of the embargo act of the 9th of Jan. 1808. ch. 8. After oyer of the bond and condition, various pleas were pleaded by the Defendants; but it is unnecessary to consider any others than those upon which questions have been argued at the bar. \nThe second separate plea of the Defendant, Robert Ober, and the first joint  plea of all the Defendants alleges, in substance, that the bond was taken by the collector of the customs at Georgetown, by color of his office, and by pretence of the act of congress aforesaid,  and that the bond and condition were not taken pursuant to the act of congress, but contrary thereto, in this, to wit: that the bond was not sealed or delivered until after the vessel in the same condition mentioned had received a clearance in due form, and after she had actually departed from the port of Georgetown, under the clearance, by reason whereof the bond is void. \nTo this plea there was a general demurrer and joinder in demurrer; on which the Court below gave judgment for the United States. \nIt is argued by the Plaintiffs in error, that the act of congress of the 9th of January, 1808, sec. 1, having declared that no vessel licensed for the coasting trade shall be allowed to depart from any port of the United States, or shall receive a clearance until the owner, &c. shall give bond to the United States in a sum double the value of the vessel and cargo, &c. the time of giving the bond is of the essence of the provision; and that if the bond be not taken until after the clearance  or departure of the vessel, it is illegal and void. \nWe cannot yield assent to this argument. In our opinion, the statute, as to the time of taking the bond and granting a clearance, is merely directory to the collector. It is undoubtedly his duty to comply with the literal requirements of the statute. If he neglect so to do, it is an irregularity which may subject him to personal peril and responsibility. If the state of facts has existed to which the statute provision is applicable, the authority to require and the duty to give the bond attaches; and. by the voluntary consent of the parties, it may well be given nunc pro tunc. Upon any other construction, the owner of the vessel might be involved in great difficulties. If the collector be not authorized to receive the bond after a clearance, neither is he authorized to grant a cleara ce before he has received the bond. A clearance,  therefore, granted before such bond should be given, would be illegal and void; and a departure from port under such void clearance, would subject the owner, vessel and cargo to the forfeiture inflicted by the third section of the act. There is no error in the judgment of the Court below  in this plea. \n The second joint plea of the Defendants, alleges that the bond was not taken pursuant to the act of congress, but contrary thereto, in this, that the bond was taken in a sum more than double the value of the vessel and cargo, whereby the bond became void. On demurrer to this plea and joinder in demurrer, the Court below gave judgment for the United States; and we are of opinion that the judgment so given ought to be affirmed. There is no allegation or pretence that the bond was unduly obtained by the collector, colore officii, by fraud oppression or circumvention. It must, therefore, be taken to have been a voluntary bona fide bond. The value was a matter of uncertainty, and the ascertaining of that value was the joint act and duty of both parties. When once that value was ascertained and agreed to by the parties, and a bond executed in conformity to such agreement, the parties were estopped to deny that it was not the true value. If an issue had been taken upon the fact, the evidence on the face of the bond would have been conclusive to the jury; and if so, it is not less conclusive upon demurrer. It would be dangerous in the extreme to admit the parties  to avoid a sealed instrument by averring that there was an error in the value by an innocent mistake, or by accident, or by circumstances against which no human foresight could guard. A mistake of one dollar would be as fatal as of ten thousand dollars. Suppose the double value were underrated, could the United States avoid the bond, and thereby subject the party to the penalties of the third section? Where the law provides that the penal sum of a bond shall be equal to the double value, and the parties voluntarily and without fraud assent to the insertion of a given sum, it is as much an estoppel as if the bond had specially recited that such sum was the double value. \nThe third joint plea in substance alleges that after the execution of the bond, and after the clearance and departure of the vessel and cargo, the bond was, by the authority, consent and direction of the collector, materially altered and changed, in this that the name of Ebenezer Eliason was cancelled and erased from the bond, and the name, signature and seal of the Defendant. Robert Ober, substituted and inserted therein, without the license, consent, or authority of the Defendant,  Robert Beverly, whereby  the bond became of no force. To this plea the United States replied that the bond was so altered and changed with the assent and by the concurrent license, direction and authority of all the Defendants, and of the said Ebenezer Eliason, and not without the license, consent and authority of the Defendants, and prayed that the same might be enquired of by the country. To this replication there was a general demurrer and joinder in demurrer, on which the Court below gave judgment for the United States: and we are of opinion that the judgment was right. It is clear, at the common law, that an alteration or addition in a deed, as by adding a new obligor, or an erasure in a deed, as by striking out an old obligor, if done with the consent and concurrence of all the parties to the deed, does not avoid it. And this principle equally applies whether the alteration or crasure be made in pursuance of an agreement and consent prior or subsequent to the execution of the deed; and the cases in the books in which erasures, interlineations and alterations in deeds have been held to avoid them, will be found, on examination, to have been cases in which no such consent had been given. \nIt has been  objected that this principle of letting in parol evidence to prove alterations in a deed to be made by consent, exposes to all the mischiefs against which the statute of frauds was intended to guard the public. If this objection were valid, it would equally apply to such alterations when made before the execution of the deed; for if not taken notice of by a memorandum on the deed itself, they must be proved in the same manner. But it is to be considered that the parol evidence is not admitted to explain or contradict the terms of the written contract, but only to ascertain what those written terms are. On non est factum, the present validity of the deed or contract is in issue; and every circumstance that goes to shew that it is not the deed or contract of the party, is proveable by parol evidence. It is of necessity, therefore, that the other party should support it by the same evidence. The fact, that there is an erasure or interlineation apparent on the face of the deed, does not, of itself, avoid it. To produce this effect, it must be shewn to have been made under circumstances that the law does not warrant.Parol evidence  is let in for this purpose; and the mischief,  if any, would equally press on both sides. The principle, however, which has been already stated, is too firmly fixed to be shaken by any reasoning ab inconvenienti. \nThe decision upon the third joint plea renders it unnecessary to exanine the bill of exceptions taken at the trial on the issue of non est factum. That bill presents the same point as the third joint plea, with this difference only, that the alteration in the deed by the addition of a new obligor was, in fact, made in pursuance of an agreement entered into between the parties prior to the original execution of the deed. \nOn the whole, the majority of the Court are of opinion that the judgment of the Court below must be affirmed. \nDissent by:", " \nOpinion \n\n \n \n  STORY, J.  delivered the opinion of the Court as follows: \nThe Defendants not having answered to the bill in the Court below, it has been taken pro confesso, and the cause is therefore to be decided upon the title and equity apparent on the face of the bill. \nIf the Plaintiffs have shown a sufficient title to the trust property in the present bill, we have no difficulty in holding that they are entitled to the equitable relief prayed for. It will be but the case of the cestuis que trust enforcing against their trustees the rights of ownership under circumstances in which the objects of the trust would be otherwise defeated. And in our judgment it would make no difference whether the Episcopal church were a voluntary society, or clothed with corporate powers; for in equity, as to objects which the  laws cannot but recognize as useful and meritorious, the same reason would exist for relief in the one case as in the other. Other considerations arising in this case, material to the title on which relief must be founded, render an enquiry into the character and powers of the Episcopal church, indispensable. \nAt a very early period the religious establishment of England seems to have been  adopted in the colony of Virginia; and, of course, the common law upon that subject, so far as it was applicable to the circumstances of that colony. The local division into parshes for ecclesiastical purposes can be very early traced; and the subsequent laws enacted for religious purposes evidently pre-suppose the existence of the Episcopal church with its general rights and authorities growing out of the common law. What those rights and authorities are, need not be minutely stated. It is sufficient that, among other things, the church was capable of receiving endowments of land, and that the minister of the parish was, during his incumbency, seized of the freehold of its inheritable property, as emphatically persona ecclesiae, and capable, as a sole corporation, of transmitting that inheritance to his successors. The church wardens, also, were a corporate body clothed with authority and guardianship over the repairs of the church and its personal property; and the other temporal concerns of the parish were submitted to a vestry composed of persons selected for that purpose. In order more effectually to cherish and support religious institutions, and to define the authorities  and rights of the Episcopal officers, the legislature, from time to time, enacted laws on this subject. By the statutes of 1661, ch. 1, 2, 3, 10, and 1667, ch. 3, provision was made for the erection and repairs of churches and chapels of ease; for the laying out of glebes and church lands, and the building of a dwelling house for the minister; for the making of assessments and taxes for these and other parochial purposes; for the appointment of church wardens to keep the church in repair, and to provide books, ornaments, &c.;  and, lastly, for the election of a vestry of twelve persons by the parishioners, whose duty it was, by these and subsequent statutes, among other things, to make and proportion levies and assessments, and to purchase glebes and erect dwelling houses for  the ministers in each respective parish. See statute 1696, ch. 11 -- 1727, ch. 6 -- and 1748, ch. 28 -- 2, Tucker's Blackst. Com. Appx. note M. \nBy the operation of these statutes and the common law, the lands thus purchased became vested, either directly or beneficially, in the Episcopal church. The minister for the time being was seized of the freehold, in law or in equity, jure ecclesiae,  and, during a vacancy, the fee remained in abeyance, and the profits of the parsonage were to be taken by the parish for their own use. Co. Lit. 340, b. 341, 342, b. 2, Mass. R. 500. \nSuch were some of the rights and powers of the Episcopal church at the time of the American revolution; and under the authority thereof the purchase of the lands stated in the bill before the Court, was undoubtedly made. And the property so acquired by the church remained unimpaired, notwithstanding the revolution; for the statute of 1776, ch. 2, completely confirmed and established the rights of the church to all its lands and other property. \nThe stat. 1784, ch. 88, proceeded yet further. It expressly made the minister and vestry, and, in case of a vacancy, the vestry of each parish respectively, and their successors forever, a corporation by the name of the Protestant Episcopal church in the parish where they respectively resided, to have, hold, use and enjoy all the glebes, churches and chapels, burying grounds, books, plate and ornaments appropriated to the use of, and every other thing the property of the late Episcopal church, to the sole use and benefit of the corporation. The same statute  also provided for the choice of new vestries, and repealed all former laws relating to vestries and church wardens, and to the support of the clergy, &c. and dissolved all former vestries; and gave the corporation extensive powers as to the purchasing, holding, aliening, repairing and regulating the church property. This statute was repealed by the statute of 1786, ch. 12, with a proviso saving to all religious societies the property to them respectively belonging, and authorizing them to appoint, from time to time, according to the rules of their sect, trustees who should be capable of managing and applying such property to the  religious use of such societies; and the statute of 1788, ch. 47, declared that the trustees appointed in the several parishes to take care of and manage the property of the Protestant Episcopal church, and their successors, should, to all intents and purposes, be considered as the successors to the former vestries, with the same powers of holding and managing all the property formerly vested in them.All these statutes, from that of 1776, ch. 2, to that of 1788, ch. 47, and several others, were repealed by the statute of 1798, ch. 9, as inconsistent  with the principles of the constitution and of religious freedom; and by the statute of 1801, ch. 5, (which was passed after the district of Columbia was finally separated from the states of Maryland and Virginia) the legislature asserted their right to all the property of the Episcopal churches in the respective parishes of the state; and, among other things, directed and authorized the overseers of the poor, and their successors in each parish wherein any glebe land was vacant or should become so, to sell the same and appropriate the proceeds to the use of the poor of the parish. \nIt is under this last statute that the bill charges the Defendants (who are overseers of the poor of the parish of Fairfax) with claiming a title to dispose of the land in controversy. \nThis summary view of so much of the Virginia statutes as bears directly on the subject in controversy, presents not only a most extraordinary diversity of opinion in the legislature as to the nature and propriety of aid in the temporal concerns of religion, but the more embarrassing considerations of the constitutional character and efficacy of those laws touching the rights and property of the Episcopal church. \nIt is conceded  on all sides that, at the revolution, the Episcopal church no longer retained its character as an exclusive religious establishment. And there can be no doubt that it was competent to the people and to the legislature to deprive it of its superiority over other religious sects, and to withhold from it any support by public taxation. But, although it may be true that \"religion can be directed only by reason and conviction, not by force or violence,\" and that \"all men are equally  entitled to the free exercise of religion according to the dictates of conscience,\" as the bill of rights of Virginia declares, yet it is difficult to perceive how it follows as a consequence that the legislature may not enact laws more effectually to enable all sects to accomplish the great objects of religion by giving them corporate rights for the management of their property, and the regulation of their temporal as well as spiritual concerns. Consistent with the constitution of Virginia the legislature could not create or continue a religious establishment which should have exclusive rights and prerogatives, or compel the citizens to worship under a stipulated form or discipline, or to pay  taxes to those whose creed they could not conscientiously believe. But the free exercise of religion cannot be justly deemed to be restrained by aiding with equal attention the votaries of every sect to perform their own rellgious duties, or by establishing funds for the support of ministers, for public charities, for the endowment of churches, or for the sepulture of the dead. And that these purposes could be better secured and cherished by corporate powers, cannot be doubted by any person who has attended to the difficulties which surround all voluntary associations. While, therefore, the legislature might exempt the citizens from a compulsive attendance and payment of taxes in support of any particular sect, it is not perceived that either public or constitutional principles required the abolition of all religious corporations. \nBe, however, the general authority of the legislature as to the subject of religion, as it may, it will require other arguments to establish the position that, at the revolution, all the public property acquired by the Episcopal churches, under the sanction of the laws, became the property of the state. Had the property  thus acquired been  originally granted by the state or the king, there might have been some color (and it would have been but a color) for such an extraordinary pretension. But the property was, in fact and in law, generally purchased by the parishioners, or acquired by the benefactions of pious donors.The title thereto was indefeasibly vested in the churches, or rather in their legal agents. It was not in the power of the crown to seize or assume it; nor of the parliament itself to destroy the grants, unless by the exercise of a power the most  arbitrary, oppressive and unjust, and endured only because it could not be resisted. It was not forfeited; for the churches had committed no offence. The dissolution of the regal government no more destroyed the right to possess or enjoy this property than it did the right of any other corporation or individual to his or its own property. The dissolution of the form of government did not involve in it a dissolution of civil rights, or an abolition of the common law under which the inheritances of every man in the state were held. The state itself succeeded only to the rights of the crown; and, we may add, with many a flower of prerogative struck  from its hands. It has been asserted as a principle of the common law that the division of an empire creates no forfeiture of previously vested rights of property. Kelly v. Harrison, 2 John. c. 29. Jackson v. Lunn, 3 John. c. 109. Calvin's case, 7, co. 27. And this principle is equally consonant with the common sense of mankind and the maxims of eternal justice. Nor are we able to perceive any sound reason why the church lands escheated or devolved upon the state by the revolution any more than the property of any other corporation created by the royal hounty or established by the legislature. The revolution might justly take away the public patronage, the exclusive cure of souls, and the compulsive taxation for the support of the church. Beyond these we are not prepared to admit the justice or the authority of the exercise of legislation. \nIt is not, however, necessary to rest this cause upon the general doctrines already asserted; for, admitting that, by the revolution, the church lands devolved on the state, the statute of 1776, ch. 2, operated as a new grant and confirmation thereof to the use of the church. \nIf the legislature possessed the authority to make such a grant  and confirmation, it is very clear to our minds that it vested an indefeasible and irrevocable title. We have no knowledge of any authority or principle which could support the doctrine that a legislative grant is revocable in its own nature, and held only durante bene placito. Such a doctrine would uproot the very foundations of almost all the land titles in Virginia, and is utterly inconsistent with a great and fundamental principle of a  republican government, the right of the citizens to the free enjoyment of their property legally acquired. \nIt is asserted by the legislature of Virginia, in 1798 and 1801, that this statute was inconsistent with the bill of rights and constitution of that state, and therefore void. Whatever weight such a declaration might properly have as the opinion of wise and learned men, as a declaration of what the law has been or is, it can have no decisive authority. It is, however, encountered by the opinion successively given by former legislatures from the earliest existence of the constitution itself, which were composed of men of the very first rank for talents and learning. And this opinion, too, is not only a cotemporaneous exposition  of the constitution, but has the additional weight that it was promulgated or acquiesced in by a great majority, if not the whole, of the very framers of the constitution. Without adverting, however, to the opinions on the one side or the other, for the reasons which have been already stated, and others which we forbear to press, as they would lead to too prolix and elementary an examination, we are of opinion that the statute of 1776, ch. 2, is not inconsistent with the constitution or bill of rights of Virginia. We are prepared to go yet farther, and hold that the statutes of 1784, ch. 88, and 1785, ch. 37, were no infringment of any rights secured or intended to be secured under the constitution, either civil, political, or religious. \nHow far the statute of 1786, ch. 12, repealing the statute of 1784, ch. 88, incorporating the Episcopal churches, and the subsequent statutes in furtherance thereof of 1788, ch. 47, and ch. 53, were consistent with the principles of civil right or the constitution of Virginia, is a subject of much delicacy, and perhaps not without difficulty. It is observable, however, that they reserve to the churches all their corporate property, and authorize  the appointment of trustees to manage the same. A private corporation created by the legislature may loose its franchises by a misuser or a nonuser of them; and they may be resumed by the government under a judicial judgment upon a quo warranto to ascertain and enforce the forfeiture. -- This is the common law of the land, and is a tacit condition annexed to the creation of every such corporation. Upon a change of government, too, it may be admitted  that such exclusive privileges attached to a private corporation as are inconsistent with the new government may be abolished. In respect, also, to public corporations which exist only for public purposes, such as counties, towns, cities, &c. the legislature may, under proper limitations, have a right to change, modify, enlarge or restrain them, securing however, the property for the uses of those for whom and at whose expense it was originally purchased. But that the legislature can repeal statutes creating private corporations, or confirming to them property already acquired under the faith of previous laws, and by such repeal can vest the property of such corporations exclusively in the state, or dispose of the same to  such purposes as they may please, without the consent or default of the corporators, we are not prepared to admit; and we think ourselves standing upon the principles of natural justice, upon the fundamental laws of every free government, upon the spirit and the letter of the constitution of the United States, and upon the decisions of most respectable judicial tribunals, in resisting such a doctrine. The statutes of 1798 ch. 9, and of 1801, ch. 5, are not, therefore in our judgment, operative so far as to divest the Episcopal church of the property acquired, previous to the revolution, by purchase or by donation. In respect to the latter statute, there  is this farther objection, that it passed after the district of Columbia was taken under the exclusive jurisdiction of congress, and as to the corporations and property within that district, the right of Virginia to legislate no longer existed. And as to the statute of 1798, ch. 9, admitting it to have the fullest operation, it merely repeals the statutes passed respecting the church since the revolution; and, of course, it left in full force all the statutes previously enacted so far as they were not inconsistent with  the present constitution. It left, therefore, the important provisions of the statutes of 1661, 1696, 1727, and 1748, so far as respected the title to the church lands, in perfect vigor, with so much of the common law as attached upon these rights. \nLet us now advert to the title set up by the Plaintiffs in the present bill. Upon inspecting the deed which is made a part of the bill, and bears date in 1770, the land appears to have been conveyed to the grantees as church wardens of the parish of Fairfax and to their successors  in that office, forever. It is also averred in the bill that the Plaintiffs, together with two of the Defendants (who are church wardens) are the vestry of the Protestant Episcopal charch, commonly called the Episcopal church of Alexandria, in the parish of Fairfax, and that the purchase was made by the vestry of said parish and church, to whom the present vestry are the legal and regular successors in the said vestry; and that the purchase was made for the use and benefit of the said church in the said parish. No statute of Virginia has been cited which creates church wardens a corporation for the purpose of holding lands; and at common law their  capacity was limited to personal estate. 1 B.C. 394 -- Bro. Corp. 77. 84. -- 1 Rolle Abr. 393. 4. 10. -- Com. Dig. tit. Esglise, F. 3. -- 12 H. 7, 27. b. -- 13 H. 7, 9, b. -- 37 H. 6, 30. -- 1 Burn's Eceles. Law, 290. -- Gibs. 215. \nIt would seem, therefore, that the present deed did not operate by way of grant to convey a fee to the church wardens and their successors; for their successors, as such, could not take; nor to the church wardens in their natural capacity; for \"heirs\" is not in the deed. But the covenant of general warranty in the deed binding the grantors and their heirs forever, and warranting the land to the church wardens and their successors forever may well operate by way of estoppel to confirm to the church and its privies the perpetual and beneficial estate in the land. \nOne difficulty presented on the face of the bill was, that the Protestant Episcopal church of Alexandria was not directly averred to be the same corporate or unincorporate body as the church and parish of Fairfax, or the legal successors thereto, so as to entitle them to the lands in controversy. But upon an accurate examination of the bill, it appears that the purchase was made by the vestry  \"of the said parish and church,\" \"for the use and benefit of the said church in the said parish.\" It must, therefore, be taken as true that there was no other Episcopal church in the parish; and that the property belonged to the church of Alexandria, which in this respect, represented the whole parish. And there can be no doubt that the Episcopal members of the parish of Fairfax have still, notwithstanding a separation from the state of Virginia, the same rights and privileges as  they originally possessed in relation to that church, while it was the parish church of Fairfax. \nThe next consideration is whether the Plaintiffs, who are vestry men, have, as such, a right to require the lands of the church to be sold in the manner prayed for in the bill. Upon the supposition that no statutes passed since the revolution are in force, they may be deemed to act under the previous statutes and the common law.By those statutes the vestry were to be appointed by the parishoners \"for the making and proportioning levies and assessments, for building and repairing the churches and chapels, provision for the poor, maintenance of the minister, and such other necessary purposes, and for  the more orderly managing all parochial affairs;\" out of which vestry the minister and vestry were yearly to choose two church wardens. \nAs incident to their office as general guardians of the church, we think they must be deemed entitled to assert the rights and interests of the church. But the minister, also having the freehold, either in law or in equity, during his incumbency, in the lands of the church, is entitled to assert his own rights as persona ecclesioe. No alienation, therefore of the church lands can be made either by himself or by the parishioners or their authorized agents, without the mutual consent of both. And therefore we should be of opinion that, upon principle, no sale ought to be absolutely decreed, unless with the consent of the parson, if the church be full. \nIf the statute of 1784, ch. 88, be in force for any purpose whatsoever, it seems to us that it would lead to a like conclusion. If the repealing statute of 1786, ch. 12 or the statute of 1788, ch. 47, by which the church property was authorized to be vested in trustees chosen by the church, and their successors, be in force for any purpose whatsover, then the allegation of the bill, that the Plaintiffs  \"have, according to the rules and regulations of their said society, been appointed by the congregation vestry-men and trustees of the said church,\" would directly apply, and authorize the Plaintiffs to institute the present bill. Still, however, it appears to us that in case of a plenarty of the church, no alienation or sale of the church lands ought to take place without the  assent of the minister, unless such assent be expressly dispensed with by some statute. \nOn the whole the majority of the Court are of opinion that the land in controversy belongs to the Episcopal church of Alexandria, and has not been divested by the revolution, or any act of the legislature passed since that period; that the Plaintiffs are of ability to maintain the present bill; that the overseers of the poor of the parish of Fairfax have no just, legal, or equitable title to the said land, and ought to be perpetually enjoined from claiming the same; and that a sale of the said land ought, for the reasons stated in the bill, to be decreed upon the assent of the minister of said church (if any there be) being given thereto; and that the present church wardens and the said James Wren ought to be  decreed to convey the same  to the purchaser; and the proceeds to be applied in the manner prayed for in the bill. \nThe decree of the Circuit Court is to be reformed so as to conform to this opinion. \n \n\n ", " \nOpinion \n\n \n \n   STORY, J. delivered the opinion of the Court as follows: \nThis is an action of debt brought against the former marshal of Virginia for an alleged wilful and negligent escape of a judgment debtor. At the trial of the cause in the Circuit Court of Virginia, several exceptions were taken by the Plaintiff in error to the opinions of the district judge who alone sat in the cause; and the validity of these exceptions is now to be considered by this Court. \nThe first exception presents the question whether an escape of a judgment debtor, after a regular commitment, under process of the United States' Courts, to a state jail, be an escape for which the marshal of the United States for the district is responsible. \nCongress, by a resolution passed the 23d September, 1789. (1 Laws U.S. 362) recommended to the several states to pass laws making it the duty of the keepers of their jails to receive and safe keep prisoners committed under the authority of the United States, under like  penalties as in the case of prisoners committed under the authority of such states respectively; and, by another resolution of 3d of March, 1791, (1 Laws U.S. 357) authorized the  marshals, in the meantime, to hire temporary jails. In pursuance of the former recommendation, the legislature of Virginia, by the act of 12th November, 1789, ch. 41, (Revised Code, 43) made it the duty of the keepers of the jails within the state to receive and keep prisoners arrested under the process of the United States, and for any neglect or failure of  duty, subjected them to like pains and penalties as in cases of prisoners committed under process of the state. \nThe act of congress of 24th September, 1789, ch. 20. § 27 and 28, authorizes the marshals of the several districts of the United States to appoint deputies, and declares them responsible for the defaults and misfeasances in office of such deputies. But there is no provision in any act of congress declaring the keepers of state jails quoad prisoners in custody under process of the United States to be deputies of the marshals, or making the latter liable for escapes committed by the negligence or malfeasance of the former. If, therefore, the marshals be so liable, it is an inference from the general powers and duties annexed to their office. \nIt is argued that the marshals are so liable, because, in intendment  of law, prisoners committed to state jails are still deemed to be in their custody; and in support of this argument is cited the provision in the act of congress which makes the marshal, on the removal from or the expiration of his office, responsible for the delivery to his successor of all prisoners in his custody; and authorizes him, for that purpose, to retain such prisoners in his custody until his successor is appointed. And this argument is further supported by its analogy to the case of sheriffs, and by the extreme inconvenience which, it is asserted, would arise from a contrary doctrine. \nThe argument is not without weight; but, upon mature consideration, we are of opinion that it cannot prevail. The act of congress has limited the responsibility of the marshal to his own acts and the acts of his deputies.  The keeper of a state jail is neither in factory in law the deputy of the marshal. He is not appointed by nor removable at the will of the marshal. When a prisoner is regularly committed to a state jail by the marshal, he is no longer in the custody of the marshal, nor controlable by him. The marshal has no authority to command or direct the keeper in respect  to the nature of the imprisonment. The keeper becomes responsible for his own acts, and may expose himself by misconduct to the \"pains and penalties\" of the law. For certain purposes, and to certain intents, the state jail lawfully used by the United States, may be deemed to be the jail of the United States, and that keeper to be keeper of the United States. But this would no more make the marshal liable for his acts than for the acts of any other officer of the United States whose appointment is altogether independent. And in these respects there is a manifest difference between the case of a marshal and a sheriff. The sheriff is, in law, the keeper of the county jail, and the jailer is his deputy appointed and removable at his pleasure. He has the supervision and control of all the prisoners within the jail; and, therefore, is justly made responsible by law for all escapes occasioned by the negligence or wilful misconduct of his under keeper. \nOn the whole, as neither the act of congress nor the doctrine of the common law applicable to the case of principal and agent, affect the marshal with responsibility for the escape of a prisoner regularly committed to the custody of the  keeper of a state jail, we are all of opinion that the decision of the Circuit Court upon this point was erroneous, and that the judgment must be reversed. \nThis decision renders it unnecessary to consider the other points raised in the bills of exception. \nJudgment reversed. \n \n\n ", " \nOpinion \n\n \n \n  STORY, J. delivered the opinion of the Court as follows: \nThe United States brought an action of debt against the Defendants on a bond given for the payment of duties on goods imported in the brig Dover into the port of Providence. \n Upon the pleadings in the Court below, judgment was given in favor of the United States, and the Defendants have brought the present writ of error to reverse that judgment. \nThe material facts are, that the brig arrived within the limits of the United States on the 30th day of June, 1812; and within the collection district of Providence, on the first day of July, 1812. On the second day of July, an entry was duly made at the custom house and the present bond was then executed. \nThe principal question which has been argued is, whether on these facts the goods are liable to the payment of the double duties imposed by the act of the first day of July, 1812, ch. 112. That act provides \"that an additional duty of 100 per cent. upon the permanent duties now imposed by law, &c. shall be levied and collected upon all goods, wares and merchandizes which shall, from and after the passing of this act, be imported into the United States from any foreign port or place.\" It is contended that this statute did not take effect until the second day of July; nor indeed until it was formally promulgated and published. We cannot yield assent to this construction. The statute was to take effect   from its passage; and it is a general rule that where the computation is to be made from an act done, the day on which the act is done is to be included. \nIt is further contended that the importation was complete by the arrival of the vessel within the jurisdictional limits of the United States, on the thirtieth day of June. We have no difficulty in overruling this argument. To constitute an importation so as to attach the right to duties, it is necessary not only that there should be an arrival within the limits of the United States, and of a collection district but also within the limits of some port of entry. This was expressly decided in the case of the United States v. Vowell, 5 Cranch, 368. \nWithout therefore adverting to the consideration of the regularity or sufficiency of the pleadings we are all firmed. \nJudgment affirmed with six per cent. damages and costs. \n \n\n ", " \nOpinion \n\n \n \n  STORY, J. delivered the opinion of the Court as follows: \n The only claims in this case now remaining for the consideration of the Court, are those of Mr. Penniman and M'Gregor. Further proof was directed, at the last term, to be made in respect to those claims; and no additional evidence having been produced, beyond that which was then disclosed to the Court, the causes have been submitted for a final decision. \nIn respect to the claim of Mr. Penniman, the evidence is very strong  that the goods were purchased some time before the war, by his agent in Great Britain, on his sole account. They were not, however, shipped for the United States until the latter part of May, 1813. \nIt is not the intention of the Court to express any opinion as to the right of an American citizen, on the breaking out of hostilities, to withdraw his property purchased before the war, from an enemy country. Admitting such right to exist, it is necessary that it should be exercised with due diligence, and within a reasonable time after the knowledge of hostilities. To admit a citizen to withdraw property from an enemy country, a long time after the war, under the pretence of its having been purchased before the war, would lead to the most injurious consequences, and hold out strong temptations to every species of fraudulent and illegal traffic with the enemy. To such an unlimited extent we are all satisfied that the right cannot exist. The present shipment was not made until more than eleven months had elapsed after war was declared; and we are all of opinion that it was then too late for the party to make the shipment, so as to exempt him from the penalty attached to an illegal  traffic with the enemy. The consequence is, that the property of Mr. Penniman must be condemned. \nAnd this decision is fatal, also, to the claim of Mr. M'Gregor. Independent, indeed, of this principle, there are many circumstances in the case unfavorable to the latter gentleman. In the first place, it is not pretended that the goods included in his claim were purchased before the war. In the next place, he was the projector of the present voyage, and became, as to one moiety, the charterer or purchaser of the ship.  Nearly all the cargo consisted of goods belonging (as it must now be deemed) exclusively to British merchants. He was, therefore, engaged in an illegal traffic of the most noxious nature; a traffic not only prohibited by the law of war, but by the municipal regulations of his adopted country. His whole property, therefore, embarked in such an enterprize, must alike be infected with the taint of forfeiture. \nThe judgment of the Circuit Court must, therefore, as to these claims, be affirmed with costs. \n \n\n ", " \nOpinion \n\n \n \n  STORY, J. delivered the opinion of the Court as follows: \nThe American letter of marque, schooner Adeline, with a valuable cargo on board, was captured on her voyage from Bordeaux to New York, on or about the 14th of March, 1814, by a British squadron; and, on or about the 19th of the same month, was re-captured by the American privateer, Expedition,  James Clayton, commander, and brought into New York for adjudication. Prize proceedings were immediately instituted against the vessel and cargo as enemy property; and various claims were interposed in behalf of American and French merchants. Upon the hearing of the cause, the district Court decreed a restoration of all the property of American citizens and other persons resident in the United States, upon the payment of one sixth of the value as salvage, and condemned all the property of French subjects and of American citizens domiciled in France, and of all others whose residence remained unexplained, as good and lawful prize to the captors. From the former part of the decree the captors appealed, and from the latter part the Claimants appealed to the Circuit Court; and from an affirmance pro forma of the decree in that Court, the parties have appealed to this Court. It does not appear in the record that any decree was  pronounced in respect to the vessel; and it is therefore probable, as intimated by counsel, that she has been restored on a compromise between the parties interested. \nBefore we proceed to the consideration of the principal questions which have been  argued, it will be proper to notice several objections to the regularity of the allegations, proceedings and proofs in the cause. \nIt is, in the first place, asserted, on behalf of the Claimants,  that if this should turn out not to be a case of enemy property, but of salvage merely, (as most certainly as to some of the claims it must be held to be) the re-captors can take nothing by the present libel, because it proceeds upon the mere footing of the property being prize of war. And it is likened to the case of a declaration at common law, where the party can only recover secundum allegata et probata; and if no count hit the precise case, the party must be non-suited. \nIf, indeed, there were any thing in this objection, it cannot, in any beneficial manner, avail the Claimants. The most that could result would be that the cause would be remanded to the Circuit Court with directions to allow an amendment of the libel. Where merits clearly appear on the record, it is the settled practice, in admiralty proceedings, not to dismiss the libel, but to allow the party to assert his rights in a new allegation. This practice so consonant with equity and sound principle, has been  deliberately adopted by this Court on former occasions. After all, therefore, the Claimants would, in the language of an eminent civilian, but change postures on an uneasy bed. \nBut we are all of opinion that there is nothing in this objection. No proceedings can be more unlike than those in the Courts of common law and in the admiralty. In prize causes, in an especial manner, the allegations, the proofs and the proceedings are, in general, modelled upon the civil law, with such additions and alterations as the practice of nations and the rights of belligerents and neutrals unavoidably impose. The Court of prize is emphatically a Court of the law of nations; and it takes neither its character nor its rules from the mere municipal regulations of any country. \nIn cases of mere civil salvage, it may be fit and proper that the libel should distinctly allege and claim salvage, though we do not mean to assert that, even in such cases, it is indispensable. In cases of military salvage, also, the party may, if he please, adopt a similar proceeding. But it is by no means necessary, and, in most cases, would be highly inexpedient. Re-captures are emphatically cases of prize; for the definition  of prize goods is, that they are goods taken on the high seas,  jure belli, out of the hands of the enemy. When so taken, the captors have an undoubted right to proceed against them as belligerent property in a Court of prize: for in no other way, and in no other Court can the questions presented on a capture jure belli be properly or effectually examined. The very circumstance that it is found in the possession of the enemy, affords prima facie evidence that it is his property. It may have previously possessed a neutral or friendly character; but if the property has been changed by a sentence of condemnation, or by such possession as nations recognize as firm and effectual, the neutral or friendly owner is forever ousted of his right. \nIt depends altogether upon future proceedings; upon the examinations taken in preparatory and the documents on board; upon the verity of the claims, and the diligence and good faith of the Claimants; and upon the principles of international law, comity and reciprocity, whether a restoration can be decreed or not. How can these questions be decided, unless the customary proceedings of prize are instituted and enforced? How can it be known  whether all the documents on board be not colorable and false, or whether the conduct of the Claimant be not unneutral or fraudulent, unless the truth is drawn from the parties intrusted with the property for the voyage, by the trying force of the standing interrogatories and the test affidavits? The very case before us presents a strong illustration of the propriety of these proceedings. There is a large shipment on board, which, on the bill of lading, purports to be the property of an American Claimant; yet the Claimant himself expressly swears that it is the sole property of the French shipper. What the consequences are of that fact will be presently seen. \nThe Court, then, has a legitimate jurisdiction over the property as prize; and, having it, will exert its authority over all the incidents. It will decree a restoration of the whole or of a part; it will decree it absolutely, or burthened with salvage, as the circumstances of the case may require: and whether the salvage be held a portion of the thing itself, or a mere lien upon it, or a condition annexed to its restitution, it is an incident to the principal question of prize, and within  the scope of the regular  prize allegation. If, therefore, the case stood upon principle alone, we should not doubt as to the sufficiency of the libel for this purpose; but it has, also, the clear support of the practice of the admiralty. The Aquila, 1 Rob. 37. The Franklin, 4 Rob. 147. The Jonge Lambert, 5 Rob. 54, note. \nAnother objection urged on behalf of the captors, is to the sufficiency of the claims and test affidavits. It is asserted, and truly, that the goods are not alleged, in the claim or affidavits, to have belonged to the Claimants at the time of shipment; it is only alleged that they so belonged at the time of capture. Regularly the test affidavit should state that the property, at the time of shipment and also at the time of capture, did belong, and will, if restored, belong to the Claimant; but an irregularity of this nature has never been supposed to be fatal. It might, in a case of doubt or suspicion, or in a case calling for the application of the doctrine as to the legal effect of changes of property in transitu, have justified an order for further proof: or, in cases of gross negligence or pregnant fraud, have drawn upon the party more severe consequences. But in ordinary cases,  it is not deemed to work any serious consequences: in this instance, it probably passed unnoticed in the Courts below, where if the blot had been hit, it might have been instantaneously removed by an amendment. Another irregularity undoubtedly was, that the test affidavits were put in, on behalf  of many of the Claimants, by their agents, although the principals were resident in the U. States, and within the reasonable reach of the Court. Where the principal is without the country, or resides at a great distance from the Court, the admission of a claim and test affidavit by his agent, is the common course of the admiralty. But where the principal is within a reasonable distance, something more than a formal affidavit by his agent is expected? At least the suppletory oath of the principal as to the facts, should be tendered; for otherwise its absence might produce unfavorable suspicions. If, indeed, the principal might always withdraw himself from the view of the Court, and shelter his pretensions behind the affidavit of an innocent or ignorant agent, there would be no end to the impositions practised upon the Court. The Court expects, in proper cases, something more  than the mere formal test  affidavit of an agent, who may swear truly, and yet, from his want of knowledge, be the dupe of cunning and fraud. It is not meant to assert that any such imputations belong to the present case. This irregularity, like the former, probably passed in silence; and it would be highly injurious if an objection of this sort should now prevail, when all parties have hitherto acquiesced in its immateriality. \nWe are now led to the principal question in this cause; viz. what rate of salvage is to be allowed to the re-captors? This depends upon the true construction of the salvage act of congress of 3d of March, 1800, ch. 14. That act provides, that, upon the re-capture of any vessel; (other than a vessel of war or privateer,) or of any goods belonging to any persons resident within or under the protection of the United States, the same, if re-captured by a private vessel of the U. States, shall be restored on payment of one sixth part of the value of the vessel or goods; and if the vessel, so re-captured, shall appear to have been set forth and armed as a vessel of war, before such capture, or afterwards, then upon a salvage of one half of the true  value of such vessel of war. \nIt is argued, in behalf of the re-captors, that the Adeline being an armed vessel, they are entitled to a moiety of the value of the cargo as well as of the vessel; either upon an equitable construction of the statute, or upon general principles, as a case not within the purview of the statute. \nWe are all, however, of a different opinion. The statute is expressed in clear and unambiguous terms. It does not give the salvage of one sixth part of the value upon goods, the cargo of an unarmed vessel; but it gives it upon any goods re-captured, without any reference to the vehicle or vessel in which they are found. We cannot interpose a limitation or qualification upon the terms which the legislature has not itself imposed; and if there be ground for higher salvage in cases of armed vessels, either upon public policy or principle, such considerations must be addressed with effect to another tribunal. This decision affirms the decree of the Circuit Court as to the claims of all the parties domiciled in the United States. \n As to the claims of the parties domiciled in France, whether natives or Americans, or other foreigners, their rights depend  altogether upon the law of France as to re-captures; for by the act of congress, as well as by the general law, in cases of re-capture, the rule of reciprocity is to be applied. If France would restore in a like case, then are we bound to restore; if otherwise, then the whole property must be condemned to the re-captors. It appears that by the law of France in cases of re-capture, after the property has been 24 hours in possession of the enemy, the whole property is adjudged good prize to the re-captors, whether it belonged to her subjects, to her allies, or to neutrals. We are bound, therefore, in this case, to apply the same rule; and as the property in this case was re-captured after it had been in possession of the enemy more than 24 hours, it must, so far as it belonged to persons domiciled in France, be condemned to the captors; and the decree of the Circuit Court as to them must be affirmed. \nAs to the claims of the other persons whose national character and proprietary interest do not distinctly appear, considering all the circumstances, we shall direct farther proof to be made on both points. As, indeed, the master has not been able to swear directly to the proprietary  interest of the cargo, but simply says that the goods were, as he presumes and believes, the property of the shippers or the consignees, perhaps, in strictness, farther proof might have been required in the Courts below as to the whole cargo. It was not, however, moved for there by the captors; and as we are satisfied in relation to the claims which we shall restore, it would be useless now to make such a general order. \nUpon these principles, the property embraced in the claims by and in behalf of Alexis Gardere, of William Weaver and Isaac Levis, Jointly, and of William Weaver alone, of Andrew Byerly, of George I. Brown and William Hollins, of Peter A. Karthous, of William Bayard, Harman Leroy, James, M'Evers and Isaac Iselm, of William Hood, of Theophilus De Cost, of John Dubany, of Messrs. John B. Fonssatt & Co. of Edward Smith, James Wood and Samuel W. Jones, of Victor Ardaillin, of Lewis Chastant, of Lewis Labat, of Benjamin Rich, of Nath'l. Richards, Nayah Taylor and Gustavus Upson, of  Ferdinand Hurxthal; must be restored on payment of the salvage of one sixth part of the value. The property embranced in the claims on behalf of Peter Boue, junr. of R. Henry, of  P. Doussault, of William Johnston and James Dowling, of G. Brousse, must be condemned to the captors. \nThe remaining claims must stand for farther proof.And as to the property unclaimed, it must be condemned as good and lawful prize to the captors. \nThe decree of the Circuit Court is to be reformed so as to be in conformity with this decision. \n \n\n ", " \nOpinion \n\n \n \n  STORY, J. delivered the opinion of the Court as follows: \nThis is an information against twelve casks of merchandize, part of the cargo of the brig Ann, alleged to have been imported or put on board with an intent to be imported contrary to the non-importation act of 1st March, 1809, ch. 91, § 5. \nIt appears from the evidence that the Ann sailed from Liverpool for New York in July, 1812, having on board a cargo of British merchandize. She was seized by a revenue cutter of the United States, on her passage towards New York, while in Long Island Sound, about midway between Long Island and Falkland Island, and carried into the port of New Haven about the 7th of October, 1812, and immediately taken possession of by   the collector of that port, as forfeited to the United States. On the morning of the 12th of October the collector gave written orders for the release of the brig and cargo from the seizure, in pursuance of directions from the secretary of the treasury, returned the ship's papers to the master, and gave permission for the brig to proceed without delay to New York. Late in the afternoon of the same day, the present information was allowed by the district judge, and on the ensuing day, the brig and cargo were duly taken into possession by the marshal, under the usual monition from the Court. On the trial in the District Court, the property now in controversy was condemned; and, upon an appeal, that decree was reversed in the Circuit Court. \nIt has been argued that the decree of the Circuit Court ought to be affirmed, because, on the whole facts, the District Court had no jurisdiction over the cause: and this argument is maintained on two grounds; first, That the original seizure was made within the judicial district of New York; and, secondly, That if the seizure was originally made within the judicial district of Connecticut, the jurisdiction thereby acquired by the District  Court was, by the subsequent abandonment of the seizure and want of possession, completely ousted. \nIt is unnecessary to consider the first ground, because we are all of opinion that sufficient matter is not disclosed in the evidence to enable the Court to decide whether the seizure was within the district of New York or of Connecticut, or upon waters common to both. \nThe second ground deserves great consideration. By the judicial act of the 24th September, 1789, ch. 20, § 9, the District Courts are vested with \"exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction, including all seizures under laws of impost, navigation or trade of the United States, where the seizures are made on waters navigable from the sea by vessels of ten or more tons burthen within their respective districts, as well as upon the high seas.\" Whatever might have been the construction of the jurisdiction of the District Courts, if the legislature had stopped at the words \"admiralty and maritime jurisdiction,\" it seems manifest, by the subsequent clause, that  the jurisdiction as to revenue forfeitures, was intended to be given to the Court of the district, not where  the offence was committed, but where the seizure was made. And this with good reason. In order to institute and perfect proceedings in rem, it is necessary that the thing should be actually or constructively within the reach of the Court. It is actually within its possession when it is submitted to the process of the Court; it is constructively so, when, by a seizure, it is held to ascertain and enforce a right or forfeiture which can alone be decided by a judicial decree in rem. If the place of committing the offence had fixed the judicial forum where it was to be tried, the law would have been, in numerous cases, evaded; for, by a removal of the thing from such place, the Court could have had no power to enforce its decree. The legislature, therefore, wisely determined that the place of seizure should decide as to the proper and competent tribunal. It follows, from this consideration, that before judicial cognizance can attach upon a forfeiture in rem, under the statute, there must be a seizure; for until seizure it is impossible to ascertain what is the competent forum. And, if so, it must be a good subsisting seizure at the time when the libel or information is filed and  allowed. If a seizure be completely and explicitly abandoned, and the property restored by the voluntary act of the party who has made the seizure, all rights under it are gone. Although judicial jurisdiction once attached, it is divested by the subsequent proceedings; and it can be revived only by a new seizure. It is, in this respect, like a case of capture, which, although well made, gives no authority to the prize Court to proceed to adjudication, if it be voluntarily abandoned before judicial proceedings are instituted. It is not meant to assert that a tortious ouster of possession, or fraudulent rescue, or relinquishment after seizure, will divest the jurisdiction. The case put (and it is precisely the present case) is a voluntary abandonment and release of the property seized, the legal effect of which must, as we think, be to purge away all the prior rights acquired by the seizure. \nOn the whole, it is the opinion of the majority of the Court that the decree of the Circuit Court ought to be affirmed. \n \n\n ", " \nOpinion \n\n \n \n  STORY , J. delivered the opinion of the Court as follows; \nThe first question presented in this case is, whether the Court has jurisdiction. The Plaintiffs claim under a grant from the state of Vermont, and the Defendants claim under a grant from the state of New Hampshire, made at the time when the latter state comprehended the whole territory of the former state. The constitution of the United States, among other things, extends the judicial power of the United States to controversies \"between citizens of the same state claiming lands under grants of different states.\" It is argued that the grant under which the Defendants claim is not a grant of a different state within the meaning of the constitution, because Vermont, at the time of its emanation was not a distinct government, but was included in the same sovereignty as New Hampshire. \nBut it seems to us that there is nothing in this objection. The constitution intended to secure an  impartial tribunal for the decision of causes arising from the grants of different states; and it supposed that a state tribunal might not stand indifferent in a controversy where the claims of its own sovereign were in conflict with those of another sovereign. It had no reference whatsoever to the antecedent situation of the territory, whether included in one sovereignty or another. It simply regarded the fact whether grants arose under the same or under different states. Now it is very clear that although the territory of Vermont was once a part of New Hampshire, yet the state of Vermont, in its  sovereign capacity, is not, and never was the same as the state of New Hampshire. The grant of the Plaintiffs emanated purely and exclusively from the sovereignty of Vermont; that of the Defendants purely and exclusively from the sovereignty of New Hampshire. The sovereign power of New Hampshire remains the same although it has lost a part of its territory; that of Vermont never existed until its territory was separated from the jurisdiction of New Hampshire. The circumstance that a part of the territory or population was once under a common sovereign no more makes the states  the same, than the circumstance that a part of the members of one corporation constitutes a component part of another corporation, makes the corporation the same. Nor can it be affirmed, in any correct sense, that the grants are of the same state; for the grant of the Defendants could not have been made by the state of Vermont, since that state had not at that time any legal existence; and the grant of the Plaintiffs could not have been made by New Hampshire, since, at that time, New Hampshire had no jurisdiction or sovereign existence by the name of Vermont. The case is, therefore, equally within the letter and spirit of the clause of the constitution. It would, indeed, have been a sufficient answer to the objection, that the constitution and laws of the United States, by the admission of Vermont into the union as a distinct government, had decided that it was a different state from that of New Hampshire. \nThe other question which has been argued is not without difficulty. It is contended by the Plaintiffs that the original grant, in the charter of Pawlet, of \"one share for a glebe for the church of England as by law established,\" is either void for want of a grantee, or if it  could take effect at all, it was as a public reservation, which, upon the revolution, devolved upon the state of Vermont. \nThe material words of the royal charter of 1761 are, \"do give and grant in equal shares unto our loving subjects, &c. their heirs and assigns forever, whose names are entered on this grant, to be divided amongst them into sixty-eight equal shares, all that tract or parcel of land, &c. and that the same be and hereby is incorporated  into a township by the name of Pawlet; and the inhabitants that do or shall hereafter inhabit the said township, are hereby declared to be infranchised with and entitled to all and every the privileges and immunities that other towns within our province by law exercise and enjoy. To have and to hold the tract of land, &c. to them and their respective heirs and assigns forever, upon the following conditions,\" &c. \nUpon the charter are endorsed the names of sixty-two persons, and then follows this additional clause: \"His excellency, Benning Wentworth, a tract of land to contain 500 acres as marked in the plan B.W. which is to be accounted two shares; one share for the incorporated  society for the propagation of  the gospel in foreign parts; one share for a glebe for the church of England as by law established; one share for the first settled minister of the gospel; one share for the benefit of a school in said town.\" Thus making up, with the preceding sixty two shares, the whole number of sixty-eight shares stated in the charter. \nBefore we proceed to the principal points in controversy, it will be proper to dispose of those which more immediately respect the legal construction of the language f the charter. And in our judgment, upon the true construction of that instrument, none of the grantees, saving governor Wentworth, could legally take more than one single share, or a sixty-eighth part of the township. This construction is conformable to the letter and obvious intent of the grant, and, as far as we have any knowledge, has been uniformly adopted in New Hampshire. It is not for this Court upon light grounds or ingenious and artificial reasoning to disturb a construction which has obtained so ancient a sanction, and has settled so many titles, even if it were at first somewhat doubtful. But it is not in itself doubtful; for it is the only construction which will give full effect to  all the words of the charter. Upon any other, the words \"in equal shares,\" and \"to be divided amongst them in sixty-eight equal shares,\" would be nugatory or senseless. We are further of opinion that the share for a glebe is not vested in the other grantees having a capacity to take, and so in the nature of a condition,  use, or trust, attaching to the grant. It is no where stated to be a condition binding upon such proprietors, although other conditions are expressly specified. Nor is it a trust or use growing out of the sixty-eighth part granted to the respective proprietors, for it is exclusive of these shares by the very terms of the charter. The grant is in the same clause with that to the society for the propagation of the gospel, and in the same language, and ought, therefore, to receive the same construction, unless repagnant to the context, or manifestly requiring a different one. It is very clear that the society for the propagation of the gospel take a legal, and not a merely equitable estate; and there would be no repugnancy to the context, in considering the glebe, in whomsoever it may be held to vest, as a legal estate. \nWe are further of opinion that  the three shares in the charter \"for a glebe,\" \"for the first settled minister,\" and \"for a school,\" are to be read in connexion, so as to include in each the words \"in the said town,\" i.e. of Pawlet; so that the whole clause is to be construed, one share for a glebe, &c. in the town of Pawlet, one share for the first settled minister in the town of Pawlet, and one share for a school in the town of Pawlet. \nWe will now consider what is the legal operation of such a grant at the common law; and how far it is affected by the laws of New Hampshire or Vermont. \nAt common law the church of England, in its aggregate description, is not deemed a corporation. It is indeed one of the great estates of the realm; but is no more, on that account, a corporation, than the nobility in their collective capacity. The phrase, \"the church of England,\" so familiar in our laws and judicial treatises, is nothing more than a compendious expression for the religious establishment of the realm, considered in the aggregate under the superintendance of its spiritual head. In this sense the church of England is said to have peculiar rights and privileges, not as a corporation, but as an ecclesiastical institution  under the patronage of the state. In this sense it is used in magna charta, ch. 1, where it is declared \"quod ecclesia anglicana libera sit, et habeat omnia jura sua integra, et libertates  suas illoesas;\" and lord Coke, in his commentary on the text, obviously so understands it, 2 Inst. 2, 3. The argument, therefore, that supposes a donation to \"the church of England,\" in its collective capacity, to be good, cannot be supported, for no such corporate body exists even in legal contemplation. \nBut it has been supposed that the \"church of England of a particular parish,\" must be a corporation for certain purposes, although incapable of asserting its rights and powers, except by its parson regularly inducted. And in this respect it might be likened to certain other aggregate corporations acknowledged in law, whose component members are civilly dead, and whose rights may be effectually vindicated through their established head, though during a vacancy of the headship they remain inert; such are the common law corporations of abbot and convent, and prior and monks of a priory. Nor is this supposition without the countenance of authority. \nThe expression, parish church, has  various significations. It is applied sometimes to a select body of Christians forming a local spiritual association; and sometimes to the building in which the public worship of the inhabitants of a parish is celebrated; but the true legal notion of a parochial church is a consecrated palce, having attached to it the rights of burial and the administration of the sacraments. Com. Dig. Esglise, C. Seld. de Decim. 265. 2 Inst. 363. 1 Burn's Eccles. law, 217. 1 Woodes, 314. Doctor Gibson, indeed, holds that the church in consideration of law is properly the cure of souls, and the right of tithes. Gibs. 189. 1 Burn's Eccles. law, 232. \nEvery such church, of common right, ought to have a manse and glebe as a suitable endowment; and without such endowment it cannot be consecrated; and until consecration it has no legal existence as a church. Com. Dig. Dismes, B. 2. 3 Inst. 203. Gibs. 190. 1 Burn's Eccl. law, 233. Com. Dig. Esglise, A. Dort. of Plural, 80. When a church has thus acquired all the ecclesiastical rights, it becomes in the language of law a rectory or parsonage, which consists of a glebe, tithes and oblations established for the maintenance of a parson   or rector to have cure of souls within the parish. Com. Dig. Ecelesiast. persons, (C. 6.) \nThese capacities, attributes and rights, however, in order to possess a legal entity, and much more to be susceptible of a legal perpetuity, must be invested in some natural or corporate body; for in no other way can they be exercised or vindicated. And so is the opinion of lord Coke in 3 Inst 201, 202, where he says, \"albeit they\" (i.e. subjects) \"might build churches without the king's license, yet they could not erect a spiritual politic body to continue  in succession and capable of endowment without the king's license; but by the common law before the statute of Mortmain they might have endowed the spiritual body once incorporated perpetuis futuris temporibus, without any license from the king or any other.\" \nThis passage points clearly to the necessity of a spiritual corporation to uphold the rectorial rights. We shall presently see whether the parish church, after consecration, was deemed in legal intendment such a corporation. In his learned treatise on tenures, lord chief baron Gilbert informs us that anciently, according to the superstition of the age, abbots and prelates  \"were supposed to be married to the church, in as much as the right of property was vested in the church, the estate being appropriated, and the bishop and abbot as husbands and representatives of the church had the right of possession in them; and this the rather because they might maintain actions and recover, and hold Courts within their manors and precinets as the entire owners; and that crowns and temporal states might have no reversions of interests in their feuds and donations. Therefore, since they had the possession in fee, they might alien in fee; but they could not alien more than the right to possession that was in them, for the right of propriety was in the church.\" But as to a parochial parson, \"because the cure of souls was only committed to him during life, he was not capable of a fee, and, therefore, the fee was in abeyance.\" Gilb. Tenures, 110, &c. \nConformable herewith is the doctrine of Bracton, who observes that an assize juris utrum would not lie  in cases of a gift of lands to cathedral and conventual churches, though given in liberam eleemosynam, because they were not given to the church solely, but also to a parson to be held as a barony, non solum  dantur ecclesiis, sed et personis tenendae in baronia; and, therefore, they might have all the legal remedies applicable to a fee. But he says it is otherwise to a person claiming land in right of his church, for in cases of parochial churches, gifts were not considered as made to the parson, but to the church, quia ecclesiis parochialibus non fit donatio personae, sed ecclesioe, secundum perpendi poterit per modum donationis. Bracton, 286, b. 1 Reeves Hist. law, 369. And in another place, Bracton, speaking of the modes of acquiring property, declares that a donation may well be made to cathedrals, convents, parish churches and religious personages, poterit etiam donatio fieri in liberam eleemosynam, sicut ecclesiis cathedralibus, conventualibus, parochialibus, vivis religiosis, &c. Bracton, 27, b. 1 Reeve Hist. law, 303. \nThe language of these passages would seem to consider cathedral, conventual, and parochial churches as corporations of themselves, capable of holding lands. But upon an attentive examination it will be found to be no more than an abreviated designation of the nature, quality and tenure of different ecclesiastical inheritances, and that the real spiritual corporations,  which are tacitly referred to, are the spiritual heads of the particular church, viz. the bishop, the abbot, and, as more important to the present purpose, the parson, qui gerit personam ecclesiae. \nUpon this ground it has been held in the year books, 11 Il. 4, 84, b, and has been cited as good law by Fitzherbert and Brook. (Fitz; Feofft. pl. 42. -- Bro. Estate pl. 49, S.C. Viner, ab. L. pl. 4,) that if a grant be made to the church of such a place, it shall be a fee in the parson and his successors. Si terre soit done per ceux parolz, dedit et concessit ecclesioe de tiel lieu, le parson et ses successeurs serra inheriter. And in like manner if a gift be of chattels to parishoners, who are no corporation, it is good and the church wardens shall take them in succession, for the gift is to the use of the church. 37 H. 6. 30. -- 1 Kyd. Corp. 29. \n In other cases the law looks to the substance of the gift, and in favor of religion, vest sit in the party capable of taking it. And notwithstanding the doubts of a learned, but singular mind, Perk. § 55, in our judgment the grant in the present charter, if there had been a church actually existing in Pawlet at the time of the  grant, must, upon the common law have received the same construction. In the intendment of law the parson and his successors would have been the representatives of the church entitled to take the donation of the glebe. It would in effect have been a grant to the parson of the church of England, in the town of Pawlet, and to his successors, of one share in the township, as an endowment to be held jure ecclesiae; for a glebe is emphatically the dowry of the church; Gleba est terra qua consistit dos ecclesioe.Lind. 254. \nUnder such circumstances, by the common law, the existing parson would have immediately become seized of the freehold of the glebe, as a sele corporation capable of transmitting the inheritance to his successors. \nWhether, during his life, the fee would be in abeyance according to the ancient doctrine (Litt. § 646, 647. -- Co. Lit. 342. 5 Edw. 4, 105. -- Dyer 74. pl. 43. -- Hob. 338. -- Com. Dig. Abeyance A. Id. Ecclesiastical persons, C. 9. -- Perk. § 709.) or whether, according to learned opinions in modern times, the fee should be considered as quodam modo vested in the parson for the benefit of his church and his successors, (Co. Lit. 341, a. Com. Dig. Ecclesiastical  persons, C. 9. -- Fearne, cont. rem. 513, &c. Christian's note to 2 Black. Com. 107, note 3. -- Gilb. tenures 113. 1 Woodeson 312,) is not very material to to be settled; for at all events the whole fee would have passed out of the crown. Litt. § 648. -- Co. Lit. 341, a. Christian's note ubi supra. Gilb. tenures 113. Nor would it be in the power of the crown, after such a grant executed in the parson, to resume it at its pleasure. It would become a perpetual inheritance of the church, not liable, even during a vacancy, to be divested; though by consent of all parties interested, viz: the patron, and ordinary, and also the parson if the church were full, it might be aliened or encumbered. Litt. § 648. Co. Lit. 343. Perk. § 35. -- 1 Burn's ecclesiast. law 585. \n But in as much as there was not any church duly consecrated and established in Pawlet at the time of the charter, it becomes necessary further to enquire whether, at common law, a grant so made, is wholly void for want of a corporation having a capacity to take. \nIn general no grant can take effect unless there be a sufficient grantee then in existence. This, in the case of corporations, seems pressed yet  further; for if there be an aggregate corporation,  having a head, as a mayer and commonalty, a grant or devise made to the corporation during the vacancy of the headship is merely void; although for some purposes, as for the choice of a head, the corporation is still considered as having a legal entity, 13 Ed. 4, 8, 18 Ed. 4, 8, Bro. Corporation, 58, 59. -- Dalison, R. 31. -- 1 Kyd. Corp. 106, 107, -- Perk. § 33, 50. Whether this doctrine has been applied to parochial churches during an avoidance has not appeared in any authorities that have fallen within our notice; and perhaps can be satisfactorily settled only by a recurrence to analogous principles, which have been applied to the original endowments of such churches. \nWe have already seen that no parish church, as such, could have a legal existence until consecration; and consecration was expressly inhibited unless upon a suitable endowment of land. The cannon law, following the civil law, required such endowment to be made or at least ascertained, before the building of the church was begun. Gibs. 18. -- 1 Burn's Eccles. law, 233. This endowment was in ancient times commonly made by an allotment of manse and glebe,  by the lord of the manor, who thereupon became the patron of the church. Other persons also at the time of consecration often contributed small portions of ground, which is the reason, we are told, why, in England, in many parishes, the glebe is not only distant from the manor, but lies in remote, divided, parcels, Ken. Par. Aut: 222, 223, cited in 1 Burn's, Eccles. Law, 234. The manner of founding the church and making the allotment was for the bishop or his commissioner to set up a cross and set forth the ground where the church was to be built, and it them became the endowment of the church. Degge. p. 1, ch. 12, cited 1 Burn's, Eccles, law. 233. \n From this brief history of the foundation of parsonages and churches, it is apparent that there could be no spiritual or other corporation capable of receiving livery of seizin of the endowment of the church. There could be no parson, for he could be inducted into office only as a parson of an existing church, and the endowment must precede the establishment thereof. Nor is it even hinted that the land was conveyed in trust, for at this early period trusts were an unknown refinement. The land therefore must have passed  out of the donors, if at all, without a grantee, by way of public appropriation or dedication to pious uses. In this respect it would form an exception to the generality of the rule, that to make a grant valid there must be a person in esse capable of taking it. And under such circumstances until a parson should be legally inducted to such new church, the fee of its lands would remain in abeyance, or be like the hoereditas jacens of the Roman code in expectation of an heir. This would conform exactly to the doctrine of the civil law, which, as to pious donations, Bracton has not scrupled to affirm to be the law of England. Res vero sucroe, religiosoe, et sanctoe in nullius bonis sunt, quod enim divini juris est, id in nullius hominis bonis est, immo in bonis dei hominum censura, &c. Res quidam nullius dicuntur pluribus modis, &c. Item censura (ut dictum est,) sicut res sacroae religiosoe et sanctoe. Item casu, sicut est haereditas jacens ante additionem, sed fallit in hoc, quia sustinet vicem personoe defuncti, vel quia speratur futura haereditas ejus, qui adibit. Bracton, 8, a. Justin, instit. lib. 2, tit. 1. -- Co. Lit. 342. on Litt. § 447. \nNor is this a novel doctrine  in the common law. In the familiar case where a man lays out a public street or highway, there is, strictly speaking, no grantee of the easement, but it takes effect by way of grant or dedication to public uses. Lade v. Shepherd, 2 Str. 1004. Hale in Harg. 78. So if the parson or a stranger, purchase a bell with his own money and put it up, the property passes from the purchaser, because, when put up, it is consecrated to the church, 11 H. 4, 12, 1 Kyd. Corp. 29, 30. These principles may seem to savour of the ancient law; but in a modern case in which, in argument, the doctrine was asserted, lord Hardwicke did not deny it, but simply decided that the circumstances of that case did not amount to a donation of the land, on which  a chappel had been built, to public and pious uses. Attorney General v. Foley, 1 Dick. R. 363. And in an intermediate period, lord chief justice Dyer held that if the crown by a statute renounced an estate, the title was gone from the crown, although not vested in any other person, but the fee remained in abeyance. \nIt is true that Weston, J. was, in the same case, of a different opinion; but lord chief baron Comyns has quoted Dyer's opinion  without any mark of disapprobation. Com. Dig. Abeyance, A. 1. \nFor the reasons then that have been stated, a donation by the crown for the use of a non-existing parish church, may well take effect by the common law as a dedication to pious uses, and the crown would thereupon be deemed the patron of the future benefice when brought into life. And after such a donation it would not be competent for the crown to resume it at its own will, or alien the property without the same consent which is necessary for the alienation of other church property, viz: the consent of the ordinary, and parson, if the church be full, or in a vacancy, of the ordinary alone. \nAnd the same principles would govern the case before the Court if it were to be decided upon the mere footing of the common law. If the charter had been of a township in England, the grant of the glebe would have taken effect as a dedication to the parochial church of England to be established therein. \nBefore such church were duly erected and consecrated the fee of the glebe would remain in abeyance, or at least be beyond the power of the crown to alien without the ordinary's consent. Upon the erection and consecration of such a  church and the regular induction of a parson, such parson and his successors would, by operation of law and without further act, have taken the inheritance jure ecclesioe. \nLet us now see how far these principles were applicable to New Hampshire, at the time of issuing of the charter of Pawlet. \nNew Hampshire was originally erected into a royal  province in the 31st year of Charles 2d, and from thence until the revolution, continued a royal province, under the immediate control and direction of the crown. By the first royal commission granted in 31, Charles 2, among other things judicial powers, in all actions, were granted to the provincial  governor and council, \"so always that the form of proceedings in such cases, and the judgment thereupon to be given, be as consonant and agreable to the laws and statutes of this our realm of England, us the present state and condition of our subjects inhabiting within the limits aforesaid (i.e. of the province) and the circumstances of the place will admit.\" Independent, however, of such a provision, we take it to be a clear principle that the common law in force at the emigration of our ancestors is deemed the birth right  of the colonies unless so far as it is inapplicable to their situation, or repugnant to their other rights and privileges. A fortiori the principle applies to a royal province. \nBy the same commission or charter the crown granted to the subjects of the province, \"that liberty of conscience shall be allowed to all Protestants, and that such especially as shall be conformable to the rites of the church of England shall be particularly countenanced and encouraged.\" By a subsequent commission of 15 Geo. 2, the governor of the province among other things, is authorized \"to collate any person or persons to any churches, chappels, or other ecclesiastical benefices, within our said province, as often as any shall happen to be void,\" and this authority was continued and confirmed in the same terms by royal commissions, in 1 Geo. 3, and 6 Geo. 3. By the provincial statute of 13 Ann. ch. 43, the respective towns in the province were authorized to choose, settle and maintain their ministers, and to levy taxes for this purpose, so always that no person who constantly and conscientiously attended public worship according to another persuasion should be excused from taxes. And the respective towns  were further authorized to build and repair meeting houses, minister's houses and school houses, and to provide and pay school-masters. This is the whole of the provincial and royal legislation upon the subject of religion. \nIn as much as liberty of conscience was allowed and  the church of England was not exclusively established, had eccelesiastical rights to title, oblations and other dues hand no legal, existence in the province. Neither, upon the establishment of churches, was a consecration by the bishop, or a presentation of a person to the ordinary, indispensible; for no bishopric existed within the province. \nBut the common law so far as it respected the erection of churches of the Episcopal persuasion of England, the right a present, or collate to such churches, and the corporate capacity of the parsons thereof to take in succession, seems to have been fully recognized and adopted. It was applicable to the situation of the province, was avowed in the royal grants and commissions, and explicitly referred to in the appropriation of glebes, in almost all the charters of townships in the province. And it seems to be also clear that it belonged to the crown exclusively,  at its own pleasure, to erect the church in each town that should be entitled to take the glebe, and upon such erection to collate, though the governor, a parson to the benefice. The respective towns in their corporate capacity had no control over the glebe; but in as much as they were bound, by the provincial statute, to maintain public worship, and had therefore an interest eased of the public burthen, by analogy to the common law in relation to the personal property of the parish church, the glebe could not, before the erection of a church, be aliened by the crown without their consent; nor after the erection of a church and induction of a parson, could the glebe be aliened without the joint consent of the crown as patron, the parson as persona ecclesioe, and the parishoners of the church as having a temporal as well as spiritual interest, and thereby in effect representing the ordinary. \nBut a mere voluntary society of Episcopalians within a town, unauthorized by the crown, could no more entitle themselves, on account of their religious tenets, to the glebe, than any other society worshiping therein. \nThe church entitled, must be a church recognized in law for this particular  purpose. Whenever therefore, within the province, previous to the revolution, an Episcopal church was duly erected by the crown, in any town,  the parson thereof regularly inducted had a right to the glebe in perpetual succession. Where no such church was duly erected by the crown, the glebe remained as an hoereditas jacens, and the state which succeeded to the rights of the crown, might, with the assent of the town, alien or encumber it; or might erect an Episcopal church therein, and collate, either directly, or through the vote of the town, indirectly, its parson, who would thereby become seized of the glebe jure ecclesiaoe, and be a corporation capable of transmitting the inheritance. \nSuch in our judgment are the rights and privileges of the Episcopal churches of New Hampshire, and the legal principles applicable to the glebes reserved in the various townships of that state previous to the revolution. And without an adoption of some of the common law in the manner which I have suggested, it seems very difficult to give full effect to the royal grants and commissions, or to uphold that ecclesiastical policy which the crown had a right to patronize and to which it  so explicitly avowed its attachment. \nIt seems to be tacitly, if not openly, conceded, that before the revolution, no regular Episcopal church was established in Pawlet. By the revolution the state of Vermont succeeded to all the rights of the crown as to the unappropriated as well as appropriated glebes. \nIt now therefore becomes material to survey the statutes which the state of Vermont has, from time to time, passed on this subject. \nBy the statute of 26th of October, 1787, the selectmen of the respective towns were authorized during the then septennary (which expired in 1792,) to take the care and inspection of the glebes and to lease the same for, and during the same term; and further, to recover possession of the same, where they had been taken possession of by persons without title; but an exception is made in favor of ordained Episcopal ministers, who during their ministry within the same term, were allowed to take the profits of the glebes within their respective towns. The statute of 30th October, 1794, granted to their respective towns the entire property of the glebes, therein situate, for the sole use and support of religious worship; and  authorized the selectmen  of the towns  to lease and recover possession of such glebes. This act was repoaled by the statute of the 5th of November, 1779. But by the statute of the 5th of November, 1805, the glebes were again granted to the respective towns, for the use of the schools of such towns; and power was given to the selectmen to sue for possession of, and to lease the same. \nBy the operation of these statutes, and especially of that of 1794, which, so far as it granted the glebes to the towns, could not afterwards be repealed by the legislature so as to divest the right of the towns under the grant, the towns became respectively entitled to all the glebes situate therein which had not been previously appropriated by the regular and legal erection of an Episcopal church within the particular town; for in such case the towns would legally represent all the parties in interest, viz. the state which might be deemed the patron, and the parish. \nWithout the authority of the state, however, they could not apply the lands to other uses than public worship; and in this respect the statute of 1805, conferred a new right which the towns might or might not exercise at their own pleasure. \nUpon these  principles the Plaintiffs are entitled to recover, unless the Defendants shew, not merely that before the year 1794, there was a society of Episcopalians in Pawlet, regularly established according to the rules of that sect, but that such society was erected by the crown, or the state, as an Episcopal church (i.e. the church of England,) established in the town of Pawlet. For unless it have such a legal existence, its parson cannot be entitled to the glebe reserved in the present charter. \nThe statement of facts is not, in this particular, very exact; but it may be inferred from it that the Episcopal society or church was not established in Pawlet previous to the year 1802. In what manner and by what authority it was then established does not distinctly appear. As the title of the Plaintiffs is however prima facie good, and the title of the Defendants is not shown to be sufficient, upon the principles which have been stated the Plaintiffs would seen entitled to judgment. \n There is another view of the subject which if any doubt hung over that which has been already suggested would decide the cause in favor of the Plaintiffs. And it is entitled to the more weight because  it seems in analagous cases to have received the approbation and sanction of the state Courts of New Hampshire. In the various royal charters of townships in which shares have been reserved for public purposes (and they are numerous) it has been held that the shares for the first settled minister and for the benefit of a school, were vested in the town in its corporate capacity; in the latter case as a fee simple absolute, in the former case as a base fee, determinable upon the settlement of the first minister by the town. \nThe foundation of this construction is supposed to be that the town is by law obliged to maintain public worship and public schools; and that therefore the legal title ought to pass to the town, which is considered as the real cestui que use. By analogy to this reasoning the share for a glebe might be deemed to be vested in the town for the use of an Episcopal church; and then before any such church should be established, and the use executed in its parson, by the joint assent of the legislature and the town, the land might at any time be appropriated to other purposes. \nWe do not profess to lay any particular stress on this last consideration, because we are  entirely satisfied to vest the decision upon the principles which have been before asserted. \nOn the whole, the opinion of the majority of the Court is, that upon the special statement of facts by the parties, judgment ought to pass for the Plaintiffs. \nConcur by:", " \nOpinion \n\n \n \n  STORY, J. delivered the opinion of the Court, as follows: \nThis is the case or a shipment made by a neutral house on board of a British ship which was captured, on a voyage from Teneriffe to London, by the private armed ship Marengo, and brought into the port of New  York for adjudication. Pending the prize proceedings, the goods were sold by an interlocutory  order of the District Court, and the proceeds brought into the registry. Upon the hearing, the property was decreed to be restored to the claimants without payment of duties; and this decree was afterwards affirmed in the Circuit Court. The cause has been brought, by appeal, to this Court for a final decision. \n We are all of opinion that the proprietary interest of the claimants is completely proved; and therefore the decree of restoration must be affirmed. \nWith respect to the duties, we are all of opinion that the decree of the Courts below was erroneous. Where goods are brought by superior force, or by inevitable necessity, into the United States, they are not deemed to be so imported, in the sense of the law, as necessarily to attach the right to duties. If, however, such goods are afterwards sold or consumed in the country, or incorporated into the general mass of its property, they become retro-actively liable to the payment of duties. In the present case, if the goods had been specifically restored, and afterwards withdrawn from the United States by the Claimants, they would have been exempt from duties. But having been sold, by order of the Court, for the  general benefit, the duties indissolubly attached, and ought to have been deducted from the proceeds by the Courts below. The decree in this respect must be reversed. \n \n\n ", " \nOpinion \n\n \n \n  STORY, J., delivered the opinion of the court. \nThis case depends on a mere question of fact. After a careful examination of the evidence, the majority of the court are of opinion, that the decree of the circuit court ought to be affirmed. It is deemed unnecessary to enter into a formal statement of the grounds of this opinion, as it is principally founded upon the same reasoning which was adopted by the circuit court in the decree which is spread before us in the transcript of the record \nDecree affirmed with costs. 5 \n \n \n\n ", " \nOpinion \n\n \n \n  STORY, J., delivered the opinion of the court, and, after stating the facts, proceeded as follows: \nSuch are the material facts of the case, and the question to be decided is, whether, under all the circumstances, the bottomry bond executed at Calcutta constitutes a valid lien upon the ship. \nThe law in  respect to maritime hypothecations is, in general, well settled. The master of the ship is the confidential servant or agent of the owners, and they are bound to the performance of all lawful contracts made by him, relative to the usual employment of the ship, and the repairs and other necessaries furnished for her use. This rule is established as well upon the implied assent of the owners, as with a view to the convenience of the commercial world. As, therefore, the master may contract for repairs and supplies, and thereby, indirectly, bind the owners to the value of the ship and freight, so, it is held that he may, for the like purposes, expressly pledge and hypothecate the ship and freight, and thereby create a direct lien on the same, for the security of the creditor. But the authority of the master is limited to objects connected with the voyage,  and, if he transcend the prescribed limits, his acts become, in legal contemplation, mere nullities. Hence, to make  a bottomry bond executed by the master a valid hypothecation of the ship, it must be shown by the creditor that the master acted within the scope of his authority; or, in other words, it must  be shown that the advances were made for repairs and supplies necessary for effectuating the objects of the voyage, or the safety and security of the ship; and no presumption should arise, that such repairs and supplies could be procured upon any reasonable terms, with the credit of the owner, independent of such hypothecation. If, therefore, the master have sufficient funds of the owner, within his control, or can procure them upon the general credit of the owner, he is not at liberty to subject the ship to the expensive and disadvantageous lien of an hypothecatory instrument. \nLet us now, with these principles in view, proceed to the consideration of the validity of the bottomry bond executed at Port Jackson, which enters so materially into the subsequent one executed at Calcutta. This bond purports, on its face, to have been given for advances, or supplies, furnished for the ship's use, not immediately before its date, but at various times and places; and, from the other evidence in the case, it distinctly appears that the greater part was furnished before and during the voyage of discovery in which she was engaged, under the contract with Messrs. Lord & Williams, and for their  immediate benefit. Not the slightest account is given of the earnings of the ship during this long voyage of a year, nor of the terms or stipulations of the charter. This silence would be wholly unaccountable  if it were not in proof, that captain Smith was guilty of the most shameful misconduct, and either fraudulently sacrificed, or grossly neglected, the interests of his owner. \nThe advances made by Messrs. Lord & Williams do not appear to have been originally made upon a stipulation for an hypothecation of the ship. On the contrary, there is the strongest reason to believe that they were originally made upon the general credit of the owner, or master, or both. If there had been a stipulation for an hypothecation, it must have been carried into effect by the parties on the next ensuing voyage; and, as this was not done, there arises an almost irresistible presumption, that Messrs. Lord & Williams looked for their reimbursements out of the freight of the voyage in which the ship was then engaged by them. If, indeed, there had been a stipulation, originally, for an hypothecation, it must be deemed, in point of law, to have been waived by the omission to have had it  attached to the first voyage then next to be prosecuted; and the party who thus waives his right cannot be permitted, at a subsequent time, and under a change of circumstances, to reinstate himself in his former condition to the injury of the owner. It is said that the ship might have been arrested for these advances; and that, in point of fact, the captain was put in jail on account of debts contracted for the ship, and was relieved from imprisonment by Messrs. Lord & Williams. That captain Smith was imprisoned on account of some debts appears in the evidence, but it is by no means clear that these  debts were contracted for the use of the ship. The presumption is repelled by the consideration that the necessaries and supplies are expressly stated in the bond to have been furnished by Messrs. Lord & Williams; and the only other creditors who are alleged to have furnished stores, are admitted not to have instituted any suits. It is undoubtedly true, that material men, and others, who furnish supplies to a foreign ship, have a lien on the ship, and may proceed in the admiralty to enforce that right. And it must be admitted that, in such a case, a bona fide creditor,  who advances his money to relieve the ship from an actual arrest on account of such debts, may stipulate for a bottomry interest, and the necessity of the occasion will justify the master in giving it, if he have no other sufficient funds, or credit, to redeem the ship from such arrest. But it would be too much to hold, as was contended for by the counsel for the appellants, that a mere threat to arrest the ship, for a pre-existing debt, would be a sufficient necessity to justify the master in giving a bottomry interest, since it might be an idle threat, which the creditor might never enforce; and until enforced the peril would not act upon the ship itself. And even supposing a just debt might, in such a case, be a valid consideration to sustain a bottomry interest in favor of a third person, such an effect never could be attributed to a debt manifestly founded in fraud or injustice. Nor does it by any means follow, because a debt sought to be enforced by an arrest of the ship, might uphold an hypothecation in favor of a third person, that a general creditor would be entitled  to acquire a like interest. It would seem against the policy of the law to permit a party,  in this manner, to obtain advantages from his contract for which he had not originally stipulated. It would hold out temptations to fraud and imposition, and enable creditors to practise gross oppressions, against which even the vigilance and good faith of an intelligent master might not always be a sufficient safeguard in a foreign country. \nThese are not the only difficulties which press upon the claim of Messrs. Lord & Williams. The terms of the charter-party, entered into by them on the voyage to Calcutta, as well as on the voyage of discovery, are nowhere explained. It was certainly their duty, in the first instance, to apply the freight in their hands, earned in these voyages, to the discharge of the debt due to them for advances. What was the amount of this freight, and what was the manner in which it was to be paid, and how, in fact, it was paid or appropriated, are inquiries which have never been answered. These inquiries are at all times, and in all cases, important, but are emphatically so in a case where there is but too much reason to suspect that the interests of the owner were wilfully abandoned by the fraud or the folly of the master. \nIt is incumbent upon the  creditor who claims an hypothecation, to prove the actual existence of the necessity of those things which give rise to his demand; and if, from his own showing, or otherwise, it appears that he has had funds of the owners in his possession which might have been applied to the demand,  and he has neglected or refused so to do, he must  fail in his claim. So, if various demands are mixed up in his bond, some of which would sustain an hypothecation and some not, it is his duty so to exhibit them to the court that they may be separately weighed and considered. And it would be perilous indeed, if a court were called upon to grope its way through the darkness and intricacies of a long account, without a guide, and decide upon the interests of the ship owner by obscure and doubtful lights which here and there might cross the path. \nUpon the whole, it is the opinion of the court, that the bottomry bond of Messrs. Lord & Williams cannot be sustained as a valid hypothecation upon the proofs now before the court. It appears to have been founded, to a very large amount, upon advances made by Messrs. Lord & Williams, in previous voyages; and if some portion of the debt  might have been immediately applicable to the necessities of the ship at the time of the voyage to Calcutta, that portion is not distinctly shown, and no reason as yet appears why the freight in their hands, if the transactions were bona fide, might not have been applied in discharge of these necessities. \nAs the bottomry bond of Messrs. Lord & Williams has not been established, the subsequent bottomry bond executed at Calcutta, so far as it includes and covers the sum due on the first bond, cannot be sustained. The plaintiffs, in this respect, can claim only as the virtual assignees of Messrs. Lord & Williams, with the assent of the master, and the same defects which infected the original title pass along  with the muniments of that title under the assignment. \nAnd this observation leads to the consideration of the validity of the bottomry bond executed at Calcutta, as to the sum remaining, after deducting the amount of the first bond. Notwithstanding some obscurity in the testimony, it must be taken as true, from the express acknowledgments of captain Smith, that the whole sum expended in repairs and supplies of the ship in Calcutta, including the sum of ten thousand  seven hundred and thirteen sicca rupees, paid on account of the first bottomry bond, did not exceed the sum of eighteen thousand sicca rupees. It follows, therefore, that a sum, a little more than six thousand rupees, was expended in these supplies and repairs. By their charter-party with the master, the plaintiffs agreed to pay an advance freight to captain Smith of twelve thousand sicca rupees for the voyage to Philadelphia. There was, therefore, within their own knowledge, an ample fund provided for all the repairs and supplies necessary for the voyage; and this fund absolutely within their own control, if they were disposed to act for the interest of the owners, instead of lending their aid still farther to involve them in difficulty and distress. There is, therefore, but too much reason to believe, that the plaintiffs were not unwilling to derive undue advantages from the intemperance and negligence of the master, whatever might be the sacrifices brought upon the owners. The plaintiffs expressly stipulated, in their charter-party, for the right to appoint a new master for the voyage, obviously  from a total want of confidence in captain Smith. They would not even  suffer the repairs and loading of the ship to be made, except under a master specially in their own confidence. They retained captain Smith in the nominal command of the ship until all their own purposes were answered, and then discarded him with as little ceremony as any indifferent personage. Yet, at the very moment that they were withdrawing their whole confidence from him, the advanced the whole freight of the voyage, to be applied at his own pleasure to any objects disconnected with the voyage. They could not be ignorant that the master was not about to return to the home of the owner, and that the ship was; and the argument which imputes to them a collusive combination with the master, is certainly not without considerable weight. At all events, here funds are shown to exist sufficient, to meet the necessities of the ship, and, consequently, a resort to the extraordinary expedient of an hypothecation was not justified in point of law. \nOn the whole, it is the opinion of the court, that the decree of the circuit court ought to be affirmed, with costs. \nDecree affirmed. 4 \n \n \n\n ", " \nOpinion \n\n \n \n  STORY, J., delivered the opinion of the court, and, after stating the facts, proceeded as follows: \nAs the United States have not asserted any claim, the first question for the decision of the court is, whether the present collector and surveyor, the actual incumbents in office, or the representatives of the late collector and surveyor, in right of their testator and intestate, are entitled to the moiety of the money received in satisfaction of the judgment above stated, and now in the custody of the circuit court. \nBy the express provisions of law, all penalties and forfeitures accruing under the embargo acts, with a few exceptions, not applicable to this case, are to be distributed and accounted for in the manner prescribed by the collection law of the 2d of March, 1799, ch. 122. To this latter act, therefore, the arguments of counsel have been chiefly directed; and upon the true construction of the 89th section of the act, the decision of this cause must principally  rest.  The 89th section enjoins the collector, within whose district a seizure shall be made,  or forfeiture incurred, to cause suits for the same to be commenced without delay, and prosecuted to effect; and authorizes him to receive from the court, within which a trial is had, or from the proper officer thereof, the sums so received, after deducting the proper charges, and on receipt thereof requires him to pay and distribute the same without delay, according to law, and to transmit, quarter-yearly to the treasury an account of all the moneys received by him for fines, penalties, and forfeitures, during such quarter. The 91st section declares that all fines, penalties, and forfeitures, recovered by virtue of the act, and not otherwise appropriated, shall, after deducting all proper costs and charges, be disposed as follows, viz., \"one moiety shall be for the use of the United States, and be paid into the treasury thereof, by the collector receiving the same; the other moiety shall be divided between, and paid in equal proportions to, the collector and naval officer of the district, and surveyor of the port, wherein the same shall have been incurred, or to such  of the said officers as there may be within the same district; and in districts where only one of the aforesaid officers shall have been established, the said moiety shall be given to such officer.\" Then follow provisions referring to the distribution in cases where the recovery has been had in pursuance of information given by any informer, or by any officer of a revenue cutter. \nIt is argued on behalf of the present collector and surveyor, that upon the true construction of these  clauses no title to a distributive share of penalties and forfeitures vests until the money has been actually received by the collector from the officer of the court; and that upon such receipt it vests in the proper officers of the customs who are then in office. And in support of this argument it is further asserted that until this epoch the claim is a mere expectancy and not a right, the interest being in abeyance, uncertain, and contingent. An attempt has been made to press the language of the act into the service of this argument. But it certainly will not support it: the language of the act, in its most obvious import, does not seem to have contemplated any charge in the officers of  the customs between the time of the accruing and the receipt of the penalty or forfeiture. It seems principally to have been adapted to cases of the most ordinary occurrence, and it is only by an equitable construction that it can, in aid of the legislative intention, be brought to reach the present case. The act must receive the same construction in relation to forfeitures in rem, as in relation to personal penalties. Both are distributable in the same manner, and subject to the same rules. The case, therefore, will be first considered, in reference to forfeitures in rem. \nWhenever a forfeiture in rem accrues, it is by the act made the duty of the collector to seize the thing, and to prosecute a suit therefor, to final judgment. The law contemplates that he may seize, upon probable cause of seizure, not simply in cases of personal knowledge, but upon the information of others. The seizes, however, at his peril, and if the act be not justifiable, he is subject to a personal responsibility  for all damages. He is placed, therefore, in a situation in which he is bound to act, and yet is not protected against the legal consequences of his acts. It is unquestionably  with a view to stimulate his vigilance, and reward his exertions, that the law has given him a share of the forfeitures recovered by his enterprise and activity. And yet it would follow upon the argument which has been stated, that the collector who seizes might be liable to all the responsibility of the act, in case of a failure, without receiving any of the fruits of his toil, if crowned with success. This certainly would seem to be against the policy of the legislature, as well as against the plainest rules of equity. It is a maxim of natural justice, qui sentit commodum sentire debet et onus; and the words of a statute ought to be very clear that should lead to a different determination. But the case is not left to the result of general reasoning upon the intent and policy of the legislature. It is not true, that the right of a seizing officer to a distributive share is a mere expectancy. By the common law a party entitled to a share of a thing forfeited, acquires by the seizure an inchoate right, which is consummated by a decree of condemnation, and when so consummated, it relates back to the time of the seizure. This principle is familiarly applied to many cases of forfeitures  to the crown; and even in respect to private persons entitled to forfeitures, the interest which is acquired by seizure has been deemed a sufficient title to sustain an action of detinue for the property. And it is very clear that the legislature steadily kept in view this principle of the  common law; for the act has expressly provided that any officer entitled to a part of the forfeiture may be a witness at the trial; and, in such a case, he shall lose his share in the forfeiture. The law, therefore, deems him a party having a real substantive interest in the cause, and not a mere expectancy -- \"a fleeting hope that only keeps its promise to the ear, but breaks it to the sense.\" It is true, that the act in making distribution of forfeitures speaks of the parties entitled to them by the description of their office; but it cannot, with any colour of reason, be argued that this designation of office meant to exclude a designatio personoe. On the contrary, it is most manifest that the act meant to point out the person entitled by a description of his office. The question then recurs, who is the person meant under this description of office? Is it the person who happens  to be in office when the forfeiture is received? Or the person who was in office when the seizure was made, and who thereby acquires an inchoate right, which the subsequent judgment ascertained and fixed. The words may be literally applied indifferently to either; but in point of law, they can be properly applied only to him who has, under the same description of office, already acquired a vested title, inchoate, or consummate, in the forfeiture. This construction is fortified by a recurrence to other provisions in the 91st section of the act. It is, in the first place, provided that, in all cases of forfeitures, recovered in pursuance of information given to such collector, (pointing to the collector entitled to a distributive share,) a moiety of the moiety shall be given to the  informer. The grammatical connection of the words, as well as the obvious exposition of the clause, supposes that  the collector who receives the information, and commences the suit, is the person entitled to the distributive share of the forfeiture. In the next place it is provided, that when the forfeitures are recovered, in consequence of any information given by any officer  of the revenue cutter, one moiety thereof shall be distributed among the officers of such cutter. Can there be a doubt that the persons who were officers at the time of the information, and not those who were officers at the time of the receipt of the forfeitures, are the parties entitled to this moiety? Yet the same reasoning applies here, with equal force, as in the case of the collector. So by the embargo act of the 9th January, 1809, ch. 72. s. 12., forfeitures recovered, in consequence of any seizure made by the commander of any public armed vessel of the United States, are to be distributed according to the rules of the navy prize act of the 22d April, 1800, ch. 33.; and it is clear, beyond all doubt, that the parties so entitled are the officers and crew at the time of the seizure. The analogous rule, in cases of captures, jure belli, is here expressly alluded to, and adopted by the legislature, and that rule stands on the same general foundation with that of the common law. The right of captors to prizes is but an inchoate right, and, until a condemnation, no absolute title attaches. But when condemnation has passed upon the property, it relates back to the capture, and  although the parties have died in the  intermediate time, the title vests in proprio vigore in their representatives. \nMuch stress has been laid upon the clauses in the 89th and 91st sections of the collection law of the 2d March, 1799, which authorize the collector to receive from the proper officer of the court the moneys recovered in suits for penalties and forfeitures, and which require him to pay and distribute the same, according to law, among the officers of the customs, and other parties entitled thereto. But these provisions are merely directory to the collector, and do not vest in him any personal right to the money received, which he did not before possess; much less do they authorize the supposition that, until the receipt, no title vested in any person. It might, with as much force and propriety, be urged, that, until the same epoch, no right to the other moiety vested in the United States; for the statute is equally mandatory and precise in this case as in the other. It would, however, be quite impossible to contend, upon any legal principles, that the title of the United States was not, to all intents and purposes, consummated by the judgment. \nThe same  reasoning which has been used in respect to forfeitures in rem, applies to personal penalties; and it is unnecessary to repeat it. The court are clearly of opinion, that the right of the collector to forfeitures in rem attaches on seizure, and to personal penalties on suits brought, and in each case it is ascertained and consummated by the judgment; and it is wholly immaterial whether the collector die before or after the judgment. And they are further  of opinion, that the case of the surveyor is not, in this respect, distinguishable, in any manner, from that of the collector. They are, therefore,of opinion, that the representatives of the deceased collector and surveyor, and not the present incumbents in office, are entitled to the distributive shares of the moiety of the money now in the registry of the circuit court. \nThe next question is as to the proportions in which this moiety is to be divided between the representatives of the collector and surveyor. Whatever may have been the practice in the district of Petersburg, the words of the act admit of no reasonable doubt. The moiety is to be divided in equal proportions between the collector, naval officer, and surveyor,  or between such of the said officers as there may be in the district. There was no naval officer in the district of Petersburg, and, consequently, the division must be, in equal proportions, between the collector and surveyor. \nIt is the unanimous opinion of this court, that it be certified to the circuit court, that it is the opinion of this court, \n1st. In the case of the United States against Joseph Jones and others, that the moiety of the money now remaining in the custody of the circuit court, in the proceedings in the case of the United States, appellants, against Joseph Jones and others, mentioned, should be paid to the said Joseph Jones, collector of the district of Petersburg, to be, by him, divided in equal proportions between Thomas Shore, as he is executor of the last will and testament of  John Shore, deceased, and Reuben M. Gillian, as he is administrator of the goods and effects of Andrew Tarbone, deceased. \n2d. In the case of Thomas Shore and another against Joseph Jones and others, that the representative of the late surveyor, in right of his intestate, was entitled to receive one moiety of that portion of the penalty in the proceedings mentioned, which  is by law to be distributed among the several revenue officers of the district wherein the penalty was incurred. \n \n\n ", " \nOpinion \n\n \n \n  STORY, J., delivered the opinion of the court, and, after stating the facts, proceeded as follows: \nUpon the argument no specific objection was taken to the restitution of any of the property claimed, excepting that included in the claim of Messrs. Ivens & Burnett. This shipment was made by Messrs. Burnett & Co. of London, to Messrs. Ivens & Burnett of St. Michaels, and the invoices declare the goods to be by order, and for account and risk, of the latter gentlemen. It is contended, in behalf of the  captors, that both houses are composed of the same persons, viz. William S. Burnett, who is domiciled at London, and William Ivens, who is domiciled at St. Michaels; and that the documentary evidence, and private correspondence, show that the shipment was made on account of the hostile house. If the fact of the identity  of the two houses were material to a decision of the cause, it might furnish a proper ground for an order for farther proof. But admitting the fact to be as the captors contend, we are satisfied that it can be of no avail to them. It is clear, from the whole documentary evidence, that this shipment was not made on the account and risk of the hostile house, but bona fide on the account and risk of the neutral house. It does not, therefore, present a case for the application of the principle, that the property of a house of trade in the enemy's country is condemnable as prize, notwithstanding the neutral domicil of one of its partners. On the contrary, it presents a case for the application of the ordinary principle which subjects to confiscation, jure belli, the share of a partner in a neutral house, where his own domicil is in a hostile country. And, on this view, the decision of the circuit court is entirely correct, and  is consistent with the doctrines established in the cases cited at the argument. \nThe next inquiry is, as to the freight decreed to the master. As no appeal was interposed to the decree of the district court, allowing the whole freight for the whole  voyage, the question, whether more than a pro rata freight was due, (a question which would otherwise have deserved grave consideration,)  does not properly arise. The only discussion which can now be entertained, is, whether the freight so decreed ought not to have been charged upon the whole cargo, instead of being charged upon a portion of it. And we are all of opinion that it was properly a charge upon the whole cargo. Although capture be deemed, in the prize courts, in many cases, equivalent to delivery, yet the captors cannot be liable for more than the freight of the goods actually received by them. The capture of a neutral ship, having enemy's property on board, is a strictly justifiable exercise of the rights of war. It is no wrong done to the neutral, even though the voyage be thereby defeated. The captors are not, therefore, answerable in poenam to the neutral for the losses which he may sustain by a lawful exercise of belligerant rights. It is the misfortune of the neutral, and not the fault of the belligerant. By the capture, the captors are substituted in lieu of the original owners, and they take the property cum onere. They are, therefore, responsible  for the freight which then attached upon the property, of which the sentence of condemnation ascertains them to be the rightful owners succeeding to the former proprietors. So far the rule seems perfectly equitable; but to press it farther, and charge them with the freight of goods which they have never received, or with the burden of a charter party into which they have never entered, would be unreasonable in itself, and inconsistent with the admitted principles of prize law. It might, in a case of justifiable capture, by the condemnation of a single bale of goods,  lead the captors to their ruin with the stipulated freight of a whole cargo. \nOn the whole, we are all of opinion, that the decree of the circuit court ought to be affirmed, except so far as it charges the freight upon the property condemned, and the moiety claimed by Messrs. Ivens & Burnett; and as to this, it ought to be reversed, and that the freight should be decreed to be a charge upon the whole cargo, to be paid by each parcel thereof, in proportion to its value. \nDecree affirmed, except as to the freight. 9 \n \n \n\n ", " \nOpinion \n\n \n \n  STORY, J., delivered the opinion of the court, and, after stating the facts, proceeded as follows: \nThe single question presented on these facts  is, in whom the property was vested at the time of its transit; if in Mr. Lizaur, then it is to be restored; if in the shippers, then it is to be condemned. It is contended, in behalf of the claimant, that the goods having been purchased by the order, and partly with the funds, of Mr. Lizaur, the property vested in him immediately by the purchase, and the contract being executed by the sale, no delivery was necessary to perfect the legal title: that nothing was reserved to the shippers but a mere right of stoppage in transitu, and that if they had been burnt before the shipment, or  lost during the voyage, the loss must have fallen on Mr. Lizaur. \n The doctrine as to the right of stoppage in transitu, cannot apply to this case. That right exists in the single case of insolvency, and presupposes, not only that the property has passed to the consignee, but that the possession is in a third person in the transit to the consignee. It cannot, therefore, touch a case where the actual or constructive possession still remains in the shipper or his exclusive agents. In general, the rules of the prize court, as to the vesting of property, are the same with those of the common law, by which the thing sold, after the completion of the contract, is properly at the risk of the purchaser. 6 But the question still recurs, when is the contract executed? It is certainly competent for an agent abroad, who purchases in pursuance of orders, to vest the property in his principal immediately on the purchase. This is the case when he purchases exclusively on the credit of his principal, or makes an absolute appropriation and  designation of the property for his principal. But where a merchant abroad, in pursuance of orders, either sells his own goods, or  purchases goods on his own credit, (and thereby, in reality, becomes the owner,) no property in the goods vests in his correspondent until he has done some notorious act to devest himself of his title, or has parted with the possession by an actual and unconditional delivery for the use of such correspondent. Until that time he has in legal contemplation the exclusive property, as well as possession; and it is not a wrongful act in him to convert them to any use which he pleases. He is at liberty to contract upon any new engagements, or substitute any new conditions in relation to the shipment. These principles have been frequently recognised in prize causes heretofore decided in this court. 7 In the present case, the delivery to the master was not for the use of Mr. Lizaur, but for the consignees, a house composed of the same persons  as the shippers, and acting as their agents. They, therefore, retained the constructive possession, as well as right of property, in the shippers; and it is apparent from the letter, that the shippers meant to reserve to themselves and to their agents, in relation to the shipment, all those powers which ownership gives over property.  It is material, also, in this view, that all the papers, respecting the shipment, were addressed to their own house, or to a house acting as their agents, and the claimants could have no knowledge or control of the shipment, unless by the consent of the consignees, under future arrangements to be dictated by them. In this view this case cannot be distinguished from that of Messrs. Kimmell and Alvers; and it steers wide of the distinction upon which Messrs. Wilkins' claim was sustained. 8 The authorities also cited at the argument by the captors are exceedingly strong to the same effect. The Aurora 9 approaches very near to the present case. There the shipment, by the express agreement of the parties, was, in reality, going for the use, and by the order, of the purchaser, but consigned to other persons, who were to deliver them if they were satisfied for the payment. And Sir William Scott there quotes a case as having been lately decided, where goods sent by a merchant in Holland, to A., a person in America, by order, and for account, of B., with directions not to deliver them unless satisfaction should be given for the payment, were condemned as the property of the Dutch shippers. \n  On the whole, the court are unanimously of opinion, that the goods included in this shipment were, during their transit, the property, and at the risk of the shippers, and, therefore, subject to condemnation. The claim of Mr. Lizaur must, therefore, be rejected. \nSentence affirmed with costs. \n \n\n ", " \nOpinion \n\n \n \n  STORY, J., delivered the opinion of the court. \nThe question upon these pleadings comes to this, whether a nominal plaintiff, suing for the benefit of  his assignee, can, by a dismissal of the suit under a collusive agreement with the defendant, create a valid bar agaisnt any subsequent suit for the same cause of action. \nCourts of law, following in this respect the rules of equity, now take notice of assignments of choses  in action, and exert themselves to afford them every support and protection not inconsistent with the established principles and modes of proceeding which govern tribunals acting according to the course of the common law. They will not, therefore, give effect to a release procured by the defendant under a covenous combination with the assignor in fraud of his assignee, nor permit the assignor injuriously to interfere with the conduct of any suit commenced by his assignee to enforce the rights which passed under the assignment. The dismissal of the former suit, stated in the pleadings in the present case, was certainly not a retraxit; and if it had been, it would not have availed the parties, since it was procured by fraud. Admitting a dismissal of a suit, by agreement, to be a good bar to a subsequent suit, (on which we give no opinion,) it can be so only when it is bona fide, and not for the purpose of defeating the rights of third persons. It would be strange indeed, if parties could be allowed, under the protection of its forms, to defeat the whole objects and purposes of the law itself. \nIt is the unanimous opinion of the court, that the judgment of the circuit court, overruling  the replication to the second plea of the defendant, is erroneous,  and the same is reversed, and the cause remanded for farther proceedings. \nJudgment reversed. 1 \n \n \n\n ", " \nOpinion \n\n \n \n  STORY, J., delivered the opinion of the court. \nThe first question in this case is, whether the commencement of another suit for the same cause of action in the court of another state, since the last continuance, can be pleaded in abatement of the original suit. It is very clear that it cannot. A subsequent suit may be abated by an allegation of the pendency of a prior suit; but the converse of the proposition is, in personal actions, never true. The decision of the circuit court of the  district of Columbia overruling the plea was therefore correct. 1 \n The next question is, whether the judgment rendered on the overruling of the plea ought to have been peremptory, or an award of respondeas ouster. This point is completely settled by authority. If matter in abatement be pleaded puis darrein continuance, the judgment, if against the defendant, is peremptory as well on demurrer as on trial. 2 \nThe last question is, whether judgment could be entered up for the plaintiff for the amount of his damages by the court, without a writ of inquiry. This also is completely  settled by authority in all cases whether the action is brought for a sum certain, or which may be made certain by computation. 3 \nJudgment affirmed with costs. \n \n\n ", " \nOpinion \n\n \n \n  STORY, J., delivered the opinion of the court. \nWe have considered this question with a view to the general rules of practice. Whenever a prize is brought to adjudication in the admiralty, if, upon the hearing of the cause upon the ship's papers, and the evidence taken in preparatory,  the property appears to belong to enemies, it is immediately condemned. If its national character appear doubtful, or even neutral, and no claim is interposed, the court do not proceed to a final decree, but the cause is postponed, with a view to enable any person, having title, to assert it, within a reasonable time, before the court. This reasonable time has been, by the general usage of nations, fixed to a year and a day after the institution of the prize proceedings; and if no claim be interposed within that period, the property is deemed to be abandoned, and is condemned to the captors for  contumacy and default of the supposed owner. In the present case the prescribed period had not elapsed at the time when the district court proceeded to decree a dismissal of the libel. A claim cannot, by the practice of this court, be for the first time interposed here. In prize causes this court can exercise only an appellate jurisdiction, and between  parties who have litigated in the court below. We are all, therefore, of opinion that this cause ought to be remanded to the circuit court, with directions to allow the claim to be filed in that court; and, also, to allow the libel to be amended so as to conform to the general allegation of prize, and enable the captors to obtain condemnation of the property, if the asserted claim shall not be sustained, and the property shall not appear entitled to the protection of the Spanish treaty. \nCase remanded. 1 \n \n\n ", " \nOpinion \n\n \n \n  STORY, J., delivered the opinion of the court. \nThis is a writ of error from the court of appeals of Virginia, founded upon the refusal of that court to obey the mandate of this court, requiring the judgment rendered in this very cause, at February term, 1813, to be carried into due execution. The following is the judgment of  the court of appeals rendered on the mandate: \"The court is unanimously of opinion, that the appellate power of the supreme court of the United States does not extend to this court, under a sound construction of the constitution of the United States; that so much of the 25th section of the act of congress to establish the judicial courts of the United States, as extends the appellate jurisdiction of the supreme court to this court, is not in pursuance of the constitution of the  United States; that the writ of error, in this cause, was improvidently allowed under the authority of that act; that the proceedings thereon in the supreme court were, coram non judice, in relation to this court, and that obedience to its mandate be declined by the court.\" \nThe questions involved in this judgment are of great importance and delicacy. Perhaps it is not too much to affirm, that, upon their right decision, rest some of the most solid principles which have hitherto been supposed to sustain and protect the constitution itself. The great respectability, too, of the court whose decisions we are called upon to review, and the entire deference which we entertain for the learning and ability  of that court, add much to the difficulty of the task which has so unwelcomely fallen upon us. It is, however, a source of consolation, that we have had the assistance of most able and learned arguments to aid our inquiries; and that the opinion which is now to be pronounced has been weighed with every solicitude to come to a correct result, and matured after solemn deliberation. \nBefore proceeding to the principal questions, it may not be unfit to dispose of some preliminary considerations which have grown out of the arguments at the bar. \nThe constitution of the United States was ordained and established, not by the states in their sovereign capacities, but emphatically, as the preamble of the constitution declares, by \"the people of the United States.\" There can be no doubt that it was competent to the people to invest the general government  with all the powers which they might deem proper and necessary; to extend or restrain these powers according to their own good pleasure, and to give them a paramount and supreme authority. As little doubt can there be, that the people had a right to prohibit to the states the exercise of any powers which were, in their judgment,  incompatible with the objects of the general compact; to make the powers of the state governments, in given cases, subordinate to those of the nation, or to reserve to themselves those sovereign authorities which they might not choose to delegate to either. The constitution was not, therefore, necessarily carved out of existing state sovereignties, nor a surrender of powers already existing in state institutions, for the powers of the states depend upon their own constitutions; and the people of every state had the right to modify and restrain them, according to their own views of policy or principle. On the other hand, it is perfectly clear that the sovereign powers vested in the state governments, by their respective constitutions, remained unaltered and unimpaired, except so far as they were granted to the government of the United States. \nThese deductions do not rest upon general reasoning, plain and obvious as they seem to be. They have been positively recognized by one of the articles in amendment of the constitution, which declares, that \"the powers not delegated to the United States by the constitution, nor prohibited by it to the states, are reserved to the states respectively,  or to the people.\" \n The government, then, of the United States, can claim no powers which are not granted to it by the constitution, and the powers actually granted, must be such as are expressly given, or given by necessary implication. On the other hand, this instrument, like every other grant, is to have a reasonable construction, according to the import of its terms; and where a power is expressly given in general terms, it is not to be restrained to particular cases, unless that construction grow out of the context expressly, or by necessary implication. The words are to be taken in their natural and obvious sense, and not in a sense unreasonably restricted or enlarged. \n The constitution unavoidably deals in general language. It did not suit the purposes of the people, in framing this great charter of our liberties, to provide for minute specifications of its powers, or to declare the means by which those powers should be carried into execution. It was foreseen that this would be a perilous and difficult, if not an impracticable, task. The instrument was not intended to provide merely for the exigencies of a few years, but was to endure through a long  lapse of ages, the events of which were locked up in the inscrutable purposes of Providence. It could not be foreseen what new changes and modifications of power might be indispensable to effectuate the general objects of the charter; and restrictions and specifications, which, at the present, might seem salutary, might, in the end, prove the overthrow of the system itself. Hence its powers are expressed in general terms, leaving to the legislature, from time to  time, to adopt its own means to effectuate legitimate objects, and to mould and model the exercise of its powers, as its own wisdom, and the public interests, should require. \nWith these principles in view, principles in respect to which no difference of opinion ought to be indulged, let us now proceed to the interpretation of the constitution, so far as regards the great points in controversy. \nThe third article of the constitution is that which must principally attract our attention. The 1st. section declares, \"the judicial power of the United States shall be vested in one supreme court, and in such other inferior courts as the congress may, from time to time, ordain and establish.\" The 2d section declares,  that \"the judicial power shall extend to all cases in law or equity, arising under this constitution, the laws of the United States, and the treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, other public ministers and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more states; between a state and citizens of another state; between citizens of different states; between citizens of the same state, claiming lands under the grants of different states; and between a state or the citizens thereof, and foreign states, citizens, or subjects.\" It then proceeds to declare, that \"in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party, the supreme court shall have original jurisdiction.  In all the other cases before mentioned the supreme court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations, as the congress shall make.\" \nSuch is the language of the article creating and defining the judicial power of the United  States. It is the voice of the whole American people solemnly declared, in establishing one great department of that government which was, in many respects, national, and in all, supreme. It is a part of the very same instrument which was to act not merely upon individuals, but upon states; and to deprive them altogether of the exercise of some powers of sovereignty, and to restrain and regulate them in the exercise of others. \nLet this article be carefully weighed and considered. The language of the article throughout is manifestly designed to be mandatory upon the legislature. Its obligatory force is so imperative, that congress could not, without a violation of its duty, have refused to carry it into operation. The judicial power of the United States shall be vested (not may be vested) in one supreme court, and in such inferior courts as congress may, from time to time, ordain and establish. Could congress have lawfully refused to create a supreme court, or to vest in it the constitutional jurisdiction? \"The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive, for their services, a compensation  which shall not be diminished during their continuance in office.\" Could congress create or limit any other tenure of  the judicial office? Could they refuse to pay, at stated times, the stipulated salary, or diminish it during the continuance in office? But one answer can be given to these questions: it must be in the negative. The object of the constitution was to establish three great departments of government; the legislative, the executive, and the judicial departments. The first was to pass laws, the second to approve and execute them, and the third to expound and enforce them. Without the latter, it would be impossible to carry into effect some of the express provisions of the constitution. How, otherwise, could crimes against the United States be tried and punished? How could causes between two states be heard and determined? The judicial power must, therefore, be vested in some court, by congress; and to suppose that it was not an obligation binding on them, but might, at their pleasure, be omited or declined, is to suppose that, under the sanction of the constitution, they might defeat the constitution itself; a construction which would lead to such a result  cannot be sound. \nThe same expression, \"shall be vested,\" occurs in other parts of the constitution, in defining the powers of the other co-ordinate branches of the government. The first article declares that \"all legislative powers herein granted shall be vested in a congress of the United States.\" Will it be contended that the legislative power is not absolutely vested? that the words merely refer to some future act, and mean only that the legislative power may hereafter be vested? The second article declares that \"the  executive power shall be vested in a president of the United States of America.\" Could congress vest it in any other person; or, is it to await their good pleasure, whether it is to vest at all? It is apparent that such a construction, in either case, would be utterly inadmissible. Why, then, is it entitled to a better support in reference to the judicial department? \nIf, then, it is a duty of congress to vest the judicial power of the United States, it is a duty to vest the whole judicial power. The language, if imperative as to one part, is imperative as to all. If it were otherwise, this anomaly would exist, that congress might successively refuse  to vest the jurisdiction in any one class of cases enumerated in the constitution, and thereby defeat the jurisdiction as to all; for the  constitution has not singled out any class on which congress are bound to act in preference to others. \nThe next consideration is as to the courts in which the judicial power shall be vested. It is manifest that a supreme court must be established; but whether it be equally obligatory to establish inferior courts, is a question of some difficulty. If congress may lawfully omit to establish inferior courts, it might follow, that in some of the enumerated cases the judicial power could nowhere exist. The supreme court can have original jurisdiction in two classes of cases only, viz. in cases affecting ambassadors, other public ministers and consuls, and in cases in which a state is a party. Congress cannot vest any portion of the judicial power of the United States, except in courts ordained and established by  itself; and if in any of the cases enumerated in the constitution, the state courts did not then possess jurisdiction, the appellate jurisdiction of the supreme court (admitting that it could act on state courts) could  not reach those cases, and, consequently, the injunction of the constitution, that the judicial power \"shall be vested,\" would be disobeyed. It would seem, therefore, to follow, that congress are bound to create some inferior courts, in which to vest all that jurisdiction which, under the constitution, is exclusively vested in the United States, and of which the supreme court cannot take original cognizance. They might establish one or more inferior courts; they might parcel out the jurisdiction among such courts, from time to time, at their own pleasure. But the whole judicial power of the United States should be, at all times, vested either in an original or appellate form, in some courts created under its authority. \nThis construction will be fortified by an attentive examination of the second section of the third article. The words are \"the judicial power shall extend,\" &c. Much minute and elaborate criticism has been employed upon these words. It has been argued that they are equivalent to the words \"may extend,\" and that \"extend\" means to widen to new cases not before within the scope of the power. For the reasons which have been already stated, we are of opinion that  the words are used in an imperative sense. They import an absolute grant of judicial power. They cannot have a relative signification applicable to powers already granted; for the American people  had not made any previous grant. The constitution was for a new government, organized with new substantive powers, and not a mere supplementary charter to a government already existing. The confederation was a compact between states; and its structure and powers were wholly unlike those of the national government. The constitution was an act of the people of the United States to supercede the confederation, and not to be ingrafted on it, as a stock through which it was to receive life and nourishment. \nIf, indeed, the relative signification could be fixed upon the term \"extend,\" it could not (as we shall hereafter see) subserve the purposes of the argument in support of which it has been adduced. This imperative sense of the words \"shall extend,\" is strengthened by the context. It is declared that \"in all cases affecting ambassadors, &c., that the supreme court shall have original jurisdiction.\" Could congress withhold original jurisdiction in these cases from the supreme  court? The clause proceeds -- \"in all the other cases before mentioned the supreme court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations, as the congress shall make.\" The very exception here shows that the framers of the constitution used the words in an imperative sense. What necessity could there exist for this exception if the preceding words were not used in that sense? Without such exception, congress would, by the preceding words, have possessed a complete power to regulate the appellate jurisdiction, if the language were  only equivalent to the words \"may have\" appellate jurisdiction. It is apparent, then, that the exception was intended as a limitation upon the preceding words, to enable congress to regulate and restrain the appellate power, as the public interests might, from time to time, require. \nOther clauses in the constitution might be brought in aid of this construction; but a minute examination of them cannot be necessary, and would occupy too much time. It will be found that whenever a particular object is to be effected, the language of the constitution is always imperative, and cannot be  disregarded without violating the first principles of public duty. On the other hand, the legislative powers are given in language which implies discretion, as from the nature of legislative power such a discretion must ever be exercised. \nIt being, then, established that the language of this clause is imperative, the next question is as to the cases to which it shall apply. The answer is found in the constitution itself. The judicial power shall extend to all the cases enumerated in the constitution. As the mode is not limited, it may extend to all such cases, in any form, in which judicial power may be exercised. It may, therefore, extend to them in the shape of original or appellate jurisdiction, or both; for there is nothing in the nature of the ases which binds to the exercise of the one in preference to the other. \nIn what cases (if any) is this judicial power exclusive, or exclusive at the election of congress? It will be observed that there are two classes of cases enumerated  in the constitution, between which a distinction seems to be drawn. The first class includes cases arising under the constitution, laws, and treaties of the United States; cases affecting  ambassadors, other public ministers and consuls, and cases of admiralty and maritime jurisdiction. In this class the expression is, and that the judicial power shall extend to all cases; but in the subsequent part of the clause which embraces all the other cases of national cognizance, and forms the second class, the word \"all\" is dropped seemingly ex industria. Here the judicial authority is to extend to controversies (not to all controversies) to which the United States shall be a party, &c. From this difference of phraseology, perhaps, a difference of constitutional intention may, with propriety, be inferred. It is hardly to be presumed that the variation in the language could have been accidental. It must have been the result of  some determinate reason; and it is not very difficult to find a reason sufficient to support the apparent change of intention. In respect to the first class, it may well have been the intention of the framers of the constitution imperatively to extend the judicial power either in an original or appellate form to all cases; and in the latter class to leave it to congress to qualify the jurisdiction, original or appellate, in such manner  as public policy might dictate. \nThe vital importance of all the cases enumerated in the first class to the national sovereignty, might warrant such a distinction. In the first place, as to cases arriving under the constitution, laws, and treaties of the United States. Here the state courts  could not ordinarily possess a direct jurisdiction. The jurisdiction over such cases could not exist in the state courts previous to the adoption of the constitution, and it could not afterwards be directly conferred on them; for the constitution expressly requires the judicial power to be vested in courts ordained and established by the United States. This class of cases would embrace civil as well as criminal jurisdiction, and affect not only our internal policy, but our foreign relations. It would, therefore, be perilous to restrain it in any manner whatsoever, inasmuch as it might hazard the national safety. The same remarks may be urged as to cases affecting ambassadors, other public ministers, and consuls, who are emphatically placed under the guardianship of the law of nations; and as to cases of admiralty and maritime jurisdiction, the admiralty jurisdiction embraces all  questions of prize and salvage, in the correct adjudication of which foreign nations are deeply interested; it embraces also maritime torts, contracts, and offences, in which the principles of the law and comity of nations often form an essential inquiry. All these cases, then, enter into the national policy, affect the national rights, and may compromit the national sovereignty. The original or appellate jurisdiction ought not, therefore, to be restrained, but should be commensurate with the mischiefs intended to be remedied, and, of course, should extend to all cases whatsoever. \nA different policy might well be adopted in reference to the second class of cases; for although it might be fit that the judicial power should extend  to all controversies to which the United States should be a party, yet this power night not have been imperatively given, least it should imply a right to take cognizunce of original suits brought against the United States as defendants in their own courts. It might not have been deemed proper to submit the sovereignth of the United States, against their own will, to judicial cognizance, either to enforce rights or to prevent wrongs; and as  to the other cases of the second class, they might well be left to be exercised under the exceptions and regulations which congress might, in their wisdom, choose to apply. It is also worthy of remark, that congress seem, in a good degree, in the establishment of the present judicial system, to have adopted this distinction. In the first class of cases, the jurisdiction is not limited except by the subject matter; in the second, it is made materially to depend upon the value in controversy. \nWe do not, however, profess to place any implicit reliance upon the distinction which has here been stated and endeavoured to be illustrated. It has the rather been brought into view in deference to the legislative opinion, which has so long acted upon, and enforced, this distinction. But there is, certainly, vast weight in the argument which has been urged, that the constitution is imperative upon congress to vest all the judicial power of the United States, in the shape of original jurisdiction, in the supreme and inferior courts created under its own authority. At all events, whether the one construction or the other prevail, it is manifest that the judicial power of the  United  States is unavoidably, in some cases, exclusive of all state authority, and in all others, may be made so at the election of congress. No part of the criminal jurisdiction of the United States can, consistently with the constitution, be delegated to state tribunals. The admiralty and maritime jurisdiction is of the same exclusive cognizance; and it can only be in those cases where, previous to the constitution, state tribunals possessed jurisdiction independent of national authority, that they can now constitutionally exercise a concurrent jurisdiction. Congress, throughout the judicial act, and particularly in the 9th, 11th, and 13th sections, have legislated upon the supposition that in all the cases to which the judicial powers of the United States extended, they might rightfully vest exclusive jurisdiction in their own courts. \nBut, even admitting that the language of the constitution is not mandatory, and that congress may constitutionally omit to vest the judicial power in courts of the United States, it cannot be denied that when it is vested, it may be exercised to the utmost constitutional extent. \nThis leads us to the consideration of the great question as to the nature  and extent of the appellate jurisdiction of the United States. We have already seen that appellate jurisdiction is given by the constitution to the supreme court in all cases where it has not original jurisdiction; subject, however, to such exceptions and regulations as congress may prescribe. It is, therefore, capable of embracing every case enumerated in the constitution, which is not exclusively to be decided by way of original  jurisdiction. But the exercise of appellate jurisdiction is far from being limited by the terms of the constitution to the supreme court. There can be no doubt that congress may create a succession of inferior tribunals, in each of which it may vest appellate as well as original jurisdiction. The judicial power is delegated by the constitution in the most general terms, and may, therefore, be exercised by congress under every variety of form, of appellate or original jurisdiction. And as there is nothing in the constitution which restrains or limits this power, it must, therefore, in all other cases, subsist in the utmost latitude of which, in its own nature, it is susceptible. \nAs, then, by the terms of the constitution, the appellate jurisdiction  is not limited as to the supreme court, and as to this court it may be exercised in all other cases than those of which it has original cognizance, what is there to restrain its exercise over state tribunals in the enumerated cases? The appellate power is not limited by the terms of the third article to any particular courts. The words are, \"the  judicial power (which includes appellate power) shall extend to all cases,\" &c., and \"in all other cases before mentioned the supreme court shall have appellate jurisdiction.\" It is the case, then, and not the court, that gives the jurisdiction. If the judicial power extends to the case, it will be in vain to search in the letter of the constitution for any qualification as to the tribunal where it depends. It is incumbent, then, upon those who assert such a qualification to show its existence by necessary implication. If the  text be clear and distinct, no restriction upon its plain and obvious import ought to be admitted, unless the inference be irresistible. \nIf the constitution meant to limit the appellate jurisdiction to cases pending in the courts of the United States, it would necessarily follow that the jurisdiction  of these courts would, in all the cases enumerated in the constitution, be exclusive of state tribunals. How otherwise could the jurisdiction extend to all cases arising under the constitution, laws, and treaties of the United States, or to all cases of admiralty and maritime jurisdiction? If some of these cases might be entertained by state tribunals, and no appellate jurisdiction as to them should exist, then the appellate power would not extend to all, but to some, cases. If state tribunals might exercise concurrent jurisdiction over all or some of the other classes of cases in the constitution without control, then the appellate jurisdiction of the United States might, as to such cases, have no real existence, contrary to the manifest intent of the constitution. Under such circumstances, to give effect to the judicial power, it must be construed to be exclusive; and this not only when the casus foederis should arise directly, but when it should arise, incidentally, in cases pending in state courts. This construction would abridge the jurisdiction of such court far more than has been ever contemplated in any act of congress. \nOn the other hand, if, as has been contended, a  discretion be vested in congress to establish, or not to establish, inferior courts at their own pleasure, and  congress should not establish such courts, the appellate jurisdiction of the supreme court would have nothing to act upon, unless it could act upon cases pending in the state courts. Under such circumstances it must be held that the appellate power would extend to state courts; for the constitution is peremptory that it shall extend to certain enumerated cases, which cases could exist in no other courts. Any other construction, upon this supposition, would involve this strange contradiction, that a discretionary power vested in congress, and which they might rightfully omit to exercise, would defeat the absolute injunctions of the constitution in relation to the whole appellate power. \nBut it is plain that the framers of the constitution did contemplate that cases within the judicial cognizance of the United States not only might but would arise in the state courts, in the exercise of their ordinary jurisdiction. With this view the sixth article declares, that \"this constitution, and the laws of the United States which shall be made in pursuance thereof, and  all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land, and the judges in every state shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding.\" It is obvious that this obligation is imperative upon the state judges in their official, and not merely in their private, capacities. From the very nature of their judicial duties they would be called upon to pronounce the law applicable to the case in judgment. They were not to decide merely  according to the laws or constitution of the state, but according to the constitution, laws and treaties of the United States -- \"the supreme law of the land.\" \nA moment's consideration will show us the necessity and propriety of this provision in cases where the jurisdiction of the state courts is unquestionable. Suppose a contract for the payment of money is made between citizens of the same state, and performance thereof is sought in the courts of that state; no person can doubt that the jurisdiction completely and exclusively attaches, in the first instance, to such courts. Suppose at the trial the defendant sets up  in his defence a tender under a state law, making paper money a good tender, or a state law, impairing the obligation of such contract, which law, if binding, would defeat the suit. The constitution of the United States has declared that no state shall make any thing but gold or silver coin a tender in payment of debts, or pass a law impairing the obligation of contracts. If congress shall not have passed a law providing for the removal of such a suit to the courts of the United States, must not the state court proceed te hear and determine it? Can a mere plea in defence be of itself a bar to further proceedings, so as to prohibit an inquiry into its truth or legal propriety, when no other tribunal exists to whom judicial cognizance of such cases is confided? Suppose an indictment for a crime in a state court, and the defendant should allege in his defence that the crime was created by an ex post facto act of the state, must not the state court, in the exereise of a jurisdiction which has already rightfully attached, have a  right to pronounce on the validity and sufficiency of the defence? It would be extremely difficult, upon any legal principles, to give a negative  answer to these inquiries. Innumerable instances of the same sort might be stated, in illustration of the position; and unless the state courts could sustain jurisdiction in such cases, this clause of the sixth article would be without meaning or effect, and public mischiefs, of a most enormous magnitude, would inevitably ensue. \nIt must, therefore, be conceded that the constitution not only contemplated, but meant to provide for cases within the scope of the judicial power of the United States, which might yet depend before state tribunals. It was foreseen that in the exercise of their ordinary jurisdiction, state courts would incidentally take cognizance of cases arising under the constitution, the laws, and treaties of the United States. Yet to all these cases the judicial power, by the very terms of the constitution, is to extend. It cannot extend by original jurisdiction if that was already rightfully and exclusively attached in the state courts, which (as has been already shown) may occur; it must, therefore, extend by appellate jurisdiction, or not at all. It would seem to follow that the appellate power of the  United States must, in such cases, extend to state  tribunals; and if in such cases, there is no reason why it should not equally attach upon all others within the purview of the constitution. \nIt has been argued that such an appellate jurisdiction over state courts is inconsistent with the genius  of our governments, and the spirit of the constitution. That the latter was never designed to act upon state sovereignties, but only upon the people, and that if the power exists, it will materially impair the sovereignty of the states, and the independence of their courts. We cannot yield to the force of this reasoning; it assumes principles which we cannot admit, and draws conclusions to which we do not yield our assent. \nIt is a mistake that the constitution was not designed to operate upon states, in their corporate capacities. It is crowded with provisions which restrain or annul the sovereignty of the states in some of the highest branches of their prerogatives. The tenth section of the first article contains a long list of disabilities and prohibitions imposed upon the states. Surely, when such essential portions of state sovereignty are taken away, or prohibited to be exercised, it cannot be correctly asserted that  the constitution does not act upon the states. The language of the constitution is also imperative upon the states as to the performance of many duties. It is imperative upon the state legislatures to make laws prescribing the time, places, and manner of holding elections for senators and representatives, and for electors of president and vice-president. And in these, as well as some other cases, congress have a right to revise, amend, or supercede the laws which may be passed by state legislatures. When, therefore, the states are stripped of some of the highest attributes of sovereignty, and the same are given to the United States; when the legislatures of the states are, in some  respects, under the control of congress, and in every case are, under the constitution, bound by the paramount authority of the United States; it is certainly difficult to support the argument that the appellate power over the decisions of state courts is contrary to the genius of our institutions. The courts of the United States can, without question, revise the proceedings of the executive and legislative authorities of the states, and if they are found to be contrary to the constitution,  may declare them to be of no legal validity. Surely the exercise of the same right over judicial tribunals is not a higher or more dangerous act of sovereign power. \nNor can such a right be deemed to impair the independence of state judges. It is assuming the very ground in controversy to assert that they possess an absolute independence of the United States. In respect to the powers granted to the United States, they are not independent; they are expressly bound to obedience by the letter of the constitution; and if they should unintentionally transcend their authority, or misconstrue the constitution, there is no more reason for giving their judgments an absolute and irresistible force, than for giving it to the acts of the other co-ordinate departments of state sovereignty. \nThe argument urged from the possibility of the abuse of the revising power, is equally unsatisfactory. It is always a doubtful course, to argue against the use or existence of a power, from the possibility of its abuse. It is still more difficult, by such an argument, to ingraft upon a general power a restriction  which is not to be found in the terms in which it is given. From the very nature  of things, the absolute right of decision, in the last resort, must rest somewhere -- wherever it may be vested it is susceptible of abuse. In all questions of jurisdiction the inferior, or appellate court, must pronounce the final judgment; and common sense, as well as legal reasoning, has conferred it upon the latter. \nIt has been further argued against the existence of this appellate power, that it would form a novelty in our judicial institutions. This is certainly a mistake. In the articles of confederation, an instrument framed with infinitely more deference to state rights and state jealousies, a power was given to congress to establish \"courts for revising and determining, finally, appeals in all cases of captures.\" It is remarkable, that no power was given to entertain original jurisdiction in such cases; and, consequently, the appellate power (although not so expressed in terms) was altogether to be exercised in revising the decisions of state tribunals. This was, undoubtedly, so far a surrender of state sovereignty; but it never was supposed to be a power fraught with public danger, or destructive of the independence of state judges. On the contrary, it was supposed  to be a power indispensable to the public safety, inasmuch as our national rights might otherwise be compromitted, and our national peace been dangered. Under the present constitution the prize jurisdiction is confined to the courts of the United States; and a power to revise the decisions of state courts, if they should assert jurisdiction over prize causes, cannot be less  important, or less useful, than it was under the confederation. \nIn this connection we are led again to the construction of the words of the constitution, \"the judicial power shall extend,\" &c. If, as has been contended at the bar, the term \"extend\" have a relative signification, and mean to widen an existing power, it will then follow, that, as the confederation gave an appellate power over state tribunals, the constitution enlarged or widened that appellate power to all the other cases in which jurisdiction is given to the courts of the United States. It is not presumed that the learned counsel would choose to adopt such a conclusion. \nIt is further argued, that no great public mischief can result from a construction which shall limit the appellate power of the United States to cases in their own  courts: first, because state judges are bound by an oath to support the constitution of the United States, and must be presumed to be men of learning and integrity; and, secondly, because congress must have an unquestionable right to remove all cases within the scope of the judicial power from the state courts to the courts of the United States, at any time before final judgment, though not after final judgment. As to the first reason -- admitting that the judges of the state courts are, and always will be, of as much learning, integrity, and wisdom, as those  of the courts of the United States, (which we very cheerfully admit,) it does not aid the argument. It is manifest that the constitution has proceeded upon a theory of its own, and given or withheld  powers according to the judgment of the American people, by whom it was adopted. We can only construe its powers, and cannot inquire into the policy or principles which induced the grant of them. The constitution has presumed (whether rightly or wrongly we do not inquire) that state attachments, state prejudices, state jealousies, and state interests, might sometimes obstruct, or control, or be supposed  to obstruct or control, the regular administration of justice. Hence, in controversies between states; between citizens of different states; between citizens claiming grants under different states; between a state and its citizens, or foreigners, and between citizens and foreigners, it enables the parties, under the authority of congress, to have the controversies heard, tried, and determined before the national tribunals. No other reason than that which has been stated can be assigned, why some, at least, of those cases should not have been left to the cognizance of the state courts. In respect to the other enumerated cases -- the cases arising under the constitution, laws, and treaties of the United States, cases affecting ambassadors and other public ministers, and cases of admiralty and maritime jurisdiction -- reasons of a higher and more extensive nature, touching the safety, peace, and sovereignty of the nation, might well justify a grant of exclusive jurisdiction. \nThis is not all. A motive of another kind, perfectly compatible with the most sincere respect for state tribunals, might induce the grant of appellate power over their decisions. That motive is the importance,  and even necessity of uniformity of decisions  throughout the whole United States, upon all subjects within the purview of the constitution. Judges of equal learning and integrity, in different states, might differently interpret a statute, or a treaty of the United States, or even the constitution itself: If there were no revising authority to control these jarring and discordant judgments, and harmonize them into uniformity, the laws, the treaties, and the constitution of the United States would be different in different states, and might, perhaps, never have precisely the same construction, obligation, or efficacy, in any two states. The public mischiefs that would attend such a state of things would be truly deplorable; and it cannot be believed that they could have escaped the enlightened convention which formed the constitution. What, indeed, might then have been only prophecy, has now become fact; and the appellate jurisdiction must continue to be the only adequate remedy for such evils. \nThere is an additional consideration, which is entitled to great weight. The constitution of the United States was designed for the common and equal benefit of all the people  of the United States. The judicial power was granted for the same benign and salutary purposes. It was not to be exercised exclusively for the benefit of parties who might be plaintiffs, and would elect the national forum, but also for the protection of defendants who might be entitled to try their rights, or assert their privileges, before the same forum. Yet, if the construction contended for be correct, it will follow, that as the plaintiff may always elect the state court, the defendant  may be deprived of all the security which the constitution intended in aid of his rights. Such a state of things can, in no respect, be considered as giving equal rights. To obviate this difficulty, we are referred to the power which it is admitted congress possess to remove suits from state courts to the national courts; and this forms the second ground upon which the argument we are considering has been attempted to be sustained. \nThis power of removal is not to be found in express terms in any part of the constitution; if it be given, it is only given by implication, as a power necessary and proper to carry into effect some express power. The power of removal is certainly not,  in strictness of language; it presupposes an exercise of original jurisdiction to have attached elsewhere. The existence of this power of removal is familiar in courts acting according to the course of the common law in criminal as well as civil cases, and it is exercised before as well as after judgment. But this is always deemed in both cases an exercise of appellate, and not of original jurisdiction. If, then, the right of removal be included in the appellate jurisdiction, it is only because it is one mode of exercising that power, and as congress is not limited by the constitution to any particular mode, or time of exercising it, it may authorize a removal either before or after judgment. The time, the process, and the manner, must be subject to its absolute legislative control. A writ of error is, indeed, but a process which removes the record of one court to the possession of another court,  and enables the latter to inspect the proceedings, and give such judgment as its own opinion of the law and justice of the case may warrant. There is nothing in the nature of the process which forbids it from being applied by the legislature to interlocutory as well as final  judgments. And if the right of removal from state courts exist before judgment, because it is included in the appellate power, it must, for the same reason, exist after judgment. And if the appellate power by the constitution does not include cases pending in state courts, the right of removal, which is but a mode of exercising that power, cannot be applied to them. Precisely the same objections, therefore, exist as to the right of removal before judgment, as after, and both must stand or fall together. Nor, indeed, would the force of the arguments on either side materially vary, if the right of removal were an exercise of original jurisdiction. It would equally trench upon the jurisdiction and independence of state tribunals. \nThe remedy, too, of removal of suits would be utterly inadequate to the purposes of the constitution, if it could act only on the parties, and not upon the state courts. In respect to criminal prosecutions, the difficulty seems admitted to be insurmountable; and in respect to civil suits, there would, in many cases, be rights without corresponding remediless state courts should deny the constitutionality of the authority to remove suits from their cognizance,  in what manner could they be compelled to relinquish  the jurisdiction? In respect to criminal cases, there would at once be an end of all control, and the  state decisions would be paramount to the constitution; and though in civil suits the courts of the United States might act upon the parties, yet the state courts might act in the same way; and this conflict of jurisdictions would not only jeopardies private rights, but bring into imminent peril the public interests. \nOn the whole, the court are of opinion, that the appellate power of the United States does extend to cases pending in the state courts; and that the 25th section of the judiciary act, which authorizes the exercise of this jurisdiction in the specified cases, by a writ of error, is supported by the letter and spirit of the constitution. We find no clause in that instrument which limits this power; and we dare not interpose a limitation where the people have not been disposed to create one. \nStrong as this conclusion stands upon the general language of the constitution, it may still derive support from other sources. It is an historical fact, that this exposition of the constitution, extending  its appellate power to state courts, was, previous to its adoption, uniformly and publicly avowed by its friends, and admitted by its enemies, as the basis of their respective reasonings, both in and out of the state conventions. It is an historical fact, that at the time when the judiciary act was submitted to the deliberations of the first congress, composed, as it was, not only of men of great learning and ability, but of men who had acted a principal part in framing, supporting, or opposing that constitution, the same exposition was explicitly declared and admitted by the friends and by the opponents of that system. It  is an historical fact, that the supreme court of the United States have, from time to time, sustained this appellate jurisdiction in a great variety of cases, brought from the tribunals of many of the most important states in the union, and that no state tribunal has ever breathed a judicial doubt on the subject, or declined to obey the mandate of the supreme court, until the present occasion. This weight of contemporaneous exposition by all parties, this acquiescence of enlightened state courts, and these judicial decisions of the supreme court through  so long a period, do, as we think, place the doctrine upon a foundation of authority which cannot be shaken, without delivering over the subject to perpetual and irremediable doubts. \nThe next question which has been argued, is, whether the case at bar be within the purview of the 25th section of the judiciary act, so that this court may rightfully sustain the present writ of error. This section, stripped of passages unimportant in this inquiry, enacts, in substance, that a final judgment or decree in any suit in the highest court of law or equity of a state, where is drawn in question the validity of a treaty or statute of, or an authority excised under, the United States, and the decision is against their validity; or where is drawn in question the validity of a statute of, or an authority exercised under, any state, on the ground of their being repugnant to the constitution, treaties, or laws, of the United States, and the decision is in favour of such their validity; or of the constitution, or of a treaty or statute of, or commission held under, the United  States, and the decision is against the title, right, privilege, or exemption, specially set up or claimed by  either party under such clause of the said constitution, treaty, statute, or commission, may be re-examined and reversed or affirmed in the supreme court of the United States, upon a writ of error, in the same manner, and under the same regulations, and the writ shall have the same effect, as if the judgment or decree complained of had been rendered or passed in a circuit court, and the proceeding upon the reversal shall also be the same, except that the supreme court, instead of remanding the cause for a final decision, as before provided, may, at their discretion, if the cause shall have been once remanded before, proceed to a final decision of the same, and award execution. But no other error shall be assigned or regarded as a ground of reversal in any such case as aforesaid, than such as appears upon the face of the record, and immediately respects the before-mentioned question of validity or construction of the said constitution, treaties, statutes, commissions, or authorities in dispute. \nThat the present writ of error is founded upon a judgment of the court below, which drew in question and denied the validity of a statute of the United States, is incontrovertible, for it is  apparent upon the face of the record. That this judgment is final upon the rights of the parties is equally true; for if well founded, the former judgment of that court was of conclusive authority, and the former judgment of this court utterly void. The decision was, therefore, equivalent to a perpetual stay of proceedings upon  the mandate, and a perpetual denial of all the rights acquired under it. The case, then, falls directly within the terms of the act. It is a final judgment in a suit in a state court, denying the validity of a statute of the United States; and unless a distinction can be made between proceedings under a mandate, and proceedings in an original suit, a writ of error is the proper remedy to revise that judgment. In our opinion no legal distinction exists between the cases. \nIn causes remanded to the circuit courts, if the mandate be not correctly executed, a writ of error or appeal has always been supposed to be a proper remedy, and has been recognized as such in the former decisions of this court. The statute gives the same effect to writs of error from the judgments of state courts as of the circuit courts; and in its terms provides for proceedings  where the same cause may be a second time brought up on writ of error before the supreme court. There is no limitation or description of the cases to which the second writ of error may be applied; and it ought, therefore, to be coextensive with the cases which fall within the mischiefs of the statute. It will hardly be denied that this cause stands in that predicament; and if so, then the appellate jurisdiction of this court has right-fully attached. \nBut it is contended, that the former judgment of this court was rendered upon a case not within the purview of this section of the judicial act, and that as it was pronounced by an incompetent jurisdiction, it was utterly void,  and cannot be a sufficient foundation  to sustain any subsequent proceedings. To this argument several answers may be given. In the first place, it is not admitted that, upon this writ of error, the former record is before us. The error now assigned is not in the former proceedings, but in the judgment rendered upon the mandate issued after the former judgment. The question now litigated is not upon the construction of a treaty, but upon the constitutionality of a statute of the United  States, which is clearly within our jurisdiction. In the next place, in ordinary cases a second writ of error has never been supposed to draw in question the propriety of the first judgment, and it is difficult to perceive how such a proceeding could be sustained upon principle. A final judgment of this court is supposed to be conclusive upon the rights which it decides, and no statute has provided any process by which this court can revise its own judgments. In several cases which have been formerly adjudged in this court, the same point was argued by counsel, and expressly overruled. It was solemnly held that a final judgment of this court was conclusive upon the parties, and could not be re-examined. \nIn this case, however, from motives of a public nature, we are entirely willing to wave all objections, and to go back and re-examine the question of jurisdiction as it stood upon the record formerly in judgment. We have great confidence that our jurisdiction will, on a careful examination, stand confirmed as well upon principle as authority. It will be recollected that the action was an ejectment for a parcel of land in the Northern Neck, formerly belonging to  Lord  Fairfax. The original plaintiff claimed the land under a patent granted to him by the state of Virginia, in 1789, under a title supposed to be vested in that state by escheat or forfeiture. The original defendant claimed the land as devisee under the will of Lord Fairfax. The parties agreed to a special statement of facts in the nature of a special verdict, upon which the district court of Winchester, in 1793, gave a general judgment for the defendant, which judgment was afterwards reversed in 1810, by the court of appeals, and a general judgment was rendered for the plaintiff; and from this last judgment a writ of error was brought to the supreme court. The statement of facts contained a regular deduction of the title of Lord Fairfax until his death, in 1781, and also the title of his devisee. It also contained a regular deduction of the title of the plaintiff, under the state of Virginia, and further referred to the treaty of peace of 1783, and to the acts of Virginia respecting the lands of Lord Fairfax, and the supposed escheat or forfeiture thereof, as component parts of the case. No facts disconnected with the titles thus set up by the parties were alleged on either side.  It is apparent, from this summary explanation, that the title thus set up by the plaintiff might be open to other objections; but the title of the defendant was perfect and complete, if it was protected by the treaty of 1783. If, therefore, this court had authority to examine into the whole record, and to decide upon the legal validity of the title of the defendant, as well as its application to the treaty of peace, it would be a case within the express purview  of the 25th section of the act; for there was nothing in the record upon which the court below could have decided but upon the title as connected with the treaty; and if the title was otherwise good, its sufficiency must have depended altogether upon its protection under the treaty. Under such circumstances it was strictly a suit where was drawn in question the construction of a treaty, and the decision was against the title specially set up or claimed by the defendant. It would fall, then, within the very terms of the act. \nThe objection urged at the bar is, that this court cannot inquire into the title, but simply into the correctness of the construction put upon the treaty by the court of appeals; and that  their judgment is not re-examinable here, unless it appear on the face of the record that some construction was put upon the treaty. If, therefore, that court might have decided the case upon the invalidity of the title, (and, non constat, that they did not,) independent of the treaty, there is an end of the appellate jurisdiction of this court. In support of this objection much stress is laid upon the last clause of the section, which declares, that no other cause shall be regarded as a ground of reversal than such as appears on the face of the record and immediately respects the construction of the treaty, &c., in dispute. \nIf this be the true construction of the section, it will be wholly inadequate for the purposes which it professes to have in view, and may be evaded at pleasure. But we see no reason for adopting this narrow construction; and there are the strongest  reasons against it, founded upon the words as well as the intent of the legislature. What is the case for which the body of the section provides a remedy by writ of error? The answer must be in the words of the section, a suit where is drawn in question the construction of a treaty, and the decision  is against the title set up by the party. It is, therefore, the decision against the title set up with reference to the treaty, and not the mere abstract construction of the treaty itself, upon which the statute intends to found the appellate jurisdiction. How, indeed, can it be possible to decide whether a title be within the protection of a treaty, until it is ascertained what that title is, and whether it have a legal validity? From the very necessity of the case, there must be a preliminary inquiry into the existence and structure of the title, before the court can construe the treaty in reference to that title. If the court below should decide, that the title was bad, and, therefore, not protected by the treaty, must not this court have a power to decide the title to be good, and, therefore, protected by the treaty? Is not the treaty, in both instances, equally construed, and the title of the party, in reference to the treaty, equally ascertained and decided? Nor does the clause relied on in the objection, impugn this construction. It requires, that the error upon which the appellate court is to decide, shall appear on the face of the record, and immediately respect the  questions before mentioned in the section. One of the questions is as to the construction of a treaty upon a title specially set up by a party, and every error that immediately respects  that question must, of  course, be within the cognizance of the court. The title set up in this case is apparent upon the face of the record, and immediately respects the decision of that question; any error, therefore, in respect to that title must be re-examinable, or the case could never be presented to the court. \nThe restraining clause was manifestly intended for a very different purpose. It was foreseen that the parties might claim under various titles, and might assert various defences, altogether independent of each other. The court might admit or reject evidence applicable to one particular title, and not to all, and in such cases it was the intention of congress to limit what would otherwise have unquestionably attached to the court, the right of revising all the points involved in the cause. It therefore restrains this right to such errors as respect the questions specified in the section; and in this view, it has an appropriate sense, consistent with the preceding  clauses. We are, therefore, satisfied, that, upon principle, the case was rightfully before us, and if the point were perfectly new, we should not hesitate to assert the jurisdiction. \nBut the point has been already decided by this court upon solemn argument. In Smith v. The State of Maryland, (6 Cranch, 286.,) precisely the same objection was taken by counsel, and overruled by the unanimous opinion of the court. That case was, in some respects, stronger than the present; for the court below decided, expressly, that the party had no title, and, therefore, the treaty could not operate  upon it. This court entered into an examination of that question, and being of the same opinion, affirmed the judgment. There cannot, then, be an authority which could more completely govern the present question. \nIt has been asserted at the bar that, in point of fact, the court of appeals did not decide either upon the treaty or the title apparent upon the record, but upon a compromise made under an act of the legislature of Virginia. If it be true (as we are informed) that this was a private act, to take effect only upon a certain condition, viz. the execution of a deed of release of  certain lands, which was matter in pais, it is somewhat difficult to understand how the court could take judicial cognizance of the act, or of the performance of the condition, unless spread upon the record. At all events, we are bound to consider that the court did decide upon the facts actually before them. The treaty of peace was not necessary to have been stated, for it was the supreme law of the land, of which all courts must take notice. And at the time of the decision in the court of appeals and in this court, another treaty had intervened, which attached itself to the title in controversy, and, of course, must have been the supreme law to govern the decision, if it should be found applicable to the case. It was in this view that this court did not deem it necessary to rest its former decision upon the treaty of peace, believing that the title of the defendant was, at all events, perfect under the treaty of 1794. \n The remaining questions respect more the practice than the principles of this court. The forms of process, and the modes of proceeding in the exercise of jurisdiction are, with few exceptions, left by the legislature to be regulated and changed as  this court may, in its discretion, deem expedient. By a rule of this court, the return of a copy of a record of the proper court, under the seal of that court, annexed to the writ of error, is declared to be \"a sufficient compliance with the mandate of the writ.\" The record, in this case, is duly certified by the clerk of the court of appeals, and annexed to the writ of error. The objection, therefore, which has been urged to the sufficiency of the return, cannot prevail. \nAnother objection is, that it does not appear that the judge who granted the writ of error did, upon issuing the citation, take the bond required by the 22d section of the judiciary act. \nWe consider that provision as merely directory to the judge; and that an omission does not avoid the writ of error. If any party be prejudiced by the omission, this court can grant him summary relief, by imposing such terms on the other party as, under all the circumstances, may be legal and proper. But there is nothing in the record by which we can judicially know whether a bond has been taken or not; for the statute does not require the bond to be returned to this court, and it might, with equal propriety, be lodged in the  court below, who would ordinarily execute the judgment to be rendered on the writ. And the presumption of law is, until the contrary  appears, that every judge who signs a citation has obeyed the injunctions of the act. \nWe have thus gone over all the principal questions in the cause, and we deliver our judgment with entire confidence, that it is consistent with the constitution and laws of the land. \nWe have not thought it incumbent on us to give any opinion upon the question, whether this court have authority to issue a writ of mandamus to the court of appeals to enforce the former judgments, as we do not think it necessarily involved in the decision of this cause. \nIt is the opinion of the whole court, that the judgment of the court of appeals of Virginia, rendered on the mandate in this cause, be reversed, and the judgment of the district court, held at Winchester be, and the same is hereby affirmed. \nConcur by:", " \nOpinion \n\n \n \n  STORY, J., delivered the opinion of the court. \nThe single point now in controversy in this cause is, whether the ship is entitled to the freight for the voyage. The general rule that the neutral carrier of enemy's property is entitled to his freight, is now too firmly established  to admit of discussion. But to this rule there are many exceptions. If the neutral be guilty of fraudulent or unneutral conduct, or has interposed himself to assist the enemy in carrying on the war, he is justly deemed to have forfeited his title to freight. Hence, the carrying of contraband goods to the enemy; the engaging in the casting or colonial trade of the enemy; the spoliation of papers, and the  fraudulent suppression of enemy interests, have been held to affect the neutral with the forfeiture of freight, and in cases of a more flagrant character, such as carrying despatches or hostile military passengers, an engagement in the transport service of the enemy, and a breach of blockade, the penalty of confiscation of the vessel has also been inflicted. 5 By the modern law of nations, provisions  are not, in general, deemed contraband; but they may become so, although the property of a neutral, on account of the particular situation of the war, or on account of their destination. 6 If destined for the ordinary use of life in the enemy's country they are not, in general, contraband; but it is otherwise if destined for military use. Hence, if destined for the army or navy of the enemy, or for his ports of naval or military equipment, they are deemed contraband. 7 Another exception from being treated as contraband is, where the provisions are the growth of the neutral exporting country. But if they be the growth of the enemy's country, and more especially if the property of his subjects, and destined for enemy's use, there does not seem any good reason for the exemption;  for, as Sir William Scott has observed, in such case the party has not only gone out of his way for the supply of the enemy, but he has assisted him by taking off his surplus commodities. 8 But it is argued that the doctrine of contraband cannot apply to the present case, because the destination was to a neutral country; and it is certainly true that goods destined for the use of a neutral country can never be deemed contraband, whatever may be their character, or however well adapted to warlike purposes. But if such goods are destined for the direct  and avowed use of the enemy's army or navy, we should be glad to see an authority which countenances this exemption from forfeiture, even though the property of a neutral. Suppose, in time of war, a British fleet were lying in a neutral port, would it be lawful for a neutral to carry provisions or munitions of war thither, avowedly for the exclusive supply of such fleet? Would it not be a direct interposition in the war, and an essential aid to the enemy in his hostile preparations? In such a case the goods, even if belonging to a neutral, would have had the taint of contraband in its most offensive character, on account  of their destination; and the mere interposition of a neutral port would not protect them from forfeiture. 9 Strictly speaking, however,  this is not a question of contraband; for that can arise only when the property belongs to neutral,  and here the property belonged to an enemy, and, therefore, was liable, at all events, to condemnation. But was the voyage lawful, and such as a neutral could, with good faith, and without a forfeiture, engage in? It has been solemnly adjudged that being engaged in the transport service, or in the conveyance of military persons in his employ, are  acts of hostility which subject the property to confiscation. 10 And the carrying of despatches from the colony to the mother country of the enemy has subjected the party to the like penalty. 11 And in these cases, the fact that the voyage was to a neutral port was not thought to change the character of the transaction. The principle of these determinations was asserted to be that the party must be deemed to place himself in the service of the hostile state, and  assist in warding off the pressure of the war, or in favouring its offensive projects. Now,  we cannot distinguish these cases, in principle, from that before the court. Here is a cargo of provisions exported from the enemy's country, with the avowed purpose of supplying the army of the enemy. Without this destination they would not have been permitted to be exported at all. Can a more important or essential service be performed in favour of the enemy? In what does it differ from the case of a transport in his service? The property, nominally, belongs to individuals, and is freighted, apparently, on private account, but, in reality, for public use, and under a public contract implied from the very permission of exportation. It is vain to contend that the direct effect of the voyage was not to aid the British hostilities against the United States. It might enable the enemy, indirectly, to operate with more vigour and promptitude against us, and increase his disposable force. But it is not the effect of the particular transaction that the law regards, it is the general tendency of such transactions to assist the military operations of the enemy, and the temptations which it presents to deviate from a strict neutrality. Nor do we perceive how the destination, to a neutral  port, can vary the application of this rule; it is only doing that indirectly which is prohibited in direct courses. Would it be contended that a neutral might lawfully transport provisions for the British fleet and army while it lay at Bordeaux preparing for an expedition to the United States? Would it be contended that he might lawfully supply a British  fleet stationed on our coast? We presume that two opinions could not be entertained on such questions; and yet, though the cases put are strong, we do not know that the assistance is more material than might be supplied under cover of a neutral destination like the present. \n An attempt has been made to distinguish this case from the ordinary cases of employment in the transport service of the enemy, upon the ground that the war of Great Britain against France was a war distinct from that against the United States; and that Swedish subjects had a perfect right to assist the British arms in respect to the former, though not to the latter. Whatever might be the right of the Swedish sovereign, acting under his own authority, we are of opinion that if a Swedish vessel be engaged in the actual service of Great Britain, or in carrying stores for the exclusive use of the British armies, she must, to all intents and purposes, be deemed a British transport. It is perfectly immacerial in what particular enterprise those armies might, at the time, be engaged; for the same important benefits are conferred upon an enemy, who thereby acquires a greater disposable force to bring into action against us. In the Friendship, (6 Rob. 420. 426.,) Sir W. Scott, speaking on this subject, declares, \"It signifies nothing whether the men, so conveyed, are to be put into action, on an immediate expedition, or not. The mere shifting of draughts in detachments, and the conveyance  of stores from one place to another, is an ordinary employment of a transport vessel, and it is a distinction totally unimportant  whether this or that case may be connected with the immediate active service of the enemy. In removing forces from distant settlements, there may be no intention of immediate action, but still the general importance of having troops conveyed to places where it is convenient that they should be collected, either for present or future use, is what constitutes the object and employment of transport vessels.\" It is obvious that the learned judge did not deem it material to what places the stores might be destined; and it must be equally immaterial what is the immediate occupation of the enemy's military force. That force is always hostile to us, be it where it may be. To-day it may act against France, to-morrow, against us; and the better its commissary department is supplied, the more life and activity is communicated to all its motions. It is not, therefore, in our view, material whether there be another distinct war in which our enemy is engaged, or not: it is sufficient that his armies are everywhere our enemies, and every assistance offered  to them must, directly, or indirectly, operate to our injury. \nOn the whole, the court are of opinion that the voyage, in which this vessel was engaged, was illicit, and inconsistent with the duties of neutrality, and that it is a very lenient administration of justice to confine the penalty to a mere denial of freight. 12 \n \nDissent by:", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the court. \nSeveral points have been argued in this case, upon which the opinion of the court will be now pronounced. In the first place, it is stated, that a material variance exists between the writ and declaration, of which (being shown upon oyer) the court, upon a general demurrer to the declaration, are bound to take notice; and if so, it is fatal to the action. The supposed variance consists in this, that in the writ all the defendants are sued by their christian and surnames only; whereas, in the declaration, the deed on which the action is founded is averred to be made by the defendant, John Craig, and by the other defendants, Robert Johnson and Elijah Craig, \"as trustees to the said John,\" and the convenant on which the breach is assigned, is averred to be made by the said John Craig, and Robert Johnson and Elijah Craig, \"trustees to the said John.\" The argument is, that the writ is founded upon a personal covenant, and the declaration upon a covenant  in auter droit, upon which no action lies at law; or if any lies, the writ must conform in its language to the truth of the case. It is perfectly clear, however, that the exception, even if a good one, cannot be taken advantage of upon general demurrer to the declaration, for such a demurrer is in bar to the action; whereas variances between the writ and declaration are matters pleadable in abatement only.  But there is nothing in the exception itself. A trustee, merely as such, is, in general, only suable in equity. But if he chooses to bind himself by a personal covenant, he is liable at law for a breach thereof in the same manner as any other person, although he describe himself as covenanting as trustee; for, in such case, the covenant binds him personally, and the addition of the words \"as trustee\" is but matter of description to show the character in which he acts for his own protection, and in no degree affects the rights or remedies of the other party. The authorities are very elaborate on this subject. An agent or executor who covenants in his own name, and yet describes himself as agent or executor, is personally liable, for the obvious reason that the one  has no principal to bind, and the other substitutes himself for his principal. 1 \n  The reasoning upon this point disposes, also, of the second made at the argument, viz., that the covenant being made by Robert Johnson and Elijah Craig, as trustees, no individual judgment can be rendered against them. It is plain that the judgment is right, and, indeed, there could have been no other judgment rendered, for at law a judgment against a trustee in such special capacity is utterly unknown. \nHaving answered these minor objections, we may now advance to the real controversies between the  parties. It is contended, that the two covenants in the deed are so knit together, that they are to be construed in connexion, so that the clause as to an indemnity with other lands, in case of an eviction by a prior legal claim, is to be applied as a restriction  to both covenants; and if so, then the action cannot be sustained, for the declaration does not allege any eviction, or any demand or refusal to indemnify with other lands. There is certainly considerable weight in the argument. It is not unreasonable to suppose that then the parties had provided a specific indemnity for a prior claim, they might mean to apply the same indemnity to all the  other cases enumerated in the first covenant. But something more than the mere reasonableness of such a supposition must exist to authorize a court to adopt such a construction. The covenants stand distinct in the deed, and there is no incongruity or repugnancy in considering them as independent of each other. The first Covenant being only against the acts and incumbrances under the parties to the deed, which, they could not but know, they might be willing to become responsible to secure its performance by a pecuniary indemnity; the second including a warranty against the prior claims of strangers also, of which the parties might be ignorant, they might well stipulate for an indemnity only in lands of an equivalent value. The case ought to be a very strong one, which should authorize a court to create, by implication, a restriction which the order of the language does not necessarily import or justify. It ought to be one in which no judicial doubt could  exist of the real intention of the parties to create such a restriction. It cannot be pronounced that such is the present case; and this objection to the declaration cannot, therefore, be sustained. \nThe remaining objections  turn upon the sufficiency of the breach alieged in the declaration. It is contended, that the covenant on which the breach is assigned is against the joint, and not the several acts and incumbrances of the parties to the deed, and that, therefore, the breach, which states an assignment by John Craig and Robert Johnson only, is wholly insufficient. It is certainly true that, in terms, the covenant is against the acts and incumbrances of all the parties, and the words \"every of them\" are not found in the deed. Some of the incumbrances, however, within the contemplation of the parties are not of a nature to be jointly created; as, for instance, the incumbrance of dower and title of dower. This very strongly shows that it was the intention of the parties to embrace in the covenant several, as well as joint acts and incumbrances. There is also a reference in the premises of the deed to a covenant for a conveyance previously made by John Craig to Samuel M'Craw, against which it must have intended to secure the grantees; and if so, it fortifies the construction already stated. If, therefore, the point were of a new impression, it would be difficult to sustain the reasoning, which would  limit the covenant to the joint acts of all the grantors; and there is no authority to support it. On the contrary, Meriton's case, though stated with some difference by the several reporters, seems to  us completely to sustain the position that a covenant of this nature ought to be construed as including several, as well as joint incumbrances; and has certainly been so understood by very learned abridgers. Meriton's Case, Noy, 86. S. C. Popham, 200. S. C. Latch, 161. Bac. abr. Covenant, 77. Com. Dig. Condition,(E.) This objection, therefore, is overruled. 2 \n  Another exception is, that there is no profert of the assignment described in the breach, nor is it shown to have been made for a valuable consideration. Various answers have been given at the bar to this exception; and without deciding on others, it is a sufficient answer that the plaintiff is neither a party nor privy to the assignment, nor conusant of the consideration upon which it was made, and therefore is not bound to make a profert of it, or show the consideration upon which it was made. \nThe last exception is, that the breach does not set forth any entry or eviction of the plaintiff under the assignment and patent to John Hawkins Craig. Assuming that an averment of an entry and eviction under an elder title be in general necessary to sustain an action on a covenant against incumbrances, (on which we give no opinion,) it is clear that it cannot be always necessary. If the grantee be unable to obtain possession in consequence of an existing possession or seisin by a person claiming and holding under an elder title, this would certainly be equivalent to  an eviction and a  breach of the covenant. In the case at bar the breach is assigned in  a very inartificial and lax manner; but it is expressly averred, that the assignment and patent to John Hawkins Craig was a prior conveyance, which was still in full force and virtue, \"by reason of which said assignment, patent, and incumbrance, the said William (the plaintiff) hath been prevented from having and enjoying all or any part of the premises above mentioned.\" We are all of opinion, that upon general demurrer, this must be taken as an averment, that the possession of the premises was legally withheld from the plaintiff by the parties in possession, under the prior title thus set up. 3 \n Judgment reversed. \n \n\n ", " \nOpinion \n\n \n \n   Mr. Justice STORY delivered the opinion of the court. \nBefore we consider the merits of this claim it may not be unfit to advert to some of the principles applicable to proceedings in prize causes, which seem to have been wholly neglected in the progress of this cause. \nIt is the established rule in courts of prize, that the evidence to acquit or condemn must, in the first instance, come from the papers and crew of the captured ship. On this account it is the duty of the captors, as soon as practicable, to bring the ship's papers into the registry of the district court, and to have the examinations of the principal officers and  seamen of the captured ship taken before the district judge, or commissioners appointed by him, upon the standing interrogatories. It is exclusively upon these papers and the examinations,  taken in preparatorio, that the cause is to be heard before the district court. If, from the whole evidence, the property clearly appear to be hostile, or neutral, condemnation or acquittal immediately follows. If, on the other hand, the property appear doubtful, or the case be clouded with suspicions or inconsistencies, it then becomes  a case of farther proof, which the court will direct or deny, according to the rules which govern its legal discretion on this subject. Farther proof is not a matter of course. It is granted in cases of honest mistake or ignorance, or to clear away any doubts or defects consistent with good faith. But if the parties have been guilty of gross fraud or misconduct, of illegality, farther proof is not allowed; and under such circumstances, the parties are visited with all the fatal consequences of an original hostile character. It is essential, therefore, to the correct administration of prize law, that the regular modes of proceeding should be observed with the utmost strictness; and it is a great mistake to allow common law notions in respect to evidence or practice, to prevail in proceedings which have very little analogy to those at common law. \nThese remarks have been drawn forth by an examination of the present record. The court could not but observe with regret that great irregularities had attended the cause in the court below. Neither were the ship's papers produced by the captors, nor  the captured crew examined upon the standing interrogatories. \nWitnesses were  produced by the libellants and the claimant indiscriminately at the trial, and their testimony was taken in open court upon any and all points to which the parties chose to interrogate them, and upon this testimony and the documentary proofs offered by the witnesses, the cause was heard and finally adjudged. In fact there was nothing to distinguish the cause from an ordinary proceeding in a mere revenue cause in rem. \nThis court cannot but watch with considerable solicitude irregularities, which so materially impair the simplicity of prize proceedings, and the rights and duties of the parties. Some apology for them may be found in the fact, that from our having been long at peace, no opportunity was afforded to learn the correct practice in prize causes. But that apology no longer exists; and if such irregularities should hereafter occur it may be proper to adopt a more rigorous course, and to withhold condemnation in the clearest cases, unless such irregularities are avoided ro explained. In the present case the first fault was that of the captors; and if the claimant had suffered any prejudice from it, this court would certainly restore to him every practicable benefit. But  in fact no such prejudice has arisen. The claimant has had, in the court below, the indulgence and benefit of farther proof and of collateral aids to verify the truth of his claim; and he stands at least upon as favourable a ground to sustain it as if the cause had been conducted with the most scrupulous form. \nTwo questions have been argued at the bar. First,  whether Mr. Basil Green, the asserted owner, has established his proprietary interest in the goods in question; and secondly, supposing this point decided in his favour, whether he has proved himself a neutral merchant, entitled by his domicil and national character to a restitution of the property. \nIt appears by the evidence in the case that Mr. Green was born in Maryland, and resided in that state, and principally at Baltimore, until the year 1809, when he went abroad. In 1811 he resided in Carthagena; and in the spring of 1813, he came to New-Orleans from Carthagena, in a schooner under Carthagenian colours, and being unable to sell her, he determined, in connexion with Messrs. John F. Miller, Lewis & Lee, and others, inhabitants of New-Orleans, who became jointly interested with him, to fit her out as an American  privateer. Accordingly, on or about the 13th of March, 1813, Mr. Green applied to the collector of the customs at New-Orleans for a commission; and in his petition he decribed her as the private armed schooner Hornet, of New-Orleans, owned by Basil Green. The commission was granted, and soon afterwards Mr. Green sailed in the privateer on her destined cruise. In June, 1813, he was, as he alleges, compelled by a mutiny of the crew to go to Carthagena, where they deserted, and the cruise was broken up, and the privateer was finally sold; of all which he gave information to the other owners at New-Orleans, and promised to remit their proportions of the proceeds. While at New-Orleans in April, 1813, Mr. Green executed a letter of attorney, appointing Messrs. Lewis  & Lee of that city, his general attornies and agents, and in this power he described himself, as \"Basil Green, of Baltimore, merchant.\" He does not appear since that period, to have returned to the United States. In July 1814, he was a resident at Carthagena, and is described by one other witness, as having a house and store there. Such are the most material facts respecting Mr. Green's domicil apparent on the  record. \nIn respect to the proprietary interest in the goods claimed by him, the evidence is more complicated. The whole adventure was conducted by Mr. John F. Miller, of New-Orleans, (one of the proprietors of the Hornet,) from whose testimony it appears, that the owners of the Hornet, resident at New-Orleans, having received information of her sale, and being desirous of receiving their funds, he, Miller, on his own account, and as their agent, determined to make a voyage to Carthagena for this purpose. He accordingly in June, 1814, went from New-Orleans to St. Jago de Cuba, and from thence to Jamaica, (as the only practicable route,) and from thence to Carthagena. When he left New-Orleans; he took a draft from Messrs. Lewis & Lee on Mr. Green, for 2,500 dollars, and a letter from the same gentlemen to Messrs. O'Hara & Offley, merchants at Jamaica, authorizing them to pay him the balance of their accounts, whatever it might be.At Carthagena, in August, 1814, he received from Mr. Green, the sum of 1,500 dollars and 50 cents, in part of the draft of Messrs. Lewis & Lee. He also received from Mr. Green the whole of the nett proceeds  of the sale of the Hornet, amounting  to the sum of 11,636 dollars, of which his own share amounted to 1,500 dollars, and that of Mr. Green, to 4,129 dollars and 2 cents; and he gave a receipt to Mr. Green for this amount, promising, on his arrival at New-Orleans, (sea risks and captures excepted,) to pay over to the stockholders  their respective proportions, deducting all necessary charges. Mr. Green directed his share to be remitted to his nephew at Baltimore, by written instructions contained in a letter directed to Mr. Miller, as follows: \"Carthagena, August 12, 1814, Mr. John F. Miller. My dear sir -- On your safe arrival in the New-Orleans, sea risks and captures excepted, you are authorized and appointed, at my wish, in which you will please to remit on to my nephew, Mr. George A. Stamp, of Baltimore, the sum of 4,129 dollars and 2 cents, after deducting the charges thereon, and you will much oblige you friend -- Respectfully -- B. Green.\" On the 29th of August, Mr. Green addressed a letter to his nephew, in the following paragraph: \"Mr. John F. Miller, a particular friend of mine, will remit on to you, in good bills, after his safe arrival in New-Orleans, the sum of 4,129 dollars and 25 cents, agreeable  to his receipt on the same, now in my possession. Perhaps he may remit you a 1,000 or 1,500 dollars more, if fortune favours his prospects.\" At what period Mr. Miller left Carthagena, does not precisely appear, but he says, that he thinks it was before the 20th of August, and that the letter of the 29th of August, was sent to him at Jamaica. Previous  to his departure, he further asserts, that Mr. Green gave him verbal instructions to lay out his share of the money in goods, at Jamaica, instead of remitting it to his nephew, and also by a written authority, under date of the 12th of August, authorized him, if he thought proper, to draw on him for the further sum of 2,500 dollars, at five days sight. From Carthagena, Mr. Miller went to Jamaica, where he endeavoured to purchase a small vessel; but failing in his object, he, on the 9th of September, 1814, chartered the Spanish schooner Dos Hermanos, Captain Delgado master and owner, then lying at Kingston. By the charter-party, which was made by Messrs. O'Hara & Offley, on behalf of the owner of the one part, and Mr. Miller of the other part, it was agreed that the sum of 1,500 dollars should be given for the charter of  the vessel for a voyage from Kingston to Pensacola, in West Florida, and back again to Kingston. That after her arrival at Pensacola, Mr. Miller should put on board, within 18 days, a return cargo of the produce of the country, to be consigned to Messrs. O'Hara & Offley for sale; and should further invest the amount of the freight in cotton or tobacco, on account of Mr. Delgado, and ship it on the return voyage, freight free, unless, it occupied more than a stipulated portion of the room of the vessel. Mr. Miller was further to pay all port charges, and in case of detention beyond 18 days, demurrage, also, at the rate of 16 dollars per day. And it was further agreed, that if the situation of that part of the world should be such as to preclude any communication between New-Orleans and Pensacola,  and prevent Mr. Miller from procuring a full return cargo or as much cotton and tobacco as should be required for the amount of the charter, then the said amount of 1,500 dollars was to be paid over on account of the said O'Hara & Offley, to Mr. John K. West, of New-Orleans; and in that event, and payment of all port charges, Miller was to be at liberty to decline loading the  vessel on the return voyage. Immediately after the execution of this charter-party, Mr. Miller loaded on board of the schooner the goods in question, through the agency of Messrs. O'Hara & Offley; and drew a bill for 2,500 dollars in their favour, on Mr. Green, and received from them, for the account of Messrs. Lewis & Lee, the sum of 900 dollars. The whole cargo, with an inconsiderable exception, was documented as the property of a Don Juan Lesado, of Pensacola, and purported to be the proceeds of the sales of a former cargo consigned by him to Messrs. O'Hara & Offley. Among these documents, which are asserted by the claimant to be merely colourable, there is an invoice account current of the sales of a supposed former cargo; and a letter of advice, stating that the schooner was chartered for the voyage on account of Don Juan Lesado, and that the cargo, consisting of dry goods, was a return cargo purchased by his orders. There is, also, a bill of lading consigning the cargo to the same person. Mr. Miller alleges this artifice to have been resorted to to preserve the shipment from British and Spanish capture. The schooner sailed on the voyage about the 13th of September, with  Mr. Miller on board,  and having been driven by currents considerably to the westward of Pensacola, and being in the Bay of St. Bernard, Mr. Miller left the schooner about the first of October, in a boat, which he had purchased at Jamaica, for the purpose, and proceeded for New-Orleans, leaving the property under the control and directions of a Mr. Bassett, who was a passenger on board. On the 13th of October, Mr. Miller arrived at New-Orleans. In the meantime the schooner proceeded to Dauphin Island, and there Mr. Bassett undertook (as he alleges) to change the destination, and determined to proceed to New-Orleans; and, for this purpose, on the 14th of October, 1814, he entered into a new charter-party in behalf of Mr. Miller, by which it was agreed between Mr. Bassett, as agent of Mr. Miller, and Captain Delgado for himself and Messrs. O'Hara & Offley, that for the additional sum of 1,100 dollars, the vessel should immediately proceed from Dauphin Island for the Bayou St. John, near the city of New-Orleans, and there deliver the said cargo to Mr. Miller, his agents or assigns. The schooner was soon afterwards captured by the libellants, detained in the Bay of St. Lewis,  and subsequently brought to Petit Coquille. After his arrival at New-Orleans, and before knowledge of the capture, Mr. Miller wrote the following letter to Mr. Bassett: -- \"New-Orleans, 15th of October, 1814. Dear sir, I arrived here on the 15th in the morning, after 12 days suffering, and found all my family as well as could be expected from the situation of this place and Pensacola. I have thought proper to remain  without doing any thing until I hear of your arrival, and news from you. I would advise, by all means, to fetch the vessel and cargo to Mobile point, if no farther, if possible. I believe it can be done without much or no danger. I believe, also, it is practicable to procure a permission from the English commander to come to New-Orleans with the schooner, provided you promise to return with provisions that they stand in need of. Try every means in your power to effect the arrival here of yourself and schooner. Should you get the schooner here, I shall meet a ready sale for the crockery ware, and the schooner a  ready despatch. Blankets sell ready at nine dollars per pair. Try and make arrangements with Delgado to fetch the schooner here,  as it is certainly greatly to his advantage as well as ours. I depend upon your known activity, and remain your friend. In haste, the vessel is about to sail. \nJOHN F. MILLER. \nP.S. All those pirates are destroyed at Barataria. Tobacco, best quality, six cents, dull. \nMILLER. \nI have not time to write to Delgado, but will next opportunity. Should you not have consigned the schooner and cargo to any person, you may place any confidence in Mr. Joseph Moreiga, as I know him well.\" \nMr. Miller asserts that he brought a considerable sum of money in dollars and doubloons from Jamaica, of which he took 4,500 dollars, when he left the schooner, in the boat, for New-Orleans, and the residue, amounting to about 18 or 1900 dollars, which was stored away in several crates of  goods, he afterwards contrived to obtain from the schooner in the night time while she lay at Petit Coquilles. All the letters brought in the schooner from Jamaica were taken by Mr. Miller, and all the documents respecting the cargo came from his hands during his several examinations in court. \nSuch is the general outline of the case, as to the question of proprietary interest in the goods claimed in behalf  of Mr. Green. An examination of some other minute, though important particulars, will properly arise in the subsequent discussion of this question. \nThe first thing that strikes us on the slightest survey of this cause, is the total absence of all documentary proof to establish the claim of Mr. Green. The shipment was made in the enemy's country in the name of an enemy, and ultimately destined for sale at Mobile or New-Orleans, if the parties should be able to accomplish the voyage. The property was clothed with a Spanish character, as Mr. Miller asserts, to protect it from British and Spanish capture. It is certainly the duty of neutrals to put on board of their ships sufficient papers to show the real character of the property, and if their conduct be fair and honest, there can rarely occur an occasion to use disguise, or false documents. At all events, when false or colourable documents are used, the necessity or reasonableness of the excuse ought to be very clear and unequivocal to induce a court of prize to rest satisfied with it. To say the least of it, the excuse is not, in this case, satisfactory; for the disguise is as strongly pointed to elude American, as   British or Spanish capture. It is not pretended that any genuine papers were put on board, or are now in existence, which would explain the circumstances; for Mr. Miller himself, in an answer to an interrogatory on this point, says he had from Mr. Green no written instructions, nor did he enter into a written contract with Mr. Green respecting the goods to be purchased at Jamaica; that Mr. Green would have given written instructions, but he, Mr. Miller, objected to it, as in case of capture it would have been insecure. He adds, that there are no letters or papers at Carthagena that can throw any light on this subject, and that not having received any, he was unwilling to leave any. \nIn the next place, there is not, with the exception of Mr. Miller's, the slightest testimony from the ship's crew that the property belonged to Mr. Green. The master and mate of the schooner, and Mr. Bassett also, the agent of Mr. Miller, expressly state, that they always believed Mr. Miller to be the real owner, and that he never named any other person to them as the owner, though he sometimes alluded darkly to a possible ownership in others. It is a general rule of the prize law, not to admit claims  which stand in entire opposition to the ship's papers, and to the preparatory examinations, where the voyages have originated after the war. The rule is founded upon this simple reason, that it would open a door to fraud in an incalculable extent, if persons were not required to describe their property with perfect fairness. The rule, however, is not inflexible; it yields to cases of necessity, or where,  by the course of the trade, simulated papers become indispensable, as in a trade licensed by the state with the public enemy. It may be said, that the rule cannot be applied to the present case, because Mr. Miller is to be deemed one of the ship's crew, although he had, some time before the capture, left the vessel, and was, at the time of capture, at New-Orleans; and that his examinations (for he was examined several times) established the interrest of Mr. Green, and so the claim is consistent with what ought to have been the evidence in preparatorio. Assuming this argument to be correct, on which we give no opinion, the circumstances of this case call for the most plenary explanations to dissipate the doubts which cannot fail to be awakened. \nThese explanations come  altogether from Mr. Miller, and are unsupported by any corroborative documents, or facts asserted upon independent testimony. All that the other principal witnesses have testified to, which bears directly on the cause, consists of declarations or confessions, or acts of Mr. Miller, after his return to New-Orleans. Mr. Miller himself certainly stands in a predicament which does not lend additional credit to his assertions. He was the projector of the voyage, and the conductor of all its operations. He chartered the vessel in his own name; and if he was acting for Mr. Green, and not for himself, what motive could there be for him to conceal his agency from Messrs. O'Hara & Offley, or from Captain Delgado? The voyage itself was illegal in an American citizen. The charter-party  stipulated for a return cargo to Jamaica, which was to be furnished by Mr. Miller, and he does not pretend that this cargo was to have been shipped on Mr. Green's account. It must have been a traffick on his own account, or a joint concern with Messrs. O'Hara & Offley; and in either view was a surrender of all the obligations which he owed to his country. These considerations cannot certainly  increase our confidence in the integrity of the conduct of Mr. Miller. \nOn examining his testimony there are many circumstances which cannot fail to create unfavourable doubts. The test affidavit itself is couched in very equivocal language. Mr. Miller there asserts, that at the time of the purchase he expected to have an interest in the  goods, but that on his arrival at New-Orleans, the attorney in fact of the claimants refused to allow any such interest, and the deponent was obliged to give up the same. What authority could Mr. Lewis, the attorney here alluded to, have to intermeddle with Mr. Miller's interest in the shipment? He was not the consignee of the property, nor was he confidentially acquainted with any agreement or instructions of Mr. Green relative to the voyage. It is scarcely credible that the real consignee of the goods, having an interest in them, should, under such circumstances, yield it up to a mere intruder. In his examination in chief, Mr. Miller states, that it was his original intention to have invested his own funds, as well as Mr. Green's, at Jamaica; but he was induced to abandon it by reports that the British intended to occupy Pensacola   and Mobile Point; and he explains his interest in the shipment to have been only a right to one third of the profits in lieu of commissions. \nThis representation is not consistent with the language held by Mr. Miller on other occasions. After the capture Mr. Miller stated to Captain Delgado, that \"he had got himself into a difficulty in consequence of his (Delgado's) coming here; that the greater part of the funds invested in the goods belonged to Mr. Green; that he (Miller) was acting for others, and that he feared he should get himself into difficulty.\" Upon an inquiry from the same person during the voyage from Kingston, whether he was the owner, Mr. Miller answered, \"that he did not know -- that he had funds from Carthagena.\" On another occasion, Mr. Miller gave another witness, (Mr. M'llvaine) to understand, \"that the cargo was purchased on his (Miller's) and Green's account.\" And in a conversation with a Mr. West, who was the confidential agent of Messrs. O'Hara and Offley, and received a letter by the schooner advising him of the voyage, he left the impression on Mr. West's mind that the cargo was his own. The language, too, that Miller held with Mr. Heins, (the  mate of the schooner,) after the capture, is very significant. He said, \"It was a hard case that he should lose his property in that way; that it was the earnings of many years.\" \nThere are some other discrepancies in the declarations of Mr. Miller, which are not easily to be accounted for. Mr. Miller, in his examination, states, that Mr. Green authorized him to invest in goods  the money belonging to him; and that after he chartered the schooner it was his intention to lay out Mr. Green's funds, as well as his own, in the purchase of goods; but that subsequent events induced him not to lay out his own funds, and that he laid out for Mr. Green about 6,000 dollars only. In his conversation with Mr. Lewis he stated, that there was an arrangement between Mr. Green and himself; that if he thought proper upon his arrival at Jamaica, he might invest in goods the whole of the 11,686 dollars, and more, (for which he was authorized to draw on Mr. Green, if necessary,) on the joint account of himself and Mr. Green; that after his arrival at Jamaica he thought he would enter into this speculation; and, thereupon, he drew upon Mr. Green for 2,500 dollars; and that after the draft  was made he discovered that he had not any right to make this disposition of the funds of the stockholders in the Hornet, and, accordingly, he laid out 6,000 dollars of Mr. Green's money, supposing he ought to have an interest in it himself, as a compensation for his trouble. \nIn determining the real character of this whole transaction it becomes material to ascertain the true value of the cargo shipped by Mr. Miller. He asserts it to be about 6,000 dollars; but no original invoice, or other genuine paper is produced to prove its cost at Jamaica. According to Mr. Bassett, it was worth about 7 or 8,000 dollars; and Capt. Delgado says, that while lading it, Mr. Miller told him it would amount to about 8 or 10,000 dollars. If their cargo cost but 6,000 dollars, it may be asked, what became of the residue of the money in the  hands of Mr. Miller? According to his own account, he received for the sales of the Hornet 11,636 dollars; from O'Hara & Offley 900 dollars; and he drew a bill on Mr. Green, in part payment of the goods, for 2,500 dollars, making in the whole, the aggregate sum of fourteen thousand dollars. There remained, therefore, after the purchase of the goods,  in the hands of Mr. Miller, about 3,000 dollars. What has become of this fund belonging to himself and the stockholders in the Hornet? Here, as indeed in every other material part of the cause, the explanation comes exclusively from Mr. Miller. He says, that when he left the schooner in St. Bernard's Bay, he took away with him in the boat the sum of 4,500 dollars; and that while the schooner lay at Petit Coquilles, he took away from some crates on board of the schooner, in which it was concealed, the further sum of 18 or 1900 dollars. It is true that Captain Delgado says that when Miller left the schooner he took away with him a bag, which, he supposes, contained dollars, but he does not pretend even to guess at the amount; and it is remarkable, that none of the passengers are interrogated on this subject. But the statement in relation to the 18 or 1900 dollars is wholly incredible. The mate flatly denies that it could have been taken out of the crates in the manner which Miller asserts; and Mr. Bassett manifestly considers it almost impossible. What adds to the incredibility of the statement is, that when Mr. Miller left the schooner, he never informed Mr. Bassett that there  was any money concealed in any of the crates, although he expressly constituted him his agent to dispose of the cargo, without any reserve. \n If the funds were brought to New-Orleans in money, as Mr. Miller pretends, nothing could have been more easy of proof than the fact, considering that a large proportion of it belonged to the other stockholders in the Hornet. By the very terms of his receipt he was bound to pay over to them their respective proportions on his arrival at New-Orleans. Has he done so? There is not the slightest proof to this effect in the case. On the contrary, several of the stockholders, or their agents, have been examined, and not one of them admits his proportion to have been paid. Indeed, Mr. Miller himself admits that he has never paid any; and gives this extraordinary excuse, that he had orders from Mr. Green not to pay over the money until three months after his arrival at New-Orleans. This excuse is entirely at variance with the receipt given by Mr. Miller, and is as little reconcilable with the letter of Mr. Green to his nephew, respecting his own  remittance. It may be added, that the statement itself has very little intrinsic  probability to support it. \nIt is, therefore, no harshness to declare, that the declarations of Mr. Miller, that he brought home so very considerable a sum, are not of themselves entitled to much credit, and, under the circumstances, cannot be received as satisfactory evidence of the fact by this court; and if so, then every suspicion that the whole funds were invested in the cargo is greatly inflamed, and every doubt of the good faith of the present claim materially strengthened. \nThere are many other circumstances in the case which tend to a discredit of the claim; but it would  occupy too much time to discuss them minutely. One circumstance, however, deserves particular notice. It is the letter of Mr. Miller written to Mr. Bassett, after his arrival at New-Orleans, which may almost be said to carry, in every line of it, the language and feelings of an owner of the goods. And if adds no inconsiderable force to these observations, that the only documents on board pointing to Mr. Green, are inconsistent with the supposition that the goods were purchased on his account; and the only doubtful expression in them may well be satisfied as referring to money to be obtained by  Mr. Miller, from a Mr. Hardy, of Jamaica, who was indebted to Mr. Green. \nConsidering, then, that the present claim rests altogether upon the testimony of Mr. Miller, given by him after he well knew the form and pressure of the cause, and liable, as it must be, to the strongest doubts, both from the predicament in which he stands, and the circumstances which have been already stated, the court cannot admit that it is supported by any reasonable evidence. It is not material in our view, whether the property belonged wholly to Mr. Miller, or to him jointly with Green, or was purchased with the funds of the stockholders of the Hornet, on his own account, as an unauthorized speculation, or on joint account with their authority; for in either case it is liable to the same judgment. It is a settled rule of this court, that if a party will attempt to impose upon the court by knowingly or fraudulently claiming as his own property belonging in part to others, he shall not be entitled to a restitution of that portion which he may ultimately establish  as his own. This rule is founded in the purest principles of morality and justice, and would bear upon the claim of Mr. Green, supposing  his domicil, as a neutral, were ever so clearly established. \nIn respect to the domicil of Mr. Green, there is certainly much reason to doubt if it would be sufficient to protect him, even if he could show himself at the time of the capture, a citizen of Carthagena. For, if upon his return to New-Orleans after the war, he acquired a domicil there, (of which, the circumstance of his becoming the owner of a privateer in that port, affords a strong presumption,) he became a redintegrated American citizen, and he could not, by an emigration afterwards, flagrante bello, acquire a neutral character so as to separate himself from that of his native country. \nThe counsel for the claimant, aware of the pressure of his case upon the present evidence, has prayed to be admitted to make farther proof, which he states to be now in his possession. If this cause turned upon the question of domicil, the court would feel little hesitation in admitting it. But considering the manner in which the cause was conducted in the court below, and that the claimant there had the benefit of farther proof, and that it appears to us that upon the question of proprietary interest, the cause now admits of no fair  and reasonable explanation, consistent with an exclusive interest in Mr. Green, we do not feel at liberty to make an order for farther proof. We are not satisfied that it would be a safe or convenient rule, unless, under very special circumstances, to allow parties who have had the benefit  of plenary proof in the court below, to have an order for farther proof in this court upon the same points. Much less should we incline to allow it in a case of pregnant suspicion, where the evidence must come from sources tainted with so many unwholesome personal interests, and so many infusions of doubtful credit. \nThe claim of Mr. Green must, therefore, be rejected, and the goods be condemned as good and lawful prize. \nIt has been urged, that there is no evidence upon the record that the captors were duly commissioned, and that farther proof ought to be required on this point. This, however, is a question which the claimant has no right to litigate. He has no legal standing before the court to assert the rights of the United States. If the capture was without a commission, the condemnation must be to the United States generally; if with a commission, as a national vessel, it must  still be to the United States, but the proceeds are to be distributed by the court among the captors according to law. It will be time enough to require the commission to be produced, when the proceeds are to be distributed by the court, if the United States shall then insist upon any exclusive claim. \nDecree affirmed with costs. 1 \n APPENDIX. \nNOTE 1. \nAdditional Note on the Principles and Practice in Prize Causes. \nIN the Appendix to the first volume of these Reports, (Note II.,) a summary sketch was attempted of the practice in prize causes in some of its most important particulars. It has been suggested that a more enlarged view of the principles and practice of prize courts might be useful, and in case of a future war, save much embarrassment to captors and claimants. With this view the following additional sketch is submitted to the learned reader. \nAs preliminary to the subject it may be observed, that the ordinary prize jurisdiction of the admiralty extends to all captures made on the sea, jure belli, (The Two Friends, 1 Rob. 271. 284; 1 ) to captures in foreign ports and harbours, (Lindo v. Rodney, Doug. 613. note;) to captures made  on land by naval forces and upon surrenders to naval forces either solely or by joint operations with land forces, (Lindo v. Rodney, Doug. 613. note. Chinsurah, 1 Acton, 179;) and this, whether the property so captured be goods, ships, or mere choses in action. (Ib.) To captures made in rivers, ports, and harbours of the  captor's own country, (W. B. v. Latimer, 4 Dall. Appendix I. Le Caux v. Eden, Doug. 606. Lindo v. Rodney, Doug. 613. note;) to money received as a ransom or commutation on a capitulation to naval forces alone, or jointly with land forces (Ships taken at Genoa, 4 Rob. 388.;) and to ransoms upon captures at sea generally. (Anthon v. Fisher, Doug. 649. note (1) Maisonnaire v. Keating, 2 Gallis.) But the admiralty, merely by its own inherent powers, never exercises jurisdiction as to captures or seizures as prize made on shore without the cooperation of naval forces, whether made in our own, or in a foreign territory. (The Two Friends, 1 Rob. 271. 284. The Emulous, 1 Gallis. 563.) Wherever such a jurisdiction is exercised, it is by virtue of powers derived aliunde. And though when the jurisdiction has once attached, it may be lost by a hostile recapture,  escape, or voluntary discharge, ( Hudson v. Guestier, 4 Cranch, 293.;) yet it remains notwithstanding the goods are landed, for it does not depend on their local situation after capture; but the court will follow the goods or their proceeds with its process wherever they may be found, or under whatever title acquired. ( Home v. Camden, 2 H. Bl. 533. 4 Term Rep. 388. Willis v. Commissioners of Prize, 5 East, 22. The Noysomhed, 7 Ves. 593. The Louis, 5 Rob. 146. The Two Friends, 1 Rob. 271. The Eliza, 1 Acton, 336. Smart v. Wolff, 3 Term Rep. 223. The Pomona, 1 Dodson, 25.) Therefore, where the property is carried into a foreign port, and there delivered upon bail by the captors, the prize court does not lose its jurisdiction, but may proceed to adjudication and enforce the stipulation. (The Peacock, 4 Rob. 185.) So, if a prize be lost at sea, the court may, nevertheless, proceed to adjudication, either at the instance of the captors or of the claimants. (The Susanna, 6 Rob. 48.) So, although the property may be actually lying within a foreign neutral territory, the court may proceed to adjudication. ( Hudson v. Guestier, 4 Cranch, 293. The Christopher, 2 Rob. 209. The Henrick and  Maria, 4 Rob. 43. The Comet, 5 Rob. 285.The Victoria, Edwards, 97.) So, although the property has been sold by the captors, or has passed into other hands. (The Falcon, 6 Rob. 194. The Pomona, 1 Dodson, 25.) But it rests in  the sound discretion of the court, whether, when property has been sold or converted by the captors, it will proceed to adjudication in their favour; for it is only in cases where the same has been justifiably or legally converted by the captors, that they can claim its aid. The court will withhold that aid where there has been a conversion by the captors without necessity or reasonable cause. (L'Eole, 6 Rob. 220. La Dame Cecile, 6 Rob. 257. The Arabella and Madeira, 2 Gallis. 2 ) \nWhen once the prize court has acquired jurisdiction over the principal cause, it will exert its authority over all the incidents. 3 It will follow, as has been already observed, prize proceeds into the hands of agents or other persons holding them for the captors, or by any other title; and in proper cases will decree the parties to pay over the proceeds, with interest, upon the same for the time they have been in their hands. ( Smart v. Wolff, 3 Term Rep. 323. Home v. Camden,  2 H.  Bl. 533. 4 Term Rep. 382. Jennings v. Carson, 4 Cranch, 1. The Two Friends, 1 Rob. 273. The Princessa, 2 Rob. 31. The Louis, 6 Rob. 146. Willis v. Commissioners of Prize, 5 East, 22. The Noysomhed, 7 Ves. 593.) It may also enforce its decrees against persons having the proceeds of prize in their hands, notwithstanding no stipulation, or an insufficient stipulation, has been taken on a delivery on bail; for it may always proceed in rem where the res can be found, and is not confined to the remedy on the stipulation. (Per Buller, J. in 3 Term Rep. 323. Per Grose, J. in 5 East, 22. The Pomona, 1 Dodson, 25. The Herkimer, Stewart, 128. S.C. 2 Hall's Am. Law Journ. 133.) And in these cases the court may proceed upon its own authority, ex officio, as well as upon the application of parties. (The Herkimer, Stewart, 128. S.C. 2 Hall's Am. Law Journ. 133.) Nor is the court functus officio after sentence pronounced; for it may proceed to enforce all rights, and issue process therefor, so long as any thing remains to be done touching the subject matter. ( Home v. Camden, 2 H. Bl. 533. and cases ubi supra.) \n The prize court has also exclusive jurisdiction as to the question who are the captors, and joint captors, entitled to share in the distribution, and its decree is conclusive upon all parties. ( Home v. Camden, 2 H. Bl. 533. 4 Term Rep. 382. The Herkimer, Stewart, 128. S.C. 2 Hall's Am. Law Journ. 133. Duckworth v. Tucker, 2 Taunton, 7.) It has the same exclusive authority as to the allowance of freight, damages, expenses, and costs, in all cases of captures. (Le Caux v. Eden, Doug. 594. Lindo v. Rodney, Doug. 613. Smart v. Wolff, 3 Term Rep. 223. The Copenhagen, 1 Rob. 289. The St. Juan Baptista, 5 Rob. 33. The Die Frie Damer, 5 Rob. 357. The Betsey, 1 Rob. 93. Duckworth v. Tucker, 2 Taunt. 7. Jennings v. Carson, 4 Cranch, 2. Bingham v. Cabot, 3 Dall. 19. The United States v. Peters, 3 Dall. 121. Talbot v. Janson, 3 Dall. 133. 2 Brown's Civ. and Adm. Law, 208.) And though a mere maritime tort unconnected with capture jure belli may be cognizable by a court of common law; yet it is clearly established that all captures, jure belli, and all torts  connected therewith, are exclusively cognizable in the prize court. \nAnd the prize court will not only entertain suits for  restitution, and damages in cases of wrongful capture, and award damages therefor; but it will also allow damages for all personal torts, and that upon a proper case laid before the court as a mere incident to the possession of the principal cause. And in such a case it will not confine itself to the actual wrong doer; but will apply the rule of respondeat superior, and decree damages against the owners of the offending privateer. ( Del Col. v. Arnold, 3 Dall. 333. The Anna Maria, ante, 327. Bynk. Q. J. Pub. L. 1 ch. 19., Du Ponceau's translation, 147.) And where the captured crew have been grossly illtreated, the court will award a liberal recompense. (The St. Juan Baptista, 5 Rob. 33. The Die Frie Damer, 5 Rob. 357. The Lively, 1 Gallis. 315.) \nAs the prize court has an unquestionable jurisdiction to apply confiscation by way of penalty for falsity, fraud, and misconduct of citizens as well as of neutrals, (The Johanna Tholen, 6 Rob. 72. Oswell v. Vigne, 15 East, 70.;) so it may, in like manner, decree a forfeiture of the rights of prize against captors where they have been guilty of gross irregularity, or criminal neglect, or wanton impropriety and fraud. It is a part of the  ancient law of the admiralty, independent of any statute, that captors may, by their misconduct, forfeit the rights of prize; and in such cases the property is condemned to the government generally. And this penalty has been frequently enforced, not only where the captors have been guilty of fraud, ( 8 Cranch, 421. The George, ante, 278.;) but also where they have violated the instructions of government relative to bringing in the prize crew, and have proceeded without necessity to dispose of the property before condemnation. (La Reine des Anges, Stewart, 9.) So, where the captors have rescued a prize ship from the custody of the marshal after a monition duly served. (The Cossack, Stewart, 513.) In short, the court is the constitutional guardian of the public interests in relation to matters of prize; and wherever there is any deviation from the regular course of proceedings, it expects to have a sufficient reason  shown for that deviation, before it will give the captors any of the ordinary benefits of prizes captured by them. 4 \n The usual course of the court is by way of monition, and if that process be disobeyed, an attachment issues against the  parties in contempt. But the court may, in all cases, proceed in the first instance by warrant of arrest of the person or property to compel security to abide its decree. \nHAVING said so much on the subject of prize jurisdiction, as seemed necessary to explain the practice of the court, we may now pass to the consideration of the rights and duties of captors in relation to property captured in war. \nTo enable a vessel to make captures which shall enure to the benefit of the captors, it is necessary that she should have a commission of prize. But non-commissioned vessels of a belligerant nation may not only make captures in their own defence; but may, at all times, capture hostile ships and cargoes, without being deemed by the law of nations to be pirates; though they can have no interest in prizes so captured. (2 Brown's Civ. and Adm. Law, 524. Caseregis, Disc. 24. no. 24. 2 Woodes. Lect. 432. Consoluto del Mare, ch. 287, 288. 3 Buls. 27. 4 Inst. 152. 154. Zouch. Adm. Jurisd. ch. 4. 101. Com. Dig. Admiralty, E. 3. The Georgiana, 1 Dodson, 397. The  Diligentia, Id. 403. The Emulous, 8 Cranch, 131. The Nereide, 9 Cranch, 449. The Dos Hermanos, ante, 76. 5 ) But every capture, whether made by commissioned or non-commissioned ships, is at the peril of the captors. If they capture property without reasonable or justifiable cause, they are liable to a suit for restitution, and may also be mulcted  in costs and damages. 6 If the vessel and cargo, or any part thereof, be good prize, they are completely justified. And although the whole property may, upon a hearing, be restored, yet, it there was probable cause of capture, they are not responsible in damages, (Opinion of M. Portalis, in the case of the Statira, 2 Cranch, 102. note (a);) but, on the other hand, they may, under circumstances according to the aegree of doubt or suspicion thrown upon the case, either from defects of the papers, the nature of the voyage, or the conduct of the captured crew, be entitled to receive their costs and expenses in bringing in the property for adjudication. It is not within the object of this note to enumerate all the various circumstances which have been adjudged to constitute probable cause for captures. But, in general, it may be  observed, that if the ship pretend to be neutral, and has not the usual documents of such ship on board, (The Anna, 5 Rob. 332.;) if the cargo be without any clearance, (Ib.;) if the destination be untrully stated; if the papers respecting the ship or cargo be false or colourable, or be suppressed or spoliated; or if the neutrality of the cargo does not distinctly and fully appear, (Report of Dr. Lee &c., Chitty's Law of Nations, Appendix, 303., Wheat. on Capt. Appendix, 320.;) if the voyage be from or to a blockaded port, (The Frederick Molke, 1 Rob. 86.,) or not legal to the parties engaged in the traffick; (The Walsingham Packet, 2 Rob. 77. The Hoop, 1 Rob. 196. The St. Antonius, 1 Acton, 113.;) if the cargo be of an ambiguous character as to contraband; (The Endraught, 1 Rob. 22. The Rindge Jacob, 1 Rob. 89. The  Jonge Margaretha, 1 Rob. 189. The Twende Broder, 4 Rob. 33. The Frau Margaretha, 6 Rob. 92. The Ranger, 6 Rob. 125.;) and generally if the case be a case of farther proof; all or any of those circumstances furnish a probable cause for capture, and justify the captors in bringing in the ship and cargo for adjudication. \n Whenever the captors are justified in the capture, they are considered as having a bona fide possession, and are not responsible for any subsequent losses or injuries arising to the property from mere accident or casualty, as from stress of weather, recapture by the enemy, shipwreck, &c. (The Betsey, 1 Rob. 93. The Catharine and Anna, 4 Rob. 39. The Carolina, 4 Rob. 256. Del Col v. Arnold, 3 Dall. 333.) They are, however, in all cases bound for fair and safe custody; and if the property be lost from want of proper care, they are responsible to the amount of the damage; for subsequent misconduct may forfeit the fair title of a bona fide possessor, and make him a trespasser from the beginning. (The Betsey, 1 Rob. 93. The Catharine and Anna, 4 Rob. 39.) Therefore, if the prize be lost by the misconduct of the prize-master, or from neglecting to take a pilot, or to put on board a proper prize crew, the court will decree restitution in value against the captors. (The Der Mohr, 3 Rob. 129. The Speculation, 2 Rob. 293. The William, 6 Rob. 316. Del Col v. Arnold, 3 Dall. 333. Wilcocks v. Union Ins. Com. 2 Binney, 574.) But although, in general, irregularity of conduct in captors makes  them liable for damages, yet in case of a bona fide possession, the irregularity to bind them must be such as produces irreparable loss, as, for instance, such as may prevent restitution from an enemy who recaptures the property. (The Betsey, 1 Rob. 93.) And in cases of gross misconduct, the court will hold the commission of the captors forfeited. (The Marianne, 5 Rob. 9.) But if the injured parties lie by for a great length of time, the court will not issue a monition to the captors to proceed to adjudication, even when misconduct is laid as the ground of the application. (The Purissima Conception, 6 Rob. 45.) \nWhen a ship is captured, it is the duty of the captors to send her into some convenient port for adjudication. (The Huldah,  3 Rob. 235. The Madonna del Burso, 4 Rob. 169. The St. Juan Baptista, 5 Rob. 33. The Wilhelmsberg, 5 Rob. 143. The Elsebe, 5 Rob. 173. The Lively, 1 Gallis. 315.) 7 And a convenient port is such a port as the ship may ride in with safety without unloading her cargo. (The Washington, 6 Rob. 275. The Principe, Edwards, 70.) And the captors are bound to put on board the captured ship a sufficient prize crew to navigate the vessel into such  a port, unless the captured crew consent to navigate her; (which in general they are not bound to do;) but if they consent they cannot afterwards impute any fault to the captors. ( Wilcocks v. Union Ins. Co., 2 Binney 574. The Resolution, 6 Rob. 13. The Pennsylvania, 1 Acton, 33. The Alexander, 1 Gallis. 532. S.C. 8 Cranch, 169.) And in case of the capture of a neutral ship the crew ought not to be handcuffed or put in irons, unless in extreme cases; for if unnecessarily done the prize court will decree damages to the injured parties. (The St. Juan Baptista, 5 Rob. 33. The Die Fire Damer, 5 Rob. 357.) Captors are not bound to explain the cause of capture, but it is highly proper to to do, as the master may explain it away. (The Juffrow Maria Schroeder, 3 Rob. 147.) They may chase under false colours; but the maritime law does not permit them to fire under false colours. (The Peacock, 4 Rob. 185.) 8  They have no right to make any spoliation or damage to the captured ship; or to embezzle or convert the property; or to break bulk, or to remove any of the property from the ship, unless in cases of necessity, or where obvious reasons of policy, or the urgency of the occasion,  justify them in so doing. (The Concordia, 2 Rob. 102. L'Eole, 6 Rob. 220. The Washington, 6 Rob. 275. Clerk's Praxis, 163. Del Col v. Arnold, 3 Dall. 333.) And in every case of a removal of property from a captured ship the court expects to be satisfied as to the propriety of the removal before it will proceed to adjudication. But if any of the captured property be shown to be missing, without any default on their part, as where it is lost by robbery or burglary after unlivery, they are not responsible for the loss. (The Maria, 4 Rob. 348. The Rendsberg, 6 Rob. 142.) And if captors, acting bona fide, and for the benefit of the parties, under peculiar circumstances, land or even sell the prize goods, this irregularity, if not injurious to the parties, will not be held to deprive them of the effects of a lawful possession. (The Princessa, 2 Rob. 31.) \n \nIf the capture is made without probable cause, the captors are liable for damages, costs, and expenses, to the claimants. (Sir W. Scott and Sir J. Nichol's letter to Mr. Jay, Wheat. on Capt., Appendix, 312. Opinion of M. Portalis, in the case of the Pigou, 1 Cranch, 101. note (a). Del Col v. Arnold, 3 Dall. 333. The Charming Betsey, 2 Cranch, 64. Maley v. Shattuck, 3 Cranch, 458. The Triton, 4 Rob. 78. Camden v. Hone, 4 Term Rep. 385. Fallijeff v. Elphinstone, 5 Brown's Parl. Cas. 343.Clerk's Prax. 162. The Lively, 1 Gallis. 315.) 9 And if the captors unjustifiably neglect to proceed to adjudication, the court will, in case of restitution, decree demurrage against them. (The Corier Maritirno, 1 Rob. 287. The Madonna del Burso, 4 Rob. 169. The Peacock, 4 Rob. 185.  The Anna Catherina, 6 Rob. 10.) So, also, if the captors agree to restitution, but unreasonably delay it, demurrage will be allowed against them. (The Zee Star, 4 Rob. 71.) After an acquittal, a second seizure may be made by other captors, but it is at the peril of damages and costs, in case of failure. (The Mercurius, 1 Rob. 80;) and although a spoliation of papers be made, yet, if it be produced by the  misconduct of captors, as by firing under false colours, it will not protect them from damages and costs. (The Peacock, 4 Rob. 135.) Nor is it an objection in the prize court against awarding damages and costs that the ship is not navigated by a proper proportion of seamen of her own country, according to its navigation laws; for that is an irregularity which must be referred to another branch of the admiralty jurisdiction. ( The Nemesis, 1 Edw. 50.) \nAs to the time within which a suit may be brought in the admiralty, for damages for an illegal capture, it may be observed, that as the statute of limitations does not apply to prize causes, there is no time during the existence of the prize commission in which captors may not be legally called on to proceed to adjudication, for the purpose of awarding damages against them. (The Mentor, 1 Rob. 179. The Huldah, 3 Rob. 235.)  But the court will extend, by equity, the principles of the statute of limitations to prize causes; and, therefore, it will not, after a great lapse of time, compel the captors to proceed to adjudication, or entertain a suit for damages for a supposed illegal capture. (The Susanna, 6 Rob. 48.) \nIn respect to the measure of damages, where the vessel and cargo are actually lost, it is usual to allow the actual value of the property. ( Del Col v. Arnold, 3 Dall. 333. Maley v. Shattuck, 3 Cranch, 458. The Anna Maria, ante, p. 327.) And where a prize had been illegally condemned by a vice admiralty court, erected by the commanders in the West Indies, under a misapprehension that they possessed an authority to erect such courts, and afterwards restitution in value was decreed by the high court of admiralty in England, the court allowed the invoice value, 10 per cent. profit, and freight, as well where the ship and cargo belonged to the same persons as where they were separately owned. (The Lucy, 3 Rob. 208.) Indeed, what items may properly form a part of the damages, depends  upon the nature and circumstances of the case; and for guides to direct his judgment, the learned reader  is referred to the following cases. (Le Caux v. Eden, Doug. 594. 596. Talbot v. Jansen, 3 Dall. 133. 170. Cotton v. Wallace, 3 Dall. 302., 304. The Charming Betsey, 2 Cranch, 64. Maley v. Shattuck, 3 Cranch, 458. The Narcissus, 4 Rob. 20. The Zee Star, 4 Rob. 71. The Corier Maritimo, 1 Rob. 287. The St. Juan Baptista, 5 Rob. 33. The Die Fire Damer, 5 Rob. 357. The Anna Catharina, 6 Rob. 10. The Driver, 5 Rob. 145. The Lively, 1 Gallis. 315. The Anna Maria, ante, p. 327.) Where damages and costs are allowed, if after they are assessed, payment is delayed, the court will allow interest upon the principal sum from the time of assessment, although it includes interest as well as principal. (The Driver, 5 Rob. 145.) \nAs to the mode of assessing damages, it is usual for the court to refer the subject to commissioners, to make inquiry and return a regular report to the court, of the several items and amount of damages. But in their report, they should state the principles upon which they proceed in making allowances, where the items do not explain themselves, and not report a gross sum without specification or explanation. ( The Charming Betsey, 2 Cranch, 64. The Lively, 1 Gallis. 315.) \nIn respect to the persons who are liable for costs and damages, it may be observed, that the general rule, in respect to public ships, is, that the actual wrong doer, and he alone, is responsible. (The Mentor, 1 Rob. 179.) It is not meant by this, that the crew of the capturing ship are responsible for the seizure made in obedience to the commands of their superior; for by the prize law, the act of the commander is binding upon the interests of all under him, and he alone is responsible for damages and costs. (The Dilligentia, 1 Dodson, 404.) The meaning of the rule is, that the person actually ordering the seizure is liable for the damages, and not his superior in command, (who has not concurred in the particular act,) simply from the fact, that the seizor is acting within the scope of his general orders. (The Mentor, 1 Rob. 179) Therefore, a suit cannot be maintained against an admiral upon a station, who is not privy to the act of seizure. (Ib. 179.) Nor a commodore, who commands the  squadron, but gives no orders for the capture. (The Eleanor, ante, p. 346.) In short, the actual wrong doer is the person to answer in judgment, and to him responsibility is attached  by the court. He may have other persons responsible over to him, and that responsibility may be enforced; as for instance, if a captain make a wrongful seizure under the express orders of his admiral, that admiral may be made answerable in the damages occasioned to the captain by the improper act. But it is the constant and invariable practice of the prize court to have the actual wrong doer the party before the court; and the propriety of the practice is manifest, because, if the court was once to open the door to complaints founded on remote and consequential responsibility; it would be difficult to say where it is to stop. (The Mentor, 1 Rob. 179.) The principles applicable to this class of cases, are fully developed in the opinion in the case of the Eleanor, (ante, p. 346.) to which the reader is respectfully referred. \nIn case of private armed vessels, the owners, as well as the master, are responsible for the damages and costs occasioned by illegal captures, and this to the extent of the actual loss and injury, even if it exceeds the amount of the bond usually given, upon the taking out of commissions for privateers. (Bank. Q. J. Pub., l 1 ch. 19., Duponceaus ed., p. 147.  Talbot v. Three Brigs, 1 Dall. 95. S.C. 1 Hall's Am. Law Journ. 140. The Die Fire Damer, 5 Rob. 357.The Der Mohr, 3 Rob. 129. \nBrown's Civ. and Adm Law, 140. Del Col v. Arnold, 3 Dall. 333. The Anna Maria anta, p. 327.) 10 But the sureties to the  bond are responsible only to the extent of the sum in which they are bond. (Du Ponceau's Bynk. p. 149. 2 Valin, Sur l'Ordonnance, 223.) And if a person appear in behalf of the captain of a private ship of war, and gives security in his own name with sureties, instead of the captain, he is liable in the same manner as the captain, as a principal in the stipulation. ( King v. Fergusson, 1 Edw. 84.) And a part owner of a private armed ship is not exempted from being a party to a suit, on a moition to bring in the prize proceeds and proceed to adjudication, in consequence of having made compensation for his share to the claimant, and received a release from him; for the claimant has a right to the answer of all parties, even supposing that the decree ought not to be enforced against such part owner. (The Karasan, 5 Rob. 291.) And in a court of the law of nations, a person may be held a part owner of a privateer, although   his name has never been inserted in the bill of sale or the ship's register. (The Nostra Signora de los Dolores, 1 Dodson, 290.) \n Where the captors, from any cause whatsoever, as from loss of the property, or from fraud or neligence, omit to bring the case before the court for adjudication, the claimant may apply to the court for a monition to the captors to proceed forthwith to adjudication; (The William, 4 Rob. 214;) and upon their nglect so to do after service and return of the monition, the court will, if a proper case is laid before it, proceed to award restitution with damages and costs. (The Huldah, 3 Rob. 235.The Susanna, 6 Rob. 48.) It is the usual practice for a party to give in his claim in the first instance, before calling upon the captors to proceed to adjudication; but it will not necessarily vitiate the process, if there has been no claim. If it should, in any manner, come to the knowledge of the court that a seizure had been made in the nature of prize, and that no proceedings had been instituted, it would be the duty of the court to direct proceedings to be commenced. (The William, 4 Rob. 214.) The same object is often effected by the claimants by an original suit for restitution, on a petition, setting forth all the facts, and praying for a decree of restitution either in rem or in value  with damages. ( Del Col v. Arnold, 3 Dall. 333. Maley v. Shattuck, 3 Cranch, 458. Jennings v. Carson, 4 Cranch, 2. The Anna Maria, ante, p. 327. The Eleanor, ante, p. 347.) Whether the proceeding be in the one form or the other, the rights of all parties remain the same. The burthen of the neutrality of the property rests on the claimants, and when that is shown, the existence of probable cause of capture is to be established by the other side; and each party has a right to the answer of the other, upon all proper interrogatories supported by oath. ( Maley v. Shattuck, 3 Cranch, 458.) \n As soon as the captors have brought the property in for adjudication, and the preparatory examinations are taken the captors, and if they neglect or refuse, the claimants, apply to the proper court for adjudication. In either case the property is immediately taken into the custody of the court; for in all proceedings in rem, the court has a right to the custody of the thing in controversy; and as soon as libelled, it is always deemed in the custody of the law. ( Jennings v. Carson, 4 Cranch, 2. Home v. Camden, 2 H. Bl. 533.) In the United States, a warrant immediately goes to the marshal  to take possession of the property; and he is bound to keep it salva et arcta custodia; and if any loss happens by his negligence, he is responsible for it to the court. In England, though the property is now usually put into the hands of the captors, yet it still remains, in contemplation of law, in the custody of the public. Formerly it actually did remain in its custody, as is still the case in other foreign countries. It is merely for the convenience of the captors that the English admiralty permits them to take possession of the property. But it must be remembered, that it is so held by them as agents of the court, and not in right of property; and therefore, their possession may be devested by the act of the court, either ex officio, or on the application of the parties interested, showing good cause for taking it out of their hands. (Per Sir W Scott, arguendo, in Smart v. Wolff, 3 Term Rep. 323. 329. The Herkimer, Stewart, 128. S.C., 2 Hall's Am. Law Journ. 133.) And the property still remains in the custody of the court, notwithstanding an unlivery and deposit in public warehouses. (The Maria, 4 Rob. 348.) In fact, in England, where the property is so unlivered, if it  has been captured by a public or private commissioned vessel, it is, de facto, under the joint locks of the government and the captors, although in the legal possession of the marshal under the tenor of his writ for unlivery; and if captured by a non-commissioned vessel, it is a droit, where the king, in his office of admiralty being the captor, it is under his locks alone. (The Rendsberg, 6 Rob. 142. 174.) In the United States, the marshal holds the custody at all times for the court; and the latter is the guardian of the public rights and revenue, as well as of the rights of the captors  and claimants in all cases of prize. It is, indeed, usual and proper for the collector of the customs to keep an officer on board for the protection of the revenue, until the duties are duly secured, which the captors may secure, if they please; but since it cannot be ascertained until a decree of condemnation whether the property be good prize or not, many cases may occur in which it would be highly inconvenient for them to adopt this course. If the property be restored specifically, and exported from the country by the claimants, it is held not liable to duties; and if sold under an  interlocutory order of sale it is the duty of the court to reserve out of the proceeds the amount of duties which then attach upon it, and direct them to be paid over to the collector. ( The Concord, 9 Cranch, 387. The Nereide, ante, vol. I. p. 171.) It is true that the prize act of last war, (act of the 26th June, 1812, ch. 107., sec. 14.,) seems to contemplate that the duties may be paid or secured in prize cases, in the same manner as goods ordinarily imported. But this clause is in terms applied only to goods of British growth, produce, or manufacture, or imported from British ports; and is, at all events, inapplicable to cases where it cannot be ascertained whether the goods are imported rr not, until after a judicial decision. And the subsequent act of the 27th January, 1813, ch. 155., manifestly contemplates, that the payment of the duties is, in cases of condemnation, to be made by the marshal, out of the proceeds of prize sales. And it has been repeatedly held in the circuit court for the first circuit, that no forfeiture accrued for not securing the duties upon prize goods before condemnation; and that the court might, at any time, direct an unlivery and sale; and upon  such sale, would deduct the amount of duties, and direct them to be paid to the collector. \nIt has already been stated, that when the marshal has possession of the property he is bound for safe and fair custody; and if any loss be sustained, it is at least his duty to be prepared to show that it was not lost by any default of his. (The Hoop, 4 Rob. 145.) If, therefore, property be pillaged while under his care, the court will hold him responsible for its value, if it arose from his negligence. If, indeed, upon an application to enforce their responsibility, he by his answer deny any negligence  and loose custody, the court may, perhaps, think it no more than a legal and proper confidence in its own officer to throw the burden of proof of culpable negligence or fraud on the other party. (The Rendsberg, 6 Rob. 142. 157.) And where the property is lost while actually under the locks of the government, the marshal will not be liable, although he may still be considered as constructively having the legal custody. (Ib.) \nIn prize causes it is not usual to file any special allegation of the particular circumstances on which the captors found their title to condemnation. The  libel is, and always ought to be, the mere general allegation of prize, such as is used in undoubted cases of hostile property. The act of bringing the vessel in, and proceeding against her, allege her generally to be a subject of prize rights, and the captors are not called upon to state, at the commencement of the suit, the particular grounds on which they contend she is so. They have a right to institute the inquiry, and take the chance of the benefit of any fact that may be produced in the course of that inquiry. ( The Adeline, 9 Cranch, 244. The Fortuna, 1 Dodson, 81.) This is a great advantage on the side of the captors, but is controlled by their liability to costs and damages, if the inquiry produce nothing; and is fully balanced by the advantage given to the claimant in this species of proceeding, that no evidence shall be admitted against him but such as proceeds from himself, from his own documents, and from his own witnesses, the captors not being permitted, except in cases marked by peculiar circumstances, to furnish any evidence whatever. (The Fortuna, 1 Dodson, 81.) Considerations of this nature render it very important for proctors to adhere, with the greatest care,  to the established form; and it is a great irregularity, equally evincing want of skill and judgment, to deviate from it. \nUpon filing the libel the usual practice is immediately to issue a monition citing all persons who are interested to appear at a given day, and show cause why the property should not be condemned as prize; and this process, in the United States,  usually includes a warrant to take possession of the property. But where the prize has been first seized in port, a monition issues, in the first instance, to bring in the papers if they are in the possession of a subject or citizen. (The Conqueror, 2 Rob. 303) The usual monition is directed to the marshal, and in England is served by posting up a copy at the Royal Exchange, in the city of London. In former times fourteen days were allowed between the service of the monition and the day of hearing the cause; but in most of the later prize acts in England twenty days are allowed after the execution of the monition. (Robinson's Coll. Mar. 89 Note. Mariott's Formulary, 187.) In the United States the return day of the monition depends upon the discretion of the district judge; but it is usually twenty days at  least after the issuing of the process; and it is served usually by posting up a copy on the mast of the prize vessel, and at such other public places as the judge may direct; and also by publication in the newspapers printed in or near the principal place or port of the district into which the prize is brought. This proceeding by monition and service by public notice is borrowed from the Roman law, by which, when it became impracticable to serve the party with a personal citation, recourse was had to this method, which is called a citation per edictum. (Dig. Lib. 5. tit. 1 sec. 68. Robinson's Coll. Mar. 88. note.) \nAt the return day of the process, if no claim be at that time or previously interposed, and upon proclamation made no person appear to claim, the default is entered on the record; and the court will then proceed to examine the evidence, and if proof of enemy's property clearly appear, it will immediately decree condemnation; if the case appear doubtful it will postpone a decision. It is not now usual to condemn goods for want of a claim till a year and a day has elapsed after the service of the process, except in cases where there is a strong presumption and reasonable  evidence to show that the property belongs to an enemy. (Rob. Coll. Mar. 89. The Harrison,  ante, vol. I. p. 298.The Staat Embden, 1 Rob. 26. 29.) And if no claim be interposed within that period, the property is condemned of course, and the question of former ownership is precluded for ever, the owner being deemed in law to have abandoned it. (The Staat Embden, 1 Rob. 26. 29. The Henrick and Maria, 4 Rob. 43, 44. The Harrison, ante, vol. 1. p. 298. Rob. Coll. Mar 89., note. The Avery, 2 Gallis.) \nIf at or before the return day of the process a claim is interposed, the cause is then to be heard in its proper order upon the ship's papers and the preparatory examinations. Accompanying every claim must be an affidavit which is called the test affidavit, and which regularly should state that the property at the time of shipment and also at the time of capture, did belong, and will, if restored, belong to the claimant; and if there be any special circumstances in the case these should be added. ( The Adeline, 9 Cranch, 244. Vide The Sally, 3 Rob. 300. note.) In respect to the manner of interposing claims, and the rules by which their admission or rejection are governed,  it does not seem necessary to do much more than refer the reader to what is said on that subject in the appendix to the preceding volume, (Ante, p 500.) and the case of the Adeline, (9 Cranch, 244. 286.) I may, however, be added, that a party to be entitled to assert a claim in the prize court must be the general owner of the property; for a person who has a mere lien on the property for a debt due, whether liquidated or unliquidated, is not so entitled. (The Eenroom, 2 Rob. [Illegible Word] 5. The Tobago, 5 Rob 218. The Frances, Thompson's claim, 8 Cranch, 335. Id. Irvin's claim, 8 Cranch, 418. The Marianna, 6 Rob. 24.) And the same rule has been applied to a mortgage where the mortgagor is left in possession. (Bolch v. Darrel, Bee, 74.) The rule that a claimant is not admitted to claim, who is engaged in a traffick prohibited by the municipal laws of the country, is applied only to citizens or subjects, and not to foreign neutral proprietors. (The Recovery, 6 Rob. 341.) But to citizens or subjects the rule equally applies, whether the transaction is between original contractors or under a sub-contract. (The Cornelius and Maria, 5 Rob. 28.) And an inactive or sleeping partner  cannot receive restitution in a transaction in which he  could not be lawfully engaged as a sole trader.(The Franklin, 6 Rob. 127. 131.) If enemy's property be fraudulently blended in the same claim with neutral property, the latter is liable to share the fate of the former. (The St. Nicholas, ante, Vol. I. p. 481.) \nAn appearance by a proctor for the claimants, duly entered, cures all defects of process, such as the want of a monition or of due notice. ( Penhallow v. Doane, 3 Dall. 54.) And even assuming that one partner has no authority to appoint a proctor for all the partners, yet a general appearance for all by a proctor is good and legally binding. ( Hills v. Ross, 3 Dall. 231.) In cases of captures by government ships the proceedings in England are exclusively carried on by the officers of the government, and no other persons can interfere to support or pursue a suit, where they do not consent. (The Elsebe, 5 Rob. 173.) Whether the same exclusive authority exists in the United States has never been made the subject of question in the supreme court. 11 \n  It has been already stated in the former note, that the cause is to be heard at the first hearing upon the ship's papers and the preparatory examinations, and that the onus probandi rests on the claimant. (And see the Rosalie, 2 Rob. 343. The Countess of Lauderdale, 4 Rob. 283.) If upon such hearing the cause appear doubtful, and the parties have not forfeited their title to farther proof, it is then in the discretion of the court to allow farther proof, either to the claimants alone, or to the captors as well as the claimants. The manner in which the preparatory examinations are taken, and the cases in which farther proof is allowed or denied, have been briefly stated in the former note. and the standing interrogatories on which these examinations are taken, will be found in a subsequent note to this volume.(Infra, note 3.) It may not, however, be useless to glance at a few particulars which are either omitted, or not distinctly stated in the former note. Although the ship's papers found on board are proper evidence, yet they are so only when properly verified; for papers by themselves prove nothing, and are a mere dead letter if they are not supported by the oaths  of persons in a situation to give them validity. (The Juno, 2 Rob. 120. 122.) 12 And even upon the original hearing, papers found on board another captured ship may be invoked into the cause, and used by the captors. But if the papers are taken from a vessel not so captured and carried in, they can only be used upon an order for farther proof. (The Romeo, 6 Rob. 351. The Maria, 1 Rob. 340.) But the authenticity of papers thus invoked must be verified by affidavit, and otherwise, to the satisfaction of the court. (The Romeo, Ib.) So, also, the depositions of the claimant in a former case, in which he was  owner and master, were permitted to be invoked by the captors to prove his domicil. (The Vriendschap, 4 Rob. 166.) But where nothing appears in the original evidence, which lays a foundation for prosecuting the inquiry farther, it must be under very particular circumstances indeed, that the court will be induced to admit extraneous evidence. (The Sarah, 3 Rob. 330.) If the instructions found on board of a prize are transmitted from the department of state for foreign affairs to the prize court, they are considered as sufficiently authenticated as having been found  on board, without farther proof to that effect. (The Maria, 1 Rob. 340.) A person skilled in nautical affairs may be called to examine the log-book of the captured ship, and to give his opinion as to the verity of the statement in respect to destination, &c. from the courses, winds, &c. (The Edward, 4 Rob. 68.) \nThe examinations of the prize crew are to be taken in the manner which has been already alluded to; but if the prize be carried into a foreign port where there is no commission, their affidavits taken in such port will be admitted in evidence. (The Peacock, 4 Rob. 185. The Arabella and Madeira, 2 Gallis.) \nIn the prize court, as in every other judicial tribunal, there are certain presumptions which legally affect the parties, and are considered as of general application. Possession is presumptive evidence of property. ( Miller v. The Resolution, 2 Dall.  19.) If there be a total defect of evidence to establish the proprietary interest, it is presumed to belong to an enemy. (Sir W. Scott and Sir. J. Nicholl's letter to Mr. Jay. Ubi supra. The Magnus, 1 Rob. 31.) So, goods found in an enemy's ship are presumed to belong to the enemy, unless a distinct neutral character, and documentary proof, accompany them. Res in hostium navibus presumuntur esse hostium donec contrarium probetur. (Loccenius, lib. 2. ch. 4. n. 1. Grotius de Jur. Bel. et Pac. lib. 3. ch. 6. sec. 6. Bynk. Q. J. Pub. lib. 1. ch. 13.) And in cases where the property falls within the general character of contraband, if the claimant would avail himself of the ravourable distinction that it is the produce of his own country the onus of establishing that fact is on him. (The Twee Juffrowen,  4 Rob. 242.) Prima facie a merchant is taken to be acting for himself, and upon his own account; but if a person is not a merchant that may give a qualified character to his acts.(The Jonge Pieter, 4 Rob. 79.) If in the ship's papers property in a voyage from an enemy's port be described \"for neutral account,\" this is such a general mode as points to no designation whatever;  and under such a description no person can say that the cargo belongs to him, or can entitle himself to the possession of it as his property. In such a case farther proof is indispensable. (The Jonge Pieter, 4 Rob. 79.) Where a ship has been captured and carried into an enemy's port and is afterwards found in possession of a neutral, the presumption is, that there has been a regular condemnation, and the proof of the contrary rests on the party claiming the property against the neutral possessor. (The Countess of Lauderdale, 4 Rob. 283.) Where a treaty expressly provides for the removal of persons who happen to be settled in a ceded port, the burthen of proof rests on the other party to show that they did not intend to remove, for the presumption is already to be taken in their favour. (The Diana, 5 Rob. 60.) Where the master of a captured ship is not fairly discredited, his testimony as to destination is generally conclusive on that point. (The Carolina, 3 Rob. 75. The Convenientia, 4 Rob. 200.) So his testimony of the ill-treatment of his crew, if uncontradicted. (The Die Fire Damer, 5 Rob. 357.) Where the voyage is from the port of one enemy to the port of another enemy, and  farther proof is required, the double correspondence of the shipper and consignee should be produced; for there is a double interest to be rebutted: but if the voyage be to a neutral port, the correspondence with the shipper is all that is usually required. (The Vreede, 5 Rob. 231.) \nIn respect to the persons who may be witnesses in prize causes, it is very clear that an alien enemy, as such, is not in general disabled to be a witness. (The Falcon, 6 Rob. 194.;) and, indeed, in ordinary cases the prize crew, whether national, neutral, or hostile, are the necessary witnesses in the cause.  (The Henrick and Maria, 4 Rob. 43.) And upon farther proof ordered, the attestations of the claimant and his clerks, and the correspondence between him and his agents are admissible evidence, and proper proofs of property. (The Adelaide, 3 Rob. 281.) And upon farther proof, the affidavits of the captors, even without a release, are good evidence of facts within their own knowledge. (The Maria, 1 Rob. 340. The Resolution, 6 Rob. 13. The Sally, 1 Gallis. 401.) But except under peculiar circumstances, the affidavits of captors are not received in our prize courts. (The Henrick and Maria,  4 Rob. 57. note (a.) The Grotius, 9 Cranch, 368. The Sally, 1 Gallis. 401. The Haabet, 6 Rob. 54. The Glierktigheit, 6 Rob. 58. note (a.) The Charlotte Caroline, 1 Dodson, 192. 199.) Upon allegations of joint capture the affidavits of any of the joint captors are not received, unless they are discharged of all interest by a release, for in such questions the general rules of law as to competency prevail. And where a witness declares that he expects to share from the bounty of the joint captors, he is competent; but it is otherwise if he says that he thinks himself entitled in law. (The Drie Gebroeders, 5 Rob. 339. 343. note (a.) The Anna Catharina, 6 Rob. 269.) And the log-book of asserted joint captors is inadmissible evidence, since it goes to establish their interest. (Le Niemen, 1 Dodson, 9.) Where farther proof is ordered, affidavits taken in foreign countries, before notaries public, whose attestations are properly verified, are in general proper evidence. But in the supreme court of the United States, it is by a rule of the court required that all such evidence should be taken under a commission from the court. (The London Packet, ante, p. 371.) And this practice is certainly  more conformable to the general purposes of justice, and less liable to abuse than any other. It seems, however, to be a general rule of the prize court not to issue any commission to be executed in the enemy's country. (The Magnus, 1 Rob. 31. The Diana, 2 Gallis.) \nThe questions which are most ordinarily discussed in prize  courts at the hearing of the cause, respect the national character of the property; and this depends sometimes upon the habits and trade of the ship, upon the nature of the voyage or of the cargo, or upon the legal or illegal conduct of the parties themselves; but ordinarily it depends upon the national domicil of the asserted proprietor, or upon the nature of the title which he asserts over the property. In all these cases where the property is condemned, it is by fiction, or rather by intendment of law, deemed the property of enemics that is of persons who are so to be considered in the particular transaction, and is condemned co nomine. (The Elsebe, 5 Rob. 173. The Nelly, 1 Rob. 219., note to The Hoop. The Alexander, 8 Cranch, 169. The Julia, 8 Cranch, 181. The Thomas Gibbons, 8 Cranch, 421. The St. Lawrence, 1 Gallis. 532. The Joseph, 1 Gallis.  545.) It is, besides, the purpose of this note to discuss these topics at large with all the distinctions which belong to them. Indeed, such a discussion would of itself require a very considerable treatise. It may, however, be of some use to give a rapid sketch of the leading principles which regulate the decisions of prize courts on some of these subjects. \nIn respect to the question who are to be considered enemies or not, the general principle is, that every person is to be considered as belonging to that country where he has his domicil, whatever may be his native or adopted country. (The Vigilantia, 1 Rob. 1. The Endraught, 1 Rob. 19. The Sarah Christina, 1 Rob. 237. The Indian Chief, 3 Rob. 23. The President, 5 Rob. 277. The Neptunus, 6 Rob. 403. The Venus, 9 Cranch, 253. The Frances, Gillespie's claim, 1 Gallis. 614. The Mary and Susan, Richardson's claim, ante, Vol. 1. p. 46. S.C. p. 55., note (f.) M'Connel v. Hector, 3 Bos. & Pul. 113. Bynk. Q. J. Pub. ch. 3. Duponceau's edit. p. 19. 25.) 13 And the masters and crews of ships are deemed to possess  the national character of the ships to which they belong during the time of their employment. (The Endraught,  1 Rob. 21. The Bernon, 1 Rob. 101. Vide the Embden, 1 Rob. 17. The Frederick, 5 Rob. 8. The Ann, 1 Dodson, 221.) And even if a person goes into a belligerant country originally for temporary purposes, he will not preserve his neutral character, if he remain there several years, paying taxes, &c.(The Harmony, 2 Rob. 322. The Embden, 1 Rob. 17.) And a neutral consul, resident and trading in a belligerant country, is, as to his mercantile character, deemed a belligerant of that country. (The Indian Chief, 3 Rob. 22. The Josephine, 4 Rob. 25.) And the same rule applies to the subject of one belligerant country, resident in the country of its enemy, and carrying on trade there. (The Citto, 3 Rob. 38. M'Connel v. Hector, 3 Bos. & Pull. 113.) But a character acquired by mere domicil ceases upon removal from the country. (The Indian Chief, 3 Rob. 12.) The native character easily reverts, and it requires fewer circumstances to constitute domicil in the case of a native, than to impress the national character on one who is originally of another country. (La Virginie, 5 Rob. 98.) And in his favour, a party is deemed to have changed his domicil and his native character reverts, as soon as  he puts himself in itinere to return to his native country animo revertendi. (The Indian Chief, 3 Rob. 12. The St. Lawrence, 1 Gallis. 467.) \nIn general, a neutral merchant trading in the ordinary man ner with a belligerant country, does not, by the mere accident of his having a stationed agent there, contract the character of the enemy. (The Anna Catharina, 4 Rob. 107. 121.) But it is otherwise if he be not engaged in trade upon the ordinary footing of a neutral merchant, but as a privileged trader of the enemy; for then it is in effect  a hostile trade. (The Anna Catharina, 4 Rob. 107. 121.) So if the agent carry on a trade from the hostile country, which is not clearly neutral. (Ib.) And if a person be a partner in a house of trade in the enemy's country,  he is, as to the concerns and trade of that house, deemed an enemy, and his share is liable to confication, as such, notwithstanding his own residence is in a neutral country; for the domicil of the house is considered in this respect as the domicil of the partners. (The Vigilantia, 1 Rob. 1. 14. 19. The Susa, 2 Rob. 255. The Indiana, 3 Rob. 44. The Portland, 3 Rob. 41. The Vriendschap, 4 Rob. 166. The Jonge Klassina, 5 Rob. 297. The Antonia Johanna, ante, Vol. I p. 159. The St. Joze Indiano, 2 Gallis.) But if he has a house of trade in a neutral country, he has not the benefit of the same principle; for if his own personal residence be in the hostile country, his share in the property of the neutral house, is liable to condemnation. (Ib. and the trances, 1 Gattis. 618., S.C., 8 Cranch, 348.) However, where a neutral is engaged, in peace. in a house of trade in the enemy's country, his property so engaged in the house is not, at the commencement  of war, confiscated; but if he continues in the house after knowledge of the war, it is liable, as above stated, to confiscation. (The Vigilantia, 1 Rob. 1. 14, 15. The Susa, 2 Rob. 251. 255.) It is a settled principle that traffick alone, independent of residence, will, in some cases, confer a hostile character on the individual. (Ib. The Susa, 2 Rob. 251. 255. The Vriendschap, 4 Rob. 166.) And if a neutral be engaged in the enemy's navigation, it not only affects the particular vessel in which he is employed, but all other vessels belonging to him, that have no distinct national character impressed upon them. (The Vriendschap, 4 Rob. 166.) \nShips are deemed to belong to the country under whose flag and pass they navigate, and this circumstance is conclusive upon their character. (The Vigilantia, 1 Rob. 1. 19. 26. The Vrow Anna Catharina, 5 Rob. 161. The Success, 1 Dodson, 131.) So, even if purchased by a neutral, if they are habitually engaged in the trade of the enemy's country. (The Vigilantia, 1 Rob. 1. 19. 26. The Planter's Wench, 5 Rob 22.); even though there be no sea-port in the territory of the neurtal. (Ib.) But in general, and unless under special circumstances,  the national character of ships depends on the residence of the owner. (Ib. The Magnus, 1 Rob. 31.) When, however, it is said that the flag and pass is conclusive on the character of the ship, the  meaning is this, that the party who takes the benefit of them is himself bound by them; he is not at liberty, when they happen to turn to his disadvantage, to turn round and deny the character which he has worn for his own benefit, and upon the credit of his own oath or solemn declarations. But they do not bind other parties as against him: other parties are at liberty to show that these are spurious credentials, assumed for the purpose of disguising the real character of the vessel; and it is no inconsiderable part of the ordinary occupation of a prize court, to pull off this mask, and exhibit the vessel so disguised in her true character of an enemy's vessel. (The Fortuna, 1 Dodson, 87. The Success, Id. 131.) Ships and cargoes engaged in the privileged and peculiar trade of a nation, under a special contract, and the sanction of the government, are considered as affected by the character of the nation, and if it be bostile, the trade is stamped with the same character. (The  Princessa, 2 Rob. 49. The Anna Catharina, 4 Rob. 197. The Rendsborg, 4 Rob, 121. The Vrow Anna Catharina, 5 Rob. 161. The Commercen, ante, Vol. I. p. 382. Vide 5 Rob. 5. note (a). And the produce of an estate situated in a hostile colony is so impressed with the character of the soil, that although the owner of the estate be resident in a neutral country, his interest in the produce is deemed enemy's property. (The Phoenix, 5 Rob. 20. The Vrow Anna Catharina, 5 Rob. 161. The Dree Gebroeders, 4 Rob. 232 Bentzon's claim, 9 Cranch, 191.) \nIn respect to the transfers of enemies ships during war, it is certain that purchases of them by neutrals is not, in general, illegal; but such purchases are liable to great suspicion, and if good proof be not given of their validity, by a bill of sale and payment of a reasonable consideration, it will materially impair the validity of the neutral claim. (The Bernon, 1 Rob. 102. The Sechs Gedchwistern, 4 Rob. 100.;) and if the purchase be made by an agent, his letters of procuration must be produced and proved. (The Argo, 1 Rob. 158.) 14 And if after such transfer the ship  be employed habitually in the enemy's trade, or under the management  of a hostile proprietor, the sale will be deemed merely colourable and collusive. (The Jemmy. 4 Rob. 31. The Omnibus, 6 Rob. 71.) But the right of purchase, by neutrals, extends only to merchant ships of enemies, (The Minerva, 6 Rob. 396. 399.;) for the purchase of ships of war belonging to enemies, is held to be invalid. (The Minerva, 6 Rob. 396) And a sale of a merchant ship, made by an enemy to a neutral, during war, must be an absolute, unconditional sale. (The Packet de Bilboa, 1 Rob. 133. The Noydt Gedecht, 1 Rob. 137. note (a).) Any thing tending to continue the interest of the enemy in the ship vitiates a contract of this description altogether. (The Sechs Gedchwistern, 4 Rob. 100.) \nIn respect to proprietary interests in cargoes, though,  in general, the rules of the common law apply, yet there are many peculiar principles of prize law to be considered. It is a general rule, that during hostilities, or imminent and impending danger of hostilities, the property of parties belligerant cannot change its national character during the voyage, or, as it is commonly expressed, in transilu. (The Dankebaar Africaan, 1 Rob. 107. The Herstelder, 1 Rob. 114.) This rule equally applies to ships and cargoes; and it is so inflexible, that it is not relaxed even in favour of owners, who become subjects by capitulation after the shipment and before the capture. (Ib.) But if the ship sails before hostilities, when there is a decided state of amity between the two countries, and before the capture, the owner again becomes a friend, and at the time of the capture, and also at the time of adjudication, he is in a capacity to claim; the prize courts will, then, give him the benefit of the principle, that the national character cannot be altered in transitu, and will restore to him. (Ib.) The same distinction is applied to purchases made by neutrals, of property in transitu; if purchased during a state of war existing, or imminent and  impending danger  of war, the contract is held invalid, and the property is deemed to continue as it was at the time of suipment, until the actual delivery. It is otherwise, however, if the contract be made during a state of peace, and without contemplation of war; for, under such circumstances, the prize courts will recognise the contract, and enforce the title acquired under it. (The Vrow Margaretha, 1 Rob. 336. The Jan Frederick, 5 Rob. 128.) And property is still considered in transitu, if it be ultimately destined to the hostile country, notwitbstanding it has arrived at a neutral port, and the ship is there changed. (The Carl Walter, 4 Rob. 207.) The reason why courts of admiralty have established this rule as to transfers in transitu during a state of war, or expected war, is asserted to be, that if such a rule did not exist, all goods shipped in the enemy's country would be protected by transfers, which it would be impossible to detect. (The Vrow Margaretha, 1 Rob. 336.) \nThe same public policy has established the rule of the prize courts, that property going, during war, to be delivered in the enemy's country, and under a contract to become the property of the  enemy immediately on arrival, if taken in transitu, is to be considered as enemy's property. (The Sally, 3 Rob. 300. note (a).) And all contracts of purchase effected on the part of the belligerant, where the payment is executory and contingent on delivery at an ulterior port, at the risk of the neutral vendor or shipper, are considered as contracts in fraud of the prize law, and the goods, if captured in transitu, are condemned as the absolute property of the enemy. (The Atlas, 3 Rob. 299.The Anna Catharina, 4 Rob. 107. 113. note) But when the contract is made in time of peace, and without any contemplation of war, no such rule exists (Ib.) But the rule is applied where such a contract is originally made between allies in the war, if a party to it becomes neutral after the contract, and before the execution of it, and the shipment is made afterwards. (The Anna Catharina, 4 Rob. 107. 112.) A contract by a neutral with a privileged company of the enemy, with a view to the transportation of the whole produce of a colony, or of the company itself, if made during war, or in contemplation of war, is pronounced illegal, and the property is liable to  condemnation as hostile  property. (The Rensberg, 4 Rob. 121. The Jan Frederick, 5 Rob. 128.) But if a neutral, during peace, and without contemplation of war, purchase goods in a colony from a regular privileged company there, and it is agreed that they shall be transported and sold in the mother country by the company's agents for the benefit of the neutral, the contract is good, and the property remains neutral during its transit, notwithstanding an intervening war of the mother country. (The Vrow Anna Catharina, 5 Rob. 161.) \nIn ordinary shipments of goods, unaffected by the foregoing principles, the question of proprietary interest often turns on minute circumstances and distinctions, the general principle being that if they are going for account of the shipper, or subject to his order or control, the property is not devested in transitu. If there be any condition annexed to the delivery of the goods to the consignee, the proprietary interest remains in the shipper, notwithstanding the goods are sent in pursuance of the orders of the consignee. Thus, if a merchant in H. send goods to A. in another country, by order of B. and on account of B., but with directions not to deliver them unless satisfaction  could be given for the payment, the property is not devested from the sbipper, but remains his in transitu. (Cited in the Aurora, 4 Rob. 319.) The same principle applies where goods are shipped to the orders of the shippers, but to be delivered by their agents to the consignee, upon the agents being satisfied for the payment. (The Aurora, 4 Rob. 218. The Merrimack, Kimmel & Albert's claim, 8 Cranch, 317. See the Marianna, 6 Rob. 24.) So, even if the goods are stated in the invoice to belong to the claimants; yet if these papers are enclosed to the consignee as agents to the shippers, and are to be delivered to the claimants only upon conditions in the discretion of the agent, the property remains in the shippers. ( The Merrimack, 8 Cranch, 317.) But if the goods are consigned to an agent of the shippers, but the invoice, &c., show them to be for the account of the claimants, and the invoice, &c., are, by the shippers, sent directly to the claimants, the possession of these documents gives them a title, and establishes the intention of the shipper to vest the property in the claimants, at the time of the shipment. (The Merrimack, Messrs.  Wilkins' claim, 8 Cranch, 317.)  So if the goods are shipped to the consignee unconditionally for the use of the claimants. (Id. Messrs. M'Kean & Woodland's claim, 8 Cranch, 317.) But if the goods are consigned to the agent of the shippers, and there are discretionary orders given, but no direction for an absolute delivery to the claimants, the property remains in the shippers. (The St. Joze Indiano, Lizaur's claim, 2 Gallis. S.C. ante, Vol. 1. p. 208.) In all these cases, the goods are supposed to have been purchased in pursuance of the orders of the claimants; for if they are sent by the shippers without orders, or contrary to, or different from orders, either in quantity or kind, the proprietary interest remains in the shipper during the transit, notwithstanding they are sent by direct consignment to the consignee. ( The Venus, 8 Cranch, 253. The Frances, Dunbam & Randolph's claim, 1 Gallis. 445. S.C., 8 Cranch, 354., 9 Cranch, 183. The Frances, French's claim, 8 Cranch, 359.) \nIt is certainly competent for an agent abroad, who purchases goods in pursuance of orders, to vest the proprietary interest in his principal, immediately on the purchase. This is the case when he purchases exclusively on the credit of  the principal, or makes anabsolute appropriation and designation of the property for his principal. But where he sells his own goods, or purchases goods on his own credit, (and thereby in reality becomes the owner,) no property in such goods vests in his correspondent, until he has done some notorious act to devest himself of his title, or has parted with the possession by an actual and unconditional delivery for the use of such correspondent. (The St. Joze Indiano, 2 Gallis. S.C. ante, Vol. I, p. 208.) But such delivery or appropriation to the use of his correspondent, need not be by a direct act, but it may constructively arise from the circumstances of the case, even where the shipper has made an intermediate assignment of the goods. (The Mary and Susan, ante, Vol. I., p. 25.) \nIn all these cases the material question is, whether the shipper retains or possesses any control over the property, (independent of the mere right of stoppage in transitu in cases of insolvency,) or has parted with the possession, and all authority  over it. For if an enemy's shipper consign goods or money to his correspondent at H., for the purpose of answering drafts of his correspondent  in A., without any letter of advice or document making it the absolute property of such correspondent, or putting it out of his own control, it still remains the property of the shipper, for he may at any time countermand the order, or give the goods, or money, a new direction. In substance it is the same transaction as if a person send a sum of money to his private banker, directing him to hold it subject to the order of A.; in which case, if on the next day, and before any such order had been given, or even the fact of lodgment known to the other party, he had changed his purpose, and directed a conversion of the money to another object, it is clear that the bankers could not resist with effect. (The Josephine, 4 Rob. 25.) \nIn respect to questions of illegal trade, little is necessary to be said in addition to the observations and cases cited in the former volume. It is a fundamental principle of prize law, that all trade with the enemy is prohibited to all persons, whether natives, naturalized citizens, or foreigners domiciled in the country during the time of their residence, under the penalty of confiscation. (The Vigilantia, 1 Rob. 1. 14. 26. The Hoop, 1 Rob. 196. Potts  v. Bell, 8 T.R. 548. The Rapid, 8 Cranch, 155. S.C. 1 Gallis. 295. The Alexander, 8 Cranch, 169. S.C. 1 Gallis. 532. The Joseph, 8 Cranch, 451. S.C. 1 Gallis. 545.) 15  The same penalty is applied to subjects of allies in the war, trading with the common enemy. (The Nayade, 4 Rob. 251. The Neptunus, 6 Rob. 403. Bynk Q.J. Pub. Ch. 10. Du Ponceau's edit. p. 81.) But a citizen of a belligerant country, domiciled in a neutral country, may lawfully trade with the enemy of his native country, (The Danaos, 4 Rob. 255. note,) with the exception of the case of trade in articles contraband of war. (The Neptunus, 6 Rob. 403. The Ann, 1 Dodson, 221.) And if the party intends to trade with the enemy, but during the voyage the port becomes neutral, the penalty is saved, for there must be the act as well as the intention. (The Abby, 5 Rob. 251.) And even assuming that after the knowledge of a war, a citizen domiciled in the enemy's country may lawfully withdraw his property without a license from his government, (which has been denied, the Mary, 1 Gallis. 620.,) at all events, it must be done in a reasonable time, and ten months after the war is too late, and the party will then be  deemed engaged in a trade with the enemy. ( The St. Lawrence, 1 Gallis. 467. S.C. 9 Cranch, 120.) And if a vessel take on board a cargo from an enemy's ship, under the pretence that it is ransomed, it is an illegal traffick. Even admitting the ransoming of captured property to be legal, it cannot be admitted to be made at any distance of time, and by any new voyages undertaken for this special purpose. ( The Lord Wellington, 2 Gallis. 103.) And sailing under the enemy's license is deemed, per se, an efficient cause of condemnation.( The Julia, 1 Gallis 594. S.C. 8 Cranch, 181. The Aurora, 8 Cranch, 203. The Hiram, 8 Cranch, 444. S.C. ante, Vol. I. p. 440. The Ariadne, ante, Vol. II. p. 143.) \n These observations on the subject of proprietary interests, may be concluded with the remark that to entitle the claimant to sustain his claim in the prize court, the property must be proved to be neutral at all periods from the time of shipment, without intermission, to the arrival and subsequent sale in the port of the enemy. (The Atlas, 3 Rob. 299. The Sally, 4 Rob. note (a).) And if it be hostile at the time of shipment, it is, (as has been already stated,) a universal rule to condemn it, although  the owner has become a friend or subject. (The Boedes Lust, 5 Rob. 233. \nIN this connexion we might treat of the principles of international law respecting blockade, contraband of war, (vide ante, Vol. I. p. 38, 9. note (i), p. 394, note (m),) engagements in the coasting and colonial trade of an enemy, (vide ante, Vol. I. p. 507. Appendix, note 3.) the right of search, the effect of resistance or rescue of neutral ships, and the circumstances of unneutral conduct, which are visited with a forfeiture of the ship or cargo, or both. These topics would lead us into a very enlarged inquiry, incompatible with the object of this summary sketch; but they deserve the attention of  all students of the law of prize, and it is to be hoped that some eminent jurist will, hereafter, examine them with a diligence and learning proportioned to their importance. It may, however, be useful here to consider how far the illegal acts of the master bind the interests of the owner of the ship or cargo. \nIt is a general principle that the act of the master at all events binds the owner of the ship, as much as if the act were committed by himself. (The Vrow Judith, 1 Rob. 150.) If, therefore, the master deviate into a blockaded port, the owner is bound by the act, and is not permitted to aver his ignorance of the act, or that the master acted against his orders. (The Adonis, 5 Rob. 256.) And the same principle is applied to the case of carrying goods contraband of war. (The Imina, 3 Rob 167.) But Grotius, (De J.B. et P. lib. 3. ch. 6. sec. 6.) Loccenius, De Jur. Mar. lib 2. ch. 4., no. 12.) Pothier, (De Propriete, no. 103.) and Bynkershoek, (Q. J. Pub. lib. 1. ch. 12. p. 97., Du Ponceau's ed) all contend for a favourable distinction where the owner is ignorant of the fact of unlawful goods being on board. They are, however, contradicted by Valin, (Sur. l'Ord. tom. 2. p.  253.) and Emerigon, (Des Assurances, tom. 1. p. 449.,) whose doctrine is followed in the practice of prize courts. The law, indeed, is established that the principal is answerable for the acts of his agent, (and the master  is the accredited agent of the ship owner,) not only civilly but penally to the amount of the property entrusted to his care. (The Mars, 6 Rob. 79. 87.) It would be impossible for a court of prize to affect the proprietor in any other way: and, whatever the hardship may be, it is very much softened by recollecting that if he has sustained any injury by the fraudulent and unauthorized acts of his agent he will be entitled to his remedy against him. (The Mars, 6 Rob. 79. 87.) But the act of the master does not, in general, bind the owner of the cargo, unless he be owner of the ship, or conusant of the intended violation of law, or the master be his agent. (The Vrow Judith, 1 Rob. 150. The Imina, 3 Rob. 169. The Rosalie and Betty, 2 Rob. 343. 351. The Alexander, 4 Rob. 93. The Elsebe, 5 Rob. 173.) In cases of blockade the deviation into the blockaded port is presumed to be in the service of the cargo, and, therefore, the owner is bound by it, unless  where there was no notice of the blockade at the time the ship sailed. (The Alexander, 4 Rob. 93. The Shepherdess, 5 Rob. 256.) And if the master at the time of sailing put his ship under convoy, whose instructions he is presumed to know, the act is illegal, and binds both the ship and cargo. (The Elsebe, 5 Rob. 173.) It is not considered like the case of an unforseen emergency happening to a ship at sea, where the fact itself proves the owners to be ignorant and innocent, and where the court has held that being proved innocent by the very circumstances of the case, the owners of the cargo should not be bound by the mere principle of law, which imposes on the employer a responsibility for the acts of his agent. On the contrary, it is a matter done antecedently to the voyage, and must, therefore, be presumed to be done on communication with the owners, and with their consent; the effect of this presumption is such that it cannot be permitted to be averred against, inasmuch as all the evidence must come from the suspected parties themselves, without a possibility of meeting it, however prepared. The court, therefore, applies the strict principle of law, and holds as it does in blockade  cases of that description, that the master must be taken to be the anthorized agent of the cargo, and that if he has exceeded his authority it is barratry, for which he is  personally answerable, and for which the owner must look to him for indemnification. (The Elsebe, 5 Rob. 173. 175.) Whether a like principle ought not to be applied to the owner of the cargo in cases where the ship originally sails on the voyage under an enemy's license has not been decided. The point was made in the supreme court in a recent case; but knowledge being brought home to the actual agent of the owners of the cargo, it became unnecessary to decide the more general principle. (The Hiram, ante, Vol. I., p. 440.) There are many other cases in which the act of the master will bind the owner of the cargo as well as the ship; such are resistance of the right of search, suppressing or fraudulently destroying the ship's papers, rescue by the neutral crew after capture, &c. (The Elsebe, 5 Rob. 173. The Dispatch, 3 Rob. 279. The Nereide, 9 Cranch, 388. 451.) But though the act of a neutral master in resisting search binds both ship and cargo, yet it has been solemnly settled by the supreme court  that the resistance of a belligerant master does not bind a neutral shipment, unless the proprietor has co-operated in the resistence. ( The Nereide, 9 Cranch, 388.) In a very recent case, however, Sir W. Scott has asserted the contrary doctrine. (The Fanny, 1 Dodson, 443.) But the act of the agent or consignee of the cargo, whether he be the master or not, is conclusive upon the owner of the cargo. (The Vrow Judith, 1 Rob. 150.) And the act of a general agent of the cargo in covering the enemy's property in the same shipment with his principal's property affects the whole with condemnation, although the principal had no knowledge of the illegal act. (The St. Nicholas, ante, Vol. I. p. 417. The Phoenix Ins. Co. v. Pratt, 2 Binney, 308.) And the same principle is applied in the case of simulated papers; for the carrying of simulated papers is an efficient cause of condemnation. (Oswell v. Vigne, 15 East, 70.) But in peculiar circumstances the act of an agent of the cargo will be liberally construed in favour of his principal. As if the agent be a belligerant, and has received orders to purchase goods before the war or before a blockade, his acts in making the shipment during a  blockade are not binding on his principal, unless he had had an opportunity to countermand the orders, and neglected it; for the agent in such cases may have a personal interest in exporting  the goods. (The Neptunus, 1 Rob. 173. Cases cited in the Hoop, 1 Rob. 196. The Dankbaarheit, 1 Dodson, 183.) But the act of the master will not bind even the owner of the ship unless it be in cases within the scope of his ordinary authority. If, therefore, the master of a non-commissioned merchant ship make a capture, the owner is not responsible in damages, if it turn out to be illegal. (Bynk. Q.J. Pub. lib. 1. ch. 19. Du Ponceau's ed. p. 147. 153.) \nIt frequently turns out, on examination of the claims and evidence in the prize court, that the case is a mere case of recapture; and questions arise, whether the original belligerant owner is entitled to restitution or not, and if so entitled, what is the compensation to be allowed by way of salvage? Bynkershoek asserts, that by the general maritime law, if, after capture, the ship and cargo be carried, infra proesidia, of the enemy, or of his ally, or of a neutral, the title of the original belligerant proprietor is completely gone,  and is not revived by a recapture. (Q.J, Pub. L. 1. ch. 5, Du Ponceau's ed. p. 36.) And in this he stands supported by learned authorities. (The Ceylon, 1 Dodson, 105. L'Actif, 1 Dodson, 185. But see Martens on Recaptures, ch. 3. p. 107.) In most of the states of Europe municipal regulations have been made, which settle the rights of their own subjects. (Bynk. ubi supra. Valin Des Prises, ch. 6. p. 84. Azuni, part 2. ch. 4. Martens on Recaptures, ch. 3. sec. 2. p. 146. The Adeline, 9 Cranch, 244. 288.) 16 And in  England the right of postliminy is by statute as between subjects preserved forever, except where the vessel, after capture, has been fitted out by the enemy for war; so that the original owner may, in all other cases, claim restitution upon the payment of a stipulated salvage. (Horne's Compend. ch. 4. p. 34. Marshall on Ins. b. 1. ch. 12. s. 8. The Sedulous, 1 Dodson, 253.) In cases, however, not governed by municipal regulations, although all nations agree that to change the property by capture a firm and secure possession is necessary, yet the practice of nations is so various that it seems difficult to collect a general rule, as to what constitutes  such firm and secure possession, hich might properly be asserted to be the law of nations. (The Santa Cruz, 1 Rob. 49. L'Actif, 1 Dodson, 185. The Ceylon, 1 Dodson, 105.) The rule of bringing infra praesidia, or, in proper cases, the rule of pernoctation, or twenty-four hours, possession, seems generally recognized by the most eminent jurists on the continent of Europe. (The Ceylon, 1 Dodson, 105. L'Actif, 1 Dodson, 185. See the Santa Cruz, 1 Rob. 50); 17 and it appears to have been anciently the doctrine of the British law. (Ib.) According, however, to the present law in Great Britain, property captured is not deemed to be changed so as to bar the owner in favour of a vendee or recaptor, till there has been a sentence of condemnation; and therefore, until that period, the title of the original owner is not devested, and he is entitled to  restitution, in the hands of whoever he may find the property. (Le Caux v. Eden, Doug 613. 616. Goss v. Withers, 2 Burr, 694. The Flad Oyen, 1 Rob. 134. The Santa Cruz, 1 Rob. 49. The Fanny and Elmira, 1 Edw. 117. The Ceylon, 1 Dodson, 105. L'Actif, 1 Dodson, 185.) If such sentence of condemnation is passed, it is a sufficient title  to a vendee; (The Purissima Conception, 6 Rob. 45. The Victoria, 1 Edw. 97.;) and would also have entitled a recaptor to condemnation of the property, if the statute had not stepped in, and, as to British subjects, revived the jus postliminii of the original owner, on payment of salvage. As to the interests of British subjects, a condemnation by an incompetent court is a mere nullity; (The Flad Oyen, 1 Rob. 134.;) though, as to the interests of other parties, the British prize courts will not inquire into the sufficiency of the sentence. (The Cosmopolite, 3 Rob. 333.) A condemnation by an enemy's consul in a neutral port is deemed invalid. (The Flad Oyen, 1 Rob. 134.) But a condemnation of a prize ship, while lying in a neutral port, by a regular court of admiralty in the hostile country, is clearly valid. (The Henrick and Maria, 4 Rob. 43. The Christopher, 2 Rob. 207. The Victoria, 1 Edw. 97. Hudson v. Guestier, 4 Cranch, 293. S.C., 6 Cranch, 281. The Arabella and Madeira, 2 Gallis.) A condemnation originally defective from the incompetency of the court, may be made good by the valid decree of an appellate court. (The Falcon, 6 Rob. 194.) And a title, originally defective, being  acquired under the sentence of an incompetent court, is cured by an intervening peace, which has the effect of quieting all titles of possession arising from the war. (The Schoone Sophie, 6 Rob. 138.) Where a party has purchased a captured ship, under an invalid title, but which was not notoriously bad, the court on decreeing restitution to the original owner will allow the party for any amelioration beyond the ordinary repairs, but not for ordinary repairs. (The Kierlighett, 3 Rob. 96. The Perseverance, 2 Rob. 239. The Nostra de Conceicas, 5 Rob. 294.) And where a ship has been captured and carried into a hostile port, and is afterwards sold to a neutral, a presumption arises that she has been regularly condemned,  and the proof of the contrary rests on the claimant, and not the purchaser. (The Countess of Lauderdale, 4 Rob. 283.) \nIn the United States cases of recapture have been the object of several legislative provisions, which, as far as they apply, supersede all discussions upon the principles of general law. The act of Congress of the 3d March, 1800, ch. 14. (new edit. ch. 168.) directs, that in cases of recaptures of vessels or goods belonging to persons resident  within or under the protection of the United States, the same not having been condemned as prize by competent authority before the recapture, shall be restored on payment of salvage, of one eighth of the value if recaptured by a public ship, and one sixth if recaptured by a private ship; and if the recaptured vessel shall appear to have been set forth and armed as a vessel of war before such capture, or afterwards, and before the recapture, then the salvage to be one moiety of the value. If the recaptured vessel belong to the government and be unarmed, the salvage is to be one sixth if recaptured by a private ship, and one twelfth if recaptured by a public ship; if armed, then the salvage to be one moiety if recaptured by a public ship. In respect to public armed ships, the cargo pays the same rate of salvage as the vessel by the express words of the act; but in respect to private ships, the rate of salvage (by some probable omission in the act) is the same on the cargo, whether the vessel be armed or unarmed. ( The Adeline, 9 Cranch, 244.) \n What constitutes a setting forth as a vessel of war within the act has not been settled by any adjudications in the United States; but the same question has been decided by the British prize courts, in cases arising under a similar clause in the British prize acts, which, indeed, seems recognised as a part of their common law of prize. (The Ceylon, 1 Dodson, 105. 119.) And it has been there settled that where a ship was originally armed for the slave trade, and after capture an additional number of men were put on board, but there was no commission of war, and no additional arming, it was not a setting forth as a vessel of war under the prize act.(The Horatio, 6 Rob. 320.) But a commission of war is decisive if there be guns on board. (The Nostra Signora del Rosario, 3 Rob. 10. The Ceylon, 1  Dodson, 105.) And where the vessel has, after the capture, been fitted out as a privateer, it is conclusive against her, although when recaptured she is navigating as a mere merchant ship; for where the former character of a captured vessel had been obliterated by her conversion into a ship of war, the legislature meant to look no farther; but considered the title of the former owner  forever extinguished. (L'Actif, 1 Dodson, 185.) Where it appeared that the vessel had been engaged in the military service of the enemy under the appointmment of the minister of marine, it was held a sufficient proof of a setting forth as a vessel of war. (The Santa Brigada, 3 Rob. 56.) So, where she is armed, and is employed in the public military service of the enemy by those who have competent authority so to employ her, although she be not regularly commissioned. (The Ceylon, 1 Dodson, 105.) But the mere employment in the military service of the enemy is not a sufficient setting forth for war; but if there be a fair semblance of authority in the person directing the vessel to be so employed, and nothing upon the face of the proceedings to invalidate it, the court will presume that he is duly authorized; and the commander of a single ship may be presumed to be vested with this authority as a commander of a squadron. (The Georgiana, 1 Dodson, 397.) The valuation of the property, when restored under the acts respecting recapture, is to be made upon its value at the place of restitution, and not of recapture. ( The Progress, 1 Edw. 210. 222.) \nIn respect to recaptures of the ships  and cargoes of allies or co-belligerants, from the hands of a common enemy, the general rule is to apply the principle of reciprocity; and if they, under like circumstances, restore on salvage, or condemn generally, to deal out to them the same measure of reciprocal justice. (The Santa Cruz, 1 Rob. 50.) 18 If there should exist a country having no rule on the subject, then the recapturing country applies its own rule as to its own subjects to the case, and rests on the presumption that the same rule will be administered in the future practice of the other party. (The Santa Cruz, 1 Rob. 50. The San Francisco, 1 Edw. 179.) The act  of Congress of the 3d March, 1800, ch. 14. adopts the same regulation.( The Adeline, 9 Cranch, 244.) \nSalvage is not, in general, allowed on the recapture of neutral property, unless there be danger of condemnation, or such unjustificable conduct on the part of the government of the captors, as to bring the property into jeopardy. (The War Onskan, 2 Rob. 299.The Eleonora Catharina, 4 Rob. 156. The Carlotta, 5 Rob. 54. The Huntress, 6 Rob. 104. The Acteon, 1 Edw. 254. The Sansom, 6 Rob. 410.  Talbot v. Seeman, 4 Dall. 34. S.C. 1 Cranch, 1.) 19 But even if in such a case of recapture the recaptors have entitled themselves to salvage, they may forfeit the claim by the irregularity of their conduct. (The Barbara, 3 Rob. 171.) \nIt is no objection to an allowance of salvage on a recapture, that it was made by a non-commissioned vessel; for no letters of marque are necessary for this purpose, nor is a recapture at all made under the authority of prize. It is the duty of every citizen to assist his fellow citizens in war, and to retake their property out of the possession of the enemy; and no commission is necessary to give a person so employed a title to the reward, which the law allots to that meritorious act of duty. (The Helen, 3 Rob. 224.) And if a convoying ship actually recapture one of her convoy, which  has been previously captured by the enemy, it entitles her to salvage. (The Wight, 6 Rob. 315.) But a mere rescue of a ship associated in the same common enterprise gives no right to salvage. ( The Belle, 1 Edw. 66.) \nTo entitle a party to salvage, as upon a recapture, there must have been an actual or constructive capture; for military salvage will not be allowed in any cases where the property has not been actually rescued from the enemy. (The Franklin, 4 Rob. 147.) But it is not necessary that the enemy should have  actual possession; it is sufficient if the property is completely under the dominion of the enemy. (The Edward & Mary, 3 Rob. 305. The Pensamento Felix, 1 Edw. 116.) If, however, a vessel be captured going in distress into an enemy's port, and is thereby saved, it is merely a case of civil and not of military salvage. (The Franklin. 4 Rob. 147.) But to constitute a recapture, it is not necessary that the recaptors should have a bodily and actual possession; it is sufficient if the prize be actually rescued from the grasp of the hostile captor. (The Edward and Mary, 3 Rob 305.) \nWhere a hostile ship is captured, and afterwards is recaptured by the enemy,  and is again recaptured from the enemy, the original captors are not entitled to restitution on paying salvage, but the last captors are entitled to all the rights of prize, for, by the first recapture, the whole right of the original captors is devested. (The Polly, 4 Rob 217. note (a). The Astrea, ante, Vol. I. p. 125.) 2 0 And where the original captors have abandoned their prize, and she is subsequently captured by other persons, the latter are solely entitled to the property. ( The Lord Nelson, 1 Edw. 79. The Diligentia, 1 Dodson, 404.) But if the abandonment be involuntary, and produced by the terror of superior force, and especially if produced by the act of the second captors, the rights of the original captors are completely revived. (The Mary, ante, p. 123.) And where the enemy has captured a ship, and afterwards deserted her, and she is then recaptured, it is not to be considered as a case of derelict, for the original owner never had the aninus derelinquendi; and, therefore, she is to be restored on payment of salvage: but as it is not strictly a recapture within the prize act, the rate of salvage is discretionary. (The John and Jane, 4 Rob. 216. The  Gage,  6 Rob. 273. The Lord Nelson, 1 Edw. 79.) 21 But if the abandonment by the enemy be produced by the terror of hostile force, it is a recapture within the terms of the prize act. (The Gage, 6 Rob. 273) Where the captors abandon their prize, and she is afterwards brought into port by neutral salvors, it has been held that the neutral court has jurisdiction to decree salvage, but cannot restore the property to the original belligerant owners; for by the capture, the captors acquired such a right of property as no neutral nation could justly impugn or destroy, and, consequently, the proceeds (after deducting salvage) belong to the original captors; and neutral nations  ought not to inquire into the validity of a capture, as between belligerants. ( The Mary Ford, 3 Dall. 188) But if the captors make a donation of the captured vessel to a neutral crew, the latter are entitled as salvors, but after deducting salvage, the remaining proceeds will be decreed to the original owner. ( The Adventure, 8 Cranch, 227. S. C. ante, Vol. 1. p. 128. note (f.) And it seems to be a general rule liable to but few exceptions, that the rights of capture are completely devested by a hostile recapture,  escape, or a voluntary discharge of the captured vessel. ( Hudson v. Guestier, 4 Cranch, 293. S. C. 6 Cranch, 281. The Diligentia, 1 Dodson, 404.) And the same principle seems applicable to a hostile rescue; but if the rescue be made by a neutral crew of a neutral ship, it may be doubtful how far such an illegal act, which involves the penalty of confiscation, would be held in the courts of the captor's country, to devest his original right in case of a subsequent recapture. \n As to recaptors, though their right to salvage is extinguished by a subsequent hostile recapture and regular sentence of condemnation, carried into execution, devesting the owners of their property, yet, if the vessel be restored upon such recapture, and resumes her voyage, either by an acquittal in court, or a release of the sovereign power, the recaptors are redintegrated in their right of salvage. (The Charlotte Caroline, Dodson, 192.) And recaptors and salvors have a legal interest in the property, which cannot be devested by other subjects without an adjudication in a competent court; and it is not for the government's ships or officers, or for other persons, upon the ground of superior authority, to dispossess them without cause. (The Blendenhall, 1 Dodson, 414.) \nIn all cases of salvage, where the rate is not fixed by positive law, it is in the discretion of the court, as well upon recaptures as in other cases. ( Talbot v. Seeman, 1 Cranch, 1. The Apollo, 3 Rob. 308. Bynk. Q.J. Pub. lib. 1. ch. 5. Du Ponceau's ed. p. 36. 41, 42.) And where, upon a recapture, the parties have entitled themselves to a military salvage under the prize acts, the court may also award them, in  addition, a civil salvage, if they have subsequently rendered services by succouring  the vessel in distress from perils of the seas. (The Louisa, 1 Dodson, 317. \nIn the construction of the British prize acts, (and similar questions may arise under our own act respecting recaptures,) it has been held that a revenue cutter, liaving a letter of marque, is to be deemed a private ship of war, and entitled to a salvage of one-sixth. (The Helen, 3 Rob. 224. The Sedulous, 1 Dodson, 253.) But the British revenue cutters belonging to private individuals, although fitted out, manned, and armed at the expense of the government, it may be thought doubtful whether this authority applies in the United States, where the revenue cutters are generally built and owned, as well as equipped, manned, and armed by the government. But a store-ship, armed at the public expense, and commanded by commissioned officers, is clearly to be deemed a public armed ship. (The Sedulous, 1 Dodson, 253.) \nIn the progres of the cause an unlivery of the cargo often becomes necessary either to ascertain its nature and quality; ( The Liverpool Packet, 1 Gallis. 513. Marriott's Form. 229. The Carl Walter, 4 Rob.  207. The Richmond, 5 Rob. 325.The Jonge Margaretha, 1 Rob. 189. The Oster Risoer, 4 Rob. 199.;) or more effectually to preserve it from injury and pillage; (Marriott's Form. 323.;) or because the ship stands in a predicament altogether distinct from that of the cargo. (The Hoffnung, 6 Rob. 231. The Prosper, Edw. 72. Marriott's Form. 224.) In all these, and other proper cases, the prize court will, upon proper application, decree an unlivery. Upon ordering an unlivery, a warrant or commission of unlivery is directed to some competent person, and usually to the marshal to unlade the cargo, and to make a true and perfect inventory thereof. (Marriott's Form. 224.) At the same time a warrant of commission of appraisement is usually directed to some competent persons, who are to reduce into writing a true and perfect inventory of the cargo, and upon oath to appraise the same according to its true value. In England, this commission is sometimes  directed to a person who is authorized to choose and swear the appraisers and himself. (Marriott's Form. 227.) But in the United States the general practice is for the courts to appoint the appraisers in the first instance. And where  it becomes necessary or proper to unlade the cargo for inspection of its nature or quality, a commission of inspection is issued, directed to some competent persons in like manner to return an inventory thereof, with a certificate of the particulars, names, descriptions, and sortments of the goods, together with their several marks and numbers, and the nature, use, quantities and qualities thereof. (Marriott's Form. 229.) 22 The court may also, in its discretion, order the ship or cargo, or both, to be removed to another place or port; for having the custody of the thing, it is bound to use all reasonable precautions to preserve it, and to consult the best interests of all parties; and in such case a commission of removal is issued, which is usually directed to the marshal; but the court may direct it to any other person. (Marriott's Form. 234. The Rendsborg, 6 Rob. 142. The Sacra Familia, 5 Rob. 360.) \n \nAn unlivery of the cargo is considered as done for the benefit of all parties, and, therefore, the expense is generally borne by the party ultimately prevailing. If the captors apply for an unlivery, and the property is condemned, the expense falls on the captors; but if restitution be awarded, the court, in its discretion, usually makes the expense a charge on the cargo. (The Industrie, 5 Rob. 88.) 23 \n After unlivery and appraisement, the court sometimes decrees a sale or delivery on bail of the property to the captors or the claimants. Where a sale is ordered, which is usually done where the ship and cargo are in a perishing condition, or liable to deterioration pending the process. ( The St. Lawrence, 1 Gallis. 467. The Frances, 1 Gallis. 451. Jennings v.  Carson, 4 Cranch, 2. Stoddart v. Read, 2 Dall. 40. Marriott's Form. 237. 318. The Copenhagen, 3 Rob. 178.) In England a commission of appraisement and sale usually issues to some competent persons jointly and severally to reduce into writing a true inventory of the goods, and to choose appraisers, who are to appraise the same on oath; and after appraisement, the commissioners are to expose the same to public sale, and bring the proceeds into the registry of the court. (Marriott's Form. 237. 318.) And in England it is the regular practice of the court, that one of the commissioners should be named by the claimant. (The Carl Walter, 4 Rob. 207. 211.) And in the United States a sale is sometimes ordered without a previous appraisement; or, if an appraisement be ordered, the appraisers are always named by the court itself. In case of an appraisement and sale the expenses of taking out the commission, &c., are, in the first instance, borne by the party applying for the sale, and ultimately as the court may direct; (The Carl Walter, 4 Rob. 207.;) and such sale is usually, in England, made by the marshal; but it seems that the court may direct it to be made by any other person. (The  Rendsborg, 6 Rob. 142.) In the United States, the sale is invariably made by the marshal; and it would seem highly proper in all cases to have a previous inventory and appraisement with a view to check any attempt of fraud, and to establish the proper responsibility of the officers of the court in cases of negligent custody. This is the regular practice of the prize court, and the most obvious reasons of public policy require a strict adherence to it. \nThe subject of delivery, either of the property itself, or of its  proceeds, has been already partially discussed in the former note, and to the authorities there referred to may be added the following. (The Rendsborg, 6 Rob. 142. 144. The Frances, 1 Gullis. 451. The Diana, 2 Gallis. 93) Sometimes the property is delivered on bail to return the same, or the full value, to answer the decree; and in such case, the court have a right to inquire what is the full value, and to decree accordingly. ( Brymer v. Atkins, 1 H. Bl. 264.) And if the bail security be taken by way of recognisance, (which is irregular,) and not by way of stipulation, still the court may enforce it as a stipulation. ( Brymer v. Atkins, 1 H. Bl 164. The  Alligator, 1 Gallis. 14b.) Upon such a delivery on bail, the sureties are not responsible beyond the sum in which they become bound. ( Smart v. Wolff, 3 T. Rep. 323.) But the principal may be made to respond the full value of the property. In ordinary cases, however, the property is delivered on bail at an appraised value; and in such cases, the principal and sureties are bound to the stipulated value, but not farther. If, therefore, there be a delivery on bail at an admitted value, the court will not listen to an application to diminish the amount to the proceeds of a subsequent sale, but will hold the parties to the appraised or admitted value. (The Betsey, 5 Rob. 295. and note (a) 296.) In case of a delivery on bail, the expenses of the delivery are to be borne by the delivering party, unless it is otberwise directed by the court. (The Rendsborg, 6 Rob. 142.) But generally the court directs the expenses of the application to be borne by the party who applies for the delivery on bail. And all expenses after the delivery, are exclusively borne by the party receiving the property. (5 Rob. 295. note (a).) Bail bonds or securities to answer adjudication are not discharged by lapse  of time; but may, at any distance of time, be enforced by the court; but after a great length of time the court will, in its discretion, refuse a monition or attachment to enforce the bond, unless some reasonable ground for the delay is established. (The Vreede, 1 Dodson, 1.) Nor are these bonds considered as mere personal securities given to the individual captors, although taken in their names; they are considered as securities given to the court to abide the adjudication of all events at the time impending before it. The court is not in the habit of considering bonds precisely in the  same limited way as they are viewed by the courts of common law. In those courts, they are very properly considered as mere personal securities, for the benefit of those parties to whom they are given. In prize courts they are subject to more enlarged considerations; they are there regarded as pledges or substitutes for the thing itself, in all points fairly in adjudication before the court. If, therefore, a bond be given to the actual captors to answer the adjudication of the property, which should, from the locality of the capture, or from other circumstances, be condemned to the government,  the bail would in such case be answerable, in the admiralty, to the government. (The Neil Elwin, 1 Dodson, 50.) But if the property, at the time of capture, was neutral, and delivered on bail pending the proceedings, and hostilities subsequently intervene with the neutral country, and, in consequence thereof, the property is condemned to the government, it seems that the court is not in the habit of enforcing the bail bond in such cases, because the event was not originally in the contemplation of the parties at the time they entered into the security. (The Neil Elwin, 1 Dodson, 50.) Whether this doctrine would be sustained in the United States, is a question upon which there is no decision to guide the judgment; but certainly much argument may be used against the asserted exemption; for the bail bond being a substitute for the property itself, there does not seem any very conclusive reason why it should not be subject to all the events which would have affected the property, if still in the custody of the court. \nIt frequently happens, that enemies' goods are found on board of neutral ships; and conversely, that neutral goods are found on board an enemy's ship. In these cases,  questions often occur as to the right of the parties to freight, expenses, &c. And first in respect to neutral ships. In general, where enemies' goods are captured in a neutral ship, the captors take cum onere, and if the conduct of the neutral has been perfectly fair and impartial, it is the practice of the prize court to allow him his  full freight, in the same manner as if the original voyage had been performed. (The Hoop, 1 Rob. 196. 219. The Antonia Johanna, ante, Vol. I. p. 159.) And in like manner to allow him his expenses. (The Hoop, 1 Rob. 196. The Bremen Flugge, 4 Rob. 90. The Der Mohr, 4 Rob. 314. Smart v. Wolff, 3 T. Rep. 323. Vattel, liv. 3. ch. 7. sec. 115. The Consolato del Mare, ch. 273. Sir W. Scott and Sir J. Nicholl's letter to Mr. Jay, ubi supra. The Copenhagen, 1 Rob. 289. The Anna Catharina, 6 Rob. 10. Catharina Elizabeth, Acton, 309. The Fortuna, Edw. 56.) The freight allowed is not, however, necessarily the rate agreed on by the parties, if it be inflamed by extraordinary circumstances; but a reasonable freight only will, in such cases, be allowed. (The Twilling Riget, 5 Rob. 82.) And where the goods have been once unlivered by order of court,  the whole freight for the voyage is due, and the owner of the goods, even in case of restitution, cannot demand the ship to reload them, and carry them to the original port of destination; for by the separation, the ship is exonerated. (The Hoffnung, 6 Rob. 231. The Prosper, Edm. 72.) But it would be otherwise if there had been no unlivery. (The Copenhagen, 1 Rob. 289.) And the neutral will be allowed his freight where he carries the goods of one belligerant to its enemy, for though such a trade be illegal as to the subjects, it is not so as to neutrals. (The Hoop, 1 Rob. 196. 219.) So on a voyage from the port of one enemy to the port of another enemy. (The Wilhelmina, 2 Rob. 210. note.) But if the neutral has conducted himself fraudulently or unfairly, or in violation of belligerant rights, he will not be allowed freight or expenses, and in flagrant cases, will be visited with confiscation, even of the ship itself. And he is never allowed freight where he has used false papers. (The Atlas, 3 Rob. 299. 304. note. Sir W. Scott and Sir J. Nicholl's letter to Mr. Jay, ubi supra.); nor upon the carriage of contraband goods; (Ib. Bynk. Q.J. Pub., Duponceau's ed. 81. The Sarah Christina,  1 Rob. 237. The Mercurius, 1 Rob. 288. The Emanuel, 1 Rob. 286. The Neptunus, 3 Rob. 108. The Neutralitet, 3 Rob. 295. The Oster Risoer, 4 Rob. 199. The Commercen, ante, Vol. I. p. 382.); nor where there has been a spoliation of papers; (The Rising Sun, 2 Rob. 104. The Madonna  del Burso, 4 Rob. 169. 183.); nor where the cause of capture was the ship and not the cargo. ( The Fortuna, 1 Edw. 56.) But where part of the goods are condemned as contraband and part restored, after unlivery of the cargo, freight may be decreed as a charge upon the part restored. (The Oster Risoer, 4 Rob. 199.) If the goods are unlivered under a hostile embargo upon neutral ships, they are discharged of the lien of the freight; and if freight be decreed, it can only be against the original consignees or freighters, and not against a prior purchaser, who has received them on bail.(The Theresa Bonita, 4 Rob. 236. \nWhen a decree is made that the freight shall be a charge on the cargo, application must be made to the court for the sale of so much as is necessary for this purpose. (The Vrow Margaretha, 4 Rob. 304. note.) In general, where a ship and cargo are restored, with a decree that the freight  shall be a charge on the cargo, if the proceeds of the cargo are not sufficient to pay the freight, the captors are not responsible for the deficiency. (The Haabet, 4 Rob. 302.) But although the capture be right, yet if afterwards the cargo is lost by the negligence of the captors, and the freight be decreed a charge on the cargo, the captors are responsible to pay it. (The Der Mohr, 4'Rob. 314.) Where the freight of the neutral and the expenses of the captors are both decreed to be a charge on the cargo, and the proceeds are insufficient to discharge both, priority of payment of the freight is, in ordinary cases, allowed by the court, as a lien that takes place of all others. (The Bremen Flugge, 4 Rob. 90.) \nIn the next place, as to the allowance of freight to the captors. This may happen when the ship is hostile, and the cargo, or a part thereof, is neutral. The general rule is, that if neutral goods are found on board of a hostile ship, the captors are not entitled to freight therefor, unless they carry the goods to the port of destination. (Bynk. Q.J. Pub. 1. 1. ch. 13. Du Ponceau's ed. p. 105. The Diana, 5 Rob. 67. The Fortuna, 1 Edw. 56.) And the rule is applied notwithstanding  there may have been a sale of the goods beneficial to the owners. (The Vrow Anna Catharina, 6 Rob. 269. The Fortuna, 1 Edw. 56.) But there are exceptions to the rule itself; for if the captors bring  the cargo to the country where the claimants ultimately designed to send it, but were compelled to take a circuitous route under existing circumstances, the captors are entitled to freight, notwithstanding the ship was actually destined to another country, there to land it. (The Diana, 5 Rob. 67.) So, if brought to the same country, but not to the port of actual destination. (The Vrow Henrietta, 5 Rob. 75. note. But see the Wilhelmina Eleonora, 3 Rob. 234.) So, where the goods are brought to the country where the proceeds were ultimately destined, and would have been brought directly, but for a prohibition of municipal law. ( The Ann Green, 1 Gallis. 274.) Where freight is decreed to the captors, it will be paid by the court out of the cargo or its proceeds, if yet remaining in the admiralty. (The Fortuna, 4 Rob. 278.) And under particular circumstances, application may be made to the court to decree the sale of so much of the cargo as may be necessary to be sold for the  discharge of freight. (4 Rob. 304. note.) And where freight is allowed to the captors, if they have done any damage to the cargo, the amount may be deducted by way of set off or compensation. (The Fortuna, 4 Rob. 278.) \nAs to the allowance of costs and expenses. In cases where farther proof is directed, costs and expenses are never allowed to the claimant. (The Einigheden, 1 Rob. 323.) Nor where the neutrality of the property does not appear, by the papers on board and the preparatory evidence. (Sir W. Scott and Sir. J. Nicholl's letter to Mr. Jay ubi supra. Opinion of M. Portalis in The Statira, 2 Cranch, 102. note (a);) nor where papers are spoliated or thrown overboard, unless the act be produced by the captors' misconduct, as by firing under false colours; (The Peacock, 4 Rob. 185.;) nor where the master or crew, upon the preparatory examinations, grossly prevaricate; (Ib.;) nor where any part of the cargo is condemned; (The William. 6 Rob. 316.;) nor where the ship comes from a blockaded port; (The Frederick Malke, 1 Rob. 36. The Betsey, 1 Rob. 93. The Vrow Judith, 1 Rob. 150.;) nor if the ship be restored by consent,  without reserving the question of costs and  expenses. (The Maria Powlona, 6 Rob. 236.) But in all these cases it is in the discretion of the court to allow the captors their costs and expenses. (Sir W. Scott and Sir J. Nicholl's letter to Mr. Jay, ubi supra.) And, in general, wherever the captors are justified in the capture, their costs and expenses are decreed to them by the court in case of restitution of property.(The Imina, 3 Rob. 167. The Principe, 1 Edw. 70.) Therefore, they are allowed where the original destination was to a blockaded port, although changed on hearing of the blockade; (The Imina, 3 Rob. 167;) where ships, even of our own country, are captured sailing under false papers; (The Sarah, 3 Rob. 330.;) where the nature of the cargo is ambiguous as to contraband; (The Twende Brodre, 4 Rob. 33. The Gute Geselschaft Michael, 4 Rob. 94. The Charistina Maria, 4 Rob. 166.;) and, generally, in all cases of false papers; (The Nostra Signora de Piedade Nova Aurora, 6 Rob. 41.;) and in all cases where farther proof is required. (See the Frances, 1 Gallis. 445. The Apollo, 4 Rob. 158. The Mary, 9 Cranch, 126.) In cases where the captors' expenses are allowed, the expenses intended are such as are necessarily incurred  in consequence of the act of capture. (The Catharine and Anna, 4 Rob. 39.) Such are the expenses of the captors' agent. (The Asia Grande, Edw. 45.) But not insurance made by the captors; (The Catharine and Anna, 4 Rob. 39.;) nor expenses of transmitting a cargo from a colony to the mother country. (The Narcissus, 4 Rob. 17.) And property restored to the claimant is not to be charged with any expenses for agency, or for taking care of it, unless made a charge by the court. ( The Asia Grande, 1 Edw. 45.) And the expense of an unlivery or delivery of the property which is restored, is to be borne by the captors or releasing party, and not by the property, unless it is so directed by the court. (The Rendsborg, 6 Rob. 142.) In general, where the property is condemned, the expenses of unlivery and warehousing, &c., fall on the captors; (The Industrie, 5 Rob. 88.;) and where it is restored, the court will apportion them in its discretion, on the captors and en the cargo. (The Industrie, 5 Rob. 88.) \n In cases of neutral ships, it is usual to allow the master his adventure and personal expenses, if his conduct has been fair and unimpeachable. (The Calypso, 2 Rob. 298. The Anna  Catharina, 6 Rob. 10.) But where the master and crew prevaricate in their evidence, their adventures are never restored; (The Anna Catharina, 4 Rob. 120.;) nor where the ship is engaged in a fraudulent trade. (The Christiansberg, 6 Rob. 376.) \nClaims of joint capture are often interposed in prize causes; and though it is not usual for joint captors to assert their interest until after a final decree of condemnation, (Per Croke, J., in the Herkimer, 2 Hall's Law Journ. 133. 146. S.C. Stewart, 128. 144. Home v. Camden, 2 H. Bl. 533.,) yet, as it may be asserted with legal propriety at any stage of the cause, it may be as well here to examine the doctrines which have been applied to this subject. \nIn respect to privateers, it is a general principle, that no right to share as joint captors accrues merely by being in sight at the time when the prize is captured. There must be actual intimidation, or actual or constructive assistance. (Bynk. Q.J. Pub. lib. 1. ch. 18., and a learned note of Mr. Duponceau, in his translation, p. 144. Talbot v. Three Brigs, 1 Hall's Lare Journ. 266. S.C. 1 Dall. 95. Martens on Capt. sec. 32. p. 91. The Santa Brigada, 3 Rob. 52. The Forsighied, 311.L'Amitie,  6 Rob. 261.) 24 And the same principle is applied to  captures in sight of fortresses, and of land forces, and armies, for they do not share unless there be actual co-operation. (Bynk. Q.J. Pub. lib. 1. ch. 18., Duponceau's ed., p. 146. The Dordrecht, 2 Rob. 55.) And in such cases, the assistance ought to be material in order to entitle the parties to share as joint captors. (The Dordrecht, 2 Rob. 65.) The reason of this rule in relation to privateers, is, that the being in sight is not sufficient with respect to them to raise the presumption of co-operation in the capture. They clothe themselves with commissions of war from views of private advantage only. They are not bound to put their commissions in use on every discovery of an enemy. And, therefore, the court does not presume in their favour, from the mere circumstance of their being in sight, that they were there with a design of contributing assistance, and engaging in the contest. There must be as to them the animus cafiendi demonstrated by some overt act; by some variation of conduct, which would not have taken place, but with reference to that particular object, and if the intention of acting against the  enemy had not been entertained. (L'Amitie, 6 Rob. 261. La Flore, 5 Rob. 268.) Formerly the principle of constructive assistance was carried a great way; but the later inclination of courts has been rather to restrain than to extend the rule. (The Vryheid, 2 Rob. 16. The Odin, 4 Rob. 318. La Furieuse, Stewart, 177.) And where no actual assistance is alleged, the presumption of law leans in favour of the actual captors. (The Robert, 3 Rob. 194.) But even with respect to privateers, it is not necessary that a joint chaser should actually board a prize; it will be enough if there is the animus persequendi sufficiently indicated by the conduct of the vessel. The act of chasing, therefore, if continued for any length of time, and not abandoned at the time of capture, will be sufficient to found a title of joint capture. (L'Amitie, 6 Rob. 261.) But if the chase be discontinued, it is otherwise. (Ib. The Waaksamheid, 3 Rob. 1.) And if a ship has actually engaged another, and been beaten off, and yet remains in sight about the enemy, with an evident intention  of persisting in the contest, and another vessel-then comes up and makes the capture, the first is entitled to share  in the capture. (La Virginie, 5 Rob. 124.) \nPublic policy has introduced a different rule as to public ships of war; and all such ships being in sight are deemed to be constructively assisting, and, therefore, entitled to share in the capture. (The Dordrecht, 2 Rob. 55. The Robert, 3 Rob. 194. The Forsigheid, 3 Rob. 311. La Flore, 5 Rob. 268. The Bellona, Edw. 63. The Furieuse, Stewart, 177. The Sparkler, 1 Dodson, 359.) 25 The reason of this distinction is, that public ships are under a constant obligation to attack the enemy wherever seen; and, therefore, from the mere circumstance  of being in sight, a presumption is sufficiently raised that they are there animo capiendi. In the case of privateers, the same obligation does not exist; the law, therefore, does not give them the benefit of the same presumption. (La Flore. 5 Rob. 268.) Where the actual captor is a public armed ship, the rule is additionally supported by the obvious policy of promoting harmony in the service.But the rule equally applies where the actual captor is a privateer; (La Flore, 5 Rob. 268.;) though the privateer in the converse case is not entitled to share, from merely being in sight. (The Santa Brigada, 3 Rob. 52.) There are exceptions, however, to the rule, where the circumstances of the case repel the presumption of the animus capiendi; such is the case where a public ship is in sight, but steering an opposite or different course inconsistent with the notion of an intent  to capture. (The Robert, 3 Rob. 194. The Drie Gebroeders, 5 Rob. 339.) But the mere sailing on a different course is not sufficient to defeat a title of joint capture; for it is not necessary that the two ships should pursue the enemy in the same line. If one vessel sail in one direction, and the other  in a different direction, with the purpose of capturing, that difference of course would not defeat a unity of purpose, nor destroy the claim of joint capture. (Le Niemen, 1 Dodson, 9.) But if the ship, claiming as joint captor, has changed her course, and discontinued the chase before the capture, the claim is defeated, unless this conduct be occasioned by the fraud or misconduct of the capturing ship; for then the court will let in the claim with a view to punish the fraud or misconduct. (The Waaksamheid, 3 Rob. 1. The Robert, 3 Rob. 194. La Virginie, 5 Rob. 124. The Drie Gebroeders, 5 Rob. 339.) So, if the persons claiming as joint captors, have reconnoitred the prize, and abandoned all design of capture, they are not entitled to share. (The Lord Middleton, 4 Rob. 153. The Drie Gebroeders, 5 Rob. 339. L'Amitie, 6 Rob. 261.) \n But even with regard to public ships, cases of constructive assistance in joint capture are not to be extended, and, therefore, the court requires that the ship should be actually in sight. (The Vryheid, 2 Rob. 16. The Odin, 4 Rob. 318. The Furieuse, Stewart, 177.) Therefore, being in sight a day or two before the capture is not sufficient. It must be at the commencement of the engagement, or chase, or during its continuance. (The Vryheid, 2 Rob. 16.) And being in sight when the enemy was first descried, and being detached before the chase or preparations therefor, is not sufficient. (The Vryheid, 2 Rob. 16.) But it would be otherwise if detached in sight of the enemy at the moment of chase, and under preparation for chase; for there must be some actual contribution of endeavour as well as of general intention. (The Vryheid, 2 Rob. 16.) And it would seem to be very doubtful whether the prize being seen from the mast head would bring the case within the rule of being in sight. (The Robert, 3 Rob. 194.) And a like rule is applied to the capitulation of an island; for to entitle a public ship to share in the capture she must not be detached upon another service,  but  must be actually in sight at the time. (The Island of Trinidad, 5 Rob. 92.) And no antecedent or subsequent services in the expedition will help the case where the party would not otherwise be entitled to share. (Buenos Ayres, 1 Dondson, 28.) In respect also to a joint chase, if both ships are in chase without any common co-operation, except such as the two parties acting separately, with a common object in view, might produce, and during the chase night comes on, and the enemy is lost sight of, and the ships still are in pursuit, but one of them cruising merely in search, and from conjecture adopts an erroneous course, and in consequence thereof the prize is captured either by the other, or by a third ship on the next day, out of sight, the ship so erroneously cruising is not entitled to share as a joint captor, for it is a discontinuance of the chase to change a course upon conjecture. (Le Niemen, 1 Dodson, 9. The Financier, 1 Dodson, 61.) Nor will it vary the case that the position or course run by such ship had the effect of throwing the prize into the hands of the other ship, by inducing the prize to alter her own course. (Ib.) It would, indeed, be an extravagant position  to admit that every fleet or ship which, either by accident or design, diverts the course of an enemy, and by so doing occasions her capture by a totally distinct force, should be considered as a joint captor. (Le Niemen, 1 Dodson, 9.) It is cetainly true that darkness preventing sight will not universally exclude from a right to share; not can the rule be laid down universally the other way; for there may not in every case be evidence to show the proximity to the scene of action. Where it can be shown that the asserted joint captor was in sight when the darkness came on, and that it continued steering the same course, by which it was before nearing the prize, and that the prize itself also continued the same course, it amounts almost to demonstration that the ships would have seen, and been seen by each other, at the time of capture, if darkness had not intervened; and, in such case it ought to be let in to the benefit of joint capture. (The Union, 1 Dodson, 346.) But if the chase is lost sight of in the night, and the capture is afterwards made at such a distance that the asserted joint captor would not at the time of capture have been in sight even if it  had been day,  the claim of joint capture cannot be sustained. Indeed, Sir W. Scott has declared that where ship is lost sight of, in the night, the pursuit of that ship cannot properly be denominated a chase; it is a conjectural pursuit only; it is a feeling about in the dark, a search and inquiry, but no chase. (The Financier, 1 Dodson, 61.) And where a ship is herself only a constructive captor, it is not a sufficient ground to let in another ship tht she had joined in a previous chase with the constructive captor, and lost sight of the prize in the night. (The Financier, 1 Dodson, 61.) Therefore, in a case where one or two joint chasers were ordered to pick up the boats of the other, and in consequence of the delay occasioned by her obedience to those orders she lost sight of the prize, which was, in the mean time captured by a third ship coming up in the presence of the other, it was held that the ship so out of sight was not entitled to share. (The Financier, 1 Dodson, 61.). A revenue cutter, though having a letter of marque, is not considered in England as a public ship of war entitled to the benefit of the rule of constructive assistance from being in sight. ( The Bellona, 1 Edw. 63.)  A conveying ship, notwithstanding her special employment, may be entitled as a joint captor, if by chase or intimidation she aid in the capture, when it does not interfere with convoy duty. (The Waaksamheid, 3 Rob. 1. La Furie, 3 Rob. 9.) In captures made by boats it is a general rule that the ships to which they belong are entitled to share. (The Anne Maria, 3 Rob. 211. The Odin, 4 Rob. 318.) But if a boat be detached from the ship to which she belongs, and attached to another, the ship only shares to which she is attached at that time; for she must be taken at that time, and in those operations to be acting under the authority and for the benefit of such ship only. (The Melomasne, 5 Rob. 41.) But constructive assistance by boats will not entitle the ships to which they belong to share in the prize, though actual capture by the boats would be sufficient for this purpose; for they are a part of the force of the ship. And in cases of mere constructive assistance the right of participation must be in proportion to the intimidation caused, and cannot go beyond the force actually seen by the enemy. (La Belle Coquette, 1 Dodson, 18. The  Odin, 4 Rob. 318. The Nancy, 4 Rob.  327, note (a.)) And it is extremely questionable whether a boat of a ship of war could support a title to share on the mere principle of being in sight. In the case of mere constructive capture, the construction which is laid upon the supposed intimidation of the enemy, and the encouragement of the friend, from a ship of war being seen or in sight, applies very weakly to the case of a boat, in object that attracts very little notice upon the water, and whose character even if discerned by either of the parties may be totally unknown to both. (The Odin, 4 Rob. 318.) Nor will the facts that the ship to which the boat belongs is in sight lying at anchor in a harbour, entitle the ship to share. (The Odin, 4 Rob. 318. The Nancy, 4 Rob. 327., note (a). La Belle Coquette, 1 Dodson, 18.) \nIn respect to captures made by ships which are associated in the same service, or are engaged in a joint enterprise under the orders of the same superior officer, it is a general rule that they are entitled to share in each other's prizes, made while in such service or joint enterprise. (The Forsigheid, 3 Rob. 311. The Guillaume Tell, Edw. 6. The Empress, 1 Dodson, 368.) Therefore, if one ship of a  squadron takes a prize in the night, unknown to the rest, it will entitle the whole fleet to share, although, possibly, the capture may have been made at a distance out of sight of most of the ships of war, even if it had been noonday, for the fleet so associated is considered as one body, unless detached by orders, or entirely separated by accident; and what is done by one, continuing to compose in fact a part of the fleet, enures to the benefit of all. (The Forsigheid, 3 Rob. 311. S.C. Edw. 124.) Where a fleet is employed in a blockade, the service is considered as joint, and all the ships are entitled to share in all captures, although all the ships have not joined in the chase, and the capture has been made after the chase, at a great distance from the blockaded port. (The Guillaume Tell, Edw. 6.The Forsigheid, Edw. 124.) But if a part of the fleet be detached on a separate service, or if the capture be not within the purposes for which they were associated, then the rest of the fleet, not actually or constructively assisting in the capture, are not entitled to share. (The Forsigheid, 3 Rob. 311. The  Nordsten, cited in the Forsigheid, Edw. 124. 127. S.C. 1 Acton,  128. The Island of Trinidad, 5 Rob. 92. The Stella del Norte, 5 Rob. 349.) And this rule applies to all detachments for some distinct and separate purpose, which, though possibly connected with the main service, carries the detached ships out of the scene of the common operations for the time. (The Forsigheid, 3 Rob 311.) But if they are only sent to look out, and they preserve their connection with the fleet, and maintain their dependence upon it, and keep within signal distance, this is not a detached service. It is more like stretching one of the arms of the fleet without dissolving, in any manner, the connextion between them and the main body. (The Forsigned, 3 Rob. 311.) In respect to transports, mere association in service is not sufficient to entitle them to share as constructive joint captors; but for this purpose they must actually acquire a military character, and must be employed in military operations, and there must be an animus capiendi, while so employed. (The Cape of Good Hope, 2 Rob 274.) It is not sufficient that the enemy may have been inumidated by their presence. Mere intimidation may be produced without any co-operation having been given or intended. if  a frigate were going to attack an enemy's vessel, and four or five large merchant ships, unconscious of the transaction, should appear in sight, they might be objects of terror to the enemy, but no one would say that such terror would entitle them to share. Though the fact of terror were ever so strongly proved, there would not be that co-operation which the law requires to entitle non-commissioned vessels to be considered as joint captors. (Ib.) But if non-commissioned ships chase, animo capiendi, they are entitled to share if the capture be made by their contribution in this service. (The Twee Gesuster, and Le Franc, cited 2 Rob. 284. 285., notes (a), (b).) \nAs to conjunct operations by land and naval forces, how far the former are permitted to share in prizes made by the latter, where no express provision is made by statute, depends upon the circumstances of the case. A mere general co-operation in the same general objects would not be sufficient. (The Stella del Norte 5 Rob. 349.) But an actual co-operation in the particular  capture is clearly sufficient. (Ib. The Dordrecht, 2 Rob. 55.) \nIf the fleet of an ally and our own fleet serve together under our commander,  who detaches the squadron of the ally, the latter is not entitled to share in captures subsequently made. But if an ally actually co-operates in effecting a capture, he is entilted to share as a joint captor; but the question whether he is a joint captor or not, is a question of which courts of common law have no jurisdiction, and which belongs exclusively to the admiralty. ( Duckworth v. Tucker, 2 Taunt. 7.) \nAs to the manner in which claims of joint capture are to be asserted. It has been already stated that it is usual not to file such claims before a decree of condemnation; but if they are not filed before a decree ascertaining who are the captors, and who are entitled to share, and especially after a distribution decreed, it is too late to assert the right. (See The Stella del Norte, 5 Rob. 349. Duckworth v. Tucker, 2 Taunt. 7. Home v. Camden, 2 H. Bl. 533.) But if the sentence below be suspended by an appeal, it seems that a joint claim may be interposed upon the appeal. ( Home v. Camden, 2 H. Bl. 533. The Nostra Signora de los Dolores, 1 Acton, 262. The Societe, 9 Cranch, 209.) It is, however, best to interpose such claims at an earlier stage of the proceedings, and before  any decree of condemnation has passed in any court. \nA question of joint capture is never permitted to be settled by affidavits. It must be brought forward by a regular allegation, containing a statement of the facts; and if the allegation contain such facts, as, if proved, may entitle the parties to share, the court direct it to be admitted and filed; and, thereupon, the actual captors are entitled to file a counter allegation; and the cause is then regularly to be sustained by proofs to be taken and established as in other causes, that is to say, by documentary proofs, and the depositions of competent witnesses. (The Urania, 5 Rob. 148. La Virginie, 5 Rob. 124.) If, indeed, upon the statement made in the original allegation, the claim cannot, in point of law, be sustained, the court will not inquire into the facts, but reject the application in limine. (The Waaksamheid, 3 Rob. 1.) The case, however, must be very clear,  where this course is adopted. When the claim of joint capture is admitted to proof, the onus probandi lies on the asserted joint captor. (The Union, 1 Dodson, 346. The John, 1 Dodson, 363.) The single evidence of witnesses on board of the claiming ship,  though they release their right, is never deemed sufficient to establish the fact of joint capture; it must be corroborated by evidence aliunde, or it will be rejected. (The Fadre-Iandet, 5 Rob. 120. La Flore, 5 Rob. 268. The John, 1 Dodson, 63.) If, at the moment of capture, the capturing ship admits the fact of joint capture, it is conclusive, unless there be some circumstance invalidating the admission. (The San Jose, 6 Rob. 244.) And if the asserted joint captors expressly renounce all claim to the prize at the time of capture, their claim is entirely waived, though, from subsequent circumstances, they may be disposed to assert it.(The William and Mary, 4 Rob. 381.) \nIn case of joint captures by public ships, the rule as to the proportion in which they are to share, is established generally by statute.This is fixed in the United States by the act of the 22d April, 1800, ch 33., which provides that the capturing ships shall share \"according to the number of men and guns on board each ship in sight.\" In respect to privateers, no statute regulation exists; and by the general rule of the prize law, they are to share in proportion to their relative strength.(Bynk. Q.J Pub. lib. 1.  ch. 18., Du Ponceau's ed., p. 164.) This relative strength, is, by the law of Great Britain and the United States, ascertained by the number of men on board of such ship assisting in the capture. (Roberts v. Hartley, Doug. 311. The Despatch, 2 Gallis. 1.) Such, too, is the rule where an ally co-operates in the capture. ( Duckworth v. Tucker, 2 Taunt. 7.) And the same rule seems applicable to the case of a joint capture by a public ship and a private ship of war; and this, whether the latter be commissioned or not. (The Twee Gesuster, 2 Rob. 284. Le Franc, 2 Rob. 285.) \n Upon the hearing of the proofs, if the case does not require or admit farther proof, the court proceeds to pronounce a sentence of acquittal or condemnation, as the justice of the case requires. And it may proceed to make its decree as well after as before the death of the parties; for in proceedings in rem the suit does not abate by the death or absence of all or any of the parties named in the proceedings. ( Penhallow v. Doane, 3 Dall. 54, 86. 117. The calcon, 6 Rob. 194. 199.) It may be proper in many cases, where all the parties on either side are dead, unot to proceed to make a decree in rem without  serving a monition upon the representatives of the deceased party to appear and pursue or defend his rights. And where the decree is in personam the court will generally require that the representative should be duly cited to appear to protect his interests, so far as they may be affected by the decree. (Vide. The Nostra Signora de los Dolores, 1 Dodson, 290.) It is, indeed, the duty of the court to take notice of all interests that result from evidence before it, and not to suffer any persons to be precluded from their just demands from want of notice of any facts that appear in the course of the proceedings. (The Maria Francaise, 6 Rob. 282.) And where parties are not formally before the court, it acts as a general guardian of all interests which are brought to its notice. (Ib.) Indeed, in the common cases of condemnations, the enemy proprietor is necessarily absent by operation of law; and yet the sentence is completely valid, as well against him as against all the world. (The Falcon, 6 Rob. 194. 199). To give validity, therefore, to decrees in rem, it is not necessary that the adverse parties should be before the court. (Ib.) \nWhen a sentence is pronounced, either of acquittal  or condemnation, it is, in general, by an interlocutory decree. An interlocutory decree is proper in all cases, where any thing farther remains to be done by the court, as in ascertaining damages in cases of illegal capture, or in deciding who are captors, after deciding that the property is to be condemned. The right to decide who are captors entitled to distribution, belongs exclusively to the prize court, and its adjudication cannot be examined by a court of common law; ( Home v. Camden, 2 H. Bl.  583., 4 T. Rep. 382. Duckworth v. tucker, 2 Taunt. 7.;) and no title vests in the captors until the final adjudication of the prize court. (Ib.) In England the usual practice is to acquit or condemn by interlocutory decree in all cases; (Marriott's Form. 194. 196.;) and a definitive sentence is reserved until all other questions and interests are finally disposed of. (Ib. 198. 203.) In the United States it is more common to reserve a decree until a final decision of all the questions before the court; but there can be no doubt of the propriety of an adherence to the English practice, where the circumstances of the case require a suspension of a final sentence, although the  propriety of an acquittal or condemnation is perfectly clear. And in case of an acquittal or condemnation by interlocutory decree there can be no question that an appeal immediately lies to the proper appellate court by the parties affected by that decree; for as to them it is an interlocutory having the effect of a final decree. \nIn respect to cases of acquittal. This may be either with or without damages and costs, or upon the terms of paying costs and expenses. In either case where the damages or expenses are uncertain, and to be ascertained, the court ifself may proceed directly to assess them. ( The Lively, 1 Gallis, 315.) But the usual practice is, to refer it to commissioners to hear the parties, examine their statements and accounts, and to report to the court in detail, such allowance as they think equitably or legally due to the parties. Accompanying the report, the reasons of the commissioners for the allowance or disallowance of any particular item are usually given; and the report, when returned to the court, is heard upon exceptions by the parties aubstantially, though not tormally, as in a suit in chancery; for the prize court almost always proceeds as in summary  suits, and not as in plenary suits, in the civil law. \nWhen restitution is decreed, if the property remains specifically in the custody of the court, a warrant issues for the delivery to the claimant; and in such case, unless it is otherwise ordered by the court, the expenses of the delivery are to be borne by the captors. (The Rendsborg, 6 Rob. 142.) If the proceeds of the property are in court, an order for delivery is usually made by the court; and after a decree of restitution, the  captors have no right to arrest the proceeds in the registry of the court by a caveat; that can only be done by an application to the court itself. (The Fortuna, 4 Rob. 278.) If the proceeds are in the hands of the captors or their agents, a monition, and, if necessary, an attachment, issues to them to bring in the proceeds. But where the captors have not conducted unfairly, on restitution decreed, they will not be held answerable for more than the proceeds, although the sale made was less than the original value of the property. (The Two Susannahs, 2 Rob. 152.) The property upon a decree of restitution may be delivered to the master as agent of the shipper, for in such kcase the master  is the agent of the shipper, and is answerable to him. (Sir W. Scott and Sir J. Nicholl's letter to Mr. Jay, ubi sup a.) But in such a case neither the master nor any other prize agent can claim the property against his principal, unless so far as to cover his expenses; and the court will thus far protect his rights; but when his expenses and his liens on the property are discharged, the court will deliver it directly to the principal upon his own application. (The Franklin, 4 Rob. 404. The St. Lawrence, 2 Gallis. 19.) After a decree for restitution of partnership property to a foreign house in solidum, the court will not sever the property merely because one partner is a bankrupt here; but if the assignees had put in a claim for this purpose before a decree, it would be otherwise.(The Jefferson, 1 Rob. 325.) \nWhere damages are decreed, the decree is either against the parties by name, or by a description of their relation to the ship. Where a decree is against the owners of a privateer generally, a monition issues against them personally, to pay the damages assessed; and it may also issue against the sureties to the bond given on taking out the commission. In a court of the law  of nations, a person may be considered as a part owner, though his name has not been inserted in the bill of sale, or ship's register; and the representatives of a person so deemed a part owner, is responsible for costs and damages decreed against the owners generally, though the party of whom he is the representative was not the actual wrong-doer. (The Nostra Signora de los Dolores, 1 Dodson, 290.) And, as has been already  stated, a part owner is not exempted from being a party to a suit for the proceeds, by having a release from the claimant for his share. (The Karasan, 5 Rob. 291.) \nIn respect to cases of condemnation. Where an interlocutory decree of condemnation passes in favour of a privateer, it seems to be usual in England, to deliver that decree with a proper commission to the master of the privateer, to make sale of the prize, and to return an account into court. (Semble, The Venus, 6 Rob. 235.) But in the United States, all sales of prizes, before, as well as after condemnation, are made by the marshal; and in respect to sales after condemnation, this practice is farther enforced by the statute of January 27th, 1813, ch. 155. (new edit. ch. 478.) \nIt has been  already stated, that no right vests in the captors until after a final sentence of condemnation, and that the right to decide who are the captors entitled to distribution, belongs exclusively to the prize court, and cannot be entertained in a court of common law. ( Duckworth v. Tucker, 2 Taunt. 7. Home v. Camden, 2 H Bl. 533.) When the case is pronounced to be a case of condemnation, the next question therefore is, to whom it is to be condemned. This generally depends upon the question, whether the capturing ship be a commissioned or non-commissioned ship; and, if the former, whether a public or private armed vessel; and, in each of these cases, questions as to the rights of asserted joint captors may also arise before the court. Captures or seizures may also take place in port; or be made on land by conjunct land and naval forces; and in these cases questions may arise as to the right of the army and navy to share in the prizes or booty. \nIt is an elementary principle of prize law, that all rights of prize belong originally to the government; (The Melomasne, 4 Rob. 41.) and the beneficial interests derived to others can proceed only from the grant of the government; and therefore  all captures wherever made enure to the use of the government, unless they have been granted away. (The Elsebe, 5 Rob. 173. Sterling v. Vaughan, 11 East, 619. The Maria Francaise, 6 Rob. 282. The Joseph, 1 Gallis. 454.) In cases of public armed ships, duly commissioned for the capture, the condemnation  is always to the government, but the proceeds are to be distributed according to the act of the 23d April, 1800, ch. 33. s. 5 and 6. In cases of privateers duly commissioned for the capture, condemnation is, by the prize act of the 26th of June, 1812, ch. 107. to the owners, officers, and crew of the privateer, and the proceeds are to be distributed according to the regulations of the same statute. But captors, even though duly commissioned, may forfeit their rights of prize by misconduct; and this, independent of any statuteable provision, by the old established law of the admiralty. (La Reine des Anges, Stewart, 9. The Cossack, Stewart, 513. 517. The Herkimer, Stewart, 128. S.C. 2 Hall's Am. Law Journ. 133. The Clarissa, cited in Stewart, 144. and 2 Hall's Am. Law Journ. 145.) And an obstinate neglect or refusal to comply with the instructions of the government,  or the regulations of the prize act, have been held sufficient to authorize an infliction of the forfeiture; and, in such case, the prize is condemned to the government. ( Ib. The Bothnea and Janstoff, 2 Gallis. 78. 92.) So, the unlawful rescue of the prize by the captors from the custody of the court. (The Cossack, Stewart 513.) And where the claimant has not affected his property with a hostile character, as by a trade with the enemy, &c; but has been engaged in some other traffick, contravening the municipal law of his own country, so that he cannot entitle himself to a restitution of the property, it will be condemned to the government, and not to the captors. (The Walsingham Packet, 2 Rob. 77. The Etrusco, 4 Rob. 262 note. The Venus, 8 Cranch, 277. 287.) \nIn cases of non commissioned ships, and ships commissioned against one enemy, having no commission against another whose property is captured, the captors are not entitled to any share in the prize, and the property is to be condemned to the government, or to its special grantee, if any such exist. Bynkershoeck, indeed, contends, that if a non-commissioned ship is attacked, and captures the assailant in her own defence, the  officers and crew are solely entitled to the prize; and this doctrine seems also to be supported by Grotius. (Bynk. Q J. Pub. lib. 1. ch. 20. Du Ponceau's ed. 155. to 161. Grotius de J. B. et P. lib. 3. ch. 6. s. 10.) However, the general prize law of  France, Great Britain, and the United States, is as has been above stated. (Du Ponceau's Bynk. p. 162 note (d). 1 Valin, Sur l'Ord. tom. 1. p. 79. The Haase, 1 Rob. 286. The Rebeccah, 1 Rob. 227. The Amor Parentum, 1 Rob. 303. The Twee Gessuster, 2 Rob. 284. note (a). The Melomane, 5 Rob. 41. The Joseph, 1 Gallis. 545.) If at the time of a capture by a letter of marque, the master of the capturing vessel be not on board, the capture is considered as made without a commission, and it enures to the government, or its special grantee. (The Charlotte, 5 Rob. 280.) And if a capture be made by a cutter fitted out by a captain of a man of war as a tender, and manned from his ship, but without any authority or commission, it is deemed to be made by a non-commissioned vessel, and the capture will not enure to the benefit of the man of war. It would be otherwise if the tender were attached to the ship by public authority; for  then the ship would share. (The Melomane, 5 Rob. 41. The Charlette, 5 Rob. 280. Capture of Curracoa, 4 Rob. 282. note (a). The Dos Hermans, ante, 76.) And if persons in the navy land from their ships and man a fort, and thereby compel a ship to strike as prize, it is considered as a capture made at sea by a force upon land, which is a non-commissioned capture. (The Rebeccah, 1 Rob. 227.) But it would be otherwise if the place on shore were a resort for naval purposes by persons in the navy only, for then it may be deemed a stationary tender, rather attached to, and dependent upon, the vessels, than having the vessels attached to, and dependent upon, it. (Ib.) If a foreign cartel ship be engaged in trade, it is contrary to the duties of the ship, and the goods will be condemned to the government.(La Rosine, 2 Rob. 372.) And the cartel ship also, if belonging to our own citizens, will, if the trading has been very gross, be condemned also. (The Venus, 4 Rob. 355.) \nIn England, by very ancient grants from the crown, the lord high admiral has the benefit of all captures made at sea by non-commissioned vessels, and also of all captures by whomsoever made, of all ships and goods coming  or already come into ports, creeks or roads of England and Ireland, by stress of weather or other accident, or by mistake of port, or by ignorance, not knowing  of the war; and also of all derelicts. But the crown has still reserved to itself all such ships and goods as shall be seized in port before any declaration of war, or reprisals; and also all such as shall voluntarily come in, upon revolt from the enemy, and as shall be driven or forced into port by the king's men of war. (The Rebeccah, 1 Rob. 227. and 230. note (a). The Gertruyda, 2 Rob. 211. The Melomane, 5 Rob. 22. The Maria Francoise, 6 Rob. 282. The Joseph, 1 Gallis. 545.) The office of lord high admiral has for more than a century past been put in commission. But as the office is still considered to have a legal existence, though now residing in the person of the king, the rights and perquisites of that office are still distinguished as they were anciently, and are ascertained by an observance of the ancient rules, with the same exactness as if the proceeds were carried in the ancient and distinct course. (The Gertruyda, 2 Rob. 211. The Maria Francoise, 6 Rob. 282.) Hence arises the well-known distinction  of condemnation to the king jure coronae, and to the king in his office of admiralty, as droits of admiralty; the former applying in all cases where the crown is still entitled to the prize property, in virtue of its sovereignty and inherent prerogatives; the latter applying to all cases where the same belongs to the office of lord high admiral. \nIn the United States, strictly speaking, there are no droits of admiralty; for all prizes, to which no persons can entitle themselves by a public or private commission of war, are condemnable to the government itself in its sovereign capacity. ( The Joseph, 1 Gallis. 545.) But the phrase, droits of admiralty, is often used in legal adjudications in the United States, as equivalent to condemnations to the United States, in virtue of their general sovereignty and prerogative, as enforced in the courts of admiralty. \nBut although non-commissioned persons cannot, by making a capture, entitle themselves to the benefits of prize, yet where their conduct has been fair in all cases of condemnations as droits of admiralty, the prize court will, in its discretion, award them a recompense; and even in some cases will award them the whole value of the  prize, where there has been great personal gallantry and merit. (The Haase, 1 Rob. 286. The  Amor Parentum, 1 Rob. 303.) It is not necessary to enumerate at large the various cases in which property is deemed a droit of admiralty, or a prize to the government jure coronae. The preceding authorities will be found to contain almost all the learning on the subject. \nIt being ascertained who are the captors, and that they are duly commissioned, the next subject is, the distribution of the prize proceeds; and this is regularly to be done by the prize court having possession of the cause. ( The St. Lawrence, 2 Gallis. 19.) Regularly, there should be a decree of distribution; and neither any officer of the court, nor any prize agent, having prize proceeds in his hands, can be safe in distributing them without a decree to this effect. ( Kean v. The Brig Gloucester, 2 Dall 36. Penhallow v. Doane, 3 Dall. 54. The Herkimer, Stewart, 128. S.C., 2 Hall's Am. Law Journ. 133.) And the prize court have a most unquestionable and exclusive jurisdiction to decree a distribution, either upon its own motion, or upon the application of the parties interested. ( Kean v. The Brig Gloucester, 2  Dall. 36. Bingham v. Cabot, 3 Dall. 19. Home v. Camden, 1 H. Bl. 476. 524. S.C., 2 H. Bl. 633. 4 T. Rep 382. Duckworth v. Tucker, 2 Taunt. 7.) Nor can any person claim a share in a prize whose claim has not been admitted and supported in the prize court. ( Duckworth v. Tucker, 2 Taunt 9.) \nIn respect to public ships, the distribution is to be made according to the act of congress of April 23d, 1800. ch. 33 s. 5. and s. 6. Besides the officers and crew of the capturing ship, the commander of the fleet or squadron is entitled to one twentieth, which is called the flag twentieth. In England, the commander of the fleet or squadron is entitled to a flag eighth. Many cases have arisen in England as to the circumstances under which the commander is or is not entitled to share. These cases are collected in a recent decision in our own courts, to which the reader is referred. ( Decatur v. Chew, 1 Gallis. 506.) And to the authorities there collected may be added the  following. (The Diomede, 1 Acton, 69. 239. Gardner v. Lyne, 13 East, 674. Drury v. Gardner, 2 Maule & Selwyn, 150. Duncan v. Mitchell 4 Maule & Selwyn, 105.) Upon the construction of our own act, it has been held,  that the commander of a squadron, to whose command a ship of war is attached, and under whose orders she sails, is entitled to the flag twentieth of all prizes made by such ship, although the other part of such squadron may never have sailed on the cruise, in consequence of a blockade by a superior force; and that to deprive such a commander of his flag twentieth on account of his having left his station under the act, it is indispensable that some local limits should have been assigned to him. ( Decatur v. Chew, 1 Gallis. 506.) And it seems that a person acting by regular authority as commander of a ship pro tempore, though not commissioned as such, is entitled to the commander's share of all prizes taken. (Pill v. Taylor, 11 East, 414.) And the captain of a ship, actually on board at the time of a capture, is entitled to prize money, though under arrest at the time, and though another officer had been sent on board to command the ship. (Lumby v. Sutton, 8 T.R. 224.) But to entitle a person to share as an officer of the ship under the prize act, he should not only be on board, but also an officer of, and attached to the ship, and not a mere passenger. (The Nostra Signora del Carmen,  6 Rob. 302. See Wemys v. Linzee, Doug 324. Lumley v. Sutton, 8 T.R 224.) But soldiers who are on board a public ship are, under the English prize act, entitled to share, although they are invalided, and returning home in the capturing ship. (The Alert, 1 Dodson, 236.) And even passengers, under the expression in our prize act, as well as the English prize act, are entitled to share in the lowest class of distribution, as \"persons doing duty on board.\" (The Alert, 1 Dodson, 236. Wemys v. Linzee, Doug. 324.) \nBeside the prize proceeds, by the act of April 23d, 1800, ch. 33. s. 7., a bounty is given of 20 dollars for each person on board any ship of an enemy at the commencement of an action, which shall be sunk or destroyed by any ship of the United States of equal or inferior force, to be divided among the officers and crew as prize money. No legal adjudications have as yet taken place on this clause of the act. But under  the British act giving this bounty, or head money, as it is called, it has been decided, that head money is not due when the captured ship was not a duly commissioned ship of war; (Several Dutch Schuyts, 6 Rob. 48.) that constructive joint captors are  not entitled to head money; (L'Alerte, 6 Rob. 238.) that it is not due for British prisoners on board of the captured ships; (The San Joseph, 6 Rob. 331.;) but is due for all the crew on board at the time of the attack, although some afterwards escape. (The Babillion, Edw. 39.) Head money is also due, whether the surrender has been produced by actual combat or not; but it is never granted unless the act of capture or of destruction is consummated.(La Clorinde, 1 Dodson, 436. L'Elise, 1 Dodson, 442.) The military character of a hostile vessel is not to lost by capture and recapture as to extinguish the right to head money. (The Matilda, 1 Dodson, 367.) \nIn respect to privateers, the prize act of June 26th, 1812, ch. 107. s. 4., gives the whole proceeds, after condemnation, and deducting duties and other public charges, to the captors, according to any written agreement among them; and if there be no written agreement, then one moiety to the owners, and the other moiety to the crew, to be distributed as nearly as may be among the officers and crew as in cases of public ships. A mariner who has engaged for the cruise, but is by sickness and other inevitable casualty prevented from  doing duty on the cruise, is entitled to share; but it would be otherwise if the disability occurred during the cruise. ( Ex parte Giddings, 2 Gallis. 56.) And if one of the crew be illegally turned on shore during the cruise, he is entitled to share in all the prizes made during the cruise. ( Kean v. The Brig Gloucester, 2 Dall. 36.) And the persons of the crew who are put on board of prizes are entitled to share in all subsequent prizes made by the privateer; and so in the converse case, the privateer will share in the prizes made by any prize vessel after capture. (The Frederick and Mary Ann, 6 Rob. 213. The Brutus, 2 Gallis.) Agreements between the owners and officers of two privateers to share in all prizes, are valid; but the master and officers have no authority to make such an agreement without the consent of the owners.(Bynk Q.J. Pub. lib. 1. ch. 18. Du Ponceau's ed. p. 139. 141.) \n When a distribution has been decreed, it often becomes necessary, in order to perfect the decree of the court, where the proceeds are in the hands of prize agents, or of officers of the court, to institute a suit to compel the proper parties to come in and account for the proceeds, and  make due distribution. And for this purpose a suit may be maintained in the prize court by any party interested, or by any representative of the party, or by any assignee duly entitled. ( The St. Lawrence, 2 Gallis. 19. The Brutus, Ib.) Where the cause is in possession of an appellate court, the application may be made there, by a supplementary intervention, or petition; or it may be made by a direct original suit in personam, brought in the district court. ( Ib. Home v. Camden, 1 H. Bl. 474. 524. S.C., 2 H. Bl. 533. Willis v. Commissioners, &c. 4 T.R.S.C., 5 East, 22. The Noysomhed, 7 Ves. 593. Smart v. Wolff, 3 T.R. 323. Bingham v. Cabot, 3 Dall. 19. Kean v. Brig Gloucester, 2 Dall. 36. The Pomona, 1 Dodson, 25. The Herkimer, Stewart, 128. S.C., 2 Hall's Am. Law Journ. 133.) And it is a general principle, that the power of the prize court subsists after a general adjudication to compel captors and other persons having proceeds of prize in their hands, to bring the same into court, until all claims respecting the prize are definitively settled. (Ib.) And the remedy is not confined to the stipulation taken in the cause; but the prize proceeds will be followed, in whose hands  soever they may be, unless they have been purchased bona fide, and without notice of the claim. (Per Buller, J., 3 T.R. 323. Per Grose, J., 5 East, 22. The Pomona, 1 Dodson, 25.) This subject, indeed, has been already treated of in an early part of the present note, when we were considering the subject of prize jurisdiction; and to that part the reader is respectfully referred for farther information. A few additional particulars respecting prize agents, &c. may, however, not be without use. \nIt is no discharge of a prize agent, that he has paid over to his principal the prize proceeds, after full notice of a libel pending for restitution of the property; ( Hill v. Ross, 3 Dall. 331.;) or to a marshal, that he has distributed prize proceeds pending an appeal, or where an appeal is wrongfully denied. ( Penhallow v. Doane, 3 Dall. 54.) But an agent is only liable for the prize proceeds which have come to his own hands, and not for the proceeds which have come to the hands of his co agents. ( Penhallow v. Doane, 3 Dall. 54.) \nWhere the prize court has decreed distribution, and allotted the shares, and required the prize agent to make payment of the proceeds accordingly, if he refuses  to obey the order, the court may proceeed in personam; ( Per Lord Loughborough, Home v. Camden, 1 H. Bl. 474. 524;) and in such case it will decree interest to be paid by the agent. And, in general, the prize court may compel prize agents or others, having prize proceeds in their hands, to pay interest on the proceeds, where a proper case is laid before it; for such proceeding is mere incident to the prize jurisdiction. (The Louis, 5 Rob. 46. Willis v. Commissioners, &c., 5 East, 22. The Pomona, 1 Dodson, 25.) And it is no objection that there has been a previous decree for interest against the captors personally. (The Polly, 5 Rob. 147. note. Willis v. Commissioners, &c., 5 East, 22.) Interest is not usually allowed against a prize agent, unless it has been actually made by him, or there has been an unjustifiable delay in payment. But it seems that a prize agent has no right to detain property condemned, and in his hands for distribution, to answer demands arising, or which may arise, against the ship for other unjustifiable captures. (The Printz Henrick Von Preussen, 6 Rob. 95.) And interest is not usually allowed against a commissioner for appraisement and sale, or a marshal  after sale, unless in cases of a fraudulent detainer or gross delay. (The Exeter, 1 Rob. 173. The Princessa, 3 Rob. 31. Willis v. Commissioners, &c., 5 East, 22.) \nThis note must now be brought to a conciusion, although some of the topics discussed are far from being exhausted. To some, perhaps, an apology may be necessary for the length to which it has already extended. When, however, it is considered that no treatise exists in print, containing even a summary view of prize practice, any attempt, however, humble, to collect and arrange what is so little methodized, and so little known, may be entitled to indulgence, or, at least, escape the severity of criticism. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the court, and after stating the facts, proceeded as follows: \nA preliminary objection has been taken in the argument at bar to the regularity of the proceedings in this cause, and it is urged, with great earnestness and force, that the father proof was not admissible except under an explicit order of the court for this purpose; and that the conduct of the master and supercargo in the suppression of the documents of the cargo, and in prevaricating in their examination, has  justly forfeited the claim which the owners might otherwise have to introduce the farther proof. \nThe proceedings in the district court were certainly very irregular; and this court cannot but regret that so many deviations from the correct prize practice should have occurred at so late a period of the war. The ship's papers ought to have been brought into court, and verified, on oath, by the captors, and the examinations of the captured crew ought to have been taken upon the standing interrogatories, and not viva voce in open court. Nor should the captured crew have been permitted to be re-examined in court. They  are bound to declare the whole truth upon their first examination; and if they then fraudulently suppress any material facts, they ought not to be indulged with an opportunity to disclose what they please, or to give colour to their former statements after counsel has been taken, and they know the pressure of the cause. Public policy and justice equally point out the necessity of an inflexible adherence to this rule. \nIt is upon the ship's papers, and the examinations thus taken in preparatory, that the cause ought, in the first instance, to be heard in the district court; and upon such hearing it is to judge whether the cause be of such doubt as to require farther proof; and if so, whether the claimant has entitled himself to the benefit of introducing it. If the court should deny such order when it ought to be granted, or allow it when it ought to be denied, and the objection be taken by the party and appear upon the record, the appellate court can administer the proper relief.  If, however, evidence in the nature of farther proof be introduced, and no formal order or objection appear on the record, it must be presumed to have been done by consent of parties, and the  irregularity is completely waived. In the present case, no exception was taken to the proceedings or evidence in the district court; and we should not, therefore, incline to reject the frather proof, even  if we were of opinion that it ought not, in structness, to have been admitted. \nThe objection, which is urged against the admission of the farther proof would, under other circumstances, deserve great consideration. Concealment, or even spoliation of papers, is not of itself a sufficient ground for condemnation in a prize court. It is, undoubtedly, a very awakening circumstance, calculated to excite the vigilance, and justify the suspicions of the court. But it is a circumstance open to explanation, for it may have arisen from accident, necessity, or superior force; and if the party in the first instance fairly and frankly explains it to the satisfaction of the court, it deprives him of no right to which he is otherwise entitled. If, on the other hand, the spoliation be unexplained, or the explanation appear weak and futile; if the cause labour under heavy suspicions, or there be a vehement presumption of bad faith, or gross prevarication, it is made the ground of  a denial of farther proof, and condemnation ensues from defects in the evidence which the party is not permitted to supply. \nIn the present case there can be no doubt that there has been a gross prevarication and suppression  of testimony by the master and supercargo. Nothing can be more loose and unsatisfactory than their first examinations; and the new and circumstantial details given upon their second examinations are inconsistent with the notion of perfect good faith in the first instance. The excuse, too, for throwing the packet of papers overboard is certainly not easily to be credited; for the ship's documents which still remained on board would, in the view of a Carthagenian privateer, have completely established a Spanish character. It is not, indeed, very easy to assign an adequate motive for the destruction of the papers. If the ship was Spanish, it was, as to American cruisers, immaterial to whom the cargo belonged; for, by our treaty with Spain, (treaty of 1795, art. 15.,) declaring that free ships shall make free goods, the property of an enemy on board of such a shap is just as must protected from capture as if it were neutral.The utmost, therefore, that  this extraordinary conduct can justify on the part of the court is to institute a more rigid scrutiny into the character of the ship itself. If her national Spanish character be satisfactorily made out in evidence, the spoliation of the documentary proofs of the cargo will present no insuperable bar to a restitution. Very different would be the conclusion, if the case stood upon the ground of the law of nations, unaffected by the stipulations of a treaty. 5 \n  Upon a full examination of the evidence we are of opinion that the Spanish character of the ship is entirely sustained, and, therefore, the claimants are entitled to a decree of restitution. Two objections have been urged against this conclusion: 1. That the ship is not documented according to the requisitions of the treaty with Spain, and, therefore, not within the protection of that treaty. 2.That it does not  appear that Mr. Hibberson (who is a native of Great Britain) has ever been naturalized in the dominions og Spain, and therefore he is not a subject of Spain, within the meaning of the treaty. \nAs to the first objection, it is certainly true that the ship was not furnished with such a sea letter, or passport, or such certificates as are described in the 17th article of the treaty. But the want of such documents is no substantive ground for condemnation. It only justifies the capture, and authorizes the captors to send the ship into a proper port for adjudication. The treaty expressly declares, that when ships shall be found without such requisites, they may be sent into port, and adjudged by the competent tribunal; and \"that all the circumstances  of this omission having been well examined, they shall be adjudged to be legal prizes, unless they shall give legal satisfaction of their property by testimony entirely equivalent.\" It is apparent, from  this language, that the omission to comply with the requisites of the treaty was not intended to be fatal to the property. And, certainly, by the general law of nations, as well as by the particular stipulations of the  treaty, the parties would be at liberty to give farther explanations of their conduct, and to make other proofs of their property. If, indeed, upon the original evidence, the cause should appeal extremely doubtful or suspicious, and farther proof should be necessary, the grant or denial of it would rest upon the same general principles which govern the discretion of prize courts in other cases. But in the present case, there is no necessity for such farther proof, since the documents and testimony now before us, are, in our opinion, as to the proprietary interest in the ship, entirely equivalent to the passports and sea-letter required by the treaty. \nAs to the second objection, it assumes, as its basis, that the term \"subjects,\" as used in  the treaty, applies only to persons who, by birth or naturalization, owe a permanent allegiance to the Spanish government. It is, in our opinion, very clear that such is not the true interpretation of the language. The provisions of the treaty are manifestly designed to give reciprocal and co-extensive privileges to both countries; and to effectuate this object, the term \"subjects,\" when applied to persons owning allegiance to Spain, must be construed in the same sense as the term \"citizens,\" or \"inhabitants,\" when applied to persons owing allegiance to the United States. What demonstrates the entire propriety of this construction is, that in the 18th article of the  treaty, the terms \"subjects,\" \"people,\" and \"inhabitants,\" are indiscriminately used as synonymous, to designate the same persons in both countries, and in cases obviously within the scope of the preceding articles. Indeed, in the language of the law of nations, which is always to be consulted in the interpretation of treaties, a person domiciled in a country, and enjoying the protection of its sovereign, is deemed a subject of that country. He owes allegiance to the country, while he resides in it; temporary,  indeed, if he had not, by birth or naturalization, contracted a permanent allegiance; but so fixed that, as to all other nations, he follows the character of that country, in war as well as in peace. The mischiefs of a different construction would be very great; for it might then be contended that ships owned by Spanish subjects could be protected by the treaty, although they were domiciled in a foreign country, with which we were at war; and yet the law of nations would, in such a predicament, pronounce them enemies.We should, therefore, have no hesitation in over-ruling this objection, even if it were proved that Mr. Hibberson was not a naturalized subject of Spain; but we think the presumption very strong that he had become, in the strictest sense of the words, a Spanish subject. \nThe Spanish character of the ship being ascertained, it is unnecessary to inquire into the proprietary interest of the cargo, unless so far as to ascertain that it does not belong to citizens of the United States; for the treaty would certainly not protect the property of American citizens trading with the enemy  in Spanish ships. There is no presumption, from the evidence, that any American  interest is concerned in the shipment. The whole property belonged either to British subjects or to the claimants, and we think the proofs in the cause very strongly establish it to belong as claimed. \nThe decree of the circuit court is affirmed with costs. \nDecree affirmed. 6 \n \n \n\n ", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the court. \nThis is a bill in equity brought by the appellees, who are the heirs at law and devisees of Henry Miller, deceased, to be relieved against the claims of the appellants under prior patents to a tract of land, to which the appellees assert a prior equitable title  under a prior entry by their ancestor. \n On the 11th of December, 1782, the said Henry Miller made the following entry: \"Henry Miller enters 1,687 acres of land on a Treasury Warrant, No. 6,168, adjoining Chapman Aston on the west side, and Israel Christian on the north, beginning at Christian's northwest corner, running thence west 200 poles, thence north parallel with Aston's line until an east course to Aston's line will include the quantity.\" Henry Miller died in 1796, and in 1804 this entry was surveyed, and after that time a patent issued thereupon in due from of law. At the time of the death of Miller, and also of the survey of the entry, several of the plaintiffs were under age, and some of them at the commencement of the suit continued to be under age. \nThere was not, on the 11th of December, 1782, any entry upon record in the entry taker's books in the name of Chapman Aston. But there were several in the name of Chapman Austin, and several in the name of Isaac Christian. One in the name of Chapman Austin is dated 2lth of June, 1780, for 4,000 acres of land lying on Red River, and another in the name of Israel Christian, dated the 5th of December, 1782, for 2,000  acres of land lying on the same river; but there is no proof in the cause that these entries are in the neighbourhood of each other. The entries relied on by the complainants as those referred to in Miller's entry are as follows: \"On the 2lth of June, 1780, Chapman Austin enters 4,000 acres on the dividing ridge between Hinkston's fork and the south fork of Licking, beginning two miles north of Harrod's Lick at a large Buffalo road, and  running about a north course for quantity.\" \"On the 29th of November, 1782, Israel Christian, assignee of Archibald Thompson, enters 200 acres of land upon a military warrant, No. 193, adjoining an entry of Chapman Austin, at his southwest corner on the dividing ridge between Hinkston's and Stoner's fork, two miles north of Harrod's Lick, running thence west 200 poles, thence north until an east course to strike Austin's line will include the quantity.\" \nThe appellants having the elder grant, the first question arising in the cause is as to the validity of the entry of Miller. It is, in the first place, contended, that it is void, because it contains no sufficient description of the position  of the land, and no specific reference  to any other definite entries to make it certain. It is, in the next place, contended, that it is void, because Chapman Austin's entry, on which it is dependent, is void for uncertainty. \nThere is certainly a mistake in Miller's entry, as to the name of Aston, and the defect cannot be cured by considering Aston and Austin as one name, for they are not of the same sound. But an error in description is not fatal in an entry, if it does not mislead a subsequent locator. Upon searching the entry book no such name could be found as Chapman Aston; and if Miller's entry had only called to adjoin Aston, there would have been great force in the objection. But it calls also to adjoin Israel Christian's entry on the north, and to begin at his northwest corner. A subsequent locator would, therefore, necessarily be led to examine that entry. On such examination he  could not fail to observe that it calls to adjoin an entry of Chapman Austin, at his southwest corner, on the dividing ridge between Hinkston's and Stoner's fork, two miles north of Harrod's lick. This specific description would clearly point out the particular entry to which it refers. It could be no other than the  entry of Chapman Austin for 4,000 acres, already stated; for that calls for the same ridge, and to begin at the same distance from Harrod's lick. Two entries would thus be found adjoining each other, which would, as to position and course, perfectly satisfy the calls of Miller's entry. No other entries could be found which would present the same coincidences. A subsequent locator could not, therefore, doubt that these were the entries really referred to in Miller's entry, and that Chapman Aston was a misnomer of Chapman Austin. The entry, then, of Miller, contains, in itself, a sufficient certainty of description, if the entries to which it refers are valid; for id certum est quod certum reddi potest. \nAs no objection is alleged against Christian's entry, all consideration of it may at once be dismissed. The validity of the entry of Chapman Austin remains to be examined. It calls to lie \"on the dividing ridge between Hinkston's fork and the south fork of licking, beginning two miles north of Harrod's lick at a large Buffalo road, and running about north for quantity.\" It is conceded that Harrod's lick was, at the time of the entry, a place of general notoriety; and it is proved  that there was no Buffalo road two miles north of that lick. The nearest Buffalo road  was, at its nearest approach, more than two miles from the same lick, and crossed the ridge at more than three miles distance from it; and a line drawn due north from the lick would not strike that road until after it had crossed the ridge at about four miles distance from the lick. The calls, then, in the entry cannot be completely satisfied in the terms in which they are expressed. The general descriptive call to lie on the dividing ridge, as well as the call for distance, must be rejected, if a buffalo road about four miles north of the lick were to be deemed a sufficient compliance with the call for a large buffalo road; for the whole land would then lie, not on, but beyond the ridge. Such a construction of the entry would be unreasonable. Is, then, the entry void for repugnancy or uncertainty, or can it be sustained by rejecting the call for a large buffalo road? It is a general rule that when all the calls of an entry cannot be complied with, because some are vague, or repugnant, the latter may be rejected or controlled by other material calls, which are consistent and certain.  On this account, course and distance yield to known, visible, and definite objects. But course and distance do not yield unless to calls more material and equally certain. The locative calls in this entry are for a point two miles north of Harrod's Lick, and for a large buffalo road. If we reject the first call, the entry is void for uncertainty, for there is no definite starting point. If we reject the last call, the other is perfectly certain. The general leaning of courts has been to support entries, if it could be done by any reasonable construction.  The law, indeed, declares, that every entry should contain a description of the land so certain that subsequent locators might be able to ascertain it with precision, and locate the adjoining residuum. But that description is held to be sufficiently certain which, by due diligence, inquiry, and search in the neighbourhood, will enable a locator to find the land. A locator having this entry in his hands, would first proceed to Harrod's Lick, as a notorious object which was to direct all his subsequent inquiries. Upon measuring off the two miles north from the lick, he would arrive at a point clearly described in  the entry. He would find himself very near the dividing ridge between Hinkston's fork and the south fork of Licking, upon which the land is unequivocally declared to lie. But he could find no buffalo road in that direction until after he had crossed the ridge, nor could he find any such road within any reasonable distance in any other direction. Under such circumstances, it is not easy to perceive how he could be misled. Being arrived at a spot, to which he was directed by a definite locative call, which he could not mistake, and by a general call which is perfectly satisfied, he would scarcely be induced to direct it in search of another call, which was not to be found in the neighbourhood, and which, without the first, would be uncertain and indefinite. In the opnion of the court the call for a large buffalo road may be rejected, and the entry of Chapman Austin be supported by the other definite call for course and distance. In this opinion we are the more confirmed by the admission of counsel, that the same  entry has been sustained in the state courts of Kentucky. \nSupposing the entry of Chapman Austin to be good, the next inquiry is, whether it is rightly surveyed;  for if it is, then Christian's and Miller's entries are, also, rightly surveyed. It is contended that, as no base or figure is given by the entry, the land cannot be laid off in any direction; and if so, neither the survey made by order of the circuit court, nor, indeed, any other survey, can be good. But it is a settled rule, which has been repeatedly recognised by this court, that where no other figure is called for in an entry, it is to be surveyed in a square, coincident with the cardinal points, and large enough to contain the given quantity; and that  the point of beginning is to be deemed the centre of the base line of such square. In the present case, a point two miles distant from Harrod's Lick is to be taken as the centre of the base line of a square, to contain the given quantity of land. The entry calls to run about a north course for quantity; but, according to the course of decisions in Kentucky, the word, \"about,\" is to be rejected, and the land is to run a due north course, having on each side of a due north line, drawn through the centre of the base, an equal moiety. This is precisely the manner in which the survey was directed to be executed by the  court below. \nAnother objection to the title of the plaintiffs, is, that the survey on Miller's entry was not executed and returned within the time prescribed by law.  The act of 1797, taken in connexion with preceding acts, declares, that entries for land in general shall become void, if not surveyed before the first day of October, 1798; with a proviso, allowing to infants and femes covert three years after their several disabilities are removed to complete surveys on their entries. The ancestor of the plaintiffs died in 1796, and some of them then were, and still continue to be, under the disability of infancy. The present entry was not surveyed until 1804. \nIt is argued, that the proviso does not save any entries, except where all the owners are under the disability of infancy or coverture, at the time when the general limitation takes effect. And, it is likened to the case decided by this court, where a joint personal action was held not to be saved by the disability of one of the plaintiffs, from the operation of the statute of limitations. [ Marsteller v. McLean, 7 Cranch, 156.] It is admitted, that there is some analogy between the cases; but, as they do not  arise upon the same statute, a decision in the one furnishes no absolute authority to govern the other. There are, also, differences in the nature and objects of these statutes, which might well justify a different construction. The statute of limitations is emphatically termed a statute of repose; it is made for the purpose of quieting rights, and shutting out stale and fraudulent claims. It has, therefore, always been construed strictly against the plaintiff, and no case has been excepted from its operation, unless within the strict letter or manifest equity of some exception in the act itself. The statutes of Kentucky, allowing  further time to owners to survey their entries, is made with a different aspect. It is to save a forfeiture to the government; and acts, imposing forfeitures, are always construed strictly as against the government, and liberally as to the other parties. It is manifest that the act meant to protect the rights of infants and femes covert from forfeiture until three years after the disability should be removed. Yet if the argument at bar be correct, their rights are completely gone in all cases where they are not the sole and exclusive owners.  Such a construction would materially impair the apparent beneficial intention of the legislature. If, on the other hand, they are authorized in such cases to have their entries surveyed and returned, so as to protect their own joint interest, no reason is perceived why such survey may not be justly held to enure to the benefit of all the other joint owners. The courts of Kentucky have already decided this question; and held, that if any one joint owner be under disability, it brings the entry within the saving of the proviso, as to all the other owners. [Kennedy v. Bruice, 2 Bibb's Rep. 371.] This is a decision upon a local law, which forms a rule of property; and this court has always held in the highest respect, decisions of state courts on such subjects. We are satisfied it is a reasonable interpretation of the statute, and upon principle or authority see no ground for drawing it into doubt. \nThe title of the plaintiffs being established, it is next to be compared with the titles of the respondents. It is conceded on all sides, that none of the titles of the latter are of superior dignity to that of  the plaintiffs, except the title claimed under an entry of Thomas  Swearingen, on a military warrant. This entry is as follows: \"On the 26th of April, 1780, Thomas Swearingen enters 1,000 acres in Kentucky, by virtue of a military warrant, for military services performed by him last war, on a spring branch about six miles a northeastwardly course from Stoner's spring, to include a tree, marked A.B.C.S.T. at the head of said spring.\" Stoner's spring is admitted to be a place of notoriety; but the marked tree and spring branch, instead of being at the distance of six miles, is found at the distance of four miles and a half, and in a course not northeasterly. The call for a spring branch generally, or for a spring branch, to include a marked tree at the head of the spring, is not a sufficiently specific locative call. It requires farther certainty to point out its position; and this is attempted to be given in the present entry by the call for course and distance. The course is not exact, and the distance called for is a mile and a half from the place where the object is to be found. It is the opinion of this court, that it would be unreasonable to require a subsequent locator to search for the object at so great a distance from the point laid down  in the entry; and the entry must, therefore, be pronounced void for uncertainty. \nDissent by:", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the court. \nThis is a writ of right for the recovery of lands brought in the form prescribed by the statute of Kentucky, in which the demandant described his land by metes and bounds, and counted against the tenants jointly. To this count the tenants demurred, and upon a joinder, the demurrer was overruled by the court, and upon motion of the tenants, leave was given to them to withdraw the demurrer, and plead anew. A motion was then made to the court, by the tenants, to compel the demandant to count against them severally, upon  the ground that they held separate and distinct tenement, parcels of the land demanded, which motion was overruled by the court. And, in our judgment, this was very properly done, for the matter was pleadable in abatement only; and by pleading in bar, the tenants admitted their joint seision of the freehold, and lost the opportunity to plead a several tenancy. Assuming that at common law, a writ of right patent may be brought against divers tenants, who hold their lands severally, and that the demandant may count against them severally, it does not follow, that this doctrine applies to a writ of right close; but, if it did, and the demandant should, in such case, count against the tenants jointly, and the tenants should plead to the merits, it would, for all the purposes of the suit, be an admission of the joint tenancy. And the clause in the statute of Kentucky, requiring, that where several tenements are demanded, the contents, situation, and boundaries of each shall be inserted in the  count, has not affected this rule. It supposes that the several tenements are held by the same tenants. The tenants next moved the  court to allow them severally to plead,  in addition to the mise, or general issue, that neither the plaintiff, nor his ancestor, nor any other under or from whom he derived his title to the demanded premises, were ever actually seised or possessed thereof, or of any part thereof; which motion the court refused to grant. And, in our judgment, this was very properly done. In the first place, this plea was clearly bad, as amounting to the general issue, and, indeed, for other manifest defects: In tlfe next place, it was an application to the mere discretion of the court, which is not a subject of examination upon a writ of error. The court then permitted the tenants to sever in pleading, and to plead the mise severally as to several tenements held by them, parcel of the demanded premises, without answering or pleading any thing as to the residue. Upon the propriety of this pleading, we give no opinion, as it is not assigned for error by the demandant, and the error, if any, is in favour of the tenants. The replication prescribed by the act of Kentucky, was pleaded to the several pleas; and upon the mise so joined, the parties proceeded to trial. The court being divided upon several points made at the trial, the jury was  discharged. At a subsequent term, the tenants again moved the court for leave to withdraw the mise joined, and to plead non-tenure as to some, and several tenancy as to others, in abatement, which was refused by the court; and in our judgment, for the reasons already stated, was properly refused.  The cause was then again tried by a jury, who returned a general verdict for the demandant, which, under the direction of the court, was amended by the jury, and recorded as follows: \"The jury find that the demandant hath more mere right to hold the tenement, as he hath demanded, than the tenants, or either of them, have to hold the respective tenements set forth in their respective pleas, they being parcels of the tenement in the count mentioned.\" \nIt is objected by the tenants, that this verdict is insufficient, because it does not contain a several finding upon the several issues of the tenants, but is a joint finding against them all; and only by inference and argument a finding of the several issues for the plaintiff. This objection cannot be sustained. The verdict expressly and directly affirms the right of the demandant, and denies the right of the tenants to the land  contained in their respective pleas, the same being parcel of the land demanded. A verdict, certain to a common intent, is sufficient to sustain a judgment. At the trial, a bill of exceptions was taken. The first point in the exceptions is, the refusal of the court, upon the prayer of the counsel for the tenants, to direct the jury that the demandant was not entitled to recover in the suit, upon the proof by the tenants, that they claimed their several tenements under distinct and several titles. This refusal was perfectly correct; for the matter did not go to the merits, and could be taken advantage of only, as has been already stated, by a plea in abatement. \n The next exception is, that the court allowed a copy of the survey of the land claimed by the demandant to go in evidence to the jury, for the purpose of identifying the same. No ground for this objection has been stated; and it seems to be utterly untenable. \nAnother exception is, that the court refused to allow, as evidence to the jury, to prove that the demandant did not hold the legal title to 2,000 acres parcel of the land demanded in this suit, the copies of a certain record of a decree in chancery, in  a suit between the demandant and third persons, (with whom the tenants had no privity of title or estate,) and, also, of a deed made in pursuance of such decree, by which deed 2,000 acres of the land demanded by the writ appeared to be conveyed to third persons. this exception is not now relied on, and is certainly open to various objections. Without adverting to the objections, that neither the record nor the deed were properly authenticated, and that it was an attempt to set up an outstanding title in third persons having no privity with the tenants; it is decisive against the admission, that the 2,000 acres, or any part thereof, are not shown to be within the boundaries of the land claimed by any of the tenants, or put in issue between the parties. \nThe last exception is, that the court refused to instruct the jury, that if it should be proved that divers of the tenants had no title to certain parcels of the demanded premises, but that they claimed the same under a third person having the legal title thereof, then, that they ought to find for the said  tenants, because they had no title. This exception is, also, not relied on, and certainly could not be supported,  for it could be given in evidence only on the plea of non-tenure. \nA motion was afterwards made for a new trial, the proceedings on which, not being matters of error, need not be mentioned. \nThe only remaining objection, urged as a ground for reversal, is, that the judgment is a joint judgment against the tenants for the costs as well as the land. We are all of opinion that the judgment is right, and that the tenants can take nothing by this objection. The judgment is, therefore, affirmed with costs. \nJudgment affirmed. 1 \n \n \n\n ", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the court, and after stating the case, proceeded as follows: \n A motion has been made to dismiss the writ of error, upon the ground that there is nothing apparent upon the record which brings the case within the appellate jurisdiction of this court, under the 25th section of the judiciary act of 1789. It is conceded, on all sides, that this is entirely correct, unless the report of the judge who tried the cause, which contains a statement of the facts, is to be considered as a part of the record. And we are unanimously of opinion that it cannot be so considered. It is not like a special verdict or a statement of facts agreed to record, upon which the court is to pronounce its judgment. The judgment is rendered upon a general verdict, and the report is mere matter in pais, to regulate the discretion  of the court as to the propriety of granting relief, or sustaining a motion for a new trial. \nThe writ of error must, therefore, be dismissed. \nMr. Wheaton, for the defendant in error, moved for costs. \n[Mr. Chief Justice MARSHALL. The court does not give costs where a cause  is dismissed for want of jurisdiction.] \nWrit of error dismissed without costs. 6 \n \n\n ", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the court. \nThis is an action of debt brought against the defendant in error, as acceptor of a bill of exchange by the plaintiffs in error as endorsees. The declaration alleges that the bill was drawn, accepted, and endorsed, for value received. The only question is, whether debt lies in such a case. \nThe general principle has been very correctly stated by Lord Chief Baron Comyn, that debt lies upon every express contract to pay a sum certain, and he adds, also, that it lies though there be only an implied contract. (Com. Dig. Debt, a. 8. a. 9.) But it has been supposed that this principle does not apply to an action on a bill of exchange, even where the suit is brought  by the payee against the acceptor,  and a fortiori not, where it is brought by the endorse. It is admitted that in Hardres, 485., the court held that debt does not lie by the payee of a bill of exchange against the acceptor. The reasons given for this opinion were, first, that there is no privity of contract between the parties; and, secondly, that an acceptance is only in the nature of a collateral promise or engagement to pay the debt of another, which does not create a duty. It is very difficult to perceive how it can be correctly affirmed that there is no privity of contract between the payee and acceptor. There is, in the very nature of the engagement, a direct and immediate contract between them. The consideration may not always, although it frequently does, arise between them; but privity of contract may exist if there be an express contract, although the consideration of the contract originated aliunde. Besides, if one person deliver money to another for the use of a third person, it has been settled that such a privity exists that the latter may maintain an action of debt against the bailee. (Harris v. De Bervoir, Cro. Jac. 687.) And it is clear that an acceptance  is evidence of money had and received by the acceptor for the use of the holder. (Tatlock v. Harris, 3 T.R. 174. Vere v. Lewis, 3 T.R. 182.) It is also evidence of money paid by the holder to the use of the acceptor. (Ibid, and Bailey on Bills, 164., 3d edition.) A privity of contract, and a duty to pay, would seem, in such case, to be completely established; and wherever the common law raises a duty, debt lies.The other reason would seem not better founded. An acceptance  is not a collateral engagement to pay the debt of another: it is an absolute engagement to pay the money to the holder of the bill; and the engagements of all the other parties are merely collateral. Prima facie, every acceptance affords a presumption of funds of the drawer in the hands of the acceptor; and is, of itself, an express appropriation of those funds for the use of the holder. The case may, indeed, be otherwise; and then the acceptor, in fact, pays the debt of the drawer; but as between himself and the payee it is not a collateral, but an original and direct undertaking. The payee accepts the acceptor as his debtor, and he cannot resort  to the drawer but upon a failure of  due payment of the bill. The engagement of the drawer, therefore, may more properly be termed collateral. Yet it has been held, that debt will lie in favour of a payee against the drawer in case of non-payment by the acceptor. (Hard's case, Salk. 23. Hodges v. Steward, Skinn. 346.; and see Bishop v. Young, 2 Bos. & Pull. 78.) \nThe reasons, then, assigned for the decision in Hardres are not satisfactory; and it deserves consideration that it was made at a time when the principles respecting mercantile contracts were not generally understood. \nThe old doctrine upon this subject has been very considerably shaken in modern times. An indebitatus assumpsit will now lie in favour of the payee against the acceptor; and it is generally true that where such an action lies, debt will lie. And a still stronger case is, that an acceptance is good evidence on a count upon an insimul computassent.  ( Israel v. Douglas, 1 H. Bl. 239.,) which can only be upon the footing of a privity of contract. \nBut the most important case is that of Bishop v. Young, 2 Bos. & Pull. 78. It was there held, in opposition to what was supposed to have been the doctrine of former cases, that debt would  lie by the payee of a note against the maker, where the note was expressed to be for value received. That decision was given with measured caution, and the court expressly declined to give any opinion upon any but the case in judgment. The case in Hardres was there discussed, and although its reasoning was not impugned, an authoritative weight was not attempted to be given to it. In general, the legal predicament of the maker of a note is like that of the acceptor of a bill. Each is liable to the payee for the payment of the note or bill in the first instance; and after endorsement, each incurs the same liabilities.And if an action of debt will lie in favour of the payee of a note against the maker, it is not easy to perceive any sound principle upon which it ought to be denied against an acceptor of a bill. The acceptance of a bill is just as much an admission of a debt between the immediate parties as the drawing of a note. \nThe case has been thus far considered as if the action were brought by the payee against the acceptor. And this certainly presents the strongest view in favour of the argument. But in point of law every subsequent holder, in respect to the acceptor of  a bill, and the maker of a note, stands in the same predicament as the payee. An acceptance is as  much evidence of money had and received by the acceptor to the use of such holder, and of money paid by such holder for the use of the acceptor, as if he were the payee. (3 T.R. 172. Id. 184. Grant v. Vaughan, 3 Burr. 1515.) \nUpon the whole, we do not think that the authority in Hardres can be sustained upon principle; and we seen no inconvenience in adopting a rule more consonant to the just rights of the parties as recognised in modern times. In so doing, we apply the well-settled doctrine that debt lies in every case where the common law creates a duty for the payment of money, and in every case where there is an express contract for the payment of money. We are, therefore, of opinion, that debt lies upon a bill of exchange by an endorsee of the bill against the acceptor, when it is expressed to be for value received. The case at bar is somewhat stronger; for the declaration expressly avers that the bill was drawn, endorsed, and accepted for value received, and the demurrer admits the truth of the averment. \nThis opinion must be certified to the circuit court of the  district of Columbia. \nFrom the view which has been taken of the case it is unnecessary to consider whether the statute of Virginia applies to it or not. \nCertificate accordingly. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the court. \n The principal question is, whether, under the circumstances of this case, Laird, the original plaintiff, has a right to a transfer from the bank,  of the fifty shares of its capital stock, standing in the name of Patton, without paying the acceptance of Patton; or, in other words, whether Laird has a priority of lien upon these shares. By the 11th section of the act of incorporation, (act of 18th February, 1811, ch. 86.,) it is enacted, \"That the shares of the capital stock, at any time owned by any individual stockholder, shall be transferrable only on the books of the bank, according to such rules as may, conformably to law, be established in that behalf, by the president and directors; but all debts actually due and payable to the bank (days of grace for payment being passed) by a stockholder, requesting a transfer, must be satisfied before such transfer shall be made, unless the president and directors shall direct to the contrary.\" The certificate, issued  to Patton for the 50 shares held by him, (which is in the usual form,) declares the shares to be \"transferrable at the said bank, by the said Patton, or his attorney, on surrendering this certificate.\" No person, therefore, can acquire a legal title to any shares, except under a regular transfer, according to the rules of the bank; and if any person takes an  equitable assignment, it must be subject to the rights of the bank, under the act of incorporation, of which he is bound to take notice. The president and directors of the bank expressly deny that they have waived, or ever intended to waive, the right of the bank to the lien, for debts due to the bank, by the form of the certificate, and  that they ever directed any transfer to be made to Patton which should stipulate to the contrary. Under such circumstances, it must be held, that the shares are responsible for the debts due to the bank. \nThe next inquiry is, whether the bank has done any thing to deprive itself of the lien upon the shares for the acceptance of Patton, since the same became due, and to let in the equitable title of the plaintiff. The acceptance is not yet paid; and nothing has been done by the bank affecting its rights, unless the subsequent taking of security for the acceptance from Smith, can be construed so to do. Certainly the bank had a right to require additional security from the endorser of the acceptance; and it cannot be perceived upon what principles this can be construed an extinguishment of its lien upon the shares of the acceptor. A creditor  may lawfully take and hold several securities for the same debt from his joint debtors; and he cannot be compellable to yield up either until his debt is paid. And in this case, there is no want of equity in holding the shares of Patton, who is the immediate debtor to the bank, liable in the first instance, rather than resorting to the security of an endorser, who is only liable upon the default of the acceptor. \nThe decree of the circuit court must, therefore, be reversed, and the bill be dismissed. \nDecree accordingly. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the court. This is a writ of error to the highest court of law of the state of New-York; and the questions which are re-examinable upon the record in this  court are such only as come within the purview of the 25th section of the judiciary act of 1789, ch. 20. \nBut a preliminary question has been made, which must be discussed before proceeding to consider the merits of the cause. \nIt is contended that the record is not, and cannot be brought, before this court. \nBy the judicial system of the state of New  York, the  decisions of their supreme court are revised and corrected in a court of errors, after which the record is returned to the supreme court, where the judgment as corrected is entered, and where the record remains. In this case the writ of error was received by the court of errors, after the record had been transmitted to the supreme court whose judgment was affirmed. \nIt is contended that, the record being no longer in the court of the last resort in the state, can, by no process, be removed into this court. \nThe judiciary act allows the party who thinks himself aggrieved by the decision of any inferior court, five years, within which he may sue out his writ of error, and bring his cause into this court. The same rule applies to judgments and decrees of a state court, in cases within the jurisdiction of this court. As the constitutional jurisdiction of the courts of the union cannot be affected by any regulation which a state may make of its own judicial system, the only inquiry will be, whether the judiciary act has been so framed as to embrace this case. \nThe words of the act are, \"that a final judgment or decree in any suit in the highest court of law or  equity of a  state in which a decision could be had, where is drawn in question,\" &c. \"may be re-examined and reversed or affirmed in the supreme court of the United States upon a writ of error, the citation being signed,\" &c. The act does not prescribe the tribunal to which the writ of error shall be directed. It must be directed either to that tribunal which can execute it; to that in which the record and judgment to be examined are deposited, or to that whose judgment is to be examined, although from its structure it may have been rendered incapable of performing the act required by the writ. Since the law requires a thing to be done, and gives the writ of error, as the means by which it is to be done, without prescribing in this particular the manner in which the writ is to be used, it appears to the court to be perfectly clear that the writ must be so used as to effect the object. It may then be directed to either court in which the record and judgment on which it is to act may be found. The judgment to be examined must be that of the highest court of the state having cognizance of the case, but the record of that judgment may be brought from any court in which it may be legally deposited,  and in which it may be found by the writ. \nIn this case, the writ was directed to the court of errors, which; having parted with the record, could not execute it. It was then presented to the supreme court; but, being directed to the court of errors, could not regularly be executed by that court. In this state of things the parties consented to waive all objections  to the direction of the writ, and to consider the record as properly brought up, it, in the opinion of this court, it could be now properly brought up on a writ of error directed to the supreme court of New-York. The court being of opinion that this may be done, the case stands as if the writ of error had been properly directed. \nThe original suit was brought by the defendant in error against the plaintiffs in error for an alleged trespass for taking and carrying away, and converting to their own use, the ship American Eagle, and her appurtenances, and certain ballast and articles of provisions, &c. the property of the defendant in error. This is the substance of the declaration, although there are some differences in alleging the tort in the different counts. The original defendants pleaded, in the first  place, the general issue, not guilty, to the whole declaration; and then two special pleas. The first special plea, in substance, alleges, that the said ship was attempted to be fitted out and armed, and that the ballast and provisions were procured for the equipment of the said ship, and were put on board of the said ship as a part of her said equipment, with intent that the said ship should be employed in the service of a foreign state, to wit, of that part of the island of St, Domingo which was then under the government of Petion, to commit hostilities upon the subjects of another foreign state, with which the United States were then at peace, to wit, of that part of the island of St. Domingo which was then under the government of Christophe, contrary to the form of the statute in  such case made and provided; and that the original defendants, by virtue of the power and authority, and in pursuance of the instructions and directions of the president of the United States, seized the said ship. &c. as forfeited to the use of the United States, according to the statute aforesaid, &c. The second special plea is like the first, except that it does not state that the ship  was seized as forfeited, but alleges that the ship was taken possession of, and detained, under the instructions of the president of the United States, in order to the execution of the prohibition and penalties of the act in such case made and provided, and except that it omits the allegations under the videlicets in the first plea, specifying the foreign state by or against whom the said ship was to be employed. To these pleas there is a general demurrer, and joinder in demurrer, upon which the state court gave judgment in favour of the original plaintiff. Upon the trial of the general issue, a bill of exceptions was taken to the opinion of the court. By that bill of exceptions, among other things, it appears, that the original plaintiff, at the trial, gave in evidence, that at the time of the seizure the ship was in his actual full and peaceable possession; that the ship, upon the seizure, had been duly libelled for the alleged offence in the district court of New-York; that the original plaintiff appeared and duly claimed the said ship; and upon the trial she was duly acquitted, and ordered to be restored to the original plaintiff by the district court; and that a certificate  of reasonable cause for the seizure of the said ship had been denied. The plaintiff then gave in evidence,  that the value of the ship at the time of her seizure was 100,000 dollars; and that the said Schenck seized and took possession of the said ship by the written directions of the said Gelston; but no other proof was offered by the plaintiff, at that time, of any right or title in the said plaintiff to the said ship; and here the original plaintiff rested his cause. The original defendants then insisted before the court, that the said several matters, so produced and given in evidence on the part of the original plaintiff, were not sufficient to entitle him to a verdict, and prayed the court so  to pronounce, and to nonsuit the plaintiff. But the court refused the application, and declared, that the said several matters so produced and given in evidence were sufficient to entitle the plaintiff to a verdict, and that he ought not to be nonsuited. To which opinion the original defendants then excepted; and the original plaintiff then gave in evidence that he purchased the said ship of James Gillespie, who had purchase her of John R. Livingston and Isaac  Glason, the owners thereof, and that in pursuance of such purchase, the said Gillespie had delivered full and complete possession of the said ship, &c. to the original plaintiff, before the taking thereof by the original defendants. \nThe original defendants (having given previous notice of the special matter of defence to be given in evidence on the trial under the general issue, according to the laws of New-York,) offered to prove and give in evidence, by the way of defence and in mitigation of damages, the same matter of forfeiture alleged in their first special plea, with the additional fact that  the said Gelston was collector, and the said Schenck was surveyor of the customs of the district of New-York, and as such, and not otherwise, made the seizure of the ship, &c. And the original defendants did, thereupon, insist that the said several matters, so offered to be proved and given in evidence, ought to be admitted in justification of the trespass charged against the defendants, or in mitigation of the damages claimed by the plaintiff, and prayed the court so to admit it. But the counsel for the plaintiff, admitting that the defendants had not been influenced by any  malicious motive in making the said seizure, and that they had not acted with any view or design of oppressing or injuring the plaintiff, the court overruled the whole of the said evidence so offered to be proved by the original defendants, and did declare it to be inadmissible in justification of the trespass charged against the defendants; and after the admission so made by the original plaintiff's counsel, that the said evidence ought not to be received in mitigation or diminution of the said damages, as the said admission precluded the plaintiff from claiming any damages by way of punishment or smart money, and that after such admission the plaintiff could only recover the damages actually sustained, and with that direction left the cause to the jury. \nFrom this summary of the pleadings, and of the facts in controversy at the trial, it is apparent that this court has appellate jurisdiction of this cause, only so far as is drawn in question the validity of an authority exercised under the United States, and the decision is against the validity thereof and so far as  is drawn in question the construction of some clause in a statute of the United States, and the decision  is against the title, right, privilege, or exemption specially set up or claimed by the original defendants, for to such questions, (so far as respects this case,) the 25th section of the judiciary act has expressly restricted our examination. Whether such a restriction be not inconsistent with sound public policy, and does not materially impair the rights of other parties as well as of the United States, is an inquiry deserying of the most serious attention of the legislature. We have nothing to do but to expound the law as we find it; the defects of the system must be remedied by another department of the government. \nThe cause will be first considered in reference to the bill of exceptions. In respect to the proof of the original plaintiff's cause of action, and the opinion of the court that such proof was sufficient to entitle him to a verdict, no error has been shown upon the argument; and certainly none is perceived by this court. If, however, there were any error in that opinion, we could not re-examine it, for it is not within the purview of the statute. It does not draw in question any authority exercised under the United States, nor the construction of any statute of  the United States. \nIn respect to the rejection of the evidence offered by the original defendants to prove the forfeiture, and their right of seizure, there can be no doubt that this court has appellate jurisdiction, if by law that evidence ought to have been admitted in justification of the trespass charged on the original defendants; for it  involves the construction of a statute of, and an authority derived from, and exercised under, the United States. \nIn order to establish the admissibility of the evidence offered by he defendants, it is necessary for them to sustain the affirmative of the following propositions. 1. That a forfeiture had been actually incurred under the statute of 1794, ch. 50. -- 2. That it was competent for a state court of common law to entertain and decide the question of forfeitures. 3. That the sentence of acquittal in the district court was not conclusive upon the question of forfeiture; and, 4. That the defendants as officers of the customs, had a right to make the seizure. \nUpon the last point, there does not seem to be much room for doubt. At common law, any person may at his peril, seize for a forfeiture to the government; and if  the government adopt his seizure, and the property is condemned, he will be completely justified; and it is not necessary to sustain the seizure, or justify the condemnation, that the party seizing shall be entitled to any part of the forfeiture. (Hale on the Customs. Harg. Tracts, 227.Roe v. Roe, Hardr. R. 185. Malden v. Bartlet, Park. R. 105.; though Horne v. Boozey, 2 Str. 952. seems contra.) And if the party be entitled to any part of the forfeiture, (as the informer under the statute of 1794, ch. 50. is by the express provision of the Law,) there can be no doubt that he is entitled in that character to seize. ( Roberts v. Witherhead, 12 Mod. 92.) In the absence of all positive authority, it might be proper to resort to these principles, in aid of  the manifest purposes of the law. But there are express statuteable provisions, which directly apply to the present case. The act of the 2d of March, 1799, ch. 128. s. 70. makes it the duty of the several officers of the customs, to make seizure of all vessels and goods liable to seizure by virtue of any act of the United States respecting the revenue, and assuming the statute of 1794, ch. 50. not to be a revenue law  within the meaning of this clause, still the case falls within the broader language of the act of the 18th of February 1793, ch. 8. s. 27. which authorizes the officers of the revenue to make seizure of any ship or goods, where any  breach of the laws of the United States has been committed. Upon the general principle then, which has been above stated, and upon the express enactment of the statute, the defendants, supposing there to have been an actual forfeiture, might justify themselves in the seizure. There is this strong additional reason in support of the position, that the forfeiture must be deemed to attach at the moment of the commission of the offence, and, consequently, from that moment, the title of the plaintiff would be completely devested, so that he could maintain no action for the subsequent seizure. This is the doctrine of the English courts, and it has been recognised and enforced in this court, upon very solemn argument. ( U. S. v. 1960 Bags of Coffee, 8 Cranch, 398. The Mars, 8 Cranch, 417. Roberts v. Witherhead, 12 Mod: 92. Salk. 223. Wilkins v. Despard, 5 T.R. 112.) \nIn the next place, can a state court of common law, entertain and decide the question  of forfeiture  in this case. This is a question of vast practical importance; but in our judgment, of no intrinsic legal difficulty. By the constitution, the judicial power of the United States extends to all cases of law and equity arising under the constitution, laws, and treaties of the United States, and to all cases of admiralty and maritime jurisdiction; and by the judiciary act of 1789, ch. 20. s. 9. the district courts are invested with exctusive original cognizance of all civil causes of admiralty and maritime jurisdiction, and of all seizures on land and water, and of all suits for penalties and forfeitures incurred under the laws of the United States. This is a seizure for a forfeiture under the laws of the United States, and, consequently, the right to decide upon the same, by the very terms of the statutes, exclusively belongs to the proper court of the United States; and it depends upon its final decree, proceeding in rem, whether the seizure is to be adjudged rightful or tortious. If a sentence of condemnation be pronounced, it is conclusive, that a forfeiture is incurred; if a sentence of acquittal, it is equally conclusive against the forfeiture; and  in either case, the question cannot be litigated in another forum.This was the doctrine asserted by this court, in the case of Slocum v. Mayberry, (2 Wheat. R. 1.) after very deliberate consideration, and to that doctrine we unanimously adhere. \nThe reasonableness of this doctrine results from the very nature of proceedings in rem. All persons having an interest in the subject matter, whether as seizing officers, or informers, or claimants, are parties or may be parties to such suits, so far as their interest  extends. The decree of the court acts upon the thing in controversy, and settles the title of the property itself, the right of seizure, and the question of forfeiture. If its decree were not binding upon all the world upon the points which it professes to decide, the consequences would be most mischievous to the public. In case of condemnation no good title to the property could be conveyed, and no justification of the seizure could be asserted under its protection. In case of acquittal, a new seizure might be made by any other persons toties quoties for the same offence, and the claimant be loaded with ruinous costs and expenses. This reasoning applies to the  decree of a court having competent jurisdiction of the cause, although it may not be exclusive. But it applies with greater force to a court of exclusive jurisdiction; since an attempt to re-examing its decree, or deny its conclusiveness, is a manitest violation of its exclusive authority. It is doing that indirectly, which the law itself prohibits to be done directly. It is, in effect, impeaching collaterally, a sentence which the law has pronounced to be valid until vacated or reversed on appeal by a superior tribunal. \nThe argument against this doctrine, which has been urged at the bar, is, that an action of trespass will in case of a seizure, lie in a state court of common law, and therefore the defendant must have a right to protect himself by pleading the fact of forfeiture in his defence. But at what time and under what circumstances will an action of trespass lie?If the action be commenced while the proceedings in rem for the supposed forfeiture are pending in the proper court of the  United States, it is commenced too soon; for until a final decree, it cannot be ascertained whether it be a trespast or not, since the decree can alone decide whether he taking  be rightful or tortious. The pendency of the suit in rem would be a good plea in abatement, or a temporary bar of the action, for it would establish that no good cause of action then existed. If the action be commenced after a decree of condemnation, or after an acquittal, and there be a certificate of reasonable cause of seizure, then in the former case by the general law, and in the latter case by the special enactment of the statute of the 25th of April, 1810, ch. 64. s. 1 the decree and certificate are each good bars to the action. But if there be a decree of acquittal and a denial of such certificate, then the seizure is established conclusively to be tortious, and the party is entitled to his full damages for the injury. \nThe cases also of Wilkins v. Despard, (6. T.R. 112.) and Roberts v. Witherhead (12 Mod. 92. Salk. 323.) have been relied on to show that a court of common law many entertain the question of forfeiture, notwithstanding the exclusive jurisdiction of the exchequer in rem. But these cases do not sustain the argument. They were both founded on the act of navigation, 12 Car. 2. Ch. 18 s. 1. which among other things, enacts that one third of the forfeiture shall  go to him \"who shall seize, inform, or sue for the same in any court of record.\" So that it is apparent that in respect to forfeitures under this statute, the exchequer had not an exclusive jurisdiction, but that the other courts of common law had  at least a concurrent jurisdiction. And if these cases did not admit of this obvious distinction, certainly they could not be admitted to govern this court in ascertaining a jurisdiction vested by the constitution and laws of the United States exclusively in their own courts. \nIt is, therefore, clearly our opinion, that a state court has no legal authority to entertain the question of forfeiture in this case; and that it exclusively belonged to the cognizance of the proper court of the United States. Indeed no principle of general law seems better settled, than that the decision of a court of a peculiar and exclusive jurisdiction must be completely  binding upon the judgment of every other court, in which the same subject matter comes incidentally in controversy. It is familiarly known in its application to the sentences of ecclesiastical courts, in the probate of wills and granting of administrations of personal  estate; to the sentences of prize courts in all matters of prize jurisdiction; and to the sentences of courts of admiralty and other courts acting in rem, either to enforce forfeitures or to decide civil rights. \nIn the preceding discussion, we have been unavoidably led to consider and affirm the conclusiveness of the sentence of a court of competent jurisdiction proceeding in rem as to the question of forfeiture; and a fortiori to affirm it in a case where there is an exclusive jurisdiction. In cases of condemnation the authorities are so distinct and pointed, that it would, after the very learned discussions in the state courts, be a waste of time to examine them at large. Nothing can be better settled, than that a sentence of condemnation  is, in an action of trespass for the property seized, conclusive evidence against the title of the plaintiff. (See Harg. Tracts, 467. and cases there cited. Thomas v. Withers, cited by Mr. Justice Buller in Wilkins v. Despard, 5 T.R. 112. 117. Scott v. Shearman. 2 W. Black. 977. Henshaw v. Pleasance, 2 W. Black. 1174. Geyer v. Aquilar, 7 T.R. 681. and case cited by Lord Kenyon, Id. 696. Meadows v. Dutchess of Kingston, Ambler's  Rep. 756.2 Evans' Potheir on Obligations, 346 to 367.) \nA distinction, however, has been taken and attempted to be sustained at the bar, between the effect of a sentence of condemnation and of a sentence of acquittal. It is admitted that the former is conclusive; but it is said that it is otherwise as to the latter, for it ascertains no fact. It is certainly incumbent on the party who asserts such a distinction to prove its existence by direct authorities, or inductions from known and admitted principles. In the Duchess of Kingston's case, (11 State Trials, 261. Runnington Eject. 364. Hale. Hist. Common Law by Runnington, note, p. 39, &c.) Lord Chief Justice De Grey declares that the rule of evidence must be. as it is often declared to be, reciprocal; and that in all cases in which the sentences favourable to the party are to be admitted as conclusive evidence for him, the sentences, if unfavourable, are, in like manner, conclusive evidence against him. This is the language of very high authority, since it is the united opinion of all the judges of England; and though delivered in terms applicable strictly to a criminal suit, must be  deemed equally to apply to civil  suits and sentences. And upon principle, where is there to be found a substantial difference between a sentence of condemnation and of acquittal in rem? If the former ascertains and fixes the forfeiture, and, therefore, it is conclusive, the latter no less ascertains that there is no forfeiture, and, therefore, restores the property to the claimant. It cannot be pretended that a new seizure might, after an acquittal, be made for the same subposed offence; or if made, that the former sentence would not, as evidence, be conclusive, and, as a bar, be peremptory against the second suit in rem. And if conclusive either way, it must be because the acquittal ascertains the fact that there was no forfeiture. And if the fact be found, it is strange that it cannot be evidence for the party if found one way and yet can be evidence against him, if found another way. If such were the rule, it would be a perfect anomaly in the law, and utterly subversive of the first principles of reciprocal justice. The only authority relied on for this purpose is a dictum in Buller's Nisi Prius, (245.) where it is said that though a conviction in a court of criminal jurisdiction be conclusive evidence of  the fact, if it afterwards come collaterally in controversy in a court of civil jurisdiction; yet an acquittal in such court is no proof of the reverse, for an acquittal ascertains no fact as a conviction does. The case relied on to support this dictum, ( 3 Mod. 164.) contains nothing which lends any countenance to it. (Peake's Evid. 3d ed. p. 47, 48.) But assuming it to be good law in respect to criminal suits, it has nothing to do with proceedings  in rem. Where property is seized and libelled as forfeited to the government, the sole object of the suit is to ascertain whether the seizure be rightful, and the forfeiture incurred or not. The decree of the court, in such case, acts upon the thing itself, and binds the interests of all the world, whether any party actually appears or not. If it is condemned, the title of the property is completely changed, and the new title acquired by the forfeiture travels with the thing in all its future progress. If, on the other hand, it is acquitted, the taint of forfeiture is completely removed, and cannot be re-annexed to it. The original owner stands upon his title discharged of any latent claims, with which the supposed forfeiture  may have previously infected it. A sentence of acquittal in rem does, therefore, ascertain a fact, as much as a sentence of condemnation; it ascertains and fixes the fact that the property is not liable to the asserted claim of forfeiture. It should therefore be conclusive upon all the world of the non-existence of the title of forfeiture, for the same reason that a sentence of condemnation is conclusive of the existence of the title of forfeiture. It would be strange indeed, if, when the forfeiture ex directo could not be enforced against the thing, but by an acquittal was completely purged away, that indirectly the forfeiture might be enforced through the seizing officer; and that he should be at liberty to asseit a title for the government, which is judicially abandoned by, or conclusively established against, the government itself. \n One argument farther has been urged at the bar on this point, which deserves notice. It is, that the sentence of acquittal ought not to be conclusive upon the original defendants, because they were not parties to that suit. This argument addresses itself equally to a sentence of condemnation; and yet in such case the sentence would  have been conclusive evidence in favour of the defendants. The reason, however, of this rule is to be found in the nature of proceedings in rem. To such proceedings all persons having an interest or title in the subject matter are, as we have already stated, in law, deemed parties; and the decree of the court is conclusive upon all interests and titles in controversy before it. The title of forfeiture is necessarily in controversy in a suit to establish  that forfeiture; and therefore all persons having a right or interest in establishing it (as the seizing officer has) are, in legal contemplation, parties to the suit. It is a great mistake to consider the seizing officer as a mere stranger to the suit. He virtually identifies himself with the government itself, whose agent he is, from the moment of the seizure up to the termination of the suit. His own will is bound up in the acts of the government in reference to the suit. For some purposes, as for instance to procure a decree of distribution after condemnation where he is entitled to share in the forfeiture, or to obtain a certificate of reasonable cause of seizure after an acquittal, he may make himself a direct  party to the suit, and in all other cases he is deemed to be present and represented by the government itself. By the very act of seizure he agrees to become a party to  the suit under the government; for in no other manner can he show an authority to make the seizure, or to enforce the forfeiture. If the government refuse to adopt his acts or waive the forfeiture, there is an end to his claim: he cannot proceed to enforce that which the government repudiates. In legal propriety, therefore, he cannot be deemed a stranger, to the decree in rem; he is at all events a privy, and as such must be bound by a sentence which ascertains the seizure to be tortious. But if he were a mere stranger, he would still be bound by such sentence, because the decree of a court of competent jurisdiction in rem is, as to the points directly in judgment, conclusive upon the whole world. \nUpon principle, therefore, we are of opinion that the sentence of acquittal in this case, with a denial of a certificate of reasonable cause of seizure, was conclusive evidence that no forfeiture was incurred, and that the seizure was tortious: and that these questions cannot again be litigated in any other  forum. And if the point had never been decided, we should from its reasonableness and known analogy to other proceedings, have had entire confidence in the correctness of the doctrine.But there are authorities directly in point which have never been overruled, nor as far as we know ever been brought judicially into doubt. Above a century ago it was decided by Mr. Baron Price, (12 Vin. Abridgment, A B. 22. p. 95.) that an acquittal in the exchequer was conclusive evidence of the illegality of the seizure, and he refused in that case (which was trover for the goods seized) to let the parties in  to contest the fact over again. This case was cited as undoubted law by Mr. Justice Blackstone, in his elaborate opinion, in Scott v. Shearman, (2 W. Bl. 977.;) and the doctrine was fully recognized by the court, and particularly by Lord Kenyon, in Cooke v. Sholl, (5 T.R. 255.) although that cause finally went off upon another point. In all the cases which have been decided on this subject, no distinction has ever been taken between a condemnation and an acquittal in rem, and the manner in which these cases have been cited by the court, obviously show that no such distinction was  ever in their contemplation. If to these decisions we add the pointed language of Lord Chief Justice De Grey, (in the Dutchess of Kingston's case, 11 State Trials, 218. &c.) \"that the rule of evidence must be, as it is often declared to be reciprocal;\" the declaration of Lord Kenyon, in Geyer v. Aguilar, 7 T.R. 681. 996.) that \"where there has been a proceeding in the exchequer, and a judgment in rem, as long as that judgment remains in force it is obligatory upon the parties who have civil rights depending on the same question;\" and the generul rule laid down by Lord Apsley, (Meadows v. Dutchess of Kingston, Amb. Rep. 756.) that where a matter comes to be tried in \"a collateral way, the decree of a court having competent jurisdiction shall be received as conclusive evidence of the matter,\" ex directo determined; there seems a weight of authority in favour of the doctrine, which it is very difficult to resist. We may add, that in a recent case which was not cited at the argument, (The Bennet, 1 Dodson's Rep. 175. 180.) where a ship had been captured  as a prize, as being engaged in an illegal voyage and acquitted by the sentence of a vice-admiralty court, Sir. W. Scott  held, that by such sentence of a competent tribunal, the question had become res adjudicata, and might be opposed with success as a bar to any inquiry into the same facts upon a second capture during the same voyage. Yet here the parties, who were, captors, were different; and the argument might have been urged, that the acquittal ascertained no fact. The learned judge, however, considered the acquittal conclusive proof against the illegality of the voyage, and that all the world were bound by the sentence of acquittal in rem. And the same doctrine was held by Mr. Justice Buller, in his very learned opinion in Le Caux v. Eden, (Doug. Rep. 594. 611, 612.) 31 \n  This view of the case would be conclusive against the admission of the evidence offered by the original defendants at the trial, as a justification of the asserted trespass. But the other point which has been stated, and which involves the construction of the act of 1794, ch. 50. s. 3. is not less decisive against the defendants. That act inflicts a forfeiture of the ship, &c., in cases where she is fitted out and armed, or attempted or procured to be fitted out and armed, with the intent to be employed \"in the service of any foreign prince or state, to cruise or commit hostilities upon the subjects, citizens or property of another foreign prince  or state with whom the United States are at peace.\" The evidence offered and rejected, was to prove that the ship was attempted to be fitted out and armed, and was fitted out and armed, with intent that she should be employed in the service of that part of the island of St. Domingo which was then under the government of Petion, to cruise and commit hostilities upon the subjects, citizens, and property of that part of the Island of St. Domingo which was then under the government of Christophe.  No evidence  was offered to prove, that either of these governments was recognised by the government of the United States, or of France, \"as a foreign prince or state;\" and if the court was bound to admit the evidence, as it stood, without this additional proof, it must have been upon the ground that it was bound to take judicial notice of the relations of the country with foreign states, and to decide affirmatively, that Petion and Christophe were foreign princes within the purview of the statute. No doctrine is better established, than that it belongs exclusively to governments to recognise new states in the revolutions which may occur in the world; and until such recognition, either by our own government, or the government to which the new state belonged, courts of justice are bound to consider the ancient state of things as remaining unaltered. This was expressly held by this court in the case of Rose v. Himely, (4 Cranch, 241.) and to that decision on this point we adhere. And the same doctrine is clearly sustained by the judgment of foreign tribunals. (The Manilla, 1 Edwards R. 1. The city of Berne v. The Bank of England, 9 Ves. 347. Dolden v. Bank of England, 10 Ves. 353. 11 Ves. 283.)  If, therefore, this were a fact proper for the consideration of a jury, and to be proved in pais, the court below were not bound to admit the other evidence, unless this fact was proved in aid of that evidence, for without it no forfeiture could be incurred. If, on the other hand, this was matter of fact, of which the court were bound judicially to take cognizance, then the court were right in rejecting the evidence, for as  far as we have knowledge, neither the government of Petion nor Christophe have ever been recognised as a foreign state, by the government of the United States, or of France. \nIn every view, therefore, of this case, the state court were right in rejecting the evidence, so far as it was offered in justification. Was it then admissible in mitigation of damages? Upon this point we really do not entertain the slighest doubt. The evidence has no legal tendency to show that any forfeiture had been incurred, and upon the proof already, in the cause, the seizure was established to be tortious. The plaintiff admitted that the defendants had acted without malice, or an intention of oppression. Under such circumstances, he waived any claim for vindictive damages,  and the state court very properly directed the jury, that the plaintiff could only recover the actual damages sustained by him. And in no possible shape, consistently with the rules of law, could the evidence diminish the right of the plaintiff to recover his actual damages. We have taken notice of this point the more readily, because it was pressed at the bar with considerable earnestness. But in strictness of law, the point is not subject to our revision. We have no right, on a writ of error from a state court, under the act of congress, to inquire into the legal correctness of the rule by which the damages were ascertained and assessed. There is no law of the United States, which interferes with, or touches, the question of damages. It is a question depending altogether upon the common law; and the act of congress has expressly precluded  us from a consideration of such a question. Whether such a restriction can be defended upon public policy, or principle, may well admit of most serious doubts. \nWe may now pass to the consideration of the second plea, which asserts, as a defence, a seizure under the laws of the United States, by the express instruction of the  president, for a supposed forfeiture in rem, and attempts to put in issue the question whether such forfeiture was incurred or not.If this plea was well pleaded, then a question may properly be said to arise within the meaning of the 25th section of the judiciary act, and as the state court decided against the right and authority set up thereon, the decision is re-examinable in this court. Several objections have been urged at the bar against the sufficiency of this plea upon technical grounds; and if these objections are well founded, then it may be admitted that the court below may have given judgment on these special grounds, and not have decided against the right and authority set up under the United States. In the first place, it is argued, that this plea is bad, because it does not answer the whole charge in the declaration, the plea justifying only the taking and detention, and containing no answer to the damaging, spoiling, and conversion of the property charged in the declaration. We are, however, of opinion, that the plaintiff can take nothing by this objection. The gist of the action in this case was the taking and detention, and the damaging, spoiling, and conversion  were matter of aggravation only;  and it is perfectly well settled, that a plea need answer only the gist of the action, and if the matter alleged in aggravation be relied on as a substantive trespass, it should be replied by way of new assignment. (Taylor v. Cole, 3 T.R. 292. S.C.H. Bl. 555. Dye v. Leatherdale, 3 Wils. R. 20. Fisherwood v. Carman, cited 3 T.R. 297. Gates v. Bayley, 2 Wils. R. 313. 1 Saund. R. 28. note 3. Cam. Dig. Plead. E. 1. Monprivatt v. Smith, 2 Camp. R. 175.) Independent, however, of this general ground, there is, in this particular case, a decisive answer to the objection; for if the matter of the plea were true and well pleaded, then by the forfeiture the property was completely divested out of the plaintiff; and, consequently, neither the conversion nor damage were any injury to him. \nBut there are other defects in this plea which, in our judgment, are fatal.In the first place it is not alleged that the ship and her equipments were forfeited for any offence under the laws of the United States. It is true that it is stated, that the ship was attempted to be fitted out and armed, with intent that she should be employed in the service of a  foreign state, &c. to commit hostilities upon the subjects of another foreign state, &c. contrary to the statute in such case made and provided. But it is not added, whereby and for the cause aforesaid  she became and was forfeited to the United States.Nor is this deficiency supplied by the subsequent averment, that the ship was, by the instructions of the president, seized \"as forfeited to the use of the United States;\" for the manner and cause of the  forfeiture, ought to be directly stated. The plea is, therefore, not only argumentative, but it omits a substantive allegation, without which it could not be sustained as a bar. \nIn the next place, the plea is bad, because it does not aver that the governments of Petion and Christophe are foreign states which have been duly recognised, as such, by the government of the United States, or of France, which, for reasons already stated, was necessary to complete the legal sufficiency of the plea. \nAnd in our judgment a still more decisive objection is, that the plea attempts to draw to the cognisance of a state court a question of forfeiture under the laws of the United States, of which the federal courts have, by  the constitution and laws of the United States, an exclusive jurisdiction. For the reasons already mentioned, if the suit for the forfeiture was still pending when the action was brought, that fact ought to have been pleaded in abatement, or a temporary bar to such action: If the action was brought before proceedings in rem had been instituted, that fact ought to have been pleaded, with an allegation that the jurisdiction of the question of forfeiture exclusively belonged to the district court of the district where the seizure was made, which would have been a plea in the nature of a plea to the jurisdiction of the state court: If the suit were determined, then a condemnation, or an acquittal with a certificate of reasonable cause of seizure, ought to have been pleaded, as a general bar to the action. These are all the legal defences which the mere seizure could justify; and if these all failed, then the  seizing officer must have been deemed guilty of the trespass. The plea then stops short of the allegations which the seizing officer was bound to make to sustain his defence, and it attempts to put in issue matter which, standing alone, no court of common law is competent  to try. The demurrer then may well be sustained to this plea, since the party demurring admits nothing except what is well pleaded, and the plea being bad in substance, there is, in point of law, no confession of any forfeiture. \nThe third plea differs in several respects from the second, and is that on which the court have felt their principal difficulty. It asserts that the ship was attempted to be fitted out and armed, with intent that she should be employed in the service of some foreign state, to commit hostilities upon the subjects of another foreign state with which the United States were then at peace, contrary to the form of the statute in such case made and provided; and that the defendants by virtue of the instructions of the president, \"did take possession of, and detain,\" the said ship, &c. \"in order to the execution of the prohibitions and penalties of the act in such case made and provided.\" It omits to allege any forfeiture of the ship, or that she was seized as forfeited. So far then as the plea may be supposed to rely on such forfeiture as a justification, it is open to the same objections which have been stated against the second plea. \nAnother objection has been  urged at the bar against this plea, which does not apply to the second. It is, that it does not specify the foreign state in whose service,  or against whom, the ship was intended to be employed. As the allegation follows the words of the statute, it has sufficient certainty for a libel or information in rem for the asserted forfeiture under the statute; and, consequently, it has sufficient certainty for a plea.Indeed, there is as much certainty as there would have been, if it had been averred that it was in the service of or against, some foreign state unknown to the libellant, which has been adjudged in this court, to be sufficient in an information of forfeiture. ( Locke v. The United States, 7 Cranch, 339. \nBut the main objection to this plea is that it attempts to justify the taking possession, and detaining of the ship, under the instructions of the president, when the facts stated in the plea do not bring the case within the purview of the statute of 1794, ch 50. which is relied on for this purpose. This statute, in the seventh section, provides, that in every case in which a vessel shall be fitted out and armed, or attempted to be fitted out and armed, or in which  the force of any vessel of war, cruiser, or other armed ressel, shall be increased or augmented, or in which any military expidition or enterprise shall be begun, or set on foot, contrary to the prohibitions and provisions of that act, and in every case of the capture of a ship or vessel within the jurisdiction or protection of the United States, and in every case in which any process issuing out of any court of the United States shall be disobeyed or resisted by any person or persons, having the custody of any vessel of war, cruiser, or other armed vessel of any foreign prince or state,  or of the subjects or citizens of any such prince or state; in every such case, it shall be lawful for the president of the United States, or such other person as he shall have empowered for that purpose to employ such part of the land or navel forces of the United States, or of the malitia thereof, as shall be judged necessary for the purpose of taking possession of and detaining any such ship or vessel, with her prize or prizes if any, in order to the execution of the prohibitions and penalties of the act, &c. It is to be recollected that this third plea does not allege any forfeiture,  or justify the taking and detaining of the ship for any forfeiture; and that it does not allege that the president did employ any part of the land or navel forces, or militia of the United States for this purpose, or that the original defendants, or either of them, belonged to the navel or military forces of the United States, or were employed in any such capacity, to take and detain the ship, in order to the execution of the prohibitions and penalties of the act. But the argument is, that as the president had authority by the act to employ the navel and military forces of the United States for this purpose, a fortiori, he might do it by the employment of civil force. But upon the most deliberate consideration, we are of a different opinion. The power thus entrusted to the president is of a very high and delicate nature, and manifestly  intended to be exercised only when, by the ordinary process or exercise of civil authority, the purposes of the law cannot be effectuated. It is to be exerted on extraordinary occasions, and subject to that high responsibility which all executive acts necessarily  involve. Whenever it is exerted, all persons who act in obedience  to the executive instructions, in cases within the act, are completely justified in taking possession of, and detaining the offending vessel, and are not responsible in damages for any injury which the party may suffer by reason of such proceeding. Surely it never could have been the intention of congress, that such a power should be allowed as a shield to the seizing officer, in cases where that seizure might be made by the ordinary civil means? One of the cases put in the section is, where any process of the courts of the United States is disobeyed and resisted; and this case abundantly shows, that the authority of the president was not intended to be called into exercise, unless where military and naval force were necessary to ensure the execution of the laws. In terms the section is confined to the employment of military and naval forces; and there is neither public policy nor principle to justify an extension of the prerogative, beyond the terms in which it is given. Congress might be perfectly willing to entrust the president with the power to take and detain, whenever, in his opinion, the case was so flagrant that military or naval force was necessary to enforce the laws,  and yet with great propriety deny it, where, from circumstances of the case, the civil officers of the government might, upon their private responsibility, without any danger to the public peace, completely execute them. It is certainly against the general theory of our institutions to create great discretionary powers by implication: and in the  present instance we see nothing to justify it. The third plea is, therefore, for this additional reason, bad in its very substance, and the state court were right in giving judgment on the demurrer for the original plaintiff. \nThe judgment of the court for the correction of errors of the state of New-York, is affirmed with damages at the rate of 6 per cent. upon the judgment, from the rendition thereof, and costs. \nMr. Chief Justice MARSHALL. We must consider the record as still remaining in the supreme court of New-York, and consequently the mandate must be directed to that court. \nMandate to the supreme court of New-York. \nJUDGMENT -- This cause came on to be heard on the transcript of the record of the supreme court of judicature of the people of the state of New-York, returned with the writ of error issued in this case,  and was argued by counsel. On consideration whereof, it is adjudged and ordered, that this court having the power of revising, by writ of error, the judgment of the highest court of law in any state, in the cases specified in the act of congress, in such case provided, at any time within five years from the rendition of the judgment in the said courts, have the power to bring before them the record of any such judgment, as well from the highest court of law in any state, as from any court to which the record of the said judgment may have been remitted, and in which it may be found, when the writ of error from this court is issued. And the court, therefore, in virtue of the writ of error in this cause, do proceed and take cognizance of this cause upon the transcript of the record now remaining in the supreme court of judicature of the people of the state of New-York; and they do hereby adjudge and order, that the judgment of the  court for the trial of impeachments and correction of errors in this case, be, and the same is hereby affirmed, with costs and damages, at the rate of six per centum per annum on the amount of the judgment of the said court, for the trial of impeachments  and correction of errors of the state of New-York, to be computed from the time of the rendition of the judgment of the said court for the trial of impeachments and correction of errors of the state of New York. \nDissent by:", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the court. The first question which is presented to the court is, whether the capture was made within the territorial limits of Spanish St. Domingo. The testimony of the carpenter and cook of the captured vessel distinctly asserts that the ship, at the time of the capture, was laying at anchor about a mile from the shore of the island. The testimony of the captors as distinctly asserts, that the ship then lay at a distance of from four to five miles from the shore. It is contended, by the counsel for the claimants, that captors, are in no cases admissible witnesses in prize causes being rendered incompetent  by reason of their interest. It is certainly true, that, upon the original hearing, no other evidence is admissible than that of the ship's papers, and the preparatory examinations of the captured crew. But, upon an order for farther proof, where the benefit of it is allowed to the captors, their attestations are clearly admissible evidence. This is the ordinary course of prize courts, especially where it becomes material to ascertain the circumstances of the capture; for in such cases the  facts lie as much within the knowledge of the captors as the captured, and the objection of interest generally applies as strongly to the one party  as to the other. It is a mistake, to suppose that the common law doctrine, as to competency, is applicable to prize proceedings. In courts of prize, no person is incompetent merely on the ground of interest. His testimony is admissible, subject to all exceptions as to its credibility. The cases cited at the argument distinctly support this position; and they are perfectly consistent with the principles by which courts of prize profess to regulate their proceedings. We are, therefore, of opinion, that the attestations of  the captors are legal evidence the case, and it remains to examine their credit. And without entering into a minute examination, in this conflict of testimony, we are of opinion, that the weight of evidence is, decidedly, that the capture was made within the territorial limits of Spanish St. Domingo. \nAnd this brings us to the second question in the cause; and that is, whether it was competent for the Spanish consul, merely by virtue of his office and without the special authority of his government, to interpose a claim in this case for the assertion of the violated rights of his sovereign. We are of opinion, that his office confers on him no such legal competency. A consul, though a public agent, is supposed to be clothed with authority only for commercial purposes. He has an undoubted right to interpose claims for the restitution of property belonging to the subjects of his own country; but he is not considered as a minister, or diplomatic agent of his sovereign, intrusted, by virtue  of his office, with authority to represent him in his negotiations with foreign states, or to vindicate his prerogatives. There is no doubt, that his soverign may specially intrust him  with such authority; but in such case his diplomatic character is superadded to his ordinary powers, and ought to be recognized by the government within whose dominions he assumes to exercise it. There is no suggestion, or proof, of any such delegation of special authority in this case; and therefore we consider this claim as asserted by an incompetent person and on that ground it ought to be dismissed. It is admitted, that a claim by a public minister, or in his absence, by a charge d'affairs in behalf of his sovereign would be good. But in making this admission, it is not to be understood that it can be made in a court of justice without the assent or sanction of the government in whose courts the cause is depending. That is a question of great importance, upon which this court expressly reserve their opinion, until the point shall come directly in judgment. 15 \nThe claim of the Spanish government for the violation of its neutral territory being thus disposed of, it is next to be considered whether the British claimant can assert any title founded upon that circumstance.  By the return of peace, the claimant became rehabilitated with the capacity to sustain a suit in the courts of this country; and the argument is that a capture made in a neutral territory is void and  therefore, the title by capture being invalid, the British owner has a right to restitution. The difficulty of this argument rests in the incorrectness of the premises. A capture made within neutral waters is, as between enemies, deemed, to all intents and purposes, rightrul; it is only by the neutral sovereign that its legal validity can be called in question; and as to him and him only, is it to be considered void. The enemy has no rights whatsoever; and if the neutral sovereign omits or dcclines to interpose a claim, the property is condemnable, jure belli, to the captors. This is the clear result of the authorities; and the doctrine rests on well established principles of public law. 16 \n There is one other point in the case which, if all other difficulties were removed, would be decisive against the claimant. It is a fact that the captured ship first commenced hostilities against the privateer. This is admitted on all sides; and it is no excuse to assert that it was done under a mistake of the national charcter of the privateer, even if this were entirely made out in the evidence. While the ship was lying in neutral waters, she was bound to abstain from all hostilities, except in self defence. The privateer had an equal title with herself to the neutral protection, and was in no default in approaching the coast without showing  her national character. It was a violation of that neutrality which the captured ship was bound to observe, to commence hostilities for any purpose in these waters; for no vessel coming thither was bound to submit to search, or to account to her for her conduct or character. When, therefore, she commenced hostilities, she forfeited the neutral protection, and the capture was no injury for which any redress could be rightfully sought from the neutral sovereign. \nThe conclusion from all these views of the case is, that the ship  and cargo ought to be condemned as good prize of war. And the only remaining inquiry is, whether the captors have so conducted themselves as to have forfeited the rights given by their commission, so that the condemnation ought to be to the United States. There can be no doubt, that if captors are guilty of gross misconduct, or laches, in violation of their duty, courts of prize will visit upon them the penalty of a forfeiture of the rights of prize, especially where the government chooses to interpose a claim to assert such forfeiture. Cases of gross irregularity, or fraud, may readily be imagined in which it would become the duty of this court to enforce this principle in its utmost rigour. But it has never been supposed that irregularities, which have arisen from mere mistake, or negligence, when they work no irreparable mischief, and are consistent with good faith, have ordinarily induced such penal consequences. There were some irregularities in this case; but there is no evidence upon the record from which we can infer that there was any fraudulent  suppression, or any gross misconduct incongistent with good faith; and, therefore, we are of opinion, that condemnation  ought to be to the captors. \n It is the unanimous opinion of the court, that the decree of the circuit court be affirmed, with costs. \nDecree affirmed. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the court. The jurisdiction of the district court to entertain  this suit, by virtue of its general admiralty and maritime jurisdiction, and independent of the special provisions of the prize  act of the 26th of June 1812, ch. 107. has been so repeatedly decided by this court, that it cannot be permitted again to be judicially brought into doubt. 3 Upon the facts disclosed in the evidence, this must be pronounced a case of gross and wonton outrage, without any just provocation or excuse. Under such circumstances, the honour of the country, and the duty of the court, equally require that a just compensation should be made to the unoffending neutrals, for all the injuries and losses actually sustained by them. And if this were a suit against the original wrong-doers, it might be proper to go yet farther, and visit upon them in the shape of exemplary damages, the proper punishment which belongs to such lawless misconduct. But it is to be considered, that this is  a suit against the owners of the privateer, upon whom the law has, from motives of policy, devolved a responsibility for the conduct of the officers and crew employed by them, and yet, from the nature of the service, they can scarcely ever be able to secure to themselves an  adequate indemnity in cases of loss. They are innocent of the demerit of this transaction, having neither directed it, nor countenanced it, nor participated in it in the slightest degree. Under such circumstances, we are of opinion that they are bound to repair all the real injuries and personal wrongs sustained by the libellants, but they are not bound to the extent of vindictive damages. While the government of the country shall choose to authorize the employment of privateers in its public wars, with the knowledge that such employment cannot be exempt from occasional irregularities and improper conduct, it connot be the duty of courts of justice to defeat the policy of the government, by burthening the service with a responsibility beyond what justice requires, with a responsibility for unliquidated damages, resting in mere discretion, and intended to punish offenders. 3 \n As the respondents have not appealed from the decree of the circuit court, that decree, so far as it allows damages against them, is not re-examinable here. -- And the only inquiry will be, whether any of the items allowed by the district court were improperly rejected by the circuit court. \nAnd first, as to the item of 1,200 dollars, for losses sustained in the sale of the cargo at Antigua. This loss is said to have been occasioned partly by the deterioration of the corn by sea damage, the mixing of the damaged with the sound corn by the improper conduct of the crew of the Spider brig of war, and partly by a fall of the price of corn during the detention of the vessel at Antigua. We are of opinion, that this item was properly rejected. The jury to  the corn was in no degree attributable to the improper conduct of the officers and crew of the privateer. The vessel was actually bound to Antigua at the time when she was met by the privateer, under a necessity occasioned by stress of weather, and the fall of the market there is precisely what would have arisen upon the arrival of the vessel under ordinary circumstances. Unless, therefore, the sale of the corn was compelled  at Antigua, solely by the misconduct of the privateer, (which, in our opinion, was the case,) the claim for such loss cannot be sustained. \nAnother item is 3,500 dollars, for the loss of the supposed profits of the voyage on which the Amiable Nancy was originally bound. In the opinion of the court, this item also was properly rejected. The probable or possible benefits of a voyage, as yet in fieri, can never afford a safe rule by which to estimate damages in cases of a marine trespass. There is so much uncertainty in the rule itself, so many contingencies which may vary or extinguish its application, and so many difficulties in sustaining its legal correctness, that the court cannot believe it proper to entertain it. In several cases in this court, the claim for profits has been expressly overruled; and in Del Col v. Arnold, (3 Dall 333.) and the Anna Maria, (2 Wheat. Rep. 327.) it was, after strict consideration, held, that the prime cost, or value of the property lost, at the time of the loss, and in the case of injury, the diminution in value, by reason of the injury, with interest upon such valuation, afforded the true measure for assessing damages. This rule may not secure  a complete  indemnity for all possible injuries; but it has certainty and general applicability to recommend it, and in almost all cases, will give a fair and just recompense. \nThe next item is 2,127 dollars and 60 cents. for the ransom of the vessel and cargo, and the payment of the costs of court. The evidence upon this head is not very satisfactory in its details. It is asserted that the vessel was seized for the want of papers, but whether as prize of war, or to enforce a municipal forfeiture, is not distinctly stated; and no copy of the proceedings of the court is produced to clear up a single doubt or obscurity. Nor does it appear, whether the compromise was made before or after the libel was filed; and it is admitted that it was made without taking the advice of counsel, upon the mere opinion of a merchant at Antigua, who supposed that a condemnation would certainly ensue. Upon what legal grounds this opinion could be reasonably entertained, it is extremely difficult to perceive. Assuming that the vessel and cargo were seized as prize of war, it cannot for a moment be admitted, that the mere want of papers could afford a just cause of condemnation. It might  be a circumstance of suspicion; but explained (as it must have been) by the preparatory examinations of the officers and crew, and by the fact of a voluntary arrival, it is difficult to suppose that there could be any judicial hesitation in immediately acquitting the property. And the farthest that any prize court could, by the utmost straining, be presumed to go, would be to order farther proof of the proprietary interest. It would be  the highest injustice to the British courts to suppose that the mere want of papers, under such circumstances, could draw after it the penalty of confiscation. We do not, therefore,  think, that the ransom was justifiable or reasonable. The utmost extent of loss to which the owner was liable, was the payment of the costs and expenses of bringing the property to adjudication; and for such costs and expenses, as far as they were incurred and paid, the owner is now entitled to receive a recompense. In this respect, the decree of the circuit court ought to be amended. \nThe item for the supercargo's commission was also properly rejected. It does not appear, with certainty, to what sum he was entitled; and under the circumstances,  if lost, (which is not satisfactorily shown,) the commissions were not lost by any act for which the respondents are liable. The sum allowed for the travel, attendence, and expenses of the supercargo in procuring testimony, by the circuit court, is, in our judgment, an adequate compensation. \nThe sum of 44 dollars was (probably by mistake) deducted by the circuit court from the expenses at An tigua. This sum is to be reinstated. \nTo the decree of the circuit court there are, consequently, to be added the following sums: \nFor expenses and costs of court at Antigua, 542 dollars, 21 cents. \nThe loss on the exchange to pay that sum, (say) 188 dollars. \nThe short allowance of expenses, 44 dollars. \nIn the whole, amounting to the sum of 774 dollars 21 cents, on which interest, at the rate of 6 per  cent., is to be allowed from the time of payment up to the time of this judgment. And the decree of the circuit court is to be reformed accordingly. \nDecree reformed. \n \n\n ", " \nOpinion \n\n \n \n Mr. Justice STORY delivered the opinion of the Court. This case differs from that of Jones v. Shore's Executors, 1 in two circumstances; first, that this is the case of a seizure of goods for an asserted forfeiture; and secondly, that before the proceedings in rem were consummated by a sentence, the collector who made the seizure was removed from office. In our  judgment, neither of  these facts affords any ground to except this case from the principles which were established in Jones v. Shore's Executors. It was there expressly held, that the collector acquired an inchoate right by the seizure, which by the subsequent decree of condemnation gives him an absolute vested title to his share in the forfeiture. 2 Without overturning the doctrine of that case, the present is not susceptible of argument; and we, therefore, unanimously affirm the decision of the Circuit Court. \n Judgment affirmed. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion  of the Court. This is the case of an American ship, which sailed from Charleston, S.C., with a cargo of rice, bound to Lisbon, about the 28th of May, 1813, under the protection of a British license. In the course of the voyage the ship was captured by a British frigate, and sent into Bermuda for adjudication. Upon trial she was acquitted, and her cargo being prohibited from exportation, was afterwards sold by the agent of the claimant at Bermuda, and the proceeds were remitted for his use. The ship sailed from Bermuda for the United States, in November, 1813, and upon her arrival at Newport, in Rhode-Island, was seized by the collector of that port as forfeited to the United States. The libel contains four articles propounding the causes of forfeiture; first, for the ship's having on board, and using a British licence; secondly, for the ship's being engaged in trade with the enemy; and, thirdly and fourthly, for using a British license contrary to the act of congress of the 2d of August, 1813, ch. 56. prohibiting the use of British licenses. \nIt is unnecessary to consider the two last articles   which are founded upon statutable prohibitions, because, it  is clear, that the two preceding articles, founded on the general law of prize, are sufficient to justify a condemnation jure belli, the proof of the facts being most clearly established. \nThe only questions which can arise in the case, are whether the ship was liable to seizure for the asserted forfeiture, after her arrival in port; and, if so, whether the collector had authority to make the seizure. And we are clearly of opinion in favour of the United States on both points. It is not necessary, to enable the govenment to enforce condemnation in this case, that there should be a capture on the high seas. By the general law of war, every American ship sailing under the pass, or license of the enemy, or trading with the enemy, is deemed to be an enemy's ship, and forfeited as prize.If captured on the high seas, by a commissioned vessel, the property may be condemned to the captors as enemy's property; if captured by an uncommissioned ship, the capture is still valid, and the property must be condemned to the United States. But the right of the government to the forfeiture, is not founded on the capture; it arises from its general, authority to seize all enemies property coming  into our ports during war; and also from its authority to enforce a forfeiture against its own citizens, whenever the property comes within its reach. If, indeed, the mere arrival in port would purge away the forfeiture, it would afford the utmost impunity to persons engaged in illegal traffic during war, for in most instances, the government  have no means of ascertaining the offence until after such arrival. \nIn respect to the other point, it is a general rule, that any person may seize any property forfeited to the use of the government, either by the municipal law, or by the law of prize, for the purpose of enforcing the forfeiture. And it depends upon the government itself, whether it will act upon the seizure. If it adopts the acts of the party, and proceeds to enforce the forfeiture by legal process, this is a sufficient recognition and confirmation of the seizure, and is of equal validity in law, with an original authority given to the party to make the seizure. The confirmation acts retroactively, and is equivalent to a command. \nDecree affirmed, with costs. \n \n\n ", " \nOpinion \n\n \n \n Mr. Justice STORY delivered the opinion of the Court. This case differs in no essential respect, from that of the Caledonian. The brig sailed from the United States on a voyage to Lisbon, with a cargo of provisions, in May, 1813, and was captured by a British sloop of war, and sent into Bermuda, where she was either  not proceeded against as prize, or was acquitted on trial; and after a detention of about six weeks, was permitted to resume her original voyage; and on the return voyage from Lisbon, with a cargo of salt, was, on her arrival at Newport, on the 16th of December, 1813, seized by the collector of that port, as forfeited to the United States jure belli, for using a British license, and trading with the enemy. \nThere is no positive proof, that the brig had a British license on board; but, we think, that under the circumstances, there arises a violent presumption that she had such a license, and that the burthen of proof to repel this presumption rests on the claimant. He has not attempted this in the slightest degree, there being a total absence of all evidence in his favour; and, therefore, as the case remains with all its original imperfections, the decree of the Circuit Court is affirmed, with costs. \nDecree affirmed, with costs. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Judtice STORY delivered the opinion of the Court. In this case, it is unnecessary to travel  through all the exceptions taken by the defendant in the Court below, because, upon the facts stated in the bill of exceptions, some of the opinions required of the Court upon points of law, do not arise from the evidence; and as to others, the opinion of the Court, if in any respect erroneous, was so in favour of the defendant. \nThe first error assigned is, that the Court refused to grant a new trial; but it has been already decided, and is too plain for argument, that such a refusal affords no ground for a writ of error. \nAnother error alleged is, that the Court allowed the decree of the Circuit Court, in the Chancery suit between Michael Gratz and John Craig and others, to be given in evidence to the jury. In our opinion this record was clearly admissible. It is true that, in general, judgments and decrees are evidence only in suits between parties and privies. But the doctrine is wholly inapplicable to a case like the present, where the decree  is not introduced as per se binding upon any rights of the other party, but as an introductory fact to a link in the chain of the plaintiff's title, and constituting a part of the muniments of his estate; without establishing the existence of the decree, it would be impossible to establish the legal validity of the deed from Robert Johnson, to the lessors of the plaintiffs, which was made under the authority of that decree; and under such circumstances to reject the proof of the decree, would be, in effect, to declare that no title derived under a decree in Chancery, was of any validity except in a suit between parties and privies, so that in  a suit by or against a stranger, it would be a mere nullity. It might with as much propriety be argued, that the plaintiff was not at liberty to prove any other title deeds in this suit, because they were res inter alios acta. \nAnother error alleged is, the admission in evidence of the deed of John Craig to Michael Gratz, dated the 16th of July, 1784, without the regular proof of its execution by the subscribing witnesses. But as that deed was more than thirty years old, and was proved to have been in the possession of the lessors  of the plaintiff, and actually asserted by them as the ground of their title in the Chancery suit, it was, in the language of the books, sufficiently accounted for; and on this account, as well as because it was a part of the evidence in support of the decree, it was admissible, without the regular proof of its execution. \nAnother error alleged is, that the deed from Robert Johnson to the plaintiffs, under the decree in Chancery, was not admissible in evidence without proof that Robert Johnson was the surviving trustee, and that Elijah Craig was dead. But upon examining the bill of exceptions of the defendant, no point of this sort arises; for it is there stated that the plaintiff gave in evidence \"the deed from Robert Johnson the surviving trustee to the lessors of the plaintiff;\" and no objection appears to have been made to its admissibility on this account. \nHaving disposed of these minor objections, we may advance to the only points of any real importance in the cause, but which, in our opinion, are of no intrinsic difficulty. Upon the issuing of the patent  to John Craig, in November, 1784, the possession then being vacant, he became, by operation of law, vested  with a constructive actual seisin, of the whole tract of land included in his patent. His whole title (such as it was) passed by his prior conveyance in July, 1784, to Michael Gratz, the ancescestor of the lessor of the plaintiff, and the moment it became complete at law by the issuing of the patent, the actual constructive seisin of Craig was transferred to Gratz, in virtue of that conveyance. 1 When subsequently, in virtue of the agreement made in June, 1786, between Michael Gratz, and the defendant, for the purchase of 750 acres of the tract of 1,000 acres, the defendant entered into possession of the whole tract, under this equitable title, his possession being consistent with the title of Gratz, and in common with him, was the possession of Gratz himself, and enured to the benefit of both, according to the nature of their titles. When subsequently, in April, 1787, by the direction of Gratz, Craig conveyed to the defendant a large portion of the land in fulfilment of the agreement between Gratz and Barr, and the same was severed by the metes and bounds in the deed from the tract of 1,000 acres, the defendant became sole seized in his own right of the portion so conveyed. But  as he still remained in the actual possession of the residue of the tract within the bounds of the patent, and this possession was originally taken under Gratz, the character of his tenure was not changed by his own act, and therefore  he was quasi tenant to Gratz; and as such, continued the actual seisin of the latter over the whole of this residue, at least up to the period of the deed from Coburn to the defendant in 1796. This brings us to the consideration of the period when the evidence first establishes any entry or possession in John Coburn. In appears by the evidence, that in the winter and spring of 1791, Coburn entered into, and fenced, a field within the boundary of Craig's patent, claiming to hold the same under the title of Netherland, as part of the land included in his survey of a tract of 400 acres. If Coburn at this time had been the legal owner of Netherland's survey, his actual occupation of a part, would not have given him a constructive actual seisin of the residue of the tract included in that survey, if at the time of his entry and occupation that residue was in the adverse seisin of another person having an older and better title.For where two  persons are in possession of land at the same time, under different titles, the law adjudges him to have the seisin of the estate who has the better title. Both cannot be seised, and, therefore, the seisin follows the title. Now it is clear that the title of Craig, and, of course, of his grantee Gratz, was older and better than Netherland's; and the possession of Barr under that title, being the possession of Gratz, the legal seisin of the land which was not sold to Barr, was by construction of law in Gratz; and the disseisin of Coburn under  a junior title, did not extend beyond the limits of his actual occupancy. This reasoning proceeds upon the supposition that Coburn had a good title to Netherland's survey.  But, in fact, no such title was shown in evidence, there being no proof that Ann Shield, from whom Coburn derived his title, was the legal owner of the title of Netherland. So that the entry of Coburn must be considered as an entry without title, and, consequently, his disseisin was limited to the bounds of his actual occupancy. This view of the case disposes of the objection to the deed from Craig and wife to Robert Johnson and Elijah Craig, in  1791, upon the ground that it was within the statutes of champerty and maintenance, the land being at the time in the adverse possession of Coburn; for as to all the land not in his actual occupancy (and to this alone the charge of the Court applied) the deed was not, at all events, operative; the grantors, and persons holding under them, having at all times had the legal seisin. 2 \nAnother objection taken is, that the deed from Robert Johnson to the lessors of the plaintiff, under the decree in Chancery, was not approved by the Court, nor recorded in the Court in conformity with the statute of Kentucky of the 16th of February, 1818, ch. 453. In our judgment no such approval was necessary; and upon examination of the statute in question, it is clear that it is not imperative in the present case. \nUpon the whole, without going more minutely into the case, we are all of opinion that the judgment of the Court below ought to be affirmed. No error has been committed which is injurious to the defendant.  He has had the full benefit of the law, so far as the facts of his  case would warrant the Court in applying it in his favour. \nJudgment affirmed. \n \n\n ", " \nOpinion \n\n \n \n  The opinion of the Court was delivered at the present term by Mr. Justice STORY. \nUpon the special verdict in this case, the judges in the Court below differed in opinion on two points, which are certified to this Court for a final decision: \n1. Whether the plaintiffs were bound to show that Benjamin Sherrod recovered were bound to show that Hill by title paramount to that derived from Hamilton, or the recovery itself was prima facie evidence of that fact? \n2. Whether the title  shown by Thomas B. Hill under Hamilton was not so complete as to prove that Sherrod's recovery could not be by title paramount? \nUpon the first point, this Court also is divided in opinion, and, therefore, no decision can be certified. But as we are unanimous on the second point, and an opinion on that finally disposes of the cause, it will now be pronounced. \nFrom the date of Stewart's deed to Hamilton, in October, 1771, until the commencement of the suit by Sherrod against Hill, in June, 1804,  a period of thirty-three years, the land in controversy was in the exclusive possession of Hamilton, and those deriving title under him. A possession for such a length of time, under title, was, by the statute of limitations of North Carolina, a conclusive bar against any suit by any adverse claimant, unless he was within some one of the exceptions or disabilities provided for by that statute. 2 The special verdict in this case does  not find either that Sherrod was or was not within those exceptions or disabilities. The case, therefore, stands, in this respect, purely indifferent. By the general principles of law, the party who seeks to recover, upon the ground  of his being within some exception of the statute of limitations, is bound to establish such exception by proof, for it will not be presumed by the law. In the suit by Sherrod against Hill, it would have been sufficient for the defendant to have relied upon the length of possession as a statutable bar to the action; and the burthen of proof would have been upon Sherrod, to show that he was excepted from its operation. By analogy to the rule in that case, the proof of possession under title for thiry-three years, was presumptive evidence, and, in the absence of all conflicting evidence to remove the bar, conclusive evidence that the title of Hill,  under Hamilton, was so complete, that Sherrod's recovery could not have been by title paramount. \n \n \n\n ", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the Court. \nThe single question on the pleadings in this case is, whether goods imported into Castine during its occupation by the enemy are liable to the duties imposed by the revenue laws upon goods imported into the United States. It appears, by the pleadings, that on the first day of September, 1814, Castine was captured by the enemy, and remained in his exclusive  possession, under the command and control of his military and naval forces, until after the ratification of the treaty of peace in February, 1815. During this period the British government exercised all civil and military authority over the place; and established a custom-house, and admitted goods to be imported, according to regulations prescribed by itself, and, among others, admitted the  goods upon which duties are now demanded. These goods remained at Castine until after it was evacuated by the enemy; and, upon the re-establishment of the American government, the collector of the customs, claiming a right to American duties on the goods, took the bond in question from the defendant, for the security of them. \n Under these circumstances, we are all of opinion, that the claim for duties cannot be sustained. By the conquest and military occupation of Castine, the enemy acquired that firm possession which enabled him to exercise the fullest rights of sovereignty over that place. The sovereignty of the United States over the territory was, of course, suspended, and the laws of the United States could not longer be rightfully enforced there, or be obligatory upon the inhabitants who remained and submitted to the conquerors. By the surrender the inhabitants passed under a temporary allegiance to the British government, and were bound by such laws, and such only, as it chose to recognise and impose. From the nature of the case, no other laws could be obligatory upon them, for where there is no protection of allegiance or sovereignty, there can be no claim to obedience. Castine was, therefore, during this period, so far as respected our revenue laws, to be deemed a foreign port; and goods imported into it by the inhabitants, were subject to such duties only as the British government chose to require. Such goods were in no correct sense imported into the United States. The subsequent evacuation  by the enemy, and resumptiory of authority by the United States.  did not, and could not, change the character of the previous transactions. The doctrines respecting the jus postliminii are wholly inapplicable to the case. The goods were liable to American duties, when imported, or not at all. That they are so liable at the time of importation is clear from what has been already stated; and when, upon the return of peace, the jurisdiction of the United States was re-assumed, they were in the same predicament as they would have been if Castine had been a foreign territory ceded by treaty to the United States, and the goods had been previously imported there. In the latter case, there would be no pretence to say that American duties could be demanded; and, upon principles of public or municipal law, the cases are not distinguishable. The authorities cited at the bar would, if there were any doubt, be decisive of the question. But we think it too clear to require any aid from authority. \nJudgment affirmed, with costs. \n \n\n ", " \nOpinion \n\n \n \n Mr. Justice STORY delivered the opinion of the Court. The shipment in this case was made by Moreira, Viera, & Machado, a house of trade established in London, on the account of the house, to Moreira, one of the partners in the house, who was a native of, and domiciled in, Lisbon, in the kingdon of Portugal; and the only question is, whether the hare of Moreira in the shipment is exempted from condemnation by reason of his neutral domicil. It has been long since decided in the Courts of Admiralty,  that the property of a house of trade established in the enemy's country, is condemnable, as prize, whatever may be the domicil of the partners. The trade of such a house is deemed essentially a hostile trade, and the property engaged in it is, therefore, treated as enemy's property, notwithstanding the neutral domicil of any of the company. The rule then, being inflexibly settled, we do not now feel at liberty to depart from it, whatever doubt might have been entertained, if the case were entirely new. \nDecree affirmed with costs. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Justice STORY, delivered the opinion of the Court. \nNo doubt is entertained by this Court, that the Admiralty rightfully possesses a general jurisdiction in cases of material men; and if this had been a suit in personam, there would not have been any hesitation in sustaining the jurisdiction of the District Court. Where, however, the proceeding is in rem to enforce a specific lien,  it is incumbent upon those who seek the aid of the Court, to establish the existence of such lien in the particular case. Where repairs have been made, or necessaries have been furnished to a foreign ship, or to a ship in a port of the State to which she does not belong, the general maritime law, following the civil law, gives the party a lien on the ship itself for his security; and he may well maintain a suit in rem in the Admiralty to enforce his right. But in respect to repairs and necessaries in the port or State to which the ship belongs, the case is governed altogether by the municipal law of that State; and no lien is implied, unless it is recognised by that law. Now, it has been long settled, whether originally upon the soundest principles it is now too late to inquire, that by the common law, which is the law of Maryland, material men and mechanics furnishing repairs to a domestic ship, have no particular lien upon the ship itself for the recovery of their demands. A shipwright, indeed, who has taken a ship into his own possession to repair it, is not bound to part with the possession until he is paid for the repairs, any more than any other artificer. But if he has  once parted with the possession,  or has worked upon it without taking possession, he is not deemed a privileged creditor, having any claim upon the ship itself. \nWithout, therefore, entering into a discussion of the particular circumstances of this case, we are of opinion, that here there was not, by the principles of law, any lien upon the ship; and, consequently, the decree of the Circuit Court must be reversed. \nDecree reversed. 3 \n \n\n ", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the Court. The whole merits of this cause rest upon the question, whether the defendants, Portia Hodgson, and Cornelia Hopkins, took an estate in fee simple, in one moiety of the land stated in the bill, by descent, as nieces and heirs of Lucy Paradise, widow of John Paradise, upon her death in 1814. If they did, then the contract for the sale of the land to the plaintiff ought to be fulfilled; if not, then the contract ought to be rescinded. \nTwo objections are urged against the title. First,  that Lucy Paradise, at the time of her death, was a British subject, and so not capable of passing the land in question by descent; secondly, if so entitled, yet, upon her death, the land escheated to the commonwealth of Virginia, for want of heirs legally entitled to take the same by descent. \nIt appears, that Lucy Paradise took her moeity of the estate in question by devise from her father, Philip Ludwell, who was a native of Virginia, where, also, his daughter Lucy was born. Sometime before the year 1767, he removed with his family, including this daughter, to England, where he died in  1767. In 1769, this daughter was married in England to John Paradise, (a British subject), by whom she had issue a daughter, Lucy, who was born in England, about 1770, afterwards, in 1787, in England, married Count Barziza, a Venetian subject, by whom she had two sons, one born in Venice in February, 1789, and the other in Venice, in August, 1796, both of whom are now living. The Countess Barziza died in Venice, in August, 1800, leaving no other issue except her two sons, and neither she, nor her husband, nor her sons, were ever in the United States. In the year 1787, John Paradise  came with his wife to Virginia, and returned with her to England in the year 1789, where he died in 1796. After the death of her husband, Lucy Paradise treated the land in controversy as her own, exercising acts of ownership over it; and about the year 1805, returned to Virginia, where she died intestate, in possession of the land, in 1814, leaving no issue but her two grandsons, the children of the Countess Barziza, and the defendants Portia and Cornelia, her nieces, who would be her heirs at law if no such issue were living. \nFrom this summary statement, it is clear, that the two sons of the Countess Barziza are aliens to the commonwealth of Virginia, and, of course, cannot take the estate in question, by descent from their grandmother, unless their disability is removed by the treaty of 1794. For though an alien may take an estate by the act of the parties as by purchase; yet he can never take by the act of the law, as by descent, for he has no inheritable blood. But the  objection now supposed to exist is, that under these circumstances, although the grandsons cannot, as aliens, take by descent; yet they answer in some sort, to the description of \"heirs,\" and, therefore,  prevent the estate from descending to the nieces who have a legal capacity to take, because, strictly speaking, they are not heirs. The law is certainly otherwise. Where a person dies, leaving issue, who are aliens, the latter are not deemed his heirs in law, for they have no inheritable blood, and the estate descends to the next of kin, who have an inheritable blood, in the same manner as if no such alien issue were in existence. 1 In the present case, therefore, the defendants, the nieces of Lucy Paradise, are her heirs at law, entitled to take by descent, whatever estate could rightfully pass to her heirs, unless the British treaty of 1794 enlarged the capacity of her grandsons to take by descent, a point which will be hereafter considered. And this brings us to the other question in the cause, whether Lucy Paradise, under the circumstances of the case, had such an estate in the land, as could be law pass by descent to her heirs. \nThere is no question that she took an estate in fee simple by devise from her father; but it is supposed, that although born in Virginia, by her removal to England, with  her father, before, and remaining there until long after, the American revolution, she must be considered as electing to remain a  British subject, as well by operation of law, as by the statutes of Virginia on this subject, because an alien to that commonwealth. And if she became  an alien, then the estate held by her could not pass by descent, but for defect of inheritable blood escheated to the government. 2 \nAdmitting that Lucy Paradise did so become an alien, it is material to inquire what effect the treaty of peace of 1783 had upon her case; and upon the best consideration that we can give to it, we are of opinion that the sixth article of that treaty 3 completely protected her estate from forfeiture by way of escheat for the defect of alienage. That defect was a disability solely occasioned by the war, and the separation of the colony from the mother country; and under such circumstances, a seizure of the estate by the government, upon an inquest of office, for the supposed forfeiture, would have been a confiscation of the property in the sense in which that term is used in the treaty.When the 6th article  of the treaty declared, \"that no future confiscation should be made,\" it could not mean to confine the operation of the language to confiscations jure belli; for the treaty itself  extinguished the war, and, with it, the rights growing out of war; and when it further declared, that no person should, on account of the part he had taken in the war, suffer any future loss or damage, either in his person, liberty, or property, it must have meant to protect him from all future losses of property, which but for the war would have remained inviolable. The fifth article of the treaty also materially illustrates and confirms this construction. It is there agreed, that Congress shall recommend to the State legislatures to provide for the restitution of all estates of British subjects, &c. which had been confiscated. Yet, why restore such estates, if, eo instanti, they were forfeitable on account of alienage? This subject has been heretofore before us, and although no opinion was then pronounced, it was most deliberately considered. We do not now profess to go at large into the reasoning upon which our present opinion is founded. It would require more leisure than is consistent  with other imperious duties; and we must, therefore, content ourselves with stating, that the doctrine here asserted is the decided judgment of the Court. \nIf the case were not protected by the treaty of 1783, it might become necessary to consider whether it is aided by the ninth article of the treaty of 1794, which declares, that British subjects, who now hold lands in the United States, shall continue to hold them, according to the nature and tenure of their respective estates and titles therein, and that as to such lands, and the legal remedies incident thereto, neither they, nor their heirs or assigns,  shall be regarded as aliens.  It does not appear, by the bill in this case, that Lucy Paradise was in the actual possession or seisin of the land at the time of the treaty. Nor is it necessary, because the treaty applies to the title, whatever it is, and gives it the same legal validity as if the parties were citizens. 4 But although it does not directly appear by the bill what the title of Lucy Paradise was, at the time of the treaty; yet, as the title is asserted in her, both before and after the treaty, and there is no allegation of any intermediate transfer, it must be presumed in this suit, that she never parted with her title. It follows, that in this view also, her title was completely confirmed, free from the taint of alienage; and, that by the express terms of the treaty, it might lawfully pass to her heirs. \nAnd here it becomes material to ascertain whether the treaty of 1794, under the description of heirs, meant to include any other persons than such as were British subjects or American citizens, at the time of the descent cast; and it is our opinion, that the intention was not to include any other persons. It cannot be presumed, that the treaty stipulated  for benefits to any persons who were aliens to both governments. Such a construction would give to this class of privileges and immunities far beyond those of the natives of either country; and it would also materially interfere with the public policy common to both. We have, therefore, no hesitation to reject any interpretation which would give to persons, aliens to both  governments, the privileges of both; and in this predicament are the children of the Countess Barziza. The rule, then, of the common law, which gives the estate to the next heirs having inheritable blood, must prevail in this case. \nWe have not thought it necessary to go into an examination of the articles for a marriage settlement entered into between Lucy Paradise and John Paradise, on their marriage, for two reasons: first, the articles were merely executory, and, being entered into by Mrs. Paradise when under age, and not afterwards ratified by her, they were not binding upon her; secondly, if they were binding, yet, inasmuch as the only persons in whose favour they could now be executed are aliens incapable of holding the estate to their own use, no Court of Equity would, upon the general policy  of the law, feel itself at liberty to decree in their favour. \nDecree dismissing the bill affirmed, with costs. 5 \n \n\n ", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the court. The act of Congress upon which this indictment is founded provides, \"that if any person or persons whatsoever, shall, upon the high seas, commit the crime of piracy, as defined by the law of nations, and such offender or offenders shall be brought into, or found in the United States, every such offender or offenders shall, upon conviction thereof, &c. be punished with death.\" \n The first point made at the bar is, whether this enactment be a constitutional exercise of the authority delegated  to Congress upon the subject of piracies. The constitution declares, that Congress shall have power \"to define and punish piracies and felonies committed on the high seas, and offences against the law of nations.\" The argument which has been urged in behalf of the prisoner is, that Congress is bound to define, in terms, the offence of piracy, and is not at liberty to leave it to be ascertained by judicial interpretation. If the argument be well founded, it seems admitted by the counsel that it equally applies to the 8th section of the act of Congress of 1790, ch. 9. which declares, that robbery and murder committed on the high seas shall be deemed piracy; and yet, notwithstanding a series of contested adjudications on this section, no doubt has hitherto been breathed of its conformity to the constitution. \nIn our judgment, the construction contended for proceeds upon too narrow a view of the language of the constitution. The power given to Congress is not merely \"to define and punish piracies;\" if it were, the words \"to define,\" would seem almost superfluous, since the power to punish piracies would be held to include the power of ascertaining and fixing the definition of the crime.  And it has been very justly observed, in a celebrated commentary, that the definition of piracies might have been left without inconvenience to the law of nations, though a legislative definition of them is to be found in most municipal codes. 3 But the power is also given \"to define and punish felonies on the high seas, and offences against the law of nations.\" The term \"felonies,\" has been supposed in the same work, not to have a very exact and determinate meaning in relation to offences at the common law committed within the body of a county. However this may be, in relation to offences on the high seas, it is necessarily somewhat indeterminate, since the term is not used in the criminal jurisprudence of the admiralty in the technical sense of the common law. 4 Offences, too, against the law of nations, cannot, with any accuracy, be said to be completely ascertained and defined in any public code recognised by the common consent of nations. In respect, therefore, as well to felonies on the high seas as to offences against the law of nations, there is a peculiar fitness in giving the power to define as well as to punish; and there is not the slightest reason to doubt  that this consideration had very great weight in producing the phraseology in question. \nBut supposing Congress were bound in all the cases included in the clause under consideration to define the offence, still there is nothing which restricts it to a mere logical enumeration in detail of all the facts constituting the offence. Congress may as well define by using a term of a known and determinate meaning, as by an express enumeration of all the particulars included in that term. That is certain  which is by necessary reference made certain. When the act of 1790 declares, that any person who shall commit the crime of robbery, or murder, on the high seas, shall be deemed a pirate, the crime is not less clearly ascertained than it would be by using the definitions of these terms as they are found in our treatises of the common law. In fact, by such a reference, the definitions are necessarily included, as much as if they stood in the text of the act. In respect to murder, where \"malice aforethought\" is of the essence of the offence, even if the common law definition were  quoted in express terms, we should still be driven to deny that the definition was perfect, since the meaning of \"malice aforethought\" would remain to be gathered from the common law. There would then be no end to our difficulties, or our definitions, for each would involve some terms which might still require some new explanation. Such a construction of the constitution is, therefore, wholly inadmissible. To define piracies, in the sense of the constitution, is merely to enumerate the crimes which shall constitute piracy; and this may be done either by a reference to crimes having a technical name, and determinate extent, or by enumerating the acts in detail, upon which the punishment is inflicted. \nIt is next to be considered, whether the crime of is defined by the law of nations  with reasonable certainty. What the law of nations on this subject is, may be ascertained by consulting the works of jurists, writing professedly on public law; or by the general usage and practice of nations; or by judicial  decisions recognising and enforcing that law. There is scarcely a writer on the law of nations, who does not allude to piracy as a crime of a settled and  determinate nature; and whatever may be the diversity of definitions, in other respects, all writers concur, in holding, that robbery, or forcible depredations upon the sea, animo furandi, is piracy. The same doctrine is held by all the great writers on maritime law, in terms that admit of no reasonable doubt. 5  The common law, too, recognises and punishes piracy as an offence, not against its own municipal code, but as an offence against the law of nations, (which is part of the common law,) as an offence against the universal law of society, a pirate being deemed an enemy of the human race. Indeed, until the statute of 28th of Henry VIII. ch. 15. piracy was punishable in England only in the admiralty as a civil law offence; and that statute, in changing the jurisdiction, has been universally admitted not to have changed the nature of the offence. 6 Sir Charles Hedges, in his charge at the Admiralty sessions, in the case of Rex v. Dawson, (5 State Trials,) declared in emphatic terms, that \"piracy is  only a sea term for robbery, piracy being a robbery committed within the jurisdiction of the admiralty.\" Sir Leoline Jenkins, too, on a like occasion, declared that \"a  robbery, when committed upon the sea, is what we call piracy;\" and he cited the civil law writers, in proof. And it is manifest from the language of Sir William Blackstone, 7 in his comments on piracy, that he considered the common law definition as distinguishable in no essential respect from that of the law of nations. So that, whether we adsert to writers on the common law, or the mar timo law, or the law of nations, we shall find that they universally treat of piracy as an offence against the law of nations, and that its true definition by that law is robbery upon the sea. And the general practice of all nations in punishing all persons, whether natives or foreigners, who have committed this offence against any persons whatsoever, with whom they are in amity, is a conclusive proof that the offence is supposed to depend, not upon the particular provisions of any municipal code, but upon the law of nations, both for its definition and punishment. We have, therefore, no hesitation in declaring, that piracy, by the law of nations, is robbery upon the sea, and that it is sufficiently and constitutionally defined by the fifth section of the act of 1819. \nAnother point has been made in this case, which is, that the special verdict does not contain sufficient facts upon which the Court can pronounce that the  prisoner is guilty of piracy. We are of a different opinion. The special verdict finds that the prisoner is guilty of the plunder and robbery charged in the indictment; and finds certain additional facts from which it is most manifest that he and his associates were, at the time of committing the offence, freebooters upon the sea, not under the acknowledged authority, or deriving protection from the flag or commission of any government. If, under such circumstances, the offence be not piracy, it is difficult to conceive any which would more completely fit the definition. \nIt is to be certified to the Circuit Court, that upon the facts stated, the case is piracy, as defined by the law of nations, so as to be punishable under the act of Congress of the 3d of March, 1819. 8 \n Bynkershoek, (Quaest. Jur. Pub. lib. c. 17.) treating on the subject of piracy, says, \"interest scire qui piratae ac latrones sunt, nam ab his capta dominium non mutant neque adeo postliminio egent. Sic docet ratio; sic auctoritas juris in l. 19. s. 2. l. 24. and l. 27. de Capt. et Postlim. rev. (Dig. lib. 49. tit. 15.) et sic ex pactis quarandam gentium supra probavi. Non est igitur ut addam auctoritates Grotii de Jure B. et. P. l. 3. c. 9. s. 16. Alberici Gentilis de jure belli lib. 1. c. 4. Zoucheii de Jure feciali, p 2. s. 8. qu. 15., aliorumque plurium in eandem sententiam. Qui autem nullius principis auctoritate sive mari sive terra, RAPIUNT, PIRATARUM PRAEDONUMQUE vocabulo intelliguntur.\" \nAzuni (Part 2. c. 5. s. 3.) says, \"A pirate is one who roves the sea in an armed vessel without any commission or passport from any prince or sovereign state, solely on his own authority, and for the purpose of seizing by force, and appropriating to himself without discrimination, every vessel he may meet.For this reason pirates have always been compared to robbers. The only difference between them is, that the sea is the theatre of action for the one, and the land for the other.\" (s.  11.) \"Thus, as pirates are the enemies of the human race, piracy is justly regarded as a crime against the universal laws of society, and is every where punished with death. As they form no national body, as they have no right to arm, nor make war, and on account of their indiscriminate plunder of all vessels are considered only as public robbers, every nation has a right to pursue, and exterminate them, without any declaration of war. For these reasons it is lawful to arrest them, in order that they may undergo the punishment merited by their crimes.\" (s. 12.) \"Pirates having no right to make conquests, cannot, therefore, acquire any lawful property in what they take; for the law of nations does not authorize them to deprive the true owner of his property, who always retains the right of reclaiming it wherever it may be found. Thus, by the principles of common law, as well as the law of nature, at whatever period, or in whatever manner, things taken by a pirate may be recovered, they return again to their former owners, who lose none of their rights by such unjust usurpation.\" (See Azuni, part. 2. c. 5. art. 3. p. 351. 361. Mr. Johnson's translation.) \nLord Bacon, in his dialogue  De Bello Sacro says, \"Indubitatum semper fuit, bellum contra piratas juste geri posse per nationem quamcumque, licet ab iis minime infestatam et laesam, &c. &c. Vera enim causa hujus rei haec est, quod piratae communes humani generis hostes sint; quos idcirco omnibus nationibus persequi incumbit, non tam propter metus proprios quam respectu fae deris inter homines sociales. Sicut enim quaedam sunt faedera inscriptis et in tractatus redacta contra hostes particulares inita; ita naturalis et tacita confaederatio inter omnes homines intercedit contra communes societatis humanae hostes.\" (10 Bac. Works, 313, 314. edit. 1803.) \nMartens, in his Essay on Privateers, Captures and Recaptures, (c. 1. s. 1.) says, \"L'armateur differe du Pirate, (1.) Le premier est muni d'une commission ou de lettres de marque du souverain, dont le pirate est destitue. (2.) L'armateur suppose le cas d'une guerre, (ou du moins ce li de represailles,) le pirate pille au sei de la paix comme au milieu de la guerre. (3.) L'armateur s'oblige d'observer les ordonnances et les instructions qui lui ont ete donnees, et de n'attaquer qu'en consequence de celles ci de l'ennemi, et ceux des vaisseux neutres qui font un  commerce illicite, le pirate pille indistinctement les vaisseaux de toutes les nations, sans observer meme les loix de la guerre.' \nRutherforth (Inst. b. 2. c. 9. s. 9. p. 481.) speaking with reference to the law of nations, says, \"All wars of a nation against its external enemies are not public wars. To make a war a public one, both the contending parties must be public persons; that is, it must be a war of one nation against another, &c. Where a nation makes war upon pirates or other robbers, though these are external enemies, the war will be a mixed one; it is public on one side, because a nation or public person is one of the parties; but it is private on the other side, because the parties on this side are private persons, who act together occasionally, and are not united into a civil society. A band of robbers or a company of pirates may in fact be united to one another by compact, &c. But they are still, by the law of nature, only a number of unconnected individuals; and consequently, in the view of the law of nations they are not considered as a collective body or public person. For the compact by which they unite themselves is void, because the matter of it is unlawful,  &c. &c.The common benefit which a band of robbers or a company of pirates propose to themselves consists in doing harm to the rest of mankind.\" \nWoodeson, (Lect. 34. vol. 2. 422.) treating on captures at sea, after stating that the law of nations is part of the laws of England, and that captures at sea may happen either by pirates, or by way of reprisal, or as prize of war, says, \"Piracy, according to the law of nations, is incurred by depredations on or near the sea, without authority from any prince or State.\" He then quotes the opinion of Sir Leoline Jenkins with approbation, that it is piracy, not only when a man robs without any commission at all, but when, having a commission, he despoils those with whom he is not warranted to fight or meddle, such as are de legantia vel amicitia of the prince or state which hath given him his commission. He then adds: \"But according to the judgments of our domestic tribunals, a bare assault without taking or pillaging something away does not constitute the crime, though Molloy pretends, that by the law of nations it is otherwise. Yet it does not seem necessary that any person should be on board the pillaged vessel.\" \"If these violations of  property be perpetrated by any national authority, they are the commencement of a public war; if without that sanction, they are acts of piracy.\" He then proceeds to state several cases which had arisen in the Admiralty of England, and sums up his remarks as follow: \"The foregoing particulars are the more deserving of consideration, because it seems agreed that when a piratical taking is ascertained, it becomes a clear and indisputable consequence that there is no transmutation of property. No right to the spoil vests in the piratical captor; no right is derivable from them to any recaptors in prejudice of the original owners. These piratical seizures being wholly unauthorized, and highly criminal by the law of nations, there is no pretence for devesting the dominion of the former proprietor. This principle, therefore, 'a piratis et latronibus capta dominium non mutant,' is the received opinion of ancient civilians and more modern writers, on general jurisprudence. The same doctrine was maintained in our Courts of Common Law long antecedent to the great cultivation and improvements made in the science of the law of nations. And he remarks in a note, (p. 427. note n.) \"I have looked  into the indictment against Luk Ryan, tried at the Admiralty Sessions, March, 1782, for piracy, and who is alleged to have had a Dutch commission. He was indicted not for piracy generally by the law of nations but for that, being a natural born subject, he piratically, &c. against the form of the statute,\" From the whole scope of Mr. Woodeson's observations on the subject of piracy, it is very clear that he considered piracy, as punishable by the law of the admiralty, to be no other than piracy by the law of nations. The definition of piracy, and Mr. Woodeson's comments are cited with approbation by Mr. Gwillim in his late edition of Bacon's Abridgment. (5 Bac. Abr. 310. edit. 1807. London.) \nBurlamaqui (Part. 2. c. 7. s. 41.) says: \"Lastly, as to the wars of robbers and pirates, if they do not produce the effects above-mentioned, (transmutation of property on capture,) nor give to those pirates a right of appropriating what they have taken, it is because they are robbers and enemies of mankind, and, consequently, persons whose acts of violence are manifestly unjust, which authorizes all nations to treat them as enemies. \nThus far, the authorities cited are such as profess to treat  of piracy in terms according to the law of nations, the notion of which was manifestly derived from the civil law, \"on which,\" as Sir William Scott observes, (The Maria, 1 Rob. 340.) \"great part of the law of nations is founded.\" Indeed, in the law of England, it is treated altogether as a civil law offence, and referred to that law for its definition and punishment. Piracies and depredations at sea, are capital offences by the civil law. (5 Bac. Abr. Piracy, 311. Edit. ubi supra, 3 Inst. 112. Hawk. P. C. c. 37. 2 East, P. C. 796. 4 Bl. Comm. 72.) The commentaries of the common law writers on the subject of piracy will be more fully considered hereafter. \nLet us now advert to the definitions of the civil law and maritime writers. \nIn the Novels (Nov. 134. tit. 17. c. 13.) it is declared, \"Pro furto autem nolumus omnino quodlibet membrum abscindi, aut mori; sed aliter eum castigari. Fures autem vocamus qui occulte et sine armis hujusmodi delinquunt. Eos vero, qui violenter aggrediuntur aut cum armis aut sine armis in domibus ant itineribus aut IN MARI poenis eos legalibus subdi jubemus.\" \nCalvinus, in his Lexicon Juridicum, says: \"Piratae dicuntur praedatores marini; sic dicti  vel a pirata, qui prius maria infestavit, vel a Graeco [SEE ORIGINAL SOURCE], id est, transeo, quod conspecta insula in illam transirent, jam praedaturi. Hinc piratica ars est, quam exercent.\" In the French Code des Prises, (Edition of M. Dufriche Foulaines, Paris, 1804, tom. 1. p. 6.) the editor says: \"Le pirate est celui qui parcourt les mers avec une batiment arme sans commission ou patente d'aucune etat, dans la vue exclusive de s'approprier tous les navires par la force. La piraterie est un assassinat; tout puissance doit faire arreter et judger des pareils brigands, et en purger la terre.\" Emerigon (Assur. tom. 1. c. 12. s. 28. p. 523.) says: \"Les Pirates sont ceux qui courent les mers sans commission d'aucun Prince ni Etat souverain pour depreder les vaisseaux qu'ils rencontrent.\" \"Les Ennemis sont ceux, qui autorises par un prince, on etat souverain font la guerre dans la forme etablie pan le droit des gens; au lieu que les Pirates sont de simples particuliers qui depredent le premier navire qu'ils recontrent.\" \"Les hostilites se commettent de nation a nation; au lieu que la piraterie est un brigandage qui s'exerce sur mer par gens sans aveu, et d'une maniere furtive.\" \"Les  pirates sont ennemis du genre humain.\" \"La piraterie, on le brigandage sur mer, est un delit contre la loi universelle des societies,\" &c. And Emerigon fortifies his opinion on this subject, by citations from the civil law; from other maritime writers, and from Blackstone's Commentaries. It is plain, therefore, that he considered piracy as defined in the civil law, the maritime law, and the common law of England, as the same crime. \nBouchard (cited in 1 Emerigon, c. 12. s. 28. p. 527.) \"Les pirates n'ont pas le droit des armes. Ce sont des voleurs et assassins qui ne forme pas un corps d'etat. Ennemis des toutes les nations contre lesquelles fls exercent indistinctement leurs brigandages, toutes les nations sont en droit de courir sus, et de les exterminer sans declaration de guerre.\" \nM. Bonnemant, in his edition of the Chevalier De Habreu's treatise on maritime captures, (edit. 1802, Paris, part. 1. c. 1. s. 5. p. 15. note,) says, \"les pirates sont ceux dont la navigation, les actions et les entreprises ne sont autorisees ni avonees par aucune puissance, qui agissent sur la propriete publique et particuliere contre le vaeu de toutes les nations.\" And De Habreu himself (as translated  by M. Bonnemant, Part 2. c. 6. s. 1. p. 100, 101.) says, \"Selon la definition de la prise, il paroit que le droit d'armer en course n'appartient qu'a ceux qui sont ennemis autorises, appellees, en Latin, hostes. D'ou il s'ensuit que les brigands et les pirates sont exclus de ce droit; qu'ils ne peuvent pretendre aux privileges que les loix de la guerre accorde aux ennemis, et qu'au contraire ils meritent d'etre punis rigoureusement comme les malfaiteurs, et qu'on est autorise a se saisir de tous leurs biens.\" \"De tous les tems les pirates ont ete regardes comme des voleurs publics et des perturbateurs de la paix. C'est pour cela qu'il est libre a quiconque s'en saisit de leur oter la vie sans se rendre coupable d'injustice. La prejudice qu'ils causent a la tranquillite publique, a la liberte du commerce, et a la surete de la navigation, a fait que toutes les nations se sont accordees a les poursuivre et a les punir avec la plus grande rigueur.\" \nFerriere (Dict. du Droit. art. Pirates) says, \"Pirates sont des corsaires, ecumeurs de mer, qui font des courses sur mer sans aveu ni authorite [sic] du Prince ou du Souverain.\". \nIn the Encyclopedie des Sciences, &c. (Edit. 1765, art. Pirate,)  it is said, \"On donne ce nom (Pirate) a des bandits, qui maitres d'une vaisseau vont sur mer attaquer les vaisseaux marchands pour les piller et les voler.\" \nValin (Traite des Prises, c. 3. s. 2. p. 29.) says, \"Or la peine des pirates ou forbans est celle du dernier supplice, suivant l'opinion commune; parceque ce sont des ennemis declares de la societe, des violateurs de la foi publique and du droit des gens, des voleurs publiques a main arme et a force ouverte.\" \nStraccha says, (De Naut. Part. 3. n. 30.) \"Inter Piratam et Latronem nulla alia est differentia nisi quia Pirata depraedator est in mari.\" \nCasaregis (Disc. 64. n. 4.) says, \"Proprie pirata ille discitur qui sine patentibus alicujus principis ex propria tantum et privata auctoritate per mare discurrit depredendi causa.\" \nDr. Brown (2 Civ. and Adm. Law, 461, 462.) says, \"Piracy is depredation without authority from any Prince or State, or transgression of authority by despoiling beyond its warrant.\" \"Unlawful depredation is of the essence of piracy.\" \nBeawes (Lex Mercatoria art. Piracy, p. 250.) says, \"A pirate is a sea thief, or an enemy of human kind, also aims at enriching himself by marine robberies committed either by  force, fraud, or surprise, on merchants or other traders at sea.\" \nMolloy (b. 1. c. 4. s. 1.) says, \"A pirate is a sea thief, or hostis humani generis, who, for to enrich himself either by surprise, or open force, sets upon merchants or others trading at sea, ever spoiling their lading, if by possibility they can get the mastery.\" \nMarshall (Insur. c. 12. s. 11. p. 556.) says, \"The crime of piracy or robbery on the high seas, is an offence against the universal law of society.\" \nIt is also said in 16 Viner's Abridgment, (art. Pirate and Piracy, A. p. 556.) and in Cowell's Interpreter, (Pirate,) \"A pirate is now taken for one who maintains himself by pillage and robbery at seal.\" \nComyn's (Dig. Admiralty, E. 3.) defines piracy thus: \"Piracy is when a man commits robbery upon the sea;\" and he cites as authority, 3 Inst. 113. and 1 Sir Leol. Jenk. 94. \nLord Coke says, (3 Inst. 113. Co. Litt. 391.) \"This word pirate, in Latin, pirata, from the Greek word [SEE ORIGINAL SOURCE], which again comes from [SEE ORIGINAL SOURCE] a transcendo mare, of roving upon the sea; and, therefore, in English, is called a rover and robber upon the sea.\" \nSir Leoline Jenkins, in his charge at the admiralty  sessions in 1668, says: \"You are, therefore, to inquire of all pirates and sea rovers, they are in the law hostes humani generis, enemies, not of one nation, or of one sort of people only, but of all mankind. They are outlawed as I may say, by the laws of all nations; that is, out of the protection of all princes, and of all laws whatsoever. Every body is commissioned, and is to be armed against them as rebels and traitors to subdue and root them out. That which is called robbing upon the highway, the same being done upon the water, is called piracy. Now, robbery as it is distinguished from thieving or larceny, implies not only the actual taking away of my goods, while I am, as we say, in peace, but, also, the putting me in fear by taking them by force an arms, out of my hands, or in my sight and presence. When this is done upon the sea, without a lawful commission of war or reprisals, it is downright piracy.\" Vol. 1. p. 86. \nAgain; in another charge, he says, (vol. 1. p. 94.) \"The next sort of offences pointed at in the statute [28 Hen. VIII. ch. 15.] are robberies; and a robbery, when it is committed upon the sea, is what we call piracy. A robbery, when it is committed upon  the land, does imply three things, 1. That there be a violent assault; 2. That a man's goods be actually taken from his person or possession; 3. That he who is despoiled be put in fear thereby. When this is done upon the sea, when one or more persons enter on board a ship with force and arms, and those in the ship have their ship carried away by violence, or their goods taken away out of their possession, and are put in fright by the assault, this is piracy; and he that does so is a pirate or a robber within the statute.\" \nthe statute of Henry VIII. here referred to, does not contain any description of piracy. Before that statute, piracy was only cognizable by the civil law in the Admiralty Court. But statute gave the High Commission Court (created by that statute) jurisdiction of \"all treasons, felonies, robberies, murders, and confederacies committed in, or on the sea,\" &c. The term piracy is not found in the statute, and it is only as a robbery upon the sea that the High Commission Court has jurisdiction of piracy. Sir Leoline Jenkins, therefore, refers to the civil law definition of the offence of piracy; for it is agreed on all sides, that the statute of Henry VIII. has  not altered the nature of the offence. (See 1 Hawk. P.C. b. 1. c. 37.) \nTarga (as I find him quoted by his Spanish translator, Gison, Reflex. c. 61. De los Corsarios o Pyratas, for the original is not before me) says, \"Esta (depredacion) se comete de dos modos, o por causa de guerra declarada entre dos naciones, &c. o por modo de hurto violento como Ladrones del Mar y como hacen los robos en terra los salteadores de caminos; y esto se compuela con la authentica del Derecho Civil, (a) que distingue la pyrateria del robo,\" &c. Again; \"A los pyratas como tambien a los salteadores de camino, enemigos comunes, opresores de la libertad y comercio, y como a violadores del derecho de las gentes, puede qualquiera oponerse y los ministros y subditos del principe pueden perseguir los y prender los aunque sea fuera del dominio y se hayan refugiado a los estados confinantes, sin que per esso quede violada la jurisdiction; y presas que sean, se pendran en poder de la justicia de acquel Principe en cuyo estado han sido cogidos.\" Again; \"Y assi concluyo, diciendo, que deben todos guardarse en el mar de Pyratas, y en la tierra de Ladrones; y todo aquel, que en el mar, playa, puerto, o otro seno  de mar, o rio navigable, roba o apresa, ya sea amigo, esto es, enemigo no declarado, y tambien los paysanos, o enemigos propriaments tales, o con patente, estandarte, o sin el, o con engano, o fuerza, siempre es pyrata.\" \na Dig. lib. 49. tit. 15. l. 19. s. 2. \nCitations from civilians and maritime writers to the same effect might be multiplied; but they would unnecessarily swell this note. It remains only to notice the doctrines which have been held by the tribunals of Great Britain, and asserted by her common law writers on the subject of piracy. \nHawkins (P.C. b. 1. c. 37.) says, \"A pirate at the common law is a person who commits any of those acts of piracy, robbery and depredation upon the high seas, which, if committed upon land, would have amounted to felony there.\" \nFrom the terms of this definition, (if it may be so called,) it 7ight be supposed, that by piracy at the common law, something was meant peculiar to that law, and not piracy by the civil law, or the law of nations. But that was certainly not the meaning of the writer. For it is perfectly well settled, that piracy is no felony at common law, being out of its jurisdiction; and before the statute of 28 Henry VII.  c. 15. it was only punishable by the civil law. That statute, however, does not (as has been already stated) alter the nature of the offence in this respect; and, therefore, a pardon of all felonies generally, does not extend to it. (2 East's P.C. 796. 1 Hawk. c. 37. s. 6. 8. 10. 1 Hale, 354. 2 Hale, 18. 3 Inst. 112.) And it was also determined in Rex v. Morphes, (Salk. 85.) that \"no attainder for piracy wrought corruption of blood, for it was no offence at common law. (2 East's P.C. 796. Co. Litt. 391. a.) The intention of Hawkins must have been to use the phrase \"at the common law\" in its most comprehensive sense; in which sense the law of nations itself is a part of the common law; since all offences against the law of nations are punishable by the criminal jurisprudence of England. \nBlackstone, in the Commentaries, (4 Comm. 71. 73.) evidently proceeds upon this notion. He says, \"The crime of piracy, or robbery and depredation upon the high seas, is an offence against the universal law of society, a pirate being, according to Sir Edward Coke, hostis humani generis.\" He goes on to remark, that every community hath a right to punish it, for it is a war against all mankind. He  then gives the definition of piracy by Hawkins, as the definition of the common law; and then states the several statutes made in England on the subject of piracy, concluding thus: \"These are the principal cases in which the state law of England interposes to aid and enforce the law of nations as a part of the common law, by inflicting an adequate punishment for offences against that universal law committed by private persons.\" \nThe state trials for piracy in the reign of William III. are entitled to great consideration, both from the eminent talents of the Judges who constituted the tribunal, and the universal approbation of the legal principles asserted by them.It is, also, worthy of remark, that in none of these indictments was there any averment that the prisoners were British subjects; and most of them were for piracies committed on foreign subjects and vessels. They were all framed as indictments at common law, or for general piracy, without reference to any British statute. \nIn Rex v. Dawson and others, (8 William III. 1696. 5 State Trials, 1 edit. 1742.) the Court was composed of Sir Charles Hedges, Judge of the High Court of Admiralty, (as President,) Lord Chief Justice  Holt, Lord Chief Justice Treby, Lord Chief Baron Ward, Mr. Justice Rookby, Mr. Justice Turton, Mr. Justice Eyre, Mr. Baron Powis, and Doctors Lane, King, and Cook, (Civilians.) Sir Charles Hedges delivered the charge to the grand jury, and among other things, directed them as follows: \"Now piracy is only a sea term for robbery, piracy being a robbery committed within the jurisdiction of the Admiralty. If any man be assaulted within that jurisdiction, and his ship or goods violently taken away without legal authority, this is robbery and piracy. If the mariners of a ship shall violently dispossess the master, and afterwards carry away the ship itself, or any of the goods, or tackle, apparel or furniture, with a felonious intention, in any place where the Lord Admiral hath, or pretends to have, jurisdiction, this is also robbery and piracy.The intention will, in these cases, appear, by considering the end for which the fact is committed, and the end will be known, if the evidence show you what hath been done. The King of England hath not only an empire or sovereignty over the British seas for the punishment of piracy, but in concurrence with other Princes and States, an undoubted jurisdiction  and power in the most remote parts of the world. If any person, therefore, native or foreigner, Christian or Infidel, Turk or Pagan, with whose country we are in amity, trade or correspondence, shall be robbed or spoiled, in the narrow or other seas, whether the Mediterranean, Atlantic, or Southern, or any branches thereof, either on this or the other side of the line, IT IS A PIRACY, within the limits of your inquiry, and cognizable by this Court.\" It seems impossible to doubt, that Sir Charles Hedges here understood piracy to be punishable by all nations, as a crime against the law of nations, and that its true definition is the same in the civil and common law, as in the law of nations, viz. robbery upon the seas; and that, as such, it was punishable by the British Courts in virtue of their general concurrent jurisdiction on the seas. \nIn Rex v. Dawson and others, there were several indictments. 1. The first was for piracy in robbing and plundering the ship Gunsway, belonging to the Great Mogul and his subjects, in the Indian seas. 2. The second for piracy, in forcibly seizing and feloniously taking, stealing, and carrying away a merchant ship called the Charles 2d. belonging  to certain of his majesty's subjects unknown, on the high seas, about three leagues from the Groyne in Spain. 3. The third was for piracy on two Danish ships. 4. The fourth for piracy on a Moorish ship. Dawson pleaded guilty; and the other prisoners not guilty, and were upon trial convicted, and all sentenced to death accordingly. It appeared in evidence that the prisoners were part of the crew of the Charles the 2d, and rose upon her near the Groyne, and afterwards ran away with her, and committed the piracies. The Solicitor General, in stating the case to the jury, said, \"They (the prisoners) are arraigned for a very high crime, a robbery upon the seas.\" \"These are crimes against the law of nations, and worse than robbery on land.\" Lord Chief Justice Holt, in delivering the charge to the jury, said, \"that there was a piracy committed on the ship Charles is most apparent by the evidence that hath been given; that is, a force was put upon the master, and some of the seamen on board her, who because they would not agree to go on a piratical expedition, had liberty to depart and be set ashore, &c. &c. So that I must tell you beyond all contradiction, the force put upon the captain,  and taking away this ship, called the Charles 2d, is piracy.\" \nOn the trial of Kidd and others for piracy, &c. in 13th of William III, 1713, (5 State Trials, edit. 1742.) there were several indictments. 1. The first was against William Kidd for the murder of one W. Moore, on the high seas, near the coast of Malabar, in a vessel called the Adventure Galley, of which Kidd was commander. 2. The second was against all the prisoners for piracy in seizing and running away with a certain merchant ship called the Quedash Merchant, then being a ship of certain persons to the jurors unknown, (not stated to be British subjects,) upon the high seas about ten leagues from Cutsheen in the East Indies. In fact, the vessel and cargo appeared by the evidence to belong to Armenian merchants, and then on a voyage from Bengal to Surat. Lord Chief Baron Ward, in charging the jury on this indictment, said, \"the crime charged upon them (the prisoners) is piracy, that is, seizing and taking this ship and the goods in it piratioally and feloniously. This ship belonged to people in amity with the king of England.\" \"If this was a capture on the high seas, and these were the goods of persons in amity with  the king, and had no FRENCH PASS, then it is a plain piracy; and if you believe the witnesses, here is the taking of the goods and ship of persons in amity, and converting them to their own use. Such a taking as this would be felony; and being at seal, it will be piracy.\" The prisoners were convicted and sentenced to death. There were four other indictments, three for piracy on Moorish ships, and one for piracy on a Portuguese ship; and all the prisoners were convicted and sentenced. Mr. Justice Turton in charging the jury on ne of these indictments, said, \"pirates are called hostes humani generis, the enemies to all mankind.\" \nThe case of Rex v. Green (4 anne, 1704. 5 State Trials, 573. edit. 1742.) was a libel or indictment in the Court of Admiralty in Scotland for piracy, manifestly treated both in the libel and the arguments as a crime against the law of nations, and as such, also against the law of Scotland. \nIn Erskine's Institutes of the law of Scotland, in treating of the crime of piracy, the author says, \"piracy is that particular kind of robbery which is committed on the seas.\" (Ersk. Inst. b. 4. tit. 4. s. 65.) He had in the preceding section, (64) declared that, \"robbery  is truly a species of theft; for both are committed on the property of another, and with the same view of getting gain; but robbery is aggravated by the violence with which it is attended.\" The definition of both these crimes seems not at all different from that of the common law. \nThe foregoing collection of doctrines, extracted from writers on the civil law, the law of nations, the maritime law, and the common law, in the most ample manner confirms the opinion of the Court in the case in the text; and it is with great diffidence submitted to the learned reader to aid his future researches in a path, which, fortunately for us, it has not been hitherto necessary to explore with minute accuracy. \nDissent by:", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the Court. Two questions arise upon the instruction to the jury: 1. Whether the bills were prima facie evidence that value had been paid for them by Prior to Welch? 2. Whether, under all the circumstances of the case, Prior was an assignee in equity entitled to maintain the present action? \nUpon the first point, we are to opinion, that the law was correctly laid down by the Court below. The argument of the defendant's counsel admits, that where a bill imports on its face to be for \"value received,\" it is prima facie evidence of that fact between the original parties; but it is stated, that it is not evidence of the fact against third persons. We know of no such distinction. In all cases where  the bill can be used as evidence either against the parties, or against third persons, the same legal presumption arises of its having been given for value received, as exists in relation to a deed expressed to be given for a valuable consideration. In this respect, bills of exchange, and negotiable notes, are  distinguished from all other parol contracts, by authorities which are not now to be questioned. 8 \nThe other question requires more consideration, though it does not in our judgment present any intrinsic difficulty. It has been long since settled, that where a chose in action is assigned by the owner, he shall not be permitted fraudulently to interfere and defeat the rights of the assignee in the prosecution of any suit to enforce those rights. And it has not been deemed to make any difference whether the assignment be good at law, or in equity only. This doctrine was fully recognized by this Court when this case was formerly before  us. 9 It was then applied to a case, where the whole chose in action was alleged to have been assigned; and it  was certainly then supposed that the doctrine in Courts of law had never been pressed to a greater extent. We are now called upon to press it still farther, so as to embrace cases of partial assignments of choses in action. \nIt is contended on behalf of the plaintiff, in the first place, that the facts of this case establish by legal inference, that the articles of agreement were entirely assigned in equity to the plaintiff. If this ground fails, it is in the next place contended, that an assignment was made of the debt due by the articles to the extent of 7,500 dollars, the amount of the bills drawn on Mandeville & Jamesson, and that  this per se, authorizes Prior to sustain the present action. \nIn support of the first position, it is argued, that the bills being prima facie evidence of an equivalent advance made by Prior, the possession by the latter of the articles of agreement, and the delivery to him of the account signed by Mandeville & Jamesson, afford a legal presumption that the articles and account were delivered to him as security for the payment of such advance, and thereby he acquired a lien on them like that  acquired by the delivery of title deeds as security for a debt, which lien has always been deemed to be equivalent to an equitable mortgage.It may be admitted, that according to the course of the authorities in England, and as applicable to the state of land titles there, a deposit of title deeds does, in the cases alluded to, create a lien, which will be recognized as an equitable mortgage, and will entitle the party to call for an assignment of the property included in the title deeds. It may also be admitted, that a deposit of a note not negotiable, as security for a debt, will entitle the creditor, after notice to the maker, to enforce in equity his lien against the depositor, and his assignees in bankruptcy. Such was the case cited at the bar from Atkyn's Reports. 10 But in cases of this nature, the doctrine proceeds upon the supposition, that the deposit is clearly established to have been made as security for the debt; and not upon the ground that the mere fact of a deposit unexplained affords such proof. In  the case at the bar, it was not proved that the articles were delivered by Welch to prior at all, much less that they were delivered as security for the  bills. The delivery of the account is certainly an equivocal act, and might have been as a voucher of the right of Welch to draw on Mandeville & Jamesson. There is this farther deficiency in the proof, that the bills do not appear ever to have been presented to the drawees for acceptance, which not only rebuts the presumption from the face of the bills that they were received for value, since a bona fide holder could not be supposed guilty of such fatal laches; but draws after it the auxiliary presumption, that they were in the hands of Prior as agent, and, therefore, that he had not any assignment of the articles as security. And it may be added, that the suit commenced in Chancery by Prior, for this very debt, and, afterwards, discontinued, does not assert any assigned title in himself, but proceeds against Mandeville & Jamesson, as the mere debtors of Welch. Under such circumstances, this Court cannot say that the instruction of the Circuit Court was correct, that the jury ought to infer, that prior was an assignee, entitled to sue for the whole debt due upon the articles. \nThe ground, then, that there was a deposit of the articles as collateral  security, failing, we are next led to examine the position of the defendant's counsel, that there was a partial lien or appropriation of the debt due from Mandeville & Jamesson, under the articles to the extent of the sum due on the bills, which is equivalent to an equitable assignment of so  much of the debt. It is said, that a bill of exchange is, in theory, an assignment to the payee of a debt due from the drawee to the drawer. This is undoubtedly true, where the bill has been accepted, whether it be drawn on general funds, or a specific fund, and whether the bill be in its own nature negotiable or not; for in such a case, the acceptor, by his assent, binds, and appropriated the funds for the use of the payee. And to this effect are the authorities cited at the bar. 11 In cases also where an order is drawn for the whole of a particular fund, it amounts to an equitable assignment of that fund, and after notice to the drawee it binds the fund in his hand. But where the order is drawn either on a general, or a particular fund, for a part only, it does not amount to an assignment of that part, or give a lien as against the drawee, unless he consent to the appropriation  by an acceptance of the draft; or an obligation to accept may be fairly implied from the custom of trade, or the course of business between the parties as a part of their contract. The reason of this principle is plain. A creditor shall not be permitted to split up a single cause of action into many actions, without the assent of his debtor, since it may subject him to many embarrassments and responsibilities not contemplated in his original contract. He has a right to stand upon the singleness of his original contract, and to decline any legal or equitable assignments by which it may be broken [Page Missing 287, 288]  into fragments. When he undertakes to pay an integral sum to his creditor, it is no part of his contract that he shall be obliged to pay in fractions to any other persons. So that if the plaintiff could show a particl assignment to the extent of the bills, it would not avail him in support of the present suit. But, in the present case, there is no proof of any presentment of the bills, much less of any acceptance by the defendant to establish even a partial assignment of the debt. And if there were, it would still be necessary to show that there was  an assignment of the articles as an attendant security, before the plaintiff could found his action upon them. Indeed, by the very terms of the pleadings, the plaintiff undertakes to establish an assignment of the whole debt due by the articles; and if he fails in this, there is an end to his recovery. So that, in whatever  view we contemplate the facts of this case, or the law applicable to it, the plaintiff has not shown any sufficient title to sustain his replication to the fourth plea. \nSeveral other objections have been taken at the bar to the plaintiff's right of rcovery, which under other circumstances would have deserved serious consideration; but, as upon the merits of the case, as they are apparent upon the record, the judgment of this Court is decidedly against the plaintiff, it is unnecessary to give any opinion upon those objections. \nJudgment reversed. \nJUDGMENT. This cause came on to be heard on  the transcript of the record of the Circuit Court for the District of Columbia in the county of Alexandria, and was argued  by counsel. On consideration whereof, this Court is of opinion that the said Circuit Court erred in instructing the jury, \"that if they should be of opinion, from the evidence, that the said bills were drawn for the full and valuable consideration expressed on the face of them, paid by the said Prior to the said Welch, and if there be no other evidence than what is herein before stated, they ought to infer from the said evidence, that the said Prior was, and is sch an assignee of the right of action upon the covenant aforesaid, as authorizes him to sustain the action in the name of the said Welch's administrator for the whole debt due by the said covenant, at the time of the said Welch's delivering the said account to the said Prior.\" It is, therefore ADJUDGED AND ORDERED, that the judgment of the said Circuit Court in this case be, and the same is hereby reversed and annulled. And it is further ORDERED, that the said cause be remanded to the the said Circuit Court, with directions to issue a venire facias de novo. \n \n\n ", "Opinion by:  STORY \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the Court, and, after stating the facts, proceeded as follows. We pass over the question, whether, supposing there was an illegal augmentation of the crew of the privateer in our ports, the American captors had any right forcibly to bring in the prize for adjudication. It is an important question, and when it shall be necessary to decide it, it will deserve serious consideration. The present cause may well be disposed of without any discussion concerning it. \nTwo questions have been made at the bar. 1. Whether, in point of fact, the illegal augmentation of the crew is so established as to entitle the Spanish libellants to restitution. 2. If so, whether the damages were rightfully awarded. \n The last question will be first considered. And as to the item of damages for loss of market, we are all of opinion that it is clearly inadmissible. In cases of marine torts, this Court have deliberately settled, that the probable profits of a voyage are not a fit mode for the ascertainment of damages. 1 It is considered that the rule is too uncertain in its own nature, and too limited in its applicability,  to entitle it to judicial sanction. The same principle must govern in the present case. \nBut a more general objection is to the allowance of any damages in cases of this sort, as between the belligerents. The doctrine heretofore asserted in this Court is, that whenever a capture is made by any belligerent in violation of our neutrality, if the prize come voluntarily within our jurisdiction, it shall be restored to the original owners. This is done upon the footing of the general law of nations; and the doctrine is fully recognised by the act of Congress of 1794. But this Court have never yet been understood to carry their jurisdiction, in cases of violation of neutrality, beyond the authority to decree restitution of the specific property, with the costs and expenses during the pending of the judicial proceedings. We are now called upon to give general damages for plunderage, and if the particular circumstances of any case shall hereafter require it, we may be called upon to inflict exemplary damages to the same extent as in the ordinary cases of marine torts. We entirely disclaim any right to inflict such  damages; and consider  it no part of the duty of a neutral nation to interpose, upon the mere footing of the law of nations, to settle all the rights and wrongs which may grown out of a capture between belligerents. Strictly speaking, there can be no such thing as a marine tort between the belligerents. Each has an undoubted right to exercise all the rights of war against the other; and it cannot be a matter of judicial complaint, that they are exercised with severity, even if the parties do transcend those rules which the customary laws of war justify. At least, they have never been held within the cognizance of the prize tribunals of neutral nations. The captors are amenable to their own Government exclusively, for any excess or irregularity in their proceedings; and a neutral nation ought no otherwise to interfere, than to prevent captors from obtaining any unjust advantage by a violation of its neutral jurisdiction. Neutral nations may, indeed, inflict pecuniary, or other penalties, on the parties for any such violation; but it then does it professedly in vindication of its own rights, and not by way of compensation  to the captured.When called upon by either of the belligerents to act  in such cases, all that justice seems to require is, that the neutral nation should fairly execute its own laws, and give no asylum to the property unjustly captured. It is bound, therefore, to restore the property if found within its own ports; but beyond this it is not obliged to interpose between the belligerents. If indeed it were otherwise, there would be no end to the difficulties and embarrassments of neutral prize  tribunals. They would be compelled to decide in every variety of shape upon marine trespasses in rem, and in personam, between belligerents, without possessing adequate means of ascertaining the real facts, or of compelling the attendance of foreign witnesses; and thus they would draw within their jurisdiction almost every incident of prize. Such a course of things would necessarily create irritations and animosities, and very soon embark neutral nations in all the controversies and hostilities of the conflicting parties. Considerations of public policy come therefore in aid of what we consider the law of nations on this subject; and we may add, that Congress in its legislation has never passed the limit which is here marked out. Until Congress shall  choose to prescribe a different rule, this Court will, in cases of this nature, confine itself to the exercise of the simple authority to decree restitution, and decline all inquiries into questions of damages for asserted wrongs. The decree for damages is, therefore, unhesitatingly reversed. \nThe other question presents more difficulty. It must be admitted, that there is positive testimony directly to the point of the illegal augmentation of the crew of the privateer; and if it stood uncontradicted, and were liable to no deduction, the libellant would certainly be entitled to restitution. But the testimony as to the augmentation, comes chiefly from very obscure persons, and is, in itself, in many respects, loose and equivocal; and that of one, at least, of the principal witnesses, is, in a most material fact,  directly contradicted by a written document, whose verity has not been questioned. It is proved, by the report of an inspector made to the custom house, that at the arrival of the privateer in port, she had on board 49 men; yet, the witness alluded to, expressly alleges, that at the time of her arrival at New-Orleans, she had not more than ten or twelve persons  on board. It appears, too, that the crew of the privateer was wholly composed of foreigners, principally persons from the Spanish Maine, and from St. Domingo. Being arrived at New-Orleans in the course of a cruize, which is not proved to have ended there, the natural presumption is, that her original crew continued attached to her; and this presumption is considerably fortified by the fact, that though the officers of the custom house of that port vigilantly inquire into cases of this nature, there is nothing in their testimony, that in the slightest degree affects the conduct of the privateer in an unfavourable manner. It certainly cannot be said, that the evidence is free from all reasonable doubt. And, in cases of this nature, where the libellant seeks the aid of a neutral Court to interpose itself against a belligerent capture, on account of a supposed violation of neutrality, we think the burdhen of proof rests upon him. To justify a restitution to the original owners, the violation of neutrality should be clearly made out. If it remains doubtful, the Court ought to decline the exercise of its jurisdiction, and leave the property where it finds it. We cannot say that the  present case is clear reasonable doubt; and,  therefore, we reverse the decree of the District Court, and order restitution to be made to the original captors; but, under all the circumstances, the parties are to bear their own costs. \nDecree reversed. \nDECREE. This cause came on to be heard on the transcript of the record of the District Court of the United States for the district of Louisiana, and was argued by counsel. On consideration whereof, it is DECREED and ORDERED, that the decree of the said District Court, in this case, be, and the same is, hereby reversed and annulled. And this Court, proceeding to pass such decree as the said District Court should have passed, it is further DECREED and ORDERED, that the libel be dismissed, and the said ship La Amistad, her tackle, apparel, and furniture, and cargo, be restored to the claimants. And it is further ORDERED, that each party pay their own costs. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the  Court. This case comes up from the Circuit Court of Kentucky, upon a division of opinion of the Judges upon certain questions stated in the record. \nIt appears from  the record, that the defendant, on the 3d of July, 1801, entered into certain articles of agreement with the Secretary at War, for supplying the troops of the United States with provisions, at certain places enumerated in the contract. Among other things, the articles provide, that the contractor should receive, \"for every complete ration issued at the Chickasaw Bluffs, at Nashville, at Bear Creek, on the Tennessee, or at any place on the road between Nashville and Bear Creek, fourteen cents;\" and, \"for every complete ration issued at any place in the Chickasaw or Chocktaw country, on the road between Bear Creek and Natchez, eighteen cents and one half cent;\" and that, \"should any rations be required at any places or within any other Districts not specified in this contract, the price of the same shall be hereafter agreed on betwixt the public and the contractor.\" \nAt the time the contract was entered into, the road from Nashville to Natchez crossed the Tennessee river at the mouth of Bear Creek, which empties into Tennessee river on the southwest side. After the date of the contract, a new road from Nashville to Natchez, passing through the Chickasaw and Chocktaw country, was cut  by the United States troops, which crossed the Tennessee river about twelve or fourteen miles above the mouth of Bear Creek, and about ten miles further from Nashville. During the continuance of the contract, a  cantonment was established on the southwest side of the river Tennessee, at the crossing point of the new road, and in the Chickasaw county. At this cantonment certain rations were issued by the defendant, for which he claimed the contract price of eighteen and a half cents a ration, as rations issued in the Chickasaw country. This claim was disallowed by the Treasury Department, and constitutes the first and second items of an account presented to the Treasury, and referred to in the first question as the paper marked C. The remaining item of the same account, which was disallowed by the Treasury, was for certain rations deposited at Fort Deposit, for which the defendant claimed, also, the contract price of eighteen and a half cents a ration, as rations issued in the Chocktaw country. At the time the contract was made, Fort Deposit was considered within the Chocktaw boundary; but at the treaty afterwards held at Fort Adams, it was discovered, that an old boundary  line existed between the French and the Chocktaws, which was the line adopted by that treaty, and excluded Fort Deposit from the Chocktaw country. There is another account annexed to the record marked D., consisting of certain claims of the defendant against the United States, which were presented to and disallowed by the Treasury Department. Upon these claims it is unnecessary to say more, than that this Court entirely concurs in the opinion of the Treasury Department. \nThe first question, then, is, whether the defendant is entitled to any or all of the items disallowed by  the Treasury Department in the account C. It is contended on behalf of the United States, that the two first items for rations issued and deposited at the cantonment on the new road on Bear Creek, were within that part of the contract providing for rations issued \"at any place on the road between Nashville and Bear Creek,\" for which the defendant was entitled to the contract price of fourteen cents only; and that this sum had been allowed therefor at the Treasury. On the other hand, the defendant's counsel pretends, as has been already stated, that this cantonment was within the Chickasaw country,  and that the phrase, \"Bear Creek on the Tennessee,\" in the contract, means the mouth of Bear Creek, on the Tennessee; so that the defendant is entitled to the contract price of eighteen and a half cents. \nWe are, however, of opinion, on this point, that the contract must necessarily be presumed to refer to the actual state of things at the time of its inception, inasmuch as there is nothing in it which shows that the parties had in contemplation any prospective changes. The phrase, \"Bear Creek, on the Tennessee,\" seems to be an unusual description of the junction of a creek with a river; but in its connection with the context, we are unable to give it any other rational interpretation. And if this were even doubtful, we are of opinion, that the road between Nashville and Bear Creek, spoken of in the contract, is the road then in existence and use between those places, and cannot, in the absence of all evidence of intention, be construed to mean a new road not then laid out or made, nor shown to be in  the contemplation  of the parties. The rations then issued and deposited at the cantonment on the new road, were not provided for in the contract at a specific  price; not at the price of fourteen cents, for they were not issued at any place on the old road between Nashville and Bear Creek, described in the contract; and not the price of eighteen and a half cents, for it was not sufficient that the cantonment should be in the Chickasaw and Chocktaw country, but it must also be on the road between Bear Creek and Natchez existing at the time of the contract. The case, then, falls precisely within that clause of the articles of agreement, that provides, that the price of rations delivered at any other places not specified, shall be thereafter agreed on betwixt the public and the contractor; and this is the construction originally adopted by the Government itself. \nThe same reasons which lead us to this conclusion, constrain us to adopt the construction, that the parties, in their contract, in referring to the Chickasaw and Chocktaw country, intended not a disputed, imaginary, or rightful boundary afterwards to be settled; but the actual reputed boundary of that country. If, then, Fort Deposit was within the reputed boundary at the time of the contract, the line as afterwards settled by the treaty at Fort Adams, though the true line, has nothing  to do with the case; and the rations deposited at Fort Deposit are to be paid for at the contract price of eighteen and a half cents a ration. \nThe second and third questions propounded by the Circuit Court, may be shortly answered. If  there be no specific price agreed upon in the contract for rations issued at any place, the contract leaves the price to be adjusted by the Government and the contractor. It is to be the joint act of both parties, and not the exclusive act of either. If they cannot agree, then a reasonable compensation is to be allowed; and that reasonable compensation is to be proved by competent evidence, and settled by a jury, as in common cases; and the defendant upon such a trial, is at liberty to show, that the sum allowed him by the Secretary of War is not a reasonable compensation. \nThe fourth question is, whether the defendant can be permitted to claim a credit for the sums due him, under the contract, in this suit. The answer may materially depend upon the true construction of the act of Congress of the third day of March, 1797, c. 74. providing for the more effectual settlement of accounts between the United States and public receivers. The  third section of that act provides, that upon suits instituted against any person indebted to the United States, judgment shall be rendered at the return term, unless the defendant shall, in open Court, make oath or affirmation, that he is equitably entitled to credits which had been previous to the commencement of the suit submitted to the consideration of the accounting officers of the Treasury, and rejected, &c. The fourth section then provides, that in suits between the United States and individuals, no claim for a credit shall be admitted upon trial, but such as shall appear to have been presented to the accounting officers of the Treasury for their  examination, and by them disallowed in whole or in part, unless it shall be proved to the satisfaction of the Court, that the defendant is at the time of the trial in possession of vouchers not before in his power to procure, and that he was prevented from exhibiting a claim for such credit at the Treasury by absence from the United States, or some unavoidable accident. The terms of these sections are very broad and comprehensive. The third section manifestly supposes, that not merely legal but equitable credits ought  to be allowed to debtors of the United States by the proper officers of the Treasury; and the fourth section prohibits no claims for any credits, which have been disallowed at the Treasury, from being given in evidence by the defendant at the trial. There being no limitation as to the nature and origin of the claim for a credit which may be set up in the suit, we think it a reasonable construction of the act, that it intended to allow the defendant the full benefit at the trial of any credit, whether arising out of the particular transaction for which he was sued, or out of any distinct and independent transaction, which would constitute a legal or equitable set-off, in whole or in part, of the debt sued for by the United States. The object of the act seems to be to liquidate and adjust all accounts between the parties, and to require a judgment for such sum only, as the defendant in equity and justice should be proved to owe to the United States. If this be the true construction of the act, which we do not doubt, the defendant might well claim a credit in this suit for the sums due him, even if they had  grown out of distinct and independent transactions, for he is legally,  as well as equitably, entitled to them. But even if this construction of the act were doubtful, upon the facts of this particular case, as far as we can gather them, we should have probably come to the same result. \nThis suit seems to have been brought by the United States for the money price of certain provisions received by the defendant under the articles of agreement. The real object of the suit is, therefore, to procure an account and settlement of that claim. It forms an item in the general account between the parties, like every other advance made by the Government to the defendant; and, independent of any statute provision, the defendant would have a right to show, that he had accounted for the value of such advance by delivering the equivalent provisions for which it was originally made. In this view, also, the fourth question might be answered in the affirmative. \nThe opinion of the Court will be certified accordingly to the Circuit Court of Kentucky: \n1. That under the contract marked B., the defendant is not entitled to the sums disallowed in the paper D., nor to the sums specifically charged in the first and second items of the paper C., which were disallowed by the  Treasury officers; but is entitled to the sum charged in the third item of the paper C., which was disallowed by the same officers, if Fort Deposit was within the reputed boundary of the Chocktaw country. \n 2. That the defendant is not entitled to the first and second items in the paper C., on the ground, that the place at which the rations were delivered is not specially provided for in  the contract; but that he has a right to show, that the sum allowed by the Secretary of War for those rations, is not a reasonable compensation. \n3. That upon such proof the defendant is entitled to a reasonable compensation for those rations, to be ascertained by the jury. \n4. That the defendant ought to be permitted to claim a credit for the above sums due him in this suit. \nCertificate accordingly. \n \n\n ", " \nOpinion \n\n \n \n  At the present term the opinion of the Court was delivered by \nMr. Justice STORY This cause was heard upon the whole evidence, introduced by both parties, at the last term; and as it embraced several points  of great importance and difficulty, the Court, ex mero motu, directed one of those points to be reargued; and another, including a final construction of the Spanish treaty in matters of deep and universal interest, was reargued upon the application of the Government itself. The last argument was heard at so late a period of the session, that it was found impracticable for all of us to prepare deliberate opinions, and the cause was ordered by the Court to be  continued for advisement. The Court has now come to a result, which I am directed to pronounce. \nA preliminary question was raised at the  original argument, that the libel ought to be dismissed, because the capture was made without public authority, and by a non-commissionel vessel. Whether this be so or not, we do not think it material now to inquire. It is a question between the Government and the captors, with which the claimant has nothing to do. If the ship and cargo be enemy's property, it cannot be restored to the claimant. If the captors made the capture without any legal commission, and it is decreed good prize, the condemnation must, under such circumstances, be to the Government itself.  If with a commission, then it may be to the captors. But in any view, the question is matter of subsequent inquiry after the principal question of prize is disposed of; and the Government may, if it chooses, contest the right of the captors by an interlocutory application after a decree of condemnation has passed, and before distribution is decreed. The claimant can have no just interest in that question, and cannot, be permitted to moot it before this Court. \nHaving disposed of this point, which, indeed, has been long recognised as a settled principle of the law or prize, the path is open for the consideration of the other points of the cause. \nThe captors contend, that the whole evidence establishes, that the ship and cargo are enemies property, the property of British subjects disguised under Spanish documents, and bound to a British port.  That the voyage had its origin in London, and was to terminate there; and that the usual frauds of false papers, false destination, and suppression of evidence, have been resorted to for the purpose of giving a neutral character to hostile interests. \nThe counsel for the claimant deny the matter of fact, and assert, that the proprietary  interest of ship and cargo is bona fide Spanish; and endeavour, with great ingenuity and force, to explain away the difficulties with which it is admitted, on all sides, this part of the cause is surrounded. If this ground should be thought not to be entirely and satisfactorily made out, the counsel for the claimant farther contend, that the ship was duly documented as a Spanish ship, according to the stipulations of the Spanish treaty of 1795; and that the effect of those stipulations is to preclude all inquiry into the proprietary interest of ship and cargo. Of the former, because the passport is conclusive evidence of the national character and ownership of the ship, which all persons are estopped to deny; of the latter, because, by the treaty, free ships make free goods, and the national character of the cargo becomes wholly immaterial. \nTo this point, which, if settled one way, is decisive of the cause, the counsel for the captors have given several answers. 1. That the passport of this ship was obtained by fraud, and this is always inquirable into, and vitiates all, even the most sacred instruments and records. 2. That the passport is not conformable to the treaty, not  having been issued by royal authority, or authenticated by the royal Government,  but issued by a mere colonial Governor; and that, such as it is, it does not state the ship to be owned by Spanish subjects, which is indispensable under the treaty. 3. That the substituted proof required by the 17th article of the treaty, where the passport is not regular, must be such as is subject to the thorough examination of the Prize Court. 4. That the form of the passport, referred to in the 17th article of the treaty, never having been annexed to it by the contracting parties, that article, so far as it purports to give any effect to passports, is inoperative and imperfect, and the imperfection cannot be supplied by any judicial tribunal. \nSuch are the leading propositions, pressed with great ability and earnestness into the discussion of this cause, by the respective parties. They embrace principles of international law of vast importance; they embrace private interests of no inconsiderable magnitude; and they embrace the interpretation of a treaty which we are bound to observe with the most scrupulous good faith, and which our Government could not violate without disgrace,  and which this Court could not disregard without betraying its duty. It need not be said, therefore, that we feel the responsibility of our stations on this occasion, and that in delivering our opinion to the world, we have pondered on it with great solicitude and deliberation, and have looked to consequences no farther than the sound principles of interpretation and international justice required us to look. \nThe point to which the Court will first direct its attention, is that last made, viz. whether the 17th  article of the treaty of 1795, so far as it respects passports, is inoperative and imperfect in consequence of the omission to annex the form of the passport to the treaty. This is a very delicate and interesting question. \nThe 17th article provides, \"that in case either of the parties hereto shall be engaged in a war, the ships and vessels belonging to the subjects or people of the other party, must be furnished with sea letters or passports, ( patentes de mar o pasaportes, ) expressing the name, property, ( propiedad, ) and bulk of the ship; as, also, the name and place of habitation of the master or commander of the said ship, that it may appear thereby,  that the ship really and truly belongs to the subjects of one of the parties, which passports (dichos pasaportes) shall be made out and granted according to the form annexed to this treaty. \" The article proceeds to declare, \"that such ships, being laden, are to be provided not only with passports, as above mentioned, but also with certificates containing the several particulars of the cargo, the place whence the ship sailed, that so it may be known whether any forbidden or contraband goods be on board the same; which certificates shall be made out by the officers of the place whence the ship sailed, in the accustomed form; and if any one shall think it fit or advisable to express in the said certificate, the person to whom the goods on board belong, he may freely do so; without which requisites they may be sent to one of the ports of the other contracting party, and adjudged  by the competent tribunal, according to what is above set forth, that all the circumstances of the above omission, having been well examined, they shall be adjudged to be legal prizes, unless they shall give legal satisfaction of their property by testimony entirely equivalent.\" In point of fact,  no form of  a passport was made out and annexed to the treaty. The case, then, now before, us, is not within the letter of the treaty, for as no form is prescribed, the documents found on board cannot be compared with any form; and until that comparison is made, it is impossible to say whether the stipulations originally intended by the treaty have been exactly and literally complied with or not. There is no room here left for interpretation, on account of ambiguous language of the parties. They have expressed themselves in the clearest manner, and it is to the passport, whose form is to be annexed to the treaty, and to none other, that the effect intended by the treaty, whatever that may be, either as conclusive or prima facie evidence of proprietary interest, is attributed. Into the reasons why this form was omitted to be annexed to the treaty, we are not permitted judicially to inquire. It may have been by accident, or by design, from difference of opinion as to what should be the solemnities accompanying it, or from a willingness to leave it to future negotiation. Can this Court annex a form to the treaty? Can it supply the deficiency of the treaty, and  give effect to it in the same manner, as if no form were referred to? Can it look to the stipulations, and decide for itself what the parties regarded as substance, and what as mere form?  Can it say that the stipulations in the text would have been agreed to without the auxiliary form of the passport?Can it decide judicially, that under no circumstances the form of the passport could be of the essence of the stipulations? These are grave questions, and are not to be lightly answered. They deserve and require deliberate consideration. We have given it; and our opinion will now be delivered. \nIn the first place, this Court does not possess any treaty-making power. That power belongs by the constitution to another department of the Government; and to alter, amend, or add to any treaty, by inserting any clause, whether small or great, important or trivial, would be on our part an usurpation of power, and not an exercise of judicial functions. It would be to make, and not to construe a treaty. Neither can this Court supply a casus omissus in a treaty, any more than in a law. We are to find out the intention of the parties by just rules of interpretation applied to  the subject matter; and having found that, our duty is to follow it as far as it goes, and to stop where that stops -- whatever may be the imperfections or difficulties which it leaves behind. The parties who formed this treaty, and they alone, have a right to annex the form of the passport. It is a high act of sovereignty, as high as the formation of any other stipulation of the treaty. It is a matter of negotiation between the Governments. The treaty does not leave it to the discretion of either party to annex the form of the passport; it requires it to be the joint act of both; and that act  is to be expressed by both parties in the only manner known between independent nations -- by a solemn compact through agents specially delegated, and by a formal ratification. \nNor is there any thing strange or singular in leaving matters of this sort to be settled by future negotiations. In our treaty with Prussia of 1785, the 14th article contains a provision as to passports, in substance like that of the 17th article of our treaty with Spain, except that it declares that these \"passports shall be made out in good and due form, to be settled by conventions between  the parties, whenever occasion shall require.\" This stipulation manifestly contemplates that the form of the passport is to be a solemn act of the treaty-making power of both Governments, and that neither Government has authority in its discretion to use a form which shall be binding, without its consent, upon the other contracting party. \nIn the next place, this Court is bound to give effect to the stipulations of the treaty in the manner and to the extent which the parties have declared, and not otherwise. We are not at liberty to dispense with any of the conditions or requirements of the treaty, or to take away any qualification or integral part of any stipulation, upon any notion of equity or general convenience, or substantial justice. The terms which the parties have chosen to fix, the forms which they have prescribed, and the circumstances under which they are to have operation, rest in the exclusive discretion of the contracting parties, and whether they belong to the essence or the modal  parts of the treaty, equally give the rule to judicial tribunals. The same powers which have contracted, are alone competent to change or dispense with any formality. The doctrine  of a performance cy pres, so just and appropriate in the civil concerns of private persons, belongs not to the solemn compacts of nations, so far as judicial tribunals are called upon to interpret or enforce them. We can as little dispense with forms as with substance. \nIn the next place, we cannot admit that the anexation of the form of the passport was, in itself, (supposing we had a right to inquire into it) a matter of small moment or importance, so that the omission could be dispensed with, as not belonging to the substance of the treaty. It was competent to the parties, by the particularity of the form, to have qualified the general expressions of the article, and to have made that determinate, which, upon the face of the article, stands indeterminate. It is, for instance, indeterminate upon the face of the article, whether there is to be a specification of the names of the owners of the ship, or only a general declaration that the owners are Americans or Spaniards. It has also been contended here, and is certainly susceptible of doubt, whether the passport was to express the individual ownership, or the national character of the ship. So the solemnities to be observed  in granting the passport, the oaths to be made by the parties, the persons by whom they were to be verified, are all left indeterminate by the treaty. These might have been, and looking to the requisitions of other treaties, must have been explained and settled by the form annexed  to this treaty. The 25th article of the Dutch treaty of 1782, is substantially the same as the 17th article of the Spanish treaty; and the form of the passport, certificate, and sea letter annexed to that treaty, reduce to a perfect certainty every circumstance which has been already mentioned. Other qualifications and limitations might have been added, in the pleasure of the parties. It is impossible, therefore,  for this Court, judicially, to say what such passport might or would have contained. We may indeed conjecture, but in this conjecture we may err; and to assert what it would be, in literis, would be to exercise a sovereign control over the compact itself. \nNor are the circumstances already stated, mere form, or diplomatic ceremony. They might well have entered into the very substance of the stipulation. The counsel for the claimant alleges, that the passport, intended  by the treaty, was to import perfect, unimpeachable verity; that it was to have a sanctity beyond that which is granted to any other solemn instrument. Fraud would not vitiate it, nor the most direct, unequivocal breach of good faith, or abuse of the passport, bring its protecting virtue into question. Assuming for the purpose of argument, that this is true, the form of the passport, and the solemnities accompanying it, were of the deepest interest and importance to both nations. It was vital to the treaty; vital to the acknowledged rights derived under the law of nations. The immunity intended by the treaty, in this view of it, was a derogation from the general belligerent rights of both parties. They might be willing to confide the issuing  of such passports to the Spanish high officers of state with the royal approbation and signature, or with the corresponding signatures of our own Secretary of State and President. They might have full faith and confidence, that under such guards, the danger of abuses would be very much diminished, if not entirely checked. But they might not be willing to trust to the integrity, discretion, and watchfulness of subordinate agents;  to officers of the customs; to colonial Governors, or commanders in distant Provinces. In point of fact, our own passports have issued under the authority and signatures of our highest executive officers. What reason has this Court to presume that our Government would accept of a verification by inferior officers of Spain? What reason has this Court to presume, that our Government would have been satisfied with a passport signed by a colonial Governor for want of royal passports? It has not been so stipulated in the treaty. It has not, in terms, dispensed with the annexation of the form of the passport to the treaty. Even if one Government had been willing to dispense with it, it remains to be shown, that the other was also willing. And if both were willing, to would still remain to be shown, that the act of dispensation was consummated by a solemn renunciation; for the obligations of the treaty could not be changed or varied but by the same formalities with which they were introduced; or at least by some act of as high an import, and of as unequivocal an authority. All that can be said in the present case, is, that the subject of the annexation of the passport was taken ad  referendam by the parties. They had competent authority so to do; and this Court is bound to presume, that they had good reasons for their conduct. It is far more consistent with every fair interpretation of the acts of the Government, to suppose, that the form of the passport was postponed with a view to the suspension of the article until the subject was more deliberately considered, or could be more conveniently attended to, than to suppose that words of reference were used without meaning, and forms carrying with them such important and interesting solemnities, and such obligatory force and dignity, were hastily abandoned at the very moment they were studiously sealed to the text. Unless this Court is prepared to say, that all forms and solemnities were useless and immaterial; that neither Government had a right to insist upon a form after having assented to the terms of the article; that a judicial tribunal may dispense with what its own notions of equity may deem unimportant in a treaty, though the parties have chosen to require it; it cannot consider the 17th article of this treaty as complete or operative, until the form of the passport is incorporated into  it by the joint act of both Governments. \nUpon the whole, it is the opinion of the Court, in which opinion six judges agree, that the form of the passport not having been annexed to the 17th article of the treaty, the immunity, whatever it was, intended by that article, never took effect; and therefore, in examining and deciding on the case before us, we must be governed by the general law of prize. \n This view of the case renders it unnecessary to consider the other points made by the counsel for the captors, as to the effect of the treaty; and we therefore give no opinion upon them. \nIt remains then to consider whether the ship and cargo, now in judgment, are, in fact, neutral or hostile property. The facts are extremely complicated, and the evidence, in many instances, clashes so as to forbid all hopes of reconciling it. It cannot be disguised too, that the claim is involved in much perplexity, and is shaded by some circumstances that have not been entirely cleared away. If it were not a task from which we could derive no general instruction, the whole evidence might be minutely examined, as to the questions of false destination, suppression of papers, and use of  false papers. But the labour would be very great, and after all, would conduce to no important purpose. We shall cantent ourselves, therefore, with a brief statement of the result of our opinion. \nIt is to be recollected, that by the settled rule of Prize Courts, the onus probandi of a neutral interest rests on the claimant. This rule is tempered by another, whose liberality will not be denied, that the evidence to acquit or condemn, shall, in the first instance, come from the ship's papers, and persons on board; and where these are not satisfactory, if the claimant has not violated good faith, he shall be admitted to maintain his claim by farther proof. But if, in the event, after full time and opportunity to adduce proofs, the claim is still left in uncertainty, and the neutrality of the property is not established  beyond reasonable doubt, it is the invariable rule of Prize Courts to reject the claim, and to decree condemnation of the property. There is another rule too, founded in the most salutary and benign principles of justice, that the assertion of a false claim, in whole, or in part, by an agent of, or in connivance with the real owners, is a substantive  cause of forfeiture, leading to condemnation of the property. These principles  are not alluded to in this case, for the purpose of founding our present judgment upon them; for we do not rely upon it as a case merely of reasonable doubt; but to show that a case less strong might justly have supported the decree, we feel ourselves bound to pronounce -- of condemnation. \nWe cannot resist the conclusion, looking to the whole evidence, that this is a case where the whole mercantile adventure had its origin, in the house of trade of Messrs. Von Harten and Gobel, a house domiciled in London. The ship was, beyond all question, a foreign ship; but of what nation, and in whose ownership at the time when she acquired her ostensible Spanish character, is studiously concealed. She came just before her naturalization from New Providence; and that naturalization was procured, as we feel ourselves constrained to believe, by an imposition practised upon the Spanish judicial authorities, by means of a pretended lien under a bottomry bond, supposed to be given for repairs. The holder of the bond procured a judicial sale of the vessel, became himself the purchaser, and afterwards obtained  the Spanish character by a negotiation with the Spanish Colonial Government,  making awkward apologies for his asserted ignorance of the former ownership, and endeavouring to allay the well-founded distrust of that Government.To this very hour the claimant has observed a profound silence on this point, a source of just and pregnant suspicion, although he has loaded the cause with documentary proofs and affidavits on other points. He has not chosen to give any information as to the origin of the bottomry bond, or former ownership of the vessel, or of the circumstances under which the supposed lien was acquired. Yet these facts would seem to have lain immediately within his reach. On board, too, of the vessel at the time of the capture, was the special and confidential agent of Messrs. Von Harten and Gobel, and also the brother-in-law of Mr. Von Harten. Some papers were thrown over board, others were concealed, and others spoliated. The testimony of the witnesses upon the standing interrogatories, was far from satisfactory; and it is extremely difficult to exempt the agents on board the vessel from the imputation of designed suppression of facts and prevarication. The  claimant, Mr. Munos, is the father-in-law of Mr. Gobel, and claims this very valuable shipment as his own property, asserting himself to be a merchant now engaged in business. And yet it is proved by a weight of testimony that seems difficult to resist, the Mr. Munos has not been known to be engaged in commercial business on his own account for at least fifteen years before the time of this shipment. And it is established in the most satisfactory manner, and is indeed admitted by the claimant himself,  that on account of the foreign character of Mr. Gobel, (the son-in-law of Mr. Munos,) all the foreign business of Mr. Gobel has been constantly carried on for several years under the cover of Mr. Munos. These are a few of the extraordinary facts of this case, and combining them with the indications of the papers found on board, and the suppressed documents which have reached the light; the vehement presumption, and almost written proof, that Mr. Gobel, the admitted partner of the English house of Von Harten and Gobel, was the stationed agent of that house at the Havana; and the fact, that the destination was alternative, or double, to London or Hamburg, or both; the conclusion  is difficult to overcome, that the cargo was the property of Messrs. Von Harten and Gobel, or some other unknown enemy proprietor, and covered by the Spanish character of Mr. Munos. And the Court is constrained to consider the proceeding at the Havana as mere machinery to naturalize an enemy's ship, and that the ship, either previously belonged to Messrs. Von Harten and Gobel, or some other enemy proprietor, or was purchased at New-Providence on his or their account. It is perfectly immaterial whether Mr. Munos had any subordinate interest in the ship and cargo or not. If his claim be substantially false in the manner in which it is framed, having been adopted by him, he has justly incurred a forfeiture of any such interest, by attempting an imposition upon the Prize Court. \nIt is the judgment of the Court, that the decree of the Circuit Court, condemning the ship and cargo,  be affirmed, with costs. From so much of this opinion as respects the question of proprietary interest of vessel and cargo, three Judges dissent. \n \n \nTreaty with Prussia of 1799. \n \nArt. 12. Exerience \nArt. 12. L'experience \n \nhaving proved, that \nayant demontre, \n \nthe principle adopted \nque le principe adopte \n \nin the twelfth \ndans l'article \n \narticle of the treaty \n12, du traite de 1785, \n \nof 1785, \nselon lequel les \n \ngoods, has not been \nmarchandises libres, \n \nsufficiently \nn'a pas ete \n \nrespected during the \nsuffisament respecte \n \ntwo last wars, and \ndans les denx \n \nespecially in that \ndernieres guerres, et \n \nwhich still \nnommement dans \n \ncontinues, the two \ncelle qui dure encore, \n \ncontracting parties \nles deux parties \n \npropose, after the \ncontractantes se reservent de \n \nreturn of a general \n \n \npeace, to agree either \ns'entendre apres le \n \nseparately \nretour de la paix \n \nbetween themselves, or \ngenerale, soit separement \n \njointly with \nentr'elles, \n \nother powers alike \nsoit conjointement avec \n \ninterested, to \nd'autres \n \nconcert with the great \npuissances cointeresses \n \nmaritime powers \npour concerter \n \nof Europe, such arrangements \navec les grandes pnissances \n \nand such \nmaritimes \n \npermanent principles, as \nde l'Europe, tels \n \nmay serve to \narrangements et tels \n \nconsolidate the liberty \nprincipes permanens, \n \nand the safety \nqui puissent \n \nof the neutral navigation \nservir a consolider \n \nand commerce \nla liberte et la \n \nin future wars. And if, \nsurete de la navigation \n \nin the \net du commerce \n \ninterval, either of the \nneutres dans les guerres \n \ncontracting \nfutures. Et \n \nparties should be engaged \nsi, pendant cet intervalle, \n \nin a war, to \nl'une des \n \nwhich the other should \nparties contractantes se \n \nremain neutral, \ntrouve engagee \n \nthe ships of war and \ndans une guerre a laquelle \n \nprivateers of the \nl'autre \n \nbelligerent power shall \nreste neutre, les \n \nconduct \nvaisseaux de guerre \n \nthemselves towards the \net les armateurs \n \nmerchant vessels \nde la puissance \n \nof the neutral power, \nbelligerente, se \n \nas favourably as \ncomporteront, a \n \nthe course of the war \nl'egard de batimens \n \nthen existing may \nmarchands de la \n \npermit, observing the \npuissance neutre, \n \nprinciples and \naussi favorablement \n \nrules of the law of \nque la raison de \n \nnations, generally \nguerre, pour lors \n \nacknowledged. \nexistante pourra \n \n \nle permettre, en \n \n \nobservant les principes' et les regles \n \n \ndu droit des gens generalement \n \n \nreconnus. \n \nDissent by:", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the Court, and, after stating the facts, proceeded as follows: \nUpon these facts, the Circuit Court directed the jury that the plaintiffs were not entitled to recover; and the propriety of this direction is the question before us upon this writ of error. \nTwo points have been argued at the bar: 1. That there was no actual restraint of persons acting under the authority of Spain, whereby the voyage was defeated. 2. That if a technical total loss took place, by the loss of the voyage, it was a loss occasioned  by engaging in an illicit and prohibited trade, for which, by the memorandum in the policy, the underwriters are not liable. \nThe declaration and the abandonment, both tie up the case to a total loss of the voyage, by the restraint of Spanish authorities. If this case be not made out in proof, there is an end of the controversy. \n In cases of this sort, where a technical total loss is asserted as a ground of recovery, it is not sufficient that the voyage has been entirely frustrated and lost; but the loss must be occasioned by some peril actually insured against. The peril must act directly, and not circuitously, upon the subject of the insurance. It must be an immediate peril, and the loss the proper consequence of it; and it is not sufficient that the voyage be abandoned, for fear of the operation of the peril. \nThe plaintiffs rely upon the fact, of the Ellen Tooker's being chased away from St. Ander, and being prevented for several days from returning to that place by the presence of Spanish armed ships, as decisive proof of actual restraint. But the voyage was delayed only, and not broken up by this occurrence, for the vessel afterwards returned in safety to St.  Ander. The insurers do not undertake that the voyage shall be performed without delay, or that the perils insured against shall not occur; they undertake only for losses sustained by those perils; and if any peril does act upon the subject, yet if it be removed before any loss takes place, and the voyage be not thereby broken up, but is, or may be resumed, the insured cannot abandon for a total loss. If a vessel be captured during a voyage, and afterwards be recaptured, and performs, or may perform it, there can be no abandonment after the recapture, for a technical total loss. In the present case, the vessel actually did resume her voyage after the restraint ceased; and there is no evidence to show that any object of the voyage was defeated by this temporary  restraint and delay to avoid capture. Then, what was the real cause of the final destruction of the voyage? It was, that St. Ander, which but for a short time was in the possession of the troops of General Mina, was, in transitu, again occupied by the royalists, and the colonial Government resumed its functions. A trade was inhibited with that place, by the ordinary colonial laws of Spain; and the voyage itself,  in which the Ellen Tooker was engaged, placed her, and her cargo also, in the character of an enemy. It was clear, therefore, that a proceeding into St. Ander, would have subjected the Ellen Tooker to confiscation for a double cause; for breach of the ordinary  laws of trade, and for a violation of neutral duties. The voyage then was broken up from fear of loss, by reason of the seizure and confiscation of the property. It was abandoned by the master quia timebat, and not because there was any actual direct restraint, which prevented the vessel from proceeding to the port of destination. The case, therefore, falls directly within the authority of the cases of Hadkinson v. Robinson, 3 Bos. and Pull. 388. and Lubbock v. Rowcroft, 5 Esp. R. 50. which have never been shaken. In the former case, Lord Alvanley said, \"any loss which necessarily arises from capture or detention of princes, is a loss within the policy; but here the Captain, learning that if he entered the port of destination, the vessel would be liable to confiscation, avoided that port, whereby the object of the voyage is defeated. This does not operate to the total destruction of the thing insured.\" There  are precisely the same circumstances  in the case now at bar. The underwriter does not warrant that the vessel shall have a right to trade at the port of destination; but only that notwithstanding the perils insured against, the vessel shall proceed to such port. If the plaintiffs, in the events which have occurred, were entitled to abandon and recover, as for a technical total loss, they would have been entitled to abandon for the same cause at the time of the vessel's sailing from New-York on the voyage; for St. Ander was at that time just as much shut against the vessel, and she was just as liable to confiscation for illegal traffic with that place, as she was at the time the voyage was broken up. \nIt is the unanimous opinion of the Court, that the judgment of the Circuit Court be affirmed, with costs. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the Court. \nIn this case, if the cause had stood solely upon the evidence before the Circuit Court, we should have no difficulty in affirming its decision. But upon the new proofs which have been since taken, and are now produced to this Court, it is apparent that the capturing vessel was originally built, equipped, manned, and armed in the United States for a cruize, being owned by citizens of this country, and  sailed with the intent of cruizing against Spain. It is true that she went to Buenos Ayres, and sailed under the colours of that government on a second cruize, during which this capture was made; but, there is no satisfactory evidence that the American ownership ever ceased, or that there  was a real, bona fide sale at Buenos Ayres. If such a sale had really taken place, it was perfectly in the power of the captors to have proved it, in the clearest manner. A bill of sale is the customary and universal document by which the ownership of vessels is evidenced; and the want of any document of this nature, or of any direct and positive evidence of an actual sale, leaves no doubt in the mind of the Court, that no such sale ever was made. The consequence is, that the capturing vessel must still be considered, as owned in the United States; and, according to the decisions which have already been made, the capture was illegal, and the property must be restored to the original Spanish owners. \nSentence reversed. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the Court. \nThe preliminary question which has been argued at the bar, is, whether the writ of error in this case,  which is a writ of right, has abated by the death of the demandant, who is the plaintiff  in error, pending the proceedings in this Court. There is a material distinction between the death of parties before judgment and after judgment, and while a writ of error is depending. In the former case, all personal actions by the common law abate; and it required the aid of some statute, like that of the thirty-first section of the Judiciary Act of 1789, ch. 20. to enable the action to be prosecuted by or against the personal representative of the deceased, when the cause of action survived. In real actions, the like principle prevails, for a still stronger reason, for, by the death of either party, the right descends to the heir, and a new cause of action springs up; and the plea is not, therefore, in the same condition as it was in the lifetime of the party. \nBut, in cases of writs of error upon judgments already rendered, a different rule prevails. In personal actions, if the plaintiff in error dies before assignment of error, it is said that by the course of proceedings at common law, the writ abates; but if, after assignment of errors, it is otherwise. In this latter case, the defendant may join in error, and proceed to get the judgment affirmed, if not erroneous; and  he may then revive it against the representatives of the plaintiff. But in no case does a writ of error in personal actions abate by the death of the defendant in error, whether it happen before or after errors assigned. If it  happen before, and the plaintiff will not assign errors, the representatives of the defendant may have a scire facias quare executio non, in order to compel  him; if it happen after, they must proceed as if the defendants were living, till judgment be affirmed, and then revive by scire facias. And the plaintiff, in order to compel the representatives of the defendant in error, to join in error, may sue out a scire facias ad audiendum errores, either generally, or naming them. Such is the doctrine of approved authorities. 2 It is clear, therefore, that at common law, in these cases, a writ of error does not necessarily abate: and that the personal representatives may not only be admitted voluntarily to become parties, but a scire facias may issue to require them to become parties. And such has been the practice hitherto adopted in this Court in all personal actions, whether there has been an assignment of errors or not; for, a specific  assignment of errors has never been insisted on here, as a preliminary to the argument, or decision of the cause. \nIn respect to real actions, this is the first time the question has presented itself upon a writ of error, where the death of either party has occurred pendente lite. There is no doubt that the heir or privy in estate, who is injured by an erroneous judgment, may prosecute a writ of error to reverse it. And there seems no good reason why, in case of the death of his ancestor, pending proceedings, he may not be admitted to become a party, or be cited to become a party, to pursue or defend the writ, in the same manner as in personal actions. The death of neither party produces any change in the condition  of the cause, or in the rights of the parties. It would seem reasonable, therefore, that the suit should proceed, and not be dismissed or abated. In the absence of all authority which binds the Court to a different course, we are disposed to adopt this doctrine, and shall promulgate a general rule on the subject. \nRule accordingly. 3 \n \n\n ", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the Court, and after stating the proceedings in the Court below, proceeded as follows: \nThe first point upon which the cause was argued, respects the tract of land on the Tenederah River. It appears from the evidence that this tract of land, containing 9,050 acres, was conveyed by Col. Croghan to Michael Gratz, by a deed bearing date on the 2d of March, 1770, for the consideration expressed in the deed of # 1,800. The deed is upon its face absolute, and contains the covenants of general warranty, and for the title of the grantor, which are usual in absolute deeds; but are unnecessary in deeds of trust. At the time of the execution of the deed, Col. Croghan was in the State of New-York, and Michael Gratz was at Philadelphia. The land was, after the death of Col. Croghan, and in the year 1795, sold by Michael Gratz, to a Mr. Lawrence, in New-York, for a large sum of money. The plaintiff contends that this conveyance made by Col.  Croghan to Michael Gratz, though in form absolute, was in reality a conveyance upon a secret trust, to be sold for the benefit of the grantor; and in this view of the case, he contends farther, that he is entitled to be  allowed the full value of the lands at the time that the present suit was brought, upon the ground of a fraudulent or improper breach of trust by the grantee, or at all events, to the full amount of the profits made upon the sale in 1795, with interest up to the time of the Decree. \nThe attention of the Court will, therefore, be directed, in the first place, to the consideration of the question, whether this was a conveyance in trust, and if so, of what nature that trust was; and, in the next place, whether that trust was ever lawfully discharged or extinguished. If there be still a subsisting trust, there can be no doubt that the plaintiff is entitled to some relief. \nIt appears from the evidence that Col. Croghan, and Bernard and Michael Gratz, were intimately acquainted with each other, and a variety of accounts was settled between them, from the year 1769, to a short period before the death of Col. Croghan. During all this period, Col. Croghan appears  to have had the most unbounded confidence in them; and particularly by his will, made in June 1782, a short time before his decease, he named them among his executors, and gave to Michael Gratz, in consideration of services rendered to him, five thousand acres of land, and to his daughter Rachel Gratz, one thousand acres of land on Charter Creek, with an election to take the same number of acres in lieu thereof, in any other lands belonging to the testator. The situation of the parties, therefore, was one in which secret trusts might, probably, exist, from the pecuniary embarrassments in which  Col. Croghan appears to have been involved, as well as from his extensive land speculations. And, in point of fact, some portions of his property were conveyed to one or both of the Messrs. Gratz, upon express and open trusts. \nStill, however, the burthen of proof to establish the trust in controversy, lies on the plaintiff. The circumstances on which he relies are, in our judgment, exceedingly strong in his favour; and sufficient to repel any presumption against the trust drawn from the absolute terms of the deed. In an account which was settled at Pittsburg, in May, 1775, between  Bernard and Michael Gratz, and Col. Croghan, is the following item of credit: \n \n \n\"August, 1774. By cash received of Howard, for 9,000 acres of land \n \n \nat Tenederah, sold him for # 850 15s. New-York currency, is here, \n# 797 12 6 \n \nInterest on # 797 12s. 6d. from August, 1774, to May, 1775, is \n \n \neight months, at 6 per cent. \n31 18 1 \n \n \n# 829 10 7 \nThere is no question of the identity of the land here stated to be sold to Howard, with the tract conveyed to Michael Gratz by the deed, in 1770. If the conveyance to Michael Gratz had been originally made for a valuable consideration then paid, it seems utterly impossible to account for the allowance of this credit upon any sale at a subsequent period. It seems  to us, therefore, that the only rational explanation of this transaction is, that the conveyance to Michael Gratz, though absolute in form, was, in reality, a trust for the benefit of Col. Croghan. What the exact nature of this trust was, it is, perhaps, not very easy now to ascertain with perfect certainty. It might have been a trust to sell the lands for the benefit of Col. Croghan, and to apply the proceeds in part payment of the debts due  from him to Bernard and Michael Gratz; or, it might have been a sale of the lands directly to Michael Gratz, in part payment of the same debt, at a price thereafter to be agreed upon, and fixed by the parties; and, in the mean time, there would arise a resulting trust, in favour of Col. Croghan, by operation of law. \nTime, which buries in obscurity all human transactions, has achieved its accustomed effects upon this. The antiquity of the transaction -- the death of all the original parties, and the unavoidable difficulties as to evidence, attending all cases where there are secret trusts and implicit confidences between the parties, render it, perhaps, impossible to assert, with perfect satisfaction, which of the two conclusions above suggested, presents the real state of the case. Taking the time of the credit only, it would certainly seem to indicate that the trust was, unequivocally, a trust to sell the land. But there are some other circumstances which afford considerable support to the other conclusion.Upon the back of an account between B. & M. Gratz, and Col. Croghan, which appears to have been rendered to the latter, in December, 1769, there is a memorandum   in the hand-writing of Col. Croghan, in which he enumerated the debts then due by him to B. & M. Gratz, amounting to # 1,220 1s. 2d. and then adds the following words: \"paid of the above # 144 York currency, besides the deed for the land, on the Tenederah River, 9,000 acres patented.\" This memorandum must have been made after the conveyance of the land to M. Gratz, and demoustrates  that the parties intended it to be a part payment of the debt due to B. & M. Gratz, and not a trust for any other purpose. The circumstance too, that the word \"paid\" is used, strongly points to a real sale to M. Gratz, rather than a conveyance for sale to any third person. And if the sale was to be to M. Gratz, at a price thereafter to be fixed between the parties, the transaction could not be inconsistent with the terms of the credit, in the account of 1775. It will be recollected that M. Gratz resided at Philadelphia, and the conveyance was executed by Col. Croghan at Albany. There is no evidence that the consideration stated in the deed of # 1,800, or any other consideration, was ever agreed upon between the parties; and the circumstance that no sum is expressed in the memorandum of  Col. Croghan, shows, that at the period when it was made, no fixed price for the land had been ascertained between the parties. If, then, it remained to be fixed by the parties, whenever that value was agreed upon, and settled in account, the resulting trust in Col. Croghan would be completely extingusihed. It is quite possible, and certainly consistent with the circumstances in proof, that B. & M. Gratz might not have been acquainted with the  real value of the land, or might be unwilling to take it at any other value than what, upon a sale, they might find could be realized. From the situation of Col. Croghan, his knowledge of the lands, and his extensive engagements in land speculations, ignorance of its value can scarcely be imputed to him. If, therefore, M. Gratz afterwards sold it to Howard, and Col. Croghan was satisfied with the price, there is nothing unnatural in stating the credit in the manner in which it stands in the account in 1775. It would agree with such facts, and would by no means repel the presumption, that the land was not originally intended to be sold to M. Gratz. It would evidence no more than that the parties were willing that the sale so  made, should be considered the standard of the value; and that M. Gratz should, upon his original purchase, be charged with the same price for which he sold. Upon this view of the case, the resulting trust would be extinguished by the consent of the parties, and no want of good faith could be fairly imputed to either. \nBut it is said that there is no proof that any such purchase was ever made by Howard; and the trust being once established, the burthen of proof is shifted upon the other party, to show its extinguishment; and if this be not shown, the trust travels along with the property and its proceeds down to the present time. \nIt is certainly true, that length of time is no bar to a trust clearly established; and in a case where fraud is imputed and proved, length of time ought not,  upon principles of eternal justice, to be admitted to repel relief. On the contrary, it would seem that the length of time, during which the fraud has been successfully concealed and practised, is rather an aggravation of the offence, and calls more loudly upon a Court of equity to grant ample and decisive relief. But length of time necessarily obscures all human evidence; and as it thus  removes from the parties all the immediate means to verify the nature of the original transactions, it operates by way of presumption, in favour of innocence, and against imputation of fraud. It would be unreasonable, after a great length of time, to require exact proof of all the minute circumstances of any transaction, or to expect a satisfactory explanation of every difficulty, real or apparent, with which it may be incumbered.The most that can fairly be expected in such cases, if the parties are living, from the frailty of memory, and human infirmity, is, that the material facts can be given with certainty to a common intent; and, if the parties are dead, and the cases rest in confidence, and in parol agreements, the most that we can hope is to arrive at probable conjectures, and to substitute general presumptions of law, for exact knowledge. Fraud, or breach of trust, ought not lightly to be imputed to the living; for, the legal presumption is the other way; and as to the dead, who are not here to answer for themselves, it would be the height of injustice and cruelty to disturb their ashes, and violate the sanctity of the grave, unless the evidence of fraud be clear, beyond  a reasonable doubt. \nNow, disguise the present case as much as we may,  and soften the harshness of the imputation as much as we please, it cannot escape our attention, that if the plaintiff's case be made out, there was a meditated breach of trust, and a deliberate fraud practised by M. Gratz, or Bernard Gratz, with the assent of M. Gratz, upon Col. Croghan. If the sale to Howard was merely fictitious, it was an imposition upon Col. Croghan, designed to injure his interest, and violate his confidence. If the fraud were clearly made out, there would certainly be an end to all inquiry as to the motives which could lead to so dishonourable a deed between such intimate friends. But the fraud is not clearly made out; it is inferred from circumstances in themselves equivocal, and from the absence of proofs, which it is supposed must exist, if the sale were real, and could now be produced. \nIn the view which the Court is disposed to take of this case, it must consider that Howard was a real, and not a fictitious person. It is then asked, why are not the facts proved who Howard was, where he lived, and the execution of the deed to him. It is to be recollected that this proof  is called for, about forty years after the original transaction; when all the parties, and all who were intimately acquainted with the facts, are dead. It is called for, too, from persons, some of whom were unborn, and some very young at the period to which they refer. They cannot be supposed to know, and they absolutely deny, all knowledge of the facts. What reason is there to suppose that Col. Croghan did not know who Howard was? He had a deep interest in  the value of the property, and could not be presumed to be indifferent to such inquiries, as every considerate man would be likely to make, in such a case. And after this lapse of time, it is fair to presume, that he did know the purchaser, and was satisfied with the purchase. But it is said that no deed is produced. Now, it does not necessarily follow, that if a sale was made to Howard, that the contract was consummated by an actual conveyance of the land. If M. Gratz was the bona fide owner of the land, he might  sell it to Howard by an executory contract, and take a bond or other security for the purchase money, and from a failure to comply with the contract, M. Gratz might afterwards have refused  to give a deed to Howard. And in this case, if in the intermediate time the settlement was made with Col. Croghan, the credit must have been allowed in that account as it stands, and having been once allowed, M. Gratz could not, on a recision of the sale, have been entitled to countermand that credit. He would have been bound to take the land at the sum which he had elected to allow for it, and for which he had sold it. On the other hand, supposing a deed actually to have passed to Howard, the latter may have become dissatisfied with his bargain, or have failed to pay the consideration money, and have yielded it back to Gratz, and dissolved the purchase. But this circumstance could not have varied the situation of Gratz in respect to the settlement with Col. Croghan. All that was important, or useful, or necessary, as between them, upon the supposition that the trust was merely a resulting trust, until the price  was fixed, was, that the price should have been satisfactorily ascertained and agreed to between them. In this view of the transaction, there could be no ground to impute fraud to M. Gratz; nor could his conduct involve a violation of trust. In the absence  of all contrary evidence, is it not just, is it not reasonable, to presume such to have been the reality of the case? That there is no evidence to the contrary, may be safely affirmed. \nIn addition to this, it may be asked, whether M. Gratz had any adequate motive for practising a deception in this case. Men do not usually act under circumstances such as are imputed to M. Gratz, unless from some strong inducement of interest. It cannot be presumed that any man of fair character, such as M. Gratz is proved to have been, could perpetrate a fraud or deception without some motive that should overbalance all the ordinary influence of prudence and honour. If there be any thing beyond all doubt established in this case, it is, that the value of the land, as fixed in the account of 1775, was its full value. It is proved by public sales of adjoining tracts, at the very period when Howard is asserted to have purchased the land; and so far from there being any chance of an immediate rise in value, the state of the country, on the very eve of the revolutionary war, forbade the indulgence of every such hope, and must have dissolved every dream of speculation. As far, then, as we can investigate  motives, by referring to the general principles of human action, there does not seem to have been any motive for disguise or concealment on the part of Michael  Gratz towards Col. Crogham. The reasonable conclusion, therefore, would certainly be, that no such disguise or concealment was practised. \nThere is one circumstance also which has been thought to have thrown some cloud over this part of the case, that upon the opinion already indicated, would admit of a favourable exposition. It is this: In the possession of M. Gratz, a counterpart of the account of 1775 is found, in which the word Howard is crossed out with a pen, but so that it is perfectly legible, and the name of Michael Gratz, is, in his own handwriting, written over it. The writing seems to be of great antiquity, and supposing that there was a real sale to Howard, which was afterwards abandoned, it is not unnatural that M. Gratz should, after the event, have communicated the fact to Col. Croghan, and with his consent, altered the account, so as to conform to it. Or, the interlineation might have been made in the account, after the failure of the contract with Howard, in order to show against which of the  firm of B. & M. Gratz this sum ought to be charged, in the adjustment of their partnership concerns. It adds some force to these considerations, that Col. Croghan continued, during the residue of his life, to entertain the same friendship and confidence in M. Gratz; and this, at least, demonstrated his belief that the Tenederah lands had not been unjustly sacrificed by him. \nIf we look to the subsequent conduct of M. Gratz, in relation to the Tenederah lands, his great expenses in making improvements on it, after the year 1786, and his diligent attention to it, it leads to the  conclusion that he always considered himself as the real bona fide owner. His possession of it must have been known to the parents of the plaintiff, whose mother was the heir of Col. Croghan; and it is proved, that his father had the most unreserved and frequent access to the papers of Col. Croghan; and that he actually resided several years in Philadelphia, with the express view of examining the estate, and finally abandoned all hopes of deriving any benefit from the fragments that were left of it. The very account now produced by the plaintiff, by which this trust is brought to light, was delivered  over to him by the representatives of M. Gratz, among the other papers of Col. Croghan; and yet, if there had been any thing false or foul in the transaction, it seems almost incredible that M. Gratz, into whose possession it came as early as 1782, should have suffered it to remain as a monument of his own indiscretion, and an evidence of his want of good faith. \nIf, on the other hand, the trust is to be considered as a trust to sell, and apply the proceeds to the payment of the debt due to B. & M. Gratz, most of the considerations already stated will apply with equal force. If the sale was real, and Howard did not comply with the terms of sale, Col. Croghan having knowledge of the fact, might have been well satisfied to let M. Gratz hold the land, at the price thus fixed by the sale. To him, it must have been wholly immaterial who was the purchaser, if the full value was obtained; and that it was obtained, in Col. Croghan's own judgment, seems undeniable. The only  question is, whether such knowlege can be inferred; and after such a length of time, under all the circumstances of this case, we are clearly of opinion that it ought to be inferred. Col. Croghan had it in  his power to make inquiries on the subject; if he did, and was satisfied, his acquiescence was conclusive; if he did not, he considered that the sale, as between himself and Gratz, was consummated when the price was fixed, and was willing that the trust should be deemed extinguished forever. If,  after the lapse of forty years, and the death of all the original parties, we were to come to a different conclusion, it would be pressing doubtful circumstances with uncommon rigour against unblemished characters; where the confidence reposed was so intimate, that the whole evidence could not be presumed to be before us. We should indulge in opinions which might be erroneous, and might, in an attempt to redeem the plaintiff from a conjectural fraud, inflict upon others the most gross injustice. We think, therefore, that the true and safe course is to abide by the rule of law, which, after a lapse of time, will presume payment of a debt, surrender of a deed, and extinguishment of a trust, where circumstances may reasonably justify it. The doctrine in Hillary v. Waller, (12 Vez. 261. 266.) on this subject, meets our entire approbation. It is there said, that general presumptions  are raised by the law, upon subjects of which there is no record or written instrument, not because there are the means of belief or disbelief, but because mankind, judging of matters of antiquity from the infirmity and necessity of their  situation must, for the preservation of their property and rights, have recourse to some general principle, to take the place of individual and specific belief, which can hold only as to matters within our own time, upon which a conclusion can be formed from particular and individual knowledge. In our judgment, the trust in the Tenederah lands, such as it was, must be now presumed to have been extinguished by the parties, in the life-time of Col. Crogham. There is no ground, then, for relieving the plaintiff, as to this part of his claim. \nThe remaining point in this case respects the M'llvaine bond and judgment. On the 30th of March, 1769, Col. Croghan gave his bond to Wm. M'Ilvaine, for the sum of # 400, which debt, by the will of M'Ilvaine, became, on his death, vested in his widow, who afterwards intermarried with John Clark. A judgment was obtained upon this bond against Col. Croghan, in the name of Wm. Humphreys, executor of  M'Ilvaine, in the Court of Common Pleas, in Westmoreland County, in Pennsylvania, at the October term, 1774, upon which a fi. fa. issued, returnable to the April term of the same Court, in 1775. On the 8th of March preceding the return day of the fi. fa. Bernard Gratz purchased this judgment from Clark, and received an assignment of it, for which he gave his own bond for # 300 and interest. About this period, Col. Croghan appears to have been considerably embarrassed in his pecuniary affairs, and several suits were depending against him. Bernard Gratz having failed to pay his bond, was sued by Clark, and in 1794, a judgment  was recovered against him for # 89 6s. 10d. the balance then due upon the bond, which sum was afterwards paid by M. Gratz. The judgment of Humphreys against Col. Croghan, was kept alive from time to time, until 1786, and in that year, on the death of Humphreys, Joseph Bloomfield was appointed administrator de bonis non, with the will annexed, of Humphreys, and revived the judgment; and it was kept in full force until it was finally levied on certain lands of Col. Croghan, as hereafter stated. Some time in the year 1800, Bernard Gratz assigned  this judgment to his nephew Simon Gratz, one of the defendants, partly in consideration of natural affection, and partly in consideration of the above sum of # 89 6s. 10d. paid towards the discharge of the bond of Bernard Gratz, by his (Simon's) father, Michael Gratz. Simon Gratz having thus become the beneficial owner of the judgment, proceeded to issue executions on the same, and at different times between September, 1801, and November, 1804, caused the same executions to be levied on sundry tracts of land of Col. Croghan, in Westmoreland and Huntington counties, of five of which he, being the highest bidder at the sale, became the purchaser. The tracts so sold, contained upwards of 2,000 acres, and were sold for little more than 1,000 dollars. The title to some part of the land so sold, appears to be yet in controversy. \nShortly after the assignment of the M'Ilvaine judgment to Bernard Gratz, on the 16th of May, 1775, Col. Croghan, (probably having knowledge of the assignment, though the fact does not appear,)  by two deeds of that date, conveyed to B. Gratz, for a valuable consideration expressed therein, about 45,000 acres of land. A declaration of trust was executed  by Bernard Gratz, on the 2d of June, 1775, by which he acknowledged, that these conveyances were in trust to enable Bernard Gratz to sell the same, and with the proceeds to discharge certain enumerated debts of Col. Croghan, and among them, the debt due on the M'Ilvaine bond, and to account for the residue with Col. Croghan. \nThe subject of the M'Ilvaine judgment was very minutely considered in the Court below, by the learned judge who decided the cause, and the principal grounds on which the plaintiff relied for a decree were so fully answered there, that a complete review of them does not seem to be necessary in this Court. 6 It is observable,  that the bill charges that  the assignment of this judgment was secretly procured by Bernard or Michael Gratz, or both of them, after the death of Col. Croghan, and that nothing  was due upon the judgment; or if any thing was due, it was paid upon the assignment out of moneys belonging to the estate of Col. Croghan. The bill  asserts no other ground for relief on this subject. The proof in the cause completely establishes the material charges in the bill to be false. The assignment   was made to Bernard Gratz, in the lifetime of Col. Croghan; the judgment never was paid or satisfied by Col. Croghan, or out of his estate; and no fraud is pretended in the bill to have taken place in the levy of the judgment on Col. Croghan's lands, independently of the legal inference to be deduced from the facts charged in the bill. If Bernard Gratz was not, at the time, in the situation of a trustee of Col. Croghan, there is no pretence to say, that he might not rightfully and lawfully purchase the judgment. And there are very strong reasons to believe, that it was purchased with the knowledge, and for the relief of Col. Croghan. It was somewhat insisted upon in the Court below, that by a power of attorney of the 10th of July, 1772, Col. Croghan constituted Bernard and Michael Gratz trustees of all his lands, with unlimited power to sell them and pay off his debts. But this ground has not been insisted upon here, and, indeed, for the best reasons. There is the strongest presumptive evidence, that this power was never acted upon, or was revoked, and held a nullity before the time of the assignment in question. \n The ground that has been principally relied upon here, is, that Bernard Gratz having taken the two trust deeds in 1775, already referred to, in trust for the payment of this very debt out of the proceeds of the sale of the lands conveyed by those deeds, could not proceed to satisfy the judgment out of any other lands, without notice to Col. Croghan, or his representatives. But there is not the least evidence in the cause to show, that any of the lands  conveyed by either of these deeds ever turned out productive. And there are the strongest presumptions in the case, and it seems, indeed, to be on all sides conceded, that either the title to these lands wholly failed, or became altogether unsaleable. There is no reason to suppose that these facts lay more peculiarly in the knowledge of one party than the other; and if the trust became utterly frustrated and inert, there could not be any necessity of giving a formal notice, that Bernard Gratz must look to other property, and particularly to the property in Westmoreland county, upon which alone, it is understood by  the laws of Pennsylvania, the lien of the judgment attached. \nThere is no proof that any assests  ever came to the hands of Bernard Gratz or Michael Gratz, out of which this judgment was, or could be satisfied. Bernard Gratz was alone interested in it; and it was kept alive from time to time, until the levies in question were made. It will be recollected also, that even if Michael Gratz were disposed to connive, after the death of his brother, in the levies of his son Simon, William Powell, who was another executor, had no such motive. And, it is not shown that, by any law or usage in Pennsylvania, any notice is required to be given to any other persons than the personal representatives of the deceased, of the execution of any such judgment on lands, so that laches could be fairly imputed to the executors for neglect to give notice to the heirs of Col. Croghan of the sale. The very length of time during which this judgment remained unsatisfied, is evidence of the desperate state  of Col. Croghan's affairs; and the record abounds with corroborations of the great embarrassments attending all his concerns, and of apparent insolvency at the time of his decease. No evidence has been submitted to us to establish that the levies on the lands, under the judgment, were fraudulently  conducted by the sheriff, or that they did not sell for the full value of the title, such as it was, which Col. Croghan had in them. It appears that the title, as to some part of them, is still in controversy. And Simon Gratz, the judgment creditor, had as much right, if the sale was bona fide conducted, to become the purchaser, if he was the highest bidder, as any other person. \nUpon the whole, the majority of the Court entirely concurs, in the opinion of the Circuit Court upon this part of the case. But, as to the decree respecting the proceeds of the Tenederah lands, we are all of opinion that it ought to be reversed. \nIf the Court had felt any doubts as to the merits, it would have been proper to have given serious consideration to the very able argument made at the bar, respecting the defect of proper parties to the bill. But, as upon the merits, the Court is decidedly against the plaintiff, it seemed useless to send back the cause upon this objection, if it should be found tenable, when, after all, the case furnished no substantial ground for relief in equity. 7 \nDECREE. These causes, being cross appeals,  came on to  be heard at the same time, and were argued by counsel. On consideration whereof, it is ORDERED and DECREED, that the decree of the Circuit Court for the District of Pennsylvania in the premises, be, and the same is hereby reversed. And this Court proceeding to pass such decree as the said Circuit Court should have passed, it is farther ORDERED and DECREED, that the complainant's bill, as to all the matters contained therein, be, and the same is hereby dismissed; and that a mandate issue to the said Circuit Court, to dismiss the same accordingly, without costs. \n \n\n ", " \nOpinion \n\n \n \nMr. Justice Story delivered the opinion of the Court. \nWhatever might be our opinion (and we wish to be understood as expressing none) if the question in this case were entirely new, it cannot be affirmed, that there has been such a clear mistake of construction, as that justice and law require us to depart from the decision of the local tribunals. The question here is, whether the third and fourth lines of this patent (following the order of the lines as they are given in the patent) are to be continued upon the courses called for by the patent until they intersect, or whether the fourth line is to be extended from the beginning to the distance called for by the patent, and then the closing line is to be drawn, so as to strike the termination of the second and fourth lines at the patent distances. In the former case, the fourth line will be longer than the distance called for by the patent; in the latter, the third line will vary from the course called for by the patent. The counsel have stated, that the question resolves  itself into this, whether the course shall yield to distance, or distance to the course. It may be laid down as an universal rule, that course and distance yield to natural and ascertained objects. But where these are wanting, and the course and distance cannot be reconciled, there is no universal rule that obliges us to prefer the one or the other. Cases may exist in which the one or the other may be preferred upon a minute examination of all the circumstances. In the present case, whichever construction is adopted, the plaintiffs will hold a larger portion of land than their patent calls for. We must consider that the construction of the patent is somewhat doubtful. That it is susceptible of two constructions, each of which has some reasons to support it. If it be doubtful, it would seem reasonable not to press the broadest construction against a party who is now in actual possession under a perfectly good legal title. That possession ought not be ousted without a clear title in the other party, especially where it has been upheld by the State tribunals. This very case, between the same parties, has been already adjudicated in the Court of Appeals of Kentucky; and that Court, upon  full deliberation, decided in favour of the defendant. a It would be a great mischief for the same title to be in perpetual litigation from the conflict of opinion between the Courts of the State and the federal Courts; and we, therefore, acquiesce in the opinion of the Court of Appeals, upon the ground that the point is one of local law, has been fully considered in that Court, and is a construction which cannot be pronounced unreasonable, or founded in clear mistake. \nJudgment affirmed. \n \n\n ", " \nOpinion \n\n \n \n  Mr.  Justice STORY delivered the opinion of the Court. \nThe record in this case presents a great variety of facts, out of which several important questions have arisen; but as the merits of the cause may, in the opinion of the Court, be completely disposed of by the decision of a single point, the facts which illustrate that point will alone be mentioned. \nThis is a writ of right, originally brought by the plaintiff in error, against the defendant in error, to recover a certain tract of land in Kentucky, described in the writ. Issue being joined on the mere right between the parties, the demandant, to sustain his suit, gave in evidence a patent of the land in question, granted to him by the Commonwealth of Virginia, and dated the 28th day of January, 1784, and offered proof of the boundary. But he offered no proof, other than his patent, that he was ever seized of the land in question. According the decision  of this Court, in Green v. Liter, (8 Cranch, 229.) a patent of vacant lands of the State conveys to the grantee a constructive actual seisin, sufficient to maintain a writ of right; and therefore the demandant in this case entitled himself prima facie, upon this evidence,  to a recovery. To rebut this conclusion, the tenants offered in evidence, as well for the purpose of proving title in themselves, as to show that the demandant was never seized of the premises, certain patents from the Commonwealth of Virginia, which included the premises, to wit, a patent to John Lewis and Richard May, dated the first of June, 1782; a patent to Edmund Eggleston, dated the same day and year; and a patent to John Gratton, dated the same day and year; and a patent to Isham Watkins of the same date: under which patents the tenants endeavoured to derive by mesne conveyances a good title to themselves in severalty. To the regularity of the title of the tenants so derived, the demandant took several objections, which were overruled by the Court, and the conveyances were admitted in evidence; and if, in point of law, the patents so offered in evidence by the tenants were admissible, for the purpose of showing that the demandant never had any constructive actual seisin in the premises, which was the only seisin on which he relied, the regularity of these mesne conveyances to the tenant becomes wholly immaterial, since, if these patents were still outstanding in strangers,  they would, if admissible, all establish the same defect of seisin in the demandant. The question, then, which meets us at the threshhold of this cause is, whether it  be competent for the tenants, in a writ of right, where the demandant shows no seisin by a pedis positio, but relies wholly on a constructive actual seisin, in virtue of a patent of the land, as vacant land, to disprove that constructive seisin, by showing that the State had previously granted the same land to other persons, with whom the tenants claim no privity. In other words, whether the tenants can set up title and seisin in a stranger, to disprove the seisin of the demandant: and, upon the fullest consideration, we are all of opinion that they may. The reasoning on which our opinion is founded, is this; the mise joined in a writ of right, necessarily involves the titles of both parties to the suit, and institutes a comparison between them. It is consequently the right of each party, to give any fact in evidence, which destroys the title of the other; for the question in controversy is, which hath the better mere right to hold the demanded premises. It has been already decided by this Court, and is  indeed among the best established doctrines of the common law, that seisin in deed either by possession of the land, and perception of profits, or by construction of law, is indispensable to enable the demandant to maintain his suit. The tenant may therefore show in his defence, that the demandant had no such actual seisin; for the seisin of the freehold by the tenant, which is admitted by the bringing of the suit against him, is a sufficient title for the tenant, until the demandant can show a better title. The tenant may thus defeat the demandant, by proving that he never had any such seisin in deed; or if he once had it, that he has parted with  his whole estate, by a conveyance competent to convey, and actually conveying it. \nTo apply this doctrine to the present case. The demandant here relies, not on a seisin in deed, by a pedis positio, but on a seisin in deed by construction of law, in virtue of his patent. If the land included in the grant belonged, at the time of the conveyance, to the State, and was vacant, upon the principles already asserted by this Court, it conveyed, by operation of law, a seisin in deed to the demandant. But if the State had already granted  the land by a prior patent, it was already, upon the same principles, in the adverse seisin of another grantee, and, consequently, the patent to the demandant could not convey either title or seisin. It is, therefore, manifest, that for this purpose, to disprove the seisin of the demandant, the tenants in this case were entitled to introduce the four patents above stated, (even if they failed to establish a privity of estate in themselves,) since these patents were all prior to that of the demandant, included the land, and, if admitted, would show, that the seisin in deed, by mere construction of law upon the grant of his patent, never had a real existence. \nIt has been supposed, however, at the bar, that the case of Green v. Liter establishes a different doctrine on this point. In our opinion, that case does not justify any such conclusion; and certainly was not understood by the Court to require it. It will be recollected, that the case of Green v. Liter came before this Court upon a division of opinion of the Judges of the Circuit Court upon certain questions  of law, stated in the record. To those questions, is the form in which they were stated, and to those questions  only, could the opinion of this Court properly extend. In answer to the fifth question, which involved the inquiry, whether actual seisin, or, as it is commonly expressed, seisin in deed, is necessary to  maintain a writ of right, and whether a patent from the State, of its vacant lands, conferred, by construction of law, a seisin in deed to the grantee, this Court expressed an unhesitating opinion in the affirmative on both points. It follows, therefore, by necessary inference from this doctrine, that the tenant may disprove the demandant's seisin in deed by any evidence competent for this purpose; and if he succeeds in establishing the fact, the demandant must fail in his suit. That the proof of a prior patent of the same lands to another person would be sufficient for this purpose, in a case where the demandant relied exclusively upon a constructive seisin in deed, in virtue of the grant of his patent, has been already asserted. The eighth question propounded to the Court, in Green v. Liter, is that, however, upon which the difficulty at the bar has arisen. It is in these words: \"Can the defendant defend himself by an older and better existing title than the demandants  in a third person?\" Now, it is material to consider, that this question does not purport to inquire whether the tenant may disprove the defendant's seisin in a writ of right; nor does it purport to inquire whether the tenant may not show that the demandant has no title, or a title defective in point of legal operation. It supposes that the demandant has a  title per se, sufficient for a recovery, and then asks if a better title may be shown in a third person to defeat such recovery. The answer of the Court is in the following words: \"We are of opinion that a better subsisting adverse title in a third person is no defence in a writ of right. That writ brings into controversy only the mere rights of the parties to the suit.\" It is most manifest, that in this answer the Court proceed upon the supposition that the demandant has, prima facie, a good title, upon which he may maintain his suit; and that he has established a seisin sufficient, in point of law, to entitle him to a recovery. And the point then is, whether a superior adverse title and seisin in a stranger can be given in evidence to dispute such recovery. The very reason assigned against the admission of such evidence  shows the understanding of the Court to be precisely what we now assert. It cannot be admitted, because a writ of right does not bring into controversy the right of the demandant as against all the world, but the mere right of the parties to the suit. But it does bring into controversy the mere right between these parties; and if so, it, by consequence, authorizes either party to establish, by evidence, that the other had no right whatsoever in the demanded premises; or that his mere right is inferior to that set up against him. \nIf, in the case at bar, the demandant had established an actual seisin by occupation of the land, and taking the esplees, the case would then have presented precisely the point which was understood to be presented in Green v. Liter; and from the opinion  given in that case, on that point, there is not the slightest inclination in this Court to depart. We think that the decision in the present case may well be made upon the principles which have been already expounded, without, in any degree, breaking in upon the doctrines of that case. \nIf we are right in this view of the subject, it is unnecessary to enter into a minute examination of the points  made in the Court below, since the evidence which was objected to, was, under the circumstances of the case, clearly admissible, for the purpose of disproving the seisin of the demandant. \nAs to the instructions prayed for by the demandant, in the close of the evidence, and refused by the Court, and as to the instructions actually given by the Court, to the jury, it does seem necessary to pass them in minute review. Several of them turn altogether upon the deduction of title by the tenant, from the original patentee, whose patents they set up in defence.And as to the claims, they may be disposed of by the single remark, that no error has been shown by them, in the argument here, and no error is perceived by the Court. \nJudgment affirmed. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the Court, and after stating the case, proceeded as follows: \nUpon the argument of this motion, two questions have been made: first, whether this Court has authority to issue a habeas corpus, where a person is in jail, under the warrant or order of any other Court of  the United States; secondly, if it have, whether, upon the facts stated, a fit case is made out to justify the exercise of such an authority. \n As to the first question, it is unnecessary to say more, than that the point has already passed in rem judicatam in this Court. In the case of Bollman and Swartwout, (4 Cranch 75.) it was expressly decided, upon full argument, that this Court possessed such an authority, and the question has ever since been considered at rest. \nThe second point is of much more importance. It is to be considered, that this Court has no appellate jurisdiction confided to it in criminal cases, by the laws of the United States. It cannot entertain a writ of error, to revise the judgment of the Circuit Court, in any case where a party has been convicted of a public offence. And undoubtedly the denial of this authority proceeded upon great principles of public policy and convenience. If every party had a right to bring before this Court every case, in which judgment had passed against him, for a crime or misdemeanor or felony, the course of justice might be materially delayed and obstructed, and, in some cases, totally frustrated. If, then, this Court  cannot directly revise a judgment of the Circuit Court in a criminal case, what reason is there to suppose, that it was intended to vest it with the authority to do it indirectly? \nIt is also to be observed, that there is no question here, but that this commitment was made by a Court of competent jurisdiction, and in the exercise of an unquestionable authority. The only objection is, not that the Court acted beyond its jurisdiction, but that it erred in its judgment of the law applicable to the case. If, then, we are to give any relief in this case,  it is by a revision of the opinion of the Court, given in the course of a criminal trial, and thus asserting a right to control its proceedings, and take from them the conclusive effect which the law intended to give them. If this were an application for a habeas corpus, after judgment on an indictment for an offence within the jurisdiction of the Circuit Court, it could hardly be maintained, that this court could revise such a judgment, or the proceedings which led to it, or set it aside, and discharge the prisoner. There is, in principle, no distinction between that case and the present; for when a Court commits a party  for a contempt, their adjudication is a conviction, and their commitment, in consequence is execution; and so the law was settled upon full deliberation, in the case of Brass Corsby, Lord Mayor of London, (3 Wilson, 188.) \nIndeed, in that case the same point was before the Court as in this. It was, an application to the Court of Common Pleas for a habeas corpus to bring up the body of the Lord Mayor, who was committed for contempt by the House of Commons. The habeas corpus was granted, and upon the return, the causes of contempt for which the party was committed, were set forth. It was argued, that the House of Commons had no authority to commit for a contempt; and if they had, that they had not used it rightly and properly, and that the causes assigned were insufficient. But the whole Court were of opinion, that the House of Commons had a right to commit for a contempt; and that the Court could not revise its adjudication. Lord Chief Justice DE GREY, on  that occasion said, \"When the House of Commons adjudged any thing to be a contempt, or a breach of privilege, their adjudication is a conviction, and their commitment in consequence is execution; and no Court can discharge,  on bail, a person that is in execution by the judgment of any other Court. The House of Commons, therefore, having an authority to commit, and that commitment being an execution, what can this Court do? It can do nothing, when a person is in execution by the judgment of a Court having a competent jurisdiction. In such a case  this Court is not a Court of appeal.\" Again -- \"The courts of K. B. or C.B. never discharged any person committed for a contempt, in not answering in the Court of Chancery, if the return was for a contempt. If the Admiralty commits for a contempt, or one be taken up on excommunicato capiendo, this Court never discharges the persons committed.\" -- Mr. Justice BLACKSTONE said, \"all Cours, by which I mean to include the two Houses of Parliament, and the Courts of Westminster Hall, can have no control in matters of contempt. The sole adjudication of contempt, and the punishment thereof, belongs exclusively, and without interferring, to each respective Court. Infinite confusion and disorder would follow if Courts could, by writs of habeas corpus, examine and determine the contempt of others.\" \nSo that it is most manifest from the whole reasoning of  the Court in this case, that a writ of habeas corpus was not deemed a proper remedy, where a party was committed for a contempt by a Court of competent  jurisdiction; and that, if granted, the Court could not inquire into the sufficiency of the cause of commitment. If, therefore, we were to grant the writ in this case, it would be applying it in a manner not justified by principle or usage; and we should be bound to remand the party, unless we were prepared to abandon the whole doctrine, so reasonable, just, and convenient, which has hitherto regulated this important subject. We are entirely satisfied to administer the law as we find it, and are all opinion, that, upon the facts of this case, the motion ought to be denied. \nThe argument of inconvenience has been pressed upon us with great earnestness. But where the law is clear, this argument can be of no avail; and it will probably be found, that there are also serious inconveniences on the other side. Wherever power is lodged, it may be abused. But this forms no solid objection against its exercise. Confidence must be reposed somewhere; and if there should be an abuse, it will be a public grieveance, for which a remedy  may be applied by the legislature, and is not to be devised by Courts of justice. This argument was also used in the case already cited, and the answer of the Court to it is so satisfactory, that it would be useless to attempt any farther refutation. \nUpon the whole, it is the opinion of the Court, that the motion be overruled. \nWrit denied. 5 \n \n\n ", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the Court. \nThe principal questions which have arisen, and have been argued here, upon the instructions given by the Circuit Court, and to which alone the Court deem it necessary to direct their attention, are, First, whether upon the facts stated, a legal presumption exists, that William Dudley died seised of an estate of inheritance in the demanded premises; and, if so, Secondly, whether an exclusive possession of the demanded premises, by Joseph Dudley and his grantees, after the death of William, under an adversary claim, for thirty years, is  a bar to the entry and title of the demandants under the administration sale. \nIt is to be considered, that no paper title, of any sort, is shown in William Dudley, or his son Joseph. Their title, whatever it may be, rests upon possession; and the nature and extent of that possession must be judged of by the acts and circumstances which accompany it, and qualify, explain, or control it Undoubtedly, if a person be found in possession of land, claiming it as his own, in fee, it is prima facie evidence of his ownership, and seisin of the inheritance. But, it is not the possession alone, but the possession accompanied with the claim of the fee, that gives this effect, by construction of law, to the acts of the party. Possession, per se, evidences  no more than the mere fact of present occupation, by right; for the law will not presume a wrong; and that possession is just as consistent with a present interest, under a lease for years or for life, as in fee. From the very nature of the case, therefore, it must depend upon the collateral circumstances, what is the quality and extent of the interest claimed by the party; and  to that extent, and that only, will the  presumption of law go in his favour. And the declarations of the party, while in possession, equally with his acts, must be good evidence for this purpose. If he claims only an estate for life, and that is consistent with his possession, the law will not, upon the mere fact of possession, adjudge him to be in under a higher right, or a larger estate. If, indeed, the party be in under title, and by mistake of law, he supposes himself possessed of a less estate in the land than really belongs to him, the law will adjudge him in possession of, and remit him to, his full right and title. For a mistake of law shall not, in such case, prejudice the right of the party, and his possession, therefore, must be held co-extensive with his right. This is the doctrine in Littleton, (s. 695.) cited at the bar; and better authority could not be given, if indeed, so obvious a principle of justice required any authority to support it. But there the party establishes a title in point of law greater than his claim; whereas, in the case now supposed, the party establishes nothing independent of his possession, and that qualified by his own acts and declarations. This is the distinction between   the cases, and accounts at once for the different principles of law applicable to them. \nIt has also been argued at the bar, that a person who commits a disseisin cannot qualify his own wrong, but must be considered as a disseisor in fee. This is generally true; but it is a rule introduced for the benefit of the disseisee, for the sake of electing his remedy. For if a man enter into possession, under a supposition of a lawful limited right, as under a lease, which turns out to be void, or as a special occupant, where he is not entitled so to claim, if he be a disseisor at all, it is only at the election of the disseisee. 36 There is nothing in the law which prevents the disseisee from considering such a person as a mere trespasser, at his election; or which makes such an entry, under mistake for a limited estate, a disseisin in fee absolutely, and, at all events, so that a descent cast would toll the entry of the disseisee. But, were it otherwise, in order to apply the doctrine at all, it must appear, that the party found in possession entered without right, and was, in fact, a disseisor; for if his entry were congeable, or his possession lawful, his entry and possession  will be considered as limited by his right. For the law will never construe a possession tortious unless from necessity. On the other hand, it will consider every possession lawful, the commencement and continuance of which, is not proved to be wrongful. And this upon the plain principle, that every man shall be presumed to act in obedience to his duty,  until the contrary appears. When, therefore, a naked possession is in proof, unaccompanied by evidence, as to its origin, it will be deemed lawful, and co-extensive with the right set up by the party. If the party, claim only a limited estate, and not a fee, the law will not, contrary to his intentions, enlarge it to a fee. And it is only when the party is proved to be in by disseisin, that the law will construe it a disseisin of the fee, and abridge the party of his right, to qualify his wrong. \nNow, in the case at bar, it is not proved of what estate Thomas Dudley died seised in the premises. His possession does not appear to have been accompanied with any claim of right to the inheritance. It might have been an estate for life  only, and as such, have had a lawful commencement. If it were intended to be argued, that he had a fee in the premises, it should have been established by competent proof, that he was in possession, claiming a fee by right, or by wrong. No such fact appears. The only fact, leading even to a slight presumption of that nature, is, that his widow took one third of the rents and profits during her life. But whether this was under a claim of dower, or any other right, is not proved. The circumstance is equivocal in its character, and is unexplained; and the inference to be deduced from it, of a descendible estate in her husband, is rebutted by the fact, that immediately on his death, his son William entered into the premises, claiming a life estate, and held them during his life, as his own, without any claim on the part of the co-heirs of his father, to share in the estate. There is then nothing in the case, from which it can be judicially  inferred, that Thomas was ever seised of an estate of inheritance in the premises, and, of course, none of a descent from him to his heirs. \nThen, as to the estate of his son William in the premises. It is argued, that William had  an estate in fee, by right or by wrong. That if his entry, either in person, or by his guardian, was without right, it was a disseisin, and invested him with a wrongful estate in fee. If with right, then it must have been as a co-heir of his father, and a grant ought to be presumed from the other co-heirs to him, releasing their title, and confirming his. \nThe doctrine, as to presumptions of grants, has been gone into largely, on the argument, and the general correctness of the reasoning is not denied. There is no difference in the doctrine, whether the grant relate to corporeal or incorporeal hereditaments. A grant of land may as well be presumed, as a grant of a fishery, or of common, or of a way.Presumptions of this nature are adopted from the general infirmity of human nature, the difficulty of preserving muniments of title, and the public policy of supporting long and uninterrupted possessions. They are founded upon the consideration, that the facts are such as could not, according to the ordinary course of human affairs, occur, unless there was a transmutation of title to, or an admission of an existing adverse title in, the party in possession. They may, therefore, be  encountered and rebutted by contrary presumptions; and can never fairly arise where all the circumstances are perfectly consistent with the non-existence of a grant:  A fortiori, they cannot arise where the claim is of such a nature as is at variance with the supposition of a grant. In general, it is the policy of courts of law, to limit the presumption of grants to periods analogous to those of the statute of limitations, in cases where the statute does not apply. But where the statute applies, it constitutes, ordinarily, a sufficient title or defence, independently of any  presumption of a grant, and, therefore, it is not generally resorted to. But if the circumstances of the case justify it, a presumption of a grant may as well be made in the one case as in the other; and where the other circumstances are very cogent and full, there is no absolute bar against the presumption of a grant, within a period short of the statute of limitations. 37 \nIf we apply the doctrines here asserted to the case at bar, we may ask, in the first place, what ground there is to presume any  grant of the premises to William Dudley, and if any, what was the quantity or quality of his estate? It has been already stated that there is no sufficient proof that his father died seised of a descendible estate in the premises; and if so, the entry of William by his guardian, or in person, cannot be deemed to have been under colour of title as heir; and in point of fact he never asserted any such title. For the same reason, no estate can be presumed to have desceded to his co-heirs; and if so, the very foundation fails upon which the presumption of a grant from them to William can be built; for if they had no title, and asserted no title, there is no reason  to presume that he or they sought to make or receive an inoperative conveyance. There is no pretence of any presumption of a grant in fee from any other person to William; and as there is no evidence of any connexion with the will of Governor Dudley, or of any claim of title under it by William, there does not seem any room to presume that he was in under that will, upon mistaken constructions of his title derived from it. There is this further difficulty in presuming a grant from the co-heirs to William, that  at the time of his own entry, as well as that of his guardian, all of them were under age, and incapable of making a valid conveyance. During this period, therefore, no such conveyance can be presumed: and yet William, during all this period, claimed an exclusive right, and had an exclusive possession of the whole to his own use; and his subsequent possession was but a continuation of the same claim without any interference on the part of the co-heirs. In point of fact the youngest brother arrived at age about the time of William's death; and as to two others of the co-heirs, the statute of limitations of Connecticut, as to rights of entry, would not then run against them. The presumption of a grant from them is therefore in this view, also, affected with an intrinsic infirmity. \nIn addition to all this, William never claimed any estate in fee in the premises. His declaration uniformly was, that he had a life estate only, and that upon his death they would descend to his son Joseph. Of the competency of this evidence to explain the nature of his possession and title, no doubt can reasonably be entertained.His title being evidenced  only by possession, it must be limited  in its extent to the claim which he asserted. If, indeed, it had appeared that he was in under a written title which gave him a larger estate, his mistake of the law could not prejudice him; but his seisin would be co-extensive with, and a remitter to that title. But there is no evidence of any written title, or of any mistake of law in the construction of it. For aught that appears, William's estate was exactly what he claimed, a life estate only, and the inheritance belonged to his son Joseph. It is material also to observe, that the acts of the parties, and the possession of the estates during the period of nearly fifty years, are in conformity with this supposition, and at war with any other. Why should William's brothers and sisters have acquiesced in his exclusive possession during his whole life, if the inheritance descended from their father? Why should Joseph's brothers and sisters have acquiesced in his exclusive possession during a period of twenty-five years without claim, if their father William was seised of the inheritance? Why should the guardians of William and Joseph have successively entered into the premises, claiming the whole in right of their respective  wards, if their title was not deemed clearly and indisputably an exclusive title, or if they were in by descent under the title of their fathers? If, indeed, a presumption of a grant is to be made, it should be of a grant conforming to the declarations and acts of possession of the parties during the whole period: and if any grant is to be presumed from the facts of this case, it is a grant of a particular estate to William, with a remainder of the  inheritance to Joseph, or in the most favourable view of an estate tail to William, upon whose death the estate would descend to Joseph, as his eldest son, per formam doni. If Thomas, the grand father, were proved to have been the owner of the fee, there is nothing in the other circumstances which forbids the presumption of such a grant from him; but as the cause now stands, it may as well have been derived from some other ancestor, or from a stranger. It is therefore the opinion of this Court, that the Circuit Court erred in directing the jury that William, by mistaken constructions of the will of Governor Dudley, might have claimed an estate for life in the premises, and that such mistake would not operate to defeat his title  by possession, for there was no evidence that William ever claimed under that will; and also erred in instructing the jury that they were authorized presume a grant by the children of Thomas to William. The compromise entered into by Joseph with two of his brothers is not thought to change the posture of the case, because that compromise was made with an explicit denial of their right; and is therefore to be considered as an agreement for a family peace. \nThe other question in the cause is of great importance, and if decided one way will probably put an end to further controversy.It has been very fully and ably argued at the bar, and does not, from any thing before us, appear to have received a final adjudication in the State courts of Connecticut. It must therefore be examined and decided upon principle. By the laws of Connecticut, (as has been already  stated,) the real estate of an intestate is liable to be sold for the payment of debts, where there is a deficiency of personal estate. The administrator in virtue of his general authority, has no right to meddle with the real estate; but derives this special authority from  the order of the Court of Probates,  which possesses jurisdiction to direct a sale, upon a proper application, and proof of the deficiency of the personal assets. This power or trust, call it which you please, when granted or ordered, is not understood to convey any estate to the administrator in the lands of the intestate. He derives simply an authority to sell from the Court, and upon the sale makes a conveyance to the purchaser; and the estate passes to the purchaser upon his entry into the land by operation of law, so that he is in under the estate of the intestate. As long as an administration legally subsists, or may be legally granted, this power over the land may be exercised, if the land remains in possession of the heirs; and it is not defeated simply by an alienation or disseisin of the heirs. 38 By analogy, also, to other cases of a like nature, at the common law, as, for instance, a power given by a will to executors to sell an estate for payment of debts, it may be true that a descent cast will not toll an entry, for there is a distinction between a right of entry, and a mere power. 39 The former is in general barred by a descent cast; but the  latter is not. On this, however, it is not  necessary to express any opinion. \nIt does not appear that at the time of granting the administration on this estate, any statuteable limitation of the period within which an original administration might be granted, existed in Connecticut, though a limitation generally to seven years after the death of the party has been since introduced. 40 And the present administration, though granted after the lapse of 28 years from the death of William Dudley, must be considered as valid, it having been allowed by a Court of competent and exclusive jurisdiction, whose decision we are not at liberty to review. \nStill, however, the question recurs, whether a power of sale, thus derived under the law, and not from the act of the party, is to be considered as a perpetual lien on the land of which the intestate died seised, and capable of being called into life at any distance of time, and under any circumstances, whatever may be  the mesne conveyances, disseisins, or descents, which may have taken place. If it be of such a nature, great public mischiefs must investably occur, and many innocent purchasers, fortified as their possession may be, by length of time, against all interests in the land, may yet be the victims of a secret lien, or power, which could not be forseen or guarded against, and which may spring upon their titles when the original parties to the transactions are  buried in the grave. The principles of justice would seem to require, that the law should administer its benefits to those who are vigilant in exercising their rights, and not to those who sleep over them. It is always in the power of creditors to compel an administration to be taken upon an estate by application to a Court of Probates; and if the next of kin decline the office, it is competent for the Court to appoint any other suitable person. So that, if creditors do not choose to act, the loss or injury ought rather to fall on them, than on those who are meritorious purchasers without the means of knowledge to guard them against mistake. A power to sell the estate for payment of debts being created by the law, ought  not to be so construed as to work mischiefs against the intent of the law. It ought to be exercised within a reasonable time fater the death of the intestate: and gross neglect or dealy on the part of the creditors for an unreasonable time, ought to be held to be a waiver or extinguishment of it. This appears to be the doctrine in Massachusetts; 41 whose laws on this subject are like those of Connecticut, and is so just in itself, that unless prevented by authority, we should not hesitate to adopt it. There is no decision in Connecticut, which, to our knowledge, controverts this doctrine; and it stands supported by the very learned opinion of her late Chief Justice in the case of Sumner v. Childs. 42 There  are many cases where indisputable liens on land may be lost by lapse of time, and transmutation of the property. And even the rights of mortgagors to redeen, and of mortgagees to enforce payment out of the land, may be lost by presumptions, or laches arising from time. \nWhat then is to be deemed a reasonable time for the exercise of this power to sell?  It has been argued that the case of such a power is within the purview of the statute of limitations of Connecticut; and if not that the reasonable time for its exercise is to be fixed by analogy to that statute. The statute provides that no person shall, at any time thereafter, make entry into any lands or tenements, but within fifteen years next after his right ot title shall first descend or accrue to the same, with a saving in favour of infants, Femes covert, &c. of five years after the removel of the disability. 43 The language of the statute would seem to apply merely to rights of entry; but it has been the uniform construction of the Courts of the State, that it also takes away all rights of action, and, therefore, bars all real actions after that period. 44 Now, the argument at the bar is, that the words right or title first accrued, refer solely to the commencement of the original title under which the party claims, and not to his own accession to the title. But it a appears to us, that this  construction of the statute cannot be maintained. The title against which the statute runs, is a present right of entry; and it is admitted, that when once it so begins  to run, no devolution of the same title, and no supervening disability, will stop its operation. When, therefore, it speaks of a right or title first accrued, it means a new right or title first accruing to the party, and not the transfer of an old title. Against titles, in esse, at the time of the adverse possession, the statute was intended to run; but titles which should afterwards come in esse, were  not within the provision of the statute, because they could not be enforced within the period, and it would be unjust to bar future rights in respect to which there could, by no possibility, be an imputation of laches. And such has been the uniform construction of all the statutes which contain a clause of this nature. Stanford's case, cited at the bar, and referred to in Cro. Jac. 61., is directly in point; and it would be easy to multiply instances under the statute of limitations, and the statute of fines, to the same effect. 45 If, indeed, the construction were otherwise, it would not help the present case, for the right of entry of the purchaser did not accrue until after the conveyance to him, and if he should then be deemed in under the estate of the intestate,  and in privity of title, it would be a new right growing out of the exercise of a power conferred by law, and no more barred than a right of entry upon an extont after a fine levied,  and five years past, where the judgment was obtained before the fine. 46 \nBut we do think it is a case clearly within the same equity as those which are governed by the statute of limitations; and that by analogy to the cases where a limitation has been applied to other rights and equities not within the statute, the reasonable time within which the power should be exercised, ought to be limited to the same period which regulates rights of entry. It would be strange, indeed, that when the estate of the heirs in the land, which is but a continuation of the estate of the intestate, is extinguished by the statute, the estate should still be considered as a subsisting estate of the intestate  himself. That the administrator should possess a power over the property which the intestate could not possess if living; and that a lien created by opration of law should have a more permanent duration of efficacy, than if created by the express act of the party. The convenience of mankind, the public policy of protecting innocent purchasers, and the repose of titles honestly acquired, require some limitation upon powers of this nature, and we know of none more just and equitable than this, that when the right of entry to the land is gone, or the estate is gone by an adverse possession from those who held as heirs or devisees, the whole interest in the land, the power of the administrator to make sale of the land for payment of debts, is gone also. In this opinion we do but follow the doctrine which has been distinctly intimated  both in the Massachusetts and Connecticut Courts. 47 \nThe remaining consideration under this head is, whether the possession of Joseph Dudley can be considered as an adverse possession so as to toll the right of entry  of the heirs, and, consequently, extinguish, by the lapse of time, their right of action for the lands, as well as extinguish by analogy of principle the power of the administrator to sell the land. It is said, that the entry of Joseph into the premises is consistent with the potential right of the creditors; that he had a right to enter as a co-heir of his father, and if he entered as co-heir, his possession was not adverse, but was a possession for the other heirs and creditors, and he could not afterwards hold adversely, or change the nature of his possession, for the creditors might always elect to consider him their trustee. There is no doubt, that in general, the entry of one heir will enure to the benefit of all, and that if the entry is made as heir, and without claim of an exclusive title, it will be deemed an entry not adverse to, but in consonance with, the rights of the other heirs. But it is as clear, that one heir may disseise his co-heirs, and hold an adverse possession against them, as well as a stranger. And, notwithstanding an entry as heir, the party may, afterwards, by disseisin of his co-heirs, acquire and exclusive possession upon which the  statute  will run. An ouster, or disseisin, is not, indeed, to be presumed from the mere fact of sole possession; but it may be proved by such possession, accompanied with a notorious claim of an exclusive right. And if such exclusive possession will run against the heirs, it will, by parity of reason, run against the creditors. For the heirs, qua heirs, are in no accurate sense in the estate as trustees of the creditors. They hold in their own right by descent from their ancestor, and take the profits to their own use during their possession; and the most that can be said is, that they hold consistently with the right of the creditors.The creditors, in short, have but a lien on the land which may be enforced through the instrumentality of the administrator acting under the order of the Court of Probates. \nBut in order to apply the argument itself, it is necessary to prove that the ancestor had an estate of inheritance, and that the party entered as heir. Now, in the case at bar, all the circumstances point the other way. There is not, as has been already intimated, any proof, that William Dudley died seised of an inheritance in the land; and there is direct proof that he asserted the  inheritance to be in his son Joseph; and the entry of the guardian of Joseph as well as his own entry, after his arrival of age, was under an exclusive claim to the whole, not by descent, but by title distinct or paramount. There is certainly no incapacity in an heir to claim an estate by title distinct or paramount to that of his ancestor; and if his possession is exclusive under such claim, and he holds all other persons out until the statute period  has run, he is entitled to the full benefit and protection of the bar. It appears to us, therefore, that the jury ought to have been instructed, that if they were satisfied, that Joseph's possession was adverse to that of the other heirs, and under a claim of title distinct from, or paramount to that of his father, during his 25 years of exclusive possession, the entry of the purchaser, under the administrator's sale, was not congeable, and that the power of the creditor over the estate was extinguished. There was therefore error in the opinion of the Court to the jury, that as against the creditors of William Dudley, neither Joseph nor the tenant had gained any title to the land in controversy by possession. \nFor these  reasons the judgment of the Circuit  Court must be reversed, and the cause remanded, with directions to the Court to order a venire facias de novo. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the the Court. \nUpon the argument at the bar several questions have arisen, which have been deliberately considered by the Court; and its judgment will now be pronounced. The first in the order, in which we think it most convenient to consider the cause, is, whether the Independencia is in point of fact a public ship, belonging to the government of Buenos Ayres. The history of this vessel, so far as is necessary for the disposal of this point, is briefly this: She was originally built and equipped at Baltimore as a privateer during the late was with Great Britain, and was then rigged as a schooner, and called the Mammoth, and cruized against the enemy. After the peace she was rigged as a brig, and sold by her original owners. In January, 1816, she was loaded with a cargo of munitions of war, by her new owners, (who are inhabitants of Baltimore, and being armed with twelve guns, constituting a part of her original armament, she was despatched from that port, under the command of the claimant, on a voyage,  ostensibly to the Northwest Coast, but in reality to Buenos Ayres.  By the written instructions given to the supercargo on this voyage, he was authorized to sell the vessel to the government of Buenos Ayres, if he could obtain a suitable price. She duly arrived at Buenos Ayres, having exercised no act of hostility, but sailed under the protection of the American flag, during the voyage. At Buenos Ayres the vessel was sold to Captain Chaytor and two other persons; and soon afterwards she assumed the flag and character of a public ship, and was understood by the crew to have been sold to the government of Buenos Ayres; and Captain Chaytor made known these facts to the crew, and asserted that he had become a citizen of Buenos Ayres; and had received a commission to command the vessel as a national ship; and invited the crew to enlist in the service; and the greater part of them accordingly enlisted. From this period, which was in May, 1816, the public functionaries of our own and other foreign governments at that port, considered the vessel as a public ship of war, and such was her avowed character and reputation. No bill of sale of the vessel to the government of Buenos  Ayres is produced, and a question has been made principally from this defect in the evidence, whether her character as a public ship is established. It is not understood that any doubt is expressed as to the genuineness of Captain Chaytor's commission, nor as to the competency of the other proofs in the cause introduced, to corroborate it. The only point is, whether supposing them true, they afford satisfactory evidence of her public character. We are of opinion that they do. In general the commission of a public ship, signed  by the proper authorities of the nation to which she belongs, is complete proof of her national character.A bill of sale is not necessary to be produced. Nor will the Court of a foreign country inquire into the means by which the title to the property has been acquired. It would be to exert the right of examining into the validity of the acts of the foreign sovereign, and to sit in judgment upon them in cases where he has not conceded the jurisdiction, and where it would be inconsistent with his own supremacy. The commission, therefore, of a public ship, when duly authenticated, so far at least as foreign courts are concerned, imports absolute  verity, and the title is not examinable. The property must be taken to be duly acquired, and cannot be controverted. This has been the settled practice between nations; and it is a rule founded in public convenience and policy, and cannot be broken in upon, without endangering the peace and repose, as well of neutral as of belligerent sovereigns. The commission in the present case is not expressed in the most unequivocal terms; but its fair purport and interpretation must be deemed to apply to a public ship of the government. If we add to this the corroborative testimony of our own and the British Consul at Buenos Ayres, as well as that of private citizens, to the notoriety of her claim of a public character; and her admission into our own ports as a public ship, with the immunities and privileges belonging to such a ship, with the express approbation of our own government, it does not seem too much to assert, whatever may be the private suspicion of a lurking American  interest, that she must be judicially held to be a public ship of the country whose commission she bears. \nThere is another objection urged against the admission of this vessel to the privileges and immunities  of a public ship, which may as well be disposed of in connexion with the question already considered.It is, that Buenos Ayres has not yet been acknowledged as a sovereign independent government by the executive or legislature of the United States, and,  therefore, is not entitled to have her ships of war recognized by our Courts as national ships. We have, in former cases, had occasion to express our opinion on this point. The government of the United States has recognized the existence of a civil war between Spain and her colonies, and has avowed a determination to remain neutral between the parties, and to allow to each the same rights of asylum and hospitality and intercourse. Each party is, therefore, deemed by us a belligerent nation having, so far as concerns us, the sovereign rights of war, and entitled to be respected in the exercise of those rights. We cannot interfere to the prejudice of either belligerent without making ourselves a party to the contest, and departing from the posture of neutrality. All captures made by each must be considered as having the same validity, and all the immunities which may be claimed by public ships in our ports under the law  of nations must be considered as equally the right of each; and as such must be recognized by our Courts of justice, until Congress shall prescribe a different rule. This is the  doctrine heretofore asserted by this Court, and we see no reason to depart from it. \nThe next question growing out of this record, is whether the property in controversy was captured in violation of our neutrality, so that restitution ought, by the law of nations, to be decreed to the libellants. Two grounds are relied upon to justify restitution: First that the Independencia and Altravida were originally equipped, armed, and manned as vessels of war in our ports; Secondly, that there was an illegal augmentation of the force of the Independencia within our ports. Are these grounds, or either of them, sustained by the evidence? \nIf the cause stood solely upon the testimony of the witnesses who have been examined on behalf of the libellants, we should have great hesitation in admitting the conclusions which have been drawn from it. The witnesses, indeed, speak directly and uniformly either to the point of illegal equipment, or illegal augmentation of force within our ports. But their testimony  is much shaken by the manifest contradictions which it involves, and by declarations of facts, the falsity of which was entirely within their knowledge, and has been completely established in proof. It has been said, that if witnesses concur in proof of a material fact, they ought to be believed in respect to that fact, whatever may be the other contradictions in their testimony. That position may be true under circumstances; but it is a doctrine whicn can be received only under many qualifications, and with great caution. If the circumstance  respecting which the testimony is discordant be immaterial, and of such a nature, that mistakes may easily exist, and be accounted for in a manner consistent with the utmost good faith and probability, there is much reason for indulging the belief that the discrepancies arise from the infirmity of the human mind, rather than from deliberate error. But where the party speaks to a fact in respect to which he cannot be presumed liable to mistake, as in relation to the country of his birth, or his being in a vessel on a particular voyage, or living in a particular place, if the fact turn out otherwise, it is extremely difficult to  exempt him from the charge of deliberate falsehood; and Courts of justice, under such circumstances, are bound, upon principles of law, and morality and justice, to apply the maxim falsus in uno, falsus in omnibus. What ground of judicial belief can there be left, when the party has shown such gross insensibility to the difference between right and wrong, between truth and falsehood? The contradictions in the testimony of the witnesses of the libellants have been exposed at the bar with great force and accuracy; and they are so numerous that, in ordinary cases, no Court of justice could venture to rely on it without danger of being betrayed into the grossest errors. But in a case of the description of that before the Court, where the sovereignty and rights of a foreign belligerent nation are in question, and where the exercise of jurisdiction over captures made under its flag, can be justified only by clear proof of the violation of our neutrality, there are still stronger reasons for abstaining  from interference, if the testimony is clouded with doubt and suspicion. We adhere to the rule which has been already adopted by this Court, that restitution ought not to be  decreed upon the ground of capture in violation of our neutrality, unless the fact be established beyond all reasonable doubt. \nBut the present case does not stand upon this testimony alone. It derives its principal proofs altogether from independent sources, to the consideration of which the attention of the Court will now be directed. \nThe question as to the original illegal armament and outfit of the Independencia may be dismissed in a few words. It is apparent, that though equipped as a vessel of war, she was sent to Buenos Ayres on a commercial adventure, contraband, indeed, but in no shape violating our laws on our national neutrality. If captured by a Spanish ship of war during the voyage she would have been justly condemned as good prize, and for being engaged in a traffick prohibited by the law of nations. But there is nothing in our laws, or in the law of nations, that forbids our citizens from sending armed vessels, as well as munitions of war, to foreign ports for sale. It is a commercial adventure which no nation is bound to prohibit; and which only exposes the persons engaged in it to the penalty of confiscation. Supposing, therefore, the voyage to have been for  commercial purposes, and the sale at Buenos Ayres to have been a bona fide sale, (and there is nothing in the evidence before us to contradict it,) there is no pretence to say, that the original outfit on the  voyage was illegal, or that a capture made after the sale was, for that cause alone, invalid. \nThe more material consideration is as to the augmentation of her force in the United States, at a subsequent period. It appears from the evidence, and, indeed, is admitted by Captain Chaytor, that after the sale in May, 1816, the Independencia sailed for Buenos Ayres under his command, on a cruise against Spain; and after visiting the coast of Spain, she put into Baltimore early in the month of October of the same year, having then on board the greater part of her original crew, among whom were many Americans. On her arrival at Baltimore,  she was received as a public ship, and there underwent considerable repairs. Her bottom was new coppered, some parts of her hull were recaulked, part of the water-ways were replaced, a new head was put on, some new sails and rigging to a small amount, and a new mainyard was obtained, some bolts were driven into the hull, and  mainmast, which had been shivered by lightning, was taken out, reduced in length, and replaced in its former station. In order to make these repairs, her guns, ammunition and cargo were discharged under the inspection of an officer of the customs, and when the repairs were made, the armament was replaced, and a report made by the proper officer to the collector, that there was no addition to her armament. The Independencia left Baltimore in the latter part of December, 1816, having then on board a crew of 112 men; and about the 8th of January following, she sailed from the Capes of the Chesapeake on the cruise on which  the property in question was captured, being accompanied by the Altravida, as a tender, or despatch vessel. It will be necessary, hereafter, to make more particular mention of the Altravida; but, for the present, the observations of the Court will be confined to the Independencia. It is admitted by the claimant, that during her stay at Baltimore, several persons were enlisted on board the Independencia, and his own witnesses prove that the number was about thirty. \nThe first observation that occurs on this part of the case is, that here is a clear augmentation  of force within our jurisdiction. The excuse offered is, that the persons so enlisted, represented themselves, or were supposed to be, persons in the service of Buenos Ayres. Of this, however, there is not the slightest proof. The enlistment of men being proved, it is incumbent on the claimant to show that they were persons who might lawfully be enlisted; and as the burden of proof rests on him, the presumption necessarily arising from the absence of such proof is that they were not of that character. It is not a little remarkable that not a single officer of the Independencia has been examined on this occasion. They are the persons who, from their situation, must have been acquainted with the facts; and the total omission to bring their testimony into the cause can scarcely be accounted for but upon a supposition extremely unfavourable to the innocence of the transaction. \nAnother observation which is drawn from the predicament of this case is, that if, as the claimant asserts,  the original voyage to Buenos Ayres, was a mere commercial adventure, the crew must have been composed principally of Americans or residents in our country.They enlisted at Buenos Ayres on  board the Independencia, as officers and seamen for the purposes of warfare, and there is no evidence in the case as to the length of time of their engagements, or of the place where the crime was to terminate. Why are the documents on this subject, for documents must exist, in the possession of the claimant; why are they not produced? If the cruise was to terminate at Buenos Ayres, or at a specific period of time, the fact would have a material bearing on the merits of the cause. Yet though the pressure of this point must, at all times, have been forcibly felt, there has not, up to the present moment, been the slightest effort to relieve it from the darkness which thus surrounds it. Under such circumstances, the natural conclusion would seem to be that the crew were to be discharged, and the cruize to terminate at Baltimore. This was their native or adopted home, the place where they first embarked on board the Mammoth, and that to which most of them must be supposed solicitous to return. The conduct of the vessel indicated the same intent. She underwent general repairs, some of which could hardly be deemed of great necessity, and must have been induced by the consideration  that Baltimore was a port peculiarly well fitted for naval equipments. During the repairs (a period of two months) the crew were necessarily on shore; and it is scarcely to be supposed that they were held together by  any common bond of attachment, or that they had so far lost the common character of seamen as not to be easily led into some other employment or enterprise, which should yield immediate profit. What proof, indeed, is there that the same crew which came to Baltimore sailed again in the Independenica on her new cruise? It is stated only as hearsay by one or two of the claimant's witnesses, who had no means, and do not pretend to any means of accurate knowledge of the fact. If true, it might have been proved by the officers of the ship, by the muster roll of the crew, and by the shipping articles; and these are wholly withdrawn from the cause, without even an apology for their absence.It would certainly be an unreasonable credulity for the Court, under such circumstances, to believe that the actual augmentation of force was not far greater than what is admitted by the party, and that there was either an innocence of intention or act in the enlistments. The  Court is, therefore, driven to the conclusion, that there was an illegal augmentation of the force of the Independencia in our ports, by a substantial increase of her crew; and this renders it wholly unnecessary to enter into an investigation of the question, whether there was not also an illegal increase of her armament. \nIf any doubt could be be entertained as to the Independencia, none can be as to the predicament of the Altravida. This vessel was formerly a privateer, called the Romp, and was condemned for illegal conduct by the District Court of Virginia; and under the decree of the Court, was sold, together with the armament  and munitions of war then on board. She was purchased ostensibly for a Mr. Thomas Taylor, but was immediately transferred to Captain Chaytor. She soon afterwards went to Baltimore, and was attached as a tender to the Independencia, having no separate commission, but acting under the authority of Captain Chaytor. Part of her armament was mounted, and a crew of about twenty-five men were put on board at Baltimore. She dropped down to the Patuxent a few days before the sailing of the Independencia, and was there joined by the latter, and accompanied  her on a cruise in the manner already mentioned. Here, then, is complete evidence from the testimony introduced by the claimant himself of an illegal outfit of the Altravida, and an enlistment of her crew within our waters for the  purposes of war. There is no pretence that the crew was transferred to her from the Independencia, for the claimants own witnesses admit that a few only were of this description. The Altravida must be considered as attached to, and constituting a part of the force of the Independencia, and so far as the warlike means of the latter were increased by the purchase, her military force must be deemed to be augmented. Not the slightest evidence is offered of the place to circumstances under which the enlistment of the crew took place. It consisted, according to the strong language of the testimony, of persons of all nations; and it deserves consideration, that throughout this voluminous record, not a scintilla of evidence exists to show that any person on board of either vessel was a  native of Buenos Ayres. We think, then, that the fact of illegal augmentation of force, by the equipment of the Altravida, is also completely established  in proof. \nWhat, then, are the consequences which the law attaches to such conduct, so far as they respect the property now under adjudication? It is argued on the part of the libellant, that it presents a casus faederis under our treaty with Spain. The sixth and fourteenth articles are relied upon for this purpose. The former is in our judgment exclusively applicable to the protection and defence of Spanish ships within our territorial jurisdiction, and provides for the restitution of them when they have been captured within that jurisdiction. The latter article provides, that no subject of Spain \"shall apply for, or take any commission or letter of marque for arming any ship or ships to act as privateers,\" against the United States, or their citizens, or their property, from any prince or state with which the United States shall be at war; and that no citizen of the United States \"shall apply for, or take any commission or letters of marque, for arming any ship or ships to act as privateers\" against the King of Spain, or his subjects, or their property, from any prince or state with which the said king shall be at war. \"And if any person of either nation shall take such commission  or letter of marque, he shall be punished as a pirate.\" In the Spanish counterpart of the treaty, the word \"privateers\" in the first clause has the corresponding word \"corsarios;\" but in the second clause, no such word is to be found. But it is obvious  that both clauses were intended to receive, and ought to receive, the same construction; and the very terms of the article confine the prohibition to commissions, &c. to privateers. It is not for this Court to make the construction of the treaty broader than the apparent intent and purport of the language. There may have existed, and probably did exist, reasons of public policy which forbade an extension of the prohibition to public ships of war. It might well be deemed a breach of good faith in a nation to enlist in its own service an acknowledged foreigner, and at the same time subject him by that very act, and its own stipulations, to the penalties of piracy. But it is sufficient for the Court, that the language of the treaty does not include the case of a public ship, and we do not perceive that the apparent intention or spirit of any of its provisions, justifies such an interpolation. The question, then, under the  Spanish treaty, may be dismissed without further commentary. This view of the question renders it unnecessary to consider another which has been discussed at the bar respecting what is denominated the right of expatriation. It is admitted by Captain Chaytor, in the most explicit manner, that during this whole period his wife and family have continued to reside at Baltimore; and so far as this fact goes, it contradicts the supposition of any real change of his own domicil. Assuming, for the purposes of argument, that an American citizen may, independently of any legislative act to this effect, throw off his own allegiance to his native country, as to which we give no  opinion, it is perfectly clear, that this connot be done without a bona fide change of domicil under circumstances of good faith. It can never be asserted as a cover for fraud, or as a justification for the commission of a crime against the country, or for a violation of its laws, when this appears to be the intention of the act. It is unnecessary to go into a farther examination of this doctrine; and it will be sufficient to ascertain its precise nature and limits, when in shall become the leading point  of a judgment of the Court. \nAnd here we are met by an argument on behalf of the claimant, that the augmentation of the force of the Independencia within our ports, is not an infraction of the law of nations, or a violation of our neutrality; and that so far as it stands prohibited by our municipal laws the penalties are personal, and do not reach the case of restitution of captures made in the cruize, during which such augmentation has taken place. It has never been held by this Court, that an augmentation of force or illegal outfit affected any captures made after the original cruize was terminated. By analogy to other cases of violations of public law the offence may well be deemed to be deposited at the termination of the voyage, and not to affect future transactions. But as to captures made during the same cruize, the doctrine of this Court has long established that such illegal augmentation is a violation of the law of nations, as well as of our own municipal laws, and as a violation of our neutrality, by analogy to other cases, it infects the captures subsequently made with the character  of torts, and justifies and requires a restitution to the parties who have  been injured by such misconduct. It does not lie in the mouth of wrongdoers, to set up a title derived from a violation of our neutrality. The cases in which this doctrine has been recognized and applied, have been cited at the bar, and are so numerous and so uniform, that it would be a waste of time to discuss them, or to examine the reasoning by which they are supported: More especially as no inclination exists on the part of the Court to question the soundness of these decisions. If, indeed, the question were entirely new, it would deserve very grave consideration, whether a claim founded on a violation of our neutral jurisdiction could be asserted by private persons, or in any other manner than a direct intervention of the government itself. In the case of a capture made within a neutral territorial jurisdiction, it is well settled,  that as between the captors and the captured, the question can never be litigated. It can arise only upon a claim of the neutral sovereign asserted in his own Courts or the Courts of the power having cognizance of the capture itself for the purposes of prize. And by analogy to this course of proceeding, the interposition of our own  government might seem fit to have been required before cognizance of the wrong could be taken by our Courts. But the practice from the beginning in this class of causes, a period of nearly 30 years, has been uniformly the other way; and it is now too late to disturb it. If any inconvenience should grow out of it, from reasons of state policy or executive discretion, it is competent  for Congress to apply at its pleasure the proper remedy. \nIt is further contended by the claimant, that the doctrine heretofore established has been confined to cases of captures made by privateers; and that it has never been applied to captures by public ships, and in reason and policy ought not to be so applied. The case of the Cassius, in 3 Dall. Rep. 121., has been supposed at the bar to authorize such an interpretation of the doctrine. That was the case of a motion for a prohibition to the District Court to prohibit it from exercising jurisdiction on a libel filed against the Cassius, a public armed ship of France, to obtain compensation in damages in rem, for an asserted illegal capture of another vessel belonging to the libellants on the high seas, and sending her into a French port  for adjudication, as prize. The libel alleged that the Cassius was originally equipped and fitted for war in a port of the United States contrary to our laws, and the law of nations. But there was no allegation that she had been originally fitted out by her present commander, or after she became the property of the French government. The principal question was, whether our Courts could sustain a libel for compensation in rem against the capturing vessel for an asserted illegal capture as prize on the high seas, when the prize was not brought into our ports, but was carried into a port infra praesidia of the captors.The Court granted the prohibition; but as no reasons were assigned for the judgment, the only ground that can be gathered, is that which is apparent on the face of the writ of prohibition,  where it is distinctly asserted, that the jurisdiction in cases of this nature exclusively belongs to the Courts of the capturing power, and that neither the public ships of a nation, nor the officers of such ships are liable to be arrested to answer for such captures in any neutral Court. The doctrine of that case was fully recognized by this Court in the case of the Invincible,  (1 Wheat R. 238,;) and it furnishes a rule for the exemption of a public ship from proceedings in rem, in our Courts for illegal captures on the high seas, in violation of our neutrality; but in no degree exempts her prizes in our ports from the ample exercise of our jurisdiction. \nNor is there in reason or in policy any ground for a distinction between captures in violation of our neutrality by public ships, and by privateers. In each case the injury done to our friend is the same; in each the illegality of the capture is the same; in each the duty of the neutral is equally strong to assert its own rights, and to preserve its own good faith, and to take from the wrongdoer the property he has unjustly acquired, and reinstate the other party in his title and possession which have been tortiously devested. This very point was directly asserted by this Court in its judgment in the causes of the Invincible. Mr. Justice JOHNSON there said, \"as to the restitution of prizes made in violation of neutrality, there could be no reason suggested for creating a distinction between the national and the private armed vessels of a belligerent. Whilst a neutral yields to other nations the unobstructed  exercise of their sovereign or belligerent rights, her own dignity and security  require of her the vindication of her own neutrality, and of her sovereign right to remain the peaceable and impartial spectator of the war. As to her it is immaterial in whom the property of the offending vessel is vested. The commission under which the captors act is the same, and that alone communicates the right of capture, even to a vessel which is national property.\" We are satisfied of the correctness of this doctrine, and have no disposition to shake it. In cases of violation of neutral territorial jurisdiction no distinction has ever been made between the capture of public and private armed ships; and the same reason which governs that, applies with equal force to this case. \nAn objection of a more important and comprehensive nature has been urged at the bar, and that is, that public ships of war are exempted from the local jurisdiction by the universal assent of nations; and that as all property captured by such ships is captured for the sovereign, it is, by parity of reasoning, entitled to the like exemption; for no sovereign is answerable for his acts to the tribunals of any foreign  sovereign. \nIn the case of the Exchange, (7 Cranch, 116.) the grounds of the exemption of public ships were fully discussed and expounded. It was there shown that it was not founded upon any notion that a foreign sovereign had an absolute right, in virtue of his sovereignty, to an exemption of his property from the local jurisdiction of another sovereign, when it came within his territory; for that would be to give him sovereign power beyond the limits of his own empire.  But it stands upon principles of public comity and convenience, and arises from the presumed consent or license of nations, that foreign public ships coming into their ports, and demeaning themselves according to law, and in a friendly manner, shall be exempt from the local jurisdiction. But as such consent and license is implied only from the general usage of nations, it may be withdrawn upon notice at any time, without just offence, and if afterwards such public ships come into our ports, they are amenable to our laws in the same manner as other vessels. To be sure, a foreign sovereign cannot be compelled to appear in our Courts, or be made liable to their judgment, so long as he remains in his own  dominions, for the sovereignty of each is bounded by territorial limits. If, however, he comes personally within our limits, although he generally enjoy a personal immunity, he may become liable to judicial process in the  same way, and under the same circumstances, as the public ships of the nation. But there is nothing in the law of nations which forbids a foreign sovereign, either on account of the dignity of his station, or the nature of his prerogative, from voluntarily becoming a party to a suit in the tribunals of another country, or from asserting there any personal, or proprietary, or sovereign rights, which may be properly recognized and enforced by such tribunals. It is a mere matter of his own good will and pleasure; and if he happens to hold a private domain within another territory, it may be that he cannot obtain full redress for any injury to it, except through the instrumentality of its Courts of justice. It may therefore  be justly laid down as a general proposition, that all persons and property within the territorial jurisdiction of a sovereign, are amenable to the jurisdiction of himself or his Courts: and that the exceptions to this rule  are such only as by common usage, and public policy, have been allowed, in order to preserve the peace and harmony of nations, and to regulate their intercourse in a manner best suited to their dignity and rights. It would indeed be strange, if a license implied by law from the general practice of nations, for the purposes of peace, should be construed as a license to do wrong to the nation itself, and justify the breach of all those obligations which good faith and friendship, by the same implication, impose upon those who seek an asylum in our ports. We are of opinion that the objection cannot be sustained; and that whatever may be the exemption of the public ship herself, and of her armament and munitions of war, the prize property which she brings into our ports is liable to the jurisdiction of our Courts, for the purpose of examination and inquiry, and if a proper case be made out, for restitution to those whose possession has been devested by a violation of our neutrality; and if the goods are landed from the public ship in our ports, by the express permission of our own government, that does not vary the case, since it involves no pledge that if illegally captured they shall  be exempted from the ordinary operation of our laws. \nThe last question which has been made at the bar, on which it is necessary to pronounce an opinion, is as to the effect of the asserted condemnation of the  property in controversy, at Buenos Ayres, during the pendency of this suit. Assuming, for the purpose of argument, that the condemnation was regularly made, and is duly authenticated, we are of opinion that it cannot oust the jurisdiction of this Court, after it had once regularly attached itself to the cause. By the seizure and possession of the property, under the process of the District Court, the possession of the captors was devested, and the property was emphatically placed in the custody of the law. It has been since sold, by consent of the parties, under an interlocutory decree of the Court, and the proceeds are deposited in its registry, to abide the final adjudication. Admitting, then, that property may be condemned in the Courts of the captor, while lying in a neutral country, (a doctrine which has been affirmed by this Court,) still it can be so adjudicated only while the possession of the captor remains; for if it be devested, in fact, or by operation  of law, that possession is gone which can alone sustain the jurisdiction. A fortiori, where the property is already in the custody of a neutral tribunal, and the title is in litigation there, no other foreign Court can, by its adjudication, rightfully take away its jurisdiction, or forestall and defeat its judgment. It would be an attempt to exercise a sovereign authority over the Court having possession of the thing, and take from the nation the right of vindicating its own justice and neutrality. \nUpon the whole, it is the opinion of the Court that the decree of the Circuit Court be affirmed, with costs. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the Court. This is a case originating under the attachment act of Maryland  of 1795, (ch. 56.) and brought to this Court upon a writ of error to the Circuit Court of the District of Columbia, for Washington county. The suit was brought by Orr, the defendant in error, on what is  technically called a short note, expressing the true cause of action, as follows: \n \n \nHowes Goldsborough, Esp. \n \nTo Benjamin G. Orr, Dr. \n \n \n \n \nMay 5, 1818. To the west house of four on P. street, south bet- \n \n \nween 4 1-2 street west and Water-street, with the four lots \n \n \nadjoining to the west, \n4,500 00 \n \nTo the house on P. street south adjoining the above house on the \n \n \neast side, and lot No. 21, on O. street south, \n4,500 00 \n \nFebruary 15, 1819. To lots Nos. 9 and 10, and part of 11, \n \n \ncontaining square feet, 12 1-2 cents per foot, \n1,906 00 \n \n \n$ 10,906 00 \n \nBy amount of your account up to 17th of April, 1819, \n7,896 11 \n \n \n$ 2,919 89 \nErrors Excepted, 4th of June, 1819. \nBENJAMIN G. ORR. \n The original defendant, Goldsborough, appeared, and dissolved the attachment by putting in special bail, and pleaded non assumpsit, upon which issue was joined, and a verdict found for the plaintiff for the above balance of 2,919 dollars and  89 cents, with interest. A bill of exceptions was taken at the trial, in substance as follows: \nThe plaintiff in this case, to support the issue joined, on his part, offered in evidence the account marked A., which is as follows, to wit: \n \n \nHowes Goldsborough, Esq. \n \nBot. of Benjamin G. Orr, \n \n \n \n \nMay 5, 1818. The west house of four houses on P. street south, \n \n \nbetween 4 1-2 street west, and Water-street, with four lots \n \n \nadjoining to the west, Cr. \n$ 4,500 00 \n \nBy his note, payable to A. J. Comstock, on the 1st of February, \n \n \n1819, \n1,190 24 \n \nBy his note, payable to A. J. Comstock, on the 1st of August, \n \n \n1819, \n1,238 09 \n \n \n2,428 33 \n \nTo balance due Benjamin G. Orr, payable in lumber, at usual \n \n \nlumber yard prices, of which some part has already been \n \n \ndelivered to his orders, \n$ 2,071 67 \nBENJAMIN G. ORR, \nH. GOLDSBOROUGH. \nWashington, May 5, 1818. \n The agreement marked B., which is as follows, to wit: \nIt is agreed between Benjamin G. Orr, of the city of Washington, and Howes Goldsborough, of the State of Maryland, as follows, to wit: \nThe said Orr sells to said Goldsborough the three story brick house adjoining the one now in the possession of  Commodore Rodgers on P. street south, with the coach house and stable adjoining, and the lot on which they stand, being numbered three, and a lot numbered twenty-one, on O. street south, for four thousand five hundred dollars. \nThe said Orr also sells to said Goldsborough, lots Nos. 9 and 10, and part of 11, in the same square, with the water privilege thereto belonging, for twelve and an half cents for each square foot which they contain, all of which sales are to be paid for in lumber, in the city of Washington, at the usual lumber yard prices; one half thereof to be deliverable the present year, the other half in the year 1819, as it may be wanted by the said Orr. The said Orr fruther agrees to take of the said Goldsborough as much more lumber, which, added to the amount of the above property, when calculated in money, as will make the whole amount to ten thousand dollars. And for such further amount to give his note, payable on the 15th day of February, in the year 1819, to the said Goldsborough.The titles to be made on demand, and the delivery of the lumber to be guarantied by Commodore Rodgers. Washington, May 5th, 1818. \nBENJAMIN G. ORR, \nH. GOLDSBOROUGH. \n I do  hereby guaranty, that H. Goldsborough shall deliver the lumber mentioned in the within contract, on condition that B. G. Orr, on his part, complies with the stipulation on his part, also mentioned in this said instrument of writing. \nJOHN RODGERS. \n And the receipt marked C. which is as follows, to wit: \nReceived of Benjamin G. Orr, his note, payable on the 15th day of February, eighteen hundred and nineteen, for the sum of three thousand five hundred and ninety-four dollars, in compliance with his agreement, dated the 5th day of May, 1818. \nH. GOLDSBOROUGH. \nAnd further proved by a witness, that late in the winter, or in the spring of 1819, the defendant refused to deliver any more lumber to the orders of the plaintiff; the balance of lumber due under said contracts being duly demanded of the defendant by agent of the plaintiff; and it was admitted, that the said honses and lots mentioned in said contracts, had been duly conveyed according to agreement. And the defendant thereupon proved, that he delivered lumber to the orders of the plaintiff to the amount of 7,986 dollars and 11 cents, according to a particular account thereof, which was produced, which includes the  same amount of 2,428 dollars and 33 cents, mentioned in the first account A., the notes therein mentioned being payable in lumber, and the lumber given  in discharge of the same, being charged in the general account B.; and that he delivered lumber to the plaintiff's order, whenever called for, until the 15th of February, 1819, when the note filed in the cause, and mentioned in this defendant's receipt, fell due; that then, the said note not being paid by plaintiff, the defendant refused to deliver any more lumber, and the plaintiff requested said defendant to give him further time until some day in the April following to pay the said note, (at which time he promised to take it up,) and to continue the delivery of lumber to his orders as he might want it, until that day; and the witness, who was the defendant's agent, would have gone on to deliver the whole quantity, if it had been called for before the time limited as aforesaid for the payment of the note in April, not having been restricted by defendant's orders as to quantity; and that on the said day of April, the plaintiff again made default in paying the said note, and the defendant then refusing to deliver any more  lumber, this suit was brought. If they believe the facts above stated to be true, the plaintiff is not entitled to recover in the suit. Which direction the Court refused to give. To which refusal, the defendant, by his counsel, excepts, &c. \nAnd the parties have since annexed to the record, as a part thereof, the following explanatory statement: \n \n \nWhole amount of the purchase money of the house and \n \n \n \nlots sold by the agreement, B. viz: \n \n \n \nHouse, with coach house, &c. and lot 21, \n$ 4,500 \n \n \nLots 9, 10, and part of 11, at 12 1-2 cents per square \n \n \n \nfoot, \n1,906 \n$ 6,406 00 \n \nDo. for the other house and lots sold as per account A. \n \n4,500 00 \n \nTotal amount for both houses, and all the lots under \n \n \n \nboth contracts, \n \n10,906 00 \n \nOf this amount Goldsborough had delivered lumber on \n \n \n \naccount of Orr, to the amount stated in the account D. \n \n \n \n(including all the credits stated in the account A.) \n \n7,986 11 \n \nLeaving a balance to be delivered on account of the \n \n \n \nhouses and lots sold and conveyed by Orr to \n \n \n \nGoldsborough, for which judgment is now recovered, \n \n \n \nwith interest, \n \n2,919 89 \n \n \n \n10,906 00 \n \nIn order to complete the contract B. so as to make the \n \n \n \nwhole amount in lumber to be taken by Orr under that \n \n \n \ncontract, \n$ 10,000 00 \n \n \nHe gave the note mentioned, for \n \n$ 3,594 00 \n \nTo which adding the purchase money for the house and \n \n \n \nlots sold by that contract, \n \n6,406 00 \n \nMakes the total amount to be taken in lumber under that \n \n \n \ncontract, \n \n$ 10,000 00 \n  Upon the argument of the cause in this Court, the principal question has been, whether the failure of Orr to pay the note of 3,594 dollars, constitutes a good defence to this suit. That there is a alance due to Orr of 2,919 dollars and 89 cents, for property actually conveyed by him to Goldsborough, under the agreements stated in the case, is most manifest; and the only point open for consideration is, whether the payment of the note is a condition precedent to the recovery of that balance. This must be decided by the terms of the written agreement B.; for if the contract on one side be not dependent upon the performance of the contract on the other, or if they be not mutual and concurrent contracts, to be performed at the same time, there can be no doubt, that the defence is unsupported. And, upon full consideration, we are all of opinion, that the contracts are not dependent or concurrent, by the true and necessary interpretation of that agreement. The agreement on the part of Orr was  literally complied with. The titles to the property sold were duly made, the note was duly given, and Orr was at all times ready to receive the lumber according to his  rights under the agreement. It is observable, that one moiety of the lumber was deliverable in 1818; and as to this it is clear, that the payment of the note could not be a condition precedent. The other moiety was deliverable in the year 1819, as it was wanted by Orr, and of course he might elect to demand the whole before, as well as after the note became due, at his pleasure. If this be so, it could not be within the contemplation of the parties, that the delivery of the lumber should be dependent upon the payment of the note, for the whole might be rightfully demanded before it became due. Nothing is better settled, both upon reason and authority, than the principle, that where the acts stipulated to be done, are to be done at different times, the stipulations are to be construed as  independent of each other. The parol enlargement of the time of payment of the note, cannot be admitted to change the nature of the original agreement; nor is there any pretence to say, that there was any waiver of the original agreement, even supposing that, in point of law, such a waiver could be insisted upon, in a case circumstanced like the present. For the parties recognised  the existence of that agreement, and lumber continued to be delivered under it as Orr required. If, indeed, any waiver were to be implied, it would be a waiver by Goldsborough of a payment of the note as a condition precedent to the delivery of  the lumber. But the parol contract does not, in any degree, vary the legal rights or obligations of the parties. The Court below was, therefore, right in refusing the instruction prayed for by the counsel for the defendant. \nAfter the argument, some difficulties occurred as to the nature and form of the proceedings under this attachment act; but upon hearing the parties again, our doubts are entirely removed. One of the doubts was, whether, in cases of attachment, if the defendant appeared and dissolved the attachment, there ought not to be a declaration and subsequent pleadings, according to the course in ordinary actions. Upon the terms of the acts respecting attachments, we should have inclined to the opinion, that such a declaration, and such pleadings, were necessary. But the practice is shown to have been otherwise, and that practice has been solemnly adjudged by the Court of Appeals of Maryland to be in conformity to  law. 3 We have no disposition to disturb this construction. \nAnother doubt was, whether an attachment will lie in a case ex contractu, for unliquidated damages for non-delivery of goods. The act of 1795 gives the remedy upon the creditors making oath, &c., that the debtor is bona fide indebted to him in a sum certain over all discounts, \"and at the same time producing the bond or bonds, bill or bills, protested bill or bills of exchange, promissory  note or notes, or other instrument or instruments in writing, account or accounts, by which the debtor is so indebted.\" This enumeration would seem to include such cases only of contract as were for payment of money, either certain in themselves, or for which debt, or indebitatus assumpsit, or actions of that nature, would lie. It does not seem to include a contract for the delivery of goods, or doing any other collateral act. 4 But, however this may be, and we give no opinion respecting it, we are satisfied, that upon the contract in the present case, the plaintiff is entitled  to a specific sum in money, so as to bring himself within the purview of the act. The value of the property sold was estimated in money; and though it was payable in lumber, yet if, upon demand, the defendant refused to deliver the lumber, he lost the benefit of that part of the contract, and the plaintiff became entitled to receive the sum stipulated to be paid in money. \nSome objections were taken by the defendant to the preliminary proceedings in this suit; but it is unnecessary to consider them, because, whatever might have been their original defects, they are waived by going to trial upon the merits. The judgment of the Circuit Court is, therefore, affirmed, with costs. 5 \n \n \n\n ", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the Court. \nThis is the same case which was formerly before  this Court, and is reported in 3 Wheat. Rep. 454. and by a reference to that report, the form of the patent, the nature of the action, and the subsequent proceedings, will full appear. The cause now comes before us upon a writ of error to the judgment of the Circuit Court, rendered upon the new trial, had in pursuance of the mandate of this Court. \nUpon the new trial several exceptions were taken by the counsel for the plaintiff. The first was to the admission of a Mr. Frederick, as a witness for the defendant. It is to be  observed, that the sole controversy between the parties at the new trial was, whether the plaintiff was entitled to recover for an alleged breach of his patent by the defendant in using the improved Hopperboy. Federick, in his examination on the voir dire, denied that he had any interest in the cause, or that he was bound to contribute to the expenses of it. He said he had not a Hopperboy in his mill at present, it being then in Court; that it was in his mill about three weeks ago, when he gave it to a person to bring down to Philadelphia; and that his Hopperboy spreads and turns the meal, cools it some, dries it, and gathers it to the bolting chest. Upon this evidence the plaintiff's counsel contended that Frederick was not a competent witness, but the objection was overruled by the Court. It does not appear from this examination whether the Hopperboy used by Frederick was that improved by the plaintiff, or not; but assuming it was, we are of opinion that the witness was  rightly admitted. It is perfectly clear, that a person having an interest only in the question, and not in the event of the suit, is a competent witness; and in general the liability of a witness  to a like action, or his standing in the same predicament with the party sued, if the verdict cannot be given in evidence for or against him, is an interest in the question, and does not exclude him. If nothing had been in controversy in this case, as to the validity of the patent itself, and the general issue only had been pleaded, the present objection would have fallen within the general rule. But the special notice in this case asserts matter, which if true, and found specially by the jury, might authorize the Court to adjudge the patent void, and it is supposed that this constitutes such an interest in Frederick in the event of the cause, that he is thereby rendered incompetent. But in this respect, Frederick stands in the same situation as every other person in the community. If the patent is declared void, the invention may be used by the whole community, and all persons may be said to have an interest in making it public property. But this results from a general principle of law, that a party can take nothing by a void patent; and so far as such an interest goes, we think it is to the credit and not to the competency of the witness. It is clear that the verdict in this  case, if given for Evens, would not be evidence in a suit against Federick, but Frederick would be entitled to contest every step in the cause, in the same manner as if no such suit had existed. Non constat, that Frederick himself will ever be sued by the plaintiff, or that if  sued, any recovery can be had against him, even if the plaintiff's patent should not be avoided in this suit. It therefore rests in remote contingencies, whether Frederick will, under any circumstances, have an interest in the event of this suit, and the law adjudges the party incompetent only when he has a certain, and not a contingent interest. It has been the inclination of Courts of law in modern times, generally,  to lean against exceptions to testimony. This is a case which may be considered somewhat anomalous; and we think it safest to admit the testimony, leaving its credibility to the jury. \nAnother exception was to the refusal of the Court to allow a deposition to be read by the plaintiff, which had been taken according to a prevalent practice of the State Courts. It is not pretended that the deposition was admissible according to the positive rules of law, or the rules of  the Circuit Court; and it is not now produced, so that we can see what were the circumstances under which it was taken. No practice, however convenient, can give validity to depositions which are not taken according to law, or the rules of the Circuit Court, unless the parties expressly waive the objection or, by previous consent, agree to have them taken and made evidence. This objection, therefore, may at once be dismissed. \nThe principal arguments, however, at the bar have been urged against the charge given by the Circuit Court in summing up the cause to the jury. The charge is spread in extenso upon the record, a practice which is unnecessary and inconvenient, and may give rise to minute criticisms and observations  upon points incidentally introduced, for purposes of argument or illustration, and by no means essential to the merits of the cause. In causes of this nature we think the substance only of the charge is to be examined; and if it appears, upon the whole, that the law was justly expounded to the jury, general expressions, which may need and would receive qualification, if they were the direct point in judgment, are to be understood in such restricted sense. \n It has been already stated, that the whole controversy at the trial turned upon the use of the plaintiff's Hopperboy; and no other of the inventions, included in his patent, was asserted or supposed to be pirated by the defendant. \nThe plaintiff, with a view to the maintenance of his suit, contended, that his patent, so far as respected the Hopperboy, had a double aspect. 1. That it was to be as a patent for the whole of the improved Hopperboy, that is, of the whole machine as his own invention. 2. That if not susceptible of this construction, it was for an improvement upon the Hopperboy, and he was entitled to recover against the defendant for using his improvement. The defendant admitted that he used the improved Hopperboy, and put his defence upon two grounds: 1. That if the patent was for the whole machine, i.e. the improved Hopperboy, the plaintiff was not the inventor of the improved Hopperboy so patented; 2. That if the patent was for an improvement only upon the Hopperboy, the specification did not describe the nature and extent of the improvement:  and if it did, still the patent comprehended the whole machine, and was broader than the invention. To the  examination of these points, and summing up the evidence, the attention of the Circuit Court was exclusively directed; and the question is, whether the charge, in respect to the matters of law involved in these points, was erroneous to the injury of the plaintiff. \nWe will consider the points in the same order in which they were reviewed by the Circuit Court. Was the patent of the plaintiff, so far as respects his improved Hopperboy, a patent for the whole machine as his own invention? It is not disputed that the specification does contain a good and sufficient description of the improved Hopperboy, and of the manner of constructing it; and if there had been any dispute on this subject, it would have been matter of fact for the jury, and not of law for the decision of the Court. The plaintiff, in his specification, after describing, his Hopperboy, its structure, and use, sums up his invention as follows: \"I claim as my invention, the peculiar properties or principles which this machine possesses, in the spreading, turning, and gathering the meal at one operation, and the rising and lowering of its arms by its motion, to accommodate itself to any quantity of meal it has to operate  upon.\" From this manner of stating his invention, without any other qualification, it is apparent that it is just such a claim as would be made use of by the plaintiff, if the whole machine was substantially in its structure and combinations new. The plaintiff does not state  it to be a specific improvement upon an existing machine, confining his claim to that improvement, but as an invention substantially original. In short, he claims the machine as substantially new in its properties and principles, that is to say, in the modus operandi. If this be true, and this has been the construction strongly and earnestly pressed upon this Court by the plaintiff'S counsel, in the argument at the present term, what are the legal principles that flow from this doctrine? The Patent Act of the 21st of February, 1793, ch. 11. upon which the validity of our patents generally depends, authorizes a patent to the inventor, for his invention or improvement in any new and useful art, machine, manufacture, or composition of matter not known or used before the application. It also gives to any inventor of an improvement in the principle of any machine, or in the process of any composition  of matter which has been patented, an exclusive right to a patent for his improvement; but he is not to be at liberty to use the original discovery, nor is the first inventor at liberty to use the improvement. It also declares that simply changing the form or the proportion of any machine or composition of matter, in any degree, shall not be deemed a discovery. It farther provides, that on any trial for a violation of the patent, the party may give in evidence, having given due notice thereof, any special matter tending to prove that the plaintiff's specification does not contain the whole truth relative to his discovery, or contains more than is necessary to produce the effect, (where the addition or concealment shall appear to have been to  deceive the public,) or that the thing secured by the patent was not originally discovered by the patentee, but had been in use, or had been described in some public work anterior to the supposed discovery of the patentee, or that he had surreptitiously obtained a person's invention; and provides that in either of these cases judgment shall be rendered for the plaintiff, with costs, and the patent shall be declared void. It farther  requires, that every inventor, before he can receive a patent, shall swear or affirm to the truth of his invention, \"and shall deliver a written description of his invention,  and of the manner of using, or process of compounding the same, in such full, clear, and exact terms, as to distinguish the same from all things before known, and to enable any person skilled in the art or science, of which it is a branch, or with which it is most nearly connected, to make, compound, and use the same; and in the case of any machine, he shall fully explain the several modes in which he has contemplated the application of the principle, or character by which it may be distinguished from other inventions.\" \nFrom this enumeration of the provisions of the act, it is clear that the party cannot entitle himself to a patent for more than his own invention; and if his patent includes things before known, or before in use, as his invention, he is not entitled to recover, for his patent is broader than his invention. If, therefore, the patent be for the whole of a machine, the party can maintain a title to it only by establishing that it is substantially new in its structure and mode of operation.  If the same combinations existed before  in machines of the same nature, up to a certain point, and the party's invention consists in adding some new machinery, or some improved mode of operation, to the old, the patent should be limited to such improvement, for if it includes the whole machinery, it includes more than his invention, and the refore cannot be supported. This is the view of the law on this point, which was taken by the Circuit Court. That Court went into a full examination of the testimony, and also of the structure of Evans' Hopperboy, and Stouffer's Hopperboy, and left it to the jury to decide, whether, up to a certain point, the two machines were or were not the same in principle. If they were the same in principle, and merely differed in form and proportion, then it was declared that the plaintiff was not entitled to recover; or, to use the language of the Court, if the jury were of opinion that the plaintiff was not the inventor of the Hopperboy, he was not entitled to recover, unless his was a case excepted from the general operation of the act. We perceive no reason to be dissatisfied with this part of the charge; it left the fact open for the  jury, and instructed them correctly as to the law. And the verdict of the jury negatived the right of the plaintiff, as the inventor of the whole machine. The next inquiry before the Circuit Court was, whether the plaintiff's case was excepted from the general operation of the act. Upon that it is unnecessary to say more than that the point was expressly decided by this Court in the negative, upon the former writ of error. And we think the opinion of this Court, delivered on that occasion, is correctly understood  and expounded by the Circuit Court. It could never have been intended by this Court to declare, in direct opposition to the very terms of the patent act, that a party was entitled to recover, although he should be proved not to have been the inventor of the machine patented; or that he should be entitled to recover, notwithstanding the machine patented was in use prior to his alleged discovery. There is undoubtedly a slight error in drawing up the judgment of the Court upon the former writ of error; but it is immediately corrected by an attentive perusal of the opinion itself. And we do not think that it can be better stated or explained than in the manner  in which the Circuit Court has expounded it. \nWe are then led to the examination of the other point of view in which the plaintiff's counsel have attempted to maintain this patent. That is, by considering it, not as a patent for the whole of the machine or improved Hopperboy, but as an improvement of the Hopperboy. Considered under this aspect, the point presents itself which was urged by the defendant's counsel, viz. that if it be a patent for an improvement, it is void, because the nature and extent of the improvement is not stated in the specification. The Circuit Court went into an elaborate examination of the law applicable to this point, and into a construction of the terms of the patent itself, and came to the conclusion that no distinct improvement was specified in the patent; that such specification was necessary in a patent for an improvement, and that for this defect, the plaintiff was not entitled to recover, supposing his patent to be for an improvement  only of an existing machine. It may be justly doubted, whether this point at all arises in the cause; for the very terms of the patent, as they have been already considered, and as they have been construed  at the bar by the plaintiff's counsel, at the present argument, seem almost conclusively to establish, that the patent is for the whole machine, that is, for the whole of the improved Hopperboy, and not for a mere improvement upon the old Hopperboy. But, waiving this point, can the doctrine asserted at the bar be maintained, that no specification of an improvement is necessary in the patent; and that it is sufficient if it be made out and shown at the trial, or may be established by comparing the machine specified in the patent with former machines in use? That there is no specification of any distinct improvement in the present patent, is not denied; that the patent is good without it, is the subject of inquiry. Let this be decided by reference to the patent act. \nThe third section of the patent act requires, as has been already stated, that the party \"shall deliver a written description of his invention, in such full, clear, and exact terms, as to distinguish the same from all other things before know, and to enable any person skilled in the art or science, &c. &c. to make, compound, and use the same.\" The specification, then, has two objects: one is to make known the manner of  constructing the machine (if the invention is of a machine) so as to enable artizans to make and use it, and thus to give the public the full benefit of the discovery after the expiration  of the patent. It is not pretended that the plaintiff's patent is not in this respect sufficiently exact and minute in the description. But whether it be so or not, is not material to the present inquiry. The other object of the specification is, to put the public in possession of what the party claims as his own invention, so as to ascertain if he claim anything that is in common use, or is already known, and to guard against prejudice or injury from the use of an invention which the party may otherwise innocently suppose not to be patented. It is, therefore, for the purpose of warning an innocent purchaser or other person  using a machine, of his infringement of the patent; and at the same time of taking from the inventor the means of practising upon the credulity or the fears of other persons, by pretending that his invention is more than what it really is, or different from its ostensible objects, that the patentee is required to distinguish his invention in his specification.  Nothing can be more direct than the very words of the act. The specification must describe the invention \"in such full, clear, and distinct terms, as to distinguish the same from all other things before known.\" How can that be a sufficient specification of an improvement in a machine, which does not distinguish what the improvement is, nor state in what it consists, nor how far the invention extends? Which describes the machine fully and accurately, as a whole, mixing up the new and old, but does not in the slightest degree explain what is the nature or limit of the improvement which the party claims as his own? It seems to us perfectly clear that such a specification  is indispensable. We do not say that the party is bound to describe the old machine; but we are of opinion that he ought to describe what his own improvement is, and to limit his patent to such improvement. For another purpose, indeed, with the view of enabling artizans to construct the machine, it may become necessary for him to state so much of the old machine as will make his specification of the structure intelligible. But the law is sufficiently complied with in relation to the other point, by  distinguishing, in full, clear, and exact terms, the nature and extent of his improvement only. \nWe do not consider that the opinion of the Circuit Court differs, in any material respect, from this exposition of the patent act on this point; and if the plaintiff's patent is to be considered as a patent for an improvement upon an existing Hopperboy, it is defective in not specifying that improvement, and therefore the plaintiff ought not to recover. \nUpon the whole, it is the opinion of the majority of the Court, that the judgment of the Circuit Court ought to be affirmed with costs. \nDissent by:", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the Court. \nThis case is an action for an infringement of the same patent as in Evans v. Eaton; 5 and many of the remarks in that case are applicable to this; and therefore the opinion now delivered will refer to such points only, as are not completely disposed of by the opinion already delivered. The evidence in this case does not establish, that the defendant used the plaintiff's improved Hopperboy; but the Hopperboy used by the defendant, is asserted to be Stouffer's Hopperboy. At the new trial, a Mr. Aby was offered as a witness by the defendant, to prove the nature and character of the Hopperboy use by the defendant; the plaintiff objected to his testimony, as incompetent, because he was sued by the plaintiff for an infringement of his patent right, under circumstances similar to those alleged in proof against the defendant. The Court overruled the objection; and the witness was then sworn on the voir dire, as to his interest in the suit; but upon a full examination, it did not appear that he was really interested; and the Court therefore permitted him to  be sworn in chief. The plaintiff took an exception to this decision of the Court. The objection to the competency of Aby, so far as he has an interest from being sued, cannot  be distinguished, in principle, from that already overruled in the case of Evans v. Eaton. There is this additional circumstance in this case, that Aby was not called as a general witness, but to establish a single fact, viz. the nature and character of the Hopperboy used by the defendant. The other objection upon his answers on the voir dire, is disposed of by the single remark that he purged himself of any real interest in the event of the suit. A question was asked of this witness, on his examination in chief, whether the Hopperboy in the defendant's mill was like the model exhibited in Court of the plaintiff's patented Hopperboy; the plaintiff objected to the question, because such testimony could not be given in this case, for want of notice thereof. But the objection was overruled by the Court; and, in our judgment, with perfect correctness. No notice was necessary to authorize the inquiry; and if the plaintiff meant to rely on the notice required by the sixth section of the patent act,  in certain cases, it is only necessary to say, that this was not within the provision of that class of cases. The question was perfectly proper under the general issue. Similar objections were taken to other witnesses; but it is unnecessary to remark on them. \nAn inquiry was proposed by the plaintiff, to one of the witnesses, whether one Peter Stouffer had paid the plaintiff for a license for his mill; but the Court refused to allow the question to be asked; and we see no reason why it should have been allowed, for it merely referred to an act among strangers, which ought not to prejudice the defendant. A  similar question was proposed to be asked of the same witness, whether the executors of Jacob Stouffer had paid the plaintiff for a license for the mill of Jacob; the Court overruled the question; and for the same reason, it was rightly overruled. \nThe deposition of one John Shetter was read in evidence by the defendant, without opposition, and afterwards the plaintiff moved to have the same rejected, because not taken according to the rules of the Court; but the Court refused to reject it; and in our judgment rightly, because it having been once  introduced with the acquiescence and consent of the plaintiff, he could not afterwards avail himself of the objection. \nThe plaintiff then proposed to ask a question of a witness, whether Daniel Stouffer was subject to fits of derangement, and whether the witness had said sof but the Court overruled the question. It does not appear distinctly in the record, that Daniel Stouffer was a witness in the cause; but if he was so, the question was properly overruled, because a person being subject to fits of derangement, is no objection either to his competency or credibility, if he is sane at the time of giving his testimony. \nThe next objection of the plaintiff's counsel, is to the charge of the Court, in summing up the cause to the jury; but the points on which that charge materially depends, have been so fully discussed in the opinion just delivered in Evans v. Eaton, that it is unnecessary to examine them at large. \nUpon the whole, it is the opinion of the majority of the Court, that the judgment ought to be affirmed with costs. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the Court. This is a prize cause, brought by appeal from the Circuit Court of Massachusetts, affirming, pro forma, the decree of the District Court of Maine. The sloop Experiment, and cargo, are confessedly British property, and were captured by the privateer Fly during the late war, and brought in port, and proceeded against by the captors in the proper Court, for the purpose of being adjudged lawful prize. No claim was filed in behalf of the captured; but the United States interposed a claim, upon the ground, that the capture was fraudulent and collusive, and the cargo was introduced into the country in violation of the non-importation acts then in force which prohibited the importation of goods of British manufacture,  as the goods comprising this  cargo certainly were. Upon the trial in the Court below, the claim of the United States was sustained, and the capture being adjudged collusive, a condemnation was decreed to the government. From that decree the captors have appealed to this Court; and the cause now stands for judgment as well upon the original evidence, as the farther proofs which have been produced by the parties in this Court. \nThe privateer is the same, whose conduct came under consideration in the case of the George, reported in 1 Wheat. Rep. 408. and 2 Wheat. Rep. 278. and was there adjudged to have been collusive. The present capture was made during the same cruise, by the same crew, and about six days only before the capture of the George.Under an order of the Court, the original papers and proceedings in the case of the George, have been invoked into this cause; and atter a long interval, during which the parties have had the most ample opportunities to clear the case of any unfounded suspicions, the decision of the Court upon the arguments at the bar, is finally to be pronounced. \nAt the threshold of the cause, we are met by the question, whether a party claiming under a commission which he has obtained  from the government by fraud, or has used in a fraudulent manner, can acquire any right to captures made in virtue of such commission. Undoubtedly a commission may be forfeited by grossly illegal conduct; and a commission fraudulently obtained, is, as to vesting the interests of prize, utterly void. But a commission may be lawfully obtained, although  the parties intend to use it as a cover for illegal purposes. It is one thing to procure a commission by fraud, and another to abuse it for bad purposes. And if a commission is fairly obtained, without imposition or fraud upon the officers of government, it is not void merely because the parties privately intend to violate, under its protection, the laws of their country. The abuse, therefore, of the commission, is not, per se, evidence that it was originally obtained by fraud and imposition. The illegal acts of the parties are sufficiently punished by depriving them of the fruits of their unlawful enterprises. A collusive capture conveys no title to the captors, not because the commission is thereby made void, but because the captors thereby forfeit all title to the prize property. \nAnd, after all, while the commission  is unrevoked, it must still remain a question upon each distinct capture, upon the evidence regularly before the Prize Court, whether there be any fraud in the original concoction, or in the conduct of the cruise. We cannot draw in aid the evidence which exclusively belongs to another cause, to fix fraud upon the transaction, unless so far as, upon the general principles of prize proceedings, it may be properly invoked. The present case, then, must depend upon its own circumstances. \nIt cannot, however, escape the attention of the Court, that this privateer has already been detected in a gross case of collusive capture, on the same cruise, and under the same commission. This is a fact, of which, sitting as a Court of Admiralty,  we are bound to take notice; and it certainly raises a presumption of ill faith in other transactions of the same parties, which can be removed only by clear evidence of honest conduct.If the circumstances of other captures, during the same cruise, are such as lead to serious doubts of the fairness of their character, every presumption against them is greatly strengthened; and suspicions once justly excited in this way, ought not to be easily  satisfied. The captors have had full notice of the difficulties of their case, and after an order for farther proof, which should awaken extraordinary diligence, they cannot complain that the Court does not yield implicit belief to new testimony, when it comes laden with grave contradictions, or is opposed by other unsuspected proofs. \nMany of the circumstances, which were thought by the Court to be entitled to great weight in the decision of the George, have also occurred in the present case. The original equipment, ownership, shipping articles, and conduct of the cruiser, are of course the same. The stay at Machias, the absence of Lieut. Sebor, the very suspicious nature of his journey, the apparent connexion of that journey with persons and objects in the immediate vicinity of the place where the voyage of the prize commenced, are distinctly in proof. The bad equipment of the prize, her indifferent condition, and small crew for the voyage, the nature of her cargo, and the flimsy pretences set up for the enterprise, in the letters on board, are circumstances of suspicion, quite as strongly made  out as in the George. The conduct of the prize, during her ostensible  voyage, was still more striking. She was far out of the ordinary course of the voyage, without any necessity, or even plausible excuse. She chose voluntarily to sail along the American coast, out of the tract of her voyage, even at the moment when she affected to have notice that the Fly was on a cruise; and she exposed herself to capture, in a manner that can scarcely be accounted for, except upon the supposition of collusion. The pretence set up for this conduct, is exceedingly slight and unsatisfactory. The circumstances of the capture, too, as they come from the testimony of some of the captors, as  well as from a disinterested witness, are not calculated to allay any doubt. Here, as in the George, all of the prize crew, excepting one, were dismissed without any effort to hold them as prisoners, and without any apparent reason for the dismissal. And if the testimony of one of the captors is to be believed, there is entire proof that the prize was long expected, and came as a known friend under preconcerted signals. It may be added, that the testimony of the captors is, in some material respects, inconsistent; and if the testimony of two disinterested and respectable  witnesses is to be credited, the master of the prize, in opposition to his present testimony, admitted, in the most explicit manner, that the capture was collusive. \nWe do not think that it would conduce to any useful purpose to review the evidence at large. It appears to us to be a case, where the circumstances  of collusion are quite as strong, if not stronger, than in the George. And we are therefore of opinion, that the decree of condemnation of the prize and her cargo, to the United States, ought to be affirmed, with costs. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the Court. This is a writ of error to the District  Court of Louisiana. The suit was brought by Mr. Webb, as endorsee, against Mr. Nicholls, as endorser of a promissory note, dated the 15th of January, 1819, and made by Thomas H. Fletcher, for the sum of 4880 dollars, payable to Nicholls or  order, at the Nashville Bank, and endorsed by Nicholls, by his agent, to the plaintiff. The note became due on the 18th of July, which being Sunday, the note, of course, was payable on the preceding Saturday. The cause came on for trial upon petition, and answer, according to the usual course of proceedings in Louisiana, the answer setting up, among other things, a denial of due demand, and notice of non-payment; and upon the trial, the jury returned a verdict for the plaintiff. The Court, thereupon, ascertained the sum due, and entered judgment for the plaintiff, according  to what is understood to be the usual practice of that State. \nSeveral questions have been argued at the bar, which may be at once laid out of the case, since they do not arise upon the record; and we may, therefore, proceed to examine that alone upon which any judgment was pronounced in the Court below. \nFrom the issue in the cause, the burthen of proof of due demand of payment, and due notice of the non-payment to Nicholls, rested on the plaintiff. It appears, that the demand was made, and notice given, at the request of the plaintiff, by one Washington Perkins, a notary public, who died before  the trial. The original protest was annexed to the plaintiff's petition, and contained the usual  language in this instrument, stating a demand, and refusal of payment at the Nashville Bank, on the 17th of July, the 18th being Sunday, and that he, the notary, \"duly notified the endorsers of the non-payment.\" Among other evidence to support the plaintiff's case, he offered this protest, together with the deposition of Sophia Perkins, the daughter of the notary. She stated, in her deposition, that her father kept a regular record of his notarial acts, and uniformly entered, in a book kept by himself, or caused the deponent to do it, exact copies of the notes, bills, &c.; and in the margin opposite to the copy of the protest made memorandums after notification to endorsers, if any, of the fact of such notification, and the manner; and that his notarial records had been, ever since his death, in the house where she lived. And to her deposition, she annexed, and verified as true, a copy of the protest in this case. The copy of the protest states the demand (most probably by mistake) to have been made on the 19th, instead of the 17th of July, 1819, and contains a memorandum  on the margin: \"Endorser duly notified in writing 19th of July, 1819, the last day of grace being Sunday, the 18th. Washington Perkins.\" In other respects the protest is the same in form as that annexed to the petition. To the introduction of this deposition, as well as of the protest, as evidence, the defendant, Nicholls, objected, and his objection was overruled by the Court, and the papers were laid before the jury. A bill of exceptions was taken to the decision of the Court in so admitting this evidence; and the sole  question now before us, is, whether that decision was right. What that evidence might legally conduce to prove, or what its effect might be, if properly admitted, is not now a question before us. It was left to the jury to draw such inferences of fact as they might justly draw from it; and whether they were right or wrong in their inferences, we cannot now inquire. \nIt does not appear that, by the laws of Tennessee, a demand of the payment of promissory notes is required to be made by a notary public, or a protest made for non-payment, or notice given by a notary to the endorsers. And by the general commercial law, it is perfectly clear, that the  intervention of a notary is unnecessary in these cases. The notarial protest is not, therefore, evidence of itself, in chief, of the fact of demand, as it would be in cases of foreign bills of exchange; and in strictness of law, it is not an official act. But, we all know, that, in point of fact, notaries are very commonly employed in this business; and in some of the States it is a general usage so to protest all dishonoured notes, which are lodged in, or have been discounted by the bank. The practice has, doubtless, grown up from a sense of its convenience, and the just confidence placed in men who, from their habits and character, are likely to perform these important duties with punctuality and accuracy. We may, therefore, safely take it to be true in this case, that the protesting of notes. if not strictly the duty of the notary, was in conformity to general practice, and was an employment in which he was usually engaged. If  he had been alive at the trial, there is no question that the protest could not have been given in evidence, except with his deposition, or personal examination, to support it. His death gives rise to the question, whether it is not, connected  with other evidence, and particularly with that of his daughter, admissible secondary evidence for the purpose of conducing to prove due demand and notice. 4 \nThe rules of evidence are of great importance, and cannot be departed from without endangering private as well as public rights. Courts of law are, therefore, extremely cautious in the introduction of any new doctrines of evidence which trench upon old and established principles. Still, however, it is obvious, that as the rules of evidence are founded upon general interest and convenience, they must, from time to time, admit of modifications, to adapt them to the actual condition and business of men, or they would work manifest injustice; and Lord Ellenborough has very justly observed, that they must expand according to the exigencies of society. ( Pritt v. Fairclough, 3 Camp. Rep. 305.) The present case affords a striking proof of the correctness  of this remark. Much of the business of the commercial world is done through the medium of bills of exchange and promissory notes. The rules of law require, that  due notice and demand should be proved, to charge the endorser.What would be the consequence, if, in no instance, secondary evidence could be admitted, of a nature like the present?It would materially impair the negotiability and circulation of these important facilities to commerce, since few persons would be disposed to risk so much property upon the chance of a single life; and the attempt to multiply witnesses would be attended with serious inconveniences and expenses. There is no doubt, that, upon the principles of law, protests of foreign bills of exchange are admissible evidence of a demand upon the drawee; and upon what foundation does this doctrine rest, but upon the usage of merchants, and the universal convenience of mankind? There is not even the plea of absolute necessity to justify its introduction, since it is equally evidence, whether the notary be living or dead. The law, indeed, places a confidence in public officers; but it is here extended to foreign officers acting as the agents and instruments  of private parties. \n The general objection to evidence, of the character of that now before the Court, is, that it is in the nature of hearsay, and that the party is deprived of the benefit of cross-examination. That principle also applies to the case of foreign protests. But the answer is, that it is the best evidence the nature of the case admits of. If the party is dead, we cannot have his personal examination on oath; and the question then arises, whether there shall be a total failure of justice, or secondary evidence shall be admitted to prove  facts, where ordinary prudence cannot guard us against the effects of human mortality? Vast sums of money depend upon the evidence of notaries and messengers of banks; and if their memorandums, in the ordinary discharge of their duty and employment, are not admissible in evidence after their death, the mischiefs must be very extensive. \nBut how stand the authorities upon this subject? Do they as inflexibly lay down the general rule as the objection seems to imply?The written declarations of deceased persons, and entries in their books, have been for a long time admitted as evidence, upon the general ground,  that they were made against the interest of the parties. Of this nature are the entries made by receivers of money charging themselves, rentals of parties, and bills of lading signed by masters of vessels. More than a century ago, it was decided, that the entries in the books of a tradesman, made by a deceased shopman, were admissible as evidence of the delivery of the goods, and of other matters there stated within his own knowledge. 5 So, in an action on a tailor's bill, a shop book was allowed as evidence, it being proved that the servant who wrote the book was dead, and that this was his hand, and he was accustomed to make the entries. 6 In the case of Higham v. Ridgeway, (10 East's Rep. 109.) it was held, that the entry of a midwife in his books, in the ordinary course of his  business, of the birth of a child, accompanied by another entry in his ledger, of the charge for the service, and a memorandum of payment at a subsequent date, was admissible evidence of the time of the birth.It is true, that Lord Ellenborough, in giving his own opinion, laid stress upon the circumstance, that the entry admitting payment was to the prejudice of the party, and, therefore, like  the case of a receiver. But this seems very artificial reasoning, and could not apply to the original entry in the day book, which was made before payment; and even in the ledger the payment was alleged to have been made six months after the service. So that, in truth, at the time of the entry, it was not against the party's interest. And Mr. Justice Le Blanc, in the same case, after observing, that he did not mean to give any opinion as to the mere declarations or entries of a midwife who is dead, respecting the time of a person's birth, being made in a matter peculiarly within the knowledge of such a person, as it was not necessary then to determine that question, significantly said, \"I would not be bound at present to say, that they are not evidence.\" In the recent case of Hagedorn v. Reid, (3 Camp. Rep. 379.) in a suit on a policy of insurance where a license was necessary, the original not being found, it was proved, that it was the invariable practice of the plaintiff's office, (he being a policy broker,) that the clerk, who copies any license, sends it off by post, and makes a memorandum on the copy of his having done so; and a copy of the license in question was produced  from the plaintiff's letter book, in the handwriting  of a deceased clerk, with a memorandum on it, stating, that the original was sent to Doorman; and a witness, acquainted with the plaintiff's mode of transacting business, swore, that he had no doubt the original was sent according to the statement in the memorandum. Lord Ellenborough held this to be sufficient evidence of the license. And in Pritt v. Fairclough, (3 Camp. Rep. 305.) the same learned Judge held, that the entry of a copy of a letter in the letter book of a party, made by a deceased clerk, and sent to the other party, was admissible in evidence, the letter book being punctually kept, to prove the contents of the letter so sent. And he observed, on that occasion, that, if it were not so, there would be no way in which the most careful merchant could prove the contents of a letter after the death of his entering clerk. The case of Welsh v. Barrett, which has been cited at the bar from the Massachusetts Reports, 7 is still more directly in point. It was there held, that the memorandums of a messenger of a bank, made in the usual course of his employment, of demands on promisors, and notices to endorsers,  in respect to notes left for collection in the bank, were, after his decease, admissible evidence to establish such demands and notices. And the learned Chief Justice of the Court, on that occasion, went into an examination of the grounds of the doctrine, and put the very case of a notarial demand and protest of notes, which had been suggested at the bar as a more correct course, as not  distinguishable in principle, and liable to the same objections as the evidence then before the Court. We are entirely satisfied with that decision, and think it is founded in good sense, and public convenience. We think it a safe principle, that memorandums made by a person in the ordinary course of his business, of acts or matters which his duty in such business requires him to do for others, in case of his death, are admissible evidence of the acts and matters so done. It is of course liable to be impugned by other evidence; and to be encountered by any presumptions or facts which diminish its credibility or certainty. A fortiori we think the acts of a public officer, like a notary public, admissible, although they may not be strictly official, if they are according to the customary  business of his office, since he acts as a sworn officer, and is clothed with public authority and confidence. \nIt is, therefore, the opinion of the Court, that the evidence excepted to in this case was rightly admitted. The variance between the copy, and the original protest, as to the time of the demand, might have been explained to the satisfaction of the jury at the trial; but it forms no ground upon which this Court is called upon to express any opinion. \nJudgment affirmed, with costs. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the Court; and, after stating the case, proceeded as follows: \n The question in this case is, whether the demurrer was well taken. In support of the decree, two points are stated at the bar: 1st, that the plaintiff has not shown any interest in the subject, entitling the State of Virginia to maintain the bill; 2dly, that if there was originally any resulting authority to the State, to compel an account, that power, by the erection  of Kentucky into an independent State, devolved on the latter State, the defendant having been, and still continuing to be, a citizen of that State; and that it was not competent for the Legislature of Virginia, in 1813, to pass a law, which should bind a citizen of Kentucky to account for official duties, which were not performed in virtue of any appointment made by the government of Virginia. \nIt is unnecessary to consider the last objection, because we are of opinion that the first is fatal to the bill. The act of 1783, for the better locating and surveying the lands given to the officers and soldiers on Continental and State establishments, authorizes the deputations of officers, therein named, to appoint superintendants, in behalf of their respective lines, for the purpose of surveying the lands; and also to appoint two principal surveyors, and contract with them for their fees, &c. The third section of the act then provides, \"that every person or persons holding officers' or soldiers' warrants, by assignment, shall pay down to the principal surveyors, at the time of the delivering such warrant or warrants, one dollar for every hundred acres thereof, exclusive of the legal surveyor's  fees, towards raising a fund for the purpose  of supporting all contingent expenses; or, at the option of such holder or holders, the same may be held up until the warrants of all the original grantees have been surveyed; the said surveyors to account for all the money so received, to such person or persons as the said deputations may direct.\" This is the clause upon which the bill is founded. And it is apparent, that in terms it  provides for an accountability, not to the State, but to persons to be appointed by the deputations of officers; to those for whose benefit the fund was raised, and was to be applied, and not to the State, which had no interest whatsoever in it. Even then, if by the death of all the deputations of officers, without making any appointment, the authority intended by the act became incapable of being executed, there is no averment in the bill to that effect; on the contrary, the bill does admit that superintendants were appointed, of whom some are dead, and the survivors decline to act. If, therefore, under any circumstances, a resulting power could arise to the State to enforce an account, from the want of any proper private parties  in esse to claim it, such a case is not stated by the bill. Whether, in such a case, the assignees of the warrants, or a part of them, suing in behalf of the whole, might not maintain a suit in equity for an account, is not for us now to determine. It is sufficient that the State of Virginia, by the very terms of the act, has delegated to other persons, whose existence is not denied, the authority to call the surveyors to account. \nDecree affirmed, with costs. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the Court.  The Bank of the United States brought an action in the District Court for Louisiana District, against William Fleckner, (the plaintiff in error,) upon a promissory note of Fleckner, dated the 26th of March, 1818, for the sum of 10,000 dollars, payable to one John Nelder, or order, on the first of March, 1820, for value received; and the bank, in their declaration by petition, made title to the same note through several mesne endorsements,  the last of which was that of the President, &c. of the Planters' Bank of New-Orleans through their cashier, as agent. The answer of Fleckner sets up several grounds of defence: first, that the Bank of the United States purchased the note in question from the Planters' Bank, which was a trading within the prohibitions of its charter; secondly, that the transfer was usurious, it having been made in consideration of a loan or discount to the Planters' Bank, upon which more than at the rate of six per cent. per annum was taken by the Bank of the United States; thirdly, that the cashier of the Planters' Bank had no authority to make the transfer; fourthly, that the making of the promissory note was not a mercantile transaction, or governed  by mercantile usages or laws, because it was given as a part consideration for the purchase by Fleckner of a plantation and slaves from Nelder, and that the notary before whom the sale was executed and recorded, wrote on the note, \"ne varietur,\" by which every holder of the note might know it was not a mercantile transaction, and could obtain knowledge of the circumstances under which it was given. And the answer proceeds to state, that Nelder had no title to a part of the plantation and slaves, and that the note ought not to be paid until the title was made good; and it then prays, that the matters thus alleged and put in issue may be inquired of by a jury. The issue was joined, and on trial the jury found a verdict for the Bank of the United States; and the cause now comes before  us upon a writ of error, and a bill of exceptions taken at the trial. \nThe various grounds assumed by the answer, which are substantially the same as taken by the exceptions, will be considered by the Court in the order in which they have been mentioned. \nAnd, first, as to the alleged violation of the charter by the Bank of the United States, in purchasing the note in question.The act of Congress  of the 10th of April, 1816, ch. 44. incorporating the bank, in the ninth rule of the fundamental articles, declares, (s. 11. art. 9.) that \"the said corporation shall not, directly or indirectly, deal or trade in any thing except bills of exchange, gold or silver bullion, or in the sale of goods really and truly pledged for money lent, and not redeemed in due time, or goods which shall be the proceeds of its lands. It shall not be at liberty to purchase any public debt whatsoever, nor shall it take more than at the rate of six per centum per annum for or  upon its loans or discounts.\" It certainly cannot be a just interpretation of this clause, that it prohibits the bank from purchasing any thing but the enumerated articles, for that would defeat the powers given in other parts of the act. The 7th section declares, that the bank shall have capacity to purchase, receive, &c. lands, &c. goods, chattels, and effects, of whatsoever kind, nature, and quality, to an amount not exceeding fifty-five millions of dollars, and the same to sell, grant, demise, alien, and dispose of. And where the act means to prohibit purchases of any particular thing, it uses the very term, as in  the prohibition  of purchasing any public debt, in this very clause. And certainly there is no pretence to say, that if discounting promissory notes be a purchase in point of law, it could have been the legislative intention to include such an act in the prohibition. It is notorious, that banking operations are always carried on in our country by discounting notes. The late Bank of the United States conducted, and all the State banks now conduct, their business in this way. The principal profits of banks, and, indeed, the only thing which makes them more valuable than private stock, arises from this source. The Legislature cannot be presumed ignorant of these facts; and it would be absured to suppose, that it meant to create a bank without any powers to carry on the usual business of a bank. The act contemplates throughout, an authority to make loans and discounts. It provides expressly for the establishment of offices of discount and deposit; and the very clause now under consideration, recognises the power of the bank to make loans and discounts, and restricts it from taking more than six per cent. on such loans or discounts. But in what manner is the bank to loan?  What is it to discount? Has it not a right to take an evidence of the debt, which arises from the loan? If it is to discount, must there not be some chose in action, or written evidence of a debt, payable at a future time, which is to be the subject of the discount? Nothing can be clearer, than that by the language of the commercial world, and the settled practice of banks, a discount by a bank means, ex vi termini, a deduction or drawback  made upon its advances or loans of money, upon negotiable paper, or other evidences of debt, payable at a future day, which are transferred to the bank. We must suppose that the Legislature used the language in this its appropriate sense; and if we depart from this settled construction, there is none other which can be adopted, which would not defeat the great objects for which the charter was granted, and make it, as to the stockholders, a mere mockery.If, therefore, the discounting of a promissory note, according to the usage of banks, be a purchase, within the meaning of the 9th rule above stated, (upon which serious doubts may well be entertained,) it is a purchase by way of discount, and permitted, by necessary inference, from  the last clause in that rule. \nThe true interpretation, however, of that rule is, not that it prohibits purchases generally, but that it prohibits buying and selling for the purposes of gain. It aims to interdict the bank from doing the ordinary business of a trader or merchant, in buying and selling goods, &c. for profit, and uses the words \"deal\" and \"trade,\" in contradistinction to purchases, made for the accommodation or use of the bank, or resulting from its ordinary banking operations. And that this is the true sense of the rule, is strongly evinced by the 12th section of the act, which enforces a penalty for the violation of this very rule. It enacts, that if the bank, \"or any person or persons for, or to the use of the same, shall deal or trade in buying or selling goods, wares, merchandise, or commodities whatsoever,  contrary to the provisions of this act, all and every person, &c. shall forfeit, &c. treble the value of the goods, &c. in which such dealing and trading shall have been.\" The words dealing and trading are used as equivalent in meaning, and they are connected with \"goods, wares, merchandises, and commodities,\" which words, in mercantile language,  are always used with reference to corporeal substances, and never to mere choses in action. And as there is no reason to suppose that the penalty was not intended to be co-extensive with the prohibitions of the 9th rule, the exception of bills of exchange in that rule, was either inserted ex majori cautela, or designed to authorize the purchase and sale of bills of exchange, at a price above their par value. At all events, doubtful phraseology of this sort cannot be admitted to overrule a clear legislative intention of authorizing discounts; and if so, as there are no words restricting the discounts to any particular kind of paper, the right must equally apply to all kinds. \nThe evidence in the case shows, that the note in question was discounted for the Planters' Bank, by the Bank of the United States, and after deducting, for the time the note was to run, a sum equal to the rate of 6 per cent. per annum, the residue was carried to the credit of the Planters' Bank, which it seems was then indebted to the Bank of the United States in a large sum of money. It is immaterial to the decision of the point now under consideration, whether the discount was for this purpose or not, for  whether the  proceeds were to be paid over, or carried to the general credit of the party, or applied to the payment of a pre-existing debt, the transaction was still in substance a discount, and, therefore, not within the prohibitions of the 9th rule of the charter.The District Judge, therefore, who sat at the trial, was perfectly correct in refusing to charge the jury as the counsel for Fleckner requested, \"that the receiving the transfer of the said promissory note, and the payment of the amount in account, as stated in the evidence, was a dealing in notes, and such dealing was contrary to the provisions of the act incorporating the said bank.\" And he was equally correct in charging the jury, \"that the acceptance of an endorsed note, in payment of a debt due, is not a trading in things prohibited by the act.\" And this was the whole of his charge on this point brought up by the exceptions. \nIt may be added upon this point, that even if the bank had violated the rule above stated, by this particular transaction, it is not easy to perceive how that objection could be available in favour of Fleckner. The act has not pronounced that such a violation makes the transaction  or contract ipso facto void; but has  punished it by a specific penalty of treble the value. It would therefore remain to be shown how, if the bank had a general right to discount notes, a contract not made void by the act itself, could, on this account, be avoided by a party to the original contract, who was not a party to the subsequent transfer. \n The next point arising on the record is, whether the discount taken in this case was usurious. It is not pretended, that interest was deducted for a greater length of time than the note had to run, or for more than at the rate of six per cent. per annum on the sum due by the note. The sole objection is, the deduction of the interest from the amount of the note at the time it was discounted; and this, it is said, gives the bank at the rate of more than six per cent. upon the sum actually carried to the credit of the Planters' Bank. If a transaction of this sort is to be deemed usurious, the same principle must apply with equal force to bank discounts generally, for the practice is believed to be universal; and, probably, few, if any, charters, contain an express provision, authorizing, in terms, the deduction of  the interest in advance upon making loans or discounts. It has always been supposed, that an authority to discount, or make discounts, did, from the very force of the terms, necessarily include an authority to take the interest in advance. And this is not only the settled opinion among professional and commercial men, but stands approved by the soundest principles of legal construction. Indeed, we do not know in what other sense the word discount is to be interpreted. Even in England, where no statute authorizes bankers to make discounts, it has been solemnly adjudged, that the taking of interest in advance by bankers, upon loans, in the ordinary course of business, is not usurious. \nIf, indeed, the law were otherwise, it would not follow, that the transfer to the bank of the present  note would be void, so that the maker of the note could set it up in his defence. The statutes of usury of the States, as well as of England, contain an express provision, that usurious contracts shall be utterly void; and without such an enactment, the contract would be valid, at least in respect to persons who were strangers to the usury. The taking of interest by the bank beyond the  sum authorized by the charter, would, doubtless, be a violation of its charter, for which a remedy might be applied by the government; but as the act of Congress does not declare, that it shall avoid the contract, it is not perceived how the original defendant could avail himself of this ground to defeat a recovery. The opinion of the District Judge, that the discount taken in this case was not usurious, and would not defeat the right of recovery of the plaintiffs, was, therefore, unexceptionable in point of law. \nThe next point is, whether the endorsement of the note, by the cashier of the Planters' Bank, was sufficient to transfer the property to the original plaintiffs. The evidence on this point was, that the Board of Directors of the Planters' Bank, on the 21st of October, 1818, passed a resolution, \"that the president and cashier be authorized to adopt the most effectual measures to liquidate, the soonest possible, the balance due to the office of discount and deposit in this city, [New-Orleans,] as well as all others presently due, and which may in the future become due to any banks of the city.\" The endorsement was made to the Bank of the United States on the 5th of September,   1819; and before the commencement of this suit, viz. on the 27th of June, 1820, the Board of Directors of the Planters' Bank passed a resolution, to which the corporate seal was annexed, declaring, that the two notes of the defendant (of which the present note was one) \"were endorsed by the late cashier of the Planters' Bank; by authority of the president and directors, and delivered to the office of discount and deposit of the Bank of the United States, and the amount passed to the credit of the Planters' Bank, and that the said board of directors do hereby ratify and confirm said act of their said cashier, as the act of the President, Directors and Company of the Planters' Bank.\" The act incorporating the Planters' Bank has been examined by the Court; and as to the appointment of the cashier, and the authority of the board of directors, it does not differ materially from acts incorporating other banks. \nIt authorizes the president and directors to appoint a cashier, and other officers of the bank, and gives the president and directors, or a majority of them, \"full power and authority to make all such rules and regulations, for the government of the affairs, and conducting  the business of the said bank, as shall not be contrary to this act of incorporation. 13 It contains no regulations as to the duties of the cashier, nor any express authority for the corporation to make by-laws. The whole business of the bank is confided entirely to  the directors; and of course with them it would rest to fix the duties of the cashier, or other officers. Whether they have in fact made any regulations on this subject, does not appear; but the acts of the cashier, done in the ordinary course of the business actually confided to such an officer, may well be deemed prima facie evidence, that they fell within the scope of his duty. \nThe first objection urged against this evidence is, that the corporation could not authorize any act to be done by an agent, by a mere vote of the directors, but only by an appointment under its corporate seal. And the ancient doctrine of the common law, that a corporation can only act through the instrumentality of its common seal, has been relied upon for this purpose. Whatever may be the original correctness of this doctrine, as applied to corporations existing  by the common law, in respect even to which it has been certainly broken in upon in modern times, it has no application to corporations created by statute, whose charters contemplate the business of the corporation to be transacted exclusively by a special body or board of directors. And the acts of such body or board, evidenced by a written vote, are as completely binding upon the corporation, and as complete authority to their agents, as the most solemn acts done under the corporate seal. In respect to banks, from the very nature of their operations in discounting notes, in receiving deposits, in paying checks, and other ordinary and daily contracts, it would be impracticable  to affix the corporate seal as a confirmation of each individual act. And if  a general authority for such purposes, under the corporate seal, would be binding upon the corporation, because it is the mode prescribed by the common law, must not the like authority, exercised by agents appointed in the mode prescribed by the charter, and to whom it is exclusively given by the charter, be of as high and solemn a nature to bind the corporation? To suppose otherwise, is to suppose, that  the common law is superior to the legislative authority; and that the Legislature cannot dispense with forms, or confer authorities, which the common law attaches to general corporations. Where corporations have no specific mode of acting prescribed, the common law mode of acting may be properly inferred; but every corporation created by statute, may act as the statute prescribes, and the common law cannot control by implication that which the Legislature has expressly sanctioned. Indeed, this very point has been repeatedly under the consideration of this Court; and in the case of The Bank of Columbia v. Patterson, (7 Cranch's Rep. 299.) and the Mechanics' Bank of Alexandria v. The Bank of Columbia, (5 Wheat. Rep. 326.) principles were established which settle the point, that the corporation may be bound by contracts not authorized or executed under its corporate seal, and by contracts made in the ordinary discharge of the official duty of its agents and officers. We have no doubt, therefore, upon the principles of the common law, that a vote of the Board of Directors of the Planters' Bank, was as full authority  for any act of this nature, to bind the corporation, as  if it had passed under the common seal. \nBut it is to be recollected, that the rights and authorities, and mode of transacting business, of the Planters' Bank, depend, not upon the common law, but upon the charter of incorporation, and, where that is silent, upon the principles of interpretation, and doctrines of the civil law, which has been adopted in Louisiana. The civil code of that State declares, that as corporations cannot personally transact all that they have a right legally to do, wherefore it becomes necessary for every corporation to appoint some of their members, to whom they may intrust the direction and care of their affairs, under the name of mayor, president, syndics, directors, or others, according to the statutes and qualities of such corporations: it further declares, that the attorneys in fact, or officers thus appointed, have their respective duties pointed out by their nomination, and exercise them according to the general regulations and particular statutes of the corporation: that these officers, by contracting, bind the communities to which they belong, in such things as do not exceed the limits of the administration which is intrusted to them: and that if  the powers of such officers have not been expressly fixed, they are regulated in the same manner as those of other mandatories. 14 This is all that is contained upon the subject now under consideration in the title of the code professing to treat of corporations, and  their rights, powers, and privileges. There is nothing which, in the slightest degree, points to the necessity of using a corporate seal in appointing agents, or authorizing corporate acts; and the fair inference deducible from the silence of the code is, that it does not contemplate any such formality as essential to the validity of any official acts done by the officers of the corporation; and gives such acts a binding authority if evidenced by a vote. We may, then, dismiss this point, as to the necessity of the corporate seal, and proceed to consider another objection stated by the counsel for the original defendant. It is, that the cashier had no authority to make this transfer; that the resolution of the 21st of October, 1818, did not confer it originally, and that the subsequent ratification, by the resolution of the 27th of June, 1820, does not give any validity to an ineffectual and unauthorized  transfer. We are very much inclined to think that the endorsement of notes, like the present, for the use of the bank, falls within the ordinary duties and rights belonging to the cashier of the bank, at least if his office be like that of similar institutions, and his rights and duties are not otherwise restricted. The cashier is usually intrusted with all the funds of the bank, in cash, notes, bills, &c. to be used, from time to time, for the ordinary and extraordinary exigencies of the bank. He receives directly, or through the subordinate officers, all moneys and notes. He delivers up all discounted notes, and other property, when payments have been duly made. He draws checks, from time to time,  for moneys, wherever the bank has deposits. In short, he is considered the executive officer, through whom, and by whom, the whole moneyed operations of the bank in paying or receiving debts, or discharging or transferring securities, are to be conducted. It does not seem too much, then, to infer, in the absence of all positive restrictions, that it is his duty as well to apply the negotiable funds as the moneyed capital of the bank, to discharge its debts and obligations.  And under these circumstances, the provision of the civil code, already cited, may be justly applied, that where his powers are not otherwise fixed, they are to be regulated as other mandatories, or rather, as other agents and factors. In point of practic, it is understood, and was so stated by one of the learned counsel, whose knowledge and experience upon this subject entitle his statement to the highest credit, that these duties are ordinarily performed by the cashiers of banks. And general convenience and policy would dictate this arrangement as most salutary to the interests of the banks. And it may be added, that the very act done by the cashier, in this case, with the approbation of the bank, affords some presumption that it was not a usurped authority. \nBut waiving this consideration, let us attend to the actual features of this case upon the evidence. It is true, that the resolution of the 21st of October, does not dire tly, and in terms, authorize this transfer. It is not a resolution conferring a joint authority to the president and cashier, to endorse any note for the bank. It simply requires them to   take measures to liquidate the balance due to the original  plaintiffs, and other banks. It is merely directory to them, and leaves them to decide as to the time, the mode, and the means. As they were not restricted in these respects, they had a resulting right to employ any of the funds of the bank for this purpose, and the negotiable paper of the bank was equally within the scope of the authority as the cash funds, if they should deem it proper to use them. They were at liberty to raise money for this purpose, from the general funds, in any way which the ordinary course of business would justify, and which they should deem the most effectual measures. They might, therefore, agree that the cashier should endorse the note in question, and should procure it to be discounted at the Bank of the United States, and the proceeds to be carried to their credit. The presumption that this was an exercise of authority sanctioned by the president, as well as contemplated by the directors, is almost irresistibly proved by the fact, that the Planters' Bank has never complained of, but ratified and approved the whole transaction. Some criticism has been employed on the meaning of  the word \"liquidate,\" in the resolution above stated. It is said to mean, not a payment, but an ascertainment of the debts of the bank. We think otherwise. Its ordinary sense, as given by lexicographers, is to clear away, to lessen debts. And in common parlance, especially among merchants, to liquidate a balance, means, to pay it; and this, we are satisfied, was the sense in which the words were used in this resolution;  and, consequently, that the appropriation of this note to the payment of the debt, was within the scope of the authority given to the president and cashier. \nBut if this were susceptible of doubt, we think that the subsequent resolution of the directors, of the 27th of June, 1820, is conclusive. That resolution is not a mere ratification of the transfer, but declares that the endorsement was made by the cashier, on the 4th of September, 1819, by authority of the president and directors. It is therefore a direct and positive acknowledgment of its original validity, binding on the bank; and if so, it is binding upon all other persons who have not an adverse interest. But if it were only a ratification, it would be equally decisive. No maxim is better  settled in reason and law, than the maxim omnis ratihabitio retrotrahitur, et mandato priori equiparatur; at all events, where it does not prejudice the rights of strangers. And the civil law does not, it is believed, differ from the common law on this subject. 15 \nWe think, then, that the transfer in this case was made upon sufficient authority; and that, therefore, the opinion of the District Judge, affirming the same doctrine, was perfectly correct. \nThe next point made by the counsel for the original defendant, is, that the writing of the words \"ne varietur\" upon the note, restricted its negotiability. It appeared in evidence, that the note in question was given as a part consideration for  the purchase money of a plantation and slaves, purchased by Fleckner of Nelder. The instrument of conveyance was drawn, executed, and recorded, before a notary public, according to the usage in countries governed by the civil law. The notary, upon the giving of this and other notes, for the purchase money, by Fleckner, wrote on each note the words in question. There is not the slightest evidence that, by the law or custom  of Louisiana, the introduction of these words affects the negotiability of these notes; and, without proof of such law or usage, this Court certainly cannot infer the existence of such an extraordinary and inconvenient doctrine. Upon the face of the transaction, we should suppose that the words were written merely for the purpose of ascertaining the identity of the notes; and the statement at the bar, that this is the explanation given by a very learned notary, confirms this supposition. The opinion of the District Judge upon this point also, asserting that the words did not create any restriction upon the negotiability of the note, is, as far as we have any knowledge, a true exposition of the law. \nIt is unnecessary to pursue this subject farther. The judgment of the Court below is affirmed, with interest and costs. \nJUDGMENT. This cause came on to be heard on the transcript of the record of the District Court of the United States for the District of Louisiana, and was argued by counsel. On consideration whereof, it is ADJUDGED and ORDERED, that the  judgment of the said District Court for the District of Louisiana, in this case, be, and the same is hereby affirmed,  with costs and damages, at the rate of eight per centum per annum, including interest on the amount of the judgment of the said District Court. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the Court. This is a libel for an asserted forfeiture, founded on a violation of the 27th section of the act of 31st of December, 1792, c. 146. concerning the registering and recording of ships and vessels. 1 The libel charges, that the certificate of registry or record of the schooner, made to one John C. King, as owner, was fraudulently or knowingly used for the said schooner, on a   voyage at and from Baltimore to Cayenne, and at and before her subsequent arrival at New-Orleans, she not being entitled to the benefit thereof. The claim put in a denial to the allegation of forfeiture; and upon a hearing in the District Court of Louisiana, a decree of condemnation was pronounced, upon which an appeal has been taken to this Court. \nThe facts of the case are these. The vessel sailed from Baltimore about the first of August, 1820, under the command of a Captain James Smith, having on board a Mr. Desmoland, who was owner of a part of the cargo, and being bound on a voyage to Cayenne. A letter of instructions was delivered to the master by the ostensible owner, John C. King, which, among other things, after stating the voyage, and ordering a delivery of the cargo agreeably to the bill of lading, contained the following directions: \"Mr. Joseph  Desmoland, who goes out in the vessel, will provide you with every thing necessary for that purpose. You will, as soon as you are required by this gentleman, deliver to him the schooner Luminary, with her boats, &c. having care to retain in your possession the register, and every other paper. Mr. Desmoland will discharge the crew agreeably to the laws of the United States; and this also you will be careful to see executed, and bring your proof thereof. As to yourself, Mr. Desmoland is to pay you according to agreement, that is to say, your wages due, and two months extra, sixty dollars per month. The remainder of the crew to receive the like pay, that is to say, two months  extra wages.\" \"You will, also, during the whole voyage, abide by, and follow the instructions of Mr. J. Desmoland.\" \nIt is difficult to read this letter, and not at once perceive, that the voyage of the vessel was to end at Cayenne, and that her master and crew were to be discharged, the register separated from the vessel, and all the usual proceedings had which are contemplated by our laws, where a vessel is transferred or sold in a foreign port. The vessel was thenceforth to be under the sole government  and direction of Mr. Desmoland, and all authority and control of the former owner was to cease. The question naturally arises, how this could happen? If the vessel was transferred to Mr. Desmoland at Baltimore, it admits of an easy explanation. If she was to be sold by him at Cayenne, for the account of the former owner, as his agent, it would seem more consonant to the ordinary course of business, that the instructions should have been conditional, and should have stated the expectation of sale, and have provided for the event of an unsuccessful attempt of this nature. Mr. Desmoland would have been referred to as an agent, for there could be no reason to conceal that agency. At all events, the true nature of the case lies within the privity of King and Desmoland; and they have the full means to explain the transaction, if it be innocent. There must exist in the possession of Mr. Desmoland the documents under which he derived title from King, whatever that title may be; and his silence, after the most ample opportunity for explanation, and for the production  of these papers, affords a strong presumption, that, if produced, they would not aid his cause, or prove his  innocence. \nThe schooner arrived at Cayenne, and from thence she was despatched to New-Orleans by Mr. Desmoland, under the command of the same master, with the same register, and was entered at New-Orleans as an American vessel. Mr. L'Amoureaux came on board her at Cayenne, and the laconic instructions given by Mr. Desmoland to the master, for the voyage, were in these words: \"I hereby desire Captain James Smith, on his arrival at New-Orleans, to deliver the schooner Luminary, with all her tackle, &c. to Francois L'Amoureaux, who goes in the said vessel. Cayenne, 1st of October, 1820.\" At New-Orleans, Mr. L'Amoureaux claimed the vessel as his own, and desiring to procure for her a new register as an American vessel, he induced the master to execute a bill of sale to him of the schooner, for the sum of 1000 dollars, as agent of King, the former owner. The master, whose testimony is marked by the most studied attempts at evasion, admits, that he had no authority from King to execute this bill of sale, that he never received any consideration for it, and that he gave it simply because Mr. Desmoland had given him the instructions above stated. He concludes, and the conclusion seems  irresistible, if Mr. L'Amoureaux ever obtained title to the property, and she is not now the concealed property of Mr. Desmoland, that he purchased her at Cayenne. Mr. L'Amoureaux now claims her from the Court as his own property, and as no  other origin is shown to his title, if he have any, it must be referred to a purchase while at that port. In what manner the purchase was made, and how the contract of sale was executed, are not disclosed. Yet the materiality of a full disclosure cannot be denied. If Mr. Desmoland sold in the name, and as agent of King, the bill of sale would show it, and Mr. L'Amoureaux would possess it among his muniments of title. If he sold as owner, then he must have become so before the schooner departed from Baltimore, and, of course, the vessel was sailing, during the whole voyage, under a register which she was not entitled to use, and under circumstances  which the law prohibited. Why, then, has Mr. L'Amoureaux kept from the eyes of the Court his title deeds? If they would not prove the justice of the suspicions, which the uncommon circumstances of the case necessarily excite, it seems incredible that they should be suppressed. The suppression, therefore, justifies the Court in saying, that the United States have made out a prima facie case, and that the burthen of proof to rebut it, rests on the claimant. \nBut, it has been asked, what motive could Mr. Desmoland, or Mr. L'Amoureaux, have for this disguise? If no adequate motive could be assigned, it would make it more difficult to account for the extraordinary posture of the case. But as human motives are often inscrutable, the inadequacy of any apparent cause ought not to outweigh very strong circumstantial evidence of a transfer. For if the facts are such, that they cannot be accounted for rationally, except upon the supposition of a  sale, there would be equal difficulties in rejecting the inference of that fact. But Mr. Desmoland may have had many motives to conceal the purchase. We do not know his national character, or his private situation. He might have been embarrasseu. His national character might have exposed him to capture, or detention, by ships of war. He might have wished to reserve the benefit of selling higher by selling abroad to an American citizen, who could thus reinvest her with the American character. But if Mr.  Desmoland were a Frenchman, and meant to carry on a trade with New-Orleans, and to preserve the apparent American ownership through the instrumentality of Mr. L'Amoureaux, (and this is not an unnatural presumption,) then he had an adequate motive for the disguise. The act of the 15th of May, 1820, ch. 126. had imposed a very high tonnage duty on French vessels entering the ports of the United States; and as this act was meant as a countervailing measure, to press heavily on French shipping, it was an important object to evade the payment of that duty by sailing under the American flag. Now, Mr. L'Amoureaux has not shown any title from Mr. Desmoland, and if he be the confidential agent of the latter, the whole proceeding is just what we should expect with a view to this object. The apparent residence of Mr. Desmoland at Cayenne, fortifies this presumption. There would be no absurdity, though there would be illegality, in such conduct. The parties cannot complain, that the Court, in a case left so bare of  all reasonable explanation, construe their silence into presumptive guilt. \nDissent by:", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the Court; and, after stating the case, proceeded as follows: \nSuch is the general outline of the case; and in the progress of the investigation, it may become necessary to advert to some other facts with more particularity. \nAnd the first question arising upon this posture of the case is, whether Strode, the trustee, by the sale to Veitch, has been guilty of any breach of trust. And this seems to the Court to be scarcely capable of controversy. That there are circumstances in the case, which raise a presumption of bad faith on the part of the trustee, and expose him to some suspiction, cannot escape observation. But assuming him to have acted with  entire good faith, his proceedings were a plain departure from his duty. In respect to the supposed exchange of the Fauquier for the Frederick lands, it is impossible for a moment to admit its validity. In the first place, it was not made between  parties competent to make it. Wormley had no authority over the estate, after the marriage settlement. The chief object of that settlement was to secure the property to the use of the wife and children, during the joint lives of the husband and wife. And though it is said, in another part of the deed, that Wormley shall occupy and enjoy the estate, and the issues and profits thereof, during his life, yet this was to be under leave of the trustee; and to suppose that he thus acquired an equitable interest for life, is to defeat the manifest and direct intention of the other clauses in the deed, which avow the whole object to be the security of the estate, during the same period, for the use of the wife and children. The true and natural construction of this clause is, that it points to the discretion which the trustee may exercise, as to allowing the husband to occupy the estate, and take the profits for the maintenance of the family, whenever the trustee perceives it may be safely done, without involving the trustee in any responsibility, to which he might be exposed, by such a permission, without such an authority. But, at all events, the right to dispose of the equitable fee  to any one, much less to the trustee himself, did not exist in Wormley; and any exchange attempted to be made by him however beneficial, would have been utterly void. But no  exchange was in fact consummated. It is true, that the removal to the Fauquier lands took place upon an agreement to this effect; but no definitive conveyance was ever made; and the trustee himself never settled, and never took a step towards settling, the Fauquier estate upon the trusts of the marriage settlement, as it was his indispensable duty to do, if he meant to conduct himself correctly. As to the substituted Kentucky lands, the transaction was still more delusive. The agreement for the substitution was merely conditional, depending upon the subsequent election of Wormley, and his dissent put an end to it. As to the conveyance to Lee, ostensibly for the trusts of the settlement, it can be viewed in no other light than an attempt to cover up the most unjustifiable proceedings. That conveyance was not executed until after the dissent and dissatisfaction of Wormley were well known; and so far from its containing any valid performance of the trusts, it expressly gives a prior lien to the purchasers  of the Frederick lands as security for their covenant of warranty; and to complete the delusion, the trustee reserved to himself the authority to substitute any other lands, leaving the trusts to float along, without fixing them definitively upon any solid foundation. If we add, that the Fauquier lands were mortgaged to the purchasers for the same covenant; and that this mortgage was discharged only for the purpose of selling the property to Grimmar and Mundell, we shall come irresistibly to the conclusion, that the trustee never was in a situation  to give an unencumbered title on either the Fauquier or Kentucky lands, to secure the trusts; and that if he was, he never in fact executed any conveyance for this purpose. In every view, therefore, of this part of the case, it is clear, that no valid exchange did, or could take place; and that as there was no equitable or legal transmutation of the property from the cestuis que trust, it remained in the trustee, clothed with all the original fiduciary interests. \nBut, independent of these considerations, there is a stubborn rule of equity, founded upon the most solid reasoning, and supported by public policy, which forbade  any such exchange. No rule is better settled than that a trustee cannot become a purchaser of the trust estate. He cannot be at once vendor and vendee. He cannot represent in himself two opposite and conflicting interests. As vendor he must always desire to sell as high, and as purchaser to buy as low, as possible; and the law has wisely prohibited any person from assuming such dangerous and incompatible characters. If there be any exceptions to the generality of the rule, they are not such as can affect the present case. On the contrary, if there be any cogency in the rule itself, this is a strong case for its application; for, by the very terms of the settlement, the trustee was invested with a large discretion, and a peculiar and exclusive confidence was placed in his judgment. Of necessity, therefore, it was contemplated, that his judgment should be free and impartial, and unbiassed by personal interests. The asserted exchange,  so far at least as it affects to justify or confirm the proceedings of the trustee, may, therefore, be at once laid out of the question. \nThen, was the sale to Veitch a breach of trust? The power given to the trustee by the settlement  is certainly very broad and unusual in its terms; but it is not unlimited. The trustee had not an unrestricted authority to sell, but only when, in his opinion, the purchase money might be laid out advantageously for the cestuis que trust. It is true, the sale and reinvestment are to be decided by his opinion; which is an invisible operation of the mind. But his acts, nevertheless, are subject to the scrutiny of the law; and if that opinion has not been fairly and honestly exercised, if it has  been swayed by private interests and selfish objects, if the sale has been at a price utterly disproportionate to the real value of the property, and the evidence demonstrate such facts, a Court of quity will not sanction an act which thus becomes a fraud upon innocent parties. \nMuch ingenuity has been exercised in a critical examination of the nature of the power itself, as it stands in the text of the settlement. It is contended, that the acts of sale, and of reinvestment, are separate and distinct acts, and the power to sell is, therefore, to be disjoined from that of repurchase, so that the sale may be good, though the purchase money should be misapplied. How far a bona fidei  purchaser is bound, in a case like the present, to look to the application of the purchase money, need not be decided in this case. There is much reason in the doctrine, that where the  trust is defined in its object, and the purchase money is to be reinvested upon trusts which require time and discretion, or the acts of sale and reinvestment are manifestly contemplated to be at a distance from each other, the purchaser shall not be bound to look to the application of the purchase money; for the trustee is clothed with a discretion in the management of the trust fund, and if any persons are to suffer by his misconduct, it should be rather those who have reposed confidence, than those who have bought under an apparently authorized act. But, in the present case, it seems difficult to separate the acts from each other. The sale is not to be made, unless a reinvestment can, in the opinion of the trustee, be advantageously made. He is not to sell upon mere general speculation, but for the purpose of direct reinvestment. And it is very difficult to perceive how the trustee could arrive at the conclusion, that it was proper to sell, unless he had, at the same time, fixed on  some definite reinvestment, which, compared with the former estate, would be advantageous to the parties. Although, therefore, the acts of sale, and purchase, are to be distinct, they are connected with each other; and, at least as to the trustee, there cannot be an exercise of opinion, such as the trust contemplated, unless he had viewed them in connexion. If he should sell without having any settled intention to buy, leaving that to be governed by future events, he would certainly violate the confidence reposed in him. A fortiori, if he should sell with an intention not to reinvest, but to speculate, for the  purpose of relieving his own necessities, or of appropriating the trust fund indefinitely to his own uses. \nNow, in point of fact, what has the trustee done in this case? He has sold the trust property to pay his own debts. He has never applied the proceeds to any reinvestment. To this very hour there has been no just and fair application of the purchase money. The Fauquier lands are gone, the Kentucky lands have been rejected, and are loaded with liens; and there is nothing left but the personal responsibility of the trustee, embarrassed and distressed as  he must be taken to be, unless the trusts are still fastened to the Frederick lands. Can it it then be contended for a moment, that there is no breach of trust, when the sale was not for the purposes of reinvestment? When the party puts his right to sell, not upon an honest exercise of opinion at the time of sale, but upon a distinct anterior transaction, invalid and incomplete, by which he became clothed with the beneficial interest of the estate? When he claims to be, not the disinterested trustee, selling the estate, but the trustee purchasing by exchange the trust fund, and thus entitled to deal with it according to his own discretion, and for his own private accommodation, as absolute owner? Where the purchase money is to be applied to extinguish his own debts; and there is no proof of his means to replenish, or acquire an equal sum from other sources? In the judgment of the Court, the sale' was a manifest breach of trust. It was in no proper sense an execution of the power. The power,  in the contemplation of the trustee, was virtually extinguished. He sold, not because he intended an advantageous reinvestment; but because he considered himself the real owner  of the estate. The very letter, as well as the spirit of the power, was, therefore, violated; for the trustee never exercised an opinion upon that, which was the sole object of the power to sell, an advantageous reinvestment. \nThe next point for consideration is, whether the defendants, Veitch, and Castleman and M'Cormick, were bonae fidei purchasers of the Frederick lands, without notice of the breach of trust. If they had notice of the facts, they are necessarily affected with notice of the law operating upon those facts; and their general denial of all knowledge of fraud, will not help them, if, in point of law, the transaction is repudiated by a Court of equity. If they were bonae fidei purchasers, without notice, their title might have required a very different consideration. \nAnd first, as to Veitch. The deed to him contained a recital of the marriage settlement, and the power authorizing the sale. He, therefore, had direct and positive notice of the title of the trustee to the property. There is the strongest reason to believe that he was fully cognizant of the exchange of the Frederick and Fauquier lands, negotiated between Wormley and the trustee. The certificate from  Wormley, respecting the exchange, and expressing satisfaction with it, which was procured a few days before the sale, and which Veitch now produces, shows that he  must have had a knowledge of the exchange. Its apparent object was to ascertain the state of the title. The removal of the Wormley family, and their known residence, at this time, on the Fauquier lands, strengthen this presumption. If he knew of the exchange, he could not but know, that he purchased of the trustee an estate, which he claimed as his own, in a bargain with an unauthorized person, and that the trustee was, at the same time, the vendor and purchaser. He also knew that the sale to himself was not in execution of the power, or for the purpose of reinvestment; for, according to the other facts, the exchange had already effected that, and no further reinvestment was contemplated. He took a mortgage, as additional security, for the warranty, on the sale of the Fauquier lands, not even now alleging, that he did not know their identity. And, under these circumstances, he could not but know, that there had been no actual conveyance or declaration of trust of the Fauquier lands, in  execution  of the trust, for, otherwise, the trustee could not have mortgaged them to him. He therefore stood by, taking a conveyance from the trustee of the trust estate, knowing at the same time that no reinvestment had been made, which could be effectual, and that no reinvestment was contemplated as the object of the sale; and, as far as his mortgage could go, he meant to obtain a priority of security, that should ride over any future declaration of trust. \nThis is not all. The very sale of the trust fund was to be, not for reinvestment, but to pay a large  debt due to himself, upon which a decree of foreclosure of a mortgaged estate had been obtained; and he could not be ignorant that the application of the trust fund to such a purpose, was a violation of the settlement, and afforded a strong presumption that the trustee had no other adequate means of discharging the debt, or of buying other lands advantageously in the market. And yet, with notice of all these facts, the deed itself, from the trustee to Veitch, contains a recital, that the sale was made \"with the intention of investing the proceeds of such sale in other lands, of equal or greater value.\" This was utterly untrue,  and could not escape the attention of the parties. Veitch then had full knowledge of all the material facts, and he does not even deny it in his answer; for that only denies the inference of fraud, which is a mere conclusion of law from the facts, as they are established. Purchasing, then, with a full knowledge of the rights of Mrs. Wormley and her children, and of the breach of trust, Veitch cannot now claim shelter in a Court of equity, as a bonae fidei purchaser for a valuable consideration. \nThe next question is, whether Castleman and M'Cormick are not in the same predicament. In the judgment of the Court, they clearly are. They purchased from Veitch, whose deed gave them full notice of the trust, and they could not be ignorant of the recital in it, since their title referred them to it. They must have perceived, that the sale to Veitch, in order to be valid, must have been with a view to reinvestment of the purchase  money in other real estate. It was natural for them to inquire, whether the sale had been made under justifiable circumstances, and whether there had been any such reinvestment. Previous to the sale to Veitch, they had entered into a negotiation  with the trustee himself, for a direct purchase of the Frederick lands; and on that occasion became acquainted with the fact, that the trustee was largely indebted to Veitch, and that one object of the sale was to apply the proceeds to the payment of that debt. How then could they be ignorant, that the proceeds of the sale, which was very soon afterwards made to Veitch, were to be applied to extinguish the same debt, and that the transfer was not in execution of the trust, but to administer to the trustee's own necessities? This is not all. Before the excution of the deed to them, they knew of the arrangement respecting the Fauquier lands, and that Wormley had become dissatisfied with the bargain. They knew that these lands had not been settled by the trustee upon the trusts of the settlement, and they took an equitable assignment of the mortgage from Veitch of the same lands. It may be said, that the evidence of these facts is not positively made out in the record; but if it be not, the circumstantial evidence fully supports the conclusion. The answer itself of Castleman and M'Cormick, does not deny notice of these facts. It states, indeed, that they supposed the transaction  with Veitch fair, because they were satisfied that the trustee never received more from Veitch than what he has given the cestuis que trust credit for.  Was it a fair execution of the trust, so to sell the estate, and to give credit for the proceeds? To apply them to pay the trustee's debts, and relieve his necessities? To sell without any definite intention as to a reinvestment? They also deny all knowledge of fraud. But this is a mere general denial, and does not negative the knowledge of the facts, from which the law may infer fraud. \nThe subsequent conduct of Castleman and M'Cormick shows, that they were not indifferent to the execution of the trust; but that they felt no interest to secure the rights of the cestuis que trust. They were privy to the removal to Kentucky, and exhibited much anxiety to have it accomplished. They knew subsequently the dissatisfaction of Wormley with that removal, and with the Kentucky lands. Yet they, in the year 1813, relieved the Fauquier lands from their own encumbrance, and enabled the trustee to dispose of it for other purposes than the fulfilment of the trusts for which it had been originally destined. And throughout the whole,  their conduct exhibits an intimate acquaintance with the nature of their own title, and the manner and circumstances under which it had been acquired by Veitch, and the objections to which it might be liable. And they ultimately took the general warranty of Veitch, upon releasing their claim on the Fauquier lands, as a security for its validity. \nThere is a still stronger view which may be taken of this subject. It is a settled rule in equity, that a purchaser without notice, to be entitled to protection, must not only be so at the time of the  contract or conveyance, but at the time of the payment of the purchase money. The answer of Castleman and M'Cormick does not even allege any such want of notice. On the contrary, it is in proof, that upwards of 3000 dollars of the purchase money was paid in the autumn of 1813, and the spring of 1814. And this was not only after full notice of the anterior transactions, but after the commencement of the present suit. \nIt appears to us, therefore, that the circumstances of the case can lead to no other result, than that Castleman and M'Cormick were not purchasers without notice of the material facts constituting the breach of trust;  and that. therefore, the Frederick lands ought in their hands to stand charged with the trusts in the marriage settlement. The leading principle of the decree in the Circuit Court was, therefore, right. \nSome objections have been taken to the subordinate details of that decree; but it appears to us, that the objections cannot be sustained. The decree directs an account of the rents and profits of the Frederick lands, while in possession of the defendants. It further directs an allowance of the amount of all encumbrances which have been discharged by the defendants, and of the value of any permanent improvements  made thereon, and also of any advances made for the support of Wormley's family. These advances are to be credited against the rents and profits; and the value of the improvements, and of the discharged encumbrances, not recouped by the rents and profits, are to be a charge on the land itself. A more  liberal decree could not, in our opinion, be required by any reasonable view of the case. \nAn objection has been taken to the jurisdiction of the Court, upon the ground, that Wormley, the husband, is made a defendant, and so all the parties on each side  of the cause are not citizens of different States, since he has the same citizenship as his wife and minor children. But Wormley is but a nominal defendant, joined for the sake of conformity in the bill, against whom no decree is sought. He voluntarily appeared, though, perhaps, he could not have been compelled so to do.Under these circumstances, the objection has no good foundation. This Court will not suffer its jurisdiction to be ousted by the mere joinder or non-joinder of formal parties; but will rather proceed without them, and decide upon the merits of the case between the parties, who have the real interests before it, whenever it can be done without prejudice to the rights of others. 22 \n \nDissent by:", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the Court. This is an action brought by the executors of John G. Comegys, who was surviving partner of the firm of William Cochran & Comegys, to recover the contents of a promissory note, made by Joel Childress, deceased, (whose executor the plaintiff in error is,) payable to the firm of William Cochran & Comegys. The cause came before the Circuit Court for the District of West Tennessee, upon a special demurrer to the declaration; and the Court having overruled the demurrer, it has been brought here by writ of error. \nThe several causes assigned for special demurrer have been argued at the bar; but before we proceed to the consideration of them, we may as well dispose of the objection taken to the jurisdiction. The parties, executors, are, in the writ and declaration, averred to be citizens of different States; but it is not alleged that their testators were citizens of different States; and the case  has, therefore, been supposed to be  affected by the 11th section of the Judiciary Act of 1789, c. 20. But that section has never been construed to apply to executors and administrators. They are the real parties in interest before the Court, and succeed to all the rights of their testators, by operation of law, and no other persons are the representatives of the personalty, capable of suing and being sued. They are contradistinguished, therefore, from assignees, who claim by the act of the parties. The point was expressly adjudged in Chappedelaine v. Dechenaux, (4 Cranch's Rep. 306.) and, indeed, has not been seriously pressed on the present occasion. \nThe first cause of demurrer is, that the declaration states the note to have been made to the firm of William Cochran & Comegys, but does not state who in particular the persons composing that firm were. Upon consideration, we do not think this objection ought to prevail. The firm are not parties to the suit; and if Comegys was, as the declaration asserts, the surviving partner of the firm, his executor is the sole party entitled to sue. It is not necessary,  in general, in deriving a title through the endorsement of a firm, to allege, in particular,  who the persons are composing that firm; for, if the endorsement be made in the name of the firm, by a person duly authorized, it gives a complete title, whoever may compose the firm. (See 3 Chitty's Plead. 2. 39.) If this be so, in respect to a derivative title, from the act of the parties, more particularity and certainty do not seem essential in a derivative title by the  act of the law. A more technical averment might, indeed, have been framed upon the rules of good pleading; but the substance is preserved. And there is some convenience in not imposing any unnecessary particularity, since it would add to the proofs; and it is not always easy to ascertain or prove the persons composing firms, whose names are on negotiable instruments, especially where they reside at a distance; and every embarrassment in the proofs, would materially diminish the circulation of these valuable facilities of commerce. \nAnother cause of demurrer is, that the declaration does not aver that the note was signed by Joel Childress. To this it is sufficient to answer, that the declaration does state, that \"Joel Childress, by his agent, A. Childress, made\" the note; and it is not necessary to  state that he signed it; it is sufficient if he made it. The note might have been declared on as the note of the principal, according to its legal operation, without noticing the agency; and though it would have been technically more accurate to have averred, that the principal, by his agent, in that behalf duly authorized, made the note, yet it is not indispensable; for, if he makes it by his agent, it is a necessary inference of law, that the agent is authorized, for, otherwise, the note would not be made by the principal; and that the demurrer itself admits. (See Chitty on Bills, Appx. Sect. p. 528. and notes, id. Bayley on Bills, 103. 2 Phillips' Evid. ch. 1. s. 1. p. 4. 6.) \nAnother cause of demurrer is, that the declaration  omits to state any damages; but this, if in any respect material in an action of debt, is cured by the writ, which avers an ad damnum of 500 dollars. \nAnother cause of demurrer is, that the letters testamentary are not sufficiently set forth to show the right of the plaintiffs to sue.But profert is made of the letters testamentary, in the usual form; and if the defendant would have objected to them as insufficient, he should have craved oyer,  so as to have brought them before the Court. Unless oyer be craved and granted, they cannot be judicially examined. And if the plaintiffs were not executors, that objection should have been taken by way of abatement, and does not arise upon a demurrer in bar. It may be added, that, by the laws of Tennessee, executors and administrators, under grants of administration by other States of the Union, are entitled to sue in the Courts of Tennessee without such letters granted by the State. (Act of Tennessee, 1809, ch. 121. s. 1, 2.) \nIt was, also, suggested at the bar, but not assigned as cause of demurrer, that the action ought not to have been in the detinet only; but in the debet et detinet. This is a mistake. Debt against an executor, in general, should be in the detinet only, unless he has made himself personally responsible, as by a devastavit. (Comyn's Dig. Pleader, 2 D. 2. 1 Chitty's Plead. 292. 344. 2 Chitty's Plead. 141. note f. Hope v. Bague, 3 East, 6. 1 Saund. Rep. 1. note 1. 1 Saund. 112. note 1.) And if it had been otherwise,  the objection could only have been taken advantage of on special demurrer, for it is but matter of form. and cured by our statute  of jeofails. ( Burland v. Tyler, 2 Lord Raym. 1391. 2 Chitty's Pl. 141. note f. Act of 1789, ch. 20. s. 32.) \nBut the most important objection remains to be considered; and that is, that an action of debt does not lie upon a promissory note against executors. It is argued, that debt does not lie upon a simple contract generally against executors; and the case of Barry v. Robinson, in 4 Bos. & Pull. 293. has been cited as directly in point. Certainly, if this be the settled rule of the common law, we are not at liberty to disregard it, even though the reason of the rule may appear to be frivolous, or may have ceased to be felt as just in its practical operation. But we do not admit, that the rule of the common law is as it has been stated at the bar. We understand, on the contrary, that the general rule is, that debt does lie against executors upon a simple contract; and that an exception is, that it does not lie in the particular case, where the testator may wage his law. When, therefore, it is established in any given case, that there can be no wager of law by the testator, debt is a proper remedy. Lord Chief Baron Comyns lays down the doctrine, that debt lies against executors  upon any debt or contract without specialty, where the testator could not have waged his law; and he puts the case of debt for rent upon a parol lease to exemplify it. (Com. Dig. Administration, B. 14. See, also, Com. Dig. Pleader, 2 W. 45. tit. 2 D. 2.) The same  doctrine is laid down in elementary writers. (1 Chitty's Plead. 106. Chitty on Bills, ch. 6. p. 426.) Upon this ground, the action of debt is admitted to lie against executors in cases of simple contract, in Courts where the wager of law is not admitted, as in the Courts of London, by custom. So, in the Court of Exchequer, upon a more general principle, the wager of law is not allowed upon a quo minus. (Com. Dig. Plead. 2 W. 45. Godbolt, 291. 1 Chitty's Plead. 106. 93. Bohun's Hist. of London, 86.) The reason is obvious; the plaintiff shall not, by the form of his action, deprive the executor of any lawful plea, that might have been pleaded by his testator; and as the executor can in no case wage his law, (Com. Dig. Pleader, 2 W. 45.) he shall not be compelled to answer to an action, in which his testator might have used that defence. Even the doctrine, with these limitations, is so purely artificial,  that the executor may waive the benefit of it; and, therefore, if he omits to demur, and pleads in bar to the action, and a verdict is found against him, he cannot take advantage of the objection, either in arrest of judgment, or upon a writ of error. (2 Saund. Rep. 74. note 2. by Williams, and the authorities there cited. Norwood v. Read, Plowd. 182. Cro. Eliz. 557.) Style, in his Practical Register, lays down the rule with its exact limitations. \"No action,\" says he, \"shall ever lie against an executor or administrator, where the testator  or intestate might have waged their law; because they have lost the benefit of making that defence, which is a good defence in that action;  and, if their intestate or testator had been living, they might have taken advantage of it.\" (Style's Pr. Reg. and Comp. Atty. in Courts of Common Law, (1707,) p. 666.) \nIn the view, therefore, which we take of this case, we do not think it necessary to enter into the consideration, whether the case in 4 Bos. & Pull. 293. which denies that debt will lie against executors upon a promissory note of the testator, is law. There is, indeed, some reason to question, at least since the  statute of Anne, which has put negotiable instruments upon a new and peculiar footing, whether, upon the authorities and general doctrines which regulate that defence, it ought to be applied to such instruments. The cases cited at the bar by the plaintiff's counsel, contain reasoning on this point, which would deserve very serious consideration. But waiving any discussion of this point, and assuming the case in 4 Bos. & Pull. 293. to have been rightly decided, it does not govern the case now before the Court; for that case does not affect to assert or decide, that the action of debt will not lie in cases where there can be no wager of law. \nNow, whatever may be said upon the question, whether the wager of law was ever introduced into the common law of our country by the emigration of our ancestors, it is perfectly clear, that it cannot, since the establishment of the State of Tennessee, have had a legal existence in its jurisprudence. The constitution of that State has expressly declared, that the trial by jury shall remain inviolate; and the constitution of the United  States has also declared, that in suits at common law, where the value in controversy shall exceed  twenty dollars, the right of trial by jury shall be preserved. Any attempt to set up the wager of law, would be utterly inconsistent with this acknowledged right. So that the wager of law, if it ever had a legal existence in the United States, is now completely abolished. If, then, we apply the rule of the common law to the present case, we shall arrive, necessarily, at the conclusion, that the action of debt does lie against the executor, because the testator could never have waged his law in this case. \nUpon the whole, the judgment of the Circuit Court is affirmed, with 6 per cent. damages, and costs. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the Court. This cause was heard at the last term, and an order was then made, requiring the claimant to produce a copy of the libel, or other paper on which the sentence was founded, or to account for the non-production of such document; and also requiring the production of farther proof of the reality of the asserted sale of the Nereyda, and of the proprietary interest of the asserted owner. The cause has now been argued upon the farther proof brought in by the parties, and stands for the judgment of the Court. \n The Nereyda was a Spanish ship of war, and was captured by the privateer Irresistible, of which John D. Daniels was commander, and Henry Childs, (the claimant,) a lieutenant, under an asserted commission of the Oriental Republic of Rio de la Plata, and was carried into  Margaritta, in Venezuela, and there condemned as prize to the captors by the Vice Admiralty Court of that island. A sale is asserted to have been there made of her to the claimant, Francesche, after condemnation, for the sum of thirty thousand dollars. She soon afterwards left Margaritta, under the command of Childs, who was the original prize master, and arrived at Baltimore, the place of residence of Childs and Daniels, who are both American citizens; and her subsequent history, after seizure and delivery upon stipulation or bail to the claimant, shows, that she has continued exclusively under the control, management, and direction of the same persons. \nThe order to produce the libel, or to account for the omission, was made upon the fullest consideration by the Court. Whoever sets up a title under a condemnation, is bound to show, that the Court had jurisdiction of the cause; and that the sentence has been rightly pronounced upon the application of parties competent to ask it. For this purpose, it is necessary to show who are the captors, and how the Court has acquired authority to decide the cause. In the ordinary cases of belligerent capture, no difficulty arises on this  subject, for the Courts of the captors have general jurisdiction of prize, and their adjudication is conclusive  upon the proprietary interest. But where, as in the present case, the capture is made by captors acting under the commission of a foreign country, such capture gives them a right which no other nation, neutral to them, has authority to impugn, unless for the purpose of vindicating its own violated neutrality. The Courts of another nation, whether an ally or a co-belligerent only, can acquire no general right to entertain cognizance of the cause, unless by the assent, or upon the voluntary submission of the captors. In such a case, it is peculiarly proper to show the jurisdiction of the Court by an exemplification of the proceedings anterior to the sentence of condemnation. And in all cases, it is the habit of Courts of justice to require the production of the libel, or other equivalent document, to verify the nature of the case, and ascertain the foundation of the claim of forfeiture as prize. \nNotwithstanding the direct order for the production of the libel in this case, none has been produced; nor has the slightest reason been given to account for its non-production. The general usage of maritime nations, to proceed in prize causes to adjudication in this manner, either by a formal libel, or by some equivalent proceeding, is so notorious, that the omission of it is not to be presumed on the part of any civilized government, which professes to proceed upon the principles of international law. How, then, are we to account for the omission in this case? If, by the course of proceedings in Venezuela, a libel does not constitute any part of the acts of its Courts, that could  be easily shown. The neglect to show this, or in any manner to account for the non-production of the libel, if it exists, cannot but give rise to unfavourable suspicions as to the whole transaction. And where an order for farther proof is made, and the party disobeys its injunctions, or neglects to comply with them, Courts of Prize are in the habit of considering such negligence as contumacy, leading to presumptions fatal to his claim. We think, in this case, that the non-production of the libel, under the circumstances, would justify the rejection of the claim of Francesche. \nUpon the other point, as to the proprietary interest of Francesche under the asserted  sale, there is certainly very positive testimony of witnesses to the reality of the sale to him, and to his ability to make the purchase. And if this testimony stood alone, although it is certainly not, in all respects, consistent or harmonious, no difficulty would be felt in allowing it entire judicial credence. But it is encountered by very strong circumstances on the other side; and circumstances will sometimes outweigh the most positive testimony. It is remarkable, that from the institution of this cause up to the present time, a period of nearly four years, Francesche has not, by any personal act, made himself a party to the cause. He has never  made any affidavit of proprietary interest; he has never produced any document verified by his testimony; he has never recognised the claim made in his behalf; he has never, as far as we have any knowledge, advanced any money for the defence of it. Yet, the brig is admitted  to have been a valuable vessel, and was purchased, as is asserted, for the large sum of thirty thousand dollars. Upon an order of farther proof, it is the usual, and almost invariable practice, for the claimant to make proofs, on his own  oath, of his proprietary interest, and to give explanations of the nature, origin, and character of his rights, and of the difficulties which surround them. This it is so much the habit of Courts of Prize to expect, that the very absence of such proofs always leads to considerable doubts. How are we to account for such utter indifference and negligence on the part of Francesche, as to the fate of so valuable a property? Is it consistent with the ordinary prudence which every man applies to the preservation of his own interest? Can it be rationally explained, but upon the supposition, that his interest in this suit is nominal, and not real. \nThis is not all. Immediately after the ostensible sale to Francesche, the Nereyda was put in command of Childs, an American citizen, who was an utter stranger to him, as far as we have any means of knowledge, and sailed for Baltimore, the home port of the Irresistible, and the domicil of Daniels and Childs. There is no evidence that she has ever revisited Margaritta, and there is positive evidence, that she has, for the three last years, been in habits of intimacy with the ports of the United States. Where are the owner's instructions, given  to the master on his departure for Baltimore? Where is the documentary evidence of Francesche's ownership? Where are the proofs of his disbursements for the vessel  during her subsequent voyages? From the time of her voyage to Baltimore, she has remained under the management of Daniels, or Childs, or some other apparent agent of Daniels. She has undergone extensive repairs, her rig has been altered, heavy expenses have been incurred, and a new master has been appointed to her. Under whose authority have all these acts been done? Where are the orders of Francesche for these acts? Daniels has constantly been connected with the vessel; he has superintended her repairs; he or his agents have paid the bills; he is the reputed owner of the vessel; and he has been consulted as to the material operations. How can all these things be, and yet the real owner be a foreigner, a Venezuelian? How can he be presumed to lay by, without any apparent interposition in the destiny of his own vessel? \nThere are some other extraordinary circumstances in the case. The Nereyda arrived at Margaritta under the command of Childs, as prize master; and in a few days afterwards, Daniels arrived  there with the Irresistible. The crew of the latter vessel run away with her; and Daniels then sailed in the Nereyda, in pursuit of the privateer, and of course on a voyage for his own peculiar benefit. How is this reconcilable with the supposition of a real sale to Francesche? What interest had the latter in regaining the Irresistible, or subduing a revolted crew? Why should his vessel, after that object was accomplished, have gone to Baltimore? Why should he intrust to strangers, for a voyage in which he had no apparent interest,  so valuable a property? If he made any contract for that voyage, why is not that contract produced? These are questions which it seems very difficult to answer in any manner useful to the asserted proprietary interest of Francesche. Yet the facts, to which allusion is here made, are drawn from the farther proof of the claimant; and this farther proof, it is not immaterial to observe, comes not from Margaritta, where Francesche resided, and for aught that appears, still resides; but from La Guayra, with which he is not shown to have any immediate connexion. \nLooking, therefore, to all the circumstances of the case, the fact of the unchanged  possession of the captors, the habits of the vessel, the apparent control of the property by Daniels, the utter absence of all proper documentary proofs of ownership, instructions, disbursements, and even connexion with her on the part of the claimant, we think that there is the strongest reasons to believe, that no real sale ever took place, and that the property remains still in the original captors, unaffected by the asserted transfer. The positive evidence is completely borne down by the strong and irresistible current of circumstantial evidence which opposes it. \nUpon both grounds, therefore, viz. the omission to produce the original libel, or account for its non-production, and the insufficiency of the proofs of proprietary interest, the Court are of opinion, that the cause must be decided against the asserted claim. \nIf this be so, then, as it is clear that the original  outfit of the privateer Irresistible was illegal, upon the principles already established by this Court, the property of the Nereyda remains in his majesty the King of Spain, and ought to be restored accordingly. The decree of the Circuit Court is, therefore, reversed, and the Nereyda is ordered  to be restored to the libellant, with costs of suit. \nDecree reversed. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the Court. \nThe title of the lessor of the plaintiff to recover in this case, depends upon the question, whether she can claim as one of the coheirs of her deceased uncle, her father being an alien, and alive at the commencement of the present suit. It is perfectly clear that, at common law, her title is invalid, for no person can claim lands by descent through an alien, since he has no inheritable blood. But the statute of 11 and 12 Wm. III. ch.6. is admitted  to be in force in Maryland; and that statute, beyond all controversy, removes the disability of claiming title by descent, through an alien ancestor. The only point, therefore, is, whether the statute applies to the case of a living alien ancestor, so as to create a title by heirship, where none would exist by the common law, if the ancestor were a natural born subject. \nWe have not been able to find any case in England, in which  this question has been presented for judicial decision. In the case of Palmer v. Downer, (2 Mass. Rep. 179.) in the State of Massachusetts, the facts brought it directly before the Court, but it does not appear to have attracted any particular attention, either from the Bar or the Bench. It may, then, be considered as a question of new impression, and is to be settled by ascertaining the true construction of the statute of William. \nThat act is entitled, \"An act to enable his majesty's natural been subjects to inherit the estate of their ancestors, either lineal or collateral, notwithstanding their father or mother were aliens.\" The title is not unimportant, and manifests an intention merely to remove the disability of alienage. It proceeds to enact, \"that all and every person or persons, being the King's natural born subject or subjects, within any of the king's realms or dominions, should and might, thereafter, inherit and be inheritable, as heir or heirs, to any honours, &c. lands, &c. and make their pedigrees and titles, by descent, from any of their ancestors, lineal or collateral, although the father and mother, or father or mother, or other ancestor,  of such person  or persons, by, from, through, or under whom he, she, or they should or might make or derive their title or pedigree, were, or was, or should be, born out of the King's allegiance, and out of his majesty's realms and dominions, as freely, fully, and effectually, to all intents and purposes, as if such father and mother, or father or mother, other ancestor or ancestors, by, from, through, or under whom he, she, or they should or might make or derive their title or pedigree, had been naturalized, or natural born subjects.\" In construing this enactment, it ought not to escape observation, that the language is precisely such as Parliament might have used, if the intention were confined to the mere removal of the disability of alienage. It declares, that persons might lawfully inherit and be inheritable, as heirs, and make their titles and pedigrees, by descent, from any of their ancestors, although their parents were born out of the realm; plainly supposing that they might take  as heirs by descent, but for the circumstance of the alienage of the intermediate ancestors, through whom they must claim. It speaks of such intermediate ancestors, as persons who were or should be  born out of the realm, and it enables the party to take, as heir, as effectually as if such ancestors had been natual born subjects. Now, this language imports no more than a removal of the defect, for want of inheritable blood. It does not, in terms, create a right of heirship, where the common law, independently of alienage, prohibits it; it puts the party in the same situation, and none  other, that he would be in, if his parents were not aliens. If his parents were natural born subjects, and capable to take as heirs of the deceased ancestor, it is clear that he could not inherit by descent through them, as they would intercept the title, as nearer heirs. The only cases in which he could inherit, living his parents, are those where the common law has prohibited the parents from taking, although they have inheritable blood. Such are the cases of a descent from brother to brother, and from a nephew to an uncle, where the common law has disabled the parents of the deceased brother or nephew from taking the estate by descent, upon the ground that inheritances cannot lineally ascend. (2 Bl. Comm. 208. 212 and Christian's Note.) If the Legislature had intended, not only  to create inheritable blood, but also to create absolute heirship, some explanatory language would have been used. The statute would have declared, not only that the party should make title by descent, in the same manner as if his parents were natural born subjects, but that he should be deemed the heir, whether his parents were living or dead. No such explanation is given or hinted at; and if we are to insert it, it is by expounding the language beyond its obvious meaning and limitations. We do not feel at liberty to adopt this mode of interpretation, in a case where no legislative intention can be fairly inferred, beyond the ordinary import of the words. \nThis construction is not impugned by the explanatory act, afterwards passed in 25 Geo. II.  ch. 39. It seems that inconveniences were apprehended, in case persons should be held by the statute of William, to gain a future capacity to inherit, who did not exist at the death of the persons last seised. The statute of Geo. II., therefore, after reciting the act of William, declares, that it shall not be construed to give any right or title to any persons to inherit as heirs, &c. by enabling any such persons to claim,  or derive their pedigree, through any alien ancestor, unless the persons so claiming \"were, or shall be, in being, and capable to take the same estate as heir or heirs, &c. by virtue of the said statute, at the death of the person who shall last die seised,\" and to whom they shall claim to be heir or heirs. Then follows a proviso, \"that in case the person or persons who shall be in being, and capable to sake, at the death of the ancestor, so dying seised, &c. and upon whom the descent shall be cast, by virtue of this act, or of the said recited act, shall happen to be a daughter or daughters of an alien, and that the alien father or mother, through whom such descent shall be derived by such daughter or daughters, shall afterwards have a son born within any of his majesty's realms or dominions, the descent, so cast upon such daughter or daughters, shall be devested in favour of such son; and such son shall inherit and take the estate, in like manner as is allowed by the common law of this realm, in cases of the birth of a nearer heir.\" Then follows a provision for the case of the subsequent birth of a daughter, who is enabled to take as a coheir with the other  daugheters.  It has been argued that this proviso includes the cases of all children born after the descent cast in the lifetime of their alien parents, and, therefore, supposes the descent may be cast, notwithstanding their parents are living. Admitting this to be the true construction of the proviso, and that it is not restrained to posthumous children, the case of the plaintiff is not aided by it; for the clause, that the son shall take, in like manner as is allowed by the common law, in cases of the birth of a nearer heir, shows that Parliament had in view cases where the children might, at common law, take as heirs, although their parents were living; and yet the common law devested the title, so cast by descent, upon the birth of a nearer heir. For instance, if lands are given to a son, who dies, leaving a sister his heir, if the parents have, at any distance of time afterwards, another son, the common law devests the descent upon the sister in favour of such son, and he is entitled to take the estate as heir to his brother. (2 Bl. Comm. 203. Christian's Note. 5 Co. Litt. 11. Doct. & Stud. 1 Dialog. c. 7.) We think, then, that this proviso does not shake the construction, already given  by us, to the statute of William. For, here, the case of after born children is expressly provided for, which would otherwise be excluded by the declaratory clause of the statute; and if it was contemplated that the act of William created a new title, by heirship, independently of alienage in the parents, beyond the rules of the common law, the natural presumption is, that the declaratory clause would,  in some manner, have expressed that intention. So far from affirming a new title, by heirship, it asserts that the true construction of that statute excludes all persons who were not in being at the time of the descent cast, and then \"capable to take the estate as heir or heirs, &c. by virtue of the said statute of William;\" and we have already seen, that the terms of that statute give no other capacity than would exist if the parents were natural born subjects. The exception, then, of after born children, out of the declaratory clause of the act of George II., carries no implication that the Legislature was dealing with any other cases except those where, if the alien parents were living at the time of the descent cast, the children were capable of taking, as heirs at  common law, in their own right, indepently of the alienage. Mr. Justice Blackstone, in his learned Commentaries, (2 Bl. Comm. 251.) gives no explanation of these statutes, which extends them beyond such cases; and his omission to notice the larger construction, now contended for by the plaintiff, would be somewhat remarkable, if that had been deemed the true interpretation of the statutes. \nIn the absence of all authority, we do not  feel ourselves at liberty to derogate from the general doctrine of the common law as to descents, by incorporating into the statute of William a case which is not within its terms, and is not called for by any clear legislative policy. \nJudgment affirmed, with costs. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the Court. \nThis is a case of seizure, for an asserted forfeiture under the ship registry act of the 31st of December, 1792, c. 1. The libel contains five counts, the four first of which are founded on the 16th section, and the last on the 27th section of the act. The former declares, \"that if any ship or vessel heretofore registered, or which shall be hereafter registered, as a ship or vessel of the United States, shall be sold or transferred, in whole or in part, by way of trust, confidence, or otherwise, to a subject or citizen of any foreign prince or state, and such transfer shall not be made known, in manne hereinbefore directed, such ship or vessel, together with  her tackle, apparel, and furniture, shall be forfeited.\" The manner of making known the transfer here referred to, is found prescribed in the 7th section of the act; and, so far as respects the present case, would have been a delivery of the certificate of registry by the master of the vessel to the collector of the district, within eight days after his arrival in the district, from the foreign port where the transfer was made. \nIt appears, from the evidence, that the claimant was the sole owner and master of the schooner under seizure. She was duly registered at the port of Baltimore; and on the 4th day of May, she was duly transferred at Havana, by procuration, to a Spanish subject domiciled in Cuba, and received the proper documents evidencing her Spanish character. The schooner was, at this time, lying at Matanzas, and soon afterwards sailed  on the homeward voyage, under her American papers, still having the Spanish documents on board, in the custody of a person who assumed the character of a passenger, but who was, in fact, the Spanish master, and kept them concealed. the name of the vessel had been blacked out of the stern, which was the first circumstance that  excited suspicion of her character. On further inspection, it was found, that her name, \"Margaret, of Baltimore,\" was inserted on a moveable sheet of copper; and upon a close search, directed by the captain of the revenue cutter, the Spanish documents were discovered, and delivered up to the collector of Baltimore. \nThe fact of the transfer of the schooner to a Spanish subject, and the assumption of the Spanish character, are not denied; and the defence is put upon this point, that it was a mere colourable transfer, for the purpose of evading the Spanish revenue laws, the real American ownership not having been bona fide change. There is certainly nothing in this record, that shows that the intention might not also have been to evade the American revenue laws; for the obvious purpose of keeping the Spanish master and papers on board, was to assume the American character in our ports, and to re-assume the Spanish character on the next voyage, so that the parties might obtain the fullest benefit of the double papers. But, assuming that the sole object of the transfer was a fraud upon the laws of Spain, it was, nevertheless, a transfer binding between the parties, and changing the  legal ownership. It was completely, within  words of the law, a transfer, \"by way of trust and confidence,\" to a foreign subject; the trust and confidence being, that the vessel should be reconveyed to the American owner when the special purposes of the transfer were entirely consummated. That a reconveyance would be decreed in an American Court of justice, upon such a transaction with a foreign subject, in a foreign port, in violation of the municipal laws of his country, is a point which we are by no means disposed to admit. It is sufficient for us, however, that the case is brought within the very terms of the act of Congress, which does not require a beneficial or bona fide sale, but a transmutation of ownership, \"by way of trust, confidence, or otherwise.\" But it is said, that the case is not within the policy of the act. What the policy of the act is, can be known only by its provisions; and every section of it betrays a strong solicitude on the part of the Legislature to trace and inspect every change of ownership; and, for this purpose, to require a public avowal of it, and an alteration of the ship's documents, so as to exhibit, at all times, the names of all  persons who are the legal owners. The policy evinced by this course of legislation, is the encouragement of American navigation and American ship building, to the exclusion of foreign navigation and foreign ownership, and securing to American registered ships a preference, in all our revenue transactions, over all vessels which were not strictly entitled to the character. The Legislature foresaw that it would be impossible for the officers of government to ascertain the secret intentions  of parties, or the object of ostensible transfers of ownership. Whether such transfers were bona fide, or colourable, for meritorious or illegal purposes, were matters of private confidence, and could rarely be ascertained by competent and disinterested proof. To admit secret transfers of ownership to any persons, and especially to foreigners, and allow, at the same time, to the ships the full benefit of the American character, would be hazarding the main objects of the act; it would invite all sorts of contrivances to evade the laws, and disable the government from possessing means to detect frauds. The correct course of legislation was, therefore, obvious. It was to lay down a strict  and plain rule, requiring all transfers to be made known, from time to time, as they occurred; and a surrender of the American documents, when the legal ownership passed to a foreigner, whatever might be the secret trusts with which it was accompanied. The words of the section now under consideration, are direct to this purpose; and so far from contravening, they support, in the fullest manner, the general policy of the act. They are not, then, to be construed in a more limited sense than their obvious purport indicates. \nBut it is agreed that the proviso of this section shows, that the forfeiture inflicted by the enacting clause is not absolute, and that the trial ought not to have been by the Court, as a cause of admiralty and maritime jurisdiction, but by a jury, as upon an exchequer information, since a verdict alone can fix the forfeiture.  The words of the  proviso are, \"Provided, that if such ship or vessel shall be owned in part only, and it shall appear to the jury, before whom the trial for such forfeiture shall be had, that any other owner of such ship or vessel, being a citizen of the United States, was wholly ignorant of the sale or transfer to,  or ownership of, such foreign subject or citizen, the share or interest of such citizen of the United States shall not be subject to forfeiture; and the residue only shall be forfeited.\" Now, in the first place, this being a mere proviso, by way of exception from the enacting clause, it constitutes properly matter of defence, and need not be taken notice of in a libel, brought to enforce the forfeiture. The party who seeks the benefit of it, must, in his claim, insist upon it, so as to bring it as matter cognizable in the issue to the jury. In the next place, the very terms of the proviso apply only to the case of a part owner, and not to a sole owner, of the ship. The case put is, where the ship \"shall be owned, in part only,\" by a person ignorant of the transfer, such part shall not be subject to forfeiture. In the case before the Court, the claim is by Haley, as sole owner of the schooner, and all her American documents establish him as sole owner. He does not assert an ignorance of the transfer, nor claim in any way the benefit of the proviso. So that, whatever may be the true construction of the proviso, in other respects, it is plain, that it is inapplicable to his predicament,  and might, on this account, be dismissed from the consideration of the Court. \nBut the other suggestion, in respect to jurisdiction,  is entitled to scrupulous attention. The 29th section of this act declares, that all penalties and forfeiture incurred for offences against it, \"shall and may be sued for, prosecuted, and recovered, in such Courts, and be disposed of in such manner, as any penalties and forfeitures, which may be incurred for offences against an act entitled, 'an act to provide more effectually for the collection of the duties imposed by law on goods, wares and merchandise imported into the United States, and on the tonnage of vessels,' may be legally sued for, prosecuted, recovered and disposed of.\" The act here referred to, is the revenue act of the 4th of August, 1790, ch. 35. which, in the 67th section, provides for the prosecution for penalties, and libelling for forfeitures, in the same general terms, which are employed in the revenue act of the 2d of March, 1799, ch. 128. on the same subject. Now, the judiciary act of 1789, ch. 20. in express terms, and as has been repeatedly adjudged, upon the most solemn consideration, by this Court, rightfully includes  all seizures for forfeitures made under laws of impost, navigation, and trade, on waters navigable from the sea, by vessels of ten tons burthen and upwards, as causes of admiralty and maritime jurisdiction, which are to be tried by the Court, and not by a jury. And seizures made under the revenue act of the 4th of August, 1790, ch. 35. as well as under that of 1799, ch. 128. have been uniformly tried in this manner. Where the seizures have been made on land, or on waters not so navigable, the trial has been by jury. It is true, that the first case in which the questions as to  the admiralty jurisdiction under the judiciary act of 1789 came under consideration, did not arise until after the enactment of the ship registry act, 1 and, therefore, it may have escaped the attention of Congress, that such was the legal construction. But such a supposition is not lightly to be indulged, not only from the direct and unequivocal language of the judiciary act of 1789, but also from the reference in the registry act to the revenue act of 1790, for the mode of suing for penalties and forfeitures. The latter act (s. 67.) takes an express distinction between penalties and forfeitures,  confining the trial of any fact put in issue in suits for penalties, to the judicial district in which such penalties shall accrue, and then providing, in general terms, for libels, to enforce forfeitures, to be brought \"in the proper Court having cognizance thereof;\" thus pointing to the judiciary act, for the tribunal which is to exercise jurisdiction, and for the mode in which it is to be exercised. It certainly cannot be admitted, that the obscurity of a proviso like the present ought to repeal, by implication, the deliberate act of the Legislature, in settling the general jurisdiction of its Courts, and placing, with so much solicitude, causes of this nature on the admiralty side of the Courts. The proviso is still applicable, in its terms, to all cases of seizures, on land and on waters, where the trial is to be by a jury; and, perhaps, taking the whole language, it ought to be construed to include within its equity, cases, where the trial is by the Court,  and the forfeiture is not intended to be inflicted by the act. The probability is, that the words \"court or,\" were omitted before the word \"jury,\" by mistake, in the draft of the act. But this omission, if it  is to have any effect, is not to oust the jurisdiction of the Court, but to take from the party a benefit, which is not within the words of the proviso. It is the opinion of the Court, that the present seizure, which is averred in the libel to have been made upon waters navigable from the sea by vessels of ten tons burthen and upwards, is a cause of admiralty and maritime jurisdiction, and was rightfully tried by the District Court, without the intervention of a jury. 2 This objection cannot, therefore, avail the claimant. \nThe view that has already been taken of the cause upon the merits, as applicable to the four first counts in the libel, render it unnecessary to go into a particular examination of the fifth count. That count is founded, as has been already stated, upon the 27th section of the act, which declares, \"that if any certificate of registry, or record, shall be fraudulently or knowingly used for any ship or vessel, not then actually entitled to the benefit thereof, according to the true intent of this act, such ship or vessel shall be forfeited to the United States, with  her tackle, apparel and furniture.\" We think, that there are facts enough in the proofs before us, to establish the forfeiture also under this clause. By the transfer at Havana, the schooner lost her American character, and the title to  use her certificate of registry for the return voyage. She, however, did use it, and sailed under its avowed protection,  \"not being entitled to the benefit thereof, according to the intent of the act.\" \nThe judgment of the District Court is reversed, and a decree of condemnation awarded against the schooner and her appurtenances. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the Court, and, after stating the case, proceeded as follows: \nNothing can be clearer, both upon principle and  authority, than the doctrine, that the liability of a surety is not to be extended, by implication, beyond the terms of his contract. To the extent, and in the manner, and under the circumstances, pointed out in his obligation, he is bound, and no farther. It is not sufficient that he may sustain no injury by a change in the contract, or that it may even be for his benefit. He has a right to stand upon the very terms of his contract; and if he does not assent to any variation of it, and a variation is made, it is fatal. And Courts of equity, as well as of law, have been in the constant  habit of scanning the contracts of sureties with considerable strictness. The class of cases which have been cited at the bar, where persons have been bound for the good conduct of clerks of merchants, and other persons, illustrate this position. The whole series of them, from Lord Arlington v. Merrick, (2 Saund. 412.) down to that of Pearsall v. Summersett, (4 Taunt. 593.) proceed upon the ground, that the undertaking of the surety is to receive a strict interpretation, and is not to be extended beyond the fair scope of its terms. Therefore, where an indemnity bond is given to partners, by name, it has constantly been held, that the undertaking stopped upon the admission of a new partner. And the only case, that of Barclay v. Lucas, (1 T. R. 291. note a.) in which a more extensive construction is supposed to have been given, confirms the general rule; for that turned upon the circumstance, that the security was given to the house, as a banking-house, and thence an intention was inferred, that  the parties intended to cover all losses, notwithstanding a change of partners in the house. \nNow, what is the purport of the terms of the present condition? The recital stated  a special appointment, which had then been made by Miller, of his deputy for eight townships, particularly named. It was not a case of several distinct appointments for each township, but a single and entire appointment for all the townships; and the condition is, that Ustick has, and \"shall continue, truly and faithfully to discharge the duties of said appointment, according to law.\" Of what appointment? Plainly the appointment stated in the recital, to which the condition refers, and to which it is tied up; that is to say, the appointment already made and executed for the eight townships.If this be the true construction of the condition, and it seems impossible to doubt it, then the only inquiry that remains is, whether any money unaccounted for was received under that appointment. To this the plea answers in the negative, unless the subsequent alteration of the instrument created no legal change in the appointment. To the consideration of this point, therefore, the attention of the Court will be addressed. \nAnd, in the first place, upon principle, how does the case stand? Can it be affirmed, that the alteration wrought no change in the appointment? This will scarcely be pretended.  In point of fact, the first appointment was for eight townships only; the alteration made it an appointment for nine townships. It is not like the case where an appointment is made for eight townships, and another  distinct appointment is made for the ninth; for then there are, in legal contemplation, two distinct and separate appointments. But here, the original appointment is extended; it was one and entire, when it included eight townshins; it is one and entire, when it includes the nine. Can it then be legally affirmed to remain the same appointment, when it no longer has the same boundaries? An appointment for A. is not the same as an appointment for A. and B. In short, the very circumstance, that there is an alteration in the appointment, ex vi termini, imports that its identity is gone. If an original appointment is altered by the consent of the parties to the instrument, that very consent implies, that something is added to or taken from it. The parties agree, that it shall no longer remain as it was at first, but that the same instrument shall be, not what it was, but what the alteration makes it. It shall not constitute two separate and distinct instruments,  but one consolidated instrument. A familiar case will explain this. A. gives a note to B. for 500 dollars; the parties afterwards agree to alter it to 600 dollars. In such case, the instrument remains single; it is not a note for 500 dollars, and also for 600 dollars, involving separate and distinct liabilitios, but an entire contract for 600 dollars; and the obligation to pay the 500 dollars is merged and extinguished in the obligation to pay the 600 dollars. To bring the case nearer to the present: suppose there was a bond given, as collateral security, to pay the note of 500 dollars; it will scarcely be pretended, that the alteration would not extinguish  the liability under the bond. The instrument would, indeed, remain, but it would no longer possess its former obligation and identity. Nothing can be better settled, than the doctrine that, if an obligation be dependent on another obligation, (and, by parity of reasoning, upon the legal existence of another instrument,) and the latter be discharged, or become void, the former is also discharged. Sheppard, in his Touchstone, (p. 394.) puts the case, and illustrates it, by adding, \"as, if the condition of an obligation  be, to perform the covenants of an indenture, and afterwards the covenants be discharged, or become void; by this means, the obligation is discharged, and gone for ever.\" It is not denied at the bar, that the same would be the legal operation in the present case, if there had been an actual revocation of the first appointment, or an extinguishment of the instrument of appointment. But the stress of the argument is, that here there was an enlargement, and not an extinguishment, of the appointment; that, the consent of the immediate parties being given to the alteration, it remained in full force, with all its original validity, as to the eight townships. We cannot accede to this view of the case. After the alteration was made, it is, as between the parties, to be considered by relation back, either as an original appointment for the nine townships; or as a new appointment for the nine townships, from the time of the alteration. It is immaterial to the present decision, whether it be the one or the other, for in either case it is not that appointment which the defendant, Stewart, referred to in  the condition of the bond, and in respect to which he contracted the obligation.  It is no answer, to say, that it is not intended to make him liable for any money, except what was collected in the eight townships. He has a right to stand upon the terms of his bond, which confine his liability to money received under an appointment for eight townships; and the pleadings admit, that none was received, until the appointment was altered to nine. It will scarcely be denied, that if, upon the agreement to include the ninth township, the original instrument had been destroyed, and a new instrument had been executed, the obligatory force of the bond would, as to the surety, have been gone. And, in reason or in law, there is no difference between that and the case at bar. The alteration made the instrument as much a new appointment, as if it had been written and sealed anew. It is not very material, to decide whether the alteration operated by way of surrender, or as a revocation, or as a new appointment superseding the other. It was, to all intents and purposes, an extinguishment of the separate existence of the appointment for the eight townships. \nThis point is susceptible of still farther illustration, from considerations of a more technical nature. The act  of Congress of the 22d of July, 1813, ch. 16. sec. 20. under which this appointment was made, provides, \"that each Collector shall be authorized to appoint, by an instrument of writing under his hand and seal, as many deputies as he may think proper,\" &c. The appointment must, therefore, be by deed; and the  effect of an alteration or interlineation of a deed, is to be decided by the principles of the common law. Now, by the common law, the alteration or interlineation of a deed, in a material part, at least, by the holder, without the consent of the other party, ipso facto, avoids the deed. It is theconsent, therefore, that upholds the deed after such alteration, or interlineation. The reason is, that the deed is no longer the same. The alteration makes it a different deed; it speaks a different language; it infers a different obligation. It must, then, take effect as a new deed, and that can only be by the consent of the party bound by it. Whether by such consent, the deed takes effect by relation back to the time of original execution, or only from the time of the alteration, need not be matter of inquiry, because such relation is never permitted to affect the  rights or interests of third persons, and cannot change the posture of the present case. If the deed, after the alteration, is permitted to have relation back, it is not the same deed of appointment recited in the condition, and to which the obligation is limited, for that is an appointment for eight townships. If it has no such relation, then it is a deed of appointment made subsequent to the bond, and of course not included in its obligation.It cannot be, at one and the same time, a deed for eight, and also a deed for nine townships; and the very circumstance, that it is the one, excludes the possibility of assuming it as the other. In truth, the assent of the parties to the alteration, carries with it the necessary implication, that it shall no longer be deemed an appointment  for eight townships only; and the same consent of parties which created, is equally potent in dissolving the deed, and changing its original obligation. It is no objection, that to constitute a new deed, a redelivery is necessary; for if it be so, the consent to the alteration is, in law, equivalent to a redelivery. Nor is it necessary, that a surrender or revocation should be by an instrument  to that effect. It may be by matter in pais, or by operation of law. Every erasure and interlineation in the deed, by the obligee or appointee, without consent, is a surrender; and a revocation may be implied by law. The passage cited at the bar, from Co. Lit. 232. (a.) establishes, that if the feoffee, by deed of land, grants his deed by parol to the feoffor, it is a surrender of the property, as well as of the deed. And if, in this case, the deed of appointment had been delivered up to the Collector, it would, at once, have operated as a surrender by the Deputy, and a revocation by the Collector. \nAn objection has been urged at the bar, against this doctrine, that the act of Congress, giving the authority to the Collector, to appoint deputies, also authorizes him \"to revoke the powers of any deputy, giving public notice thereof in that portion of the District assigned to such deputy.\" Hence it is argued, that no revocation can be, unless by public notice. But this is certainly not the true interpretation of the act. The very terms suppose, that the revocation is already made, as between the parties, and the notice is be given of the fact. The object of the Legislature was,   to protect the public from the mischief of payments to the deputy after his powers are revoked. It requires public notice to be given of the revocation, so that no future imposition shall be practised; and if the Collector should make a private revocation, without any public notice, the logal conclusion would be, that all payments made to his deputy, in ignorance of the revocation, ought to be held valid; for no man is entitled to make his own wrongful omission of duty a foundation of right. But, as between the parties, a revocation or surrender, if actually made, would be, to all intents and purposes, binding between them, and release the sureties to the bond from all future responsibility. \nUpon the whole, the opinion of the Court is, that the fourth plea in bar is good, and that the demurrer thereto ought to be overruled; and this opinion is to be certified to the Circuit Court. \nDissent by:", " \nOpinion \n\n \n \n  Mr. Justice STORY, delivered the opinion of the Court. \nThis is a writ of error to the Circuit Court of Kentucky. The action was brought by Dorr, as  assignee, against Sebree and Johnson, as assignors, upon two notes, under seal, made to them by the Lexington Manufacturing Company. The declaration, instead of distinct counts upon each note, combines, in an inartificial manner, both notes in a single count. It states, that \"the Lexington Manufacturing Company, by their corporate seal, and signed by John T. Mason, jun., their president, did, on the 12th day of March, 1818, at, &c., execute and cause to be made, their note or writing obligatory, by which they did oblige themselves to pay to John T. Mason and James Johnson, twelve months after the date of the said writing, 10,065 dollars and 88 cents; and on the same day, and at the same place, did execute their other writing obligatory, in like manner, by which they bound and obliged themselves to pay to the said James Johnson and John T. Mason the further sum of 311 dollars and 31 cents;\" omitting to state when the late note was payable. It then proceeds to allege the endorsements  of the notes to the plaintiff, the presentment of the same to the Lexington Manufacturing Company for payment, the refusal, and protest for non-payment, and the commencement and prosecution of suits to final judgment and execution, against the Company, for the amount of the notes, in the General Court of Kentucky; the return upon the execution, that no property could be found, and due notice to the defendants. It farther avers, that the General Court had jurisdiction of the suits, and that, in consideration of the premises, the defendants became indebted and promised to pay the amount to the  plaintiff.There were also counts for goods sold, and for money had and received. The cause came on for trial upon the general issue; and the only evidence produced by the plaintiff to support his action, was the records of the foregoing suits, which also contained copies of the original notes, and of the protests by the Notary. The defendants then prayed the Court to instruct the jury, 1. that the plaintiff had not made out a good cause of action; 2. that the records and proceedings aforesaid were not evidence against the defendants, because it did not appear that the General Court  had cognizance of the subject matter; 3. That the records were not sufficient evidence of diligence on the part of the plaintiff, nor of the insolvency of the makers, nor of the assignment by the defendants. The Court overruled the motion, and instructed the jury, that the records entitled the plaintiff to a verdict against the defendants; and to these proceedings on the part of the Court, the defendants filed their bill of exceptions, and have thus brought the same points for consideration before this Court. \nBy the local law of Kentucky, instruments of this nature are assignable; and if due and reasonable diligence is used by the assignee, to procure payment from the maker, by the speedy commencement and prosecution of a suit against him, and satisfaction cannot be obtained upon the judgment and execution in such suit, the assignor is responsible for the amount. But without such suit, no action lies against the assignor. It is also provided by the statutes of Kentucky, and the substance  of these statutes has been incorporated into the rules of the Circuit Court, that no person shall be permitted to deny his signature, as maker or as assignor, in a suit against him,  founded on instruments of this nature, unless he will make an affidavit denying the execution of assignment. \nThese explanations are necessary, to enable us more accurately to understand the nature and bearing of the objections relied on at the bar, to reverse the present judgment. \nThe first objection that occurs, upon the examination of this cause, is, that the note for 311 dollars and 31 cents, is not stated in the declaration to be payable at any particular time; and if this be  not a substantial infirmity in the count, the conclusion of law is, that the note was due presently, or on demand. Now, the record of the suit, which is offered to show due diligence in endeavouring to recover this note from the maker, is not founded on a note payable on demand, but on a note payable twelve months after the date; so that there is a material variance between the note declared on in this suit, and the note which was declared on in the record offered in evidence. If we admit the copy of the note in the same record to be evidence, a farther difficulty is presented; for on its face, the note purports that, \"twelve months after date, the President, Directors and Company of the Lexington  Manufacturing Company promise to pay to James Johnson and John T. Mason, jun., or their order, 311 dollars and 31 cents, negotiable and payable at the Office of Discount and Deposit of the Bank of the United States,  at Lexington, without defalcation, for value received.\" The variance of this note from that described in the present declaration, is very striking. It is payable to the defendants, or order, in twelve months after date, and at the Bank of Discount and Deposit of the United States, in Lexington. These are all material parts of the note, and they are all omitted in the declaration. The variance, then, in this view also, would be fatal. And it may be added, that in the suit in the General Court, the declaration also omits to state, that the note was payable to order, and at the Bank of the United States; so that, in fact, the note is materially different from the declaration, in both suits. In regard, too, to that part of the present declaration, which describes the note for 10,065 dollars and 88 cents, there is a total omission to state, that it was \"negotiable and payable at the Office of Discount and Deposit of the Bank of the United States, without defaleation,  for value received,\" as in the copy produced in the record it purports to be; and the same omission occurs in the declaration in the suit in the General Court. Nothing is better established, both upon principle and authority, than that if the place where a note is payable is omitted in the declaration, it is fatal; for the evidence produced does not support the declaration. There is a variance in the essence of the instrument, as declared on, and as proved. Upon these grounds, then, it is manifest, that the record produced in evidence did not support the plaintiff's action. \nThere is another objection, which is equally decisive of the case. It is, that there was no production  of the original notes, nor any excuse offered to account for the non-production of them, at the trial. It is a general rule of the law of evidence, that secondary evidence of the contents of written instruments is not admissible, when the originals are within the control or custody of the party. Here no proof was offered, to show that the original notes were impounded, or that they were not within the possession of the party, or within the reach of the process of the Court. Without such proof,  the principles of the common law repudiate the introduction of copies; and copies were all that the record, in the most favourable view for the plaintiff, presented to the Court. But it is said, that the statutes of Kentucky, already referred to, dispense with the proof of the execution of instruments of this nature by the maker, and also of assignments by the assignor, unless the party will, on oath, deny the signature and the assignment; and that the only object of producing the originals, is to establish these facts. The argument, therefore, is, that these statuteable provisions amount to a dispensation with the general rules of evidence as to the production of the original notes. But to us it appears, that the statutes of Kentucky ought to have no such interpretation. The object of the Legislature manifestly was, to dispense with the formal proof of instruments, where the party would not deny on oath the fact of their execution. It was thought inconvenient to suffer parties to take advantage of unexpected objections, and multiply delays by general denials, which might often spring up by surprise  at the trial, and thus load the cause with heavy and unnecessary expenses.  But it would be most dangerous to allow that, because the proof of the execution of an instrument was dispensed with, therefore, no proof of its existence, or of the right of the party to hold it by assignment, was to be required. The production of the originals might still be justly required, to ascertain its conformity with the declaration, to ascertain whether it remained in its genuine state, to verify the title by assignment in the plaintiff, to trace any payments which might have been made and endorsed, and to secure the party from a recovery by a bona fide holder under a subsequent assignment. These are important objects, and which no wise Legislature would lose sight of; and it is too much to expect any Court of justice to infer, upon so slight a foundation, the abolition of those salutary rules of evidence which constitute the great security of the property and rights of the citizens. \nWe are, therefore, of opinion, that the records, however admissible for the purpose of showing due and reasonable diligence by suit, were not legal evidence of the assignment of the notes, so as to dispense with the production of the originals. \nIt is unnecessary to go into the question as  to the jurisdiction of the General Court over the suit against the Lexington Manufacturing Company, and what would be the legal effects growing out of the defect of such jurisdiction. These, as well as some other minor points, may be passed over,  since the cause may be disposed of without entering upon the discussion of them. \nIt is the opinion of the Court, that the Circuit Court erred in instructing the jury, that the records aforesaid entitled the plaintiff to a verdict; and the judgment must, therefore, be reversed, and a venire facias de novo be awarded. \nJudgment accordingly. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the Court. \nUpon the very voluminous pleadings in this case, assuming more the shape of elaborate arguments, than the simple and precise allegation of facts, which belong to Chancery proceedings, the principal questions discussed have been, 1. Whether the Vestry of the Episcopal Church of Alexandria, now known by the name of Christ's Church, is the regular Vestry in succession of the parish of Fairfax. 2. Whether the existence of another parish church, called the Falls Church, within the same parish, has any material bearing upon the title, either as to making parties, or settling the right to the glebe. 3. Whether the appellant had full notice of the true nature of the title before the purchase, and so took it with its infirmities, if any such existed. 4. Whether, this being the case of a judicial sale under a decree, the party was not bound to have applied to the Court below, before confirmation of the sale, or  afterwards, to rescind the sale; and can now maintain an independent bill for that purpose, the effect of such bill being collaterally to set aside the sale, as it stands  confirmed by the report. Another point was made at the bar, as to the sufficiency of the conveyance by Jennings to the Church-Wardens, in 1770, to pass his title in fee for the benefit of the parish. But that point was put at rest, in  the case of Terrett v. Taylor, and is not now open for discussion. 13 \n  If the first question is decided against the plaintiff, it will be unnecessary to consider the other question, for it is not denied, that the Vestry of the parish of Fairfax sufficiently represent the whole parish for all the purposes of the original bill, and that both by the former laws of Virginia and the canons of the Episcopal Church, they, in connexion with the Minister, have the care and management of all the temporalities of the parish within the scope of their authority. To the consideration of this question, the attention of the Court has been mainly directed; and it is now my duty to explain the grounds upon which we have come to the conclusion, that the Vestry of the Episcopal Church of Alexandria is the regular Vestry in succession of the parish of Fairfax; and being so at the commencement of the former suit, the main objection to the title to the glebe falls, and the bill of the plaintiff ought to be dismissed. \nBy the laws of Virginia, passed antecedent to the revolution, each parish was authorized to elect a Vestry of twelve persons, to manage their parochial concerns; and however, many distinct Episcopal Churches, or places of public worship, there were  within the parish, the same Vestry had the superintendance and direction of them all. In point of fact, there were two such places of worship within the parish of Fairfax, the church at Alexandria, and the Falls Church; but the cure of both belonged to the same Minister, who was the rector of the whole of the parish, and the parochial concerns were managed by a single Vestry. Not the least trace can be found of any other Vestry  until the year 1819, when a Vestry was chosen de facto, by persons purporting to belong to the Falls Church, and that portion of the parish of Fairfax which is not included within the District of Columbia. Up to the year 1796, it is not disputed that a Vestry was regularly chosen for the whole parish; and the place of the choice of the Vestry, as well as the Vestry meetings, appears to have been usually, but not universally, at Alexandria. In April, 1796, a Vestry was chosen for the parish, to serve for the usual period of three years, who continued to hold meetings until April, 1799; and from that time, there seems to have been an interregnum, so far as the minutes in the parish books afford information, until April, 1804, when a Vestry was  chosen, for the usual term of three years; and there has been a continuation of Vestries from that election down to the present time. The validity of these elections, from 1804, as elections of the Vestry of the parish of Fairfax, forms the point in controversy, and will be presently considered. Since the year 1800, the Falls Church has fallen into a state of dilapidation and decay, and public worship has not been celebrated there by the Minister of the Episcopal Church, on account of its deserted state; but there has been a regularly inducted Minister at the parish church in Alexandria, where divine services have been constantly performed. \nThe counsel of the plaintiff contend, that the vestries chosen in 1804, and subsequently, are not to be deemed the Vestries of the parish of Fairfax, but of the Episcopal Church, (that is, of Christ's  Church,) in Alexandria; and they support their argument upon the following grounds: 1. That in the parish books the entries constantly style them the Vestry of the Protestant Episcopal Church, at, or in, or of, Alexandria, and not the Vestry of the Parish of Fairfax. 2. That, in point of fact, the congregation of Christ's Church, in  1803, separated themselves from the parish of Fairfax, and formed a distinct Episcopal Church. 3. That the elections were made by subscribers and contributors to the Episcopal Church in Alexandria, and not by the parishioners at large of the parish of Fairfax. \nUnder some one of these heads, all the objections urged at the argument may be arranged. \nAs to the first point. It is true, that in general the style of the entries of the Vestry meetings, since 1804, is as the plaintiff stated it to be. But it will scarcely be contended, that the errors of a recording clerk, in description, will change the nature or character of the Vestry proceedings, or devest them of their authority, if, in point of fact, they constituted the Vestry of the parish of Fairfax. The irregularities of merely ministerial officers, and especially of parish clerks, whose records re generally kept in a loose and inaccurate manner, have never been, hitherto, supposed to have such a controlling authority. Courts of justice will examine into the proceedings of ecclesiastical bodies with indulgence; and if, upon the whole, a consistent construction can be given to them, in conformity to existing rights, they will  suppose them to be done in the exercise of those rights, rather  than in gross usurpations of authority. Now, there is no pretence to say, that there existed any right on the part of the congregation of the Episcopal Church at Alexandria, to choose a Vestry of its own, which should not be the Vestry of the parish. The church itself, with the church-yard and appurtenances, belonged to the parish of  Fairfax. It was the parish church. The Vestry, which had a right to govern and manage its temporal concerns, was the parish Vestry. It was an Episcopal Church, under the direction and authority of the General Episcopal Church of Virginia; and by the canons of that church, made in conformity with the laws of Virginia, and never repealed, the Vestry were to be elected for the parish. It is not lightly to be presumed, therefore, that an election of a Vestry was intended to be made in any other manner than the canons of the Episcopal Church and the rights of the parishioners would justify. The very fact of a total silence, and absence of any objection, through so long a period, would authorize the conclusion that the Vestry was understood to be a parish Vestry, and  its acts were for the benefit of the whole, and not for the part connected with the Alexandria Church. It should also be recollected, that the Falls Church had fallen into decay, and was no longer used for purposes of public worship. It was considered in the same light as if totally destroyed; and then, as the Alexandria Church was the only worshipping church in the parish, nothing could be more natural than, in common parlance, and in parochial records, to designate the Vestry as the Vestry of the Episcopal Church of,  in, or at, Alexandria. It was so in a strict sense, not because it was not the parish Vestry, but because the church at Alexandria was the parish church, and its congregation, in an ecclesiastical sense, consisted of the Episcopalian parishioners of Fairfax. If we advert to the history of the Virginia legislation on this subject, there will be found a natural reason for this apparent change of style, without any intended change of character. That legislation is referred to, somewhat at large, in the case of Terrett v. Taylor, and need not here be minutely examined. The act of 1784, ch. 88. created the Minister and Vestry of every parish a corporation,  by the name of the Protestant Episcopal Church, in the parish where they respectively resided. When, by the subsequent act of 1786, ch. 12. this act was repealed, there was provision made, that all religious societies might, according to the rules of their sect, appoint, from time to time, trustees to manage their property, which trustees were, by the subsequent act of 1788, ch. 47. declared to be the successors to the former Vestries. The general Episcopal Church of Virginia, in convention, adopted general regulations on this subject, conforming, in substance, to the act of 1784, and providing for the regular appointment of Vestries, who should be trustees, for every Episcopal Church in every parish. Under such circumstances, the natural denomination of the Vestry would be, the Vestry of the Episcopal Church in the particular parish. And when, in consequence of the separation of the county of Alexandria from the State of Virginia,  by the cession to the United States, the parish church fell within the boundaries of Alexandria, the embarrassment arising from this new state of things, might well create doubts as to the proper designation, and introduce the new appellation.  Whether this description was right or wrong, is of no consequence; for if there has been no legal change of character, in contemplation of law, the regular Vestry of this church remains the Vestry of the parish. It appears in proof, that a number of the congregation of the church at Alexandria, are persons residing without the boundaries of the District of Columbia, and in the Virginia part of the parish; and there is not the slightest evidence that, in the election of Vestries since 1804, a single parishioner of Fairfax has ever been refused his vote at any election, on account of his residence. We think, then, that the circumstance of a change of style in the parish records, furnishes no proof of the asserted change of character. In the election, however, of 1810, the entry in the books is, that the Vestry were elected \"to serve the parish as Vestrymen;\" and, immediately afterwards, in subscribing the test, they speak of themselves as the Vestry \"of the Protestant Episcopal Church of Alexandria.\" Now, what parish is here spoken of? Plainly the parish of Fairfax, for no other parish is pretended to exist. And when the Vestry subscribed the test, as Vestry of the church of Alexandria,  it is as plain that they understood that the parish and the church of Alexandria meant the same thing. If then the books of the  church are to furnish evidence against the defendants, they are entitled to the benefit of the same records, by way of explanation. \nThe second ground is, that the congregation of the church at Alexandria has separated itself from the parish, and formed a distinct society, and can no longer be deemed the parish church of Fairfax. This is principally attempted to be sustained by an agreement made in 1803, which is found fastened, by wafers, to the vestry book. That agreement, after reciting that a committee was appointed by \"the Protestant Episcopal Church of Alexandria,\" to adopt measures for insuring a competent salary for a Minister, &c. and that the committee so appointed had reported, as an advisable mode, to rent out the pews to occupiers and others, at a fixed annual rent, amounting in the aggregate to 1186 dollars, and further proposed soliciting a voluntary subscription to supply any deficiency; then proceeds to state, that the subscribers agree to rent the pews, and to pay to the Rev. Thomas Davis, (then the Rector of the parish,) the  sums annexed to their names, in quarterly payments, &c. &c. reserving a right to surrender up their powers at the end of a year. Such is the substance of the agreement; and it is extremely difficult to perceive how it conduces to prove, in any shape, the establishment of a new society. It is to be considered, that the church, whose pews were to be disposed of, was the parish church of Fairfax; and it cannot be pretended that the parish could be deprived of it, except by its own consent through its authorized  agents. A new society, composed partly of the parishioners, had no more right or power to dispose of the pews than utter strangers. It would be as gross a usurpation, and as tortious an act, in the one case as in the other. But there can be no doubt, that a parish may regulate the sale or renting of the pews of the church, in such manner as may conduce to the general benefit. The parish is not the less the owner of the church, because the pews in its are rented or sold to others; for the right to the exclusive use of the pews, is very different from the right to the freehold in the church itself. The agreement, in the present case, was nothing  more,  and purports to be nothing more, than a mere agreement for renting the pews. It is made with persons who are the committee of the church, and who claim the right to use it. It is an act which might be done by authority of the parish, without in any respect transcending its rights or duties. How then is it to be deemed an act which indicates the creation of a new society, or a separation from the parish? What authority could any new society claim to the parish property? If such a claim had been made, it would have been resisted; and the very circumstance, that no resistance was made, is conclusive that the agreement was made in the exercise of ordinary parochial rights, and indicated no severance of interests. In point of fact, an agreement, in substance like the present, was made, respecting the pews in this very church, in the year 1785; and yet no one supposed that the church ceased to be the parish church, or that the  subscribers constituted a new society. There is another circumstance, which is too significant to be passed over in silence; it is, that the Rev. Mr. Davis, to whom the agreement in question refers, was regularly inducted, in the year 1792, as Rector  of the parish of Fairfax, and continued to officiate as such, in this very church, down to the year 1806, three years after this agreement was made. During all this period, the freehold of the glebe was vested in him, as persona ecclesioe. How then is it possible to maintain, that the support of the Rector of the parish in the exercise of his parochial rights and duties, and the continuance of the Rector in possession of the glebe and the church, can be construed as an abandonment of all connexion with the parish, and a renunciation of its privileges? It is a fact, also, corroborative of the view that has been already taken by the Court of this agreement, that the possession and management of the temporalities of the church, have always been in the Vestries of the Alexandria Church, since 1804. They have exercised the sole and exclusive control over them. They have never disclaimed, in any ecclesiastical assembly, their former connexion. They have not applied to the Bishop, or other proper authority, to be formed into a new and distinct society, separate from the parish. And yet it is not denied that, by the rules and customs of the sect, new Episcopal societies are not admitted  to be formed within the bounds of existing parishes, without the consent of the proper ecclesiastical authority. In the act of consecration of the  church in 1814, the Vestry expressly declare the church to be the parish church of Fairfax, and in virtue of their authority, as the Vestry thereof, they dedicate it to the public worship of God; and the Bishop of the diocess then acknowledged and consecrated it as such. In the year 1807, the Rev. Mr. Gibson was elected Rector of the parish, upon the resignation of the Rev. Mr. Davis; and on that occasion, the Vestry resolved, that he should be inducted as Rector of the parish; and in the succeeding election of the Vestry, in the same year, the Vestry are stated in the records to be chosen \"to serve the parish.\" So that, if in the records there are single expressions which standing alone, might be of doubtful interpretation, the solemn acts of the Vestry in consecrating the church, in choosing the Minister, and in managing the temporalities, all point to their character as representatives of the whole parish. It may be added, that in the bill of Terrett v. Taylor, the Vestry assume to be the parish Vestry in succession; and  that in the answer to the present bill, by the defendants, who are the existing Vestry of the Church of Alexandria, they assert, in the most positive and solemn manner, the same character, and utterly deny the allegations of the defendant's bill on this point. So that, unless the Court were prepared to divert the clear purport of the evidence, and the solemn acts of the Church, for a series of years, and the presumptions arising from long and undisputed possession of the property, and exercise or parochial authority, on account of some irregularities, which may occur in the transactions  of most public bodies, the conclusion cannot be arrived at, that the church at Alexandria has ceased to be the parish church of Fairfax, or that its congregation has become a distinct society. \nThe third ground of objection is, that the Vestry were chosen, not by the parishioners of Fairfax, but by subscribers and contributors to the Episcopal Church at Alexandria. This objection proceeds upon the supposition, that if the Vestry is de facto the Vestry of the parish, the very mode of choice demonstrates that it cannot be the Vestry de jure. Whether, in a case like that before the Court,  the inquiry can properly be gone into as to the mode and regularity of the choice of a Vestry actually in office and exercising the duties thereof; and if the inquiry be proper, whether the legal distinction between a Vestry de jure and de facto, could avail the plaintiff, are questions upon which it is not necessary for the Court to express any opinion. We think a short examination of the subject will put the objection at rest, whatever might be the conclusion drawn from such a legal distinction. \nBefore the revolution, the Episcopal Church was the established church of Virginia, and all the parishioners were liable to be rated for parish taxes, and were entitled to vote in the choice of the Vestry. But the church establishment fell with the revolution, and the compulsive power of taxation ceased; and as no person could be compelled to worship in the Episcopal Church, or pay taxes for its support, the parishioners of the Episcopal Church, in the ecclesiastical sense of the term, afterwards  consisted only of the Episcopalian contributors and members. The act of 1784, ch. 88. provided that, at all future elections of Vestries, no person should be allowed to vote, who  did \"not profess himself a member of the Protestant Episcopal Church, and actually contribute towards its support.\" Although this act was repealed by the act of 1786, ch. 12. yet the same act saved the management of their property and regulation of their discipline, according to the rules of their own sect, to all religious societies. By the canons of the Episcopal Church, subsequently passed, the right to elect Vestries is confined to the \"freeholders and housekeepers, who are members of the Protestant Episcopal Church within the parish, and regularly contribute towards the support of the Minister, and to the common exigencies of the church within the parish.\" These canons being assented  to by the various parishes which they govern, and not being inconsistent with the laws of Virginia, are not denied to be in force for parochial purposes. Now, there is not in this record the slightest proof, that any election of the Vestry has been made in any other manner, than that pointed out by the canons of the church; and the answer of the defendants expressly avers, that the choice has been constantly made according to the canons of the church, and that no person belonging to  the Falls Church, has ever been a contributor, or ever offered to vote at any election. It seems to be Court, therefore, that, the elections being regularly made, by persons qualified according to the canons, the whole foundation of the objection is removed.  No inference can be deduced from this circumstance, in proof of the Alexandria Church having separated itself from the parish, and become a distinct and independent society. \nIt has been said, that the parishioners of the whole parish are the cestius que trust of the glebe and other parochial property, and ought to be parties to any bill to dispose of it. But in an accurate and legal sense, the parishioners are not the cestuis que trust, for they have, individually, no right or title to the property. It is the property of the parish, in its corporate or aggregate capacity, to be applied and disposed of for parochial purposes, under the authority of the Vestry, who are its legal agents and representatives. Upon the sale of the glebe, the proceeds become parochial property, and must be applied for the common benefit, the maintenance of the Minister, the repairs of the churches, and other parochial expenses, by the  Vestry, in good faith. But the mode, and extent, and circumstances, under which the fund is to be applied, are necessarily left to the discretion of the Vestries, from time to time chosen. An abuse of their trust, or duty, is not to be presumed; and if it should occur, the same remedy will belong to the parishioners as in other cases, where money is wantonly misapplied to wrong purposes, which constitute a common fund for the benefit of the whole parish, and not for the benefit of a part. It will be sufficient to decide upon such a case when it shall arise in judgment. But the individual parishioners residing out of Alexandria country, were no more necessary to be made  parties to the bill praying a sale of the glebe, than the individuals residing within the county. Both were represented in the only way known to the laws, by the Vestry duly appointed to manage parochial concerns. \nThese are some of the reasons which have led the Court to the conclusion that has been already stated, to wit, that the Vestry of the church in Alexandria is, in succession, the regular Vestry of the parish of Fairfax. \nThis decision renders it unnecessary to consider the other points raised  at the argument; and it remains only to declare, that the judgment of this Court is, that the decree of the Circuit Court dismissing the bill, be affirmed with costs. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the Court. \nThe two hundred chests  of tea in controversy in this suit, were imported into the city of New-York, in the ship Ontario, from China, and entered there at the custom house, and the duties regularly secured as bohea teas. They were afterwards transported coastwise to Boston; and upon examination there, under the direction of the collector of the district, they were seized as forfeited, under the collection act of the 2d of March, 1799, ch. 128. s. 67. on account of their differing in description  from the contents of the entry. The libel states the facts specially, but contains no allegation of an intention to defraud the revenue.Upon this state of the case, the libel is assailed for a supposed defect, arising from the absence of such an allegation. But we think this objection cannot be sustained. The libel follows the language of the enacting clause of the act, which inflicts the forfeiture; and the exemption from forfeiture, when the collector or the Court shall be satisfied that the difference between the entry and the packages \"proceeded from accident or mistake, and not from an intention to defraud the revenue,\" being found in a separate proviso, is properly matter of defence, to be asserted  and proved by the claimant, and is not, according to the course of adjudications in this Court, essential to the structure of the libel itself. This objection, then, may be dismissed without further observation. \nAnother question, of more serious importance, is, whether the examination and seizure authorized by the 67th section of the act, are not limited to the collector of the district where the goods were originally entered and the duties secured, upon importation; and so the case made by the libel is not within the purview of the act, whatever might be the authority of the collector to seize for forfeitures generally, and to assert the claim in a libel, properly framed for such a purpose. The decision of this question would require a very minute and critical examination of the whole revenue and coasting acts; and as the Court can satisfactorily  dispose of the cause upon the merits, in point of fact, it is deemed unnecessary to institute so laborious an inquiry. \nThe claim admits, that the teas were imported and entered as bohea teas; and asserts, that they are of the kind and denomination called bohea teas, and not of a different kind or quality of teas; and this  forms the main point in controversy between the parties. One of the earliest acts of Congress, (the act of the 20th of July, 1789, ch. 2.) imposes duties on teas in the following words: \"On bohea tea, per pound, six cents; on all souchong or other black teas, per pound, ten cents; on all hyson teas, per pound, twenty cents; on all other green teas, per pound, twelve cents.\" The act of the 10th of August, 1790, ch. 39. varied the duties, but retained the same descriptions. The act of the 29th of January, 1795, ch. 82, declared that \"teas commonly called imperial, gunpowder, or gomee,\" should \"pay the same duties as hyson teas.\" The act of the 3d of March, 1797, ch. 64. laid an additional duty of two cents \"upon all bohea tea.\" And the act of the 27th of April, 1816, ch. 107. under which this cargo was imported, levies duties on \"bohea, twelve cents per pound; souchong and other black, twenty-five cents per pound; imperial, gunpowder, and gomee, fifty cents per pound; hyson, and young hyson, forty cents per pound; hyson skin, and other green, twenty-eight cents per pound.\" The legislation of Congress here detailed, exhibits a progressive discrimination in the kinds of green teas, but  leaves  the black teas with no other specific discrimination than that of bohea and souchong. \nThe argument on behalf of the United States, is, that the two hundred chests of tea, now in controversy, are in reality simple congo tea, and not bohea; that the latter is a pure unmixed  tea, entirely distinct from congo, and known in China by an appropriate name; that it is to this pure and unmixed bohea tea, that the successive acts of Congress refer, and not to any other mixed tea, though known by the common denomination of bohea. If we were to advert to scientific classifications, for our guide on the present occasion, it is most manifest, from the works cited at the bar, that bohea is a generic term, including under it all the black teas, and not merely a term indicating a specific kind. But it appears to us unnecessary to enter upon this inquiry, because, in our opinion, Congress must be understood to use the word in its known commercial sense. The object of the duty laws is to raise revenue, and for this purpose to class substances according to the general usage and known denominations of trade. Whether a particular article were designated by one name or  another, in the country of its origin, or whether it were a simple or mixed substance, was of no importance in the view of the Legislature. It did not suppose our merchants to be naturalists, or geologists, or botanists. It applied its attention to the description of articles as they derived their appellations in our own markets, in our domestic as well as our foreign traffic. And it would have been as dangerous as useless, to attempt any other  classification, than that derived from the actual business of human life. Bohea tea, then, in the sense of all our revenue laws, means that article which, in the known usage of trade, has acquired that distinctive appellation. And even if the article has undergone some variations in quality or mixture, during the intermediate period from 1789 to 1816, when the last act passed, but still retains its old name, it must be presumed that Congress, in this last act, referred itself to the existing standard, and not to any scientific or antiquated standard. \nThe true inquiry, therefore, is, whether, in a commercial sense, the tea in question is known, and bought, and sold, and used, under the denomination of bohea tea. We think the  evidence on this point is altogether irresistible. It establishes that the bohea tea of commerce is not usually a distinct and simple substance, but is a compound made up in China of various kinds of the lowest priced black teas, and the mixture is of higher or lower quality, according to the existing state of the market. Indeed, from the uniformity of its price in the midst of great fluctuations in the prices of all other teas, it seems rather to indicate the lowest quality of black teas, than any uniform compound. It is accordingly in proof, that old congo teas are often sold as bohea, and have sometimes been imported into our market under that denomination. In short, whenever black teas are deteriorated by age, or are of the lowest price, they are mixed up to form bohea for the market, and are suited to the demand and wishes of the  purchasers. It is not meant to affirm that there is no such simple and distinct tea known as bohea. All that the evidence justifies us in saying is, that this is not the common bohea of commerce. The latter may or may not be a simple substance, according to circumstances. The generic name bohea, comprehending under it all the varieties  of black teas, whenever they are at the cheapest price in the market, or are of a very inferior quality, or are mixed up for sale, they lose their specific names, and sink into the common denomination. \nSuch is the conclusion which, in the opinion of the Court, the evidence in this record justifies and requires. It is true, that the Boston witnesses very strongly state that the present teas are pure unmixed congo; and their testimony is entitled to very great consideration, from their personal respectability as well as their long experience. But the New-York witnesses speak with equal positiveness and point, that the present teas are the common bohea of the market, and have been bought and sold as such without hesitation. These witnesses, also, are entitled to entire credit, for the same reasons; they have had great experience, and are of unquestioned credibility. In this apparent conflict of competent and credible witnesses, the only way of reconciling the testimony, is to suppose that they do not speak ad idem; that the Boston witnesses speak to the specific nature of the particular teas in controversy, and the New-York witnesses to their known commercial denomination in their  actual state. in  this way of considering the testimony, the conflict exhibits more a matter of apparent than real diversity of opinion. But if it be not thus reconcilable, it appears to us that the weight of the evidence is so strong, that teas of this description have been long imported into our market as bohea, that no Court of justice would feel itself authorized to inflict the forfeiture under the statute, upon a presumed intentional violation of its provisions. There is, indeed, something that applies still more forcibly to the claimant, under these circumstances, than applies in common cases.He came into the tea trade since the peace of 1815, and has been most extensively engaged in it. At the time of his first commercial enterprise, teas of this description were publicly and commonly imported into New-York as bohea, and had acquired a known commercial character. He acted upon this settled usage; and if the present seizure can be sustained, he is to suffer for a forfeiture, which he had no adequate means to avoid, and could not have foreseen. \nThen, as to the intention of fraud. It is said that these teas were imported in congo chests, covered with a thin paper,  for the purposes of disguise, and that, upon inspection, it is clear that the original congo still remained in the chests. The circumstance that these are congo chests, whose structure is perfectly known, would not justify the conclusion that there was an intention to defraud the revenue, since that structure might attract observation, and thus lead to immediate  detection. It would have been more natural to have disguised congo teas in bohea boxes. But the difficulty that lies in the argument derived from this source, is, that upon opening the chests, the contents are proved to be exactly what the New-York witnesses call bohea, and the Boston witnesses congo. So that the question of fraudulent disguise depends upon the fact, whether the tea be or be not bohea; and if it be settled to be the latter, then the suspicion from this circumstance vanishes. The same answer may be given to all the other circumstances relied on as badges of fraud. They become utterly unimportant,  if there was not a real misrepresentation of the quality of the tea. \nThere is one cogent fact, which presses with peculiar weight in the consideration of this part of the case. It is,  that after the present seizure was made, and the whole train of suspicions disclosed, the remaining teas, of the same denomination and importation, which were yet in the public stores at New-York, underwent a strict examination there under the authority of the officers of the customs. The result of that examination was an unequivocal opinion, that they were the common bohea of commerce; and this result being communicated to the government, no farther proceedings were thought necessary to vindicate its rights. \nBut another fact, which is decisive against the supposition of a fraudulent intention, is, that the teas were purchased in China as bohea, at the usual bohea price, and upon their importation into  New-York, were there sold at the usual bohea price. They were sold at prices from thirty-one to thirty-six and a half cents per pound, when, at the same time, and in the same place, congo sold at forty-eight cents per pound. This is not a matter of doubtful or equivocal evidence; it is admitted and proved in the most positive manner. What then could have been the inducement to fraud? Men do not perpetrate frauds upon the revenue from the mere love of mischief, or the  wanton disregard to duty. There must be some leading interest, some enticing object in view, to lead them to such a violation of social law and moral sentiment. In the present case, no such motive could exist, for the whole conduct of the party is at war with the supposition. Nay, more the perpetration of the fraud would have been against his interest. We do not here allude to his private reputation as an opulent merchant, engaged in an extensive commerce in teas, nor to the powerful influence that, under such circumstances, public opinion must have upon him, in its stern and severe, though silent rebukes. But his immediate interest in the same trade and in the same voyage, would be sacrificed by such unworthy proceedings. He would hazard large interests upon a paltry saving in duties, from which he could in the end derive not the slightest benefit. \nIt has been said, that unless the present libel can be maintained, a wide door will be opened for the admission of frauds in the importation of teas. If this be true, it forms no reason for a different judicial construction of the acts of Congress,  much less for the enforcing a forfeiture where the facts will not warrant  it. Congress can provide an easy remedy, by changing the specific duty to a duty ad valorem, a policy which has already obtained the sanction of other nations. \nIt is unnecessary to go farther into the discussion of the merits of this case. The judgment of the Court is, that the decree of the Circuit Court of Massachusetts, given pro forma, ought to be reversed, the libel of the United States be dismissed, and the 200 chests of tea be restored to the claimant. But the Court are also of opinion that there was probable cause of seizure, and direct it to be certified upon the record. \nDecree reversed. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the Court. \nThe District Judge of the southern district of New-York, under the 10th section of the patent act, of the 21st of February, 1793, chapter 11., granted a rule upon Charles Wood and Gilbert  Brundage, at the instance and complaint of Jethro Wood, to show cause why process should not issue against them, to repeal a patent granted to them for a certain invention, in due form of law; and upon hearing the parties, no sufficient cause being, in his judgment, shown to the contrary, he, on the 2d day of July, 1823, passed an order, that the said rule be made absolute, and that the said patent be repealed; and that process issue to repeal the said patent, and for the costs of the complainant. The patentees, by their counsel, moved the Court to direct a record to be made of the whole proceedings, and that process, in the nature of a scire facias, should be issued, to try the validity of the patent. The Court denied the motion, upon the ground that these were summary proceedings, and that the patent was repealed de facto, by making the rule absolute; and that the process to be issued,  was not in the nature of a scire facias, to try the validity of the patent, but merely process repealing the patent. \nA motion was made, on a former day of this term, in behalf of the patentees, for a rule upon the district Judge, to show cause why a mandamus should not issue from this Court, directing him to make a record of the proceedings in the cause, and to issue a scire facias, for the purpose of trying the validity of the patent. The rule having been granted, and due service had, the case has since been argued by counsel, for and against the rule; and the opinion of this Court is now to be delivered. \nTwo objections have been urged at the bar,  against the making this rule absolute. The first is, that these proceedings, being summary, are not properly matters of record. The second, that this is not a case in which, by law, a scire facias, or process in the nature of a scire facias, can be awarded, to try the validity of the patent. \nBoth of these objections are founded upon the provisions of the 10th section of the patent act, and must be decided by a careful examination  of those provisions. The words are, \"that, upon oath or affirmation being made,  before the Judge of the District Court, where the patentee, his executors, &c. reside, that any patent, which shall be issued in pursuance of this act, was obtained surreptitiously, or upon false suggestion, and motion made to the said Court within three years after issuing the said patent, but not afterwards, it shall and may be lawful for the Judge of the said District Court, if the matter alleged shall appear to him to be sufficient, to grant a rule that the patentee, or his executor, &c. show cause why process should not issue against him, to repeal such patent; and if sufficient cause shall not be shown to the contrary, the rule shall be made absolute; and thereupon, the Judge shall order process to be issued against such patentee, or his executors, &c., with costs of suit. And in case no sufficient cause shall be shown to the contrary, or if it shall appear that the patentee was not the true inventor or discoverer, judgment shall be rendered by such Court for the repeal of the said patent. And if the party at whose complaint the process issued, shall have judgment given against him, he shall pay all  such costs as the defendant shall be put to in defending the suit,  to be taxed by the Court, and recovered in due course of law.\" \nUpon the slightest inspection of this section, it will be at once perceived, that however summary the proceedings may be, they are of vast importance to the parties, and involve the whole right and interest of the patentee. The jurisdiction given to the Court, is not general and unlimited, but is confined to cases where the patent was obtained surreptitiously, or upon false suggestions; where the patentee resides within the district; and where the application is made within three years after the issuing of the patent. It is, therefore, certainly necessary, that all these facts, which are indispensable to found the jurisdiction, should be stated in the motion and accompanying affidavits; and without them, the Court cannot be justified in awarding the rule. It follows, of course, that in any record that is to be made of the proceedings, they constitute the preliminary part, and ought not to be omitted. In the present case, they have been wholly omitted, and the record is, in this respect, incomplete and inaccurate. \nBut it is said that, technically speaking, these proceedings are not matters of record. They are certainly  proceedings of a Court of record, for such are all the Courts of the United States, in virtue of their organization, both upon principles of the common law, and the express intendment of Congress. In general, the interlocutory proceedings in suits are not entered of record, as they are deemed merely collateral incidents. But where  a special jurisdiction is given to a Court, as in the present instance, it appears to us that, in conformity to the course of decisions in this Court, upon the subject of jurisdiction, all the preliminary proceedings required to found that jurisdiction should appear of record, as they constitute an essential part of the case. In general, motions and rules made in the course of suits, over which the Court has an acknowledged jurisdiction, are not entered of record. But where a rule is the sole foundation of the suit, and the first step in its progress, that rule can only be granted under special circumstances prescribed by law; it is not sufficient to show that the rule itself was granted, but it must also appear, by the proceedings, that it was rightfully granted. \nBut the more material question is, whether the proceedings, so far as the rights  of the patentees are concerned, terminated with the rule being made absolute, so that, ipso facto, the patent was repealed, and the process to be issued was only process to enforce or declare the repeal; or whether the process was in the nature of a scire facias at common law, to repeal the patent, if, upon a future trial, the same should be found invalid. \nThis question must be decided by the terms of the section in controversy; but in the interpretation of those terms, if their meaning is somewhat equivocal, that construction ought certainly to be adopted which, not departing from the sense, is most congenial to our institutions, and is most convenient in the administration of public justice.  The securing to inventors of an exclusive right to their inventions, was deemed of so much importance, as a means of promoting the progress of science and the useful arts, that the constitution has expressly delegated to Congress the power to secure such rights to them for a limited period. The inventor has, during this period, a property in his inventions; a property which is often of very great value, and of which the law intended to give him the absolute enjoyment and possession.  In suits at common law, where the value in controversy exceeds 20 dollars, the constitution has secured to the citizens a trial by jury. In causes of equity and admiralty jurisdiction, they have the security of a regular and settled course of proceedings, where the rules of evidence and the principles of decision are well established. And in all these cases, there is the farther benefit conferred by our laws, of revising the judgments of the inferior Courts, by the exercise of appellate jurisdiction. It is not lightly to be presumed, therefore, that Congress, in a class of cases placed peculiarly within its patronage and protection, involving some of the dearest and most valuable rights which society acknowledges, and the constitution itself means to favour, would institute a new and summary process, which should finally adjudge upon those rights, without a trial by jury, without a right of appeal, and without any of those guards with which, in equity suits, it has fenced round the general administration of justice.The patent acts have given to the patentee a right to sue at common law, for damages for any violation of his invention;  and have given him a farther right  to claim the interference of a Court of equity, by way of injunction, to protect the enjoyment of his patent. It would be somewhat surprising if, after such anxious legislation, there should exist in the act a clause which, in a summary manner, enables any person to repeal his patent, and thus sweep away his exclusive property, without interposing any guards by way of appeal, or any regular proceedings, by which the validity of titles, in ordinary cases, is examined and contested. \n With these considerations in view, let the 10th section of the act be examined. Its object is to provide some means to repeal patents which have been obtained surreptitiously, or upon false suggestions; the very cases for which a scire facias issues at the common law. As the patents are not enrolled in the records of any Court, but among the rolls of the Department of State, it was necessary to give some directions as to the correct time and manner of instituting proceedings to repeal them. It accordingly directs, that the District Judge may, upon proper evidence, under oath, and motion made to the Court, in his discretion, \"grant a rule that the patentee, &c. show cause why process should  not issue against him, to repeal such patent; and if sufficient cause shall not be shown to the contrary, the rule shall be made absolute, and thereupon the Judge shall order process to be issued against such patentee, &c. with costs of suit.\" It is obvious, from the language of this clause, that the rule is a rule not to repeal the patent, if it is made absolute, but a  rule for process to issue to repeal the patent. It is not then the rule, but the process contemplated by the act, that repeals the patent. It is not a mere form, but it is of the essence of the proceedings, without which, the rule has no efficacy. Is the process to be issued a process which, per se, repeals the patent, or are the words \"to repeal such patent,\" to be construed as merely descriptive of the nature of the process, and of the effect of it, if judgment shall be finally pronounced in support of it? In other words, is it a process in the nature of an execution, or a judicial process, in the nature of a scire facias, calling for further proceedings? If the words of the section had stopped at the clause already referred to, it would, perhaps, have been difficult to find a sufficient explanation  of the legislative will, to have led the Court to the conclusion, that judicial process, in the nature of a scire facias, was certainly intended; there would have been some reason for hesitation; but, even then, an interpretation against such process would not have been without serious embarrassments. It could not be arrived at, without leaving much of questionable reasoning behind. But the section does not stop here. It goes on to make farther provisions, which, if the process absolutely repealed the patent, could have no operation, and no intelligible meaning. On the other hand, if the process was to be in the nature of a scire facias, all the words are sensible and operative, and describe the proper progress and proceedings upon such a writ. The clause is in these words: \"And, in case no sufficient  cause shall be shown to the contrary, or if it shall appear that the patentee was not the true inventor or discoverer, judgment shall be rendered by such Court for the repeal of the patent.\" These words follow after the clause awarding the process, and, of course, suppose the proxess already issued. The party is supposed to be called upon to show cause, which is precisely  what a scire facias requires in its official mandate; and if no sufficient cause is shown to the contrary, or if it shall appear that the patentee was not the true inventor or discoverer, then the patent is to be repealed. If the process is merely to repeal the patent, and not to institute a trial, how can the party show cause? how can it judicially appear that the patentee is not the inventor? These provisions are intelligible in a scire facias, for that authorizes subsequent inquiry into the law and the facts. But, farther, \"judgment\" is to be rendered. Now, it is not necessary to lay any particular stress on this word, as a known juridical phrase, expressive of the final decision of the Court; but if the making the rule absolute repealed the patent, and the process is merely an execution, how could any subsequent judgment be rendered in the case? It would be contrary to all analogy, to all rules of judicial interpretation, to suppose that judgment is to succeed, and not to precede, the writ of execution. The clause goes on, \"and if the party, at whose complaint the process issued, shall have judgment against him, he shall pay all such costs as the defendant shall be put to  in defending the suit, to be taxed  by the Court, and recovered in due course of law.\" The language is here still more distinct and persuasive. It imports, in a clear manner, that some proceedings were to be had after the process issued, by which the case might be farther investigated; and if upon such investigation judgment should be against the complainant, the patentee should recover his costs. The language is, that the party, at whose complaint the process issued, not the rule issued, shall have judgment against him. Upon what? the rule? Certainly not; but upon the process issued. He shall pay the costs to which the defendant is put in defending the suit. What suit is here intended? We think it is clear that it means the suit upon the process, that is, upon the scire facias; for the proceedings upon the rule are not, in a technical, or in any accurate sense, a suit. The costs of defending the suit are to be paid.But how can any costs arise from a defence upon a process which is final and absolute? It appears to the Court, that to give the construction contended for by the counsel against the rule, would be to reject the plain and obvious purport of the whole  of the last clauses of the section, and make them a perfect nullity. In the other view, they have entire effect, and are as reasonable and just, in themselves, as they are promotive of the security of vested rights and property. \nNor does the occurrence of the words \"costs of suit,\" in the preceding part of the section, where it is said that \"the process shall be issued, &c. with costs of suit,\" in the slightest degree impugn  this interpretation. The true meaning of these words in this connexion, is not that costs of suit, already incurred, shall be paid and collected, but that the process shall be, to show cause why the patent shall not be repealed, and costs of suit given to the complainant. In this view, it fortifies the construction already asserted by the Court. That this is the true exposition of the words, is made apparent by examining the 5th section of the patent act of 1790, ch. 34., which is exactly similar in terms to the 10th section of the present act, except that it omits, in tis place, the words \"costs of suit.\" These words, therefore, were not intended to change, and cannot be admitted to change, the natural meaning of the other parts of the section.  And if the other words used in this connexion are descriptive of the nature of the process, these words are merely explanatory of the legislative  intent, that the costs of the suit should follow upon the final judgment in favour of the complainant. Without this provision, as the other clause giving costs applies to the patentee only, the complainant, although he should prevail in the suit, would not be entitled to any costs. This was a real defect in the first act, and is cured by the insertion of the words under consideration. \nNor are there any public mischiefs which will result from the view which the Court takes of this section. On the contrary, it will subserve the purposes of general justice. If a patent has been fraudulently obtained, or upon false suggestions, it may be repealed within three years, if a jury,  upon a trial, shall be satisfied of the fact. If such a repeal be not had, still the public have a perfect security. They may violate the patent with impunity, and if sued for the violation, any person may show the same facts in his defence, and they will constitute a complete bar to the suit, by the express provisions of the 6th section  of the patent act. Here, also, the trial will be ordinarily by a jury, and if the verdict is found, upon such facts, in favour of the defendant, the law expressly declares, that \"judgment shall be rendered for the defendant, with costs, and the patent shall be declared void.\" Many patents, under this section, have already, in such suits, been adjudged void; so that the danger of extensive imposition or injury is wholly chimerical. On the other hand, if, by any accident or mistake, the patentee should neglect to appear to oppose the rule, upon the argument on the other side, he may be remediless. But, upon the exposition of the statute adopted by the Court, he will still be entitled to appear to the scire facias, and have a more deliberate opportunity to defend his rights. \nUpon the whole, it is the opinion of the Court, that the rule ought to be made absolute, and that a peremptory mandamus issue to the Judge of the District Court, directing him to enter upon record the proceedings in this cause, antecedent to the granting of the rule, and upon which it was founded: that he award a process, in the nature of a scire facias, to the patentees, to show cause why the patent should not  be repealed, with costs of suit: that upon such process being returned,  duly executed, he proceed to try the same cause, upon the pleadings filed by the parties, and the issue joined thereon; and that, if the issue so joined be an issue of fact, then the trial thereof to be by a jury; if an issue of law, then by the Court, as in other cases. \nMandamus accordingly. \nJUDGMENT. Upon the hearing of this cause upon the rule to show cause, heretofore awarded by this Court, and on consideration of the arguments of counsel for and against making the same rule absolute, it is ORDERED and ADJUDGED by the Court, that the same rule be, and hereby is, made absolute. And it is further ORDERED by the Court, that a peremptory mandamus issue to the District Judge of the Southern District of New-York, commanding him to enter upon record the proceedings in this cause, antecedent to the granting by him of the rule to show cause why process should not issue, to repeal the patent in the proceedings mentioned, and upon which the said rule was founded: that the said Judge do award a process, in the nature of a scire facias, to the patentees, to show cause why the said patent should not be repealed,  with costs of suit: that upon the return of such process, as duly served, the said Judge do proceed to try the cause upon the pleadings filed by the parties, and the issue joined thereon; and that if the issue be an issue of fact, the trial thereof be by a jury; if an issue of law then by the Court, as in other cases. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the Court. \nThis is a libel, brought by the master of the French ship Apollon, against the Collector of the District of St. Mary's, for damages occasioned by an asserted illegal seizure of the ship and cargo, by the respondent, while she was lying in Belle river, a branch of the St. Mary's, within the acknowledged territories of the King of Spain. \nThere is no dispute as to the national character of the ship. It appears that she sailed from France, bound to Charleston, in South Carolina; but as apprehensions were then entertained, that the proposed tonnage duty on French vessels might be passed by Congress, an alternative destination was given to her for a Spanish port, the object of the voyage being to land her cargo in the United States, and to take a return cargo of cotton to France. The cargo was partly owned by French subjects, and partly by a Mr. Le Maitre, a domiciled  mercnant at Charleston, who was also the consignee. Upon her arrival off the port of Charleston, the master ascertained, that the French tonnage duty act had passed, (act of 15th of May, 1820, ch. 125.) and, therefore,  declined entering the port. He had on board some specie belonging to the Bank of the United States, which, by the permission of the collector, was brought on shore by the revenue cutter. Having obtained information from the collector, that Amerlia Island was not deemed an American territory, he sailed for that place, under the direction of the consignee; and there the ship lay for a considerable time, while the master proceeded to St. Augustine, a distance of about eighty miles, where he entered his ship and cargo, and paid the regular duties required by the Spanish authorities. While at this port, he ascertained, that the local authorities had it is contemplation to establish a new port of entry, to be called St. Joseph's, on Belle river, within the Spanish territory, and to appoint officers of the customs to reside there. The unquestionable object of this establishment, as disclosed in some correspondence between the immediate agents, which is inserted in the transcript, was to have a convenient depot, for the purpose of carrying on an illicit trade, in fraud of the revenue and navigation laws of the United States. Indeed, it is manifest, that there could be no other object,  for there was no commercial population in the neighbourhood whose wants were to be supplied in the regular course of commerce. Of this object, perhaps, Captain Edon was not ignorant; but he  does not appear to have participated in any of the schemes connected with it. His own avowed object was, to transship his cargo into the United States, and to receive from thence  a cargo of cotton, without subjecting himself to the payment of the French tonnage duty. Part of the cargo was sold at St. Augustine, probably to pay duties and charges; and upon Captain Edon's return to Amelia Island, under the advice and instructions of the Spanish officers of the customs, he removed his vessel from Amelia Island up Belle river, about six or eight miles; and after having lain at anchor near St. Joseph's for eighteen days, the ship with her cargo was there seized by the collector of St. Mary's, and carried to the latter port for adjudication. Admiralty proceedings were instituted by the attorney for the United States,in the District Court of Georgia, to subject the ship to the payment of the tonnage duty, and the cargo to forfeiture; but upon the hearing of the cause, the Court  awarded a decree of restitution of the ship and cargo. From this decree the Government interposed an appeal, but the appeal was finally abandoned before any hearing in the appellate Court. In the mean time the present libel for damages was instituted, and some difficulty arose as to the propriety of entertaining it during the pendency of the other suit, because in that suit it was competent for the Court to award damages, if the seizure was without reasonable cause. The objection was well founded; but it was withdrawn, from the anxious desire of the Government to have the cause speedily adjudged in the proper tribunal, upon  the substantial merits. Upon the hearing of this cause, the District Court pronounced a decree for damages, from which an appeal was taken to the Circuit Court; and from the decree of the Circuit Court, confirming the decree of the District Court, with an addition of thirty-three and a third per cent. to all demurrage allowed by the latter, the present appeal was taken, and the cause now stands for a final decision. \nThe questions arising upon the record, have been argued with great zeal and ability, and embrace some considerations, which belong  more properly to another department of the government. It cannot, however, escape observation, that this Court has a plain path of duty marked out for it, and that is, to administer the law as it finds it.We cannot enter into political considerations, on points of national policy, or the authority of the government to defend its own rights agaisnt the frauds meditated by foreigners agaisnt our revenue system, through the instrumentality and protection of a foreign sovereignty. Whatever may be the rights of the govenrment, upon principles of the law of naitons, to redress wrongs of this nature, and whatever the powers of Congress to pass suitable laws to cure any defects in the present system, out duty lies in a more narrow compass; and we must administer the laws as they exist, without straining them to reach public mischiefs, which they were never designed to remedy. It may be fit and proper for the government, in the exercise of the high discretion confided to the executive, for great public purposes,  to act on a sudden emergency, or to prevent an irreparable mischief, by summary measures, which are not found in the text of the laws. Such measures are properly matters  of state, and if the responsibility is taken, under justifiable circumstances, the Legislature will doubtless apply a proper indemnity. But this Court can only look to the questions, whether the laws have been violated; and if they were, justice demands, that the injured party should receive a suitable redress. \nThe first question is, whether there was a justifiable cause of seizure. This question has been already decided in the proceedings in rem, and the decree of acquittal, not having been appealed from with effect, is conclusive evidence in every inquiry before every other tribunal, that there was no such cause. This point was decided upon great consideration, in the case of Gelston v. Hoyt, (3 Wheat. Rep. 246.) and is not believed to be susceptible of any legal doubt. In the present case, however, as the parties have been induced to waive objections to this libel, for damages pending the former suit, upon the supposition, that the same questions might be as open here as there, it may not be amiss to examine the ground upon which the right of seizure is now attempted to be maintained. As to any forfeiture, or supposed forfeiture, under the act of 1820, ch. 125. it is very  clear, that it cannot be maintained. That act simply authorizes a tonnage duty of eighteen dollars per ton, to be collected on all French ships, which shall be entered in the United States,  and provides for the collection of the duty, in the same manner as tonnage duties are to be collected by the collection act of 1799, ch. 128.; but this act inflicts no forfeiture for the non-payment of the tonnage duty, nor did the libel in rem even affect to proceed for any such forfeiture. The consideration of this act may then be at once dismissed. But the 29th section of the collection act of 1799, is supposed to contain a direct authority for the seizure. That section provides, \"that if any ship or vessel, which shall have arrived within the limits of any district of the United States, from any foreign port or place, shall depart, or attempt to depart from the same, unless to proceed on her way to some interior district, to which she may be bound, before report or entry shall have been made by the master, &c. with the collector of  some district of the United States, the master, &c. shall forfeit and pay the sum of 400 dollars; and it shall be lawful for any collector,  &c. to arrest and bring back, or cause to be arrested and brought back, such ship or vessel, to such port of the United States, to which it may be most conveniently done.\" It is observable, that no forfeiture is here inflicted upon the vessel or cargo; but the penalty is personal upon the master. There was no pretence, then, to institute proceedings in the District Court, in rem, for the forfeiture, and the delay occasioned by such proceedings was clearly unjustifiable; in fact, the giroinal libel did not proceed for any forfeiture, except agaisnt the cargo. But it is said, that the arrest and bringing into port was justifiable, because  the ship had entered the district of St. Mary's, and had departed therefrom, without making any report or entry. The district of St. Mary's, by law, comprehends \"all the waters, shores, harbours, rivers, creeks, bays, and inlets, from the south point of Jekyl Island, exclusive, to St. Mary's river, inclusive.\" St. Mary's river formed, at this period, the boundary between the United States and the Spanish territory, the boundary line, by the treaty of 1795, running through the middle thereof, in its whole course to the Atlantic ocean.  The only access from the ocean to the Spanish waters running into the St. Mary's, as well as to the adjacent Spanish territorieis, was through this river. So that, upon the general principles of the law of nations, the waters of the whole river must be considered as common to both nations, for all purposes of navigation, as a common highway, necessary for the advantageous use of its own territorial rights and possessions. There is no doubt, that the Apollon did not enter the St. Mary's for the purpose of going into any American port, for trade or intercourse. Her avowed destination was for the Spanish waters and Spanish territories; and she never anchored in the St. Mary's, except upon the Spanish side of the river. Her proceeding up Belle river, was still more decisive of this intention. Under such circumstances, the question arises, whether a mere transit through the waters of the St. Mary's, for the purpose of proceeding to the Spanish territory, is to be deemed an arrival within the limits of the United States from a foreign port, within the sense of the 29th section  of the act already referred to. We are decidedly of opinion, thta it cannot be so considered. The laws of no nation can justly extend beyond its own territories, except so far as regards its own citizens. They can have no force to control the sovereignty or rights of any other nation, within its own jurisdiction. And, however general and comprehensive the phrases used in our municipal laws may be, they must always be restricted in construction, to places and persons, upon whom the Legislature have authority and jurisdiction. In the present case, Spain had an equal authority with the United States over the river St. Mary's. The attempt to compel an entry of vessels, destined through those waters to Spanish territories, would be an usurpation of exclusive jurisdiction over all the navigation of the river. If our government had a right to compel the entry at our custom house, of a French ship, in her transit, the same right existed to compel the entry of a Spanish ship. Such a pretension was never asserted; and it would be an unjust interpretation of our laws, to give them a meaning so much at variance with the independence and sovereignty of foreign nations. The true exposition of the 29th section is, that it means to compel an entry of all vessels coming into our waters,  being bound to our ports; and the very exception of vessels bound to some interior district, demonstrates the sense of the Legislature, by indicating the entire stress laid upon the destination of the vessel. But, even supposing, for a moment, that our laws had required an entry of the Apollon, in her transit, does it follows  that the power to arrest her was meant to be given, after she had passed into the exclusive territory of a foreign nation? We think not. It would be monstrous to suppose that our revenue officers were authorized to enter into foreign ports and territories, for the purpose of seizing vessels which had offended against our laws. It cannot be presumed that Congress would voluntarily justify such a clear violation of the laws of nations. The arrest of the offending vessel must, therefore, be restrained to places where our jurisdiction is complete, to our own waters, or to the ocean, the common highway of all nations. It is said, that there is a revenue jurisdiction, which is distinct from the ordinary maritime jurisdiction over waters within the range of a common shot from our shores. And the provisions in the collection act of 1799, which authorize  a visitation of vessels within four leagues of our coasts, are referred to in proof of the assertion. But where is that right of visiation to be exercised? In a foreign territory, in the exclusive jurisdiction of another sovereign? Certainly not; for the very terms of the act confine it to the ocean, where all nations have a common right, and exercise a common sovereignty. And over what vessels is this right of visitation to be exercised? By the very words of the act, over our own vessels, and over foreign vessels bound to our ports, and over no others. To have gone beyond this, would have been an usurpation of exclusive sovereignty on the ocean, and an exercise of an universal right of search, a right which has never yet been acknowledged by  other nations, and would be resisted by none with more pertinacity than by the American. Assuming, then, the distinction to be founded in law, it is inapplicable to a case where the visitation and arrest have been in a foreign territory. It appears to us, then, that the Apollon was not bound to make entry at our custom house; and that the arrest was, under the circumstances, wholly without justification under our laws. \nThe  next question, which has been argued at the bar, is, whether there was, in this case, probable cause of seizure. The most that can, with correctness, be argued on this point, is, that there was probable cause to arrest the vessel, under the 29th section of the collection act; but neither that section, nor any other law, authorized a seizure as for a forfeiture in this case, much less a prosecution in rem, to enforce a forfeiture; and so indeed the original libel in rem considered the case.But before adverting to the facts urged in support of the  suggestion of probable cause, it may not be improper to consider, how far the existence of probable cause can be inquired into, or constitutes matter of defence in a suit like the present. Some obscurity arose at the argument, from not distinguishing between the effect of probable cause in cases of capture jure belli, and the effect in cases of municipal seizures. In respect to the former, no principle is better settled in the law of prize, than the rule that probable cause will not merely excuse, but even, in some cases, justify a capture. If there be probable cause, the captors are entitled, as of right, to an exemption from  damages; and if  the case be of strong and vehement suspiction, or requires further proof to entitle the claimant to restitution, the law of prize proceeds yet farther, and gives the captors their costs and expenses in proceeding to adjudication. But the case is far ifferent in respect to municipal seizures. Probable cause has never been supposed to excuse any seizure, except where some statute creates and defines the exemption from damages. The party who seizes seizes at his peril; if condemnation follows, he is justified; if an acquittal, then he must refund in damages for the marine tort, unless he can shelter himself behind the protection of some statute. The very act under which the present seizure is sought to be justified, contains an express provision on the subject, and shows the clear opinion of the Legislature. It declares, in the 89th section, \"that when any prosecution shall be commenced, on account of the seizure of any ship or vessel, goods, &c., and judgment shall be given for the claimant, &c., if it shall appear to the Court, before whom such prosecution shall be tried, that there was a reasonable cause of seizure, the said Court shall cause a proper  certificate, or entry, to be made thereof; and in such case, the claimant, &c. shall not be entitled to costs, nor shall the person who made the seizure, or the prosecutor, be liable to action, suit, or judgment, on account of such seizure or prosecution.\" By a subsequent act, (act of the 24th of February, 1807, ch. 74.) the like provision is extended to all seizures \"under any act of Congress authorizing such seizures.\" It is apparent, from  the very language of this clause, that unless the certificate be obtained in the manner prescribed by the law, the seizing officer is liable to a suit for damages. And it was adjudged by this Court, in the case of Gelston v. Hoyt, (3 Wheat. Rep. 246.) that the denial of such certificate was conclusive evidence that there was no probable cause of seizure. No certificate was given upon the original libel instituted against the Apollon and cargo, and restitution having been decreed without it, it follows, of course, that probable cause can, in point of law, form no excuse against damages in this case. It is true, that if vindictive damages were sought, the circumstances of suspicion might properly go in mitigation; but where, as in  the present case, compensation only is sought, the inquiry into the existence of such probable cause, can have no legal operation upon the merits of the controversy. \nBut how stands the fact as to the existence of probable cause? It has been very justly observed at the bar, that the Court is bound to take notice of public facts and geographical positions; and that this remote part of the country has been infested, at different periods, by smugglers, is matter of general notoriety, and may be gathered from the public documents of the government. But the question, whether the Apollon designed to engage in this unlawful traffic, must be decided by the evidence in this record, and not by mere general suspicions drawn from other sources. It is somewhat remarkable, that no act or attempt of smuggling is charged upon her by any testimony  in the record. Her avowed intention was, to send her cargo into the United States: but in what manner? It was perfectly lawful to transship the cargo, in American or other foreign vessels, to our ports; no law was violated thereby, and no evasion of the French tonnage duty accomplished; for the expense of the transshipment must have been  supposed by Congress to be, in ordinary cases, a full equivalent to the increased duty. It has been very justly observed at the bar, that the act of Congress was not intended to operate as a non-intercourse or non-importation law, but merely as an additional and onerous tax upon French navigation, in retaliation of the restrictions of France upon our navigation. The policy of the act was, therefore, as completely effected by compelling French ships to perform circuitous voyages, and thus to incur the disadvantages of transshipments, as by payment of the tonnage duty. Now, it is principally from the declarations and admissions of Capt. Edon himself, that the designs of his voyage are known; and if we take part of his testimony, we ought in fairness to call in aid every explanation that he gives on the subject. He utterly disclaims any intention of fraud; and his declarations on this point have not been discredited. But, admit that he had an intention of illegal trade, how could that intention, not carried into effect within our jurisdiction, afford probable cause of seizure in a foreign territory? It was not matter of doubt, that Belle river was within the limits of Florida; and  how can there be probable cause of seizure under our laws, when  the vessel is in a place exempt from our jurisdiction? \nIt is unnecessary to pursue this subject farther, as, in point of law, probable cause, if it existed, would not, under the circumstances of this case, constitute a valid defence. The remaining question is, as to the damages. The District Court allowed the following items of damage: 1. Demurrage of the ship for 175 days, at 30 dollars per day. This item, upon the appeal, was enhanced by the Court, as has been already stated, to 40 dollars per day. 2. The difference between the amount of the sales of the cargo (which was sold under a perishable monition,) being 3523 dollars and 10 cents, with ten per cent. thereon; and the nett proceeds of the sales, which had been restored to the claimants, that difference being 1215 dollars and 99 cents, together with six per cent. interest thereon. 3. The allowance of 250 dollars to the libellant, for travelling expenses to Washington. 4. The allowance to the second captain of 100 dollars, for his travelling expenses to Savannah, on the business of the ship. 5. The allowance of 500 dollars, as necessary counsel  fees. \n The principal arguments against this decree, have been directed to the allowance of demurrage, as a just measure of compensation. The Attorney-General contends, that it ought to be disallowed, as far too high a compensation; the Counsel for the libellant, as an allowance unreasonably low. This Court, on various occasions, has expressed its decided opinion, that the probable profits of a voyage, either upon the ship or cargo, cannot furnish  any just basis for the computation of damages in cases of marine tort. The basis has accordingly been, in every instance, rejected. Where the vessel and cargo are lost or destroyed, the just measure has been deemed to be their actual value, together with interest upon the amount, from the time of the trespass. Where there has been a partial injury only, that loss being ascertained, a similar rule has been applied. Where the property has been restored after detention, demurrage during the period has been generally allowed for the vessel, and interest upon the value of the cargo. Where the vessel and cargo have been sold, the gross amount of the sales, together with interest, has been adopted, as a fair recompense,  and the addition of ten per cent. has been sometimes made, where the property was sold under disadvantageous circumstances, or had not arrived at the country of its destination. Such, it is believed, have been the rules most generally adopted in practice, in cases which did not call for aggravated or vindictive damages. And it may be truly said, that if these rules do not furnish a complete indemnification in all cases, they have so much certainty in their application, and such a tendency to suppress expensive litigation, thta they are entitled to some commendation, upon principles of public policy. \nBut it is now said, that demurrage always arises ex contractu, and, therefore, cannot furnish any rule of compensation in cases of tort. The practice in Courts of Admiralty, has certainly been otherwise; and the very cases cited at the bar,  show that no distinction has been taken, as to its application, between cases of contract and cases of tort. In truth, demurrage is merely an allowance or compensation for the delay or detention of a vessel. It is often a matter of contract, but not necessarily so. The very circumstance that, in ordinary commercial voyages, a particular  sum is deemed by the parties a fair compensation for delays, is the very reason why it is, and ought to be, adopted as a measure of compensation, in cases ex delicto. What fairer rule can be adopted, than that which founds itself upon mercantile usage as to indemnity, and fixes a recompense upon the deliberate consideration of all the circumstances attending the usual earnings and expenditures in common voyages? It appears to us, that an allowance, by way of demurrage, is the true measure of damages in all cases of mere detention, for that allowance has reference to the ship's expenses, wear and tare, and common employment. Every other mode of adjusting compensation, would be merely speculative, and liable to the greatest uncertainties. In respect to the quantity of the allowance in the present case, there is a diversity of evidence on the record. Two of the witnesses examined upon the appeal, speak of 30 dollars, and one of 40 dollars, as a reasonable demurrage. The Circuit Court, upon this new testimony, allowed the latter; and as it is perfectly clear, that every Judge, in his own circuit, must have better means of weighing the testimony of credible witnesses, from a more exact  acquaintance with their experience and extent of business, than we can  possibly derive from the bare inspection of the records; and as we perceive no reason to be dissatisfied with his judgment, we think that the decree, on this point, ought to be confirmed. \nThe second item is perfectly correct, except as to the allowance of the ten per cent. The cargo was sold at the market, though not at the port, of its destination; and from the appraisement, it appears to have sold for a higher price than it was valued at. The ground of the allowance of the ten per cent. then fails, for that is given for supposed losses upon a forced sale, or a falling market. \nThe third item, though small, does not appear to us proper to be allowed upon principle. It was no necessary expense in the prosecution of the suit; and, as it has been objected to, it must be struck out. The fourth item is not open to the same objection, and, therefore, may well stand. \nThe fifth item, allowing 500 dollars as counsel fees, is, in our opinion, unexceptionable. It is the common course of the Admiralty, to allow expenses of this nature, either in the shape of damages, or as part of the costs. The practice  is very familiar on the prize side of the Court; it is not less the law of the Court in instance causes, it resting in sound discretion to allow or refuse the claim. \nUpon the whole, the decree of the Circuit Court is to be reformed in these not very important particulars; in all other respects it is affirmed, and interest is to be allowed, at the rate of six per cent., upon the amount of the decree thus reformed,  from the time of the appeal from the Circuit Court, until it shall be carried into effect in the same Court, pursuant to the mandate of this Court. \nDECREE. This cause came on to be heard, &c. On consideration whereof, it is ORDERED and DECREED by the Court, that the decree to the Circuit Court, awarding the sum of 8695 dollars and 37 cents, damages, to the libellant, with his costs of suit, be in part reversed, to wit, for the sum of 602 dollars and 31 cents, and be affirmed in all other respects; and that the libellant do recover of the respondent, the said amount of damages decreed in the said Circuit Court, deducting the said sum of 602 dollars and 31 cents, to wit, the sum of 8093 dollars and 6 cents, together with interest, at the rate of six per cent.  per annum, on the same sum, from the date of the decree in the Circuit Court, to the period of carrying this decree into effect in the Circuit Court, pursuant to the mandate of this Court. \n \n \nDecree in Circuit Court, \n \n$ 8695 37 \n \nDeduct 10 per cent. on sales of cargo, \n$ 352 31 \n \n \nAllowance for Washington journey, \n250 00 \n \n \n \n$ 602 31 \n602 31 \n \n \n \n$ 8093 06 \n \n\n ", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the Court. \nA motion has been made to dismiss this, and several other suits, unless the plaintiff in error shall give new bonds for the prosecution of the writ, within a limited period, to be fixed by the Court, upon the ground that the writs of error have been allowed by the Judges of the Circuit, Court for the District of Columbia, upon bonds being given in, small sums to respond the damages and costs, the debts secured by the judgments being very much larger. \nThe judiciary act of 1789, ch. 20. s. 22. requires every Judge or Justice, signing a citation on  a writ of error, to take good and sufficient security that the plaintiff in error \"shall prosecute his writ to effect, and answer all damages and costs, if he fails to make his plea good.\" A writ of error lodged in the Clerk's office,  within ten days after the rendition of judgment, operates as a supersedeas of execution; and the question arises, whether, in cases where it operates as a supersedeas, the security taken by the Judge or Justice ought not to be sufficient to secure the whole amount of the judgment. \nIt has been supposed at the argument, that the act meant only to provide for such damages and costs as the Court should adjudge for the delay. But our opinion is, that this is not the true interpretation of the language. The word \"damages\" is here used, not as descriptive of the nature of the claim upon which the original judgment is founded, but as descriptive of the indemnity which the defendant is  entitled to, if the judgment is affirmed. Whatever losses he may sustain by the judgment's not being satisfied and paid, after the affirmance, these are the damages which he has sustained, and for which the bond ought to give good and sufficient security. Upon any suit brought on such bond, it follows, of course, that the obligors are at liberty to show that no damages have been sustained, or partial damages only; and for such amount only is the obligee entitled to judgment. \nIn the present case,  and in the other cases which are in the same predicament, the Court directs  that these suits stand dismissed, unless the plaintiff in error shall give good and sufficient security to an amount to secure the whole judgments, on which the writs are brought, within thirty days from the rising of this Court, such security to be taken and approved by any Judge or Justice by whom a writ of error or citation may be allowed. \nORDER. It is ordered by the Court, on motion of Mr. Key, of counsel for the defendant in error, that this cause do stand dismissed, unless the plaintiff in error shall, within thirty days from the rising of this Court, give a bond, with good and sufficient security, in due form of law, to prosecute his writ with effect, and to answer all damages and costs, if he fail to make his plea good; the amount of such security to be sufficient to secure the whole judgment, in case the same shall be affirmed, and be not otherwise discharged; such security to be taken and approved by any Judge or Justice who is authorized to allow a writ of error and citation on the said judgment. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the Court. \nThis cause comes up from the Circuit Court for the southern district of New-York, upon a certificate of division in the opinions of the Judges of that Court. The prisoner, Josef Perez, was put upon trial for a capital offence, and the jury, being unable to agree, were discharged by the Court from giving any verdict upon the indictment, without the consent of the prisoner, or of the Attorney for the United States. The prisoner's counsel, thereupon, claimed his discharge as of right, under these circumstances; and this forms the point upon which the Judges were divided. The question, therefore, arises, whether the discharge of the jury  by the Court from giving any verdict upon the indictment, with which they were charged, without the consent of the prisoner, is a bar to any future trial for the same offence. If it be, then he is entitled to be discharged from custody; if not, then he ought to be held in imprisonment  until such trial can be had. We are of opinion, that the facts constitute no legal bar to a future trial. The prisoner has not been convicted or acquitted, and may again be put upon his defence. We think, that in all cases of this nature, the law has invested Courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances, which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes; and, in capital cases especially, Courts should be extremely careful how they interfere with  any of the chances of life, in favour of the prisoner. But, after all, they have the right to order the discharge; and the security which the public have for the faithful, sound, and conscientious exercise of this discretion, rests, in this, as in other cases, upon the responsibility of the Judges, under their oaths of office. We are aware that there is some diversity of opinion and practice on this subject, in the American Courts; but, after weighing the question with due deliberation, we are of opinion, that such a discharge constitutes no bar to further  proceedings, and gives no right of exemption to the prisoner from being again put upon trial. A certificate is to be directed to the Circuit Court, in conformity to this opinion. \n CERTIFICATE. This cause came on, &c. On consideration whereof, it is ORDERED by the Court, that it be certified to the Circuit Court of the District of New-York, that, under the circumstances stated in the record, the prisoner, Josef Perez, is not entitled to be discharged from custody, and may again be put to trial, upon the indictment found against him, and pending in the said Court. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the Court. \nIn this case, the Court cannot but lament the extreme irregularity and laxity of the pleadings, if, indeed, the informal minutes upon the record be entitled, in any measure, to the appellation of pleadings. Some apology is, indeed, to be found in the asserted inaccurate local practice in the State Courts; but it is impossible, without breaking down the best settled principles of law, not to perceive that the very errors in the pleadings are, of themselves, sufficient to justify a reversal of the judgment, and an award of a repleader. The agreement  of the parties, filed in the case, may, indeed, help the formal defects, but cannot be admitted to dispense with the substance of appropriate pleas; for, otherwise, it would be difficult to ascertain what was tried, or to be tried; and we might as well dispense with the declaration itself, as with the subsequent pleadings. It is to be hoped that, in future, a more correct  practice will find its way into the District Court. \nThree errors have been insisted upon by the Government, as contained in the charge of the Court  below. The first is, that the Judge limited the responsibility of the sureties upon the Collector's bond, to the duties and obligations imposed by the acts of Congress, antecedently passed, thus excluding the liability created by the subsequent statutes. The second is, the direction of the Judge, that the jury were at liberty to impute laches to the Government, from the delay to call the Collector to account, at the periods prescribed by law, and the consequent injury to the sureties. The third is, the direction, that the payments made by the Collector might, under the circumstances, be applied to the discharge of the balance due from collections made under the acts which were in force when the bond was given. \nAs to the first point. The Collector was appointed, under the act of the 22d of July, 1813, ch. 16., for the assessment and collection of direct taxes and internal duties. In the 2d section it provides, \"That one Collector, etc. shall be appointed for each of the said collection districts, etc.; and if the appointment of the said Collectors, or any of them, shall not be made during the present session, the President of the United States shall be, and is hereby, empowered  to make such appointment, during the recess of the Senate, by granting commissions, which shall expire at the end of their next session.\" The 18th section of the same act further provides, \"that each Collector,  etc. shall give bond, with one or more good and sufficient sureties, etc. in at least double the amount of the taxes assessed in the collection district for which he may be appointed, which bond shall be payable to the United States, with condition for the true and faithful discharge of the duties of his office, according to law, and particularly for the due collection and payment of all moneys assessed upon such district.\" The condition of this bond principally refers, as will appear on an inspection of the act, to assessments of direct taxes. But the subsequent acts, (act of the 24th of July, 1813, ch. 21. s. 14., and ch. 24. s. 6., and ch. 25. s. 3. and s. 10., and the act of the 3d of August, 1813, ch. 38. s. 2. and s. 5., and ch. 51. s. 13.) laying internal duties, contain provisions enlarging the authority of the Collector; and the act of 2d of August, 1813, ch. 55., expressly extends the liability under the bond, to the due collection and payment of all moneys  accruing from the duties laid by these acts. So that there is no doubt that, as to bonds subsequently given, the language of the condition is to receive an interpretation which shall secure the fidelity of the Collector under all these acts. The Collector, whose bond is in question, was appointed by the President, on the 11th of November, 1813, and, by the terms, of his commission, he was to hold his office during the pleasure of the President, \"and until the end of the next session of the Senate of the United States, and no longer.\" The bond in question was given by the Collector, and by the defendants, as his sureties, on the 4th of  December, of the same year; and it follows, in its terms, the requirements of the act of Congress. On the 24th of January, 1814, the President, with the advice and consent of the Senate, reappointed the party Collector, etc.; and by his new commission, he was to hold his office \"during the pleasure of the President of the United States for the time being.\" No new bond was taken under this commission. Under these circumstances, the District Judge held, that the liability of the sureties was strictly confined to the duties and obligations  created by the acts passed antecedent to the date of the bond. And we are of opinion that this is the true construction of the condition of the bond. There is nothing in the original act, under which the appointment was made, which contemplates a permanent and continuing liability for all duties under all laws which might be subsequently passed. In its terms, the condition, as expounded by the other parts of the act, had a principal reference to the assessments of direct taxes; and it is extended farther in its operation, only by the express and positive directions of the act of 2d of August, 1813, ch. 55. s. 1. To this extent, therefore, it may well be of force; but to go beyond it, would be to exceed the legislative declaration, and create a general, where the act had fixed a limited, responsibility. If the argument on behalf of the Government were correct, the provision, so solicitously placed in this last act, was wholly unnecessary; for the liability would expand with the new duties imposed by every successive act of the Legislature. But the act itself  furnishes no ground for such an exposition; and we do not feel ourselves at liberty to give to contracts of  this sort further efficacy than the laws and the parties must have had in their contemplation. \nThis point, however, becomes of comparatively small importance in the cause, if another, which has been argued in this connexion, cannot be maintained. We allude to the question as to the duration and force of the original commission of the Collector. Strictly speaking, this question does not arise upon the present record. For, although the Court below decided, that, in point of law, both commissions constituted but one continuing appointment, the second commission operating only as a confirmation of the first, yet, as the verdict was found for the defendants on another ground, and no exception was taken by them, it is not matter of error which can be assigned upon the present occasion. But, as it is manifest that the same question must arise upon any subsequent trial, if there should be a reversal of the judgment, and will form a most important, and, perhaps, decisive, ground of argument; and as all the parties are desirous of our opinion, on this point, and it has been fully argued from its bearing on the other points in the cause, and might have been material, if our decision on the  first point had been different, we have no hesitation in declaring our opinion, that the decision of the Court below was founded in mistake. \n The act under which this appointment was made, authorizes the President, in the recess of the Senate,  to make appointments, by granting commissions, which shall expire at the end of their next session. The first commission is, as has been already stated, in conformity to this provision of the act, and is, by express terms, limited to continue to the \"end of the next session of the Senate, and no longer.\" It follows, therefore, both by the enactment of law and the form of the grant, that the first commission must have expired of itself at that period; and, as the next session of the Senate ended in April, 1814, that is the utmost extent to which it could reach. The bond in question was given with express reference to this commission; and its obligatory force was, consequently, confined to acts done while that commission had a legal continuance, and could not go beyond it. And here would have been the natural termination of the liability. But, in the mean time, a new appointment was made by the President, with the advice  and consent of the Senate; and as soon as that was accepted by the Collector, it was a virtual superseding and surrender of the former commission. The two commissions cannot be considered as one continuing appointment, without manifest repugnancy. The commissions are not only different in date, and given under different authorities and sureties, but they are of different natures. The first is limited in its duration to a specified period; the second is unlimited in duration, and during the pleasure of the President. If the latter operated merely as a confirmation of the former, then it confirmed its existence only during the original period fixed by the law. But  such an effect is not pretended, and would be irreconcilable with the terms and intent of the commission. It has been suggested, that the practice of the Government has been, to consider such commissions as one continuing commission. But whatever weight the practice of the Government may be entitled to, in cases of doubtful construction, it can have no influence to change the clear language of the law. In short, if the nomination to, and approval by the Senate, was a mere confirmation, and not equivalent  to a new appointment, there was no necessity for the second commission; and yet, the argument supposes, that it could not be dispensed with; for if no commission had been issued, the first, by its own limitation, would have expired. \nThen, as to the point of laches, we are of opinion that the charge of the Court below, which supposes that laches will discharge the bond, cannot be maintained as law. The general principle is, that laches is not imputable to the Government; and this maxim is founded, not in the notion of extraordinary prerogative, but upon a great public policy. The government can transact its business only through its agents; and its fiscal operations are so various, and its agencies so numerous and scattered, that the utmost vigilance would not save the public from the most serious losses, if the doctrine of laches can be applied to its transactions. It would, in effect, work a repeal of all its securities. On the other hand, the mischiefs to the agents and their sureties would be scarcely less tolerable. For if, where the laws, as in the  present instance, require quarterly accounts and settlements, a mere omission to account is to be deemed a breach  of the bond, for which a suit must be immediately brought, upon the peril of loss from imputed laches; the Collectors and their sureties would be oppressed with the most expensive and vexatious litigation; and their whole real estate, which by law is subjected to a lien, upon the commencement of a suit, would be perpetually embarrassed in its transfers. This consideration of public or private inconvenience, is not to overrule the settled principles of law, but it is certainly entitled to great weight, where a new doctrine is to be promulgated. It is admitted, that mere laches, unaccompanied with fraud, forms no discharge of a contract of this nature, between private individuals. Such is the clear result of the authorities. Why, then, should a more rigid principle be applied to the government? a principle which is at war with the general indulgence allowed to its rights, which are ordinarily protected from the bars arising from length of time and negligence? It is said, that the laws require, that settlements should be made at short and stated periods; and that the sureties have a right to look to this as their security. But these provisions of the law are created by the Government  for its own security and protection, and to regulate the conduct of its own officers. They are merely directory to such officers, and constitute no part of the contract with the surety.The surety may place confidence in the agents of the Government, and rely on their fidelity in office; but he has of this the same means  of judgment as the Government itself; and the latter does not undertake to guaranty such fidelity. No case has been cited at the bar, in support of the doctrine, except that of The People v. Jansen, in 7 Johns. Rep. 332. In respect to that case, it may be observed, that it is distinguishable from the present in some of its leading circumstances. But if it were not, we are not prepared to yield to its authority. It is encountered by other authorities, which have been cited at the bar; and the total silence in the English books, in a case of so frequent occurrence, affords strong reason to believe, that it never has been supposed, that laches would be fatal in the case of the Government, where it would not affect private persons.Without going more at large into this question, where of opinion, that the mere laches of the public officers constitutes no  ground of discharge in the present case. \nThe last ground respects the manner in which the Court below laid down the law respecting the appropriation of payments. In our opinion, there is no error in the charge on this point. The general doctrine is, that the debtor has a right, if he pleases, to make the appropriation of payments; if he omits it, the creditor may make it; if both omit it, the law will apply the payments, according to its own notions of justice. It is certainly too late for either party to claim a right to make an appropriation, after the controversy has arisen, and a fortiori at the time of the trial. In cases like the present, of long and running accounts, where debits and credits are perpetually occurring,  and no balances are otherwise  adjusted than for the mere purpose of making rests, we are opinion, that payments ought to be applied to extinguish the debts according to the priority of time: so that the credits are to be deemed payments pro tanto of the debts antecedently due. \nUpon the whole, it is the opinion of the Court, that for the error of the District Court, on the question of laches, the judgment ought to be reversed, and a  venire facias de novo awarded, with directions, also, to allow the parties liberty to amend their pleadings. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the Court, and, after stating the case, proceeded as follows: \nSeveral preliminary questions have been argued, which must be disposed of before the Court can entertain any question upon the merits of these claims; and if disposed of one way, they put an end to the controversy. \nIn the first place, it is asserted, that Mr. Burke is a malae fidei claimant, entitled to no favour whatever; and by reference to the original  proceedings, will be found a party to the wrongful capture and detention of the property. And the first question, therefore, that arises, is, whether upon this appeal the Court can look into those proceedings for the purpose of ascertaining the guilt or innocence of the claimant? The principle  laid down in the case of Rose v. Himely, (5 Cranch, 313.) that upon an appeal from a mandate, nothing is before the Court but the proceedings subsequent to the mandate, is undoubtedly correct in the sense in which that expression was used, with reference to the doctrine of that case. Whatever had been formerly before the Court, and was disposed of by its decree, was considered as finally disposed of; and the question of interest raised upon the execution of the mandate in that case, was in that predicament. But upon all proceedings to carry into effect the decree of the Court, the original proceedings are always before the Court, so far as they are necessary to determine any new points or rights in controversy between the parties, which were not terminated by the original decree. The Court may, therefore, inspect the original proceedings, to ascertain the merits or demerits of the parties, so far as they bear on the new claims, and must decide upon the whole examination what its duty requires. In the present case, it is impossible to separate the stipulation from the other proceedings. It is unintelligible without reference to them. The Court must inspect them, to guide it in  its future acts, and to enable it to carry into effect the decree of the Supreme Court. That  decree restores the property generally as claimed by the libellant; but what that property is, in what predicament it is, and what are the means by which it is to be restored, must be ascertained, before the Court can institute any farther proceedings. \nAnother preliminary question is, whether the subject matter of these claims is, in this stage of the cause, open for discussion. All the claims of Mr. Burke might certainly have been brought forward and insisted upon in the original proceedings. If his right to the property was not established, still he might be entitled to equitable deductions for meliorations or charges; and if these claims were favoured by the Court, the decree of restitution would have  been subject to these deductions. They would then have constituted a lien upon the property, and the Circuit Court must have enforced it. But no such claims were insisted upon in the written allegations, or even viva voce at the hearing; the omission was voluntary, and the decree of restitution passed in the most absolute and unconditional form. The consequences  of now admitting them to be brought before this Court by appeal, would be most inconvenient and mischievous in practice. It would encourage the grossest laches and delays. The party might lie by through the whole progress of the original cause, until a final decree, holding the real owner out of his property, and securely enjoying, as in this case, the profits, and then start new claims for future investigation, which would protract the final decision to an indefinite period. Such a  course would have a tendency justly to bring into disrepute the administration of justice, and inflict upon the innocent all the evils of expensive litigation. We think, therefore, that upon principle, every existing claim which the party has omitted to make at the hearing upon the merits, and before the final decree, is to be considered as waived by him, and is not to be entertained in any future proceedings; and when a decree has been made, which is in its own terms absolute, it is to be carried into effect according to those terms, and excludes all inquiry between the litigating parties as to liens or claims, which might have been attached to it by the Court, if they had been previously  brought to its notice. These remarks apply as well to the claim for freight, as the other items. Mr. Burke, as the importer of the goods, would, if the carrier ship had belonged to a mere stranger, have been directly responsible for the freight, and would have been entitled to bring it forward in the original suit as an equitable charge. It can make no difference in his favour, that he was, as he now asserts himself in his petition to be, a joint owner of the vessel with Mr. Forbes. Whether, as between himself and his co-proprietor, he would be liable to pay any freight, does not appear, for the petition is naked of any proofs, and he may have occupied only his own portion of the vessel. Nor is there any evidence adduced, that Mr. Forbes was really a joint owner; and in his original claim, Mr. Burke expressly asserts the vessel to be his own, in terms which imply a sole proprietary interest,  But without relying on these circumstances, it is sufficient to say, that it is too late for Mr. Burke in any way to assert the claim for freight, and if payable at all, he must now bear the burthen occasioned by his own laches. \nThis view of the subject, makes it wholly unnecessary  to enter upon the inquiry, how far Mr. Burke is an innocent possessor of the property in controversy, and, as such, entitled to equitable deductions and charges. The claim, whether a lien, or a mere equity, has been totally displaced by the unconditional decree of restitution. \nThe same doctrine applies to the claim of interest made by the libellant. The question was involved in the original proceedings, and the libel itself contains an express prayer for damages, as well as for restitution of the property. Damages are often given by way of interest for the illegal seizure and detention of property; and, indeed, in cases of tort, if given at all, interest partakes of the very nature of damages. The ground now assumed is, that interest ought to be given since the date of the stipulation, or, at all events, since the decree of restitution, because the claimant has had the use of the property during this period, and it is but a just compensation to the libellant for the delay and loss he has sustained by the dispossession. It might have been just and proper for the Court below to have refused the delivery of the property upon stipulation, unless upon the express condition, that the  same should carry interest, if so decreed by the Court. And in cases of this nature, it appears  to us highly proper that such a clause should be inserted in the stipulation. But the present stipulation contains no such clause, and, therefore, so far as respects the principal and sureties, to decree it upon that, would be to include a liability not justified by its terms. It is true, that interest might be decreed against Mr. Burke personally, not as the stipulator, but as the claimant in the cause; but then it would be by way of damages for the detention or delay. In this view, it was a matter open for discussion upon the original appeal; and no interest having been then asked for or granted, the claim is finally at rest. What was matter formerly before the Court cannot again be drawn into controversy. \nWe have considered these questions thus far upon principle. But they have been already decided by this Court. The case of Rose v. Himely, (5 Cranch's Rep. 313.) is directly in point. The authority of that case has not been in the slightest degree impugned, and, without overthrowing it, this Court could not now entertain the present claims. We are not disposed to  doubt the entire correctness of that adjudication. \nThe question in regard to the duties, admits of a very different consideration. The decree of restitution awards to the libellant the whole property in controversy, and nothing more. Upon the face of the proceedings it appears, that the stipulation was taken for the appraised value of the property, including the duties paid to the United States by the claimant. The amount of  those duties never constituted any part of the property of the libellant, or those for whom he acts. Neither he nor they have ever incurred the charge, or made the advance. And if it is now given to the libellant, it is a sum beyond the value of the property, which has been paid upon the importation without his aid, and without any injury to him or his principal. It is true, that in the hands of the claimant the property may be assumed to be worth the whole appraised value; but that value includes not only the value of the property per se, but the amount of the duties already paid by the claimant. In receiving it, the claimant has received no more of the libellant's property than the sum, deducting the duties already paid. It has been said,  that the property was wrongfully brought to the United States by the claimant, and, therefore, he is not entitled to favour. This might be a satisfactory answer to any attempt of the claimant to charge the libellant with the duties as an equitable charge. But no such claim has been asserted;  and if the Court were now to decree to the libellant the whole sum in the stipulation, the decree in effect would require the claimant to pay the duties to the libellant, as well as to the government. The original decree purports no such thing. It is confined to simple restitution of the property; and the proceeds substituted for that, are the net sum, deducting the duties, the market price, or appraised value, being compounded of the original value and the duties. These observations are confined to a case, where the error in the  stipulation is apparent upon the fact of the proceedings; and it would be dangerous, as well as improper, to entertain the question, where the evidence must be sought from extrinsic sources. \nUpon the whole, the decree of the Circuit Court is affirmed as to all things, except the disallowance of the claim for the deduction of duties, and as  to that, it is reversed; and it is ordered that the libellant have restitution of the net appraised value, deducting the duties; and that as to so much thereof as has not been already paid to him, interest be allowed to him at the rate of six per cent. per annum, from the time of the allowance of the present appeal, unto the final execution of this decree, and that the stipulation stand security therefor. \nDECREE. This cause came on, &c. on consideration whereof, it is ORDERED, ADJUDGED and DECREED, that the decree of the Circuit Court in the premises be and hereby is affirmed, except in disallowing the item stated in the petition of the claimants, paid for duties, and except so far as is otherwise directed by this decree; and this Court, proceeding to pass such decree as the Circuit Court ought to have given, do hereby further ORDER, ADJUDGE and DECREE, that the said items of duties, amounting to the sum of nineteen hundred and forty-five dollars and fourteen cents, be deducted from the appraised value of the property, as ascertained in the stipulation; and that the libellant have restitution f the residue of the appraised value; and that upon so much of the  said residue  as has not already been paid to the libellant, interest at the rate of six per centum per annum be allowed to the libellant, from the time of the present appeal until this present decree shall be executed upon mandate by the Circuit Court, together with all the costs of suit on the present as on the original appeal; and that the said stipulation do stand as security therefor; and that the Circuit Court do award execution upon the said stipulation, for the amount of principal and interest so ordered, adjudged and decreed. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the Court, and, after stating the case, proceeded as follows: \nThe principal question arising in this case is, what estate Mary, the wife of James Page, took under his will; whether an estate for life, or in fee. If the former,  then the judgment of the Circuit Court is to be affirmed; if the latter, then it is to be reversed. \nSome reliance has been placed upon the will of John Page, the father, to show the predicament of the land in the possession of his son James, and thence to draw aid in the construction of the will of the latter.Without doubt, James took a fee in the moiety devised to him by his father, (which includes the land in controversy,) for it is given \"to him, his heirs and assigns.\"  But, it is argued, that the land came into his hands charged with the legacies payable to his sisters Hannah and Abigail, and as these legacies were not payable until they came of age, they remained a charge upon the land in the hands of James at his death. Whether the sisters were of age at his death or not, or had received their legacies or not, does not appear from the statement of facts, and nothing can be presumed either way. But what is there to show that these legacies were a charge on the land? The direction in the will is, that \"James do pay Hannah and Abigail the said sum of 50 pounds each when they come of age;\" but it is not said or implied any where in the will, that these legacies shall  be a charge on the land. The direction is personal, and must be a charge on the person only, unless it can be shown, from other parts of the will, that the testator intended a charge on the land. A testator may devise lands with a view to legacies, and make them a charge on the land, or on the person of the devisee, or on both; 36 and whether a particular legacy be in either predicament, must depend upon the language of the will. In the large class of cases which have been decided on this subject, and which has principally arisen from questions respecting the quantity of the estate taken by the devisee, the ground assumed has been, that the will must speak expressly, or by fair implication,  that the testator intends the legacies to be a charge on the land. When, therefore, the testator orders legacies to be paid out of his lands, or where, subject to legacies, or after payment of legacies, he devises his lands, Courts have held the land charged with the legacies upon the manifest intention of the testator. But here there is no such language. There is no direction that the devisee shall pay the legacies out of the land. The charge is personal; and the case falls  directly within the authority of Reeves v. Gower, in 11 Mod. Rep. 208. \nWe may, then, proceed to the consideration of the will of James Page, inasmuch as that of his father affords no light to guide us in the construction. The grounds mainly relied on to establish that Mary, the wife of the testator, took a fee, are, that the legacies given to his sisters are a charge on his real estate in the hands of his widow; that all the rest of his \"lands and tenements,\" in possession, reversion, or remainder, are given; that the devise is subject to the proviso, \"that she has no lawful issue,\" which is not a condition merely, but a substitution for an estate intended for his children; and, finally, that the lands, &c. are devised to her \"freely to be possessed and enjoyed,\" which words are best satisfied upon the supposition of a fee. \nBefore proceeding to the particular examination of the legal effect of these different clauses in the will, it is necessary to state that, where there are no words of limitation to a devise, the general rule of law is, that the devisee takes an  estate for  life only, unless, from the language there used, or from other parts of the will, there is a plain intention to give a larger estate. We say a plain intention, because, if it be doubtful or conjectural upon the terms of the will, or if full legal effect can be given to the language without such an estate, the general rule prevails. It is not sufficient that the Court may entertain a private belief that the testator intended a fee; it must see that he has expressed that intention with reasonable certainty on the face of his will. For the law will not suffer the heir to be disinherited upon conjecture. He is favoured by its policy; and though the testator may disinherit him, yet the law will execute that intention  only when it is put in a clear and unambiguous shape. \nIn the present case, there is no introductory clause in the will, expressing an intention to dispose pose of the whole of the testator's estate. Nor is it admitted, that such a clause, if it were inserted, would so far attach itself to a subsequent devising clause, as per se to enlarge the latter to a fee, where the words would not ordinarily import it. Such a doctrine would be repugnant to the modern  as well as ancient authorities. The cases of Frogmorton v. Wright, (2 W. Bl. 889.) Right v. Sidebottom, (Dougl. 759.) Child v. Wright, (8 D. & E. 64.) Denn v. Gaskin, (Cowper, 657.) Doe v. Allen, (8 D. & E. 497.) and Merson v. Blackmore, (2 Atk. 341.) are full to the point. The most that can be said is, that where the words of the devise admit of passing a greater interest than for life, Courts will lay  hold of the introductory clause, to assist them in ascertaining the intention. The case of Hogan v. Jackson, (Cowper, 297.) admits this doctrine. That case itself did not turn upon the effect of the introductory clause, but upon the other words of the will, which were thought sufficient to carry the fee, particularly the words, \"all my effects, both real and personal.\" The case of Grayson v. Atkinson, (1 Wils. Rep. 333.) admits of the same explanation; and, besides, the inheritance was there charged with debts and legacies. \nThere is no doubt, that a charge on lands may be created by implication, as well as by an express clause in a will. But then the implication must be clear upon the words. Where is there any such implication in the present will? The testator has  not disposed of the whole of his personal estate, which is the natural fund for the payment of lagacies; non constat, how much or how little he left. For aught that appears, the personal estate may greatly have exceeded all the legacies; and if it did not, that would be no sufficient reason to charge them on the land. It is not a sound interpretation of a will, to construe charges which ordinarily belong to the personalty, to be charges on the realty, simply because the original fund is insufficient. The charge must be created by the words of the will. Now, from what words are we to infer such a charge in this case? It is said, from the words \"all the rest;\" but, \"all the rest\" of what? Certainly not of the personal estate, because the words immediately  following are, \"of my lands and tenements,\" which exclude the personalty. The words, \"all the rest,\" have then no appropriate meaning in reference to the personal estate, for the connexion prohibits it. Can they then be supposed to import \"all the rest of my lands, &c. after payment of the legacies,\" and so be a charge on them? This would certainly be going much farther than the words themselves authorize, and much  farther than any preceding clause requires or justifies. A charge of legacies on land would not be a devise of the real estate in the ordinary understanding of men, nor in the contemplaton of law. It would make them a lien on, and payable out of, the land; but it would still be distinguishable from an estate in the land. But it is sufficient for us to declare, that we cannot make these legacies a charge on the land, except by going beyond, and not by following, the language of the will; we must create the charge, and not merely recognise it. The case of Markant v. Twisden, (Gilb. Eq. Rep. 30.) was much stronger than the present. There, the testator had settled all his freeholds on his wife for life, as a jointure; and by his will he bequeathed several legacies, and then followed this clause, \"all the rest and residue of my estate, chattels, real and personal,\" I give to my wife, who I make sole executrix. But the Court held, that the wife did not take the reversion of the jointure by the devise, for as the testator had not in the preceding part of the will devised any  real estate, there could be no residue of real estate, on which the clause could operate. \nBut, admitting  that the present legacies were a charge on the lands of the testator, this would not be sufficient to change the wife's estate into a fee. The clearly established doctrine on this subject is, that if the charge be merely on the land, and not on the person of the devisee, then the devisee, upon a general devise, takes an estate for life only. The reason is obvious. If the charge be merely on the estate, then the devisee (to whom the testator is always presumed to intend a benefit) can sustain no loss or detriment in case the estate is construed but a life estate, since the estate is taken subject to the encumbrance. But if the charge be personal on the devisee, then if his estate be but for life, it may determine before he is reimbursed for his payments, and thus he may sustain a serious loss. All the cases turn upon this distinction. Canning v. Canning, (Moseley's Rep. 240.) Loveacres v. Blight, (Cowp. Rep. 352.) Denn, ex dem. Moor, v. Mellor, (5 D. &. E. 558. and 2 Bos. & Pull. 227.) Doe v. Holmes, (8 D. & E. 1.) Goodtitle v. Maddem, (4 East's Rep. 496.) all recognise it. And Doe & Palmer v. Richards, (3 D. & E. 356.) proceeds upon it, whatever exception may be thought to lie  to the application of it in that particular case. We are then of opinion, that there is no charge of the present legacies on the land; and, if there were, no inference could be drawn from this circumstance to enlarge  the estate of the wife to a fee, since they are not made a personal charge upon her. \nThe next consideration is, whether the words, \"all the rest of my lands and tenements,\" &c. import a fee. In the first place, this clause is open to the objection, that it is not a residuary clause in the will, for no estate in the lands is previously given, and consequently, if it operates at all on the fee, it gives the entire inheritance, and not a mere residuum of interest. And if a devise of \"all the rest and residue of lands,\" in a clear residuary clause, was sufficient to carry a fee by their own import, it would follow, that almost every will containing a residuary clause, would be construed, without words of limitation, to pass a fee. Yet, the contrary doctrine has most assuredly been maintained. In Canning v. Canning, (Moseley, 240.) the testator devised as follows: \"all the rest, residue and remainder of my messuages, lands, &c. after my just debts, legacies,  &c. are fully satisfied and paid, I give to my exeuctors in trust for my daughters;\" and the question was, whether these words passed an estate in fee, or for life, to the executors. The Court  decided that they passed a life estate only. The authority of this case was fully established in Moor v. Denn, ex dem. Mellor, (2 Bos & Pull. 247.) in the House of Lords, where words equally extensive occurred; and the authority of this last case has never been broken in upon. \nThe cases which seems at first view to interfere with an control this doctrine, will be  found upon close examination to turn on other points. Thus, in Palmer v. Richards, (3 D. & E. 356.) where there was a devise of \"all the rest and residue of the testator's lands,\" &c. his legacies and personal expenses being thereout paid. Lord Kenyon admitted, that the words, \"rest and residue,\" &c. were not sufficient to carry a fee; but he relied on the subsequent words, \"legacies, &c. being thereout paid,\" which he considered as creating a charge upon the lands in the hands of the devisee, of such a nature as to carry a fee. In this opinion the Court concurred; and, though this case has been since questioned,  on its own circumstances, its general doctrine remains untouched.So, in the case of Norton v. Ladd, (1 Lutw. 755. 759.) where the devise was to A. C., his sister, for life, of all his lands, &c., after the decease of his mother; them to J. C., his brother, \"the whole remainder of all those lands and tenements,\" given to A. C. for life, if he survived her; and if not, then, \"the whole remainder and reversion of the said lands, &c. to his sisters, C. E., and A., and to their heirs for ever;\" the Court held, that a fee passed to J. C. under the devise, upon the ground, that taking the whole will, the words \"whole remainder\" properly referred to the estate or interest of the testator undisposed of to his sister, A. C.; and that the words could not relate to the quantity of lands, which the testator intended to devise to his brother J. C., for he had plainly devised all his lands to his sister, A. C., and all the lands he had devised to A. C. he had devised to J. C.  so that the words naturally and properly had relation to the quantity of estate which the testator intended to give J. C., that is, all the remainder, which is the same in effect as all his estate. If the words were  merely to be referred to the lands he intended to devise to J. C., they would be ineffectual, for it was impossible that he could have any remainder of lands, when he had devised all to A. C.; so that they must refer to the estate in the lands. Such is the substance of the reasoning of the Court; upon which it is unnecessary to say more, than that the case turned upon the supposed incongruity of construing the testator's words otherwise than as importing the whole remaining interest in the lands, upon all of which lands a life estate was already attached. And the final devise over, which carried a plain fee to the sisters, being a substitution for the former estate to J. C., in the event of his death before the testator, greatly fortifies this interpretation. This case has been much relied on by the plaintiff in error upon the present argument; but it is very distinguishable from that before the Court. There, a life estate was given, and the terms, \"whole remainder,\" had a natural meaning, as embracing the whole remaining interest. Here, on the contrary, there is no preceding interest given in the real estate, and therefore the terms, \"all the rest,\" are not susceptible of that  sense. There, a substituted estate, in fee, was clearly given; here no clause occurs, leading necessarily to such a conclusion. All that the case in Lutwyche, taken as the fullest authority,  establishes, is, that the words \"rest and residue\" may, in certain connexions, carry a fee. 37 This is not denied or doubted; but then the words attain their force from their juxta-position with other words, which fix the sense in which the testator has used them. In Farmer v. Wise, (3 P. Wms. 294.) the residuary clause was of \"all the rest of his estate, real and personal,\" and the word \"estate\" has long been construed to convey a fee. This Court have carried the doctrine still farther, and adjudged a devise of \"all the estate called Marrowbone,\" to be a devise of the fee, construing the words, not as words merely of local description, but of the estate or interest also in the land. Lambert's lessee v. Paine, (3 Cranch's Rep. 79.) Murray v. Wise, (2 Vern. Rep. 564.) S.C. (Prec. in Ch. 246.) contained a devise, after a legacy, of all the residue of his real personal estate, and rests on the same principle, as do Beachcroft v. Beachcroft, (2 Vern. Rep. 690.) and, Ridart v. Paine,  (3 Atk. Rep. 486.) In Willows v. Lydcott, (Carth. Rep. 50. 2 Vent. 285.) the residuary devise was to A. and her assigns for ever, which latter words indicate a clear intention to pass a fee. In Grayson v. Atkinson, (1 Wils. Rep. 333.) there was an introductory clause, purporting the intention of the testator to dispose of all his temporal estate, then several legacies were given, and a direction to A. to sell any part of his real and  personal estate for payment of debts and legacies; and then the will says, as to the rest \"of my goods and chattels, real and personal, moveable and immoveable, as houses, gardens, tenements, my share in the copperas works, &c. I give to the said A.\" Lord Hardwicke, after some hesitation, held it a fee in A., relying upon the introductory clause, and the charge of the debts and legacies on the land, and upon the language of the residuary clause. Whatever may be the authority of this decision, it certainly does not pretend to rest solely on the residuary clause: and its containing a mixed devise of real and personal estate, was not insignificant in ascertaining the testator's intention. \n It may also be admitted, that the words \"lands and tenements,\" do sometimes carry a fee, and are not confined to a mere local description of the property. But, in their ordinary sense, they import the latter only; and when a more extensive signification is given to them in wills, it arises from the context, and is justified by the apparent intention of the testator to use them in such extensive signification. The cases cited at the bar reach to this extent, and no farther. Their authority is not denied; but their application to the present case is not admitted. \nWe may, then, take it to be the general result of the authorities, that the words, \"all the rest of my lands,\" do not, of themselves, import a devise of the fee; but, unless aided by the context, the devisee, whether he be a sole or a residuary  devisee, will, if there be no words of limitation, take only a life estate. \n We next come to the effect of the words, \"in possession, reversion, or remainder,\" and, as incidental thereto, the effect of the word \"tenements.\" That the term \"remainder\" may, in some cases, connected with other clauses, carry a fee, has been already admitted, and was the very point  in 1 Lutw. 755. The same is true in respect to the word \"reversion.\" This is affirmed in the case of Bailis v. Gale, (2 Ves. Rep. 48.) where the devise was, \"I give to my son, C. G., the reversion of the tenement my sister now lives in, after her decease, and the reversion of those two tenements now in the possession of J. C.\" Lord Hardwicke, in pronouncing judgment, relied on the legal signification of the word \"reversion,\" and that its use by the testator was fairly to be inferred to be in its legal sense, as the whole right of revertor; and he adverted to the circumstance, that the devise was to a child, to whom it could scarcely be presumed the parent intended to give merely a dry reversion, or to split up his interest in it into parts. But, in that case, as in 1 Lutw. 755. there were antecedent estates created or existing in the land; and the devise was of a \"reversion,\" and not, as in this case, of \"all the rest of my lands, &c. in reversion,\" &c. The land now in controversy was not held by the testator as a reversionary estate, but as an estate in possession; and in no way, therefore, can the doctrine help the present case. But there are cases, which are contrary to Bailis  v. Gale, and some-what  clash with its authority. In Peiton v. Banks, (1 Vern. Rep. 65.) the case was, that a man devised his lands to his wife for life, and he gave the reversion to A. and B., to be equally divided betwixt them. The Court decided, that A. and B. took an estate as tenants in common for life only. And Sergeant Maynard stated a similar decision to have been made about twenty years before that time. It is not material, however, to enter upon the delicate inquiry, which of these authorities is entitled to most weight, because the present case does not require it. \nIn respect to the word \"tenements,\" it is only necessary to observe, that is has never been construed in a will, independently of other circumstances, to pass a fee. In Canning v. Canning, (Moseley's Rep. 240.) and Doe, ex dem, Palmer, v. Richards, (3 D. & E. 356.) and Denn, ex dem. Moor, v. Miller, (5 D. & E. 558.) S.C. (2 Bos. & Pull. 247.) the same term occurred, as well as the broader expression, \"hereditaments;\" in neither case was the term \"tenement,\" supposed to have any peculiar effect; and the argument, attempting to establish a fee upon the import of the word \"hereditaments,\" even in  a residuary clause, was deliberately overruled by the Court. The same doctrine was held in Hopwell v. Ackland, (Salk. Rep. 239.) \nIf, then, it is asked, what interpretation the Court put upon the words \"all the rest,\" in connexion with \"lands and tenements?\" the answer is, that no definite meaning can, in this will, be  annexed to them. It is our duty to give effect to all the words of a will, if, by the rules of law, it can be done. And where words occur in a will, their plain and ordinary sense is to be attached to them, unless the testator manifestly applies them in some other sense. But, if words are used by him, which are insensible in the place where they occur, or their common meaning is deserted, and no other is furnished by the will, Courts are driven to the necessity of deeming them as merely insignificant or surplusage, and to find the true interpretation of the will without them. In the present case, the words, \"all the rest of my lands and tenements,\" stand wholly disconnected with any preceding clause. There is nothing to which \"the rest\" has relation, for no other devise of real estate is made. We have no certain guide to the testator's intention in  using them.We may indulge conjectures; but the law does not decide upon conjectures, but upon plain, reasonable, and certain expressions of intention found on the face of the will. \nThe next clause is, \"provided she has no lawful issue.\" The probable intention of this proviso was, \"provided she had no lawful issue\" by me. Men do not, ordinarily, look to remote occurrences in the structure of their wills, and especially unlearned men. The testator was young, and his wife young, and it was natural for them not to despair of issue, although, at the time of the will, he was in ill health. In case of leaving children, posthumous or otherwise, he might  think, that the gift to his wife of the whole of his real estate, would be more than conjugal affection could require, or parental prudence justify. In that event, he might mean to displace the whole estate of his wife, and to leave her to her dower at the common law, and the children to their inheritance by descent. This interpretation would afford a rational exposition of the clause, and, perhaps, ought not to be rejected, although there is no express limitation in the words.In this view, it is not very material, whether  it be considered as a condition precedent or subsequent, though the general analogies of the law would certainly lead to the conclusion, that it was in the latter predicament. But even in this view, which is certainly most favourable to the plaintiffs in error, it falls short of the purposes of the argument. As a condition, in the event proposed, the prior estate to the wife would be defeated; but there would be no estate devised to the issue. They would take by descent as heirs, and not by devise. It would be going quite too far to construe mere words of condition to include a contingent devise to the issue; to infer from words defeating the former estate, and intent to create a new estate in the issue, and that estate a fee, and a clear substitute for the former. No Court would feel justified, upon so slender a foundation, to establish so broad a superstructure. Nor can any intention to give a fee to the wife be legally deduced from the proviso, in any way of interpreting the terms, because it is as perfectly consistent with the intention  to defeat a life estate, as a fee in the whole of the lands. The testator, with a limited property, might justly think it too  much to take from his own issue the substance of their inheritance during a long minority, in favour of a wife, who might live many years, and form new connexions. In such an event, leaving her to the general provision of law, as to dower, would not be unkindness or injustice. But, it is sufficient to say, that the words are too equivocal to enable the Court to  ascertain from them the clear purpose of establishing a fee. And if the proviso refers to any lawful issue by any other husband, then it must be deemed a condition subsequent; and in the events which have happened, the estate of the wife, whether it be for life or in fee, has been defeated, and the plaintiffs in error are not entitled to reverse the present judgment. Quacunque via data est, the proviso cannot help the case. \nIt remains now to consider the succeeding clause of the will, in which the testator repeats his devise, and gives to his wife \"all his lands,\" &c. dropping the words \"the rest,\" and, therefore, showing that he did not understand them as having any other or stronger import than the will presented without them. Then follow the words, \"by her freely to be possessed and enjoyed;\" upon which  great stress has been laid at the bar. If these words had occurred in a will devising an estate for years, or for life, or in fee, in express terms, they would not, probably, have been thought to have any distinct auxiliary signification, but to be merely a more full annunciation  of what the law would imply. Occurring in a clause where the estate is undefined, they are supposed to have a peculiar force; so that, \"freely to possess and enjoy,\" must mean to possess and enjoy without any limitation or restriction as to estate or right. The argument is, that a tenant for life is restricted in many respects. She can make no permanent improvements or alterations; she is punishable for waste, and is subject to the inquisition of the reversioner. But, if this argument is admitted, it proves, not that a fee is necessarily intended, but that these restrictions on the life estate ought to be held to be done away by the words in question. They admit of quite as natural an interpretation, by being construed to mean, free of encumbrances; and, in this view, are just as applicable to a life estate as a fee. Perhaps the testator himself may have entertained the notion, that the  legacies in his will, or that of his father, were encumbrances on the estate; and if so, the words would indicate an intention, that the wife should be disencumbered of the burthen. But in what way are we to reconcile the argument deduced from this clause, with that drawn on the same side from the preceding proviso? How could the testator intend, that the wife should \"freely possess and enjoy\" the lands in fee, when, in one event, he had stripped her of the whole estate, and that by a condition inseparably annexed as an encumbrance to her estate? We ought not to suppose that he intended to repeal the proviso under such a general phrase. The  case of Loveacres v. Blight, (Cowp. Rep. 352.) has been supposed to be a direct support of the argument in favour of a fee. In that case, the testator made the following devise: As touching such worldly estate wherewith it hath pleased God to bless me in this life, I give,\" &c. \"in the following manner and form: First of all, I give and bequeath to E. M., my dearly beloved wife, the sum of five pounds, to be paid yearly out of my estate, called G., and also one part of the dwelling house, being the west side, with as much wood craft,  home at her, as she shall have need of, by my executors hereafter named. I give,\" &c. \"unto my son, T. M., the sum of five pounds, to be paid in twelve months after my decease. I give unto my granddaughter E., the sum of five pounds, to be paid twelve months after my decease. Item, I give unto J. M., and R. M., my two sons, whom I made my -- and ordain my sole executors,\" &c. \"all and singular my lands and messuages, by them freely to be possessed and enjoyed alike.\" The question was, whether, by this clause, the sons took an estate for life, or in fee. The Court held, that they took a tenancy in common in fee. Lord Mansfield, in delivering the opinion of the Court, admitted, that if the intention were doubtful, the general rule of law must take place. But he laid stress upon the circumstance, that the estate was charged with an annuity to his wife, so that the testator could not mean by the word \"freely,\" to give it free of encumbrances. He thought the free enjoyment must, therefore, mean, free from  all limitations, that is, the absolute property of the estate. He also thought the introductory clause not unimportant; and that the blank after my was intended to  be filled with \"heirs;\" and it can scarcely escape observation, that it was a case where the sons of the testator were the devisees. These considerations may well lead to a doubt, whether Lord Mansfield intended to lay down any general principle of construction in relation to the words, \"freely to be enjoyed,\" &c. But, if he did, the subsequent case of Goodright v. Barron, (11 East's Rep. 220.) has manifestly interfered with its authority. In that case, there was an introductory clause, \"as touching such worldly estate wherewith it hath pleased God to bless me,\" &c.; and the testator then proceeded as follows: \"I give and bequeath to my brother T. D., a cottage house, and all belonging to it, to him, and his heirs, for ever, W. C. tenant. Also, I give and bequeath to my wife E., whom I likewise make my sole executrix, all and singular my lands, messuages, and tenements, by her freely to be possessed and enjoyed.\" The Court held, that the wife took an estate for life only; that the words, being ambiguous, did not pass a fee against the heir, but might mean free from encumbrances or charges, free from impeachment for waste; and that the introductory clause could not be brought down  into the latter distinct clause to aid it, though, if joined, it might have had that effect. The Court distinguished that case from the case before Lord Mansfield, because, in the latter, as the testator had already  encumbered the estate, the words must have meant to pass a fee, or they would have no meaning at all. Mr Justice Le Blanc added, that the words used were not inconsistent with a life estate only; and he distinguished between them and the words, \"freely to be disposed of,\" admitting that the latter would pass a fee. So that, taking both these cases together, the fair deduction is, that the words, \"freely to be possessed,\" &c. are too uncertain, of themselves, to raise a fee, but they may be aided by other circumstances. \nThe case before us is far less strong than either of the foregoing cases, for there is no introductory clause, showing an intention to dispose of the whole property, as there was both in Goodright v. Barron, and Loveacres v. Blight; nor is there any encumbrance created by the  testator on the land, which was the decisive circumstance that governed the latter. \nUpon the whole, upon the most careful examination, we cannot find a sufficient  warrant in the words of this will to pass a fee to the wife. The testator may have intended it, and probably did, but the intention cannot be extracted from his words with reasonable certainty; and we have no right to indulge ourselves in mere private conjectures. \nJudgment affirmed, with costs. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the Court. \nThis is an appeal from the Circuit Court for the District of Maryland, from proceedings had in that Court under the mandate of this Court in the original cause, which  is reported in 7 Wheat. Rep. 471. \nThe material facts are these: The original libel was against sundry quantities of gold and silver coin, and bullion, deposited by Daniels in the Marine Bank of Baltimore. A claim was interposed by one Nicholas Stansbury, asserting himself to be \"agent and attorney, in fact,\" of Daniels, on behalf of the latter, and claiming restitution of the property as lawfully captured in war by Daniels. Pending the proceedings in the Court below, Stansbury made application for the delivery of the property upon stipulation, and thereupon the Court ordered, that J. D. Daniels be permitted to draw for, and the President and Directors of the Marine Bank be suffered to pay to Daniels, the money in controversy, provided, that Daniels should enter into a stipulation in 23,000 dollars, with such surety or sureties as might be approved of by the libellant's proctors, to abide such further order or decree, either interlocutory or final, as might be made by the Court in the premises. The libellant's proctors approved of Stansbury, and one Thomas Sheppard. and one Henry Didier, jun. as sureties,  and they, accordingly, gave a stipulation for the amount \"for  J. D. Daniels, claimant.\" But Daniels himself was not a party to the stipulation. By a subsequent order of the Court, the money was delivered by the Marine Bank to Stansbury, who signed a receipt for the same as attorney for Daniels, upon a certificate of the deposit originally given by the Cashier of the Bank to Daniels, and by him delivered over to Stansbury. \nA decree of restitution having passed in the Supreme Court, after the mandate was brought into the Circuit Court, the libellant prayed that execution might issue against Daniels to enforce the performance of the decree, and that a monition, or other proper process, might issue against the sureties to the stipulation. To this course the proctor for the claimant objected, and the Court finally ordered admiralty process to issue against the stipulators, but refused to make any further order under the motion of the libellant. The case is now before us by appeal from that decision. \nSeveral points have been urged in the argument, upon which, in the present stage of the cause, it is not thought necessary to express any opinion. Assuming Daniels to be a party to the cause, in virtue of the claim made in his behalf by Stansbury,  it still remains to show, that the process of execution is, in the first instance, to be issued against him.He is not a party to the stipulation, and so far as any remedy is to be sought upon that, it lies exclusively against the  sureties, since he, as principal, has not, personally, or through the instrumentality of any agent, become bound by it. The remedy against him for the property, or its proceeds, must be sought solely upon the ground, that he has the actual or constructive possession of them in virtue of the delivery to his agent under the order of the Court below. If the property had remained in the custody of the Court, there is no pretence to say, that he would be liable for the restitution. It is the delivery to him, or to his authorized agent, which can alone give rise to any liability on his part, whether he be a party to the suit, or only a custodee of the property or its proceeds. In such cases, the usual proceeding in the admiralty is, not to award execution against the party, for that would preclude him from showing, in his defence, that he never had any actual or constructive possession, or that he was discharged from all liability. The proper course  is, to issue a monition to Daniels in the usual manner, upon the return of which he may appear and justify himself, and interpose such allegations on the merits as may bring all the matters fully before the Court for judgment. This is the constant practice of the admiralty; and the subsequent proceedings are to be according to the common usage, upon which it is unnecessary to comment. \nIt is, therefore, the opinion of this Court, that the Circuit Court was right in refusing to grant an execution against Daniels, under the circumstances, and that its decretal order ought to be  affirmed; but inasmuch as it appears, that the principal question between the parties has been, whether any process whatsoever could be awarded against Daniels, it is directed that the affirmation of the order be without prejudice to the award of a monition against Daniels in the common form of the admiralty. \nDECREE. This cause came on &c. on consideration whereof, it is ORDERED, ADJUDGED and DECREED, that the decree of the Circuit Court, refusing to issue an execution against John D. Daniels, as prayed for by the libellant in his  petition, be, and the same hereby is, affirmed, with  costs; without prejudice to the libellant, to apply to the said Circuit Court for a monition against the said John D. Daniels, in the premises, according to the usage of the admiralty, that being a process to which the libellant is entitled by law. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the  opinion of the Court. \nThis is a libel founded on the several acts of Congress for the prohibition of the slave trade, and contains various distinct allegations, and especially counts framed on the Slave Trade Acts of 1794, ch. 11. and 1800, ch. 205. It is unnecessary to enter upon a minute examination of the pleadings, because the whole case turns upon the question, whether in point of fact, the voyage was originally undertaken from the United States, or was undertaken by the claimant, Mr. Marino, from the island of Cuba, after a bona fide purchase made by him, altogether disconnected from the original enterprise. \nThe Plattsburgh was duly registered at Baltimore as an American vessel, owned by Messrs. Sheppard, D'Arcy, & Didier, jun. of that place, in October, 1817. She cleared out at the custom house under the command of Captain Joseph F. Smith, in December, 1819, having what is called an assorted cargo on board, on a voyage ostensibly for St. Thomas, in the West Indies, but in reality, for St. Jago, in the island of Cuba. Up to this period, the ownership remained upon the ship's papers wholly unchanged. But it is now asserted, that the shares of D'Arcy and Didier were purchased  by Sheppard for the sum of 6,000 dollars, and that the voyage was wholly undertaken on his account. The first remark which arises upon this state of the case is, how it should come to pass, if the purchase were bona fide, that the requisite alterations were not made  in the ship's papers, since, by the act of Congress, unless registered anew upon such sale, the vessel forfeits her American character? Sheppard, in his testimony, gives an extraordinary reason for the occurrence, declaring that he was insolvent at the time of the purchase, and so could not give the usual bond for the proper use and delivery up of the registery upon any future sale. Yet, according to his own showing, and that of the other part owners, he was, at this time, the owner of one half of the Plattsburgh, valued at 6,000 dollars, and of an interest in another vessel, valued at 4,000 dollars. Sheppard further states, that one of his inducements to purchase the Plattsburgh, was an offer made to him by one George Stark, (who became a conspicuous character in the subsequent proceedings,) to get for her 12,500 dollars in St. Jago de Cuba, Stark asserting that he was authorized to purchase a vessel at  that place. Accordingly, Sheppard determined to intrust Stark with the negotiation, and a bill of sale of the schooner was executed to Stark, by all the owners, to enable him to convey the same to any purchaser. The cargo of the Plattsburgh, as contained in the manifest, consisted principally of goods belonging to various shippers, who are not in the slightest degree implicated in any part of the guilt of this transaction; and upon the sales of the same at St. Jago de Cuba, the proceeds were regularly remitted to them. These shippers all contracted with Stark for the shipment and freight of their goods, and he informed one of  them, that he had purchased the schooner for certain persons in the island of Cuba, and that he had no interest in her himself, but was to receive 2,000 dollars for delivering her at that port. How far this statement is reconcileable with the account given of the transaction by the owners of the Plattsburgh, it is unnecessary to examine. \nAt the time of the equipment of the Plattsburgh at Baltimore, there was another vessel, the brig Eros, which was also fitting out at that port for St. Jago de Cuba, with a cargo suited for the slave trade, under  the management of Stark, as charterer for the voyage. This vessel was at first detained by the collector upon suspicion, but he, being satisfied, upon inquiry, that the owner of the Eros had no intention of having her engaged in the slave trade, afterwards released her, taking out some few of her equipments. The Plattsburgh first dropped down the Chesapeake bay, and, afterwards, (if the witnesses are to be believed,) some grape, canister, and round shot, were taken on board, and, on stowing them away, a barrel of irons, or handcuffs, was discovered, which was not contained in the manifest of the cargo. The vessel then sailed down to New Point Comfort, and there waited ten or twelve days for the Eros, and as soon as the latter appeared, after taking on board Mr. Stark, the Plattsburgh sailed in company with the Eros, directly for St. Jago de Cuba. The crew on board are represented to have distinctly understood, soon afterwards, that the voyage was designed ultimately for the African coast for slaves. \n In due time both vessels arrived at the port of destination, and unladed their cargoes. And here the sale to Mr. Marino is alleged to have taken place, in entire goods  faith, for the sum of 12,000 dollars, although, upon the production of the bill of sale, the sum is there asserted to be 8,000 dollars only. Both of the vessels are consigned to a Mr. Wanton, at St. Jago, through whom the negotiation seems to have been made. After the ostensible sale, the Plattsburgh underwent repairs under the agency of Wanton, and was in due form made a Spanish ship, with Spanish national documents; and the usual preparations were made, and the usual passports obtained, to equip her for a slave voyage to the coast of Africa, under her new owners. A part of the cargo of the Eros was taken on board of the Plattsburgh, and particularly about 300 casks of gunpowder. The original crew were, apparently, discharged, but Captain Smith, two of the mates, and six or eight of the men, together with Stark, still remained on board, and accompained the vessel to the coast of Africa, she being, during that  voyage, under the nominal command of a Mr. Gonzalez, with the assumed name of the Maria Gertrudes. She was captured, while lying on the coast of Africa, north of the line, by the boats of the United States ship of war Cyane, under Lieutenant Stringham, and was  brought into the port of New-York for adjudication, and was there finally condemned by the District and Circuit Courts; and the present appeal is from  the decree pronounced, pro forma, by the latter. \nSuch is a general outline of the circumstances of the case, upon which it is material to observe, that if the original object of the equipment and voyage from Baltimore was for the purpose of carrying on the African slave trade, the forfeiture equally attaches, whether the schooner was then owned by American citizens, or by a foreigner. The act of 1794, ch. 11. expressly declares, that no citizen or resident in the United States shall, for himself, or any other person whatsoever, either as master, factor, or owner, build, fit, equip, load, or otherwise prepare, any vessel within any port of the United States, nor cause any vessel to sail from any port within the same, for the purpose of carrying on any trade or traffic in slaves, to any foreign country, &c. &c. under the penalty of forfeiture. Under this act, it is immaterial to whom the ownership belongs, and whether the act is done suo jure, or for the benefit of another person. If, therefore, the Plattsburgh was equipped  at Baltimore by the owners, or by the master, or by Stark, as factor or agent, to carry on the slave trade for the benefit of Marino, the case falls directly within the prohibitions of the act. And, in this view, the declarations of Sheppard and Stark, respecting the sale, are not without considerable significance. But, there is no pretence to say, upon the facts in proof, that the actual ownership, at the commencement of the voyage, was not in Sheppard and his partners, or in Stark. We  find the latter travelling with the vessel through all her subsequent wanderings, with a considerable cargo on board, which belonged to himself when she left Baltimore, and which was at St. Jago transhipped from the Eros; we find the original master, and mates, with efficient authority, on board, on the coast of Africa; we find all parties yielding obedience to them, and to Stark; we find the master resorting to subterfuges, and concealments, after the capture, and the logbook kept in the English language; and if the testimony of two of the crew is admitted, (and uone of them is not in the slightest degree discredited,) we find the most decisive proofs, that the original voyage was conceived  and executed solely with a view to the slave trade. Whatever exceptions may be taken to the testimony of Ferver, (and it is certainly open to much animadversion from his first prevarications,) it has the merit of standing supported, as to its main facts, by all the other circumstances of the case.The natural, nay, the almost necessary inference from those circumstances is, that they belong to a meditated infringement of the acts prohibiting the slave trade. \nIt has been asked, in what manner the original intention can be deduced from the facts, since the Plattsburgh had on board an innocent cargo when she left Baltimore. That, however, is not quite certain, for though nothing noxious appeared on the face of the manifest, yet, if Ferver and Flower are believed, there was a barrel of handcuffs concealed in the run, demonstrating, in no  equivocal manner, the object of the parties. But, assuming that the equipments were all innocent in their own nature, that would not help the case, if there were positive proof of a guilty intention. The law does not proceed upon the notion, that provisions or equipments which are adapted to ordinary voyages, are not within the forfeiting  clause, if they are intended for carrying on the slave trade. Nor is it necessary that there should be complete equipments for this purpose. It is sufficient if any preparations are made for the unlawful purpose. Such was the doctrine of this Court in the cases formerly adjudged, which were cited at the bar. 3 \nBut there is no pretence to separate the voyage of the Plattsburgh from that of the Eros. Both were undertaken by the same party, and for the same object. The Eros carried out the cargo adapted to carry on the traffic, and for the purpose of concealment, the Plattsburgh was made to assume the garb of innocence. It was an ingenious device to lull suspicions, and escape the penalties of the law; but the intention is just as strongly manifested as though all the offensive articles had been laden on board the Plattsburgh. In short, the Eros may be considered as the mere tender of the Plattsburgh, and subservient to all the objects of the latter. Her cargo found its way on board after the arrival at St. Jago, under the direction of Stark, who, true to his original purpose, remained with the Plattsburgh as the   dux facti. It is impossible, upon any reasonable grounds, to assume his intention to have been a purely lawful traffic at St. Jago. If it had been so, why should he have been found on board on the coast of Africa? Men do not, ordinarily, take upon themselves such an odious and dangerous post, surrounding themselves with penalties and suspicions, without causes deeply connected with their own private interests and purposes. \nBut, we are told, that here was a genuine sale to a Spaniard, who was authorized, by the laws of his country, to carry on the slave trade, and, however immoral or inhuman it may be, the Court are to decide his case upon principles of law, and not merely upon principles of justice or morality. Certainly the Court have nothing to do with the conscience of the Spanish claimant, if he has established a bona fide, legal ownership. But that is the very point in controversy. This is not the case of an ordinary trade, where no disguise is necessary or useful. It is the case of a trade prohibited to American citizens under very heavy penalties, penalties which have since been aggravated to the infliction of capital punishment.It is a trade odious in our country, and  carries a permanent stain upon the reputation of all who are concerned in it, and is watched by the severest vigilance of the government.Under such circumstances, it is obvious that it cannot be carried on under our flag, but at the greatest hazards, and with few chances of escaping detection. If carried on at all, it must, therefore,   be carried on by Americans, under the disguise of foreign flags; and, it is notorious, that in the colonial ports of Spain, there is little difficulty in procuring all the apparatus for the use of the national flag. The existence of such a flag is not, when circumstances of just suspicion occur, any decisive proof of innocence, for it is just such a cover as must accompany the fraud. And these considerations cannot fail to attract the attention of a bonae fidei Spanish purchaser. He cannot but known, that American cruisers are in search of those who violate our laws respecting this traffic; and he would deem it the highest imprudence to place his property in a situation in which it might justly be suspected of an admixture of American interests. He would studiously exclude from his ship all Americans, lest they should involve  him in serious losses. Of course, he would, a fortiori, exclude from his employment the original American master and owner from whom he had purchased. He could not, without the grossest rashness, be presumed to forget, that an American owner and master, on board of a vessel recently under their control, and recently purchased, would jeopard the whole adventure, for, upon the search of a cruiser, they would excite very strong presumptions of guilt. How, then, can we reconcile, with the notion of a bona fide purchase in this case, the continued employment of the owner, the master, the mates, and a large proportion of the crew, of the Plattsburgh?Does it not necessarily diminish the credibility of such a claim? \n What, then, are the explanations attempted to be given upon this subject? It is said, that Smith and Stark were employed by Wanton to go to the coast of Africa to transact business for him, and that they were mere passengers. But what business of Wanton? None is proved, or attempted to be poved. And who, in fact, is Wanton? He is the consignee of Stark, both for the Plattsburgh and the Eros.He is the shipper of the cargo for the coast of Africa, and, upon the  face of the bill of lading, no other person appears as owner; and it is now said, that he is what is called an actionist, or share holder, in the voyage; and, by the Spanish laws, or course of trade, such persons do not appear as owners on the papers. It is remarkable, that if such be the law, Marino's name should not appear on the bill of lading, and that Wanton's alone is stated. The ambiguous fact is alleged, that no freight is payable, because the vessel and cargo are united for the voyage. Surely it must have been in the power of the claimant to have given much more full and exact information on this point. \nThen, as to Captain Smith's being a mere passenger, on which so much reliance is placed by the claimant, how does it comport with the facts upon the record?At the time of the capture he appeared as a principal personage, and evidently conducted himself differently from a person who had no interest in the voyage, and was a mere spectator. But what is decisive, to show that this is a mere disguise, too thin not to be  easily seen through, is the letter found on board, written by him, to the mate, a short time before the vessel sailed from St. Jago, in which the  mask is stripped off, and he appears in his natural character as master. It is as follows: \"Sir, I wish you to get the schooner down to Moro in the morning, and get the men quartered to the guns, and station them on the tops and forecastle, the same as on board armed ships, and get all ready for going to sea to-morrow night. After you get down to the Moro, send the boat, with four men, for me. Yours, Jos. Smith.\" Nothing can be umore unlike the character or authority of a passenger, than these directiosn. They belong to one who has a right to command, and knows he is to be obeyed. The language imports a right to control the voyage, and could be dictated only by one in possession of the effective command. It would be absurd for an American passenger to address such a note to an American mate, who was responsible to a Spanish master for all his orders and conduct. It would be an exercise of credulity far beyond any just claims of the evidence, to lead the Court to the belief, that Captain Smith was a mere passenger. The circumstances of the case are at war with the supposition, and the positive testimony of Ferver, and Flower, completely overturns it. \nWithout going more at large  into the evidence, in which there is much matter open to observation, it is sufficient to state, that in the opinion of the Court, the reality of the asserted sale to Marino is not established by the proofs, and our  conclusion is, that the unlawful enterprise had its origin at Baltimore. \nDecree affirmed, with costs. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the Court. \nThis is a case of great importance in a practical view, and has been very fully argued upon its merits. The Bank of Georgia having originally  issued the bank notes in question, they were, in the course of circulation, fraudulently altered, and having found their way into the Bank of the United States, the latter presented them to the former, who received them as genuine, and placed them to the general account of the Bank of the United States, as cash, by way of general deposit. The forgery was not discovered until nineteen days afterwards, upon which, notice was duly given, and a tender of the notes was made to the Bank of the United States, and by them refused. Both parties are equally innocent of the fraud, and it is not disputed, that the Bank of the United States were holders, bona fide, for a valuable consideration. Under these circumstances, the question arises, which of the parties is to bear the loss, or, in other words, whether the plaintiffs are entitled to recover, in this action, the amount of this deposit. \nSome observations have been made as to the form of  the action, the declaration embracing counts for the balance of an account stated, as well as for money had and received, &c. But, if the plaintiffs are entitled to recover at all, we see no objection to a recovery upon either of these counts. The sum sued for is the balance due upon the general account of the parties, and it is money had and received to the use of the plaintiffs, if the transaction entitled the plaintiffs to consider the deposit as money. It is, clearly, not the case of a special deposit, where the identical thing was to be restored by the defendants; the notes were paid as money upon general account,  and deposited as such; so that, according to the course of business, and the understanding of the parties, the identical notes were not to be restored, but an equal amount in cash. They passed, therefore, into the general funds of the Bank of Georgia, and became the property of the bank. The action has, therefore, assumed the proper shape, and if it maintainable upon the merits, there is no difficulty in point of form. \nWe may lay out of the case, at once, all consideration of the point, how far the defendants would have been liable, if these notes had  been the notes of any other bank, deposited by the plaintiff, in the Bank of Georgia, as cash. That might depend upon a variety of considerations, such as the usages of banks, and the implied contract resulting from their usual dealings with their customers, and upon the general principles of law applicable to cases of this nature. The modern authorities certainly do, in a strong manner, assert, that a payment received in forged paper, or in any base coin, is not good; and that if there be no negligence in the party, he may recover back the consideration paid for them, or sue upon his original demand. To this effect are the authorities cited at the bar, and particularly Markle v. Hatfield, (2 Johns. Rep. 455.) Young v. Adams, (6 Mass. Rep. 182.) and Jones v. Ryde, (5 Taunt. Rep. 488.) But, without entering upon any examination of this doctrine, it is sufficient to say, that the present is not such a case. The notes in question were not the notes of another bank, or the security of a third person, but  they were received and adopted by the bank as its own genuine notes, in the most absolute and unconditional manner. They were treated as cash, and carried to the credit  of the plaintiff in the same manner, and with the same general intent, as if they had been genuine notes or coin. \nMany considerations of public convenience and policy would authorize a distinction between cases where a bank receives forged notes pur porting to be its own, and those where it receives the notes of other banks in payment, or upon general deposit. It has the benefit of circulating its own notes as currency, and commanding thereby the public confidence. It is bound to know its own paper, and provide for its payment, and must be presumed to use all reasonable means, by private markes and otherwise, to secure itself against forgeries and impositions. In point of fact, it is well known, that every bank is in the habit of using secret marks, and peculiar characters, for this purpose, and of keeping a regular register of all the notes it issues, so as to guide its own discretion  as to its discounts and circulation, and to enable it to detect frauds. Its own security, not less than that of the public, requires such precautions. \nUnder such circumstances, the receipt by a bank of forged notes, purporting to be its own, must be deemed an adoption of them. It has  the means of knowing if they are genuine; if these means are not employed, it is certainly evidence of a neglect of that duty, which the public have a right to require. And in respect to persons  equally innocent, where one is bound to know and act upon his knowledge, and the other has no means of knowledge, there seems to be no reason for burthening the latter with any loss in exoneration of the former. There is nothing unconscientious in retaining the sum received from the bank in payment of such notes, which its own acts have deliberately assumed to be genuine. If this doctrine be applicable to ordinary cases, it must apply with greater strength to cases where the forgery has not been detected until after a considerable lapse of time. The holder, under such circumstances, may not be able to ascertain from whom he received them, or the situation of the other parties may be essentially changed. Proof of actual damage may not always be within his reach; and therefore to confine the remedy to cases of that sort would fall far short of the actual grievance. The law will, therefore, presume a damage actual or potential, sufficient to repel any claim against the holder.  Even in relation to forged bills of third persons received in payment of a debt, there has been a qualification engrafted on the general doctrine, that the notice and return must be within a reasonable time; and any neglect will absolve the payer from responsibility. \nIf, indeed, we were to apply the doctrine of negligence to the present case, there are circumstances strong to show a want of due diligence and circumspection on the part of the Bank of Georgia. It appears from the statement of facts, that all the genuine notes of that bank of the denomination  of 100 dollars, in circulation at this time, were marked with the letter A; whereas twenty-three of the forged notes of 100 dollars bore the marks of the letter B, C, and D. These facts were known to the defendants, but unknown to the plaintiffs; so that by ordinary circumspection the fraud might have been detected. \nThe argument against this view of the subject, derived from the fact, that the defendants have received no consideration to raise a promise to pay this sum, since the notes were forgeries, is certainly not of itself sufficient. There are many cases in the law, where the party has received no legal consideration,  and yet in which, if he has paid the money, he cannot recover it back; and in which, if he has merely promised to pay, it may be recovered of him. The first class of cases often turns upon the point, whether in good faith and conscience the money can be justly retained; in the latter, whether there has been a credit thereby given to or by a third person, whose interest may be materially affected by the transaction. So that, to apply the doctrine of a want of consideration to any case, we must look to all the circumstances, and decide upon them all. \nPassing from these general considerations, it is material to inquire, how, in analogous cases, the law has dealt with this matter. The present case does not, indeed, appear to have been in terms decided in any Court; but if principles have been already established, which ought to  govern it, then it is the duty of the Court to follow out those principles on this occasion. \nThe case has been argued in two respects; first, as a case of payment, and, secondly, as a case of acceptance of the notes. \nIn respect to the first, upon the fullest examination of the facts, we are of opinion, that it is a case of actual payment. We treat  it, in this respect, exactly as the parties have treated it, that it, as a case where the notes have been paid and credited as cash. The notes have not been credited as notes, or as a special deposit; but the transaction is precisely the same as if the money had been first paid to the plaintiffs, and instantaneously the same money had been deposited by them. It can make no difference that the same agent is employed by both parties, the one to receive, and the other to pay and credit. Upon what principle is it, then, that the Court is called upon to construe the act different from the avowed intention of the parties? It is not a case where the law construes an act done with one intent to be a different act, for the purpose of making it available in law; to do that, cy pres, which would be defective in its direct form. Here the parties were at liberty to treat it as they pleased, either as a payment of money, or as a credit of the notes. In either way it was a legal proceeding, effectual and perfect; and as no reason exists for a different construction, we think that the parties, by treating it as a cash deposit, must be deemed to have considered it as paid in money, and then deposited;  since that is the only  way in which it could legally become, or be treated as cash. Nor is there any novelty in this view of the transaction. Bank notes constitute a part of the common currency of the country, and, ordinarily, pass as money. When they are received as payment, the receipt is always given for them as money. They are a good tender as money, unless specially objected to; and, as Lord Mansfield observed, in Miller v. Race, (1 Burr. Rep. 457.) they are not, like bills of exchange, considered as mere securities or documents for debts. If this be true in respect to bank notes in general, it applies, a fortiori, to the notes of the bank which receives them; for they are then treated as money received by the bank, being the representative of so much money admitted to be in its vaults for the use of the depositor. The same view was taken of this point in the case of Levy v. The Bank of the United States, (4 Dall. Rep. 234. S.C. 1 Binn. Rep. 27.) where a forged check had been accepted by the bank, and carried to the credit of the plaintiff (a depositor) as cash, and upon a subsequent discovery of the fraud, the bank refused to pay the amount. The Court there  said, \"it is our opinion, that when the check was credited to the plaintiff as cash, it was the same thing as if it had been paid; it is for the interest of the bank that it should be so taken. In the latter case, the bank would have appeared as plaintiffs; and every mistake which  could have been corrected in an action by them, may be corrected in this action, and none other.\" The case of Bolton  v. Richards, (6 D. & E. 138.) is not, in all its circumstances, directly in point; but, there, the the Court manifestly considered the carrying of a check to the credit of a party, was equivalent to the transfer of so much money in the hands of the banker, to his account. \nConsidering, then, the credit in this case as a payment of the notes, the question arises, whether, after a payment, the defendants would be permitted to recover the money back; if they would not, then they have no right to retain the money, and the plaintiffs are entitled to a recovery in the present suit. \nIn Price v. Neale, (3 Burr. Rep. 1355.) there were two bills of exchange, which had been paid by the drawee, the drawer's handwriting being a forgery; one of these bills had been paid, when it  became due, without acceptance; that other was duly accepted, and paid at maturity. Upon discovery of the fraud, the drawee brought an action against the holder to recover back the money so paid, both parties being admitted to be equally innocent. Lord Mansfield, after adverting to the nature of the action, which was for money had and received, in which no recovery could be had, unless it be against conscience for the defendant to retain it, and that it could not be affirmed that it was unconscientious for the defendant to retain it, he having paid a fair and valuable consideration for the bills, said, \"here was no fraud, no wrong. It was incumbent upon the plaintiff to be satisfied that the bill drawn upon him was the drawer's hand, before he accepted or paid it.  But it was not incumbent upon the defendant to inquire into it. There was notice given by the defendant to the plaintiff, of a bill drawn upon him, and he sends his servant to pay it, and take it up. The other bill he actually accepts, after which, the defendant, innocently and bona fide, discounts it. The plaintiff lies by for a considerable time after he has paid these bills, and then bound out that they  were forged. He made no objection to them at the time of paying them. Whatever neglect there was, was on his side. The defendant had actual encouragement from the plaintiff for negotiating the second bill, from the plaintiff's having, without any scruple or hesitation, paid the first; and he paid the whole value bona fide. It is a misfortune which has happened without the defendant's fault or neglect. If there was no neglect in the plaintiff, yet there is no reason to throw off the loss from one innocent man upon another innocent man. But, in this case, if there was any fault or negligence in any one, it certainly was in the plaintiff, and not in the defendant.\" The whole reasoning of this case applies with full force to that now before the Court. In regard to the first bill, there was no new credit given by any acceptance, and the holder was in possession of it before the time it was paid or acknowledged. So that there is no pretence to allege, that there is any legal distinction between the case of a holder before or after the acceptance. Both were treated in this judgments as being in the same predicament, and entitled to the same equities. The case of Neal v.   Price has never since been departed from; and, in all the subsequent decisions in which it has been cited, it has had the uniform support of the Court, and has been deemed a satisfactory authority. The case of Smith v. Mercer, (6 Taunt. Rep. 76.) was a stronger application of the principle.There, the acceptance was a forgery, and it purported to be payable at the plaintiff's, who was a banker, and paid it, at maturity, to the agent of the defendant, who paid it in account with the defendant. A week afterwards the forgery was discovered, and due notice given to the defendant. But the Court (Mr. Justice Chambre dissenting) decided, that the plaintiff was not entitled to recover. Two of the Judges proceeded upon the ground, that the banker was bound to know the handwriting of his customers; and that there was a want of caution and negligence on the part of the plaintiff. The Chief Justice, without dissenting from this ground, put it upon the narrower ground, that during the whole week the bill must be considered as paid, and if the defendant were now compelled to pay the money back, he could not recover against the prior encorsers; so that he would sustain the whole loss from the  negligence of the plaintiff. The very case occurred in the Gloucester Bank v. The Salem Bank, (17 Mass. Rep. 33.) where forged notes of the latter had been paid to the former, and, upon a subsequent discovery, the amount was sought to be recovered back. The authorities were there elaborately reviewed, both by the counsel and the Court, and the conclusion to  Which the latter arrived was, that the plaintiffs were not entitled to recover, upon the ground, that by receiving and paying the notes, the plaintiffs adopted them as their own, that they were bound to examine them when offered for payment, and if they neglected to do it within a reasonable time, they could not afterwards recover from the defendants a loss occasioned by their own negligence. In that case, no notice was given of the doubtful character of the notes until fifteen days after the receipt, and no actual averments of forgery until about fifty days. The notes were in a bundle when received, which had not been examined by the cashier until after a considerable time had elapsed. Much of the language of the Court as to negligence, is to be referred to this circumstance. The Court said, \" the true rule is,  that the party receiving such notes must examine them as soon as he has opportunity, and return them immediately. If he does not, he is negligent, and negligence will defeat his right of action. This principle will apply in all cases where forged notes have been received, but certainly with more strength, when the party receiving them is the one purporting to be bound to pay. For he knows better than any other whether they are his notes or not; and if he pays them, or receives them in payment, and continues silent after he has had sufficient opportunity to examine them, he should be considered as having adopted them as his own.\" \nAgainst the pressure of these authorities there not a single opposing case; and we must,  therefore, conclude, that both in England and America, the question has been supposed to be at rest.The case of Jones v. Ryde, (5 Taunt. Rep. 488.) is clearly distinguishable,  as it ranged itself within the class of cases, where forged securities of third persons had been received in payment. Bruce v. Bruce, (5 Taunt. Rep. 495.) is very shortly and obscurely reported; but from what is there mentioned, as well as from the notice taken of it by  Lord Chief Justice Gibbs, in Smith v. Mercer, (6 Taunt. Rep. 77.) it must have turned on the same distinction as Jones v. Ryde, and was not governed by Price v. Neal. \nBut if the present case is to be considered, as the defendants' counsel is most solicitous to consider it, not as a case where the notes have been paid, but as a case of credit, as cash, upon the receipt of them, it will not help the argument. In that point of view, the notes must be deemed to have been accepted by the defendants, as genuine notes, and payment to have been promised accordingly. Credit was given for them, as cash, by the defendants, for nineteen days, and, during all this period, no right could exist in the plaintiffs to recover the amount against any other person, from whom they were received. By such delay, according to the doctrine of Lord Chief Justice Gibbs, in Smith v. Mercer, (6 Taunt. Rep. 76.) the prior holders would be discharged; and the case of the Gloucester Bank v. The Salem Bank, (17 Mass. Rep. 33.) adopts the same principle; so that there would be a loss produced by the negligence of the defendants  but, waiving this narrower view, we think the case may be justly placed upon  the broad ground, that there was an acceptance of the notes as genuine, and that it falls directly within the authorities which govern the cases of acceptances of forged drafts. If there be any difference between them, the principle is stronger here than there; for there, the acceptor is presumed to know the drawer's signature. Here, a fortiori, the maker must be presumed, and is bound to know his own notes. He cannot be heard to aver his ignorance; and when he receives notes, purporting to be his own, without objection, it is an adoption of them as his own. \nThe general question, as to the effect of acceptances, has repeatedly come under the consideration of the Courts of common law. In the early case of Wilkinson v. Luteridge, (1 Str. 648.) the Lord Chief Justice considered, that the acceptance of the bill was, in an action against the acceptor, a sufficient proof of the handwriting of the drawer; but it was not conclusive. In the subsequent case of Jenys v. Faucler, (2 Str. 946.) the Lord Chief Justice would not suffer the acceptor to give the evidence of witnesses, that they did not believe it the drawer's handwriting, from the danger to negotiable notes; and he strongly inclined  to think, that actual forgery would be no defence, because the acceptance had given the bill a credit to the indorsee.Subsequent to this was the case of Price v. Neal, al ready commented on, in which it was thought that the acceptor ought to be conclusively bound  by his acceptance. The correctness of this doctrine was recognised by Mr. Justice Buller, in Smith v. Chester; ( 1 D. & E. 655.) by Lord Kenyon, in Barber v. Gingell, (3 Esp. Rep. 60.) where he extended it to an implied acceptance; and by Mr. Justice Dampier, in Bass v. Cline, (4 M. & Selw. 15.) an dit was acted upon by necessary implication by the Court, in Smith v. Mercer, (6 Taunt. Rep. 76.) In Levy v. The Bank of the United States, (1 Binn. 27.) already referred to, where a forged check, drawn upon the bank, had been accepted by the latter, and carried to the credit of the plaintiff, and on the refusal of the bank afterwards to pay the amount, the suit was brought, the Court expressly held the plaintiff entitled to recover, upon the ground that the acceptance concluded the defendant. The case was very strong, for the fraud was discovered a few hours only after the receipt of the check, and immediate notice  given. But this was not thought in the slightest degree to vary the legal result. \"Some of the cases,\" said the Court, \"decide that the acceptor is bound, because the acceptance gives a credit to the bill, &c. But the modern cases certainly notice another reason for his liability, which we think has much good sense in it, namely, that the acceptor is presumed to know the drawer's handwriting, and by his acceptance to take this knowledge upon himself.\" After some research, we have not been able to find a single case, in which the general doctrine, thus asserted, has been  shaken, or even doubted; and the diligence of the counsel for the defendants on the present occasion, has not been more successful than our own. Considering, then, as we do, that the doctrine is well established, that the acceptor is bound to know the handwriting of the drawer, and cannot defend himself from payment by a subsequent discovery of the forgery, we are of opinion, that the present case falls directly within the same principle. We think the defendants were bound to know their own notes, and having once accepted the notes in question as their own, they are concluded by their act of adoption,  and cannot be permitted to set up the defence of forgery against the plaintiffs. \nIt is not thought necessary to go into a consideration of other cases cited at the bar, to establish, that the acceptor may show that the accepted bill was void in its origin, as made in violation of the Stamp Act; &c. for all these cases admit the genuineness of the notes, and turn upon questions of another nature, of public policy, and a violation of the laws of the land. Nor are the cases applicable, in wich bills have been altered after they were drawn, or of forged endorsements, for these are not facts which an acceptor is presumed to know. Nor is it deemed material to consider in what cases receipts and stated accounts may be opened for surcharge and falsification. They depend upon other principles of general application. It is sufficient for us to declare, that we place our judgment in the present case, upon the ground, that the defendants were bound to know their  own notes, and having received them without objection, they cannot now recal their assent.We think this doctrine founded on public policy and convenience; and that actual loss is not necessary to be proved, for potential  loss may exist, and the law will always presume a possible loss in cases of this nature. \nThe remaining consideration is, whether there has been a legal waiver of the rights of the plaintiffs derived under the cash deposit, or, in other words, whether they have consented to treat it as a nullity. There is nothing on which to rest such a defence, unless it is to be inferred from the letter of Mr. Early, the Cashier of the  Bank of the United States, under date of the 17th of March, 1819, addressed to the Cashier of the Bank of Huntsville. That letter contains information of the forgery of the notes, and then proceeds, \"by the person which we shall in a few days send to your place, as heretofore intimated, we will forward these altered bills for the purpose of getting you to exchange them for other money.\" Now, there is no evidence that this letter was ever shown to the Bank of Georgia, or its contents ever brought to the cognisance of its officers. It states no agreement to take back the notes, or to transmit them, on account of the Bank of the United States, to Huntsville. For aught that appears, the intention may have been to transmit them on account of the Bank of  Georgia, under the expectation that the latter might desire it. But what is almost conclusive on this point is, that on the same day the Bank of Georgia  had made a tender of the notes to the plaintiffs, which had been refused.This is wholly inconsistent with the notion that they had agreed to take them back, or to treat the previous credit as a nullity. Assuming, therefore, that the Cashier had a general or special authority for the purpose of extinguishing the rights of the plaintiffs, growing out of the prior transactions, (which is not established in proof,) it is sufficient to say, that it is not shown that he exercised such an authority. And the case of Levy v. The Bank of the United States affords a very strong argument, that a waiver, without some new consideration, upon a sudden disclosure, and under a mistake of legal rights, ought not to be conclusive to the prejudice of the party, where, upon farther reflection, he refuses to acquiesce in it. The subsequent letter of the 25th of March, demonstrates, that the intention of waiving the rights of the bank, if ever entertained, had been at that time entirely abandoned. \nThe letter from the Huntsville Bank, of  the 4th of May, cannot vary the legal result. What might be the rights of the plaintiffs against that bank, in case of an unsuccessful issue of the present cause, it is unnecessary to determine. The contract, whatever it may be, is res inter alios acta, from which the defendants cannot, and ought not to derive any advantage. \nIt only remains to add, that if the plaintiffs are entitled to recover the principal, they are entitled to interest from the time of instituting the suit. \n Upon the whole, it is the opinion of the Court, that the Circuit Court erred in refusing the first and third instructions prayed for by the plaintiffs; and for these errors the judgment must be reversed, with directions to award a venire facias de novo. On the second instruction asked by the plaintiffs, it is unnecessary to express any opinion. \nJudgment reversed accordingly. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the Court. \nThe case of the Josefa Segunda, in which the present controversy had its origin, is reported in the fifth volume of Mr. Wheaton's Reports. It is only necessary to mention, that after the condemnation of the vessel, in the District Court of Louisiana, and before the intervention of the appeal to this Court, the negroes seized on board of her, in pursuance of the act of Congress, and the act  of Louisiana, which will be hereafter commented on, were delivered by Mr. Chew, (the  Collector of the Customs,) to the Sheriff of the parish of New-Orleans, to be sold according to law; and a few days afterwards a new libel, claiming the property of the negroes, having been filed by the Spanish owners, (which was afterwards dismissed, and on appeal, the dismissal confirmed by this Court,) by consent of all the parties in interest, the negroes were sold by the Sheriff, and the proceeds lodged in the Bank of the United States, subject to the order of the District Court. The question now in contestation respects the manner in which the proceeds of this sale, as well as of the sale of the vessel and effects, are to be distributed, and the parties who are entitled to them. Mr. Roberts, who is an Inspector of the Customs, claims title as the original seizor or captor; Messrs. Gardner, Meade, and Humphrey, make a like claim under a subsequent military seizure made by them; and Mr. Chew, and the Surveyor and Naval Officer of the port of New-Orleans, a like claim as the true and actual captors and seizors, who made the last and only effectual seizure, and prosecuted the same to  a final decree of condemnation. \nMr. Chew caused the original libel against the vessel to be brought, and though his name is accidentally omitted in it as the officer through whose instrumentality the seizure was made, yet it is admitted, and indeed could not be denied, that he was the sole responsible prosecutor of the suit, until the condemnation of the vessel, and the final dismissal of the second libel,  brought by the original Spanish claimants. The claims of all the other parties  now before the Court, adverse to that of Mr. Chew, have intervened since the final judgment pronounced in the Supreme Court in the cause. \nThe Josefa Segunda was finally condemned under the seventh section of the Slave Trade Act, of the 2d of March, 1807, ch. 77. It will be necessary to refer to the terms of that section at large, because the question here respects as well the distribution of the proceeds of the vessel, (which must be made according to the rules prescribed in that section,) as of the proceeds of the sale of the negroes, who were unlawfully brought into the United States; and, in the progress of the discussion, it will materially aid us in the decision of the  latter, to ascertain who, by the construction of that section, are the captors entitled to the distribution of the former. \nThe fourth section of the act of 1807 provides, that \"neither the importer, nor any person or persons claiming from or under him, shall hold any right or title whatsoever to any negro, &c. who may be imported or brought within the United States, or territories thereof, in violation of this law; but the same shall remain subject to any regulations, not contravening the provisions of this act, which the Legislatures of the several States or territories, at any time hereafter may make, for disposing of any such negro,\" &c. Accordingly, the Legislature of Louisiana, on the 13th of March, 1818, passed an act avowedly to meet the exigency of this section, which act, after  reciting the substance of the same section, proceeds to declare, that the Sheriff of the parish of New-Orleans is authorized and required to receive any negro, &c. delivered to him in virtue of the act of Congress, until the proper Court pronounces a decree of condemnation; and after such condemnation, it authorizes him to sell such negro, &c. as a slave for life; and then declares, that  \"the proceeds of such sale shall, after deducting all charges, be paid over by the said Sheriff, one moiety for the use of the commanding officer of the capturing vessel, and the other moiety to the treasurer of the Charity Hospital of New-Orleans, for the use and benefit of the said hospital.\" There is no doubt that this act is not in contravention of the intention of the act of Congress, for the sixth section contains a proviso, recognising the validity of such a sale, when made under the authority of a State law. \nSome objection has been suggested as to the jurisdiction of the District Court of Louisiana, to entertain the present proceedings, upon the ground that the distribution is to be made under this act by the Sheriff of New-Orleans. But upon a full consideration of the act of 1807, we are of opinion, that the objection cannot be maintained.By the judiciary act of 1789, as well as by the express provisions of the act of 1807, the District Court has jurisdiction over seizures made under the latter act. The principal proceedings are certainly to be against the vessel, and the goods and effects found on board. But  the negroes are also to be taken possession of,  for the purpose of being delivered over to the State governments, according to the provision of the act; and it is obvious, that this delivery can only be after a condemnation has occurred, since it is only in that event that the State Legislature can acquire any right to dispose of them. The proviso in the seventh section, that the officers to whom a moiety of the proceeds is given on condemnation, shall be so entitled only in case they safely keep and deliver over the negroes according to the laws of the States, operates by way of condition to the completion of their title; but does not import any requirement that the delivery shall be until after the condemnation.On the contrary, as by a decree of restitution of the vessel and effects, the claimants would be entitled to a restitution of the negroes, the reasonable construction seems to be, that they remain subject to the order of the District Court, as property in the custody of the law, though in the actual possession of the seizing officers. The possession of the latter is the possession of the Court, as much in respect to the negroes as the vessel and cargo; and it must remain until the Court, by pronouncing a final decree,  directs in what manner it is to be surrendered. In the present case, the negroes were sold, and the proceeds substituted for them were in the custody of the Court. It was, therefore, authorized to deliver them over to the parties who should be entitled, under the State law. In terms, the State law required the delivery to the  Sheriff to the use of the parties; but who the parties were to whose use the Sheriff must hold the, could not be ascertained by him, but must be awarded by the Court, to whom, as an incident to the principal cause, it exclusively belonged. In what manner could any other Court be authorized to ascertain who was the commanding officer of the capturing vessel? The decree of the Court, in distributing the proceeds of the vessel and cargo, must necessarily involve this inquiry; and certainly it cannot for a moment be maintained in argument, that any other person than the commander of the capturing vessel, who would share the proceeds of the prize and her cargo, could be within the meaning of the law of Louisiana. The common form of drawing up decrees, in cases of condemnation, is, that the proceeds be distributed according to law. But if any difficulty  arises, upon petition, the Court always proceeds to decide who are the parties entitled to distribution, and to make a supplementary decree. But it may do the same in the first instance, and make the particulars of the distribution a part of the original decree. In the present case, if the original decree had been drawn out at large; it ought to have been, that the negroes so captured be delivered over to the Sheriff of New-Orleans for sale, according to the act of Louisiana in this behalf provided, and that the net proceeds of the sale be afterwards paid over, viz. one moiety to A.B., adjudged by the Court to be the commanding officer of the capturing vessel, and the other moiety to the Charity Hospital  of New-Orleans. This course of proceeding is very familiar in prize causes; where the Court of Admiralty always ascertains who are the captors entitled to the prize proceeds; and the Courts of common law will never entertain any jurisdiction over the proceeds until after such adjudication. Considering this cause,  then, as a cause of admiralty and maritime jurisdiction, belonging exclusively to the Courts of the United States, we are not aware how any other  Court could adjudge upon the question who were the captors or seizors entitled to share the proceeds; and we think that the District Court has jurisdiction over the present proceedings. \nIn respect to the claim of Mr. Roberts, we do not think that the evidence establishes that he ever made any valid seizure of the vessel. It is not sufficient that he intended to make one, or that, on some occasions, he expressed to third persons that he had so done. There must be an open, visible possession claimed, and authority exercised under a seizure. The parties must understand that they are dispossessed, and that they are no longer at liberty to exercise any dominion on board of the ship. It is true, that a superior physical force is not necessary to be employed, if there is a voluntary acquiescence in the seizure and dispossession. If the party, upon notice, agrees to submit, and actually submits, to the command and control of the seizing officer, that is sufficient; for, in such cases, as in cases of captures jure belli, a voluntary surrender of authority, and an agreement to obey the captor,  supplies the place of actual force. But, here, Mr. Roberts gave no notice of the  seizure to the persons on board; he exercised no authority, and claimed no possession. He had no force adequate to compel submission; and his appearance in the vessel gave no other character to him than that of an inspector, rightfully on board, in performance of his ordinary duties. To construe such an equivocal act as a seizure, would be unsettling principles. \nMessrs. Humphrey, Meade, and Gardner, certainly did make a seizure, by their open possession of the vessel, and bringing her under the guns of Fort St. Philip. But there is this objection to the seizure, both of Mr. Roberts, (assuming that he made one,) and of the other persons, that it was never followed up by any subsequent prosecution or proceedings. The seizure of Messrs. Humphrey, Meade, and Gardner, seems to have been voluntarily abandoned by them; and even that of Mr. Roberts, if he made one, does not seem to have been persisted in. Now, a seizure, or capture, call it which we may, if once abandoned, without the influence of superior force, loses all its validity, and becomes a complete nullity. Like the common case of a capture at sea, and a voluntary abandonment, it leaves the property open to the next occupant.  But what is decisive in our view is, that neither of these gentlemen ever attempted any prosecution, or intervened in the original proceedings in the District Court, claiming to be seizors, which was indispensable to consummate their legal right; and their claim  was, for the first time, made after a final decree of condemnation in the Supreme Court. This was certainly a direct waiver of any right acquired by their original seizures. It is not permitted to parties to lie by, and allow other persons to incur all the hazards and responsibility of being held to damages in case the seizure turns out to be wrongful, and then to come in, after the peril is over, and claim the whole reward. Such a proceeding would be utterly unjust, and inadmissible. If the parties meant to have insisted on any right, as seizors, their duty was to have intervened in the District Court before the hearing on the merits, according to the course pointed out by Lord Hale in the passage cited at the bar, where there are several persons claiming to be seizors of forfeited property. 5 In the present case, Mr. Chew actually advanced a considerable sum of money for the maintenance of these negroes  during the pendency of the suit; and if it had been unsuccessful he must have exclusively borne the loss. Upon the plain ground, then, that Mr. Roberts, and Messrs. Humphrey, Meade, and Gardner, have not followed up their seizure by any prosection, such as the act of 1807 requires,  we are of opinion, that there is no foundation, in point of law, for their claims. \nThat Mr. Chew, on behalf of himself, and the Surveyor and Naval Officer of the port of New-Orleans, did make the seizure on which the prosecution in this case was founded, is completely proved by the evidence; it is also admitted by the United States, in their answer to the libel of Messrs. Carricaberra,  &c. the Spanish claimants, and is averred by Mr. Chew, and his coadjutors, in their separate allegation and answer to the same libel. While the vessel law at Fort St. Philip, armed boats, under revenue officers, were sent down by him, with orders to seize her, and bring her up to New-Orleans for prosecution, which was done accordingly. \nThe remaining question then is, whether Mr. Chew, for himself and his coadjutors in office, is to be considered as entitled to the proceeds of the vessel under the act of Congress, and to the proceeds of the negroes, as \"the commanding officer of the capturing vessel,\" within the sense of the Louisiana law. \nIf he is entitled to the proceeds of the vessel and cargo, under the 7th section of the act of 1807, then, we think, he must be fairly considered as within the spirit, if not the letter, of the act of Louisiana. \nThe 7th section is certainly not without difficulty in its construction. In the first clause it declares, that vessels found \"in any river, port, bay, or harbour, or on the high seas, within the jurisdictional limits of the United States, or  hovering on the coast thereof, having on board any negro, &c. for the purpose of selling  them as slaves, &c. contrary to the prohibitions of this act, shall be forfeited to the use of the United States, and may be seized, prosecuted, and condemned, in any Court of the United States having jurisdiction thereof.\" Under this any standing alone, it cannot be doubted, that any person might lawfully seize such a vessel at his peril, and if the United States should choose to adopt his act, and proceed to adjudication, he would, in the event of a condemnation, be completely justified. But  it may be considered as peculiarly the duty of the officers of the customs, to watch over any maritime infractions of the laws ofthe United States; and, by the Collection Act of 1799, (ch. 128. s. 70.) it is made the duty of all custom-house officers, as well within their Districts as without, to make seizures of all vessels violating the revenue laws. \nThe section, then, in the next clause, authorizes the President of the United States to employ any of the armed vessels of the United States to cruise on any part of the coast, to prevent violations of the act, and to instruct and direct the commanders of such armed vessels, to seize all vessels contravening the act, \"wheresoever  found on the high seas,\" omitting the words, \"in any river, port, bay, or harbour,\" contained in the former clause. It then proceeds to declare, that the proceeds of all such vessels, when condemned, \"shall be divided equally between the United States, and the officers and men, who shall make  such seizure, take or bring the same into port for condemnation, whether such service be made by an armed vessel of the United States, or revenue cutters thereof, and the same shall be distributed in like manner as is provided by law for the distribution of prizes taken from an enemy.\" In a strict sense, the present seizure was not made by and armed vessel of the United States, nor by a revenue cutter, which, by the act of 1799, (ch. 128. s. 98.) the President is at liberty to require to co-operate with the navy. But if we consider these cases as put only by way of example, or if we give an enlarged meaning to the words \"revenue cutter,\" so as to include revenue boats, such as the Collector is, by the act of 1799, (ch. 128. s. 101.) authorized to employ, with the approbation of the Treasury department, then the seizure of Mr. Chew may be brought within the general terms of the act.  The United States do not appear to have resisted this construction as to the proceeds of the sale of the Josefa Segunda. And, on the other hand, if we consider, that the act meant to deal out the same rights to all parties who might seize the offending vessel, whether they were officers of armed vessels, or of revenue cutters, or merely private individuals, who may seize and prosecute to condemnation, then, under that construction, Mr. Chew may be properly deemed the seizing officer, entitled, with his crew, to the proceeds of the vessel. If such a construction is not admissible, within the equity of the act, then it is a casus omissus,  and the property yet remains undisposed of by law. \nUpon the best consideration which we have been able to give the case, we are of opinion, that it is a casus omissus, or rather, that all the beneficial interest vests in the United States. The first clause of the seventh section declares, that all vessels offending against it, \"shall be forfeited to the use of the United States,\" and may be seized, prosecuted, and condemned, accordingly. The seizure may be made by any person; but the forfeiture is still to be, by the terms of the act,  for the use of the United States. If the act had stopped here, no difficulty in its construction could have occurred. As nothing is given by it to the seizing officer, nothing could be claimed by him except from the bounty of the government. The subsequent clause looks exclusively to cases where the seizure is made by armed vessels of the navy, or by revenue cutters, and directs, in such an event, a distribution to be made in the same manner as in cases of prizes taken from an enemy. Correctly speaking, these cases constitute exceptions from the preceding clause, and taken them out of the general forfeiture \"to the use of the United States.\" It might have been a wise policy to have extended the benefit of these provisions much farther, or to have given, as the act of the 20th of April, 1818, (ch. 85.) has given, a moiety in all cases to the person who should prosecute the seizure to effect. But Courts of law can deal with questions of this nature only so far as the Legislature has clearly  expressed its will. Mr. Chew appears to be a very meritorious officer, and deserving of public respect for his good conduct on this occasion. But as the act has made no provision  for his compensation, he must be left, in common with those who made the military seizure, to the liberality of the government. \nThe remarks which have been already made, dispose of the case, so far as respects the proceeds of the vessel, and we think they are decisive as to the claim to the proceeds of sale of the negroes. The case as to this matter is also a casus omissus in the act of Louisiana. That act had a direct reference to the act of Congress, and \"the commanding officer of the capturing vessel,\" in the sense of such an armed vessel, or commanding officer of such an armed vessel, or revenue cutter, as is entitled to share in the distribution of the proceeds by the latter. It would be going very far to give a larger construction to the words than in their strict form they import; and since they admit of a reasonable interpretation, by confining them to the cases provided for by Congress, we are satisfied that our duty is complied with, by assigning to them this unembarrassed limitation. \nThe decree of the District Court, so far as it dismissess the claims of Messrs. Roberts, Humphrey, Mead, and Gardner, is affirmed, and so far as it sustains the claim of Mr. Chew, and the  Naval Officer and Surveyor of the port of New-Orleans, is reversed. \nDecree accordingly. \n \n\n ", " \nOpinion \n\n \n \n Mr. Justice STORY delivered the  opinion of the Court. \nThis is a suit brought in the District Court of Kentucky for subtraction of wages. The libel claims wages earned on a voyage from Shippingport, in that State, up the river Missouri, and back again to the port of departure; and the question is, whether this case, as stated in the  libel, is of admiralty and maritime jurisdiction, or otherwise within the jurisdiction of the District Court? The Court below dismissed the libel for want of jurisdiction, and the libellants have appealed from that decree to this Court. \nIn the great struggles between the Courts of common law and the Admiralty, the latter never attempted to assert any jurisdiction except over maritime contracts. In respect to contracts for the hire of seamen, the Admiralty never pretended to claim, nor could it rightfully exercise any jurisdiction, except in cases where the service was substantially performed, or to be performed, upon the sea, or upon waters within the ebb and flow of the tide. This is the prescribed limit which it was not at liberty to transcend. We say, the service was to be substantially performed on the sea, or on tide water, because there is no doubt that the jurisdiction  exists, although the commencement or termination of the voyage may happen to be at some place beyond the reach of the tide. The material consideration is, whether the service is essentially a maritime service. In the present case, the voyage, not only in its commencement and termination, but in all its intermediate progress, was several hundreds of miles above the ebb and flow of the tide; and in no just sense can the wages be considered as earned in a maritime employment. \nSome reliance has been placed in argument upon that clause of the Judiciary Act of 1789, (ch. 20. s. 9.) which includes all seizures made on waters navigable from the sea by vessels of ten  or more tons burthen, (of which description the waters in this case are,) within the admiralty jurisdiction. But this is a statuteable provision, and limited to the cases there stated. To make the argument available, it should be shown, that some act of Congress had extended the right to sue in Courts having admiralty jurisdiction, to cases of voyages of this nature. We have for this purpose examined the act of Congress for the government and regulation of seamen in the merchants' service, (act of 1790, ch. 29.)  and though its language is somewhat general, we think that its strict interpretation confines the remedy in the Admiralty to such cases as ordinarily belong to its cognisance, as maritime contracts for wages. It merely recognises the existing, and does not intend to confer any new jurisdiction. Whether, under the power to regulate commerce between the States, Congress may not extend the remedy, by the summary process of the Admiralty, to the case of voyages on the western waters, it is unnecessary for us to consider. If the public inconvenience, from the want of a process of an analogous nature, shall be extensively felt, the attention of the Legislature will doubtless be drawn to the subject. But we have now only to declare, that the present suit is not maintainable as a cause of admiralty and maritime jurisdiction, upon acknowledged principles of law. \nThe decree of the Circuit Court, dismissing the libel for want of jurisdiction, is therefore affirmed. \nDecree accordingly. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the Court. \nThis is an action of trespass for mesne profits, brought by the plaintiffs in error against the defendant in error, in the Circuit Court for the District of Maryland. The cause comes before this Court upon exceptions taken by the plaintiffs on the trial of the cause in the Court below. \nThe plaintiffs had recovered judgment, and possession of the premises, in an ejectment, in which J. C. F. Chirac prayed to be admitted as landlord to defend the premises, and was admitted accordingly under the common consent rule. The record of the proceedings in that action were offered by the plaintiffs as evidence in the present suit; and they then offered to prove, by the testimony of R. G. Harper, and W. Dorsey,   esquires, that the defendant had retained, and paid them, to conduct the defence of the ejectment for his benefit, and also propounded to these witnesses the following question: Were you retained, at any time, as attorney or counsellor, to conduct the ejectment suit above mentioned, on the part of the defendant, for the benefit of the said George Reinicker, as landlord of those premises. This question was objected to as seeking an improper disclosure of professional confidence. The Court sustained the objection; and this constitutes the first ground of exception. \nThe general rule is not disputed, that confidential communications between client and attorney, are not to be revealed at any time. The privilege, indeed, is not that of the attorney, but of the client; and it is indispensable for the purposes of private justice. Whatever facts, therefore, are communicated by a client to counsel, solely on account of that relation, such counsel are not at liberty, even if they wish, to disclose; and the law holds their testimony incompetent. The real dispute in this case is, whether the question did involve the disclosure of professional confidence. If the question had stopped  at the inquiry whether the witnesses were employed by Reinicker, as counsel, to conduct the ejectment suit, it would deserve consideration, whether it could be universally affirmed, that it involved any breach of professional confidence. The fact is preliminary in its own nature, and establishes only the existence of the relation of  client and counsel, and, therefore, might not necessarily involve the disclosure of any communication arising from that relation after it was created. But the question goes farther. It asks, not only whether the witnesses were employed, but whether they were employed by Reinicker to conduct the ejectment for him, as landlord of the premises. We are all of opinion, that the question, in this form, does involve a disclosure  of confidential communications. It seeks a disclosure of the title and claim set up by Reinicker to his counsel, for the purpose of conducting the defence of the suit.It cannot be pretended that counsel could be asked what were the communications made by Reinicker as to the nature, extent, or grounds of his title; and yet, in effect, the question, in the form in which it is put, necessarily involves such a disclosure.  The Circuit Court was, therefore, right in their decision on this point. \nThe plaintiffs then gave in evidence certain deeds and patents, by which, and the admissions of counsel on both sides, the title to the premises in question was vested in John B. Chirac, deceased; and also gave in evidence, certain depositions to prove who were the heirs of J. B. Chirac, and also offered the record in the ejectment to prove Maria Bonfils to be one of the heirs; and then offered to prove, by parol evidence, that the defendant was, in fact, landlord of the premises at the commencement and during the progress of the ejectment, and had notice of the same, and employed counsel to defend  the same; and received the rents and profits thereof, during the progress of the ejectment; which evidence the Court refused to admit: and this constitutes the second exception of the plaintiffs. The plaintiffs then offered to prove the same facts, (not saying by parol evidence,) with the additional fact, that counsel did defend the same action for the benefit of the defendant. This evidence was also rejected by the Court, and constitutes the third exception of the plaintiffs. \nThe question of law, involved  in each of these exceptions, is substantially the same. It is, whether a person, who was not a party to the ejectment, and did not take upon himself, upon the record, the defence thereof, but another did as landlord, may yet be liable in an action for the mesne profits, upon its being proved that he was, in fact, the landlord, received the rents and profits, and resisted the recovery. \nIt is undoubtedly true, that in general, a recovery in ejectment, like other judgments, binds only parties and privies. It is conclusive evidence in an action for mesne profits against the tenant in possession, when he has been duly served with a notice in ejectment, whether he appears, and takes upon himself the defence, or suffers judgment to go by default against the casual ejector. The reason is, that in the first case, he is the real party on the record; in the last, he is considered as substantially the defendant, and the judgment by default, as a confession of the title set up in the ejectment. Such was the decision  of the Court in Aislin v. Parkin, in 1 Burr. 667. But in relation to third persons, the judgment in ejectment is not conclusive; and if they are sued in an action for  mesne profits, which is substantially an action against them as trespassers, they may controvert the plaintiff's title at large. In such a suit, the record of the ejectment is not evidence to establish the plaintiff's title; but it seems admissible for another purpose, that is to say, to show the possession of the plaintiff. The plaintiff may certainly prove his possession connected with his title, by any sufficient evidence in pais; and if his possession has been under a judgment of law, he is entitled to establish it by introducing the record of the recovery, and an executed writ of possession under it. \nThe question then is, generally, whether it is competent for the plaintiff to maintain an action for mesne profits against any person who is in possession of the land by means of his tenants, and who, by his acts, commands, or co-operation, aids in the expulsion of the plaintiff, and in with-holding possession from him. All persons who aid in, or command, or procure a trespass, are themselves deemed in law to be trespassers, whether they are actually present, or do the act through the instrumentality of their agents and servants. A recovery of the possession, in an ejectment  against one of such agents, does not constitute a bar to an action for mesne profits against another agent, for the same reason, that  the former suit is no bar to the latter against the defendant in ejectment, viz. that the mesne profits were not a matter in controversy in the ejectment. If, then, it is competent to maintain the action for mesne profits against any trespasser, although not a defendant in ejectment it is competent to prove that the defendant is in that predicament. The evidence offered, in this case, was strong to prove the fact, that the defendant was a party to the trespass, supposing the plaintiffs to have established their title and possession. If he was landlord of the premises, and the other parties were in possession under him; if he was in the perception of the rents and profits, if he resisted the plaintiff's title and possession, and co-operated in the acts of the tenants for this purpose, the evidence was proper for the jury as proof of his being a cotrespasser. \nThis doctrine is supported by the case of Hunter v. Britts, (3 Campb. N. P. Rep. 455.) which was cited at the bar. There, the judgment was against the casual ejector in the ejectment  suit, and the action for the mesne profits was brought against Britts as landlord; and he was proved to be in the receipt of the rents and profits from the time of the demise till the writ of possession was executed. The ejectment was served upon the tenant; there was no evidence that Britts had any notice of this till after judgment; but, subsequently, he promised to pay the rent, and the costs, to the plaintiff. It was objected, that the judgment in ejectment was not under these circumstances, evidence of  title against Britts; and Lord Ellenborough held, that it was not, without notice of the ejectment. But he thought that his subsequent promise amounted to an admission that the plaintiff was entitled to the possession of the premises, and that he himself was a trespasser. The language of the learned Judge seems, indeed, to import, that if the landlord had had notice of the ejectment, he would have been concluded by the recovery in the ejectment. It might be so, if the common notice had been formally given to him as tenant in possession, and he had neglected to take upon himself the defence of the suit. If, however, the notice was in pais, and conduced merely to  prove his actual knowledge of the suit, without calling upon him to defend it, we are not prepared to admit,  that, on general principles, it ought to have such an effect. 15 But the point actually decided was, that a party might be charged, in an action for mesne profits, who was not, in any sense, a party to the ejectment, by establishing the title against him, and showing his connexion as landlord with the tenant in possession, and his adoption of the acts of the latter. \nBut, it is said, that assuming the law to be so in general, yet, in the present case, the plaintiffs are estopped from setting up the fact that the defendant was the real landlord, because, in the ejectment, one J. C. F. Chirac prayed leave of the Court, \"as landlord of the premises, to be made defendant\" in the place of the casual ejector, which was, with the consent of the lessee of  the plaintiffs, allowed by the Court. It does not appear to us, that any such estoppel arises from this allegation in the record. The record itself certainly does not constitute a technical estoppel, for it is res inter alios acta. The most that can be said is,  that it is proper evidence to prove who the plaintiffs at that time deemed to be landlord, and, therefore, admissible to rebut the presumption that the present defendant was the landlord. But, certainly, the evidence was not conclusive upon either party. It was open to the plaintiffs to show, that, in point of fact, the present defendant was the real landlord, that the admission in the record was founded in mistake of the facts, or that J. C. F. Chirac was a sub-landlord under Reinicker, or his superior landlord. What would have been the effect of such proof is not for this Court to determine. We think, then, that the evidence offered by the plaintiffs was admissible upon general principles; and we see no estoppel which excludes it in this particular case.The directions of the Circuit Court were, on this point, erroneous. \nIf it had appeared upon the record, that the evidence offered by the plaintiffs was solely to connect the defendant with the ejectment, so that the recovery would be conclusive upon him in the same manner as if he had been a party on the record, and, as such, admitted to defend, and actually defending the suit, the case might have required a very different consideration.  We have already intimated an opinion, that notice of an ejectment suit, or defence of the suit, by a  person not tenant in possession, or defendant on record, does not make him a party to the suit in contemplation of law, so as to conclude his rights. \nIn considering the fourth and fifth exceptions, it is necessary to advert to the fact, that the plaintiffs in this action originally were Anthony Taurin Chirac, Mathew Chapus and Anna Maria his wife, Mathew Thevenon and Maria his wife, and Maria Bonfils, the same persons having been plaintiffs in the ejectment. During the pendency of the suit the plaintiffs obtained leave to amend their declaration, and did amend it, by introducing the name of John B. E. Bitarde Desportes, as husband of the said Maria, called, at the commencement of this suit, Maria Bonfils. To this amendment no objection was taken, and the defendant pleaded to the declaration, so amended, the general issue. The evidence of title of John B. Chirac, deceased, being introduced, and, also, evidence to prove that Anthony T. Chirac and the female plaintiffs were heirs at law of John B. Chirac, the defendant then prayed the Court to direct the jury, \"that they  ought to find a verdict for the defendant, unless they are satisfied that all the plaintiffs are the proper heirs at law of the aforesaid John B. Chirac,\" which direction the Court accordingly gave. The probable intention of the defendant was to pray an instruction to the jury, that unless all those of the plaintiffs who claimed to be heirs of John B. Chirac, should establish their title, the suit could not be maintained. In this view, the opinion of  the Court would be correct, for it is a general rule that no recovery can be had unless all the plaintiffs are competent to maintain the suit. If, therefore, the title fails as to one, it is not maintainable in favour of the others. The proof does not, under such circumstances, meet the case set up in the declaration. But, framed as this exception actually is, the direction given by the Court is, in its terms, erroneous. It was not necessary to prove that all the plaintiffs are the proper heirs at law of J. B. Chirac. The action was maintainable if the husbands were not the proper heirs of J. B. Chirac; for, in right of their wives, they were proper parties to the suit. The fourth exception is, therefore, well taken. \n The fifth exception is founded on the supposed variance between the writ and declaration, by the amendment, introducing the husband of Maria Bonfils upon the record. The Court held this variance fatal under the general issue. It is observable, that this amendment was made under an order of the Court, and was not objected to, on the record, by the defendant; and that the general issue was subsequently pleaded. It has been decided, in this Court, that the allowance or disallowance of amendments is not matter, for which a writ of error lies here. Variances between the writ and declaration, are, in general, matters proper for pleas in abatement; and if, in any case, a variance between the writ and declaration can be taken advantage of by the defendant in the Court below, it seems to be an established rule, that it cannot be done except  upon oyer of the original writ, granted in some proper stage of the cause. The existence of such variance forms no matter of controversy upon the general issue, by which the jury are to be governed in forming their verdict. In the present case, as no objection was taken to the amendment upon the record, it must be deemed to have been waived  by the defendant, and therefore, not proper to be insisted upon at the trial. 16 It does not appear, on the record, whether Maria. Bonfils was married before or pending the suit; and the fact might have a material bearing upon the propriety of granting the amendment, since, at all events, if pending the suit, it would not of itself abate the suit; and the objection could only be made available by a plea in abatement. 17 \nUpon the whole, it is the opinion of the Court, that there is error in the directions of the Circuit Court in the four last exceptions, and contained in the record, and for this cause the judgment must be reversed, and a venire facias de novo awarded. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the Court. \n This is a writ of error from the Circuit Court sitting at Alexandria for the District of Columbia. The original action was brought against the defendants to recover damages asserted to have been sustained by the plaintiff, in consequence of the neglect of the defendants to take due bonds and security from one Philip G. Marsteller, licensed by them as an auctioneer for the years 1815, 1816, 1817, and 1818, according to the express provisions of the statute in this behalf enacted. \nAt the trial below, upon the general issue, one of the principal points in controversy was, whether the said Marsteller was, in fact, licensed by the defendants as an auctioneer during the years above stated; and both parties introduced a good deal of evidence, for the purpose of supporting or repelling the presumption of the fact. The defendants demurred to the evidence as insufficient to maintain the plaintiff's action, and the record itself contains  the whole evidence introduced at the trial, as well that arising from the testimony of witnesses as that arising from written documents. \n There is no joinder in demurrer on the record, which is probably a mere defect in the transcript, as the Court proceeded to give judgment upon the demurrer in favour of the defendants. Without a joinder in demurrer, no such judgment could be properly entered; and such joinder ought not to have been required or permitted while there was any matter of fact in controversy between the parties. \n Indeed, the nature of the proceedings upon a demurrer to evidence, seems to have been totally misunderstood in the present case. It is no part of the object of such proceedings, to bring before the Court an investigation of the facts in dispute, or to weigh the force of testimony or the presumptions arising from the evidence. That is the proper province of the jury. The true and proper object of such a demurrer is to refer to the Court the law arising from facts. It supposes, therefore, the facts to be already admitted and ascertained, and that nothing remains but for the Court to apply the law to those facts. This doctrine is clearly established by the authorities, and is expounded in a very able manner by Lord Chief Justice Eyre, in delivering the opinion of all the Judges in  the case of Gibson v. Hunter, before the House of Lords. (2 H. Bl. Rep. 187.) It was there held, that no party could insist upon the other party's joining in demurrer, without distinctly admitting, upon the record, every fact, and every conclusion, which the evidence given for his adversary conduced to prove. If, therefore, there is parol evidence in the case, which is loose and indeterminate, and may be applied with more or less effect to the jury, or evidence of circumstances, which is meant to operate beyond the proof of the existence of those circumstances, and to conduce to the proof of other facts, the party demurring must admit the facts of which the evidence is so loose, indeterminate, and circumstantial, before the Court can compel the other side to join  therein. And if there should be such a joinder without such admission, leaving the facts unsettled and indeterminate, it is a sufficient reason for refusing judgment upon the demurrer; and the judgment, if any is rendered, is liable to be reversed for error. Indeed, the case made for a demurrer to evidence, is, in many respects, like a special verdict. It is to state facts, and not merely testimony which may  conduce to prove them. It is to admit whatever the jury may reasonably infer from the evidence, and not merely the circumstances which form a ground of presumption. The principal difference between them is, that, upon a demurrer to evidence, a Court may infer, in favour of the party joining in demurrer, every fact of which the evidence might justify an inference; whereas, upon a special verdict, nothing is intended beyond the facts found. \nUpon examination of the case at bar, it will be at once perceived, that the demurrer to evidence, tried by the principles already stated, is fatally defective. The defendants have demurred, not to facts, but to evidence of facts; not to positive admissions, but to mere circumstances of presumption introduced on the other side. The plaintiff endeavoured to prove, by circumstantial evidence, that the defendants granted a license to Marsteller as an auctioneer. The defendants not only did not admit the existence of such a license, but they introduced testimony to disprove the fact. Even if the demurrer could be considered as being exclusively taken to the  plaintiff's evidence,  it ought not to have been allowed without a  distinct admission of the facts which that evidence conduced to prove. But when the demurrer was so framed as to let in the defendants' evidence, and thus to rebut what the other side aimed to establish, and to overthrow the presumptions arising therefrom, by counter presumptions, it was the duty of the Circuit Court to overrule the demurrer, as incorrect, and untenable in principle. The question referred by it to the Court, was not a question of law, but of fact. \nThis being, then, the posture of the case, the next consideration is, what is the proper duty of this Court, sitting in error. It is; undoubtedly, to reverse the judgment, and award a venire facias de novo. We may say, as was said by the Judges in Gibson v. Hunter, that this demurrer has been so incautiously framed, that there is no manner of certainty in the state of facts, upon which any judgment can be founded. Under such a predicament, the settled practice is, to award a new trial, upon the ground that the issue between the parties, in effect, has not been tried. \nJudgment reversed, and a venire facias de novo awarded. 2 \n \n\n ", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the  Court, and after stating the pleadings, proceeded as follows: \nAn objection, which is preliminary in its nature, has been taken to the admissibility  of this new count to the libel, filed in the Circuit Court, upon the ground, that the original subject matter was exclusively cognizable in the District Court; and to allow this amendment would be to institute an original, and not an appellate inquiry in the Circuit Court. But the objection itself is founded on a mistaken view of the rights and authorities of appellate Courts of admiralty. It is the common usage, and admitted doctrine of such Courts, to permit the parties, upon the appeal, to introduce new allegations, and new proofs, non allegata allegare, et non probata probare. The Courts of the United States, in the exercise of appellate jurisdiction in admiralty causes, are, by law, authorized to proceed according to the course of proceedings in Admiralty Courts. It has been the constant habit of the Circuit Courts, to allow amendments of this nature in cases where public justice, and the substantial merits, required them; and this practice has not only been incidentally sanctioned in this Court; but on various occasions in the exercise of its own final appellate jurisdiction, it has remanded causes to the Circuit Court, with directions to allow new counts to be filed. We  may, then, dismiss any farther discussion of this objection, and proceed to the main questions in controversy. [Here the learned judge recapitulated  the facts of the case as they have been before stated.] \nIn considering the circumstances, the Court has no difficulty in deciding, that this is not a case of a piratical aggression, in the sense of the act of Congress. The Portuguese ship, though armed, was so for a purely defensive mercantile purpose. She was bound homewards with a valuable cargo on board, and could have no motive to engage in any piratical act or enterprise. It is true, that she made a meditated, and, in a sense, a hostile attack, upon the Alligator, with the avowed intention of repelling her approach, or of crippling or destroying her. But, there is no reason to doubt, that this attack was not made with a piratical or felonious intent, or for the purpose of wanton plunder, or malicious destruction of property. It was done upon a mistake of the facts, under the notion of just self-defence, against what the master very imprudently deemed a piratical cruizer. The combat was, therefore, a combat on mutual misapprehension; and it ended without any of  those calamitous consequences to life which might have brought very painful considerations before the Court. \nIt has, indeed, been argued at the bar, that even if this attack had been a piratical aggression, it would not have justified the capture and sending in of the ship for adjudicasion, because foreign ships are not to be governed by our municipal regulations. But the act of Congress is decisive on this subject. It not only authorizes a capture, but a condemnation in our Courts, for  such aggressions; and whatever may be the responsibility incurred by the nation to foreign powers, in executing such laws, there can be no doubt that Courts of justice are bound to obey and administer them. \nThe other count, which seeks condemnation on the ground of an asserted hostile aggression, admits of a similar answer. It proceeds upon the principle, that, for gross violations of the law of nations on the high seas, the penalty of confiscation may be properly inflicted upon the offending property. Supposing the general rule to be so in ordinary cases of property taken in delicto, it is not, therefore, to be admitted, that every offence, however small, however done under a mistake  of rights, or for purposes wholly defensive, is to be visited with such harsh punishments. Whatever may be the case, where a gross, fraudulent, and unprovoked attack, is made by one vessel upon another upon the sea, which is attended with grievous loss or injury, such effects are not to be attributed to lighter faults, or common negligence. It may be just, in such cases, to award to the injured party full compensation for his actual loss and damage; but the infliction of any forfeiture beyond this does not seem to be pressed by any considerations derived from public law. \nPirates may, without doubt, be lawfully captured on the ocean by the public or private ships of every nation; for they are, in truth, the common enemies of all mankind, and, as such, are liable to the extreme rights of war. And a piratical  aggression by an armed vessel sailing under the regular flag of any nation, may be justly subjected to the penalty of confiscation for such a gross breach of the law of nations. But every hostile attack, in a time of peace, is not necessarily piratical. It may be by mistake, or in necessary self-defence, or to repel a supposed meditated attack by pirates. It may  be justifiable, and then no blame attaches to the act; or, it may be without just excuse, and then it carries responsibility in damages. If it proceed farther, if it be an attack from revenge and malignity, from gross abuse of power, and a settled purpose of mischief, it then assumes the character of a private unauthorized war, and may be punished by all the penalties which the law of nations can properly administer. \nThese latter ingredients are entirely wanting in the case before us; and, therefore, if the question of forfeiture were now in judgment, we should have no doubt, either upon the act of Congress, or the general law, that it ought not to be enforced. \nBut, in the present posture of this cause, the  libellants are no longer plaintiffs. The claimants interpose for damages in their turn, and have assumed the character of actors. They contend that they are entitled to damages, first, because the conduct of Lieutenant Stockton, in the approach and seizure of the Marianna Flora, was unjustifiable; and, secondly, because, at all events, the subsequent sending her in for adjudication was without any reasonable cause. \n In considering these points, it is  necessary to ascertain what are the rights and duties of armed, and other ships, navigating the ocean in time of peace. It is admitted, that the right of visitation and search does not, under such circumstances, belong to the public ships of any nation. This right is strictly a belligerant right, allowed by the general consent of nations in time of war, and limited to those occasions. It is true, that it has been held in the Courts of this country, that American ships, offending against our laws, and foreign ships, in like manner, offending within our jurisdiction, may, afterwards, be pursued and seized upon the ocean, and rightfully brought into our ports for adjudication. This, however, has never been supposed to draw after it any right of visitation or search. The party, in such case, seizes at his peril. If he establishes the forfeiture, he is justified. If he fails, he must make full compensation in damages. \nUpon the ocean, then, in time of peace, all possess an entire equality. It is the common highway of all, appropriated to the use of all; and no one can vindicate to himself a superior or exclusive prerogative there. Every ship sails there with the unquestionable  right of pursuing her own lawful business without interruption; but, whatever may be that business, she is bound to pursue it in such a manner as not to violate the rights of others. The general maxim in such cases is, sic utere tuo, ut non alienum lcedas. \nIt has been argued, that no ship has a right to  approach another at sea; and that every ship has a right to draw round her a line of jurisdiction, within which no other is at liberty to intrude. In short, that she may appropriate so much of the ocean as she may deem necessary for her protection, and prevent any nearer approach. \nThis doctrine appears to us novel, and is not supported by any authority.It goes to establish upon the ocean a territorial jurisdiction, like that which is claimed by all nations within cannon shot of their shores, in virtue of their general sovereignty. But the latter right is founded upon the principle of sovereign and permanent appropriation, and has never been successfully asserted beyond it. Every vessel undoubtedly has a right to the use of so much of the ocean as she occupies, and as is essential to her own movements. Beyond this, no exclusive right has ever yet been recognised, and  we see no reason for admitting its existence. Merchant ships are in the constant habit of approaching each other on the ocean, either to relieve their own distress, to procure information, or to ascertain the character of strangers; and, hitherto, there has never been supposed in such conduct any breach of the customary observances, or of the strictest principles of the law of nations. In respect to ships of war sailing, as in the present case, under the authority of their government, to arrest pirates, and other public offenders, there is no reason why they may not approach any vessels descried at sea, for the purpose of ascertaining their real characters. Such a right seems  indispensable for the fair and discreet exercise of their authority; and the use of it cannot be justly deemed indicative of any design to insult or injure those they approach, or to impede them in their lawful commerce. On the other hand, it is as clear, that no ship is, under such circumstances, bound to lie by, or wait the approach of any other ship. She is at full liberty to pursue her voyage in her own way, and to use all necessary precautions to avoid any suspected sinister enterprise or  hostile attack. She has a right to consult her own safety; but, at the same time, she must take care not to violate the rights of others. She may use any precautions dictated by the prudence or fears of her officers; either as to delay, or the progress or course of her voyage; but she is not at liberty to inflict injuries upon other innocent parties, simply because of conjectural dangers. These principles seem to us the natural result of the common duties and rights of nations navigating the ocean in time of peace. Such a state of things carries with it very different obligations and responsibilities from those which belong to public war, and is not to be confounded with it. \nThe first inquiry, then, is, whether the conduct of Lieutenant Stockton was, under all the circumstances preceding and attending the combat, justifiable. There is no pretence to say that he committed the first aggression.That, beyond all question, was on the part of the Marianna Flora; and her firing was persisted in after the Alligator had hoisted her national flag, and, of  course, held out a signal of her real pacific character. What, then, is the excuse for this hostile attack? Was it occasioned  by any default or misconduct on the part of the Alligator? It is said, that the Alligator had no right to approach the Marianna. Flora, and that the mere fact of approach authorized the attack. This is what the Court feels itself bound to deny. Lieutenant Stockton, with a view to the objects of his cruize, had just as unquestionable a right to use the ocean, as the Portuguese ship had; and his right of approach was just as perfect as her right of flight. But, in point of fact, Lieutenant Stockton's approach was not from mere motives of public service, but was occasioned by the acts of the Marianna Flora. He was steering on a course which must, in a short time, have carried him far away from her. She lay to, and showed a signal ordinarily indicative of distress. It was so understood, and, from motives of humanity, the course was changed, in order to afford the necessary relief. There is not a pretence in the whole evidence, that the lying to was not voluntary, and was not an invitation of some sort.The whole reasoning on the part of the claimants is, that it was for the purpose of meeting a supposed enemy by day light, and, in this way, to avoid the difficulties of an engagement  in the night. But how was this to be known on board of the Alligator? How was it to be known that she was a Portuguese ship, or that she took the Alligator for a pirate, or that her object in laying to was a defensive operation? When the  vessels  were within reach of each other, the first salutation from the ship was a shot fired ahead, and, at the same time, no national flag appeared at the mast-head. The ship was armed, appeared full of men, and, from her manoeuvres, almost necessarily led to the supposition, that her previous conduct was a decoy, and that she was either a piratical vessel, or, at least, in possession of pirates. Under such circumstances, with hostilities already proclaimed, Lieutenant Stockton was certainly not bound to retreat; and, upon his advance, other guns, loaded with shot, were fired, for the express purpose of destruction. It was, then, a case of open, meditated hostility, and this, too, without any national flag displayed by the Portuguese ship, which might tend to correct the error, for she never hoisted her flag until the surrender. What, then, was Lieutenant Stockton's duty? In our view it was plain, it was to oppose force  to force, to attack and to subdue the vessel thus prosecuting unauthorized warfare upon his schooner and crew. In taking, therefore, the readiest means to accomplish the object, he acted, in our opinion, with entire legal propriety. He was not bound to fly, or to wait until he was crippled. His was not a case of mere remote danger, but of imminent, pressing, and present danger. He had the flag of his country to maintain, and the rights of his cruizer to vindicate. To have hesitated in what his duty to his government called for on such an occasion, would have been to betray (what no honourable  officer could be supposed to indulge) an indifference to its dignity and sovereignty. \nBut, it is argued, that Lieutenant Stockton was bound to have affirmed his national flag by an appropriate gun; that this is a customary observance at sea, and is universally understood as indispensable to prevent mistakes and misadventures; and that the omission was such a default on his part, as places him in delicto as to all the subsequent transactions. This imputation certainly comes with no extraordinary grace from the party by whom it is now asserted. If such an observance be usual and  necessary, why was it not complied with on the part of the Marianna Flora? Her commander asserts, that by the laws of his own country, as well as those of France and Spain, this is a known and positive obligation on all armed vessels, which they are not at liberty to disregard. Upon what ground, then, can he claim an exemption from performing it? Upon what ground can he set up as a default in another, that which he has wholly omitted to do on his own part? His own duty was clear, and pointed out; and yet he makes that a matter of complaint against the other side, which was confessedly a primary default in himself. He not only did not hoist or affirm his flag in the first instance, but repeatedly fired at his adversary with hostile intentions, without exhibiting his own national character at all. He left, therefore, according to his own view of the law, his own duty unperformed, and fortified, as against himself, the very inference, that his ship  might properly be deemed, under such circumstances, a piratical cruizer. \nBut, we are not disposed to admit, that there exists any such universal rule or obligation of an affirming gun, as has been suggested at the bar. It  may be the law of the maritime states of the European continent already alluded to, founded in their own usages or positive regulations.But, it does not hence follow, that it is binding upon all other nations. It was admitted, at the argument, that the English practice is otherwise; and, surely, as a maritime power, England deserves to be listened to with as much respect, on such a point, as any other nation. It was justly inferred, that the practice of America is conformable to that of England; and the absence of any counter proof on the record, is almost of itself decisive. Such, however, as the practice is, even among the continental nations of Europe, it is a practice adopted with reference to a state of war, rather than peace. It may be a useful precaution to prevent conflicts between neutrals, and allies, and belligerants, and even between armed ships of the same nation. But the very necessity of the precaution in time of war arises from circumstances, which do not ordinarily occur in time of general peace. Assuming, therefore, that the ceremony might be salutary and proper in periods of war, and suitable to its exigencies, it by no means follows, that it is justly to be  insisted on at the peril of costs and damages in peace. In any view, therefore, we do not think this omission can avail the claimants. \n Again; it is argued, that there is a general obligation upon armed ships, in exercising the right of visitation and search, to keep at a distance, out of cannon shot, and to demean themselves in such a manner as not to endanger neutrals. And this objection, it is added, has been specially provided for, and enforced by the stipulations of many of our own treaties with foreign powers. It might be a decisive answer to this argument, that, here, no right of visitation and search was attempted to be exercised. Lieutenant Stockton did not claim to be a belligerant, entitled to search neutrals on the ocean. His commission was for other objects. He did not approach or subdue the Marianna Flora, in order to compel her to submit to his search, but with other motives. He took possession of her, not because she resisted the right of search, but because she attacked him in a hostile manner, without any reasonable cause or provocation. \nDoubtless, the obligation of treaties is to be observed with entire good faith, and scrupulous care. But, stipulations  in treaties having sole reference to the exercise of the rights of belligerants in time of war, cannot, upon any reasonable principles of construction, be applied to govern cases exclusively of another nature, and belonging to a state of peace. Another consideration, quite sufficient to establish that such stipulations cannot be applied in aid of the present case, is, that whatever may be our duties to other nations, we have no such treaty subsisting with  Portugal.It will scarcely be pretended, that we are bound to Portugal by stipulations to which she is no party, and by which she incurs no correspondent obligation. \nUpon the whole, we are of opinion, that the conduct of Lieutenant Stockton, in approaching, and, ultimately, in subduing the Marianna Flora, was entirely justifiable. The first wrong was done by her, and his own subsequent acts were a just defence and vindication of the rights and honour of his country. \n The next inquiry is, whether the act of sending in the Marianna Flora for adjudication, was, under all the circumstances, unjustifiable, so as to carry with it responsibility in damages. \nIt is argued, that, upon examination of the ship's papers,  the crew, and the cargo, it must clearly have appeared, that the ship was a merchant ship bound on a lawful voyage, and not a piratical cruizer. This state of the case must be admitted to have been apparent. But the real difficulty is of another sort. Her papers, and cargo, and destination, could give no information of the nature of the attack made upon the Alligator. However hostile, malignant, or even piratical, the aggression might be, the papers could shed no light upon the subject. The owners of the cargo, and the owners of the ship, (so far at least as their duties and responsibilities were not bound up by the acts of the master, as their agent,) might be innocent; the voyage might be of a purely mercantile character, and yet, acts of aggression might be committed,  which might bring the case completely within the act of Congress, or of the general law of nations, as a gross and violent injury, calling for ample redress. The real duty imposed upon Lieutenant Stockton was, not to examine the papers, unless so far as they might explain doubtful circumstances, but to ascertain the nature, object, and intent, of the attack upon his vessel. He was bound to exercise  an honest and fair discretion on the subject, and to obtain such explanations as might guide his judgment. What was the excuse offered for the attack upon him? It was not that the guns were fired by mistake or accident. They were admitted to have been by authority and design. They were fired after his own flag was displayed, and with the express intention of disabling the vessel and destroying the crew. The only excuse offered for this unjustifiable act was, that the commander entertained a fear that the Alligator was a pirate. But, such a fear, unauthorized by any acts on the other side, was no excuse for a wrong which might have led to the most fatal consequences. If the Alligator had been seriously injured, or any of her crew had been killed, no doubt could exist, that, under such circumstances, the ship ought to have been sent in for adjudication, to enforce redress, and, also, to administer, if necessary, punishment. The attack was not the less inexcusable because the consequences were not as injurious as the master intended. \nIt is a different thing to sit in judgment upon this case, after full legal investigations, aided by  the regular evidence of all parties,  and to draw conclusions at sea, with very imperfect means of ascertaining facts and principles, which ought to direct the judgment. It would be a harsh judgment to declare, that an officer charged with high and responsible duties on the part of his government, should exercise the discretion intrusted to him at the peril of damages, because a Court of law might ultimately decide, that he might well have exercised that discretion another way. If Lieutenant Stockton had acted with gross negligence or malignity, and with a wanton abuse of power, there might be strong grounds on which to rest this claim of damages. But, it is conceded on all sides, and in this opinion the Court concurs, that he acted with honourable motives, and from a sense of duty to his government. He thought the aggression was piratical, and that it was an indignity to the national flag, utterly inexcusable. The view now taken by this Court, in respect to the whole case, upon a full examination of all the facts, is certainly somewhat different. It leads us to say, that Lieutenant Stockton might, without justly incurring the displeasure of his government, have released the ship, not because she had done no wrong,  but because the wrong was not of such a nature as called for vindictive redress. \nBut, the question upon which damages must depend, is not whether he might not have released the ship, but, whether he was, at all events, bound so to do; and whether that obligation  was so imperative, that the omission ought to be visited with damages. \nWe are, then, to consider the real difficulties of Lieutenant Stockton's situation. An attack had been made upon a national ship under his command without cause. It was a hostile act, an indignity to the nation, and a trespass upon its rights and sovereignty. It was not an accidental, but a meditated act; not necessarily carrying own excuse along with it, but susceptible of different interpretations. It was not an affair in which he was at liberty to consult his own wishes or honour merely, although a brave and distinguished officer might naturally feel some solicitude to preserve his high reputation untarnished in the eyes of his government. He was bound to look to the rights of his country. He might well hesitate in assuming the arbitration of national wrongs. He might well feel a scrupulous delicacy in undertaking to waive any claim  which the government had authority to enforce, or to defeat any redress which it might choose to seek, or to prevent any inquiries which, through its established tribunals, it might think fit to institute, in respect to his conduct, or that of the offending vessel.Considerations of this nature could not but weigh heavily upon the mind of a gallant officer; and they are not unfit to be entertained by this Court in forming its own judgment. \nIt is, also, farther to be observed, that the case was confessedly new in its character and circumstances. The researches of counsel throughout  the progress of this protracted controversy, have not discovered any case, which, in point of law, can govern this.If it is new here, it may well be deemed to have been new and embarrassing to Lieutenant Stockton. In such a case, it is not matter of surprise, that he should come to the conclusion that it was not proper to take upon himself the responsibility of a final decision; but to confide the honour of the nation, as well as the rights of the other party, to judicial decision. No inference is attempted to be drawn, that his acts were intentionally oppressive and harsh; and it would be going  a great way to declare, that an exercise of honest discretion, in a case of wrong on the other side, ought to draw after it the penalty of damages. \nThere is another more general consideration,  which is entitled to great weight in this case. In cases of capture, strictly so called, no decision has been cited, in which, if the capture itself was justifiable, the subsequent detention for adjudication has ever been punished by damages. As far as counsel have examined, or our own researches extend, no such principle has ever been established. The present case stands upon a strong analogy, and to inflict damages would be to desert that analogy. Even in cases of marine torts, independent of prize, Courts of admiralty are in the habit of giving or withholding damages upon enlarged principles of justice and equity, and have not circumscribed themselves within the positive boundaries of mere municipal law. They have exercised a conscientious discretion  upon the subject. A party, who is in delicto, ought to make a strong case, to entitle himself to general relief. \nThe case of the Louis, (2 Dodson's Rep. 210.) is a striking example in illustration of these remarks.  There, a French slave ship was, in a time of peace, taken possession of by an English armed cutter, after a sharp engagement, in which several men were killed on both sides. The ship was carried into Sierra Leone for adjudication, and, subsequently, the cause came before the High Court of Admiralty upon appeal. The decision pronounced by Lord Stowell appears to have been made after very full consideration, and is expounded in his most elaborate manner. He decided, that the original seizure was totally unjustifiable; and that, even if the slave trade was prohibited by the French laws, (which, he thought, it was not,) still, it was not for English cruizers to claim a right of search, or to seize such vessels to enforce those laws. He, therefore pronounced a decree of restitution.But he denied damages and costs to the claimant. His language on that occasion was, \"Upon the matter of costs and damages, that have been prayed, I must observe, that it is the first case of the kind, and that the question itself is primae impressionis; and that, upon both grounds, it is not the inclination of the Court to inflict such a censure.\" Here, then, we have a case of an acknowledged maritime trespass,  accompanied with circumstances of immediate and fatal injury, in which the original wrong travelled along with,  and infected the whole subsequent proceedings; and yet the Court, on account of its being the first instance, and of the novelty of the question, deemed it a conscientious exercise of its discretion not to award damages. The case before this Court is also of the first occurrence, and the question is entirely new in its presentation. It has this striking fact, in which it is most favourably distinguished from the Louis, that the original seizure was justifiable, and if the intent of piratical aggression had been established, condemnation must have ensued. \nIf, then, this Court should, under these circumstances, award damages, it would take a new step, never known to have been taken before by a Court of admiralty. It would desert the analogy of cases of justifiable capture in matters of prize, and introduce a rule harsh and severe in a case of first impression, whose bearing and character have engaged the bar and bench in several most laborious discussions, and inflict upon an honest exercise of discretion, a punishment which has been denied, in the Louis, to  an inexcusable wrong. \nThere are one or two other suggestions which were urged in the argument, that ought not to be passed over in silence. It is said, that the tort, if it ought to be redressed at all by a proceeding in rem, was exclusively cognizable in the Courts of Portugal. We are not aware of any principle upon which this position can be legally maintained. There is no more reason why the Courts of Portugal should hold exclusive  jurisdiction upon this case, than the Courts of this country. We see no difficulty in supporting the jurisdiction as concurrent in both nations. But, if there be any choice, it seems more properly to belong to the country of the injured, than of the offending, party. \nIt is also said, that, at all events, the cargo was not liable to condemnation, even if the offending vessel was liable under the act of Congress. Probably this is true in respect to that act. But the second count embraces a wider range; and if it had been proved in its aggravated extent, it does not necessarily follow, that the cargo ought to be exempted. That is a question which would require grave deliberation. It is, in general, true, that the act of the master of  the vessel does not bind the innocent owner of the cargo; but the rule is not of universal application. And where the master is also agent of the owner of the cargo, or both ship and cargo belong to the same person, a distinction may, perhaps, arise, in the principle of decision. But, however this may be, in the present case, if the vessel was sent in for adjudication, the cargo must, of necessity, accompany her; nor could its particular ownership be fully ascertained, until the examinations of the crew were regularly taken. There is no evidence in this case to show, that at any subsequent period it was desirable, or could have been advantageous to the claimants, to have separated the ship and  cargo, and to have instituted a new voyage for the latter under other auspices. \nIn the District Court, an allowance was made of five hundred dollars, distributable among the crew, on account of their confinement on the passage to Boston, upon the ground, that the sending in of the vessel was wrongful. That award was reversed in the Circuit Court; and no appeal was taken by the crew, as, indeed, none could be, on account of the insufficiency of the sum to entitle the parties in  interest to appeal. It is only necessary, therefore, to state, that that matter is not now before this Court; and, it is to be presumed, that the confinement was such only as was indispensable for the safety of the seizors. \nUpon the whole, it is the opinion of the Court, that the decree of the Circuit Court ought to be affirmed, and it is, accordingly, affirmed, without costs to either party. \nDecree accordingly. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the Court. \n This is a suit originally brought in the Circuit Court of Ohio, by the Bank of the United States, against A. G. Wood and George Ebert, doing business under the firm of Wood and Ebert, Alexander Adair, Horace Reed, and the plaintiff in error, Peter Mills. The declaration was for 3,600 dollars, money lent and advanced. During the pendency of the suit, Reed and Adair died. Mills filed a separate plea of non assumpsit, upon which issue was joined; and upon the trial, the jury returned a verdict for the Bank of the United States for 4641 dollars; upon which judgment was rendered in their favour. At the trial, a bill of exceptions was taken by Mills, for the consideration of the matter of which the present writ of error has been brought to this Court. \nBy the bill of exceptions it appears, that the evidence offered by the plaintiffs in support of the action, \"was, by consent of counsel, permitted to go to the jury, saving all exceptions  to its competence and admissibility, which the counsel for the defendant reserved the right to insist in claiming the instructions of the Court to the jury on the whole case.\" \nThe plaintiffs offered in evidence a promissory note signed Wood and Ebert, and purporting to be endorsed in blank by Peter Mills, Alexander Adair, and Horace Reed, as successive endorsers, which note, with the endorsements thereon, is as follows, to wit: \"Chilicothe, 20th of July, 1819. Dollars 3,600. Sixty days after date I promise to pay to Peter Mills, or order, at the office  of discount and deposit of the Bank of the United States, at Chilicothe, three thousand six hundred dollars, for value received. Wood & Ebert.\" Endorsed, \"Pay to A. Adair or order, Peter Mills.\" \"Pay to Horace Reed or order. A. Adair.\" \"Pay to the P. Directors and Company of the Bank of the U. States, or order.Horace Reed.\" On the upper right hand corner of the note is also endorsed, \"3185. Wood & Ebert, 3,600 dollars, Sep. 18 -- 21.\" It was proven, that this note had been sent to the office at Chilicothe to renew a note which had been five or six times previously renewed by the same parties. It was proven, by the  deposition of Levin Belt, Esq., Mayor of the town of Chilicothe, that, on the 22d day of September, 1819, immediately after the commencement of the hours of business, he duly presented the said note at the said office of discount and deposit, and there demanded payment of the said note, but there was no person there ready or willing to pay the same, and the said note was not paid, in consequence of which, the said deponent immediately protested the said note for the non-payment and dishonour thereof, and immediately thereafter prepared a notice for each of the endorsers respectively, and immediately  on the same day deposited one of said notices in the post-office, directed to Peter Mills, at Zanesville, (his place of residence,) of which notice the following is a copy: \"Chilicothe, 22d of September, 1819. Sir, you will hereby take  notice, that a note drawn by Wood & Ebert, dated 20th day of September, 1819, for 3,600 dollars, payable to you, or order, in sixty days, at the office of discount and deposit of the Bank of the United States at Chilicothe, and on which you are endorser, has been protested for non-payment, and the holders thereof look to you. Yours,  respectfully, Levin Belt, Mayor of Chilicothe.\" (Peter Mills, Esq.) It was further proven by the plaintiffs, that it had been the custom of the banks in Chilicothe, for a long time previously to the establishment of a branch in that place, to make demand of promissory notes, and bills of exchange, on the day after the last day of grace, (that is, on the 64th day,) that the Branch Bank, on its establishment at Chilicothe, adopted that custom, and that such had been the uniform usage in the several banks in that place ever since. No evidence was given of the hand writing of either of the endorsers. The Court charged the jury, first, that the notice being sufficient to put the defendant upon inquiry, was good, in point of form, to charge him, although it did not name the person who was holder of the said note, nor state that a demand had been made at the bank when the note was due. 2. That if the jury find that there was no other note payable in the office at Chilicothe, drawn by Wood & Ebert, and endorsed by defendant, except the note in controversy, the mistake in the date of the note made by the notary in the notice given to that defendant, does not impair the liability of the  said defendant, and the plaintiffs  have a right to recover. 3. That should the jury find that the usage of banks, and of the office of discount and deposit in Chilicothe, was to make demand of payment, and to protest and give notice, on the 64th day, such demand and notice are sufficient. \nThe counsel on the part of the defendant, prayed the Court to instruct the jury, \"that before the common principles of the law relating to the demand and notice necessary to charge the endorser, can be varied by a usage and custom of the plaintiffs, the jury must be satisfied that the defendant had personal knowledge of the usage or custom at the time he endorsed the note; and, also, that before the plaintiffs can recover as the holder and endorser of a promissory note, they must prove their title to the proceeds by evidence of the endorsements on the note,\" which instructions were refused by the Court. \nUpon this posture of the case, no questions arise for determination here, except such as grow out of the charge of the Court, or the instructions refused on the prayer of the defendant's (Mills') counsel. Whether the evidence was, in other respects, sufficient to establish the joint  promise stated in the declaration, or the joint consideration of money lent, are matters not submitted to us upon the record, and were proper for argument to the jury. \nThe first point is, whether the notice sent to the defendant at Chilicothe, was sufficient to charge him as endorser. The Court was of opinion, that it was sufficient, if there was no other  note payable in the office at Chilicothe, drawn by Wood & Ebert, and endorsed by the defendant. \nIt is contended, that this opinion is erroneous, because the notice was fatally defective by reason of its not stating who was the holder, by reason of its misdescription of the date of the note, and by reason of its not stating that a demand had been made at the bank when the note was due. The first objection proceeds upon a doctrine which is not admitted to be correct; and no authority is produced to support it. No form of notice to an endorser has been prescribed by law. The whole object of it is to inform the party to whom it is sent, that payment has been refused by the maker; that he is considered liable; and that payment is expected of him. It if of no consequence to the endorser who is the holder, as he is equally  bound by the notice, whomsoever he may be; and it is time enough for him to ascertain the true title of the holder, when he is called upon for payment. \nThe objection of misdescription may be disposed of in a few words. It cannot be for a moment maintained, that every variance, however immaterial, is fatal to the notice. It must be such a variance as conveys no sufficient knowledge to the party of the particular note which has been dishonoured. If it does not mislead him, if it conveys to him the real fact without any doubt, the variance cannot be material, either to guard his rights, or avoid his responsibility. In the present case, the misdescription  was merely in the date. The sum, the  parties, the time and place of payment, and the endorsement, were truly and accurately described. The error, too, was apparent on the face of the notice. The party was informed, that on the 22d of September, a note endorsed by him, payable in sixty days, was protested for non-payment; and yet the note itself was stated to be dated on the 20th of the same month, and, of course, only two days before. Under these circumstances, the Court laid down a rule most favourable  to the defendant. It directed the jury to find the notice good, if there was no other note payable in the office at Chilicothe, drawn by Wood & Ebert, and endorsed by the defendant. If there was no other note, how could the mistake of date possibly mislead the defendant? If he had endorsed but one note for Wood & Ebert, how could the notice fail to be full and unexceptionable in fact? \nThe last objection to the notice is, that it does not state that payment was demanded at the bank when the note became due. It is certainly not necessary that the notice should contain such a formal allegation. It is sufficient that it states the fact of non-payment of the note, and that the holder looks to the endorser for indemnity. Whether the demand was duly and regularly made, is matter of evidence to be established at the trial.If it be not legally made, no averment, however accurate, will help the case; and a statement of non-payment, and notice, is, by necessary implication, an assertion of right by the holder, founded upon his having complied  with the requisitions of law against the endorser. In point of fact, in commercial cities, the general, if not universal, practice is,  not to state in the notice the mode or place of demand, but the mere naked non-payment. \nUpon the point, then, of notice, we think there is no error in the opinion of the Circuit Court. \nAnother question is, whether the usage and custom of the bank, not to make demand of payment until the fourth day of grace, bound the defendant, unless he had personal knowledge of that usage and custom. There is no doubt, that according to the general rules of law, demand of payment ought to be made on the third day, and that it is too late if made on the fourth day of grace. But it has been decided by this Court, upon full consideration and argument, in the case of Renner v. The Bank of Columbia, (9 Wheat. Rep. 582.) that where a note is made for the purpose of being negotiated at a Bank, whose custom, known to the parties, it is to demand payment and give notice on the fourth day of grace, that custom forms a part of the law of such contract, at least so far as to bind their rights. In the present case, the Court is called upon to take one step farther; and upon the principles and reasoning of the former case, it has come to the conclusion, that when a note is made payable or negotiable at a  bank, whose invariable usage it is to demand payment, and give notice on the fourth day of grace, the parties are bound by that usage, whether they have a personal  knowledge of it or not. In the case of such a note, the parties are presumed by implication to agree to be governed by the usage of the bank at which they have chosen to make the security itself negotiable. \nAnother question propounded by the defendant is, whether the plaintiffs were entitled to recover without establishing their title to the note, as holders by proof of the endorsements. There is no doubt, that by the general rule of law, such proof is indispensable on the part of the plaintiffs, unless it is waived by the other side. But in all such cases, the defendant may waive a rule introduced for his benefit; and such waiver may be implied from circumstances, as well as expressly given. It is in this view that the rule of the Circuit Court of Ohio of 1819, which has been referred to at the bar, deserves consideration. That rule declares, \" that hereafter, in any actions brought upon bond, bill, or note it shall not be necessary for the plaintiffs on trial to prove the execution of the bond, bill, or  note, unless the defendant shall have filed with his plea an affidavit, that such bond, bill, or note, was not executed by him.\" We think the present case falls completely within the purview of this rule. Its object was to prevent unnecessary expense and useless delays upon objections at trials, which were frivolous and unconnected with the merits. If the rule attempted to interfere with, or control the rules of evidence, it certainly could not be supported. But it attempts no such thing. It does not deny to the party  the right to demand proof of the execution or endorsement of the note at the trial; but it requires him in effect, to give notice by affidavit, accompanying the plea, that he means to contest that fact under the issue. If the party gives no such notice, and files no such affidavit, it is on his own part a waiver of the right to contest the fact, or rather an admission that he does not mean to contest it. We see no hardship in such a rule. It subserves the purposes of justice, and prevents the accumulation of costs. It follows out, in an exemplary manner, that injunction of the Judiciary act of the 2d of March, 1793, ch. 22., which requires the Courts  of the United States \"to regulate the practice thereof, as shall be fit and necessary for the advancement of justice, and especially to that end to prevent delays in proceedings.\" As no affidavit accompanied the plea of the defendant in the present case, he had no right to insist upon the proof of the endorsements. \nAnother objection now urged against the judgment is, that the count demands 3,600 dollars only, and the jury gave damages amounting to 4,641 dollars. But there is no error in this proceeding, since the ad damnum is for a larger sum. In all cases wher interest, not stipulated for by the terms of the contract, is given by way of damages, the sum demanded in the declaration is less than the sum for which judgment is rendered. The plaintiffs may not recover more, as principal, than the sum demanded as such in  the declaration; but the jury have a right to add interest, by way of damages, for the delay. \nSome other objections have been suggested at the bar, such as, that the jury had no right, without evidence, to presume that there was no other note of Wood & Ebert, in order to help the misdescription; and that the case proved was of several liabilities of the  defendants,  which would not support a declaration on a joint contract. These questions have been fully argued by counsel, but are not presented by the record in such a shape as to enable the Court to take cognizance of them. \nUpon the whole, it is the opinion of the Court, that the judgment ought to be affirmed, with costs. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered  the opinion of the Court. \nThis is the case of an action of debt, brought by the plaintiff as administrator of Louisa Browning, against the defendant, for the recovery of certain quit-rents asserted to be due to the intestate, as Proprietary of the Province of Maryland, and accruing between the years 1771 and 1780.In the Circuit Court for Maryland District, upon the trial of the cause upon the general issue, a special verdict was found, upon which that Court gave judgment pro forma for the defendant, and the cause has been brought before us for a final decision, by a writ of error. \nThe cause has been here argued with great ability and care. Many important and difficult points have been discussed at the bar, upon which, if we were called to pronounce a decision, we should wish for more time and consideration to mature our judgment. But, as we have all come to a conclusion upon one point, which finally disposes of the whole cause, it is deemed proper at once to put the parties in possession of our opinion, without attempting to analyse the learning which is involved in others of more complexity, and would require more extensive researches. \nFor the purposes of the present decision,  it is assumed, (without, however, meaning to intimato  any real opinion on the subject,) that every other difficulty in respect to the title and claim of Louisa Browning to the quit-rents in controversy, is overcome, and the question of the effect of the agreement concluded between the parties in June, 1780, and subsequently confirmed by Parliament in the year 1781, is that to which the Court has addressed its attention. If that agreement, so confirmed and executed, as the case finds, extinguished, in point of law, the title of Louisa Browning to these quit-rents, and passed it to Henry Harford, there is an end to the present suit. And such, upon the best consideration of the case, in our judgment, was the legal effect of that agreement so confirmed and executed. \nThe agreement is quadripartite between Henry Harford of the first part, John Browning, the husband of Louisa Browning, and Sir Robert Eden, and Caroline his wife, (the said Louisa and Catharine being the heirs at law of Frederick Lord Baltimore,) of the second part, Sir Cecil Wray, the committee of the real and personal estate of the said Louisa, she being a lunatic, of the third part, and Hugh Hammersly and  Peter Prevost, two of the executors named in the will of Lord Frederick, of the fourth part. The object of the agreement was to make a final settlement between the parties of all differences, and particularly to settle the title to the Province of Maryland, and all the hereditaments and revenues connected therewith. It makes an absolute cession of the Province and revenues, &c.  &c. from the decease of Lord Frederick, to Henry Harford and his heirs, upon the payment (among other things) of 10,000 pounds to John Browning and Louisa his wife, and 10,000 pounds to Sir Robert Eden and Caroline his wife, in the manner stipulated in the agreement. It farther stipulates, in the event of the restoration of Henry Harford to the possession of the Province and its revenues, growing or in arrear, for an additional sum of 10,000 pounds, for the benefit of each of these ladies, payable out of the same; but as that event never occurred, it is unnecessary to dwell further upon it. The other sums were duly and regularly paid. The agreement further stipulated for an application to be made to the British Parliament for an act to confirm the same, and to vest in Henry Harford and his heirs,  the title to the Province, and its revenues, &c.; with a provision, that the agreement should be void unless the royal assent should be given to the act within three years. The act passed, and was assented to by the king within the period prescribed. It vests the title to the Province, and its revenues, and quit-rents, &c. absolutely in Henry Harford in fee, subject only to the payment of the sums before mentioned, and some others not material to this cause. \nWhat is there, then, to prevent the agreement and act from having full effect? The parties were all British subjects resident within the realm; the act of Parliament was passed upon their own application and agreement; all persons in interest were fully represented, so far as by  law they were capable of being represented; the conditions stipulated have been complied with; the confirmation was absolute; and the intention was, to extinguish, at law, as well as in equity, every claim of Louisa Browning to the quit-rents now in controversy. \nIt has been argued, that the agreement contemplated a restoration of Henry Harford to the possession of the Province, and the payment of large sums consequent thereon; and that,  this being a material ingredient in the contract, which became incapable of execution, the agreement ought not to be enforced, or held obligatory. It would be a sufficient answer to this objection, that the parties, at the time of the execution of the agreement, knew perfectly well that the Province had assumed independence, and that the chance of restoration depended upon the issue of the war then waged between the United States and Great Britain. They acted upon that state of things, and provided for the payment of these additional sums, only in the event of an unsuccessful struggle on the part of the Province. The stipulation, therefore, has not failed, in point of consideration, from the misconduct of either party; but the event, in which alone it was to have any effect, never has occurred. The payment was conditional, and the condition has never arisen, upon which alone the contract could act. \nBut there is another answer presented by the very terms of the agreement itself. It is, that the parties expressly agreed, that the title to the  Province, &c. should vest absolutely upon the payment of the first 10,000 pounds; and, of course, the other provisions were to  rest in covenant only between the parties, and were not to be construed to defeat or devest that title. The act of Parliament treats it in that way, and vests the title in Henry Harford in fee, conclusively. \nIt has been further argued, that it was not  competent for John Browning, the husband, as such, to convey the title to these quit-rents belonging to his wife, so as to bar her, in case of survivorship, from the right of recovery; and that, she being a lunatic, no act done by her committee could in any manner touch her rights. \nIt is to be recollected, that the quit-rents, as claimed, were debts then actually due (if at all) to Louisa Browning. They were not future contingent or reversionary interests vested in her. How far, in respect to such interests, the husband, or the committee of a lunatic, is by law authorized by a conveyance or assignment to dispose of her rights, is a question which we are not called upon to decide, and upon which we give no opinion. The case here, is of choses in action actually due to the wife. There can be no question, that he was entitled to receive them to his own use, or to extinguish them by a release. What, then, is there to prevent  him from disposing of them by assignment, at least in equity? \nIt does not appear to us that it has ever yet been decided, that a bona fide assignment for a valuable consideration, made by a husband to a third person, of a debt actually and presently  due to his wife, does not devest, in equity, the title of the wife. So far as authorities have gone, they seem to proceed upon a different and opposite doctrine. The cases of Lumb v. Milnes, (5 Ves. Rep. 517.) and Mitford v. Mitford, (9 Ves. Rep. 87.) are distinguishable. They were cases of a general assignment under the bankrupt laws, which are not supposed to do more than place the assignees in the same situation as the bankrupt himself. The case of Hornby v. Lee, (2 Madd. Rep. 16.) turned upon another distinction, that the interest was not a present, but a reversionary interest. But, without deciding any general principle, we think, that under the particular circumstances of this case, where the consideration has actually gone beneficially for the wife, and the whole transaction has been under the direction of a Court of Chancery, and been confirmed by Parliament, the assignment was, to all intents and purposes, valid  to assign the rents. If, in ordinary circumstances, such an assignment would pass an equitable title only, we think the act of Parliament makes it, to all intents and purposes, a legal title and assignment. Without dwelling upon the known principles of the paramount and omnipotent authority over private rights and authorities, which is often attributed to Parliament, it may be justly said, that it is competent for the legislature, upon the application, and with the consent of all the parties in interest, to give a legal and conclusive effect to their own agreements, and to pass that at law, which the parties, in the most  unreserved manner, intended to pass. A title so passed, and so confirmed, by authorities perfectly competent to make it, ought, under such circumstances, to be recognised as valid in the tribunals of every other country. \nThis is a summary exposition of the views of the Court upon this subject; and it at once disposes of the whole matter in controversy. The judgment of the Circuit Court is, therefore, affirmed, with costs. 13 \n \"Trinity Term, 15 Geo. III. B. R. Tuesday, 27th June, 1775, \nHARFORD v. BROWNING. \nMr. Serjeant Hill, for Mrs. Browning and Mrs. Eden. \nHe first stated the case, and when he had finished this, Lord Mansfield asked, in what shape the cause came before the Court, and for whom Mr. Serjeant Hill was to argue. The Serjeant answered, that the case came from Chancery to know whether the last lord had a right to devise; and that, if he could not, it was the same to Master Harlord whether the property went to Mrs. Browning and Mrs. Eden, the last lord's sisters, as co-heirs of the first grantee of Maryland, or to Mrs. Browning alone, as devisee of her father. Lord Mansfield then observed, that there would have been no question if the estate had been situate in England, and that the ground of the doubt was its being a seignory and proprietary government in America. \nMr. Serjeant Hill proceeded in his argument to the following effect: \nThe general question is, whether the Province, and proprietorship, and port duties of Maryland, are well devised by the will of the last Lord Baltimore; and to show that they could not pass, I shall submit two general points: \n1. That the property is so high  in its nature, and, in other respects, so peculiar, as not to be devisable. \n2. That the subsisting entails were not well barred by the last Lord Baltimore, either because he did not do the proper and necessary acts for barring, or because such entails were not capable of being barred in any way. \n1. I apprehend, that the proprietorship of Maryland is not alienable without the license of the crown, and much less devisable. \nThe design of the Maryland charter was to erect a Province in the District called Maryland, to establish a form of government similar to our own, and to place Caecil Lord Baltimore, and his heirs, at the head of it. The highest powers are conferred, and, perhaps, the crown's right to grant some of them may be doubtful; but it is not necessary to this case to determine which could, and which could not, be granted. The charter gives royal juris diction, and a royal seignory. Of the first kind are the powers of enacting laws with the consent of the Assembly, of erecting Courts, of appointing magistrates, of punishing criminals, and of levying men, and all the powers of war and peace. Of the second kind is the power of making subinfeudations. The charter reserves  a tenure of the king as of the castle of Windsor; for the law would otherwise have created a tenure in capite. The king cannot grant without reserving a tenure, for he cannot change the principles of the constitution, one of which is, that there must be a tenure. The king constituted Lord Baltimore the lord and proprietor of the whole Province. There is no instance before of the grant of a proprietorship. But, though there was not before any such sovereignty in name, yet, in specie, there was such a property, and the Counties Palatine of Chester and Durham, resembled it. From the high nature of these powers and jurisdictions, I argue, that the Province could not be aliened without license of the crown, nor could it be a subject of the statute of wills.At the time of that statute, no such high property existed in the empire. The 32d of Henry VIII. in giving the power of devising, mentions manors, lands, tenements, and hereditaments. It begins with manors, and though hercditaments, which is the last word, would, singly, have been sufficient to have extended to this property, yet, coupled with the former words, it is not so. The 13 Eliz. cap. 10. s. 3. begins with enumerating deans,  &c. and then adds, all others having spiritual or ecclesiastical promotions; but bishops and archbishops being higher than deans, are not included. So, the statute of wills, beginning with manors, shall not extend to a higher dominion, such as proprietary government. Dependent kingdoms are not devisable without the consent of the superior prince. Dominion is not the subject of testamentary disposition; and Craig says, that all feudists agree in this. Nor are things given for the support of dominion, such as the port duties here, in their nature devisable. With us the king cannot devise the lands and revenues allotted for the support of his royal dignity. This, indeed, has not been the subject of judicial decision; and in the Bankers' case, Lord Somers, though he reversed the judgment of the Court of Exchequer, avoided this point; but our kings never attempted to exercise such a power. See 5 Mod. Rep. 46. and Lord Somers' argument in the Banker's case. The 9 and 10 Wm. III. cap. 23. which gave a revenue to King William for his life, recites to be for his household and family expenses; and now, by the Civil List Act of Queen Ann, the alienation of the crown revenue is expressly  provided against. But, even before the Civil List Act, there is no instance of a devise of the royal revenues. In the present case, it could not be intended that the port duties should be alienable. The port duties were created for the benefit of the subject, and they, and the proprietorship, were intended to go together. But, I insist further, that the lands themselves are not alienable. Anciently, when the king made a duke, and gave possessions to him, they were so annexed to the dignity as not to be transferrable without a preceding act of Parliament. See Godb. 397. In Dyer, fol. 2. a. there is a case very analogous to the present; for there it is said, that if the king creates a duke, and gives him 20 pounds a year for the maintenance of his dignity, he cannot give it to another, because it is not incident to his dignity. Many things, of a special nature, are unalienable.Dignities are so, because they are personal, and in the blood. Offices of trust are not assignable, unless by the original terms of the grant, or by prescription, which supposes such a grant. Ministerial offices are, indeed, assignable, and the power of appointing a deputy is incident where the office  is assignable, but not vice versa. See Bro. Abr. tit. Office, pl. 108. The office of forrester is of such a trust that it cannot be granted over without license. 4 Inst. 315. The Register and Fitzherbert, there cited, warrant Lord Coke in his doctrine. Earldoms are not alienable. The case about the office of Great Chamberlain in Sir W. Jones, 96. and Collins' Baronies, contain much learning on this subject, which applies strongly here. Doddridge, who was with the majority of the Judges, states every thing which made againt his own opinion. \nLord Mansfield. The case is very well reported both in Sir W. Jones, and in Collins; but there is a great difference between offices and territories. \nMr. Serjeant Hill. The Judges who held the office alienable, only held it partly so, that is, that it might be settled so as to keep it in the male line; because males were more fit for the office than women. But, they agreed, that, though the office was granted in fee, it could not be disposed of from the blood of the first grantee. In the present case, it is observable, that the charter makes a difference in the use of the word assigns. That word is used in granting the land, but it is omitted  where the charter gives the power of calling assemblies, and enacting laws, of appointing Judges, and of pardoning crimes. Therefore, these powers, at least, were not intended to be alienable. \n2. If the whole of the property, or any part, is disposable by will, it must be so on this ground, that all the statutes and laws of England in force at the time of the settlement of Maryland, attached on the Province, though subsequent statutes will not extend to it without express words. Then I have a right to assume, that the property is entailable; for the statute De Donis was an existing law at the time of the grant and settlement of the Province, as well as the statute of wills, and so was the statute of uses. Now, the property was entailed, and, upon the supposition that the entail was within the statute De Donis, I argue, that the entail was not well barred by the last Lord Baltimore, and that this gives a title to his sister, Mrs. Browning, all the entails bein now spent for want of issue male, and she being the devisee of the reversioner in fee, by the will of her father. \nLord Baltimore's mode of barring was by lease and release, a conveyance the weakest of all in its operation.  Before Machell & Clarke, it was understood, that such a conveyance, by tenant in tail, would only pass an estate during his life; and, even according to that case, the estate it passes is voidable on his death by entry of the issue in tail. See Machell v. Clarke, 3 Lord Raym. Rep. 678. 2 Salk. Rep. 619. 7 Mod. Rep. 18. and Com. Rep. 119. As against those in remainder, it still passes only an estate during the life of the tenant in tial. But, a feoffment, without warranty, would have been a discontinuance, and, with warranty, when it becomes collateral, it would have become a bar at this day; for the statute of Ann doth not take away the effect of collateral warranty when it is by a tenant in tail in possession. See 4 and 5 Ann, c. 16. Therefore, I say, that this was one mode by which Lord Baltimore might have barred the entail; because, if he had made a feoffment with warranty, the warranty would have been collateral to Mrs. Browning. \nBut there was another mode of barring which might have been used. The Province of Maryland is a fief holden of the king as of the castle of Windsor, for so the lenure is reserved. As, in the grant, is not similitudinary, but is the same as  ut in pleading that one was seised ut de feodo, which, says Lord Coke, is to be understood positively that the party was seised in fee. Co. Litt. 17. 6. The tenure, then, being as of the castle of Windsor, the Province is to be considered in the same way as other lands originally holden of the castle, and, like other fiefs, is to be impleadable within the manor. A castle, or honour, is only a superior kind of manor. To every manor a Court Baron is necessarily incident, and, therefore, it is so to every castle. The jurisdiction of a Court Baron is well known.Without the king's writ, it holds plea of personal actions where the demand doth not amount to 40 shillings. With the king's writ of right, it may hold plea of land. Writs of right are of two kinds, patent and close. If the writ is brought in the Lord's Court, it is directed to him, and is patent. If he holds no Court, or waives, or the tenure is immediately of the king, it is brought in the King's Court, is directed to the Sheriff, and is close. Magna Charta, c. 24. provides against the abuse of the writ of right in the latter case, by declaring, that praecipe in capite shall not issue where the land is not holden in capite.  But the practice is otherwise, and the writ of right has been usually brought in the Common Pleas in all these cases. Another writ of right close lies for lands in ancient demesne. This writ is well known, and recoveries are suffered upon it in the Courts of ancient demesne. See Fitzh. Nat. Br. and Booth on Real Actions. The general writ of right patent lies in the Court of the Manor, in all cases where the tenure is of the subject, or of the king, as of an honour; and where the estate lies, makes no difference. 4 Inst. 219. and Fitzh. Abr. Jurisdiction, pl. 61. there cited. If a man holds lands as of an honour, the bailiff may execute the process as of the Court of the honour, wherever the lands lie. In the case in Fitzh. Abr. it was objected, that the officers of the county palatine of Chester, could not execute writs in a foreign county; but it was adjudged otherwise, because the lands were within a manor holden of the principality of Chester. \nThere are many precedents of recoveries on writs of right patent. One is in N. Bendl. p. 4. pl. 4. on a writ of right patent directed to the bailiff of the castle of Rising. According to this ancient principle, that wherever a fief  lies it is impleadable in the manor of which it is holden, the Province of Maryland might have been impleaded in the Court of the castle of Windsor, for it is clearly holden of the castle, and there is a Court Baron necessarily incident. True it is, that if the tenaut pleads a foreign plea, or the mise is joined on the mere right to be tried by the Grand Assize, the cause must be removed into the Common Pleas. But, I insist, that a writ of right patent might have been brought in the Court of the castle of Windsor, and that a common recovery might have been suffered; because, then, neither foreign plea, nor joining of the mise, on the mere right by the grand assize is necessary. The precedent cited from N. Bendl. is in point, and conformable to the principles I am arguing upon. The writ of right patent was for a manor holden of Rising Castle, and was directed to the bailiffs of the castle. It appears clearly, that there was a recovery in the Court of Castle Rising. There was a plaint by the demandant, the tenant vouched to warranty, and the vouchee making default, judgment was given for demandant. Afterwards, a writ of false judgment was brought in the Common Pleas by the vouchee,  and the error was, that the writ of right patent should have been directed to the suitors; but the Court held, that the bailiffs were the proper persons, and the judgment was affirmed. See Mod. 1. Another instance of a like proceeding in the Court Baron of the Manor of Wolverhampton, is in Robbins' Ent. 323. There, false judgment was brought on this error, that the lands were not mentioned to be within the manor; but the judgment was affirmed. In Rastell there are several instances of writs of false judgment on judgments in writs of right close in Courts of ancient demesne. Rast. Entr. 221. b. Also, Booth states the manner of proceeding in the Court Baron on a writ of right patent, where the cause is not removed. Booth on Real Actions, 89. If, then, a recovery might be had on a writ of right in the Court Baron, when the proceeding is adverse, much more might a common recovery be suffered. Errors in common recoveries are aided by the statutes of jeofails, and no objection is fatal to them but such as might be pleaded to the jurisdiction of the Court where they are suffered. But how could such an objection hold in this case? Every plea to the jurisdiction must state, that  there is another Court in which the cause may be tried, and which that Court is. Therefore, if want of jurisdiction is objected to the Court Baron of Windsor Castle, it should be stated where else the Province of Maryland can be impleaded; for fines have been levied in the Court of Common Pleas here, of shares of a proprietorship in America. The only proprietorships at present are Pennsylvania and Maryland; but Carolina was once a proprietorship, and whilst it was so, fines were levied here of shares in it. The first grant of Carolina was to eight persons, and the word assigns was used throughout. Soire facias was brought to repeal the letters patent; but no judgment was ever given, for the proprietors were well advised, and agreed to surrender, and an act was made to confirm the agreement. See 2 Geo. II. c. 34. Though the proprietors were seised in fee, yet this act recites, that from the nature of the estates proposed to be surrendered, great difficulties might arise as to the manner of conveying. In the present case, like difficulties induced the advisers of the last Lord Baltimore to recommend the applying to Parliament; but no act was obtained. \nLord Mansfield. He was stopped  by the difficulty of proceeding. \nMr. Serjeant Hill. The last thing I have to submit is, that if no recovery could be suffered, and feoffment with warranty would not have been sufficient, then the entail was not barrable in any way, and the Province of Maryland was in the same condition as land here, before the introduction of common recoveries, and of barring by fine under the statute of Hen. VII. Like an executory devise, the entail is not barrable, because a recovery cannot be suffered. See the case of Scatterwood v. Edge, 12 Mod. Rep. 278. The words of Lord Hardwicke, in 2 Ves. Rep. 353. are very applicable. In speaking of the limitations in the act of Parliament, which made the Isle of Man unalienable, he says, that if they were considered on the foot of the statute De Donis, and they were estates tail, there was no want of a restrictive clause; for, before Taltarum's case, which established the doctrine of recoveries, and the 4 of Hen. VII. of fines, these, by the statute De Donis, were unalienable, and of Man there could be neither fine nor recovery. Here, I say, that the property is not entailable; but, if it is, it must be because within the statute De Donis, and, if that  statute operates upon Maryland, and no recovery could be suffered, there was a perpetuity. It is absurd to say, that there must be the means of making property alienable because it is within that statute; for the statute was made to restrain alienation. A recovery might have been sufficient to bar; but the conveyance by lease and release is too mild in its operation, and on such a conveyance by tenant in tail, the old use reverts to the releasor. \nThe capability of losing in an action is a very different thing from the power of alienation. What is the objection to a perpetuity in such a case as this? Can any useful end be attained by making a sovereignty alienable? The cases of copyholds are not authorities in point, for they depend on custom. Here Mr. Serjeant Hill cited many authorities to confirm and illustrate some of the doctrine he had advanced in the previous part of his argument. He cited Co. Litt. 108 a. Dy. 44. a. and Bro. Abr. Tenure, 94. to show the difference between tenure ut de corona, and ut de honore, and that it was in the king's option to reserve either; Co. Litt. 17 a. and 1 Lev. 222. to prove the word ut affirmative, and not similitudinary; Co. Litt. 5 a.  2 Inst 31. and the Register, to prove a castle contains a manor; and 4 Inst. 26. Hob. 170. and 2 Bro. Abr. 45. to prove that a Court Baron is incident to a manor, and that they are inseparable. For, the distinction between writs of right patent, and writs of right close, and the causes of removal, and that where the former lie, they may be preferred to the latter, he cited Fitzh. Nat. Br. 1. to 9. and 11. to 14. Old. Nat. Br. Fitz. Abr. tit. Droit, pl. 45. Magna Charta, cap. 24. and Bro. Abr. -- To show that it was immaterial where the land happened to lie, he cited Fitzh. Abr. tit. Jurisdiction, pl. 61. and 4 Inst. 219. He then observed, that the king might make a new island arising out of the sea part of a county, and for this he cited Collis. on Sew. 45. and asked why he could not make a province part of an honour. hE also cited from 1 Str. Rep. 177. the case of the King against the City of Norwich, (which was the case of an information against the latter for not repairing some bridges,) to show that the king may enlarge, contract, or vary the bounds of a county, for the purpose of jurisdiction. He next mentioned, a second time, that fines had been levied of shares of the  Carolina proprietorship; and added, that error on a fine of land in America had been brought in B.R., and that it might be proper to search, in order to know what was done. \n\"Lord Mansfield. Fines, and recoveries of plaintations in America, with a viz. to bring them within a parish here, were frequent in the Court of Common Pleas, till provincial laws were made to provide other modes of barring. But I do not know of any instance of such fines or recoveries in the case of a seignory. \n\"Mr. Serjeant Hill. In 1 Ventr. Rep. 258. Lord Hale says, that the writ of right close (for lands in ancient demesne) is not to be resembled to another proecipe, and that being directed ballivis manerii, mention of the manor, without naming the will in which the lands lie, is sufficient. So, here, mention of the castle of Windsor in the writ of right patent, without a viz. to bring Maryland within England, would have been sufficient. Lord C. J. North, in 2 Mod. Rep. 49. observes, that it had been long a dispute whether a fine of lands in lieu conus was good; that in King James's time it was settled to be so, and that, by the same reason, a recovery shall be good; for they are both amicable suits and  common assurances, and as they grow more in practice the Judges have extended them further. He adds, that a common recovery may be of an advowson, and that no reasons are to be drawn from the visne, or execution of the writ of seisin, because it is not an adverse proceeding, but by agreement. This is material, for common recoveries of advowsons were anciently in writs of right; and though writs of entry are now used, they are improper for an advowson, and they are only allowed because common recoveries are by agreement. This is material, for common recoveries of advowsons were anciently in writs of right; and though writs of entry are now used, they are improper for an advowson, and they are only allowed because common recoveries are by agreement. The observation about the writ of seisin answers the reason in 1 Ventr. Rep. 59. why an ejectment of lands in Jamaica will not lie here, and shows that it is not applicable to the present case. That where one jurisdiction is pleaded to, another must be shown, I cite Barker v. Dormer, 1 Show. Rep. 191.; and that a seignory out of England may be impleaded in the Courts here, I cite 4 Inst. 213. Bro. Abr. Jurisdiction, 101. Lien, 75.  Trial, 58. Fitzh. Abr. Assize, 282. Vaugh. Rep. 405. As to suing for ancient demesne lands, I cite 1 Salk. Rep. 56. and 1 Lord Raym. Rep. 43. \n\"Upon the whole, the property in question is neither alienable nor devisable, or, at least, the seignory is not so. If the property is both alienable and devisable, then, I insist, that it is entailable, and that the entail is not barred. \nThe supposed necessity of barring by lease and release, doth not exist; for, \n1. There might have been a feoffment with warranty, and, 2. The Province being holden of Windsor Castle, is impleaded in the Court Baron there, and a common recovery might have been suffered there. Besides the authorities already cited, to show that the bailiffs of that Court were officers competent to hold plea of the Province in a writ of right patent, there is one in Aston's Entr. 375. If a recovery could not be suffered in the Court of the Castle of Windsor, it might have been suffered on a proecipe quod reddat in the Court of Common Pieas; and the property not being in England was no objection to a recovery, either in the Common Pleas, or the Court of Windsor Castle. If it is denied, that a recovery could be suffered  in either of these Courts, it must be shown what Court has the proper jurisdiction, or the objection cannot be taken. If a recovery could not be suffered any where, then I insist, that the entail of the property made it unalienable, and that it descended as a perpetuity; and that it might so descend, I cite the authority of Lord Hardwicke in 2 Ves. Rep. 353. and of Jenkins in his Centuries, 250. and 257. \nMr. Serjeant Hill concluded with citing a case about the writ of right patent in 6 Co. Litt. 11. \nMr. Kenyon, for Master Harford. The principal questions in this case, arise on the grant by the crown of the Province of Maryland in the 8 Charles I. and the settlements made of it in 1730, and 1761. The grant by the crown being by letters patent under the great seal of England, the law of England is, therefore, the rule by which the property must be adjudged upon. It has been truly observed by the Court, that no points could arise, if the property was in England. If the property was situate here, it would be alienable, devisable, and entailable, and the entail might be barred by common recovery. But the property lies in America, and thence arise the difficulties. \n\"The questions  referred to this Court concern both the Province and the port duties, and their value is great. But the great value and extent of the property will not make any difference in deciding upon it, though its situation will. The Province of Maryland was settled by Englishmen, and these carried the law of England with them. In 2 P. Wms. 75. it is said to have been adjudged by the Privy Council, that if a new country is found out and settled by English subjects, they carry their laws with them, though subsequent acts of Parliament, without naming, will not bind the plantation. The like doctrine is laid down in Penn v. Baltimore; 2 Ves. Rep. 349. with more precision; for, there it is said, that an English colony carries with them all the laws of England in being at the time of planting it, which are adapted to the situation; but that no statute, made afterwards binds without naming them. Now, both the statute De Donis, and that of Wills, were before the settlement of Maryland, and both have words sufficent to comprehend the proprietorship, the word tenement being used in the former, and hereditament in the latter. Therefore, both statutes must extend to the property in question, unless  it can be shown that there is something incongruous in applying them to Maryland. But they are necessary and convenient laws for Maryland, nor is the law of descents more so. It is objected, that these statutes may extend to lands granted to the Lord Proprietor in the way of subinfeudation, but that they ought not to be applied to the seignory and proprietorship. But no reason is given for the distinction, except saying, that the preprietorship is a transcendent property, and hath regalities and high powers annexed to it.Is an assignee or devisee less likely to be fit and able to govern it, than the descendants of the first grantee, who may be infants? Higher property than this hath been the subject of wills; for kingdoms have been devised. Constantine devised an empire, and so did Charlemagne; and the same was done in our own country by Hen. VIII. under an act of Parliament. It is said, that the property is not alienable, because it is annexed to an office of trust. But, lands to which offices are annexed, may pass together with the office. When the champion of England passes his manor, his office passes with it. The Province of Maryland may be resembled to a large manor.  The jurisdictions of some manors were anciently as extensive, both in criminal and civil matters, as the jurisdiction of the lord of Maryland. The power of making by-laws to regulate commons, and other subjects, relative to the tenants, is incident to many manors. \nBut the question doth not depend merely on arguments of analogy. The proprietorship is granted in free and common soceage, and it was intended to be alienable. The word assigns is used in the letters patent, and, in some places, is applied to the seignory itself. The first grantee would not have accepted the grant on other terms. We should consider, not the present value of the property, but its value when the grant was made; and then Maryland was a desert, and it is not to be supposed, that the first grantee would have been at the expense of settling it, if it had not been made alienable. Besides, the usage since the grant, is an argument in favour of its being alienable. Both Maryland and Pennsylvania have been constantly subjects of entails and settlements, and this practice ought to weigh something. Another strong argument arises from the preamble of the statute 2 Geo. II. c. 34. about the shares of the Carolina  proprietorship. In deriving titles to the several shares, wills are mentioned. This shows that it was deemed to be within the statute of wills. The preamble also recites a cause in Chancery about an agreement to sell the share of one Dawson, and a decree by the Lords for a specific performance, on an appeal. The preamble further recites various grants to show title in those with whom the crown was contracting for the surrender of their shares. All this shows, that Parliament thought a proprietorship in America alienable like other property. \nLord Mansfield. In Dawson's case, the question between the parties was not about the power of alienating. \nMr. Kenyon. The statute of 7 and 8 Wm. III. c. 22. s. 16. is also of consequence, for it restrains all persons, and their assigns, claiming any right or propriety, in any islands or tracts of land on the continent of America, by charter, or letters patent, from selling to any but natural born subjects. This act supposes a proprietorship to be alienable. \nLord Mansfield. The clause in the act of William is odd. Without such a restriction, aliens were incapable of purchasing. \nMr. Kenyon. In Penn v. Lord Baltimore, the question of alienation  catually occurred; and though it was not necessary to decide upon it, yet Lord Hardwicke seems indirectly to have given an opinion, that the proprietorship of Maryland was alienable. See 1 Ves. Rep. 448. \nLord Mansfield. The question before Lord Hardwicke was on the effect of an agreement between the Penn and Baltimore families, about the limits of Maryland and Pennsylvania, it being contended that Lord Baltimore had not power to dismember his Province, though he might make subinfeudations; but the question was determined without deciding anything on the power of alienating the whole Province. \nMr. Kenyon. I cite the case for the sake of Lord Hardwicke's dictum, and not as an adjudication. Thus, I am in possession of the opinion of the Legislature, and of the House of Lords, and of Lord Hardwicke, as authorities to show, that the property is as alienable as other property. It remains to show, that the entail was well barred by Lord Baltimore, so as to enable him to dispose by will; and this Mr. Serjeant Hill makes the great point. The question is as to the whole Province and seignory, and not as to any particular parts or subinfeudations. If it had arisen on the latter, the forms  required by the provincial laws might have been complied with. But no Court within the Province can hold plea of the seignory itself. See Vaugh. Rep. 404. If no Court can be found in Maryland for a common recovery, some other Court must be found, or there must be some mode of barring the entail without a recovery. When this cause was before the Chancellor, Mr. Serjeant Hill said, that a recovery might have been suffered before the king in council; but that ground is now deserted. \nLord Mansfield. If any thing had been done for barring there, it could only have been a proceeding having analogy to common recovery, the council being the proper place for adverse proceedings about the title to Maryland. The jurisdiction over all the seignories of the Provinces in America, has resided in the Privy Council from the time of Elizabeth. \nMr. Kenyon. Two places for suffering a recovery have been mentioned; the Court of Common Pleas, and the Court of the Castle of Windsor. As to the former, it is said, that fines have been levied of lands in America, with a viz. to bring them within England. But the plea for land is local, and it is impossible by a viz. to transfer the place to England;  and two or three precedents are not sufficient for this purpose. As to the Court of the Castle of Windsor, I admit, that one manor holden of another may be pleaded for in the principal manor; but I do not know of any instances in which there can be such a plea, except the cases of copyhold, and of lands in ancient demesne. Besides, how is seisin to be given of Maryland by a Court Baron in England? It is said, that a recovery may be on a writ of right in the Court Baron of Windsor Castle; but, if such a Court exists, (which I do not admit,) it is allowed, that joining the mise carries the cause to the Common Pleas, and the moment the suit comes there it fails, for that Court cannot give seisin; and this deficiency, according to the case of the Isle of Man, in 2 Ves. Rep. 353. would make the recovery ineffectual. It is said, that Maryland might have been annexed to a county in England; but the answer is, that it is not so annexed. Further; it doth not appear that a Court Baron is incident to the castle of Windsor. Such a Court may belong to the honour of Windsor; but Maryland is holden of the castle, and the castle and honour are distinct. A castle may be part of an honour or  manor. Fitzh. N.B. 6 D. I am told, that the only Court belonging to the castle is for personal actions. \nIf the entail was not barrable by common recovery, it is to be considered whether an alienation by some other common assurance is not sufficient. The mode by lease and release, is found fault with; but this conveyance is founded on the statute of uses, and, since that statute, it passes the fee as well as any other. As to feoffment with warranty, in general, it would have failed; and I am not sure that it would have had the proper effect in the case which hath happened, because, here, the warranty would have descended both on Mrs. Browning and Mrs. Eden, as heirs of their brother; and, on the supposition that the property is entailable, to prevent perpetuities, the entail must be barrable in some way. In general, the power of barring by common recoveries, is incident to entails; and if that mode had not been adopted, the other modes would have been found out. Where common recoveries cannot be suffered, alienation is sufficient; and whether it be by feoffment, or lease and release, the effect ought to be the same. In the case of copyholds, where there is a custom for entailing,  and no custom for a common recovery, a surrender is equivalent to a recovery. This point was adjudged by three Judges against one, in Carr v. Singer, 2 Ves. Rep. 603. and the doctrine was approved of by Lord Hardwicke in a subsequent case. See Moor v. Moor, 2 Ves. Rep. 601. which case, though given by the reporters before Carr and Singer's, is subsequent in point of time. These authorities alone are sufficient; but the same principles in favour of alienation are to be met with in ancient books. In Willion v. Berkley, Plowd. Rep. 244. Judge Weston argues on the principle, that every estate tail is barrable; and, in Mary Portington's case, 10 Co. Litt, 40 a. Lord Coke mentions, that Lord Dyer, in a case before the Lords in Parliament, reproved one of the counsel for finding fault with common recoveries. But, besides the cases of copyholds, I have another authority, to show that complying with the law of England as nearly as circumstances will allow of, is sufficient. I have in my hand the report of a committee of the Privy Council in the case of Governor Wentworth, who was complained of on various charges. One of these was, that he had set aside grants of land, in the American  Province of which he was Governor, without office, according to the forms of the law of England; and the Lords of the Committee of the Privy Council, one of whom was Sir Eardly Wilmot, say, in their report, that in some of the American Provinces they have not Courts so correspondent to those in England as to admit of the same forms, and that, in such cases, if a mode of doing the same thing cy pres is adopted, it ought to be good ex necessitate. See p. 10. of the Report. This doctrine is applicable to the present case. The property is entailable, but a common recovery cannot be suffered for want of a proper Court, and, therefore, ex necessitate, alienation being the only mode of barring the case will admit of, ought to be adjudged sufficient. \nBut, if the property is not within the statute De Donis, and yet should be within the statute of wills, it may be material to consider what consequences will follow.Then, under the settlement of 1733, the last Lord Baltimore had a fee simple conditional, and if a possibility of reverter is not grantable, as Lord Hardwicke holds in Stafford v. Buckley, 2 Ves. Rep. 180. then the possibility of reverter, in this case, did not pass to Mrs. Browning  by the will of the father of the last Lord B. but descended on him, and, for want of an intervening estate, the former merged in the latter. During the life of the father of Lord Frederick, they were distinct; but, after the father's death, they met in the son, and this union gave him the whole fee. \nLord Mansfield. A possibility of reverter is certainly not grantable. \nMr. Kenyon. As to the Isle of Man, there is an annotation by Lord Hale in the new edition of Coke upon Littleton, now publishing, which explains the reason why the statutes De Donis, of uses, and of wills, do not to extend to Man, in a way not applicable to Maryland. Man was a dominion belonging to the King of England before those statutes; and Lord Hale says, it was ruled, that those statutes do not extend there, because Man was not parcel of the realm of England, and is not specially named. But the grant and settlement of Maryland are subsequent to those statutes. See 20 b. of the new edition of Co. Litt. (1) \nHargr. & Butlr. ed. \nLord Mansfield. It will be very proper to consider the case of the Isle of Man in 4 Inst. and 2 Anderson. Both Maryland and Man are dominions held of the crown of England; and the grant  of Man to the Derby family was prior to the statute De Donis, and yet the Judges held, that it did not extend to it, any more than the statutes of uses and wills, which were subsequent. The case of the Duke of Athol and the Bishop of Man, should also be considered. Lord Hardwicke took great pains in giving his opinion in that case. He gave me a corrected note of his opinion, and another to the Duke of Athol. T\"Mr. Serjeant Hill, in reply. It is agreed, that if the property was in England, the case would be clear against the devisee of Lord Baltimore for want of a recovery; and it has not been shown that a recovery was impossible. The distinction between the land and port duties has not been answered. They were separated by King William. He seized the former, but did not touch the latter. The distinction between sovereignty and mere land is solid. The case from 2 P. Wms. 75. was cited to prove, that subjects of the King of England carry over our laws with them into a new settlement; which I do not controvert. A manor is not to be compared with the seignory of Maryland. The principal powers given to the proprietor of Maryland do not belong to the lord of a manor. \nThe word  assigns is necessary to make offices of trust transferrable; and the reason for omitting it in some parts of the Maryland charter, was to make some parts of the property unalienable. It is omitted in the grant of the seignory. It is said that kingdoms are devisable; but there is no instance of the devise of a dependent kingdom. I say this on the authority of Craig. Henry the VIII., and Elizabeth, had acts of Parliament. \nLord Mansfield. By the feudal law, land was not devisable; much less a kingdom; though William the Conqueror claimed England under a will. \nMr. Serjeant Hill. It is said, that recoveries on writs of right in manor Courts, have only been in the case of copyholds, and of lands in ancient demesne. But, in the cases I cited from Benloe and Robinson, of recoveries in the Courts Baron of Rising and Wolverhampton, the recoveries were of freehold land, and the words secundum consuetudinem manerii, which are used where the recovery is of copyhold, or ancient demesne, are not mentioned. The argument from the entails of copyholds, which are barrable by surrenders, supposes, that there is no custom to warrant another mode; but the argument of necessity fails here, for there  is another mode. I give the same answer to the cy pres doctrine in the report to the Privy Council in Governor Wentworth's case. \nLord Mansfield. The questions in this case are new, and of great difficulty. I have often considered them. I do not know of any litigated case before the present, in which the question has been, whether a seignory like that of Maryland can be aliened or devised. Both the Baltimore and Penn families have made their proprietorships the subjects of settlements and entails. As to the statute of William and Mary, it is strange that it should restrain from selling lands or proprieties to aliens; because, before that statute, they were incapable of purchasing. But, still, the words of the statute, which mention any right or propriety in any island or tract of land in America, by charter, or letters patent, furnish some argument. In the case of Penn and Baltimore, the question of alienation could not arise. There the suit was about an agreement as to the bounds of two Provinces; and it is certain, that a Province cannot be dismembered by aliening one part so as to be holden of another Province. Something might be incidentally said as to the point of alienation,  but there could be no solemn adjudication, for the case did not require it. The jurisdictions and powers granted by the Maryland charter, are larger than those in any other. Doubts may arise as to the principality, from the nature of the property. Taking in execution, and other consequences of its being subject to alienation, may furnish strong reasons of policy against the power of alienating. The law being settled as to the principality, a secondary question will be, whether the lands or port duties can be severed from it. The rule of applying to America all the laws of England, in force at the time of settling a colony, is subject to many qualifications. The statute of charitable uses doth not extend to Antigua. There may be a difference, too, between the seignory and proprietorship of Maryland, and other estates here. The seignory and proprietorship passed under the great seal, and that carries the law of England. Another thing quite new, is the question as to barring the entail. The history of barring entails in the Provinces is material. If there had not been provincial laws to regulate the barring of entails, it might have been proper to have supported the mode of  barring by fines and recoveries in England. The necessity of the case might, perhaps, have justified it. But the provincial laws do not apply to the seignory and proprietorship of Maryland. The question as to them is entirely new, and of great difficulty. The pains taken to show, that a recovery might have been suffered in the Court of the Castle of Windsor, proves the force of the argument of necessity as to barring by alienation. The case of descendible freeholds, the entails of which are barred in that way, may have influence on the present case. \nThe case was ordered to stand for argument a second time next Michaelmas term; and Lord Mansfield said, that, probably, several arguments would be necessary.\" \n \n\n ", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the Court. \nThe first question for consideration is, whether the evidence of the act of incorporation of the Boston Insurance Company, disclosed upon the record, was admissible as a sufficient verification thereof. It is matter of most serious regret, than an exemplification so loose and irregular, should have been permitted  to have found its way into any Court of justice. As it has, it is our duty to decide upon its legal sufficiency. It  is under the seal of the State, and verified by the signature of its Secretary. \nIt is said that this is not enough, and that it ought to be shown, that the Secretary had authority to do such acts. This objection must be decided by an examination of the act of Congress of the 26th of May, 1790, prescribing the mode in which the public acts, records, and judicial proceedings of each State, shall be authenticated, so as to take effect in every other State. That act provides, \"that the acts of the legislatures of the several States, shall be authenticated by having the seal of their respective States affixed thereto.\" No other or further formality is required; and the seal itself is supposed to import absolute verity. The annexation must, in the absence of all contrary evidence, always be presumed to be by a person having the custody thereof, and competent authority to do the act. We know, in point of fact, that the constitution of Massachusetts has declared, \"that the records of the Commonwealth shall be kept in the office of the Secretary.\" But our opinion  proceeds upon the ground, that the act of Congress requires no other authentication than the seal of the State. \nThe other objections to the exemplification are, that the acts are printed copies, with erasures and written interlineations, not so annexed as to afford perfect certainty that they are the identical copies to which the Secretary's certificate was originally annexed. We think these objections cannot be maintained in point of law.  The copies must be presumed to be the original copies, in the same state in which they were originally annexed. Any subsequent alteration or subtraction would be a public crime of high enormity; and the commission of a crime is not to be presumed. The certificate of the Secretary, taken together, shows that he did not mean to state that the printed copies had not been varied by writing, so as to be true copies, for he adds the phrase, they are now true copies of the original acts. The original print is still visible throughout, and the alterations in writing are mere verbal alterations, not in the slightest degree varying the sense or effect of any single clause in which they occur; and, to afford additional proof of identity, the  Secretary has on each copy annexed his own signature, with an attestation of its being a true copy. There is, therefore, no presumption, from the face of the papers, or otherwise, of any alteration or addition since the seal of the State was annexed. The annexation of the usual attestation of the enactment and signatures to the acts was not necessary. It is sufficient that their existence and time of legal enactment is shown. \nOur opinion, therefore, upon this question is, that the papers were properly admitted in evidence. \nThe next question is, whether before the policy of insurance, underwritten by the Boston Insurance Company, could be given in evidence, it was necessary to prove that the subscription to the stock, and the payment of such subscription  as required by the act of incorporation had been made. In our opinion, it was not.This is not the case where a suit is brought by the corporation to enforce its rights, where, if the fact of its legal existence is put in controversy upon the issue, the corporation may be called upon to establish its existence. The case of Henriques and Van Moyses v. The Dutch West India Company, cited in 2 Lord Raym. 1535. as decided  before Lord King, whatever may be its authority, was of that sort, and, therefore, carries with it an obvious distinction; nor is this the case of a quo warranto, where the government calls upon the company to establish its legal corporate powers and organization. The case here is of a public prosecution for a crime, where the corporation is no party, and is merely collaterally introduced as  being intended to be prejudiced by the commission of the crime. Under such circumstances, we think, nothing more was necessary for the government to prove, than that the company was de facto organized, and acting as an insurance company and corporation. The very procurement of a policy by the prisoner, to be executed by the company, was of itself prima facie evidence for such a purpose. In cases of the murder of officers, it is not necessary to prove that they are officers by producing their commissions. It is sufficient to show that they act de facto as such. In cases of piracy, it has been held sufficient to establish the proprietary title to the ship by evidence of actual possession of the party claiming to be owner.  These are analogous cases, and furnish strong  illustrations of the general principle. \nThe same answer may be given to another objection, and that is, that the policy ought to have been proved to be executed by the authority of the company, in such manner as to be binding on them. The actual execution of the policy by the known officers of the company de facto, is sufficient. \nThe next question arises upon the instruction of the Court, \"that it was not material whether the company was incorporated or not; and it was not material whether the policy were valid in law or not; that the prisoner's guilt did not depend upon the legal obligation of the policy; but upon the question whether he had wilfully and corruptly cast away the vessel, as charged in the indictment, with intent to injure the actual underwriters.\" We think this opinion correct. The act of Congress of the 26th of March, 1801, ch. 40. on which this indictment is framed, declares, \" that if any person shall, on the high seas, wilfully and corruptly cast away, &c. any ship or vessel, of which he is owner, &c. with intent or design to prejudice any person or persons that hath underwritten, or shall underwrite, any policy or policies of insurance there on, &c. the person  or persons offending therein, &c. &c. shall suffer death. The law punishes the act when done with an intent to prejudice; it does not require that there should be an actual prejudice. The prejudice intended is to be to a person who has underwritten, or shall underwrite, a policy thereon, which, for aught the prisoner  knows, is valid; and does not prescribe that the policy should be valid, so that a recovery could be had thereon. It points to the intended prejudice of an underwriter de facto. The case of the King v. Gillson, (1 Taunt. Rep. 95. 2 Leach, 1007.) did not turn upon this point. That was an indictment for maliciously setting fire to a house, with intent to defraud the London Assurance Company of houses and goods from fire. It was necessary to prove that the household goods in the house had been actually insured for the prisoner by the company. A policy had been executed by the company, on these goods, in another house, and subsequently, upon the removal of the prisoner to the house set on fire, a memorandum was endorsed on the policy, agreeing that the removal of the goods should be allowed. This memorandum was unstamped, and by statute was not admissible  in evidence. Six Judges against five held the evidence inadmissible, upon the ground that the prohibition was intended to be universal. The existence, therefore, of the insurance itself, could not be established. If there had been proof that the policy was executed, the question might have arisen, whether it was necessary further to prove its legal validity in all other respects. The argument at the bar, drawn from the known law as to forgeries, is, we think, pertinent. In those cases, when they depend on the common law, actual prejudice is not necessary to be proved; and, of course, the validity of the instrument is entirely waived. \n Another question, not raised in the Court below, has been argued here, and upon which, as it is vital to the prosecution, we feel ourselves called upon to express an opinion. It is, that a corporation is not a person within the meaning of the act of Congress. If there had been any settled course of decisions on this subject, in criminal cases, we should certainly, in a prosecution of this nature, yield to such a construction of the act. But there is no such course of decisions. The mischief intended to be reached by the statute is  the same, whether it respects private or corporate persons. That corporations are, in law, for civil purposes, deemed persons, is unquestionable. And the citation from 2 Inst. 736. establishes, that they are so deemed within the purview of penal statutes. Lord Coke, there, in commenting on the statute of 31 Eliz. ch. 7. respecting the erection of cotrages, where the word used is, \"no person shall,\" &c. says, \"this extends as well to persons polibic and incorporate, as to natural persons whatsoever.\" In the case of the King v. Harrison, (1 Leach, 180. 2 East's Pl. Cro. 927. 988.) it may, perhaps, be matter of some doubt, whether the point was actually decided by the Court. But, if it was, it mainly rested upon a peculiarity of construction which grew out of the statute of 31 Geo II. ch. 22. s. 78. which professed to cure doubts of the meaning of these words in other antecedent statutes upon similar subjects, leaving that on which the indictment was framed untouched. Finding, therefore, no authority at  common law, which overthrows the doctrine of Lord Coke, we do not think that we are entitled to engraft any such constructive exception upon the text of the statute. \n Upon the whole, it is to be certified to the Circuit Court of Virginia, that the decisions of that Court, upon the points of law arising at the trial, were correctly decided. \nCERTIFICATE. This cause came on to be heard on the certificate of division of opinions of the Judges of the Circuit Court, &c. On consideration whereof, it is ADJUDGED by the Court, that it be certified to the said Circuit Court, that the points of law ruled by the said Circuit Court at the trial of the cause, and upon which the same Court, upon a motion for a new trial, were divided in opinion, were, in all respects, correctly decided by the said Court at the said trial. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the Court. \nThis is the case of a proceeding in rem, by a libel of information founded on the act of Congress of the third of  March, 1819, ch. 75. as continued in force by the act of Congress of the 15th of May, 1820, ch. 112. The second section of the former act authorizes the president \"to instruct the commanders of public armed vessels of the United States, to seize, subdue, and send into any port of the United States, any armed vessel or boat, or any vessel or boat, the crew whereof shall be armed, and which shall have attempted or committed any piratical aggression, search, restraint, depredation or seizure, upon any vessel of the United States, or of the citizens thereof, or upon any other vessel.\" The fourth section declares, \"that whenever any vessel or boat from which any piratical aggression, search, restraint, depredation, or seizure, shall have been first attempted or made, shall be captured and brought into any port of the United States, the same shall  and may be adjudged and condemned to their use, and that of the captors, after due process and trial, in any Court having admiralty jurisdiction, and which shall be holden for the district into which such captured vessel shall be brought, and the same Court shall thereupon order a sale and distribution thereof accordingly, and at their discretion.\" \nThe brig Palmyra is an armed vessel, asserting herself to be a privateer, and acting under a commission of the King of Spain, issued by his authorized officer at the Island of Porto Rico. She was captured on the high seas on the 15th of August, A.D. 1822, by the United States vessel of war Grampus, commanded by Lieutenant Gregory, after a short resistance, and receiving a fire from the Grampus, by which one man was killed, and six men were wounded. She was sent into Charleston, South Carolina, for adjudication. A libel was duly filed, and a claim interposed; and upon the proceedings in the District Court of that district, a decree was pronounced by the Court, that the brig be acquitted, without any damages for the capture, injury, or detention. From this decree an appeal was made, by both parties, to the Circuit Court; and upon the  hearing in that Court, where, for the first time, the officers of the privateer were examined as witnesses, the Circuit Court pronounced a decree, affirming  so much of the decree of the District Court, as acquitted the brig, and reversing so much of it as denied damages, and proceeded finally to award damages to the claimants, to the amount of 10,288 dollars and 58 cents. From this decree there was an appeal, interposed on behalf the United States and the captors, to the Supreme Court. The cause came on to be heard upon this appeal, at February term, 1825, and upon inspection of the record, it did not then appear that there had been any final decree, ascertaining the amount of damages. The Court were of opinion, that if there had been no such decree, the case was not properly before the Court upon the appeal, there not being any final decree, within the meaning of the act of Congress. The Court considered, that the damages were but an incident to the principal decree; that the cause was but a single one; and that the cause could not, at the same time,  be in the Circuit Court for the purpose of assessing damages, and in this Court upon appeal, for the purpose  of an acquittal or condemnation of the vessel. The questions indeed were different; but the cause was the same. Upon this ground, the appeal was dismissed. But at the last term of the Court, it appearing that in point of fact there had been a final award of damages, and that the error was a mere misprision of the clerk of the Circuit Court in transmitting an imperfect record, the Court, upon motion of the appellants, at the last term, ordered the cause to be reinstated. \nIt is now contended, that this Court had no authority to reinstate the cause after such a dismissal; 1. Because it may operate to the prejudice of the stipulators or sureties, to whom the privateer was delivered, upon stipulation, in the Court below; and, 2. Because the cause was capable of being heard in this Court upon the appeal in respect to the decree of acquittal, that being the only decree in which the United States had any interest as a party; and that as to the damages, the captors were the only persons responsible for damages, and they alone had a right of appeal respecting the same; so that by operation of law, the cause had become  divided into two separate and distinct causes, in which each  party was an actor. \nThis Court cannot concur in either objection. Whenever a stipulation is taken in an admiralty suit, for the property subjected to legal process and condemnation, the stipulation is deemed a mere substitute for the thing itself, and the stipulators liable to the exercise of all those authorities on the part of the Court, which it could properly exercise, if the thing itself were still in its custody. This is the known course of the Admiralty. It is quite a different question, whether the Court will, in particular cases, exercise its authority, where sureties on the stipulation may be affected injuriously. That is a subject addressed to its sound discretion. In the present case, there was no ground for surprise or injury to the stipulators, or indeed to any party in interest. If there had been no final award of damages, the cause would not have been properly before this Court, and the appeal itself, being a nullity, would have left the cause still in the Circuit Court. But as such an award was made, the appeal was rightfully made; and the dismissal, being solely for a defect of jurisdiction apparent on the record, and founded on a mistake, constituted no bar  to a new appeal, even if a general dismissal might. The appeal then might, at any time within five years, have been lawfully made, and have bound the parties to the stipulation, to all its consequences. The difference between a new appeal, and a reinstatement of the old appeal, after a dismissal from a misprision of the clerk, is not admitted by this Court justly to involve any difference of right as to the stipulators. Every Court must be presumed to exercise those powers belonging to it, which are necessary for the promotion of public justice; and we do not doubt that this Court possesses the power to reinstate any cause dismissed by mistake. The reinstatement of the cause was founded, in the opinion of this Court, upon the plain principles of justice, and is according to the known practice of other judicial tribunals in like cases. \nThe other objection has not, in our opinion, a more solid  foundation. The libel was filed by the District Attorney, as well in behalf of the United States, as of the captors, and prayed, as usual, a condemnation of the vessel, and distribution of the proceeds. This fact is noticed for the purpose of answering the observation made at  the bar, as to the parties to the libel. It has been supposed, that the United States, and the captors, are to be deemed severally libellants, having distinct rights, both of prosecution and appeal. But this proceeds upon a mistake. In every case of a proceeding for condemnation, upon captures made by the public ships of war of the United States, whether the same be cases of prize, strictly jure belli, or upon public acts in the nature of captures jure belli, the proceedings are in the name and authority of the United States, who prosecute for themselves as well as for the captors. The captors cannot, without the authority of the government, proceed to enforce condemnation. The suit is, in form and substance, a proceeding by and in the name of the United States, for the benefit of all concerned. And whether the question respect the point of condemnation, or of damages, the United States have a right of appeal coextensive with the whole matter in litigation, and may interpose their protection to guard their agents and officers against injury and damages. These agents and officers are, indeed, in a certain sense, parties to the suit, as the seizing officer is in cases of mere  municipal seizures; and when the claimant makes himself, by a demand of damages, an actor in the suit, no doubt exists that the Court may proceed to decree damages against them, and thus entitle them to a separate right of appeal, if the government should feel that it had no further interest to pursue the suit. But still the right to damages must always be dependant upon the question of condemnation or acquittal, for it can never be successfully contended, that if a condemnation is finally adjudged, a decree for damages can be maintained. And, on the other hand, in a case of acquittal, the whole circumstances of the case must be taken into consideration, in order to ascertain that the case is one which justifies an award of damages.  In the present case, there was an appeal entered by the District Attorney for the United States, and also for the captors, from the decree of the Circuit Court. If this decree was final, such an appeal brought up the whole cause as to all he parties; and would, in point of law, have produced the same effect, if in form the appeal had only been in the name of the United States. If the decree was not final, (as upon the original record it  appeared to this Court not to be,) then it was void as to all parties.Either way, then, there never was any separation of the parties libellants, so as to give rise to the point of separate independent causes. We are, then, of opinion, that the whole cause is now rightfully before us. \nIt is contended on behalf of the appellees, that the present suit cannot be maintained, because the libel itself is fatally defective in its averments. It is said to be too loose, inartificial and general in its structure, to give a just foundation for any judgment of condemnation. If this were admitted to be true, the only effect would be, supposing the merits on the evidence  appeared to be in favour of the libellants, that the Court would, according to its known course of practice, remand the cause to the Circuit Court, with directions to allow an amendment of the libel, and ulterior proceedings consequent thereon. But there is asserted to be another fatal defect in the averments of the libel, which is incapable of being cured, because it cannot be established in point of fact; and that is, that the offenders are not alleged to have been convicted upon any prosecution in personam, of  the offence charged in the libel. The argument is, that there must be a due conviction upon a prosecution and indictment for the offence in personam, averred and proved, in order to maintain the libel in rem. \nIn respect to the first objection, it must be admitted, that the libel is drawn in an inartificial, inaccurate, and loose manner. The strict rules of the common law as to criminal prosecutions, have never been supposed by this Court to be required in informations of seizure in the Admiralty for forfeitures, which are deemed to be civil proceedings in  rem. Even on indictments at the common law, it is often sufficient to state the offence in the very terms of the prohibitory statute; and the cases cited by the Attorney General are directly in point. In informations in the Exchequer for seizures, general allegations bringing the case within the words of the statute, have been often held sufficient. And in this Court is has been repeatedly held, that in libels in rem, less certainty than what belongs to proceedings at the common law, will sustain a decree of condemnation, if the words of the statute are pursued, and the allegations point out the facts, so as to give  reasonable notice to the party to enable him to shape his defence. There is, indeed, in Admiralty proceedings, little ground to insist upon much strictness of averment, because, in however general terms the offence may be articulated, it is always in the power of the Court to prevent surprise, by compelling more particular charges as to the matters intended to be brought forward by the proofs. In general, it may be said, that it is sufficient in libels in rem, for forfeitures, to allege the offence in the terms of the state creating the forfeitures. There may be exceptions to this rule, where the terms of the statute are so general as naturally to call for more distinct specifications. Without pretending to enumerate such exceptions, let us look at the allegations in the amended libel in the present case. It charges, \"that the said being, called the Palmyra, &c. was, and is, a vessel from which a piratical aggression, search, depredation, restraint, and seizure, has been first attempted and made, to wit, upon the high seas, in and upon the schooner Coquette, a vessel of the United States, and of the citizens thereof, and in and upon the master, officers, and crew of the said schooner  Coquette, citizens of the United States; and also in and upon the Jeune Eugenie, a vessel of the United States, and of the citizens thereof, and in and upon Edward L. Coffin, the master, and the officers and crew of the said vessel, being citizens of the United States, and also in and upon other vessels of the United States, their officers and crews, citizens of the United States, and in and upon other vessels of various nations, states and  kingdoms, their officers and crews, citizens and subjects of said states and kingdoms.\" Now, whatever may be said as to the looseness and generality, and consequent insufficiency of the latter clauses of this allegation, the former specifying the Coquette and Jeune Eugenie, (upon which alone the proofs mainly rely for condemnation,) have, in our opinion, reasonable and sufficient certainty. It was not necessary to state in detail the particular acts constituting the piratical aggression, search, depredation, restraint, or seizure. The general words of the statute are sufficiently descriptive of the nature of the offence; and the particular acts are matters proper in the proofs. We may, then, dismiss this part of the objection. \nThe  other point of objection is of a far more important and difficult nature. It is well known, that at the common law, in many cases of felonies, the party forfeited his goods and chattels to the crown. The forfeiture did not, strictly speaking, attach in rem; but it was a part, or at least a consequence, of the judgment of conviction. It is plain from this statement, that no right to the goods and chattels of the felon could be acquired by the crown by the mere commission of the offence; but the right attached only by the conviction of the offender. The necessary result was, that in every case where the crown sought to recover such goods and chattels, it was indispensable to establish its right by producing the record of the judgment of conviction. In the contemplation of the common law, the offender's right was ot devested until the conviction. But this doctrine never was applied to seizures and forfeitures, created by statute, in rem, cognizable on the revenue side of the Exchequer. The thing is here primarily considered as the offender, or rather the offence is attached primarily to the thing; and this, whether the offence be malum prohibitum, or malum in se. The same principle  applies to proceedings in rem, on seizures in the Admiralty. Many cases exist, where the forfeiture for acts done attaches solely in rem, and there is no accompanying penalty in personam. Many cases exist, where there is both a forfeiture in rem and a personal penalty.  But in neither class of cases has it ever been decided that the prosecutions were dependent upon each other. But the practice has been, and so this Court understand the law to be, that the proceeding in rem stands independent of, and wholly unaffected by any criminal proceeding in personam. This doctrine is deduced from a fair interpretation of the legislative intention apparent upon its enactments. Both in England and America, the jurisdiction over proceedings in rem, is usually vested in different Courts from those exercising criminal jurisdiction. If the argument at the bar were well founded, there could never be a judgment of condemnation pronounced against any vessel coming within the prohibitions of the acts on which the present libel is founded; for there is no act of Congress which provides for the personal punishment of offenders, who commit \"any piratical aggression, search, restraint, depredation  or seizure,\" within the meaning of those acts. Such a construction of the enactments, which goes wholly to defeat their operation, and violates their plain import, is utterly inadmissible. In the judgment of this Court,  no personal conviction of the offender is necessary to enforce a forfeiture in rem in cases of this nature. \nHaving disposed of these questions, which are preliminary in their nature, we may now advance to the consideration of those which turn upon the merits of the cause. These questions are, 1. Whether the present be, upon the facts, a case for condemnation; and, if not, 2. Whether it be a case for remunerative damages, for vindictive damages are and must be disclaimed. \nUpon the first point, it is unnecessary to go into any examination at large of the various facts preceding and accompanying the capture, because the Judges are divided in opinion; and consequently, according to the known practice of the Court, the decree of the Circuit Court, so far as it pronounced a decree of acquittal, must be affirmed. \nIn respect to the second point, we are all of opinion that the case is clearly not a case for damages. The whole circumstances present such well  founded grounds for suspicion  of the piratical character and conduct of the privateer, as required Lieutenant Gregory, in the just exercise of his instructions from the President, under the acts of Congress, to subdue and send her in for adjudication. That her crew were guilty of plunder from the Coquette and the Jeune Eugenie, is established by proofs entirely competent and satisfactory. Her exercise of the right of search on these vessels was irregular and unjustifiable, and indicated on the part of the boarding officers no disinclination to petty thefts, if they avoided forcible robbery. Her commission is itself liable to much suspicion and criticism. It varies essentially in the description of the rig, the size, and the denomination of the vessel from that on board of which it is found. It purports to be for a schooner of 93 tons, under the command of Don Pablo Llanger; it is found on board of a brig of 160 tons, commanded by Captain Escurra. It was originally granted for a three months' cruise, which had expired; and it purports to be renewed by the Port Captain of Porto Rico, a subordinate agent of the King of Spain, for a new cruise, by an endorsement on it,  without any known authority.We do not advert to these circumstances to establish the position that the commission as utterly void, or rendered the exercise of belligerent rights piratical. Whatever may be the irregularities in the granting of such commissions, or the validity of them, so far as respects the King of Spain, to found an interest of prize in the captors, if the Palmyra bona fide received it, and her crew acted bona fide under it, it eught, at all event, in the Courts of neutral nations, to be held a complete protection against the imputation of general piracy. But the defects of the commission, connected with the almost total want of order and command on board of the privateer, and the manifest insubordination, and predatory spirit of the crew, could not but inflame to a high degree every other just suspicion. In short, taking the circumstances together, the Court think that they presented, prima facie, a case of piratical aggression, search, restraint, and depredation, within the acts of Congress, open to explanation indeed, but if unexplained,  pressing heavily on the vessel for the purpose of forfeiture. Lieutenant Gregory, then, was justifiable in sending  her in for adjudication, and has been guilty of no wrong calling for compensation. \nIt has been argued at the bar, that probable cause of seizure in this case constitutes no ground of defence against the claim of damages. It has been truly stated as the settled doctrine of this Court, that in cases of seizures under mere municipal laws, probable cause, unless so made by statute, constitutes no ground for denying damages, or justifying the seizure. But it is supposed, that probable cause is not an excuse or justification of any seizure or capture, except in cases jure belli; and the case of The Apollon, in the Court, (9 Wheat. Rep. 362.) is relied on to establish this position. That case contains no doctrine leading justly to any such conclusion. It was a case of seizure under our revenue laws, and, in the opinion of the Court, the point is examined how far probable cause constituted, in that case, a ground to exempt from damages. On that occasion the Court said, that the argument had not distinguished between probable cause as applied to cases of capture jure belli, and as applied to cases of municipal seizures; and then proceeded to state the distinction. There was no intimation,  that in cases of marine torts generally, or under laws authorizing the exercise to a limited extent of belligerent rights, or quasi belligerent rights, probable cause might not be a sufficient excuse. In the case of the Marianna Flora, at the last term, (11 Wheat. Rep.1.) the very point was before for Court, and it was in that case held, that probable cause was a sufficient excuse for a capture under circumstances of hostile aggression at sea. Indeed, in cases of marine torts arising under the general maritime law, probable cause often is a complete excuse for the act, and always goes in mitigation of damages. In the Admiralty, the award of damages always rests in the sound discretion of the Court, under all the circumstances. The case of the St. Louis, in 2 Dods. Rep. 210. is a strong illustration of the doctrine But, in cases like the present, where the public armed ships  of the United States are authorized to make captures to a limited extent, the authority so exercised by them must be deemed to stand upon the same analogy as captures strictly jure belli. And the doctrine of the prize courts as to the denial of damages, where there is probable cause for the capture,  furnishes the proper rule to govern the discretion of the Court. We are then of opinion, that in the present case there was strong probable cause for the capture, and that the decree of the Circuit Court, so far as it awards damages to the claimants, ought to be reversed. \nIt remains only to remark upon one or two points made against the competency of some of the testimony in the cause. It is objected, that Lieutenant Gregory is not a competent witness, because he is, notwithstanding his release of his interest as captor, interested to defeat the claim for damages. However well founded this objection may be as to his competency on the point of damages, having been admitted both in the District and Circuit Courts, as a witness, without objection, we think there was  a waiver of the objection, and it cannot now be insisted on. As to the depositions of Captains Souther and Coffin, they were taken under commissions duly issued from the Circuit Court according to the rule of this Court, and are, therefore, admissible upon the strictest principles. \nDECREE. This cause came on, &c. On consideration whereof, it is ADJUDGED, ORDERED, and DECREED, that so much of the decree  of the Circuit Court as decrees restitution of the brig Palmyra to the claimants, be, and the same is, hereby affirmed: and that so much of the decree of the said Circuit Court as awards damages to the claimants, be, and the same is, hereby REVERSED and ANNULLED; and it is further ORDERED, that said cause be remanded to said Circuit Court for further proceedings according to law. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the Court. \nThis is a writ of error to the judgment of the Court for the Trial of Impeachments and the Correction of Errors of the State of New-York, being the highest Court of that State, and is brought here in virtue of the 25th section of the Judiciary Act of 1789, ch. 20. The original action was a replevin for certain goods and chattels, to which the original defendant put in an avowry, and to that avowry there was a demurrer, assigning nineteen distinct and special causes of demurrer. Upon a joinder in demurrer, the Supreme Court of the State gave judgment against the avowant; and that judgment was affirmed by the high Court to which the present writ of error is addressed. \nThe avowry, in substance, asserts a justification of the taking of the goods and chattels to satisfy a fine and forfeiture imposed upon the original plaintiff by a Court Martial, for a failure to enter the service of the  United States as a militia-man, when thereto required by the President of the United States, in pursuance of the act of the 28th of February, 1795, c. 101. It is argued that this avowry is defective, both in substance and form; and it will be our business to discuss the most material of these objections; and as to others, of which no particular notice is taken, it is to be understood that the Court are of opinion, that they are either unfounded in fact or in Law, and do not require any separate examination. \nFor the more clear and exact consideration of the subject, it may be necessary to refer to the constitution of the United States, and some of the provisions of the act of 1795. The constitution declares that Congress shall have power \"to provided for calling forth the militia, to execute the laws of the Union, suppress insurrections, and repel invasions:\"  and also \"to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States.\" In pursuance of this authority, the act of 1795 has provided, \"that whenever the United States shall be invaded, or be in imminent danger of invasion  from any foreign nation or Indian tribe, it shall be lawful for the President of the United States to call forth such number of the militia of the State or States most convenient to the place of danger, or scene of action, as he may judge necessary to repel such invasion, and to issue his order for that purpose to such officer or officers of the militia as he shall think proper.\" And like provisions are made for the other cases stated in the constitution. It has not been denied here, that the act of 1795 is within the constitutional authority of Congress, or that Congress may not lawfully provide for cases of imminent danger of invasion, as well as for cases where an invasion has actually taken place. In our opinion there is no ground for a doubt on this point, even if it had been relied on, for the power to provide for repelling invasions includes the power to provide against the attempt and danger of invasion, as the necessary and proper means to effectuate the object. One of the best means to repeal invasion is to provide the requisite force for action before the invader himself has reached the soil. \nThe power thus confided by Congress to the President, is, doubtless, of a very  high and delicate nature. A free people are naturally jealous of the exercise of military power; and the power to call the militia into actual service is certainly felt to be one of no ordinary magnitude. But it is not a power which can be executed without a correspondent responsibility. It is, in its terms, a limited power, confined to cases of actual invasion, or of imminent danger of invasion. If it be a limited power, the question arises, by whom is the exigency to be judged of and decided? Is the President the sole and exclusive judge whether the exigency has arisen, or is it to be considered as an open question, upon which every officer to whom the orders of the  President are addressed, may decide for himself, and equally open to be contested by every militia-man who shall refuse to obey the orders of the President? We are all of opinion, that the authority to decide whether the exigency has arisen, belongs exclusively to the President, and that his decision is conclusive upon all other persons. We think that this construction necessarily results from the nature of the power itself, and from the manifest object contemplated by the act of Congress. The power  itself is to be exercised upon sudden emergencies, upon great occasions of state, and under circumstances which may be vital to the existence of the Union. A prompt and unhesitating obedience to orders is indispensable to the complete attainment of the object. The service is a military service, and the command of a military nature; and in such cases, every delay, and every obstacle to an efficient and immediate compliance, necessarily tend to jeopard the public interests. While subordinate officers or soldiers are pausing to consider whether they ought to obey, or are scrupulously weighing the evidence of the facts upon which the commander in chief exercises the right to demand their services, the hostile enterprise may be accomplished without the means of resistance. If \"the power of regulating the militia, and of commanding its services in times of insurrection and invasion, are (as it has been emphatically said they are) natural incidents to the duties of superintending the common defence, and of watching over the  internal peace of the confederacy,\" 1 these powers must be so construed as to the modes of their exercise as not to defeat the great end in view.If a  superior officer has a right to contest the orders of the President upon his own doubts as to the exigency having arisen, it must be equally the right of every inferior officer and soldier; and any act done by any person in furtherance of such orders would subject him to responsibility in a civil suit, in which his defence must finally rest upon his ability to establish the facts by competent proofs. Such a course  would be subversive of all discipline, and expose the best disposed officers to the chances of ruinous litigation. Besides, in many instances, the evidence upon which the President might decide that there is imminent danger of invasion, might be of a nature not constituting strict technical proof, or the disclosure of the evidence might reveal important secrets of state, which the public interest, and even safety, might imperiously demand to be kept in concealment. \nIf we look at the language of the act of 1795, every conclusion drawn from the nature of the power itself, is strongly fortified. The words are, \"whenever the United States shall be invaded, or be in imminent danger of invasion, &c. it shall be lawful for the President,  &c. to call forth such number of the militia, &c. as he may judge necessary to repel such invasion.\" The power itself is confided to the Executive of the Union, to him who is, by the constitution, \"the commander in chief of the militia, when called into the actual service of the United States,\" whose duty it is to \"take care that the laws be faithfully executed,\" and whose responsibility for an honest discharge of his official obligations is secured by the highest sanctions. He is necessarily constituted the judge of the existence of the exigency in the first instance, and is bound to act according to his belief of the facts. If he does so act, and decides to call forth the militia, his orders for this purpose are in strict conformity with the provisions of the law; and it would seem to follow as a necessary consequence, that every act done by a subordinate officer, in obedience to such orders, is equally justifiable. The law contemplates that, under such circumstances, orders shall be given to carry the power into effect; and it cannot therefore be a correct inference that any other person has a just right to disobey them. The law does not provide for any appeal from the judgment  of the President, or for any right in subordinate officers to review his decision, and in effect defeat it. Whenever a statute gives a discretionary power to any person, to be exercised by him upon his own opinion of certain facts, it is a sound rule of construction,  that the statute constitutes him the sole and exclusive judge of the existence of those facts. And, in the present case, we are all of opinion that such is the true construction of the act of 1795. It is no answer that such a power may be abused, for there is no power which is not susceptible of abuse.The remedy for this, as well as for all other official misconduct, if it should occur, is to be found in the constitution itself. In a free government, the danger must be remote, since in addition to the high qualities which the Executive must be presumed to possess, of public virtue, and honest devotion to the public interests, the frequency of elections, and the watchfulness of the representatives of the nation, carry with then all the checks which can be useful to guard against usurpation or wanton tyranny. \nThis doctrine has not been seriously contested upon the present occasion. It was indeed maintained  and approved by the Supreme Court of New-York, in the case of Vanderheyden v. Young, (11 Johns. Rep. 150.) where the reasons in support of its were most ably expounded by Mr. Justice Spencer, in delivering the opinion of the Court. \nbut it is now contended, as it was contended in that case, that notwithstanding the judgment of the President is conclusive as to the existence of the exigency, and may be given in evidence as conclusive proof thereof, yet that the avowry is fatally defective, because it omits to aver that the fact did exist. The argument is, that the power confided to the President is a limited power, and can be exercised only in the cases pointed out in the statute, and therefore it is necessary to aver the fact which bring the exercise within the purview of the statute. In short, the same principles are sought to be applied to the delegation and exercise of this power intrusted to the Executive of the nation for great political purposes, as might be applied to the humblest officer in the government, acting upon the most narrow and special authority. It is the opinion of the Court, that this objection cannot be maintained. When the President exercises an authority  confided to him by law, the presumption  that it is exercised in pursuance of law. Every public officer is presumed to act in obedience to his duty, until the contrary is shown; and, a fortiori, this presumption ought to be favourably applied to the chief magistrate of the Union. It is not necessary to aver, that the act which he may rightfully do, was so done. If the fact of the existence of the exigency were averred, it would be traversable, and of course might be passed upon by a jury; and thus the legality of the orders of the President would depend, not on his own judgment of the facts, but upon the finding of those facts upon the proofs submitted to a jury. This view of the objection is precisely the same which was acted upon by the Supreme Court of New-York, in the case already referred to, and, in the opinion of this Court, with entire legal correctness. \nAnother objection is, that the orders of the President are not set forth; nor in it averred that he issued any orders, but only that the Governor of New-York called out the militia upon the requisition of the President. The objection, so far as it proceeds upon a supposed difference between a requisition and  an order, is untenable; for a requisition calling forth the militia is, in legal intendment, an order, and must be so interpreted in this avowry. The majority of the Court understood and acted upon this sense, which is one of the acknowledged senses of the word, in Houston v. Moore, (5 Wheat. Rep. 1.) It was unnecessary to set forth the orders of the President at large; it was quite sufficient to state that the call was in obedience to them. No  private citizen is presumed to be conversant of the particulars of those orders; and if he were, he is not bound to set them forth in haec verba. \nThe next objection is, that it does not sufficiently appear in the avowry that the Court Martial was a lawfully constituted Court Martial, having jurisdiction of the offence at the time of passing its sentence against the original plaintiff. \nVarious grounds have been assigned in support of this objection. In the first place, it is said, that the original plaintiff was never employed in the service of the United States, but refused to enter that service, and that, consequently, he was not liable to the rules and articles of war  or to be tried for the offence by any Court  Martial organized under the authority of the United States. The case of Houston v. Moore, (5 Wheat. Rep. 1.) affords a conclusive answer to this suggestion. It was decided in that case, that although a militiaman, who refused to obey the orders of the President calling him into the public service, was not, in the sense of the act of 1795, \"employed in the service of the United States\" so as to be subject to the rules and articles of war; yet that he was liable to be tried for the offence under the 5th section of the same act, by a Court Martial called under the authority of the United States. The great doubt in that case was, whether the delinquent was liable to be tried for the offence by a Court Martial organized under State authority. \nIn the next place, it is said, the Court Martial was not composed of the proper number of officers required by law. In order to understand the force of this objection, it is necessary to advert to the terms of the act of 1795, and the rules and articles of war. The act of 1795 (s. 5.) provides, \"that every officer, non-commissioned officer, or private of the militia, who shall fail to obey the orders of the President of the United States,\" &c.  shall forfeit a sum not exceeding one year's pay, and not less than one month's pay, to be determined and adjudged by a Court Martial.\" And it further provides, (s. 6.) \"that Courts Martial for the trial of militia shall be composed of militia officers only.\" These are the only provisions in the act on this subject. It is not stated by whom the Courts Martial shall be called, nor in what manner, nor of what number they shall be composed. But the Court is referred to the 64th and 65th of the rules and articles of war, enacted by the act of 10th of April, 1806, ch. 20., which provide, \"that General Courts Martial may consist of any number of commissioned officers from five to thirteen inclusively; but they shall not consist of less than thirteen, where that number can be convened without manifest injury to the service:\" and that \"any general officer commanding an army, or colonel commanding a separate department, may appoint General Courts Martial when necessary.\" Supposing these clauses applicable to the Court Martial in question, it is very clear,  that the act is merely directory to the officer appointing the Court, and that his decision as to the number which can be convened  without manifest injury to the service, being in a matter submitted to his sound discretion, must be conclusive. But the present avowry goes further, and alleges, not only that the Court Martial was appointed by a general officer commanding an army, that it was composed of militia officers, naming them, but it goes on to assign the reason why a number short of thirteen composed the Court, in the very terms of the 64th article; and the truth of this allegation is admitted by the demurrer. Tried, therefore, by the very test which has been resorted to in support of the objection, it utterly fails. \nBut, in strictness of law, the propriety of this resort may admit of question. The rules and articles of war, by the very terms of the statute of 1803, are those \"by which the armies of the United States shall be governed;\" and the act of 1795 has only provided, \"that the militia employed in the service of the United States (not the militia ordered into the service of the United States) shall be subject to the same rules and articles of war as the troops of the United States;\" and this is, in substance, re-enacted by the 97th of the rules and articles of war. It is not, therefore, admitted,  that any express authority is given by either statute, that such a Court Martial as is contemplated for the trial of delinquents under the 5th section of the act of 1795, is to be composed of the same number of officers, organized in the same manner as these rules and articles contemplate for persons in actual service. If any resort is to be had to them, it can only be to guide the discretion of the officer ordering the Court, as matter of usage, and not as matter of positive institution. If, then, there be no mode pointed out for the formation of the Court Martial in these cases, it may be asked, in what manner is such Court to be appointed? The answer is, according to the general usage of the militiary service, or what may not unfitly be called the customary military law. It is by the same law that Courts Martial, when duly organized, are bound to execute their duties, and regulate their modes of proceeding, in the absence of positive enactments. Upon  any other principle, Courts Martial would be left without any adequate means to exercise the authority confided to them: for there could scarcely be framed a positive code to provide for the infinite variety of incidents  applicable to them. \nThe act of the 18th of April, 1814, ch. 141. which expired at the end of the late war, was, in a great measure, intended to obviate difficulties arising from the imperfection of the provisions of the act of 1795, and especially to aid Courts Martial in exercising jurisdiction over cases like the present. But whatever may have been the legislative intention, its terms do not extend to the deciaration of the number of which such Courts Martial shall be composed. The first section provides, \"that Courts Martial to be composed of militia officers alone, for the trial of militia drafted, detached, and called forth, (not or called forth,) for the service of the United States, whether acting in conjunction with the regular forces or otherwise, shall, when necessary, be appointed, held, and conducted, in the manner prescribed by the rules and articles of war, for appointing, holding, and conducting, Courts Martial for the trial of delinquents in the army of the United States.\" This language is obviously confined to the militia in the actual service of the United States, and does not extend to such as are drafted and refuse to obey the call. So that  the Court  are driven back to the act of 1795 as the legitimate source for the ascertainment of the organization and jurisdiction of the Court Martial in the present case. And we are of opinion, that nothing appears on the face of the avowry to lead to any doubt that it was a legal Court Martial, organized according to military usage, and entitled to take cognizance of the delinquencies stated in the avowry. \nThis view of the case affords an answer to another objection which has been urged at the bar, viz. that the sentence has not been approved by the commanding officer, in the manner pointed out in the 65th of the rules and articles of war. That article cannot, for the reasons already stated, be drawn in aid of the argument; and the avowry itself shows that the sentence has been approved by the president of the United States, who is the commander in  chief, and that there was not any other officer of equal grade with the major generals by whom the Court Martial had been organized and continued within the military district, by whom the same could be approved. If, therefore, an approval of the sentence were necessary, that approval has been given by the highest, and indeed only,  military authority competent to give it. \nBut it is by no means clear that the act of 1795 meant to require any approval of the sentences imposing fines for delinquencies of this nature. The act does not require it either expressly or by necessary implication. It directs (s. 7.) that the fines assessed shall be certified by the presiding officer of the Court Martial to the marshal, for him to levy the same, without referring to any prior act to be done, to give validity to the sentences. The natural inference from such an omission is, that the Legislature did not intend, in cases of this subordinate nature, to require any farther sanction of the sentences. And if such an approval is to be deemed essential, it must be upon the general military usage, and not from positive institution. Either way, we think that all has been done, which the act required. \nAnother objection to the proceedings of the Court Martial is, that they took place, and the sentence was given, three years and more after the war was concluded, and in a time of profound peace. But the opinion of this Court is, that a Court Martial, regularly called under the act of 1795, does not expire with the end of a war  then existing, nor is its jurisdiction to try these offences in any shape dependent upon the fact of war or peace. The act of 1795 is not confined in its operation to cases of refusal to obey the orders of the President in times of public war. On the contrary, that act authorizes the President to call forth the militia to suppress insurrections, and to enforce the laws of the United States, in times of peace. And Courts Martial are, under the 5th section of the act, entitled to take cognizance of, and to punish delinquencies in such cases, as well as in cases where the object is to repel invasion in times of war. It would be a strained construction of the act, to limit the authority of the Court to the mere time of  the existence of the particular exigency, when it might be thereby unable to take cognizance of, and decide upon a single offence. It is sufficient for us to say, that there is no such limitation in the act itself. \nThe next objection to the avowry is, that the certificate of the President of the Court Martial is materially variant from the sentence itself, as set forth in a prior allegation. The sentence as there set forth is, cand thereupon the said General  Court Martial imposed the sum of 96 dollars as a fine on the said Jacob, for having thus failed, neglected, and refused to rendezvous and enter in the service of the United States of America, when thereto required as aforesaid.\" The certificate adds, \"and that the said Jacob E. Mott was sentenced by the said General Court Martial, on failure of the payment of said fine imposed on him, to twelve months imprisonment.\" It is material to state that the averment does not purport to set forth the sentence in haec verba; nor was it necessary in this avowry to allege any thing more than that part of the sentence which imposed the fine, since that was the sole ground of the justification of taking the goods and chattels in controversy. But there is nothing repugnant in this averment to that which relates to the certificate. The latter properly adds the fact which respects the imprisonment, because the certificate constitutes the warrant to the marshal for his proceedings. The act of 1795 expressly declares, that the delinquents \"shall be liable to be imprisoned by a like sentence, on failure of payment of the fines adjudged against them, for one calendar month for every five dollars of such  fine.\" If indeed it had been necessary to set forth the whole sentence at large, the first omission would be helped by the certainty of the subsequent averment. There is, then, no variance or repugnance in these allegations; but they may well stand together. \nOf the remaining causes of special demurrer, some are properly matters of defence before the Court Martial, and its sentence being upon a subject within its jurisdiction, is conclusive; and others turn upon niceties of pleading, to which no separate answers are deemed necessary. In general  it may be said of them, the Court do not deem them well-founded objections to the avowry. \nUpon the whole, it is the opinion of the Court, that the judgment of the Court for the Trial of Impeachments and the Correction of Errors ought to be reversed, and that the cause be remanded to the same Court, with directions to cause a judgment to be entered upon the pleadings in favour of the avowant. \nJUDGMENT. This cause came on, &c. On consideration whereof, it is CONSIDERED and ADJUDGED, that there is error in the judgment of the said Court of the Trial of Impeachments and the Correction of Errors, in this, that upon the pleadings  in the cause, judgment ought to have been rendered in favour of the avowant, whereas it was rendered in favour of the original plaintiff; and it is, therefore, further CONSIDERED and ADJUDGED, that the same judgment be, and the same hereby is, REVERSED and ANNULLED; and also, that the judgment of the Supreme Court of Judicature of the State of New York, which was affirmed by the said Court for the Trial of Impeachments and the Correction of Errors, be REVERSED and ANNULLED; and that judgment be  rendered, that the said avowry is good and sufficient in law to bar the plaintiff's action, and that the plaintiff take nothing by his writ; and that the cause be remanded to the said Court for the Trial of Impeachments and the Correction of Errors, if the record be now in the said Court, and if not, then to the Supreme Court of Judicature of the State aforesaid, to which the same has been remitted, with directions to cause judgment to be entered upon the pleadings in favour of the avowant. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the Court. \nThis is a writ of error to the Circuit Court of the United States for the District of West Tennessee. \nThe original action was assumpsit, brought by Powell, Fosters & Co. as holders of a bill of exchange, drawn by one Thomas Fletcher, in May, 1819, at Nashville, upon Messrs. M'Neil, Fisk and Rutherford, at New Orleans, payable to Thomas Read, or order, for two thousand dollars, in  sixty days after date, and by him endorsed to the defendant, John C. M'Lemore, and by him to the plaintiffs. The bill, upon presentment for acceptance, was dishonoured, and due notice of the dishonour was given to the defendant. \nAt the trial, upon the general issue, Thomas Fletcher, the drawer, was, under a release from the defendant, M'Lemore, examined as a witness, and, among other things, testified that, in the month of October following the dishonour of the bill, \"one of the plaintiffs applied to him at Nashville for the money on the bill, and threatened to sue immediately if an arrangement was not made to pay the bill. The witness then proposed to the plaintiff, if he would indulge him four or five weeks, he would himself, to a certainty, pay the bill. To this the plaintiff agreed, and told the witness  he was going to Louisville, Kentucky, and would return by Nashville about the expiration of that time, and would receive said payment. Since said time the witness has never seen said plaintiff.\" The witness farther testified, that the defendant was an accommodation endorser for him on the bill; that the plaintiff told him that the bill would be left with a Mr. Washington  at Nashville; that he expected he would himself be at that place at the time agreed on, but that, if he did not come, he would give the instructions to Mr. Washington, by letter, what to do if the witness did not pay at the expiration of the time agreed on. It did not appear that any consideration was paid or stipulated for this delay; and no suit was commenced until after this period had elapsed. The district judge instructed the jury, that if they believed the conversation above stated amounted to no more than an agreement that a suit should not be brought for four or five weeks, and that no premium or consideration was given or paid, or to be paid by Fletcher, the endorsers were not discharged,  that an agreement for giving day must be an obligatory contract for a consideration which ties up the hands of the creditor, and disables him from suing, thereby affecting the interests and rights of the endorser; that the endorser has a right to require and demand of the creditor to bring a suit against the drawer, and if he has disabled himself from bringing a suit by a contract for a consideration, he has thereby released the endorser; and that, if the jury were satisfied  from the testimony, that time was given for a valuable consideration paid, or to be paid, or that a new security was taken by the holder, that the endorser was discharged and absolved from all the obligations of the endorsement. \nUnder this instruction, the jury found a verdict for the plaintiffs, upon which there was judgment given in their favour. A bill of exceptions was taken to the charge of the Court; and the present writ of error is brought for the purpose of ascertaining its legal correctness. \nIt is unnecessary to give any opinion upon that part of the charge which respects the right of an endorser to require the holder to commence a suit against the drawer. In general, the endorser, by paying the bill, has a complete power to reinstate himself in the possession and ownership of the bill, and thus to entitle himself to a personal remedy on the instrument against all antecedent parties. The same reason, therefore, does not exist, as may in common cases of suretyship, to compel the creditor to active diligence by suit against the principal. Without expressing any opinion on this point, it is sufficient to say, that the error, if any, was favourable to the defendant, and,  therefore, it can form no subject of complaint on his part. \nThe case, then, resolves itself into this question, whether a mere agreement with the drawers for delay, without any, consideration for it, and without any communication with, or assent of, the endorser, is a discharge of the latter, after he has been fixed in his responsibility by the refusal of the drawee, and due notice to himself. And we are all of opinion that it does not. We admit the doctrine, that although the endorser has received due notice of the dishonour of the bill, yet, if the holder afterwards enters into any new agreement with the drawer for delay, in any manner changing  the nature of the original contract, or affecting the rights of the endorser, or to the prejudice of the latter, it will discharge him. But, in order to produce such a result, the agreement must be one binding in law upon the parties, and have a sufficient consideration to support it. An agreement without consideration is utterly void, and does not suspend for a moment the rights of any of the parties. In the present case, the jury have found, that there was no consideration for the promise to delay a suit, and, conseqeuntly,  the plaintiffs were at liberty immediately to have enforced said by remedies against all the parties. It was correctly said by Lord Eldon, in English v. Darley, (2 Bos. & Pull. 61.) that \"as long as the holder is passive, all his remedies remain;\" and, we and, that he is not bound to active diligence. But if the holder enters into a valid contract for delay, he thereby suspends his own remedy on the bill for the stipulated period; and if the endorser were to pay the bill, he could only be subrogated to the rights of the holder, and the drawer could or might have the same equities against him as against the holder himself. If, therefore, such a contract be entered into without his assent, it is to his prejudice, and discharges him. \nThe cases proceed upon the distinction here pointed out, and conclusively settle the present question.In Natwyn v. St. Quintin, (1 Bos. & Pull. 652.) where the action was by endorsees against the drawer of a bill, it appeared, that, after the bill had become due, and been protested for non-payment, though no notice had been given to the drawer, he havig no effects in the hands of the acceptor, the plaintiffs received part of the money on account from  the endorser; and to an application from the acceptor, stating, that it was probable he should be able to pay t a future period, they returned for answer, that they would not press him. The Court held it no discharge; and Lord Chief Justice Eyre, in delivering the opinion of the Court, said, that if this forbearance to sue the acceptor had taken place before noticing and protesting for non-payment, so that the bill had not been demanded when due, it was clear the drawer would have been discharged, for it would be giving a new credit to the acceptor. But that, after protest for non-payment,  and notice to the drawer, or an equivalent to notice, a right to sue the drawer had attached, and the holder was not bound to sue the acceptor. He might forbear to sue him. The same doctrine was held in Arundel Bank v. Goble, reported in a note to Chitty on Bills. (Chitty, 379. note c. edit. 1821.) There the acceptor applied for time, and the holders assented to it, but said they should expect interest. It was contended, that this was a discharge of the drawer; but the Court held otherwise, because the agreement of the plaintiffs to wait was without consideration, and the acceptor  might, notwithstanding the agreement, have been sued the next instant; and that the understanding that interest should be paid by the acceptor, made no difference. So, in Badnall v. Samuel, (3 Price's Exch. Rep. 521.) in a suit  by the holder against a prior endorser of a bill of exchange, it was held, that a treaty for a delay between the holder and acceptor, upon terms which were not finally accepted, did not discharge the defendant, although an actual delay had taken place during the negotiation, because there was no binding contract which precluded the plaintiffs from suing the acceptor at any time. \nUpon authority, therefore, we are of opinion, that this writ of error cannot be sustained, and that the judgment below was right. Upon principle, we should entertain the same opinion, as we think the whole reasoning upon which the delay of the holder to enforce his rights against the drawer is held to discharge the endorser after notice, is founded upon the notion, that the stipulation for delay suspends the present rights and remedies of the holder. \nThe judgment of the Court below is, therefore, affirmed, with costs. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the Court. \nThe bill in this case  is brought against the administrator, with the will annexed, of General Kosciuszko, for the purpose of establishing a right of the plaintiff to receive payment out of the assets of the testator, of a certain bequest to him, contained in a supposed testamentary writing, executed by the testator at Paris, in France, in June, 1806. This supposed testamentary writing is set forth in the bill, and averred to be in the nature and of the effect of a last will or writing testamentary; but it does not appear to have been admitted to probate, either in France, or in the proper Orphan's Court of this District. The answer admits the existence and authenticity of the instrument, and submits to the Court its import and legal effect, and whether it is to be deemed a last will and testament; and it also admits assets in the hands of the administrator sufficient to discharge the bequest. The cause was heard in the Court below upon the bill and answer, and from the decree dismissing the bill, the present appeal has been brought to this Court. \nThe cause has been argued here upon several points, involving a good deal of learning, and some doctrines of international law. We do not enter into an examination  of them, because our judgment proceeds upon a single point, and will, in no event, prejudice the merits of the plaintiff's claim. \nBy the common law, the exclusive right to entertain jurisdiction over wills of personal estate, belongs to the ecclesiastical Courts; and before any testamentary paper of personalty can be admitted in evidence, it must receive probate in those Courts. Lord Kenyon, in The King v. Inhabitants of Netherseal, (4 Term Rep. 258.)  said, \"we cannot receive any other evidence of there being a will in this case, than such as would be sufficient, in all other cases, where titles  are derived under a will; and nothing but the probate or letters of administration, with the will annexed, are legal evidence of the will, in all questions respecting personalty.\" This principle of the common law is supposed to be in force in Maryland, from which this part of the District of Columbia derives its jurisprudence; and the probate of wills of personalty to belong exclusively to the proper Orphan Court here, exercising ecclesiastical jurisdiction. If this be so, and nothing has been shown which leads us to a different conclusion, then it is indispensable  to the plaintiff's title, to procure, in the first instance, a regular probate of this testamentary paper in the Orphan's Court of this District, and to set forth that fact in his bill. The treaty stipulations, the act of Congress, and the principles of the law of France, which have been cited at the argument, attributing to them the full force which that argument supposes to establish the validity of the instrument, do not change the forum which is entitled, by the local jurisprudence, to pronounce upon it as a testamentary paper, and to grant a probate. It is one thing to possess proofs, which may be sufficient to establish tht a testamentary instrument had been executed in a foreign country, under circumstances which ought to give it legal effect here; and quite a different thing, to ascertain what is the proper tribunal here, by which those proofs may be examined, for the purpose of pronouncing a judicial sentence thereon. \nFor this reason, the decree of the Court below is to be affirmed, but without prejudice, so that the instrument may be submitted to the decision of the proper Probate Court. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the Court. \nThis is a writ of error to the Circuit Court for the District of Virginia. The original action was debt on a bond, purporting to be signed by Dandridge, as principal, and Garter B. Page, Wilson Allen, James Brown, Jr., Thomas Taylor, Harry Heth, and Andrew Stevenson, as his sureties, and was brought jointly  against all the parties. The condition  of the bond, after reciting that Dandridge had been appointed cashier of the office of discount and deposit of the Bank of the United States at Richmond, Virginia, was, that if he should well, and truly, and faithfully discharge the duties and trust reposed in him as cashier of the said office, then the obligation to be void, otherwise to remain in full force and virtue.  The declaration set forth the condition, and assigned various breaches. Dandridge made no defence; and the suit was abated as to Heth by his death. The other defendants severed in their pleas. It is not thought necessary to state the pleadings at large; it is sufficient to state, that Stevenson and Allen pleaded, among other pleas, non est factum generally, and also special pleas of non est factum, or which issues were joined; and that all the defendants in various forms pleaded, that the instrument was not the deed of Stevenson; and further pleaded, that the bond had never been approved, according to the provisions of the 30th article of the rules and regulations of the bank. Issues were also taken on these pleas; and the cause came on for trial upon all the issues of fact. \nAt the trial, evidence was offered for the purpose of establishing the due execution of the bond by the defendants, and particularly by Stevenson and Allen, and its approval by the plaintiffs. The evidence was objected to on behalf of the defendants, as not sufficient to be left to the jury, to infer a delivery of the bond, and the acceptance and approval thereof by the directors of the bank, according to  the provisions of their charter; and the objection was sustained, the Court being of opinion, that although the scroll affixed by Allen to his name, is in Virginia equivalent to a seal of wax, and although proof of the handwriting of stevenson, and the bond being in possession of the plaintiffs, and put in suit by them, and the introduction of Dandridge into the office of cashier, and his continuing to act in that office, would, in general, be prima facie evidence, to be submitted to the jury, as proof that the bond was fully executed and accepted; yet it was not evidence of that fact, or of the obligation of the bond in this case; because, under the act of Congress, incorporating the Bank of the United States, the bond ought to be satisfactory to the board of directors, before  the cashier can legally enter on the duties of his office, and consequently before his sureties can be responsible for his non-performance of those duties; and that the evidence in this case did not prove such acceptance and approbation of the bond, as is required by law for its completion. This opinion constitutes the subject matter of the first bill of exceptions. \nFarther evidence was then offered  by the plaintiffs for the same purpose, the particulars of which are not now necessary to be enumerated; to which the defendants took various objections, and contended, among other things, that the whole of the evidence, if legal, was not sufficient to go to the jury, upon which to infer the delivery of the paper as the act and deed of the defendants, and its acceptance and approbation by the directors of the bank, pursuant to their charter; which objection was sustained; and the Court excluded the whole, and every part of the said evidence from the jury, being of opinion that the board of directors keep a record of their proceedings, which record, or a copy of it, showing the assent of the directors to this bond, was necessary to show that such assent was given; and if such assent had not been entered on the record of the proceedings of the said directors, the bond was ineffectual, and no claim n favour of the plaintiffs could be founded thereon against the defendants in these issues. This opinion of the Court constitutes the subject matter of the second bill of exceptions. \nIt has become the duty of this Court, upon the present writ of error, to decide whether these opinions of  the Circuit Court, or either of them, can be maintained in point of law. \nIt is material to state, that the rejection of the evidence did not proceed upon the ground that it was of a secondary nature, leaving behind, in the possession of the plaintiffs, evidence of a higher and more satisfactory nature. On the contrary, the whole structure of the case shows, that there was in the understanding of both the parties, no record ever made of the approval or acceptance of the bond in question; and the principal controversy was, whether it could be established by any evidence short of such record proof. \n The propositions maintained by the Circuit Court were in substance these. First, that the cashier could not legally enter upon the duties of his office, or make his sureties responsible for his non-performance of those duties, before his official bond was accepted as satisfactory by the board of directors, according to the terms of the charter.Secondly, that such acceptance could be established only by proof drawn from the records of the board of directors; and if no record had been kept of such assent and acceptance, the bond was ineffectual, and no secondary evidence could  be admitted to establish the fact. \nThe last proposition will be first considered. The correctness of it in a great measure depends upon the soundness of the distinction taken between the acts of private persons and the acts of corporations.It is admitted in the opinion of the Circuit Court, that the evidence offered would, in common cases between private persons, have been prima facie evidence, to be submitted to the jury, as proof that the bond was fully executed and accepted. But it is supposed that a different rule prevails in cases of corporations; that their acts must be established by positive record proofs; and that no presumptions can be made in their favour, of corporate assent or adoption, from other circumstances, though in respect to individuals the same circumstances would be decisive. The doctrine, then, is maintained from the nature of corporations, as distinguished from natural persons; and from the supposed incapacity of the former to do any act not evidenced by writing; and if done, to prove it, except by writing. \nLittle light can be thrown on this subject by considerations drawn from corporations existing by the common law, or dependent upon prescription. To  corporations, however erected, there are said to certain incidents attached, without any express words or authority for this purpose; such as the power to plead  and be impleaded, to purchase and alien, to make a common seal, and to pass by-laws. 1 In ancient times it was held, that corporations aggregate could no nothing but by deed under their common seal.  But this principle must always have been understood with many qualifications; and seems inapplicable to acts and votes passed by such corporations at corporate meetings. It was probably in its origin applied to aggregate corporations at the common law, and limited to such solemn proceedings as were usually evidenced under seal, and to be done by those persons who had the custody of the common seal, and had authority to bind the corporation thereby, as their permanent official agents. Be this as it may, the rule has been broken in upon in a vast variety of cases, in modern times, and cannot now, as a general proposition, be supported. Mr. Justice Bayley, in Harper v. Charlesworth, (4 Barnw. & Cresw. 575.) said \"A corporation can only grant by deed; yet there are many things which a corporation has power  to do otherwise than by deed. It may appoint a bailiff, and do other acts of a like nature.\" And it is now firmly established, both in England and America, that a corporation may be bound by a promise, express or implied, resulting from the acts of its authorized agent, although such authority be only by virtue of a corporate vote, unaccompanied with the corporate seal. \nBut whatever may be the implied powers of aggregate corporations by the common law, and the modes by which those powers are to be carried into operation, corporations created by statute must depend, both for their powers, and the mode of exercising them, upon the true construction of the statute itself. The doctrine of this Court, in Head v. The Providence Insurance Company, (2 Cranch. 127.) on this subject, is believed to be entirely correct. It was there said by the Chief Justice, in delivering the opinion of the Court, that \"without ascribing to this body, which in its corporate capacity is the mere creature of the act to which it owes its existence, all the qualities and disabilities annexed by the common law to ancient institutions of this sort, it may correctly be  said to be precisely what the incorporating act has made it; to derive all its powers from that act, and to be capable of exerting its faculties only in the manner which that act authorizes.\" In that case, the act of incorporation prescribed the mode in which contracts should be made, in order to bind the corporation, which was not complied  with; and the Court held, that there was no binding contract, for the corporation could only act in the manner prescribed by law; and when their agents do not clothe their proceedings with those solemnities which are required by the incorporating act to bind the company, they cannot be deemed as more than proposals or preparatory negotiations. We do not perceive any thing in this doctrine which fairly admits of controversy. But this case has been pressed upon us, at the present argument, as justifying to its full extent the reasoning of the defendants on the present occasion. The question there was not, whether every corporate act must be evidenced by writing; but whether certain acts, which by law were to bind only when done and verified in a particular manner, ought to bind, although those forms were not adopted. \nWe do not admit,  as a general proposition, that the acts of a corporation, although in all other respects rightly transacted, are invalid, merely from the omission to have them reduced to writing, unless the statute creating it makes such writing indispensable as evidence, or to give them an obligatory force. If the statute imposes such a restriction, it must be obeyed; if it does not, then it remains for those who assert the doctrine to establish it by the principles of the common law, and by decisive authorities. None such have, in our judgment, been produced. \nBy the general rules of evidence, presumptions are continually made in cases of private persons of acts even of the most solemn nature, when those acts are the natural result or necessary accompaniment of other circumstances. In aid of this salutary principle, the law itself, for the purpose of strengthening the infirmity of evidence, and upholding transactions intimately connected with the public peace, and the security of private property, indulges its own presumptions. It presumes that every man, in his private and official character, does his duty, until the contrary is proved; 2 will presume that all things are rightly done, unless  the circumstances of the case overturn this presumption,  according to the maxim, omnia presumuntur rite et solemnitur esse acta, donec probetur in contrarium. Thus, it will presume that a man acting in a public office has been rightly appointed; that entries found in public books have been made by the proper officer; that, upon proof of title, matters collateral to that title shall be deemed to have been done; as, for instance, if a grant or feoffment has been declared on, attornment will be intended, and that deeds and grants have been accepted, which are manifestly for the benefit of the party. The books on evidence abound with instances of this kind, and many of them will be found collected in Mr. Starkie's late valuable Treatise on Evidence. (3 Starkie's Evid. part iv. 1234. 1241. 1248. and note 1250, &c.) \nThe same presumptions are, we think, applicable to corporations. Persons acting publicly as officers of the corporation, are to be presumed rightfully in office; acts done by the corporation, which presuppose the existence of other acts to  make them legally operative, are presumptive proofs of the latter. Grants and proceedings beneficial to the corporation are presumed to be accepted; and slight acts on their part, which can be reasonably accounted for only upon the supposition of such acceptance, are admitted as presumptions of the fact. If officers of the corporation openly exercise a power which presupposes a delegated authority for the purpose, and other corporate acts show that the corporation must have contemplated the legal existence of such authority, the acts of such officers will be deemed rightful, and the delegated authority will be presumed.  If a person acts notoriously as cashier of a bank, and is recognised by the directors, or by the corporation, as an existing officer, a regular appointment will be presumed; and his acts, as cashier, will bind the corporation, although no written proof is or can be adduced of his appointment. In short, we think, that the acts of artificial persons afford the same presumptions as the acts of natural persons. Each affords presumptions, from acts done, of what must have preceded them, as matters of right, or matters of duty. \n It may not be without  use to advert to a few cases where corporate acts have been the subject of presumptions. In the first place, we may advert to the known fact, that a charter may be presumed to have been given to persons who have long acted as a corporation, and assumed the exercise of the powers of a corporate body, whether of an ordinary or extraordinary nature. This is the case in respect to all corporations existing by presumption. Yet the very case supposes that no written proof can be adduced of a charter, or of a vote of the corporators to accept the charter. Yet, both a charter and acceptance are vital to the existence of the corporation. They are, however, presumed, not merely from the lapse of time, but from the continued exercise of corporate powers, which presuppose their existence. So, in relation to the question of acceptance of a particular charter by an existing corporation, or by corporators already in the exercise of corporate functions, the acts of the corporate officers are admissible evidence from which the fact of acceptance may be inferred. It is not indispensable to show a written instrument or vote of acceptance on the corporation books. It may be inferred from other  facts which demonstrate that it must have been accepted. Upon this point it is not necessary to do more than to refer to the general course of reasoning in The King v. Amery, (1 Term Rep. 595. S.C. 2 Term Rep. 515.) as applied to the circumstances of that case. 3 In Wood v. Tate, (5 Bos. & Pull. 246.) which was replevin upon a distress made by the bailiff of the borough of Morpeth, for rent, it appeared in evidence that the tenant went into possession under a lease void for not being executed under the corporate seal, even if made by proper officers; yet the Court held, that though the lease was void, the tenant was to be deemed tenant from year to year under the corporation, and his payment of rent from time to time to the officers of the corporation, (though not proved to be by virtue of any written authority,) was sufficient proof of tenancy under the corporation, on which the corporation  might distrain for the rent in arrear. In Doe v. Woodman, (8 East's Rep. 228.) where certain premises had been demised by the plaintiff to the corporation, as tenant from year to year, at an annual rent, though it does not appear in what manner the demise had been accepted, except  by the payment of rent by the bailiff, as such, it seems to have been taken for granted that it was proper evidence of a holding by the corporation. In Magill v. Kauffman, (4 Serg. & Rawle, 317.) which was an ejectment for land claimed by a Presbyterian congregation, before incorporation, under a purchase by their trustees, and after their incorporation claimed in their right as a corporation, the Supreme Court of Pennsylvania held, that evidence of the acts and declaration of the trustees and agents of the corporation, both before and after the incorporation, while transacting the business of the corporation, and also evidence by witnesses of what passed at the meetings of the congregation when assembled on business, were admissible to show their possession of the land, and the extent of their claim of its boundaries. This must necessarily have proceeded upon the ground that the acts of corporate agents, and even of aggregate bodies corporate or unincorporated, might be established independent of written minutes of their proceedings. \nIn respect to grants and deeds beneficial to a corporation, there  seems to be no particular reason why their assent to, and acceptance of the same, may not be inferred from their acts, as well as in the case of individuals. Suppose a deed poll granting lands to a corporation, can it be necessary to show that there was an acceptance by the corporation by an assent under seal, if it be a corporation at the common law; or by a written vote, if the corporation may signify its assent in that manner? Why may not its occupation and improvement, and the demise of the land by its agents, be justly admitted, by implication, to establish the fact in favour and for the benefit of the corporation? Why should the omission to record the assent, if actually given, deprive the corporation of the property which it gained in virtue of such actual assent? The validity of such a grant depends upon the acceptance, not upon the mode, by which  it is proved. It is no implied condition that the corporation shall perpetuate the evidence of its assent in a particular way. At least, if it be so, we think it is incumbent on those who maintain the affirmative, to point out the authorities which sustain it. None such have been cited at the bar. On the contrary,  there are highly respectable decisions, made upon great consideration, which assert a different doctrine. The case of the Proprietors of the Canal Bridge v. Gordon, (1 Pickering's Rep. 297.) is directly in point. There the object was to impose an onerous duty, and to discharge or limit the right of toll of the plaintiffs; and the Court held, that the corporation could bind itself, and did in fact, in that case, bind itself to a surrender of its valuable rights, by implications from corporate acts, without vote or deed. The learned Chief Justice of Massachusetts, on that occasion, in delivering the opinion of the Court, said, \"it is true that the acts, doings, and declarations of individual members of the corporation, unsanctioned by the body, are not binding upon it; but it is equally true that inferences may be drawn from corporate acts, tending to prove a contract or promise, as well as in the case of an individual; and that a vote is not always necessary to establish such contract or promise. This has been settled in several cases in this country and in England.\" And afterwards, addressing himself to the facts of that case, he added, \"The question, then, is narrowed to this:  Have the proprietors of the canal bridge assented to this proposition, and acted under it? We find no  vote to this effect; but we do find that the cross bridge was suffered to unite with theirs, pursuant to this proposition, and that for four years all were suffered to pass without toll, who came from Charlestown to Cambridge, or vice versa. Now, corporations can be bound by implication as well as individuals, as has been before stated; and no acts could be stronger to show an assent to a proposition, and agreement, or bargain, than those which have been mentioned.\" Nor was this doctrine new at that time in that Court. It may be clearly inferred from the prior cases of the President, &c. of the Salem Bank v. The President, &c. of the Gloucester Bank, (7 Mass. Rep. 1.) and Foster v. The President, &c. of the Essex  Bank, (17 Mass. Rep. 479.) And it has been more recently confirmed in The Episcopal Charitable Society v. The Episcopal Church in Dedham, (1 Pick. Rep. 372.) It may therefore be considered as conclusively settled in Massachusette. The case of The Bank of Columbia v. Patterson's Adm. in this Court, (7 Cranch, 299.) did not call for any expression of  opinion upon the particular point now under consideration; but the Court there held, that from the evidence in that case, the jury might legally infer an express or an implied promise of the corporation. The Court there said, \"the contracts were for the exclusive use and benefit of the corporation, and made by their agents for purposes authorized by the charter. The corporation proceed, on the faith of those contracts, to pay money, from time to time, to the intestate. Although, then, an action might have lain against the committee personally, (for the contract was a personal contract by them, under their private seals,) upon their express contract, yet, as the whole benefit resulted to the corporation, it seems to the Court, that from this evidence the jury might legally infer that the corporation had adopted the contracts of the committee, and had voted to pay the whole sum which should become due under the contracts, and that the intestate had accepted their engagement.\" Here, then, secondary evidence and presumptive proof was admitted in a suit against the corporation to fix its responsibility. A vote of the corporation was presumed from other acts, though there was no proof  of such a vote being on record.If the corporation had shown that no such vote had been on record, would be presumption have been completely repelled?Would the omission of the corporation to record its own doings, have prejudiced the rights of the party relying upon the good faith of an actual vote of the corporation? If such omission would not be fatal to the plaintiff in suits against the corporation, (as in our opinion it would not be,) it establishes the fact, that acts of the corporation, not recorded, may be established by parol proofs, and, of course, by presumptive proofs. In reason and justice, there does not seem any solid ground why a corporation may not, in case of the omission of its officers to preserve a written record, give such proofs to support its rights, as would be  admissible in suits against it to support adverse rights. The true question in such case would seem to be, not which party was plaintiff or defendant, but whether the evidence was the best the nature of the case admitted of, and left nothing behind in the possession or control of the party, highes than secondary evidence. The case of Dunn v. St. Andrew's Church, (14 Johns. Rep. 118.) proceeded  upon like reasoning. There the plaintiff had performed services as clerk of the church, for the corporation, for which he had received some payments. The records of the corporation contained entries of the payment of moneys, at several times, to the plaintiff, for his services; but no resolution was entered on the minutes or records of the corporation, appointing the plaintiff clerk of the church. The Court held such vote unnecessary to be shown, and that there was sufficient evidence of an implied promise of the corporation to make the compensation.In the king v. Inhabitants of Chipping Norton, (5 East's Rep. 240.) there was a demise by a Verbal agreement of the corporation, at a court leet, of certain tolls belonging to the corporation. The Court held, that the corporation could demise only under seal, and that the agreement amounted to a mere license to collect the tolls, though it might be a ground to apply to a Court of equity to enforce it as an equitable interest. The ground there was not that the proceeding being verbal was a nullity, but that it did not operate as a demise of the tenement at law. It was conceded that the verbal agreement bound the corporation as a license. \n But the present question does not depend upon the point, whether the acts of a corporation may be proved otherwise than by some written document. The reasoning upon it, however, was very ably gone into at the bar, and as it furnishes very strong illustrations upon the point now in judgment, it could not be passed over with propriety. \nIn the present case, the acts of the corporation itself, done at a corporate meeting, are not in controversy. In corporations existing at the common law and by charter, there are great diversities both of powers and organization. In some corporations the whole powers rest in a select body, or in select bodies, with powers to perpetuate their own corporate  existence, by filling up vacancies in their own body; and such body or bodies constitute the corporation itself, and the meetings and acts done thereat are the meetings and acts of the corporation itself. In short, they constitute the corporation, so far as it has life or organization exclusively. Such are many of the boroughs and other municipal corporations in England, familiarly shown by the name of quasi corporations. There are corporations of another sort, where the aggregate body  of corporators meet and assemble to discharge corporate functions, and have authority also to perform certain acts and duties, by means of different agents, sometimes designated in the statutes creating them, and sometimes left to their own choice. Of this native are the townships in New-England, where the inhabitants are corporators, and assemble to exercise corporate powers, and have authority to appoint various officers to perform public duties, under the guidance and direction of the corporation. Such are the selectmen for the ordinary municipal concerns; overseers of the poor, school committees, assessors of taxes, and various other functionaries. In these cases, the various officers form different boards for the performance of different duties, subordinate to the corporation; their acts lawfully done, bind the corporation; but they do not constitute the  corporation, nor are their meetings the meetings of the corporation. In the latter cases, the records of the officers are properly records of their own proceedings, and not of the proceedings of the corporation itself. \nIt will be at once seen, upon an inspection of the charter creating the Bank of the United States,  that it is not a corporation of the former description.The charter, in the first section, declares, that a bank of the United States of American shall be established, with a capital of 35,000,000 of dollars, of which 7,000,000 shall be subscribed by the United States, and the residue by individuals and corporations.It proceeds to enact, in the 7th section, that the subscribers to the said Bank of the United States, their successors and assigns, shall be and hereby are created a corporation and body politic, by the name and style of \"the President, Directors and Company of the Bank of the United States,\" and that name shall be capable in law to have,  purchase, receive, &c. lands, &c. goods, chattels and effects, &c. to an amount not exceeding 55,000,000 of dollars, including their capital stock; and the same to sell, grant, &c.; to sue, and be sued, &c.; to make, have, and use a common seal, and to alter the same at pleasure; to ordain, and establish, and put in execution, such by-laws and ordinances as they shall deem necessary and convenient for the government of the said corporation; and generally to do and execute all and singular the acts, matters, and things, which  to them it shall or may appertain to do, subject to the other provisions of the act. It proceeds to enact, that for the management of the affairs of the corporation, there shall annually be chosen twenty-five directors by the stockholders; and the board of directors shall appoint a president of the corporation. The directors have further authority given to them to appoint such officers, clerks, and servants, as they shall deem necessary for executing the business of the corporation, and to exercise such other powers and authorities for the well governing and ordering of the officers of the corporation, as shall be prescribed by the laws, regulations, and ordinances of the same. The directors have further authority given them to establish offices of discount and deposit, wheresoever they shall think fit, within the United States, or the territories thereof, and to commit the management of the said offices, and of the business thereof respectively, to such persons, and under such regulations, as they shall deem proper, not being contrary to law or the constitution of the bank; and annually to choose the directors of such offices. Among the rules, which the act prescribes as fundamental  articles of the constitution of the corporation, ae the following: \"that not less than seven directors shall constitute a board for the transaction of business of whom the president shall always be one, except in case of sickness of necessary absence;? that sixty stockholders, who are proprietors of 1000 shares in the stock, \"shall have power at any time to call a general meeting of the stockholders, for purposes relative to the institution;\" \"that each cashier or treasurer, before he enters upon the duties of his office, shall be required to give bond, with two or more surefles, to the satisfaction of the directors, in a sum not less  than 50,000 dollars, with condition for his good behaviour, and the faithful performance of his duties to the corporation;\" that the total amount of the debts of the corporation shall not exceed a limited sum; and if it does, the directors shall, in their natural and private capacities, be liable to any creditor therefor, with the exception that any director, who shall have been absent when the excess was contracted or created, and who shall have dissented from the resolution or act authorizing it, and shall give notice of the fact in a particular  manner, shall be exonerated; that the secretary of the treasury shall be furnished, from time to time, as often as he may require, &c. with statements of the amount of the capital stock, of debts due, of moneys deposited, of notes in circulation, and of specie on hand; and shall have a right to inspect such general accounts of the bank, as shall relate to the said statement. The act further provides, that a committee of either house of Congress, appointed for that Purpose, shall have a right to inspect the books, and to examine into the proceedings of the corporation, and to report whether the provisions of the charter have been violated or not. \nSuch is a summary of the most important provisions of the act constituting the charter of the bank, and material to the present cause. It is most manifest that the corporation is altogether a distinct body from the directors, possessing all the general powers and attributes of an aggregate corporation, and entitled to direct and superintend the management of its own property, and the government of the institution, and to enact by-laws for this purpose. So far as the act delegates authority to the directors, the latter possess it, and may  exercise it, not as constituting the corporation itself, but as its express statute agents to act in the ordinary business of the institution. The directors are created a board, and not a corporate body. If the authority delegated to them can only be exercised by them when assembled as a board, with a proper quorum, and not by the separate assent of a majority of the whole body, (on which it is unnecessary here to express any opinion,) still it is clear, that their meetings and acts are but the meetings and acts of a board of agents acting ex officio, and not the meetings and  acts of the corporation itself. The whole structure of the charter, and the whole proceedings under it, as well as the by-laws and regulations which have come under our review, demonstrate that this has been the uniform construction of the corporation itself, and of the directors. Indeed, this is believed to be so universally acted upon in all the cases respecting banks, which have been judicially decided, that it is not thought necessary to do more than express our opinion that such is the true interpretation of this charter. \nIt is not necessary to consider whether the sixth of the fundamental  articles of the constitution of the bank, which directs that such cashier or treasurer shall be required to give bond, &c. to the satisfaction of the directors, might have applied, by its own force, to the cashiers of offices established as offices of discount and deposit. In the first place, that point is not put in the pleadings; in the next place, the directors are, by the charter, authorized to establish such offices, subject to such regulations as they shall deem proper; and, in virtue of that authority,  they have prescribed regulations on this very subject in the 30th article of the rules and regulations adopted by them for the government of such offices, which are set forth at large in the transcript of the record. The fourth of these articles declares, that the directors of the Bank of the United States shall appoint the cashiers of the offices of discount and deposit; the fifth declares the duties of the cashier, and, among other things, his duty \"to attend all meetings of the board\" of directors of the office, and \"to keep a fair and regular record of its proceedings.\" The sixteenth directs that all notes and bills discounted shall be entered in a book to be  called the credit book, in such manner as to discover to the board at one view, on each discount day, the amount which any person is discounter, or is indebted to the office, either as payer or endorser. The thirteenth directs, that \"the cashier of each office shall give bond to the President, Directors and Company of the Bank of the United States, with two or more approved securities, with a condition for his good behaviour and faithful performance of his duties to the corporation.\" By whom the approval is to be made, whether by the directors of the parent bank, or by the directors  of the office, is not stated. If the directors of the parent bank might, by the charter, have committed it to the local directors, being found in a system of by-laws for their regulation, it would seem a natural inference that it was their intention to commit it to the latter. When, as in the fourth rule, they reserve the appointment of the cashier to themselves, the language directly reserves it to \"the directors of the Bank of the United States.\" If such authority could not, by the charter, be delegated, then it must be deemed to belong to the directors of the parent bank. It is in the  latter point of view that it has been argued at the bar, and in that view it will be considered by this Court. \nAssuming, then, that the directors of the parent bank were, as a board, to approve of the bond, so far as it respects the securities, in what manner is that approval to be evidenced? Without question, the directors keep a record of their proceedings as a board; and it appears by the rules and regulations of the parent bank read at the bar, that the cashier is bound \"to attend all meetings of the board, and to keep a fair and regular record of its proceedings.\" If he does not keep such a record, are all such proceedings void, or is the bank at liberty to establish them by secondary evidence? In the present case, (we repeat it,) the whole argument has proceeded upon the ground as conceded, that no such record exists of the approval of the present bond. \nThe charter of the bank does not, in terms, require that such an approval shall be by writing, or entered of record. It does not, in terms, require that the proceedings of the directors shall generally be recorded, much less that all of them shall be recorded. It seems to have left these matters to the general discretion  of the corporation, and of the directors; and though it obviously contemplates that there will be books kept by the corporation which will disclose the general state of its affairs, it is not a just inference that it meant that every official act of the directors should be recorded, of whatever nature it might be. And if it had, it would deserve consideration, whether such provisions ought to be deemed conditions precedent, without which the act was void, or only directory to the officers in the performance of their duty, the omission of which might subject  themselves to responsibility, and the corporation itself to the imputation of a violation of its charter. There are many cases where an act is prescribed by law to be done, and record made thereof, and, nevertheless, if left unrecorded, the act is valid. By the English marriage act, registers of marriages are required to be kept in public books in every parish, and signed by the parties and the minister, and attested by two witnesses. Yet, it has been decided, that such an entry is not necessary to the validity of the marriage, and that an erroneous entry will not vitiate it. 4 So, where a magistrate omits to record  an oath of office taken before him, parol evidence of the fact is admissible, though it is an omission of duty. 5 That some of the provisions of the charter and by-laws may well be deemed directory to the officers, and not conditions without which their acts would be utterly void, will scarcely be disputed. What are to be deemed such provisions must depend upon the sound construction of the nature and object of each regulation, and of public convenience, and apparent legislative intention. If a regulation be merely directory, then any deviation from it, though it may subject the officers to responsibility both to the government and the stockholders, cannot be taken advantage of by third persons. 6 In the case of The Bank of the Northern Liberties v. Cresson, (12 Serg. & Rawle, 306.) the directors were required by their own by-laws, to take a bond of the book-keeper with sureties, and they took a bond from sureties without joining the principal. The Court held the bond valid, notwithstanding the by-law, and took notice of the distinction between such provisions of a statute as are essential to the validity of an act, and such as are merely directory. Mr. Justice Duncan said, that  it was a matter between the directors and the stockholders, and that the obligors, who had voluntarily entered into the stipulation, could not withdraw themselves from their obligation. \n But, waiving for the present this inquiry, we ask, upon what ground it can be maintained that the approval of the bond by the directors must be in writing?It is not required by the terms of the charter, or the by-laws. In each of them the language points to the fact of approval, and not to the evidence by which it is to be established, if controverted. It is no where said the approval shall be in writing, or of record. The argument at the bar upon the necessity of its being in writing, must, therefore, depend for its support upon the ground that it is a just inference of law from the nature and objects of the statute, from the analogy of the board of directors to a corporate body, from principles of public convenience and necessity, or from the language of authorities which ought not to be departed  from. \nUpon the best consideration we can give the  subject, we do not think that the argument can be maintained under any of these aspects. \nIf the directors had been a board constituted by an unincorporated company, or by a single person, for the like purposes, and with the like powers, it would scarcely occur to any person that the acts of the board must, of necessity, be reduced to writing, before they would bind their principal. The agents of private persons are not usually in the habit of keeping regular minutes of all their joint proceedings, and hitherto there has been no adjudication, which requires such a verification of their joint acts. Yet, innumerable cases must have arisen, in which such a principle might have been applied with success, if it had ever been supposed to possess a legal existence. The acts of private and public trustees, of joint agents for commercial purposes, of commissioners for private objects, and of public boards, must have presented many occasions for passing upon such a doctrine. The silence of the books under such circumstances, would form no inconsiderable answer to the argument, connected, as it must be, with the knowledge of the  loose and inartificial manner in which much of the business of agencies is generally conducted. There may be, and undoubtedly there is, some convenience in the preservation of minutes of proceedings by agents; but their subsequent acts are often just as irresistible proof of the existence of prior  dependent acts and votes, as if minutes were produced. If a board of directors were created to erect a bridge, or make a canal or turnpike, and they proceeded to do the service, and under their superintendence there were persons employed who executed the work, and the board proceeded to pay them therefor out of funds in their hands, these facts of public notoriety would be as irresistible evidence of the due execution of their authority, and of due contracts made, and proceedings had by the board, as if the proceedings were recorded in the most formal and regular manner. Can there be a doubt that, in the cases put, many contracts are so varied and rescinded, many acts done and assented to by the board, which never are reduced to formal votes, and declarations, and written proofs? We think we may safely say, that the sense of the profession, and the course of private business,  have never hitherto, in respect to private agencies and boards, recognised the existence of any rule which required their acts and proceedings to be justified by written votes. \nWhat foundation is there for a different rule in relation to agencies for corporations? The acts of a single duly authorized agent of a corporation, within the scope of his authority, bind the corporation, although he keeps no minutes of such acts. They may be, and they are, daily proved aliunde. In what respects do the acts of a board of agents differ from those of a single agent, in their operation as evidence? A board may accept a contract, or approve a security by vote, or by a tacit and implied assent. The vote or assent may be more difficult of proof by parol evidence, than if it were reduced to writing. But, surely, this is not a sufficient reason for declaring, that the vote or assent is inoperative.If a board of directors agree to build a banking house, and it is accordingly built, and paid for by their cashier, with their assent, is the whole proceeding to be deemed void, because, in the progress of the undertaking, from accident, or negligence, the votes and the payments have not been verified  by regular minutes? But, it is said, that in the present case, the cashier is required to keep a fair and regular record of the proceedings of the directors. But if this is admitted, it does not establish the purpose for  which it is used. It is a by-law of the corporation, directory to its officers, enacted for its own security and benefit, and not for the purpose of restricting the acts of the directors. If the cashier should neglect to keep such records, or should omit any single vote, the by-law has not declared that the vote shall be void, and the proceedings nugatory. Suppose no such by-law had been passed, would not the votes of the bound have bound the corporation? If they had discounted notes, taken mortgages, advanced money, and bought stock by faith of viva voce, unrecorded votes, and evidence of the existence of these acts and votes necessarily resulted from the other proceedings of the bank, could it be the intention of the legislature that they should be utterly void? or of the stockholders, that any by-law should operate a legal extinguishment of their title to the property? It seems to us difficult to imagine that such could be the legislative or corporate  intention. If, in ordinary cases, such an intention could not be inferred in order to produce a very strict and inconvenient construction of the charter, there is still less reason to apply it to the cases of approval of official bonds. These are taken exclusively for the security and benefit of the bank itself, and not of mere strangers. The approval is matter of discretion in the directors, and that discretion once being exercised, it is of very little consequence to the bank whether a written minute of the vote be made or not.All that the bank is interested in is, that there shall be an approval; and it matters not whether the fact is established by a direct record, or by acts of the directors, which recognise its prior existence. \nIt has been supposed by the defendant's counsel, that the case of Beatly v. The Marine Insurance Company, (2 Johns. Rep. 109.) is in point in his favour. Upon an examination of the facts of that case, we think it is otherwise. In that case, the incorporating act provided that no losses should be paid without the approbation of at least four of the directors, with the president and his assistants, or a majority of them. The attempt was to charge  the company with a total loss, upon a verbal agreement made by the president and assistants, to accept an abandonment, and pay a total loss, at a meeting, when it did not appear that a single director  was present.The board therefore was not so constituted as to bind the company. Mr. Justice Thompson, in delivering the opinion of the Court, said, \"no part of the case will warrant an inference that any of the directors were present at the time of the alleged acceptance. When the plaintiff's agent called to know the determination of the company in relation to the payment of the loss, he says, the secretary went into the room where the president and assistants were convened, and the answer returned was, that the president and assistants had agreed to pay a total loss; but no mention is  made of any of the directors being present, or assenting to it. When the testimony is positive as to the persons by whom the acceptance is made, there is no room left for presumption. If any of the directors were present, so as to make the act binding on the company, the plaintiff ought to have shown it affirmatively. We are of opinion, therefore, that the acceptance, not having  been made by the agents constituted by the act of incorporation, cannot be binding on the company.\" The case, therefore, so far as it goes, is against the defendants.It carries an almost irresistible inference, that the Court did not think a written vote of acceptance necessary, and that parol proof would have been sufficient. No other authority has been produced to sustain the argument; and it cannot be doubted, that if any did exist, the researches of the counsel would have brought it before the Court. We may therefore consider that it is a new doctrine, unsupported by prior cases, and to be established now for the first time. We think that the reasons of public convenience and individual safety and protection, would not be promoted by establishing it. \nOn the other hand, every case which has been adduced to show that corporate acts need not always be reduced to writing, but may be proved by presumptions, is, a fortiori, an authority against the argument. There are, however, some cases, which confirm in a very clear manner the doctrine for which we contend, and which have not been yet particularly adverted to. In the case of Apthorp, Treasurer of the Commonwealth, v. North,  (14 Mass. Rep. 167.) a suit was brought on the official bond of a coroner. By the laws of Massachusetts, the bond was required to be approved by  the Court of Common Pleas of the county. It was delivered into the Court of Common Pleas by the first Justice thereof, and remained on its files for some time. No record was ever made of its approval by the Court of Common Pleas; and at the trial, contradictory evidence was offered, of a presumptive nature, as to its approval and rejection by that Court. It was held, that notwithstanding there was no record of any approval, the bond might well, upon the circumstances, be deemed to have been duly delivered and approved. Chief Justice Parker, in delivering the opinion of the Court, said, \"A formal act, or certificate of approbation by the Court, is not made necessary by the statute;\" and after commenting on the terms of the statute, he added, \"it is not, then, required expressly that any record or certificate should be made, that the bond given was approved. But if such bond is found upon the files, without any evidence accompanying it that it has been rejected, and the principal has proceeded to execute the duties of his office,  the presumption is violent, if not conclusive, that the bond was received by the Court as the security required by the statute.\" In Foster v. The Essex Bank, (17 Mass. Rep. 479.) there was no clause in the charter respecting the receipt of special deposits, and no by-law had ever been made by the corporation or the directors on the subject. But the practice had long prevailed to receive such deposits, and was known to the directors, though no vote could be found recognising them. The Court held the bank liable for the safe keeping of such deposits, like a common bailee, without hire, upon the ground that there was a plain adoption of them, from the knowledge and acquiescence of the directors. The case of The Dedham Bank v. Chickering, (3 Pick. Rep. 335.) approaches still nearer the present case, and discussed the very point now in judgment. It was the case of an official bond, given by the cashier of the bank, with sureties. The charter required that the cashier, before he entered upon the duties of his office, should give bond, with two sureties, to the satisfaction of the directors. After the cashier was elected, the directors passed a vote, that A. B. and C. D. be accepted  as sureties in a bond to be given by the cashier for the faithful discharge of the duties of his  office. The bond in question was dated before this vote; but does not seem to have had but one surety. That circumstance, however, was not relied on at the argument; but the principal ground was, that there had been no approval of the bond by the board of directors. It was found on their files, and the cashier had been frequently re-elected. Chief Justice Parker, in delivering the judgment of the Court, said, \"We should have supposed that in the case as well of a corporation as of an individual, a paper intended for their benefit, and found on their files, would be considered as accepted by them;\" and after alluding to the decision of the Circuit Court in this case, which required the record of a vote of the directors, he added, \"We think, however, that the case before us may be decided without touching that principle, for, admitting it to be correct, we are, nevertheless, of opinion, that the vote to accept the sureties, and the bond being in possession of the President, are a sufficient acceptance of the bond.\" It is impossible, we think, to doubt, that the real opinion  of the Court was, that the acceptance might be proved without any record of a vote, and that the very facts of the case brought the point of implied and presumptive acceptance from other acts of the directors completely in judgment. \nSo far, then, as authorities entitled to very great respect and deference go, we are of opinion, that they are against the reasoning assumed on behalf of the defendants. \nTo all the authorities cited at the bar on this point, the counsel for the defendants has made one answer, which he deems applicable to all of them. It is this, that where no particular form for the expression of the corporate will is prescribed by law, there it may be inferred from corporate acts; but that where such a form is prescribed, it must be followed. This distinction, he supposes, will reconcile all the cases. The distinction, if admitted, will not aid the argument. It may be, and, indeed, is conceded, that no corporate act can be valid, if done differently from the manner prescribed by law, as essential to its validity. If in the present case the statute had prescribed that nothing but a written vote, on record should be deemed an approval of the bond, or that the cashier  should not be deemed, for any purpose, in  office, until such approval, the consequence contended for would have followed. His acts would have been utterly void, and any unrecorded vote of approval nugatory. But the very point in controversy is, whether such written record be necessary by the charter  or by-laws, not as a matter of convenience or discreet exercise of authority, but as a sine qua non to the validity of the act. The cases which have been commented on by the Court, do not deny the distinction, but proceed upon the ground, that unless positively required by law, a written vote is not to be deemed indispensable. The Court then is called upon, not to administer a doctrine of strict, and settled, and technical law, but to introduce a new rule into the law of evidence; and to exclude presumptive evidence, not only of the acts of corporations, but of their unincorporated agents. If such a rule be fit to be adopted, it must be upon the foundation of some clear and unequivocal analogy of law, and public policy and convenience. We are not prepared to admit that it has any such foundation. On the contrary, we are persuaded that the introduction of the  rule itself would be attended with serious public mischiefs, and shake many titles and rights, which have been consummated in entire good faith, and the confidence that no such written record was necessary to their validity. We cannot therefore assent to the doctrine decided in the Circuit Court on this point. \nIn respect to a collateral argument urged at the bar, upon the point whether the terms of the charter and by-laws would be complied with, without an express vote that the bond was \"to the satisfaction of the directors,\" or that the sureties of the bond were \"approved\" by the directors, we are of opinion, that in either case there need not be express votes of approval and satisfaction. An acceptance of the bond by the directors would, necessarily, in intendment of law, include the approval of it, and be conclusive of it. \nThe remaining point is as to the opinion of the Court delivered in the first bill of exceptions. If that opinion meant to state what it seems to import, that the cashier was not legally cashier, so as to bind the bank in its rights and interests by his acts, if permitted to enter upon the duties of his office, before a satisfactory bond was given, we think  it cannot  be maintained. The cashier was duly appointed, and he was permitted to act in his office, under the express sanction of the directors, for several years. If he had never given any bond whatsoever during this period, yet his acts within the scope of his authority would have bound the bank. Notes signed by him would be lawful notes; moneys paid by him would be irrecoverable; records kept by him would be bank records. Indeed, it is conceded by the defendant's counsel, that the bank would, under such circumstances, be bound by his acts in favour of third persons, acting upon the faith of his public character. The same principle, in our opinion, applies in favour, as against the bank. If he could legally perform the duties of the office for any purposes, he could for all. He was either an agent, capable of binding the bank in all his official acts, or those acts were void as to third persons as well as the bank.If he was held out as an authorized cashier, that character was equally applicable to all who dealt with the bank, in transactions beneficial as well as onerous to the bank. It seems to us, that the charter and the by-laws must be considered in this respect  as directory to the board, and not as conditions precedent. The language is not more strong than that of the laws which came under the consideration of this Court, in the United States v. Kirkpatrick, (9 Wheat. Rep. 720.) and the United States v. Van Zandt, (11 Wheat. Rep. 184.) \nOur view of this matter is in exact coincidence with that entertained by the Supreme Court of Pennsylvania, in the Bank of the Northern Liberties v. Cresson, (12 Serg. & Rawle, 306.) The directors might have been responsible or their neglect of duty; but it was a matter wholly between themselves and the stockholders, and between the latter and the government, as a violation of the charter and by-laws. \nSo far, indeed, as respects the sureties to the bond, they may not be responsible for any breaches of official duty by the cashier, before their obligation has been accepted. But this is a very different consideration from that which respects the legal effects of the acts of the cashier himself upon the interests and transactions of the bank itself. \nThis is the substance of what we deem it necessary to  say upon the present occasion.We do not go into the consideration of the admissibility of every  part of the documents and testimony offered in evidence. Perhaps some of them were in a shape not exactly fit to be admitted as formal evidence, without farther verification and proofs. But much of it was of a nature unexceptionable, as conducing to proof of the issues joined, if any thing short of record proof were admissible, as competent to establish the approval or acceptance of the bond. It is not understood that the Circuit Court entertained any doubt as to its general competency, except upon the ground already stated. We are of opinion, that the evidence was competent, in point of law, to go to the jury, notwithstanding there was no record of approval of the bond, it being in its nature competent; its sufficiency to establish the issues was matter of fact, the decision of which belonged to the jury; and upon which they ought to have been allowed to pass their verdict. \nThe judgment of the Circuit Court must be reversed, and a mandate awarded, with directions to the Circuit Court to award a venire facias de novo. \nDissent by:", " \nOpinion \n\n \n \n Mr. Justice STORY delivered the opinion of the Court. This cause comes before us from the Circuit Court for the Southern District of New-York, as upon a bill of exceptions  taken to the opinion of the Court, upon  a trial before a jury upon the matters in issue. In reality no such trial was had; but the case assumed this shape by the agreement of the parties, in order to have the opinion of the Court upon certain questions of law. We must, however, consider the case exclusively upon principles applicable to it as a bill of exceptions taken at a real trial. 1 \nUpon the argument in this Court, various important questions have been elaborately discussed by counsel, upon which we forbear to express any opinion, as our judgment of reversal proceeds upon a ground, which renders any decision on them unnecessary. \nThe bill of exceptions admits the due execution of the bond in controversy, and the breaches stated in the declaration are answered by special notices of defence set up as bars to the suit. The burthen of proof of these defences, in point of fact, rested on the defendants. The Court is supposed to have charged the jury, that the matters  produced and read in evidence on the part of the defendants were sufficient in law to maintin the issue on their part, and that the jury ought to render their verdict in favour of the defendants. This charge can be maintained in point of law only upon the supposition, that the evidence presented no contested facts; for otherwise it would withdraw from the jury their proper functions, to determine the facts upon the evidence in the cause. \nUpon examining the record, we think that there is contradictory evidence, or rather evidence conducing to opposite results, in respect to a point material to many of the specifications of defence, and particularly as to the matters in the third, fifth, sixth, seventh, eighth and ninth. It is this; whether the contract of the 7th of June, 1820, between Col. Gadsden, as agent of the War Department, and Samuel Hawkins, was ever a consummated agreement, binding on the United States, in virtue of an original authority given to him,  or was a preliminary agreement dependent for its validity upon the ratification of the War Department; and if that was withheld, (which there was direct evidence to prove,) the agreement was a mere nullity. The  bill of exceptions does not in terms find, that the agreement was such a consummated agreement. It merely states, that \"on or about the 7th of June, 1820, Col. James Gadsden, then acting as the agent for fortifications at Mobile Point, and thereto duly authorized by the said War Department, did enter into an agreement or contract with the said Samuel Hawkins, touching the foregoing contract, with the said Benjamin W. Hopkins, and the erection of the fort therein provided for,\" &c. The word \"thereto\" may be applied either to the next antecedent, the agency of fortifications, or to the subsequent clause stating the agreement. It may mean, having a due authority as agent for fortifications, or having a due authority to enter into the agreement. The recital in the agreement itself, that Col. Gadsden entered into it \"in pursuance of the instructions of the Secretary of the War Department,\" would not be decisive of the point, supposing it to be entitled to the fullest weight as matter of recital. But the case does not rest here; in another part of the record, evidence is introduced on the part of the United States, to establish, that the agreement so made had never been ratified on  the part of the War Department; and also to show, that it was understood by that department, that without such ratification the contract was not obligatory. We allude to that part of the record, where it is stated, that the agreement, as soon as executed at Mobile Point, was transmitted to the War Department, and that a letter was written by the authority of that department, under date of the 10th July, 1820, to the defendants, as Hawkins's sureties, enclosing a copy of the agreement, and requesting them, if they would sanction it, to send certificates of the fact, and \"signify their approval, and authorize it to be carried into effect\" -- and it is added, \"should you object, the contract will be carried on as before,\" that is, the original contract. It is further found by the case, that the agreement \"was not ratified by the Secretary of War, nor ever acted upon, except so far as it may appear to have  been ratified and acted upon by the said transcript\" (of the treasury accounts) contained in the record. \nIt appears to us, that, taking this evidence together, it was not a conceded point, but a matter of controversy between the parties, whether the agreement was obligatory  upon the United States, and had become absolute by the assent of all the persons who had authority to perfect the same. This being so, it was a matter of fact to be decided by the jury, and the charge of the Court was erroneous in withdrawing it from the consideration of the jury. \nFor this reason it is our opinion, that the judgment of the Circuit Court was erroneous, and ought to be reversed, and the cause be remanded, with directions to award a venire facias de novo. 2 \n \n\n ", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the Court. \nThis is a writ of error to the Circuit Court of the District of Columbia, sitting at Alexandria. \nThe original action was upon a policy of insurance, dated  the 6th of February, 1822, whereby the Columbian Insurance Company insured the plaintiff ten thousand dollars, lost or not lost, at and from Alexandria to St. Thomas, and two other ports in the West Indies, and back to her port of discharge in the United States, upon all kinds of lawful goods and merchandise, landen or to be laden on board the ship called the Commerce, &c.; beginning the adventure upon the said goods and merchandise from the loading at Alexandria, and continuing the same until the said goods and merchandise shall be safely landed at St. Thomas, &c. and the United States. The goods and merchandise to be valued, as interest may appear. The policy contained the usual risks; and the premium agreed on was three and three quarters per cent., to return half per cent. for each port not used or attempted, and no loss happens. There are other provisions in the policy, which will be hereafter commented on. The breach alleged in the declaration is a total loss by perils of the seas, with the usual averments of notice and nonpayment. \nThe trial was had upon the general issue, and a verdict found by consent for the plaintiff, for 10,000 dollars, subject to the opinion of the  Court upon the demurrer to evidence filed in the case. It was farther agreed, that if it should be the opinion of the Court, that the plaintiff was not entitled to recover the full amount of the insurance, but is entitled to an average loss, then a reference to ascertain that average, or to modify the amount of the verdict in any  other respect as to the sum, should be made to an auditor, and judgment should be given for the sum finally reported and confirmed by the Court, subject, however, to the exceptions of either party to any opinion of the Court on that subject. The reference was accordingly made, and, upon the coming in of the auditor's report, the Court pronounced its opinion, and gave judgment for the plaintiff for $7,656 57 cents, with interests, from the 14th of October, 1822. \nFrom the demurrer to evidence, it appeared, that the ship sailed from Alexandria on her voyage about the 14th of February, 1822, having on board a cargo of 2,297 1/2 barrels of flour of the invoice price of $16,887 32 cents, both ship and cargo being owned by the plaintiff. On  the 21st of March she arrived in safety with her cargo at St. Thomas, having met with no accident;  and she continued at that port until the 30th of May following, for the purpose of selling her cargo, and for no other cause. During this period the master, who was also consignee, sold by retail 509 1/2 barrels; being limited, by his instructions, to eight dollars per barrel, and not being able to procure that price for the residue of the cargo, he sailed on the 31st of May for Cape Haytien with it, and had also on board some doubloons, amounting to $480, part of the proceeds of the former sales. He might have sold his whole cargo at from $7,50, to $7,75 at St. Thomas. The 509 1/2 barrels of Flour sold at St. Thomas, according to the invoice price, amounted to $3,512 99, leaving the value of the cargo on board, exclusive of the doubloons, at the time of sailing from that port, according to the invoice, at $12,328 25 cents. \nOn the 6th of June the ship, with her cargo, arrive off Cape Haytien, and the captain having gone on shore, the ship stretching too far in, took the ground and was wrecked. In consequence of this disaster, 155 barrels of flour were totally lost, 1,633 were got on shore, part without injury, but the greater part damaged, and the whole was sold. The gross amount  of the sales at Cape Haytien was $9,391 34 cents, the expenses of salvage, including commissions on sales, $4,124 72 cents; the proportion of the captain's expenses attaching on the cargo, $285 78 cents. Of the proceeds of the sales  at Cape Haytien, the sum of $4,953 89 was invested in coffee, which was shipped to Baltimore, where it produced only $3,517 40 cents. The plaintiff makes a claim for freight of the outward cargo of $2,104 25 cents, as a proper deduction from the proceeds. \nAs soon as the plaintiff heard of the loss, he sent the following letter to the Insurance Company, under date of the 5th July, 1822: \"Gentlemen, having received a letter from captain M'Knight, (the master,) informing me that the ship Commerce was lost, I abandon the proportion of the cargo that your office was interested in. Respectfully, &c.\" The captain's protest, and the survey of the ship, were also exhibited to the Company on the 14th of August. The abandonment was never finally accepted by the directors, but sundry negotiations took place between them and the plaintiff, which, however, led to no effectual arrangement. \nThe first question arising in this case, is upon the true construction  of the policy itself as to the voyage insured. Is it an insurance upon the original cargo only from the time of its loading until its final discharge, or is it an insurance upon every successive cargo, which is taken on board in the course of the voyage out and home, so as to cover the risk of a return cargo, the proceeds of the sales of the outward cargo? The argument in behalf of the defendant is, that the risk applies upon the terms of the policy only to the original cargo, laden at Alexandria. The terms of the policy are, on a voyage, \"at and from Alexandria to St. Thomas and two other ports in the West Indies, and back to her port of discharge in the United States, upon all lawful goods and merchandise laden or to be laden on board the ship, &c.; beginning the adventure upon the said goods and merchandise, from the lading at Alexandria, and continuing the same until the said goods and merchandise shall be safely landed at St. Thomas, &c. and the United States aforesaid.\" It is supposed that those words tie up the adventure to the original cargo shipped at Alexandria, because the risk is to attach on the same at that port, and to continue on the same until safely landed at St.  Thomas, &c., and the United States. Perhaps a very strict grammatical construction might lead to such a conclusion. But policies have never been construed  in such a  strict and rigid manner. The instrument itself is somewhat loose in its form, and has always received a liberal construction with reference to the nature of the voyage and the manifest intent of the parties. What is the nature of the present voyage? It is upon the face of the policy plainly an insurance upon all lawful goods, not only for the outward voyage to the West Indies, but for the homeward voyage to the United States. The underwriters must be presumed, equally with the assured, to know the nature and course of such a voyage. It is for the purpose of trade, and the exchange of the outward cargo, by sale or barter, for a return cargo of West Indian productions. If we could shut our eyes to the knowledge of this fact, belonging, as it does, intimately to the history and commercial policy of the nation itself, as disclosed in its laws, the whole evidence in the case furnishes abundant proofs of its notoriety. The true meaning of the policy is to be sought in an exposition of the words,  with reference to this known course and usage of the West India trade. The parties must be supposed to contract with a tacit adoption of it as the basis of their engagements. The object of the clause under consideration may be thus rationally expounded, as intended only to point out the time of the commencement and termination of the risk on the goods, successively, and at different periods of the voyage, constituting the cargo. It would be pushing the argument to a most unreasonable extent, to suppose that the parties deliberately contracted for risks on a homeward voyage, on goods which, according to the known course of the trade, and the very nature of the commodities, were not, and could not be, intended to be brought back to the United States. We are of opinion, that the policy was for the whole voyage round, and covered any return cargo taken on board at any of the designated ports in the West Indies. This is not like the cases cited at the bar, where a policy on goods at and from a particular port, beginning the adventure from the loading thereof, has been held not to cover goods taken on board at an antecedent port. Those are all cases of insurance upon a single passage,  unaffected by any known course or usage of trade to explain the intentions of the parties. \n The next question is, whether the delay at St. Thomas for seventy days was not so unreasonable as to constitute a deviation. Without question, any unreasonable delay in the ordinary progress of the voyage avoid the policy on this account. But what delay will constitute such a deviation, depends upon the nature of the voyage, and the usage of the trade. It may be a very justifiable delay, to wait in port, and sell by retail, if that be the course of business, when such delay would be inexcusable in a voyage requiring or authorizing no such delay. The parties, in entering into the contract of insurance, are always supposed to be governed in the premium by the ordinary length of the voyage, and the course of the trade. That delay, therefore, which is necessary to accomplish the objects of the voyage according to the course of the trade, if bona fide made, cannot be admitted to avoid the insurance. In the present case, it is proved, that the stay at St. Thomas was solely for the purpose of selling the cargo, and for no other cause. But, it is said, that a sale might have taken  place at St. Thomas of the whole cargo, if the orders of the owner had not contained a direction to the master limiting the sale at St. Thomas to the price of eight dollars, and that this limitation was the sole cause of the delay, and was unreasonable; that the master ought, under the circumstances, to have sold at a lower price, or have immediately elected to go to another port. We are of a different opinion. In almost every voyage undertaken of this nature, where different ports are to be visited for the purposes of trade, and to seek markets, it is almost universal for the owner to prescribe limits of price to the sales. Such limitations have never hitherto been supposed to vary the insurance, or the rights of the party under it. It cannot be, that the master, if entitled to go to a single port only, is bound to sell at whatever sacrifice, as soon as he arrives at that port, and within the period at which he may unload, and sell, and reload a return cargo. He must, from the very nature of the case, have a discretion on this subject. If he arrives at a bad market, he must have a right to wait a reasonable time for a rise of the market, to make suitable inquiries, and to try  the effect of partial and limited sales. He is not bound to sell the whole  cargo at once, whatever be the sacrifice, and thus frustrate the projected adventure. In short, he must exercise in this, as in all other cases, a sound discretion for the interest of all concerned; and if it be fairly and reasonably exercised; it ought not to be deemed injurious to rights secured by the policy. It is as much the true interest of the owner to sell in a reasonable time, and with all proper despatch, as it is for the underwriters. To be sure, if the owner should limit the price to an extravagant sun, or the master should delay after all reasonable expectations of a change of market were extinguished, such circumstances might properly be left to a jury to infer a delay amounting to a deviation. And here, again, as on the former point, it may be remarked, that every underwriter is presumed to know the ordinary course of the trade, and to regulate his proceedings accordingly. \nBut, it is said, that there is no sufficient evidence of the usage of trade in the present case. It is to be remembered that this is a case which comes before this Court upon a demurrer to evidence. The plaintiff  was not bound to have joined in the demurrer without the defendant's having distinctly admitted, upon the record, every fact which the evidence introduced on his behalf conduced to prove; and that when the joinder was made, without insisting on this preliminary, the Court is at liberty to draw the same inferences in favour of the plaintiff, which the jury might have drawn from the facts stated. The evidence is taken most strongly against the party demurring to the evidence. This is the settled doctrine in this Court, as recognised in Pawling v. The United States, (4 Cranch's Rep. 219.) and Fowle v. The Common Council of Alexandria, (11 Wheat. Rep. 320.) The testimony in the present case, does not, in direct terms, (as has been justly stated at the bar,) establish the general usage of the West India trade. The witnesses do not, generally, speak to a usage, eo nomine. But it cannot be  denied, that its scope and object are to establish the usage by an enumeration of facts, and voyages, by persons experienced in the trade, and referring to their own knowledge and general information. It thus conduces, indirectly, to prove the usage; and as it is altogether one ways, it  is  certainly such that a jury might infer a usage from it. And if so, this Court may infer it. We consider it, then, as a fair deduction from this testimony, that considerable delays in port in the West India trade are not uncommon, for the purpose of taking the advantages of the market, and that sales by retail are within the usage. There are no facts from which this Court can infer, that the delay in the present case was unreasonable or unusual; and, consequently, we cannot admit, that the delay amounted to a deviation. The case of Oliver v. The Maryland Insurance Company, (7 Cranch's Rep. 487.) is in no respect inconsistent with this doctrine. One question in that case was, whether the delay at Barcelona, for the purpose of taking in a return cargo, was a deviation. The Court below instructed the jury, that it was not, if the vessel did not remain longer in that port than the usage and custom of trade at that place rendered necessary to complete her cargo. This Court was of opinion, that the instruction was, in substance, correct. The only difficulty which arose was from the terms of the instruction, which seemed to limit the right, not to the time necessary  to take in the cargo, but to a particular period, regulated by the usage of trade. The Chief Justice there said, \"There is some doubt spread over the opinion in this case, in consequence of the terms in which it is expressed. The vessel might certainly remain as long as was necessary to complete her cargo, but it is scarcely to be supposed this was regulated by usage and custom. The usages and customs of a port, or of a trade, are peculiar to a port or trade. But the necessity of waiting, where a cargo is to be taken on board, until it can be obtained, is common to all ports, and all trades. The length of time frequently employed in selling one cargo and procuring another, may assist in proving, that a particular vessel has, or has not, practised unnecessary delays in port, but can establish no usage by which the time of remaining in port in fixed. The substantial part of the opinion, however, appears to have been, and seems so to have been understood, that the plaintiff could not recover, unless the jury should be of opinion, that the vessel did not remain longer at Barcelona than was necessary to complete her cargo, of which necessity the time  usually employed for  that purpose might be evidence.\" This case, therefore, recognises the right to wait in port for the purpose of selling one cargo and procuring another; and the reasoning is employed solely to avoid a criticism founded upon some ambiguity of phrase peculiar to that case. On the other hand, the cases cited at the bar abundantly prove, that the usage and course of trade are very material to determine whether the delay be unreasonable or not. 1 \nThe next question is, whether there has been a total loss. And this divides itself into two distinct considerations; first, whether the facts of the case created a right of abandonment as for a technical total loss; and, secondly, if so, whether there has been a legal abandonment by the assured. \nUpon the first point there is not much room for difficulty. The insurance was not for a single passage, but for the round voyage out and home. The cargo, in the course of the outward voyage, and before it was terminated, (for the master had still an election to go to another port after his arrival  at Cape Haytien,) was permanently separated from the ship by the total wreck of the latter. It was a perishable cargo, and much injured by the accident, though it does not appear to be to the amount of one half its value; and it was liable to still farther deterioration. There was a necessity, then, for an immediate sale at Cape Haytien, and the farther prosecution of the voyage with that ship, or that cargo, became impracticable. It was completely frustrated. Under such circumstances, we are of opinion, that, according to the established doctrine of the commercial law, it as a clear case of a technical total loss, on account of the breaking up of the voyage. It is a much stronger case than that of Dorr v. The New-England Insurance Company, (4 Mass. Rep. 232.) or Hudson v. Harrison, (3 Brod. & Bing. 364.) where the Court held the losses total. \nWas there, then, a due and legal abandonment? The letter of abandonment is admitted to have been sent in due  season, and, in its terms, it amounts to a cession of the property. Under ordinary circumstances, it would furnish nothing upon which to suspend a doubt. The difficulty arises from two clauses in the particular form  of policy used by this company.One is in the following terms: \"In case of loss, the same shall be paid in sixty days after proof and adjustment thereof, without any deduction, except the amount of the premium, if then unpaid.\" The other is, \"it is hereby agreed, that the insured shall not abandon to the insurers until sixty days have elapsed after having given notice to them of his intention so to do, and of the loss or event which may entitle the insured thereto.\" The suit was not brought until after more than one hundred and twenty days had elapsed from the abandonment made by the letter of the 5th of July. No question, therefore, arises on this head. But the argument is, that the notice of abandonment must, by the terms of the policy, precede the actual abandonment sixty days; and that, in the present case, either no notice at all of such intention has been given, or there has been no actual abandonment at the end of that period. The letter of the 5th of July must either operate as a notice of abandonment, or as actual abandonment; if the former, then there has been no act of abandonment following up the notice; if the latter, then it was made too soon, and contrary to the terms  of the stipulation. Such is the stress of the argument. \nIn construing these clauses, it is material to consider the intention of the parties, as expounded by the general principles of law applicable to the contract. By these principles, the assured, upon an abandonment in due season, for a technical total loss, acquires an immediate  right of recovery against the underwriters. He is not bound to wait until they have signified their acceptance or refusal of the abandonment, if it be valid, nor, if accepted, is he bound to wait for payment, but he may immediately commence an action against them. The object of the first clause is, in the case of an undisputed loss, to obtain a delay of payment for sixty days after the adjustment. But, from its very terms, it can only apply to the case where there has been proof of loss, and also an adjustment. If proof of the loss  has been offered, and no adjustment made, as in case of a disputed loss, the clause has been supposed, in the cases cited at the bar, not to apply. 2 The underwriter is, then, understood to waive the privilege. The true object of the second clause is, to postpone the absolute right of abandonment  until sixty days after notice of the loss, so as to enable the underwriters to have time for deliberation upon the acceptance or rejection of it, when made, and to avail themselves of all intermediate events for their benefit. It is wholly unnecessary to consider whether the assured, after a notice of abandonment, can retract, if the underwriters choose to insist upon accepting it; or whether, if instead of a mere notice, he tenders an unequivocal abandonment, which is accepted by the underwriters within the sixty days, he has, nevertheless, a right to withdraw it, if, within the same period, events turn up in his favour. The present case does not present any facts leading to such a question. The clause is manifestly introduced into the policy for the advantage of the underwriters, and not of the assured. But there is no necessity for giving any very strict interpretation to it to accomplish the fair objects of its provisions. If Mr. Catlett had written a letter to the company, stating to them, that he thereby gave notice to them of the loss, and his intention to abandon, and had then added therein, that at the termination of the sixty days they were to deem that letter an absolute  abandonment, there could scarcely be a doubt that such a letter would have been sufficient to satisfy the requirements of the clause. It would give to the underwriters the full benefit of it. If he had written, at the same time, two letters, one containing a notice of his intention to abandon, and the other that he made an abandonment, to take effect at the end of the sixty days after the notice, the same legal result would seem to be justified. The clause does not insist upon an abandonment being made in presenti, by an instrument dated at the expiration of the sixty days; out only that it shall not, in point of law, be obligatory  as an abandonment until that period. This seems to us a fair and rational exposition of the intention of the clause. In what respect does the letter of the 5th of July differ from the legal results above stated? It is written with reference to the known language and stipulations of the policy, and it must now be interpreted as it must have been understood, and, indeed, looking to the subsequent proceedings of the company, we may say, as it was understood by both parties. Neither of them seems to have acted upon the supposition, that any  other, or more formal act of abandonment, was necessary. The letter gives notice of an intention to abandon, because, in its terms, it includes an actual abandonment. It has a tacit reference to the clause in the policy, and must be deemed as a notice to abandon, and, at the same time, a declaration that it shall operate as an abandonment in the case, as soon as by law it may.In our judgment, it was a continuing act of abandonment, and became absolute at the end of the sixty days. It was an abandonment in presenti, to take effect in futuro. Neither the form of the notice, nor the abandonment, is prescribed in the clause. They may be in one or two instruments; they may be in direct terms, or by fair and natural inference. It matter not how they are given or executed; it is sufficient, in point of fact, that they have been given or executed. Our opinion accordingly is, that upon the true interpretation of this last clause in the policy, the letter of the 5th of July was a sufficient notice of an intention to abandon, and that, at the expiration of the sixty days, it operated as an actual abandonment. \n The abandonment, then, having been duly made, the next question that arises is, how the loss is to be apportioned. The argument on behalf of the Company is, that as part of the cargo was landed at St. Thomas, the amount risked by them is to be diminished by their proportion of the cargo so landed. In short, that the loss is now to be made up by them with reference to the value of the whole cargo on board, when the risk first attached, and not with reference to the value on board at the time of the loss, notwithstanding it exceeded the amount insured. We are of a different opinion. We think the true intent and object of the policy was to cover  an insurance of 10,000 dollars during the whole voyage out and home, so long as the assured had that amount of property on board. This is not a policy for a voyage to St. Thomas only, in which case the argument might justly apply. But it is a policy to two other ports on the outward voyage, and also for the homeward voyage. The language of the policy is, that the underwriters insure 10,000 dollars at and from Alexandria, and two other ports in the West Indies, and back to the United States.The premium is apporioned accordingly,  for a half per cent. is to be returned \"for each port not used or attempted;\" and the contemplation of the parties manifestly is, that the premium should be paid during the round voyage upon the full sum insured, and that the assured should have the full benefit of the insurance, so long as he had 10,000 dollars on board.The intermediate landing of a portion of the cargo in the course of the voyage was wholly immaterial in the understanding of the parties, so long as the value on board was sufficient to cover the insurance. If the clause, usual in policies in the eastern States, as to priority of insurance, had been here incorporated, and there had been a subsequent insurance, this, as the prior policy, must have first attached to the extent of the sum insured during the whole voyage. If there had been a subsequent insurance without any such clause, it might form a case for contribution among the various underwriters; but would in no shape affect the rights of the assured. The loss, therefore, must be apportioned between the parties  in the proportion which the sum insured bears to the amount of value on board at the time of the loss, that is, as 10,000 dollars bears  to 12,328 25/100 dollars. \nThe next question is, whether the freight for the outward voyage is to be deducted from the salvage, and allowed the assured, who was owner of the ship as well as the cargo. The amount reported by the auditor is not disputed, and the controversy is, whether it is a charge upon the salvage in the hands of the underwriters. In point of fact, no freight was or could be payable in this case, for the plain reason, that the assured was owner of the ship, and there could, therefore, be no lien upon the cargo or its proceeds for the same. But in point of law the case is not supposed to be varied by  this circumstance; for if the freight would be a proper charge on the salvage, if a third person were owner of the ship, in the hands of the assured, there is no reason why it should not be allowed when the assured is owner. We consider the law on this point as conclusively settled. As between the owner of the ship and the owner of the cargo, the former has a lien upon the cargo for all the freight which becomes due and payable to him, whether it be a full or pro rata freight. But freight is a charge upon the cargo, against which the underwriters do not,  in any event, whether of abandonment with salvage, or of partial loss, undertake to indemnify the owner of the cargo. In order to obtain the salvage, when in the hands of the ship owner, it may become necessary for the underwriters to pay the amount of the freight, for which they have a lien, as it may to pay any other charge created by the act of the owner of the cargo. But this does not change the nature or extent of the responsibility of the underwriters. As between themselves and the assured, they have a right to deduct the amount so paid from the loss, or to recover it in any other manner, as money paid for the use of the latter. This doctrine was expressly held by the Court of King's Bench, in Baillie v. Modigliani, (Marshall. Ins. 728.) and was confirmed in the fullest manner in this Court, in Caze & Richaud v. the Baltimore Insurance Company, (7 Cranch, 358.) \nIt only remains to notice an objection made to the form of the declaration. It is said, that there is no averment in the declaration, that any preliminary proofs of loss were offered to the Company, nor of any promise to pay in sixty days after such proofs, according to the terms of the policy, nor that any abandonment,  or notice, was given to the underwriters. It was, in our judgment, wholly unnecessary to ave the latte facts. The abandonment and notice thereof are but matters of evidence to establish the fact of a total loss, which is expressly averred in the declaration. As to the other part of the objection, it proceeds upon a mistake of the terms of the declaration. There is an express averment, after the allegation of the loss, that the Company, on, &c. at, &c. had notice thereof, and by means thereof became liable, &c. and in consideration thereof promised,  that they would pay the plaintiff the sume due, \"according to the tenor and effect of the said policy of insurance.\" This is a sufficient averment of a promise to pay according to the stipulations of the policy, and conforms to the general course of precedents in pleading. \nUpon the whole, it is the opinion of this Court, that the judgment of the Court below, so far as it allowed the freight of 2041 25/100 dollars to the assured is erroneous, and ought to be reversed; and that, in all other respects, it ought to be affirmed. \n[*407contd] [EDITOR'S NOTE: The page numbers of this document may appear to be out of sequence; however, this pagination accurately reflects the pagination of the original published document.] \nMr. Justice STORY. In consequence of the former opinion delivered in this cause, the parties have found it necessary to re-adjust the auditor's report in several particulars not suggested at the former argument. Indeed, upon that argument, the parties assumed that the report was perfectly correct, except as to the item of freight. We have examined the report, and are satisfied that the original plaintiff is entitled to recover the sum of 6,626 dollars and 18 cents, with interest from the 14th of October, 1822, which is the residue of the sum of 10,000 dollars insured by the Company, deducting the premium note and the proportion of salvage belonging to the underwriters, which has been received by the original plaintiff; and the judgment of the Circuit Court is to be reformed accordingly. \nJUDGMENT. This cause came on, &c. On consideration whereof, it is ORDERED and ADJUDGED by the Court, that there is error in so much of the judgment as allowed to the said Catlett, as freight to be deducted from the salvage, the sum of two thousand and forty-one dollars and twenty-five  cents. And it is further ORDERED and ADJUDGED, that upon the reformation of the auditor's report, required by the disallowance of the freight aforesaid and otherwise, there is now due and payable to the said Catlett the sum of 6,626 dollars and 18 cents, together with interest thereon, from the 14th of October, 1822, the said sum being the balance of the sum of 10,000 dollars insured, after  deducting the amoung of the premium due on the policy, viz. 376 dollars, and also the proportion of the salvage belonging to the said Columbian Insurance Company, viz. 2,997 dollars and 82 cents, received by the said Catlett; and that the judgment of the Circuit Court, to the amount of the said sum of 6,626 dollars and 18 cents, and interest thereon from the 14th of October, 1822, be and hereby is affirmed; and as to the residue of the said judgment, be and hereby is reversed: and the cause is to be remanded to the said Circuit Court, with directions to enter judment for the said Catlett accordingly; the parties in the Court below to be at liberty to open the auditor's report, so far as respects the item for 480 dollars, the proceeds of the doubloons, and the item for 719 dollars and  37 cents paid over to captain M.Knight; and the judgment to be varied by the Circuit Court as these items may be found for either party; execution, however, to be granted immediately for the balance of the judgment, deducting the said sum of 719 dollars and 37 cents. \nConcur by:", " \nOpinion \n\n \n \n  THE opinion of the Court in this case was delivered by Mr. Justice STORY. \nThe question, which comes before us upon a certificate of a division of opinion of the judges of the Circuit Court of Massachusetts, is this, whether two or more persons, jointly charged in the same indictment with a capital offence, have a right, by the laws of the country, to be tried severally, separately, and apart, the counsel for the United States objecting thereto, or whether it is a matter to be allowed in the discretion of the Court. \nWe have considered the question, and are of opinion, that it is a matter of discretion in the Court, and not of right in the parties. And it has become my duty briefly to expound some of the reasons which urge us to that conclusion. \nThe subject is not provided for by any act of Congress; and, therefore, if the right can be maintained at all, it must be as a right  derived from the common law, which the Courts of the United States are bound to recognise and enforce. The Crimes Act of 1790, ch. 9. provides, in the 29th section, for the right of peremptory challenge in capital cases; and this right, to the extent of the statute, must,  in all cases, be allowed the prisoners, whether they are tried jointly or separately. Upon a joint trial, each prisoner may challenge his full number, and every juror challenged as to one, is withdrawn from the panel as to all the prisoners on the trial, and thus, in effect, the prisoners in such a case possess the power of peremptory challenge to the aggregate of the numbers, to which they are respectively entitled. This is the rule clearly laid by Lord Coke, Lord Hale, and Serjeant Hawkins, and, indeed, by all the elementary writers. 1 \nOne consequence of this, in ancient times, was, that embarrasments often arose at trials at the assizes, on account of a defect of sufficient jurors. The state of Westminster 2. ch. 38. ordained, \"that in  one assize no more shall be returned than twenty-four.\" The common practice under this statute used to be, for the sheriff to return forty-eight jurors, although the precept named but twenty-four. It was, indeed, held, at an early period, that the statute of Westminster did not apply to criminal cases; but, notwithstanding this, the usual practice prevailed, unless the Court directed a larger number to be returned. And it was not until the reign of George II. that a larger number was required by law to be returned at the assizes. The history of this branch of the subject is very clearly stated in 3 Bac. Abr. tit. Juries, b. 6. and in Kelyng's Rep. 16. 2 It is obvious, that on joint panels, returned for joint trials, at the assizes, a defect of jurors might, from this limitation, often take place. And it became a question, in very early times, whether, under such circumstances, the Court had power, against the will of the prisoners, to sever the panel, and to try them severally, if they insisted upon their right of several challenge. It was decided, upon full consideration, that the Court had this power. To this effect are the cases in Plowden, 100. in Dyer, 152. b., and in Kelyng's  Rep. 9.; and the doctrine has received the sanction of Lord Hale, and other writers of the highest authority. \n Whether, then, prisoners, who are jointly indicted, can, against their wishes, be tried separately, does not admit of a doubt. It remains to consider, whether they can insist upon a several trial. \nThe sole ground upon which this claim can rest must be, if maintainable at all, that they have a right to select their jury out of the whole panel, and that as upon a joint trial, one may desire to retain a juror who is challenged by another, and, if challenged by one, he must be withdrawn as to all; this right of selection is virtually impaired. But it does not appear to us that this reasoning can, upon the principles of the common law, be supported. The right of peremptory challenge is not of itself a right to select, but a right to reject jurors. It excludes from the panel those whom the prisoner objects to, until he has exhaused his challenges, and leaves the residue to be drawn for his trial according to the established order or usage of the Court.The elementary, writers no where assert a right of this nature in the prisoner,  but uniformly put the allowance of peremptory challenges upon distinct grounds. Mr Justice Blackstone, in his Commentaries, (4 Bl. Comm. 353.) puts it upon the ground, that the party may not be tried by persons against whom he has conceived a prejudice, or who, if he has unsuccessfully challenged them for cause, may, on that account, conceive a prejudice against the prisoner. The right, therefore, of challenge, does not necessarily draw after it the right of selection, but merely of exclusion. It enables the prisoner to say who shall not try him; but not to say who shall be the particular jurors to try him. The law presumes, that every juror sworn in the case is indifferent and above legal exception: for otherwise he may be challenged for cause. What jurors, in particular, shall try the cause, depends upon the order in which they are called; and the result is a mere incident following  the challenges, and not the absolute selection of the prisoner, resulting from his power of challenge. \nThis view of the general principle of the common law is very much confirmed by other considerations. It is laid down by Hawkins, (Pl. Cr. b. 2. ch. 41. s. 8.) that where several persons  are arraigned on the same indictment, and severally plead not guilty, it is in the election of the prosecutor, either to take out joint venires against them all, or several  against each of them. This plainly supposes that it is in the election of the prosecutor whether there should be a joint or separate trial. If there had been any known right in the prisoner to control this election, it seems incredible that so accurate and learned an author should not have stated it, when the occasion indispensably required him to take notice of a qualification so important to his text. His silence is, under such circumstances, very significant. \nBut a still more direct conclusion against the right may be drawn frown the admitted right of the crown to challenge in criminal cases, and the practice under that right. We do not say that the same right belongs to any of the States in the Union; for there may be a diversity in this respect as to the local jurisprudence or practice. The inquiry here is, not as to what is the State prerogative, but, simply, what is the common law doctrine as to the point under consideration. Until the statute of 33 Edw. 1. the crown might challenge peremptorily  any juror, without assigning any cause; but that statute took away that right, and narrowed the challenges of the crown to those for cause shown. But the practice since this statute has uniformly been, and it is clearly settled, not to compel the crown to show cause at the time of objection taken, but to put aside the juror until the whole panel is gone through. Hawkins, on this point, says, (Pl. Cr. b. 2. ch. 43. s. 2. s. 3.) \"if the king challenge a juror before the panel is perused, it is agreed that he need not show any cause of his challenge, till the whole panel be gone through, and it appears that there will not be a full jury without the person so challenged. And if the defendant, in order to oblige the king to show cause, presently challenge, touts paravaile; yet it hath been adjudged, that the defendant shall be first put to show all his causes of challenge before the king need to show any.\" And the learned author is fully borne out by the authorities which he cites, and the same rule has been recognised down to the present times. 3 \n  This acknowledged right of peremptory challenge existing in the crown before the statute of 33 Edw. I., and the uniform practice which has prevailed since that statute, to allow a qualified and conditional exercise of the same right, if other sufficient jurors remained for the trial, demonstrate, as we think, that no such power of selecting his jury belongs, or was ever supposed to belong, by the common law, to the prisoner; and that, therefore, he could not demand, as matter of right, a separate trial to enable him to exercise it. In a separate or joint trial, he could at any time be defeated by the crown of such choice, by its own admitted prerogative. \nThe circumstances already alluded to, of the right of each prisoner on a joint trial to exercise his full right of peremptory challenge, and the small number of jurors usually returned on the panel at the assizes, accounts in a very satisfactory manner for the language used in some of the cases, as to the necessity of directing separate trials where the prisoners refused to join in their challenges. The plain reason was, that otherwise there could be no trial at all, for defect of jurors, at the same assizes; and, therefore,  the Court, in furtherance of public justice, were accustomed, without the consent of the prisoners, to direct a separate trial. In this way the reason of the practice is understood by Lord Hale, (2 Hale P. C. ch. 34. p. 263.) and by Hawkins, (Hawk. P. C. b. 2. ch. 41. s. 9.) and by other more recent writers on common law. 4 In this manner the language of Lord Holt in Charnock's case, (12 Howell's State Trials, 1454. S.C. 3 Salk. 81.) is to be interpreted; for it is manifest, that he could not intend that there could not be a joint trial where the prisoners challenged separately, for no rule was better settled in his time than that they could. Indeed, in Rex v. Grahme, (12 Howell's State Trials, 646. 673.) the same learned judge uses similar language in a sense which admits of no other interpretation; and this was the answer given to it when cited in a later case for the like purpose. \n That case is Rex v Nobel and others, in 1713, before Lord Chief Justice Parker, and reported in the State Trials, (9 Hargr. St. Tr. 1. S.C. 15 Howell's St. Tr. 731.) In that case, which was an indictment for murder, Noble moved  the Court for a separate trial, and the motion was denied. He was convited, and when brought up for judgment, he moved in arrest of judgment this very matter, that there was a mis-trial, because (to use his own words) \"we were severed in our challenges, and yet were tried together by the same jury;\" and he relied upon the language of Lord Holt, in Charnock's case, as in point. The Court overruled the objection, and stated, that Lord Holt's language referred solely to the public inconvenience, on account of a probable defect of jurors, and not to any matter of right in the prisoners. Sentence was accordingly passed upon the prisoner, and he was executed. There is a curious and learned commentary appended in a note to this trial, which was printed before the execution of Noble, in which an attempt was made to question the correctness of the decision. But it is therein admitted, that Noble's counsel declined to argue the point, though request; from which we cannot but infer, that they thought the objection unfounded. The decision itself has never since been questioned, or denied. We have, therefore, in the present case, not merely the absence of any authority  if favour  of the matter of right, but the course of practice, and the general reasoning deducible from the prerogative of the crown against it; and, lastly, a direct authority, in times when the administration of criminal justice was unsuspected, on the very point. \nSuch is the substance of the reasons which induce us to decide against the claim as a matter of right. In our opinion, it is a matter sound discretion, to be exercised by the Court with all due regard and tenderness to prisoners, according to the known humanity of our criminal jurisprudence. \nA certificate is, accordingly, to be sent to the Circuit Court. \nCERTIFICATE. This cause came on, &c. On consideration whereof, it is ORDERED and ADJUDGED by this Court  that it be certified to the said Circuit Court, that where two or more presons are jointly charged in the same indictment, with a capital offence, such persons have not a right, by the laws of the country, to be tried severally, separately, and apart, the counsel for the United States objecting thereto; but that such separate trial is a matter to be allowed in the discretion of the Court before whom the indictment is tried All which is ordered to be certified,  &c. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the Court. \nThis is the case of an indictment against Gooding for being engaged in the slave trade, contrary to the prohibitions of the act of Congress of the 20th of April, 1818. It comes before us upon a certificate of division of opinions in the Circuit Court of the District of Maryland, upon certain points raised at the trial. We take this opportunity of expressing our anxiety, least, by too great indulgence to the wishes of counsel, questions of this sort should be frequently brought before this Court, and thus, in effect, an appeal in  criminal cases become an ordinary proceeding to the manifest obstruction of public justice,  and against the plain intendment of the acts of Congress. Cases of real doubt and difficulty, or of extensive consequence as to principle and application, and furnishing matter for very grave deliberation, are those alone which can be reasonably presumed to have been within the purview of the legislature in allowing an appeal to this Court upon certificates of division. In this very case, some of the questions certified may have been argued and decided in the Court below upon the motion to quash the indictment; and there are others upon which it is understood, that the Circuit Court had no opportunity of passing a deliberate judgment. \nThe first question that arises is upon the division of opinions whether, under the circumstances of the case, the testimony of Captain Coit to the facts stated in the record, was admissible. That testimony was to the following effect: that he, Captain Coit, was at St. Thomas while the General Winder was at that  Island in September, 1824, and was frequently on board the vessel at that time; that Captain Hill, the master of the vessel, then and there proposed to the witness to engage on board the General Winder as mate for the voyage then  in progress, and described the same to be a voyage to the coast of Africa, for slaves, and thence back to Trinidad de Cuba; that he offered to the witness seventy dollars per month, and five dollars per head for every prime slave which should be brought to Cuba; that on the witness inquiring who would see the crew paid in the event of a disaster attending the voyage, Captain Hill replied, \"Uncle John,\" meaning (as the witness understood) John Gooding, the defendant. \nIt is to be observed, that, as preliminary to the admission of this testimony, evidence had been offered to prove that Gooding was owner of the vessel, that he lived at Baltimore, where she was fitted out, and that he appointed Hill master, and gave him authority to make the fitments for the voyage, and paid the bills therefor; that certain equipments were put on board peculiarly adapted for the slave trade; and that Gooding had made declarations that the vessel had been engaged in the slave trade, and had made him a good  voyage. The foundation of the authority of the master, the nature of the fitments, and the object and accomplishment of the voyage, being thus laid, the testimony of Captain coit was offered  as confirmatory of the proof, and properly admissible against the defendant. It was objected to, and now stands upon the objection before us. The argument is, that the testimony is not admissible, because, in criminal cases, the declarations of the master of the vessel are not evidence to charge the owner with an offence; and that the doctrine of the binding effect of such declarations by known agents, is, and ought to be, confined to civil cases. We cannot yield to the force of the argument. In general the rules of evidence in criminal and civil cases are the same. Whatever the agent does, within the scope of his authority, binds his principal, and is deemed his act. It must, indeed, be shown, that the agent has the authority, and that the act is within its scope; but these being conceded, or proved, either by the course of business, or by express authorization, the same conclusion arises, in point of law, in both cases. Nor is there any authority for confining the rule to civil cases. On the contrary, it is the known and familiar principle of criminal jurisprudence, that he who commands, or procures a crime to be done, if it is done, is guilty of the crime, and the act is  his act. This is so true, that even the agent may be innocent, when the procurer or principal may be convicted of guilt, as in the case of infants, or idiots, employed to administer poison. The proof of the command, or procurement, may be direct or indirect, positive or circumstantial; but this is matter for the consideration of the jury, and not of legal competency. So, in cases of conspiracy and riot, when once the conspiracy or combination is established, the act of one conspirator, in the prosecution of the enterprise, is considered the act of all, and is evidence against all. Each is deemed to consent to, or command, what is done by any other in furtherance of the common object. Upon the facts of the present case, the master was just as much a guilty principal as the owner, and just as much within the purview of the act by the illegal fitment. \nThe evidence here offered was not the mere declarations  of the master upon other occasions totally disconnected with the objects of the voyage. These declarations were onnected with acts in furtherance of the objects of the voyage, and within the general scope of his authority as conductor of the enterprise. He had an  implied authority to hire a crew, and do other acts necessary for the voyage. The testimony went to establish, that he endeavoured to engage Captain Coit to go as mate for the voyage then in progress, and his declarations were all made with reference to that object, and as persuasives to the undertaking. They were, therefore, in the strictest sense, a part of the res gestae, the the necessary explanations attending the attempt to hire. If he had hired a mate, the terms of the hiring, though verbal, would have been part of the act, and the nature of the voyage, as explained at the time, a necessary ingredient. The act would have been so combined with the declarations, as to be inseparable without injustice. The same authority from the owner which allows the master to hiere the crew, justifies him in making such declarations and explanations as are proper to attain the object. Those declarations and explanations are as much within the scope of the authority as the act of hiring itself. Our opinion of the admissibility of this evidence proceeds upon the ground that these wwere not the naked declarations of the master, unaccompanied with his acts in that capacity, but declarations  coupled with proceedings for the objects of the voyage, and while it was in progress. We give no opinion upon the point whether mere declarations, under other circumstances, would have been admissible. The principle which we maintain is stated with great clearness by Mr. Starkie, in his Treatise on Evidence. (2 Stark. Evid. part 4. p. 60.) \" Where,\" says he, \"the fact of agency has been proved, either expressly or presumptively, the act of the agent, co-extensive with the authority, is the act of the principal, whose mere instrument he is, and then, whatever the agent says within the scope of his authority, the principal says, and evidence may be given of such acts and declarations as if they had been actually done and made by the principal himself.\" 1 \n The other questions arise from the instructions or opinions prayed for by the defendant at the trial upon matters of law, upon which, also, the judges were divided in opinion. \nThe first instruction prayed puts the point, whether the burthen of proof of the offences charged in the indictment did not rest upon the United States. Without question it does in all cases  where a party stands charged with an offence, unless a different provision is made by some statute; for the general rule of our jurisprudence is, that the party accused need not establish his innocence; but it is for the government itself to prove his guilt before it is entitled to a verdict or conviction. This question has been abandoned at the argument here, and  is too plain for controversy, since there is no stauteable provision altering the general principle in this particular. \nThe second instruction is conceived in very general terms, so general, indeed, that it cannot be supported if it is to be understood in its obvious sense. It asks the Court to instruct the jury that evidence that the defendant caused the vessel to be fitted out by Captain Hill, or any one else, will not support the first count in the indictment, in which the defendant is charged with fitting her out himself. This obviously covers the case where the fitting out is by the instrumentality of any other persons, however innocent of his design, even though the defendant himself should be personally present, either really or constructively, and superintending the whole operations. To this extent  it is clearly unmaintainable. But, in a more restrictive sense, it involves the question, whether evidence that the owner commanded, quthorized and superintended the fitment through his agents, without his personal presence, would support this count. We are of opinion in the affirmative. The act of Congress does not require that the fitting out should be by the owner personally, without the assistance or agency of others. The act itself is of a nature which forbids such a supposition. The fitment of a vessel is ordinarily, and, indeed, must be done through the instrumentality of others.It is not a single act, but a series of subordinate operations, requiring the co-operation of persons in various trades and arts, all conducing to the same end. It would be against the plain sense of the  legislature, to interpret its language to mean that the act which it punishes, and which must or may be done by many in the ordinary course of business, shall only be punishable when the extraordinary fact occurs of its being done by one person. If done by others under the command and direction of the owner, with his approbation and for his benefit, it is just as much in contemplation  of law his own act, as if done by himself. To this extent, at least the maxim may be safely applied, qui facit per alium, facit per se. And it cannot be material whether it be done in his absence from, or his presence in, the scene. Especially there can be no doubt that the principle ought to be applied with increased force, where the owner resides at the same port, or neighbourhood, and superintends the course of the operations, even if he does not see them. Even in the highest crimes, those who are present, aiding and commanding, or abetting, are deemed principals; and, if absent, in treason and in misdemeanours, they are still deemed principals; though it may be necessary, in treason, to lay the overt acts precisely according to the fact, from considerations peculiar to that offence. This instruction ought, therefore, to have been refused. \nThe third instruction turns upon the point, whether the fitting out, in the sense of the act of Congress, means a complete equipment, so that a partial equipment only will extract the case from the prohibitions of the statute. This objection appears to us to proceed from a mistaken view of the facts applicable to the case. If the vessel  actually sailed on her voyage from Baltimore for the purpose of employment in the slave trade, her fitment was complete for all the purposes of the act. It is by no means necessary, that every equipment for a slave voyage should have been taken on board at Baltimore; or, indeed, that any equipments exclusively applicable to such a voyage, should have been on board. The presence of such equipments may furnish strong presumptive proof of the object of the voyage, but they do not constitute the offence. The statute punishes the fitting out of a vessel with intent to employ her in the slave trade, however innocent the equipment may be, when designed for a lawful voyage. It is the act combined with the intent, and not either separately, which is punishable. Whether the  fitting out be fully adequate for the purposes of a slave voyage may, as matter of presumption, be more or less conclusive; but if the intent of the fitment be to carry on a slave voyage, and the vessel depart on the voyage, her fitting out is complete, so far as the parties deem it necessary for their object, and the statute reaches the case. \nBut we are also of opinion, that any preparations for a slave  voyage, which clearly manifest or accompany the illegal intent, even though incomplete and imperfect, and before the departure of the vessel from port, do yet constitute a fitting out within the purview of the statute. This was held by this Court upon full consideration in the cases of the Emily and Caroline, (9 Wheat. Rep. 381.) and the Plattsburg, (10 Wheat. Rep. 133.) Those cases, indeed, arose upon the construction of the slave trade acts of 1794, 1800 and 1807; but the language of those acts is almost literally transcribed into the statute of 1818, and the construction adopted therein must govern the present case. In either view, therefore, our answer to the third prayer is, that a complete equipment is not necessary to be proved, but any partial preparation, which demonstrates or accompanies the illegal intent, will bring the case within the statute, and support the charge in the first count of the indictment. \nThe fourth instruction respects the sufficiency of the averments of the first count; and it is contended that there ought to have been a specification of the particulars of the fitting out, and that it is not sufficient to allege the act itself without them. The indictment,  in this respect, follows the language of the statute, and is as certain as that is.We cannot perceive any good reason for holding the government to any greater certainty in the averments of the indictment. The fitting out of a vessel may, and must, consist of a variety of minute acts and preparations, almost infinite in their detail, and the enumeration would answer no valuable purpose to the defendant to assist him in his defence, and subserve no public policy. The fitting out of a vessel is a sort of business, which is as clear and definite as any other; and we might just as well in an indictment upon the act for building \nship with the illegal intent, require that the government  should particularize the acts of building through their whole details, as those of equipment. The building of a ship is not an act more certain in its nature than the fitting out of a ship. The particular preparations are matters of evidence, and not of averment. Every man may well be presumed to know what are the fitments of a vessel for a voyage, without  more particularity. The objection proceeds upon the supposition, that ordinary equipments only, though combined with the  illegal intent, are not within the act; and that extraordinary equipments only for such a voyage are provided for. This has been already shown to be an incorrect exposition of the statute. It imputes no guilt to any particulars of the equipment, but to the act combined with the illegal intent. \nIn general, it may be said, that it is sufficient certainty in in an indictment to allege the offence in the very terms of the statute. We say, in general, for there are doubtless cases where more particularity is required, either from the obvious intention of the legislature, or from the application of known principles of law. At the common law, in certain descriptions of offences, and especially of capital offences, great nicety and particularity are often necessary. The rules which regulate this branch of pleading were sometimes founded in considerations which no longer exist either in our own or in English jurisprudence; but a rule, being once established, it still prevails, although if the case were new, it might not now be incorporated into the law. So, again, in certain classes of statutes, the rule of very strict certainty has sometimes been applied where the common law furnished  a close and appropriate analogy. Such are the cases of indictments for false pretences, and sending threatening letters, where the pretences and the letters are required to be set forth from the close analogy to indictments for perjury and forgery. Courts of law have thought such certainty not unreasonable or inconvenient, and calculated to put the plea of autre fois acquit, or convict, as well as of general defence at the trial, fairly within the power of the prisoner. But these instances are by no means considered as leading to the establishment of any general rule. On the contrary, the course has been to leave every class of cases to be decided  very much upon its own peculiar circumstances. Thus, in cases of conspiracy, it has never been held necessary to set forth the overt acts or means, though these might materially assist the prisoner's defence. So, in cases of solicitation to commit crimes, it has been held sufficient to state the act of solicitation, without any averment of the special means. And in endeavours to commit a revolt, which is by statute in England made a capital offence, it has always been deemed sufficient to allege the offence in the words  of the statute, without setting forth any particulars of the manner or the means. These cases approach very near to the present; and if any, by way of precedent, ought to govern it, they well may govern it. The case of treason stands upon a peculiar ground; there the overt acts must, by statute, be specially laid in the indictment, and must be proved as laid. The very act, and mode of the act, must, therefore, be laid as it is intended to be proved. If he party be only constructively a principal, as an absent and distant coadjutor or leader, it may be necessary to aver the fact accordingly. There is great good sense in the rule which has been, laid down, that where the offence is made up of a number of minute acts, which cannot be enumerated upon the record without great prolixity and inconvenience, and the danger of variance, they ought to be dispensed with. The present case is a fit illustration of the rule; the fitting out is a compound of various minute acts, almost incapable of exact specification. \nThe fifth instruction turns upon a doctrine applicable to principal and accessory in cases of felony, either at the common law or by statute. The present is the case of a misdemeanour,  and the doctrine, therefore, cannot be applied to it; for in cases of misdemeanours, all those who are concerned in aiding and abetting, as well as in perpetrating the act, are principals.Under such circumstances there is no room for the question of actual or constructive presence or absence; for whether present or absent, all are principals. They may be indicted and punished accordingly. Nor is the trial or conviction of an actor indispensable to furnish a right to try the person who aids or abets the act; each in the eye of the law is deemed guilty as a principal. In the  present indictment, the offence is in the third and forth counts laid by aiding and abetting, in the very terms of the act of Congress. If the crime, therefore, could be supposed to be of an accessorial nature, it is truly alleged, according to the fact, and not merely according to the intendment of law. We do not consider that the terms \"aid\" and \"abet,\" used in this statute, are used as technical phrases belonging to the common law, because the offence is not made a felony, and, therefore, the words require no such interpretation. The statute punishes them as substantive offences, and not as accessorial,  and the words are, therefore, to be understood as in the common parlance, and import assistance, co-operation, and encouragement. These remarks furnish an answer to the seventh instruction, which must share the fate of the fifth. \nThe sixth instruction is that which has presented the most difficulty. It embraces two propositions; the first is, that the second, fifth, and sixth counts in the indictment, ought to have contained an averment that the vessel was built, fitted out, &c. within the jurisdiction of the United States; the second is, that the fifth and sixth counts do not allege the offence in the words of the statute, those words being, \"with intent to employ the vessel\" in the slave trade, &c. whereas each of these counts avers, \"with intent that the said vessel should be employed\" in the slave trade, which imports a very different state of facts. In order to understand, these exceptions, it is necessary to attend carefully to the very words of the act of Congress. The second section enacts, \"that no citizen or citizens, &c. shall, after the passing of this act as aforesaid, for himself, themselves, or any other person or persons whatsoever, either as master, factor, or  owner, build, fit, equip, load, or otherwise prepare, any ship or vessel, in any port or place within the jurisdiction of the United States, nor cause any such ship or vessel to sail from any port or place whatsoever within the jurisdiction of the same, for the purpose of procuring any negroes, &c. to be transported, &c. as slaves.\" The third section enacts, \"that every person or persons so building, fitting out, equipping, loading, or otherwise preparing, or sending away, or causing any of the acts aforesaid to be done, with intent to employ  such ship or vessel in such trade or business,  after the passing of this act, contrary to the true intent and meaning thereof, or who shall in any wise be aiding or abetting therein, shall severally, on conviction thereof by due course of law, forfeit,\" &c. &c. The first point turns upon the interpretation of the words \"such ship or vessel,\" in each of these section. To what do they refer? The only ship or vessel spoken of in either section, is such as have been built, fitted out, &c. in some port or place of the United States. \"Such ship or vessel\" must, therefore, refer to a ship or vessel so built, fitted out, &c.  as its antecedent, or the relative \"such\" can have no meaning at all. The word is sensible in the place where it occurs, and it is the duty of the Court, when it can, to give effect to every word in every enactment, if it can be done without violating the obvious intention of the legislature. This is a penal act, and is to be construed strictly, that is, with no intendment or extention beyond the import of the words used. There is no certainty that the legislature meant to prohibit the sailing of any vessel on a slave voyage, which had not been built, fitted out, &c. within the jurisdiction of the United States. If a foreign vessel, designed for the slave trade, and fully fitted out for that purpose, were, by accident or design, to anchor in our ports, it would not be reasonable to suppose that the legislature could have intended the sailing of such a vessel from our ports to be an offence within the purview of our laws. Yet, if the construction contended for on behalf of the United States be adopted, that would be the result. \nBut it is sufficient to say, that the word \"such\" has an appropriate sense, and can be reasonably referred only to the ship or vessel previously spoken  of; and such ship or vessel is not merely one built, fitted out, &c. but one built, fitted out, &c. in a port or place within the United States. The whole description must be taken together. If we were to adopt any other construction, we should read the words as if \"such\" were struck out, and the clause stook, \"any ship or vessel.\" Such a course would not be defensible in construing a penal statute. It is remarkable, that in the Slave Trade Acts of 1794, (2 U.S.L. 383.) and of 1807.  (4 U.S.L. 94.) the word \"such\" is omitted, and seems to have been introduced into the act of 1818, ex industria. We must take the law as we find it, and, upon examination of its language, we are of opinion, that this exception is well taken. The cases of the United States v. Lacoste, (2 Mason's Rep. 129.) and The United States v. Smith, (2 Mason's Rep. 143.) have been cited at the bar as containing different opinion expressed in the Circuit Court in Massachusetts. I owe it in candour to acknowledge, that the fact is so; but I have no recollection that the point was made at the argument, and I am confident that it never was insisted upon in the view which has been presented by the argument  in this Court. My own error, however, can furnish no ground for its being adopted by this Court, in whose name I speak on the present occasion. \nThe other point is equally fatal. There is a clear distinction between causing a vessel to sail, or to be sentaway, with intent to employ her in the slave trade, and with intent that she should be employed in that trade. The former applies to an intent of the party causing the act, the latter to the employment of the vessel, whether by himself or a stranger. The evidence may fully support these counts, and yet may not constitute an offence within the act of Congress; for the employment by a mere stranger would not justify the conviction of the party charged with causing her to sail, or to be sent away, with intent to employ her in the slave trade, as owner. There is no reason, in criminal cases, why the Court should help any such defective allegations. The words of the statute should be pursued. \nIt remains only to consider the point, whether these objections to the sufficiency of the indictment could be properly taken as this stage of the proceedings. Undoubtedly, according to the regular course of practice, objections to the form and  sufficiency of an indictment ought to be discussed upon a motion to quash the indictment, which may be granted or refused in the discretion of the Court, or upon demurrer to the indictment, or upon a motion in arrest of judgment, which are matters of right. The defendant has no right to insist that such objections should be discussed or decided during the trial of the facts by the jury. It would  be very inconvenient and embarrassing, to allow a discussion of such topics during the progress of the cause before the jury, and introduce much confusion into the administration of public justice. But we think, it is not wholly incompetent for the Court to entertain such questions during the trial, in the exercise of a sound discretion. It should, however, be rarely done, and only under circumstances of an extraordinary nature. The Circuit Court, in the present case, did allow the introduction and discussion of these questions during the trial, and were divided upon the propriety of the practice. We can only certify, that the Court possessed the authority, but that it ought not to be exercised except on very urgent occasions. \nA certificate will be sent to the Circuit Court  of the District of Maryland, according to this opinion. \nCERTIFICATE. This cause came on, &c. On consideration whereof, it is ORDERED and ADJUDGED, that the following opinions be certified as the opinions of this Court on points of division to the Circuit Court aforesaid. \nFirst. That the testimony of Peter L. Coit, set forth in the record, was, under the circumstances of the case, admissible as competent evidence against the defendant, Gooding. \nSecondly. That the opinions prayed for by the counsel for the defendant, Gooding, in the first and sixth prayers, set forth in the record, were correct in law, and ought to have been given by the Court. \nThirdly. That the opinions prayed for in all the other prayers of the defendant, were incorrect in law, and ought to have been refused. \nFourthly. That the objections taken to the form and sufficiency of the indictment by the defendant's counsel, were not matters of right which the defendant might insist upon, and discuss, and require to be decided during the trial of the issue by the jury; and that the same should, according to the regular course of  practice, have been discussed on a motion to quash the indictment, or on  demurrer, or on motion in arrest of judgment; but that the Court had, nevertheless,  competent authority, in the exercise of a sound discretion, to permit such objections to be discussed and decided during the trial. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the Court. -- \nThis is a writ of error to the Circuit Court of the district of Columbia, sitting at Alexandria. The plaintiffs in error were original defendants in the cause, and the suit is now before this Court, upon the judgment of the Court below, upon certain pleas of the defendants, to which there was a demurrer; and also, upon the instructions  given and refused by the Court, upon the trial of certain issues of fact, joined by the parties. \nThe action is debt upon an official bond, given by Philip H. Minor, Cashier of the bank, and by four other persons, as his sureties, with condition, that Minor \"shall well and truly execute the duties of Cashier\" of the bank; and was originally brought against all the parties to the bond. The declaration proceeds for the penalty of the bond, without any notice of the condition, and avers, by way of breach, the non-payment of the penalty. The sureties, after oyer of the bond and condition, (which thereby became part of the declaration,) severed themselves from the principal, and pleaded nine several pleas. To the two first of these pleas, demurrers were put in, and the Court below, upon consideration, gave judgment upon the demurrers in favour of the bank; and the correctness of this decision, constitutes the first subject of inquiry. \nExceptions have been taken, both to the matter and the form of these pleas; and if the matter of them, or either of them, might constitute a good bar to the action, it may then be necessary to consider, whether that matter is pleaded with due propriety  and certainty, according to the established rules of pleading, so as to escape objection upon general demurrer. Both of them are, in effect, though not in form, special pleas of nul teil corporation. The first plea, in substance, avers, that, by the charter granted by the Act of Congress, of the 16th of May 1812, ch. 87, the capital stock of the bank was by the charter fixed and limited, to consist of 500,000 dollars, bona fide; -- that the whole capital stock was not bona fide filled up, and subscribed for; but, on the contrary, by a collusion between the commissioners, under whose direction the subscriptions were taken, and the subscribers, a large portion of the capital stock, to wit, 18,000 shares, amounting to 180,000 dollars, were filled up, by false and colourable subscriptions; the ostensible subscribers, after payment of the first instalments, were fraudulently permitted to withdraw the same; and future payments by them, were dipensed with, while they were still rated and held out, as stockholders, for the purpose of colourably  filling up the subscription of the whole capital stock, and electing a Board of Directors; and that, in this manner, and by these means,  and by no other, the bank was put into operation. \nThis plea is meant to rest upon two grounds, to sustain its legal propriety. First, that the subscription of the whole capital stock of 500,000 dollars, was a condition precedent to the putting of the bank into operation as a corporation. Secondly, that the collusion between the commissioners and the subscribers, for the 18,000 shares, being fraudulent, made their subscriptions a mere nullity. \nVarious answers have been given at the bar, to the legal sufficiency of the matters thus pleaded. In the first place, it is said, that the defendants are estopped, by the bond, to deny the legal existence of the corporation. In the next place, that the charter does not make the subscription of the whole capital stock, a condition precedent to the establishment of the bank. In the next place, that the question, whether the bank was regularly, and bona fide, put into operation, is matter not inquirable into, in a suit of this nature, but only upon a quo warranto, instituted by the government; and, in the last place, that the whole stock being, in fact, subscribed, the fraudulent intention and acts of the parties, did not make the subscription  of the 18,000 shares a nullity. Let us, then, consider what is the true construction of the charter itself, upon the points raised at the argument, supposing it to have been, (which in terms it is not,) incorporated into the plea, and therefore judicially before us. The first section of the Act of the 16th of May 1812, chap. 87, provides, \"that the subscribers to the Mechanics Bank of Alexandria, their successors and assigns, shall be, and hereby are created, and made a body politic, by the name and style of the Mechanics Bank of Alexandria; and by such name and style, shall be, and are hereby made able and capable in law, to have, purchase, &c., lands, &c. &c., and the same to sell, &c, to sue and be sued, &c. &c.; subject to the rules, regulations, restrictions, limitations, and provisions, hereinafter prescribed and declared.\" \nIn this section, there is no limitation as to the number of the subscribers necessary to constitute the corporation. The subscribers, whether many or few, are declared to be incorporated; and, unless there be some restriction  or limitation elsewhere in the Act, is is most manifest, that the Court cannot intend that any particular amount of subscriptions  is indispensable. \nThe second section provides, \"that the capital stock of said corporation, may consist of 500,000 dollars, divided into shares of ten dollars each, and shall be paid in the following manner;  that is to say: one dollar on each share, at the time of subscribing, one dollar on each share at sixty days, and one dollar on each share, ninety days after the time of subscribing; the remainder to be called for, as the President and Directors may deem proper; provided they do not call for any payment in less than thirty days, nor for more than one dollar on each share, at any one time.\" The argument of the defendants is, that \"may,\" in this section, means \"must;\" and reliance is placed upon a well known rule in the construction of public statutes, where, the word \"may,\" is often construed as imperative. Without question, such a construction is proper, in all cases where the legislature mean to impose a positive and absolute duty, and not merely to give a discretionary power. But no general rule can be laid down upon this subject, further than that that exposition ought to be adopted in this, as in other cases, which carries into effect the true intent and object  of the legislature in the enactment. The ordinary meaning of the language, must be presumed to be intended, unless it would manifestly defeat the object of the provisions Now, we cannot say, that there is any leading object in this charter, which will be defeated by construing the word \"may\" in its common sense, as imparting a power to extend the capital stock to 500,000 dollars, and not an obligation, that it shall be that sum and none other. It is by no means clear, from this section, that the legislature contemplated that there should be a capital of 500,000 dollars, on which the bank was to commence, or carry on its operations. On the contrary, three instalments only are required to be absolutely paid in, and the residue of the capital stock is to be paid in, only when the President and Directors may deem it proper.So that the capital stock, except at the discretion of the Board, may never extend beyond the amount of 150,000 dollars, for any practical purposes, either as security to the public, or as the basis of discounts. Now, the plea itself does not attempt to deny that all but 18,000 shares of the stock were, bona fide, subscribed for; so that, for aught that appears,  the capital stock, on which the bank carried on its operation, may have far exceeded that sum. It has been urged, that public policy requires such an imperative construction of the clause, for the public security. But it is a sufficient answer to that suggestion, that no such public policy is avowed, or can be inferred, from the general terms of the Act. When the legislature intends to restrict the capital stock of a bank, or to require any portion of stock or stockholders to be indispensable for its legal existence and operations, it is not uncommon to incorporate such a restriction into the charter. The omission to do so, is quite as significant  that the legislature did not deem such a restriction subservient to any manifest public policy. \nThe legislature might well presume, after prescribing the maximum to which the capital stock should extend, that the actual capital to be employed might safely be left to the discretion of the stockholders, or its agents. The 13th section of the charter contains provisions for the security of the public against over issues by the bank, and if any such restriction had been intended, as the argument supposes, it would naturally have  found a place. It declares, that no stockholder shall be answerable for any losses, deficiencies or failure of the capital stock, for any larger sum than the amount of the stock belonging to him; excepting, that if the total amount of the debt of the bank shall exceed twice the amount of its capital stock, over and above deposits, then the directors shall, in their private capacities, be liable for the excess; and if the directors shall not have property to pay the amount of the excess, then every stockholder shall be liable for their deficiencies, in proportion to their shares in the bank. Whether, therefore, the capital stock be great or small, if there be debts due from the bank, exceeding twice the amount of the capital stock; which may fairly be construed to mean the capital stock actually paid in; the stockholders become ultimately liable for the excess; and this liability furnishes, if not an ample, at least a reasonable security against the public evils, which the argument supposes might result from not requiring the whole capital to be subscribed for. At all events, we cannot perceive any clear legislative intention to make the subscription of the whole capital stock, a  condition precedent to the corporate existence of the bank, and unless it is so made by the charter, the matter of the plea falls, and cannot sustain the defence. \nI, however, this interpretation of the charter could not be supported, and the subscription of the whole capital stock were a condition precedent, the result, so far as the first plea goes, would not be varied. The fraud and collusion asserted in that plea, if admitted in its fullest manner, does not lead to the conclusion which it seeks to establish. If the subscription were fraudulently made, with a view to evade the provisions of the charter, the law will hold the parties bound by their subscriptions, and compellable to comply with all the terms and responsibilities imposed upon them, in the same manner, as if they were bona fide subscribers. It will not make the subscription itself a nullity, but it will deprive the subscribers of the power of availing themselves of the same. The third section of the Act manifestly contemplates cases of fraudulent subscription, and provides, \"that all the subscriptions and shares obtained in consequence thereof, shall be  deemed and held to be for the sole and exclusive  use and benefit of the persons subscribing, or in whole behalf the subscriptions respectively shall be declared to be made, at the time of making the same; and all bargains, contracts, promises, agreements, and engagements, in any wise contravening this provision, shall be void; and the person, &c. subscribing, &c. shall have, enjoy, and receive the share or shares respectively, &c., and all the interest and emoluments thence arising, as freely, fully, and absolutely, as if they had severally and respectively paid the consideration  therefor; any such bargain, &c. to the contrary notwithstanding.\" \nThis section seems to us conclusive upon the point. It avoids all bargains contravening the provisions in respect to subscriptions, and gives to the subscriptions the same effect as if they were bona fide made for the real use and benefit of the subscribers; and independently of this provision, it would be extremely difficult to maintain, upon general principles of law, that a private fraud, between the original subscribers and commissioners, could be permitted to be set up, to the injury of subsequent purchasers of the stock, who became bona fide holders, without any participation  or notice of the fraud. \nFor these reasons, we are of opinion that the matter of the first plea, even if it had been well pleaded, would constitute no bar to the action. \nThe second plea is disposed of by the construction of the charter already intimated, and is further open to fatal objections, from its deficiency of proper averments, and want of legal certainty. It makes no averment of the amount of the capital stock, or of the necessity of the whole being subscribed for, before the bank is to be put in operation. \nIt asserts no fraudulent combination or subscription; but in the most general terms, without any certainty as to facts or circumstances, alleges, that the capital stock was not filled up by any subscription, opened and conducted in pursuance of the Act, so as to entitle the subscribers to bring the action; and that the subscribers did unjustly and unlawfully arrogate to themselves the corporate name, style, and privileges, without the capital stock having been filled up by subscription, or the corporation having been constituted and composed of actual subscribers, pursuant to the directions of the Act. In point of substance, as well as form, it is bad, upon the established  rules of pleading. \nThis view of the case renders it wholly unnecessary to consider the point made as to the estoppal, and the necessity of a quo warranto; on which, therefore, we give no opinion. \nThe third and fourth pleas are intended to be pleas of general performance; the third is so, in fact, and pursues the condition  of the bond. The fourth is argumentative, and assumes a particular legal interpretation of the condition, that is to say, that the condition covers only wilful defaults, and breaches of duty, and is no security for competent skill and reasonable diligence in the discharge of duty, but only for honesty. To these pleas special replications were filed, assigning special breaches of duty, upon which the parties were at issue, and upon this, and all the other issues in the cause, the jury returned a verdict for the plaintiffs. No exception has been taken to the sufficiency of these replications. \nThe fifth plea states a general performance of duty, in obedience to and in pursuance of the \"directions, rules, orders, usages and customers of trade and business ordained, established and practised in the said bank, by the authority of the said President and  Directors.\" It is, therefore, argumentative, and supposes that compliance with the rules, orders, usages, &c., established and practised by the President and Directors, whatever they may be, whether within the scope of their power or not, would be a good and true discharge of duty. To this plea, a general replication was put in, \"that the said cause of action, in the declaration mentioned, did accrue, as in the said declaration and breaches are set forth, without this, that the matters set forth in the said plea, are true,\" and this the plaintiffs pray may be inquired of by the country; and the defendants joined in the issue; upon which a verdict was found in favour of the plaintiffs. An exception has been taken at the argument to this replication, upon the ground that it ought to have assigned a special breach, and that the omission is not cured by the verdict. There is no question that the replication is not drawn with technical accuracy and correctness; and if the plea be a good plea of general performance, it is clear, both upon principle and authority, that a special breach ought to have been assigned in the replication; and the objection, if insisted upon by way of demurrer,  for that cause, would have been insuperable. The reason is, that the law requires every issue to be founded upon some certain point, that the parties may come prepared with their evidence, and not be taken by surprise, and the jury may not be misled by the introduction of various matters. A covenant or condition for general performance, is broken by any single omission of duty, and no inconvenience can arise from stating the particular breach with suitable certainty. But it does not follow, that if not so stated, the objection may be taken in any stage of the suit. The rule as to certainty in pleadings, is framed for the benefit of the parties, and may be waived by them, and in many cases, both at common law, and by the statute of jeo fales, defects in this particular are cured by a verdict. It is true, that in  a declaration upon a covenant for general performance of duty, if no breach be assigned, or a breach which is bad, as not being in point of law within the scope of the covenant, the defect is fatal, even after verdict. Com. Dig. Plead., p. 14. But that is not the present case. Here the declaration does assign a good breach, by the non-payment of the penal  sum stated in the bond. The defendants disclose the condition of the bond upon oyer, and set up a general performance of it; and the replication, though inartificially drawn, puts in issue the whole matter of the defence, and denies the performance of it. The verdict has found that the condition was not performed, and consequently, upon the whole record, the non-payment of the penal sum is admitted, and the excuse for it is negatived. The replication, then, does assert a breach, though in too general a form. It ought to have assigned a special breach; but the general breach includes it, and the verdict having found the general breach, there is, upon principles, no reason shown against the plaintiff's right of recovery. \nIt is exactly like the case of a declaration upon a general covenant of the like nature, where a particular breach ought to be assigned; and yet if a general breach be assigned, the defect is cured, by a verdict for the plaintiff. Com. Dig. Plead., 48. The objection, then, to the replication to the fifth plea, cannot now be sustained. \nIt is not necessary to notice the remaining pleas, upon which issues were joined, because  a verdict has been found  in all of them in favour of the plaintiffs, however liable to objection some of them may be, and particularly the seventh plea of non damnificatus, as an answer to the declaration. They set up special defences, and the plaintiffs were not bound to do more than traverse them. \nThe instructions of the Court, given and refused at the trial, constitutes the next subject of inquiry. It is conceded, that if the instructions given on the prayer of the plaintiffs were correct, as to the issues on the third and fourth pleas, the qualifications annexed to them by the Court in their applications to the other issues, were perfectly proper. \nThe first instruction is, in substance, that if Minor, upon his leaving the bank, failed to pay over or to account to the bank for any portion of the moneys of the bank, received by him as Cashier; then the jury may, and ought to infer that the moneys so unaccounted for, were wilfully wasted by Minor, or applied to his own use; and under such circumstances, the defendants are liable for the same. We can perceive no error in this instruction; the presumption of a wilful waste or misapplication of the funds of the bank by the Cashier, was a natural conclusion,  from his failure to pay over  or account for the same. It was not put to the jury as a presumption capable of being rebutted by evidence showing a loss by negligence or accident. If such a loss actually occurred, it was incumbent on the Cashier to prove it, and his total omission to offer any such proof, which, from the nature of the case, must be more within his own power, than that of the Bank, ought to lead the jury to the presumption of the non-existence of any such negligence, or accidental loss. \nIt has been argued, that this instruction is the more material and injurious to the defendants, because it proceeds in the latter part, upon a misconstruction of the true import of the condition of the bond. The condition, that Minor shall \"well and truly execute the duties of Cashier\" of the bank, is said to be merely a stipulation for honesty, in the discharge of the duties, and not for skill, capacity, or diligence. We are of a different opinion. \"Well and truly to execute the duties of the office,\" includes not only honesty, but reasonably skill and diligence. If the duties are performed negligently and unskilfully -- if they are violated, from want of capacity or  want of care, they can never be said to be \"well and truly executed.\" The operations of a bank, require diligence, with fitness and capacity, as well as honesty, in its Cashier; and the security for the faithful discharge of his duties, would be utterly illusory, if we were to narrow down its import, to a guarantee against personal fraud only. \nThe remarks already made, dispose of the second and third instructions prayed for by the plaintiffs. These instructions, in substance, declare that the sureties are liable upon the bond, for any wilful or permissive misapplication of the moneys of the bank, which the Cashier knowingly made, or suffered, without authority, whereby the same moneys have been lost to the bank. There seems no ground, upon which to rest any reasonable objection to such a direction to the jury. \nWe may now proceed to the consideration of the three instructions prayed for, in behalf of the defendants. The first is, in substance, that if it were the established usage and practice of the bank, that the Cashier might, in his discretion, permit customers to overdraw, and to have checks and notes charged up, without present funds in the bank; and for the Cashier to receive  and pass, as cash, checks, and drafts upon other banks; and if the balances appearing against such persons charged in the books of the bank, arose out of the exercise of such discretion by the Cashier, in the course of the ordinary transactions of the bank, and pursuant to the established usage and course of business there adopted, and generally known to the President and Directors, practised and continued with their knowledge, for a series of years from the commencement of the bank, to the termination  of Minor's cashiership, though the existence of such balances, or the particular circumstances attending them, were not formally communicated to the Board of Directors; the jury may infer the approbation, assent, and acquiescence, of the President and Directors, as to such usage and course of business. \nThe refusal of this instruction, is matter of no small embarrassment and difficulty to this Court from the terms in which it is couched, and the issues on the sixth, eighth, and ninth pleas, to which, alone, it can be properly applied. Those issues put to the jury the question, whether the acts of the Cashier, whatever might be their character or kind, were, or were not, done  by the wrong, connivance and permission of the President and Directors of the Bank. The point of the instruction is, that the established usage and practice of the bank for a long period, known to the President and Directors, does afford a presumption of the approbation, assent, and acquiescence of the President and Directors, as to such usage and practice; though the balances resulting therefrom, were not formally communicated to the Directors. From the shape of the prayer, it is undoubtedly meant that such usage and practice was known to the President and Directors, as a board, and in their official character, and received their approbation as such. In a general view, with reference to the principles of the law of evidence, we are not prepared to admit, that such a presumption could not ordinarily arise. The ordinary usage and practice of a bank, in the absence of counter proof, must be supposed to result from the regulations prescribed by the Board of Directors; to whom, the charter and by-laws, submit the general management of the bank, and the control and direction of its officers. It would be not only inconvenient, but perilous, for the customers, or any other persons dealing  with the bank, to transact their business with the officers upon any other presumption. The officers of the bank are held out to the public as having authority to act, according to the general usage, practice, and course of their business; and their acts within the scope of such usage, practice, and course of business, would, in general, bind the bank in favour of third persons possessing no other knowledge. In the case of the Bank of the United States vs. Dandridge, (12 Wheat. 64,) the subject was under the consideration of this Court; and circumstances far less cogent than the present to found a presumption of the  official acts of the board, were yet deemed sufficient to justify their being laid before the jury, to raise such a presumption. If, therefore, the usage and practice alluded to, in the instruction, were within the legitimate authority of the board, and such as its written vote might justify, there would be no question, in this Court, that it ought to have been given. \n The pertinency of such a presumption, to these issues, cannot admit of dispute. But the real difficulty remains to be stated. Assuming that the Court, upon these issues, ought to  have given the instruction prayed for, the question is whether upon the whole record, that is such an error as now justifies this Court in a reversal of the judgment. If the instruction had been given, and thereupon, a verdict upon these issues had been found for the defendants, could any judgment have been given upon these issues, in favour of the defendants; or ought the judgment, non obstante veredicto, to have been for the plaintiffs? If it ought, then the error becomes wholly immaterial; since, in no event, could the instruction, in point of law, have benefited the defendants. Upon deliberate consideration, we are of opinion, that the pleas, on which these issues are founded, are substantially bad. They set up a defence for the Cashier, that his omission \"well and truly to perform\" the duties of Cashier, was, by the wrong, connivance and permission of the Board of Directors. The question then comes to this, whether any act or vote of the Board of Directors, in violation of their own duties, and in fraud of the rights and interest of the stockholders of the bank, could amount to a justification of the Cashier, who was a particeps criminis. \nWe are of opinion, that it could  not. However broad and general the powers of the direction may be, for the government and management of the concerns of the bank, by the general language of the charter and by-laws, those powers are not unlimited, but must receive a rational exposition. It cannot be pretended, that the board could, by a vote, authorize the Cashier to plunder the funds of the bank, or to cheat the stockholders of their interest therein. No vote could authorize the directors to divide among themselves, the capital stock, or justify the officers of the bank in an avowed embezzlement of its funds. The cases put are strong, but they demonstrate the principle only in a more forcible manner Every act of fraud -- every known departure from duty, by the board, in connivance with the Cashier, for the plain purpose of sacrificing the interest of the stockholders, though less reprehensible in morals, or less pernicious in its effects, than the cases supposed, would still be an excess of power, from its illegality -- and, as such, void, as an authority to protect the Cashier, in his wrongful compliance. Now, the very form of these pleas, sets up the wrong and connivance of the board as a justification; and  such wrong and connivance cannot, for a moment, be admitted as an excuse for the misapplication of the funds of the bank, by the Cashier. \nThe instruction prayed for, proceeds upon the same principles, as the pleas. It supposes, that the usage and practice of  the Cashier, under the sanction of the board, would justify a known misapplication of the funds of the bank. What is that usage and practice, as put in the case? It is a usage to allow customers to overdraw -- and to have their checks and notes charged up, without present funds in the bank; stripped of all technical disguise -- the usage and practice, thus attempted to be sanctioned, is a usage and practice to misapply the funds of the bank; and to connive at the withdrawal of the same, without any security, in favour of certain privileged persons. Such a usage and practice, is surely a manifest departure from the duty, both of the Directors and the Cashier, as cannot receive any countenance in a court of justice.It could not be supported by any vote of the directors, however formal; and, therefore, whenever done by the Cashier, is at his own peril, and upon the responsibility of himself and his sureties. It is  any thing but \"well and truly executing his duties, as Cashier.\" This view of the matter, disposes of this embarrassing point, and also of the second instruction prayed for, by the defendants; which substantially turns upon the like considerations. \nThe third instruction prayed for, in effect, was, that the Court would instruct the jury, that the defendants are not chargeable in this action for the conduct of Minor in the duties distinctly appertaining to the office of teller, whilst he was Cashier in the bank, although those duties were duly assigned to him; because it constituted a distinct office, and the accounts and proceedings of the teller, were at all times kept distinct, and in separate books, from those of the Cashier. In our judgment, this instruction was properly refused. By the fifth article of the second section of the by-laws of the bank, the duties of the Cashier are generally pointed out; and among other things, it is provided, that he shall \"do and perform all other duties, that may from time be required of him by the President or Board of Directors, relative to the affairs of the institution.\" On the appointment of Minor as Cashier, who had previously acted as  teller, the directors passed a vote, \"that the present officers of the bank, do the whole duties of the bank.\" From the other circumstances of the case, the inference is irresistible, that the duties of teller were, under this vote, assigned to the Cashier. If so, then the performance of these duties constituted thenceforth a part of the duties of the Cashier, as such; and as much so, as if they had been originally affixed to the office of Cashier. There is nothing in the nature of the duties of teller, incompatible with those of Cashier; on the contrary, as is well known, Cashiers often perform the functions of both. The circumstance, that the office of teller, and distinct accounts, and books, were still kept up, does  not vary the legal result. It was a matter of mere convenience and regularity, for the government of the bank, in its own business; and probably had no higher, or other origin, than to preserve the same forms and series of accounts, which the bank had adopted at its first institution. The office of teller had a nominal, but not a real, existence; and, from the time of the union of the duties in the Cashier, as such, there was a legal extinguishment of  the separate official character. If the Cashier had originally had the duties of book-keeper  and accountant assigned to him, and, in consequence thereof, had kept distinct account books in the bank, no one would have imagined, because he kept separate account books, as Cashier, for his own convenience, or, according to the ordinary usage of banks; that he would not, under his bond, have been responsible for mal-conduct, in keeping the general account books of the bank, to its loss or injury. The bond of the Cashier must be construed to cover all defaults in duty, which are annexed to the office from time to time, by those who are authorized to control the affairs of the bank; and sureties are presumed to enter into the contract, with reference to the rights and authorities of the President and Directors, under the charter and by-laws. \nThe remaining inquiry is, as to the effect of the nolle prosequi, which the plaintiffs entered against Minor, after he had pleaded, and after judgment was given against the sureties, in favour of the plaintiffs, upon all the pleadings interposed by the sureties. The pleas of Minor were, mutatis mutandis, the same as the third, fourth, fifth,  seventh, and ninth pleas, put in by the sureties; and the question arises, whether under such circumstances, (no objection to the judgment appearing to have been made by the sureties,) this proceeding is an error, for which that judgment ought to be reversed. It is material to state, that the bond on which the suit is brought, is a joint and several bond. Under such circumstances, the plaintiff might have commenced suit against each of the obligors, severally, or a joint suit against them all. But in strictness of law, he has no right to commence a suit against any intermediate number. He must sue all or one. The objection, however, is not fatal to the merits, but is pleadable in abatement only; and if not so pleaded, it is waived by pleading to the merits. The reason is, that the obligation is still the deed of all the obligors who are sued, though not solely their deed; and therefore, there is no variance in point of law, between the deed declared on, and that proved. It is still the joint deed of the parties sued, although others have joined in it. This doctrine is laid down, and very clearly illustrated, in Mr. Serjeant Williams's note to the case of Cabell vs. Vaughan,  (1 Saund. R. 291.  Note 2,) where all the leading authorities are collected. If, therefore, the present suit had been brought against the four sureties only, and they had omitted to take the exception by a plea in abatement, the judgment in this case would have been unimpeachable. Is the legal predicament of the plaintiffs changed, by having sued all the parties, and subsequently, entered a nolle prosequi, against one of the obligors? If not in general, then, is there any legal difference, where the party in whose favour the nolle prosequi is entered, is not a surety, but a principal in the bond? not indeed, so named in the bond, but the suretyship resulting as a necessary inference from the nature and terms of the condition. \nThese questions must be decided by authority, if any such exist; if none can be found, then, they must be decided by analogy and principle. It may be proper, in this view, again to notice the fact, that this suit is on a joint and several bond; that the defendants severed in their pleas from the principal; that the trial of the issues, (which undoubtedly ought to have been, by the regular course of practice, deferred until the cause was at issue,  as to all the parties, or the steps of the law taken to bring them into default;) does not appear upon the record to have been opposed, and that no motion was made in arrest of judgment, or for a postponement, until a trial of the issues upon the pleas of the principal might have been had. What would have been the proper proceedings under such circumstances, whether to try all the issues by the same jury, and have damages assessed at the same time against all the defendants; or whether there might have been several trials, and several assessments of damages; and whether, if such several assessments had been made, and differed in amount, any, and what judgment, ought to have been entered; are points upon which the Court does not think it necessary to give any opinion. \nThe nature and effect of a nolle prosequi, was not well defined, or understood, in early times; and the older authorities involve contradictory conclusions. In some cases it was considered in the nature of a retraxit, operating as a full release and discharge of the action, and, of course, as a bar to any future suit. In other cases it was held not to amount to a retraxit, but simply to an agreement not to proceed  further in that suit, as to the particular person, or cause of action, to which it was applied. And this latter doctrine has been constantly adhered to, in modern times, and constitutes the received law. In cases of tort against several defendants, though they all join in the same plea, and are found jointly guilty, yet the plaintiff may, after verdict, enter a nolle prosequi, as to some of them, and take judgment against the rest. The reason is said to be, that the  action is in its nature joint and several; and, as the plaintiff might originally have commenced his suit against one only, and proceeded to judgment and execution against him alone, so he might, after verdict against several, elect to take his damages against either of them. A fortiori, the same doctrine applies where the defendants sever in their pleas. Indeed, in fort, as we shall hereafter see, it does not seem to have been denied, that cases might exist, in which, if the defendants severed in their pleas, the plaintiff might, after judgment against one, have entered a nolle prosequi as to the others. The doubt was, whether he could do so before judgment, which was finally settled in favour of the right,  and in such cases, where several damages were assessed against the different defendants, the difficulty was afterwards cured, by entering a nolle prosequi as to all but one defendant. And in the same manner, a misjoinder of improper parties is sometimes aided. The authorities on this subject, will be found summed up with great accuracy, in a note of Mr. Serjeant Williams, to the case of Salmons vs. Smith, (1 Saund. R. 207, note 2.) In the same note, the learned editor adds, \"if an action is brought upon any contract against several defendants, who join in their pleas, and a verdict is found against them, it is apprehended the plaintiff cannot enter a nolle prosequi against any of them; because the contract being joint, the  plaintiff is compellable to bring his action against all the parties thereto; and he shall not, by entering a nolle prosequi, prevent the defendants against whom the recovery has been had, from calling upon the other defendants for a rateable contribution.\" \nSo far as this reason goes, it is inapplicable to the present case; for, the defendants are entitled not only to a rateable, but a full, contribution over, for the entire sum, against the party in  whose favour the nolle prosequi has been entered; and consequently, the nolle prosequi does not touch their rights. It is observable also, that the language is qualified by the words \"who join in their pleas;\" which are printed in italics, and may therefore fairly be presumed to have been inserted by the learned editor, ex industria, with a view to point out an implied distinction between cases, where there is a severance, and where there is a joinder in the pleas. If there be any such distinction, it is favourable to the present case; for, the plaintiffs severed in their pleas from their principal. The learned editor proceeds to state, that, \"if in such actions the defendants sever in their pleas, as where one pleads some plea which goes to his personal discharge, such as bankruptcy, ne unques executor, and the like, not to the action of the writ, the plaintiff may enter a nolle prosequi, as to him, and proceed against the others; for, with respect to the bankruptcy, the statute of 10th Ann, chap. 5, makes the  other defendant, who is not a bankrupt, liable for the whole debt; and therefore, in that particular instance the case is exactly the same, as where an action  is joint and several. So the plea of ne unques executor, does not deny the cause of action; but only, that he is one of the representatives of the testator.When the defendants sever in their pleas, with this limitation as to the extent of the pleas in action upon contracts, it is immaterial, what is the form of the action; for, the plaintiff may enter a nolle prosequi against any of them, before verdict, and proceed against the rest.\" \nThe learned editor is fully borne out, in the general position here stated, by the case of Noke et al. vs. Ingraham, (Wilson R. 89,) to which he refers. The only question is, whether there is any such qualification upon it, as that the plea should be one going exclusively in personal discharge, and not to the merits? That is the point of real difficulty.The case in 1 Wilson R. 89, was upon several promises made by the defendants, as partners. One of them pleaded a former judgment; and issue being taken upon the replication of nul teil record, judgment was given against him, and a writ of inquiry of damages awarded, and final judgment. The other defendant pleaded his bankruptcy, and upon this, issue was joined; and afterwards the plaintiff entered  a nolle prosequi, as to him. Upon error brought, the principal objection was, that the nolle prosequi, upon a joint contract of two, was a discharge of both. Mr. Chief Justice Lee said, \"it is agreed, on all hands, that in trespass against several, the plaintiff may enter a nolle prosequi, as to one, and that will not discharge the other; and therefore, I cannot see, why it may not be done in this case; and I do not see, how so proper an advantage can be taken upon the statute of Ann, as to the bankrupt, as is now taken by the entry of this nolle prosequi.\" Wright, Justice, was of the same opinion, and so was Dennison, Justice; and the latter added, that \"the plea of the bankrupt is not a plea to the action, but only a personal discharge; but that if one defendant was to plead a plea that was to go to the action of the writ, he thought it might then have a different consideration, but that this is not the case here. This case is exactly the same, as when an action is joint and several; for, the statute 10th Ann, ch. 15, has made the partner not a bankrupt, liable for the whole debt. This case is the very same, as to this matter of entering a nolle prosequi, as if it had been trespass  against several defendants.\" \nIt is apparent, from this summary of the reasoning of the Court, that the case turned upon the consideration, that the contract, by the operation of the statute of Ann, was several as well as joint; and all the Court concurred, that, under such circumstances, the nolle prosequi would be good, being governed,  in the analogy, to trespass, where the cause of action was several as well as joint. What was stated by Dennison, Justice, was not the exclusive ground of his particular opinion, but only a suggestion, that the case might be, (not would be,) different upon a plea to the merits. Now, the general reasoning comes very close to the case at bar; for here the bond is several, as well as joint, and an action might have been maintained severally against the defendants; and what is not immaterial to be considered, all the parties were retained, who had joined in their pleas, and between whom there existed a right of mutual contribution.Even in the case of bankruptcy, the practice is, in England, to require all the joint contractors to be sued, as is proved by the case of Bevil vs. Wood, (2 Maul & Selw. 23,) which makes it really less strong than  a joint and several contract. \nThe case of Moravia, and another, vs. Hunter & Glass, (2 Maul & Selw. 444,) which has been relied on, at the bar, was assumpsit against four defendants, two of whom were not served; D., one of the other defendants, pleaded -- 1. Non assumpsit. 2. A special plea of bankruptcy. 3. A general plea of bankruptcy, as to whom the plaintiff entered a nolle prosequi. The other defendant pleaded non assumpsit, and a verdict was found against him. The form of the nolle prosequi was, that the plaintiffs, inasmuch as they \"cannot deny the several matters above pleaded, by the said D., freely here in Court confess, that they will not further prosecute their suit against him.\" It was moved, in arrest of judgment, that the nolle prosequi, so entered, had confessed the non assumpsit, as well as the other pleas; and therefore, the other defendant was also discharged, and the distinction of Dennison, Jus., in Noke vs. Ingraham (1 Wils. R. 89,) was relied on. But the Court held, that the nolle prosequi was, in effect, only a confession; that as far as regards D., he had a defence in the matters pleaded by him. This case does not, in terms, overrule the distinction, but  it does establish, that the Court upheld the nolle prosequi, notwithstanding the pleadings did set up a plea to the merits, and not merely a personal discharge. The contract does not appear  to have been joint and several; and to have arrived at its conclusion, the Court must have considered, that the confession of the plaintiffs, that they could not deny the several matters above pleaded, ought not to be deemed an admission of the truth of the pleas, except so far as to waive further proceedings in the suit, against the party who sets them up as a defence. This conforms to the definition given in the book, of a nolle prosequi. \"It is,\" as Serjeant Williams states, (1 Saund. R. 207 note 2,) \"a partial forbearance by the plaintiff to proceed  any further, as to some of the defendants, or to part of the suit, but still he is at liberty to go on as to the rest.\" \nThese are the only cases in England, which the researches of counsel have brought to our notice, bearing directly on the point before the Court; and upon looking into the elementary treatises and books of practice, we have not been able to find any more general doctrine. Indeed, the latter confine themselves  exclusively to the enunciation of the principles above stated, with the qualifications annexed to them in these authorities, as, see 1 Chitty's Plead., 32, 33. 546. Com. Dig. Pleader, X 2. 3. 5. 2 Tidd's Practice, 630. 2 Arch. Practice, 219, 220. 2 Lilly's Practical Register, 280. In America, the cases have gone a step further. In Hartness vs. Thompson, (5 John. R. 160,) where an action was brought against three, upon a joint and several promissory note, and there was a joint plea of non assumpsit, and the infancy of the defendants, that was set up at the trial; it was held no ground for a nonsuit; but the plaintiff upon a verdict found in his favour against the other two defendants, might enter a nolle prosequi, as to the infant, and take judgment upon the verdict against the others. In Woodward vs. Marshall, (1 Pick. Reports, 500,) in the Supreme Court of Massachusetts, upon a joint contract and suit against two persons, one of whom pleaded infancy, it was held that a nolle prosequi might be entered, as to the infant, and the suit prosecuted against the other defendant. These decisions were admitted to be against the cases of Chandler vs. Parker, (3 Esp. Rep. 76,) and Jaffray  vs. Frebain, (5 Esp. Rep. 47,) but the Court thought the practice adopted by themselves was most convenient, and therefore gave it a judicial sanction. These cases were distinguishable from that in 1 Wilson's R. 89, in the fact, that the plea went, not only in personal discharge, but proceeded upon a matter which established an original defect in the joint contract; whereas the plea of bankruptcy was for matter arising afterwards. The distinction was not thought to be sound. Indeed, the Court seem to have considered the question rather as a matter of practice, to be decided upon convenience and policy, than as matter of principle. \nHitherto the question has been discussed, as if the nolle prosequi had been entered before, when in fact it was entered after judgment against the defendants. The next inquiry is, whether this creates any substantial difference in the case. In Lever vs. Salkeld, (2 Salk. 455,) in trespass against two defendants, and verdict for the plaintiff, one being an infant, the plaintiff took judgment against the other, and entered a non pros. after the judgment against the infants, and took out execution upon the judgment; upon error brought, it was objected  that  a non pros. could not be entered after judgment, for the judgment could not vary from the demand of the writ. It was argued on the other side, that torts were several, and that a non pros might be entered after, as well as before judgment, and cases to this effect were cited. Lord Holt is reported to have said, that he supposed there were interlocutory judgments, wherein it might well be; but a final judgment differed, for that being once wrong, a subsequent entry would not set it right. The case was however adjourned, and nothing more appears of it. This case is not very accurately reported, and it may have been that the judgment was joint, and the nolle prosequi afterwards, which would remove the objection to its authority. The circumstance of its being adjourned, shows that the doctrine thrown out by Lord Holt, was not deliberately considered by him, and was deemed not clear. In truth, it is directly against the case of Parker vs. Lawrence, decided in the Exchequer chamber, and reported in Hobart's Rep. 70. That was trespass against three; one pleaded not guilty, and the other two a justification, to which the plaintiff replied, and there was a demurrer to  the replication. Pending the demurrer, the issue was tried, and damages and judgment given against him. After judgment, the plaintiff entered a nolle prosequi against the other two, and a writ of error was afterwards brought by all three; and it was alleged for error, that the nolle prosequi discharged all three. It was agreed by the Court, (in conformity with the doctrine then prevailing,) that if the nolle prosequi had been before judgment, it would have discharged the whole action; and so it would, if the judgment had been against them all, and then the plaintiff had entered a nolle prosequi against the other two; for a nonsuit, or release, or other discharge of one, discharges the rest.But here the action was at an end, as to the one, by the judgment against him, and no judgment was had against the others, so that they were divided from him, and are not subject to the damages found against him. It was adjudged that he was not discharged, and there was no error. This case is of great authority, having been deliberately decided by a very high Court. It is cited as authority, by Chief Baron Comyns, in his digest, (Pleader, X. 5,) who also cites (Pleader, X. 3,) the case in Salkeld,  as one in which there was a final judgment against all the defendants.The reason of the thing would seem entirely in favour of the judgment in Hobart, and it stands supported by a much earlier case, in the year Books, (14 Edw. 4; Brooks abridg. Trespass, pl. 331.) If the plaintiff may, in any case, recover a judgment against one on a joint action against two, who sever in their pleadings, it is wholly immaterial to the regularity and effect of that judgment, in what stage of the cause the suit has ceased to be prosecuted  against the other. It is sufficient, that in the event the judgment is consistent with the general principles of the action. If a nolle prosequi may be entered after verdict, and before judgment, without discharging the other party, there is no good reason why it may not be done after judgment, when there has been no proceeding which binds the plaintiff to consummate a judgment  against the party whom he wishes to dismiss. In each case the judgment upon the whole record is consistent with the writ. \nThe result of this examination into authorities, is, that there is no decision exactly in point, to the present case; that there is no distincion  between entry of a nolle prosequi before, and the entry after judgment, applicable to the present facts. That the authorities, and particularly the American, proceed upon the ground that the question is matter of practice, to be decided upon considerations of policy and convenience, rather than matter of absolute principle; and that therefore this Court is left at full liberty to entertain such a decision as its own notions of general convenience, and legal analogies would lead it to adopt. We are of opinion, that where the defendants sever in their pleadings, a nolle prosequi ought to be allowed. It is a practice which violates no rules of pleading, and will generally subserve the public convenience. In the administration of justice, matter of form, not absolutely subjected to authority, may well yield to the substantial purposes of justice. \nJudgment affirmed, with costs. \nDissent by:", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the Court. -- \nThis is the same cause which came before this Court at February term, 1823, and is reported in 8 Wheat. o91. The cause having been remanded to the District Court of Louisiana for farther proceedings, the libel or information was there amended, so as to become, technically, an exchequer information of seizure; and the parties being at issue upon the question of forfeiture, the jury returned a verdict for the claimants, upon which judgment was rendered in their favour. Upon the writ of error now brought up on this last judgment, two grounds for reversal have been asserted in the assignment of errors spread  upon the record, and the Attorney General has now submitted them, after a brief exposition, to the consideration of the Court. \nThe first is in substance the same question which was decided by this Court, upon the former appeal, and is presented in the shape of a re-argument by the District Attorney. Upon this it is unnecessary to say more, than that we adhere to the opinion formerly expressed, and can perceive no reason for changing it. It is not the habit of this Court to consider points again open for discussion, which have been once deliberately decided, and have furnished the ground work of the judgment already rendered in the same cause, in a former stage of its presentation here. \nThe second ground is, that Messrs. Hazard & Williams, in whose behalf the claim in this case was interposed, are not the real owners of the wine under seizure, but the same was owned by one Charles Hall; so that the claimants are not entitled to any judgment of restitution. \nThis objection is founded upon a mistaken view of the time, nature and order of the proceedings proper in suits in rem, whether arising on the admiralty or exchequer side of the Court. In such suits, the claimant is an actor,  and is entitled to come before the Court in that character only, in virtue of his proprietary interest in the thing in controversy; this alone gives him a persona standi in judicio. It is necessary that he should establish his right to that character, as a preliminary to his admission as a party, ad litem, capable of sustaining the litigation. He is therefore, in the regular and proper course of practice, required in the first instance, to put in his claim, upon oath, averring in positive terms his proprietary interest. If he refuses so to do, it is a sufficient reason for a rejection of his claim. If the claim be made through the intervention of an agent, the agent is in like manner required to make oath to his belief of the verity of the claim; and if necessary, he may also be required to produce and prove his authority, before he  can be admitted to put in the claim. If this is not done, it furnishes matter of exception, and may be insisted upon by the adverse party, for the dismissal of the claim. If the claim be admitted upon this preliminary proof, it is still open to contestation, and, by a suitable exceptive allegation in the admiralty, or, by a correspondent  plea in the nature of a plea in abatement, to the person of the claimant, in the exchequer, the facts of proprietary interest, sufficient to support the claim, may be put in contestation, and formally decided. It is in this stage of the proceedings, and in this only, that the question of the claimant's right is generally open for discussion. If the claim is admitted without objection, and allegations or pleadings to the merits are subsequently put in; it is a waiver of the preliminary inquiry, and an admission that the party is rightly in Court, and capable of contesting the merits. If indeed, it should afterwards appear, upon the trial, even after the merits have been disposed of in favour of the claimants, that the claimant had, in reality, no title to the property; but that the same was the property of a third person, who was not represented by the claimant, or had an adverse interest, or whose rights had been defrauded, it might still be the duty of the Court to retain the property in its own custody, until the true owner might have an opporiunity to interpose a claim, and receive it from the Court. But such cases can rarely occur; and are applications to the discretion of  the Court, for the furtherance of justice; and, in no shape matters, which the original promovent could have a right to require at its hands. \nFrom this review of the practice, as to claims in proceedings in rem, it is obvious that the objection now relied on, however apparent it might be from the evidence disclosed upon the record, could not be insisted on as matter of error. In a strict sense, however, this being a writ of error upon an exchequer information tried by a jury, the evidence given at the trial is not properly before us; and as a common law proceeding, the affidavit of Mr. Henner constitutes no part of the record. But, even if that affidavit were admissible, and the objection were now open, it is by no means clear, that it would be available. The property was by the consent of Hall sold and conveyed to Messrs. Hazard & Williams, in trust for himself. If that conveyance was fraudulent as to creditors, it was not absolutely void, and only voidable by them. And, at all events, we cannot but see that they had full authority to interpose this claim, by the consent of the  real owner; and the irregularity, if any, prejudices no adverse right, and interferes  with no rule of justice. \nThe judgment of the District Court must therefore be affirmed. But a certificate of probable cause of seizure will be  granted, as such probable cause is not denied to exist, and indeed is apparent from the verdict of the first jury. \nThis cause came on, &c. on consideration whereof, It is considered and adjudged by this Court, that there is no error in the judgment of the said District Court of Louisiana in the premises, and that the same be and hereby is affirmed. And it is further ordered and adjudged, that there was a reasonable cause of seizure of the wines, and promises set forth, in the information, and that a certificate thereof be entered of record accordingly; and that the cause be remanded with directions to the District Court of Louisiana to make restitution to the claimants, and otherwise proceed in the premises, according to law. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the  opinion of the Court. \nThis cause comes before us, upon a writ of error to the Circuit Court of the District of Kentucky. The original action was brought by the plaintiffs in error, against the defendants, on the 16th of August 1820; to recover the value of certain iron castings, sold and delivered to them by the plaintiff. The defendants pleaded non assumpserunt, and non assumpserunt, within five years; (the latter being the time prescribed by the Kentucky statute of limitations, in cases of this nature;) upon which pleas, the parties were at issue; and at the trial, a verdict was returned by the jury for the defendants; upon which, judgment passed in their favour. A bill of exceptions was taken to certain points, ruled by the Circuit Court at the trial; and the validity of these exceptions, has constituted the ground of the argument for the reversal, which has been insisted on in this Court. \nThe first objection urged, is the exclusion of the deposition of a Mr. Mockbee, which was offered by the plaintiff as testimony in the cause. The reason assigned for the exclusion, is, that there was no proof by the certificate of the magistrate, or otherwise, that the deposition was reduced  to writing, in the presence of the magistrate. This is a point altogether dependant upon the construction of the Act of Congress of the 4th of September 1789, ch. 20; under the authority of which the deposition purports to be taken. The authority to take testimony in this manner, being in derogation of the rules of the common law, has always been construed strictly; and, therefore, it is necessary to establish, that all the requisites of the law have been complied with, before such testimony is admissible. The Act of Congress provides, \"That every person deposing as aforesaid, shall be carefully examined and cautioned, and sworn or affirmed, to testify the whole truth, and shall subscribe  the testimony by him or her given, after the same shall be reduced to writing; which shall be done only by the magistrate, taking the deposition, or by the deponent in his presence. And the deposition, so taken, shall be retained by such magistrate, until he deliver the same with his own hand into the Court for which they are taken; or shall, together with a  certificate of the reasons as aforesaid of their being taken, and of the notice, if any was given to the adverse party,  be by him the said magistrate, sealed up, and directed to such Court; and remain under his seal, until opened in Court.\" \nWithout doubt, the certificate of the magistrate is good evidence of the facts stated therein, so as to entitle the deposition to be read to the jury; if all the necessary facts are there sufficiently disclosed. It is not denied, that the reducing of the deposition to writing, in the presence of the magistrate, is a fact made material by the statute, and that proof of it, is a necessary preliminary to the right of introducing it at the trial. But it is supposed that sufficient may be gathered by intendment from the certificate of the magistrate, to justify the presumption that it was done. The certificate is in these words: \"State of Tennessee, Dickson County, ss. At Charlotte, in said County, on the fourth day of July 1822, before me, James M. Ross, Justice of the peace, and one of the Judges of the County Court of Dickson County; came, personally, John Mockbee, being about the age of fifty-one years, and after being carefully examined and cautioned, and sworn, to testify the whole truth, did subscribe the foregoing and annexed deposition, after the same was  reduced to writing, by him in his own proper hand.\" The certificate then proceeds to state the reason for taking the deposition, &c. in the usual form. It is remarkable that the certificate follows throughout, with great exactness of terms, every requisition in the statute, with the exception as to the deposition being reduced to writing in the presence of the magistrate; and it is scarcely presumable, that this was accidentally omitted. At all events, every word in the certificate may be perfectly true, and yet, the deposition may not have been reduced to writing in the magistrate's presence. If this be so, then there can arise no just presumption in favour of it. And we think, in a case of this nature; where evidence is sought to be admitted, contrary to the rules of the common law; something more than a mere presumption, should exist that it was rightly taken. There ought to be direct proof, that the requisitions of the statute have been fully complied with. We are therefore of opinion that the deposition was properly rejected. \nThe more important question in the cause, is that relative to the evidence introduced to repel the plea of the statute of  limitations.  In the course of the trial, the plaintiff read to the jury certain articles of copartnership, made between the defendants in March 1810; whereby the defendants entered into a joint trade and partnership, in the manufacturing of salt, at a place known by the name of the United States' Saline, near the Wabash River within the Illinois Territory, for the term of three years, then next ensuing, under the style of Taylor, Wilkins & Co. He also gave evidence, that large quantities of iron castings had been sold and delivered by him to the company, during the term of the copartnership. He then introduced the testimony of one Patterson Baine, who stated, \"that some time in the year 1818, or 1819, the plaintiff, Bell, came to his house, in Lexington, and stated, that he had again come up, to endeavour to get the amount of his account from the defendants. He requested the witness to go with the plaintiff to Col. Morrison's, (one of the defendants,) on that business. The witness went. The plaintiff and Morrison had a good deal of conversation, on the subject of the plaintiff's account against the Saline Company for metal furnished, which is not recollected by the witness. The witness  recollects, that Morrison stated, that the books and papers relative to the plaintiff's claim were in the hands of Jonathan Taylor, (one of the defendants,) which put it out of his power to settle the account at that time, and expressed a willingness, but for that reason, to settle with the plaintiff. The plaintiff bade him good bye, and declared that that was the last time he should ever apply for a settlement of his account. The plaintiff then left the house of Morrison, and returned with the witness to his house, where he remained until after breakfast on the next day; -- that shortly after breakfast, Morrison came to the house of the witness, and said to Bell, (the plaintiff,) that he was very anxious, that his, (the plaintiff's) account, should be settled; adding, \"I know we are owing you, and I am anxious it should be settled.\" He then mentioned to the plaintiff, that he, (Morrison,) was getting old, and did not like to have such things hanging over him, and wished to have the business settled, and to have done with it. He then proposed to give the plaintiff seven thousand dollars, and close the business. The plaintiff refused to take it, and they parted; -- that no account,  or papers of any kind, were shown or produced by Bell, at the time of these conversations with Morrison; but he understood the conversations to relate to the claim for castings, furnished by him to the company of Taylor, Wilkins and others. The witness observed to the plaintiff, after Morrison's departure, that he should have taken Morrison's offer; that \"a half loaf was better than no ead.\" The plaintiff also introduced certain letters written by Morrison and Butler, (two of the defendants,) to him. The first was  a letter from Morrison, dated 2d of October 1814; and it contains, among others, the following expressions: -- \"I wish whatever is due to you should be paid; -- I have once more to ask you to follow the advice I am about to offer, viz: to come up here, without delay, (as Col. Butler may be soon ordered off,) and I cannot believe your present suit will answer any purpose,\" &c. &c. \"It is not our wish to keep from you, whatever may be your just due. We have sent for the company books, some two or three weeks since; they will come to Louisville by water; and on your and Mr. Wheatley's being there, I have no doubt but your account can be adjusted; and that, more  to your satisfaction, than it ever can be from the result of your suit,\" &c. \"I wish your account settled; and, I have no hesitation in saying, on your coming here, it will be done.\" The next was a letter from Butler, dated 26th October 1817, in which he informs the plaintiff, that, on the 20th of November, Messrs. Morrison and Wilkins will be at Hopkinsville, \"for the purpose of adjusting some of the affairs of the old Saline Company,\" &c.; and desires that he \"will be present, in order that a settlement may be effected, if possible, of the account which you,  (he,) set up against the company.\" The next is from Butler, dated the 8th of November 1817, again mentioning the intended meeting on the 20th of November, \"for the purpose of adjusting our old account with you;\" and he adds, \"I hope, therefore, you will be at Hopkinsville, for the purpose of enabling us to settle this old affair, to which, I am sure, all must be most anxious.\" The next is from Butler, dated 23d of October 1818, in which he alludes to a complaint made by the plaintiff, of Butler's absence from home on the 5th of the same month, when the plaintiff called there, and reminds the plaintiff of a conversation  they had at the Greenville Springs, \"about a day of meeting to adjust the account between the former Saline Company and yourself,\" and excuses himself for his absence. He adds, \"I have now, Sir, attended at three places, upon three appointments made by yourself and myself, without being able to have a meeting, &c. If it would suit you to be at Frankfort, during the sitting of the legislature, we might possibly come to some understanding on the subject.\" The next is a letter from Jonathan Taylor, (one of the defendants,) to the plaintiff, dated 18th March 1818, in which he says, \"I received a letter last Monday from Col. Butler, inviting me to attend an appointment with you at Hopkinsville, on the 26th of this month, for the purpose of adjusting the old company account. I shall endeavour to attend at that time, when, if we can make an arrangement, equally mutual, for the metal I may hereafter want, it can be done.\" Other letters  of Taylor were read in evidence, but they all bear date in the years 1811, and 1812. \nIt was further proved, that the plaintiff was present in 1814, when the Saline and improvements were delivered over to Bates, the succeeding lessee; and that  the plaintiff was then apprized, that the term of the defendants, as lessees, had terminated. After the evidence on the part of the plaintiff was closed, the defendants' counsel moved the Court to exclude the testimony of Patterson Baine, and all the letters bearing date within five years before the bringing of this suit, offered by the plaintiff, to show a promise on the part of the defendants, or any one of them, or any member of said firm or partnership, within five years next before the commencement of this suit; and the Court so excluded from the jury the evidence of the said Bane, and all the letters dated within five years aforesaid, tending to prove a promise in five years, next before the commencement of this suit, by the defendants, or either of them, or any member of said firm or partnership, as prayed by the defendants' counsel; and decided, that \"there was no sufficient evidence or admissions by the defendants, or either of them, or any member of said firm or partnership, to prove such a promise, in five years before the commencement of this suit, as would take the case out of the statute of limitations, or should be left to the jury, as conducing to that effect.\" To  which opinion of the Court the plaintiff filed his bill of exceptions; and the correctness of this opinion has constituted the main ground of the elaborate argument at this bar. \nTwo points are necessarily involved in the discussion of this opinion. The first is, whether the evidence so excluded, (supposing it to be, in all other respects, unobjectionable,) was competent, in point of law, to have been left to the jury to infer a promise sufficient to take the case out of the statute of limitations. The second is, whether, supposing it would be competent, in ordinary cases, the fact that it was the acknowledgment or promise of one partner, after the dissolution of the partnership, did not justify its exclusion, as incompetent evidence to bind the other partners. \nThe statute of limitations of Kentucky, is substantially the same with the statute of 21 of James, ch. 16, with the exception, that it substitutes the term of five years instead of six. The English decisions have, therefore, been resorted to, upon the present occasion, as illustrative of the true construction of the statute, and, in this view, are doubtless entitled to great consideration. They are not, however, and cannot  be considered as conclusive authority, upon the construction of the statute passed by a state, upon the like subject; for this justly belongs to the local state tribunals, whose rules of interpretation  must be presumed to be founded upon a more just and accurate view of their own jurisprudence, than those of any foreign tribunal, however respectable. If, therefore upon examination it shall be found, that the doctrines of the Kentucky Courts, upon this subject, are irreconcilable with those deduced from the statute of James, this Court would, in conformity with its general practice, follow the local law, and administer the same justice which the state Court would administer between the same parties. \nIt has often been matter of regret, in modern times, that, in the construction of the statute of limitations, the decisions had not proceeded upon principles better adapted to carry into effect the real objects of the statute; that, instead of being viewed in an unfavourable light, as an unjust and discreditable defence, it had received such support, as would have made it, what it was intended to be, emphatically, a statute of repose. It is a wise and beneficial law, not designed  merely to raise a presumption of payment of a just debt, from lapse of time, but to afford security against stale demands, after the true state of the transaction may have been forgotten, or be incapable of explanation, by reason of the death or removal of witnesses. It has a manifest tendency to produce speedy settlements of accounts, and to suppress those prejudices which may rise up at a distance of time, and baffle every honest effort to counteract or overcome them. Parol evidence may be offered of confessions, (a species of evidence which, it has been often observed, it is hard to disprove, and easy to fabricate,) applicable to such remote times, as may leave no means to trace the nature, extent, or origin of the claim, and thus open the way to the most oppressive charges. If we proceed one step further, and admit that loose and general expressions, from which a probable or possible inference may be deduced of the acknowledgment of a debt, by a Court or jury; that, as the language of some cases has been, any acknowledgment, however slight, or any statement not amounting to a denial of the debt; that any admission of the existence of an unsettled account, without any specification  of  amount or balance, and however indeterminate and casual, are yet sufficient to take the case out of the statute of limitations, and to let in evidence, aliunde, to establish any debt, however large, and at whatever distance of time; it is easy to perceive, that the wholesome objects of the statute, must be, in a great measure, defective; and the statute virtually repealed. \nThe English decisions upon this subject, have gone great lengths -- greater, indeed, in our judgment, than any sound interpretation of the statute will warrant; and, in some instances, to an extent which is irreconcilable with any just principle.  There appears, at present, a disposition on the part of the English Courts to retrace their steps; and, as far as they may, to bring back the doctrine to sober and rational limits. The American Courts have evinced a like disposition. In the recent case of Bangs vs. Hall, 2 Picker. Rep. 368, the principal cases were reviewed by the Supreme Court of Massachusetts; and it was held, that to take a case out of the statute, there must be an unqualified acknowledgment, not only of the debt as originally due, but that it continues so; and if there  has been a conditional promise, that the condition has been performed -- a doctrine, quite as comprehensive, has been asserted in the Supreme Court of New-York. The subject was much considered in the case of Sands vs. Gelston, 15 Johns. Rep. 511, where Mr. Chief Justice Spencer, in delivering the opinion of the Court, said, \"that if at the time of the acknowledgment of the existence of the debt, such acknowledgment is qualified in a way to repel the presumption of a promise to pay, it will not be evidence of a promise sufficient to revive the debt, and take it out of the statute.\" In consonance with this principle, the same Court has held, that \"if the acknowledgment be accompanied with a declaration that the party intends to rely on the statute as a defence, such an acknowledgment is wholly insufficient.\" 1 In the case of Clementson vs. Williams, 8 Cranch, 72, this Court expressed the opinion that the decisions on this subject had gone full as far as they ought to be carried, and that the Court was not inclined to extend them; that the statute of limitations was entitled to the same respect with other statutes, and ought not to be explained away. In that case, an attempt was made  to charge a partnership, by an acknowledgment made after its dissolution, by one of the partners, when an account was presented to him, that \"the account was due, and he supposed it had been paid by the other partner, but he had not paid it himself, and did not know of its being ever paid.\" It was held, that this was not a sufficient acknowledgment to take the case out of the statute. The Chief Justice, in delivering the opinion of the Court, said, \"in this case there is no promise, conditional or unconditional, but a simple acknowledgment. This acknowledgment goes to the original justice of the account. But this is not enough. The statute of limitations was not enacted to protect persons from claims fictitious in their origin, but from ancient claims, whether well or ill founded, which may have been discharged, but the evidence of discharge may be lost. It is not sufficient to take the case out of the Act, that the claim should be proved, or be acknowledged  to have been originally just; the acknowledgment must go to the fact, that it is still due.\" \nIn the case of  Wetzell vs. Bussard, 11 Wheat. 309, the subject again came before this Court; and the English and American authorities were deliberately examined. The Court there expressly held, that \"an acknowledgment which will revive the original cause of action, must be unqualified and unconditional. It must show, positively, that the debt is due, in whole or in part. If it be connected with circumstances, which in any manner affect the claim, or if it be conditional, it may amount to a new assumpsit, for which the old debt is a sufficient consideration; or, if it be construed to revive the original debt, that revival is conditional, and the performance of the condition, or a readiness to perform it, must be shown.\" \nWe adhere to the doctrine thus stated, and think it the only exposition of the statute, which is consistent with its true object and import. If the bar is sought to be removed by the proof of a new promise, that promise, as a new cause of action, ought to be proved in a clear and explicit manner, and be in its terms unequivocal and determinate; and, if any conditions are annexed, they ought to be shown to be performed. \nIf there be no express promise, but a promise is to be raised  by implication of law from the acknowledgment of the party, such acknowledgment ought to contain an unqualified and direct admission of a previous, subsisting debt, which the party is liable and willing to pay. If there be accompanying circumstances, which repel the presumption of a promise or intention to pay; if the expressions be equivocal, vague, and indeterminate, leading to no certain conclusion, but at best to probable inferences, which may affect different minds in different ways; we think they ought not to go to a jury as evidence of a new promise to revive the cause of action. Any other course would open all the mischiefs against which the statute was intended to guard innocent persons, and expose them to the dangers of being entrapped in careless conversations, and betrayed by perjuries. \nIt may be that in this manner an honest debt may sometimes be lost, but many unfounded recoveries will be prevented; and viewing the statute in the same light, in which it was viewed by English Judges at an early period, as a beneficial law, on which the security of all men depends, we think its provisions ought not to be lightly overturned; and that no creditor has a right to complain  of a strict construction, since it is only by his own fault and laches, that it can be brought to bear injuriously upon him. And, if the early interpretation had been adhered to, that nothing but an express promise should take  a case out of the statute, it is far from being certain, that it would not have generally been in promotion of justice. \nBut the present case is not left to be determined solely upon general principles and authorities. There is a series of decisions of the Kentucky Courts, upon the construction of their  own statute of limitations, which, if they differed from those of other Courts, would, as matter of local law, govern this Court upon the present occasion. In the construction of local statutes we have been in the habit of respecting and following the judgments of the local tribunals. \nThe first, and leading case, is Bell vs. Rowlands Administrators, in Hardin's Reports, 301. In that case, the defendant made an acknowledgment, \"that he had once owed the plaintiff, but he supposed his brother had paid it, in Virginia, (the place where the original transaction took place, in the year 1785;) and if his brother had not paid it, he owed  it yet.\" The Court held that the acknowledgment was not sufficient to take the case out of the statute; that the defendant was not bound to prove that his brother had not paid the debt; that the law would imply a promise, only, where the party ought to promise; and that the defendant ought not to have promised, under the circumstances of that case, to pay a debt which he supposed to be paid. But the general reasoning of the Court, which is drawn up with great clearness and force, goes much further. The Court said, that the English decisions were not obligatory upon them, in the construction of their own statute, although similar in its provisions to the English statute; and that so far as they had gone upon nice refinements, for the purpose of evading the statute, they must be disregarded. If the slightest acknowledgment; if strained, constructive acknowledgments and promises, are held sufficient; it must multiply litigation, produce endless uncertainty, and it is to be feared, a fruitful crop of perjuries. \nSlight circumstances, and a man's loose expressions, would be construed into a full acknowledgment of the debt, when he himself neither intended to make, nor understood himself  as making any acknowledgment at all. Instances of this sort are frequent in the books; but the example is too dangerous to be countenanced. And the Court further declared, \"upon the whole, we are of opinion that the only safe rule that can be adopted, capable of any reasonable certainty, is, that in order to take the case out of the statute of limitations, an express acknowledgment of the debt, as a debt due at the time, coupled with the original consideration; or an express promise to pay it; must be proved to have been made, within the time prescribed by the statute. \nThere was another point in the case, deserving of notice,  which was, whether the Court ought to have instructed the jury as to the law of the case, and then have left it with them to determine, whether an acknowledgment of the debt, and a promise to pay it, had been proved to have been made within the five years; upon which it was held, that it was competent for the Court, either to do so, or, (as it did in that case,) taking the whole of the evidence on the part of the plaintiff as true, and the facts sworn to by the witnesses as sufficiently proved, to instruct the jury as to the law arising upon those  facts. \nThis case has never been departed from in Kentucky, and has been frequently recognised. In Harrison vs. Handley, (1 Bibb R. 443,) the plaintiff, to take the case out of the statute, produced a witness, who swore, \"that some time in May or June 1796, he presented an account to W.H. (the defendant) amounting to # 250, or # 260; that H. objected to certain articles in the said account; and after the said articles were stricken out of the account; H. then acknowledged, it was all right. The Court below ruled that this was such an acknowledgment as took the case out of the statute, but the decision was reversed by the Court of Appeals. Mr. Chief Justice Bibb, in delivering the opinion of the Court, adverted to the case of Bell vs. Rowlands administrators; and recognised its authority in the fullest terms. And after expressing a doubt, whether an implied promise would not be barred by the statute, he proceeded to say, \"Be that as it may, mere loose expressions and vague acknowledgments will not suffice. The acknowledgment from which the law is to raise a promise, contrary to the provisions of the statute, must be clear and express, where the nind is brought directly to the  point, debt or no debt, at the present time; not whether the debt was once an existing debt. That the law will argumentatively make it a debt, in praesenti, if the party does not in his acknowledgment say it is not, or prove payment; is a proposition, that cannot be granted in opposition to the provisions of the statute. Where the limitation has run, to get clear of it, the whole burthen of proof is thrown on the plaintiff, to prove a good and subsisting debt, and a promise to pay within the period prescribed to his action. The acknowledgment of H. does not come up to this requisition. There was no express promise to pay; there was no express acknowledgment of a then subsisting debt; there was no assent to pay. \"H. then acknowledged the amount was all right,\" is too loose, vague, and indefinite an acknowledgment to revive a transaction, and put it under investigation again, after the law had closed it. That the amount was right, could be true, and might well be acknowledged, if the articles had been truly noted notwithstanding  the party might have paid it, or was unwilling to acknowledge it as a debt then subsisting; and that is the point to which an express acknowledgment  should have been proved.\" This is certainly a very strong case to illustrate the rule, adopted in Kentucky. \nIn Gray vs. Lawridge (2 Bibb R. 284,) it was proved on the trial, that the party had admitted the justice of the account within five years, and that it might go in discharge of the interest due on a bond of the defendant, on which the suit was brought by the plaintiff. The witness did not know the particular items of the account, nor the amount thus acknowledged by the plaintiff. The Court held, that the acknowledgment did not go further, than that the demand should be allowed in payment of the interest; and that so much as the party could show of a debt due to him not exceeding the amount of the interest then due, was taken out of the statute, and no further. In Ormsby vs. Letcher, (3 Bibb R. 269,) it was decided, that an agreement of the defendant within five years, that a settlement, made with the brother of the defendant should be subject to the examination of either party, did not take the case out of the statute. It may be inferred, that it was a settlement of accounts between the parties, and that the action was brought for the  balance due to the plaintiff;  although the report does not so state. The Court said, \"this agreement does not contain an acknowledgment of a subsisting demand, and a promise to pay in consideration thereof.\" The language of this case, as well as that in Harrison vs. Handley, might lead to the impression, that the Court thought that an acknowledgment of a subsisting debt, was not alone sufficient; but that there must be also a promise to pay the debt. But, perhaps it is more correct to construe it as importing no more than that there must be such an acknowledgment, coupled with circumstances, from which a promise to pay would naturally and irresistibly be implied. \nThese are all the decisions, which we have met with in the Kentucky Reports on this point. They evince a strong disposition, in the Courts of that state, to restrict, within very close limits, every attempt to revive debts by implied promises, resulting from acknowledgments and other confessions by parol. It is our duty to follow out the spirit of these decisions, so far as we are enabled to gather the principles on which they are founded, and to apply them to the case at bar. \nThe evidence in the case at bar, resolves itself into two heads; first,  whether the admission of a party of the existence of an unliquidated account, on which something is due to the plaintiff, but no specific balance is admitted, and no document produced at the time from which it can be ascertained what the  parties understood the balance to be; is sufficient to take the case out of the statute, and let in the plaintiff to prove, aliunde, any balance, however large it may be: secondly, if not, whether the admission on the part of Morrison, of his willingness to pay 7,000 dollars, and close the business, might (under all the circumstances,) entitle the plaintiff to recover that amount, and thus to furnish a just objection to the ruling of the Circuit Court. \nIn both of these views, the case is not without its difficulties; and the Kentucky decisions present no authority directly in point. The evidence is clear of the admission of an unsettled account, as well from the letters of Butler, as the conversation of Morrison. The latter acknowledged that the partnership \"was owing\" the plaintiff; but as he had not the books, he could not settle with him. If this evidence stood alone, it would be too loose to entitle the plaintiff to recover any  thing. The language might be equally true, whether the debt were one dollar or ten thousand dollars. It is indispensable for the plaintiff to go further, and to establish, by independent evidence, the extent of the balance due him, before there can arise any promise to pay it as a subsisting debt. The acknowledgment of the party, then, does not constitute the sole ground of the new implied promise; but it requires other intrinsic aid, before it can possess legal certainty. Now, if this be so, does it not let in the whole mischief intended to be guarded against by the statute? Does it not enable the party to bring forward stale demands, after a lapse of time, when the proper evidence of the real state of the transaction cannot be produced? Does it not tend to encourage perjury, by removing the bar upon slight acknowledgments of an indeterminate nature? Can an admission, that something is due or some balance owing, be justly construed into a promise to pay any debt or balance, which the party may assert or prove before a jury? If there be an express promise to such an effect, that might be pressed as a dispensation with the statute; but the question here is, whether the law will  imply such a promise, from language so doubtful and general. The language of the Court, in Harrison vs. Hanley, was, that \"mere loose expressions or vague acknowledgments, will not suffice.\" We think, that such a general admission of an unsettled account, and of an indeterminate debt, would, by the Courts of Kentucky, be held as too vague an acknowledgment to take the case out of the statute. It would not establish any particular subsisting debt, and therefore be destitute of reasonable certainty to raise an implied promise. \nThe other point is also not without its embarrassments. Was Morrison's offer of 7,000 dollars, to close the business, the absolute admission of a debt to that amount, or a conditional promise  to pay that sum, if the party would accept it in discharge of his claims? We think, taking all the circumstances, it scarcely admits of the former interpretation. It appears from the testimony itself, that Morrison did not know the state of the partnership accounts, and had not the partnership books to enable him to ascertain it. He also expressed a personal reason for his desire to settle the account, alleging that he was growing old, and was anxious for  a settlement. His offer must therefore be deemed to be in the nature of a compromise, to pay the sum, if the plaintiff would give a complete discharge of his claims; or, to use his own words, \"and close the business.\" It may, therefore, be fairly deemed a conditional offer to pay a conjectural, not a known balance; to buy peace and not to acknowledge an absolute debt. If this be, as we think it is, a conditional offer, then, upon the clear text of the Kentucky, as well as the English, and of other American decisions; the case would not be taken out of the statute, unless the plaintiff had performed the condition. \nBut if this view of the case should be more doubtful than it seems to us to be, it still remains to consider, whether the acknowledgment of one partner, after the dissolution of the copartnership, is sufficient to take the case out of the statute, as to all the partners. How far it may bind the partner, making the acknowledgment to pay the debt, need not be inquired into; to maintain the present action, it must be binding upon all. \nIn the case of Bland vs. Haslering, (2 Vent. 151,),) where the action was against four, upon a joint promise, and the plea of the statute of  limitations was put in, and the jury found that one of the defendants did promise within six years, and that the others did not; three judges, against Ventris J. held that the plaintiff could not have judgment against the defendant, who had made the promise. This case has been explained upon the ground that the verdict did not conform to the pleadings, and establish a joint promise. It is very doubtful, upon a critical examination of the report, whether the opinion of the Court, or of any of the Judges proceeded solely upon such a ground. \nIn Whitcomb vs. Whiting, (2 Doug. R. 652,)  decided in 1781, in an action on a joint and several note brought against one of the makers, it was held that proof of payment, by one of the others, of interest on the note and of part of the principal, within six years, took the case out of the statute, as against the defendant who was sued. Lord Mansfield said, \"payment by one is payment for all, the one acting virtually for all the rest; and in the same manner, an admission by one is an admission by all, and the law raises the promise to pay, when the debt is admitted to be due.\" This is the whole reasoning reported  in the  case, and is certainly not very satisfactory. It assumes that one party who has authority to discharge, has, necessarily, also, authority to charge the others; that a virtual agency exists in each joint debtor to pay for the whole; and that a virtual agency exists, by analogy, to charge the whole. Now, this very position constitutes the matter in controversy. It is true, that a payment by one, does enure for the benefit of the whole; but this arises not so much from any virtual agency for the whole, as by operation of law; for the payment extinguishes the debt; if such payment were made after a positive refusal or prohibition of the other joint debtors, it would still operate as an extinguishment of the debt, and the creditor could no longer sue them. In truth, he who pays a joint debt, pays to discharge himself; and so far from binding the others conclusively by his act, as virtually theirs also, he cannot recover over against them, in contribution, without such payment has been rightfully made, and ought to charge them. \nWhen the statute has run against a joint debt, the reasonable presumption is that it is no longer a subsisting debt; and therefore, there is no ground on which  to raise a virtual agency to pay that which is not admitted to exist. But, if this were not so, still there is a great difference between creating a virtual agency, which is for the benefit of all, and one which is onerous and prejudicial to all. The one is not a natural or necessary consequence from the other. A person may well authorize the payment of a debt for which he is now liable; and yet refuse to authorize a charge, where there at present exists no legal liability to pay. Yet, if the principle of Lord Mansfield be correct, the acknowledgment of one joint debtor will bind all the rest, even though they should have utterly denied the debt at the time when such acknowledgment was made. \nThe doctrine of Whitcomb vs. Whiting, has been followed in England in subsequent cases, and was applied to in a strong manner, in Jackson vs. Fairbank, (2 H.Bl. 340,) where the admission of a creditor to prove a debt, on a joint and several note under a bankruptcy, and to receive a dividend, was held sufficient to charge a solvent joint debtor, in a several action against him, in which he pleaded the statute, as an acknowledgment of a subsisting debt. It has not, however, been received without  hesitation. In Clark vs. Bradshaw, (3 Esp. R. 155,),) Lord Kenyon, at Nisi Prius, expressed some doubts upon it; and the cause went off on another ground. And in Brandram vs. Wharton, (1 Burn. & Ald. 463,) the case was very much shaken, if not overturned. Lord Ellenborough, upon that occasion used language, from which his dissatisfaction with the whole doctrine, may be clearly inferred. \"This doctrine,\" said he, \"of rebutting the statute of limitations by an acknowledgment other  than that of the party himself, begun with the case of Whitcomb vs. Whiting. By that decision, where however there was an express acknowledgment, by an actual payment of a part of the debt by one of the parties, I am bound. But that case was full of hardship; for this inconvenience may follow from it. Suppose a person liable jointly with thirty or forty others, to a debt, he may have actually paid it, he may have had in his possession the document, by which that payment was proved, but may have lost his receipt. Then, though this was one of the very cases which this statute was passed to protect, he may still be bound and his liability be renewed, by a random acknowledgment made by some one  of the thirty or forty others, who may be careless of what mischief he is doing, and who may even not know of the payment which has been made. Beyond that case, therefore, I am not prepared to go, so as to deprive a party, of the advantage given him by the statute, by means of an implied acknowledgment.\" \nThe English cases decided since the American Revolution, are by an express statute of Kentucky, declared not to be of authority in their Courts; and consequently Whitcomb vs. Whiting in Douglas, and the cases which have followed it, leave the question in Kentucky quite open to be decided upon principle. \nIn the American Courts, so far as our researches have extended, few cases have been litigated upon this question. 2 In Smith Damor vs. D. & G. Ludlow, 6 Johns. R. 267, the suit was brought against both partners, and one of them pleaded the statute. Upon the dissolution of the partnership, public notice was given, that the other partner was authorized to adjust all accounts; and an account signed by him, after such advertisement, and within six years, was introduced. It was also proved, that the plaintiff called on the partner who pleaded the statute, before the commencement of  the suit, and requested a settlement, and that he then admitted an account, dated in 1797, to have been made out by him; -- that he thought the account had been settled by the other defendant, in whose hands the books of the partnership were, and that he would see the other defendant on the subject, and communicate the result to the plaintiff. The Court held that this was sufficient to take the case out of the statute; and said, that without any express authority, the confession of one partner, after the dissolution, will take a debt out of the statute. The acknowledgment will not,  of itself, be evidence of an original debt; for, that would enable one party to bind the other in new contracts. But the original debt being proved or admitted, the confession  of one will bind the other, so as to prevent him from availing himself of the statute. This is evident, from the cases of Whitcomb rs. Whiting, and Jackson vs. Fairbank; and it results necessarily from the power given to adjust accounts. The Court also thought the acknowledgment of the partner setting up the statute, was sufficient of itself to sustain the action. This case has the peculiarity of an acknowledgment  made by both partners, and a formal acknowledgment by the partner who was authorized to adjust the accounts after the dissolution of the partnership. There was not, therefore, a virtual, but an express, and notorious agency, devolved on him, to settle the account. The correctness of the decision, cannot, upon the general view taken by the Court, be questioned. In Roosevelt vs. Marks, 6 Johns. Ch. Rep. 266. 291, Mr. Chancellor Kent admitted the authority of Whitcomb vs. Whiting; but denied that of Jackson vs. Fairbank, for reasons which appear to us solid and satisfactory. Upon some other cases in New-York, we shall have occasion hereafter to comment. In Hunt vs. Bridgham, 2 Pick. R. 581, the Supreme Court of Massachusetts, upon the authority of the cases in Douglass, H. Blackstone, and Johnson, held that a partial payment by the principal debtor on a note, took the case out of the statute of limitations, as against a surety. The Court do not proceed to any reasoning to establish the principle, considering it as the result of the authorities. Shelton vs. Cocke, 3 Mumford's R. 191, is to the same effect; and contains a mere annunciation of the rule, without any discussion of its  principle. Simpson vs. Morrison, 2 Bay's Rep. 533, proceeded upon a broader ground, and assumes the doctrine of the case in 1 Taunt. Rep. 104, hereinafter noticed, to be correct. Whatever may be the just influence of such recognitions of the principles of the English cases, in other states; as the doctrine is not so settled in Kentucky, we must resort to such recognition, only, as furnishing illustrations, to assist our reasoning; and decide the case now as if it had never been decided before. \nBy the general law of partnership, the act of each partner, during the continuance of the partnership and within the scope of its objects, binds all the others. It is considered the act of each and of all, resulting from a general and mutual delegation of authority. Each partner may, therefore,  bind the partnership by his contracts in the partnership business; but he cannot bind it by any contracts beyond those limits. A dissolution however puts an end to the authority. By the force of its terms it operates as a revocation of all power to create new contracts;  and the right of partners as such can extend no further than to settle the partnership concerns already existing, and to distribute the remaining funds. Even this right may be qualified, and restrained, by the express delegation of the whole authority to one of the partners. \nThe question, is not however as to the authority of a partner after the dissolution to adjust an admitted and subsisting debt; we mean, admitted by the whole partnership or unbarred by the statute; but whether he can, be his sole act, after the action is barred by lapse of time, revive it against all the partners, without any new authority communicated to him for this purpose. We think the proper resolution of this point depends upon another, that is, whether the acknowledgment or promise, is to be deemed a mere continuation of the original promise, or a new contract, springing out of and supported by the original consideration.  We think it is the latter, both upon principle and authority; and if so, as after the dissolution no one partner can create a new contract, binding upon the others, his acknowledgment is inoperative and void, as to them. \nThere is some confusion in the language of the books, resulting from a want of strict attention to the distinction here indicated. It is often said that an acknowledgment revives the promise, when it is meant, that it revives the debt or cause of action. The revival of a debt, supposes that it has been once extinct and gone; that there has been a period in which it had lost its legal use and validity. The act which revives it, is what essentially constitutes its new being, and is inseparable from it. It stands not by its original force, but by the new promise; which imparts vitality to it. Proof of the latter is indispensable to raise the assumpsil, on which an action can be maintained. It was this view of the matter, which first created the doubt, whether it was not necessary that a new consideration should be proved to support the promise, since the old consideration was gone. That doubt has been overcome; and it is now held, that the original consideration  is sufficient, if recognised, to uphold the new promise, although the statute cuts it off, as a support for the old. What, indeed, would seem to be decisive on this subject, is, that the new promise if qualified or conditional, restrains the rights of the party to its own terms; and if he cannot recover, by those terms, he cannot recover at all. If a person promise to pay, upon condition that the other do an act, performance must be shown, before any title accrues. If the declaration lays a promise by or to an intestate, proof of the acknowledgment of the debt by or to his personal representative, will not maintain the writ. Why not, since it establishes the continued existence of the  debt? The plain reason is, that the promise is a new one, by or to the administrator himself, upon the original consideration; and not a revival of the original promise. So, if a man promises to pay a pre-existing debt, barred by the statute, when he is able or at a future day, his ability must shown; or the time must be passed before the action can be maintained. Why? Because it rests on the new promise, and its terms must be complied with. We do not here speak of the form of alleging  the promise in the declaration; upon which, perhaps, there has been a diversity of opinion and judgment; but of the fact itself, whether the promise ought to be laid in one way or another, as an absolute, or as a conditional promise; which may depend upon the rules of pleading. \nThis very point came before the twelve Judges, in the case of Hyling vs. Hastings, (1 Ld. Raym. 389, 421,),) in the time of Lord Holt. There, one of the points was, \"whether the acknowledgment of a debt within six years, would amount to a new promise, to bring it out of the statute; and they were all of opinion,  that it would not, but that it was evidence of a promise.\" Here then, the Judgesn anifestly contemplated the acknowledgment, not as a continuation of the old promise, but as evidence of a new promise; and that it is the new promise, which takes the case out of the statute. Now, what is a new promise, but a new contract? a contract to pay, upon a preexisting consideration, which does not, of itself, bind the party to pay, independently of the contract? So, in Boydell vs. Drum-mond, 2 Camp. R. 157, Lord Ellenborough, with his characteristic precision, said, \"if a man acknowledges the existence  of a debt, barred by the statute, the law had been supposed to raise a new promise to pay it, and thus the remedy is revived.\" And it may be affirmed, that the general current of the English, as well as the American authorities, conforms to this view, of the operation of an acknowledgment. In Jones vs. Moore, (5 Binney R. 573,) Mr. Chief Justice Tilghman, went into an elaborate examination of this very point; and came to the conclusion, from a review of all the cases; that an acknowledgment of the debt, can only be considered as evidence of a new promise; and he added, \"I cannot comprehend the meaning of reviving the old debt, in any other manner, than by a new promise.\" \nThere is a class of cases, not yet adverted to, which materially illustrates the right and powers of partners, after the dissolution of the partnership, and bears directly on the point under consideration. In Hackley vs. Patrick, (3 Johns. R. 536,) it was said by the Court, that \"after a dissolution of the partnership, the power of one party to bind the others, wholly ceases. There is no reason why his acknowledgment of an account,  should bind his co-partners, any more than his giving a promissory note,  in the name of the firm or any other act.\" And it was therefore held, that the plaintiff must produce further evidence of the existence of an antecedent debt, before he could recover; even though, the acknowledgment was by a partner, authorized to settle all the accounts of the firm. This doctrine was again recognised by the same Court, in Malden vs. Sherburne (15 Johns. R. 409, 424,) although it was admitted, that in Wood vs. Braddick (1 Taunt. 104,) a different decision had been had in England. If this doctrine be well founded as we think it is, it furnishes a strong ground to question the efficacy of an acknowledgment to bind the partnership for any purpose. If it does not establish the existence of a debt against the partnership, why should it be evidence against it at all? If evidence, aliunde, of facts within the reach of the statute, as the existence of a debt, be necessary before the acknowledgment binds, is not this letting in all the mischiefs against which the statute intended to guard the parties: viz. the introduction of stale and dormant demands, of long standing, and of uncertain proof? If the acknowledgment, per se, does not bind the other partners, where is the  propriety of admitting proof of an antecedent debt, extinguished by the statute as to them, to be revived without their consent? It seems difficult to find a satisfactory reason, why an acknowledgment should raise a new promise, when the consideration upon which alone it rests, as a legal obligation, is not coupled with it in such a shape as to bind the parties; that the parties are not bound by the admission of the debt, as a debt, but are bound by the acknowledgment of the debt, as a promise, upon extrinsic proof. The doctrine in 1 Taunt. 104, stands upon a clear, if it be a legal ground; that as to the things past, the partnership continues and always must continue, notwithstanding the dissolution. That however is a matter which we are not prepared to admit, and constitutes the very ground now in controversy. \nThe light in which we are disposed to consider this question is, that after a dissolution of a partnership, no partner can create a cause of action against the other partners, except by a new authority communicated to him for that purpose. It is wholly immaterial, what is the consideration which is to raise such cause of action; whether it be a supposed pre-existing debt  of the partnership, or any auxiliary consideration, which might prove beneficial to them. Unless adopted by them, they are not bound by it. When the statute of limitations has once run against a debt, the cause of action against the partnership is gone. The acknowledgment, if it is to operate at all, is to  create a new cause of action; to revive a debt which is extinct; and thus to give an action which has its life from the new promise implied by law from such an acknowledgment, and operating and limited by its purport. It is then, in its essence, the creation of a new right, and not the enforcement of an old one. We think, that the power to create such a right does not exist after a dissolution of the partnership in any partner. \nThere is a case in the Kentucky Reports, not cited at the bar, which coincides, as far as it goes with our own views; and if taken as a general exposition of the law, according to its terms, is conclusive on this point. It is the case of Walker and Evans vs. Duberry (1 Marshall's Rep. 189.) It is very briefly reported, and the opinion of the Court was as follows. \"We are of opinion that the Court below improperly admitted as evidence against  Walker, the certificate of J.T. Evans, made after the dissolution of the partnership, between Walker and Evans; acknowledging that the partnership firm was indebted to the defendant Duberry, in the sum demanded, in the action brought by him, in the Court below. It cites 3 Johns. Rep. 536. 3 Mumf. R. 191. \nIt does not appear what was the state of facts in the Court below, nor whether this was an action in which the statute of limitations was pleaded, or only non assumpsit generally. But the position is generally asserted, that the acknowledgment of a debt by one partner after a dissolution, is not evidence against the other. Whether the Court meant to say, in no case whatever, or only when the debt itself was proved, aliunde, does not appear. Its language is general and would seem to include all cases; and if any qualification were intended, it would have been natural for the Court to express that qualification, and have confined it to the circumstances of the case. The only room for doubt, arises from the citations of 3 Johnson and 3 Mumford. The former has been already adverted to; and the latter Shelton vs. Cocke & others (3 Mumf. R. 191,) recognised the distinction asserted  in 3 Johns. R. as sound. These  citations may, however, have been referred to as mere illustrations, going to establish the proposition of the Court to a certain extent, and not as limitations of its extent. In any view, it leads to the most serious doubts, whether the state Courts of Kentucky would ever adopt the doctrine of Whitcomb vs. Whiting in Douglas; especially so, as the early case in 2 Vent. 151, carries an almost irresistible presumption, that the Courts, at that time, held a doctrine entirely inconsistent with the case in Douglas. \nUpon the whole, it is our judgment that there is no error in the decision of the Circuit Court, and it ought to be affirmed. \n It is, however, to be understood that this opinion thus expressed, is not unanimous, but of the majority of the Court; and as is apparent, from the preceding reasoning, it has been, principally, although not exclusively, influenced by the course of decisions in Kentucky upon this subject. \nJudgment affirmed, with costs. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the Court. -- \nThis was an action of assumpsit, brought by Ambrose Vasse, in the Circuit Court, for the district of Pennsylvania, to recover from the plaintiffs in error, (who were defendants in the Court below,) a certain sum of money, received by them under the following circumstances: -- \nPrevious to the year 1802, Vasse was an underwriter on various vessels and cargoes, the property of citizens of the United States, which were captured, and carried into the ports of Spain and her dependencies, and abandonments were made thereof to Vasse, by the owners, and he paid the losses arising therefrom, prior to the year 1802. Vasse became embarrassed in his affairs, and his creditors proceeded against him, as a bankrupt; under the Act of Congress of 4th April 1800, ch. 19. An assignment was made accordingly to Jacob Shoemaker, (who is deceased,) and the  defendants, Comegys and Pettit, who proceeded to take upon themselves the duties of assignees, and have ever since continued to perform the same. Vasse was discharged, under the commission; and his certificate of discharge bears date the 28th of May 1802. In the year 1824, the sum of 8846 dollars 14 cents, was received by the defendants from the Treasury of the United States; being the sum awarded by the commissioners sitting at Washington,  under the treaty with Spain, which ceded Florida to the United States, dated 22d of February 1819, on account of the captures and losses aforesaid. On the 9th of December 1823, Vasse filed a bill in equity in the Circuit Court of the district of Columbia; which is in the case; upon which it seems no final proceedings were had on the merits. Under the commission of bankruptcy, Vasse made a return of his effects to the commissioners; which is in the case. \nUpon these facts, a general verdict was found for the plaintiff, Vasse, for the sum of 8846 dollars 14 cents, subject to the opinion of the Court, with liberty for either party to turn the same into a special verdict; and the Circuit Court gave judgment upon the facts in favour of  the original defendant. The present is a writ of error, brought for the purpose of ascertaining the correctness of that judgment. \nThree questions have been argued at the bar. -- 1. Whether the award of the commissioners, under the treaty with Spain, directing the money to be paid to the defendants, as assignees of Vasse, (which is assumed to be the true state of the fact,) is conclusive, upon the rights of Vasse; so as to prevent his recovery in the present action. 2. If not, whether the abandonment of the vessels and cargoes to him, as underwriter, by the owners, and his payment of the losses, entitled him to the compensation awarded, independent of his bankruptcy. 3. If so, then, whether his right and title to the compensation, passed by the assignment of the commissioners of bankruptcy, to the defendants, as his assignees, by the true intent and terms of the Bankrupt Act of 1800, ch. 19. \n1. As to the first point. -- \n1. The treaty with Spain, of the 22d of February 1819, was ratified on the 13th of February 1821, by the government of the United States. In the 9th article it provides, that the high contracting parties \"reciprocally renounce all claims for damages or injuries,  which they themselves, as well as their respective citizens and subjects may have suffered, until the time of signing this treaty;\" and then proceeds to enumerate, in separate clauses, the injuries to which the renunciation extends. \nThe 11th article provides, that the United States, exonerating Spain from all demands in future, on account of the claims of their citizens, to which the renunciations herein contained, extend, and considering them entirely cancelled; undertake to make satisfaction for the same, to an amount not exceeding five millions of dollars. To ascertain the full amount and validity of these claims, a commission, to consist of three commissioners, &c., shall be appointed, &c., and within the space of three years from the time of their first meeting, shall \"receive, examine, and decide upon the amount and ralidity of all claims  included within the descriptions above mentioned.\" The remaining part of the article is not material to be mentioned. \nIt has been justly remarked, in the opinion of the learned Judge who decided this cause in the Circuit Court; that it does not appear, from the statement of facts, who were the persons who presented or litigated  the claim before the Board of Commissioners; nor whether Vasse himself was before the board; nor who were the parties to whom, or for whose benefit, the award was made. We do not think that the fact is material, upon the view which we take of the authority and duties of the commissioners. The object of the treaty was to invest the commissioners with full power and authority to receive, examine, and decide upon the amount and validity of the asserted claims upon Spain, for damages and injuries. Their decision, within the scope of this authority, is conclusive and final. If they pronounce the claim valid or invalid, if they ascertain the amount, their award in the premises is not re-examinable. The parties must abide by it, as the decree of a competent tribunal of exclusive jurisdiction. A rejected claim cannot be brought again under review, in any judicial tribunal; an amount once fixed, is a final ascertainment  of the damages or injury. This is the obvious purport of the language of the treaty. But it does not necessarily or naturally follow, that this authority, so delegated, includes the authority to adjust all conflicting rights of different citizens to the fund  so awarded. The commissioners are to look to the original claim for damages and injuries against Spain itself, and it is wholly immaterial for this purpose, upon whom it may, in the intermediate time, have devolved; or who was the original legal, as contradistinguished from the equitable owner, provided he was an American citizen. If the claim was to be allowed as against Spain, the present ownership of it, whether in assignees or personal representatives, or bona fide purchasers, was not necessary to be ascertained, in order to exercise their functions in the fullest manner. Nor could they be presumed to possess the means of exercising such a broader jurisdiction, with due justice and effect. They had no authority to compel parties, asserting conflicting interests, to appear and litigate before them, nor to summon witnesses to establish or repel such interests; and under such circumstances, it cannot be presumed, that it was the intention of either government, to clothe them with an authority so summary and conclusive, with means so little adapted to the attainment of the ends of a substantial justice. The validity and amount of the claim being once ascertained by their award,  the fund might well be permitted to pass into the hands of any claimant; and his own rights, as well as those of all others, who asserted a title to the fund, be left to the ordinary course  of judicial proceedings in the established Courts, where redress could be administered according to the nature and extent of the rights or equities of all the parties. We are therefore of opinion, that the award of the commissioners, in whatever form made, presents no bar to the action, if the plaintiff is entitled to the money awarded by the commissioners. The case of Campbell vs. Mullett, 2 Swanston's Rep. 551, is distinguishable. The claim in that case had been laid before the commissioners, and rejected by them, on the ground that the party was alien enemy; and if so, he certainly did not come into the purview of the treaty. It was not pretended, that the party had any title to the indemnity, unless it could be deemed partnership property, and, as a partner, he was entitled to share in it. The Court considered that it was not partnership property in which he had a title; -- that his claim to any portion of it had been rejected, upon the ground, that such claim was not within  the treaty; and the indemnity had been granted to the other partners, for their shares only, of the joint property, and they took no more than their own shares. The Court then proceeded, upon the ground, that there neither was an original, nor a derivative title, to the indemnity, in the party now seeking to set it up. If an assignment had been shown from them to him, of their own interest in the claim or award, before or after it was made, the case might have admitted of a very different consideration. Whatever, therefore, might be the authority of that case upon general principles; upon which it is unnecessary to pass any opinion; it is inapplicable to the present. \n2. The next question is not noticed in the opinion of the Circuit Court, turns upon the nature and effect of an abandonment, for a total loss to the underwriters. Much argument has been employed, and many authorities introduced, to prove what rights and interests, possibilities and expectancies, may or may not pass by assignment; we do not think it necessary to review these authorities, or the principles upon which they depend, upon the present occasion. In general, it it may be affirmed, that mere personal torts,  which die with the party, and do not survive to his personal representative, are not capable of passing by assignment; and that vested rights ad rem and in re, possibilities coupled with an interest, and claims growing out of, and adhering to property, may pass by assignment. But the material consideration here, is, whether upon the principles of the law merchant, the right, title, interest or possibility, (call it which you may,) to the indemnity awarded in this case, did not pass by the abandonment to Vasse. \nWe do not think, that upon an examination of the doctrines of insurance, there is any difficulty in this part of the case. It  does not appear on the record, whether there was, in this instance, any formal instrument of abandonment or not, nor is it material, for the law gives to the act of abandonment, when accepted, all the effects, which the most accurately drawn assignment would accomplish. By the act of abandonment, the insured renounces and yields up to the underwriter all his right, title, and claims, to what may be saved; and leaves it to him to make the most of it, for his own benefit.The underwriter then stands in the place of the insured, and becomes  legally entitled to all that can be rescued from destruction. This is the language of the elementary writers, and is fully borne out by Mr. Marshall and Mr. Park, in their treatises on insurance. Mar. on Ins. B. 1 a 14.Park on Ins. ch. 9, p. 228. 279. \"Where, (says Mr. Marshall) as in case of capture, the thing insured, and every part of it, is completely gone out of the power of the insured, it is just and proper, that he should recover at once, as for a total loss, and leave the spes recuperandi to the insurer; who will have the benefit of a recapture, or of any other accident, by which the thing may be recovered.\" Mr. Park uses equally strong language -- he says \"the insured has a right to call upon the underwriter for a total loss, and of course to abandon, as soon as he hears of such a calamity having happened; his claim to an indemnity not being at all suspended, by the chance of a future recovery of part of the property lost; because by the abandonment, that chance devolves upon the underwriters.\" It is very clear, that neither of these learned writers meant to confine these remarks to cases, where the specific property itself, or its proceeds, were restored; for the whole  current of their reasoning, in the context, goes to show, that whatever may be afterwards recovered or received, whether in the course of judicial proceedings or otherwise, as a compensation for the loss, belongs to the underwriters; and for this purpose, they refer to the case of Randall vs. Cochran, (1 Vez. 98.) before Lord Hardwicke, where this very point was adjudged. In that case, the king had granted letters of reprisal  against the Spaniards, for the benefit of his subjects, in consideration of the losses which they had sustained by unjust captures, and he appointed commissioners to distribute the produce of these reprisals among the sufferers; and the commissioners would not suffer the underwriters, but only the owners, to make claim for the losses; although the owners were already satisfied for their loss, by the underwriters. Lord Hardwicke decreed, that the owner should account for the same to the underwriter; and said, \"the person who originally sustained the loss, was the owner, but after satisfaction made to him, the insurer. No doubt, but from that time, as to the goods themselves, if restored in specie, or compensation made for them, the insured stood  as a trustee for  the insurer, in proportion to what he paid, although the commissioners did right to avoid being entangled in accounts, and in adjusting the proportion between them. Their commission was limited in time; they saw who was owner; nor was it material to whom he assigned his interest, as it was in effect after satisfaction made.\" This case reflects no inconsiderable light upon the point already discussed, as to the conclusiveness of the award of the commissioners. But it is decisive, that the assignment by abandonment, is competent not only to pass the property itself, or its proceeds, if restored, after an unjust capture, but also any compensation awarded by way of indemnity therefor. The case before Lord Hardwicke, was the stronger, because the indemnity was awarded to the party by his own sovereign, and not by the sovereign of the captors.Mr. Marshall and Mr. Park manifestly contemplate the case as establishing the principle, that any indemnity, however arising, is a trust for the underwriters, after they have paid the loss Park on Ins. ch. 8, p. 229. Mar. on Ins. B. 1, ch. 14, § 4. \nThe case of Gracie vs. The New-York Insurance Company, (8 Johns. R.  237,) recognises the same principle, in its full extent. That was a case of abandonment after a capture, and where there had been a final condemnation, not only by the Courts in France, but an express confirmation of the condemnation by the sovereign himself. One question was, whether the jury were at liberty to deduct from the total loss, the value of the spes recuperandi. The Court held that they were not. Mr. Chief Justice Kent, in delivering the opinion of the Court, said; \"if France should, at any future period, agree to, and actually make compensation for the capture and condemnation in question, the government of the United States, to whom the compensation would, in the first instance, be payable, would become trustee for the party having the equitable title to the reimbursement; and this would clearly be the defendants [the underwriters,] if they should pay the amount, &c.\" The case of Watson vs. The Insurance Company of North America, (1 Binn. R. 47,) proceeds upon the same principles. It admits that the spes recuperandi passes by an abandonment to the underwriter; and the question there was, whether its value, when not abandoned, was to be deducted from the total loss.  We consider it, then, clear, upon authority, that the right to the compensation in this case, was in its nature assignable, and passed by abandonment to Vasse; and upon principle, we should arrive at the same conclusion. The right to indemnity for an unjust capture, whether against the captors or the sovereign; whether remediable in his own Courts, or by his own extraordinary interposition and grants upon private petition, or upon public negotiation, is a right attached to the  ownership of the property itself, and passes by cession to the use of the ultimate sufferer. If so assignable to Vasse, it was equally, in its own nature, capable of assignment to others; and the only remaining inquiry would be, whether it had so passed by assignment from him. \nThe case of Campbell vs. Mullet, (2 Swanston, 551,) already adverted to, has been pressed upon the attention of the Court as indicating, certainly not as deciding, a doctrine somewhat different. In that case, the compensation had been awarded by the commissioners under the British treaty of 1794, to American citizens, for unjust captures made by British cruisers; and there had been condemnations by the highest appellate  Courts of prize. One argument was, that the compensation so granted, was not to be deemed a mere donation to the parties who received it for their own use, but an indemnity. The Master of the Rolls, in answer to this, said: \"It is said that the sums awarded by the commissioners are not matter of bounty or donation. Can they be a matter of right? What is right? That which may be enforced in a Court of Justice. Had the parties, whose property was condemned by irrevocable sentence, any right? What they obtain after that condemnation, is not founded in right, but in policy between the nations, providing compensation to individuals, who have lost property by sentences, which are thought unjust. The grounds of relief before the commissioners, are, the want of any redress in any municipal Courts. Whatever the individual obtains, is not on the ground of right, or private property, but of hardship and injustice. Though this, therefore, is not a case of pure donation, as of a gift without any thing in the nature of a consideration, yet for the purpose of being contrasted with property or right, it is a donation, not a restoration of a former right, but from a new fund, belonging to  an independent authority, a grant to the sufferer for what he lost.\" Such is the language of the learned Judge, and we cannot say that the reasoning is at all satisfactory. It is not universally, though it may ordinarily be one test of right, that it may be enforced in a Court of Justice. Claims and debts due from a sovereign, are not ordinarily capable of being so enforced. Neither the King of Great Britain, nor the government of the United States, is suable in the ordinary Courts of Justice, for debts due by either. Yet, who will doubt, that such debts are rights? It does not follow, because an unjust sentence is irreversible, that the party has lost all right to justice, or all claim, upon principles of public law, to remuneration. With reference to mere municipal law, he may be without remedy; but with reference to principles of international law, he has a right, both to the justice  of his own and the foreign sovereign. The theory,  too, that an indemnification for unjust captures is to be deemed, if not a mere deviation, as in the nature of a donation, as contrasted with right, is not admissible. It is reasoning against the clear text of the treaty  itself. What says the treaty of 1794, § 7? That where American citizens have sustained losses or damages, \"by reason of irregular or illegal captures, or condemnations of their vessels, or other property, under colour of authority or commissions from His Majesty, and adequate compensation cannot be obtained by the ordinary course of judicial tribunals, full and complete compensation for the same will be made by the British government to the said complainants.\" The very ground of the treaty is, that the municipal remedy is inadequate; and that the party has a right to compensation for illegal captures, by an appeal to the justice of the government. It was never understood, that the case was one to which the doctrine of donation applied. The right to compensation, in the eye of the treaty, was just as perfect, though the remedy was merely by petition, as the right to compensation for an illegal conversion of property, in a municipal Court of Justice. The case of Randall vs. Cochran, (1 Vez. 98,) stands upon the true ground. It considers the right of indemnity as travelling with the right of property. In that case it might have been said, in answer to the claims of the underwriters,  that they had no title, because it was a case of donation by the crown, out of funds provided by reprisals. So, perhaps, the commissioners thought, but Lord Hardwicke decided otherwise. There cannot be a doubt, that if the party injured had died before or after the treaty was made, and compensation had been subsequently decreed, it would have been assets, and distributable as such, in the hands of his executors and administrators. The remarks which have been made upon this case, are equally applicable to the provisions for indemnity, under the treaty with Spain. It recognised an existing right to compensation, in the aggrieved parties, and did not, in the most remote degree, turn upon the notion of a donation or gratuity. It was demanded by our government as matter of right, and as such it was granted by Spain. \nWe may now come to the point, which indeed is the only one of any intrinsic difficulty in the cause -- whether the right, so vested in Vasse, to compensation, passed, under the bankruptcy assignment, to his assignees? That this is a question free of doubt, will not be affirmed by any person who has thoroughly examined it, or read with care the elaborate opinion of the  Court below. The true solution of it must be found in a just exposition of the object, intent, and language of the Statute of Bankruptcy of 1800, ch. 19. The Act begins by an enumeration of the persons who are liable to be declared bankrupts,  and among them are \"underwriters or marine insurers.\" This plainly shows the sense of the legislature, that such persons might, by the ordinary course of their business, be reduced to insolvency, and be justly placed within the beneficial operation of such a law. It tends also to the presumption, that it might have been the intent of the legislature, that the rights devolved upon them, from the nature of the losses for which they were liable, so far as under any circumstances they might or could be valuable rights, should be available as a fund for the benefit of their creditors, in case of their bankruptcy.As the legislature meant to exonerate the underwriter from all future liability for his debts; it would seem natural that the claims abandoned to him, which might constitute the whole of his effective estate, should be vested in his assignees, for the benefit of his creditors. If he possessed claims by abandonment, to the amount  of 100,000 dollars, which might, by future events, be rendered more or less productive, and which might be, (as they have often been,) saleable and transferrible in the market; such funds, present or expectant, might well be deemed within the legislative policy, and fit to pass to the creditors by assignment. It might otherwise happen, that large recoveries might ultimately vest in the bankrupt, for his own exclusive benefit, upon rights pre-existent, and vested at the time of his bankruptcy. If such a course of legislation would not be unnatural, let us next see what is the precise language of the statute itself. The fifth section declares, that it shall be the duty of the commissioners, after the party has been declared a bankrupt, \"to take into their possession all the estate, real and personal, of every nature and description, to which the bankrupt may be entitled, either in law or equity, in any manner whatsoever, &c.; and also to take into their possession, and secure, all deeds and books of accounts, papers and writings, belonging to the bankrupt; and shall cause the same to be safely kept, until assignees shall be chosen, or appointed.\" \nThese words are certainly very general  and comprehensive. \"All the estate, real and personal, of every nature and description, in law or equity,\" are broad enough to cover every description of vested right and interest, attached to and growing out of property. Under such words, the whole property of a testator would pass to his devisee. Whatever the administrator would take, in case of intestacy, would seem capable of passing by such words. It will not admit of question, that the rights devolved upon Vasse, by the abandonment, could, in case of his death, have passed to his personal representative; and when the money was received, be distributable, as assets. Why then should it not be assets in the hands of the assignees?  Considering it in the light in which Lord Hardwicke viewed it, as an equitable trust in the money; it is still an interest, or at all events, a possibility coupled with an interest. Besides, \"all deeds, books, accounts, papers, and writings of the bankrupt,\" are to be taken into possession. Now the abandonment, and other documents connected with it, fall precisely within these terms; and as we shall immediately see, whatever is taken possession of by the commissioners, is to be passed  to the assignees. The sixth section provides \"that the commissioners shall assign, transfer, or deliver over, all and singular the said bankrupt's estate and effects aforesaid, with \"all muniments and evidences thereof,\" to the assignees so chosen. And for the most part, the words \"estate and effects\" are used throughout the Act, as descriptive of  the property passing under the assignment. The 11th, 12th, and 13th sections of the Act, respect more particularly the transfer of the real estate, of the mortgages, and of the debts of the bankrupt. It is only necessary to say, that they contain no language abridging the proper inferences deducible from the language of the fifth section. \nThe 18th section contains provisions respecting the surrender and examination of the bankrupt, and are very material. It provides, that upon such examination, he shall \"fully and truly disclose and discover all his or her effects and estate, real and personal, and how and in what manner, and to whom and upon what consideration, and at what time or times, he or she hath disposed of, assigned, or transferred, any of his or her goods, wares, or merchandise, moneys, or other effects and estate;  and of all books, papers, and writings, relating thereunto, of which he or she was possessed; or in which he or she was in any ways interested or entitled, or which any person or persons shall then have, or shall have had in trust for him or her, or for his or her use, at any time before or after the issuing of the said commission; or whereby such bankrupt, or his or her family, then hath or may have, or expect any profit, possibility of profit, benefit, or advantage whatsoever, &c.\" It then goes on further to provide, that the bankrupt shall, upon such examination, execute in due form of law, such conveyance, assurance, and assignment, of his or her estate, whatsoever and wheresoever, as shall be deemed and directed by the commissioners to vest the same in the \"assignees;\" and also requires the bankrupt to deliver up \"all books, papers, and writings relating thereunto,\" which are in his possession, custody, or power, at the time of the examination: upon his default in these particulars, he is deemed a fraudulent bankrupt, and deprived of a right to a certificate of discharge, and subjected to severe punishments. If there were any doubt upon the meaning of the language of   the fifth section, we think it is cleared up and illustrated by that of the present. Here, the words \"profit, possibility of profit, benefit, or advantage whatsoever,\" are used, and show that mere interests in presenti, and capable of present enjoyment, were not alone within the scope of the legislative enactments, but also all such interests, or possibilities of interest, as might thereafter beneficially arise from present vested rights. It extends to such effects and estate, \"whereby the bankrupt then hath, or may have or expect any profit.\" It has been supposed, that this clause looks solely to property, which was not capable of assignment, at the time of the bankruptcy, because not then vested; inasmuch as the bankrupt himself, and not the commissioners, is required to make an assignment of it. If this were so, it would not affect the present case, because we are of opinion, that the claim under consideration, was completely vested in right and interest in Vasse, at the time of his bankruptcy. We think, however, that this clause does not justify so narrow an interpretation. The disclosure is required of estate and effects, in which the bankrupt was interested, as well before  as after the issuing of the commission; and the bankrupt is required to execute conveyances, not of such estate and effects merely, as accrued after the commission, but of his estate, \"whatsoever and wheresoever.\" The object of the provision was to make such conveyances auxiliary to, and confirmatory of the assignments made by the commissioners; and we believe, that in practice, it was so generally understood and acted on, while the statute was in force. The 50th section of the Act, has been supposed to demonstrate the correctness of the construction of the statute contended for by the counsel for the original plaintiff. It declares \"that if any estate, real or personal, shall descend, revert to, or become vested in, any person, after he or she shall be declared a bankrupt, and before he or she shall obtain a certificate, &c. all such estate shall, by virtue of this Act, be vested in the said commissioners, and shall be by them assigned and conveyed to the assignees, &c. This section plainly refers to estate to which the bankrupt had no right or title whatever, in law or equity, vested in interest or in possession, at the time of his bankruptcy. The cases put, are of property descending,  reverting to, or becoming vested in the bankrupt. In respect to a descent cast, after the bankruptcy, it is manifest, that nothing could pass by any antecedent assignment of the commissioners. \nThe heir, during the lifetime of his ancestor, has no right, claim, title, or interest, in the ancestral estate.It is a mere naked expectancy, liable to be defeated at the will of the ancestor at all times; and in no just sense, a possibility of interest, a right in the thing itself. The other words, \"reverting  to, or become vested\" in the bankrupt, require a like interpretation. They allude to cases where the party had nothing vested in him, as a subsisting interest, either absolute or contingent, in esse or in futuro, until after the bankruptcy: and when any such interest falls in before the certificate of discharge, the commissioners, and not the bankrupt, are to assign it; a circumstance which demonstrates that no stress ought to be laid upon that part of the 18th section, already alluded to, respecting a conveyance by the bankrupt himself; except as a confirmation, and not as a principal assurance. It seems to us then, that the 50th section aids, rather than shakes the interpretation  of the statute, which has been already announced. It applies to no possibility of profit, benefit, or advantage, vested at the time of the bankruptcy, (as the present case is;) but to interests accruing to the party for the first time, de jure as well as de facto, after the bankruptcy. This view of the matter renders it unnecessary to consider, whether there is any substantial difference between the English statutes of bankruptcy and our own, on this subject; and of course, in the authorities applicable to it. Our opinion proceeds upon the purview and objects, and on the terms of our own statute; and we are accordingly of opinion, that the judgment of the Circuit Court ought to be reversed, and a judgment entered in favour of the original defendants. It is to be understood, that upon the last point, this is the opinion of the majority of the Court. \nThe cause must be remanded, with directions to enter a judgment accordingly, for the original defendants. \n This cause came on, &c. on consideration whereof, It is ordered and adjudged by this Court, that the judgment of the said Circuit Court, in this cause, be and the same is hereby reversed and annulled -- and that a judgment  be entered in the suit, in favour of the plaintiffs in error, Cornelius Comegys and Andrew Pettit; and the cause remanded to said Circuit Court, with directions to enter judgment for the plaintiffs in error in this Court, Cornelius Comegys and Andrew Pettit, accordingly. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the Court. -- \nThis is an action of trespass, de bonis asportatis, brought in the Circuit Court, for the district of Pennsylvania, by the Atlantic Insurance Company, to recover against the defendant John Conard, the Marshal of that district, the value of certain teas, shipped on board the ships Addison and Superior, and levied upon by him, upon an execution, in favour of the United States, against one Edward Thomson, as the property of the latter. The real question in the cause is, whether the Insurance Company or the United States, are entitled to the teas or their proceeds. \nThe material facts, disclosed at the trial in the Circuit Court, were, as follows: -- Edward Thomson was a merchant,  largely engaged in trade in the city of Philadelphia, in the year 1825; and on the 21st day of June of that year, borrowed, at respondentia, of the Insurance Company, the sum of 21,000 dollars, upon goods, &c. on board of the ship Addison, of that port, on a voyage, at and from Philadelphia, to Canton, and at and from thence, back to Philadelphia; beginning the risk, on the 21st of the preceding April; about which time the ship had sailed on the voyage. Edward Thomson had shipped on board of the Addison, for his own account and risk, for the voyage, 21,000 Spanish dollars, consigned to J. R. Thomson, his agent and his assigns, and deliverable to him in Canton; and regular bills of lading were accordingly signed; one of which, was retained by the shipper. At the time of the execution of the respondentia bond, a memorandum of agreement was entered into by the parties, and an assignment made on the back of this bill of lading. The form and effect of these instruments, will be matter of more particular comment hereafter; at present it is only necessary to add, that the loan purports, on the face of the bond, to be a loan for the joint account of E. Thomson, E. H. Nicoll, F. H. Nicoll,  and F. S. Bailey; but in reality, the transaction was for the use and benefit of E. Thomson, and the goods shipped in the Addison, were on his sole account. \nOn the 14th July of the same year, a loan was made to Edward Thomson, of 13,960 dollars, on goods on board the ship Superior, which had sailed on a similar voyage, on the 6th of June preceding.  A respondentia bond was taken in the same form, from the same parties, on the like voyage, with a similar memorandum of assignment of the bill of lading. The only difference between the transactions was, that this loan was applied in part payment of a former loan, made by the Insurance Company on another ship of E. Thomson's. On the 19th of November E. Thomson, having become insolvent, made a general assignment of all his property to Peter Mackie, and Richard Renshaw; for the use of his creditors. At this time, he was very largely indebted to the United States on duty bonds. The Addison left Canton on her return to Philadelphia, having among her papers a bill of lading of the proceeds of the 21,000 dollars, consigned by the shipper (Mr. Fisher attorney for J. R. Thomson,) to order, in blank, and endorsed, in blank, by the  shipper, and marked No. 5. This mark was to identify them as the proceeds of the 21,000 dollars. Mr. Fisher also gave the master a manifest, stating the cargo to be consigned to E. Thomson, and a general bill of lading of the whole cargo, consigning it to E. Thomson. The invoice and bill of lading, were dated 22d November 1825. The general bill of lading was not signed. The Superior left Canton, having among her papers a bill of lading of certain articles, valued in the invoice at 3393 dollars, consigned to Peter Mackie, and also a bill of lading of certain articles, valued at $1139.86, consigned to Barclay Arny, and both dated 2d December 1825. Before the arrival of these ships in America, the United States had obtained judgments against E. Thomson, for large sums of money due upon his bonds at the Custom House. Both ships arrived in Delaware Bay, almost at the same time; and an execution issued on behalf of the United States, on one of the judgments against E. Thomson, on the 13th March 1826, and was levied on the ships and their cargoes, on the 15th of March while they were yet in the bay. It was under this levy, that the goods in controversy were seized by the marshal. \n Two or three days before the ships came up to Philadelphia, Peter Mackie, the assignee of E. Thomson, having received duplicates of the invoice and bills of lading of the cargo of the Addison, delivered them to the agents of the Insurance Company at Philadelphia; and upon the arrival of the ship itself, handed over, to the same agent, the invoices and bills of lading, brought by the master. On the 22d of March 1826, Peter Mackie and Barclay Arny endorsed to the Insurance Company the invoices and bills of lading, which came to their order by  the Superior. These papers came under cover to Edward Thomson, several being enclosed in the same envelop; and Mackie allotted them to their respective owners, by means of the numbers endorsed upon them. These numbers were originally  placed upon the outward and homeward bills of lading, and invoices, for the purpose of designating the proceeds of each particular shipment. It appeared, that part of the 13,960 dollars, borrowed of the Insurance Company on the goods in the Superior, was expended in disbursements in Canton; and the two invoices to Mackie and Arny, were consigned to them contrary to instructions; and they  assigned them to the Insurance Company, under the belief that they were the proceeds of the outward shipment pledged for the loan. The reason assigned for there being a manifest and general bill of lading, consigning the cargo to Edward Thomson, was to enable him to enter the cargo in his own name, after he had settled with the Insurance Company, and paid the respondentia loans. The several particular invoices and bills of lading, were then to be cancelled, and the master was to sign the general bill of lading, and the cargo was to be entered at the Custom House, in the name of E. Thomson. He was in the habit of taking up other large sums, at respondentia, and this was the usual course of his arrangements in business. \nSuch is the general outline of the case. The loan on the shipment in the Superior, as has been already stated, differs from that on the shipment in the Addison, only in the circumstance that it was applied in discharge of a prior loan. In our judgment, that makes no difference, as to the legal rights of the parties. The borrower had a right to apply the loan in any manner he pleased; and the mode of its application, if it be otherwise bona fide, and legal, does  not change the posture of the rights of the lender. We shall therefore dismiss, at once, all further consideration of this point; and treat both cases, as if they stood on a single shipment. \nSeveral objections have been taken to these respondentia bonds, to impeach their original validity. It is said, that they ought to be treated as usurious, or gaming contracts; that they are not to be deemed bona fide transactions, upon real risks; but transactions void in point of law, upon their face. So far as the questions of usury, or gaming, or bona fides, upon substantial risks, are matters of fact, they were left fully open, and have been passed upon by the jury, who have found a verdict against them; so far as there are matters of law apparent upon the record, proper to avoid the bonds, they are still open for inquiry. Two grounds have been relied on for this purpose; First, that the loans were made after the sailing of the ships on the voyage; and Secondly, that the money loaned was not appropriated to the purchase of the goods put on board, and was not the identical property, on which the risk was run. In our judgment, neither of these objections can be sustained. It is not necessary  that  a respondentia loan should be made before the departure of the ship, on the voyage, nor that the money loaned should be employed in the outfit of the vessel, or invested in the goods on which the risk is run. It matters not, at what time the loan is made; nor upon what goods the risk is taken. If the risk of the voyage be substantially and really taken; if the transaction be not a device to cover usury, gaming, or fraud; if the advance be in good faith, for a maritime premium; it is no objection to it, that it was made after the voyage was commenced, nor that the money was appropriated to purposes wholly unconnected with the voyage. The lender is not presumed to lend upon the faith of any particular appropriation of the money; and if it were otherwise, his security could not be avoided by any misapplication of the fund, where the risk was bona fide run upon other goods, and it was not a mere contract of wager and hazard. What could be the effect, if it were a mere wagering contract, it is unnecessary to consider; because there is the clearest proof here, that there was property on board belonging to the borrower, and sailing on the voyage at his risk. \nThe form  of the respondentia bond in the present case is, as far as we know, the common and usual form. The only deviation from the actual facts is, that it seems in some of its provisions to contemplate the voyage as not then commenced. This probably arose from using the common printed form, which is adapted to that, as the ordinary case. But it misled no one, and was certainly perfectly understood by the parties. The risk was taken for the whole voyage, precisely as if the ships had been then in port; and, if before the bonds were given, the property had been actually lost, by any of the perils enumerated in it, it is clear that the loss must have been borne by the lenders. They could not have recovered it back, since the event was one within the scope and contemplation of the contract. The safety then of the property, at that particular period, does not vary the rights of the parties; and from the very nature of the transaction, it must have been utterly unknown to both, whether the ship was at the time, in safety or not. They entered into the contract, upon the usual footing of policies of insurance, lost, or not lost. So far as this deviation from the fact bore upon the point of  the good faith and reality of the contract, as a genuine maritime loan, it was left to the jury to draw such inferences, as upon the whole circumstances, they were warranted to draw. The charge of the learned Judge, in the Circuit Court, was as favourable to the defence on this point, as it could be upon the principles of law. \nThe next question is, in whom was the property in the shipment vested, at the time of the levy of the execution of the United States. Was it so vested in the Insurance Company,  either in law or equity, that they are now entitled to maintain the present suit; or in other words, to recover the proceeds in the marshal's hands? This depends upon the view taken of the objects, intentions, and acts of the parties, as disclosed in the bonds, and the accompanying papers. When these are once ascertained and settled, it will not be difficult to arrive at the proper legal conclusion. \nIt is contended, on behalf of the United States, that no title or interest in the property shipped, passed by the instruments taken collectively,  to the Insurance Company; that Edward Thomson remained the sole owner of the goods, and their proceeds, during the  whole voyage; that at most, the Insurance Company had but a lien upon them for the security of their debt, which was displaced by the priority of the United States; and, finally, that if the Insurance Company had any title or interest in the property, it was not absolute, but by way of mortgage; and even this, coming in competition with the priority of the United States by operation of law, yields to their superior privilege. \nBefore proceeding to the discussion of the right of the Insurance Company over the property in question; it may be well to consider, what is the nature and effect of the priority of the United States, under the statute of 1799, ch. 128. Although that subject has been several times before this Court, the observations which have fallen from the bar, show, that the opinions of the Court have, sometimes, not been understood according to their true import. The 65th section of the Act declares, that \"in all cases of insolvency, or where any estate in the hands of executors, administrators, and assignees, shall be insufficient to pay all the debts due from the deceased, the debt or debts due to the United States &c. shall be first satisfied; and any executor, administrator,  or assignees, or other person, who shall pay any debt due by the person or estate, from whom, or for which they are acting, previous to the debt or debts due to the United States from such person or estate, being first duly satisfied, and paid; shall become answerable in their own person and estate, for the debt, or debts so due to the United States, or so much thereof, as may remain due and unpaid; and actions or suits at law may be commenced against them for the recovery of the said debt or debts, or so much thereof as may remain due and unpaid, in the proper Court having cognizance thereof.\" A subsequent clause of the same section declares, that, \"the cases of insolvency mentioned in this section, shall be deemed to extend, as well to cases, in which a debtor not having sufficient property to pay all his or her debts, shall have made a voluntary assignment thereof for the benefit of his or her creditors, or in which the  estate and effects, of an absconding, concealed, or absent debtor, shall have been attached by process of law; as to cases, in which an act of legal bankruptcy, shall have been committed.\" It is obvious, that this latter clause is merely an explanation  of the term \"insolvency,\" used in the first clause; and embraces three classes of cases, all of which relate to living debtors. The case of deceased debtors, stands wholly upon the alternative in the former part of the enactment. Insolvency then, in the sense of the statute, relates to such a general divestment of property, as would in fact be equivalent to insolvency in its technical sense. It supposes, that all the debtor's property has passed from him. This was the language of the decision in the case of the United States vs. Hooe (3 Cranch, 73;) and it was consequently held, that an assignment of part of the debtor's property, did not fall within the provision of the statute. So too, a mere inability of the debtor to pay all his debts, is not an insolvency within the statute; but it must be manifested, in one of the three modes pointed out in the explanatory clause already referred to. That was the point, on which the case of Prince vs. Bartlett, (8 Cranch, 431,) turned. \nWhat then is the nature of the priority, thus limited and established in favour of the United States? Is it a right, which supersedes and overrules the assignment of the debtor, as to any property which  the United States may afterwards elect to take in execution, so as to prevent such property from passing by virtue of such assignment to the assignees? Or, is it a mere right of prior payment, out of the general funds of the debtor, in the hands of the assignees? We are of opinion that it clearly falls, within the latter description. The language employed is that which naturally would be employed to express such an intent; and it must be strained from its ordinary import, to speak any other. \nAssuming that the words \"in all cases of insolvency,\" indicate an entire class of cases, and that the other member of the sentence \"or when any estate,\" &c., is to be read distributively, as has been contended for, on behalf of the United States; it does not, in the slightest degree, vary the construction of the statute. It will then read, that \"in all cases of insolvency, the debt or debts due to the United States, &c., shall be first satisfied.\" \nBut how are they to be satisfied? Plainly, as the succeeding clause demonstrates, by the assignees; who are rendered personally liable, if they omit to discharge such debt or debts. To enable the assignees to pay the United States, it is indispensable  that the fund should pass to them; and if the mere priority of the United States intercepted it, or gave a right to defeat it, the object of the statute would not be accomplished.  If the legislature had intended to defeat the passing of the property to the assignees, as against debts due to the United States, the natural language in which such an intention would be clothed, would be to declare, that so far, such assignments should be void. Then again, the very enumeration of the cases of insolvency, in all of which the assignment passes, and is to pass the whole of the debtor's property, confirms the interpretation already asserted.They are the very cases, where by law there is no exception as to the extent or operation of the assignment to divest the debtor's estate. One of these is the case of a legal bankruptcy; and in the Act on this subject, passed in the next session of Congress, there is an express provision, in the 62d section, that \"nothing contained in this law shall in any manner affect the right or preference to prior satisfaction of debts due to the United States,\" as secured or provided, by any law heretofore passed. Yet the bankrupt Act contains no exception  as to the property to be passed to the assignees, in favour of any person. In the case of the United States vs. Fisher et al. 2 Cranch, 358, which was decided upon great deliberation; this Court held, in the construction of a similar clause in the Act of 3d March 1797, ch. 74, that \"no lien is created by this law; no bona fide transfer of property in the ordinary course of business, is overruled. It is  only a priority in payment, which under different modifications, is a regulation in common use; and this priority is limited to a particular state of things, when the debtor is living, though it takes effect generally, if he be dead.\" And this doctrine was again recognised in the United States vs. Hooe, 3 Cranch, 73. 90. \nIf then the property of the debtor passes to the assignees; if debts due to the United States constitute no lien on such property; if the preference or privilege of the United States be no more than a priority of satisfaction or payment out of a common fund; it would seem to follow, as a necessary consequence, that even if the teas in controversy, were the property of Edward Thomson, they passed by his general assignment, in November 1825, (which is not  denied to have been a bona fide, and valid transaction,) to his assignees; and become their property for distribution among his creditors; and were not liable to the levy under the execution of the United States. \nThat, however, would be a question merely between the United States and the assignees, and would in no shape help the Atlantic Insurance Company to maintain their present suit. \nThen, again, it is contended on behalf of the United States, that the priority thus created by law, if it be not of itself  a lien, is still superior to any lien, and even to an actual mortgage, on the personal property of the debtor. \nIt is admitted, that where any absolute conveyance is made, the property passes so as to defeat the priority; but it is said that a lien has been decided to have no such effect; and that in the eye of a Court of Equity a mortgage is but a lien for a debt. Thelluson vs. Smith, (2 Wheat. 396,) has been mainly relied on, in support of this doctrine. That case has been greatly misunderstood at the bar, and will require a particular explanation. But the language of the learned Judge who delivered the opinion of the Court, in that case, is conclusive on the  point of a mortgage. \"The United States,\" said he, \"are to be first satisfied; but then it must be out of the debtor's estate. If, therefore, before the right of preference has accrued to the United States, the debtor has made a bona fide conveyance of his estate, to a third person; or has mortgaged the same to secure a debt -- or if his property has been seized under a fieri facias, the property is divested out of the debtor, and cannot be made liable to the United States.\" The same doctrine may be deduced from the case of United States vs. Fisher, (2 Cranch, 358,) where the Court declared, that \"no bona fide transfer of property in the ordinary course of business, is overreached by the statutes;\" and \"that a mortgage is a conveyance of property, and passes it conditionally to the mortgagee.\" If so plain a proposition required any authority to support it, it is clearly maintained in United States vs. Hooe, (3 Cranch, 73.) \nIt is true, that in discussions in Courts of Equity, a mortgage is sometimes called a lien for a debt. And so it certainly is, and something more; it is a transfer of the property itself, as security for the debt. This must be admitted to be true at law; and  it is equally true in equity; for in this respect equity follows the law. It does not consider the estate of the mortgagee as defeated and reduced to a mere lien, but it treats it as a trust estate, and according to the intention of the parties, as a qualified estate, and security. When the debt is discharged, there is a resulting trust for the mortgagor. It is therefore only in a loose and general sense that it is sometimes called a lien, and then only by way of contrast to an estate absolute, and indefeisible. But it has never yet been decided, by this Court, that the priority of the United States will divest a specific lien, attached to a thing, whether it be accompanied by possession, or not. Cases of lien, accompanied by possession, are among others; the lien of a ship's owner to detain goods for freight; the lien of a factor on the goods of his principal for balances due him; the lien of an artisan for work and services upon the specific thing. On the other hand, there are liens  where the right is perfect, independent of possession; as the lien of a seaman for wages, and the lien of a bottomry holder on the ship for the sum loaned. In none of these cases has  it ever been decided, that in a conflict of satisfaction out of the thing itself, the priority of the United States cut out the lien of the particular creditor.And before such decision is made, it will deserve very grave deliberation, and a marked attention to what fell from the Court, in Nathan vs. Giles, (5 Taunt. 558. 574.) At present it is wholly unnecessary to decide it, for reasons which will hereafter appear. The case of Thelluson vs. Smith, (2 Wheat. 396,) is not understood to justify any such conclusion. That case turned upon its own particular circumstances. A judgment, nisi, was obtained against Crammond on the 20th of May 1805, in favour of Thelluson and others. On the 22d of the same month he executed a general assignment of all his estate to trustees for the payment of his debts. At that time he was indebted to the United States, on several duty bonds, which became due at subsequent periods. Suits were instituted on these bonds, as they severally became due, and judgments were obtained and executions issued against Crammond, under which a landed estate called Sedgely, was levied upon and sold by the marshal; and the action was brought by Thelluson and others, against  the marshal, to recover the proceeds of this sale in his hands. No execution had ever issued upon the judgment of Thelluson and others against Crammond, and of course there had been no levy under that judgment on the Sedgely estate, before or after the levy in favour of the United States. It was admitted, that in Pennsylvania a judgment constitutes a lien on the real estate of the judgment debtor; and it was assumed by this Court, in the argument of the cause, that the judgment of Thelluson and others, bound the estate from the 20th of May, when it was entered, nisi, although in fact it was not finally entered, until nearly a year afterwards. The posture of the case then was, that of a judgment creditor seeking to recover the proceeds of a sale of land sold under an adverse execution, out of the hands of the marshal; upon the ground of his having a mere general lien, by his judgment, on all the lands of his debtor; that judgment never having been consummated, by any levy on the land itself. The Court decided that the action was not  maintainable. The reasons for that opinion are not, owing to accidental circumstances, as fully given as they are usually given in this  Court. But the arguments of the counsel, point out grounds upon which it may have proceeded, without touching the general question of lien. The plaintiffs were entitled to recover only, upon the ground that they could establish in themselves a rightful title to the proceeds. Whether the land  itself was rightfully sold under the execution of the United States, or any title to it passed by the sale, as against the assignees of Crammond, was not matter of inquiry in that case. However tortious or invalid it might be, still, if the plaintiffs had no title to the proceeds, they must fail in their action. Under the general assignment of the debtor, the priority of the United States attached; and if the assignees were willing to acquiesce in the sale, the right of the United States to hold the proceeds, could not be disturbed by third persons. Now, it is not understood that a general lien by judgment on land, constitutes, per se, a property, or right, in the land itself. It only confers a right to levy on the same, to the exclusion of other adverse interests, subsequent to the judgment; and when the levy is actually made on the same, the title of the creditor for this purpose  relates back to the time of his judgment, so as to cut out intermediate incumbrances. But, subject to this, the debtor has full power to sell, or otherwise dispose of the land. His title to it is not divested or transferred by the judgment to the judgment creditor. It may be levied upon by any other creditor, who is entitled to hold it against every other person except such judgment creditor: and even against him, unless he consummates his title by a levy on the land, under his judgment. In that event, the prior levy is, as to him, void; and the creditor loses all right under it. The case stands, in this respect, precisely upon the same ground as any other defective levy, or sale. The title to the land does not pass under it. In short a judgment creditor has no jus in re, but a mere power to make his general lien effectual, by following up the steps of the law, and consummating his judgment by an execution and levy on the land. If the debtor should sell the estate, he has no right to follow the proceeds of the sale, into the hands of vendor or vendee; or to claim the purchase money in the hands of the latter. It is not like the case where the goods of a person have been tortiously  taken and sold, and he can trace the proceeds, and, waiving the tort, chooses to claim the latter. The only remedy of the judgment creditor is against the thing itself, by making that a specific title which was before a general lien.He can only claim the proceeds of the sale of the land, when it has been sold on his own execution, and ought to be applied to its satisfaction. To this state of things, the language of the Court in Thelluson vs. Smith is to be applied, when it is said, that if the debtor's property is seized under a fi. fa. it is divested out of the debtor, and cannot be liable to the United States. Applying these principles to the facts of that case, it is clear that the Sedgely estate had not been divested out of the debtor by any execution on the judgment of Thelluson and others; that it either remained in  the debtor, and was liable to the execution of any other of his creditors, who choose to levy upon it, subject, of course, to have his title overruled by their subsequent levy, when perfected; or, that, subject in like manner, it passed by the assignment, (if that was bona fide,) to the assignees; and in their hands, the United States would have a priority  of payment out of it, as general funds, in their hands. The judgment creditors, as such, had no title to any fund in the hands of the assignees, until the priority of the United States was satisfied; for that priority does not yield to any class of creditors, however high might be the dignity of their debts. \nThe fact, that a judgment creditor has a lien, does not place him in a better situation, as a creditor, over the general funds of the debtor in the hands of the assignees. If he possess such a lien he must enforce it in the manner prescribed by law; and if he does, that may so far affect the interest of the assignees actually subjected to such lien. But it gives him no rights to the fund, until he has perfected his lien according to the course of the law. Until that period, he has merely a power over the property, and not an actual interest in it. This ground is alluded to in that part of the opinion of the Court, where speaking of the priority of the United States, it is said, \"the law makes no exception in favour of prior judgment creditors, &c. Exceptions there must necessarily be as to the funds out of which the United States are to be satisfied; but there can be none  in relation to the debts due from a debtor of the United States to individuals. The United States are to be first satisfied; but then it must be out of the debtor's estate.\" The real ground of the decision, was, that the judgment, creditor had never perfected his title, by any execution and levy on the Sedgely estate; that he had acquired no title to the proceeds as his property, and that if the proceeds were to be deemed general funds of the debtor, the priority of the United States to payment had attached against all other creditors; and that a mere potential lien on land, did not carry a legal title to the proceeds of a sale, made under an adverse execution. This is the manner in which this case has been understood, by the Judges who concurred in the decision; and it is obvious, that it established no such proposition, as that a specific and perfected lien, can be displaced by the mere priority of the United States; since that priority is not of itself equivalent to a lien. \nWe may then dismiss any farther consideration of this topic, unless it shall appear that the right of the respondentia holders in the present case, is reduced to a mere general lien; and as to them, at least,  (however it may be as to the assignees,) no legal right exists to maintain an action for the proceeds.  The attention of the Court will then be at once addressed, to the question, what was the nature and extent of the interest of the Insurance Company in the shipments in question. It is unnecessary to discuss what would have been the rights of the parties, if the respondentia bonds had stood alone; for that is not the posture of this case. The whole instruments must be taken together, and construed as one entire agreement. We must then examine the memorandum, the outward bill of lading and assignments thereon, in connexion with the bond. The bill of lading  purports, on its face, to be a shipment by Edward Thomson, of seven kegs containing 21,000 dollars, for account and risk of the shipper; to be delivered at Canton to John R. Thomson, or his assigns. By the well settled principles of commercial law, the consignee is thus constituted the authorized agent of the owner, whoever he may be, to receive the goods, and by his endorsements of the bill of lading, to a bona fide purchaser, for a valuable consideration, without notice of any adverse interests, the  latter becomes as against all the world, the owner of the goods. This is the result of the principle, that bills of lading are transferable by endorsement, and thus may pass the property. It matters not whether the consignee, in such case, be the buyer of the goods, or the factor, or agent of the owner. His transfer in such a case is equally capable of divesting the property of the owner, and vesting it in the endorsee of the bill of lading. And, strictly speaking, no person but such consignee can by an endorsement of the bill of lading, pass the legal title to the goods. But if the shipper be the owner, and the shipment be on his own account, and, risk, although he may not pass the title by virtue of a mere endorsement of the bill of lading, unless he be the consignee, or what is the same thing, it be deliverable to his order; yet by any assignment, either on the bill of lading, or by a separate instrument, he can pass the legal title to the same; and it will be good against all persons, except such a purchaser for a valuable consideration, by an endorsement of the bill of lading itself. Such an assignment, not only passes the legal title as against his agents and factors, but  also against his creditors, in favour of the assignee. It is unnecessary to cite particular authorities on these points: they will be found supported by the authorities cited at the argument, and by the elementary treatises of Mr. Abbott, Mr. Holt, and Mr. Chitty, on this subject; and particularly by Nathan vs. Giles, 5 Taunt. 558. In the present case Edward Thomson was the owner of the goods, and the consignee was merely his factor. He therefore had full power, notwithstanding the consignment, to pass the title to the property in the bill of lading, by a suitable instrument of assignment and sale against any body, but a purchaser  without notice from his consignee, without any actual delivery of the goods themselves, if they were then at sea, and incapable of manual tradition. \nThe question then is, whether the endorsement upon this bill of lading, constitutes such an instrument? We are of opinion that it does. It purports to be a transfer in presenti; and uses the appropriate phrases of grant.The words are, \"for value received, I hereby assign and transfer to the Atlantic Insurance Company of New-York, the within bill of lading, and the specie, goods, &c., to be procured  thereon and thereby, and any return cargo, to be obtained &c. by the proceeds thereof; and all the return cargo to be taken on board the within named ship, by or on my account, as collateral security, according to an agreement duly executed, and adjoined to a respondentia bond, &c., (referring to the memorandum hereinafter stated.) This is not a mere assignment of the bill of lading itself, operating as an equitable grant of the interest of the owner in that instrument; but it is of the goods contained in it, and the bill of lading is referred to, by way of description of the subject matter of the grant. There was a valuable consideration for it; and as Edward Thomson was the legal owner of the goods, the words \"assign and transfer,\" are sufficient words of grant to pass his legal title to the same; unless the operation of those words is controlled by some of the other parts of the instrument. The argument admits this; but it supposes, that the accompanying memorandum shows, that such was not the intention of the parties; and therefore the words are to be construed according to that intention; which was to create a mere lien or equity on the part of the Insurance Company, on the  goods. Let us then examine the nature and scope of that memorandum. It begins by a recital, that it hath been agreed that the bill of lading for the goods &c. mentioned in the respondentia bond, shall be endorsed to the Insurance Company, as a collateral security for the loan. This is carried into effect by the assignment above mentioned. It then goes on to recite, that it has been further agreed that the property to be shipped homeward, as aforesaid, being the proceeds of the loan, (thus considering the specie on board, as a substituted loan,) shall be for the account and risk of the borrowers; that the bills of lading, therefore, shall express the same, and shall also express that the said property shall be delivered to the order of the shippers; and that the same shall be endorsed in blank, and shall be placed in the hands of the Insurance Company, either before or on the arrival of the said ship, at Philadelphia, as a continuation of such collateral security. \nNow, supposing the transaction bona fide, what is there here that controls, even by way of recital, the operation of the words  of transfer. If the case were one of absolute transfer, there might be some room  for doubt. But here the transfer was as collateral security. It was therefore a mortgage of the goods, and the returns. The shipment out and home, was, as in each case it must be, at the risk, and for the account of the shipper; subject however to the rights of the mortgagee; and the very provision that the bills of lading should be delivered to the order of the shipper, and endorsed in blank, and placed in the hands of the Insurance Company, establishes the fact, that it was the intention of the parties that the property of the return cargo, should rest by such endorsement in them. The memorandum then proceeds to state, that it is expressly declared that the endorsement or consignment shall not be held to exonerate the persons of the borrowers; nor compel the Insurance Company to accept the goods, &c. which may arrive under such bill of lading and consignment, in discharge of such debt; but that it shall be lawful for the company to receive and hold the goods, &c. for ninety days after their arrival at Philadelphia; and if the debt was not then paid, to sell the same at auction, and charge the borrowers with the balance. The plain effect of this stipulation is to avow an explicit  understanding, that the assignment of the goods should not put them at the risk of the company, but that they should be deemed collateral security only, and be sold after the limited time, to discharge the  debt, pro tanto. So far from the intention being indicated, that no property at all was to pass to the company, the solicitude of the parties seems most carefully employed to repel the notion, that the transfer was absolute and not by way of mortgage, as collateral security. The memorandum, therefore, confirms and does not impugn, in any degree, the natural construction of the language of the assignment endorsed on the bill of lading, as importing a present transfer. Indeed we may go farther and assert, that the obvious intention of the parties was to give a specific interest in the goods shipped, so as to make them secure against the claims of creditors; and, that to construe the instruments to create no more than a lien, liable to be defeated by the acts of either party, or to be overreached by any privileged creditors, would be, not to follow, but to frustrate their intention. Of what use could this great apparatus of instruments, so anxiously prepared by the parties,  be, if it conveyed no jus in re, and left the title of the Insurance Company to the goods, at the mercy of the creditors of Thomson, to be intercepted at any time before it reached their hands, on its arrival. We are therefore of opinion, that the assignment in this case was sufficient to pass a legal title to the shipment and the proceeds thereof, against Thomson and his assignees and creditors. If, indeed, the assignment had been of the outward shipment of  goods only, it would have carried the return cargo, purchased with the proceeds; because the product or substitute for the original thing by sale, or otherwise, follows the nature of the thing itself, so long as it can be ascertained as such, and becomes the property of him who was the owner, in the same quality as he held the thing.This is the general principle of law, and has been even extended to cases, where there has been a fraudulent or tortious misapplication of property. The case of Taylor vs. Plumer, 3 Maul & Selw. 562, is directly in point; and contains a large collection of the authorities in the elaborate opinion of the Court, pronounced by Lord Ellenborough. In this view of the matter, the only value  of the homeward bill of lading would be as a designation of the proceeds, so as to enable the company to trace and identify them. But the assignment, in terms, transfers the proceeds and returns, and cuts off all possibility of question upon this head. If indeed the title to the proceeds had originally been only an equitable title, and not strictly legal; yet as soon as the company had perfected that equity, by endorsement in blank, and possession of the homeward bills of lading, their right would have been consummated at law, so as to entitle them to maintain a suit therefor. The case of Haille vs. Smith, (1 Bos. & Pull. 563,) was not so strong as the present; and there the Court held, that the property passed, clothed with a trust for the payment of the debt. \nIf this, then, be the result of the general principles of law, in cases of this nature, what is there to prevent their application to the present case? First, it is said that this debt upon a respondentia bond is of too contingent a nature to uphold a mortgage, as collateral security for the payment of it. We know of no principle or decision, that justifies such a conclusion. Mortgages may as well be given to secure future  advances and contingent debts, as those which already exist, and are certain and due.The only question that properly arises in such cases is, the bona fides of the transaction.Then, again, it is said that the papers here disclose a transaction fraudulent in its own nature. But we are of opinion that there is no necessary implication of law on the face of these papers, which stamps it fraudulent; for ought that appears, the agreement may have been entered into with the most sincere and scrupulous good faith; and whether fraudulent or not, in fact, was a question for the jury upon the whole evidence, which was properly left to their consideration; and they have by their verdict negatived the fraud. \nThe circumstance, that the goods were to be at the risk of the shipper and on their account, does not, of itself, affect either the validity or bona fides of the transfer. That must ordinarily occur, where the transfer is made as collateral security, and it  was one of the leading facts in Haille vs. Smith, already cited. 1 Bos. & Pull. 563. \nBut the main objection relied on, and which indeed constitutes one of the exceptions to the opinion of the Circuit Court, is, that possession  of the return shipment was not obtained until after the levy by the United States; and it is contended, that the want of such possession is, per se, a badge of fraud. The Circuit Court on this point decided, \"that the actual possession of the above return cargoes, by the masters of the Superior and Addison, until levied upon by execution at the suit of the United States against Thomson, is not, per se, in law, a badge of fraud, which ought to invalidate or affect the title of the plaintiffs to these cargoes.\" \nIt appears to us that this decision is entirely correct in point of law, under the circumstances of the case. \nWithout undertaking to suggest whether, in any case, the want of possession of the thing sold constitutes, per se, a badge of fraud, or is only, prima facie, a presumption of fraud; a question, upon which much diversity of judgment has been expressed; it is sufficient to say, that in case even of an absolute sale of personal property, the want of such possession is not presumptive of fraud, if possession cannot, from the circumstances of the property, be within the power of the parties. \nA familiar example of this doctrine is in the case of a sale of a ship, or goods  at sea, where possession is dispensed with upon the plain ground of its impossibility; and it is sufficient if the vendee takes possession of the property, within a reasonable time after its return home. But in cases where the sale is not absolute, but conditional, the want of possession, if consistent with the stipulations of the parties, and, a fortiori, if flowing directly from them, has never been held, per se, a badge of fraud. The books are full of cases on this subject. The case of Bucknal vs. Royston, Prec. in Chan. 285, runs almost upon all fours with the present. The case of Sturtevent vs. Ballard, 9 John. 338, and Bissell vs. Hopkins, 3 Cowen, 166, contains strong illustrations of the principle; and being decisions in the very state, by whose laws the validity of the present  agreement is to be tried, are of high authority. They sustain the doctrine asserted by the Circuit Court, in the most ample manner; and there is a learned note by the Reporter to the latter case, which embodies in an exact manner the principal authorities, English as well as American, on this subject. Now, in the case at bar, the goods at the time of the transfer wero at sea, on a voyage,  in which they were to be sold, or exchanged by the consignee, and the proceeds sent back in the same ships. It was therefore properly in the contemplation of the parties, and indeed a necessary result of their stipulations, that the  goods should not be intercepted, or taken possession of by the company, until the close of the voyage; and that the return shipments should conform to this arrangement. \nThere is no pretence to say, that the plaintiffs did not seek possession of the goods within a reasonable time after the arrival of the goods home. Their power to accomplish it was dislodged by the execution of the United States, and they obtained, as early as practicable, possession of the bills of lading and vouchers of their rights. But so far as the want of possession was matter of evidence presumptive of fraud, it was left open to the consideration of the jury; and the grievance now is, not that it was so left, but that the Court ought to have instructed the jury, as matter of law, that the want of possession, under the circumstances of the case, was, per se, a badge of fraud. \nWe have already expressed an opinion, that the Court were right in the instructions actually  given. \nUpon the whole we are of opinion, that the directions of the Court upon the merits of the cause at the trial, were correct in point of law; and that consequently there is no error in that part of the judgment. \nIt remains to consider, very briefly, certain exceptions taken to the testimony in the progress of the trial. \nThe first exception is, that the corporate capacity of the plaintiffs was not regularly proved, before the introduction of the respondentia bond. It is to be considered, that this was a trial upon the merits; and by pleading to the merits, the defendants necessarily admitted the capacity of the plaintiffs to sue. If he intended to take the exception, it should have been done by a plea in abatement, and his omission so to do, was a barrier of this objection. But, independently of this special ground, the very agreement in the case upon which the trial was had, as well as the admissions of the bond given to the United States, as security to refund the amount, if judgment should pass against the plaintiffs, was certainly, prima facie, evidence of an admission, on the part of the United States, of the corporate capacity of the plaintiffs, and to throw the burthen  of proof on the other side. \nThe second exception was to the question put to Austin L. Sands, whether he was agent of the company. \nWe see no objection to this question. It was put in a form most unexceptionable; and it was a matter of subsequent inquiry, in what manner his agency was created; and it does not appear, from the nature of the question, whether it might not have been sufficient to establish that he was an agent, de facto, to receive the bond. It was indeed but an exception to the order of proofs, where several things are to be established to lead to a result; and in what order the inquiry is to be had, is  matter of discretion in the Court itself, and not of absolute right in the party. \nThe next exception is to the allowance of the bond to go to the jury, upon proof of its execution, by Thomson only. \nIt was a joint and several bond, and if executed by Thomson alone, it might be material to the plaintiffs' case. It was not introduced as general evidence, as to all the parties who were named in it; but only as to Thomson, and was connected with the title derived under him. Proof of the signature of Thomson, was, under the circumstances, prima facie evidence  of his execution of the instrument. \nThe fourth, fifth, sixth, and seventh exceptions, turned altogether upon the question whether acts and proceedings of third persons, not in privity with the Insurance Company, nor known to them, were evidence against them? Most clearly they were not. \nThe eighth exception involves the point, whether the plaintiffs were bound to look to the application of the loan made by them. If not, the question asked was properly rejected. And we are of opinion, that the plaintiffs had nothing to do with the application of the money; and that when received by Thomson, he had a right to dispose of it in any manner he pleased. \nUpon the whole, the judgment of the Circuit Court is to be affirmed with costs. \nJudgment affirmed, with costs. \nConcur by:", " \nOpinion \n\n \n \n  Mr. Justice STORY, delivered the opinion of the Court. -- \nMessrs. Rabaud, Brothers & Co., of Marseilles, brought  a suit in the Circuit Court of the southern district of New-York, against James D'Wolf jun. (the plaintiff in error,) to recover damages, for not shipping them 500 boxes of sugar on account of one George D'Wolf, according to an agreement entered into by him with them. The declaration contained four counts, and in each of them the substance of the contract stated, is that the defendant, in consideration that one Belknap (one of the partners in the house of Rabaud, Brothers & Co.,) would authorize George D'Wolf to draw on the plaintiffs for 100,000 francs, undertook and promised, that he would ship for the account of George D'Wolf, on board such vessel as he, George D'Wolf should direct, five hundred boxes of white Havana sugar, consigned to the plaintiffs at Marseilles. The declaration then proceeds with the proper ayerments, and breaches, necessary to maintain the action: upon the trial, under the general issue, the jury found a verdict for the plaintiffs, and judgment was given for them accordingly. The cause now comes before this Court upon a writ of error, and bill of exceptions, taken at the trial. \nThe bill of exceptions is voluminous, and contains, at large, the evidence admitted  at the trial, as well as the charge of the  learned Judge who presided at the trial. It is unnecessary to refer to that evidence, or to consider its nature bearing and extent, upon which so ample a comment has been made at the bar, except so far as it applies to some question of law decided by the Court, to which an exception has been taken. The whole facts were left open to the jury, and so far as they were imperfect, or inconclusive, the defendant has had the full opportunity of addressing his views to the jury, and they have found their verdict against him. \nIn the progress of the trial, a letter of the 27th December 1825, written by George D'Wolf to Belknap, was offered by the defendants in evidence, for the purpose of showing an authority from George D'Wolf to Belknap, to direct or name a vesel to the defendant, on board of which the sugars might be shipped. The defendant objected to its admission, and the objection was overruled. This constitutes the first ground of error, now insisted on by the defendant. We are of opinion that the letter was rightly admitted, for both of the reasons stated in the charge. It was evidence of such an authority; and the defendant  made no objection to it at the time, on account of any insufficiency in this respect; but put his defence by his letter of the 5th of January 1826, on an entirely distinct ground. \nAfter the evidence for the plaintiffs was closed, the defendant moved for a nonsuit, which motion was overruled. This refusal certainly constitutes no ground for reversal in this Court. A nonsuit, may not be ordered by the Court, upon the application of the defendant, and cannot as we have had occasion to decide, at the present term, be ordered in any case without the consent and acquiescence of the plaintiff, Elmore vs. Grymes, ante, page 469. In the further progress of the trial, upon the examination of one Frederick G. Bull, a witness for the defendant, the counsel for the defendant offered to prove, by Bull, that it was an express understanding and agreement between the defendant and George D'Wolf, at the time the letter of the 15th November 1825 (which will be hereafter more particularly noticed,) was signed by the defendant; that the latter should furnish the defendant with the funds necessary for the purchase of the sugar, before the defendant would be under any obligation to ship the same. This  testimony was rejected by the Court, unless it should also appear that Belknap was a party thereto, or that the same was brought home to his knowledge. We can perceive no error in this decision. If the defendant had entered into the contract with the plaintiffs, stated in the declaration, and the private arrangement made between the defendant and George D'Wolf, constituted no part of that contract, and was unknown to them, it certainly ought not to prejudice their rights. It was res inter alios acta; and had no legal  tendency either to disprove the plaintiffs'  case, or to exonerate the defendant from his liability. \nThe other exceptions are exclusively confined to the charge given to the jury, upon the summing of the Court, upon points of law. \nThe first objection was to the sufficiency of the evidence to establish the citizenship of Belknap, as averred in the declaration. This is now waived by the counsel, and indeed could not now be maintained, because it has been recently decided, by this Court, upon full consideration, that the question of such citizenship constitutes no part of the issue upon the merits, and must be brought forward by a proper plea  in abatement, in an earlier stage of the cause. \nThe great question upon the merits, arises upon that part of the charge, which relates to the agreement contained in the letter of the 1kth of November 1825, from George D'Wolf to the defendant, and the accompanying assent of the latter, with reference to the statute of Frauds. \nThat letter is in the following terms. -- \nNew-York, 15th November 1825. \nMR. JAMES D'WOLF, JUN. \nDear Sir: -- You will please ship for my account on board such vessel as I shall direct, five hundred boxes white Havana sugar consigned to Messrs. Rabaud, Brothers & Co. Marseilles, and oblige your friend and obedient servant, \n(Signed) GEORGE D'WOLF. \nAgreed to, (Signed) JAMES D'WOLF, JUN. \nUpon this part of the case, the charge was as follows: -- \"It is said that this letter, under the statute of Frauds, does not purport on its face to contain any binding contract on the part of the defendant, and that the defects cannot be supplied by parol evidence. This objection I think cannot be sustained. The first question to be settled, and which is matter of fact for your determination is, whether the arrangement betwee Belknap and George D'Wolf, as to the  authority to draw on the house in Marseilles, on the shipment and consignment of five hundred boxes of sugar, and the undertaking of the defendant, were made and entered into at one and the same time, so as to form one entire transaction.\" The Judge then proceeded to sum up the evidence on this point and added -- \"The consideration for this undertaking was the authority given by Belknap to George D'Wolf, to draw on the plaintiffs for one hundred thousand francs. This consideration, it is true, although fully proved, is not expressed in the written contract.And one question is, whether it can be supplied by parol evidence; and I think it may, if the undertaking of the defendant was entered into at  the same time, with that between Belknap and George D'Wolf, so as to form one entire transaction. The evidence does not, in any manner, contradict the written agreement; and is perfectly consistent with it; as between the plaintiffs and George D'Wolf the consideration might be clearly supplied by parol proof; and if the undertaking of the defendant was at the same time, it required no consideration from the plaintiffs to him, the consideration to George D'Wolf was sufficient  to uphold and support the contract of the defendant.\" And he finally stated if he was mistaken in this view of the evidence \"and the jury should be of opinion, that the contract between Belknap and George D'Wolf, was completed, and unconnected with the engagement of the defendant, before he undertook to make the shipment and consignment; then the evidence was not sufficient to maintain the present action. It will then be a collateral undertaking, made subsequent to the principal contract, and would require some other consideration than that which supported the principal contract.\" \nThe question then, so far as it was a question of fact, whether the defendant did enter into the asserted agreement with the plaintiffs and whether it was a part of the original arrangement, with George D'Wolf, and upon the original consideration moving from the plaintiffs, was before the jury, and they have found in the affirmative. The question of law remains, whether this was a case within the statute of Frauds, so as to prevent parol evidence from being admissible, to charge the defendant. \nThe statute of Frauds of New-York, is a transcript, on this subject, of the statute of 29th of Charles 2, ch.  3. It declares \"that no action shall be brought to charge a defendant on a special promise for the debt, default or miscarriage of another, unless the agreement, or some memorandum or note thereof be in writing and signed by the party, or by any one by him authorized.\" The terms \"collateral\" or \"original\" promise, do not occur in the statute, and have been introduced by Courts of law to explain its objects and expound its true interpretation. Whether by the true intent of the statute, it was to extend to cases where the collateral promise, (so called,) was a part of the original agreement, and founded on the same consideration moving at the same time between the parties; or, whether it was confined to cases, where there was already a subsisting debt and demand, and the promise was merely founded upon a subsequent and distinct undertaking; might, if the point were entirely new, deserve very grave deliberation. But it has been closed within very narrow limits by the course of the authorities, and seems scarcely open for general examination; at least in those states where the English authorities have been fully  recognised and adopted in practice. If A agree to advance  B a sum of money, for which B is to be answerable, but at the same time it is expressed upon the undertaking, that C will do some act for the security of A, and enter into an agreement with A for that purpose; it would scarcely seem a case of a mere collateral undertaking; but rather, if one might use the phrase, a trilateral contract. The contract of B to repay the money, is not coincident with, nor the same contract with C to do the act. Each is an original promise, though the one may be deemed subsidiary, or secondary to the other. The original consideration flows from A, not solely upon the promise of B or C, but upon the promise of both, diverso intuita, and each becomes liable to A, not upon a joint but a several original undertaking. Each is a direct, original promise, founded upon the same consideration. The credit is not given solely to either, but to both; not as joint contractors,  on the same contract, but as separate contractors upon co-existing contracts, forming parts of the same general transaction. Of that very nature is the contract now before the Court; and if the intention of all the parties was that the letter of the 15th of November should be  delivered to Belknap, as evidence of the original agreement between all the parties, and indeed as part execution of it, to bind the defendant not merely to George D'Wolf, but to the plaintiffs; (and so it has been established by the verdict;) then it is not very easy to distinguish the case from that which was put. \nBut assuming that the true construction of the statute of Frauds is, as the authorities seem to support, and that such a promise would be within its purview; it remains to consider whether the arguments at the bar do establish any error in the opinion of the Circuit Court. \nIn the first place, there is no repugnance between the terms of that letter and the parol evidence introduced. The object of the latter was to establish the fact, that there was a sufficient consideration for the agreement; and what that consideration was, and also the circumstances under which it was written, as explanatory of its nature and objects. Its terms do not necessarily import, that it was an agreement exclusively between George D'Wolf and the defendant. If the paper was so drawn up and executed, by the assent of all the parties, for the purpose of being delivered to Belknap, as a voucher,  and evidence to him of an absolute agreement by the defendant to make the shipment, and so was in fact understood by all the parties at the time; there is nothing in its terms inconsistent with such an interpretation. The defendant agrees to the shipment. But with whom? It is said with George D'Wolf alone; but that does not necessarily follow, because it is not an instrument in its terms inter partes. If the parties intended that it should express the joint assent  of George D'Wolf and the defendant, to the shipment, and it was deliverable to Belknap accordingly, as evidence of their joint assent that it should be made upon the terms and in the manner stated in it, there is nothing which contradicts its proper purport; and it is then, precisely, what the parties require it to be. It was for the jury to say, whether the evidence disclosed that as the true object of it; and to give it effect accordingly, as proof of an agreement in support of the declaration. The case of Sargent vs. Morris, (3 Barn. & Ald. 277) furnishes no uninstructive analogy for its admission. \nIn the next place, was the parol evidence inadmissible to supply the defect of the written instrument, as  to the consideration, and res gestae, between the parties. The case of Wain vs. Warlters, (5 East, 10,) was the first case which settled the point, that it was necessary to escape from the statute of Frauds, that the agreement should contain the consideration for the promise, as well as the promise itself. If it contained it, it has since been determined that it is wholly immaterial whether the consideration be stated in express terms, or by necessary implication. That case has from its origin encountered many difficulties, and been matter of serious observation both at the bar, and on the bench, in England and America. After many doubts, it seems at last in England, by the recent decisions of Saunders vs. Wakefield, (4 Barn. & Ald. 595) and Jenkins vs. Reynolds, (3 Brod. & Bing. 14,) to have settled down into an approved authority. It has however assumed a uniform recognition in America; although in several of the states, and particularly in New-York, it has to a limited extent been adopted into its jurisprudence, as a sound construction of the statute. On the other hand, there is a very elaborate opinion of the Supreme Court of Massachusetts, in Packard vs. Richardson (17 Mass.  122,) where its authority was directly overruled. What might be our own view of the question, unaffected by any local decision, it is unnecessary to suggest; because the decisions in New-York, upon the construction of its own statute, and the extent of the rules deduced from it, furnish, in the present, a clear guide for this Court. In the case of Leonard vs. Vredenburgh, (8 John. R. 29.) Mr. Chief Justice Kent, in delivering the opinion of the Court, adverting to the fact that that case was one of a guarantee, or promise collateral to the principal contract, but made at the same time, and becoming an essential ground of the credit given to the principal or direct debtor; added, \"and if there was no consideration other than the original transaction, the plaintiff ought to have been permitted to show that fact, if necessary by parol proof; and the decision in Wain vs. Warlters, did not stand in the way.\" \nOne of the points in that case was, whether the parol proof  of the consideration was not improperly rejected at the trial; and the decision of the Court was, that it ought to have been admitted. It is not therefore, as was suggested at the argument, a mere obiter dictum,  uncalled for by the case. It was one, though not the only one of the points in judgment before the Court. The same doctrine has been subsequently recognised by the same Court in Bailey vs. Freeman, (11 Johns. R. 221,) and in Nelson vs. Dubois, (13 Johns. R. 175.) \nIt does not seem necessary to pursue this subject farther, because here is a clear authority justifying the admission of the parol evidence, upon the principal of the local jurisprudence. It seems to us a reasonable doctrine, founded in good sense and convenience, and tending rather to suppress than encourage fraud. But whether so, or not, it sustains the opinion of the Circuit Court, in a manner entirely free from exception. \nThe next objection to the charge, founded on the variance between the declaration and proofs, has been abandoned at the argument, and need not be dwelt upon. And the last objection, to wit., to the designation of a vessel for the shipment as ineffectually made, has been already in part answered; and we entirely coincide with the views expressed on this point, by the Circuit Court. \nWithout therefore going more at large into the points of the case, or commenting upon the various authorities and  principles so elaborately brought out in the discussions at the bar, it is sufficient to say, that we perceive no error in the judgment of the Circuit Court, and it is therefore to be affirmed with costs. \n \n\n ", " \nOpinion \n\n \n \n  Mr Justice STORY delivered the opinion of the Court. \nThis is a writ of error to the circuit court of Pennsylvania. The original action was brought by the plaintiffs in error for an asserted violation of a patent, granted to them on the 6th of July 1818, for a new and useful improvement in the art of making leather tubes or hose, for conveying air, water, and other fluids. The cause was tried upon the general issue, and a verdict was found for the defendant, upon which judgment passed in his favour; and the correctness of that judgment is now in controversy before this court. \nAt the trial, a bill of exceptions was taken to an opinion delivered by the court, in the charge to the jury, as follows, viz. \"That the law arising upon the case was, that if an inventor makes his discovery public, looks on and permits others freely  to use it, without objection or assertion of claim to the invention, of which the public might take notice; he abandons  the inchoate right to the exclusive use of the invention, to which a patent would have entitled him had it been applied for before such use. And, that it makes no difference in the principle, that the article so publicly used, and afterwards patented, was made by a particular individual, who did so by the private permission of the inventor. And thereupon, did charge the jury, that if the evidence brings the case within the principle which had been stated, the court were of opinion that the plaintiffs were not entitled to a verdict.\" \nThe record contains, embodied in the bill of exceptions, the whole of the testimony and evidence offered at the trial, by each party, in support of the issue. It is very voluminous, and as no exception was taken to its competency, or sufficiency, either generally or for any particular purpose; it is not properly before this Court for consideration, and forms an expensive and unnecessary burthen upon the record. This Court has had occasion in many cases to express its regret, on account of irregular proceedings of this nature.  There was not the slightest necessity of putting any portion of the evidence in this case upon the record, since the opinion of the court delivered to the jury, presented a general principle of law, and the application of the evidence to it was left to the jury. \nIn the argument at the bar, much reliance has been placed upon this evidence, by the counsel for both parties. It has been said on behalf of the defendants in error; that it called for other and explanatory directions from the court, and that the omission of the court to give them in the charge, furnishes a good ground for a reversal, as it would have furnished in the court below for a new trial. But it is no ground of reversal that the court below omitted to give directions to the jury upon any points of law which might arise in the cause, where it was not requested by either party at the trial. It is sufficient for us that the court has given no erroneous directions. If either party deems any point presented by the evidence to be omitted in the charge, it is competent for such party to require an opinion from the court upon that point. If he does not, it is a waiver of it.  The court cannot be presumed to  do more, in ordinary cases, than to express its opinion upon the questions which the parties themselves have raised at the trial. \nOn the other hand, the counsel for the defendant in error has endeavoured to extract from the same evidence, strong confirmations of the charge of the court. But, for the reason already suggested, the evidence must be laid out of the case, and all the reasoning founded on it falls. \nThe single question then is, whether the charge of the court was correct in point of law. It has not been, and indeed cannot be denied, that an inventor may abandon his invention, and surrender or dedicate it to the public. This inchoate right, thus once gone, cannot afterwards be resumed at his pleasure; for, where gifts are once made to the public in this way, they become absolute. Thus, if a man dedicates a way, or other easement to the public, it is supposed to carry with it a permanent right of user. The question which generally arises at trials, is a question of fact, rather than of law; whether the acts or acquiescence of the party furnish in the given case, satisfactory proof of an abandonment or dedication of the invention to the public. But when all the   facts are given, there does not seem any reason why the court may not state the legal conclusion deducible from them. In this view of the matter, the only question would be, whether, upon general principles, the facts stated by the court would justify the conclusion. \nIn the case at bar, it is unnecessary to consider whether the facts stated in the charge of the court would, upon general principles, warrant the conclusion drawn by the court, independently of any statutory provisions; because, we are of opinion, that the proper answer depends upon the true exposition of the act of congress, under which the present patent was obtained. The constitution of the United States has declared, that congress shall have power \"to promote the progress of science and useful arts, by securing for limited times, to authors and inventors, the exclusive right to their respective writings and discoveries.\" It contemplates, therefore, that this exclusive right shall exist but  for a limited period, and that the period shall be subject to the discretion of congress. The patent act, of the 21st of February, 1793, ch. 11, prescribes the terms and conditions and manner of obtaining patents for  inventions; and proof of a strict compliance with them lies at the foundation of the title acquired by the patentee. The first section provides, \"that when any person or persons, being a citizen or citizens of the United States, shall allege that he or they have invented any new or useful art, machine, manufacture, or composition of matter, or any new or useful improvement on any art, machine, or composition of matter, not known or used before the application; and shall present a petition to the secretary of state, signifying a desire of obtaining an exclusive property in the same, and praying that a patent may be granted therefor; it shall and may be lawful for the said secretary of state, to cause letters patent to be made out in the name of the United States, bearing teste by the President of the United States, reciting the allegations and suggestions of the said petition, and giving a short description of the said invention or discovery, and thereupon, granting to the said petitioner, &c. for a term not exceeding fourteen years, the full and exclusive right and liberty of making, constructing, using, and vending to others to be used, the said invention or discovery, &c.\" The third  section provides, \"that every inventor, before he can receive a patent, shall swear, or affirm, that he does verily believe that he is the true inventor or discoverer of the art, machine, or improvement for which he solicits a patent.\" The sixth section provides that the defendant shall be permitted to give in defence, to any action brought against him for an infringement of the patent, among other things, \"that the thing thus secured by patent was not originally discovered by the patentee, but had been in use, or had been described in some public work, anterior to the supposed discovery of the patentee.\" \nThese are the only material clauses bearing upon the question now before the court; and upon the construction of them, there has been no inconsiderable diversity of  opinion entertained among the profession, in cases heretofore litigated. \nIt is obvious to the careful inquirer, that many of the provisions of our patent act are derived from the principles and practice which have prevailed in the construction of that of England. It is doubtless true, as has been suggested at the bar, that where English statutes, such for instance, as the statute of frauds, and the statute  of limitations; have been adopted into our own legislation; the known and settled construction of those statutes by courts of law, has been considered as silently incorporated into the acts, or has been received with all the weight of authority. Strictly speaking, that is not the case in respect to the English statute of monopolies; which contains an exception on which the grants of patents for inventions have issued in that country. The language of that clause of the statute is not, as we shall presently see, identical with ours; but the construction of it adopted by the English courts, and the principles and practice which have long regulated the grants of their patents, as they must have been known and are tacitly referred to in some of the provisions of our own statute, afford materials to illustrate it. \nBy the very terms of the first section of our statute, the secretary of state is authorised to grant a patent to any citizen applying for the same, who shall allege that he has invented a new and useful art, machine, &c. &c. \"not known or used before the application?\" The authority is a limited one, and the party must bring himself within the terms, before he can derive any  title to demand, or to hold a patent. What then is the true meaning of the words \"not known or used before the application?\" They cannot mean that the thing invented was not known or used before the application by the inventor himself, for that would be to prohibit him from the only means of obtaining a patent. The use, as well as the knowledge of his invention, must be indispensable to enable him to ascertain its competency to the end proposed, as well as to perfect its component parts. The words then, to have any rational interpretation, must  mean, not known or used by others, before the application. But how known or used? If it were necessary, as it well might be, to employ others to assist in the original structure or use by the inventor himself; or if before his application for a patent his invention should be pirated by another, or used without his consent; it can scarcely be supposed, that the legislature had within its contemplation such knowledge or use. \nWe think, then, the true meaning must be, not known or used by the public, before the application. And, thus construed, there is much reason for the limitation thus imposed by the act. While one great object  was, by holding out a reasonable reward to inventors, and giving them an exclusive right to their inventions for a limited period, to stimulate the efforts of genius; the main object was \"to promote the progress of science and useful arts;\" and this could be done best, by giving the public at large a right to make, construct, use, and vend the thing invented, at as early a period as possible; having a due regard to the rights of the inventor. If an inventor should be permitted to hold back from the knowledge of the public the secrets of his invention; if he should for a long  period of years retain the monopoly, and make, and sell his invention publicly, and thus gather the whole profits of it, relying upon his superior skill and knowledge of the structure; and then, and then only, when the danger of competition should force him to secure the exclusive right, he should be allowed to take out a patent, and thus exclude the public from any farther use than what should be derived under it during his fourteen years; it would materially retard the progress of science and the useful arts, and give a premium to those who should be least prompt to communicate their discoveries. \n A provision, therefore, that should withhold from an inventor the privilege of an exclusive right, unless he should as early as he should ailow the public use, put the public in possession of his secret, and commence the running of the period, that should limit that right; would not be deemed unreasonable. It might be expected to find a place in a  wise prospective legislation on such a subject. If it was already found in the jurisprudence of the mother country, and had not been considered inconvenient there; it would not be unnatural that it should find a place in our own. \nNow, in point of fact, the statute of 21 Jac. ch. 3, commonly called the statute of monopolies, does contain exactly such a provision. That act, after prohibiting monopolies generally, contains, in the sixth section, an exception in favour of \"letters patent and grants of privileges forfourteen years or under, of the sole working or making of any manner of new manufactures within this realm, to the true and first inventor and inventors of such manufactures, which others, at the time of making such letters patent and grants, shall not use.\" Lord Coke, in his commentary upon this clause or proviso,  (3 Inst. 184,) says that the letters patent \"must be of such manufactures, which any other at the time of making such letters patent did not use; for albeit it were newly invented, yet if any other did use it at the making of the letters patent, or grant of the privilege, it is declared and enacted to be void by this act.\" The use here referred to has always been understood to be a public use, and not a private or surreptitious use in fraud of the inventor. \nIn the case of Wood vs. Zimmer, 1 Holt's N.P. Rep. 58, this doctrine was fully recognised by lord chief justice Gibbs. There the inventor had suffered the hing invented to be sold, and go into public use for four months before the grant of his patent; and it was held by the court, that on this account the patent was utterly void. Lord chief justice Gibbs said, \"To entitle a man to a patent, the invention must be new to the world. The public sale of that which is afterwards made the subject of a patent, though sold by the inventor only, makes the patent void.\" By \"invention,\" the learned judge undoubtedly meant, as the context abundantly shows, not the abstract discovery, but the thing invented; not the new secret principle, but  the manufacture resulting from it. \nThe words of our statute are not identical with those of  the statute of James, but it can scarcely admit of doubt, that they must have been within the contemplation of those by whom it was framed, as well as the construction which had been put upon them by Lord Coke. But if there were no such illustrative comment, it is difficult to conceive how any other interpretation could fairly be put upon these words. We are not at liberty to reject words which are sensible in the place where they occur, merely because they may be thought, in some cases, to import a hardship, or tie up beneficial rights within very close limits. If an invention is used by the public, with the consent of the inventor, at the time of his application for a patent; how can the court say, that his case is, nevertheless, such as the act was intended to protect? If such a public use is not a use within the meaning of the statute, what other use is? If it be a use within the meaning of the statute, how can the court extract the case from its operation, and support a patent, where the suggestions of the patentee are not true, and the conditions on which alone the grant  was authorised to be made, do not exist? In such a case, if the court could perceive no reason for the restrictions, the will of the legislature must still be obeved. It cannot and ought not to be disregarded, where it plainly applies to the case.But if the restriction may be perceived to have a foundation in sound policy, and be an effectual means of accomplishing the legislative objects, by bringing inventions early into public and unrestricted use; and above all, if such policy has been avowed and acted upon in like cases in laws having similar objects; there is very urgent reason to suppose, that the act in those terms embodies the real legislative intent, and ought to receive that construction. It is not wholly insignificant in this point of view, that the first patent act passed by congress on this subject, (act of 1790, ch. 34, [ch. 7.) which the present act repeals, uses the words \"not known or used before,\" without adding the words \"the application;\" and in connexion with the structure of the sentence in which they stand, might have been referred either to the time of the invention, or of the application. The addition of the  latter words in the patent act of  1793, must, therefore, have been introduced, ex industria, and with the cautious intention to clear away a doubt, and fix the original and deliberate meaning of the legislature. \nThe act of the 17th of April 1800, ch. 25, which extends the privileges of the act of 1793 to inventors who are aliens; contains a proviso declaring, \"that every patent which shall be obtained pursuant to the act for any invention, art or discovery, which it shall afterwards appear had been known or used previous to such application for a patent, all be void.\" This proviso certainly certifies the construction of the act of 1793, already asserted; for there is not any reason to suppose, that the legislature intended to confer on aliens, privileges, essentially different from those belonging to citizens. On the contrary, the enacting clause of the act of 1800 purports to put both on the same footing; and the proviso seems added as a gloss or explanation of the original act. \nThe only real doubt which has arisen upon this exposition of the statute, has been created by the words of the sixth section already quoted. That section admits the party sued to  give in his defence as a bar, that \"the thing  thus secured by patent was not originally discovered by the patentee, but had been in use anterior to the supposed discovery of the patentee.\" It has been asked, if the legislature intended to bar the party from a patent in consequence of a mere prior use, although he was the inventor; why were not the words \"anterior to the application\" substituted, instead of \"anterior to the supposed discovery? If a mere use of the thing invented before the application were sufficient to bar the right, then, although the party may have been the first and true inventor, if another person, either innocently as a second inventor, or piratically, were to use it without the knowledge of the first inventor; his right would be gone. In respect to a use by piracy, it is not clear that any such fraudulent use is within the intent of the statute; and upon general principles it might well be held excluded. In respect to the case of a second invention, it is questionable  at least, whether, if by such second invention a public use was already acquired, it could be deemed a case within the protection of the act. If the public were already in possession and common use of an invention fairly and without  fraud, there might be sound reason for presuming, that the legislature did not intend to grant an exclusive right to any one to monopolize that which was already common. There would be no quid pro quo -- no price for the exclusive right or monopoly conferred upon the inventor for fourteen years. \nBe this as it may, it is certain that the sixth section is not necessarily repugnant to the construction which the words of the first section require and justify. The sixth section certainly does not enumerate all the defences which a party may make in a suit brought against him for violating a patent. One obvious omission is, where he uses if under a license or grant from the inventor. The sixth section in the clause under consideration, may well be deemed merely affirmative of what would be the result from the general principles of law applicable to other parts of the statute. It gives the right to the first and true inventor and to him only; if known or used before his supposed discovery he is not the first, although he may be a true inventor; and that is the case to which the clause looks. But it is not inconsistent with this doctrine, that although he is the first, as well as the  true inventor, yet if he shall put it into public use, or sell it for public use before he applies for a patent, that this should furnish another bar to his claim. In this view an interpretation is given to every clause of the statute without introducing any inconsistency, or interfering with the ordinary meaning of its language. No public policy is overlooked; and no injury can ordinarily occur to the first inventor, which is not in some sort the result of his own laches or voluntary inaction. \nIt is admitted that the subject is not wholly free from difficulties; but upon most deliberate consideration we are all of opinion, that the true construction of the act is, that the first inventor cannot acquire a good title to a patent; if he suffers the thing invented to go into public use, or to be  publicly sold or use, before he makes application for a patent. His voluntary act or acquiescence in the public sale and use is an abandonment of his right; or rather creates a disability to comply with the terms and conditions on which alone the secretary of state is authorized to grant him a patent. \nThe opinion of the circuit court was therefore perfectly correct; and the judgment  is affirmed with costs. \nThis cause came on to be heard on the transcript of the record from the circuit court of the United States for the district of Pennsylvania, and was arge l by counsel; on consideration whereof, it is the opinion of this Court, that there is no error in the judgment of the said circuit court. Whereupon, it is considered, ordered and adjudged by this Court, that the said judgment of the said circuit court in this cause, be and the same is hereby affirmed with costs. \n \n\n ", " \nOpinion \n\n \n \n  Mr Justice STORY delivered the opinion of the Court. \nThis case comes before us from the circuit court of Rhode Island, upon a certified division of opinion of the judges of  that court, upon the question whether the plaintiff was entitled to recover upon a statement of facts incorporated into the record. The action was an ejectment for two-third parts of certain land described in the writ; and the title of the parties being by descent, depends altogether upon the true construction of the statute of descents of Rhoode Island, of 1822. Accordingly as that statute shall be construed, the land now in controversy belongs to the plaintiff or the defendants. \nThe material facts are, that the estate (two-thirds of which are demanded in the writ) was devised by John Collins to his daughter Mary Collins in fee. Upon her death in 1806, the same descended to her three children, viz. John C. Gardner, George Gardner, and Mary C. Gardner. The two brothers  died intestate and without issue; and Mary C. Gardner, as heir to her brothers, became seised of the whole estate, and died intestate and without issue, in December 1822. The defendants are the uncle and aunt of Mary C. Gardner, the intestate, of the whole blood; being children of John Collins, the devisor, and brother and sister of her mother, Mary Collins. The plaintiff is the brother of Mary C.  Gardner, the intestate of the half blood; and he holds a conveyance of their shares from her other brothers and sisters of the half blood, they being children of her father by a former marriage. The plaintiff and his brothers and sisters of the half blood claim the two-thirds of the estate now in question, as her heirs of the half blood; and the defendants claim the same as her heirs of the whole blood. It is admitted on all sides, that the one-third which Mary C. Collins took by immediate descent from her mother, belongs to the heirs of the whole blood. But the other two-thirds, being taken by immediate descent from her brothers, it is contended that by the statute of 1822, it passes to her heirs of the half blood. \nIf this question had been settled by any judicial decision in the states where the land lies, we should, upon the uniform principles adopted by this Court, recognise that decision as a part of the local law. But it is admitted that no such decision has ever then made. If this had been an ancient statute, and a uniform course of professional opinion and practice had long prevailed in the interpretation of it, that would be respected as almost of equal authority. But  no such opinion or practice has been known to prevail; and indeed, the statute itself is but of very recent origin. Even the statute of 1798; of which, in respect to this point, that of 1822 is almost a transcript, is not of a date so remote,  as to enable us to presume that many cases could have arisen in that state, on which to found a practical construction, without some unequivocal evidence. \nThe most that has been urged is, that there has been some general understanding among the people, that such was the meaning of the statute; but even this, though very respectably attested, is encountered by equally respectable statements on the other side. We are driven therefore to  consider the question as entirely new and unsettled; and to be decided not upon the mistakes of parties relative to their rights in one or two unadjudicated cases, even if they existed, but by the true construction of statute itself. \nThe statute of 1822 enacts, that \"when any person having title to any real estate of inheritance shall die intestate as to such estate, it shall descend and pass in equal portions to his or her kindred in the following course, &c.\" Among other clauses is the  following, \"if there be no father, then to the mother, brothers and sisters of such intestate, and their descendants, or such of them as there be.\" In the present case there was no father or mother of Mary C. Gardner, the intestate, living at the time of her decease; and as her brothers and sisters of the half blood are her brothers and sisters within the meaning of the statute, they would be entitled to the estate in question beyond all controversy; if there were no other disqualifying clause. But in a subsequent clause of the statute in the nature of a proviso, it is declared, that \"when the title to any estate of inheritance, as to which the person having such title shall die intestate, came by descent, fift, or devise from the parent or other kindred of the intestate, and such intestate die without children, such estate shall go to the kin next to the intestate of the blood of the person from whom such estate came or descended, if any there be.\" The most material differences between the statute of 1798 and that of 1822, so far as regards this question is, that the words \"if any there be\" are omitted in the former, which also uses the words \"next of kin to,\" instead of \"kin next  to.\" Both of these circumstances have been relied on at the bar as indicating a probable change of intention. It is said that both acts admit of two readings, viz. \"to such of the next of kin of the intestate as are of the blood, &c.\" or \"to the nearest of such of the kin of the intestate as are of the blood,\" &c. The latter reading will give the estate to a remote relation of the intestate of the blood, although he be not of the next of kin of the intestate. The former reading requires that the party should be of the next of kin, (that being the primary intention), as well as of the blood; and therefore, if a person be not of the next of kin of  the intestate, although he be of the blood, he cannot take; and the words of the act of 1822, \"if any there be,\" are relied on to fortify the construction. \nWe think the legislative intention in both acts was the same; and that the transposition of the words \"next of kin\" to \"kin next,\" was accidental, and not introductory of any new object. The true construction of the statute of 1822 is, that it gives the estate to the next of kin of the intestate who are of the blood, excluding all others though of a nearer degree who are  not of the blood, &c. \nIn this view of the clause, two questions have been argued at the bar. 1. Whether the words \"of the blood\" include the half blood; or exclusively apply to the whole blood. 2. Whether the words \"came by descent, gift, or devise from the parent and other kindred of the intestate,\" are limited to a proximate and immediate descent, gift, or devise from such parent, &c. to the intestate; or include a descent, gift, or devise which can be deduced mediately from or through any ancestor, however remote, who was the first purchaser to the intestate. \nThe first question has not been seriously pressed in this Court by the counsel for the defendants, though it constituted in the court below a main ground of argument. We think that the phrase \"of the blood\" in the statute includes the half blood. This is the natural meaning of the word \"blood\" standing alone, and unexplained by any context. A half brother or sister is of the blood of the intestate, for each of them has some of the blood of a common parent in his or her veins. A person is with the most strict propriety of language affirmed to be of the blood of another who has any, however small a portion, of the same  blood derived from a common ancestor. In the common law, the word \"blood\" is used in the same sense. Whenever it is intended to express any qualification, the word whole or half blood, is generally used to designate it, or the qualification is implied from the context on known principles of law. Thus, Littleton in his sixth section says, that none shall inherit \"as heir to any man, unless he be his heir of the whole blood; for if a man hath issue two sons by divers  ventres, and the eldest purchase lands &c. &c. the younger brother shall not have the land, &c. because the younger brother is but of the half blood to the elder.\" The same distinction is found in section eighth of the same author; and Lord Coke in his commentary on the text constantly takes it. So Robinson, in his Treatise on Inheritances, 45, after laying down the rule, that the person who is to inherit must be of the whole blood to the person from whom he proximately and immediately inherits; adds, that he must also be of the blood of the first purchaser; but that it is sufficient to satisfy this that he is of the half blood of such purchaser. The legislation of Rhode Island leads to the same result as  to the meaning of the word \"blood.\" That colony was governed by the English law of descents from its first settlement until the year 1718, a period of more than half a century. By an act passed in 1718 the real estate of the intestate was divided among all his children, giving the eldest son a double share, &c.; and in default of issue, the same was distributable among the next of kin of the intestate, within equal degree, &c. This act was repealed in 1728, and the common law course of descents was revived and remained in force until 1770, when an act was passed, providing substantially for the same distribution as the act of 1718. It contained, however, this remarkable proviso, \"that no distribution of any real estate in consequence of this act, shall extend or be made  in the collateral line beyond the brothers and sisters of such intestate and their children, and to those only of the whole blood.\" In 1772 the act of 1770 was repealed in regard to the double share to the eldest son, but in other respects it remained in force until the revision in 1798, when the proviso that none should inherit in the collateral line except the whole blood was dropped; and there is not  either in the act of 1798 or of 1822 any clause referring to the blood of any person as a stock of descent, except the very clause upon which the present questions arise. When, therefore, the distinction between the whole and half blood, was well known in the colony, not only as a part of the common law, but as a part of its own legislation, and the proviso is  dropped in which the words \"whole blood\" were studiously used; and the words \"of the blood\" only, are found in any correspondent provision; it affords a strong presumption, that the whole blood were no longer deemed to be exclusively entitled to inherit, but that the half blood should be let in. If the half blood were not permitted to inherit in cases of this sort, this anomaly might occur; that a son might inherit from his parent the moiety of an estate directly, which he could not inherit from his brother of the half blood, to whom it had passed by descent from the same parent, if such brother should die without issue. We see no reason, then, to doubt, that the words \"of the blood,\" include the half as well as the whole blood. The plaintiff, then, and those from whom he claims being the next of kin of the intestate  1 , and of the blood of her two brother 2 , from whom she immediately derived that part of the estate which is now in controversy; is entitled to recover, unless the statute in the other part of the clause defeats the descent. \nThis leads us to the second question. The estate originally came from John Collins by devise to his daughter Mary Collins, and by descent from her to her three children, and mediately as to the two thirds to the intestate, through her brothers. The counsel for the plaintiff contends, that the clause looks only to the proximate and immediate descent; the counsel for the defendants, that it looks to the origin of the title in the first purchaser, and requires that the party claiming as heir, should be of the blood of the first purchaser, through whatever intermediate devolutions by descent, gift or devise it may have passed, and however remote may be the first ancestor. If the latter be the true  construction of the clause it goes far beyond the common law, for that stopped at the last purchaser in the ancestral line, (and persons taking by devise or gift are deemed purchasers,) and  ascended no higher than it could trace an uninterrupted course of descents. The common law, therefore, would have considered Mary Collins as the first purchaser for all its own purposes of descent. The words are, \"when the title to any real estate, &c. as to which the person having such title shall die intestate came by descent, gift or devise from the parent, or other kindred of the intestate,\" &c. Now what reason is there to suppose that the legislature, in this clause, meant in favour \"of the blood of the person, from whom such estate came or descended,\" to extend its reach beyond that of the common law? No such intention is disclosed on the face of the provision; and every progressive enactment, for the last fifty years in Rhode Island, is a relaxation of the strict canons of descent of the common law. The words themselves certainly do not necessarily require such an interpretation. As to descents, as well as gifts and devises from a parent, it is plain that the act looks only  to the immediate descent or title. A descent from a parent to a child cannot be construed to mean a descent through and not from a parent. So a gift or devise from a parent must be construed to mean a gift or devise by the act of that parent; and not by that of some other ancestor more remote, passing through the parent. It has been urged, in another quarter entitled to great respect, that the words may be construed distributively; that a distinction may be taken between a descent, gift or devise, from a parent, and a descent, &c. from other kindred; and so, also, that the words descent, gift and devise may be construed distributively; so that in cases of descents, the party who shall inherit is to be of the blood of the first purchaser, from whom by intermediate descents it was passed to the intestate; and that, in cases of gifts or devises, the donor or devisor shall alone be the person whose blood is to be inquired for. It may be admitted, that the clause is susceptible of such a construction without any great violation of its terms. But we do not think, that such is the natural construction of the terms, nor is any legislative intention disclosed, which would justify us in  adopting it. There does not seem any sound reason, why the clause should be construed in the  case of a parent, differently from what it would be in the case of any \"other kindred of the intestate.\" The latter words must be construed in the same manner as if each class of kindred had been enumerated in detail; such as uncles, brothers, grand-parents, cousins, &c. &c.; and if they had been, the same rule from the specific enumeration must have been applied to them, as is now sought to be applied to the case of parents. The general expression must be deemed to include all the particulars. Then, as to the distinction between descents, and gifts and devises. \nIt is true, that in a sense an estate may be said to come by descent, from a remote ancestor to a person, upon whom it has devolved through many intermediate descents. But this, if not loose language, is not that sense which is ordinarily annexed to the term. When an estate is said to have descended from A. to B., the natural and obvious meaning of the words is, that it is an immediate descent from A. to B. If other words of a statute should seem to require another and more enlarged meaning, there would be no absolute  impropriety in adopting it; but if the true sense is to be sought from the very terms per se, that which is the usual sense would seem most proper to be followed. It is not for courts of justice indulge in any latitude of construction, where the words do not materially justify it; and there is no express legislative intention to guide them. But we think, that the connexion in which the  words stand, justify us in adhering to the ordinary interpretation. If in cases of gifts and devises, the blood of the proximate donor or devisor is alone to be regarded, there being no distinction pointed out in the words of the act, between those cases and that of descents; the very juxta position of the words affords a strong presumption, that the legislature intended to apply the same rule as to all. If the object was to regard the blood of the party, from whom the estate was derived; what reason is there to suppose that the legislature intended less regard to the blood of a devisor or donor, than to that of an ancestor? The mischief might be as great in suffering the estate to pass into the hands of strangers, when there were next of kin of the blood in the one case, as in the   other. On the other hand, there might be solid reasons for confining the preference of blood to cases of immediate descents, which could be easily known and easily traced. One of the known inconveniences of tracing back titles and relationship, is the obscurity which at a small distance of time gathers over them. It would often be difficult to ascertain, whether there were not relations of a very distant stock, of the blood of a remote ancestor; who might be entitled to the inheritance, to the exclusion of the immediate next of kin of the intestate. And even the course of descents of his own title in a country, where estates are universally partible, for two or three generations; might involve the estate of the intestate in inextricable difficulties; and disable the next of kin from ascertaining, into what fragments it was to be subdivided with any reasonable certainty. It would be no want of wisdom, therefore, in a legislature to limit its provisions in favour of the blood, to cases where the immediate title could be traced with almost absolute certainty. Certainty of title, in a country where titles so rapidly change hands, might furnish a far safer principle of legislation,  than any preference for the blood of persons remotely related to the intestate through some distant, and, perhaps, unknown ancestor. We think, then, that in the case of a gift or devise, the statute stops at the immediate donor or devisor, and ascends no higher for any blood. What reason is there to suppose, that in the case of a descent there was a different legislative intention? In the case of a parent, the parent is, by the very terms of the statute, made the sole stock of descent, whether he derived it by descent, or by gift, or devise, from an ancestor or a stranger. In the case at bar, the mother of the intestate took the estate by devise from her father. She was in by purchase; and in the sense of the common law, as first purchaser, and, of course, the true stock of descent, holding the estate ut feudum antiquum. \nIt has been said that the object was to preserve inheritances in the same family. To a limited extent this is true; that is, as far as the legislature has provided for such cases. No general declaration is made by the legislature on the  subject; and no preamble, which discloses any leading intention, exists. What the legislative intention was, can  be derived only from the words they have used; and we cannot speculate beyond the reasonable import of these words. The spirit of the act must be extracted from the words of the act, and not from conjectures aliunde. The common law carries back in certain cases, the descent to the heirs of the first purchaser. But the common law canons of descents, are overturned by the statute of descents of Rhode Island. How then can we resort to the common law, to make up the supposed defects in the language of the statute? Here, there is not a casus omissus; but a complete scheme of descents; and the only question is, how much the proviso carves out and saves from the operation of the general rule. No such words as \"the first purchaser,\" are to be found in the statute, though it is sufficiently technical in other respects; and what right can this Court possess, to exchange the words in this statute for the words, \"first purchaser,\" when they are not equipollent in meaning or extent? If the legislature intended to set up anew the rule of the common law, as to descents, &c. from the first purchaser, it seems scarcely credible that it should have omitted the very phrase, considering that for  a century at least it was a material ingredient in the law of descents of the colony. Then, again, if the argument now urged at this bar for the defendants, is well founded, it goes (as has been already stated) far beyond, and indeed to the overthrow of the common law on the very point of first purchasers. Indeed, at the common law, a man might sometimes inherit, who was of the whole blood of the intestate, who could not have inherited from the first purchaser. As in the case of a purchase by a son, who died without issue, and his uncle inherits the same, and dies without issue, the father may inherit the same from the uncle, although he could not inherit from his own son 3 . The statute of Rhode Island imparts to parents a right to inherit the real estates of their children, in cases where the latter die without issue. \n The statutes of descents of the different states in the union, are so different in their provisions, that it is not easy to apply any general rule of construction to them. The cases cited at the bar, do however demonstrate, that in those states where a similar language is  used in their statutes of descents, the expression has been uniformly construed to mean immediate descents, gifts and devises, unless that construction has been overruled by the context. The statute of Connecticut, of 1784, which has been supposed to be the model of that of Rhode Island, as to this proviso, is understood to have received this construction 4 . Under words nearly similar, in the Virginia statute of 1792, (the words being, \"that where an infant shall die without issue, having title to any real estate as inheritance derived by gift, devise or descent from the father, &c.\") it has been held that an immediate descent from the father, and not an intermediate descent was intended 5 . \nUpon the whole, our opinion is, that both points are in favour of the plaintiff. We all think that the words \"of the blood\" comprehend all persons of the blood, whether of the whole or half blood; and that the words, \"come by descent, gift or devise, from the parent or other kindred, &c.\" mean immediate descent, gift or devise, and make the immediate ancestor,  donor or devisor, the sole stock of descent. \n A certificate will accordingly be sent to the circuit court of Rhode Island, in favour of the plaintiff. \nThis cause came on to be heard on the transcript of the record from the circuit court of the United States, for the district of Rhode Island; and on the points on which the judges of the said circuit court were divided in opinion, and which were certified to this Court for its opinion; and was argued by counsel; on consideration whereof, it is ordered and adjudged by this Court, that it be certified to the said  circuit court of the United States for the district of Rhode Island, that the plaintiff and those under whom he claims the estate in controversy, are heirs at law of Mary C. Gardner the intestate, and, as such heirs, are by the statute of descents of Rhode Island of (A.D. 1822), eighteen hundred and twenty-two, entitled to the same estate upon the facts agreed in the case, and that judgment ought to be given for the plaintiff in this cause; all which is ordered to be certified to the said circuit court. \n \n\n ", " \nOpinion \n\n \n \n  Mr Justice STORY delivered the opinion of the Court. \nThis is an appeal from a decree of the circuit court of the Kentucky district. \nThe Bank of the United States, at Lexington, Kentucky, on the 3d of July 1819, discounted a note of the same date for $ 4700, signed by one George Norten, payable sixty days after date, to one Daniel Halstead or order, and by him indorsed to Abraham Venable, and subsequently and severally indorsed by William Adams and Joshua Norten, and by the latter to the bank. The note was not paid at maturity, and due diligence having  been used to obtain the amount from the maker, according to the local law; a suit in equity was brought in the circuit court in November 1821, against all the indorsers (as is course by the local law), in which a decree for principal, interest and costs was rendered in May 1822. An execution issued upon this decree against the parties, upon which a tract of land of 200 acres, a tract of 113 acres, several negroes, and some other personal property of Venable, were levied on, but the same were not sold; the former for want of proper bidders, the latter on account of a claim set up to the same, by the defendant, George M'Donald. \nThe present bill, after stating these facts, charges that on the 9th of February 1822, Venable made two deeds to M'Donald, by which he conveyed the tracts of land and other property to M'Donald, and that the same deeds were colourable  and fraudulent; and the prayer of the bill is that the deeds may be declared fraudulent, and the property may be decreed to be sold; and an injunction granted in the mean time, and for further relief. \nThe answers of the defendants, M'Donald and Venable, deny that the deeds of the 9th of February 1822, were colourable  or fraudulent, and on the contrary, assert them to have been bona fide, and for a valuable consideration. The answer of M'Donald further sets up a mortgage executed by Venable on the 22d of May 1820, to him, M'Donald, and one George Norten, (who is not a party to the bill), of a tract of land of about 245 acres (part of the land in controversy), and of nine negroes (including those in controversy), to secure them against a bond executed by them as sureties, with Venable as principal, upon his appointment as guardian of the infant children of George Adams deceased, whose mother Venable had since married, she having previously administered upon Adams's estate. The guardianship bond was in the penal sum of $ 4000, and upon the usual condition. \nThe cause being put at issue, upon the final hearing, the court decreed the deeds of the 9th of February 1822, to be colourable and fraudulent, and ordered the same to be set aside and annulled; and that the plaintiffs might pursue their judgment and execution against the real and personal estate of Venable, as if the said deeds had never been made; subject however to the mortgage aforesaid, which was not in any manner whatever to be affected  by this decree. \nIt is upon an appeal taken by Venable and M'Donald to this decree, that the cause is now before this Court; and independently of the merits as to the asserted fraud, or good faith of the deeds of 1822, two objections have been made by the counsel for the appellants. \nThe first is, that the court erred in directing a sale of the estate conveyed to M'Donald and Norten, until their mortgage was satisfied, or the condition thereof performed; because it had no right to change, by sale of the estate, the rights or interests of the mortgagees under a conveyance admitted to be valid, unless by their consent. This objection is founded upon a misinterpretation of the decree, which  does not authorize any sale to be made by virtue of it, but merely removes out of the way the deeds which obstructed a sale at law under the judgment and levy. The decree also leaves the mortgage wholly untouched, and consequently no sale could prejudice the rights appertaining to it. \nThe next objection is, that George Norten, the mortgagee, is not made a party to the bill. But this objection falls for the same reason as the preceding. As the mortgage is not in any measure interfered  with by the decree, it is wholly unnecessary to make Norten a party to the bill. He has no interests which are controverted or injured by declaring the nullity of the other deeds. \nThe real question then is, whether the deeds of 1822 are fraudulent or not; and to that question the consideration of the Court will now be addressed. The answers of the defendants, having denied all fraud, those answers are entitled to stand, unless they are overcome by the testimony of two witnesses, or of one witness and circumstances. \nOne of the deeds purports, for the consideration of $ 6260 paid and secured to be paid, to convey to M'Donald the two tracts of land the other, for the consideration of $ 3400, to convey certain slaves, household furniture, horses, wagons, hogs, sheep, cattle, &c. and other stock usually belonging to a farm. The bill charges that these constituted the whole estate of Venable; and this fact is not attempted to be denied in the answer. Except his liability as guardian, and as indorser of the note to the bank, it does not appear that Venable was at this time indebted to any persons whatever; the fact is charged in the bill, that he was not under any embarrassment, and  it is supported by the proofs. \n Here then is the case of a person upon the eve of a decree being rendered against him for a large sum of money, which it is admitted would go far to his ruin, making conveyances of his whole property real and personal to his brother-in-law, for an asserted consideration equal to its full value. The brother-in-law is proved to be a thrifty, industrious man, but not at the time known to possess property sufficient to pay the purchase money having other pursuits and as soon as  the purchase is made, suffering the estate to remain in possession of the former tenant. \nHow and in what manner is the consideration paid or received? M'Donald in his answer states that Venable, under the administration of his wife on Adams's estate, and his own guardianship of her infant children, was indebted for assets received to the amount of $ 6286.54; and that he, M'Donald, finding that Venable had used this money and was wasting the estate of his wards, and was involved in difficulties by his suretyship for others, &c. with a view to his own safety and that of George Norten (who is now insolvent), first tool the mortgage, and afterwards being fearful  of the waste of the estate, was induced to purchase it, that he might have control of it, and accordingly he did purchase it. The manner in which the consideration was paid and secured, he states to have been as follows. He assumed by a written contract given to Venable, to pay the debt due by Venable to his wards, when they came of age, and in the mean time to pay annually a sufficient sum for their maintenance and support, to be allowed in extinguishment of the interest that might become intermediately due. The contract itself is now produced, and it contains an agreement to pay to the wards, not a specific sum of money, but \"as much money as they shall have a right to demand of Venable, as guardian, when they become of age.\" It further contains a promise to furnish Venable \"as much beef, pork, hay, corn, flour, &c. to the amount of what it shall be worth, to board, school and clothe\" his wards. \nThe residue of the consideration for the purchase, viz. $ 2060 50 cents, M'Donald asserts to have been paid by him in money to Venable, part of which he admits that he borrowed, but he does not state how much. By the contract above stated, he was to pay the money within three months  after the purchase. \nSuch is the nature of the purchase, and the consideration as disclosed in the answer of M'Donald, and which Venable in his own answer adopts and supports. \nThe first remark that arises on this part of the case is, that the whole consideration stated in the deeds is $ 9660;  and that the answers state the amount actually paid or secured as no more than $ 8347. This discrepancy is utterly unaccounted for. In the next place, the debt assumed to be due by Venable to his wards, is no where established to have been really due by any proofs in the record. Now, this was a material fact in the case, exclusively within the knowledge and power of the defendants, which they were bound to establish by competent evidence, and which, in its own nature, was susceptible of proof beyond their answers. It was vital to the good faith of the transaction. The omission to do it, would, of itself, throw some doubt upon the transaction. But the proof in the record, so far as it goes, affords a strong negative upon the assumed debt. The inventory of George Adams's personal estate is only $ 2032 7 cents. His widow (independently of the charges of administration) was entitled  to one third part of it. One of the children (a daughter) died early, during her minority; and without stopping to inquire, whether her share in the personalty would not fall to the mother, the remaining sum, deducting only the mother's third, left the sum of $ 1355 only as the distributable shares of Venable's wards. There is in the record a paper which is without any signature or proof of any sort, which puts Adams's personal estate at a much lower sum than the inventory, but which, by adding his real estate at $ 2200, and the rent for three years, and the hire of negroes and interest, swells the aggregate of his estate to $ 6286 54 cents. This paper can be viewed in no other light than a mere speculative statement; but if it were otherwise, it is obvious that it cannot be permitted to pass as proof of the balance then due to Adams's children. \nIn the first place, the real estate is not properly chargeable to the account of the administrator or guardian merely as such. \nThe suggestion is that it was afterwards sold and the proceeds received by Venable, for which he may be justly held accountable. There was no sale made, so far at least as we have any evidence, under the general  act of Kentucky on this subject, passed on the third of February 1813, and therefore that may be laid out of the question; thought it is  observable, that a guardian is not authorised under that act to sell without an order of court, and giving a bond with sufficient sureties. The only proof of any authority to sell found in the record is the following order: \"Fayette county, to wit, April court, 1818. On motion of Abraham Venable, Patterson Bain, E. Yieser, and Charles Humphreys are appointed commissioners, under the act of assembly of the last session, for the sale of the estate mentioned in said law, as belonging to the heirs of George Adams deceased, situated in Lexington.\" The act here referred to is not in the record, but so far as we can gather its contents by the order itself, the commissioners, and not the guardian were authorised to make the sale. Their proceedings under the order do not appear. The only evidence is from a purchaser at the sale, who states that he bought the estate at about $ 2200, and, with the exception of about $ 300, he paid the money to Venable by direction of the commissioners. Whether this payment was authorised by the act is left uncertain;  and indeed whether security was not directed to be taken from the commissioners on the sale, as in ordinary cases. It is far from being certain that the sureties on Venable's guardianship bond were liable for the sum so received. But we may assume for the present that they were. \nThen, there is a charge of $ 900 for rent received upon the real estate for three years; and for hire of negroes for seven years $ 490, although the inventory mentions only \"one negro girl and child, valued at $ 300; and to  complete the amount, a charge of interest is added on the whole, of $ 1171 98 cents. Now, certainly, there is no pretence for the last charge, and no justification of it by any proof. The children were maintained during this whole period by Venable and his wife; and in the most favourable view, if Adams's estate had been completely settled, the interest and income from the children's shares of his whole estate could not be presumed to amount to more than, if to so much as, the reasonable expenses for their support and maintenance. At least, if they did, that fact should have been made out by some probable evidence. Then, again, the guardianship bond is in the penalty of  $ 4000  only; and this circumstance discredits the supposition, that the sureties had incurred any liability beyond that amount. The usual practice is to take the penalty in double the amount of the supposed value of the property intended to be secured by it. The original administration bond of Mrs Venable was in the penalty of only $ 6000; and the inventory of personal estate of George Adams, made by her on oath, which is not attempted to be impugned, covers but one third of that amount. It has been said at the bar, that by the laws of Kentucky, sureties may be charged beyond the penalty of their bonds, and to the same extent of liability as their principals. If this were so it would diminish the force of any argument grounded on the penalty; though it certainly would not establish that there was in fact a debt due to the children beyond that sum. But among the acts of Kentucky, we cannot find any statute that leads to such a conclusion. The act of 23d January 1810, concerning the bonds of certain officers, guardians, administrators and executors, has no provision, which varies from the general law on this subject, limiting the responsibility of sureties to the penalty  of the bond. It merely declares that \"an action in one case on such bond shall in no wise abate or bar an action thereon for another cause,\" which is entirely consistent with a recognition of the general rule of law. And the act of 15th January 1811, which is supplementary to the former, and gives a remedy against sureties beyond the penalty of the bond, is expressly limited to bonds given by public officers. No adjudged case has been cited, which goes to establish the position, that the statute of 1810 has been differently construed by the state courts. It is not in our view of the facts a very material consideration, because there is no evidence offered, which proves that a debt was due to Venable's wards, even to the amount of the penalty. And in a case like the present, it was indispensable for the defendants to make out so material a fact with all due certainty. The Court cannot presume it. The statement already alluded to, as a statement of the administration or guardianship account, contains no deductions whatever, either for charges, taxes, repairs,  or even for debts due from the intestate, or for expenses incurred for the children. It assumes only one side  of the account, and deals not in any credits, though the presumption of their existence is almost irresistible. \nIn respect then to this part of the assumed consideration of the deeds, there is the want of certainty as to any amount of debt due to the children; and the contract given to secure to Venable, does not ascertain any amount as due. It merely provides in general terms that M'Donald shall pay to the children \"as much money as they shall have a right to demand,\" &c. when they shall come of age, and in the intermediate time they are to receive an amount sufficient for their support and maintenance. Even this contract is left wholly without any mortgage or other security for its fulfilment, either to Venable or to the children; and Venable strips himself of his whole estate, and relies exclusively upon the good faith and solvency of M'Donald, to extricate himself from all future difficulties. Such a case may exist; but it must involve some suspicion, when the party who resorts to such measures, has a demand hanging over him, which goes deeply to affect his solvency and his interests, and may furnish another and cogent motive for the transaction. \nThe provision in this contract  for the support and maintenance of the children, is somewhat extraordinary, and of a very indefinite nature and extent. M'Donald agrees to deliver to Venable \"as much beef, pork, hay, corn, flour, &c. to the amount of what it shall be worth, to board, school, and clothe\" them. So that even the amount is not fixed, and is to depend upon the future pleasure of the parties. In case of a real purchase, such a provision could not be expected, even though it went merely to keep down the accruing even within that limit. The contract itself is not avowed upon the face of the deeds, and must be deemed a mere private and secret bargain, to be kept back by the parties. \nThen, again, as to the remaining cash payment of $ 2060 50 cents. The bill directly charges that it was a mere formal payment, and that the \"money was by the said Venable returned  back to M'Donald, or to the person of whom M'Donald borrowed it.\" The answer of M'Donald admits that a part was borrowed; but his denial of its return is couched in terms of an ambiguous purport. He says that the sum of $ 2060 50 cents \"was paid by this defendant in the presence of Moses S. Hall,\" &c. That he \"borrowed a portion of  the money to enable him to make the cash payment. That it was paid by him to his co-defendant (Venable) in good faith, and that no part of it was returned to him by said Venable, nor did this defendant receive any part of said money back from said Venable by any fraudulent contrivance, as the complainants have falsely alleged.\" Venable in his answer says, \"that the said sum of money was paid to him by his co-defendant (M'Donald) in good faith, and that no part of it was returned by him to his co-defendant.\" Now it is remarkable, that neither of these answers, in terms, denies that the money so borrowed was returned back to the person of whom it was borrowed, which is the gist of the charge in the bill; nor does M'Donald deny that he received it back; but only that it was not returned to him by Venable. Nor are these allegations thus loose, from mere accident or carelessness. On the contrary, the proof is direct, that the money borrowed was returned to M'Donald, and was by him returned to the  lender. Moses S. Hall, in his testimony, says he was present when the money was paid, and it was handed to Mrs Venable. William Achison testifies that M'Donald told him that the  next morning after the money was paid, Mrs Venable was at his house with the money, on her way to town to deposit it in bank, and he, M'Donald, borrowed it of her and returned it to Hendley (the lender) the same day. Hendley himself, in his testimony, says, \"M'Donald came to me and told me that he had made a purchase; that I was a man of tolerable good sense, I could tell by a little what a good deal meant; and observed that he wished to borrow of me $ 1000, which I loaned him, and stated he would return it in a few days. He observed that Venable was embarrassed by a debt on account of Norten, and that he had bought him out of every species of property, and that he wanted the money to pay him. He also offered  me a mortgage on a negro man and a tract of land for the payment of the money, but I declined receiving any security, &c. because I expected to receive the money back in a few days. I took a memorandum of the amount and numbers of the different notes loaned him, thinking it was possible I should receive the same notes back, &c. In about three or four days I received from said M'Donald the same notes back again. M'Donald stated to me, that he was security for Venable,  as guardian of Mrs Venable's children, to the amount of $ 3000 or $ 4000, and that he made this purchase to secure himself.\" In point of fact, independently of the purchase, as we have already seen, he had a mortgage on the same estate as security for that very liability. But it is impossible to wink so hard, as not to perceive, that if this statement be true, and it is no where contradicted or denied, the borrowing of the money was merely to exhibit before witnesses a formal payment, and that there was no real bona fides in this part of the transaction. It was an attempt, fruitless, as the event has shown, to throw a colourable gloss over the real transaction. \nHow the other part of the purchase money was obtained, is not proved by the defendants, although there is some hearsay evidence that other money was borrowed; but the answers of the defendants furnish no statement of the amount. \nThere is also testimony in the case from several witnesses, of the confessions of Venable, as to the object of the deeds, and of subsequent acts of control over the estate to some extent, from which unfavourable inferences have been deduced at the argument against the validity of the deeds. It has  been said at the bar, that these confessions and acts, being subsequent to the execution of the deeds, ought not to be permitted to prejudice the title of M'Donald, and are not evidence to bind him. It is true, that neither the acts nor confessions of a grantor, under such circumstances, are admissible to defeat the title of the grantee. But they are certainly admissible to disprove the answer of the grantor,when he is a party to the bill. If they discredit his answer, they withdraw from the case all the influence which his concurrence in the statement of the grantee would otherwise  have; and to this extent they have a bearing upon the whole merits of the case; but not beyond it. Upon examination of these confessions, they certainly exhibit some misgivings on the part of Venable, and some proof, that the sale of the estate was to defeat the debt due by him to the bank, as security of Norten. The acts of control by Venable over the estate are more equivocal; and but for his subsequent liberal participation in all the produce of the estate, would, perhaps of themselves, not be very significant. As the case is, they cannot but have some weight. \nUpon the whole, without  going more at large into the case, the circumstances are such, that it appears to us these deeds were not bona fide and for a valuable consideration, and therefore they were properly set aside by the circuit court. Looking to the nature of the transaction, the assumed confederations, the relation and circumstances of the parties, the impending decree, the sweeping extent of the deeds, the non-disclosure, on the face of them, of the real considerations, the objects of the collateral and secret contract, the very great doubt as to what was due to the children, and the ambiguous explanations of the parties; we think the presumptions are so strong against the validity of the deeds, that they ought not to be supported. \nThe decree of the circuit courts is affirmed, with costs. \nThis cause came on to be heard on the transcript of the record from the circuit court of the United States for the district of Kentucky, and was argued by counsel; on consideration whereof, it is considered, ordered and decreed by this Court, that the decree of the said circuit court in this cause be, and the same is hereby affirmed, with costs. \n \n\n ", " \nOpinion \n\n \n \n  Mr Justice STORY delivered the opinion of the Court. \nThis is a writ of error to the circuit court of the district of Columbia, sitting  for the county of Washington. \nThe original was an action on the case brought by the plaintiffs in error against the defendant for waste committed by him, while tenant of the plaintiffs, to their reversionary interest, by pulling down and removing from the demised premises a messuage or dwelling house erected thereon and attached to the freehold. The cause was tried upon the general issue, and a verdict found for the defendant, upon which a judgment passed in his favour; and the object of the present writ of error is to revise that judgment. \nBy the bill of exceptions, filed at the trial, it appeared that the plaintiffs in 1820 demised to the defendant, for seven years, a vacant lot in the city of Washington, at the yearly rent of $112 50 cents, with a clause in the lease that the defendant should have a right to purchase the same at any  time during the term for $1875. After the defendant had taken possession of the lot, he erected thereon a wooden dwelling house, two stories high in front, with a shed of one story, a cellar of stone or brick foundation and a brick chimney.The defendant and his family dwelt in the house from its erection until near the expiration of the  lease, when he took the same down and removed all the materials from the lot. The defendant was a carpenter by trade; and he gave evidence, that upon obtaining the lease he erected the building above mentioned, with a view to carry on the business of a dairy man, and for the residence of his family and servants engaged in his said business; and that the cellar, in which there was a spring, was made and exclusively used for a milk cellar, in which the utensils of his said business were kept and scalded, and washed and used; and that feed was kept in the upper part of the house, which was also occupied as a dwelling for his family. That the defendant had his tools as a carpenter, and two apprentices in the house, and a work-bench out of doors; and carpenter's work was done in the house, which was in a rough unfinished state and made partly of old materials. That he also erected on the lot a stable for his cows of plank and timber fixed upon posts fastened into the ground, which stable he removed with the house before the expiration of his lease. \nUpon this evidence, the counsel for the plaintiffs prayed for an instruction, that if the jury should believe the same to be true, the defendant  was not justified in removing the said house from the premises; and that he was liable to the plaintiffs in this action. This instruction the court refused to give; and the refusal constitutes his first exception. \nThe defendant farther offered evidence to prove, that a usage and custom existed in the city of Washington, which authorised a tenant to remove any building which he might erect upon rented premises, provided he did it before the expiration of the term. The plaintiffs objected to this evidence; but the court admitted it. This constitutes the second exception. \nTestimony was then introduced on this point, and after  the examination of the witnesses for the defendant, the plaintiffs prayed the court to instruct the jury that the evidence was not competent to establish the fact, that a general usage had existed or did exist in the city of Washington, which authorised a tenant to remove such a house as that erected by the tenant in this case; nor was it competent for the jury to infer from the said evidence, that such a usage had existed. The court refused to give this instruction, and this constitutes the third exception. \nThe counsel for the plaintiffs then  introduced witnesses to disprove the usage; and after their testimony was given, he prayed the court to instruct the jury, that upon the evidence given as aforesaid in this case, it is not competent for them to find a usage or custom of the place by which the defendant could be justified in removing the house in question; and there being no such usage, the plaintiffs  are entitled to a verdict for the value of the house, which the defendant pulled down and destroyed. The court was divided and did not give the instruction so prayed; and this constitutes the fourth exception. \nThe first exception raises the important question, what fixtures erected by a tenant during his term, are removable by him? \nThe general rule of the common law certainly is, that whatever is once annexed to the freehold becomes part of it, and cannot afterwards be removed, except by him who is entitled to the inheritance. The rule, however, never was, at least as far back as we can trace it in the books, inflexible, and without exceptions.It was construed most strictly between executor and heir in favour of the latter; more liberally between tenant for life or in tail, and remainder man or reversioner,  in favour of the former; and with much greater latitude between landlord and tenant, in favour of the tenant. But an exception of a much broader cast, and whose origin may be traced almost as high as the rule itself, is of fixtures erected for the purposes of trade. Upon principles of public policy, and to encourage trade and manufactures, fixtures which were erected to carry on such business, were allowed to be removed by the tenant during his  term, and were deemed personalty for many other purposes. The principal cases are collected and reviewed by Lord Ellenborough in delivering the opinion of the court in Elwes vs. Maw, 3 East's R. 38; and it seems unnecessary to do more than to refer to that case for a full summary of the general doctrine and its admitted exceptions in England. The court there decided, that in the case of landlord and tenant, there had been no relaxation of the general rule in cases of erections, solely for agricultural purposes, however beneficial or important they might be as improvements of the estate. Being once annexed to the freehold by the tenant, they became a part of the realty, and could never afterwards be severed by the tenant. The  distinction is certainly a nice one between fixtures for the purposes of trade, and fixtures for agricultural purposes; at least in those cases, where the sale of the produce constitutes the principal object of the tenant, and the erections are for the purpose of such a beneficial enjoyment of the estate. But that point is not now before us; and it is unnecessary to consider what the true doctrine is or ought to be on this subject. However well settled it may now be in England, it cannot escape remark, that learned judges at different periods in that country, have entertained different opinions upon it, down to the very date of the decision in Elwes vs. Maw, 3 East's R. 38. \nThe common law of England is not to be taken in all respects to be that of America.Our ancestors brought with them its general principles, and claimed it as their birthright; but they brought with them and adopted only that portion which was applicable to their situation. There could be little or no reason for doubting that the general doctrine as to things annexed to the freehold, so far as it respects heirs and executors, was adopted by them. The question could arise only between different claimants under  the same ancestor, and no general policy could be subserved, by with-drawing from the heir those things which his ancestor had chosen to leave annexed to the inheritance. But, between landlord and tenant, it is not so clear that the rigid rule of the common law, at least as it is expounded in 3 East, 38,  was so applicable to their situation, as to give rise to necessary presumption in its favour. The country was a wilderness, and the universal policy was to procure its cultivation and improvement. The owner of the soil as well as the public, had every motive to encourage the tenant to devote himself to agriculture, and to favour any erections which should aid this result; yet, in the comparative poverty of the country, what tenant could afford to erect fixtures of much expense or value, if he was to lose his whole interest therein by the very act of erection? His cabin or log-hut, however necessary for any improvement of the soil; would cease to be his the moment it was finished. It might, therefore, deserve consideration, whether, in case the doctrine were not previously adopted in a state by some authoritative practice or adjudication; it ought to be assumed by this  Court as a part of the jurisprudence of such state, upon the mere footing of its existence in the common law. At present, it is unnecessary to say more, than that we give no opinion on this question. The case which has been argued at the bar, may well be disposed of without any discussion of it. \nIt has been already stated that the exception of buildings and other fixtures, for the purpose of carrying on a trade or manufacture, is of very ancient date, and was recognised almost as early as the rule itself. The very point was decided in 20 Henry VII. 13, a. and b., where it was laid down, that if a lessee for years made a furnace for his advantage, or a dyer made his vats or vessels to occupy his occupalion, during the term, he may afterwards remove them. That doctrine was recognised by lord Holt, in Poole's case, 1 Salk. 368, in favour of a soap-boiler who was tenant for years. He held that the party might well remove the vats he set up in relation to trade; and that he might do it by the common law, (and not by virtue of any custom) in favour of trade, and to encourage industry. In Lawton vs. Lawton, 3 Atk. R. 13, the same doctrine was held in the case of a fire engine, set up  to work a colliery by a tenant for life. Lord Hardwicke there said, that since the time of Henry the seventh, the general ground the courts have gone upon of relaxing the strict construcjtion of law is, that it is for the  benefit of the public, to encourage tenants for life to do what is advantageous to the estate during the term. He added, \"one reason which weighs with me is, its being a mixed case, between enjoying the profits of the land, and carrying on a species of trade; and in considering it in this light, it comes very near the instances in brewhouses, &c. of furnaces and coppers.\" The case too of a cider mill, between the executor and heir, &c. is extremely strong, for though cider is a part of the profits of the real estate, yet, it was held by lord chief baron Comyns, a very able common lawyer, that the cider mill was personal estate, notwithstanding, and that it should go to the executor. \"It does not differ it,  in my opinion, whether the shed be made of brick or wood, for it is only intended to cover it from the weather and other inconveniences.\" In Penton vs. Robart, 2 East, 88 it was further decided that a tenant might remove his fixtures for  trade, even after the expiration of his term, if he yet remained in possession; and lord Kenyon recognised the doctrine in its most liberal extent. \nIt has been suggested at the bar, that this exception in favour of trade has never been applied to cases like that before the Court, where a large house has been built and used in part as a family residence. But the question, whether removable or not, does not depend upon the form or size of the building, whether it has a brick foundation or not, or is one or two stories high, or has a brick or other chimney. The sole question is, whether it is designed for purposes of trade or not. A tenant may erect a large as well as a small messuage, or a soap boilery of one or two stories high, and on whatever foundations he may choose. In Lawton vs. Lawton, 3 Atk. R. 13, lord Hardwicke said, (as we have already seen) that it made no difference whether the shed of the engine be made of brick or stone.In Penton vs. Robart, 2 East's R. 88, the building had a brick foundation, let into the ground, with a chimney belonging to it, upon which there was a superstructure of wood. Yet the court thought the building removable. In Elwes vs. Maw, 3 East's  R. 37, lord Ellenborough expressly stated, that there was no difference between the building covering any fixed engine,  utensils, and the latter. The only point is, whether it is accessary to carrying on the trade or not. If bona fide intended for this purpose, it falls within the exception in favour of trade. The case of the Dutch barns, before lord Kenyon 1 , is to the same effect. \nThen as to the residence of the family in the house, this resolves itself into the same consideration. If the house were built principally for a dwelling house for the family, independently of carrying on the trade, then it would doubtless be deemed a fixture, falling under the general rule, and immovable. But if the residence of the family were merely an accessory for the more beneficial exercise of the trade, and with a view to superior accommodation in this particular, then it is within the exception. There are many trades which cannot be carried on well, without the presence of many persons by night as well as by day. It is so in some valuable manufactories. It is not unusual for persons employed in a  bakery to sleep in the same building. Now what was the evidence in the present case? It was, \"that the defendant erected the building before mentioned, with a view to carry on the business of a dairy man, and for the residence of his family and servants engaged in that business.\" The residence of the family was then auxiliary to the dairy; it was for the accommodation and beneficial operations of this trade. \nSurely, it cannot be doubted, that in a business of this nature, the immediate presence of the family and servants, was, or might be of very great utility and importance. The defendant was also a carpenter, and carried on his business, as such, in the same building. It is no objection that he carried on two trades instead of one. There is not the slightest evidence of this one being a mere cover or evasion to conceal another, which was the principal design; and, unless we were prepared to say (which we are not) that the mere fact that the house was used for a dwelling house, as well as for a trade, superseded the exception in favour of the latter, there is no ground to declare that the tenant was not entitled to remove it. At most, it would be deemed only a mixed   case, analogous in principle to those before lord chief baron Comyns, and lord Hardwicke; and therefore entitled to the benefit of the exception. The case of Holmes vs. Tremper, 20 Johns. R. 29, proceeds upon principles equally liberal; and it is quite certain that the supreme court of New York, were not prepared at that time to adopt the doctrine of Elwes vs. Maw, in respect to erections for agricultural purposes. In our opinion, the circuit court was right in refusing the first instruction. \nThe second exception proceeds upon the ground that it was not competent to establish a usage and custom in the city of Washington for tenants to make such removals of buildings during their term. We can perceive no objection to such proof. Every demise between landlord and tenant in respect to matters in which the parties are silent, may be fairly open to explanation by the general usage and custom of the country or of the district where the land lies. Every person under such circumstances is supposed to be conusant of the custom, and to contract with a tacit reference to it. Cases of this sort are familiar in the books; as for instance, to prove the right of a tenant to an away-going crop  2 . In the very class of cases now before the Court the custom of the country has been admitted to decide the right of the tenant to remove fixtures 3 . The case before lord chief justice Treby turned upon that point 4 . \nThe third exception turns upon the consideration, whether the parol testimony was competent to establish such a usage and custom. Competent it certainly was, if by competent is meant, that it was admissible to go to the jury. Whether it was such as ought to have satisfied their minds on the matter of fact was solely for their consideration; open indeed to such commentary and observation as the court might think proper in its discretion to lay before them for their aid and guidance. We cannot say that they were not at liberty, by the principles of law, to infer from the evidence the existence of the usage. The evidence might be somewhat loose  and indeterminate, and so be urged with more or less effect upon their judgment; but in a legal sense it was within their own province to weigh it as proof or as usage. \nThe last exception professes  to call upon the court to institute a comparison between the testimony introduced by the plaintiff and that introduced by the defendant against and for the usage. It requires from the court a decision upon its relative weight and credibility, which the court were not justified in giving to the jury in the shape of a positive instruction. \nUpon the whole in our judgment there is  no error in the judgment of the circuit court; and it is affirmed with costs. \nThis cause came on to be heard on a transcript of the record from the circuit court of the United States for the district of Columbia, holden in and for the county of Washington, and was argued by counsel; on consideration whereof, it is the opinion of this Court, that there is no error in the judgment of the said circuit court. Whereupon it is considered, ordered and adjudged by this Court, that the judgment of the said circuit court in this cause, be, and the same is hereby affirmed with costs. \n \n\n ", " \nOpinion \n\n \n \n  Mr Justice STORY delivered the opinion of the Court. \nThis is a writ of error to the circuit court of the district of Kentucky. The original action was brought by the defendant in error against the plaintiff in error, as one of the firm of Thomas F. Townsley & Co., to recover the amount of a bill of exchange, drawn, at Maysville in Kentucky, on the 27th of November 1827, by one Richard S. Waters, on Messrs Townsley & Co. at New Orleans, at 120 days after date for $ 2000, payable to sumrall or order, which had been dishonoured by the drawees. \nThe declaration contained various counts: some of which  alleged an actual acceptance of the bill and non-payment thereof at maturity; others, a promise by the drawees to accept and pay the bill when drawn, if the original plaintiff would purchase the same from the drawer. The cause was tried upon the general issue, and a verdict was found for the original plaintiff for $ 2860, upon which he obtained judgment. A bill of exceptions was taken at the trial, upon which the questions are presented, which have been argued at the bar. \nThe bill of exceptions stated, that the plaintiff offered in evidence the bill of exchange and the protest of the notary  public at New Orleans, to which evidence the defendant objected, but the court admitted the testimony. \nEvidence was then given, by the testimony of John Sumrall, the plaintiff's brother, to show that in a conversation between the plaintiff and the defendant relative to some shipments which Richard S. Waters proposed to make to the firm of Thomas F. Townsley & Co. and bills to be drawn against them; when the plaintiff said he feared the bills would not be honoured and paid; Thomas F. Townsley told the plaintiff, that the firm would accept the bills of Waters, for $ 4000, and pay them  at maturity. The plaintiff stated he wished to pay a debt in Philadelphia with the bills, and the produce to be shipped by Waters might not arrive in time to provide for them; to which Townsley replied, that if Waters would draw a bill or bills to the amount not exceeding $ 4000, such bill or bills should be accepted and paid, whether the produce arrived or not. Waters and the plaintiff had been in partnership before the conversation, but the partnership at the time it took place had been dissolved. Richard S. Waters testified, that he had drawn the bill for $ 2000 upon which the suit was brought, and another for the same amount.  That in a conversation with the plaintiff before the bills were drawn, the plaintiff wished him to draw for $ 4000: he said he was afraid to draw for $ 4000, and the plaintiff told him, Townsley had said he would pay one draft for $ 2000, whether the produce to be shipped arrived in time or not; and he agreed to draw for $ 2000, and after some hesitation he drew the other bill for $ 2000; both bills being drawn in favour of Sumrall: and it was perfectly understood between them that he had no funds in the hands of the drawees, and that the bills  were to be sent to Philadelphia to discharge debts due by the plaintiff and himself as partners, to Toland & Rockhill and to others: and the plaintiff agreed to help him to meet one of the bills, if he should be unable to pay both.He gave the plaintiff the bills for $ 4000 of partnership goods taken by him at the dissolution of the partnership. That the partnership accounts were not settled; and he received no other consideration for the bills than the receipt of the  $ 4000 of partnership goods. He furnished Thomas F. Townsley & Co. with produce enough to pay one of the drafts, and they paid one of them. Townsley & Co. had no funds or effects in their hands belonging to him. On the dissolution of the partnership, he understood the plaintiff was to wind up the concern and pay the debts. \nThe defendant then offered in evidence the record of a suit of Toland & Rockhill against Sumrall & Waters; which was objected to, and the objection sustained by the court. \nThe deposition of Langhorne was then read, stating that that in 1819, he heard Waters say, his credit was better abroad than at home, for Townsley had promised to accept for him for $ 4000 for Sumrall, whether his  produce got down in time or not. \nEvidence was also given to show, that shortly after the bills of exchange were drawn, Waters became totally insolvent. \nThe deposition of Samuel D. Lucas was read on the part of the plaintiff. He stated that he heard Townsley assure the plaintiff that the drafts of Waters to the amount of $ 4000, which Waters proposed to let the plaintiff have, to be drawn by Waters on the house of Thomas F. Townsley & Co. of New Orleans, at 120 days after date, should be paid. The plaintiff consented to take the drafts with considerable reluctance, for fear of accident; upon which Townsley assured him the drafts should be honoured, whether the produce to be shipped by Waters arrived or not. Upon the faith of Townsley's accepting for Waters, the bills were received, and the plaintiff advanced large quantities of merchandise and other articles. \nThe plaintiff prayed the following instruction to the jury, which was given, and to which the defendant excepted: That if they shall believe from the evidence in this case that the defendant Townsley promised for himself and company, to Sumrall, that they would honour, accept, or pay bills drawn on them by Waters to the amount  of $ 4000; and that Sumrall did immediately thereafter, or within a reasonable time, upon the credit of said promise, purchase bills drawn by Waters, accordingly, to the amount of $ 4000, and that the bill in the  declaration mentioned, is one of the bills so purchased; then that the plaintiff upon the evidence, is entitled to recover; whether the purchase was made before or after the drawing of said bills, or whether they were drawn for a pre-existing debt, or drawn and sold for any other good and valuable consideration. \nThe defendant then asked the court to instruct the jury: 1. That if they believe from the evidence, that the defendant by parol stated that he would accept a bill or bills to the amount of $ 4000, before the bills were drawn, and before the defendant had received the amount or any part of it, under the expectation and belief that the drawer Richard S. Waters would put funds into his hands to take up the bills at maturity; and that the plaintiff knew that the said Richard had no funds, but made the promise in anticipation of such funds, and that no funds to take up the bill were placed in the hands of the defendants or either of them, to take up the bill,  nor had the drawer any funds in the hands of the drawee to draw upon; that they should find for the defendant; provided the jury further find that the plaintiff and R. S. Waters the drawer, were partners in trade, and as such were indebted on their partnership account to Toland & Rockhill; and that the bill was drawn by the said Waters in favour of the plaintiff, with a view to raise funds, or to be passed in direct payment of a joint debt due as aforesaid; and that the said bill, with this object and view, and in pursuance of an agreement between drawer and plaintiff, was passed to the credit of the drawer and plaintiff to Toland & Rockhill. \n2. That if they believe the said bill was drawn to pay a partnership debt as stated by R. S. Waters, they ought to find for the defendants. \n3. That if they believe the bill was drawn by Waters in favour of Sumrall, to be assigned to Toland & Rockhill, in payment of a partnership debt due by Waters & Sumrall to Toland & Rockhill, and that said bill was thus assigned to Toland & Rockhill; and if they also believe that said Waters & Sumrall have not settled their partnership; that then they should find for the defendant. \n4. That if they believe  from the evidence, that the drawer,  Richard S. Waters, was informed by Townsley, before he drew the bills offered in evidence, that he might draw for $ 4000, and that he would accept and take up $ 2000, whether he, the said Waters, got on in time to take it up or not; and that he would accept and take up the other bill if funds were placed or forwarded to the house in New Orleans to take it up with, and that when the said Richard S. Waters drew the bills, that he hesitated for fear he could nog get to New Orleans in time with the means to take up both bills, until it was agreed between Sumrall and him, that they would risk both bills; and if Waters was not able to take up both at maturity, that as to the one Townsley would not accept, he, Sumrall, would assist the said Waters with funds to take it up with at maturity; and that Sumrall did, at the time of drawing the bills as aforesaid, state to Waters that Townsley promised him that he would accept one of the bills unconditionally, and the other if in funds; and that Townsley & Co. did accept and pay at maturity one of the  bills, and had not funds of Waters or of the plaintiff to pay the other at maturity; that  they ought to find for the defendant. \n5. That a demand of the amount of said bill at New Orleans was necessary to enable the plaintiff to maintain the suit, and that the protest of the notary is not evidence of such demand. \n6. That a parol promise to pay a non-existing bill, since the statute of frauds, is not obligatory and binding. \nTo all which opinions of the court -- 1. In permitting plaintiff to read said protest; 2. In refusing defendant leave to read said record; 3. In giving the instructions asked by plaintiff; 4. In refusing the instructions asked by defendant -- the defendant excepted. \nThe first question that arises is upon the admissibility of the protest of the notary public at New Orleans, as proof of the dishonour of the bill. The protest is for non-payment for want of funds; and it does not appear that there had been any prior protest for non-acceptance. Bills of exchange payable at a given time after date, need not be presented  for acceptance at all; and payment may at once be demanded at their maturity. The objection now made does not turn upon this point, but upon the point, that the present is not a foreign, but an inland bill of exchange; being  drawn in Kentucky, and payable at New Orleans in Louisiana; and that a notarial protest is not in such cases evidence of a demand and refusal of payment. We do not think it necessary in this case to decide, whether a bill drawn in one state upon persons resident in another state, within the union, is to be deemed a foreign, or an inland bill of exchange. Foreign it certainly is not, if by such appellation is understood a bill drawn upon a country under a totally distinct and independent sovereignty and allegiance. Inland it is not, if by that appellation is understood a bill drawn in one part of a territory, on another part, exclusively under the same municipal laws, and exclusively governed by the same sovereign power. It would seem to constitute an intermediate case. Different tribunals in the United States, of great respectability, have, however, differed upon the question; and it may all be left for a final decision, until it constitutes the very turning point of the judgment 1 \n It is admitted, that in respect to foreign bills of exchange the notarial certificate of protest is of itself sufficient proof of the dishonour of a bill without any auxiliary evidence. It has been long adopted into the jurisprudence of the common law, upon the ground that such protests are required by the custom of merchants; and being founded in public convenience, they ought, every where, to be allowed as evidence of the facts which they purport to state. The negotiability of such bills, and the facility as well as certainty of the proof of dishonour, would be materially affected by a different course; a foreign merchant might otherwise be compelled to rely on mere parol proof of presentment and dishonour, and be subjected to many chances of delay, and  sometimes to absolute loss, from the want of sufficient means to obtain the necessary and satisfactory proofs. The rule, therefore, being founded in public convenience, has been ratified by courts of law as a binding usage. But where parties reside in the same kingdom or country, there is not the same necesity for giving entire verity and credit to the notarial protest. The parties may produce the witnesses upon  the stand, or compel them to give their depositions. And accordingly, even in cases of foreign bills, drawn upon, and protested in another country, if the protest has been made in the country where the suit is brought; courts of justice sitting under the common law, require that the notary himself should be produced if within the reach of process, and his certificate is not per se evidence. This was so held by lord Ellenborough, in Chesmer vs. Noyes, 2 Campbell's R. 129. \nIt is not disputed, that by the general custom of merchants in the United States, bills of exchange drawn in one state on another state, are, if dishonoured, protested by a notary; and the production of such protest is the customary document of the dishonour. It is a practice founded in general convenience, and has been adopted for the same reasons which apply to foreign bills in the strictest sense. The distance between some of these states, and the difficulty of obtaining other evidence, is far greater than between England and France, or between the continental nations of Europe, where the general rule prevails. We think upon this ground alone, the reason for admitting foreign protests would apply to cases  like the present, and furnish a just analogy to govern it. There is as little doubt, that such is the custom in relation to bills drawn on New Orleans, where the jurisprudence of the civil law mainly prevails, and under which acts of this sort are generally verified by notaries. The act of Kentucky of 1798, ch. 57, 2 Littell's Statutes, 101, also recognizes the propriety, if not the indispensable necessity of a protest, not only in the cases of foreign bills generally, but of all bills drawn on any persons out of the state, or within any other of the United States; providing \"that the same being returned back unpaid with  a legal protest, the drawer and all others concerned shall pay the contents, &c. with legal interest from the time the said bill or bills were protested, the charges of protest, and ten per cent. advance for the damage, &c.\" The contract for the acceptance and honour of the present bill, was, if made at all, made in Kentucky and was to be governed by its laws; even supposing that the question whether it amounted to an acceptance or not, was to be governed by the law of Louisiana, where the contract was to be executed. So that in either view of the matter;  upon the general custom of merchants, or the lex loci contractus; we think the protest was rightly admitted in evidence. Wherever a protest is required to fix the title of the parties; or by the custom of merchants is used to establish a presentment or dishonour of a bill; it is competent evidence between the parties, who contract with reference to the presentment  and dishonour of such bill. And there is no doubt, that it was material for this purpose under some of the counts in the declaration. \nThe next objection is to the rejection of the record of the action of Toland & Rockhill vs. Sumrall & Waters. That was a suit between other parties, and falls within the general rule of res inter alios acta; and on that account was in our judgment rightly rejected. \nThe remaining objections arise from the instruction given by the court to the jury, on the prayer of the plaintiff, and to the refusal of the court to give the instructions prayed for by the defendant. \nThe instruction given by the court upon the plaintiff's prayer, is not understood to involve any other difficulty than, that it states that the plaintiff would be entitled to recover, \"whether the purchase was made  before or after drawing of said bills, or whether they were drawn for a pre existing debt, or drawn and sold for any other good and valuable consideration.\" We cannot perceive any sound legal objection to this instruction. If a person undertake, in consideration that another will purchase a bill already drawn, or to be thereafter drawn, and as an inducement to the purchase to accept it, and the bill is drawn and purchased upon the credit of such promise, for a sufficient consideration;  such promise to accept is binding upon the party. It is an original promise to the purchaser, not merely a promise for the debt of another; and having a sufficient consideration to support it, in reason and justice, as well as in law, it ought to bind him. It is of no consequence that the direct consideration moves to a third person, as in this case to the drawer of the bill; for it moves from the purchaser, and is his inducement for taking the bill. He pays his money upon the faith of it, and is entitled to claim a fulfilment of it. IT is not a case falling within the objects or the mischiefs of the statute of frauds. If A. says to B. pay so much money to C. and I will repay it to  you, it is an original independent promise; and if the money is paid upon the faith of it, it has been always deemed an obligatory contract, even though it be by parol; because there is an original consideration moving between the immediate parties to the contract. Damage to the promissee, constitutes as good a consideration as benefit to the promissor. In cases not absolutely closed by authority, this court has already expressed a strong inclaination not to extend the operation of the statute of frauds, so as to embrace original and distinct promises, made by different persons at the same time upon the same general consideration 2 . Then, again, as to the consideration, it can make no difference in law, whether the debt for which the bill is taken is a pre-existing debt, or money then paid for the bill. In each case there is a substantial credit given by the party to the drawer, upon the bill, and the party parts with his present rights at the instance of the promissee; whose promise is substantially a new and independent one, and not a mere guarantee of the existing promise of the drawer. Under such circumstances, there is no substantial distinction, whether the bill be then  in existence, or be drawn afterwards. In each case the object of the promise is to induce the party to take the bill upon the credit of the promise; and if he does so take it, it binds the promissor. The question, whether a parol promise to accept a non-existing bill, amounts to an acceptance of the bill when  drawn, is quite a different question, and does not arise in this case. If the promise to accept were binding, the plaintiff would be entitled to recover, although it should not be deemed a virtual acceptance; and the point whether it was an acceptance or not, does not appear to have been made in the court below. \nThe instructions prayed for on behalf of the defendant and refused by the court, present several objections to the plaintiff's right of recovery. \nThe first is, that the plaintiff is not entitled to recover, if he knew that the defendant at the time of taking the bill, had not funds of the drawer in his hands, and if the defendant's promise was under the expectation of receiving funds, and he did not, in fact, receive them at the maturity of the bill. We are of opinion that this objection is unfounded in point  of law.If the drawee have no funds in his hands, and the fact is known to the other party, and yet the inducement to take the bill is the promise of the drawee to accept it, it constitutes a valid contract between the parties; if there is a purchase of the bill upon the credit of such promise. The acceptance of the drawee of a bill binds him, although it is known to the holder that he has no funds in this hands. It is sufficient that the holder trusts to such acceptance. \nAnother objection is, that the object of taking the bill was to pay the partnership debt of the plaintiff and the drawer (who had been partners in trade); and it was passed in pursuance of an agreement between them, to a creditor of the firm, who subsequently returned it for the dishonour. It what respect this changes the rights of the plaintiff as to the defendant, it is somewhat difficult to perceive. There was evidence in the case, to show that the plaintiff was upon the dissolution to discharge the partnership debts; and also that upon the faith of this very promise of the defendant, he allowed partnership property to the full amount of the bill, to pass into the drawer's hands for his own exclusive use. But  independently of this evidence, the bill itself was not a partnership bill, though the drawer and the plaintiff had been partners. On the contrary, it was to be drawn on the sole account and credit of the drawer, and was to be accepted  on that account; and if the plaintiff took the bill as the sole bill of the drawer, on the credit of the defendant's promise to accept it, for a valuable consideration, the use to which he should apply it, whether in payment of joint debts or otherwise, was nothing to the defendant. It in no respect changed the nature of his own undertaking.The receiving of such a bill, with the intent to apply the same to the payment of a partnership debt, might materially affect the plaintiff; and we see that by the subsequent insolvenacy of the drawer, and his parting with the partnership effects, it did seriously affect his remedy in respect to his partner. The question is not put, whether,  if no loss had been sustained in any way, the plaintiff would have been entitled to recover against the defendant. By becoming an indorser upon the bill, he incurred a responsibility to those to whom he indorsed it, very different from that which he  incurred to them as creditors of the partnership. This alone was a sufficient consideration to support the promise to accept. It should be added, that the application of the bill to the payment of debts constituted no part of the ground of the promise of the defendant. \nAnother objection is, that the partnership accounts remain unsettled, and therefore the plaintiff ought not to recover. Surely this alone is not sufficient to deprive the plaintiff of his right of action. It is perfectly consistent with this state of facts, that the plaintiff should be a creditor of the firm to an extent far beyond the amount of $ 4000. There is evidence in the record from which the jury might fairly presume, that such was the case. But the circumstance, that the accounts of the partnership were unsettled, is put as of itself sufficient to defeat the plaintiff's recovery; which it cannot be admitted to be, if in any possible case, consistently with that fact, he might have sustained any loss by taking the bill upon the faith of the defendant's promise. \nAnother objection, arising out of the fourth instruction prayed for by the defendant, which is very complicated and embarrassing in its presentation;  is the effect of the agreement therein supposed between the plaintiff and the drawer to risk both the bills; and if the defendant should not accept  both, then that the plaintiff would assist the drawer with funds to take up the non-accepted bill at maturity. This agreement was not in the slightest degree prejudicial to any rights of the defendant. Its object was to provide funds in the event of a non-fulfilment of the promise of the defendant to accept either of the bills. It did not waive or vary the defendant's contract; and, at most, could be considered only as a collateral agreement of the parties, forming additional private inducements for the drawing of the bill. \nThe same instruction includes another objection, which is, that if from the evidence the jury should believe that the plaintiff did at the time of drawing the bills state to the drawer, that defendant promised him that he would accept one of the bills unconditionally, and the other, if in funds; and that the drawee did not accept and pay at maturity one of the bills, and had not funds of the drawer, or of the plaintiff to pay the other at maturity; that they ought to find for the defendant. This part  of the instruction proceeds altogether upon the ground that the mere statement of the plaintiff to the drawer, that the promise of the defendant was conditional, was a bar to the recovery. It does not affect to state, that if in point of fact the promise was conditional, such would and ought to be the result; but, that it was sufficient that the plaintiff so told the defendant, whether the fact were so or not.In our judgment the rights of the plaintiff are to be decided by the fact, whether the promise was conditional or not; and not by the mere assertion of the plaintiff. His assertion might properly be weighed by the jury as part of the evidence, to control or explain it; but their verdict ought to be governed by their belief of the facts, and not their belief that a particular assertion was made. \nThese are all the objections which have been urged at the bar; and we are of opinion, that the court was right in rejecting the instructions prayed for by the defendant. \nThe judgment is therefore to be affirmed with costs. \n \n\n ", " \nOpinion \n\n \n \n  Mr Justice STORY delivered the opinion of the Court. \nThis is a writ of error to the circuit court of the district of Rhode Island, in a case where the plaintiff in error was defendant in the court below. The original action was an ejectment, in the nature of a real action, according to the local practice, to recover a parcel of land in North Providence in that state. There were several pleas pleaded of the statute of limitations, upon which it is unnecessary to  say any thing, as  the questions thereon have been waived at the bar. The cause was tried upon the general issue; and, by consent of the parties, a verdict was taken for the plaintiffs, and a bill of exceptions allowed upon a pro forma opinion given by the court in favour of the plaintiffs, to enable the parties to bring the case before this Court for a final determination. The only questions which have been discussed at the bar arise under this bill of exceptions. \nThe facts are somewhat complicated in their details, but those which are material to the points before us may be summed up in a few words. \nThe plaintiffs below are the heirs at law of Cynthia Jenckes, to whom her father, Jonathan Jenckes, by his will in 1787, devised the demanded premises in fee, subject to a life estate then in being, but which expired in 1794. By his will, Jonathan Jenckes appointed his wife Cynthia, and one Arthur Fenner, executrix and executor of his will. Fenner never accepted the appointment. At the time of his death Jonathan Jenckes lived in New Hampshire, and after his death his widow duly proved the will in the proper court of probate in that state, and took upon herself the administration of the estate as  executrix. The estate was represented insolvent, and commissioners were appointed in the usual manner to ascertain the amount of the debts. The executrix, in July 1790, obtained a license from the judge of probate in New Hampshire, to sell so much of the real estate of the testator, as, together with his personal estate, would be sufficient to pay his debts and incidental charges.The will was never proved, or administration taken out in any probate court of Rhode Island. But the executrix, in November 1791, sold the demanded premises to one Moses Brown and Oziel Wilkinson, under whom the defendant here claims, by a deed, in which she recites her authority to sell as aforesaid, and purports to act as executrix in the sale. The purchasers, however, not being satisfied with her authority to make the sale, she entered into a covenant with them on the same day, by which she bound herself to procure an act of the legislature of Rhode Island, ratifying and confirming the title so granted; and, on failure thereof. \n to repay the purchase money, &c. &c. She accordingly made an application to the legislature of Rhode Island for this purpose, stating the facts in her petition,  and thereupon an act was passed by the legislature, at June session 1792, granting the prayer of her petition and ratifying the title. The terms of this act we shall have occasion hereafter to consider. In February, 1792, she settled her administration account in the probate court in New Hampshire, and thereupon the balance of # 15 7s. 7D. only remained in her hands for distribution. \nSuch are the material facts; and the questions discussed at the bar, ultimately resolve themselves into the consideration of the validity and effect of the act of 1792. If that act was constitutional, and its terms, when properly construed, amount to a legal confirmation of the sale and the proceedings thereon, then the plaintiff is entitled to judgment, and the judgment below was erroneous. If otherwise, then the judgment ought to be affirmed. \nIt is wholly unnecessary to go into an examination of the regularity of the proceedings of the probate court in New Hampshire, and of the order or license there granted to the executrix to sell the real estate of the testator. That cause could have no legal operation in Rhode Island. The legislative and judicial authority of New Hampshire were bounded  by the territory of that state, and could not be rightfully exercised to pass estates lying in another state. The sale, therefore, made by the executrix to Moses Brown and Oziel Wilkinson, in virtue of the said license, was utterly void; and the deed given thereupon was, proprio vigore, inoperative to pass any title of the testator to any lands described therein. It was a mere nullity. \nUpon the death of the testator, his lands in Rhode Island, if not devised, were cast by descent upon his heirs, according to the laws of that state. If devised, they would pass to his devisees according to the legal intendment of the words of the devise. But, by the laws of Rhode Island, the probate of a will in the proper probate court is understood to be an indispensable preliminary to establish the right of the devisee, and then his title relates back to the death of  the testator. No probate of this will has ever been made in any court of probate in Rhode Island; but that objection is not now insisted on; and if it were, and the act of 1792 is to have any operation, it must be considered as dispensing with or superseding that ceremony. \nThe objections taken by the defendants to this  act, are, in the first place, that it is void as an act of legislation, because it transcends the authority which the legislature of Rhode Island can rightfully exercise under its present form of government. And, in the next place, that it is void as an act of confirmation, because its terms are not such as to give validity  to the sale and deed, so as to pass the title of the testator, even if it were otherwise constitutional. \nThe first objection deserves grave consideration from its general importance. To all that has been said at the bar upon the danger, inconvenience and mischiefs of retrospective legislation in general, and of acts of the character of the present in particular, this Court has listened with attention, and felt the full force of the reasoning. It is an exercise of power, which is of so summary a nature, so fraught with inconvenience, so liable to disturb the security of titles, and to spring by surprise upon the innocent and unwary, to their injury and sometimes to their ruin; that a legislature invested with the power, can scarcely be too cautious or too abstemious in the exertion of it. \nWe must decide this objection, however, not upon principles  of publaic policy, but of power; and precisely as the state court of Rhode Island itself ought to decide it. \nRhode Island is the only state in the union which has not a written constitution of government, containing its fundamental laws and institutions. Until the revolution in 1776, it was governed by the charter granted by Charles II. in the fifteenth year of his reign. That charter has ever since continued in its general provisions to regulate the exercise and distribution of the powers of government. It has never been formally abrogated by the people; and, except so far as it has been modified to meet the exigences of the revolution, may be considered as now a fundamental law. By this charter the power to make laws is granted to the general  assembly in the most ample manner, \"so as such laws, &c. be not contrary and repugnant unto, but as near as may be agreeable to the laws, &c. of England, considering the nature and constitution of the place and people there.\" What is the true extent of the power thus granted, must be open to explanation, as well by usage, as by construction of the terms, in which it is given. In a government professing to regard the great  rights of personal liberty and of property, and which is required to legislate in subordination to the general laws of England, it would not lightly be presumed that the great principles of Magna Charta were to be disregarded, or that the estates of its subjects were liable to be taken away without trial, without notice, and without offence. Even if such authority could be deemed to have been confided by the charter to the general assembly of Rhode Island, as an exercise of transcendental sovereignty before the revolution, it can scarcely be imagined that that great event could have left the people of that state subjected to its uncontrolled and arbitrary exercise. That government can scarcely be deemed to be free, where the rights of property are left solely dependent upon the will of a legislative body, without any restraint. The fundamental maxims of a free government seem to require, that the rights of personal liberty and private property should be held sacred. At least no court of justice in this country would be warranted in assuming, that the power to violate and disregard them; a power so repugnant to the common principles of justice and civil liberty lurked under any  general grant of legislative authority, or ought to be implied from any general expressions of the will of the people. The people ought not to be presumed to part with rights so vital to their security and well being, without very strong and direct expressions of such an intention. In Terret vs. Taylor, 9 Cranch, 43, it was held by this Court, that a grant or title to lands once made by the legislature to any person or corporation is irrevocable, and cannot be re-assumed by any subsequent legislative act; and that a different doctrine is utterly inconsistent with the great and fundamental principle of a republican government, and with the right of the citizens to the free enjoyment of their property lawfully  acquired. We know of no case, in which a legislative act to transfer the property of A. to B. without his consent, has ever been held a constitutional exercise of legislative power in any state in the union. On the contrary, it has been constantly resisted as inconsistent with just principles, by every judicial tribunal in which it has been attempted to be enforced. We are not prepared therefore to admit that the people of Rhode Island have ever delegated to their  legislature the power to divest the vested rights of property, and transfer them without the assent of the parties. The counsel for the plaintiffs have themselves admitted that they cannot contend for any such doctrine. \nThe question then arises whether the act of 1792 involves any such exercise of power. It is admitted that the title of an heir by descent in the real estate of his ancestor, and of a devisee in an estate unconditionally devised to him, is, upon the death of the party under whom he claimed, immediately devolved upon him, and he acquires a vested estate. But this, though true in a general sense, still leaves his title encumbered with all the liens which have been created by the party in his life time, or by the law at his decease. It is not an unqualified, though it be a vested interest; and it confers no title, except to what remains after every such lien is discharged.In the present case, the devisee under the will of Jonathan Jenckes without doubt took a vested estate in fee in the lands in Rhode Island. But it was an estate, still subject to all the qualifications and liens which the laws of that state annexed to those lands. It is not sufficient to entitle  the heirs of the devisee now to recover, to establish the fact that the estate so vested has been divested; but that it has been divested in a manner inconsistent with the principles of law. \nBy the laws of Rhode Island, as indeed by the laws of the other New England states, (for the same general system pervades them on this subject) the real estate of testators and intestates stands chargeable with the payment of their debts, upon a deficiency of assets of personal estate. The deficiency being once ascertained in the probate court, a license is granted by the proper judicial tribunal, upon the  petition of the executor or administrator, to sell so much of the real estate as may be necessary to pay the debts and incidental charges. The manner in which the sale is made is prescribed by the general laws. In  Massachusetts and Rhode Island, the license to sell is granted, as matter of course, without notice to the heirs or devisees; upon the mere production of proof from the probate court of the deficiency of personal assets. And the purchaser at the sale, upon receiving a deed from the executor or administrator, has a complete title, and is in immediately under  the deceased, and may enter and recover the possession of the estate, notwithstanding any intermediate descents, sales, disseisins, or other transfers of title or seisin. If therefore the whole real estate be necessary for the payment of debts, and the whole is sold, the title of the heirs or devisees is, by the general operations of law, divested and superseded; and so, pro tanto, in case of a partial sale. \nFrom this summary statement of the laws of Rhode Island, it is apparent, that the devisee under whom the present plaintiffs claim, took the land in controversy, subject to the lien for the debts of the testator. Her estate was a defeasible estate, liable to be divested upon a sale by the executrix, in the ordinary course of law, for the payment of such debts; and all that she could rightfully claim, would be the residue of the real estate after such debts were fully satisfied. In point of fact, as it appears from the evidence in the case, more debts were due in Rhode Island than the whole value for which all the estate there was sold; and there is nothing to impeach the fairness of the sale. The probate proceedings further show, that the estate was represented to be insolvent;  and in fact, it approached very near to an actual insolvency. So that upon this posture of the case, if the executrix had proceeded to obtain a license to sell, and had sold the estate according to the general laws of Rhode Island, the devisee and her heirs would have been divested of their whole interest in the estate in a manner entirely complete and unexceptionable. They have been divested of their formal title in another manner, in favour of creditors entitled to the estate; or rather, their formal title has been made subservient to the paramount title of the creditors.  Some suggestions have been thrown out at the bar, intimating a doubt whether the statutes of Rhode Island, giving to its courts authority to sell lands, for payment of debts, extended to cases where the deceased was not, at the time of his death, an inhabitant of the state. It is believed that the practical construction of these statutes has been otherwise. But it is unnecessary to consider whether that practical construction be correct or not, inasmuch as the laws of Rhode Island, in all cases, make the real estate of persons deceased chargeable with their debts, whether inhabitants or not. If  the authority to enforce such a charge by a sale by not confided to any subordinate court, it must, if at all, be exercised by the legislature itself. If it be so confided, it still remains to be shown, that the legislature is precluded from a concurrent exercise of power. \nWhat then are the objections to the act of 1792? First, it is said that it divests vested rights of property.But it has been already shown that it divests no such rights, except in favour of existing liens, of paramount obligation; and that the estate was vested in the devisee, expressly subject to such rights. Then again, it is said to be an act of judicial authority, which the legislature was not competent to exercise at all; or if it could exercise it, it could be only after due notice to all the parties in interest, and a hearing and decree. We do not think that the act is to be considered as a judicial act; but as an exercise of legislation. It purports to be a legislative resolution, and not a decree: As to notice, if it were necessary, (and it certainly would be wise and convenient to give notice, where extraordinary efforts of legislation are resorted to, which touch private rights,) it might well be  presumed, after the lapse of more than thirty years, and the acquiescence of the parties for the same period, that such notice was actually given. But by the general laws of Rhode Island upon this subject, no notice is required to be, or is in practice, given to heirs or devisees, in cases of sales of this nature; and it would be strange, if the legislature might not do without notice the same act which it would delegate authority to another to do without notice. If the legislature had authorised a future sale by the executrix  for the payment of debts, it is not easy to perceive any sound objection to it. There is nothing in the nature of the act which requires that it should be performed by a judicial tribunal, or that it should be performed by a delegate, instead of the legislature itself. It is remedial in its nature, to give effect to existing rights. \nBut it is said that this is a retrospective act, which gives validity to a void transaction. Admitting that it does so, still it does not follow that it may not be within the scope of the legislative authority, in a government like that of Rhode Island, if it does not divest the settled rights of property. A sale  had already been made by the ecutrix under a void authority, but in entire good faith, (for it is not attempted to be impeached for fraud;) and the proceeds, constituting a fund for the payment of creditors, were ready to be distributed as soon as the sale was made effectual to pass the title. It is but common justice to presume that the legislature was satisfied that the sale was bona fide, and for the full value of the estate. No creditors have ever attempted to disturb it. The sale then was ratified by the legislature; not to destroy existing rights, but to effectuate them, and in a manner beneficial to the parties. We cannot say that this is an excess of legislative power; unless we are prepared to say, that in a state not having a written constitution, acts of legislation, having a retrospective operation, are void as to all persons not assenting thereto, even though they may be for beneficial purposes, and to enforce existing rights. We think that this cannot be assumed as a general principle, by courts of justice. The present case is not so strong in its circumstances as that of Calder vs. Bull, 3 Dall. Rep. 386, or Rice vs. Parkman, 16 Mass. Rep. 226; in both of which  the resolves of the legislature were held to be constitutional. \nHitherto, the reasoning of the Court has proceeded  upon the ground that the act of 1792 was in its terms sufficient to give complete validity to the sale and deed of the executrix, so as to pass the testator's title. It remains to consider, whether such is its predicament in point of law. \nFor the purpose of giving a construction to the words of the act, we have been referred to the doctrine of confirmation  at the common law, in deeds between private persons. It is said that the act uses the appropriate words of a deed of confirmation, \"ratify and confirm;\" and that a confirmation at the common law will not make valid a void estate or act, but only one which is voidable. It is in our judgment wholly unnecessary to enter upon any examination of this doctrine of the common law, some of which is of great nicety and strictness; because the present is not an act between private persons having interests and rights to be operated upon by the terms of their deed. This is a legislative act, and is to be interpreted according to the intention of the legislature, apparent upon its face. Every technical  rule, as to the construction or force of particular terms, must yield to the clear expression of the paramount will of the legislature. It cannot be doubted that an act of parliament may be terms of confirmation make valid a void thing, if such is its intent. The cases cited in Plowden, 399, in Comyn's Dig. Confirmation, D; and in 1 Roll. Abridg. 583, are directly in point. The only question then is, what is the intent of the legislature in the act of 1792? Is it merely to confirm a void act, so as to leave it void, that is to confirm it in its infirmity? or is it to give general validity and efficacy to the thing done?We think there is no reasonable doubt of its real object and intent. It was to confirm the sale made by the executrix, so as to pass the title of her testator to the purchasers. The prayer of the petition, as recited in the act, was, that the legislature would \"ratify and confirm the sale aforesaid, which was made by a deed executed by the executrix, &c.\" The object was a ratification of the sale, and not a mere ratification of the formal execution of the deed. The language of the act is \"on due consideration whereof it is enacted, &c. that the prayer of the  said petitioner be granted, and that the deed be, and the same is hereby ratified and confirmed, so far as respects the conveyance of any right or interest in the estate mentioned in said deed, which belonged to the said Jonathan Jenckes at the time of his decease.\" It purports therefore to grant the prayer, which asks a confirmation of the sale, and confirms the deed, as a conveyance of the right and interest of  the testator. It is not an act of confirmation by the owner of the estate; but an act of confirmation of the sale and conveyance, by the legislature in its sovereign capacity. \nWe are therefore all of opinion that the judgment of the circuit court ought to be reversed, and that the cause be remanded with directions to the court to award a venire facias de novo. \n \n\n ", " \nOpinion \n\n \n \n  Mr Justice STORY delivered  the opinion of the Court. \nThis is a writ of error to the circuit court of the district of Ohio. The Bank of the United States brought a joint action against William Steele, William Lytle, and thomas D. Carneal (the defendant in error), upon a promissory note dated at Cincinnati on the 22d of August 1820, whereby Steele promised to pay Carneal or order, at the office of discount and deposit of the Bank of the United States, at Cincinnati, the sum of $11,563 in sixty days after date; which note was afterwards successively indorsed by Carneal and Lytle, and was discounted by the bank, and dishonoured at its maturity. \nThe declaration is for money lent and advanced, and the suit is authorized to be brought in this form jointly against all the parties to the note, by a statute of Ohio. The process was served upon Steele and lytle, but returned, \"not served\" upon Carneal. Judgment was afterwards duly obtained against Steele and Lytle, and a scire facias issued according to another statute of Ohio against Carneal, to which he appeared, and pleaded the general issue of non assumpsit, at the January term of the court in 1825. The cause was then regularly continued until July term 1827,  when by leave of the court he pleaded, as a further plea, the receipt of certain real estate of Lytle by the bank, after the commencement of the suit, in satisfaction of the debt due upon the note, and prayed judgment if the plaintiffs their action ought further to have or maintain against him. To this plea there was a replication, and issue to the  country; and at June term 1828, the cause was tried and a verdict was found, and judgment thereupon entered for the defendant. A bill of exceptions was taken at the trial, upon which the questions arose which have been discussed at the bar, and upon which the opinion of the Court is now to be delivered. \nThe first question is, whether the plea of satisfaction, so as above pleaded, is a substitution for the former plea of non assumpserunt, so as to displace it entirely, or whether it is an auxiliary plea, so that both issues were properly before the jury at the trial upon which they might pronounce their verdict. The latter is contended for by the defendant in error, and was supported by the judgment of the circuit court. \nIt is admitted that a plea puis darrien continuance is always pleaded by way of substitution for the former  plea, on which no proceeding is afterwards had 1 . The present plea was in fact pleaded after the last continuance, although it is not so stated in the plea. It differs from a technical plea of puis darrien continuance, only, in this circumstance, that the satisfaction is alleged to have been after the commencement of the suit, instead of after the last continuance of the suit. In principle, however, they do not differ, since each of them requires the same commencement and conclusion; that is, instead of actio non, generally, each must be pleaded with the prayer of actio non ulteris habere; &c. and the judgment must follow the prayer, and is repugnant to and incompatible with that of a general judgment upon matters before the suit brought. As therefore, the same judgment cannot be rendered upon the general issue, and upon such a plea of matters arising after the suit brought, it is difficult to perceive how they can be united. But it is the less necessary to rest any absolute decision upon this point, because we are all of opinion, that the judgment below ought to be reversed upon the exceptions taken to the merits. \n The court below ruled, that the evidence adduced at the  trial was not sufficient in law to charge the defendant as indorser. That evidence was supposed to be deficient in two respects; 1st, that there was not a proper demand  of payment of the note of the maker, at the time when it became due; and 2d, that due notice was not given of the non-payment to the defendant as indorser. \nUpon the first point the evidence is, that on the day when the note became due, the note was in the bank at Cincinnati, the bank being the holder thereof, and it being payable there, and that after the usual banking hours were over, it was delivered to a notary by the officers of the bank for protest, they informing him at the time, that there were no funds there for the payment of the note. We are all of opinion, that this was a sufficient proof of a due demand of payment. Where any personal demand upon the maker elsewhere. It is his duty to be at the bank within the usual hours of business to pay the same, and if he omits so to do, and a demand is there made of payment by the holder, within those hours, and it is refused or neglected to be made, the holder is entitled to maintain  his action for such dishonour.But where the bank is itself the holder of the note so payable, no formal demand is necessary to be made of payment. The maker has the whole period of the usual banking hours to pay it, and if he does not pay it within those hours, it is equivalent to a demand, and refusjal of payment on his part, and the note ought not to be delivered out for protest until after those hours are passed. If the bank has funds of the maker in its hands, that might furnish a defence to a suit brought for non-payment. But this is properly matter of defence to be shown by the party sued, like any other payment, and not matter to be disproved by the bank, by negative evidence, This doctrine was recognised by this Court in Fullerton vs. The Bank of the United States, at the last term.1 Peters's Rep. 604. 617. \nThen as to the other point of notice, the facts are, that the defendant, Carneal, resides in Campbell county, in the state of Kentucky. The note became due on the 24th of October 1820, and on the next day the notary put a sealed  notice of the protest and non-payment into the post office in Cincinnati, directed \"To Thomas D. Carneal, Campbell county, Kentucky,\"  the postage on which was not paid. At that time Carneal's residence in Campbell county was without the limits of any post town, and about two miles from Cincinnati, across the river Ohio; and his residence was well known to the officers of the bank, as well as the postmaster at Cincinnati. The county seat of Campbell county is Newport, where there is a post office, about three miles distance from Carneal's residence, the river Licking being between them; and there is also another post office at Covington, below the river Licking, about two miles distance from his residence. In October 1820, the mails from Cincinnati passed once a week only through Covington, and three times a week through Newport. Carneal was in the habit of receiving letters at the Newport office, as well as at the offices in Covington and Cincinnati. He was in the habit of receiving all the letters directed to him at Cincinnati, at the office in that place, and had given orders to the postmasters to detain all such letters there until he called for them. He visited Cincinnati very frequently and almost daily, having business and being a director of a bank located at that place. The postmaster was in the habit  of sending letters directed to him, in Campbell county, by the Covington mail, whenever he observed the address, unless, as was sometimes the case, he called for letters at the office before the Covington mail was sent. But other letters, directed generally to Campbell county, when the place of residence of the party was unknown, were sent by the postmaster to Newport. The notary himself, when he put the present notice into the post office at Cincinnati, supposed that Carneal received all his letters at that office. The first mail which left Cincinnati for Newport, after the deposit of this notice, was on the 2lth of October; and the first which left for Covington was on the 28th of the same month. There is no evidence in the case that the letter in question went either by the mail of the 26th to Newport, or by that of the 28th to Covington. The defendant, Carneal, has not produced the letter, if it was ever  received by him; and the circumstances afford a strong presumption that it might have been received at Cincinnati. \nSuch is a summary of the material facts, upon which this Court is called to pronounce, whether there was due diligence in the transmission of the  notice to the defendant. The latter having asked the court below to instruct the jury as in case of a non-suit; and the court having acceded to his request, that instruction can be maintained only upon the supposition that there was no contrariety of evidence as to the facts which ought to have been left to the jury; and consequently, every inference fairly deducible from the facts which afforded a presumption of due notice, ought to be made in favour of the plaintiffs. \nIt is difficult to lay down any universal rule, as to what is due diligence in respect to notice to indorsers. Many cases must be decided upon their own particular circumstances, however desirable it may be, when practicable, to lay down a general rule. When notice is sent by the mail, it is suffient to direct it to the town where the party resides, if it is a post town. If it is not, then to the post office or post town nearest to his residence, if known. But the rule, as to the nearest post office, is not of universal application, for if the party is in the habit of receiving his letters at a more distant post office, or through a more circuitous route, and that fact is known to the person sending notice, notice  sent by the latter mode will be good. And where the party is in the habit of receiving his letters at various post offices, to suit his own convenience or business, it may be sufficient to send it to either. The object of the law in all these cases is to enforce the transmission of the notice by such a route as that it may reach the party in a reasonable time. This doctrine is fully recognized by this Court in the case of The Bank of Columbia vs. Lawrence, decided at the last term. 1 Peters's Rep. 578. \nIt has been objected that the direction of this letter to campbell county generally was not sufficient, but that it ought to have been directed to the nearest office, for otherwise it  might happen, that it would be sent to a post office, which, though the county seat, might be very distant from  the residence of the party. Whether a mere direction to the county without farther specification, where the party does not reside in any town therein, would be sufficient in all cases and under all circumstances, we do not think it necessary to decide. That question may well be left until it is necessary in judgment. But where the description is general, if it is  in fact sent to the proper post office, or if, after due inquiry it is the only description within the reach of the person sending the notice, we think it may be safely declared to be sufficiently certain, and that a different doctrine would materially clog the circulation of negotiable paper. We think the description in the present case was in every view sufficient. There was no mis-direction; for Carneal did live in Campbell county. His actual residence was well known to the postmaster at Cincinnati, and the description did not and could not mislead him. If the direction was observed, it would be sent to Covington, or would be delivered at Cincinnati. If not, it would be sent at farthest to Newport. \nThen, was the notice in fact duly given, or duly sent through the proper post office? We are all of opinion that it was. the post office at Cincinnati was almost as near to the party's residence as that at Covington. The difference is too trifling to afford any just ground of preference; and Cincinnati was the place where he was most likely to receive the letter promptly, since it was the place of his business and of his habitual and almost daily resort. If it had never been  transmitted from that office at all, we are not prepared to say, that under such circumstances, the notice left there was not of itself sufficient, since the party was known there and his description unequivocal. It does not appear in point of fact, that it ever left that place for any other post office. If it did not, the strong presumption is, that it was there delivered to the party. But if it was sent to Newport, how can the Court say that it was mis-sent? The party was in the habit of receiving letters there; it was the county seat; and the mail by that route was three times a week, and that by Covington only once a week. The probabilities, therefore, in favour of an early receipt of the letter  from this circumstance might fairly balance any in the opposing scale, from the increase of distance and the intervention of the river Licking. And in fact the letter would at that time have reached Newport, two days earlier than it would have reached Covington. We think it would be inconvenient and dangerous to lay down any rule, that the person sending a notice, ought under such circumstances to direct the letter to the nearest post office. We think that the notice  would have been good by either route; indeed good, if left at the post office at Cincinnati. \nA suggestion has been made at the bar, that a letter to the indorser stating the demand and dishonour of the note, is not sufficient, unless the party sending it also informs the indorser that he is looked to for payment. But when such notice is sent by the holder, or by his order, it necessarily implies such a responsibility over. For what other purpose could it be sent? We know of no rule that requires any formal declaration to be made to this effect. It is sufficient, if it may be reasonably inferred from the nature of the notice. \nFor these reasons we are all of opinion that the judgment of the circuit court ought to be reversed; and the cause remanded, with directions to award a venire facias de novo. \n \n\n ", " \nOpinion \n\n \n \n  Mr Justice STORY delivered the opinion of the Court. \nThis is an appeal from a decree rendered in the circuit court of the district of Columbia, sitting in Alexandria, in a suit in chancery, in which the appellants were original defendants. The appellants are stockholders in an unincorporated association, which was formed in 1815, for the purpose of carrying on the business of banking, under the name of the Merchants' Bank of Alexandria; the nature and extent of  which association is evidenced by certain articles of agreement, which were at the time published in the newspapers in the district, and are set forth in the case. The first article provides, that the capital stock may consist of one million of dollars, divided into shares of one hundred dollars each, which were to be payable by calls, provided for therein. In the other articles provision is made for the management of the business of the bank by directors, and for the issuing of bank notes, &c. to be signed by the president and countersigned by the cashier of the bank. The 15th  article declares the object of the stockholders to be, that the joint stock  of the company \"shall alone be responsible for the debts and engagements of this company; and that no person who may deal with the company, &c. shall on any pretence whatsoever, have recourse against the separate property of any present or future member of this company, or against their persons, farther than may be necessary to secure the faithful application of the funds thereof to the purposes to which, by these presents, they are liable. But all persons accepting any bond, bill or note, &c. of the company, &c. thereby give credit to the said joint stock or property of said company, and thereby respectively disavow having recourse, on any pretence whatever, to the persons, or separate property of any present or future member of this company, except as above mentioned.\" \nThe whole stock of one million of dollars was subscribed, and calls to an amount of about one hundred and eighty three thousand dollars were paid in, with money or by stock notes discounted for that purpose. The bank went into operation, and circulated its notes to a large amount; and finally, after about a year, the bank failed, leaving its notes to an amount, as it is said, of about ninety thousand dollars in  circulation and unpaid; and having assigned all its property to certain assignees, (who were not parties to the bill) for the payment of certain preferred debts, and then for the benefit of the creditors generally. These assignees have now no property in their hands for distribution. The original plaintiff is the holder of the bank notes of the bank to the amount of $20,000 and upwards, which remain unpaid. The form of the notes issued by the bank was as follows, \"Capital, one million of dollars.The Merchants' Bank of Alexandria promises to pay to C. M'Knight or order, on demand, dollars.\" These notes were signed by the president and countersigned by James S. Scott, who was cashier, and indorsed by C. M'Knight, in blank, without consideration; and solely to enable the notes to circulate as currency, as notes payable to the bearer. \nThe bill seeks payment out of the separate property of the stockholders, to the amount of $20,000, the notes so held  by the plaintiff. It states the articles of copartnership, and charges that the notes were issued by the bank, and that it prosecuted business until May 1816, at which time its affairs, either by mismanagement or  by a fraudulent issue of paper beyond its known means, became embarrassed and stopped payment. But it contains no direct charge of fraud or fraudulent misapplication of the funds, by the directors or stockholders in distinct terms. It states the assignment of the property of the bank after the failure; and charges the preferences therein provided for to be fraudulent; but if not fraudulent, then that the trust fund is insufficient to pay the creditors of the bank, without resort to the separate property of the stockholders. It further charges, that the plaintiff does now know whether there are other stockholders or not, than those sued, and that he has no means of ascertaining them, and calls upon the defendants for a discovery. And the prayer of the bill is, that the assignment may be decreed null and void, that the plaintiff's demand may be paid out of the joint funds as far as they will go, and then, out of the separate funds of the stockholders; and also for general relief. \nIn the progress of the cause some of the original defendants died, and the bill was not revived against their representatives. Some of the defendants put in their several answers, to which the general  replication was filed, and against others the bill was taken pro confesso; and after several intermediate proceedings, references to, and reports by a master in order to ascertain certain facts, &c. &c. the cause was finally set down for a hearing against the defendants who had answered, and those against whom it was taken pro confesso, and a decree rendered for the plaintiff; from which the parties against whom it was made, have appealed to this Court. The decree, in substance, declares that there are no funds in the hands of the assignee to pay the debt; that certain defendants (naming them) who had answered, do pay the debt to the plaintiff with interest from the first of January 1818 with costs; that this decree be discharged as to two of the persons so charged, by their paying a less sum, equal to the amount of the notes issued  by the bank, while they were stockholders; and as to the other defendants, the decree is that the bill be dismissed, \"it appearing to the court that they are either not served with process to appear in the said cause, or where served with process, not charged by any evidence on the part of the plaintiff.\" \nSuch is a very summary statement of  the case. Several questions have been elaborately argued at the bar, respecting the form and sufficiency of the bill, as well as the merits of the case. Upon some of these questions much diversity of opinion at present exists among the judges. But as we are all of opinion that there must be a reversal upon two points, we deem it unnecessary to examine any others. Those points are the defect of parties, and the erroneous dismissal of the bill as to any of the defendants properly before the court, against whom a decree might have been made. \nIn the first place as to the defect of parties; we do not mean to say that in cases of this nature it is necessary to bring all the stockholders before the court, before any decree can be made. It is well known, that there are cases in which a court of equity dispenses with such a proceeding when the parties are very numerous, or unknown, and the adoption of the rule would essentially impede, if not defeat the purposes of justice. But in the present case we are of opinion that upon the death of the parties who were before the court, the bill ought to have been revived against their  personal representatives, if they could be brought  before the court, unless some good reason, such as absolute insolvency, could be assigned to justify the omission. The reason is obvious. Supposing the decree against the parties jointly to be good, those who shall pay, are entitled to contribution from the other stockholders and their personal representatives. If they are not before the court they are not bound by the decree; and consequently in a subsequent suit for contribution, they may controvert every material fact upon which the decree was founded, and put the party seeking contribution to the full proofs of them, as well as of the responsibility over the party made. One of the great principles upon which courts of equity generally require all  parties who are known, and within the reach of its jurisdiction, to be made parties, is to prevent future litigation, and to take away multiplicity of suits. It is a matter of justice, as well as of convenience, that all the parties who are ultimately liable to contribution, should, when practicable, be brought before the court, so that the equities between them may be adjusted, as well as the right of the plaintiff. There are exceptions it is true, to the rule, but they  are founded upon special considerations; such, as where a decree of contribution would be useless, or where the proceeding would defeat the jurisdiction of the court, and the parties are not indispensable to a decree, or where the convenient administration of justice forbids it in the particular case. \nThis reasoning applies with far more force to the dismissal of the bill as to the defendants, who were before the court, and who were liable to a decree as stockholders. It is a positive injury to the defendants, who are charged by the decree, not only as to their immediate responsibility, but as to the means and proofs of contribution. The decree of dismissal, so far from aiding the other defendants, puts then to the absolute necessity of instituting a new suit for contribution, and to establish every step in its progress by plenary evidence. We know of no instance, where a joint liability has been asserted before a court of chancery, in which the decree has not been made against all the parties before it who did not establish some personal discharge. \nIf the bill had been dismissed against those persons only, who appeared and answered, and whose liability was not proved by the evidence,  there would have been no difficulty. But it is dismissed as to all the defendants who did not answer the bill, and against whom the bill was taken as confessed, and set for a decree. Now, if these persons were duly brought before the court, and if due proceedings were afterwards had against them, they certainly were jointly chargeable with the other defendants, upon their own default, as in cases of confession. \nIt is no answer to this objection, that no exception was taken at the hearing for the want of proper parties. The objection we are now considering is not merely, that the  proper parties were not before the court, but that the bill, being set down for a hearing, as to those who had answered, and also as to those against whom it had been taken as confessed, the court has decreed against a part only; when it ought to have decreed against the whole, who were chargeable as stockholders. The proper parties for such a decree were before the court, and the error was in dismissing the bill as to any of them. It has been also said, that the decree of dismissal, if an error, is only to the prejudice of the plaintiff. But this is not admitted. It was prejudicial to the  rights of all the defendants, who were charged by the decree. \nWe are also of opinion, that, assuming that the cause might be properly brought to a hearing as to the parties before the court, the decree was erroneous in dismissing the bill as to any of the defendants named in the bill as stockholders, upon whom process was not served; if, by any proceedings, they could have been brought before the court before a final decree. They were known to the plaintiff when he brought his bill, and were named therein; and the other defendants, in proceeding to a hearing, cannot be understood to waive any further proceedings against them. If they were nonresidents, still the act of congress of the 3d of May 1802, allows proceedings to be had against non-residents by publication in the newspapers in the district; and no reason is assigned why such a proceeding might not have been effectual to bring them before the court in the present case. We give no opinion what would have been the case, if they had not been named in the bill, or had not appeared by the bill to have been known to the plaintiff at the of filing it. But as they were known and named, the same reasons apply to them as to the  other defendants before the court and their personal representatives. \nIt was asserted at the argument, that the bill had also been dismissed as to some of the defendants, who had answered and admitted themselves liable as stockholders. Upon examining their answers, it is manifest that they were nominal stockholders only, their names having been used without their consent, or under circumstances which demonstrate  that they never meant to become stockholders. And no attempt was made at the hearing to charge them with any other proofs. As to them, therefore, the dismissal was properly decreed. \nAn objection was taken at the argument, as to the regularity of the appeal, it having been claimed by all the defendants against whom the decree was made; and the appeal bond having been given by Mandeville only. The objection, if it had been material in this case, ought to have been taken by way of preliminary motion to dismiss the appeal for irregularity, on account of the failure to give the proper appeal bond. But it is not material in this case, since, if Mandeville be considered the only appellant, the error of the decree is equally fatal, and consequentially reinstate the  cause, discharged of that decree, as to all his co-defendants. \nUpon the whole, we are of opinion that the decree must be reversed, and the cause remanded to the circuit court with directions to have the cause reinstated, as to all the defendants as to whom the bill was taken as confessed, and dismissed at the hearing; and with directions also that the personal representatives of the parties to the bill, who died during the pendency of the suit, if they are known, can be  brought before the court to be also made parties, and also with directions, that all the other defendants named in the bill, who were not served with process, but against whom further proceedings may be had to bring them before the court, (as to whom the bill was dismissed at the hearing) be brought before the court, if practicable, as parties; and that thereupon such farther proceedings be had as to justice and equity may appertain. \nThis cause came on to be heard on the transcript of the record from the circuit court of the United States for the district of Columbia, holden in and for the county of Alexandria, and was argued by counsel; on consideration whereof, it is the opinion of this Court, that there  is error in the decree of the said circuit court in dismissing the bill against the defendants upon whom process was not served, and also  against the defendants against whom the bill was taken pro confesso, and set down for a hearing; and also error in the said court in not requiring the said suit to have been revived before said decree against the personal representatives of the parties thereto, who were served with process, and died during the pendency of the said suit, who were known, and might have been brought before the court. It is therefore ordered, adjudged and decreed by this Court, that the decree of the said circuit court in this cause be, and the same is hereby reversed and annulled, and that the cause be, and the same is hereby remanded to the said circuit court, with directions to cause the same to be reinstated as to the defendants aforesaid against whom the bill was taken pro confesso and set down for a hearing, and by the decree dismissed. And also with directions that the personal representatives of the defendants; who died pending the suit, who are known and may be brought before the said circuit court, be made parties thereto, and the bill be revived  as to them. \n \n\n ", " \nOpinion \n\n \n \n  Mr Justice STORY delivered the opinion of the Court. \nThis is an appeal in a suit in equity from a decree of the circuit court of the district of Columbia, sitting for the county of Washington. \n Georgetown was erected into a town by an act of the legislature of Maryland, passed in 1751, ch. 25. By subsequent acts additions were made to the territorial limits of the town; and the town was created a corporation, with the usual municipal officers, by an act of the Maryland legislature, passed in 1789, ch. 23. The charter of incorporation has been subsequently amended by congress, by various acts passed upon the subject since the cession. \nIn the year 1769, Charles Beatty and George F. Hawkins laid out a town, known by the name of Beatty and Hawkins's addition to Georgetown; and which is now included within its corporate limits. The lots of this addition were disposed   of by way of lottery, under the direction of commissioners appointed to lay out the same, and conduct the drawing of the lottery. The books of the lottery and the plan of the lots, and a connected survey thereof, were afterwards, by act passed in 1796, ch. 54 ordered to be recorded in the clerk's office for the territory of Columbia, and copies thereof to be good evidence in all courts of law and equity in the state. Upon the original plan so recorded, one lot was marked out and inscribed with these words, \"for the Lutheran church;\" and this lot was in fact part of the land of which Charles Beatty was seised. \nThe bill was brought up by the original plaintiffs, alleging themselves to be trustees and and agents for the German Lutheran church composed of the members of the German Lutheran church of Georgetown, duly organized as such, in behalf of themselves and the members of the said church. It charges the laying out of the lot in question for the sole use and benefit of the Lutheran church, to be held by them for religious purposes and the use of the congregation, as abovementioned. That soon afterwards the lot was taken possession of by the said German Lutherans in Georgetown; who  organized themselves into a church or congregation, and erected a church or house of worship thereon; and the lot was enclosed by them and a church erected thereon; and hath been kept and held by them during a period of fifty years; and hath been used as a burying ground for the members of the church, with the avowed intention of building thereon another church or place of worship, the first building erected thereon being decayed, whenever their funds would enable them so to do. That during all this period their possession has never been questioned, and the lot has been exempted from taxation as property set apart for a religious purpose. It further charges that upon the organization of the church or congregation, certain officers, called a committee and trustees, were appointed to take care of the said church, which appointments have been from time to time renewed; that in 1824 the plaintiffs were re-appointed as such, having been so appointed at former times. It further charges that Charles Beatty died about sixteen years ago,  without having made any conveyance of the said lot, and that Charles A. Beatty, the defendant, is his heir, and has the title by descent; and  prays that he may be compelled to convey it to them. It further charges that Ritchie, the other defendant, has unwarrantably disputed their title; and has entered upon the lot and removed some of the tomb stones erected thereon, and means to dispossess the plaintiffs and to remove the tomb stones and graves. The bill therefore prays that they may be quieted in their possession, and that a writ of injunction may issue, and for further relief. \nThe defendants put in a joint answer. They admitted that the lot was so marked in the plots as the bill states, and that it was Charles Beatty's intention to appropriate the same to the use of the Lutheran congregation, provided they would build thereon, within a reasonable time, a house of public worship. They deny that the German Lutherans were ever organized, as stated in the bill; or that any such church has been built; or that there has been any such possession or enclosure as the bill asserts; or that Charles Beatty ever made any conveyance of the property to transfer his title. They admit that the lot hasbeen used as a grave yead, but not exclusively appropriated to the use of the Lutheran congregation. They admit that a building  was erected thereon, but that it was used as a school house. They admit that the defendant, Beatty, is heir at law, and as such, that he claims the lot in question, and has authorized the defendant, Ritchie, to take possession thereof. They deny all the equity in the bill, as well as the authority of the plaintiffs to sue; declaring them to be mere volunteers, and demanding proof of their authority, &c. \nThe general replication was filed, and the cause came on for a hearing upon the bill, answer, exhibits and depositions; and the court decreed a perpetual injunction against the defendants, with costs. The appeal is brought from that decree. \nUpon examining the evidence, it appears to us that the material allegations of the bill are satisfactorily established. It is proved that, shortly after the appropriation, and more  than fifty years ago, the Lutherans of Georgetown proceeded to erect a log house on the lot, which was used as a church for public worship, by that denomination of Christians; and was also occasionally, and at different times since, used as a school house under their direction. That at a much later period, a steeple and bell were added to the building;  that the land was used as a church yard; that a sexton appointed by Lutherans had the direction of it; that more than half of the lot is covered with graves; and others as well as Lutherans have been buried there; that the Lutherans have caused the lot to be enclosed from time to time, as the fences fell into decay, and procured subscriptions for that purpose; that the possession of the Lutherans, in the manner in which it was exercised over the lot, by erecting a house, by public worship, by enclosing the ground, and by burials, was never questioned by Charles Beatty in his life time, or in any manner disturbed until a short period before the commencement of the present suit. That Charles Beatty in his life time constantly avowed that the lot was appropriated for the Lutherans, and that they were entitled to it. \nThe Lutherans have constituted but a small number in the town of Georgetown; they have not been able, therefore, to maintain public worship constantly in the house so erected, during the whole period; and sometimes it has  been intermitted for a considerable length of time. But efforts have been constantly made, as far as practicable, to keep together a congregation,  to use the means of divine worship, and to support public preaching. The house, however, in consequence of inevitable decay, fell down some time ago; the exact period of which, however, does not appear; but it seems to have been more than forty years after its first erection. Efforts have since been made to rebuild it, but hitherto they have not been successful. \nThe Lutherans in Georgetown, who have possessed the lot in question, are not and never have been incorporated as a religious society. The congregation was consisted of a voluntary society, acting in its general arrangement by committees and trustees, chosen from time to time by the Lutherans belonging to it. There do not appear to have been  any formal records kept of their proceedings; and there have been periods of considerable intermission in their appointment and action. There is no other proof that the plaintiffs are a committee of the congregation, than what arises from the statement of witnesses, that they were so chosen by a meeting of Lutherans, and that their appointment has always been acquiesced in by the Lutherans, and they have assumed to act for them without any question of their authority; that  they are themselves Lutherans, living in Georgetown, and forming a part of the voluntary society, is not disputed. \nThere is decisive evidence also that the defendant Beatty has, since the decease of his father, repeatedly admitted the claim of the Lutherans to the lot, and his willingness that it should remain for them, as it had been originally appropriated. No assertion of ownership was ever made by him, until the acts were committed, which form the gravamen of the present bill. \nSuch are the material facts; and the principal questions arising upon this posture of the case, are; first, whether the title to the lot in question ever passed from Charles Beatty, so far at least as to amount to a perpetal appropriation of it to the use of the Lutheran church, or to the pious uses to which it has been in fact appropriated. And secondly, if so, whether it is competent for the plaintiffs to maintain the present bill. \nAs to the first question, it is not disputed that Charles Beatty did originally intend that this lot should be appropriated for the use of a Lutheran church in the town laid off by him. But as there was not at that time any church, either corporate or unincorporated, of  that denomination in that town, there was no grantee capable of taking the same, immediately by grant. Nor can any presumption of a grant arise from the subsequent lapse of time, since there never has been any such incorporated Lutheran church there capable of taking the donation. If, therefore, it were necessary that there should be a grantee legally capable of taking, in order to support the donation in this case; it would be utterly void at law, and the land might be resumed at pleasure.  To be sure, if an unincorporated society of Lutherans had, upon the faith of such donation, built a church thereon, with the consent of Beatty, that might furnish a strong ground why a court of equity should compel him to convey the same to trustees in perpetuity for their use; or at least to execute a declaration of trust, that he and his heirs should hold the same for their use. For such conduct would amount to a contract with the persons so building the church, that he would perfect the donation in their favour; and a refusal to do it would be a fraud upon them, which a court of equity ought to redress. And if the town of Georgetown had been capable of holding such a lot for  such uses, there would be no difficulty in considering the town as the grantee under such dcircumstances; since the uses would be of a public and pious nature, beneficial to the inhabitants generally. But it does not appear that Georgetown, in 1769, or indeed until its incorporation in 1789, was a corporation, so as to be capable of holding lands as an incident to its corporate powers. \nIf the appropriation, therefore, is to be deemed valid at all, it must be upon other principles than those which ordinarily apply between grantor and grantee. And we think it may be supported as a dedication of the lot to public and pious uses. The bill of rights of Maryland gives validity to \"any sale, gift, lease or devise of any quantity of land, not exceeding two acres, for a church, meeting or other house of worship, and for a burying ground, which shall be improved, enjoyed or used only for such purpose.\" To this extent, at least, it recognizes the doctrines of the statute of Elizabeth for charitable uses, under which it is well known, that such leases would be upheld, although there were no specific grantee or trustee. In the case of The Town of Pawlet vs. Clarke, 9 Cranch, 292. 331, this  Court considered cases of an appropriation or dedication of property to particular or religious uses, as an exception to the general rule requiring a particular grantee; and like the dedication of a highway to the public 1 . There  is no pretence to say, that the present appropriation was ever attempted to be withdrawn by Charles Beatty during his life time, and he did not die until about sixteen years ago. On the contrary, the original plan and appropriation were constantly kept in view by all the legislative acts passed on the subject of this addition. The plan was required to be recorded as an evidence of title, and its incorporation into the limits of Georgetown had reference to it. We think then it might at all times have been enforced as a charitable and pious use, through the intervention of the government as parens patriae, by its attorney general or other law officer. It was originally consecrated for a religious purpose; it has become a depository of the dead; and it cannot now be resumed by the heirs of Charles Beatty. \n The next question is as to the competency of the plaintiffs to maintain the present suit. If they were proved to be the regularly appointed committee of a voluntary society of Lutherans in actual possession of the premises, and acting by their direction to prevent a disturbance of that possession, under circumstances like those stated in the bill, we do not perceive any serious  objection to their right to maintain the suit. It is a case, where no action at law, even if one could be brought by the voluntary society, (which it would be difficult to maintain,) would afford an adequate and complete remedy. This is not the case of a mere private trespass; but a public nuisance, going to the irreparable injury of the Georgetown congregation of Lutherans. The property consecrated to their use by a perpetual servitude or easement, is to be taken from them; the sepulchres of the dead are to be violated; the feelings of religion, and the sentiment of natural affection of the kindred and friends of the deceased are to be wounded; and the memorials erected by piety or love, to the memory of the good, are to be removed so as to leave no trace of the last home of their ancestry  to those who may visit the spot in future generations. It cannot be that such acts are to be  redressed by the ordinary process of law. The remedy must be sought, if at all, in the protecting power of a court of chancery; operating by its injunction to preserve the repose of the ashes of the dead, and the religious sensibilities of the living. \nThe only difficulty is whether the plaintiffs have shown in themselves a sufficient authority, since it is not evidenced by any formal vote or writing. If it were necessary, to decide the case on this point, we should incline to think that under all the circumstances it might be fairly presumed. But it is not necessary to decide the case on this point; because, we think it one of those cases, in which certain persons, belonging to a voluntary society, and having a common interest, may sue in behalf of themselves and others having the like interest, as part of the same society; for purposes common to all, and beneficial to all. Thus, some of the parishioners may sue a parson to establish a general modus, without joining all; and some of the members of a voluntary society or company, when the parties are very numerous, may use  for an account against others, without joining all 2 . \nAnd upon the whole we are of opinion, that the decree of the circuit court ought to be affirmed with costs. 3 \n \n\n ", "Opinion by:  STORY \nOpinion \n\n \n \n  Mr Justice STORY delivered the opinion of the Court. \nThis is a writ of error from the circuit court of the district of Maryland. The original suit was an action for mesne profits, brought by the plaintiffs in error against Reinecker; and is the same cause which came before this Court, and is reported in 11 Wheaton's Reports, 280. The cause now comes again before this Court, upon certain bills of exceptions, taken by the plaintiffs in error, at the new trial had under the mandate issued upon the former judgment of reversal. \nWithout going at large into the facts as they came formerly before us, it is sufficient to state, that the action is for taking the mesne profits of a certain parcel of land lying in a part of Baltimore, called Howard's late addition to Baltimore town, and is designated as lot No. 802 in that addition. Before the commencement of this suit, a recovery of the same premises was had in ejectment by the same plaintiffs, (the husband of one of them being now added as  a party,) as lessors, against one John C. F. Chirac, who was admitted upon his prayer as landlord to defend the premises. The record of that recovery  was offered in evidence at the former trial against Reinecker, and rejected by the court; and that rejection constituted one of the grounds of the reversal. \nAt the new trial after the introduction of certain evidence, which will be hereafter stated, the plaintiffs offered the same record in evidence, including the execution of the writ of possession, and other proceedings in the same cause; to the admissibility of which, as evidence of the plaintiffs' possession, the defendant's counsel did not object; but did object to it as evidence of the plaintiffs' title to the property. The court, however, admitted the record as prima facie evidence of the plaintiffs' title; and thereupon the defendant filed an exception, which, however, is not now before this Court. \n The evidence alluded to consisted of the testimony of witnesses to establish the facts, that Reinecker had received, as landlord, the rents of the premises during the period sued for; that he exercised the rights of ownership over the same; that he was, at the time of the ejectment brought, the real landlord, and had notice of the suit, employed counsel to defend it, and was, in fact, the substantial litigant party;  and that he derived his title to the premises under the defendant in ejectment, John C. F. Chirac, by intermediate conveyances executed before the ejectment. The evidence further established a strict deduction of title by inesne conveyances of the lot in question, down to John Baptist Chirac, (the intestate,) under whom the plaintiffs claimed the same as heirs. \nThe plaintiffs then proved by a surveyor, that he had surveyed most of the lines and streets in Howard's late addition to Baltimore town, in 1782, according to the official plot and location thereon in the mayor's office (which plot was also then given in evidence by the plaintiffs to the jury); that he had run the lines of Lun's lot, according to the patent or certificate thereof, and that the premises described  in the plaintiffs' declaration and in the writ of possession were in Lun's lot and also within the said addition, and were known as lot 802, &c. \nThe plaintiffs, after having given in evidence the plot aforesaid, upon which was located lot No. 802, and Walnut street, then gave in evidence, from the original book of entry and record in the mayor's office, certain proceedings, condemning Walnut street to  be shut up, and ordering that each person interested by having lots in the street, be entitled to one half of such street on each side, &c. \nThe defendant then offered in evidence another plot in the same volume of city plots, being a plot of Howard's addition to Baltimore, in 1766, in order to show that the whole of Walnut street was contained within such last mentioned addition, already read in evidence, to the admission of which the plaintiffs objected, but the court overruled the objection and permitted the plot to go to the jury. \nThe admission of this evidence constitutes the first exception of the plaintiffs. It is in the first place said, that it was not proper evidence against the plaintiffs, after the recovery in ejectment, even if the plot in question had been duly authenticated. But, at all events, it is contended that it is not per se evidence, merely from the fact that it is found in a volume of city plots, which contained the general plot already in evidence, and which had been specially authenticated by the surveyor.We are of opinion that this last objection is well founded. The book itself had not been authenticated as a book of public plots regularly made; but  a single plot only in the volume had been authenticated. The whole volume therefore was not in evidence; and if the defendant meant to use any other plot, it was his duty to establish it as evidence, by competent proofs of its particular authenticity. \nThe other objection assigned for rejection of it admits of more doubt. It is said that the effect of theis evidence would be to establish that John B. Chirac, (the intestate,) had no title to a certain portion of the land recovered in the ejectment. Unless the defendant was absolutely concluded by the judgment in that suit, he was certainly at liberty to dispute any part of that title. And, if it were material for the plaintiffs  to prove the actual location of the lot 802, and Walnut street, in Howard's late addition in 1782, no reason occurs to us why the defendant was not at liberty to disprove the fact, by showing that Walnut street was in Howard's former addition, in 1766. It is merely evidence to rebut other parol evidence of the plaintiffs, as to the location. \nThe plaintiffs then further read in evidence the depositions of certain witnesses in France, taken under a commission to establish their pedigree. The  testimony was to this effect: that J. B. Chirac, the father of the intestate, had three wives; that by his second wife he had two sons; the intestate, and one Gabriel B. R. Chirac; that the intestate died in 1799; that his brother Gabriel left France, and went to the islands. One of the witnesses said he died in the islands. Another witness stated, hat before 1797, she resided in St Domingo, and lived on a plantation near that of J. B. Chirac (the intestate); that she heard in St Domingo, that his brother came to the intestate's residence there, and it was publicly reported in the neighbourhood, that the said brother had died; that she heard this at the house of a friend where the intestate visited, and heard it very often, and that it was generally stated as a fact; that she never saw the brother, and never heard that he was married, and never heard of him as being alive since the report of his death; that she is no relation of the family, and never was at the intestate's house while he was at St Domingo; and did not know or believe that there were any ladies living there when the brother died. \nThe plaintiffs then offered to prove that the original commission for taking the testimony  issued in the said ejectment cause, with the depositions taken under the same, were lost; and then offered to read to the jury the bill of exceptions, contained in the record aforesaid, in order to show the pedigree of the plaintiffs' family. But the court refused to allow the same to be read in evidence to the jury. This refusal constitutes the second exception of the plaintiffs. The bill of exceptions so rejected was taken by the plaintiffs, and did not refer to any depositions; but it stated that the plaintiffs gave in evidence to the jury, that the intestate was a  a native of France; that the lessors of the plaintiffs (naming them) were the brothers and sisters, and grand niece, &c. of the intestate, &c.; \"and that neither the father nor mother, nor any brother or sister of the whole blood of the said intestate, nor their issue or descendants, were living at the time of his death.\" \nUpon consideration we are of opinion that under the circumstances of this case, the evidence was admissible for the purpose of establishing the pedigree of the plaintiffs' family; and this is the only view in which it was presented to the court. It is well known that in cases of pedigree,  the rules of law have been relaxed in respect to evidence, to an extent far beyond what has been applied to other cases. This relaxation is founded upon principles of public convenience and necessity. In  a case between the parties to the suit, in which this bill of exceptions was taken, the evidence would have been conclusive. Although Reinecker was not the defendant in that suit, yet he was the real landlord and party in interest, and conducted the suit; and the evidence of the facts so proved as to pedigree, ought under such circumstances, we think, to be admitted as prima facie evidence against him. He had the means of contesting those facts, and if he did not avail himself of those means, it may fairly be presumed that he yielded to the sufficiency of the proofs. \nThis was the whole evidence in the cause; and it being closed on both sides, the plaintiffs offered the same record of the recovery in the ejectment cause, as conclusive evidence of their right and title to the premises, against J. C. F. Chirac, (the defendant therein) and against the defendant Reinecker holding under that title, which the court refused to admit. This refusal constitutes the third exception  of the plaintiffs. The plaintiffs then prayed the court to instruct the jury that if they believe the evidence, the plaintiffs have shown a sufficient title to the premises in the declaration, to entitle them in law to maintain their action against the defendant, which the court refused to give. And this refusal constitutes the fourth exception of the plaintiffs. There was a fifth exception, but it is unnecessary to refer to it, because it is a mere repetition (apparently by mistake) of the fourth. \n Before proceeding to consider these exceptions, it may be proper to say a few words explanatory of that part of the former decision of this Court as it stands reported in 11 Wheaton's Reports, 280, et seq. The record of the ejectment suit had been rejected by the court below as any evidence against. Reinecker, although it was offered, in connection with other evidence, to establish that Reinecker, although not a party on the record, was the real landlord, and had received the rents and profits, and had notice of the suit, and had employed counsel to defend it, and resisted the recovery. In th opinion of the Court upon this point, it was stated that, in general, a recovery  in ejectment, like other judgments, binds only parties and privies. It is conclusive evidence in an action for mesne profits against the tenant in possession, or other defendant on record. But in relation to third persons the judgment is not conclusive; and if they are sued in an action for mesne profits, they may controvert the plaintiff's title at large. In such a suit (that is to say, against third persons) the record of the ejectment is not evidence to establish the plaintiff's title, but is admissible to show the possession of the plaintiff. This proposition has been supposed at the bar to indicate an opinion that in the case then before the Court, with reference to all the circumstances of notice, and rating of the rents, &c. by Reinecker, the record was only evidence of the possession and not of the title of the plaintiffs. Such was not the understanding of the Court. The proposition was asserted as to third persons generally, who were strangers to the suit. Even as to such persons, it was asserted that the record was admissible to show the possession of the plaintiff The particular circumstances of Reinecker's case, as connecting him with the parties, were not, in that  part ofthe opinion, in the view of the Court. In the subsequent commentary of the Court on the case of Hunter vs. Britts, 3 Campbell's Rep. 455, a doubt was intimated, whether a mere notice, in pais, to the landlord, who was not a party to the record, was conclusive upon him; but not the slightest doubt was intimated that it was prima facie evidence of title, as well as of possession, against him, under such circumstances. The point whether the record in the  ejectment suit was not prima facie evidence of title in the plaintiffs, as against a person standing in the predicament of Reinecker, was not decided at that time, and was not necessary to the decision. \nUpon consideration of the question presented by the third exception above mentioned, we retain the opinion, that the record in the ejectment suit was not conclusive evidence upon persons not parties to the record; but we are also of opinion that it was prima facie evidence of the plaintiffs' title and possession against Reinecker, under the circumstances adduced in evidence. He had full notice of the suit, and had the fullest means to defend it. The parties upon the record were his agents or tenants, and he, in  effect, though not in form, took upon himself the defence of the suit. The case is stronger than that of Hunter vs. Britts, and fairly within the reach of the principle decided by it. There was then no error in the court in refusing to give this instruction. \nThe fourth exception can be sustained only upon the ground that there was no fact in the cause upon which there was any doubtful or contradictory evidence. If there was any such evidence, it would have been improper for the court to withdraw the question of its credibility from the jury. And if the evidence was merely of a presumptive nature, it was not for the court to decide as a point of law how much it ought to weigh with the jury. It was properly their province to draw the conclusions of fact arising from such presumptions. They might have believed the evidence, but at the same time not have been satisfied that it justified them in inferring from it other facts not positively proved. \nThe real difficulty in the case arises from the peculiar structure of the prayer of the plaintiffs, and the introduction of parol evidence at the trial by them, to fortify what had been already declared by the court to be prima facie evidence,  record evidence of title. \nIf the court had been asked to instruct the jury that the evidence of the plaintiffs, if believed by the jury, was competent in point of law, from which they might infer all the necessary facts to maintain the action, unless it was rebutted on the part of the defendant, it would have been unobjectionable.  It would have left the matters of fact for the just consideration of the jury, upon the prima facie evidence of the plaintiffs. But the difficulty is, that a matter of fact, of vital consequence to the plaintiffs was, whether Gabriel B. R. Chirac, the brother of the whole blood of the intestate, was dead without leaving lawful issue upon the death of the intestate. The plaintiffs very unnecessarily introduced parol evidence on this subject, after the court had ruled that there the ejectment was prima facie evidence of their title. The parol evidence did not particularly  establish the death of Gabriel (for the bill of exceptions had been rejected as evidence), although it was exceedingly strong, as presumptive proof; and as such, it was the province of the jury to pass upon it. The court was right therefore in refusing the praver  of the plaintiffs, because it trenched upon the proper province of the jury, by requiring the court to assume a fact, which was not absolutely proved, but was matter of inference and presumption upon the whole testimony. \nThe defendant afterwards prayed the court to instruct the jury as follows: 1. That if from the evidence the jury believed that J. B. Chirac, who died seised of the premises in the declaration mentioned, had any brother or brothers, sister or sisters of the whole blood or their descendants, who survived the said J. B. Chirac the younger, then the plaintiffs are not entitled to recover. 2. That if the jury believe that the said John B. Chirac the elder, had by his second wife another son besides the said son J. B. Chirac the intestate, then it is incumbent upon the plaintiffs to show, before they can entitle themselves to recover, that such son died before the said intestate without lawful issue. 3. That if the jury believed that the said John B. Chirac the elder had by his first wife a daughter, who married a certain Samuel Bonfils, by whom she had a son named John Baptist Bonfils, who married Ann Coton, who had a daughter named Maria Bonfils, who married Desportes,  one of the plaintiffs; it is incumbent upon the plaintiffs before they can entitle themselves to recover, to show the death of the great grandfather, grandmother and father, before the impetration of the original writ in this cause; and that the plaintiffs have offered no evidence of these facts. The court gave the  instructions so prayed for, and the plaintiffs filed their exception thereto. \nThe first instruction is open to two objections. It asks the court to instruct the jury, that if from the evidence they believed, (among other things) that the intestate had any sister or sisters of the whole blood or their descendants, who survived him, &c. the plaintiffs were not entitled to recover. Now there was not the slightest evidence from which the jury had a right to believe the existence of any such sister or sisters; and without such evidence the court ought not to have given the instruction, since it was calculated to mislead them, and to raise a mere speculative question. \nBut a still more decisive reason against it is, that by the law of descent of Maryland, a person claiming as heir, must prove himself heir of the person last actually seised of the estate; and if  the intestate had left a brother of the whole blood, who survived him and died without issue, and without ever having been actually seised of the estate, the plaintiffs would still have been entitled to recover, as heirs of the half blood of the person last seised. \nThe second instruction was rightly given.It was not sufficient for the plaintiffs to show that Gabriel was dead, but that he died without lawful issue; for otherwise such issue were entitled to recover. The onus probandi was upon them, to establish every fact necessary to their own heirship; and it cannot admit of doubt that this was necessary. The same rule is laid down in 3 Starkie on Evidence, 1099, and is supported by the case of Richards vs. Richards, there cited from Mr Ford's MSS. and also by Doe vs. Griffin, 15 East's Rep. 293. \nTHe third instruction assumes to decide a question of fact, upon which we think there was evidence before the jury. The record of the recovery in the ejectment suit was prima facie evidence of the plaintiffs' title; and the depositions in the cause, and the structure of the interrogatories and answers, presupposed the death of the great grandfather, grandmother and father of the intestate.There  was error then in the court in giving this instruction. \n Upon the whole the judgment must be reversed, and the cause remanded with directions to award a venire facias de novo. \nThis cause came on to be heard on the transcript of the record from the circuit court of the United States, for the district of Maryland, and was argued by counsel; on consideration whereof, this Court is of opinion, that the said circuit court erred in admitting the plot offered in evidence by the defendant's counsel, as stated in the plaintiffs' first bill of exceptions. And also erred, in refusing to admit as evidence the bill of exceptions stated in the plaintiffs' second bill of exceptions. And the said circuit court also erred, in granting the instructions firstly and thirdly prayed for by the defendants, as stated in the plaintiffs' sixth bill of exceptions. Whereupon, it is considered, ordered and adjudged by this Court, that, for the errors aforesaid, the judgment of the said circuit court in this cause be, and the same is, hereby reversed and annulled; and that the said cause be, and the same is, hereby remanded to the said circuit court, with directions to award a venire facias de novo. \n \n\n ", " \nOpinion \n\n \n \n  Mr Justice STORY delivered the opinion of the Court. After stating the facts, he proceeded as follows: \nThe present being a suit upon a local statute, giving a particular remedy in the nature of a foreign attachment against garnishees, who possess goods, effects or credits of the principal debtor, the decisions which have been made upon the construction of that statute by the state courts, are entitled to great respect; and ought in conformity to the uniform practice of this Court to govern our own decisions. This consideration sasves us from the necessity of discussing many of the questions which have been so elaborately argued at the bar. If we were called upon to decide them upon general principles applicable to conveyances, which are assailed as being in fraud of creditors; we should have much  difficulty in arriving at a conclusion upon some of the points, and should require further time for deliberation. But we are of opinion, that the case may be finally disposed of upon a single ground, which has received the sanction of the highest state court of Massachusetts. It is this. It appears from the facts, that the proceeds of all the property received by the assignees under this assignment, are insufficient to pay  the amount of the just debts and demands due, bona fide, to the assignees. Under such circumstances, the established doctrine in Massachusetts is, that the assignees cannot be holden as trustees of the debtor under this process, so as to be chargeable to the creditor, who is plaintiff in the suit. Even if the assignment were held to be constructively fraudulent, in point of law, they would be entitled to retain for their own bona fide debts; for as to these, they stand upon equal grounds with any other creditors. This is understood to be the clear result of the cases decided in Massachusetts; and it therefore becomes unnecessary to go into the more extensive inquiries presented by the arguments at the bar. \nUpon this ground we are all of opinion,  that the judgment of the circuit court ought to be affirmed with costs. \nThis cause came on to be heard on the transcript of the record from the circuit court of the United States for the district of Massachusetts, and was argued by counsel; on consideration whereof, it is considered, ordered and adjudged by this Court, that the judgment of the said circuit court in this cause be and the same is hereby affirmed with costs. \n \n\n ", " \nOpinion \n\n \n \n   Mr Justice STORY, after stating the facts, delivered the opinion of the Court: \nThis case comes before us on a demurrer to the evidence in the court below, taken by the original defendant, now plaintiff in error; and this in our judgment is very important to be considered in the determination of the case. The party who demurs to evidence, seeks thereby to withdraw the consideration of the facts from the jury, and is therefore bound to admit not only the truth of the evidence as given, but every fact which that evidence may legally conduce to prove in favour of the other party. And if upon any view of the facts, the jury might have given a verdict against the party demurring, the court is also at liberty to give judgment against him. \nThe defence set up against this action by the defendant is, that the transaction is usurious, within the meaning of the statute of Maryland against usury, which, (it is admitted), is substantially like the English statute on the same subject. To sustain the defence, it has een urged that the receipts of the interest in advance for sixty-four days upon the discount of the note is usury. But we are all of opinion, that the taking  of interest in advance upon the discount of notes in the usual course of business by a bank, is not usury. The doctrine has been long settled, and is not now open for controversy. The taking of the interest for sixty-four days is not usury, if the note, according to the custom and usage in the banks at Washington, was not due and payable until the sixty-fourth day. That custom was  completely established, not only be the evidence in the present case, but by that in Renner vs. The Bank of Columbia, 9 Wheat. Rep. 581, which is referred to in this record. In the latter case it was expressly held by the court, that under that custom the note was not due and payable before the sixty-fourth day, for until that time the maker could not be in default. \nThen, again, it is argued, that here there have been successive renewals of the note, or rather successive notes given by way of renewal of the original note, and that these renewals have been on the sixty-third day, and the money credited on that day, on account of the existing note; and thus in effect sixty-four days interest has been taken upon loans for sixty-three days only. If there had been proved any contract between the  bank and the party for whose benefit the original discount was made, that the original note should be so renewed from time to time, and the extra day's interest thereupon be taken by the bank; so that the bank would have been bound to make the renewal, and the party would have been bound to renew and not to pay the note at maturity; there would have been strong grounds on which to rest the argument. But the difficulty is that no such contract is to be found in the evidence; and the party demurring  to the evidence asks the court to infer it from facts which do not necessarily import it, and may well admit of an explanation favourable to the other party. It is quite consistent with every fact in the case, that the original discount may have been made without any such contract; and that the application for the renewals may have been made from time to time by the party interested for his own accommodation, and without any previous understanding or cooperation on the part of the bank. For aught that appears, he was at liberty to have paid the original note, or any one of those after wards given, at the time when it became due.If of choice he had paid it on the sixty-third  day instead of the sixty-fourth, there is no pretence to say that it would have been a case of usury. If, instead of payment, he offers a new note for discount, for the purpose of applying the proceeds to the payment or withdrawal of the former note, under  the like circumstances, the case is not substantially varied. Each note is considered as a distinct substantive transaction. If no more than the legal interest is taken upon the time the new note has to run, the actual application of the proceeds of the new note to the payment of the former note, before it becomes due, does not of itself make the transaction usurious. Something more must occur. There must be a contract between the bank and the party at the time of such discount, that the party shall not have the use or benefit of the proceeds until the former note becomes due, or that the bank shall have the use and benefit of them in the mean time. Such a contract being illegal is not to be presumed; it must be established in evidence. The argument requires the court to infer such illegality from circumstances in their own nature equivocal, and susceptible of different interpretationsf and this in favour of the  party demurring to the evidence. Even if the jury might have made such an inference from the evidence, we think it ought not to be made by the court; for the rule of law requires the court in such a case to make every inference and presumption in favour of the other party, which the jury might legally deduce from the evidence; nor is this any hardship upon the party demurring to the evidence, for it is his own choice to withdraw from the jury, to whom it properly belongs, the consideration of the facts which he relies on as presumptive of usury. \nUpon the other point suggested in the cause, whether banks are within the statute of usury, we entertain no doubt that they are. But, for the reasons already stated, we are of opinion that the judgment below ought to be affirmed. \n \n\n ", " \nOpinion \n\n \n \n  Mr Justice STORY delivered the opinion of the Court. \nThis was a writ of error to the highest court of appeals in  law and equity of the state of South Carolina; brought to revise the decision of that court, in a bill or petition in equity, in which the present defendants were original plaintiffs, and the present plaintiffs were original defendants. From the record of the case it appeared that the controversy before the court respected the right to the moiety of the proceeds of a certain tract of land, which had been sold under a former decree in equity, and the proceeds of which had been brought into the registry of the court. One moiety of the proceeds had been paid over to the original plaintiffs, and the other moiety was now in controversy. The original plaintiffs claimed this moiety also upon the ground that the original defendants were aliens and incapable of taking the lands by descent from their mother, Ann Shanks, (who was admitted to have taken the moiety of the land by descent from her father Thomas Scott,)  they being British born subjects. \nThe facts, as they were agreed by the parties, and as they appeared on the record, were as follows: \nThomas Scott the ancestor, and first purchaser, was a native of the colony of South Carolina, and died intestate, seised of the lands in dispute, in 1782. He left surviving him two daughters, Sarah and Ann, who were also born in South Carolina, before the declaration of independence. \nSarah Scott intermarried with Daniel Pepper, a citizen of South Carolina, and resided with him in that state until 1802, when she died leaving children, the present defendants in error, whose right to her share of the property is conceded. \nThe British took possession of James Island, on the 11th of February 1780, and Charleston surrendered to them on the 11th of May in the same year. \nIn 1781, Ann Scott was married to Joseph Shanks, a British officer, and at the evacuation of Charleston, in December 1782, went with him to England, where she remained until her death, in 1801. She left five children, the present plaintiffs in error, British subjects, who claimed in right of their mother, and under the ninth article of the treaty of peace between this country and Great  Britain of the 19th of November 1794, a moiety of their grandfather's estate in South Carolina. \nThe decision of the state court was against this claim, as  not within the protection of the treaty, because Mrs Shanks was an American citizen. \nThe cause was argued by Cruger and Wirt, for the plaintiffs in error; and by Mr Legare, for the defendants in error. \nAfter the elaborate opinions expressed in the case of Inglis vs. The Trustees of the Sailor's Snug Harbour, ante p. 99, upon the question of alienage, growing out of the American Revolution; it is unnecessary to do more in delivering  the opinion of the court in the present case, than to state, in a brief manner, the grounds on which our decision is founded. \nThomas Scott, a native of South Carolina, died in 1782, seised of the land in dispute, leaving two daughters surviving him, Sarah, the mother of the defendants in error, and Ann, the mother of the plaintiffs in error. Without question Sarah took one moiety of the land by descent; and the defendants in error, as her heirs, are entitled to it. The only question is whether Ann took the other moiety by descent; and if so, whether the plaintiffs in error  are capable of taking the same by descent from her. \nAnn Scott was born in South Carolina, before the American revolution; and her father adhered to the American cause, and remained and was at his death a citizen of South Carolina. There is no dispute that his daughter Ann, at the time of the revolution, and afterwards, remained in South Carolina until December 1782. Whether she was of age during this time does not appear. If she was, then her birth and residence might be deemed to constitute her by election a citizen of South Carolina. If she was not of age, then she might well be deemed under the circumstances of this case to hold the citizenship of her father; for children born in a country, continuing while under age in the family of the father, partake of his national character, as a citizen of that country. Her citizenship, then, being prima facie established, and indeed this is admitted in the pleadings, has it ever been lost; or was it lost before the death of her father, so that the estate in question was, upon the descent cast, incapable of vesting in her? Upon the facts stated, it appears to us that it was not lost; and that she was capable of taking it at the time  of the descent cast. \nThe only facts which are brought to support the supposition,  that she became an alien before the death of her father, are, that the British captured James Island in February 1780, and Charleston in May 1780; that she was then and afterwards remained under the British dominion in virtue of the capture; that in 1781, she married Joseph Shanks, a British officer, and upon the evacuation of Charleston in December 1782, she went with her husband, a British subject, to England, and there remained until her death in 1801. Now, in the first place, the capture and possession by the British was not an absolute change of the allegiance of the captured inhabitants. They owed allegiance indeed to the conquerors during their occupation; but it was a temporary allegiance, which did not destroy, but only suspend their former allegiance. It did not annihilate their allegiance to the state of South Carolina, and make them de facto aliens. That could only be by a treaty of peace, which should cede the territory, and them with it; or by a permanent conquest, not disturbed or controverted by arms, which would lead to a like result. Neither did the marriage with Shanks  produce that effect; because marriage with an alien, whether a friend or an enemy, produces no dissolution of the native allegiance of the wife. It may change her civil rights, but it does not effect her political rights or privileges. The general doctrine is, that no persons can by any act of their own, without the consent of the government, put off their allegiance, and become aliens. If it were otherwise, then a femme alien would by her marriage become, ipso facto, a citizen, and would be dowable of the estate of her husband; which are clearly contrary to law. 1 \nOur conclusion therefore is, that neither of these acts warrant the court in saying that Ann Shanks had ceased to be a citizen of South Carolina, at the death of her father. This is not, indeed, controverted in the allegations of the parties. \nThe question then is, whether her subsequent removal with her husband operated as a virtual dissolution of her allegiance, and fixed her future allegiance to the British crown  by the treaty of peace of 1783. Our opinion is that  it did.In the first place, she was born under the allegiance of the British crown, and no act of the government of Great Britain ever absolved her from that allegiance. Her becoming a citizen of South Carolina did not, ipso facto, work any dissolution of her original allegiance, at least so far as the rights and claims of the British crown were concerned. During the war, each party claimed the allegiance of the natives of the colonies as due exclusively to itself. The American states insisted upon the allegiance of all born within the states respectively; and Great Britain asserted an equally exclusive claim. The treaty of peace of 1783 acted upon the state of things as it existed at that period. It took the actual state of things as its basis. All those, whether natives or otherwise, who then adhered to the American states, were virtually absolved from all allegiance to the British crown. All those who then adhered to the British crown, were deemed and held subjects of that crown. The treaty of peace was a treaty operating between the states on each side, and the inhabitants thereof; in the language of the seventh article, it was a firm and perpetual peace between his Britannic  majesty and the said states, \"and between the subjects of the one and the citizens of the other.\" Who were then subjects or citizens, was to be decided by the state of facts. If they were originally subjects of Great Britain and then adhered to her, and were claimed by her as subjects, the treaty deemed them such. If they were originally British subjects, but then adhering to the states, the treaty deemed them citizens. Such, I think, is the natural, and indeed almost necessary meaning of the treaty; it would otherwise follow, that there would continue a double allegiance of many persons; an inconvenience which must have been foreseen, and would cause the most injurious effects to both nations. \nIt cannot, we think, be doubted that Mrs Shanks, being then voluntarily under British protection, and adhering to the British side, by her removal with her husband was deemed by the British government to retain her allegiance, and to be, to all intents and purposes, a British subject. It may  be said that, being sub potestate viri, she had no right to make an election; nor ought she to be bound by an act of removal under his authority or persuasion.  If this were  a case of a crime alleged against Mrs Shanks, in connexion with her husband, there might be force in the argument. But it must be considered, that it was at most a mere election of allegiance between two nations, each of which claimed her allegiance. The governments, and not herself, finally settled her national character. They did not treat her as capable by herself of changing or absolving her allegiance; but they virtually allowed her the benefit of her choice, by fixing her allegiance finally on the side of that party to whom she then adhered. \nIt does not appear to us that her situation as a feme covert disabled her from a change of allegiance. British femes covert residing here with their husbands at the time of our independence, and adhering to our side until the close of the war, have been always supposed to have become thereby American citizens, and to have been absolved from their antecedent British allegiance. The incapacities of femes covert, provided by the common law, apply to their civil rights, and are for their protection and interest. But they do not reach their political rights, nor prevent their acquiring or losing a national character. Those political rights  do not stand upon the mere doctrines of municipal law, applicable to ordinary transactions, but stand upon the more general principles of the law of nations. The case of Martin vs. The Commonwealth, 1 Mass. Rep. 347, turned upon very different considerations. There the question was, whether a feme covert should be deemed to have forfeited her estate for an offence committed with her husband, by withdrawing from the state, &c. under the confiscation act of 1779; and it was held that she was not within the purview of the act. The same remark disposes of the case of Sewall vs. Lee, 9 Mass. Rep. 363, where the court expressly refused to decide whether the wife by her withdrawal with her husband became an alien. But in Kelly vs. Harrison, 2 Johns. Cas. 29, the reasoning of the court proceeds upon the supposition, that the wife might have acquired the same  citizenship with her husband, by withdrawing with him from the British dominions. 2 \nBut if Mrs Shanks's citizenship was not virtually taken away by her adherence to the British at  the peace of 1783, still it must be admitted that, in the view of the British government, she was, at that time, and ever afterwards to the time of her death, and indeed at all antecedent periods, a British subject. At most, then, she was liable to be considered as in that peculiar situation, in which she owed allegiance to both governments, ad utriusque fidem regis. Under such circumstances, the question arises whether she and her heirs are not within the purview of the ninth article of the treaty with Great Britain of 1794. It appears to us that they plainly are. The language of that article is, \"that British subjects who now hold lands in the territories of the United States, and American citizens who now hold lands in the dominions of his majesty, shall continue to hold them according to the nature and tenure of their respective estates and titles therein, &c. &c.; and that neither they, nor their heirs or assigns shall, so far as respects the said lands, and the legal remedies incident thereto, be regarded as aliens. \nNow, Mrs Shanks was at the time a British subject, and she then held the lands in controversy; she is therefore within the words of the treaty. Why ought she  not also to be held within the spirit and intent? It is said that the treaty meant to protect the rights of British subjects, who were not also American citizens; but that is assuming the very point in controversy. If the treaty admits of two interpretations, and one is limited, and the other liberal; one which will further, and the other exclude private rights; why should not the most liberal exposition be adopted? The object of the British government must have been to protect all her subjects holding lands in America from the disability of alienage, in respect to descents and sales. The class of American loyalists could at least, in her eyes, have been in as much favour as any other; there is nothing in our public policy which is  more unfavourable to them than to other British subjects. After the peace of 1783 we had no right or interest in future confiscation; and the effect of alienage was the same in respect to us, whether the British subject was a native of Great Britain or of the colonies. This part of the stipulation then being for the benefit of British subjects who became aliens by the events of the war; there is no reason why all persons should not be embraced  in it, who sustained the character of British subjects, although we might also have treated them as American citizens. The argument supposes that because we should treat them as citizens, therefore Great Britain had no right to insist upon their being British subjects within the protection of the treaty. Now, if they were in truth and in fact, upon principles of public and municipal law, British subjects, she has an equal right to require us to recognize them as such. It cannot be doubted that Mrs Shanks might have inherited any lands in England, as a British subject, and her heirs might have taken such lands by descent from her. It seems to us, then, that all British born subjects whose allegiance Great Britain has never renounced, ought, upon general principles of interpretation, to be held within the intent, as they certainly are within the words, of the treaty of 1794. \nIn either view of this case, and we think both are sustained by principles of public law, as well as of the common law, and by the soundest rules of interpretation applicable to treaties between independent states, the objections taken to the right of recovery of the plaintiffs cannot prevail. \nUpon the whole,  the judgment of the court is, that the plaintiffs in error are entitled to the moiety of the land in controversy, which came by descent to their mother, Ann Shanks, and of course to the proceeds thereof; and that the decree of the state court of appeals ought to be reversed; and the cause remanded, with directions to enter a decree in favour of the plaintiffs in error. \nThis cause came on to be heard on the transcript of the record from the supreme court of appeals in law and equity in and for the state of South Carolina, and was argued by counsel; on consideration whereof, it is considered and declared by this court that Ann Shanks, the mother of the original defendants, was at the time of her death a British subject, within the true intent and meaning of the ninth article of the treaty of amity, commerce and navigation made between his Britannic majesty and the United States of America on the 19th of November 1794, and that the said original defendants, as her heirs and British subjects, are capable to take, and did take by descent from her the moiety of the land in the proceedings mentioned, and are entitled to the proceeds of the sale thereof, now in the registry of the circuit  court of equity, as in the said proceedings mentioned. It is therefore considered and adjudged by this court, that there is error in the decree of the said court of appeals in equity, of the state of South Carolina, in affirming the decree of the circuit court, in said proceedings mentioned, whereby it was ordered and decreed, that the money arising from the sale of the land in question, theretofore reserved \n [EDITOR'S NOTE: The page numbers of this document may appear to be out of sequence; however, this pagination accurately reflects the pagination of the original published documents.] \nsubject to the order of the court, be paid over to the petitioners, as the only heirs who are capable of taking the same.And it is further ordered and adjudged by this court, that for this cause the decree of the circuit court aforesaid, and of the court of appeals aforesaid be, and each of them is hereby reversed. And it is further ordered and adjudged by this court, that the cause be remanded to the said court of appeals, with directions that a decree be entered therein, that the said moiety of the said proceeds of the said sale be paid over to the original defendants  (the present plaintiffs in error) as their right, and that such further proceedings be had therein as to justice and equity may in the premises appertain. \nDissent by:", " \nOpinion \n\n \n \n  Mr Justice STORY delivered the opinion of the Court. \nThis is a writ of error to the district court of the United States for the eastern district of Louisiana. \nThe facts disclosed on the record are substantially as follows: \nThe suit was originally commenced by an attachment, brought in the parish court of New Orleans, and removed, on the petition of defendant, into the district court of the United States for the eastern district of Louisiana: the plaintiffs being citizens of Louisiana, and the defendant a citizen of Massachusetts. \nThe petition of the plaintiffs set out the ground of their action to be certain sales of tobacco, made by them to one Eben Fiske, as the factor and agent of the defendant, and for his account, at New Orleans, in June and July 1825; and certain bills of exchange drawn in their favour by Fiske at New Orleans, on the defendant at Boston, at several dates from  the 2d to the 20th of July 1825, for the amounts of such sales. The defendant's answer (filed in the district court after the removal of the cause from the parish court) contains a general traverse of the allegations of the plaintiffs' petition, and tenders an issue, tantamount to the general issue of nil debet. The answer concludes with a petition of reconvention for ten thousand dollars damages. Upon this issue the cause was tried in the district court, by consent of parties, before a special jury, in March 1826, and a verdict passed against the defendant; who moved the court for a new trial; which motion was overruled by the court, and final judgment rendered on the verdict against the defendant, who thereupon sued out this writ of error. The record presents two bills of exceptions on the part of the defendant, now plaintiff in error. \nFirst bill of exceptions. Fiske, having first received from the plaintiffs a full and absolute release (which recites that the plaintiffs had dealt with him as the factor and agent of the defendant, and upon the credit and responsibility of the latter alone,) from all liability to them on the contract of sale and as drawer of the bills, was produced  as a witness on the part of the plaintiffs to prove that he had purchased the  tobacco as agent for the defendant. An objection on the part of the defendant to the competency of Fiske, on the ground of interest, was overruled by the court. \nSecond bill of exceptions. The defendant moved the court to direct the clerk of the court to take down in writing the testimony of the several witnesses examined by the respective parties, in order that the same might appear of record; such being the practice of the several courts of the state of Louisiana, according to the constitution and laws thereof, and such being the rule of practice, in the opinion of the counsel for defendant, to be pursued in this court, according to the act of congress of the 26th of May 1824. But the clerk refused, &c., and the court refused to order the clerk to write down the same, or to permit the witnesses themselves, the counsel for either of the parties, or any other person, to write down such testimony; the court expressing the opinion that the court of the United States is not governed by the practice of the courts of the state of Louisiana. \nNo charge or advice whatever was given or asked from the  court to the jury on any matter of law or fact in the case: nor was any question whatever raised of the competency or admissibility of such evidence, other than the specific exception before taken to the competency of Fiske, on the sole objection of interest; the substance of the facts proved by him being in no manner drawn in question before the court. \nThe record sets out all the documentary evidence; all of which appears to have been admitted by both parties. This consists of the protested bills above mentioned, with an admission upon the record by the defendant, that they had been regularly returned under protest to the plaintiffs, and that plaintiffs were, at the time the suit was commenced, the holders and owners of the same: and of a series of defendant's letters to his agent fiske, from the 26th of March 1823 to the 10th of August 1825, containing evidence that Fiske, during all that time, was settled at New Orleans, and was the factor and agent of the defendant, there to receive shipments of cargoes from Boston for the New Orleans market, and to purchase and ship from the latter place to the  defendant at Boston, cargoes of cotton and tobacco, for which he was  authorised to draw bills on Parsons at Boston. \nUpon the argument in this court the first bill of exceptions has been abandoned as untenable, and in our judgment upon sound reasons. \nThe second bill of exceptions is that upon which the court is now called upon to deliver its opinion. \nBy the act of Louisiana of the 28th of January 1817, section 10, it is provided, that in every case to be tried by a jury, if one of the parties demands that the facts set forth in the petition and answer should be submitted to the jury to have a special verdict thereon, both parties shall proceed, before the swearing of the jury, to make a written statement of the facts so alleged and denied, the pertinency of which statement shall be judged of by the court, and signed by the judge; and the jury shall be sworn to decide the question of fact or facts so alleged and denied, and their verdict or opinion thereof shall be unanimously given in open court, &c. and be conclusive between the parties as to the facts in said cause, as well in the court where the said cause is tried, as on the appeal, and the court shall render judgment; provided, that the jury so sworn shall be prohibited to give any general verdict  in the case, but only a special one on the facts submitted to them. This section points out the mode of obtaining a special verdict, in the sense of the common law. The twelfth section then provides, that when any cause shall be submitted to the court or to a jury without statements of facts, as is provided in the tenth section of the act, the verbal evidence shall in all cases where an appeal lies to the supreme court of the state, if either party requires it, and at the time when the witnesses shall be examined, be taken down in writing by the clerk of the court, in order to be sent up to the supreme court, to serve as a statement of facts  in case of appeal; and the written evidence produced on the trial shall be filed with the proceedings, &c. &c. The object of this section is asserted to be to enable the appellate court in cases of general verdicts, as well as of submissions to the court, to exercise the power of granting a new trial, and revising the judgment of the inferior court.  It seems to be a substitute for the report of the judge who sat at the trial, in the ordinary course of proceedings at the common law. \nOf itself, the course of proceeding  under the state law of Louisiana could not have any intrinsic force or obligation in the courts of the United States organized in that state: but by the act of congress of the 26th of May 1824, ch. 181, it is provided that the mode of proceeding in civil causes in the courts of the United States that now are or hereafter may be established in the state of Louisiana, shall be conformable to the laws directing the mode of practice in the district courts of the said states; provided, that the judge of any such court of the United States may alter the times limited or allowed for different proceedings in the state courts, and make by rule such other provisions as may be necessary to adapt the laws of procedure to the organization of such court of the United States, and to avoid any discrepancy, if any such should exist, between such state laws and the laws of the United States. \nThis proviso demonstrates, that it was not the intention of congress to give an absolute and imperative force to the modes of proceeding in civil causes in Louisiana in the court of the United States; for it authorises the judge to modify them, so as to adapt them to the organization of his own court. It further  demonstrates, that no absolute repeal was intended of the antecedent modes of proceeding authorised in the courts under the former acts of congress, for it leaves the judge at liberty to make rules by which to avoid any discrepancy between the state laws and the laws of the United States; and what is material to be observed, there is no clause in the act pointing in the slightest manner to any intentional change of the mode in which the supreme court of the United States is to exercise its appellate power in causes tried by jury, and coming from the courts of the United States in Louisiana; or giving it authority to revise the judgments thereof in any matters of fact, beyond what the existing laws of the United States authorised. \nWhether the district court in Louisiana had adopted any rules on this subject, so as to modify or suspend the operation  of the Louisiana state practice, in relation to the taking down the verbal testimony of witnesses, does not appear upon this record. The court expressed an opinion, \"that the court of the United States is not governed by the practice of the courts of the state of Louisiana;\" and this would be correct, if, in the particular complained  of, the court had adopted any rule superseding that practice. If no such rule had been adopted, the act of congress made the practice of the state the rule for the court of the United States. Unless, then, such a special rule existed, the court was bound to follow the general enactment of congress on the subject, and pursue the state practice. \nBut, admitting that the decision of the court below was wrong, and that the party was entitled to have his testimony taken down in the manner prayed for; still it is important to consider, whether this is such an error as can be redressed by this court upon a writ of error. \nGenerally speaking, matters of practice in inferior courts do not constitute subjects upon which error can be assigned in the appellate court. And unless it shall appear that this court, if the omitted evidence had been before it on the record, would have been entitled to review that evidence, and might, if upon such review it had deemed the conclusion of the jury erroneous, have reversed the judgment and directed a new trial in the court below; there is no ground upon which the present writ of error can be sustained. \nIt was competent for the original defendant to have  raised any points of law growing out of the evidence at the trial, by a proper application to the court; and to have brought any error of the court in its instruction or refusal, by a bill of exceptions, before this court for revision. Nothing of this kind was done or proposd. No bill of exceptions was tendered to the court, and no points of law are brought under review. The whole object, therefore, of the application to recover the evidence, so far at least as this court can take cognizance of it, was to present the evidence here in order to establish the error of the verdict in matters of fact. Could such matters be peoperly cognizable in this court upon the present writ of error? It is very certain that they  could not upon any suit and proceedings in any court of the United States, sitting in any other state in the union than Louisiana. \nThe trial by jury is justly dear to the American people. It has always been an object of deep interest and solicitude, and every encroachment upon it has been watched with great jealousy. The right to such a trial is, it is believed, incorporated into, and secured in every state constitution in the union; and it is found in the  constitution of Louisiana. One of the strongest objections originally taken against the constitution of the United States, was the want of an express provision securing the right of trial by jury in civil cases. As soon as the constitution was adopted, this right was secured by the seventh amendment of the constitution proposed by congress; and which received an assent of the people so general, as to establish its importance as a fundamental guarantee of the rights and liberties of the people.This amendment declares, that \"in suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved; and no fact once tried by a jury shall be otherwise re-examinable in any court of the United States, than according to the rules of the common law.\" At this time there were no states in the union, the basis of whose jurisprudence was not essentially that of the Common law in its widest meaning; and probably no states were contemplated, in which it would not exist. The phrase \"common law,\" found in this clause, is used in contradistinction to equity, and admiralty,  and maritime jurisprudence. The constitution had declared,  in the third article, \"that the judicial power shall extend to all cases in law and equity arising under this constitution, the laws of the United States, and treaties made or which shall be made under their authority,\" &c. and to all cases of admiralty and maritime jurisdiction. It is well known, that in civil causes, in courts of equity and admiralty, juries do not intervene, and that courts of equity use the trial by jury only in extraordinary cases to inform the conscience of the court. When, therefore, we find that the amendment requires that the right of trial by jury shall be preserved in suits at common  law, the natural conclusion is, that this distinction was present to the minds of the framers of the amendment. By common law, they meant what the constitution denominated in the third article \"law;\" not merely suits, which the common law recognized among its old and settled proceedings, but suits in which legal rights were to be ascertained and determined, in contradistinction to those where equitable rights alone were recognized, and equitable remedies were administered; or where, as in the admiralty, a mixture of public law, and of maritime law and equity was  often found in the same suit. Probably there were few, if any, states in the union, in which some new legal remedies differing from the old common law forms were not in use; but in which, however, the trial by jury intervened, and the general regulations in order respects were according to the course of the common law. Proceedings in cases of partition, and of foreign and domestic attachment, might be cited as examples variously adopted and modified. In a just sense, the amendment then may well be construed to embrace all suits which are not of equity and admiralty jurisdiction, whatever may be the peculiar form which they may assume to settle legal rights. And congress seems to have acted with reference to this exposition in the judiciary act of 1789, ch. 20, (which was contemporaneous with the proposal of this amendment); for in the ninth section it is provided, that \"the trial of issues in fact in the district courts in all causes, except civil causes of admiralty and maritime jurisdiction, shall be by jury;\" and in the twelfth section it is provided, that \"the trial of issues in fact in the circuit courts shall in all suits, except these of equity, and of admiralty and maritime  jurisdiction, be by jury;\" and again, in the thirteenth section, it is provided, that \"the trial of issues in fact in the supreme court in all acttons at law against citizens of the United States, shall be by jury.\" \nBut the other clause of the amendment is still more important; and we read it as a substantial and independent clause. \"No fact tried by a jury shall be otherwise re-examinable, in any court of the United States, than according to the rules of the common law.\" This is a prohibition to the  courts of the United States to re-examine any facts tried by a jury in any other manner. The only modes known to the common law to re-examine such facts, are the granting of a new trial by the court where the issue was tried, or to which the record was properly returnable; or the award of a venire facias de novo, by an appellate court, for some error of law which intervened in the proceedings. The judiciary act of 1789, ch. 20, sec. 17, has given to all the courts of the United States \"power to grant new trials in cases where there has been a trial by jury, for reasons for which new trials have usually been granted in the courts of law.\" And the appellant jurisdiction has  also been amply given by the same act (sec. 22, 24) to this court, to redress errors of law; and for such errors to award a new trial, in suits at law which have been tried by a jury. \nWas it the intention of congress, by the general language of the act of 1824, to alter the appellate jurisdiction of this court, and to confer on it the power of granting a new trial by a re-examination of the facts tried by the jury? to enable it, after trial by jury, to do that in respect to the courts of the United States, sitting in Louisiana, which is denied to such courts sitting in all the other states in the union? We think not. No general words, purporting only to regulate the practice of a particular court, to conform its modes of proceeding to those prescribed by the state to its own courts, ought, in our judgment, to receive an interpretation which would create so important an alteration in the laws of the United States, securing the trial by jury. Especially ought it not to receive such an interpretation, when there is a power given to the inferior court itself to prevent any discrepancy between the state laws and the laws of the United States; so that it would be left to its sole discretion  to supersede, or to give conclusive effect in the appellate court to the verdict of the jury. \nIf, indeed, the construction contended for at the bar were to be given to the act of congress, we entertain the most serious doubts whether it would not be unconstitutional. No court ought, unless the terms of an act rendered it unavoidable, to give a construction to it which should involve a violation,  however unintentional, of the constitution. The terms of the present act may well be satisfied by limiting its operation to mouse of practice and proceeding in the court below, without changing the effect or conclusiveness of the verdict of the jury upon the facts litigated at the trial. Nor is there any inconvenience from this construction; for the party has still his remedy, by bill of exceptions, to bring the facts in review before the appellate court, so far as those facts bear upon any question of law arising at the trial; and if there be any mistake of the facts, the court below is competent to redress it, by granting a new trial. \nOur opinion being that, if the evidence were now before us, it would not be competent for this court to reverse the judgment for any error  in the verdict of the jury at the trial; the refusal to allow that evidence to be entered on the record is not matter of error, for which the judgment can be reversed. The judgment is therefore affirmed, with six per cent damages and costs. \nThis cause came on to be heard on the transcript of the record from the district court of the United States for the district of Louisiana, and was argued by counsel; on consideration whereof, it is ordered and adjudged by this court, that the judgment of the said district court in this cause be, and the same is hereby affirmed, with costs and damages at the rate of six per centum per annum. \nDissent by:", " \nOpinion \n\n \n \n  Mr Justice STORY delivered the opinion of the court. \nThis case was formerly before this court, upon an appeal taken by the original libellants, the American and Ocean Insurance Companies, to the decree of the circuit court, awarding restitution of the property to the claimant,  Canter, with costs. That decree was affirmed by this court, and a mandate issued to the circuit court, commanding \"that such execution and proceedings be had in said cause, as according to right and justice, and the laws of the United States, ought to be had, the appeal notwithstanding.\" The case is reported at large in 1 Peters's Rep. 547. \nWhen the case came before the circuit court upon the mandate, Canter made an application to the court to refer  the same to the proper officer to examine into the damages sustained by him in consequence of the proceedings of the libellants, and to report thereon. A reference was accordingly made to the register to ascertain the damages; and when the case came on before him, the libellants entered a protest against any such proceedings, upon the grounds that the mandate gave no authority to inquire into damages; that none had been in fact awarded, either by the district,  circuit, or supreme court; and that the libellants were not in any manner liable for damages. the register, notwithstanding the protest, proceeded to inquire into the damages, and made his report thereon to the circuit court, where the same grounds of objection were again taken by the libellants. The court upon the hearing, asserted the right to inquire into the damages, as a matter undisposed of in the former decree; but denied any allowance of them upon the merits, and decreed costs and expenses only to the claimant. From this last decree both parties have appealed to this court; and the case now stands before us for judgment upon these cross appeals. \nIt is proper to add, that the libellants in their original  libel prayed that the three hundred and fifty-six bales of cotton might be decreed to them, with damages and costs; and that the claimant Canter, in his claim, also prayed for restitution of the cotton, with damages and costs. The district court decreed restitution to the libellants of part of the cotton, and dismissed the libel as to the residue, without any award of damag on either side. Both parties appealed from this decree to the circuit court; where, upon the hearing, the decree of the district court was reversed, and restitution of all the cotton was decreed to Canter, with costs, (as has been before mentioned;) but without any award of damages, or any express reservation of that question in the decre. \nTwo questions have been made and argued at the bar. The first is, whether, under the circumstances, the inquiry into damages would be entertained by the court below, after the cause was remanded for execution by the mandate of this court. The second is, whether, if such proceedings could be had, the present is a fit case for damages. \nIn respect to the last question, if we felt at liberty to entertain it, we should have no difficulty in concurring in the opinion of the circuit  court, that this case was not a fit one for an award of damages. The proceedings of the libellants were in the ordinary course, to vindicate a supposed legal title to the property. There is no pretence to say, that the  suit was instituted without probable cause, or was conducted in a malicious or oppressive manner. The libellants had a right to submit their title to the decision of a judicial tribunal, in any legal mode which promised them an effectual and speedy redress. They have failed; not so much from any infirmity in their original title, as from the sentence of a court, of competent jurisdiction, (whose very jurisdiction was the matter in question), having been adjudged to be conclusive upon that title. Where parties litigate in the admiralty, and there was a probable ground for the suit or defence; the court consider the only compensation which the successful party is entitled to, is a compensation in costs and expenses. If the party has suffered any loss beyond these, it is, as was justly observed in the opinion of the circuit court, damnum absque injuria. \nBut we are of opinion, that the question of damages is not now open before this court. The original  decree of restitution with costs, without any allowance of damages, or any express reservation of that question, was a virtual denial of damages, and a final decree as to the demand of damages set up by Canter in his original claim. It was his duty at that time to have filed a cross appeal, if he meant to rely upon his claim for damages; and not having then done so, it was a waiver of the claim, and a submission to the decree of restitution and costs only. It is of great importance to the due administration of justice, and is in furtherance of the manifest intention of the legislature, in giving appellate jurisdiction to this court upon final decrees only, that causes should not come up here in fragments, upon successive appeals. It would occasion very great delays, and oppressive expenses. We have already had occasion to advert to this subject in the cases of the Santa Maria, 10 Wheat. Rep. 431. The Palmyra, 10 Wheat. Rep. 502. Chace vs. Vasquez, 11 Wheat. Rep. 429. We wish it now to be understood by the bar, as the settled practice of this court, that wherever damages are claimed by the libellant or the claimant in the original proceedings, if a decree for restitution and costs  only passes, it is a virtual  denial of damages; and the party will be deemed to have waived the claim for damages, unless he then interposes an appeal, or cross appeal, to sustain that claim. \nAs to the costs and expenses, we perceive no error in the allowance of them in the circuit court. They are not matters positively limited by law, but are allowed in the exercise of a sound discretion of the court. And, besides, it may be added, that no appeal lies from a mere decree respecting costs and expenses. \nThe decree of the circuit court is therefore affirmed with costs. \nThis cause came on to be heard on the transcript of the record from the circuit court of the United States for the district of South Carolina, and was argued by counsel; on consideration whereof, it is ordered and decreed by this court, that the decree of the said circuit court in this cause be, and the same is hereby affirmed, without costs, for the libellants. \n \n\n ", " \nOpinion \n\n \n \n  Mr Justice STORY delivered the opinion of the court. \nThis is a writ of error to the judgment of the supreme judicial court of the state of Massachusetts. \nThe original action was trover, brought by the defendant in error against the plaintiff in error, for twenty-three cases of silk, which had been attached by Dennie, as deputy sheriff of the county of Suffolk, and afterwards attached by Harris, as marshal of the district of Massachusetts. The cause was tried upon the general issue, and a special verdict found, upon which the state court rendered judgment in favour of the original plaintiff. \nThe special verdict was as follows. The jury find that  the merchandize described in the declaration was brought in a vessel of the United States into the port of Boston, in the collection district of Boston and Charleston in Massachusetts,  from a foreign port, prior to the commencement of this action. That the said merchandize came consigned to George D'Wolf and John Smith, as was evidenced by the manifest of the cargo of the said vessel at the time of the importation. That soon after the arrival of the said vessel with the merchandize on board, as aforesaid, the collector of the said port caused an inspector of the custom house to be placed on board thereof, in conformity with the requirements of law in such cases. That soon after the arrival of the said vessel, and prior to the entry of the said merchandize with the collector, and prior to the payment or any security for the payment of the duties thereupon, the same were attached in due form of law as the property of the said George D'Wolf and John Smith, by virtue of several writs of attachment issued from the court of common pleas for the said county of Suffolk, in favour of Andrew Blanchard and others; the said attachment having been made by the plaintiff in his capacity of a deputy of the sheriff of the aforesaid county of Suffolk, prior to the inspector's being put on board, as aforesaid. That at the time of the said attachment, the said sheriff offered to  give to said collector security for the payment of the duties upon the said merchandize, which the said collector declined to accept. That about seventeen days subsequently to the time of the attachment, the said merchandize being in the custom house stores, under the following agreement, viz: \"District of Boston and Charleston, port of Boston, August 29th 1826. I certify that there has been received in store, from on board the brig Rob Roy, whereof -- -- is master, from Canton, the following merchandize, viz: twenty-three cases of silk, A. O. 1 to 23, lodged by D. Rhodes, Jun. inspector, and under whose care the vessel was unladen. (Signed) B. H. Scott, public store-keeper. I hold the above twenty-three cases of silks subject to order of James Dennie, deputy sheriff. (Signed) B. H. Scott.\" The defendant (Harris) being marshal, &c. attached the said merchandize, and took the same, by virtue of several writs to  him directed, in favour of the United States, against the s D'Wolf; which writs were duly issued from the district courts of the United States for the district of Massachusetts; which writs were founded on bonds for duties theretofore given by the said D'Wolf  and Smith, and which bonds were then due and unpaid, being for a large sum of money. That the said D'Wolf and Smith, at the time of the said importation of the merchandize aforesaid, were jointly and severally indebted to the United States on various other bonds for duties, besides those on which the writs aforesaid were instituted, which said first mentioned bonds were also then due and unsatisfied; and that the bonds for duties above referred to, and upon which the attachment by the said marshal was made, amounted to a much larger sum than the value of the merchandize thus attached. But whether or not, &c. &c. in the common form of special verdicts. \nAs this case comes from a state court, under the twenty-fifth section of the judiciary act of 1789, ch. 20, it is necessary to consider, whether this court can entertain any jurisdiction thereof, consistently with the terms of that enactment. That section, among other things, enacts that a final judgment of the highest state court may be revised, where is drawn in question the validity of a statute of, or an authority exercised under, any state on the ground of their being repugnant to the constitution, treaties, or laws of the United  States, and the decision is in favour of their validity; or where is drawn in question the  construction of any clause of the constitution, or of a treaty, or statute of, or commission held under the United States, and the decision is against the title, right, privilege or exemption specially set up, or claimed by either party, under such clause of the said constitution, treaty, statute or commission. \nThe objection is, that this court has not jurisdiction of this case, because it does not appear upon the record that any question within the purview of the twenty-fifth section arose in the state court upon the decision on the special verdict. But it has been often decided in this court, that it is not necessary that it should appear, in terms, upon the record, that any such question was made.It is sufficient, if from the  facts stated such a question must have arisen, and the judgment of the state court would not have been what it is, if there had not been a misconstruction of some act of congress, &c. &c. or a decision against the validity of the right, title, privilege or exemption set up under it. 4 Wheat. 311. 12 Wheat. 117. 2 Peters's Rep. 245, 380, 409. \nIn the present case it is contended, that the United States, by virtue of the sixty-second section of the Revenue Collection Act of 1799, ch. 128, had a lien on the present merchandize for all debts antecedently due on custom house bonds by D'Wolf and Smith, and that consequently the attachment of the marshal overreached that of the private creditors, and that the state court have decided against such lien. If there be no such lien, still it is contended, that under the provisions of the Revenue Collection Act of 1799, ch. 128, the merchandize was not liable to attachment at the suit of any private creditors under the circumstances; and that the state court in giving judgment for the plaintiff, must have overruled that defence, and misconstrued the act. \nThe question as to the lien of the United, States for duties antecedently due, was certainly presented by the special verdict. But we are all of opinion, that the decision of the state court, disallowing such a lien, was certainly correct. \nThe sixty-second section of the act of 1799, ch. 128, after providing for the manner of paying duties, and of giving bonds for duties, and the terms of credit to be allowed therefor, goes on  to provide, \"that no person whose bond has been received, either as principal or surety, for the payment of duties, or for whom any bond has been given by an agent, factor or other person in pursuance of the provisions herein contained, and which bond may be due and unsatisfied, shall be allowed a future credit for duties, until such bond be fully paid or discharged.\" The only effect of this provision is, that the delinquent debtor is denied at the custom house any future credit for duties, until his unsatisfied bonds are paid. He is compellable to pay the duties in cash; and upon such payment he is entitled to the delivery of the goods imported. There is not the slightest suggestion in the clause, that the United States shall have any lien on such  goods for any duties due on any other goods, for which the importer has given bonds, and for which he is a delinquent. It was at once perceived by congress, that the salutary effect of this provision, denying credit upon duties, would be defeated by artifices and evasions, and the substitution of new owners or consignees after the arrival of the goods in port, and before the entry thereof at the custom house. To repress such  contrivances, the next succeeding clause of the act provides, \"that to prevent frauds arising from collusive transfers, it is hereby declared that all goods, &c. imported into the United States, shall, for the purposes of this act, be deemed and held to be the property of the persons to whom the said goods, &c. may be consigned, any sale, transfer or assignment prior to the entry and payment, or securing the payment, of the duties on the said goods, &c. and the payment of all bonds then due and unsatisfied by the said consignee, to the contrary notwithstanding.\" The manifest intent of this clause was to compel the original consignee to enter the goods; and if he was a delinquent, to compel him to pay his prior bonds, or to relinquish all credit for the duties accruing upon the goods so imported and consigned to him. It does not purport to create any lien upon such goods for any duties due upon other goods; but merely ascertains who shall be deemed the owner, for the purpose of entering the goods and securing the duties. The state court, therefore, did not, so far as this question is concerned, misconstrue the act of congress, or deny any right of the United States existing under  it. \nThe other point is one of far more importance; and, in our opinion, deserves a serious consideration. If, consistently with the laws of the United States, goods in the predicament of the present were not liable to any attachment by a state officer, it is very clear that the present suit could not be sustained, and that judgment ought to have been given upon the special verdict in favour of the original defendant. And in our opinion these goods were not liable to such an attachment. In examining the Revenue Collection Act of 1799, ch. 128, it will be found, that numerous provisions have been solicitously introduced, in order to prevent  any unlivery, or removal of any goods imported from any foreign port in any vessel arriving in the United States, until after a permit shall have been obtained from the proper officer of the customs for that purpose. These provisions not only apply to vessels which have already arrived in port, but to those which are within four leagues of the coast of the United States. The sections of the act, from the twenty-seventh to the fifty-eighth, are in a great measure addressed to this subject. From the moment of their arrival in port,  the goods are, in legal contemplation, in the custody of the United States; and every proceeding which interferes with, or obstructs or controls that custody, is a virtual violation of the provisions of the act. Now, an attachment of such goods by a state officer, presupposes a right to take the possession and custody of those goods, and to make such possession and custody exclusive. If the officer attaches upon mesne process, he has a right to hold the possession to answer the exigency of that process. If he attaches upon an execution, he is bound to sell or may sell the goods within a limited period, and thus virtually displace the custody of the United States. The act of congress recognizes no  such authority, and admits of no such exercise of right. \nNo person but the owner or consignee, or, in his absence or sickness, his agent or factor in his name, is entitled to enter the goods at the custom house, or give bond for the duties or pay the duties. (Sect. 36, 62.) Upon the entry the original invoices are to be produced and sworn to; and the whole objects of the act would be defeated by allowing a mere stranger to make the entry, or take the oath prescribed on the  entry. The sheriff is in no just or legal sense the owner or consignee; (and he must, to have the benefit of the act, be the original consignee;) or the agent or factor of the owner or consignee. He is a mere stranger, acting in invitum. He cannot then enter the goods, or claim a right to pay the duties, or procure a permit to unlade them; for such permit is allowed in favour only of the party making the entry, and paying or giving bond for the duties. (Sect. 49, 50.) If within the number of days allowed by law for unlading the cargo the duties are not paid or secured, the  goods are required to be placed in the government stores, under the custody and possession of the government officers. \nAnd at the expiration of nine months, the goods so stored are to be sold, if the duties thereon have not been previously paid or secured.(Sect. 56.) \nIt is plain that these proceedings are at war with the notion that any state officer can, in the interval, have any possession or right to control the disposition of these goods; and the United States have no where recognized or provided for a concurrent possession or custody by any such officer. In short, the United States having  a lien on the goods for the payment of the duties accruing thereon, and being entitled to a virtual custody of them from the time of their arrival in port until the duties are paid or secured, any attachment by a state officer is an interference with such lien and right of custody; and being repugnant to the laws of the United States, is void. \nIt has been suggested, that the certificate of the store keeper, declaring that he held the silks subject to the order of the attaching officer, might vary the application of this doctrine. But such an agreement was a plain departure from the duty of the store keeper; and was unauthorized by the laws of the United States.It cannot, then, be admitted to vary the rights of the parties. See fifty-sixth section of the act of 1799, ch. 128. \nThis view of the subject renders it wholly unnecessary to consider the point, so elaborately argued at the bar, whether by the laws of Massachusetts an attachment would lie in such a case. If it would, the present attachment would not be helped thereby; because it involves an interference with the regulations prescribed by congress on the subject of imported goods. \nUpon the whole, it is the unanimous opinion  of the court, that the judgment of the state court ought to be reversed; and that a mandate issue to that court, with directions to enter judgment upon the special verdict, in favour of the original defendant. \n This cause came on to be heard on the transcript of the record from the supreme judicial court of the commonwealth of Massachusetts, and was argued by counsel; on consideration whereof, it is the opinion of this court, that the goods in the special verdict mentioned, were not by the laws of the United States, under the circumstances mentioned in the said verdict, liable to be attached by the said Dennie upon the process in the said verdict mentioned; but that the said attachment so made by him as aforesaid, was repugnant to the laws of the United States, and therefore utterly void. It is therefore considered and adjudged by this court, that the judgment of the said supreme judicial court of Massachusetts rendered upon the said verdict be, and the same is hereby reversed, and that a mandate issue to that court with directions to enter a judgment upon the said verdict in favour of the original defendant, Samuel D. Harris; and that such further proceedings be had in  said cause as to law and justice may appertain. \n \n\n ", " \nOpinion \n\n \n \n  Mr Justice Story delivered the opinion of the Court. \nThis is a writ of error to the circuit court of the southern district of New York, in a case where the plaintiff in error was the original defendant. The action is ejectment, brought upon several demises; and among others, upon the demise of John Jacob Astor. The cause was tried upon the general issue, and a verdict rendered for the original plaintiff, upon which judgment was entered in his favour; and the present writ of error is brought to revise that judgment. \nBoth parties claim under Mary Philipse, who, it is admitted, was seised of the premises in fee in January 1758. Some of the counts in the declaration  are founded upon demises made by the children of Mary Philipse, by her marriage with Roger Morris; and one of whom is upon the demise of John Jacob Astor, who claims as a grantee of the children. \nVarious exceptions were taken by the original defendant at the trial, to the ruling of the court upon matters of evidence, as well as upon certain other points of law growing out of the titles set up by the parties. The charge of the court in summing up the case to the jury, is also spread, in extenso, upon the record; and a general exception was taken to each and every part of the same, on behalf of the original defendant. And upon all these exceptions the case is now before us. \nWe take this occasion to express our decided disapprobation of the practice, (which seems of late to have gained ground,) of bringing the charge of the court below, at length, before this court for review. It is an unauthorised practice, and extremely inconvenient both to the inferior and to the appellate court. With the charge of the court to the jury, upon mere matters of fact, and with its commentaries upon the weight of evidence, this court has nothing to do. Observations of that nature are understood to  be addressed to the jury, merely for their consideration, as the ultimate judges of matters of fact; and are entitled to no more weight or importance, than the jury in the exercise of their own  judgment choose to give them. They neither are, nor are they understood to be, binding upon them, as the true and conclusive exposition of the evidence 1 . If, indeed, in the summing up, the court should mistake the law, that would justly furnish a ground for an exception. But the exception should be strictly confined to that mistatement; and by being made known at the moment, would often enable the court to correct an erroneous expression, or to explain or qualify it, in such a manner as to make it wholly unexceptionable, or perfectly distinct. We trust, therefore, that this court will hereafter be spared the necessity of examining the general bearing of such charges. It will in the present case be our duty, hereafter, to consider whether the objections raised against the present charge can be supported in point of law. \nThe original plaintiff claimed title at the trial under a marriage settlement, purporting to be made and  executed on the 13th of January 1758, by an indenture of release, between Mary Philipse of the first part, Roger Morris of the second part, and Joanna Philipse and Beverly Robinson of the third part; whereby, in consideration of a marriage intended to be solemnized between Roger Morris and Mary Philipse, &c. &c. she, Mary Philipse, granted, released, &c. unto Joanna Philipse and Beverly Robinson, \"in their actual possession now being, by virtue of a bargain and sale to them thereof  made for one whole year, by indenture bearing date the day next before the date of these presents, and by force of the statute for transferring uses into possession, and to their heirs, all those several lots or parcels of land, &c. &c.\" upon certain trusts and uses in the same indenture mentioned. This indenture, signed and sealed by the parties, with the usual attestation of the subscribing witnesses, (William Livingston and Sarah Williams), to the sealing and delivery thereof, with a certificate of the proof of the due execution thereof by William Livingston (one of the subscribing witnesses), before Judge Hobart, of the supreme court of New York, on the 5th of April 1787, and   a certificate of the recording thereof in the secretary's office of the state of New York, was offered in evidence at the trial by the plaintiff, and was objected to by the defendant, upon the ground that the certificate of the execution was not legal and competent evidence, and did not entitle the plaintiff to read the deed in evidence, without proof of its execution. The judge, who presided at the trial, over-ruled the objection, and admitted the deed in evidence. This constitutes the first exception of the defendant. A witness was then sworn, who testified that the signatures of William Livingston and Sarah Williams to the deed were in their proper hand writing, and that they were both dead. The deed was then read in evidence. The certificate of the probate of the deed before Judge Hobart, is in the usual form practised in that state, excepting only that it states with somewhat more particularity than is usual, that William Livingston, one of the subscribing witnesses, &c. being duly sworn, did testify and declare, \"that he was present at or about the day of the date of the said indenture, and did see the within named Joanna Philipse, Beverly Robinson, Roger Morris and Mary  Philipse, sign and seal the same indenture, and deliver it as their and each of their voluntary acts and deeds,\" &c. \nWe are of opinion, that under these circumstances, and according to the laws of New York, there was sufficient prima facie evidence of the due execution of the indenture (by which we mean not merely the signing and sealing, but the delivery also), to justify the court in admitting it to be read to the jury; and that in the absence of all controlling evidence, the jury would have been bound to find that it was duly executed. We understand such to be the uniform construction of the laws of New York, in all cases where the execution of any deed has been so proved, and has been subsequently recorded. The oath of a subscribing witness before the proper magistrate, and the subsequent registration, are deemed sufficient, prima facie, to establish its delivery as a deed. The objection was not, indeed, seriously pressed at the argument. \nThe next exceptions of the defendant grew out of the  non-production of the lease recited in the deed of marriage settlement, and of the insufficiency of the evidence to establish either its original existence, or its subsequent  loss. We do not think it necessary to go into a particular examination of the various exceptions on this head, or of the actual posture under which they were presented to the court, or of the manner in which they were ruled by the court. Which-ever way many of the points may be decided, our opinion proceeds upon a ground which supersedes them, and destroys all their influence upon the cause. We are of opinion, not only that the recital of the lease in the deed of marriage settlement was evidence between these parties of the original existence of the lease, but that it was conclusive evidence between these parties of that original existence; and superseded the necessity of introducing any other evidence to establish it. \nThe reasons upon which this opinion is founded will now be briefly expounded. To what extent, and between what parties, the recital of a lease in a deed of release, (for we need not go into the consideration of recitals generally,) is evidence, is a matter not laid down with much accuracy or precision in some of the elementary treatises on the subject of evidence. It is laid down generally, that a recital of one deed in another binds the parties and those who claim  under them. Technically speaking, it operates as an estoppel, and binds parties and privies; privies in blood, privies in estate, and privies in law.But it does not bind mere strangers, or those who claim by title paramount the deed. It does not bind persons claiming by an adverse title, or persons claiming from the parties by title anterior to the date of the reciting deed. \nSuch is the general rule. But there are cases, in which such a recital may be used as evidence even against strangers.If for instance there be the recital of a lease in a deed of release, and in a suit against a stranger the title under the release comes in question, there the recital of the lease in such release is not per se evidence of the existence of the lease. But, if the existence and loss of the lease be established by other evidence, there the recital is admissible as secondary  proof in the absence of more perfect evidence, to establish the contents of the lease; and if the transaction be an ancient one, and the possession has been long held under such release, and is not otherwise to be accounted for, there the recital will of itself under such circumstances materially fortify the presumption  from lapse of time and length of possession of the original existence of the lease. Leases, like other deeds and grants, may be presumed from long possession, which cannot otherwise be explained; and under such circumstances, a recital of the fact of such a lease in an old deed is certainly far stronger presumptive proof in favour of such possession under title, than the naked presumption arising from a mere unexplained possession. \nSuch is the general result of the doctrine to be found in the best elementary writers on the subject of evidence 2 . Peake on Evidence (p. 165) seems, indeed, to have entertained a different opinion; and to have thought, even as between the parties, the recital was admissible as secondary evidence only, upon proof that the lease was lost. But in this opinion he is not supported by any modern authority; and it is very questionable if he has not been misled by  confounding the different operations of recitals as evidence between strangers and between parties. It may not, however, be unimportant to examine a few of the authorities in support of the doctrine on which we rely. The cases of Marchioness of Anandale vs. Harris, 2 P. Wms, 432, and  Shelley vs. Wright, Willes's Rep. 9, are sufficiently direct as to the operation of recitals by way of estoppel between the parties. In Ford vs. Gray, 1 Salk. 285, one of the points ruled was, \"that a recital of a lease in a deed of release is good evidence of such lease against the releasor and those who claim under him; but as to others it is not, without proving that there was such a deed, and it was lost and destroyed.\" The same case is reported in 6 Mod. 44, where it is said that it was ruled, \"that  the recital of a lease in a deed of release is good evidence against the releasor, and those that claim under him.\" It is then stated that \"a fine was produced, but no deed declaring the uses, but a deed was offered in evidence, which did recite a deed of limitation of the uses, and the question was whether that (recital) was evidence: and the court said that the bare recital was not evidence; but that if it could be proved that such a deed had been, and lost, it would do, if it were recited in another.\" This was doubtless the same point asserted in the latter clause of the report in Salkeld; and, thus explained, it is perfectly consistent with the statement in Salkeld,  and must be referred to a case where the recital was offered as evidence against a stranger. In any other point of view, it would be inconsistent with the preceding propositions, as well as with the cases in 2 P. Williams and Willes. In Trevivan vs. Lawrence, 1 Salk. 276, the court held that the parties and all claiming under them were estopped from asserting that a judgment sued against the party as of trinity term, was not of that term, but of another term; that very point having arisen and been decided against the party upon a scire facias on the judgment. But the court there held, (what is very material to the present purpose) that \"if a man makes a lease by indenture of D. in which he hath nothing, and afterwards purchases D. in fee, and afterwards bargains and sells it to A. and his heirs, A. shall be bound by this estoppel; and, that where an estoppel works on the interest of the lands, it runs with the land into whose hands soever the lands comes; and an ejectment is maintainable upon the mere estoppel.\" This decision is important in several respects. In the first place it shows that an estoppel may arise by implication from a grant, that the party hath an estate in the  land, which he may convey, and he shall be estopped to deny it 3 . In the next place it shows that such estoppel binds all persons claiming the same land, not only under the same deed, but under any subsequent conveyance from the same party; that  is to say, it binds not merely privies in blood, but privies in estate, as subsequent grantees and alienees. In the next place it shows that an estoppel, which (as the phrase is) works on the interest of the land, runs with it into whose ever hands the land comes. Now, this last consideration comes emphatically home to the present case. The recital of the lease in the present release, works on the interest in the land; the lease gave an interest in the land, and the admission of it in the release enabled the latter to operate in the manner which the parties intended. The estoppel, therefore, worked on the interest in the land, not by implication merely, but directly by the admission of the parties. That admission was a muniment of the title, and as an estoppel travelled with the title into whose ever hands it might afterwards come. The same doctrine is recognized by lord chief baron Comyn in his Digest, Estoppel B. & E. 10.  In the latter place (E. 10) he puts the case more strongly; for he asserts that the estoppel binds, even though all the facts are found in a special verdict. \"But,\" says he (and he relies on his own authority), \"where an estoppel binds the estate, and converts it to an interest, the court will adjudge accordingly. As if A. leaves lands to B. for six years, in which he has nothing, and then purchases a lease of the same land for twenty-one years, and afterwards leases to C. for ten years, and all this is found by verdict; the court will adjudge the lease to B. good, though it be so only by conclusion. A doctrine similar in principle was asserted in this court in Terrett vs. Taylor, 9 Cranch, 52.The distinction then, which was urged at the bar, that an estoppel of this sort binds those claiming under the same deed, but not those claiming by a subsequent deed under the same party, is not well founded. All privies in estate by subsequent deed are bound in the same manner as privies in blood; and so indeed is the doctrine in Comyn's Digest, Estoppel B. and in Coke Litt. 352, a. \n We may now pass to a short review of some of the American cases on this subject. Denn vs. Cornell, 3 Johns. Cas. 174, is strongly in point. There, lieutenant governor Colden, in 1775, made his will, and in it recited that he had  conveyed to his son David his lands in the township of Flushing, and he then devised his other estate to his sons and daughters, &c. &c. Afterwards, David's estate was confiscated under the act of attainder, and the defendant in ejectment claimed under that confiscation, and deduced his title from the state. No deed of the Flushing estate (the land in controversy) was proved from the father; and the heir at law sought to recover on that ground. But the court held, that the recital in the will, that the testator had conveyed the estate to David, was an estoppel of the heir to deny that fact, and bound the estate. In this case the estoppel was set up by the tenant claiming under the state, as an estoppel running with the land. If the state or its grantee might set up the estoppel, in favour of their title; then, as estoppels are reciprocal, and bind both parties, it might have been set up against the state or its grantee. It has been said  at the bar, that the state is not bound by estoppel by any recital in a deed. That may be so, where the recital is in its own grants or patents, for they are deemed to be made upon suggestion of the grantee 4 .But where the state claims title under the deed, or other solemn acts of third  persons, it takes it cum onere, and subject to all the estoppels running with the title and estate, in the same way as other privies in estate. \nIn Penrose vs. Griffith, 4 Binn. Rep. 231, it was held that recitals in a patent of the commonwealth were evidence against it, but not against persons claiming by title paramount from the commonwealth. The court there said that the rule of law is, that a deed containing a recital of another deed, is evidence of the recited deed against the grantor, and all persons claiming by title derived from him, subsequently. The reason of the rule is, that the recital amounts to the confession of the party; and that confession is evidence against himself, and those who stand in his place. But such confession can be no evidence against strangers. The same doctrine was acted upon and confirmed  by the same court, in Garwood vs. Dennis, 4 Binn. Rep. 314. In  that case the court further held, that a recital in another deed was evidence against strangers, where the deed was ancient, and the possession was consistent with the deed. That case also had the peculiarity belonging to the present, that the possession was of a middle nature, that is, it might not have been held solely in consequence of the deed, for the party had another title; but there never was any possession against it. There was a double title, and the question was, to which the possession might be attributable. The court thought that a suitable foundation of the original existence and loss of the recited deed being laid in the evidence, the recital in the deed was good corroborative evidence even against strangers. And other authorities certainly warrant this decision 5 . \nWe think, then, that upon  authority, the recital of the lease in the deed of release in the present case was conclusive evidence upon all persons claiming under the parties in privity of estate; as the present defendant in ejectment did claim: and, independently of authority, we should have arrived at the same result upon priciple; for the recital constitutes a part of the title, and establishes a possession under the lease necessary to give the release its intended operation. It works upon the interest in the land, and creates an estoppel, which runs with the land against all persons, in privity, under the releasors. It is as much a muniment of the title, as any covenant therein running with the land. \nThis view of the matter dispenses with the necessity of examining all the other exceptions as to the nature and sufficiency of the proof of the original existence and loss of the lease, and of the secondary evidence to supply its place. \nThe next question is, supposing the marriage settlement duly executed, what estate passed by it to Morris and his wife, and their children. The uses declared in the deed are in  the following terms: \"to and for the use and behoof of them, the said Joanna Philipse  and Beverly Robinson, (the releasees,) and their heirs, until the solemnization of the said intended marriage; and from and immediately after the solemnization of the said intended marriage, then to the use and behoof of the said Mary Philipse and Roger Morris, and the survivor of them, for and during the term of their natural lives, without impeachment of waste; and from and after the determination of that estate, then to the use and behoof of such child or children as shall or may be procreated between them, and to his, her or their heirs and assigns forever. But in case the said Roger Morris and Mary Philipse shall have no child or children begotten between them, or that such child or children shall happen to die during the life time of the said Roger and Mary, and the said Mary should survive the said Roger, without issue, then to the use and behoof of her the said Mary Philipse, and her heirs and assigns forever. And in case the said Roger should survive the said Mary Philipse, without any issue by her, or that such issue is then dead without leaving issue, then, after the decease of the said Roger Morris, to the only use and behoof of such person or persons, and in such manner  and form, as the said Mary Philipse shall at any time during the said intended marriage, devise the same by her last will and testament,\" &c. &c. There are other clauses not material to be mentioned. \nThe marriage took effect; children were born, and indeed all the children were born before the attainder in 1779. Mary Morris survived her husband, and died in 1825, leaving her children, the lessors of the plaintiff, surviving her. The conveyance taking effect by the statute of uses, upon a deed operating by way of transmutation of possession; no difficulty arises in giving full effect, by way of springing or shifting or executory uses, to all the limitations, in whatever manner they may be construed. The counsel for the original defendant contend, that the parents take a life estate, and that there is a remainder upon a contingency, with a double aspect. That the remainder to the children is upon the contingency of their surviving their parents; and in case of their nonsurvivorship,  there is an alternative remainder to the mother, which would take effect in lieu of the other.That, consequently, the remainder to the children was a contingent remainder during the life  of their parents; and as such it was destroyed by the proceedings and sale under the act of attainder and banishment of 1779. The circuit court was of a different opinion; and held, that the remainder to the children was contingent until the birth of a child, and then vested in such child, and opened to let in after born children; and that there being a vested remainder in the children at the time of the act of 1779, it stands unaffected by that act. \nWe are all of opinion that the opinion of the circuit court upon the construction of the settlement deed was correct. It is the natural interpretation of the words of the limitations, in the order in which they stand in the declaration of the uses. The estate is declared to be to the parents during their natural lives, and then to the use and behoof of such child or children as may be procreated between them, and to his, her, and their heirs and assigns for ever. If we stop here, there cannot be a possible doubt of the meaning of the provision. There is a clear remainder in fee to the children, which ceased to be contingent upon the  birth of the first, and opened to let in the after born children 6 . It is perfectly  consistent with this limitation that the estate in fee might be defeasible, and determinable upon a subsequent contingency; and upon the happening of such contingency, might pass by way of shifting executory use, (as it might in case of a devise by way of executory devise,) to other persons in fee; thus mounting a fee upon a fee. The existence then of such executory limitation over, by way of use, would not change the nature of the preceding limitation, and make it contingent, any more than it would in the case of an executory devise. The contingency would attach, not to the preceding limitation, but to the executory use over. \nLet us now consider what is the effect of the succeeding  clause in the settlement deed, and see if it be capable, consistently with the apparent intention of the parties, of operating as an alternative remainder under the double aspect of the contingency, as contended for by the original defendant. The clause is, \"but in case the said Roger Morris and Mary shall have no such child or children begotten between  them, or that such child or children shall happen to die during the life time of the said Roger and Mary, and the said Mary should survive the said Roger, without issue, then, &c.\" Now, it is important to observe that this clause does not attach any contingency to the preceding limitation to the children, but merely states the contingency upon which the estate over is to depend. It does not state that the children shall not take, unless they survive the parents; but that the mother shall take in case she survives her husband, without issue. She then, and not the children, is to take in case of the conungency of her survivorship. It is applied to her, and not to them. Besides, upon the construction contended for at the bar, if all the children should die during the life time of the parents, leaving any issue, such issue could not take; and yet a primary intention was to provide for the issue of the marriage. Nor in such a case could the mother take the estate over; for that by the terms of the settlement could take effect only in case she survived her husband without issue. The subsequent clause demonstrates this still more fully; for her power to dispose of the estate by will,  in case her husband survives her, is confined to such survivorship, if \"such issue is then dead without leaving issue.\" \nAnother difficulty in the construction contended for is, that the children must survive both the parents, and that if they should survive the mother and not the father, in that event they could not take; yet the settlement plainly looks to the event of the death of the mother without issue, as that alone in which the estate over is to have effect. It is also the manifest intention of the settlement, that if there is any issue, or the issue of any issue, such issue shall take the estate; which can only be by construing the prior limitation in the manner in which it is construed by this court. The general rule of law, founded on public policy, is, that limitations of this  nature shall be construed to be vested, when, and as soon as they may. The present limitation, in its terms, purports to be contingent only until the birth of a child, and may then vest. So that whether we consult the language of the settlement, the order of its provisions, the apparent intention of the parties, or the general rule of law, they all lead to the same results; that the  estate to the children was contingent only until their birth; and that when the act of 1779 passed, they being all then born, it was a vested remainder in them and their heirs, and not liable to be defeated by any transfer or destruction of the life estate. \nThis view of the settlement deed renders it wholly unnecessary to enter upon any minute consideration of the nature and operation of the attainder act of 1779; since it is clear that that act, whether it worked a transfer or destruction of the life estate of the parents; and, in our opinion the former was its true operation; it did not displace the vested remainder of the children, but left it to take effect upon the regular determination of the life estate. \nIn respect to another point raised at the argument, that the power reserved to Roger Morris and his wife under the marriage settlement, to dispose of the land to the amount of three thousand pounds, so far as it remained unexecuted by them, was by the attainder act of 1779 transferred to the state, and might be executed by the state; we are of opinion, that it is not well founded. In the first place, we consider this to be a power, personal in the parents, and to be exercised  in their discretion, and not in its own nature transferable. Even under the statutes of treason in England, powers and conditions, personal to the parties, did not by an attainder pass to the crown. 1 Hale's Pl. Cr. 240, 242, 244, 245, 246. Jackson vs. Catlin, 2 Johns. Rep. 248. Sugden on Powers, 174, 176. And it has been settled in New York, that the offence stated in the act, was not, strictly speaking, treason, but, sui generis as the terms of the act stated it 7 . In the next place, the act purports to vest in the state, by forfeiture, the \"estates\" only of the offenders; and being a  penal act, it is to be construed strictly. A power to dispose of land in the seisin of a third person, is in no just sense an estate in the land itself. In the next place the deed of the commissioners authorised by the act, purports generally to convey all the estate, right, title, and interest of the offenders in the property conveyed, and does not purport to be any execution of a limited nature and object. In every view, the doctrine contended for is untenable. \nPassing over, for the present, some minor exceptions, we may now advance  to the consideration of the objections urged against the charge of the court; and these objections, so far as they have not been already disposed of by the questions growing out of the proofs applicable to the lease, are to the direction of the court upon the point, whether there was or was not a due delivery of the marriage settlement deed.If that deed was duly delivered, then no acts done after the marriage by the parents, however inconsistent with that deed, could affect the legal validity of the rights of the children, once acquired and vested in them under it. But  the point pressed at the trial was, whether it was ever executed and delivered at all, so as to have become an operative conveyance; or whether there was a mere nominal execution by the parties; and whether it was laid aside and abandoned as a conveyance before the marriage, and never became complete by delivery. There was at the trial what the law deems sufficient prima facie evidence of the delivery of the deed. But certain omissions, as well as certain acts of the parents were relied on to rebut this evidence, and to establish the conclusion, that there had been, in point of fact, no such delivery.  With the value of these acts and circumstances, as matters of presumption for the consideration of the jury by way of rebutter of the prima facie evidence, this court has nothing to do; and does not intend to express any opinion thereon. But so far as they bore upon the fact of delivery, they applied with the same force in relation to the children as they did in relation to the parents; that is, so far as they were presumptive of the non-delivery of the deed, they furnished the same presumption against the children that they would against the parents. They were open to explanation and observation, and had just as much weight in  the one case as in the other. They were not acts or omissions which bound the children, supposing them to have any vested interest; but circumstances of presumption to be weighed, as far as they went, to establish that no interest ever vested in them, by reason of the non-delivery of the deed of settlement. Whatever might be the inconsistency of these acts with the provisions of that deed, that inconsistency was no otherwise important than as it might furnish a presumption against the existence of the deed as an operative conveyance. \nIt is in  reference to these considerations that the argument at the bar has insisted upon objections to the charge of the judge at the trial; and in examining the charge on this head, difficulties have occurred to the court itself. \nThe circumstances principally relied upon were, the dormancy of the settlement deed from 1758 to 1779; the omission to record it until 1787; and the supposed inconsistency of certain deeds, executed by the parents between 1758 and 1773, with the title under that settlement. \nIn respect to the dormancy of the deed, the charge is as follows: \"It has been said that this is a dormant deed, never intended by the parties to operate; that it had slept until after the attainder, and until the year 1787. There is weight in this; or rather there would be weight in it, if the parties in interest had slept on their rights. But who has slept? Morris and wife, Beverly Robinson and Joanna Philipse, the trustees. They are the persons that have slept, and not the children. This does not justify so strong an inference against the children, as if they had slept upon their rights. Is it fair in such a case to draw any inference against the children?\" \nTo two of the judges this  appears to amount to a direction that in point of law the dormancy of the deed during this period, not having been the act of the children, does not furnish the same presumption of the non-delivery against them as it would against the parents; and that, to give the presumption from this circumstance full effect, it ought to appear that the children had slept on their rights; that is, had acquiesced in such dormancy of the title. To those  judges this direction seems erroneous, because the presumption is the same whether the children acquiesced or not. \nIn respect of the non-recording of the deed, the charge proceeds to state. \"It has also been urged that this deed was not recorded until 1787. Is there any thing in this fact that should operate against the children? They were minors for the greater part of the time down to the year 1787, when it was recorded, &c. &c.\" It seems to the same judges, that the same distinction, as to the effect of the presumption in the case of the parents and that of the children, pervades this, as it does the former statement. \nAs to the inconsistency relied on, the introductory part of the charge is as follows: \"It is also said that Morris  and his wife have done acts inconsistent with the deed. In weighing the force and effect of these acts, you must bear in mind the time when the interest vested in the children under this deed; for after that interest vested, none but themselves could divest it,\" &c. It is certainly true, that after the interest was once vested in the children, no act, however inconsistent with the deed, done by the parents could affect that interest. But the point of view under which the argument was addressed to the court was, that such inconsistency furnished ground for a presumption of a non-delivery of the deed; and in this point of view it seems to the same judges, that this part of the charge relies too much upon a distinction between the parents and children, as to the effect of the presumption. In another part of the charge, the judge very properly puts all these acts of supposed inconsistency upon the true ground: what was the interest of the parties in these acts; and whether they were done in hostility to the deed, supposing it inoperative, or as acts of parents acting beyond the deed for what they might deem beneficial to their children, and for the interest of all concerned in the  estate. \nTo the other judges, however, these objections do not appear to be well founded, when taken in connection with the general scope and object of the remarks of the judge in his charge upon this branch of the case. The purpose for which these omissions and acts of alleged inconsistency in Morris were offered, bad been explicitly stated. The jury had been  told that they were relied upon to rebut the evidence of delivery of the deed, which had been offered on the part of the plaintiff below. Before entering upon any comments on this evidence, and to prepare the minds of the jury for the due application of the remarks, the judge observed, \"what then is the evidence to bring the fact of delivery into doubt. What is the reasonable presumption to be drawn from the facts proved? keeping in mind that this is evidence on the part of the defendant to disprove the presumption of law, from the facts proved, that the deed was duly delivered. The jury were therefore fully apprised of the bearing of these circumstances, and the purpose for which they were offered. And they could not but have understood that it was submitted to them to judge of the weight to which they were  entitled; otherwise the evidence would have been excluded as inconsistent: and the  jury must have understood, that they did weigh to some extent against the children; for when speaking of the objection, that the deed had lain dormant for a number of years, the jury were told, that this circumtance did not justify so strong an inference against the children as if they had slept upon their rights; thereby admitting, that it was open to an inference against them, but not so strong as if they had been of age, and the life estate of their parents ended, and they during that delay had been in a situation to assert their rights. And should it be admitted that the judge erred in this suggestion, it would amount to no more than an intimation of his opinion upon the weight of evidence. The same remark will apply to every part of the charge, when the rights of the children are spoken of in contradistinction to those of their parents. They refer to the delivery of the deed. Thus with respect to the delay in recording the deed; the judge puts the question to the jury in this form. \"Is there any thing in the fact that it was not recorded, from which an inference can be drawn against  the deed.\" Pointing the attention of the jury to the fact of delivery, and not to any controlling distinction between the interest of the children and their parents, the bearing of the remarks of the judge with respect to the various deeds executed by Morris and his wife,  and which are alleged to have been inconsistent with the marriage settlement, could not have misled the jury. It is true, they were told that in weighing the force and effect of those acts, they must bear in mind the time when the interest vested in the children under the deed. This remark must have been understood by the jury as subject to their finding with respect to the delivery of the deed; and not as expressing an opinion that the interest of the children vested at the date of the deed. For, if that had been understood as the opinion of the judge, the evidence, as before observed, would have been inadmissible, and the jury would have been told that it could have no bearing upon the case. Instead of which, it had been before explained to them, that the object of this evidence was to disprove the delivery of the marriage settlement deed, and not to divest any interest, that had become vested in  the children. And in the conclusion of this part of the charge, the judge tells the jury, \"these are all the circumstances relied upon as being inconsistent with the settlement deed, and these are questions for you. I do not wish to interfere with your duties. It is for you to say whether the deed was duly executed and delivered.\" \nThe jury had been told, in a previous part of the charge, that delivery of the deed was essential in order to pass the title, and that this was a fact for them to decide; and it was in conclusion left to them, in as broad a manner as could be done. The whole scope of the charge on this point, left the evidence open for the full consideration of the jury, and the remarks of the judge are no more than a mere comment on the weight of evidence, and as such were addressed to the judgment of the jury, and not binding upon them. If a decided opinion had been expressed by the judge upon the weight of the evidence, it is not pretended that it would be matter of error, to be corrected here. But the charge does not even go thus far; and it is believed by a majority of the court, that it is not justly exposed to the criticisms which have been applied to it. \n In respect to that part of the charge which comments upon the various deeds made by the parents, which were  relied upon as inconsistent with the settlement deed; no objection has occurred to any member of the court, except as to the comments on the deeds to Hill and Merritt, and the life leases to other persons. In respect to the deeds to Hill and Merritt, one judge is of opinion that the statement, \"that these deeds are not inconsistent with the settlement deed,\" is incorrect in point of law, because those deeds contained a covenant of seisin; and under the settlement deed, although Morris and wife had a right to convey the land, they were not in the actual seisin of it, and therefore such a covenant was inconsistent with the settlement deed. But the other judges are of opinion, that this part of the charge is correct, because Morris and wife had, under the settlement deed, a power to convey in fee lands to a much greater amount; that it was not necessary to recite in their deeds of sale their power to sell; and that the covenant of seisin, being a usual muniment of title, and not changing in the slightest degree the perfection of the title actually conveyed; did not,  in point of law, whether there was a seisin or not, create any repugnancy between these deeds and the settlement deed. If the parties had in those deeds recited the settlement deed and the power to convey, and had then conveyed with the same covenants, the deeds could not have been deemed, in point of law, inconsistent with the power under the settlement deed; but would have been deemed a good execution of the power, and the covenants a mere additional security for the title. The same judge is also of opinion, that the life leases which were given in evidence, not having been made in pursuance of the power in the marriage settlement deed, are by their terms and effect so inconsistent with it, as to authorise the jury to find against its delivery on this ground alone; and that the circuit court erred in charging the jury, that the effect and operation of these leases was not a subject for their inquiry, and that their bearing on the cause depended on the intention of Morris. \nTo the other judges, however, the charge in this particular is deemed unexceptionable. The judge decided that these life leases were unauthorised by the power: and the  question was, what influence  they ought to have upon the point of non-delivery of the settlement deed; they not deriving any validity or force under it. Were they acts of ownership over the property which could not be explained consistently with the existence of the settlement deed; or were they acts which, though unauthorised, might fairly be presumed to be done without any intention to disclaim the legal title under that deed? In estimating this presumption, it is to be considered that these were the acts of parents, and not of strangers. That it does not necessarily follow, because parents do unauthorised acts in relation to the estates of their children, they intend those acts as hostile or adverse to the rights of their children. Parents may, from a sincere desire to promote the interest  of their children, and to increase the value of their estates, make leases for the clearing and cultivation of their estates, which they know to be unauthorised by law, but which, at the same time, they feel an entire confidence will be confirmed by their children. The very relation in which parents stand to their children, excuses, if it does not justify such acts. It will be rare, indeed, if parents may  not confidently trust that their acts, done bona fide for the benefit of their children, will, from affection, from interest, from filial reverence, or from a respect to public opinion, be confirmed by them. The acts of parents therefore, exceeding their legal authority, admit of a very different interpretation from those of mere strangers. The question in all such cases is, what were the intentions and objects of the parents? Did they act upon rights which they deemed exclusively vested in themselves? or did they act with a reference to the known interests vested in their children? It appears to the majority of the judges, that the circumstance of the life leases was properly put to the jury as a question of intention; and that the jury were left at full liberty to deduce the proper conclusion from it. \nThe next point is, as to the improvements claimed by the tenant in ejectment under the act of New York of the 1st of May 1786.That act declares, \"that in all cases of purchases made of any forfeited estates in pursuance of any of the laws directing the sale of forfeited estates, in which any  purchaser of such estates shall be evicted by due course of law, in the manner  mentioned, &c. &c. such purchaser shall have like remedy for obtaining a compensation for the value of the improvements by him or her made on such estate, so by him or her purchased, and from which he or she shall be so evicted, as is directed in and by the first clause in the\" act of the 12th of May 1784. The latter act declares that the person or persons having obtained judgment, shall not have any writ of possession, nor obtain possession of such lands, &c. until he, she or they shall have paid to the person or persons possessing title thereto, derived from or under the people of the state, the value of all improvements made thereon after the passing of the act. Neither the act of 1784 nor of 1786 purports to give a universal remedy for improvements in cases of eviction by title paramount; but is confined to cases of confiscated estates, where the title comes by sale from the state. However operative it may be as to citizens of the state, (on which it is unnecessary to give any opinion) the question before us is, whether such improvements can be claimed in this case consistently with the treaty of peace of 1783. \nBy the fifth article of that treaty, it is agreed, \"that all persons  who have any interest in confiscated lands, either by debts, marriage settlements, or otherwise, shall meet with no lawful impediment in the prosecution of their just rights.\" By the sixth article it is agreed, that, \"there shall be no future confiscations made, nor any prosecutions commenced against any person or persons for or by reason of the part which he or they may have taken in the war; and that no person shall on that account suffer any future loss or damage, either in his person, liberty, or property.\" We think, that the true effect of these provisions is to guaranty to the party all the rights and interests which he then had in confiscated and other lands, in the full force and vigour which they then possessed. He was to meet with no impediment to the assertion of his just rights; and no future confiscations were to be made of his interest in any land. His just rights were at that time to have the estate, whenever it should fall into possession, free of all incumbrances or  liens for improvements created by the tenants for life, or by purchasers under the state. To deny him possession, or a writ of possession, until he should pay for all such improvements, was  an impediment to his just rights, and a confiscation, pro tanto, of his estate in the lands. The argument at the bar supposes that there is a natural equity to receive payment for all improvements made upon land. In certain cases there may be an equitable claim; but that in all cases a party is bound by natural justice to pay for improvements made against his will, or without his consents, is a proposition which we are not prepared to admit. We adhere to the doctrine laid down on this subject in Green vs. Biddle, 8 Wheat. 1. \nWe are of opinion that the claim for improvements in this case, is inconsistent with the treaty of peace, and ought to be rejected. \nA number of objections, of a minor nature, are spread upon the record; such as exceptions to the admission of evidence to prove the common practice to convey lands by way of lease and release, and the admission of the journals of the legislature; to the admission of the act of compromise between the state and John Jacob Astor; to the sufficiency of the title of Astor under the deed of the children of Morris and wife, to extinguish their title, &c. &c. To all these, we think it unnecessary to make any farther answer, than that  they have not escaped the attention of the court; and that the court perceive no valid objection to the ruling of the circuit court respecting them. \nUpon the whole, it is the opinion of this court, that the judgment of the circuit court be, and the same is hereby affirmed with costs. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the Court. \nThis is an appeal from the decree of the circuit court of the district of Columbia, sitting at Washington, upon a bill in equity, in which the appellants were original complainants. \nOn the 7th of May 1822 congress passed an act to authorise and empower the corporation of the city of Washington, in the district of Columbia, to drain the low grounds on and near the public reservations, and to improve and ornament certain parts of such reservations. By that act the corporation were among other things to change, by contract with the proprietors of the canal, the location of such parts of the canal passing through the city as lay between second and seventh streets, west, into such course as should most effectually, in their opinion, drain and dry the low ground lying on the borders of Tiber creek;  and to effectuate this object, the corporation were further authorised; after having extended the public reservation designated on the plan of the city as number ten, so as the whole south  side should bind on the line of Pennsylvania Avenue, and after having caused to be divided the said public reservation number ten, and also the public reservations numbers eleven and twelve into building lots; to sell and dispose of the right of the United States of, in, and to, the said lots, or any number thereof, laid off as aforesaid, at public sale, &c. &c. And the corporation was further authorised to cause to be laid off, in such manner as the president should approve, two squares south of Pennsylvania Avenue, &c.; and also to lay off north of Maryland Avenue, two uniform and correspondent squares; and the said four squares, when so laid off, to divide into building lots; and to sell and dispose of the  right of the United States in such lots, &c. &c. The proceeds of these sales were in the first place to be applied to the purposes above mentioned, and in the next place to inclosing, plainting, or otherwise improving certain public reservations, and building certain bridges, &c. &c.; and the surplus, if any, to go into the national treasury. The sixth section of the act then provides, \"that it shall be lawful for the legal representatives of any former proprietor  of the land directed to be disposed of by this act, or persons lawfully claiming title under them, and they are hereby permitted and authorised, at any time within one year from the passing of this act, to institute a bill in equity, in the nature of a petition of right, against the United States, in the circuit court for the district of Columbia, in which they may set forth the grounds of their claim to the land in question.\" The seventh section provides for the service of process upon, and the appearance of the attorney general, &c. The eighth section provides, \"that the said suit shall be conducted according to the rules of a court of equity. And the said court shall have full power and authority to hear and determine upon the claim of the plaintiff or plaintiffs, and what proportion, if any, of the money arising from the sale of the land hereby directed to be sold, the parties may be entitled to.\" The ninth and last section of the act provides for an appeal to this court. \nThe plaintiffs filed their bill in the present case within the time prescribed by the act, making the United States and the corporation of the city of Washington parties. They claim title to the lands in controversy,  which have been laid off into lots for sale, under David Burns, one of the original proprietors of the city, and of whom the plaintiff Marcia is the only daughter and heir. These lots embrace part of the reservations above referred to, and also a part of the street called B, according to the original plan of the city. The ground of the bill is, that by the original contract of the government with the proprietors, upon the laying out of the city, these reservations and streets were for ever to remain for public use, and were incapable, without the consent of the proprietors, of being otherwise appropriated or  sold for private use; that the act of 1822, authorising such sale, is a violation of the contract; that by such sale or appropriation for private use, the right of the United States thereto was determined; or that the original proprietors reacquired a right to consider them in the same predicament as if originally laid out for building lots; or that, at all events, they were entitled, in equity, to the whole or a moiety of the proceeds of the sale, if the act of 1822 were valid for the purposes which it professed to have in view. \nSome difficulty has arisen at the  argument, from the peculiar structure of the bill; it professing in some parts to seek relief under the act of 1822, and in other parts insisting upon a title inconsistent with it; and demanding an injunction to prevent all sales of the land by the corporation. The opinion of this court certainly is, that under the act of 1822, the plaintiffs can proceed by a bill in equity in the nature of a petition of right against these the United States only for the money arising from the sales; and cannot claim a decree for the land itself, or for any injunction against sales of it. \nThe view, however, of the case which we are disposed to take, renders it unnecessary to consider whether the bill is so framed that with reference to the act of 1822 the court could pass a definitive decree against the United States upon it, from the incongruities alluded to. \nAs it is manifestly the interest and desire of all the parties to have an opinion upon the merits, so as to put an end to the controversy; we shall waive all consideration of minor objections, and proceed at once to the consideration of the substantial ground of the claim. \nCongress, by an act passed on the 16th of July 1790, provided that  a district of territory not exceeding ten miles square, to be located as therein directed, on the river Potomac, at some space between the mouths of the eastern branch and Conogocheague be, and the same was thereby accepted for the permanent seat of the government of the United States. Three commissioners were by the same act to be appointed, to survey, and by proper metes and bounds to define and limit the district; and they were authorised to purchase or accept such quantity of land on the eastern side  of the said river, within the said district, as the president should deem proper for the use of the United States; and according to such plans as the president should approve, the commissioners were to provide suitable buildings for the accommodation of congress, and of the president, and for the public offices of the government of the United States. A subsequent act, passed on the 3d of March 1791, authorised some alterations of the limits of the district.Suitable cessions of the jurisdiction and soil of the territory, subject to the private rights of property of the inhabitants, were made by the states of Maryland and Virginia 1 . And the former act further provided  for the removal of the seat of government to the district on the first Monday of December 1800. The limits of the district were accordingly ascertained and defined; as made known by the proclamations of the president of the 24th of January and the 30th of March 1791. \n As yet no public designation had been made of the site of the federal city, which was contemplated to be laid out within the limits of the district, nor of the places on which the public buildings should be erected; nor indeed had there been any purchase or donation from any of the proprietors of lands within the district, by or to the commissioners for that object. There cannot however be a question that various negotiations had been entered into with the proprietors, and informal proposals made by them with a view to obtain so important and valuable a boon as the location of the city within the boundaries of their estates. And it can admit of as little question, that preparatory steps had been taken on the part of the government,  to procure suitable plans for the laying out of the metropolis. \nIn this state of things nineteen of the proprietors of the land constituting the present site of the city of Washington, among whom was David Burns, on the 30th of March 1791, entered into an agreement, which was presented to the commissioners  as the basis of the terms on which they were willing to dedicate their lands for the location of the city. The agreement was accepted by the commissioners, and recorded in their books. It is in the following terms. \"We, the subscribers, in consideration of the great benefits we expect to derive from having the federal city laid off upon our lands, do hereby agree and bind ourselves, our heirs, executors, and administrators, to convey in trust to the president of the United States or commissioners, or such persons as he shall appoint, by good and sufficient deeds, in fee simple, the whole of our respective lands, which he may think proper to include within the lines of the federal city, for the purposes and on the conditions following. The president shall have the sole power of directing the federal city to be laid off in what manner he pleases. He may retain any  number of squares he may think proper, for public improvements or other public uses; and the lots only which shall be laid off, shall be a joint property between the trustees in behalf of the public and each present proprietor. And the same shall be fairly and equally divided between the public and the individuals, as soon as may be after the city shall be laid off. For the streets, the proprietors shall receive no compensation; but for the squares or lands, in any form, which shall be taken for public buildings, or any kind of public improvements or uses, the proprietors, whose lands are taken, shall receive at the rate of twenty-five pounds per acre, to be paid by the public.\" There are some minor arrangements as to growing timber, and grave yards, &c., which are not necessary to be mentioned. It is material, however, to observe, that no time or mode of payment is prescribed in the agreement of the twenty-five pounds per acre; and no fund out of which it was to be paid is designated. The agreement was merely preparatory, and to be carried into effect by formal conveyances. \nNow, it is upon the terms of this agreement that the plaintiffs assert their title to relief in the present  case. They contend, that though the whole land was to be conveyed, yet the portion of it which should be taken for streets and public reservations, according to the plan approved by the president, was clothed with a perpetual condition or trust that  they should for ever remain streets and public reservations, and never should be liable to be appropriated to any private use; or changed from their original public purpose. That upon any such change or appropriation the title reverted to the original proprietors, or at all events, was to be disposed of and divided between them in the manner provided for, in respect to the land laid off into lots. They also contend, that the land so devoted to streets and public reservations, was a mere donation from the proprietors, and a purchase by the United States; and therefore ought to be governed by the rules applicable to public charities, and the trust strictly construed and enforced. \nIt is not very material, in our opinion, to decide what was the technical character of the grants made to the government; whether they are to be deemed mere donations or purchases.The grants were made for the foundation of a federal city; and the  public faith was necessarily pledged when the grants were accepted to found such city. The very agreement to found a city was of itself a most valuable consideration for these grants. It changed the nature and value of the property of the proprietors to an almost incalculable extent. The land was no longer to be devoted to mere agricultural purposes; but acquired the extraordinary value of city lots. In proportion to the success of the city would be the enhancement of this value; and it required scarcely any aid from the imagination to foresee, that this act of the government would soon convert the narrow income of farms into solid opulence. The proprietors so considered it. In this very agreement they state the motive of their proceedings, in a plain and intelligible manner. It is not a mere gratuitous donation from motives of generosity, or public spirit; but in consideration of the great benefits they expect to derive from having the federal city laid off upon their lands. For the streets they were to receive no compensation. Why? Because those streets would be of as much benefit to themselves, as lot holders, as to the public. They were to receive twenty-five pounds  per acre for the public reservations; \"to be paid\" (as the agreement states it) \"by the public.\" They understood themselves then to  receive payment from the public for the reservations. It makes no difference, that by the subsequent arrangements they were to receive this payment out of the sales of the lots which they had agreed to convey to the public, in consideration of the government's founding the city on their lands. It was still contemplated by them as a compensation; as a valuable consideration, fully adequate to the value of all their grants. It can, therefore, be treated in no other manner than as a bargain between themselves and the government, for what each deemed an adequate consideration. Neither considered it a case where all was benefit on one side, and all sacrifice on the other. It was, in no just sense, a case of charity; and was never so treated in the negotiations of the parties. But, as has been already said, it is not in our view material, whether it be considered as a donation or a purchase; for in each case it was for the foundation of a city. \n And in construing this agreement, this fact should never be lost sight of. It is obvious,  that the proprietors or their heirs could not be presumed for any great length of time to have any interest in the streets or public reservations beyond that of other inhabitants. If the city became populous, the lots would be sold and built upon, and in the lapse of one or two generations, at most, the title of the original proprietors might well be presumed to be extinguished by sales or otherwise; so that the interest of themselves or their heirs in the streets and reservations would not be distinguishable from that of other citizens. They must also have contemplated that a municipal corporation must soon be created to manage the concerns, and police, and public interests of the city; and that such a corporation would and ought to possess the ordinary powers for municipal purposes, which are usually confided to such corporate bodies. Among these are certainly the authority to widen or alter streets, and to manage, and in many instances to dispose of public property, or vary its appropriation. \nThey might, and indeed must, also have placed a just confidence in the government, that in founding the city, it would do no act which would obstruct its prosperity, or interfere with its  great fundamental objects or interests. It could  never be supposed that congress would seek to destroy what its own legislation had created and fostered into being. \nOn the other hand, it must have been as obvious, that as congress must for ever have an interest to protect and aid the city, it would for this very purpose be most impolitic and inconvenient to lay any obstructions to the most free exercise of its power over it. The city was designed to last in perpetuity: capitoli immobile saxum. No human foresight could take in the great variety of events which might render great changes in the plan, form, and locations of the city indispensable for the health, the comfort, and the prosperity of the city. Cases might easily be imagined, as in other cities, where the desolations of fire have made alterations in the streets and public squares of a city, most important and valuable to the whole community. A prohibition, which should for ever close up the legislative power of congress on such a subject, under all circumstances, ought not lightly to be presumed, nor readily admitted. It should be proved by the most direct and authentic documents, before we should admit  the belief that the wisdom of the first president of the United States yielded up such a valuable franchise. \nIf the case had stood solely upon this preparatory agreement, as an executory contract, there might have been stronger grounds to impose limitations upon the grant of the streets and public reservations. The language of the instrument is, that the president may retain any number of squares he may think proper for public improvements, or other public uses. Yet even then, the appropriation of these squares for public uses would not necessarily carry with it an implied obligation that they should for ever remain dedicated to those uses, and to none other. If such had been the intention of the parties, we should naturally expect to find there some direct expression of it, some acknowledgement of the obligation, or some condition carrying it to such a political mortmain. If the stipulation was so important and valuable as is now contended for, and constituted an object of permanent solicitude, it would scarcely escape the notice of the proprietors in laying down the fundamental basis of their cessions. If it did them escape them, we  should have reason to look for  its incorporation into the more solemn instruments which were contemplated thereafter to be executed by the parties, and were in fact executed by them in fulfilment of their original agreement. But no such stipulation is there to be found. \nOn the 29th June 1791, the proprietors severally executed deeds of indenture to consummate the agreement of the preceding March. They are all in the same form, and contain the same declarations of trust. That executed by David Burns conveys to Thomas Beall and John M. Gantt (the trustees designated by the president) all the lands of the proprietor within the bounds of the city upon the following tru sts, viz. \"that all the said lands, &c. as may be thought necessary or proper to be laid out together with other lands within the said limits for a federal city, with such streets, squares, parcels and lots as the president of the United States, for the time being, shall approve; and that the said (the trustees), &c. shall convey to the commissioners for the time being appointed by virtue of the act of congress, entitled, &c. and their successors for the use of the United States for ever, all the said streets, and such of the said squares, parcels  and lots, as the president shall deem proper for the use of the United States; and that as to the residue of the said lots into which the lands, &c. shall be divided, a fair and equal division of them shall be made, and if no other mode of division shall be agreed on by consent of the said (grantor) and the commissioners for the time being, then such residue of the said lots shall be divided, every other lot alternate, to the said (grantor), &c. and all the said lots which may in any manner be divided or assigned to the said (grantor) shall thereupon, &c. be conveyed by the said (trustees) to the said (grantor), his heirs and assigns; and that the said other lots shall and may be sold at such time, &c. &c. as the president of the United States for the time being shall direct; and that the said (trustees), &c. will, on the order and direction of the president, convey all the lots so sold, and ordered to be conveyed, to the respective purchasers in fee simple, &c. &c. \nProvision is then made that the twenty-five pounds per acre,  to be paid by the United States for the squares, should be paid out of the proceeds of such sales, and the residue shall be paid to the president,  as a grant of money to be applied for the purposes, and according to the act of congress. \nProvision is also made for other objects, not material to be mentioned, and for a conveyance of the trust property to such other persons as the president might thereafter direct, in fee; \"subject to the trusts then remaining to be executed, and to the end that the same may be perfected.\" In pursuance of this last provision,  Beall and Gantt, the trustees, made a conveyance of the premises by an indenture, dated the 30th of November 1796, to certain commissioners appointed under the act of congress, subject to the trusts then remaining to be executed; and, among other things, conveyed to the commissioners all that part of the lands, &c. which had been laid off into squares, parcels or lots for buildings, and now remaining so laid off in the city of Washington. \nNow it is important to observe, that the object of the indenture to Beall and Gantt in 1791, was to carry into full and entire effect the preliminary agreement entered into by the proprietors. There is no pretence to say that that indenture has not fully carried that agreement into effect. There is no allegation in the bill  of any mistake in the draft of the indenture, or that the instrument was not precisely what the parties intended it should be. The argument at the bar has not attempted to set up any such mistake as a ground of equity. And indeed, after such a lapse of time, and acquiescence in its legal accuracy and sufficiency by all the parties; and after so many acts done under it, which have been silently confirmed by the parties; it would be impossible to insist upon any such mistake with a chance of success.We must take the indenture, therefore, as we find it, as a complete execution of the preliminary agreement, and as expressing the true intent and definitive objects of the parties. The preliminary agreement then became, upon the execution of the indenture, functus officio, and was merged in the more formal and solemn stipulations of the latter. It was no longer executory, but executed. The indenture itself contained many executory trusts; and so far as any of them  yet remain unexecuted, the instrument itself may still be denominated executory. But so far as the trusts have been fulfilled, as by the conveyance of lots to the grantors, or to purchasers, and especially by the  conveyance of the streets and squares, &c. to the commissioners in 1796, the indenture can no longer be deemed executory. Its functions have been final and complete. \nWe need not therefore inquire into the distinction taken in a court of chancery, between executory and executed agreements; or into the extent to which its equitable jurisdiction will be interposed to reform instruments upon grounds of mistake, or to grant other relief: because the present bill presents no case falling under either predicament. Here we have a solemn instrument embodying the final intentions and agreements of the parties, without any allegation of mistake; and we are to construe that instrument according to the legal import of its terms. \nNow, upon such legal import, there do not seem grounds for any reasonable doubt. The streets and public squares are declared to be conveyed \"for the use of the United States for ever.\" These are the very words which by law are required to vest an absolute unconditional fee simple in the United States. They are the appropriate terms of art, if we may so say, to express an unlimited use in the government. If the government were to purchase a lot of land for any general  purpose, they are the very words which the conveyance would adopt, in order to grant an unlimited fee to the use of the government.There are no other words or references in the instrument which control in any manner the natural meaning of them. There are no objects avowed on the face of it, which imply any limitation. How then can the court defeat the legal meaning, and resort to a conjectural intent? \nIt has been said, that by looking at the preliminary agreement, the court will see that terms of a more limited nature are there used. Be it so. But will that justify the court in resorting to it to explain or limit the legal import of words in a solemn instrument, which contains no reference to it? If we could resort to it, the natural conclusion would be, in the  absence of all contrary proof, that the last instrument embodied the real intent of the parties; that the preliminary agreement either imperfectly expressed their intent, or was designedly modified in the final act. The general rule of law is, that all preliminary negotiations and agreements are to be deemed merged in the final, settled instruments executed by the parties; unless a clear mistake be established.  In this very case, it may be true, for aught that appears, that the president might have insisted upon the introduction into the trust deed of the very words in controversy, to the use of the United States for ever, in order to avoid the ambiguity of the words of the preliminary agreement. He may have required an unlimited conveyance to the United States; so that they might be unfettered in any future arrangements for the promotion of the health, the comfort, or the prosperity of the city. But it is sufficient for us, that here there is a solemn conveyance, which purports to grant an unlimited fee in the streets and squares, to the use of the United States; and we know of no authority which would justify us in disregarding the terms, or limiting their import, where no mistake is set up and none is established. It would, indeed, be almost incredible that any substantive mistake should have existed, and never have been brought to the notice of the trustees, or to that of the commissioners, upon their succeeding to the trust; or seriously insisted on by any party, down to the time of filing the present bill. The present is not a bill to reform a contract or deed; but to assert rights  supposed to grow out of the trusts declared in the deed. \nThis view of the matter renders it unnecessary for the court to go into an examination of the facts insisted upon in the answer to repel the allegations in the bill, or to disprove the equity which it asserts. If the United States possess, as we think they do, an unqualified fee in the streets and squares, that defeats the title of the plaintiffs, and definitively disposes of the merits of the cause. \nIt is the opinion of the court, Mr Justice Baldwin dissenting, that the decree of the circuit court, dismissing the bill, be affirmed with costs. \n \n\n ", " \nOpinion \n\n \n \n  Mr Justice STORY delivered the opinion of the Court; Mr Justice BALDWIN dissenting on the first point. \nThis cause is certified to this court, from the circuit court for the district of Vermont; upon certain points upon which the judges of that court were opposed in opinion. \nThe original action was an ejectment, in the nature of a real action, according to the local practice, in which no fictitious persons intervene; and it was brought in May 1824, to recover a certain lot of land, being the first division lot  laid out to the right of a society in the town of Pawlet. The plaintiffs are described in the writ as \"the society for the propagation of the gospel in foreign parts, a corporation duly established in England, within the dominions of the king of the united kingdom of Great Britain and Ireland, the members of which society are aliens and subjects of the said king.\" The defendants pleaded the general issue, not guilty, which was joined; and the cause was submitted to a jury for trial. By agreement of the parties at the trial, the jury were discharged from giving any verdict; upon  the disagreement of the judges upon the points growing out of the facts stated in the record. Those points have been argued before us; and it remains for me to pronounce the decision of the court. \nThe first point is, whether the plaintiffs have shown that they have any right to hold lands. \nIn considering this point, it is material to observe that no plea in abatement has been filed, denying the capacity of the plaintiffs to sue; and no special plea in abatement, or bar, that there is no such corporation as stated in the writ 1 . The general issue is pleaded, which admits the competency of the plaintiffs to sue in the corporate capacity in which they have sued. If the defendants meant to have insisted upon the want of a corporate capacity in the plaintiffs to sue, it should have been insisted upon by a special plea in abatement or bar. Pleading to the merits has been held by this court to be an admission of the capacity of the plaintiffs to sue. Conard vs. The Atlantic Insurance Company, 1 Peters's Rep. 386, 450 2 . \n But the point here raised is not so much whether the plaintiffs are entitled to sue generally as a corporation, as whether they have shown a right to hold lands. The general issue admits not only the competency of the plaintiffs to sue,  but to sue in the particular action which they bring. But in the present case, we think, there is abundant evidence in  the record to establish the right of the corporation to hold the lands in controversy. In the first place, it is given to them by the royal charter of 1761, which created the town of Pawlet. Among the grantees therein named, is \"the society for the propagation of the gospel in foreign parts,\" to whom one share in the township is given. This is a plain recognition, by the crown, of the existence of the corporation, and of its capacity to take. It would confer the power to take the lands, even if it had not previously existed. And the other proceedings stated on the record, establish the fact that the society had received various other donations from the crown of the same nature; and had accepted them. Besides, the act of 1794, under which the town of Pawlet claims the lands, distinctly admits the existence  of the corporation, and its capacity to take the very land in controversy. \n\"Whereas,\" says the act, \"the society for the propagation of the gospel in foreign parts is a corporation created by and existing within a foreign jurisdiction, to which they alone are amenable; by reason whereof, at the time of the late revolution of this and of the United States from the jurisdiction of Great Britain, all lands in this state, granted to the society for the propagation of the gospel in foreign parts, became vested in this state, &c.\" \nAnd the act then proceeds to grant the right of the state, so vested in them, to the various towns in which they are situated. So that the title set up by the state is under the society, as a corporation originally capable to take the lands, and actually taking them; and their title being divested, and vesting in the state by the revolution. In the latter particular the legislature were mistaken in point of law. This court had occasion to decide that question, in The Society for the Propagation of the Gospel in Foreign Parts vs. The Town of New Haven, 8 Wheat. 464; where it was held that the revolution did not divest the title of the society, although it was  a foreign corporation. That case came before us upon a special verdict, which found the original charter of the society granted by William the Third, and  its power to hold lands, &c. We do not, however, rely on that finding, as it is not incorporated into the present case. But we think the other circumstances sufficient, prima facie, to establish the right of the society as a corporation to hold lands; and particularly the lands in question. In Conard vs. The Atlantic Insurance Company, 1 Peters's Rep. 386, 450, the court held evidence, far less direct and satisfactory, prima facie evidence of the corporate character of the plaintiffs.A certificate ought accordingly to be sent to the circuit court in answer to the first question; that the plaintiffs have shown that they have a right to hold the lands in controversy. \nThe second point is, whether the plaintiffs are barred by the three years' limitation in the act of the 27th of October 1783, or any other statute of limitations of Vermont. \nThe act of 1785 recites in the preamble, that many persons have purchased supposed titles to lands within the state; and have taken possession and made large improvements, &c. It  then proceeds to provide in the first eight sections, for the allowance of improvements, &c. to the tenants, in cases of eviction under superior titles. There is a proviso which prevents these sections from extending to any thing future. The ninth section is as follows: \"provided always, and it is hereby further enacted by the authority aforesaid, that this act shall not extend to any person or persons settled on lands granted or sequestered for public, pious, or charitable uses; nor to any person who has got possession of lands by virtue of any contract made between him and the legal owner or owners thereof.\" The tenth section provides, that nothing in the act shall be construed to deprive any person of his remedy at law against his voucher. The eleventh and last section is as follows: \"that no writ of right or other real action, no action of ejectment or other possessory action of any name or nature soever, shall be sued, prosecuted or maintained for the recovery of any lands, tenements or hereditaments, where the cause of action has accrued before the passing of this act; unless such action be commenced within three years next after the 1st of July in the present year of our  lord, 1788.\" \n Now, in order to avail themselves of the statute bar under this last section, it is necessary for the defendants to show that the cause of action of the plaintiffs accrued before the passing of that act. To establish that, it is necessary to show that there had been an actual ouster of the plaintiffs, by some person entering into possession adversely to the plaintiffs. No such ouster is shown upon the facts. It is, indeed, stated, \"that Edward Clarke, the father of the said Ozias Clarke, went into possession of the said lot in the spring of the year 1780, it not appearing that he had purchased any title thereto; and so continued in possession thereof until the said defendant entered as aforesaid;\" that is under the lease of the town. Edward Clarke is therefore to be treated as a mere intruder, without title; and no ouster can be presumed in favour of such a naked possession. And it is not unworthy of notice, that the fourth section of the act of 1785 provided \"that no person, who hath ousted the rightful owner, or got possession of any improved estate by ouster, otherwise then by legal process, shall take any advantage or benefit by this act.\" So that  a plain intention appears on the part of the legislature not to give its protection to mere intruders, who designedly ousted the rightful owners. \nIt is also to be considered that the defendants do not assert any claim of title under him or in connexion with him; and the other circumstances of the case lead to the presumption, that he never set up any possession adverse to the society's rights; for the possession was yielded without objection to the town, when the act of 1794 enabled the town to assert a title to it. \nThe act of 1785, being then in terms applicable only to cases where the cause of action accrued before the passing of that act, cannot govern this case where no such cause existed. There is, moreover, another difficulty in setting it up as a bar, if the proviso of the ninth section extends, as we think it does, to every section of the act.It has been argued by the counsel for the defendants, that the ninth section ought to be restricted in its operation to the eight preceding sections. But we see no  sufficient reason for this. The words are \"that this act shall not extend,\" &c.; not that  the prior sections of this act shall not extend, &c. It  would be strange, indeed, if the legislature should interfere to prevent any improvements being paid for, in cases of lands granted or sequestered for public, pious, or charitable uses; and yet should allow so short a period as three years to bar, for ever, the right of the grantees for charity. There are good grounds why statutes of limitation should not be applied against grants for public, pious, and charitable uses, when they may well be applied against mere private rights. The public have a deep and permanent interest in such charities; and that interest far outweighs all considerations of mere private convenience. The legislature of Vermont has thought so; for we shall find, in its subsequent legislation, that it has by a similar provision excepted from the operation of all the subsequent statutes of limitation, grants to such uses. Thee is then no reason why the court should construe the words of the ninth section as less extensive than their literal import. The case ought to be very strong, which would justify any court to depart from the terms of an act; and especially to adopt a restrictive construction which is subversive of public rights, and justified by no known  policy of the legislature. We feel compelled, therefore, to construe the words, that \"this act shall not extend, &c.\" as embracing the whole act, and carving an exception out of the operation of the eleventh section of it. \nLet us then see how far any subsequent statute of limitations of the state applies to the case. The next statute in the order of time, is the act of the 10th of March 1787, which provided as follows: \"that no writ of right or other real action, no action of eiectment, &c. shall \"hereafter be sued, &c. for the recovery of any lands, &c. where the cause of action shall accrue after the passing of this act, but within fifteen years next after the cause of action shall accrue to the plaintiff or demandant, and those under whom he or they may claim. And that no person having a right of entry into any lands, &c. shall hereafter thereinto enter but within fifteen years after such right of entry shall accrue.\" This act contained no provision excepting grants for public, pious, or charitable uses from its operation. But it contained  a proviso that the act should not extend to bar any infant, person imprisoned, or beyond seas, without any of the United States.  The act was prospective, and applied only where the cause of action accrued after the passing of it. This act was superseded and repealed by another act of the 10th of November 1797, which constitutes the present governing statute of limitations of the state. It contains, however, a proviso (sec. 13) that the act shall not be construed to extend to or affect any right or rights, action or actions, remedies, fines, forfeitures, privileges, or advantages, accruing under any former act or acts, clause or clauses of acts falling within the construction of that act, in any manner whatsoever; but that all proceedings may be had, and advantages taken thereon, in the same manner as though that act had not been passed; and that the former act or acts of limitation, clause or clauses of acts, which are or were in force at the time of passing the act, shall, for all such purposes, be and remain in full force. This proviso preserved the operation and force of the act of 1787, as to causes of action accruing in the intermediate period between the act of 1787, and the act of 1797. \nIn this view of the matter, it is important to consider the entry of the defendant under the lease of the town,  on the 16th of April 1795. If that entry was adverse to the title of the plaintiffs, then the act of 1787 began to run upon it from that period; for the cause of action of the plaintiffs then accrued to them by the ouster. \nIt has been contended by the plaintiffs' counsel, that the entry of Clarke under the lease in 1795, was an entry for the plaintiffs, and in virtue of their title, and not adverse to it. We do not think so. The town of Pawlet claimed the right to the property, not as tenants to, or subordinate to the right of the plaintiffs; but as grantees under the state. Their title, though derivative from, and consistent with the original title of the plaintiffs, was a present claim in exclusion of, and adverse to the plaintiffs. They claimed the possession, as their own, in fee simple; and not as the possession of the plaintiffs. A vendee in fee derives his title from the vendor; but his title, though derivative, is adverse to  that of the vendor. He enters and holds possession for himself, and not for the vendor. Such was the doctrine of this court in Blight's Lessee vs. Rochester, 7 Wheat. Rep. 535, 547, 548. The lessee in the present case did not enter  to maintain the right of the plaintiffs, but of the town. He was not the lessee of the plaintiffs, and acquired no possession by their consent, or with their privity. This entry then was adverse to any subsisting title in them, and with an intention to exclude it. It was therefore, in every just sense, an entry adverse to, and not under the plaintiffs. \nThe case then falls within the act of 1787; and unless the plaintiffs are \"beyond seas\" within the proviso of that act, they would, upon the mere terms of that act, be barred. The facts stated upon the record, do not enable us to say whether there is absolute proof to that effect. The plaintiffs are a foreign corporation, the members of which are averred to be aliens and British subjects; and the natural presumption is, that they are resident abroad. If so, there cannot be a doubt, that they are within the exception. If any of the corporators were resident in the United States, then a nicer question might arise as to the effect of the proviso; whether it applied to the corporation itself, or to the corporators, as representing the corporation. But this it is unnecessary to devise; and on this we give no opinion. \nThere is the  less reason for it, because, by a subsequent act, passed on the 11th of November 1802, (long before the fifteen years under the act of 1787 had run,) it was provided \"that nothing contained in any statute of limitations heretofore passed, shall be construed to extend to any lands granted, given, sequestered or appropriated to any public, pious, or charitable uses; or to any lands belonging to this state. And any proper action of ejectment or other possessory action may be commenced, prosecuted, or defended for the recovery of any such land or lands, any thing in any act or statute of limitations heretofore passed to the contrary  notwithstanding.\" This act of course suspended the act of 1787, as to all cases within its purview. That the grants to the society for the propagation of the gospel were deemed to be grants for pious and charitable uses within it, is apparent  from the subsequent legislation of the state, as well as from the objects of the institution. In November 1819 the legislature passed an act repealing this exception, so far as related to the rights \"of lands in the state, granted to the society for the propagation of the gospel in foreign parts,\"  thus plainly declaring that they were previously protected by it. This repeal cannot have any retrospective operation, as to let in the general operation of the statute of limitations in the intermediate period between 1802 and 1819; but must upon principle be held to revive the statute only in future. The present suit was brought in 1824, and the statute period of fifteen years had not then run against the plaintiffs. \nIt is unnecessary to enter upon the consideration of the statute of limitations of 1797, which contains similar provisions as to this subject with that of 1787, and the exception of persons \"beyond seas.\" Charitable and pious grants were not excepted from its operation; but that defect was cured by an act passed on the 26th of October 1801, in terms similar in substance to those of the act of 1802, already referred to. The act of 1797, applies in terms only to future causes of action, to causes of action accruing after the passing of the act; and limits the action to the period of fifteen years. If it had applied to the present case, it would have been open to the same reasoning upon the exceptions, which have been already suggested in reference to the act of 1787. \n Upon this second question our opinion is, that a certificate ought to be sent to the circuit court, that the plaintiffs are not barred by the three years' limitation, in the act of the 27th of October 1785, or by any other of the statutes of limitations of Vermont. \nThe next point is, whether, under the laws of Vermont, the plaintiffs are entitled to recover mesne profits; and if so, for what length of time. \nPrevious to the year 1797, the English action of ejectment was in use in Vermont, and the common law applicable to it, as well as the action for mesne profits consequential upon recovery in ejectment. By an act passed on the 2d of March 1797, the mode of proceeding was altered. \n The suit was required to be brought directly between the real parties, and against both landlords and tenants; and by that and a subsequent act, the judgment was made conclusive between the parties. It was further provided, that in every such action, if judgment should be rendered for the plaintiff, he should recover, as well his damages, as the seisin and possession of the premises. This provision has ever since remained in full force, and has superseded in such cases the action for mesne  profits. In November 1800, an act was passed, declaring, \"that in all actions of ejectment which now are, or hereafter may be brought, the plaintiff shall recover nothing for the mesne profits, except upon such part of said improvements as were made by the plaintiff, or plaintiffs, or such person or persons under whom he, she or they hold.\" The act contained a proviso, that it should not extend to any person or persons in possession of any lands granted for public or pious uses. This act continued in force until November 1820, when an act passed containing the same general provision as to the mesne profits; but the proviso in favour of lands granted to pious and charitable uses was silently dropped, and must be deemed to be repealed by implication. \nThe question then is, whether the act of 1820 does not take away the right to mesne profits in this case; for the state of facts does not show that any improvements have ever been made by the plaintiffs. The treaty of peace of 1783, the British treaty of 1794, do not apply to the case. The right of action, if any, of the plaintiffs, did not accrue until the year 1795. The entry then made by the defendants was the first ouster: and  at that time, in the action of ejectment, the plaintiffs could not have recovered any damages; but would have been driven to an action of trespass for mesne profits. The legislature was competent to regulate the remedy by ejectment, and to limit its operation. It has so limited it. It has taken away by implication the right to recover mesne profits, as consequential upon the recovery in ejectment, and given the party his damages in the latter action. It has prescribed the restrictions upon which mesne profits shall be recovered; and these restrictions are obligatory  upon the citizens of the state. The plaintiffs have not, in this particular, any privileges by treaty beyond those of citizens. They take the benefit of the statute remedy to recover their right to the lands; and they must take the remedy with all the statute restrictions. \nUpon this last question our opinion is, that it ought to be certified to the circuit court, that under the laws of Vermont the plaintiffs are not entitled to recover any mesne profits; unless so far as they can bring their case within the provisions of the third section of the act of the 15th of November 1820. \nThis cause came on to  be heard on the transcript of the record, from the circuit court of the United States for the district of Vermont, and on the points or questions on which the judges of the said circuit court were opposed in opinion, and which points or questions were certified to this court for its opinion, in pursuance of the act of congress for that purpose made and provided, and was argued by counsel; on consideration whereof, it is ordered by this court, that it be certified to the said circuit court, on the points aforesaid, that this court is of opinion, 1. That the plaintiffs have shown that they have a right to hold lands, and especially the lands in controversy. 2. That the plaintiffs are not barred by the three years limitation in the act of the 27th of October 1785, or by any other of the statutes of limitations of Vermont. And, 3. That under the laws of Vermont, the plaintiffs are not entitled to recover any mesne profits, unless so far as they can bring their case within the provisions of the third section of the act of Vermond of the 15th of November 1820. All of which is accordingly hereby certified to the said circuit court of the United States for the district of Vermont. \n \n\n ", " \nOpinion \n\n \n \n  Mr Justice STORY delivered the opinion of the Court. \nThis is a writ of error to the circuit court of the district of Columbia, sitting in the county of Washington.The original action was brought by the plaintiff in error, to recover the amount of one half of the prize of twenty-five thousand dollars, which was  drawn in a lottery authorized by the corporation of Washington, by ticket No. 5591, of which the plaintiff asserted himself to be the owner and possessor in the manner hereafter stated. The declaration was for money had and received; and it was agreed by the parties to state a case, and if upon the case so stated, the court should be of opinion that the corporation were liable to the plaintiff for the half of the prize sued for, judgment should be rendered upon the declaration for the amount due him accordingly. It was further agreed that the question of the admissibility, competency, and sufficiency of the evidence to maintain the action, should be submitted to the court: and that in considering the evidence, the court should draw from it, so far as it was admissible and competent, every inference of fact and law which it would have been competent for a jury to have drawn from it. Upon this case the circuit court gave judgment for the corporation, and the present writ of error is brought to review that judgment. \nThe lottery was the same which was brought before this court for consideration in the case of Clark vs. The Corporation of Washington, 12 Wheat. 40; and the leading facts  being the same, it is unnecessary to do more than advert to those facts which are peculiar to this case, and furnish the ground of argument to distinguish it from the former. \nThe decision in that case was, that the lottery was the lottery of the corporation; that the tickets issued were the tickets of the corporation, contained a promise of the corporation,  made by its authorized agent to pay such prizes as should be drawn by them; that the sale of all the tickets in the lottery to Gillespie, under the contract made by him with the managers, was not a sale of an independent right to draw the lottery for himself, and on his own responsibility alone, but was in effect a sale of the profits of the lottery for a given sum. And the reasoning in the case shows that Gillespie became the absolute owner of all the whole tickets signed in behalf of the corporation and delivered to him, but not of those unsigned; and of course the possessors of such signed tickets, whether himself or subsequent purchasers, were entitled to the prizes drawn to them from the corporation as promisees. If, therefore, the plaintiff in the present case had been the possessor of the whole ticket which  drew the prize of twenty-five thousand dollars, he would have been clearly entitled to recover it from the corporation. But the whole ticket was in the hands of Gillespie, as possessor; and it was (as the state of the facts shows), delivered by him to the corporation, after the prize was drawn, without any notice on their part of any sub-interest in another; and that upon such delivery Gillespie received back from the corporation an equivalent value in securities; previously deposited by him with the corporation  for the payment of prizes. As between Gillespie and themselves, the corporation have paid the prize; they have paid it to the possessor according to the terms of the ticket; and the question is whether, under these circumstances, they are still liable to pay to the plaintiff as owner of the half ticket, one half of the amount, notwithstanding they had no notice of his interest or title. \nIt is in evidence in the case that all tickets sold in the lottery were sold by Gillespie, or his agents, and for his benefit; and all the moneys arising therefrom were received by him or his agents. This was on his part a proper proceeding; for by the very terms of the contract  he was entitled to all the tickets signed and delivered to him; and when he sold these tickets, he sold them as owner, on his own account, having already acquired a legal title thereto from the corporation. \nNo half or quarter tickets were ever signed or issued by the managers of the lottery, or any of them. But it is in evidence that one Webb, as clerk of Gillespie, was in the habit  of selling whole tickets, half tickets, and quarter tickets, and that, as the clerk of Gillespie, he sold to the plaintiff one half of the ticket No. 5591. The whole ticket No. 5591 was signed by the president of the board of managers. The half or sub-ticket, purchased by the plaintiff, was in the following terms: \"National Lottery, -- Gillespie's lottery office -- No. 5591. This ticket will entitle the possessor to one half of such prize as may be drawn to its number, if demanded within twelve months after the completion of the drawing; subject to a deduction of fifteen per cent; payable sixty days after the drawing is finished. Washington city, February 7th, 1821. D. Gillespie, per John F. Webb:\" and in the margin there was an abstract of the prizes to be drawn in the lottery. \nDoes  this sub-ticket constitute a contract by which the corporation were bound to pay half the prize to the possessor, or is it the mere private contract of Gillespie? Upon the face of the paper it purports to be a contract, not for or on behalf of the corporation, but for and in behalf of Gillespie, by his agent Webb? Gillespie, and not the corporation, promises to pay the half prize drawn to it. In what manner, then, can it bind the corporation? \nIn the first place, it was entirely competent for Gillespie to enter into such a contract on his own account. As owner and possessor of the whole ticket, if he had made sale of the whole, it would have been on his own account; for he who sells as owner cannot in any just use of language be said to sell as agent. He would have conveyed his own title, as he then held it, and not as agent of another. He would have substituted another as possessor and transferree, to whom the original promise of the corporation would then have attached.But Gillespie, as owner, had also a perfect right to sell any portion of such ticket, less than the whole. The party to whom he should sell would thus become a joint owner with him; but not a joint owner in  virtue of any new contract made by the corporation, but by Gillespie, in his own right, and on his own account. The corporation promise to pay the whole prize to the possessor of the whole ticket; but there is no promise on the face of the whole ticket that the corporation will pay any portion of the prize to any sub-holder of a  share; and it is not in the power of a party merely by his own acts to split up a contract into fragments, and to make the promisor liable to every holder of a fragment for his share. \nThe language of this court in Mandeville vs. Welch, 5 Wheat. 277, 286, leads to a very different conclusion. If this had been the case of a bank note payable to bearer, there is no pretence to say that a person claiming a moiety by contract with the bearer, could have maintained a suit against the bank upon such contract for the moiety; when the note itself had been surrendered up to the bank by the bearer. In what respect does such a case differ from the present? Suppose, after this sub-ticket was issued, Gillespie had sold and delivered the whole ticket to another person, having no notice; would not the latter have been entitled to recover the whole prize from  the corporation?If so, would the corporation still be liable to pay the half prize to the plaintiff? If not, in what respect does the case at bar differ in principle from that put; since, in legal effect, the prize has been paid to the real possessor of the whole ticket? By the contract contained on the face of the whole ticket, the corporation promised to pay the possessor of it the prize drawn by it. They have done so. How then can their liability upon the face of the instrument be extended to claims by persons entering into sub-contracts with the holder of the ticket? \nBut in the next place, it is said that Gillespie was the agent of the corporation in signing and issuing these sub-tickets, and that they are therefore evidence of a contract by the corporation with the holder of the sub-ticket, that the corporation will pay the proportion of the prizes drawn by them. Let us see how far this proposition is borne out by the evidence. In the first place, the only evidence of such a contract with the plaintiff, is the sub-ticket itself; and that, as we have seen, purports on its face to be a contract, not of the corporation, but of Gillespie. It is certainly very difficult to  maintain, that in a court of law any parol evidence is admissible substantially to change the purpose and effect of a written instrument, and to impose upon it a sense which its terms not only do not imply, but expressly repel. Even if it were otherwise, there is not the slightest evidence in this case that Webb was ever authorized by the corporation to be their agent for any purpose  whatsoever. On the contrary, Webb himself expressly states, that he issued and sold this sub-ticket, and signed the same, as clerk of, and for Gillespie; and he adds that all the tickets sold in the lottery were sold for the benefit of Gillespie. So that his own view of the matter is that he was the agent, not of the corporation, but of Gillespie. \nBut it has been argued that Gillespie was himself the agent of the corporation in the sale of the whole tickets, and by fair implication, in the sale of the sub-tickets also. If it were so, it would still be difficult to show that he had a right to delegate such authority to his clerk, or that without such delegation the act of the clerk bound the corporation; for the  general rule of law is, that a delegated authority cannot be delegated. \n But waiving any consideration of this point, let us see whether the evidence contains any such authority to Gillespie himself. In the first place, did he act as agent of the corporation in selling the whole tickets or as owner of them. The evidence in the case (as has been repeatedly stated) is that he was the owner of the whole tickets; that he sold them and received the moneys for them on his own account. And, if he was the owner, it is difficult to perceive, how he could act as agent of another in the sale of what was exclusively his own property. But the whole tickets were signed by the president of the managers, and with their consent; and thus bound the corporation as the act of their authorized agent. None of the sub-tickets were so signed or issued; but they were signed in behalf of Gillespie only. This alone shows that the managers did not contemplate the issue of any but whole tickets to bind the corporation. If they had contemplated any issue of sub-tickets, why were the latter not also signed by the president and delivered to Gillespie? \nThe contract between the managers and Gillespie does not contain any provision respecting the issue of sub-tickets; nor does it  appear that Gillespie ever requested the managers to sign or deliver any. But it is said that it may be inferred from the other circumstances of the case, that Gillespie was authorized to issue such sub-tickets; and the advertisements published in the papers by Gillespie, in which he announces the prizes, the names of the managers, and the offer of whole, half and quarter tickets for sale, raise an irresistible presumption of the  fact. We do not think so. Those circumstances are, to say the least, quite as consistent with the exercise of this right on his own account, as with the exercise of any right as agent of the corporation. He was owner of all the whole tickets; and he certainly had a right to dispose of them in any manner which he might deem best for his own interest, whether it was in wholes, or halves, or quarters, or any other sub-divisions. The corporation had no authority to obstruct or limit him in the full exercise of this right; and any contract which he should make with third persons for the sale of sub-interests in a single ticket, the corporation had as little to do with as they would have with a contract to sell a hundred or thousand tickets to the  same persons. Their contract was to pay the possessor of the whole ticket any prize which it might draw. Beyond that, they were not bound to inquire into or take notice of any sub-interest, whether equitable or legal, acquired under Gillespie. In point of fact it should seem, as well from Webb's testimony as from the conduct of Gillespie, that he so understood the matter; for there is no evidence that he ever made any returns to the managers of the issues of such sub-tickets, or in any other manner consulted them on the subject; or that they took any step to guard themselves from a double issue of the whole ticket, or of sub-tickets of the same number. When the managers took so much care to limit and control the issue of whole tickets, by refusing to sign them except as Gillespie furnished them with security for payment; is it to be believed, that they had yet entrusted him with an unlimited power to issue sub-tickets binding the corporation, which might and indeed would defeat the whole effect of these precautions? It seems to us not; and the very form of the subticket itself, is strong corroborative evidence to repel the presumption, that the corporation intended to bind themselves  otherwise than by the written signature of one of their own managers, who were specially deputed to conduct the sale and drawing of the lottery: and there is much reason to doubt if the managers could have deputed their rights or duties in this respect to any third person, so that he could enter into contracts for and to bind the corporation. \nUpon the whole, it is the opinion of the court, that the plaintiff in this case is not entitled to recover, his contract  not being with the corporation or their agent, but solely with Gillespie. \nThis view of the case renders it unnecessary to consider the other question made at the bar, whether the lottery was or was not illegal in its scheme and origin. \nThis case has come before the court under an unusual agreement of the parties, by which matters of fact properly cognizable by a jury, are submitted to our judgment. We desire to be understood as not admitting that it is competent for the parties by any such agreement to impose this duty upon the court. The peculiar circumstances of this case furnish a sufficient apology for this agreement. But it is not to be drawn into precedent. \nThe judgment of the circuit court is affirmed,  wity costs. \nThis cause came on to be heard on the transcript of the record from the circuit court of the United States for the district of Columbia, holden in and for the county of Washington, and was argued by counsel; on consideration whereof, it is considered, ordered and adjudged by this court, that the judgment of the said circuit court in this cause be, and the same is hereby affirmed, with costs. \n \n\n ", " \nOpinion \n\n \n \n  Mr Justice STORY delivered the opinion of the Court. \nThis is a writ of error to the circuit court of the district of Columbia, sitting at Washington. The original action was brought by the United States upon a bond executed by Lewis Deblois, and by Thomas Tingey and others as his sureties, on the 1st of May 1812, in the penal sum of ten thousand dollars, upon condition that if Deblois should regularly account, when thereto required, for all public moneys received by him from time to time, and for all public property committed to his care, with such person or persons, officer or officers of the government of the United States as should be duly authorised to settle   and adjust his accounts, and should moreover pay over, as might be directed, any sum or sums that might be found due to the United States upon any such settlement or settlements, and should also faithfully discharge, in every respect, the trust reposed in him, then the obligation to be void, &c. In point of fact, Deblois was at the time a purser in the navy, though not so stated in the condition; and there is an indorsement upon the bond, which is averred in one of the counts of the declaration to have been contemporaneous with the execution of the bond, which recognizes his character as purser, and limits his responsibility as such; and the bond was unquestionably taken, as the pleadings show, to secure his fidelity in office as purser. \nThe declaration contains two counts: one in the common form for the penalty of the bond; and a second setting forth the bond, condition and indorsement, and averring the character of Deblois, as purser, his receipt of public moneys, and the refusal to account, &c. in the usual form. \nSeveral pleas were pleaded, upon some of which issues in fact were joined. To the third, fourth, fifth, sixth and eighth pleas, the United States demurred,  and judgment upon the demurrers was given for the defendant in the circuit court; and the object of the present writ of error is to revise that judgment. \nThere is no statute of the United States expressly defining the duties of pursers in the navy. What those duties are, except so far as they are incidentally disclosed in public laws, cannot be judicially known to this court. If they are regulated by the usages and customs of the navy, or by the official orders of the navy department, they properly constitute matters of averment, and should be spread upon the pleadings. It may be gathered, however, from some of the public acts regulating the departments, that a purser, or as the real name originally was, a burser, is a disbursing officer, and liable to account to the government as such. The act of the 3d of March 1809, ch. 95, sec. 3, provided, that, exclusively of the purveyor of public supplies, paymasters of the army, pursers of the navy, &c., no other permanent agents should be appointed either for the purpose of making contracts, or for the purchase of supplies, or for the disbursement in any other manner of moneys for the use of the military establishment, or   of the navy of the United States; but such as should be appointed by the president of the United States with the advice and consent of the senate.  And the next section (s. 4) of the same act provided that every such agent, and every purser of the navy should given bond, with one or more sureties, in such sums as the president of the United States should direct, for the faithful discharge of the trust reposed in him; and that, whenever practicable, they should keep the public money in their hands in some incorporated bank, to be designated by the president, and should make monthly returns to the treasury of the moneys received and expended during the preceding month, and of the unexpended balance in their hands. This act abundantly shows that pursers are contemplated as disbursing officers and receivers of public money, liable to account to the government therefor. The act of the 30th of March 1812, ch. 47, made some alterations in the existing law, and required that the pursers in the navy should be appointed by the president, by and with the advice and consent of the senate; and that from and after the 1st day of May then next, no person should act in the character of  purser who should not have been so nominated and appointed, except pursers on distant service, &c.; and that every purser, before entering upon the duties of his office, should give bond with two or more sufficient sureties, in the penalty of ten chousand dollars conditioned faithfully to perform all the duties of purser in the navy of the United States. This act, so far as respects pursers giving bond, and the imports of the condition, being in pari materia, operates as a virtual repeal of the former act. The subsequent legislation of congress is unimportant; as it does not apply to the present case. \nIt is obvious that the condition of the present bond is not in the terms prescribed by the act of 1812, ch. 47, and it is not limited to the duties or disbursement of Deblois as purser, but creates a liability for all moneys received by him, and for all public property committed to his care, whether officially as purser, or otherwise. \nUpon this posture of the case a question has been made and elaborately argued at the bar, how far a bond voluntarily given to the United States, and not prescribed by law, is a valid instrument, binding upon the parties in point of law; in other   words, whether the United States have, in their political capacity, a right to enter into a contract, or to take a bond in cases not previously provided for by some law. Upon full consideration of this subject, we are of opinion that the United States have such a capacity to enter into contracts. It is in our opinion an incident to the general right of sovereignty; and the United States being a body politic, may, within the sphere of the constitutional powers confided to it, and through the instrumentality of the proper department to which those power are confided, enter into contracts not prohibited by law, and appropriate to the just exercise of those powers. This principle has been already acted on by this court in the case of Dugan, Exec. vs. The United States, 3 Whest. Rep. 172; and it is not perceived that there lies any solid objection to it. To adopt a different principle, would be to deny the ordinary rights of sovereignty, not merely to the general government, but even to the state governments within the proper sphere of their own powers, unless brought into operation by express legislation. A doctrine, to such an extent, is not known to this court as ever having been  sanctioned by any judicial tribunal. \nWe have stated the general principle only, without attempting to enumerate the limitations and exceptions, which may arise from the distribution of powers in our government, or from the operation of other provisions in our constitution and laws. We confine ourselves in the application of the principle to the facts of the present case, leaving other cases to be disposed of as they may arise; and we hold that a voluntary bond taken by authority of the proper officers of the treasury department, to whom the disbursement of public moneys is entrusted, to secure the fidelity in official duties of a receiver or an agent for disbursery of public moneys, is a binding contract between him and his sureties, and the United States; although such bond may not be prescribed or required by any positive law. The right to take such a bond is in our view an incident to the duties belonging to such a department; and the United States having a political capacity to take it, we see no objection to its validity in a moral or a legal view. \nHaving disposed of this question, which lies at the very threshold of the eause, and meets us upon the face of the second   count in the declaration, it remains to consider whether any one of the pleas demurred to constitutes a good bar to the action. \nWithout adverting to others, which are open to serious objections on account of the looseness and generality of their texture, we are of opinion that the fifth plea is a complete answer to the action. That plea, after setting forth at large the act of 1812 respecting pursers, proceeds to state that before the execution of the bond, the navy department did cause the same to be prepared and transmitted to Deblois, and did require and demand of him that the same, with the condition, should be executed by him with sufficient sureties, before he should be permitted to remain in the office of purser, or to receive the pay and emoluments attached to the office of purser; that the condition of the bond is variant, and wholly different from the condition required by the said act of congress, and varies and enlarges the duties and responsibilities of Deblois and his sureties; and \"that the same was under colour and pretence of the said act of congress, and under colour of office required and extorted from the said Deblois, and from the defendant, as one of his sureties,  against the form, force and effect of the said statute, by the then secretary of the navy.\" \nThe substance of this plea is, that the bond, with the above condition, variant from the prescribed by law, was under colour of office extorted from Deblois and his sureties, contrary to the statute, by the then secretary of the navy, as the condition of his remaining in the office of purser, and receiving its emoluments. There is no pretence then to say that it was a bond voluntarily given, or that though different from the form prescribed by the statute, it was received and executed without objection. It was demanded of the party, upon the peril of losing his office; it was extorted under colour of office, against the requisitions of the statute.  It was plainly then an illegal bond; for no officer of the government has a right, by colour of his office, to require from any subordinate officer, as a condition of holding office, that he should execute a bond with a condition different from that prescribed by law.That would be, not to execute, but to supersede the requisitions of law. It would be very different where such a bond was by mistake  or otherwise voluntarily  substituted by the parties for the statute bond, without any coercion or extortion by colour of office. \nThe judgment of the circuit court is affirmed. \nThis cause came on to be heard on the transcript of the record from the circuit court of the United States for the district of Columbia, holden in and for the county of Washington, and was argued by counsel. On consideration whereof, it is considered, ordered and adjudged by this court, that the judgment of the said circuit court in this cause be and the same is hereby affirmed. \n \n\n ", " \nOpinion \n\n \n \n  Mr Justice STORY delivered the opinion of the Court. \nThe plaintiff in error brought an action of ejectment in the circuit court for the county of Washington, in the district of Columbia, to recover a certain lot of land in the city of Washington. The general issue was pleaded; and upon the trial, the jury found a verdict for the defendant, upon which judgment was rendered in his favour. Upon that judgment the present writ of error has been brought. \nAt the trial several exceptions were taken, by the plaintiff, to the opinions expressed or refused by the court. As to some of these exceptions, which are thus brought before us, it is unnecessary to decide whether they are well or ill founded; because, in the progress of the cause, it is apparent, that they worked no ultimate injury to the plaintiff, since, independently of the matters therein stated, it is admitted upon the record, that the plaintiff made out a good title in his lessor, which was all which the plaintiff  proposed to establish by them. And we wish it to be understood as a general rule, that where there are various bills of exceptions filed according to the local practice, if in the progress of the cause the matters of any of those exceptions become wholly immaterial to the merits, as they are finally made out at the trials, they are no longer assignable as error; however they may have been ruled in the court below. There must be some injury to the party, to make the matter generally assignable as error. Upon this ground, we shall pass over the exceptions taken to the ruling of the court in the preliminary stages of the cause, as to the title of the lessor of the plaintiff. \nAnother exception is founded upon the refusal of the court to admit the parol evidence of a witness, who was not present at the survey returned in the cause, to establish the fact, that the lessor of the plaintiff was, in the month of October 1794, in possession of the land designated by certain lines and letters on the plot, and demanded in the action, under the claim of title. \nThe ground of the decision of the court was, that such evidence was not competent, except from a witness who had been on the survey;  and this decision is attempted to be sustained by the local practice of Maryland in like cases. We have examined the cases which were referred to at the bar. They  do not appear to us to be all easily reconcilable with each other. It may perhaps be gathered from them, that no evidence can be admitted of the location of any line, boundary or object, not laid down on the plots of resurvey; and that a witness who was not present at the resurvey, is not competent to give evidence as to the lines, objects and boundaries laid down on such plots. See M'Henry on Ejectment, ch. 3, p. 208 to 216, and cases there cited. These rules appear to rest on artificial reasoning, and a course of practice peculiar to Maryland. But we do not find it any where decided, that no testimony is admissible to prove a possession of the land within the lines of the party's claim laid down in the plot, except the testimony of some witness, who  was present at the resurvey; and some of the cases certainly show that possession may be proved within the lines of the plot, although the particular marks or places of possession are not designated thereon. See Carroll vs. Norwood, 1 Har. and Johns.  Rep. 167. Hawkins vs. Middleton, 2 Har. and M'Hen. 119. It is unnecessary to consider, whether upon a general question of the competency of evidence in respect to lands in this district, this court would follow all the decisions of Maryland, introduced as a part of their local practice in ejectment. We are not satisfied that any such rule exists as that contended for by the defendant in error; and upon the general principles of the law of evidence, the testimony of the witness which was objected to was clearly admissible. The plaintiff had a right to prove his possession by any competent witness, whether he was present at the resurvey or not. His testimony might not on that account be so satisfactory or decisive; but it was nevertheless proper for the consideration of the jury. The court erred therefore in rejecting it. \nThe subsequent exceptions may be considered together. The language of the bill is, that the plaintiff then gave in evidence, without objection, a copy of the original patent or grant from the lord proprietor of the province of Maryland, dated the 5th of July 1686, and by sundry mesne conveyances, devises and descents, gave evidence of a good title in the lessor  of the plaintiff, in the month of October in the year 1794. Whereupon the defendant offered to read in evidence to the jury, for the purpose of showing that the title to the  lot in question was out of the lessor of the plaintiff after the year 1794, a paper purporting to be a copy of certain proceedings under the bankrupt law of the United States, admitted to be only authenticated (annexing the copy); and a deed from the persons therein named, as commissioners of bankruptcy, to Edward S. Burd, and a deed from the said commissioners to John Miller, Jun; to the admission of which, in evidence, the counsel for the plaintiff objected: and the court sustained the objection as to the two deeds. And thereupon the defendant prayed the court to instruct, and the court did instruct the jury, that by the proceedings in bankruptcy, Greenleaf, the lessor of the plaintiff, was divested of the legal title in and to the lot in controversy, and that the said legal estate was thereby vested in the commissioners of bankruptcy: and rejected the said deeds as any evidence in the said cause. \nWhereupon the plaintiff, in addition to the evidence aforesaid, offered to read in evidence to the  jury, the said two deeds in the said proceedings mentioned, from the said commissioners of bankruptcy to the said Edward S. Burd, and the said deed from the said commissioners and the said Edward Burd to the said John Miller; and also a copy of a deed duly authenticated from Miller to Samuel Eliot, and a copy of a deed duly authenticated from Eliot to Greenleaf (the lessor of the plaintiff), all which copies were objected to, and the court refused to permit the plaintiff to read them in evidence to the jury. \nIt is not one of the least curious circumstances of this cause, that copies of the same deeds were alternately offered as evidence, for the same purpose, by each of the parties, and succssively objected to by the other, and rejected by the court. In the ordinary course of things, the party offering such evidence is understood to wave any objection to its competency as proof. But, without insisting upon this consideration, it is manifest, that if the proceedings in bankruptcy admitted by the court were competent evidence at all, they established the fact not only of the bankruptcy of Greenleaf, and the issuing of a commission against him, and the appointment of commissioners,  but also of an assignment of his estate by them, first to Burd, and afterwards to Miller. The proceeding are not given at large; but among them is a transcript of the doings of  the commissioners at a meeting held on the 11th of January 1803, at which the commissioners certify that a majority of the creditors had removed Burd, at his own request, and appointed Miller assignee of the bankrupt's effects in his stead: and also at a meeting on the 17th of March 1804, at which the commissioners certify that they executed an assignment of all the estate and effects of the bankrupt to Miller, calling him \"John Miller, Jun. of the city of Philadelphia, merchant.\" We must take these proceedings, if at all, together; and if in virtue of the bankruptcy of Greenleaf his estate became ipso facto vested in the commissioners, (on which, in our view of the case, it is unnecessary to decide) the same proceedings prove an assignment from them to Miller, of the same estate. It is not competent for a party to insist upon the effect of one part of the papers constituting his own evidence, without giving the other party the benefit of the other facts contained in the same papers. We think  then, that the assignment to Burd and Miller were sufficiently in evidence upon the defendant's own proofs, to entitle the plaintiff to deduce his title to the lot in controversy, without the introduction of the copies of the deeds of assignment, which were offered and rejected. The question then is reduced to this, whether the deed from Miller to Eliot was entitled to be read in evidence; for no specific objection is taken to that from Eliot to Greenleaf. \nTwo objections have been taken to the deed from Miller to Eliot. The first is, that it does not appear that Miller is a non-resident, so as to entitle the deed to registration, upon an acknowledgemnt to be made by a letter of attorney, in the manner pointed out by the registration act of Maryland of 1766, chap. 14, sec. 4.But we are of opinion that the nonresidence is sufficiently apparent from the form of the papers. Miller is stated in the bankrupt proceedings to be a merchant of Philadelphia, and in his deed to Eliot he describes himself to be \"of the city of Philadelphia;\" and there is not the sligtest evidence in the case to overcome the natural presumption of non-residency arising from these facts. \nThe next objection is,  that the power of attorney given by Miller to William Brent and John G. M'Donald, to make an acknowledgement of the deed before some proper magistrate, with a view to its registration; did not authorize the acknowledgement  as it was in fact made. The power of attorney constitutes  them \"to be the lawful attorney or attorneys\" for Miller, and in his name to make the acknowledgement. They severally appeared before different magistrates (who were duly authorized), at several times, and made a several acknowledgement in the name of their principal. The argument is, that the power was joint and not several, and that therefore the execution should have been by a joint acknowledgement before the same magistrate. In our opinion, the true construction of the power is, that it vests a several as well as a joint authority in the attorneys. They are appointed the \"attorney or attorneys;\" and if the intention had been to give a joint authority only, the words \"attorney\" and \"or\" would have been wholly useless. To give effect then to all the words, it is necessary to construe them distributively; and this is done by the interpretation before stated. They are appointed  his attorneys, and each of them is appointed his attorney, for the purpose of acknowledging the deed. \nUpon these grounds we are of opinion, that the judgment of the court below ought to be reversed; and that the cause be remanded, with directions to award a venire facias de novo. \nThis cause came on to be heard on the transcript of the record from the circuit court of the United States for the district of Columbia, holden in and for the county of Alexandria, and was argued by counsel; on consideration whereof, it is considered, ordered and adjudged by this court, that there was error in the circuit court, in the refusal by the court of the parol evidence offered by a competent witness who was not present at the survey, that the lessor of the plaintiff was in the month of October 1794 in the possession of the land designated by the lines E. S. G. which was demanded in the action, and designated on the plot in the case by lot number 16 in square number 75, under the claim of title as set forth in the bill of exception: and also in refusing to admit the copy of the deed of John Miller, Jun. to Samuel Eliot, Jun., and from said Eliot to James Greenleaf, the lessor of the plaintiff, in  evidence, as is set forth in the bill of exceptions, after the said circuit court  had admitted in evidence the proceedings in bankruptcy in the same bill of exceptions set forth. It is therefore considered, ordered and adjudged by this court, that the judgment of the said circuit court in this cause be, and the same is hereby reversed, and that this cause be and the same is hereby remanded, with directions to the said circuit court to award a venire facias de novo. \n \n\n ", " \nOpinion \n\n \n \n  Mr Justice STORY delivered the opinion of the Court. \nThis case comes before the court by a writ of error from the circuit court for the district of Georgia.  The original action was an ejectment brought by the plaintiff in error against the defendants; and at the trial in November term 1829 a bill of exceptions was taken, which raises the onlyquestions which are now before us for consideration. \nThe bill of exceptions states that the plaintiff offered in evidence, in support of his title, an exemplification, under the seal of the state of Georgia, of a grant or patent to Basil Jones, of a tract of seven thousand three hundred acres of land, dated the 24th of May 1787, and registered the 5th of June of the same year, in the registry of grants in the secretary of state's office. The defendants objected that the exemplification could not be received, until the original patent was  proved to be lost or destroyed, or the non-production thereof otherwise legally explained or accounted for; which objection the court sustained, and rejected the evidence. The plaintiff then exhibited a notice served on the opposite party to produce the original grant, and also an original power of attorney from Basil Jones to Thomas Smyth, jun. dated the 6th of August 1793, to sell and convey (among other tracts) the tract in question. And also offered  an affidavit, duly sworn to by the plaintiff in October 1821, that he had not in his possession, power, or custody, the said original grant, or power of attorney, and knew not where they were; and that he had made diligent search among his papers for the said grant and power, and they could not be found. He further offered depositions to prove, that search had been made for the papers of Thomas Smyth, by whom, as attorney in fact of Jones, the land had been conveyed to Patterson, and that no papers could be found. He further proved that he had made search for the original grant or patent in the office of the secretary of state, and the book or register of surveys, in the office of the surveyor general of Georgia, and that the same could not be there found. And he further proved, by a witness, that the exemplitication was a true copy from the register of grants and plots in the said offices. He further proved that search had been made among the papers of Basil Jones, in the possession of his widow; and among the papers of George Walker, deceased, who, as counsel for the plaintiff, had once had the muniments of his, the plaintiff's, title in his possession; and also in the office  of the clerk of Rickhmond superior court, where the power of attorney was recorded: but without success. He also proyed that he had by public advertisement, in two gazettes of the state of Georgia, offered a reward for the production of the said grant or patent, but no discovery had been made; and that he had searched the executive office of Georgia for the same, and had examined the list of grants or patents, to which the great seal of the state had been refused to be annexed, but the grant to Jones was not found noted upon that list as one of that description. And the plaintiff then moved the court to admit the said exemplification in evidence, the loss or destruction of the original having been sufficiently proved; which the court refused. The plaintiff excepted to the ruling of the court upon both points. \n The first exception presents the question whether the exemplification under the great seal of the state was, per se, evidence, without producing or accounting for the non-production of the original; and we are of opinion that it was. The common law is the law of Georgia; and the rules of evidence belonging to it are in force there, unless so far as they have been  modified by statute, or controlled by a settled course of judicial decisions and usage. Upon the present question it does not appear that Georgia has ever established any rules at variance with the common law; though it is not inprobable that there may have been, from the peculiar organization of her judicial department, some diversity in the application of them in the different circuits of that state, acting, as they do, independent of each other, and without any common appellate court to supervise their decisions. \nWe think it clear, that by the common law as held for a long period, an exemplification of a public grant under the great seal, is admissible in evidence, as being record proof of as high a nature as the original. It is a recognition, in the most solemn form, by the government itself, of the validity of its own grant, under its own seal; and imports absolute verity as matter of record. \nThe authorities cited at the bar fully sustain this doctrine. There was in former times a technical distinction existing on this subject, which deserves notice. As evidence, such exemplifications of letters patent seem to have been generally deemed admissible. But where, it pleading,  a profert was made of the letters patent, there, upon the principles of pleading, the original under the great seal was required to be produced: for a profert could not be of any copy or exemplification. It was to cure this difficulty that the statutes of 3 Edw. VI. ch. 4, and 13 Elizab. ch. 6, were passed, by which patentees, and all claiming under them,  were enabled to make title in pleading by showing forth an exemplification of the letters patent, as if the original were pleaded and set forth. These statutes being passed before the emigration of our ancestors, being applicable to our situation, and in amendment of the law, constitute a part of our common law. A similar effect was given by the statute of 10 Anne, ch. 18, to copies of deeds of bargain and sale, enrolled under the statute of Henry VIII. when offered  by way of profert in pleading; and since that period, a copy of the enrolment of a bargain and sale is held as good evidence as the original itself. 1 Phillips on Evidence, ch. 5, § 2, p. 208 to 302; ch. 8, § 2, p. 252 to 356; 408 to 411. Bac. Abridg. title Evidence, F. p. 610, 611, 646. Com. Dig. Evidence, A. 2. 1 Starkie on Evidence, §  33, p. 152. 2 Saund. on Pleading and Evidence, 638. Page's Case, 5 Co. R. 53. 12 Viner's Abridg. title Evidence, A. b. 25, p. 97; A. b. 33, p. 114. 1 Saund. R. 189, note 2. \nSuch, then, being the rule of evidence of the common law, in respect to exemplifications under the great seal of public grants, the application of it to the case now at bar will be at once perceived; since, by the laws of Georgia, all public grants are required to be recorded in the proper state department. \nThe question presented by the other exception is, whether under all the circumstances of the case (even supposing the exemplification of the grant had not been admissible in evidence, upon the principles already stated) there was not sufficient proof of the loss of the original to let in the secondary evidence by a copy of the grant. It is understood that the court decided this point wholly upon the ground that the affidavit of Patterson did not conform to a rule made by the court in December 1823. That rule is in the following words: \"whenever a party wishes to introduce the copy of a deed or grant in evidence, the oath of the party stating his belief of the loss or destruction of the original, and that  it is not in his possession, power, or custody, shall be indispensable in aid of such evidence as he may adduce to prove the loss.\" Patterson's affidavit was made before the making of this rule (in 1821); and the defect in it is, that it does not contain any declaration of his belief as to the loss or destruction of the original. \nIt might not be important to decide this point, if it were not understood that the same objection applied to the copy of the power of attorney in the case, as to the copy of the grant. We think that the affidavit and other circumstances of the case, were sufficient to let in the secondary evidence. The grant and power of attorney were of an ancient date; the former being more than forty years old, and the latter but a little short of that period since the execution. Some presumption  of loss might naturally arise under such circumstances from the mere lapse of time. There appeared also to have been a very diligent search in all the proper places, and among all the proper persons, connected with the transactions, to obtain information of the existence or loss of the papers. The affidavit of Patterson explicity denied any knowledge where they  were; and declared, that they were not in his possession, power, or custody. We think that according to the rules of evidence at the common law, this preliminary proof afforded a sufficient presumption of the loss or destruction of the originals to let in the secondary proof; and that it was not competent for the court to exclude it by its own rule. However convenient the rule might be to regulate the general practice of the courts, we think, that it could not control the rights of the parties in matters of evidence, admissible by the general principles of law. \nThe judgment must therefore be reversed, and the cause remanded to the circuit court, with directions to award a venire facias de novo. \nThis cause came on to be heard on the transcript of the record from the circuit court of the United States for the district of Georgia, and was argued by counsel; on consideration  whereof, it is considered and ordered by this court that the circuit court erred in refusing to allow the exemplification of the grant to Basil Jones mentioned in the record to be read in evidence as in the exceptions of the plaintiff is mentioned. Whereupon it is ordered and adjudged by this court  that the judgment of the said oircuit court in this cause be, and the same is hereby reversed, and that this cause be and the same is hereby remanded to the said circuit court, with instructions to award a venire facias de novo. \nDissent by:", " \nOpinion \n\n \n \n  Mr Justice STORY delivered the opinion of the Court. \nThis is an appeal from a pro forma decree of the circuit court of the district of Maryland, in a case in admiralty, for mariners' wages. The original libel (which was filed in December 1810) was against the owners in personam; alleging among other things, that the libellants (six in number) shipped on bound the Warren in August 1806, to perform a voyage from Baltimore to the northwest coast, thence to Canton in the East Indies, and thence back again to Baltimore; that they proceeded on the voyage; but that with the privity and consent of the owners the ship deviated, without any justifiable cause, from the voyage, and arrived at Conception Bay on the coast of Chili, for the purpose of carrying on an illicit trade against the colonial laws of Spain; that the vessel was there  seized by the Spanish authorities,  and finally decreed to be forfeited; the crew were taken on shore and held for a great length of time in imprisonment; and afterwards, having effected their escape, arrived in the United States in 1810. The owners appeared and made a defensive answer; which was excepted to, and afterwards amended. Some testimony was taken; but no further proceedings appear to have been had until October 1818, when an amended libel was filed by the libellants and others (in all fifty-seven persons); and in June 1819 another amended libel by another of the seamen. The only allegation in these supplements which it is material to mention is, that the owners had received the whole or a part of the proceeds of the ship and cargo. At a later period in the year 1819, all the owners became insolvent. In December 1819, Lemuel Taylor (one of the owners) assigned to Robert Oliver all his interest in the proceeds of the Warren and cargo, whenever recovered; in November 1820, Smith and Buchanan (two other owners) assigned, among other things, all their interest in the proceeds of the ship and cargo to Jonathan Meredith and Thomas Ellicott, in trust for the Bank of the United States and other creditors; and  in May 1821, Hollins and M'Blair, the other owners, assigned all their interest in the proceeds of the ship and cargo to the Union Bank: all these assignments were made to secure debts antecedently due. Long before these assignments, to wit in June 1815, the owners had procured from the king of Spain a royal order for the restitution of the ship and cargo. But no restitution having been in fact made, the assignees laid their claim before the commissioners appointed under the treaty with Spain of 1819, commonly called the Florida treaty; and the commissioners in 1824 awarded them compensation as follows: for the ship Warren twenty-five thousand dollars; for the cargo, one hundred and twenty-five thousand one hundred and thirty-one dollars and ninety-three cents; and for the freight thirteen thousand eight hundred and sixty dollars. This amount was accordingly paid to them by the United States. In December 1825, the libellants filed a new libel by way of petition against the owners, and against their assignees, setting forth their grievances in a more aggravated form; and alleging the award and receipt of the proceeds  by the assignees, and the promises of the owners to  indemnify and pay them out of the proceeds, whenever recovered, to the full amount of their wages; and accounting for their not having proceeded to a decree in personam, against the owners; except so far as to have a docket entry, in June 1822, of a \"decree on terms to be filed\" (which was afterwards rescinded), solely upon the faith of those promises; and praying process against the owners, and also against the assignees, to pay them the amount out of the proceeds in their hands. Answers were duly filed by the owners and the assignees; the former asserting that they had parted with all their interest in the funds; and the latter asserting their exclusive title to the same under the assignments, and denying any knowledge of any agreement of the owners in respect to the claim of wages, or of the other matters stated in the petition. \nFurther testimony was taken; and finally, by consent of the parties at May term 1828, a decree pro forma passed, affirming the decree of the district court, dismissing the libels and petition exhibited in the cause: from which decree the case now stands upon appeal before this court. \nSuch is a very brief statement of the principal  proceedings  in this protracted suit: in its duration almost unparalleled in the annals of the admiralty; whose anxious desire and boasted prerogative it is to administer justice, as the metaphor is, velis levatis. A great portion of the delay (which would otherwise seem a reproach to our law), can be attributed to no other cause than the voluntary acquiescence of all the parties, under the peculiar circumstances growing out of new emergencies in its progress. \nThe cause has been most elaborately and learnedly argued at the bar, upon a variety of points suggested by the different postures of the case. The view, however, taken by us of the merits, renders it wholly unnecessary for us to go into any examination of many of these points; and this opinion will be accordingly confined to those only which are indispensable to a decision; and which, we trust, after such a lapse of time will prove a final decision. \nThe first question is, whether in point of fact the libellants have substantially sustained the allegations in the libels and  petition in respect to the voyage; to their ignorance of the intended illicit trade; to the seizure of the ship and to their own imprisonment and separation  from it: which are necessary to maintain their claim for wages. And we are of opinion that the evidence upon these points is conclusive. Without going into the particulars, it may be said that few cases could be presented under circumstances of more aggravation; and in which the proofs were more clear, that the seamen were the victims of an illicit voyage, for which they never intended to contract, and in which they had no voluntary participation. \nSuch then being the state of the facts, the law upon the subject is very clear.It is, that the seamen are entitled to full wages from the time of their shipping on the voyage, to the time of their return to the United States; deducting their advance wages, and whatever they have earned (if any) in any intermediate employment. This is the general rule in courts of admiralty in cases of this nature; where the libel seeks nothing beyond compensation in the nature of wages. To this extent the seamen are entitled to a decree against the owners. But they being insolvent, it becomes necessary to inquire whether they have not also a remedy against the assignees holding the proceeds of the ship, cargo, and freight in their hands. \nIf the ship  had been specifically restored, there is no doubt that the seamen might have proceeded against it in the admiralty in a suit, in rem, for the whole compensation due to them. They have by the maritime law an indisputable lien to this extent. This lien is so sacred and indelible, that it has, on more than one occasion, been expressively said, that it adheres to the last plank of the ship. 1 Peters's Adm. Rep. note, 186, 195. 2 Dodson's Rep. 13. The Neptune, 1 Hagg. Adm. Rep. 227 , 239. \nAnd, in our opinion, there is no difference between the case of a restitution in specie of the ship itself, and a restitution in value. The lien reattaches to the thing and to whatever is substituted for it. This is no peculiar principle of the admiralty. It is found incorporated into the doctrines of courts of common law and equity. The owner and the lien holder, whose claims have been wrongfully displaced, may follow the proceeds wherever they can distinctly trace them. In respect,  therefore, to the proceeds of the ship, we have no difficulty in affirming that the lien in this case attaches to them. \nIn respect to the freight, there is more room for argument. That there is an  intimate connexion between the freight and the wages; that the right to the one is generally, though not universally, dependent upon the other; is doctrine familiar to all those who are conversant with maritime law: and has given rise to the quaint expression, that freight is the mother of wages. Indeed, freight being the earnings of the ship in the course of the voyage, it is the natural fund out of which the wages are contemplated to be paid; for though the ship is bound by the lien of wages, the freight is relied on as the fund to discharge it, and is also relied on by the master to discharge his personal responsibility. We think, then, that this relation between the freight and wages does, by the principles of the maritime law, create a claim or privilege in favour of the seamen, to proceed against it under the circumstances of the present case. \nHere, the owner of the ship is also owner of the cargo. There has been an award allowing the assignees freight, as a distinct item; and the owners are insolvent. If the master of the ship were living, he would have a direct lien upon the freight for his disbursements, and liability for wages; and through him the seamen would have the  means of asserting a claim on it. We can perceive no principle then, why, in the present case, the seamen may not justly assert a claim on the freight; if the proceeds of the ship are exhausted, without satisfying the amount of their wages. No authority has been produced against it; and we think it justly deducible from the general doctrines of the maritime law on this subject. \nIt has been argued that the admiralty has no jurisdiction in this case; but we are of opinion that the objection is unfounded. Over the subject of seamen's wages, the admiralty has an undisputed jurisdiction, in rem, as well as in personam; and wherever the lien for the wages exists and attaches upon proceeds, it is the familiar practice of that court to exert its jurisdiction over them, by way of monition to the parties holding the proceeds. This is familiarly known in the cases of prize, and bottomry, and salvage; and is equally applicable to the case of wages. \n In respect to the claim of the assignees to hold the proceeds for their exclusive use, as bona fide purchasers; we think it cannot be maintained in point of law. In respect to the ship and its proceeds, they stand in no better situation  than the original owners. They take the title, cum onere. The lien will follow the ship, and its proceeds, into whosever hands they may come by title or purchase from the owner. In respect to the freight, the same consideration does not necessarily apply. But here the assignees (though there is no doubt that they are bona fide holders) have taken their assignments as mere securities for antecedent debts; and had either actual or constructive notice of the claims of the seamen, when they received their conveyances. There was not only the lis pendens  to affect them with constructive notice; but the very circumstance of the derivation of their title from the owners was sufficient to put them upon inquiry. It was indispensable to enable them to make an available claim before the commissioners. So that in both views they are unprotected, as against the libellants. \nThis view of the matter disposes of the principal questions necessary for the decision of the cause; as we are of opinion that the whole proceeds of the ship and freight, in the hands of the assignees, are liable to the payment of the seamen's wages. We think there is no claim whatsoever upon the proceeds  of the cargo; as that is not in any manner hypothecated, or subjected to the claim for wages. \nIt has been supposed, at the argument, that there is some repugnancy in the petition of the seamen, in asserting a claim for wages on the ground that the voyage was illicit; and in asserting a claim against the proceeds in the hands of the assignees, upon the ground that the voyage was lawful, and therefore the award of compensation to the owners was rightful. But upon a just consideration of the matter, no such repugnancy exists. The allegation on the part of the seamen is, that they shipped on one voyage, which was lawful, and that they were carried on another voyage, for which they did not ship; and in which the ship was seized, and they were imprisoned for being engaged in an illicit trade. Now the voyage in respect to them might be wholly tortious and illicit, because it was not within the scope of their contract; and they may have been thereby subjected to all the consequences of an  illicit trade, although, as between the owners and the Spanish authorities, the voyage may have been specially permitted as an exception to the general colonial prohibitions, or at least may  not have been disapproved of in the particular instance. If the king of Spain had a right to make the seizure, and pursue it to condemnation; yet he might, under all the circumstances, deem it just or expedient, as between the owners and himself, to order restitution; and when such restitution was so made, as between himself and them, the voyage might be deemed no longer subject to the imputation of illegality.If the order of restitution was not complied with, it constituted a good claim against Spain; and consequently a good claim under the Florida treaty. \nThe award of the commissioners is conclusive on this subject; but it concludes no more than its own correctness. Suppose the ship, after a seizure and condemnation by the local Spanish authorities, had, upon appeal, been specifically restored by the king of Spain; there is no pretence to say that she might not have been proceeded against in the admiralty, for the full compensation of the seamen. Their right to such compensation, in such a case, would depend, not upon the fact whether there were an illegal service or not; but upon the fact whether there had been an unjustifiable deviation from the voyage contracted for; and there  is no legal distinction, as has been already stated, between proceeding against the ship and against the proceeds restored in value. \nIn respect to the claim of interest made by the libellants, we are of opinion that under the peculiar circumstances of this case, none ought to be allowed upon their wages; except for the period of time which has elapsed since the petition was filed against the assignees and owners on the 1st of December 1825. The previous delay was, as it seems to us, either a voluntary delay, assented to by all parties; or else, under circumstances of so much doubt as to the nature and extent of the claim, as ought to preclude any claim for interest. The assignees having had the funds in their hands since that period, must be presumed to have made interest on them; and therefore, there is no hardship in considering them liable to pay interest to the seamen. \nThe cause not having been heard upon the merits, either in  the district or circuit court, it is impossible for this court to ascertain the precise amount to which the libellants are respectively entitled; without a reference to a commissioner to ascertain and report the amount, upon the principles  already stated. It will be necessary, therefore, to remand the cause to the circuit court for this purpose; and it is to be understood, in order to avoid any further delays, that the commissioner is to proceed with all reasonable despatch; and is to report to the court the amount due to each seaman as soon as he shall ascertain the same: so that each may have a separate decree (as in libels of this sort he well may), for his own share, without waiting for any final decree upon the claims of the others. \nWhere the exact time of the return of any seaman cannot be ascertained, the commissioner will make an average estimate, as near as the facts will enable him to do so. In case of the death of any seaman, who is a libellant, his administrator is to be brought before the court before any final decree is entered upon his claim. \nA special order will be drawn up by the court, to be sent to the circuit court for its direction upon these points; and the decree of the circuit court is reversed, and the cause remanded accordingly. \nThis cause came on to be heard on the transcript of the record from the circuit court of the United States, for the district of Maryland, and was argued by counsel;  on consideration whereof, it is ordered, adjudged, and decreed by the court, that the decree of the circuit court affirming the decree of the district court dismissing the libels and petition, in this cause be, and the same is hereby reversed: and this court, proceeding to render such decree as the circuit court ought to have rendered; it is further ordered, adjudged and decreed, that the libellants are entitled to full wages according to the terms of their original shipping articles or contract, from the time of their shipping until their return and arrival in the United States, after the seizure of the said ship Warren and cargo, in the manner in the proceedings mentioned; deducting therefrom any advance wages paid to them, and any wages earned by them in any employment in the intermediate period;  and that a decree be entered against the owners of the said ship in the said proceedings mentioned, for the amount of such wages, as soon as the same shall be ascertained in the  manner hereinafter stated, with interest thereon, from the 1st day of December 1825. \nAnd it is further ordered, adjudged and decreed, that a decree be rendered against the other respondents  in this cause for the payment of the same wages when so ascertained, with interest as aforesaid out of the funds and proceeds (but not exceeding the funds, and proceeds) of the said ship Warren, and freight received by them under the assignments and the award of the commissioners under the treaty with Spain in the said proceedings mentioned: to wit: out of the sum of twenty-five thousand dollars awarded for the said ship; and the sum of thirteen thousand eight hundred and sixty dollars awarded for the freight thereof; according to the proportions thereof by them respectively received as aforesaid: and the interest at the rate of six per cent per annum, be paid by them and considered as a part of the said funds and proceeds, from the time when the petition and libel against them was filed: to wit: from the 1st day of December 1825, until the time when a final decree is and shall be made in the premises by the circuit court; or until the same funds and proceeds shall by order of the circuit court be brought into the registry of the court. \nAnd it is further ordered, and adjudged and decreed, that this cause be remanded to the circuit court with the following directions. \n1. To refer  it to the commissioner to ascertain, from the evidence, and proceedings, and other proper evidence; the amount due to each of the libellants, for wages and interest thereon; upon the principles stated in this decree. And that he be required, forthwith, and as soon as may be, to proceed upon this duty, and to report to the circuit court the amount due to each of the libellants separately, as soon as he shall have ascertained the same; so that a separate and several decree may be entered therefor to each libellant respectively. \n2. In cases where the exact time of the return of any of the libellants cannot be ascertained, the commissioner is to make  an average estimate of the time, as near as the facts will enable him to do so, and to report accordingly. \n3. In cases where any of the libellants have died during the pendency of the proceedings in this suit, no final decree is to be entered in respect to such libellant, until his personal representatives shall become party to the suit. \n Mr Justice BALDWIN dissented from the order in relation to the proceedings in the circuit court, and the allowance of a commission to the defendants. \nDissent by:", " \nOpinion \n\n \n \n  Mr Justice STORY delivered the opinion of the Court. \nThis is a writ of error founded on a judgment of the circuit court, in the district of Kentucky, in an action of ejectment in which the plaintiff in error was the original plaintiff. The case is before us upon certain bills of exceptions taken by the plaintiff; and to the consideration of these the court will address their attention, without entering upon any examination of other facts, not involved in the decision of them. \nSome of the defendants professing  to hold a  conveyance from the lessor of the plaintiff, Clarke, made by Carey L. Clarke, as his attorney in fact, offered in evidence the deed of conveyance, and the letter of attorney, \"and gave testimony conducing to prove them. And Andrew Moore, the clerk of the Harrison circuit court, who brought the letter of attorney into this court, under process for that purpose, desiring to return, and considering it his duty to retain possession of that instrument, by consent of plaintiff and defendants, departed with it, leaving a copy. And at a subsequent day Moses L. Miller was introduced as a witness to prove the letter of attorney; who stated, that being summoned as a witness, he met with the clerk of Harrison aforesaid, in Georgetown, who showed him an instrument, the signature of which he examined, and believed it to be the handwriting of James B. Clarke (the plaintiff's lessor), with whose handwriting he was well acquainted: and another witness was examined, tending to show that the instrument, so shown by said Moore to miller, was the same previously read before this court, as aforesaid. When Andrew Moore (the clerk of Harrison court) was about to resume possession of  the letter of attorney and to depart, the attorney of the plaintiff declared that he had no objection. It is not pretended that any expectation of offering further proof was entertained, or intimated to the parties. To the admission of the testimony of Miller the plaintiff objected, especially in the absence of the letter of attorney. But the court overruled the objection, and submitted the testimony to the jury, as tending to prove that instrument.\" \nThe letter of attorney purports to be made by \"James B. Clarke of the city of New York, and Eleanor his wife,\" to \"Carey L. Clarke of the city of New York;\" to be dated on the 7th of October 1796, and to be sealed and delivered in the presence of three witnesses. \n The question is, whether, under these circumstances, it ought to have been admitted in evidence. \nIn the ordinary course of legal proceedings, instruments under seal, purporting to be executed in the presence of a witness, must be proved by the testimony of the subscribing witness, or his absence sufficiently accounted for. Where he is dead, or cannot be found, or is without the jurisdiction, or is otherwise incapable of being produced, the next best secondary  evidence is the proof of his handwriting; and that, when proved, affords prima facie evidence of a due execution of the instrument, for it is presumed that he would not have subscribed his name to a false attestation. If upon due search and inquiry no one can be found who can prove his handwriting, there is no doubt that resort may then be had to proof of the handwriting of the party who executed the instrument; indeed such proof may always be produced as corroborative evidence of its due and valid execution, though it is not, except under the limitations above suggested, primary evidence. Whatever may have been the origin of this rule, and in whatever reasons it may have been founded, it has been too long established to be disregarded; or to justify an inquiry into its original correctness. \nThe rule was not complied with in the case at bar. The original instrument was not produced at the trial, nor the subscribing witnesses; and their non-production was not accounted for. The instrument purports to be an ancient one; but no evidence was offered in this stage of the cause to connect it with possession under it, so as to justify its admission as an ancient deed, without further  proof. It is said that the conduct of the parties amounted to a waiver of the due proof of the original. We are of opinion that the production of the original was under the circumstances dispensed with by the parties, and that a copy of it was impliedly assented to as a substitute for the original. \nBut we do not think that the implication goes farther, and dispenses with the ordinary proof of the due execution of the original, in the same manner as if the original were present.It would be going very far to draw such a conclusion, from circumstances of so equivocal a nature. The rules of evidence are too important securities for the titles to property  to allow such loose presumptions to prevail. It would be opening a door to great practical inconvenience; and if a waiver of the ordinary proof is intended, it is easily reduced to writing. \nIt is also said, that the language of the exception that the defendants gave testimony \"conducing to prove\" the instruments, may well be interpreted by the court to have included all the usual preliminary proofs. We do not think so: to justify the admission of the lowest kind of secondary proof, it should clearly appear, that all  the preliminary steps have been taken and established. The court can presume nothing; there may not have been any preliminary proof whatsoever of the absence, death, or incapacity of the witnesses: and yet there may have been some evidence \"conducing to prove\" the due execution of the instruments. And the very circumstance stated in the bill of exception, that Miller was introduced, \"as a witness to prove the letter of attorney,\" repels the presumption that any antecedent proof had been given, which in point of law dispensed with the ordinary proofs. \nWe think, then, that the testimony ought not to have been admitted, and that this exception is well founded. \nThe plaintiff having then given prima facie evidence of title under a patent to Martin Pickett of fifty-five thousand three hundred and ninety acres, and that the defendants were in possession of the land in controversy, and that the lessor of the plaintiff (Clarke) at the date of his deed and ever since was, and had been a citizen and resident of the state of New York, and having relied solely on the demise from Clarke, the defendants offered in evidence certain exhibits. One of these purported to be a release of forty-nine  thousand nine hundred and fifty-two acres, by Carey L. Clarke, as attorney for James B. Clarke and John Bryant, on the 25th of November 1800, acknowledged before the surveyor of Scott county, and after wards lodged with the auditor of public accounts. It recited that James B. Clarke and Eleanor his wife, and John Bryant and Mary his wife, had appointed Carey L. Clarke their attorney to sell, transfer and convey a certain tract on the waters of Eagle Creek, in the county of Scott and state of Kentucky, containing  one hundred thousand one hundred and ninety-two acres, entered in the name of Martin Pickett,  which tract of land was then held by Clarke and Bryant as tenants in common. It then proceeded to state \"now, therefore, I the said Carey L. Clarke, attorney as aforesaid, in pursuance of an act of the legislature of the state of Kentucky, authorizing claimants of land within its commonwealth to relinquish by themselves or their attorneys, any part or parts of their claims to the commonwealth, do hereby relinquish to the commonwealth of Kentucky, all the right, title, interest, property, claim and demand of the said Clarke and Bryant of, in and to the hereinafter  described tracts of land.\" Another exhibit purported to be a release dated on the 25th of November 1801, by Carey L. Clarke as attorney in fact of John Bryant in a similar form and containing a similar relinquishment to the state of certain tracts of land, except that the attestation clause was in these words: \"in witness whereof the said Bryant by Carey L. Clarke, his attorney, hath set his hand and seal this 25th of November 1801. John Bryant, by Carey L. Clarke his attorney, [L. S.]\" The other exhibits need not be particularly mentioned. \nTo prove these instruments of relinquishment, or properly speaking, that of James B. Clarke and wife, the defendants relied upon the power of attorney mentioned in the former bill of exceptions, and the original relinquishment from the auditor's office; and proved the execution thereof by the surveyor of Scott county. \nThe plaintiff then moved the court to instruct the jury that the instrument [of relinquishment] under the proof, did not bind the plaintiff and could not bar his recovery. But the court overruled the motion, and instructed the jury that the said relinquishment for the forty-nine thousand nine hundred and fifty-two acres, if  the execution thereof was satisfactorily proved, was a bar to the recovery of all the land described in said relinquishment; and on motion of the defendants the court instructed the jury, that if they believed the execution of the power of attorney from James B. Clarke to Carey L. Clarke, and of the relinquishment in evidence [from Carey L. Clarke as his attorney of the date of 25th of November 1800], then it was incumbent on the plaintiff, to maintain this action, to show that the defendants, or some of them, were at the service of the ejectment, outside of the several parts relinquished to  the state. The opinions thus given and refused constitute the second bill of exceptions. \nVarious objections have been taken in the argument at the bar upon the matter of these exceptions. It is said that the relinquishment to the state, which was authorized by the act of 4th of December 1794, Littell's Laws of Kentucky 222, has not been made in such a manner as to become effectual in point of law; for there has been no entry of the relinquishment in a book in the surveyor's office of the county, as prescribed in the statute, nor has the power of attorney been there recorded; and  the state cannot take but by matter of record. Upon this objection it is not, in our view of the case, necessary to give any opinion. \nIt is said, in the next place, that the relinquishment purports to have been made in virtue of a power of attorney recited in the instrument itself to be from James B. Clarke and his wife, and John Bryant and his wife; whereas the power produced purports to be from Clarke and his wife only, and therefore the latter power does not authorize the relinquishment, or, in other words, it was not that under which it was made. There is great force in this objection; but on this also we do not decide. \nAnother objection is that the power of attorney produced, even if duly executed, does not justify the relinquishment. It purports to authorize Carey L. Clarke \"to sell, dispose of, contract and bargain for all or so much of said tract of land, &c., and to such person, or persons, and at such time or times as he shall think proper, and in our or one of our names to enter into, acknowledge and execute all such deeds, contracts and bargains for the sale of the same, as he shall think proper; provided always that all deeds for the land are to be without covenants  of warranty, or covenants warranting the title to the land from the patentee, and his assigns,\" &c. \nThe language here used is precisely that which would be used in cases of intended sales or contracts of sale of the land for a valuable consideration to third persons, in the ordinary course of business. In the strict sense of the term, a relinquishment of the lands to the state under the act of 1794 is not a sale. That act, after reciting that it is represented to the general assembly that many persons hold tracts of land  subject to taxation, and are desirous of continuing their interest in only part thereof, and that others have claims to lands which they wish to relinquish without their being subject to the expense of law suits; proceeds to enact, that it shall be lawful for any person or persons, his heir or their agent or attorney, lawfully authorized so to do, to relinquish or disclaim his, her, or their title, interest or claim to and in any tract or part of a tract of land that he, she or they may think proper; by making an entry of the tract or that part thereof so disclaimed with the surveyor of the county in which the land or the greater part thereof shall lie,  in a book to be kept for that purpose, which said entry shall describe the situation and boundary of the land disclaimed with certainty, and be signed by the party in the presence of the surveyor, who shall attest the same; and that by virtue of the aforesaid entry and disclaimer, all the interest of the party in the said tract shall be vested in the commonwealth, and shall never be reclaimed by the party, or his, her, or their representatives. The object of the act is to authorize a relinquishment, either on account of the land being subject to taxation, or to award law suits on account of conflicting claims. \nIt is not pretended that the present relinquishment would have been authorized by the letter of attorney on the latter account. It is supposed at the bar to have been done on account of the taxes due on the land, though that object is not avowed on the face of the deed. There is, accordingly, spread upon the record a transcript of the taxes laid on the land. By the laws of Kentucky (Act of 1799,  s. 17, 2 Litt. L. 327), taxes constitute a perpetual lien on the land. But such taxes constitute no personal charge against non-residents. And the act of 1799 further  provides, that where any person has paid, or shall on or before the first day of December then next, the tax on any tract of land which shall afterwards be lost or relinquished, the person losing shall, upon application to the auditor, receive an audited warrant to the amount paid by him, with a deduction of seven and a half per cent, which shall be receivable in taxes as other audited warrants are. \nThe effect of the Kentucky laws, then, so far as non-residents are concerned, is, that by their relinquishment they obtain no personal discharge from any personal charge; and that  the only effect is that in the specified cases, if they have paid the taxes, they are, with a small deduction, reimbursed. \nIn point of fact, then, the relinquishment gives them nothing as a compensation for the land; but restores back again only the money (if any) which they have paid. Can such a relinquishment, for the purposes contemplated by the statute, be in any just sense deemed a sale? We think not. It is a mere abandonment of the title; or, in the language of the act a relinquishment or disclaimer. The letter of attorney manifestly contemplated the ordinary contracts of bargain and sale  between private persons, for a valuable consideration; and conveyance by deed without covenants of warranty. The very reference to covenants, shows that the parties had in view the common course of conveyances, in which covenants of title are usually inserted, and the clause excludes them. The statute does not contemplate any deed or conveyance; but a mere entry of relinquishment or disclaimer of record. This entry constitutes a good title in the state. The state does not buy, nor does the party sell in such case. It seems to us that the nature of such a relinquishment, amounting, as it does, to a surrender of title without any valuable consideration, ought not to be inferred from any words, however general, much less from words so appropriate to cases of mere private sales as those in the present letter of attorney. The question whether such a relinquishment should be made or not, is so emphatically a matter of pure discretion in the owner, in the nature of a donation, that it ought not to be presumed to be delegated to another without the most explicit words used for, and appropriate to, such a purpose. We think that the words of the present letter of attorney are not sufficient  to clothe the agent with such an authority. \nBut if this objection were not insuperable, there is another, which, though apparently of a technical nature, is fatal to the relinquishment. It is, that the deed is not executed in the names of Clarke and his wife, but by the attorney, in his own name. It is not, then, the deed of the principals, but the deed of the attorney. The language is, \"I, the said Carey L. Clarke, attorney as aforesaid,\" &c. \"do hereby relinquish,\" &c.; and the attesting clause is, \"In witness whereof the said Carey L. Clarke, attorney as aforesaid, has hereunto subscribed  his hand and seal, this 25th day of November, in the year of our Lord 1800. Carey L. Clarke. [L. S.]\" \nThe act does not therefore purport to be the act of the principals, but of the attorney. It is his deed, and his seal, and not theirs. This may savour of refinement, since it is apparent that the party intended to pass the interest and title of his principals. But the law looks not to the intent alone, but to the fact whether that intent has been executed in such a manner as to possess a legal validity. \nThe leading case on this subject is Coombe's case, 9 Co. R. 75, where  authority was given by a copy holder to two persons as his attorneys, to surrender ten acres of pasture to the use of J. N.; and afterwards, at a manor court they surrendered the same, and the entry on the court roll was, that the said attorneys in the same court showed the writing aforesaid, bearing date, &c. and they, by virtue of the authority to them by the said letter of attorney given, in full court, surrendered into the hands of the said lord the said ten acres of pasture, to the use of the said J. N. &c.; and the question was whether the surrender was good or not, and the court held it was good. \"And it was resolved, that when any has authority as attorney to do any act, he ought to do it in his name who gives the authority, for he appoints the attorney to be in his place, and to represent his person; and therefore the attorney cannot do it in his own name, nor as his proper act, but in the name and as the act of him who gives the authority. And where it was objected that in the case at bar the attorneys have made the surrender in their own name, for the entry is that they surrendered, it was answered and resolved by the whole court, that they have well performed their authority;  for, first, they showed their letter of attorney, and then they by the authority to them by the letter of attorney given, surrendered, &c. which is as much as to say, as if they had said, we, as attorneys, &c. surrender, &c. and both these ways are sufficient. As he who has a letter of attorney to deliver seisin saith, I, as attorney to J. S. deliver you seisin; or, I, by force of this letter of attorney, deliver you seisin. And all that is well done, and a good pursuance of his authority. But if attorneys have power by writing to make leases by indenture for years, &c. they cannot make indentures in their own names, but in the name of him who gives the warrant.\" \n Such is the language of the report, and it has been quoted at large, because it has been much commented on at the bar; and it points out a clear distinction between acts done in pais, and solemn instruments or deeds, as to the mode of their execution by an attorney. It has been supposed that the doctrine of Lord Holt in Parker vs. Kett, 1 Salk. 95, and better reported in 2 Mod. R. 466, intimated a different opinion. But correctly considered it is not so. Lord Holt expressly admits (468), that the doctrine  in Commbe's case, that he who acts under another ought to act in his name, is good law beyond dispute: and the case there was distinguishable; for it was the case of a sub-deputy steward, appointed to receive a surrender, which was an act in pais. However this may be, it is certain that Coombe's case has never been departed from, and has often been acted upon as good law. In Frontin vs. Small, 2 Ld. Raym. 1418, where a lease was  made between M. F. \"attorney of J. F.\" of the one part, and the defendant of the other part, of certain premises for seven years, in a sult for rent by M. F., it was held that the lease was void for the very reason assigned in Coombe's case. Lord chief baron Gilbert (4 Bac. Abridg. Leases and Terms for years, I. 10, 140), has expounded the reasons of the doctrine with great clearness and force; and it was fully recognized in White vs. Cuyler, 6 T. Rep. 176, and Wilks vs. Back, 2 East. 142. If it were necessary it might easily be traced back to an earlier period than Commbe's case. 4 Bac. Abridg. Leases and Terms for years, I. 10, 140, 141. Com. Dig. Attorney, C. 14. Moore, 70. In America, it has been repeatedly the subject of adjudication,  and has received a judicial sanction. The cases of Bogart vs. De Bussy, 6 Johns. R. 94; Fowler vs. Shearer, 7 Mass. R. 14; and Elwell vs. Shaw, 16 Mass. R. 42; are directly in point. \nIt appears to us, then, upon the grounds of these authorities, that the deed of relinquishment to the state was inoperative; and consequently the court erred in refusing the instruction prayed by the plaintiff, that it did not bind him; and in directing the jury, that if the execution of it was proved, it was a bar to the recovery of the land described therein. \nThis aspect of the case renders it unnecessary to decide whether, supposing the relinquishment good, it was incumbent  on the plaintiff to show that the possession of the defendants, or some of them, was at the time of the service of the ejectment outside of the land relinquished. That point was before us in Hawkins vs. Barney's Lessee, at this term; and it was there decided that where the plaintiff's title deed, as exhibited by himself, contains an exception, and shows that he has conveyed a part of the tract of land to a third person, and it is uncertain whether the defendants are in possession of the land not conveyed, the onus  probandi is on the plaintiff. Here the deed of relinquishment is exhibited on the part of the defendants to dispute the plaintiffs' title to the land possessed by them; and it has been contended that this creates a distinction, and throws the burthen of proof on the defendants to show that the plaintiff has parted with his title to the particular land in controversy. The case, however, does not call for any absolute decision on this point; nor does it appear with certainty from the evidence, that the relinquished land was within the boundaries of the land in controversy in the suit. \nThe third bill of exception states, that on the trial of the cause, the plaintiff having given in evidence the patent to Pickett, and by mesne conveyances to Clarke the lessor of the plaintiff, and proved that Clarke at the date thereof and ever since was resident in the sate of New York, and that the title deeds embrace the land in controversy, and that the defendants were all in possession at the commencement of the suit, after the defendants had given in evidence the deed of relinquishment, and the court had given the instructions thereon; gave testimony conducing to prove that some of the defendants,  viz. Hinton, Hughes, Vance, Gillum, Antle, Sally, Courtney, &c. were not within the limits set forth in the relinquishment: and these defendants all relying in their defence upon their possession, they gave in evidence a patent to James Gibson, 1st of March 1793, under a survey of 1783, and a patent to Sterrett and Grant 24th of October 1799 under a survey in 1792 (reciting them), and gave testimony conducing to prove that Sally, Courtney, &c. were within the boundaries prescribed by the patent of Grant and Sterrett; and Hinton, Hughes, Gillum, Vance and Antle, were within the bounds of the patent to Gibson: and touching the possession within Gibson's patent, the witness stated that in 1796,  Hinton entered within the patent of Gibson, claiming a part of the tract under that grant, and that the tenement has been occupied ever since; and at subsequent periods the other tenants claiming under the said Hinton, had settled in the same manner under other parcels, claimed by them as parts of Hinton's purchase; and from the time of their respective settlements, their possession had been continued. The witness knew not the extent or boundary of any of the purchases, and no title  papers were produced. \nAnd touching the possessiong within the patent to Sterrett and Grant, the witness stated that in 1791 or 1792, Griffin Taylor entered under that patent, that the tenements have been still occupied by Taylor and his alienees; and at periods subsequent, the other tenants had entered and taken possession, claiming under the said Taylor, within the limits of the patent to Sterrett and Grant. No written evidences of purchase were offered. \nThereupon the plaintiff moved the court to instruct the jury: 1. That the possession of these defendants, was no bar to the defendants' action: 2. That the statute of limitation could only protect the defendants to the extent, that they had actually enclosed their respective tenements, and had occupied for twenty years preceding the commencement of the suit. The court overruled the motion, and instructed the jury that adverse possession was a question of fact; that under the adverse patents given in evidence, it was not necessary to show a paper title derived under those adverse grants, to make out adverse possession; but such hostile possession might be proved by parol. That an entry under one of the junior grants given in evidence  by the defendants, and within the boundaries of the elder grant, without any specific metes and bounds, other than the abuttals of the grant itself, did constitute an adverse possession, to the whole extent of the abuttals and boundaries under which such entry was made. To this refusal and opinion the plaintiff excepted; and the question now is, whether the court erred in either respect. \nIn considering the points growing out of this exception, it may be proper to advert to the doctrine which has been already established in respect to the nature and extent of the rights, growing out of adverse possession. Whether an entry  upon land, to which the party has no title and claims no title, be a mere naked trespass, or be an ouster or disseisin of the true owner, previously in possession of the land; is a matter of fact depending upon the nature of the acts done, and the intent of the party so entering. The law will not presume an ouster without some proof; and though a mere trespasser cannot qualify his own wrong; and the owner may, for the sake of the remedy,  elect to consider himself disseised; yet the latter is not bound to consider a mere act of trespass to  be a disseisin. If a mere trespasser, without any claim or pretence of title enters into land, and holds the same adversely to the title of the true owner, it is an ouster or disseisin of the latter. Butin such case the possession of the trespasser is bounded by his actual occupancy; and consequently the true owner is not disseised except as to the portion so occupied. But where a person enters into land under a deed or title, his possession is construed to be co-extensive with his deed or title; and although the deed or title may turn out to be defective, or void, yet the true owner will be deemed disseised to the extent of the boundaries of such deed or title. This, however, is subject to some qualification. For, if the true owner be at the same time in possession of a part of the land, claiming title to the whole; then his seisin extends by construction of law to all the land which is not in the actual possession and occupancy, by enclosure or otherwise, of the party so claiming under a defective deed or title. \nThe reason is plain; both parties cannot be seised at the same time of the same land under different titles, and the law therefore adjudges the seisin of all, which  is not in the actual occupancy of the adverse party, to him who has the better title. This doctrine has been on several occasions recognized in this court. In Green vs. Liter, 8 Cranch, 229, 230, S. C. 3 Peters's Cond. Rep. 97, 107, the court said; the general rule is, that if a man enters into lands, having title, his seisin is not bounded by his occupancy, but is held to be co-extensive with his title. But if a man enters without title, his seisin is confined to his possession by metes and bounds. Therefore the court said that as between two patentees in possession claiming the same land under adverse titles, he who had the better legal title was to be deemed in seisin of all the land not included in the actual close of the other patentee. The same doctrine was held in  Barr vs Gratz, 4 Wheat. Rep. 213, 223; where the court said, that where two persons are in possession of land at the same time under different titles, the law adjudges him to have the seisin of the estate who has the better title. Both cannot be seised, and therefore the seisin follows the title. And that where there was an entry without title, the disseisin is limited to the actual occupancy of  the party disseising; and in reference to the facts of that case, the court held that in a conflict of title and possession, the constructive actual seisin of all the land not in the actual adverse possession and occupancy of the other, was in the party having the better title. \nIn the society for propagating the Gospel vs. The Town of Pawlet, 4 Peters's Rep. 480, 504, 506, which came before the court upon a division of opinion upon a state of facts agreed; the court held, that where a party entered as a mere trespasser without title, no ouster could be presumed in favour of such a naked possession; but that where a party entered under a title adverse to the plaintiffs, it was an ouster of, or adverse possession to the true owner. \nIt appears to us also that the doctrines, thus recognized by this court, are in harmony with those established by the authority of other courts; and especially of the courts of Kentucky, in the cases cited at the bar. Johnson's Digest, Ejectment V, b. Big.'s Dig. Seisin and Disseisin in A, B, C, D. \nIt remains to apply these questions to the present exception. The court was called upon in the first instruction to declare that the possession of the defendants  was no bar to the action. This obviously required the court to give an opinion upon matters of evidence proper for the consideration of the jury, and which might be fairly open to controversy before them. It was therefore properly denied. The second instruction required the court to declare that the statute of limitations could only protect the defendants to the extent that [they] had actually enclosed their respective tenements, and occupied for twenty years preceding the commencement of the suit. The difficulty upon this instruction is, that no evidence was adduced; or, if adduced, it was not competent for the court to decide upon it, that either Pickett, the patentee, or the lessor of the plaintiff, at the time of the entry and ouster by the defendants, had any actual seisin or possession of any part of the land included in  the patent; so as to limit their possession to the bounds of their actual enclosures or occupancy.The entry of the defendants was certainly under a claim of title under the patents of Gibson, and Sterrett, and Grant.If Pickett, or his grantees, were then in possession under his patent, the defendants, upon the principles already stated, would  have been limited, as to their adverse possession, to the bounds of their actual occupancy. But that not being shown, the question resolves itself into this, whether a party entering into land under a patent, but without showing a paper title to any particular portion of the land included in that patent, is not to be deemed as claiming to the abuttals of the patent, against adverse titles held by other parties, not then in seisin or possession under their titles. \nThe opinion of the circuit court was (as the instruction given shows), \"that adverse possession was a question of fact;\" (which might be true, as applicable to the case before it, though it is often a mixed question of law and of fact;) \"that under the adverse patents given in evidence, it was not necessary to show a paper title, under those adverse grants, to make out adverse possession, but that such hostile possessions might be proved by parol\" (which, as a general proportion, is certainly true, as adverse possession may exist independent of title); and what is the material part of the instruction \"that an entry under one of the junior grants given in evidence by the defendants, and within the boundaries of the elder  grant of Pickett, made by one claiming under such junior grant without any specific metes and bounds, other than the abuttals of the grant itself, did constitute an adverse possession to the whole extent of the abuttal and boundaries, under which the entry was made.\" The prayer of the plaintiffs then was, or might have been rejected; because it assumed the decision of a question of fact; that is, that the defendants entered without any claim of title by metes and bounds: and the instruction given was, that an entry under the junior grants by one claiming under them by no other abuttals than those of the grants, was to be deemed an entry and adverse  possession, to the extent of those abuttals. This decision is fully supported by the cases in 2 Marsh. Kent. Rep. 18, and 1 Marsh. Kent. Rep. 376. \nLooking, therefore, to the instruction in the qualified manner in which it is given, and with reference to the fact that no  seisin was shown in Pickett, or the lessors of the plaintiff, in any part of the tract included in his patent, at the time of the entry of the defendants; it seems to us, that, according to the local decisions, the refusal was right, and the instruction  given was correct in point of law. \nWe think it proper to add, that no notice has been taken of the fact that Clarke, the lessor of the plaintiff, was a non-resident; because it does not appear that any of the instructions were asked or given, in reference to the legal effort of his nonresidence. \nThe judgment is, therefore, reversed for the errors stated in the first and second bills of exceptions; and the cause remanded to the circuit court, with directions to award a venire facias de novo. \nMr Justice BALDWIN dissented as to the possession. \nThis cause came on, &c. It is considered by the court here that there was error in the circuit court in admitting the testimony of Moses L. Miller under the circumstances set forth in the first bill of exceptions. And that there was error in the circuit court in refusing to instruct the jury upon the motion of the plaintiff, that the instrument stated in the second bill of exceptions, under the proof, did not bind the plaintiff, and could not bar his recovery; and in instructing the jury that the relinquishment stated in the same bill of exceptions for 49,952 acres, if the execution thereof was satisfactorily proved, was a bar to the recovery  of all the land described in said relinquishment, as set forth in the same bill of exceptions. But there is no error in the court in refusing to instruct the jury on the motion of the plaintiff, that the possession of the defendants was no bar to the plaintiff's action; and that the statute of limitations could only protect the defendants to the extent that (they) had actually enclosed their respective tenements, and occupied for twenty years preceding the commencement of the suit, as set forth in the third bill of exceptions; and that there was no error in the court in giving the instruction to the jury, set forth in the same bill of exceptions, in the manner and under the circumstances therein set forth. And, &c. \n \n\n ", " \nOpinion \n\n \n \n  Mr Justice STORY delivered the opinion of the Court: \nThis is a writ of error from the circuit court for the district of Maryland, in which the defendant in error was the original plaintiff. \nThe suit was an action for money had and received, brought under the following circumstances. The defendants, Luke Tiernan and Sons, of Baltimore, were factors of Thomas H. Fletcher, of Nashville, in the state of Tennessee. In the course of their business transactions Fletcher became indebted to them, and to another house, in which Luke Tiernan was surviving partner, in a sum of money exceeding nine thousand dollars. On the 8th of May 1819, Fletcher, through his agent, Jouett F. Fletcher, shipped at New Orleans eighty-one hogsheads  of tobacco, on board of the brig Struggle, bound for Baltimore, consigned to Tiernan and Sons. The invoice and bill of lading were enclosed in a letter of advice to Tiernan and Sons, by the Struggle. In the invoice  it was stated that the shipment was made by order of Thomas H. Fletcher, through his agent Jouett F. Fletcher; and in the bill of loading that it was for the account and risk of Thomas H. Fletcher, and consigned to Tiernan and Sons. The letter of advice was as follows: \nNew Orleans, May 8, 1829. \nMessrs Luke Tiernan and Sons -- Gentlemen -- Herewith we hand you invoice, bill of loading, eighty-one hogsheads of tobacco, for account of Thomas H. Fletcher, by order of Jouett F. Fletcher, which you will please receive and hold subject to the order of the latter. We are yours, & c., M'Neill, Fisk, and Rutherford, per Jacob Knapp. \nA short time before there had been a like shipment of tobacco on account of Thomas H. Fletcher, to Tiernan and Sons, by the schooner Mary. The consignment by the Struggle arrived on the 7th of June 1819, sometime after that by the Mary had been received. Previous to the arrival of either of  these shipments, viz. on the 10th of April 1819, Thomas H. Fletcher, at Nashville, wrote a letter to Tiernan and Sons, enclosing another to his creditors at Baltimore, informing them of his embarrassments, in consequence of the failure of a house at Nashville,  and offering a proposition for the liquidation of their debts. The letter, among other things, stated that his cotton and tobacco at New Orleans had all been shipped, and advances had on it, and that he had received the money arising from the sales and shipments; that he held a large amount of good paper of the most unquestionable kind, the greater part of which was then due; that he offered to give paper of this description for their claims against him. He then proposed, that the creditors should appoint Mr Ephraim H. Foster of Nashville their agent, to negotiate the business; and added, \"in all cases such of you as hold my notes must forward them to Mr Foster, as they must be taken up when I give him other paper.\" Tiernan and Sons, on the same day they received the letter, accepted the proposition, and wrote a letter to that effect. In consequence of this arrangement, Thomas H. Fletcher, on the 21st of May 1819, paid to Mr Foster in promissory notes the claims of the two houses of the Tiernans, and took receipts in full from Mr Foster as agent. At the time of this payment and settlement, Tiernan and Sons did not know of the consignment by the Struggle; but Mr Charles Tiernan  arrived at Nashville shortly afterwards, and expressed his satisfaction at the mode of payment. At a subsequent period, in July 1819, this payment and settlement were rescinded by the parties, and the receipts given up. But in our view of the case, it is unnecessary to trace these transactions further. \nOn the 21st of May 1819, Thomas H. Fletcher, being indebted to James Jackson of Nashville (the plaintiff), drew a bill of exchange in his favour upon Tiernan and Sons, as follows: \"Nashville, May 21st, 1819. $2400. Sixty days after sight of this my first of exchange, second unpaid, pay to the order of James Jackson, twenty-four hundred dollars, value received. Thomas H. Fletcher. To Messrs Luke Tiernan and Sons, Baltimore.\" This bill was presented and protested for non-acceptance, on the 9th of June 1819; and was at maturity protested for non-payment. On the same day the bill  was drawn, Fletcher drew the following assignment on the back of a duplicate invoice of the shipment by the Struggle. \"Nashville, 21st of May 1819. I assign to James Jackson so much of the proceeds of the sale of the tobacco alluded to in the within invoice, as will amount to twenty-four hundred  dollars; to Ingram and Lloyd, as above, six hundred dollars; and the balance, whatever it may be, to G. G. Washington and Co.: and Messrs Tiernan and Sons will hold the net proceeds of the within invoice subject to the order of the persons above named, as directed above. Thomas H. Fletcher.\" This assignment was not delivered to Mr Jackson until the 26th of the same month; and all persons named therein were creditors of Fletcher. \nThere are many other facts spread upon the record, but these appear to us all that are material to dispose of the questions argued at the bar. \nThe first question is, whether the assignment so made to Jackson, on the 19th of May, passed the legal title in the tobacco so as to make the same, or the proceeds thereof, presently the property of Jackson and the other persons named. This is a question essentially depending upon the intention of the parties to be gathered from the terms of the assignment; for whatever may be the inaccuracy of expression, or the inaptness of the words used, in a legal view, if the intention to pass the legal title can be clearly discerned, the court will give effect to it, and construe the words accordingly. Thus, if a man grant  the profits of his land, it is said that the land itself passes. Co. Litt. 4. Com. Grant, E. 5. At the time when this assignment was made, the tobacco was in transitu; and if there had been an absolute assignment of the proceeds, so that the tobacco was immediately put at the risk of the assignee, and the assignor was to have no further control over the management of it, we do not mean to say that it would not pass the legal title and property in it to the assignee. But can such an intention be gathered from the words used in this instrument? We think not. The words are, \"I assign, &c., so much of the proceeds of the sale of the tobacco, & c., as will amount to twenty-four hundred dollars.\" The parties, then, contemplate a sale, and the assignment is to be, not of the tobacco itself presently, but of a portion of the funds arising from the sale  of it at a future period. Could the assignee or assignees have countermanded the consignment to Tiernan and Sons? Or, putting aside the factor's claim of a lien, could they have demanded the property of the factors before the sale? We think such was not the intention of the parties. The claim of Jackson was not to an undivided  portion of the property, but to a specific account of the proceeds arising from a sale. Suppose before sale the tobacco had been lost or destroyed, would the loss have been his or Fletcher's? We think it would have been Fletcher's. The assignees  were all creditors; and there is no evidence that they took the assignment in satisfaction of their debts, or otherwise than as security therefor. And the fact, that, contemporaneously, Jackson took a bill of exchange on Tiernan and Sons for the same amount, demonstrates that he did not understand the assignment as extinguishing his debt, or as operating more than as collateral security. Upon the dishonour of that bill, he had a right of recourse against the drawer. In this view of the transaction, Fletcher had an immediate interest in the sale. The larger the amount of the proceeds, the further they would go to extinguish his antecedent debts. It is perfectly consistent with the terms of the instrument, that he should retain the legal title in the tobacco, and that his factors would have a right to make sale thereof, in the best manner they could, for his benefit; giving the assignees an equitable title in the proceeds  of the sale. Our opinion is, that upon the terms of the assignment, it was not intended by the parties to pass the legal title in the tobacco, or its proceeds; but to create an equitable title or interest only in the proceeds after sale, for the benefit of the assignees. \nAssuming, then, that an equitable title only to the proceeds of the sale, amounting to two thousand four hundred dollars, vested by the assignment in Jackson, still if there has been any agreement on the part of Tiernan and Sons to hold so much of the proceeds for the benefit of Jackson, he may maintain the present action; for under such circumstances, upon the receipt of the proceeds after the sale, so much thereof would be money had and received to the use of Jackson; and it will make no difference, under such circumstances, whether Tiernan and Sons have a lien for any balance of accounts or not; for such  an agreement will bind them, and amount to a waiver of their lien pro tanto in favour of Jackson. \nThe question, then, is, whether there are any ingredients in this case furnishing sufficient proofs of such an agreement. Such an agreement may be express, or it may be implied; if the circumstances  of the case, coupled with the acts of the parties, necessarily lead to such a conclusion. That there has been an express agreement on the part of Tiernan and Sons is not pretended. On the contrary, having received the shipment on the 7th of June 1819, they attached the property by a writ of garnishment on the 8th of the same month, on their own account, as the property of Fletcher; and they dishonoured the bill drawn in favour of Jackson on the succeeding day: nor did they after the notice of the assignment, on the 15th of the same month, ever give any express assent to hold the proceeds according to the terms of it. \nBut it has been argued that the receipt of the consignment with the bill of loading, invoice, and letter of advice, amounted to an implied engagement to conform to the terms of the latter, and \"to receive and hold the tobacco subject to the order of\" Jouett F. Fletcher, the agent of Thomas H. Fletcher; and that it being the case of a mere agency, it is in contemplation of law subject to the direct order of the latter, without the intervention of his agent. Now, assuming that a factor upon receiving a consignment is bound, as between himself and his principal, to conform  to the orders of the latter, which cannot well be denied in point of law, the question still recurs, whether that implied obligation can enure to the benefit of a third person, so as to entitle the latter upon obtaining an order at a future period, to maintain an action against the factor, as upon an agreement in his favour. And, a fortiori, whether in case of a dissent or refusal contemporaneous with the receipt of the consignment, such an implied obligation can supersede the legal effect of such dissent or refusal. If an assent is to be implied from the duty of the factor in ordinary cases, may not his dissent be shown by acts rebutting the presumption? In the present case, the letter of advice contains no authority to sell, but only to receive and hold the tobacco subject to the order of the party. If a power to sell be implied, it must be  implied from the antecedent course of business and relation of the parties, as principal and factors. The implied obligation, then, from the receipt of the consignment, is no more than the terms of it express, viz: to receive and hold the tobacco subject to order; not to pay over the proceeds to order. But waving this consideration,  how stands the general proposition in point of principle and authority? \nThe general principle of law is, that choses in action are not at law assignable.But, if assigned, and the debtor promise to pay the debt to the assignee, the latter may maintain an action for the amount against the debtor, as money received to his use. Independently of such promise there is no pretence that an action can be sustained. Have Tiernan and Sons, since notice of the present assignment, made any such promise to Jackson? No express promise is shown; and the acts antecedently done by Tiernan and Sons repudiate the notion of any intentional implied promise; for those acts appropriate the property to their own claims, and to meet their own lien. \nBut it is said, that if a party agrees to hold money or goods subject to the order of the owner, it raises an implied promise to the holder of the order, upon which he may maintain an action at law. The case of Weston vs. Barker, 12 Johns. Rep. 276, has been relied on for this purpose. But in that case, the party receiving the money under the assignment made an express promise to hold the same subject, in the first place, to the demands of certain specified  creditors; and next, the balance; subject to the order of the assignor. The court held that in such case the holder of the order subsequently drawn had a right to the money, as money had and received to his use; notwithstanding there was a counter claim, or set off of the assignee accruing before the assignment.The case of Walker vs. Birch, 6 Term Rep. 258, is somewhat complicated in its circumstances, but it turned upon similar principles. There the agreement was express, to hold the property for a particular purpose; and that, in the opinion of the court, excluded the right of the factor to assert a lien upon it for any demand due to him, which was inconsistent with that purpose. Lord Kenyon there said, the parties may, if they please, introduce into their contract an article to prevent the application of a  general rule of law to it. In the note given by thef actors in that case, they acknowledged  that they had received the goods for sale, and promised to pay the proceeds of them, when sold, to J. F. or his order. J. F. was the agent of the owners; and they having become bankrupt, their assignees brought an action, not for the proceeds (for the goods  were not sold), but for the goods, and they recovered upon the footing of the original special contract. That case also differs from the present in one important fact, and that is, that the suit was brought by the assignees of the bankrupt owners, and not by a holder of the order.In the case of Mandeville vs. Welch, 5 Wheat. Rep. 277, 286, it was said by this court, that in cases where an order is drawn for the whole of a particular fund, it amounts to an equitable assignment of that fund, and after notice to the drawee it binds the fund in his hands. But where the order is drawn either on a general or a particular fund, for a part only, it does not amount to an assignment of that part, or give a lien as against the drawee, unless he consent to the appropriation by an acceptance of the draft, or an obligation to accept may be fairly implied from the custom of trade in the course of business between the parties as a part of their contract. The court were there speaking in a case where the suit was not brought by the assignee, but in the name of the original assignor, for his use, against the debtor; and it was therefore unnecessary to consider whether the remedy, if any, for the  assignee was at law, or in equity. \nThe case of Farmer vs. Russell, 1 Bos. and Pull. 295, so far as the point before us is concerned, asserts the principle that if A. receives money from B. to pay to C. it is money had and received for the use of the latter. In such a case it is immaterial whether the promise to pay over be express or implied; for by the very act of receipt, the party holds it, not for A. but in trust for C. See also Schermerhorn vs. Vanderheyden, 1 Johns. Rep. 139. Onion vs. Paul, 1 Harris and Johns. 114. Pigott vs. Thompson, 3 Bos. and Pull. 146, 149, note. \nThe case of Neilson vs. Blight, 1 Johns. Cases, 295, resolved itself substantially into this: that the defendant who was a sub-agent, had received the goods in question upon condition of paying to the plaintiff out of the first proceeds, a certain sum due to him, according to a written contract with  the agent, of which he had notice, and to which in a letter addressed to the plaintiff he admitted his obligation to comply; and the court held the plaintiff entitled to recover the amount in an action for money had and received. This was the case then, either of an express promise, by the sub-agent,  or at least of an mplied promise, irresistibly established, and creating a privity between the parties in a manner clear and unequivocal. \nAll these cases are distinguishable from the present. They are either cases where there was an express promise to hold the money subject to the order of the principal; or there was an implied promise to pay it over as it was received to the use of a particular person. The express promise to pay to order bound the party, and excluded any claim for a lien, and any defence on account of want of privity between him, and the holder of the order. The receipt of the money for the use of a particular person, necessarily imported a promise or obligation to hold it in privity for such person. \nIn the case at bar, no such irresistible presumptions exist. There was, as we have seen, no express promise to hold the proceeds of the sale subject to order; and no implied promise positively and necessarily flowed from the circumstances: on the contrary, the acts of Tiernan and Sons, contemporaneous with the receipt of the consignment, negatived it; and the actual assignment was subsequent to those acts. \nThe question is certainly a nice one; and confessedly new  in the circumstances of its actual presentation. On this account we were desirous of making some farther researches into the authorities; and we have found two cases not cited at the bar, which seem to us fully in point. The first is Williams vs. Everett, 14 East, 582. There K. abroad remitted certain bills to his bankers in London, directing them to pay certain sums out of the proceeds, when paid, to certain specified creditors. The bankers received the bills, and before they were paid, the plaintiff (one of the specified creditors) called on the bankers, and stated that he had received a letter from K. directing three hundred pounds to be paid to him out of the bills sent, and proposing to the bankers to indemnify them, if they would deliver to him one of the bills to the amount; but the bankers refused so to do, or to act upon the letter;  although they admitted the receipt of it, and that the plaintiff was the person to whom the sum of three hundred pounds was directed to be appropriated. The bankers afterwards received the money on the bills, and the plaintiff brought an action for money had and received, to recover the amount of the money so appropriated to him.  The court held that the action was not maintainable. Lord Ellenborough, in delivering the opinion of the court, said: \"the question which has been argued before us is, whether the defendants by receiving this bill did not accede to the purposes for which it was professedly remitted to them by K., and bind themselves so to apply it; and whether, therefore, the amount of such bill paid to them when due did not instantly become, by operation of law, money had and received to the use of the several persons mentioned in K.'s letter as the creditors, in satisfaction of whose bills it was to be applied; and of course as to three hundred pounds of it, money had and rcceived to the use of the plaintiff. It will be observed, that there is no assent on the part of the defendants to hold this money for the purposes mentioned in the letter; but, on the contrary, an express refusal of the creditor so to do. If, in order to constitute a privity between theplaintiffs and defendants, as to the subject of this demand, an assent express or implied be necessary; the assent can in this case by only an implied one, and that too implied against the express dissent of the parties to be charged. By the  act of receiving the bill, the defendants agree to hold it until paid; and its contents when paid to the use of the remitter. It is entire to the remitter to give, and countermand, his own directions respecting the bill as of ten as he pleases; and the persons to whom the bill is remitted may still hold the bill till received, and its amount, when received, for the use of the remitter himself; until by some engagement entered into between themselves with the person, who is the object  of the remittance, they have precluded themselves from so doing; and have appropriated the remittance to the use of such person. After such a circumstance, they cannot retract the consent they may have once given; but are bound to hold it for the use of the appointee. If it be money had and received for the use of the plaintiff, under the orders which accompanied the remittance; it occurs as fit to be asked, when  did it ecome so? It could not be so before the money was received on the bill becoming due. And at that instant, suppose thedefendants had been robbed of the cash or notes, in which the bill in question had been paid, or they had bene burnt or lost by accident; who  would have borne the loss thus occasioned? Surely the remitter K. and and not the plaintiff and his other creditors, in whose favour he had directed the application of the money according to their several proportions to be made.This appears to us to decide the question.\" This language has been quoted at large from its direct application, to all the circumstances of the case at bar. Here, Tiernan and Sons, before the sale and receipt of the proceeds of the tobacco, refused to hold the same for the use of Jackson; and how then could the money, when afterwards received, be money had and received to his use. If this case be law, it is in all its governing principles like the present. The case of Grant vs. Austin, 3 Price's Rep. 58, is still later; and recognises in the fullest manner the decision in 14 East, 582. That was the caseof a remittance to bankers, with a request that they would pay certain amounts to persons specified in the letter. No dissent on the part of the bankers was shown.But the court held, that in order to constitute an appropriation of the money, or anyportion of it in favour of the opersons specified, some assent on the part of the bankers must be shown; and  that the circumstances of the case did not establish it. The remitter was at the time largely indebted to the bankers; and the account between the parties was soon after broken up. \nIt seems to us that these authorities are founded in good sense and convenience: until the parties, receiving the consignment or remittance, had done some act recognising the appropriation of it to the particular purposes specified, and the persons claiming had signified their acceptance of it, so as to create a priority between them; the property and proceeds remained at the risk and on the account of the remitter, or owner. \nIn this view of the case, it is wholly immaterial to decide whether Tiernan and Sons had a lien on the proceeds, or not, for the balance due them; or whether the negotiations, stated in the record, created a disability on their part to assert it.  For, even supposing that they have no available lien, that is a matter which cannot be litigated in a suit at law, where the only question is, whether the plaintiff has a good right to maintain his action; whatever might be the case in a suit in equity, brought by the plaintiff to enforce his equitable claims under his assignment. \n The instructions given by the court decided that the assignment made to the plaintiff did, in effect, pass the legal property in the proceeds to the plaintiff, so as to entitle him to maintain the present action; or, that at all events, it constituted such a special appropriation of them, as would enable the plaintiff, as assignee, to maintain it. We are of opinion, that the court erred upon both grounds; and that therefore the judgment ought to be reversed, and the cause be remanded to the circuit court, with directions to award a venire facias de novo. \nIn the mandate, the errors in the bill of exceptions will be specially pointed out; but as the principles involved in them are resolved into the points before stated, they need not here be particularly commented on. \nThis cause came on to be heard on the transcript of the record from the circuit court of the United States, for the district of Maryland, and was argued bycounsel; on consideration whereof, it is considered by the court here, that there was error in the circuit court in refusing to instruct the jury upon the prayer of the defendant's counsel, that the assignment made by Thomas H. Fletcher, dated the 21st May 1819, and  acknowledged and delivered on the 26th May 1819, and indorsed on the copy of the invoice, as stated in the evidence, did not pass such a legal title to any part of the proceeds of the tobacco shipped by the brig Struggle, as will enable the plaintiff to support this acton in his own name; and in instructing the jury that such an assignment, connected with the character of the consignment of the cargo of the Struggle to the defendants, was sufficient to enable the plaintiff to support this action in his own name.And there was error also in the circuit court, in refusing to instruct the jury, that the invoice, letter of advice, and bill of loading, taken together do,  not constitute such a special appropriation of the cargo of the brig Struggle, or of the proceeds thereof, to the order of Thomas H. Fletcher, as will enable his assignee in this case to maintain this action in his own name, upon the assignment of May 21st, 1819. It is therefore considered by the court here, that for the errors aforesaid, the judgment of the circuit court be, and the same is hereby reversed; and that the cause be and the same is hereby remanded to the circuit court, with directions to award  a venire facias de novo. \n \n\n ", " \nOpinion \n\n \n \n  Mr Justice STORY delivered the opinion of the Court. \nThis case comes before the court upon a certificate of division of opinion of the judges of the circuit court for the district of North Carolina. \nThe suit is an information by the United States in the nature of a bill in equity, seeking to recover against the defendant, and Talcott Burr, as the assignee of William H. Lippett, the amount of custom house bonds owing by Lippett t the United States; Lippett having become insolvent, and having made a voluntary assignment of all his property to Burr, for the benefit of his creditors, by which he has given a preference of payment to certain creditors, who are made defendants;  and, among others, to the State Bank of North Carolina, before payment to the United States. The Bank of North Carolina appeared and pled a demurrer to the information; and, upon the argument of that demurrer, it occurred as a question, whether the priority to which the United States are entitled, in case of a general assignment made by the debtor of his estate for the payment of debts, comprehends a bond for the payment of duties executed  anterior to the date of the assignment, but payable afterwards. Upon this question the judges were divided in opinion; and it now stands for the decision of theis Court. \nThe right of priority of payment of debts due to the government is a prerogative of the crown well known to the common law. It is founded not so much upon any personal advantage to the sovereign, as upon motives of public policy, in order to secure an adequate revenue to sustain the public burthens and discharge the public debts. The claim of the United States, however, does not stand upon any sovereign prerogative, but is exclusively founded upon the actual provisions of their own statutes. The same policy, which governed in the case of the royal prerogative, may be clearly traced in these statutes; and as that policy has mainly a reference to the public good, there is no reason for giving to them a strict and narrow interpretation. Like all other statutes of this nature, they ought to receive a fair and reasonable interpretation, according to the just import of their terms. \nThe first enactment on this subject will be found in the duty collection act of 4th of August 1790, chapter 62, section 45, which provides,  that \"where any bond for the payment of duties shall not be satisfied on the day it became due, the collector shall forthwith cause a prosecution to be commenced for the recovery of the money thereon by action or suit at law in the proper court having cognizance thereof. And, in all cases of insolvency, or where the estate in the hands of the executors or administrators shall be insufficient to pay all the debts due from the deceased, the debt due to the United States on any such bond shall be first satisfied.\" So that, in point of fact, the priority was first applied to bonds for the payment of duties, and to persons engaged in commerce; which disposes of that part of the argument of the defendant  which has been founded upon a supposed policy of the government to favour merchant importers in preference to any other class of their debtors. \nThen came the act of 3d of March 1791, chapter 75, which extended the right of priority of the United States to other classes of debtors, and gave a definition of the term insolvency, in its application to the purposes of the act. It provides, \"that, where any revenue or other officer, or other person hereafter becoming indebted to  the United States, by bond or otherwise, shall become insolvent, or where the estate of any deceased debtor in the hands of executors or administrators shall be insufficient to pay all the debts due from the deceased, the debt due to the United States shall be first satisfied; and the priority hereby established shall be deemed to extend as well to cases in which a debtor, not having sufficient property to pay all his debts, shall make a voluntary assignment thereof, or in which the estate of an absconding, concealed, or absent debtor shall be attached by process of law, as to cases in which an act of legal bankruptcy shall be committed.\" This act is still in force; and unless its application to the present case is intercepted by the act of 1799, chapter 128, its terms would seem sufficiently broad to embrace it. The language is, where any person \"becoming indebted to the United States by bond or otherwise\" (which clearly includes a debtor upon a custom house bond) \"shall become insolvent,\" (which is the predicament of Lippett) \"the debt due to the United States shall first be paid.\" What debt  is here referred to? A debt which is then actually payable to the United States?  Or a debt then arising to the United States, whether then payable, or payable only in futuro? We think the latter is the true construction of the term of the act. The whole difficulty arises from the different senses in which the term \"due\" is used. It is sometimes used to express the mere state of indebtment, and then is an equivalent to owed, or owing. And it is sometimes used to express the fact that the debt has become payable. \nThus, in the latter sense, a bill or note is often said to be due, when the time for payment of it has arrived. In the former sense, a debt is often said to be due from a person, when he is the party owing it, or primarily bound to pay, whether the time of payment has or has not arrived. This  very clause of the act furnishes an apt illustration of this latter use of the term. It declares that the priority of the United States shall attach \"where the estate of any deceased debtor, in the hands of executors or administrators, shall be insufficient to pay all the debts due from the deceased.\" Here the word \"due\" is plainly used as synonymous with owing. In the settlement of the estates of deceased persons, no distinction is ever taken between  debts which are payable before or after their decease. The assets are equally bound for the payment of all debts. The insufficiency spoken of in the act, is an insufficiency not to pay a particular class of debts, but to pay all debts of every nature. Now, if the term \"due,\" in reference to the debts of deceased persons, means owing, and includes all debts, whether payable in presenti or not; it is difficult to perceive how a different meaning can be given to it, in regard to the debt of the United States, considering the connexion in which it stands in the sequel of the same sentence. \"Where the estate, &c. shall be insufficient to pay all the debts due from the deceased, the debt due to the United States shall be first satisfied.\" The obvious meaning is, that in case of a deficiency of assets, the debt owing to the United States shall be paid before the debts owing to the other creditors. \nThe only real doubt in the present case, arises from the phraseology of the sixty-fifth section of the act of the 2d of March 1799, chapter 128; which provides, that \"where any bond for the payment of duties shall not be satisfied on the day it may become due, the collector shall forthwith,  and without delay, cause a prosecution to be commenced for the recovery of the money thereon, in the proper court having cognizance thereof. And in all cases of insolvency, or where any estate in the hands of executors, administrators or assignees, shall be insufficient to pay all the debts due from the deceased, the debt or debts due to the United States on any such bond or bonds, shall be first satisfied.\" The argument is, that the words \"any such bond or bonds\" refer to the bonds mentioned in the introductory part of the sentence, that is, to bonds for duties which have become payable, and are not paid. But we think, that this construction is not necessary or unavoidable. The words csuch bond or bonds\" are fully satisfied by referring them as matter of description to bonds for the payment  of duties, whether then payable or not. The description is of a particular class of bonds, viz. for the payment of duties, and not of the accidental circumstance of their time of payment. \nNo reason can be perceived, why, in cases of a deficiency of assets of deceased persons, the legislature should make a distinction between bonds which should be payable at the time of their decease,  and bonds which should become payable afterwards. The same public policy which would secure a priority of payment to the United States in one case, applies with equal force to the other; and an omission to provide for such priority in regard to bonds payable in futuro, would amount to an abandonment of all claims, except for a pro rata dividend. In cases of general assignments by debtors, there would be a still stronger reason against making a distinction between bonds then payable and bonds payable in futuro; for the debtor might, at his option, give any preferences to other creditors, and postpone the debts of the United States of the latter description, and even exclude them altogether. In the case before the court, the assignment expressly postpones the claims of the United States in favour of mere private creditors. It would be difficult to assign any sufficient motive for the legislature to allow the public debtors to avail themselves of such an injurious option. If, then, no reason can be perceived for such a distinction, grounded upon public policy; the language ought to be very clear, which should induce the court to adopt it. There should be no other rational means  of interpreting the terms, so as to give them their full and natural meaning. This, we think, is not the predicament of the present language. Every word may have a fair construction, without introducing any such restrictive construction. There is this additional consideration which deserves notice, that, in our view, the act of 1797, chapter 74, clearly embraces all debts of the United States, whether payable at the decease of the party or afterwards. There is no reason to presume that the legislature intended to grant any peculiar favour to merchant importers; for otherwise the priority of the United States would have been withdrawn from all bonds for duties, and not (as the argument supposes) from a particular class of such bonds. And as there is no repeal of the act of 1797, chapter 74, except such as may  arise by implication from the terms of the sixty-fifth section of the act of 1799, chapter 128; if these terms cover only cases of bonds actually become due, they leave the act of 1797 in full force with regard to all other bonds. \nBut if this reasoning were less satisfactory to our minds than it is, there is another ground upon which we should arrive at the same  conclusion. The act of 1799, chapter 128, in the sixty-second section, prescribes the form of bonds for the payment of duties. It is the common form of a bond with a penalty upon a condition underwritten. The obligatory part admits a present existing debt due to the United States, which the party holds himself firmly bound to pay to the United States. The condition, in a legal sense, constitutes no part of the obligation, but is merely a condition, by a compliance with which the party may discharge himself from the debt admitted to be due by the obligatory  clause. And accordingly it is well known, that in declarations on bonds with a condition, no notice need be taken of the existence of the condition. If the debtor would avail himself of it, he must pray oyer of it, and plead it by way of discharge. In the strictest sense, then, the bond is a debitum in presenti, though looking to the condition it may be properly said to be solvendum in futuro: and we think that it is in the sense of this maxim, that the legislature is to be understood in the use of the words, \"debt due to the United States.\" Wherever the common law would hold a debt to be debitum in presenti, solvendum  in futuro, the statute embraces it just as much as if it were presently payable. \nIt is not unimportant to state, that the construction which we have given to the terms of the act, is that which is understood to have been practically acted upon by the government, as well as by individuals, ever since its enactment. Many estates, as well of deceased persons, as of persons insolvent who have made general assignments, have been settled upon the footing of its correctness. A practice so long and so general, would, of itself, furnish strong grounds for a liberal construction; and could not now be disturbed without introducing a train of serious mischiefs. We think the practice was founded in the true exposition of the terms and intent of  the act: but if it were susceptible of some doubt, so long an acquiescence in it would justify us in yielding to it as a safe and reasonable exposition. \nThis opinion will be certified to the circuit court of the North Carolina district. \nThis cause came on to be heard on the transcript of the record from the circuit court of the United States for the district of North Carolina, and on the point and question on which the judges of the said  circuit court were opposed in opinion, and which was certified to this Court for its opinion, agreeably to the act of congress in such case made and provided, and was argued by counsel; on consideration whereof, it is ordered and adjudged by the Court, that it be certified to the circuit court of the United States for the district of North Carolina, upon the question upon which the judges of that court were divided, and which has been certified to this court; that this court is of opinion that the priority to which the United States are entitled in case of a general assignment made by a debtor of his estate for the payment of debts, comprehends a bond for the payment of duties, executed anterior to the date of the assignment, but payable afterwards. \n \n\n ", " \nOpinion \n\n \n \n  Mr Justice STORY delivered the opinion of the Court. \nThis is a writ of error to the circuit court for the district of Ohio. The original action was an ejectment brought by the defendant in error against the plaintiff in error, and the declaration (which contains several counts) describes the land demanded by specific  metes and bounds. At the trial the jury found a verdict in the following terms. \"We, the jury, find the defendant guilty of the trespass in the plaintiff's declaration  mentioned, and do assess the plaintiff's damages to one cent, and that the plaintiff do resover of the defendant the land described as follows, viz. beginning at the stone planted in Spencer's orchard designated on Looker's Map (referring to the diagram and report of the survey in court) by the letter B.; thence running in a north-westerly direction to a point in Dock's line, one hundred and twenty-four poles; eastwardly on Dock's line from the point marked D. on Looker's Map, a bickory and dog wood, thence westwardly with Dock's line one hundred and twenty-four poles, to the hickory and dog wood aforesaid; thence running in a south-westerly direction to Taliaferro's line to the place of beginning.\" The counsel for the plaintiff then moved the court to instruct the jury to find a general verdict; and thereupon the court did instruct the jury to find a general verdict, saying that the plaintiff would take possession at his peril; which general verdict was found by the jury accordingly: and to this instruction  the defendant excepted. Other exceptions were taken in the progress of the trial, but they have been abandoned at the argument; and the only question presented for our consideration is upon the instruction already mentioned. \nFrom the survey ordered by the court, as well as from the other proceedings and evidence in the cause, it abundantly appears, that the case was one of conflicting titles, and the controversy was principally as to boundaries. The verdict of the jury, as originally found, was for part only of the land sued fer in the ejectment; fixing upon an intermediate line of boundary, different from that asserted by either party. It was, therefore, equivalent to a verdict finding a part of the tract of land sued for in favour of the plaintiff, and the residue in favour of the defendant. In other words, that the defendant was guilty of the ejectment as to a part, and not guilty as to the residue of the land described in the declaration. \n The real question, then, before the court is, whether the plaintiff, upon the proof of a title to a part of the premises sued for in the ejectment, is by law entitled to a general verdict for the whole of the premises sued for. That the action of ejectment is a fictitious action, and is moulded by courts to subserve the purposes of justice in a manner peculiar to itself, is admitted, but its professed object is to try the titles of the parties  and the jury are bound to pass upon those titles, as they are established by the evidence before them. They, therefore, do no more than their duty when they find a verdict for the plaintiff, according to the extent and limits of his title, as it is proved by the evidence.It is equally their right so to do, since it is comprehended in the issue submitted to their decision. If, therefore, they find by their verdict according to the truth of the case, that the plaintiff has title to part only of the premises in the declaration, and describe it by metes and bounds, and that so far the defendant is guilty; and as to the residue, find the issue for the defendant; such a verdict, in point of law, would seem to be unexceptionable; and if so, the judgment following that verdict ought to conform to it; and if it should be a general judgment for the whole premises demanded in the declaration, it would be erroneous. Such, upon principle, and the analogies of the  common law, would be the just result; and the authorities clearly establish the doctrine, and it is confirmed as a matter of practice by the best text writers on the subject. Adams on Ejectment, 294. Runnington on Ejectment, 432. Bac. Abridg. Ejectment, F.G. Thus in Mason v. Fox, Cro. Jac. 631, where in an ejectment the jury found the defendant guilty as to part of the premises in the declaration, and not guilty as to the residue; all the judges were of opinion that the judgment ought to conform to the verdict, for it was consequent upon the verdict; but that an entry of a general or variant judgment was not a misprision of the clerk, and amendable even after error brought. In Denn d. Burgess v. Purvis, 1 Burr. 326, the plaintiff sued for a moiety of a certain parcel of land, and had a verdict for one third part of the premises; and the question was, whether in such a case the plaintiff could recover for a less undivided part than he sued for. The court held that she could, and that she was entitled to a judgment for the one third. Lord Mansfield on that occasion said, the rule undoubtedly is, that the plaintiff must recover according to his title. Here she demanded half, and  she appears entitled to a third, and so much she ought to recover; so, if you demand forty acres, you may certainly recover twenty acres; every day's experience proves this. And, he added, that the case of Abbott v. Skinner, 1 Sid. Rep. 229, was directly in point. In 2 Roll. Abridg. tit. Trial, p. 704,  pl. 22, there is a case where an ejectment was brought of a messuage, and it appeared in evidence and was so found by the verdict that only a small part of the messuage was built by incroachment on the lessor's land, not the residue. And the plaintiff had judgment for the parcel accordingly. Taylor v. Wilbore, Cro. Eliz. 768. These authorities (and the American authorities cited at the bar are to the same effect) demonstrate that the plaintiff is entitled to recover only according to his title; and that if he shows a title to part only, he is entitled to have a verdict and judgment for that part, and no more. If this be the true state of the law, then the jury were right in their original verdict; and the instruction of the court, that they should find a general verdict (the plaintiff having established a title to only a part of the land) was erroneous. \nBut it has  been argued, that such a general verdict, under such circumstances, is a matter of mere practice, and involves no inconvenience or repugnancy to the general principles of law, because the plaintiff must still at his peril take possession under his executor upon a general judgment on such verdict, according to his title. That the whole proceedings in ejectment are founded in fictions, and the court will, in a summary manner, restrain the plaintiff if he takes possession for more than his title, so that no injustice can be done to the defendant. And certain authorities have been relied upon in support of these suggestions. But in what manner can the court, in a case circumstanced like the present, interfere with the plaintiff in taking possession. If the special finding of the jury in the case of interfering titles on a question of boundary, which may; and indeed usually does involve a comparison of the conflicting testimony of witnesses and other parol evidence, is to be set aside and disregarded, there is nothing upon the record to guide the plaintiff in regard to the extent of his title in taking possession; and he must be at liberty to take possession according to his own view  of the extent of his title: nor can the court have, in such a case, any certain means to interfere, upon a summary application to redress any supposed excess of the plaintiff, for that would be in matters of fact to usurp the functions of a jury, and to re-try the cause upon its facts and merits, without their assistance. It might be different in a case where the plaintiff's title, as he proved it at the trial, was  upon his own showing, less than the lands of which he had taken possession; for that would involve no examination or decision upon conflicting matters of fact; and after all, what could this be, but an attempt, indirectly, to do that justice between the parties, which the original verdict sought to do directly, and in a manner tntirely conformable to lawl? \nAs to the authorities relied on to sustain the practice of entering a general verdict, they do not in our opinion justify the doctrine for which they are cited. The language cited from Adams on Ejectment (p. 297) has been misunderstood. It does not mean that where the plaintiff obtains a verdict for a part of the premises only, he is entitled to a general judgment for the whole premises sued for; for that  would be inconsistent with what the author has said in a preceding page (p. 294); 1 but only that the same form of entering the judgment for the parcel recovered is adopted as in cases where the whole is recovered; as for example, if the plaintiff declares for forty acres in it, and he recovers only twenty acres, his judgment must be for the twenty acres; and it is at his peril that he takes out execution for no more  than he has proved title to, since otherwise his execution would be bad, as not conforming to the judgment. 2 The case of Cottingham v. King, 1 Burr. 621, was the case of a writ of error from Ireland, and the only question was whether the declaration, which was for five thousand messuages, five thousand cottages, &c. a auarter of land, &c. &c. was not void for uncertainty; a general verdict having been given for the plaintiff. One objection was, that the declaration was too uncertain to enable the sheriff to deliver possession, to which Lord Mansfield replied, that in this fictitious action the plaintiff is to show the sheriff, and is to take possession at his peril of only what he was entitled to. If he takes more than he has recovered and shown title  to, the court will, in a summary way, set it right. Now it is plain that his lordship was here addressing himself to a case where the declaration was general, and the verdict was general for the whole premises; and not to a case where there was a verdict for a specified parcel only of the premises. In the case  put, the judgment would be general, and the execution would conform to it; and therefore if the plaintiff took possession beyond his own title established at the trial, the court might interfere in a summary manner to prevent such a general recovery from working injustice. The same doctrine was afterwards held in Conner v. West, 5 Burr, 2672. But neither of these cases has any tendency to show, that upon proof of title to part of the premises the plaintiff is entitled, as a matter of right, to a general verdict and judgment for the whole premises in the declaration. Such a point was never argued, nor considered by the court. \nThe case of Knouns v. Lawall, lessee of Grayson,  cited from 2 Bibb, 236, aproaches nearer to the present -- without meaning to express any opinion as to the correctness or incorrectness of the decision in that case, it is sufficient to say, that it is distinguishable from the case now before us. In that case, the court held the special finding of the jury void for uncertainty, and rejected it as surplusage; and then considered the finding of the jury as a general verdict for the plaintiff, upon which he might properly have a general judgment. No such objection occurs against the special finding in the present case, and we may decide it without touching the authority of that decision. \nUpon the whole, our opinion is, that the instruction of the circuit court was erroneous. It was not a mere matter of practice, but one involving essential rights of the defendant. \nThe judgment is therefore reversed, and the cause is to be remanded to the circuit court with directions to award a venire facias de novo. \n \n\n ", " \nOpinion \n\n \n \n  Mr Justice STORY delivered  the opinion of the Court. \nThis case, upon all the leading points, presents the same facts and circumstances which were before this court in the  cases of Conard v. The Atlantic Insurance Company, 1 Peters's Sup. Rep. 386, and Conard v. Nicoll, 4 Peters's Sup. Rep. 291. Those cases underwent the most deliberate consideration of the court, and we are entirely satisfied with the doctrines maintained in them. The present case has been submitted without argument, and contains, at large, the charge of the learned judge who presided at the trial; a practice which this court has often disapproved, and deems incorrect, and for the continuation of which, nothing but the peculiar circumstances  of the present class of cases could furnish any just apology. \nThe only points to which it is now necessary to advert, are those which are not embraced in the former cases, reported in the first and fourth volumes of Peters's Reports. \nAt the trial the plaintiffs offered to prove a demand of the collector, and a refusal by him after the levy was made to permit an entry and delivery of the goods at the custom house; but the counsel for the defendant objected to such proof, and the  objection was overruled by the court, and the evidence given. And we are of opinion that this evidence was properly admitted. The ground of this objection must have been that the plaintiffs were not the legal owners and consignees of the goods, and so were not entitled to make an entry of them at the custom house, and to have a delivery of them after such entry. But to this the proper answer is given by the learned judge in his charge, in conformity to the prior decisions of this court. The plaintiffs were both owners and consignees. The consignment of the homeward cargo was to order; and the plaintiffs, in virtue of the assignment, and the indorsement and possession of the bills of lading and the other transactions stated in the case, became consignees as well as owners of the homeward cargo; and as such were already entitled to enter the same, and to have delivery thereof upon giving bonds in conformity with the provisions of the duty collection act of 1799, ch. 128. The thirty-sixth and sixty-second sections of that act clearly confer the right; and the proviso of the sixty-second section in nowise restrains it in cases like the present. \nAnother point, which appears to have  been pressed by the counsel for the defendant at the trial, is that the United States had a lien upon, and a possession of the goods constituting the homeward cargo, at the time of their importation for the  amount of duties accruing thereon, and that the plaintiffs, not having an actual or constructive possession, could not maintain the present action and Harris v. Dennie, 3 Peters's Sup. Rep. 292, was relied on in support of this objection to the recovery: but that case has no bearing on the point. It decided no more, than that no creditor could, by any attachment or process, take the goods upon their importation out of the possession of the United States, until the lien of the United States for the duties accruing thereon was actually discharged, either by payment of the duties, or by giving security therefor, according to the requirements of law on the part of the importer. There is no doubt that if the importer has the general right and property in the goods, that right draws after it a constructive possession, and the master of the ship is but a bailee, maintaining that possession for his benefit. And there is no pretence to say that the property of the importer  in the goods is divested by any possession subsequently taken by the United States after the arrival of the goods, for the purpose of maintaining their lien for duties. That possession is not adverse to the trile of the importer; and indeed it may be properly deemed not so much an exclusive as a concurrent and mixed possession, for the joint benefit of the importer and of the United States. It leaves the importer's right to the immediate possession perfect, the moment the lien for the duties is discharged; and if he tenders the duties, or the proper security therefor, and the collector or other officer refuses the delivery of the goods, it is a tortious conversion of the property, for which an action of trespass or trover will lie. But this case does not even present that peculiarity; for the seizure of the goods was not under any authority to take possession in order to secure the duties, but it was made by the defendant, as marshal, to satisfy an execution against Edward Thomson, who had at the time no property or interest in the goods. The act was, therefore, the common case of an unlawful seizure and levy of one man's property to satisfy an execution against another man; and  in such a case, trespass is clearly a fit and appropriate remedy. \nAnother point was, that the agreement of the 9th of October 1826 stated in the case, connected with the facts in evidence, amounted to a release or waiver by the plaintiffs, of all demand  for damages arising from the acts of the officers of the United States in taking possession of and detaining the goods in question. Upon this point it is unnecessary to say more than that the agreement itself repels any such notion of a release or waiver; and it was expressly overruled in Conard v. Nicoll, 4 Peters's Rep. 292. \nAnother point was as to the rule of damages; and here the learned judge in his charge seems to have laid down the very rule contended for by the defendant's counsel. The case not being one which called for vindictive or exemplary damages, he charged the jury (in conformity to the decision in Conard v. Nicoll), that the plaintiffs were entitled to recover such damages only, as they had proved themselves entitled to on account of the actual injury sustained by the seizure and detention of the goods: and in ascertaining what those damages were, he directed them that the plaintiffs had a right to recover  the value of the goods (teas) at the time of the levy, with interest from the expiration of the usual credit on extensive sales. And in the close of the charge, he farther directed them to deduct therefrom the net amount of the sales of the teas (they had been sold under the arrangements stipulated in the agreement of the 9th of October 1826), after payment of duties and charges of sale, and that the balance would be the amount to which the plaintiff would be entitled. In what manner the jury actually applied these directions in forming their verdict does not appear; and there is no reason to suppose that they have not been applied as favourably as the circumstances of the case justified. \nUpon the whole, upon a careful review of the charge, and of the points upon which the counsel of the defendant requested the direction of the court to the jury, we can perceive no error in point of law applicable to the present case, which calls for the interposition of the corrective power of this court. \nThe judgment of the circuit court is therefore affirmed, together with interest upon the amount, at the rate of six per centum as additional damages and costs. \n \n\n ", " \nOpinion \n\n \n \n  Mr Justice STORY delivered the opinion of the Court. \nThis is a writ of error to the circuit court of the district of Columbia. The original action was an ejectment,  brought in May 1818, by the plaintiff in error, against the defendant in  error, for a certain lot of ground, number 17, square 75, in the city of Washington, and was founded upon demises. Upon the trial (which was at December term 1829), a verdict was found for the defendant, upon which he had judgment. Two bills of exceptions were taken at the trial on behalf of the plaintiff; and the questions for the consideration of this court grow out of the matter of those exceptions. \nThe first bill of exceptions states, that at the trial a title to the premises in controversy was deduced from the state of Maryland, by mesne conveyances to James Greenleaf, the lessor of the plaintiff, in September 1794. Whereupon the defendant, to show a title out of the plaintiff, gave in evidence to the jury a deed from Greenleaf to Robert Morris and John Nicholson, dated the 13th of May 1796, the due execution of which was admitted, and offered no other evidence. Whereupon the plaintiff's counsel prayed the court to instruct the jury, that the said deed, unaccompanied by any other evidence, did not show such an outstanding title as was sufficient to bar the plaintiff's recovery in the suit;  which instruction the court refused to give; to which refusal the plaintiff's counsel excepted. And the question before this court is, whether this exception is well founded. \nThe deed of Greenleaf to Morris and Nicholson purports to grant to them in fee as tenants in common, \"except as is hereinafter excepted, all those hereinafter mentioned and described lots, squares, lands and tenements situate in the city of Washington, in the District of Columbia, wherein the said James Greenleaf, and the said Robert Morris and John Nicholson were jointly interested, in each one equal undivided third part, on the day of the date of the above named articles of agreement\" (the 10th of July 1796), &c. &c. It then proceeds to specify three squares and lots contracted for by Greenleaf, with the commissioners of the city of Washington; and three thousand lots contracted for by Greenleaf, as agent of Morris, with the same commissioners; and about two hundred and twenty lots, contracted for by Greenleaf with Daniel Carroll; and about four hundred and twenty-eight and a half lots contracted for by Greenleaf with Notley Young: and then proceeds, \"and also all those lots situate in the said city of Washington,  supposed to be about two hundred and thirty-nine and one  quarter in number, for which the said James Greenleaf contracted with Uriah Forrest and Benjamin Stoddert by an agreement in writing, bearing date, &c. (15th of July 1794). The lot sued for was one of these lots, and was included in a conveyance made by Forrest and Stoddert to Greenleaf on the 24th of September 1794. Several other parcels of lots are then specified; and then comes the following exception: \"excepting, nevertheless, out of the lots, squares, lands, and tenements above mentioned, all that square marked and distinguished in the plan of the said city of Washington by the number 506, and that other square lying next to and south of the said number 506, and all that other square lying next to and south of the square last aforesaid, the said square containing, &c. &c., which it is agreed, &c. shall be and remain the sole and separate property of the said James Greenleaf, and his heirs and assigns. And excepting also all such squares, lots, lands, or tenements as were either conveyed or sold, or agreed to be conveyed either by all or either of them, the said James Greenleaf, Robert Morris, or John Nicholson,  or any of their agents or attorneys, to any person or persons whatsoever, at any time prior to the said 10th day of July, A.D. 1795. \nIt is observable that the granting part of the deed begins by excepting from its operation all the lots, squares, lands and tenements which are within the exceptions. The words are, \"doth grant, &c. except as is hereinafter excepted, all those hereinafter mentioned and described lots, squares, lands and tenements,\" &c. In order, therefore, to ascertain what is granted, we must first ascertain what is included in the exception; for whatever is within the exception, is excluded from the grant; according to the maxim laid down in Co. Litt. 47 a, si quis rem dat et partem retinet, illa pars quam retinet semper cum eo est, et semper fuit. \n It has been argued that the second clause in the exception is utterly void for uncertainty, because it excepts \"such squares, lots, &c. as were either conveyed or sold, or agreed to be conveyed,\" without stating to whom sold or conveyed, or agreed to be conveyed, or giving any other description which would reduce them to certainty. And it has been intimated that it is also void for repugnancy, because it  is an exception of a part which had been previously granted; and Co. Litt.  47 a, has been relied on in support of this objection; where it is laid down that an exception of a thing certain out of a thing particular and certain, will be void; as, if a man leaves twenty acres, excepting one acre, the exception is void. Com. Dig. Fait, E. 7. But without stopping to inquire in what sense, and to what extent the rule thus laid down is law, it is sufficient to say that there is no such repugnancy here; for the exception is not out of the thing previously granted, but is incorporated into the very substance of the granting clause. \nAs to the other exception, we do not think it is void for uncertainty. It refers to things by which it may be made certain; and id certum est, quod certum reddi potest. No one will doubt that the exception of squares and lots actually sold and conveyed, would be sufficiently certain; for they may be made certain by reference to the deeds of conveyance. And as all contracts for the sale and conveyance of lands must be in writing, there seems the same certainty in reference to the lots contracted to be conveyed by the parties or their agents. \nIt  has been suggested, that the generality of the exception might open a door to frauds and impositions upon third persons, by enabling the parties to bring forward spurious or concealed contracts at a future time. But to this objection it is a sufficient answer, that the present is not a case of a bona fide purchaser or grantee, whose title may be affected by any such fraud or concealment. The defendant, Birth, is a mere stranger to the title, and for aught that appears, is a mere intunder. It does not lie in his mouth to contend that an exception, solemnly stipulated for by the parties, shall not be binding between them. They were content to take the conveyance upon these terms. There was certainly enough in the exception to satisfy them; and it would be a fraud in the grantees to attempt to avail themselves of the general and loose expressions of the exception, to avoid the titles of parties claiming title under Greenleaf by prior deeds or contracts of lots within the reservation. Even if the exception were void at law, a court of equity would relieve them against the claims of Morris and Nicholson, set up to their prejudice. It is not improbable that many such titles in this  city are now held under the faith of this exception; and a declaration, at the instance of a mere  intruder, that it was utterly void, might work the most serious mischiefs. We see no substantial ground to support it. \nBut if it were otherwise; still the other exception of the square number 506, and the other two squares next south of it, are sufficiently certain. This court cannot judicially know that one of the squares next south of square number 506 is not square number 75; and there is nothing in the record that negatives it, for the defendant offered no evidence except the naked deed. \nBut it is said that if the exception is not void, still the burthen of proof is upon the plaintiff to establish that the lot in controversy is within the exception; because it is peculiarly within the privity and knowledge of the plaintiff's lessor what lots were conveyed and sold, and contracted to be conveyed, and the defendant has no means of knowledge. That in many cases the burthen of proof is on the party within whose peculiar knowledge and means of information the fact lies, is admitted. But the rule is far from being universal, and has many qualifications upon its application.  In the present case the plaintiff has shown, prima facie, a good title to recover. The defendant sets up no title in himself, but seeks to maintain his possession as a mere intruder, by setting up a title in third persons, with whom he has no privity. In such a case it is incumbent upon the party setting up the defence, to establish the existence of such an outstanding title beyond controversy. It is not sufficient for him to show that there may possibly be such a title. If he leaves it in doubt, that is enough for the plaintiff. He has a right to stand upon his prima facie good title, and he is not bound to furnish any evidence to assist the defence. It is not incumbent on him, negatively, to establish the non-existence of such an outstanding title; it is the duty of the defendant to make its existence certain. \nBesides, this is the case of an outstanding title set up under a deed executed in 1796, under which, in respect to the act in controversy, the grantees are not shown either to have had, or to have claimed any possession or right of possession. The present ejectment was brought in 1818, twenty-two years after the execution of that deed; and the trial had in 1829, more  than thirty-three years after its execution. Under such circumstances,  a very strong presumption certainly arises that the lot was included within the exception; for it would be difficult in any other manner to account for such total absence of claim, or possession, by the grantees. An outstanding title could hardly be deemed a good subsisting title by common presumption, under such circumstances; whereas, if the lot was within the exception, the non-claim would be natural and fully accounted for. We are therefore of opinion that the circuit court erred, in refusing the instruction prayed for by the plaintiff in the first bill of exceptions. \nThe second bill of exceptions, after stating that the defendant admitted that the legal title to the lot in question, under the patent from the state of Maryland, was vested in the plaintiff by the patent, and by divers mesne conveyances on the 30th day of August 1799, proceeds to state, that, thereupon, to prove a title out of James Greenleaf, the defendant offered in evidence to the jury, the proceedings in the case of James Greenleaf, an insolvent before the chancellor of Maryland, and the act of Maryland of 1798, ch. 64; to  the admission of which proceedings the plaintiff objected; but the court overruled the objection and admitted the evidence; and thereupon, on the prayer of  the defendant, the court instructed the jury, that the said act of 1798, and the proceedings of insolvency, did show a legal title out of the plaintiff, and did preclude a recovery in this suit on the first count in the plaintiff's declaration; that is to say, upon the demise of Greenleaf. \nThe plaintiff's counsel thereupon gave in evidence the proceedings in the case of the insolvency of Greenleaf, in the commonwealth of Pennsylvania, and the conveyances therein mentioned, not recorded in the state of Maryland; and prayed the court to instruct the jury, the under the operation of the said proceedings in Maryland and Pennsylvania, the legal title to the premises in the declaration, notwithstanding said conveyances, was not divested from Greenleaf, by any thing by the defendant so shown; which instruction the court refused to give: to which refusal, and instruction, and admission of evidence the plaintiff excepted. \nBy the laws of Maryland, (with certain exceptions not necessary to be mentioned) no conveyance is sufficient  to pass any estate of inheritance or freehold in lands, or any estate  above seven years, except the deed or conveyance be in writing, and acknowledged in the general court, or before a judge thereof, or in the county court, or before two justices of the county where the lands lie, &c. &c., and be enrolled in the records of the county, or of the general court, within six months after the date thereof; see act of 1715, ch. 47; act of 1767, ch. 14; act of 1783, ch. 9; act of 1794, ch. 57; act of 1798, ch. 103. Neither the deed of assignment of Greenleaf to the trustee under the Maryland insolvency, nor the deed of assignment of Greenleaf to the trustees, under the Pennsylvania insolvency, have ever been enrolled in the general court, or in the county where the land in controversy lies. Unless, then, some exception can be found which exempts these assignments from the general law, the omission to enrol them renders them, in a legal sense, mere nullities, and incapable of passing any title to the land in controversy. There is no pretence of any exception in relation to the assignment under the Pennsylvania proceeding; and therefore that did not divest the title of Greenleaf.  But in regard to the Maryland proceedings, it is said that there is, under the act of 1798, ch. 64, respecting insolvents, a constructive exception. That act provides, section fifth, that upon the petitioning debtor's (and Greenleaf was in that predicament) executing and acknowledging a deed to the trustee to be appointed, as the act requires, conveying all his property, real, personal, and mixed, &c. and the trustee's certifying the same, it shall be lawful for the chancellor to order that the said debtor shall be discharged from all debts, &c. Greenleaf was accordingly discharged, having in this respect complied with the terms of the act. The fifteenth section of the act provides \"that all proceedings under this act shall be recorded by the register, who shall be entitled to the same fees as are fixed by law for services in other cases, &c. &c.\" Now the argument is, that this clause operates, pro tanto, a repeal of the general laws, in relation to the enrolment of conveyances, so far as respects assignments by debtors under the act. But we think this is not the fair construction of the act. There is nothing in the act which requires the assignment to be recorded; nor does it  necessarily constitute a part of the proceedings before the chancellor. On the contrary, the fifth section contemplates, that it shall be executed and acknowledged by the debtor in the usual manner, and the trustee is to certify the  same to the chancellor. If the deed is to be acknowledged in the usual manner, then it is to be enrolled in the usual manner, for no provision is made for its enrolment elsewhere; and the only judicial notice which the chancellor has of it, as connected with the proceedings before him, is by the certificate of the trustee. Nor is there any policy disclosed on the face of the act of 1798, which could justify the court in presuming, that the legislature intended, in respect to deeds of insolvent debtors, that the ordinary securities of enrolment should be dispensed with. We think, then, that there was error in the circuit court in admitting the proceedings under the Maryland insolvency; and also in instructing the jury that these proceedings showed a legal title out of the plaintiff, and precluded a recovery in the suit. \nFor the same reasons, there was error in the refusal of the circuit court to instruct the jury according to the prayer  of the plaintiff's counsel; that under the operation of the said proceedings in Pennsylvania and in Maryland, the legal title to the premises was not divested from Greenleaf by any thing shown by the defendant. \nThe judgment of the circuit court is therefore reversed, and the cause is to be remanded to the circuit court, with directions to award a venire facias de novo. \nThis cause came on to be heard on the transcript of the record  from the circuit court of the United States for the district of Columbia, holden in and for the county of Alexandria, and was argued by counsel. On consideration whereof, it is the opinion of this Court, that there was error in the circuit court in refusing to instruct the jury that the deed from Greenleaf to Morris and Nicholson, in the first bill of exceptions mentioned, unaccompanied by any other evidence, did not show such an outstanding title as was sufficient to bar the plaintiff's recovery in this suit, as in the same bill of exceptions mentioned. And it is further  the opinion of this court that there was error in the circuit court in admitting the proceeding in the case of the said James Greenleaf, an insolvent, before  the chancellor of Maryland, in the second bill of exceptions mentioned; and also in instructing the jury that the act of assembly of Maryland of 1798, ch. 64, and proceedings of insolvency aforesaid, did show a legal title out of the plaintiff, and did preclude a recovery in this suit, on the first count in the plaintiff's declaration; and also in refusing to instruct the jury, that under the operation of the proceedings in Maryland and Pennsylvania, in the same bill of exceptions mentioned, the legal title to the premises in the declaration mentioned, notwithstanding said conveyance, was not divested from the said James Greenleaf, by any thing by the defendant so as aforesaid shown, as in the same bill of exceptions is mentioned. It is therefore considered and adjudged by the court, that for the errors aforesaid, the judgment of the said circuit court be, and the same is hereby reversed, and the cause be remanded to the circuit court, with directions to award a venire facias de novo. \nDissent by:", " \nOpinion \n\n \n \n  Mr Justice STORY delivered the opinion of the Court. \nThis is a writ of error to the circuit court of Ohio. \nThe Bank of the United States, as holders, brought an action upon a bill of exchange, jointly against Elijah Pearson as drawer, and against William S. Hatch as indorser, under a  statute of Ohio authorising such a proceeding. The marshal having returned the writ \"not found\" as to Hatch, the bank proceeded to take judgment against Pearson alone. The present suit is a scire facias against Hatch to make him a party to the same judgment, so that execution may also issue against him, according to the provisions of the same statute. The declaration and bill of exchange in the original proceedings have  not been, as they ought to have been, sent up in the record, as they constitute a part of it; and for this imperfection a certiorari ought to have been awarded, if any thing material in it were now controverted by the parties. It appears from some exhibits in the proceedings, that the bill of exchange was dated at Cincinnati on the 23d of May 1820, and was as follows: \"Sixty days after date hereof, pay to the order of William S. Hatch, at the office of discount and deposit of the Bank of the United States at Cincinnati, six thousand six hundred dollars, which charge to the account of, Yours, respect-fully, E. Pearson.\" Addressed, \"Mr Thomas Graham, Cincinnati, Ohio.\" It was indorsed by Hatch, and accepted by Graham. Hatch pleaded the general issue, non-assumpsit; and at the trial the jury found a special verdict, as follows: \n\"And afterwards, to wit, at the December term of said court, in the year last aforesaid, came the parties, by their said attorneys; and  thereupon, for trying the issue joined, came a jury, to wit: William B. Van Hook, David Todd, John Larwell, Randall Stiver, Isaac N. Norton, A. R. Chase, Truman Beecher, J. R. Geddings, William Rayne, William A.  Needham, Ira Paige, and William A. Johnson, who, being empannelled, elected, tried, sworn and affirmed to try the issue between the parties, upon their oath do say, that E. Pearson made the bill of exchange, a copy of which is attached to the declaration of the said plaintiffs in the original suit against said Pearson, the drawer of said bill, and that the said bill was regularly indorsed by the present defendant Hatch. They also find, that on the 25th day of July in the year 1820, said bill of exchange was duly protested for non-payment, and that on said day last mentioned, and on the succeeding day, the said defendant Hatch was boarding at the house of Henry Bainbridge, in the city of Cincinnati; that on the 26th day of July in the year 1820, the notary public  by whom said bill was protested called at the house of said Bainbridge, and inquired for said Hatch, and was informed by a Mr Young that said Hatch was not within; the said notary then left a written notice of said protest with said Young, who was at that time in the house aforesaid, and requested him to deliver said notice to said Hatch; and that in the summer of said year 1820, said Young was a boarder at said  house. They also find, that a suit was commenced against said Pearson, the drawer of said bill of exchange, which suit stood for trial at the September term in the year 1822, of the circuit court of the United States for the district of Phio. They also find, that previous to the year 1822, one Griffin Yeatman was confined on the jail limits of Hamilton county, in said state, on a 'ca. sa.,' issued at the instance of, and on a judgment in favour of, said Pearson. That said Yeatman was a material witness for the plaintiff in a number of suits then pending in said court; that one George W. Jones, who was the then agent fr plaintiffs, and one William M. Worthington, the then attorney for the plaintiffs, agreed with the said Pearson, that, in consideration, he, the said Pearson, would permit the said Yeatman to leave the said jail limits, and attend said court during the term aforesaid, then the suit then pending in said court against said Pearson, on said bill of exchange, should be continued without judgment until the term of said court next ensuing said September term, A.D. 1822. That, in pursuance of this agreement, the said Pearson permitted the said Yeatman to leave said jail  limits, and attend said court; and that said suit against said Pearson was continued agreeably to said agreement. Now, therefore, if upon this finding, the court shall be of opinion that the plaintiff is entitled to judgment, then the jury find for the plaintiff to recover of the defendant the amount of said bill, together with the interest thereon; but if the court shall be of opinion upon the said finding, that the defendant is entitled to a judgment, then, and in that case, the jury find for the defendant.\" \nUpon this special verdict, the court below gave judgment for the defendant. \nTwo questions, arising out of the special verdict, have been argued at the bar. First, whether the notice to Hatch of the dishonour of the bill was sufficient. Secondly, if it was,  whether the agreement between the bank and Pearson was a discharge of the indorser. \nUpon the first point we are of opinion, that the notice was sufficient. In cases of this nature, the law does not require the highest and strictest degree of diligence in giving notice; but such a degree of reasonable diligence as will ordinarily bring home notice to the party. It is a rule founded upon public convenience,  and the general course of business; and only requires that in common intendment and presumption the notice is by such means as will be effectual. In the present case, the notice was left at a private boarding house, where Hatch lodged; which must be considered, to all intents and purposes, his dwelling house. It was left, then, at the proper place; and if the delivery had been to the master of the house, or to a servant of the house, there could be no doubt that it would have been sufficient. Stedman v. Gooch, 1 Esp. Rep. 4. The notary called at the house, and upon inquiry of a fellow boarder and inmate of the house, he was informed that Hatch was not within; he then left the notice with the fellow boarder, requesting him to deliver it to Hatch. \nThe latter must necessarily be understood, by receiving the notice under such circumstances, impliedly to engage to make the delivery. The question then is, whether such a notice so delivered, does not afford as reasonable a presumption of its being received as if delivered to a tenant of the house. This is not like the case of a public inn, and a delivery to a mere stranger who happens to be there in transitu, and cannot be presumed  to have any knowledge or intercourse with the party. Boarders at the same house may be presumed to meet daily, and to feel some interest in the concerns of each other, and to perform punctually such common duties of civility as this. In our large cities, many persons engaged in business live at boarding houses in this manner. It is not always easy to obtain access to the master of the house, or to servants, who may be safely entrusted with the delivery of notices of this sort. A person who resides in the house upon a footing of equality with all the guests, may well be supposed to feel a deeper interest in such matters, than a mere servant, whose occupations are pressing and various, and whose pursuits do not lead him  to place so high a value upon a scrupulous discharge of duty. We think that a stricter rule would be found inconvenient, and tend to subvert rather than to subserve the purposes of justice. No case exactly in point has been cited at the bar. That of Stedman v. Gooch, 1 Esp. Rep. 4, approaches near to it; but there the notice was left with the woman who kept the house at which the party was a lodger. No stress, however, seems to have been laid upon  this circumstance to distinguish it from the case of a delivery to any other inmate of the house, either servant or fellow boarder. \nThe other question is one of more nicety, and not less important. It appears from the special verdict, that the contract with Pearson, for the continuance of the suit on this very bill, without judgment, until the next term of the circuit  court, was for a valuable consideration, and not a mere voluntary and discretionary exercise of authority on the part of the agents of the bank. What, then, is to be deemed the true construction of it? Did it amount to no more than an agreement, that that particular suit should stand continued, leaving the bank at full liberty to discontinue that on the morrow, at their discretion, and to commence a new suit, and new proceedings for the same debt?Or was it intended by the parties to suspend the enforcement of any remedy for the debt for the stipulated period, and rely solely on that suit for a recovery? We are of opinion, that the intention of the parties apparent on the contract, was to suspend the right to recover the debt, until the next term of the court. It is scarcely possible that Pearson should  have been willing to give a valuable consideration for the delay of a term, and yet have intentionally left avenues open to by harassed by a new suit in the interval. Indeed, no other remedy, except in that particular suit, seems to have been within the contemplation of either party.If the bank had engaged for a like consideration, not to sue Pearson on the bill for the same period, there could have been no doubt that it would be a contract suspending all remedy. What substantial difference is there between such a contract, and a contract to suspend a suit already commenced; which is the only apparent remedy for the recovery of the bill during the same period? Is it not the natural, nay necessary intendment, tht the defendant shall have the full benefit of the whole period  as a delay of payment of the debt?It is no answer that a new suit would be attended with more delay. That might or might not be the case, according to the different course of practice in different states; and, at all events, it would harass the party with new expenses of litigation. But the true inquiry is, whether the parties did or did not intend a surceasing of all legal proceedings during the  period. We think, that the just and natural exposition of the contract is that they did. \nIf this, then, be the correct exposition of the contract, the case clearly falls within the principle laid down by this court in M'Lemore v. Powell, 12 Wheat. Rep. 554. That was the case of a voluntary agreement, without consideration, by the holder with the drawer of the bill for delay, after the parties had been fixed by due notice of the dishonour of the bill. The court held, that the agreement was not binding in point of law, and therefore it did not exonerate the indorser. On that occasion the court said, \"we admit the doctrine, that, although the indorser has received due notice of the dishonour of the bill, yet if the holder afterwards enters into any new agreement with the drawer for delay, in any manner changing the nature of the original contract, or affecting the rights of the indorser, or to the prejudice of the latter, it will discharge him. But in order to produce such a result, the agreement must be one binding in law upon the parties, and have a sufficient consideration to support it,\" &c. \"If the holder enters into a valid contract for delay, he thereby suspends his own remedy  on the bill for the stipulated period, and if the indorser were to pay the bill, he could only be subrogated to the rights of the holder, and the drawer could or might have the same equities against him, as against the holder himself. If, therefore, such a contract be entered into without his assent, it is to his prejudice, and discharges him.\" The same reasoning applies with full force to the present case. If the bank could not have any remedy on the bill to recover payments, but was bound to wait until the next term of the circuit court, the defendant Hatch, as indorser, could not, by paying the bill place himself in a better situation. He would be liable to the same equities, under the agreement suspending the remedy, as the bank. The same principles which this court adopted in the  case of M'Lemore v. Powell, 12 Wheat. Rep. 554, will be found illustrated and confirmed in an able opinion of Mr Chancellor Kent, in King v. Baldwin, 2 Johns. Ch. Rep. 554, and applied to a case between principal and surety. There are other authorities to the same effect. Gould v. Robson, 8 East's Rep. 576; Laxton v. Peat, 2 Camp. Rep. 188; Hubbly v. Brown, 16 Johns. Rep. 70; Bayley  on Bills, 234. \nThere is a recent case in England, which approaches very near to the circumstances of the present case. We allude to Lee v. Levi, 1 Carr. & Payne's Rep. 553. In that case the holder, after suit brought against the accepter and the indorser, had taken a cognovit of the accepter for the amount of the bill, payable by instalments; and at the trial of the suit against the indorser, Lord Chief Justice Abbott thought that this was a giving time which discharged the indorser, and the jury found a verdict accordingly. That case afterwards came before the whole court for revision; 6 Dowl. & Ry. C. Rep. 475: and was then decided upon a mere collateral point, viz. that the defence having arisen after suit brought against the indorser, should have been taken advantage of by special plea, and could not be given in evidence under the general issue; so that the ruling of the lord chief justice was not brought directly into judgment. It was not, however, in any measure overruled. \nUpon the whole, we are of opinion, upon the ground of the agreement stated in the special verdict being a virtual discharge of the indorser, that the judgment of the circuit court ought to be affirmed,  with costs. \nThis cause came on to be heard on the transcript of the record from the circuit court of the United States for the district of Ohio, and was argued by counsel; on consideration whereof, it is ordered and adjudged by this court, that the judgment of the said circuit court in this cause be, and the same is hereby affirmed, with costs. \n \n\n ", " \nOpinion \n\n \n \n  Mr Justice STORY delivered the opinion of the Court. \nThis case comes before the court upon an application made by Allen M'Lane, collector of the district of Delaware, to the circuit court of that district, for a decree of distribution of the forfeiture accruing from the seizure and condemnation of the ship Good Friends and cargo, one moiety whereof is claimed by the said collector, as seizing officer; there having been a remission of the forfeiture by the secretary of the treasury, under the  authority of the act of congress of the 29th of July 1813, ch. 33. Upon the conditions required by that act the only controversy existing in the cause is between the United States and the collector, in respect to his distributive share. The United States and the collector agreed upon a special statement of  the facts; upon which it was further agreed that a decree, pro forma, should be entered by the circuit court against the collector, for the purpose of a final decision in the supreme court; and by an appeal from the pro forma decree so rendered, the cause now stands before this court. \nUpon the argument at the bar, some objection was suggested, though not strenuously urged, against the jurisdiction of the circuit court to entertain the cause under the peculiar circumstances. But this objection appears to us not well founded. Where a sentence of condemnation has been finally pronounced in a case of seizure, the court, as an incident to the possession of the principal cause, has a right to proceed to decree a distribution of the proceeds, according to the terms prescribed by law. And it is a familiar practice to institute proceedings of this nature, wherever a doubt occurs as to the rights of the parties who are entitled to share in the distribution. There is nothing in the circumstances of the present case to displace this jurisdiction. And it now appears, that the proceeds of which the distribution is now claimed have been, by an express agreement between the United States and  the collector, put in a situation to be forthcoming to meet the exigency of the decree which may be rendered upon the statement of facts. \nThe act of congress of the 29th of July 1813, enacts \"that the owners of the ships called the Good Friends, the Amazon and the United States, and of the cargoes on board said vessels, which arrived in the month of April 1812, in the district of Delaware, from Amelia Island, with cargoes that were shipped on board said vessels in the united kingdom of Great Britain and Ireland, shall be entitled to, and may avail themselves of all the benefits, privileges and provisions of the act entitled \"an act, directing the secretary of the treasury to remit fines,  forfeitures and penalties in certain cases, passed on the 2d day of January last past, in like manner and on the same conditions as though said vessels had departed from the kingdom aforesaid between the 23d day of June and the 15th day  of September mentioned in said act, and had arrived within the United States after the first day of July last.\" \nThe act of the 2d of January 1813, chap. 149 [chap. 7], enacts that in all cases where goods, wares and merchandise, owned by  a citizen or citizens of the United States, have been imported into the United States from the united kingdom of Great Britain and Ireland, which goods, &c. were shipped on board vessels which departed therefrom between the 23d day of June last and the 15th of September last, and the person or persons interested in such goods, &c. or concerned in the importation thereof, have thereby incurred any fine, penalty, or forfeiture under an act &c. (reciting the titles of the non-intercourse acts of 1st of March 1809, and of 1st of May 1810, and of 2d of March 1811), on such person or persons petitioning for relief to any judge or court proper to hear the same, in pursuance of the provision of the act entitled \"an act to provide for mitigating or remitting the fines, penalties and forfeitures in certain cases therein mentioned,\" and on the facts being shown, on inquiry had by said judge or court, &c.; in all such cases, wherein it shall be proved to his satisfaction, that said goods, &c. at the time of their shipment were bona fide owned by a citizen or citizens of the United States, and shipped, and did depart from some port or place in the United Kingdom of Great Britain and Ireland, owned  as aforesaid, between the 23d day of June last and the 15th day of September last, the secretary of the treasury is hereby directed to remit all fines, penalties and forfeitures that may have been incurred under the said act, in consequence of such shipment, importation or importations upon the costs and charges, which have arisen, or may arise, being paid, and on payment of the duties which would have been payable by law on such goods, &c., if legally imported &c. &c.\" \nThe result of both of these acts taken together, as applicable to the case of the Good Friends, is, that the secretary of the treasury was directed to remit the forfeiture, upon the payment of costs and charges, and the duties upon the cargo, which would have been payable upon the same goods, if legally imported, after the 1st of July 1812, that is to say, upon payment of the double duties imposed by the act of the 1st of July 1812, ch. 112. Without question, these acts of congress were  directory and mandatory to the secretary; and in his remission, which forms a part of the case, he purports to act, and has in fact acted in obedience to their requirements. \nIt is wholly unnecessary to inquire whether  the secretary would have had authority to remit the forfeiture in this case, under the remission act of the 3d of March 1797, ch. 67; because, in the first place, the terms, upon which the remission is to be granted by that act, essentially differ from those prescribed by these acts: and because, in the next place, the secretary purports to have acted in obedience to the latter. \nThe question then arises, in what light the reservation and payment of the double duties, as conditions upon which the remission is granted, are to be considered? Are the double duties to be deemed a mere payment of lawful duties; or are they to be deemed a part of the forfeiture reserved out of the proceeds of the cargo? If the latter be the true construction, then the collector is entitled to a moiety: if the former, he is barred of all claim. \nThe duty of the collector in superintending the collection of the revenue, and in making seizures for supposed violations of law, is onerous, and full of perplexity. If he seizes any goods, it is at his own peril; and he is condemnable in damages and costs, if it shall turn out, upon the final adjudication, that there was no probable cause for the seizure. As  a just reward for his diligence, and a compensation for his risks; at once to sitmulate his vigilance and secure his activity; the laws of the United States have awarded to him a large share of the proceeds of the forfeiture. But his right by the seizure is but inchoate: and although the forfeiture may have been justly incurred, yet the government has reserved to itself the right to release it either in whole or in part, until the proceeds have been actually received for distribution; and in that event, and to that extent, it displaces the right of the collector. Such was the decision of this court in the case of the United States v. Morris, 10 Wheat. Rep. 246. But whatever is reserved by the government out of the forfeiture, is reserved, as well for the seizing officer, as for itself; and is distributable accordingly. The government has no authority, under the existing laws, to release the collector's share as such; and yet to retain to itself the other part of the forfeiture. \n In the present case, it is perfectly clear that the seizure of the Good Friends and her cargo was justifiable, and that they were forfeited for a violation of the non-intercourse acts. This  is established, not only by the final decree of condemnation, but by the very terms of the remission granted by the secretary of the treasury. In point of law, no duties, as such, can legally accrue upon the importation of prohibited goods. They are not entitled to entry at the custom house, or to be bonded. \nThey are, ipso facto, forfeited by the mere act of importation. The Good Friends, then, having arrived in April 1812, long before the double duties were laid, and her cargo being prohibited from importation; it is impossible, in a legal sense, to sustain the argument, that the importation could be deemed innocent, and the government could be entitled to duties, as upon a lawful importation. It was entitled to the whole property, by way of forfeiture; and to nothing by way of duties. When, therefore, congress authorized the remission upon the payment of double duties, the latter was imposed as a condition of restitution upon the offending party. In the language of the act of the 2d of January 1813, the remission was to be \"on payment of the duties, which would have been payable by law on such goods, &c., if legally imported;\" not upon payment of the duties which had lawfully  accrued upon the same goods. The act presupposes that no duties had accrued, or could accrue by operation of law upon the goods; and the act  of the 29th of July 1813 expressly treats it as a condition. Indeed, it is impossible that double duties could have lawfully accrued upon the importation of the cargo of the Good Friends, in April 1812, when the double duties were not imposed until the passage of the act of the 1st of July of the same year. \nI the government had reserved a gross sum, equivalent to the double duties, out of the forfeiture, as a condition of the remission, there could be no doubt that the collector would have been entitled to his moiety of the sum so reserved. Can it make any difference in point of law, that the reservation is made by a reference to double duties, as a mode of ascertaining that sum? It has not been pretended that the act of the 29th of July 1813 could divest the rights of the collector, antecedently vested in him by the existing laws. And if such a  doctrine could be maintained at all, it would still be necessary to establish that there was an unequivocal intention on the part of the government to remit his share, and  to retain its own share of the forfeiture. Such an extraordinary exercise of power, if it could be even maintained, where it is subversive of existing rights, ought to be evidenced by terms susceptible of no doubt. We are of opinion that the present act neither justifies nor requires any such construction. The double duties are referred to as a mere mode of ascertaining the amount intended to be reserved out of the forfeiture; and not as a declaration of intention on the part of the government, that they were to be received as legal duties due upon a legal importation. \nBut a distinction has been taken at the argument on behalf of the United States, and an apportionment or division of the duties has been insisted on. It is said, that so much of the duties demanded as were equal to the single duties payable by law on imported goods in April 1812, ought to be considered as received in that character by the government; since this case has been treated by the government as an innocent importation. But as to the additional duties imposed by the act of 1st of July 1812, they may be considered as a reservation of forfeiture. And it is added, that the government has itself acted upon  this distinction in this very case; for it has allowed the collector his moiety of the latter, and denied it in respect to the former. \nThe true answer to be given to this argument is, that the act itself contemplates no such apportionment or division of the duties. The duties are reserved as a whole, and not in moieties. And it could not well be otherwise; for, as has been already shown, no duties at all were legally payable on the goods. They were in fact, and were treated by the government as prohibited goods. And when the government imposed the double duties as a condition, they were imposed as a sum which would have accrued upon a legal importation after the 1st day of July 1812. The very circumstance, that the government itself has treated any part of the reservation as forfeiture, and as distributable accordingly, is conclusive to show that the whole is incapable of being treated as duties. The distinction contended for, then, not  being found in the act itself, and part of it being confessedly received in the character of a forfeiture; we think the whole must be treated as received as a reservation by way of forfeiture. Our opinion is grounded upon the fact,  that the act refers to the double duties as a mere mode of ascertaining the amount; and that it is indistinguishable from the case of a reservation of a gross sum. \nUpon the whole, the decree of the circuit court refusing the distribution is to be reversed, and the cause remanded to that court with directions to decree to the legal representatives of Allen M'Lane, the collector, one moiety of the double duties, deducting that portion which has been already received by him. \nThis cause came on to be heard on the transcript of the record from the circuit court of the United States for the district of Delaware, and was argued by counsel; on consideration whereof, this Court is of opinion, that there is error in the decree of the circuit court, whereby it was ordered that the said Allen M'Lane take nothing by his motion for a decree of distribution of the forfeiture decreed by the circuit court in the proceedings in this cause, mentioned upon the statement of facts in the same proceedings mentioned; and for this error it is ordered, adjudged and decreed, that the decree of the said circuit court upon the motion aforesaid, be and hereby is reversed and annulled. And this court, proceeding  to render such decree as the said circuit court ought to have passed, do hereby order, adjudge and decree upon the said motion, and statement of facts, that the said Allen M'Lane as collector, as herein mentioned, was in his lifetime entitled, and that his legal representative is now entitled to receive as his distributive share of the forfeiture aforesaid one full moiety of the whole sum which has been paid by Stephen Girard according to the act of congress, and the remission by the secretary of the treasury, as in the same statement of facts mentioned. And the said Allen M'Lane being now dead, it is further ordered, adjudged and decreed, that the same full moiety be paid over to his legal representative, now appearing and made a party to these proceedings in this Court, viz. Louis M'Lane, the  executor of the last will and testament of the said Allen M'Lane, deceased, as his distributive share accordingly; deducting, however, therefrom, the moiety of the said moiety, which has been decided by the treasury department to belong to the said Allen M'Lane; if the same has been received by the said Allen M'Lane, or by his legal representative. \n \n\n ", " \nOpinion \n\n \n \n  Mr Justice STORY delivered the opinion of the Court. \nMany of the questions which have been discussed in this  case arose in the suit of Carver v. Jackson, ex dem. of Astor et al., 4 Petershs Rep. 1; which was founded upon the same title, and substantially upon the same evidence as is presented in the present record. As upon a deliberate review we are entirely satisfied with the opinion and judgment pronounced on that occasion (which was indeed most thoroughly and anxiously considered), we do not propose to go at large into the reasoning now; but to confine ourselves to the new grounds of argument, which have been so earnestly pressed upon the court, and to the instructions prayed and refused, or given by the circuit court to the prejudice of the plaintiff in error. \nIn the progress of the cause, after the plaintiff had given the evidence in support of his cause, the counsel for the defendant insisted, \"that unless the deed, called the marriage settlement deed, which  was given in evidence, was accompanied or preceded by a lease, the plaintiff could not recover in this action; that without a lease, the said deed could only operate as a bargain and sale, and the statute of uses could only execute the first use to the bargainees, Johanna Philipse and Beverley Robinson, who took the legal estate in the land, and that the plaintiff could not recover without producing the lease, or accounting for its non-production. And because no lease had been produced, and no evidence given to account for its nonproduction, the counsel for the defendant moved the circuit court to nonsuit the plaintiff; but the circuit court overruled the objection, and refused to grant the motion for a nonsuit; and decided that the plaintiff was entitled to recover without producing any lease, or accounting for its non-production, inasmuch as the recital in the release was evidence of such a lease having been executed;\" to which opinion and decision the defendant excepted. This constitutes the subject matter of the first ground, now assigned for error on behalf of the defendant before this court. \nIt might be a sufficient answer to the motion for a nonsuit, to declare that the circuit  court had no authority whatsoever to order a peremptory nonsuit against the will of the plaintiff. This point has been repeatedly settled by this court, and is not now open for controversy. Doe d. Elmore v. Grymes, 1 Peters, 469. D'Wolf v. Rabaud, 5 Peters, 476. But independent of this ground, which would be conclusive, there  is another which seems equally so; and that is, that it called upon the court to decide upon the nature and effect of the whole evidence introduced in support of the plaintiff's case, part of which was necessarily of a presumptive nature, and capable of being urged with more or less effect to the jury. It is to be recollected that the marriage settlement deed was dated and purported to be executed in January 1758, and was designed to operate as a conveyance by way of lease and release, and the sole object of the lease was to give effect to the release, as a common law conveyance, and not as a mere bargain and sale. It stated, \"that in consideration of a marriage intended to be had and solemnized between the said Roger Morris and Mary Philipse (two of the parties to the indenture), and the settlement hereafter made by the said Roger Morris on the  said Mary Philipse, and for and in consideration of the sum of five shillings, &c. &c., the said Mary Philipse hath granted, &c. and by these presents doth grant, &c. unto the said Johanna Philipse and Beverley Robinson (the trustees under the settlement), in their actual possession, now being by virtue of a bargain and sale to them thereof, made for one whole year, by indenture bearing date the day  next before the day of the date of these presents, and by force of the statute for transferring of uses into possession, and to their heirs, all those several lots, &c. &c.\" The recital, therefore, explicitly admits the existence of the lease and the possession under it, and bound the parties, as well as those who as privies claim under them. It will be recollected also, that the trial of the present case was in June 1830, upwards of seventy years after the date of the lease, which was confessedly an instrument of a fugitive and temporary nature, and intended to serve merely as a means of giving full operation to the release. Under such circumstances, if no other objection existed to the title, the lapse of time would alone be sufficient to justify a presumption of its due  execution and loss, and nonproduction by the plaintiff, proper to be left to the jury; and thus justify the court in refusing a nonsuit. In the case of Carver v. Jackson, this court observed that such a recital of a lease in a release, may, under circumstances, be used as evidence even against strangers.Thus, \"if the existence and loss of the lease be established by other evidence, then the  recital is admissible as secondary proof in the absence of more perfect evidence, to establish the contents of the lease. And if the transaction be an ancient one, and the possession has been long held under such release and is not otherwise to be accounted for, then the recital will, of itself, under such circumstances, materially fortify the presumption, from lapse of time and length of possession, of the original existence of the lease.\" In the present case there was prima facie evidence of the due execution of the release, and evidence also of a possession by Morris and his wife of the premises in controversy for many years afterwards, consistent with, if not necessarily flowing from that instrument. Under such circumstances it would have been unjustifiable on the part of the  circuit court to have directed a nonsuit, the effect of which would have been to have excluded the jury from weighing the whole evi dence, even if the case had been against a party who was a stranger to the title. \nBut the defendant is in no just sense a stranger to the title. He claims in privity of estate by a title derived from the state of New York, whose sole title is founded upon that of Morris and his wife, and is subsequent to the release. The general rule of law is, that a recital of one deed in another, binds the parties, and those who claim under them by matters subsequent. Technically speaking, such a recital operates as an estoppel, which works on the interest of the land, and binds parties and privies; privies in blood, privies in estate and privies in law.Between such parties, the original lease need not at any time be produced. The recital of it in the release, is conclusive. It is not offered as secondary, but as primary proof; not as presumptive evidence, but as evidence operating by way of estoppel, which cannot be averred against, and forms a muniment of the title. It is otherwise where the recital is offered against strangers claiming by an adverse title,  or by persons claiming from the same parties by a title anterior and paramount. In such cases the lease itself is the primary evidence; and its loss or non-production must be accounted for before the recital can be let in as secondary evidence of its execution or contents. But even here (as has been already intimated), a long lapse of time furnishes a reasonable presumption of the loss. The argument of the bar is, that the recital  may be conclusive of the existence of the lease in favour of the lessees, but not for or against any other persons claiming under them by distinct conveyances.If the recital be conclusive in favour of the lessees, it must be equally conclusive in their favour as releasees, since the latter works upon the possession acquired under the lease. But in truth, the recital as an estoppel binds all privies, where claiming by the same or by a distinct instrument. It is the privity which constitutes the bar, and not the fact of taking by the very deed which contains the recital.It is also said that the recital of a lease in a release, is competent evidence to prove that the lease was originally executed; but not until its non-production is accounted  for, competent evidence of the contents of the lease. If the recital of a lease be admitted to be good evidence of the execution, it must be good evidence of the execution of the very lease stated in the recital, and of the contents, so far as they are stated therein, for they constitute its identity.But the argument itself, can apply only where the recital is offered as secondary evidence. In the present case it is offered, not as secondary, but as primary and conclusive. \nThis whole subject underwent a more elaborate consideration of this court in the case of Carver v. Jackson, and the doctrine now asserted, was reasoned out, both uponprinciple and authority. The language of the court upon that occasion was, \"we are of opinion, not only that the recital of the lease in the deed of marriage settlement was evidence between these parties (and the present defendant is in a similar predicament), of the original existence of the lease, but that it was conclusive evidence between these parties, of that original existence; and superseded the necessity of introducing any other evidence to establish it.\" And after a review of the authorities, it was added, \"we think then, that upon authority,  the recital of the lease in the deed of release, in the present case, was conclusive evidence upon all persons claiming under the parties in privity of estate, as the present defendant in ejectment does claim. And independently of authority, we should have arrived at the same result upon principle; for the recital constitutes a part of the title, and establishes a possession under the lease necessary to give the release its intended operation. It works upon the interest in the land, and creates an  estoppel, which runs with the land against all persons in privity under the releasees. It was as much a muniment of the title, as any covenant therein running with the land.\" And it was then added, \"this view of the matter dispenses with the necessity of examining all the other exceptions as to the nature and sufficiency of the proof of the original existence and loss of the lease, and of the secondary evidence to supply its place.\" \nIn every view of the matter, then, the non-suit was properly denied. \nThe next error assigned grows out of an instruction to the jury, asked of the courts by the counsel for the plaintiff. The prayer was,  \"that Roger Morris stood in  the character of a grantee in the deed (the settlement), and that a possession of the deed by him is evidence of its delivery, because the settlement gave him a larger interest in the lands, than his mere marital rights.\" The court refused to give this instruction, and declared that, \"strictly speaking, Morris could neither be considered as grantor or grantee in the settlement deed, and therefore the mere possession of the deed by him was no affirmative proof on either side, as to the fact of delivery;\" to which opinion and decision the counsel for the defendant excepted. It is somewhat singular that the defendant should have excepted to the refusal to grant the prayer asked by the plaintiff, since the remarks made by the court seem to have been rather reasons for the refusal, than an instruction to the jury; and if those reasons were not well founded, it was no prejudice to the defendant. But waving this consideration, let us see if the circuit court was wrong in stating that, strictly speaking, Morris could neither be considered as grantor or grantee in the settlement. The plaintiff contended that he was exclusively grantee, and the defendant's counsel now contend that he was  exclusively grantor. This is a point which must be decided by an examination of the terms of the settlement deed. That a husband, even before marriage, may, in virtue of the marriage contract have inchoate rights in the estate of his wife, which, if the marriage is comsummated, will be protected by a court of equity against any antecedent contracts and conveyances secretly made by the wife in fraud of those marital rights, may be admitted; but they are mere  equities, and in no just sense constitute any legal or equitable estate in her lands or other property antecedent to the marriage. In the present settlement deed, which is by indenture tripartite, Mary Philipse purports to be the party of the first part, Roger Morris of the second part, and Johanna Philipse and Beverley Robinson (the trustees) of the third part. Mary Philipse alone, without any co-operation on the part of Morris, purports to grant, and does grant to the trustees, all the land mentioned in the deed (including the premises in controversy) as her own property, upon certain uses specified in the habendum, and among others after the marriage, to the use of herself and her husband during their joint lives  and the life of the survivor of them, with certain subsequent uses and powers, not material to be mentioned. If the settlement deed stopped here, the case would be too plain to admit of doubt. Mary Philipse must, in law, be deemed the sole grantor of the lands, and the trustees and Morris must be deemed grantees, and to take in that characte exclusively. In the close of the indenture is the following clause: \"and the said Roger Morris, for and in consideration of the premises, and the sum of five shillings, &c., doth hereby for himself, his heirs, executors and administrators, covenant, promise, grant and agree, to and with the said Johanna Philipse and Beverley Robinson, their and each of their heirs, &c. &c. that in case the said Mary Philipse shall survive him, the said Roger Morris, that then, and in such case, immediately after his death, all and singular the moneys and personal estate whatsoever, whereof he shall die possessed, shall be accounted the proper money and estate of the said Mary Philipse during her natural life, and after her decease, in case there be no issue begotten between the said Roger Morris and Mary Philipse, that then the said moneys and personal estate  shall any may be had and taken by the executors and administrators of the said Roger Morris, &c.; but if such child or children shall survive the said Roger Morris and Mary Philipse, then the said moneys and estate to be divided among them in such shares and proportions as he, the said Roger Morris, shall think fit at any time hereafter, by his last will and testament, or otherwise, to order and direct.\" It is obvious from the language of this clause, that it can operate only by way of covenant. It conveys no present interest in  any personal property whatsoever; and affects to dispose only of the moneys and personal estate of which Morris shall die possessed, at whatever time they may have been acquired. It leaves him at full liberty to dispose of all the personalty that he shall at any time possess during his life time, toties quoties. As a grant, it would be utterly void from its uncertainty. As a covenant, it has a sensible and just operation in favour of the trustees. In legal contemplation, then, this clause makes Morris, strictly speaking, only a covenator, and not a grantor. But as to the real estate passed to the trustees by the indenture, to which alone the  instruction could properly apply, he was clearly a mere grantee. If, therefore, there was any error in the circuit court on this point, it was not an error prejudicial to the defendant, but to the plaintiff, as to its bearing on the question of the possession and delivery of the settlement deed. But looking to the whole provisions of that deed, it might well be stated, that strictly speaking, Morris could neither be considered as grantor or grantee. He was not grantor in any sense, except as to the personalty, and as to that, he was properly a covenantor. And, technically speaking, at the time of the execution of the deed, the trustees were the grantees in the deed, though by the operation of the statute of uses, the use to Morris, carved out of their seisin, drew to it the seisin and possession of the estate, as soon as that use, by his subsequent marriage, had a legal existence. Under such circumstances, the direction that the mere possession of the deed by Morris was no affirmative proof, on either side, of the fact of the delivery, was at least as favourable to the defendants as the law would justify; and consequently, he has nothing to complain of. \nWe now come to the instructions  asked of the court by the counsel for the defendant. And, in the first place, it is argued, that the court erred in refusing to instruct the jury that \"the evidence arising from the proof of the deed of William Livingston in 1787, is no stronger than that arising from the proof of the hand-writing and death of the subscribing witnesses.\" But this instruction, so asked, is not upon any matter of law, but upon the mere weight of evidence, which the court was not bound to give, and which was matter for the proper consideration of the jury. But if it had been  otherwise, we are not prepared  to admit that the instruction ought to have been given. The solemn probate of a deed by a witness upon oath before a magistrate, for the purpose of having it recorded, and the certificate of the magistrate of its due probate upon such testimony, are certainly entitled to more weight as evidence, than the mere unexplained proof of the hand-writing of a witness after his death. The one affords only a presumption of the due execution of the deed from the mere fact, that the signature of the witness is to the attestation clause; the other is a deliberate affirmation by the witness,  upon oath, before a competent tribunal, of the material facts to prove the execution. And there were, in the present case, circumstances which gave an enhanced value and weight to this probate. \nIn the next place, it is argued that the court erred in refusing to give the instruction, \"that in the absence of all proof, that the trustees, or any person for them, even had the deed, and there being no proof of a holding under it, the fact that the deed came out of the hands of Morris in 1787, is sufficient, of itself, to rebut any presumption of a delivery arising from the proof of the deed by William Livingston, or the proof of the hand-writing and death of the subscribing witnesses.\" This instruction plainly called upon the court to decide mere matters of fact, which were in controversy before the jury, and upon the assumption of such matters of fact to direct the jury that they rebutted other matters of fact. It was no part of the duty of the court to decide upon the relative weight and force of these facts. They exclusively belonged to the jury; and the instruction was properly refused. \nThe same answer may be given to the refusal to give the instructions prayed for in all the various  branches embraced in the fourth instruction of the defendant. They are as, follows: 1. \"If the jury, upon the evidence, believe that the deed was signed and sealed on the day of its date, and that William Livingston and Sarah Williams witnessed what took place at that time, and that the deed was not delivered before the execution of the Beekman deed, on the 18th of January 1758, then there is no evidence of a delivery.\" 2. \"It being conceded by the plaintiff's counsel, that the deed was not delivered at the time of the execution of the Beekman deed, on  the 18th of January 1758, then if the jury believe the deed was signed, sealed and witnessed on the day it bears date, there is no evidence of a delivery.\" 3. \"If the jury believe the deed was not delivered on the day it was signed, sealed and witnessed, then there is no evidence of a delivery.\" \nThe supposed concession by the plaintiff's counsel, was utterly denied by them at the time; and of course was properly deemed by the court as out of the case. The whole scope of all these instructions was to call upon the court to decide, as matter of law, upon the evidence before the jury, what portion of it was or was not proof  of a delivery of the deed, and how far certain supposed facts controlled or might control the effect of all the other evidence upon the same point. There was positive evidence before the jury of the delivery of the deed, from the probate of it by Governor Livingston before Judge Hobart. How then could the court be called upon to say, that there was no evidence? The circumstances alluded to, and hypothetically put in the instructions, were certainly proper to be left to the jury, if found by them to be true, to rebut this evidence. They were matter for comment and argument to the jury, by counsel, upon this vital question in the cause. But the court had no right to say, that they would, or ought to overcome all other evidence in the case of the delivery of the deed. The jury were not to be told as matter of law, that if they found or believed one fact, there was no evidence of another independent fact; or because the deed was not delivered on a particular day, therefore there was no evidence of a delivery at all.They were to judge of the fact of delivery from all the circumstances of the case. It was their exclusive province; and it was no part of the duty of the court to instruct  them, however it might advise them, in respect to the weight of conflicting evidence, or the infarences which they should deduce from one fact to decide their belief of another. These instructions were, therefore, properly refused; and, indeed, some of them are open to even more serious objections, as logical deductions upon mere matters of fact. The conclusions do not necessarily flow from the premises. \nThe next objection is, that the court refused to instruct the jury that, \"in judging of the acts said to be hostile to the settlement deed, if they may determine with what intent these  acts were done, they must gather that intent from the acts themselves.\" The refusal was not unqualified, for the court gave the instruction with the addition of the words \"connected with the other evidence in the cause.\" \nIn our opinion, the instruction, without the qualification, was properly refused. In cases where the interests of third persons may be affected by the acts of others -- where, as in the present case, the rights of children are to be affected by the acts of parents, it is most material to ascertain the intent with which these acts were done. The intent may restrain,  enlarge or explain the acts, so as to change their whole effect in point of evidence. The acts done with one intent may press strongly in point of presumption one way; with another intent, they may afford an equally cogent presumption the other way. How is this intent to be ascertain? It may, indeed, accompany and qualify the acts; but it may, on the other hand, arise and be exclusively provable by extrinsic circumstances. Are these extrinsic circumstances to the shut out from the cause, if they are the sole means of demonstrating the intent? If not, upon what ground are they to be excluded, when they may confirm or qualify or repel any inferences of intent deducible, ordinarily, from the acts standing alone? No rule of evidence exists, which, in our judgment, could justify such a proceeding; and no authority has been cited, at the bar, in favour of its adoption. One of the grounds of argument at the bar is, that the hostile acts relied on arose from the execution of certain deeds of lease release, the intent of which might be gathered from the contents of the writings.  But the question was not what were the contents of these deeds, as matters of legal construction,  but what was the intent with which they were made; or rather what was the estate out of which Morris and wife (the grantors) intended to carve them. Were they designed to the an execution of the powers and authority under the settlement deed? Or, if an excess of these powers, were they intended not to be hostile to the interests conferred by that deed? Or were they solely and designedly an exercise of the general rights of husband and wife over the estate of the latter, unfettered by any settlement? Their direct operation was not in controversy. They were introduced for a collateral purpose, as matters of presumption against the validity of the settlement  deed as an executed conveyance. The intent, then, was open to proof as matter in pais; and all the evidence, legally conducing to establish it, was to be considered by the jury in connexion. But the instruction does not allude to any deeds whatsoever. It is in the most general terms and speaks of acts which may as properly refer to any other thing done in pais, as to solemn conveyances. This subject was discussed very much at large in Carver v. Jackson, and the result to which the court arrived, was precisely  the same as is now indicated. \nThe next objection is, that the court refused to instruct the jury, that \"although the deeds to Hill, Merrit, and Rhodes would in law be a good execution of the power contained in the settlement deed, supposing that to have been duly delivered; yet upon the question, whether that deed was or was not perfected by a delivery, these deeds contain evidence that the parties were acting as owners of the land in fee, and not as tenants for life executing a power.\" But the court gave the following instruction, that \"although the deeds to Hill, Merrit and Rhodes would in law be a good execution of the power contained in the settlement deed, supposing that to have been delivered, yet upon the question whether that deed was or was not perfected by delivery, those deeds are competent evidence from which the jury may judge whether Morris and his wife intended to act as if no marriage settlement had been executed, or under the power contained in the marriage settlement.\" To this instruction, so given, the defendant also excepted.The sole object of introducing the deeds to Hill, Merrit and Rhodes here referred to, (which were introduced on the part of the defendant)  was to raise a presumption against the delivery of the settlement deed. The argument seems to have been, that although those deeds might have been a fit and good execution of the power reserved to Morris and his wife by the settlement deed, yet the omission to make any reference to that power, or to state in those deeds that they were acting under and in virtue of a power, was evidence that they were acting, not under any power, but as owners of the fee.If they were acting as owners of the fee, then that circumstance afforded, pro tanto, a presumption against the delivery of the settlement deed; since parties acting under and entitled to act  solely under the power in that deed, would naturally refer to it as the foundation of their conveyances. Now, so far as the presumption would go, it was fairly and fully left to the jury as evidence, by the very instruction given to the court. \nBut the instruction which was refused, called upon the court to go farther, and to decide as matter of law, that the parties were in fact acting as owners of the land in fee, and not as tenants for life, executing a power. Surely, it will not be pretended that in order to a due execution of  a power, it is necessary that it should be recited or referred to in the executing instrument of conveyance. The form of the instruction prayed for admits this. It is sufficient that the power exists, and is intended to be executed; and that intent is matter in pais, to be collected from all the circumstances of the case. The deeds of Hill, Merrit and Rhodes, contain nothing on their face (as the instruction prayed for concedes) which is inconsistent with or repugnant to the power in the settlement deed; and it demands of the court, notwithstanding, that in point of fact they were not executed under the power. This was matter of fact and intent, involved in the issue before the jury, and as such, exclusively for their decision. This very point underwent the most deliberate consideration of this court in the case of Carver v. Jackson, upon an exception taken to the charge of the court. It was then treated solely as a matter of fact, for the consideration of the jury; and from that view of it, we do not perceive the slightest reason to depart. \nThe next and last objection relied on is, that the court refused to instruct the jury, that \"the evidence upon the one side or the other  should not be submitted to the jury as prima facie or presumptive evidence, either for or against a delivery; but the jury should consider and weigh the whole evidence together, and from the whole determine whether or not the deed was delivered.\" That the whole evidence was to be considered and weighed by the jury, upon the points in issue, was indisputable and undisputed. The only question was, whether the defendant had a right to insist upon shutting out from the consideration of the jury the nature of the evidence, as prima facie proof, or otherwise, and to prescribe the order and manner in which it should be examined and weighed by them. We know of no principle of law upon which such a claim can be maintained.  Whenever evidence is offered to the jury, which is in its nature prima facie proof, or presumptive proof, its character, as such, ought not to be disregarded; and no court has a right to direct the jury to disregard it, or to view it under a different aspect from the in which it is actually presented to them. Whatever just influence it may derive from that character, the jury have a right to give it; and in regard to the order in which they shall consider the  evidence in a cause, and the manner in which they shall weigh it, the law has submitted it to them to decide for themselves; and any interference with this right, would be an invasion of their privilege to respond to matters of fact. The objection is therefore overruled. \nUpon the whole, the opinion of the court is, that the judgment of the circuit court ought to be affirmed, with costs. \nThis cause came on to be heard on the transcript of the record from the circuit court of the United States for the southern district of New York, and was argued by counsel; on consideration whereof, it is ordered and adjudged by this Court, that the judgment of the said circuit court in this cause be, and the same is hereby affirmed, with costs. \nDissent by:", " \nOpinion \n\n \n \n  Mr Justice STORY delivered the opinion of the Court. \nMany of the questions arising in this case have been disposed of in the judgment already pronounced in the case of Crane v. Jackson, upon the demise of the same parties; the title and evidence being in each case substantially the same. It will be necessary, therefore, to examine into those objections only, to the ruling of the circuit court at the trial, which are presented by the bill of exceptions taken by the defendant (now plaintiff in error), and which have not been decided in the other case. \nThe first objection is to the refusal of the court to instruct the jury that \"Roger Morris was a grantor, or stood in the character of a grantor in that (the settlement) deed.\" This is but a slight variation in form from the point presented in the case of Crane v. Jackson, and the instruction given by the court, \"that the mere possession of the deed by Morris was no  affirmative proof on either side of the fact of delivery,\" has been already fully considered. \nThe next objection is to the refusal of the court to instruct the jury that \"the holding from the marriage settlement to the attainder, cannot be said to have been under the settlement deed, until it was first ascertained that the deed had been delivered.\" This instruction was certainly proper in itself to have been given, if it had not been already substantially given in the other instructions: and if the court had given this reason for the refusal, there would not have been the slightest difficulty in maintaining it; for no court is bound at the mere instance of the party, to repeat over to the jury the same substantial proportion of law, in every variety of form, which the ingenuity of counsel may suggest. It is sufficient, if it is once laid down in an intelligible and unexceptionable manner. The instruction here asked and refused, was but a branch of the next preceding instruction prayed for (which covered the whole ground), and is so put by the defendant. The latter asserted, that \"the fact that Morris and wife were in possession of the land before the revolution, taking the rents  and profits, is not of itself any evidence for or against the validity  of the deed, because they were entitled to the possession, whether the deed was delivered or not.\" This instruction was given by the court; and the jury had been previously instructed that it was necessary to the validity of the deed that it should have passed into the hands of the trustees, or of some person for them, with intent that it should take effect as a conveyance. Indeed, the whole controversy between the parties turned upon the question of the delivery of the settlement deed, as the tenor of every instruction asked abundantly shows; and therefore it was necessarily implied in every step that there could be no holding or possession under the deed, if it was never delivered. It appears to us, then, that no injustice has been done to the defendant by refusing to give the instruction prayed; since, in a more general form, it had been already given. \nThe next objection is to the refusal of the court to instruct the jury, first, that \"in the absence of any direct evidence, that the trustees, or any other person for them, ever had the settlement deed, and the possession being equivocal   in its character, the fact that it came out of the hands of Morris in 1787, is sufficient of itself to rebut any presumption of a delivery arising from the proof of the deed by William Livingston, or the proof of the hand-writing and death of the subscribing witnesses;\" and, \"secondly, that if not sufficient of itself to destroy any presumption of a delivery, it is at least evidence against a delivery, to be considered and weighed by the jury.\" The court gave as a reason for refusing this second branch, that Morris was, \"technically, neither grantor nor grantee, and therefore the mere possession of the deed by Morris, was no affirmative evidence either for or against the fact of delivery.\" This instruction has been already disposed of. The other instruction varies from that in the case of Crane v. Jackson, merely in substituting the words \"direct evidence\" for \"all proof;\" and the words \"and the possession being equivocal in its character,\" for \"and there being no proof of a holding under it.\" It is obnoxious to the same objection which was relied upon in that case; for it called upon the court to express an opinion upon the nature, weight and effect of the evidence before the jury,  which was no part of its duty. And the whole evidence being before the jury, it was  their exclusive right to decide for themselves upon its credit and cogency. \nThe next objection is to the admission of an extract from the journal of the assembly of the state of New York, for the year 1787, as follows. February 24, 1787. \"Mr Hamilton, from the committee to whom was referred the petition of Johanna Morris on behalf of herself and the other children of Roger Morris and Mary his wife, setting forth that the said Roger and Mary had been attainted, and their estates sold and conveyed in fce simple; that by a settlement made previous to their intermarriage, the real estate of the said Mary, was vested in Johanna Philipse and Beverley Robinson in fee to certain uses; among others, after the decease of the said Roger and Mary, to the use of such child or children as they should have between them, and their heirs and assigns, and praying a law to restore to them the remainder of the said estate in fee, reported: that if the facts stated in such petition are true, the ordinary course of law is competent to the relief of the petitioners, and that it is unnecessary for the legislature  to interfere. Resolved, that the house do corrcur with the committee in the said report.\" \nIt was objected, first, that the journal of the proceedings in question, was not legal or competent evidence against the defendant; and, secondly, not so without producing the petition mentioned in the journal. But the objections were overruled, and the evidence admitted. \nNow, if the evidence was admissible for any purpose, the objections were rightly overruled. It did not appear to have been offered as proof of any of the facts stated in the petition; but simply of the public legislative proceedings, on the very claim and title now set up by the children of Morris at the early period of 1787. There were two points of view in which the evidence might be important, in the actual posture of the case before the jury. In the first place, it might be important to repel the notion, that the claim of the children of Morris asserted in the present suit was stale, and founded upon a dormant deed, never brought forward until a very great lapse of time after its pretended execution: a circumstance which might essentially bear upn the fact of its having ever been delivered and acted upon as a valid  instrument.In the  next place, it might add strength to the probate of the deed by Governor Livingston, as his attention could scarcely fail of being called to such public proceedings, occurring at so short a period as within two months before the time of that probate. If his attention was called to these proceedings, the circumstance, that the title was about to become a lis mota, would naturally produce an increased caution, and a more anxious desire to recall with perfect accuracy, every fact essential to the probate of the deed. It has been asserted at the bar, that these were the very objects for which the extract from the journal was offered; and we cannot say that, for such purposes, it was not properly admissible. If any improper use as evidence was attempted to be made of it, it might have easily been restrained to its appropriate use, by an application to the court. The objections, then, to its admission being general, and it being already admissible for some purposes, the decision of the court was unexceptionable. \nThe next objection is, that the court erred in refusing to instruct the jury that \"the evidence upon the one side or the other should not be submitted  to the jury as prima facie or presumptive evidence, either for or against a delivery; but the jury should consider and weigh the whole evidence together, and from the whole, determine whether or not the deed was delivered;\" and in instructing the jury upon that prayer, \"that the plaintiff had given prima facie evidence in support of his case, and such as was conclusive if uncontradicted; and that this must be contradicted or disproved by controlling evidence on the part of the defendant, or the plaintiff is entitled to recover.\" The instruction prayed for and refused is precisely the same as exists in the case of Crane v. Jackson; and it is unnecessary to do more than to refer to the opinion there given for the reasons why this court deem the refusal entirely correct. In regard to the instruction actually given, we do not perceive any solid ground upon which it can be adjudged erroneous.It was given as a response to the instruction asked by the defendant on the great hinge of the controversy, the question as to the delivery of the settlement deed. In a preceding instruction which the court had given to the jury, upon the application of the defendant himself, the probate of the deed  by Governor Livingston before Judge Hobart,  was treated as prima facie evidence of a delivery. It was there stated that the probate was \"only prima facie evidence, or evidence from which a delivery may be presumed, and may be rebutted by direct or circumstantial evidence, which raises a contrary presumption.\" Is it not plain, then, that, if not so rebutted, the plaintiff is entitled to recover? What is prima facie evidence of a fact? It is such as, in judgment of law, is sufficient to establish the fact; and, if not rebutted, remains sufficient for the purpose. The jury are bound to consider it in that light, unless they are invested with authority to disregard  the rules of evidence, by which the liberty and estate of every citizen are guarded and supported. No judge would hesitate to set aside their verdict and grant a new trial, if, under such circumstances, without any rebutting evidence, they disregard it. It would be error on their part, which would require the remedial interposition of the court. In a legal sense, then, such prima facie evidence in the absence of all controlling evidence, or discrediting circumstances, becomes conclusive of the  fact; that is, it should operate upon the minds of the jury as decisive to found their verdict as to the fact. Such we understand to be the clear principles of law on this subject. The very point in this very aspect occurred in the case of Carver v. Jackson (4 Peters's Rep. 1), where the court, speaking of the probate of this very deed, used the following language (p. 82). \"We are of opinion that, under these circumstances, and according to the laws of New York, there was sufficient prima facie evidence of the due execution of the indenture, by which we mean not merely the signing and sealing, but the delivery also, to justify the court in admitting it to the read to the jury; and that in the absence of all controlling evidence, the jury would have been bound to find that it was only executed. We understand such to be the uniform construction of the laws of New York in all cases where the execution of any deed has been so proved, and has been subsequently recorded. The oath of a subscribing witness before the proper magistrate, and the subsequent registration are deemed sufficient prima facie evidence to establish its delivery as a deed. The objection was not indeed seriously  pressed at the argument.\" \nWe have seen no reason, upon the present argument, to be  dissatisfied with the opinion thus expressed. It appears to us to be founded in principles of law, which cannot be shaken without undermining the great securities of titles to estates. The circuit court, in its instruction, did not more than express the same opinion in language of the same substantial import. \nUpon the whole, upon a careful review of the case, we are of opinion that the judgment of the circuit court ought to be affirmed, with costs. \nThis cause came on to be heard on the transcript of the record for the circuit court of the United States for the southern district of New York, and was argued by counsel; on consideration whereof, it is ordered and adjudged by this Court that the judgment of the said circuit court be, and the same is hereby affirmed with costs. \nDissent by:", " \nOpinion \n\n \n \n  Mr Justice STORY delivered the opinion of the Court. \nThis is an appeal from a decree in equity to the circuit court for the district of Maryland, dismissing the bill of the plaintiff, now appellant. \nThe material circumstances are as follows. Zacharie and Turner are, and at the time of the transactions hereafter to be stated were, resident merchants at New Orleans, and Boyle a resident merchant at Baltimore. In the year 1818, Boyle being the owner of the brig Fabius, sent her on a voyage to New Orleans, consigned to Zacharie and Turner, where she arrived and landed her cargo, and Zacharie and Turner procured a freight for her to Liverpool. After the cargo was put  on board, and the brig was ready to sail, she was attached by process of law, at the suit of Messrs Vincent, Nolte and Co. of New Orleans, as the property of Boyle, for a debt due by him to them. Zacharie and Turner, with one Richard Relff, with a view to benefit Boyle, and enable the brig to perform her voyage, became security for Boyle upon the attachment, and thus procured the release  of the brig. Upon information of the facts, Boyle approved of their conduct, and promised to mdemnify them for any loss they might sustain on that account. Messrs Vincent, Nolte and Co. recovered judgment in their suit, and Zacharie and Turner were compelled to pay the debt and expenses, amounting to three thousand one hundred and thirteen dollars and thirty cents; and afterwards, on the 23d of December 1819, they instituted a suit against Boyle for the recovery of the same, in the circuit court of Maryland. On the 31st of the same month of December 1819, Boyle made application for the benefit of the insolvent act of Maryland, of 1816, ch. 228, and eventually received a discharge under the same. On the 1st of May 1821, judgment by confession was rendered in the suit, in favour of Zacharie and Turner, for the sum of three thousand one hundred and thirteen dollars and eighty cents, with interest from the 15th of November 1819, and costs of suit; and a memorandum was entered of record, by consent of the parties, as follows, \"this judgment subject to the legal operation of the defendant's discharge under the insolvent laws of Maryland.\" The judgment having remained unexecuted for more  than a year, it was revived by a scire facias; and writs of fieri facias were issued, and renewed from time to time, until the 12th of December 1827, when a fieri facias was delivered to the marshal, who levied it on the ship General Smith, belonging to Boyle, on the 31st of March 1828; and returned it to the May term of the circuit court of the same year. \nThe bill of the plaintiff was filed on the 7th of April 1828, and stated most of the preceding facts; and prayed for an injunction to the further proceedings to enforce the execution of the judgment, and for general relief. The grounds relied on by the plaintiff, for this purpose, were first, that his property is exempted from the levy, by his discharge under the insolvent act; secondly, that he is entitled to credit for certain commissions  accruing to him for certain business done for Zacharie since the judgment, and agreed to be deducted therefrom; and thirdly, for the amount of losses sustained by the plaintiff in consequence of Zacharie and Turner having caused certain attachments for the same debt to be issued in Louisiana against the property of the plaintiff in the hands of certain debtors of the plaintiff in  that state. An injunction issued on the bill, on the 8th of the same April. \nThe answer of the defendants (now appellees) having come in, the cause was set down for a hearing on the bill and answer (by which the facts stated in the answer must be taken to be true); and it was decreed by the court that the injunction be dissolved, and the bill dismissed without costs. From that decree the present appeal has been taken to this court. \nThe first point presented for argument, and indeed that which was the principal ground of the appeal, is as to the effect of the discharge under the insolvent act. This question is of course at rest, so far as it is covered by the antecedent decisions made by this court. The ultimate opinion delivered by Mr Justice Johnson in the case of Ogden v. Saunders, 12 Wheat. 213, 358, was concurred in and adopted by the three judges, who were in the minority upon the general question of the constitutionality of state insolvent laws, so largely discussed in that case. It is proper to make this remark, in order to remove an erroneous impression of the bar, that it was his single opinion, and not of the three other judges who concurred in the judgment. So far  then, as decisions upon the subject of state insolvent laws have been made by this court, they are to be deemed final and conclusive. \n It has been suggested that the memorandum of agreement accompanying the judgment, that it should be \"subject to the legal operation of the insolvent laws of Maryland,\" ought to be deemed an acquiescence on the part of Zacharie and Turner, in the validity of that discharge, or at least a waiver of any claim in repugnance to it. We do not think so. The sole effect of that agreement is to save to the party whatever rights he may claim from the legal operation of those laws. It neither admits their validity, nor waives any rights of Zacharie and Turner, if they are unconstitutional. \nIt has in the next place been argued, that the contract upon  which the judgment is founded, is, in contemplation of law, a Maryland contract; and not a Louisiana contract; that Boyle undertook to pay the money in the place where he resided, and not in the place where Zacharie and Turner resided. Our opinion is, that this argument cannot be maintained. We do not admit, that the original undertaking of Zacharie and Turner in giving security in behalf  of Boyle, was an unauthorised act, and beyond the scope of their just authority, as consignees of the Fabius. It was an act obviously done for the benefit of Boyle, and indispensable to enable the vessel to perform her voyage; and naturally implied from the relation of the parties, as owner and consignees. It must have been intended by the owner, that the consignees were to be at liberty to do any act for his benefit, which was or might be required in order to despatch the vessel on the voyage. And Boyle himself seems to have admitted this to be true; for in the answer of Zacharie and Turner (which is evidence in the cause), it is expressly stated that Boyle, \"so far from disapproving of the acts of these defendants, as above stated, thanked them for their prompt and correct management of his business, and undertook and promised to indemnify them from any loss which they might sustain on his account.\" Now that could scarcely be deemed a prompt and correct management of the business of the principal, which was wholly beyond the scope of the authority delegated to the agents. In this view of the matter, the contract of indemnity would clearly refer for its execution to Louisiana;  as much so as if Boyle had authorised Zacharie and Turner to advance money there on his account, for which he would repay them. Such a contract would be understood by all parties to be a contract made in the place where the advance was to be made; and the payment, unless otherwise stipulated, would also be understood to be made there. The case would, in this aspect, fall directly within the authority of Lanusse v. Barker, 3 Wheat. Rep. 101, 146; see also Coolidge v. Poor, 15 Mass. Rep. 427; Consequa v. Fanning, 3 Johns. Ch. Rep. 587. \nBut if the contract had been unauthorized, and beyond the agency, still the subsequent ratification of the transaction by Boyle would have the same operation, according to the well known maxim, that subsequent ratification is equivalent to a  prior order; and when made, it has relation back to the time of the original transaction, and gives it as full a sanction as if it had been done under an original authority. The ratification of this contract by Boyle was complete and perfect; and he treated it as a Louisiana contract of indemnity, for his benefit, by which he was bound, and which he ought to discharge in that state. \nAs to the credit  for commissions, that is no longer relied on; for the defendant's answer asserts distinctly that the amount has been already credited. \nAs to the attachments, it is not very easy to ascertain the grounds upon which Boyle attempts in his bill to assert an equity. Assuming that a bill would lie to have an equitable offset for unliquidated damages, occasioned by the misconduct of the creditors in not prosecuting such attachments with due diligence, where the debt has been lost by the insolvency of the garnishee in the intermediate period (on which we desire to be understood as expressing no opinion); still, there must be sufficient facts alleged in the bill to justify a preumption of loss. Now, in the present bill, there is no allegation whatsoever of any insolvency of the garnishees. The allegation as to one attachment is, \"whereby your orator has been deprived of the benefit of any part of the debt, now due by the said Nelson (the garnishee), being somewhere about the sum of fifteen hundred dollars, besides interest thereon, from the said year, when the attachment aforesaid was laid, and which sum is as completely lost to your orator, as if it had been paid over to the said Zacharie  and Turner; who, for aught your orator knows, may have actually recovered the whole of it in virtue of said attachment, and may have refused to give credit for the same.\" And as to the other attachment, the allegation is, \"that they also attached property belonging to your orator, which was in the hands of Messrs Breedlove and Bradford (the garnishees), for which your orator has never received any credit, although it has been thus far completely lost to him, amounting, as he verily believes, to the sum of, &c. &c.\" So that the whole gravamen is, that the attachments have hitherto prevented him from receiving the debts and interest due from the garnishees. Under such circumstances, where Boyle might at any time have relieved himself from the  effects of the attachment, by the payment of the debt due to Zacharie and Turner; and where he has himself acquiesced in the delay, without in any manner attempting to speed the suits; and where no connivance or indulgence is pretended to have existed in concert with the garnishees; and where there is no allegation in the bill itself, of any undue delay in prosecuting the attachments by the creditor, it is difficult to perceive any  foundation on which to rest a claim for equitable relief. But the answer of the defendants shows still more forcible objections against the bill. This answer explicitly avers, that in both of the attachments the garnishees denied having any funds of Boyle in their possession, Nelson generally, and Breedlove, Bradford & Co. with the qualification, any funds liable to the attachment; and the suits were dismissed accordingly. Copies of the proceedings are annexed to the answer, which demonstrate (if it had been necessary), the result of the averment; but it must be taken to be true, as the hearing was upon bill and answer. \nIt is added in the answer that the suit against Breedlove, Bradford & Co. was commenced upon the information and at the request of  Boyle; so that it was not in invitum; but was an arrest of his funds, upon his own suggestion, and with his own consent. Surely a suit in chancery cannot be maintained in a case so naked of all real equity. But it is said that the answer of the garnishees, Breedlove, Bradford & Co. admits that they are indebted to the plaintiff. But we must take that answer according to its terms and import; and if so, then the admission  is qualified. It is as follows: \"we do not consider ourselves in debt to Hugh Boyle, or to Hugh Boyle & Co.; we received of Hugh Boyle & Co. some property, which has been sold, and the proceeds, say twelve or thirteen hundred dollars, placed to their credit on our books; but one of the house holds a claim against Hugh Boyle & Co. for upwards of twenty-five hundred dollars, which amount he refused to admit as a credit to our partner, but was willing to close Hugh Boyle & Co.'s account, by charging him and crediting the partner with the balance due said Boyle, and in this way said balance was held to pay the claim.\" They add, in an answer to another interrogatory, \"we have no property of the defendants in this case, nor do  we know of any.\" Now, it has not been shown at the argument, that in a process of this sort, under the local laws of Louisiana, the debt due to one partner might not be a good defence for the garnishees; and certainly the court cannot presume it. And, upon general principles, there can be little doubt, that in a court of equity, in a suit by Boyle seeking relief, such a counter claim would or might, under circumstances, furnish a good defence, if not  to the firm, at least to the creditor partner, to rebut the claim of Boyle against him. Where there is an express denial by the garnishees, setting up an equity of any property in their hands liable to the attachment, that allegation ought to be presumed to be supported by the local law applicable to the facts, until the contrary is explicitly established. But the decisive answer is, that as this suit was commenced at the request of Boyle, and as the garnishees did not admit that they had property liable to the attachment, the onus is on Boyle, to show, that, nevertheless, by the local law the attachment might have been enforced. He has failed to establish any such proposition. \nUpon the whole, it is the opinion of the court, that the decree of the circuit court ought to be affirmed, with costs. \nThis cause came on to be heard on the transcript of the record, from the circuit court of the United States for the district of Maryland, and was argued by counsel; on consideration whereof, it is ordered and decreed by this Court, that the decree of the said circuit court in this cause be, and the same is hereby affirmed, with costs. \n \n\n ", " \nOpinion \n\n \n \n  Mr Justice STORY delivered the opinion of the Court. \nThis is a writ of error to the circuit court of the district of Maryland, between the same parties, and upon the same judgment on which the bill in equity, which has just been disposed of, was founded. The facts relative to the judgments  need not be again repeated, as they are fully disclosed in the preceding cause. \nThe object of the present writ of error is to revise the decision of the circuit court in refusing to quash a writ of venditioni exponas issued for the sale of the ship General Smith, which was seized upon the fieri facias on the  judgment, upon a motion made by the counsel for Boyle for that purpose.  The fieri facias was levied on the ship on the 31st of March 1828; the bill in equity was filed, and an injunction awarded, on the 8th of the succeeding April. On the 8th of May following, the writ of fieri facias was returned to the circuit court with the marshal's return thereon, \"levied as per schedule on the 31st of March 1828. Injunction issued on the 8th of April 1828.\" On the 29th of August 1829, a writ of venditioni exponas issued from the circuit court, returnable to the next December term of the court. At the return term, a motion was made in behalf of Boyle, to quash the venditioni exponas, grounded, among other things, upon the injunction, and bond given in pursuance thereof, and the provisions of the act of Maryland of 1799, chap. 79, and the act of maryland of 1723, chap. 8. A rule was then made at the same term upon the marshal, to return the writ of venditioni exponas, upon which he made a return, in substance, that the amount of the money had been paid into his hands, and was now in bank to his credit, to be returned as made under the writ of venditioni exponas, if the court should  be of opinion that it rightfully issued, and empowered and obliged the marshal to sell the ship seised under the fieri facias issued in 1828, stayed by injunction as aforesaid. The court overruled the motion to quash the venditioni exponas, and ordered the money returned on the writ to be brought into court. The present writ of error is brought upon this refusal to quash the venditioni exponas. \nThe first question naturally presenting itself upon this posture of the facts is, whether a writ of error lies in such a case. It is material to state, that no error is assigned on the original judgment, or on the award of the fieri facias, which indeed are conceded to have been rightfully issued, and to be above exception. But the error assigned is the supposed irregularity and incorrectness of the award of the venditioni exponas, after the writ of injunction from the chancery side of the court had been granted. \nThe argument to maintain the writ of error has proceeded, in a great measure, upon grounds which are not in the slightest degree controverted by this court. It is admitted that the language in Co. Litt. 288, b. is entirely correct, in stating that \"a writ of error lieth when  a man is grieved by an error in  the foundation, proceeding, judgment or execution\" in a suit. But it is added, in the same authority, that \"without a judgment on an award in the nature of a judgment, no writ of error doth lie.\" If, therefore, there is an erroneous award of execution, not warranted by the judgment, or erroneous proceedings under the execution, a writ of error will lie to redress the grievance. The question here is not whether a writ of error lies to an erroneous award of execution, for there was no error in the award of the fieri facias. But the question is, whether a writ of error lies on the refusal to quash the auxiliary process of venditioni exponas, upon mere motion. In modern times, courts of law will often interfere by summary proceedings on motion, and quash an execution erroneously awarded, where a writ of error or other remedy, such as a writ of audita querela, would clearly lie. But, because a court may, it does not follow that it is bound thus to act in a summary manner; for in such cases the motion is not granted ex debito justitiae, but in the exercise of a sound sicretion by the court. The relief is allowed or refused, according to circumstances;  and it is by no means uncommon for the court to refuse to interfere upon motion, in cases where the proceedings are clearly erroneous, and to put the party to his writ of error or other remedy; for the refusal of the motion leaves every remedy, which is of right, open to him. \nIn Brooks v. Hunt, 17 Johns. Rep. 484, Mr Chancellor Kent, in delivering the opinion of the court of errors, alluding to this practice, said, \"it is not an uncommon thing for a court of law, if the case be difficult or dubious, to refuse to relieve a party after judgment and execution in a summary way by motion, and to put him to his audita querela.\" That was a case very similar to the present. A motion was made to the supreme court of New York to set aside a fieri facias, on the ground that the party was discharged under the insolvent laws of that state. The court refused the motion; and on error brought, the court of errors of New York quashed the writ of error. Mr Chancellor Kent, on behalf of the court, assigned as one of the grounds of quashing the writ of error, that the rule or order denying the motion was not a judgment within the meaning of the constitution or laws of New York. It was only a decision  upon a collateral or interlocutory point,  and could not well be distinguished from a variety of other special motions and orders, which are made in the progress of a suit, and which have never been deemed the foundation of a writ of error. A writ of error would only lie upon a final judgment or determination of a cause; and it was never known to lie upon a motion to set aside process. And in the close of his opinion, he emphatically observed, if the case \"is to be carried from this court to the supreme court of the United States, I should hope, for the credit of our practice, it might be on the audita querela, and not upon such a strange mode of proceeding as that of a writ of error brought upon a motion and affidavit.\" There are other cases leading to the same conclusion.See Wardell v. Eden, I Johns. Rep. 531, note. Wicket v. Creamer, 1 Salk. 264. Johnson v. Harvey, 4 Mass. Rep. 483. Bleasdale v. Darby, 9 Price, 600. Clason v. Shotwell, 1 Tidd's Prac. 470, 471; Kent's (Chancellor) Opinion, 12 Johns. Rep. 31, 50. Com. Dig. Pleader, 3 B. 12. A very strong case illustrating the general doctrine is that error will not lie to the refusal of a court to grant a peremptory  mandamus, upon a return made to a prior mandamus, which the court allowed as sufficient. This was held by the house of lords in Pender v. Herle, 3 Bro. Parl. Cases, 505. \nWe consider all motions of this sort to quash  executions, as addressed to the sound discretion of the court; and as a summary relief, which the court is not compellable to allow. The party is deprived of no right by the refusal; and he is at full liberty to redress his grievance by writ of error, or audita querela; or other remedy known to the common law. The refusal to quash is not, in the sense of the common law, a judgment; much less is it a final judgment. It is a mere interlocutory order.Even at the common law, error only lies from a final judgment; and by the express provisions of the judiciary act of 1786, chap. 20, sec. 22, a writ of error lies to this court only in cases of final judgments. \nBut if this objection were not, as we think it is, insuperable, there would be other decisive objections against the party. In the first place, the very ground of argument to maintain the motion to quash is, that the injunction operated as a supersedeas of the execution, according to the acts of Maryland  of 1723, chap. 8, and of 1799, chap. 79, regulating proceedings  in chancery and injunctions, which give to an injunction the effect of a supersedeas at law. But the acts of Maryland regulating the proceedings on injunctions, and other chancery proceedings, and giving certain effects to them in courts of law, are of no force in relation to the courts of the United States. \nThe chancery jurisdiction given by the constitution and laws of the United States is the same in all the states of the union, and the rule of decision is the same in all. In the exercise of that jurisdiction, the courts of the United States are not governed by the state practice; but the act of congress of 1792, ch. 36, has provided that the modes of proceeding in equity suits shall be according to the principles, rules and usages which belong to courts of equity, as contradistinguished from courts of law. And the settled doctrine of this court is, that the remedies in equity are to be administered, not according to the state practice, but according to the practice of courts of equity in the parent country, as contradistinguished from that of courts of law; subject, of course, to the provisions of the  acts of congress, and to such alterations and rules as in the exercise of the powers delegated by those acts, the courts of the United States may, from time to time, prescribe. Robinson v. Campbell, 3 Wheat. R. 212; United States v. Howland, 4 Wheat. R. 108. So that, in this view of the matter, the effect of the injunction granted by the circuit court was to be decided by the general principles of courts of equity, and not by any peculiar statute enactments of the state of Maryland. \nStrictly speaking, at the common law an injunction in equity does not operate as a supersedeas; although it may furnish a proper ground for the court of law, in which the judgment is rendered, to interfere by summary order to quash or stay the proceedings on the execution. If the injunction is disobeyed, a court of equity has its own mode of administering suitable redress. But a court of law is under no obligations to enforce it as a matter of right or duty. In respect to suits at common law, it is true that the laws of the United States have adopted the forms of writs, executions and other process, and the modes of proceeding authorized and used under the state laws, subject, however, to such alterations  and additions as may from time to time be made by the courts of the United States. But writs and executions,  issuing from the courts of the United States in virtue of these provisions, are not controlled or controllable in their general operation and effect by any collateral regulations and restrictions which the state laws have imposed upon the state courts to govern them in the actual use, suspension or superseding of them. Such regulations and restrictions are exclusively addressed to the state tribunals, and have no efficacy in the courts of the United States unless adopted by them.The case of Palmer v. Allen (7 Cranch, 550, 564) furnishes a commentary on this point; and it is freely expounded and illustrated in the subsequent cases of Wayman v. Southard, 10 Wheat. R. 1, and United States Bank v. Halstead, 10 Wheat. 51. No rule of the circuit court of Maryland has been produced which adopts these state regulations; and the existence of one is not to be assumed. \nBut if the injunction could be admitted to operate as a supersedeas at law, under any circumstances, in the courts of the United States, there would yet remain a decisive objection against its application  in the present case. Nothing is better settled at the common law than the doctrine that a supersedeas, in order to stay proceedings on an execution, must come before there is a levy made under the execution; for if it comes afterwards, the sheriff is at liberty to proceed upon a writ of venditioni exponas to sell the goods. There are many cases in the books to this effect; but they are admirably summed up by Lord Chief Justice Willis, in delivering the opinion of the court in Meriton v. Stevens, Willis's R. 271, 280; to which alone therefore it seems necessary to refer. See Charter v. Pector, Cro. Eliz. 597, Moore's R. 542; Clark v. Withers, 6 Mod. 290, 293, 298; S. C. 1 Salk. 321; Blanchard v. Myers, 9 John. R. 66; 2 Tidd's Pr. 1072; Com. Dig. Execution, C. 5, C. 8; Bac. Abridg. Supersedeas, G. See also M'Cullough v. Guetner, 1 Binn. R. 214. \nIn the present case, the levy on the fieri facias was made more than a week before the injunction was granted; so that, according to the course of the common law, it ought not to operate as a supersedeas to the venditioni exponas. \nIn every view of this case it is clear that there is no error in the proceedings, which is revisable by this  court. Whatever might have been properly done by the circuit court, upon  the motion to quash, in order to give full effect to its own injunction, was matter exclusively for the consideration of that court in the exercise of its discretion, and is not re-examinable here. And there is no pretence of any error in the judgment or award of the execution under which the levy was made. The judgment of the circuit court is therefore affirmed, with damages at the rate of six per cent, and costs. \nThis cause came on to be heard on the transcript of the record from the circuit court of the United States for the district of Maryland, and was argued by counsel; on consideration whereof, it is ordered and adjudged by this  court, that the judgment of the said circuit court in this cause be, and the same is hereby affirmed, with costs and damages at the rate of six per centum per annum. \n \n\n ", " \nOpinion \n\n \n \n  Mr Justice STORY delivered the opinion of the Court. \nThis case comes before the court upon a certificate of division of opinion of the judges of the circuit court for the southern district of New York, in a case stated in a special verdict. \nPhilip Jacobs, an American citizen, died in 1818 seised of certain real estate in the state of New York, having made his last will and testament; but the land in controversy in the present suit (which is an ejectment) is supposed by the plaintiff to be intestate estate. Two  of the lessors of the plaintiffs, Bella Cohen and Rhina Mordecai are citizens of South Carolina, and claim to be the heirs at law of the testator and of his  posthumous child, and as such are entitled to the premises. They are the children of Moses Cohen, who was the son of Leipman Cohen, an alien, and the maternal uncle of the testator, and as such claim to be his next of kin. The mother of the testator (who was also an alien) and the said Leipman Cohen and Moses Cohen are dead. The testator died, leaving his wife pregnant, who was afterwards delivered of a posthumous child, who died in infancy in 1821, and who took certain estate under the will, not now material to be mentioned. Under these circumstances the question arises, whether the said lessors of the plaintiffs, notwithstanding the alienage of the intermediate ancestors through whom they make their pedigree, are capable of taking the premises by descent from the testator or his posthumous child, as heirs at law under the laws of New York; and this is the question upon which the judges in the court below were divided in opinion. It resolves itself into this; whether one citizen can inherit in the collateral line  to another, when he must make his pedigree or title through a deceased alien ancestor. \nThe question is one of purely local law, and as such, must be decided by this court. By the thirty-fifth article of the constitution of New York of 1777, it was ordained and declared, \"that such parts of the common law of England, and of the statute law of England and Great Britain, and of the acts of the legislature of the colony of New York, as together did form the law of the said colony on the 19th of April 1775, shall be and continue the law of this state, subject to such alterations and provisions as the legislature of this state shall from time to time make concerning the same.\" By the statute of 11 and 12 William III. chap. 6, it is enacted, \"that all and every person or persons, being the king's natural born subject or subjects, within any of the king's realms or dominions, shall and may hereafter lawfully inherit and be inheritable as heir or heirs, &c., and make their pedigrees and titles by descent from any of their ancestors, lineal or collateral, although the father and mother, or fathers and mothers, or other ancestor of such person or persons, by, from, through, or under whom he,  she or they shall or may make or derive their title or pedigree, were or was, or is or are, or shall be born out of the king's allegiance, &c. as freely, &c. as if such father, &c. or  other ancestor, &c. &c. had been naturalized or natural born subjects, &c.\" \nIt has been argued at the bar that this statute of William III. extending to all his subjects, within all his dominions, constituted a part of the statute law of England which was in force, and formed a part of the law of New York in the year 1775; and as such was recognized by the constitution of New York. But, assuming for the sake of the argument that this is so, still the inquiry will remain, whether it was in force in New York at the time of the present descent cast; for if it was at that time repealed, it has no bearing on the present case. By an act of the legislature of New York, passed on the 27th of February 1788, chap. 90, sect. 38, it is enacted, \"that none of the statutes of England or Great Britain shall be considered as laws of this state.\" And by the statute of descents of New York, of the 23d of February 1786, chap. 12, it is enacted \"that in all cases of descents not particularly provided for by  this act, the common law shall govern.\" These statutes were in full force at the time of the descent cast in the present case; and of course govern the rights of the parties. \nIt has been argued, that the reference to the common law in the statute of descents of 1786, includes not only the common law properly so called, but the alterations and amendments which had been made in it by British statutes antecedent to the American revolution; and that the repeal of the British statutes by the act of 1788 repealed them only as statutes, but left them in full vigour and operation so far as they then constituted a part of the law of New York: thus making them in some sort a part of its common law. We cannot yield to the argument in either respect. The legislature must be presumed to use words in their known and ordinary signification, unless that sense be repelled by the context. The common law is constantly and generally used in contradistinction to statute law. This very distinction is pointed out in the clause of the constitution of New York, already cited, \"such parts of the common law of England, and of the statute law of England and Great Britain, and of the acts, &c. which did form  the law of the said colony on the 19th of April 1775, shall continue the law of the state.\" It is too plain for argument, that the common law is here spoken of in its appropriate sense, as the unwritten  law of the land, independent of statutable enactments. The same meaning must be applied to it in the act respecting descents  of 1786. That act propounds a scheme of descents varying in many respects from the common law; and then provides that in all cases of descent, not provided for by the act, the common law shall govern. If it had been intended to recognize any statute enactments of England, we should naturally expect to find some clear expression of such an intention by some appropriate words. None such are given; and it is therefore not to be doubted, that the common law canons of descent were referred to, and made the basis of descent in all cases not otherwise positively provided for. In England, the canons of descent by the common law are never confounded with descents specially authorised by statute: and the statute of New York refers not to any peculiar law of that state, then existing; but to the common origin of our jurisprudence, the common  law of England. \nThere is still less reason for giving the meaning contended for to the repealing clause of the act of 1788; for that would be a plain departure from the very words of the act, without any necessity for such a construction. The words are \"that none of the statutes of England, &c., shall be considered as laws of this state.\" The \"statutes of England\" can mean nothing else but the acts of parliament. The object was not to repeal some existing laws, but to repeal laws then in force in New York. It would be almost absurd to suppose that the act meant to repeal the statutes of England, which had no operation whatever in that state. What were the British statutes then in force? plainly those referred to, and continued in force by the thirty-fifth article of the constitution already quoted. The repeal then was co-extensive with the original adoption of them. In any other view of the matter, this extraordinary consequence would follow, that the legislature could solemnly perform the vain act of repealing, as statutes, what, in the same breath, it confirmed as the common law of the state; that it would propose a useless ceremony; and by words of repeal would intend to  preserve all the existing laws in full force. And this, it may be added, it would be doing at the same time, by contemporaneous legislation, at the same session, as well as in the same act, it was revising, and incorporating into the text  of its own laws, many of the provisions of the old English statutes, which had previously been, by adoption, a part of its jurisprudence. Such a course of proceeding would be consistent and intelligible, and in harmony with a design to repeal all the English statutes which were not revised and re-enacted; but it would be unintelligible and inconsistent with a design to retain them all as a part of its own common law. \nWe think, then, that the statute of William III. constituted no part of the law of New York at the time when the present descent was cast; and that the case must rest for its decision exclusively upon the principles of the common law. The residue of this opinion will, therefore, be exclusively confined to the consideration of the common law applicable to it. \nIn order to clear the way for a more exact consideration of the subject, it may be proper to take notice of some few distinctions in regard to descents, which are  of frequent occurrence in the authorities. Descents are, as is well known, of two sorts; lineal, as from father or grandfather to son or grandson, and collateral as from brother to brother, and cousin to cousin, &c. They are also distinguished into mediate and immediate descents. But, here, the terms are susceptible of different interpretations; which circumstance has introduced some confusion into legal discussions, since different judges have used them in different senses. A descent may be said to be mediate or immediate, in regard to the mediate or immediate descent of the estate or right; or it may be said to be mediate or immediate, in regard to the modiateness or immidiateness of the pedigree, or degrees of consanguinity. Thus, a descent from the grandfather, who dies in possession, to the grandchild (the father being then dead), or from the uncle to the nephew (the brother being dead), is in the former sense in law an immediate descent, although the one is collateral and the other lineal, for the heir is in the per, and not in the per and cui. And this, in the opinion of Lord Chief Justice Bridgman, Collingwood v. Pace, Bannister's Rep. of Sir O. Bridgman, 410, 418, is the  true meaning and appreciation of the terms. So they are used by Lord Coke in his first Institute, Co. Litt. 10, b. On the other hand, with reference to the line of pedigree or conanguinity, a descent is often said to be immediate,  when the ancestor, from whom the party derives his blood, is immediate, and without any intervening link or degrees, and mediate when the kindred is derived from him mediante altero, another ancestor intervening between them. Thus, a descent in lineals from father to son is, in this sense, immediate; but a descent from grandfather to grandson (the father being dead), or from uncle to nephew (the brother being dead), is deemed mediate; the father and the brother being in these latter cases the medium deferens, as it is called, of the descent or consanguinity. And this is the sense in which Lord Hale uses the words, assigning as a reason, that he calls it a mediate descent, because the father or brother is the medium, through or by whom the son or nephew derives his title to the grandfather or uncle. Collingwood v. Pace, 1 Vent. 413, 415. S.C. 1 Keble, 671. And in this sense the words are equivalent to mediate and immediate ancestors. In  the great case of Collingwood v. Pace, upon which we shall hereafter comment at large, these distinctions were insisted on by the learned judges already referred to with much particularity; and they will help us to understand the reasoning of the court with more readiness and accuracy. We shall constantly use the words in the sense adopted by Lord Hale. \nThat an alien has no inheritable blood, and can neither take land himself by descent, nor transmit land from himself to others by descent, is common learning, and requires no reasoning to support it. If we were to trust to the doctrines promulgated by elementary writers, it is no less true that alienage in any mediate ancestor will interrupt the descent between persons who are capable of taking and transmitting land by descent. It is so laid down in Comyn's Digest (Alien C.I.), a work of rare excellence and accuracy; and in Bacon's Abridgement (Alien, C.): and it is implied in  the text of Blackstone's Commentaries (2 Black. Comm. 250), where the only exception admitted is of a descent from brother to brother. Lord Coke, in his First Institute, Co. Litt, 8, a, says, that \"if an alien cometh into England and hath issue  two sons, these two sons are indigenae, subjects born, because they are born within the realm: and yet if one of them purchase lands in fee and dieth without issue, his brother shall not be his heir, for there was never any inheritable blood between the father and them; and  where the sons, by no possibility, cn be heirs to the father, the one of them shall not be heir to the other.\" The case put by Lord Coke of a descent from brother to brother afterwards became an exceedingly vexed question, and was finally resolved in the case of Collingwood v. Pace in favour of the descent from brother to brother by seven judges gainst three, on deliberate argument before all the judges in the exchequer chamber upon an adjournment of the case from the common pleas. All the judges gave seriatim opinions; but the whole case turned upon the point, whether the descent was to be considered as mediate or immediate. Three judges (Lord Chief Justice Bridgman, and Tyrrel, J. and Kelling, J.) were of opinion that the descent from brother to brother was not immediate, but mediate through the father (mediante patre); the other judges were of opinion that by the common law the descent from brother  to brother was immediate, and not through the father, as a medium deferens. The case is reported in various books, and in all of them, considering its magnitude and importance, in a very imperfect and unsatisfactory manner. The original arguments and opinions in the common pleas are given in 1 Keble's Reports 65; and in the exchequer chamber in 1 Keble, 174, et seq. 216, 265, 538, 579, 585, 603, 6070, 699, in 2 Siderfin's Rep. 193, and very briefly in 1 Levin's Rep. 59, S.C. Hard. Rep. 224. The opinion of Lord Hale is reported at large in 1 Ventris's Rep. 413; and Mr Bannister, in his excellent edition of the judgments of Lord Chief Justice Bridgman (Bannisterhs Rep. 410, 414), has, recently, and for the first time, given us the opinion of this eminent judge from his own manuscript. It is a most luminous and profound argument, and contains a large survey of the whole doctrine of alienage. In this opinion the special verdict is set forth, and thus gets us rid of some of the obscurities thrown upon it in the former reports. The substance of the facts is as follows: Robert Ramsay, an alien, born is Scotland before the accession of the crown of England to king James, had issue four  sons, aliens; viz. Robert, Nicholas, John, afterwards earl of Itchderness, and naturalized by an act of parliament in 1 Jac. I. and George, naturalized by an act of parliament, 7 Jac. I. who afterwards had issue John, the plaintiff's lessor, born in England. Nicholas had issue Patrick, born in England in  1618, who had issue William, born in England, who was then living. John, the earl, having purchased the rectory of Kingston in question in the case, died seised thereof, without issue, in January 1, Car. I. (1925). Afterwards, in July 1636, George died, leaving issue the said John, the lessor of the plaintiff; afterwards, in May 1638, Nicholas died, leaving the said Patrick his only son living. It did not appear when Robert the eldest son died; but he left three daughters, all aliens born, then living. The question was, whether John, the lessor of the plaintiff, the son of George, would take the premises as heir by descent to the earl, his uncle; or for want of an heir the rectory should escheat to the crown. In the argument of the case by the judges, we are informed, both by Lord Hale and Lord Bridgman, that three things were agreed to as unquestionable by all of  them. 1. That neither the daughters of Robert, the son of Robert, being aliens, nor Patrick, the son of Nicholas, though born in England, can inherit, because his father, through whom he must convey his pedigree, was an alien. 2. That as the estate cannot descend to them, as neither do any of them stand in the way to hinder the descent to George. The difference hath been often put between the case of a son or brother, aliens, who are in law as non-existentes, and the brother or son of a person attainted, as to this point. 3. That there is no difference between the descent to George and the descent to John his son, the lessor of the plaintiff, who, jure representationis, is the same with the father. If George, having survived John, the earl, might have inherited the estate, so will John, the son, who represents him. So that the point of the case came to this, whether, if two brothers of alien parents, one naturalized by acts of parliament, and the one purchaseth lands and dies; the lands shall descent to the other. And so it is put by Lord Bridgman and Lord Hale. \nIn regard to Patrick, the son of Nicholas, it is material to observe, that as Nicholas survived John, the earl, he  would, except for his being an alien, have been capable to inherit the latter. But, being alive, he would intercept the descent to Patrick, who was a native born subject, according to the principles of the common law stated by this court in M'Henry v. Somerville, 9 Wheat. Rep. 354. The learned judges, however, in Collingwood v. Pace, take no particular notice of the  fact that Nicholas was iving at the death of John, the earl; but treat the case exactly in the same manner as if he had been then dead; and apparently rely on no distinction as arising from that fact. But George, the brother of John, the earl, survived him, and being a naturalized subject, was capable of taking by descent from him, unless the alienage of his father Robert (whether dead or living) interrupted the descent: and John, the lessor of the plaintiff, jure representationis, derived his title directly from his father. \nHaving stated these preliminaries, which are necessary for a more clear understanding of the case, it may be added, that the case furnishes conclusive evidence, that by the common law, in all cases of mediate descents, if any mediate ancestor through whom the party makes his pedigree,  as heir, is an alien, that is a bar to his title as heir, for the reasons stated by Lord Coke, that such an alien ancestor can communicate no inheritable blood. This was admitted by all the judges, as well by those who were in favour of the lessor of the plaintiff, as by those who argued the other way. It was necessarily the doctrine of the latter, for they held the alienage of the father a good bar to the descent, deeming a descent from brother to  brother to be a mediate descent only, mediante patre: on the other hand, the seven judges who were for the lessor of the plaintiff, admitted the general doctrine, but contended that it did not apply to the case of a descent from brother to brother, because it was an immediate descent. And this constituted the whole controversy between them; that is, whether the descent was mediate or immediate. It will be our business to demonstrate this by passages from the opinions of Lord Bridgman and Lord Hale, who took opposite sides in the argument. Their opinions are given at large, and in an authentic form: those of the other judges, who agreed with them respectively, are given by the reporters in a very abridged and loose manner:  but all of them manifestly assume the same general basis of reasoning on this point, as will appear by referring to their opinions in 2 Siderfin's Rep. 193, and 1 Keble's Rep. 579, 585, 603, 670, 699. \nIn The first place we will begin with Lord Hale. He says, \"in immediate descents, there can be no impediment but what arises in the parties themselves. For instance, the father  seised of lands, the impediment that hinders the descent must be either in the father or the son; as if the father or the son be attaint or an alien. In mediate\" (printed immediate by mistake as the context shows) \"descents, a disability of being an alien, or attaint in him, that I call a medius ancestor, will disable a person to take by descent, though he himself hath no such disability. For instance in lineal descents; if a father be attaint or be an alien, and hath issue a denizen born, and dies in the life of the grandfather, the grandfather dies seised; the son shall not take, but the land shall escheat. In collateral descents, A. and B. brothers; A. is an alien or attainted, and hath issue to a denizen born; 1 B. purchaseth lands and dies without issue, C. shall not inherit; for A., which  was the medius ancestor, or medium deferens of this descent, was incapable. And this is very apparent in this very case; for by this means Patrick, though a denizen born, and the son of an elder brother, is disabled to inherit the earl. A. and B. brothers; A. is an alien or person attainted, and hath issue C. and dies, and C. purchaseth lands and dies without issue; B., his uncle, shall not inherit for the reason beforegoing; for A. is a medius, which was disabled. And if in our case Patrick, the son of Nicholas, although a denizen born, had purchased lands and died without issue, John, his uncle, should not have inherited him, by reason of the disability of Nicholas; and yet Nicholas himself, had he not been an alien, could not immediately have inherited to his son, but yet he is a block in the way of John.\" Collingwood v. Pac, 1 Vent. 415, 416; S.P. Id. 419, 423. See also S.C. 1 Keble, 671, &C. These passages distinctly establish the doctrine contended for in all cases of mediate descents in the sense given to these terms by Lord Hale: that is, that an alien mediate ancestor through whom the party must claim, is a bar to the descent. The cases put of a descent from grandfather  to grandson, the father being an alien and dead; and of a descent from an uncle to a nephew, the brother being an alien nand dead; are direct to the point, and are put as unquestionable. Lord Hale also cites in illustration  of this doctrine, Grey's case, Dyer's Rep. 274, and Courtney's case, cited 1 Vent. 425, Bannister's Rep. 452. Both of these were cases of attaint in the mediate ancestor creating an incapacity to inherit; and although in some cases there is a difference between alienage and attaint, where the claim is not through the ancestor, yet where the claim is through him there is no difference. The disability equally applies to each, and breaks the inheritance. Lord Hale takes notice of this distinction in another part of his argument, in speaking of the disability of an alien, which is general or original to himself in reference to inheritance; and where it is a consequential or consecutive disability, that reflects to an alien from one that must derive by or through him, though he perchance be a natural born subject. Thus he says, \"in respect to this incapacity (personal), he doth resemble a personal attaint; yet with this difference. The law looks upon  a person attaint as one that it takes notice of; and therefore the eldest son attaint, overliving his father, though he shall not take by descent in respect of his disability, yet he shall hinder the descent of the younger son. But if the eldest son be an alien, the law takes no notice of him; and therefore, as he shall not take by descent, so he shall not impede the descent to his younger brother. A consequential consecutive disability, that reflects to an alien from one that must derive by or through him, though he perchance be a natural born subject (doth impede). 2 As in our case, though Patrick the son of Nicholas be a natural born subject, yet because Nicholas his father was an alien, there is a consecutive impediment derived upon Patrick, whereby he is consequentially disabled to inherit John his uncle: and this consecutive disability is parallel to that which we call corruption of blood, which is a consequent of attainder. If the father be attainted, the blood of the grandfather is not corrupted; no, nor the blood of his son; though he could not inherit him, but only the blood of the father. But that corruption of blood in the father draws a consequential impediment upon  the son to inherit the grandfather; because the father's corruption of blood obstructs the transmission of the herditary descent between the grandfather and the son.\" 1 Vent. 417, 418. \n Lord Hale afterwards proceeds to state the reasons why, notwithstanding the genera rule, he was of opinion that in the case at bar, George, and by parity of reasoning, his son John, the lessor of the plaintiff, could inherit to the earl. \"My first reason,\" says he, \"is because the descent from brother to brother, though it be a collateral descent, yet it is an immediate descent; and consequently, upon what has been premised at first, unless we can find a disability or impediment in them, no impediment in another ancestor will hinder the descent between them.\" 1 Vent.  Rep. 423. He then proceeds to establish his doctrine, that  it is an immediate descent, and that in this respect it differs from all other collateral descents whatsoever. He then adds, \"if the father, in case of a descent between brothers, were such an ancestor as the law looks upon as a medium that derives the one descent from the other, then the attainder of the father would hinder the descent between the brothers. But the attainder of the father doth not hinder the descent between the brothers: therefore the father is not such a medium or nexus as is looked upon by law as the means deriving such descent between the two brothers.\" 1 Vent. Rep. 425. \nThese passages from Lord Hale's opinion have been cited the more at large because they afford a satisfactory answer to the argument at the bar, as to the incongruity and inconclusiveness of his reasoning; and establish beyond controversy, that in his opinion the common law interrupted the descent wherever a mediate ancestor was either an alien or attaint; and that the case of a descent from brother to brother was excepted because the descent was immediate. \nLet us now proceed in the next place to the opinion of Lord Bridgman.  He begins by stating the very same proposition as lord Hale. \"It hath been inferred,\" says he, \"that in immediate descents there can be no impediment but what ariseth in the parties themselves. But in mediate descents, it is agreed, the disability of being an alien, or attainted in him that is the medius antecessor, will disable the other, though he have no such disability. And therefore Patrick here, though born in England, cannot inherit John his uncle, nor John to him, by reason of the disability of Nicholas, the medius antecessor. But it is said that the descent from brother to brother,  though it be a collateral descent, yet it is an immediate descent, and so no impediment could hinder a descent between them. Bannister's Rep. 418, 436. And the whole of his argument is then employed in an attempt to disprove that the descent between brothers is by the common law immediate, and in affirming the doctrine of Lord Coke in Co. Litt. 8 a. for the same reason, viz. there is no inheritable blood between them, otherwise than mediante patre. Bannister's Rep. 437, 442, 443, 445, 460. It is unnecessary to go over that reasoning, because it proceeds upon the ground as conceded  and clearly established in the common law, there can be no title made by descent, where there is a mediate alien ancestor, unless it be the case of a descent from brother to brother. \nThe case of Collingwood v. Pace, then, does conclusively establish the doctrine of the common law to be, by the admission of all the judges, that if the pedigree must be traced through a mediate alien ancestor, the party cannot take by descent, for the inheritable blood is stopped, and there is a flat bar to the assertion of any title derived through the alien; so that the elementary writers are fully borne out in their assertions on this subject. See Com. Dig. Alien, C. Bac. Abridg. Alien, C. Cruise's Dig. tit. 29, chap. 2, sect. 20. York on Forfeiture, 72. 3 Salk. 129. Doe d. Durorere v. Jones, 4 Term Rep. 300. \nThe preamble to the statute of 11 and 12 William II. ch. 6, also affords strong evidence of the antecedent state of the law on this point; and that the statute is remedial; and not, as has been argued at the bar, in any respect declaratory. It is in the following words: \"whereas divers persons born within the king's dominions are disabled to inherit, and make their titles by descent from  their ancestors, by reason that their father or mother, or some other ancestor by whom they are to derive their descent, was an alien, and not born within the king's dominions, for remedy whereof,\" &c. \nHere, the disability to inherit and make title is a plainly stated to exist; not that there is a doubt upon the subject; and the disability is stated to arise from the fact, that the ancestor by whom they are to derive their descent is an alien; not that the ancestor from whom they derive their title to the estate is an alien; and a remedy is therefore provided to meet that which  was deemed the only inconvenience, a descent through a mediate alienancestor. \nUpon the clear result, then, of the English authorities, we should be of opinion, even if there were no further lights on the subject, that the alienage of the mediate ancestors in the present case, would be a bar to the recovery of the plaintiff. But the same doctrine will be found fully recognized by Mr Chancellor Kent in his learned Commentaries, with the additional declaration, that the statute of William III. had never been adopted in New York; though he very properly admits that the enlarged policy of the present  day would naturally incline us to a benignant interpretation of the law of descents, in favour of natural born citizens; who were obliged to deduce a title to land from a pure and legitimate source, through and alien ancestor. 2 Kent's Comm. 47, 48, 49. See also Jackson v. Lunn, 3 John. Cas. 109, 121. The case of Jackson v. Wood, 7 Johns. Rep. 289, 297, has not the slightest bearing on the subject. It decided no more than that an Indian was incapable of passing a title to lands in New York, without the consent of the legislature; or in any other manner than is provided for by the laws of the state. The case of Jackson v. Jackson, 7 Johns. Rep. 213, turned upon the known distinction, that an alien who cannot inherit, shall not prevent the descent to a citizen, who can make title as heir, not through the alien, but aside from him; as in the common case in England, of a younger brother inherinting from his father, though he has an elder brother living, who is an alien. \nBut there is a very recent decision in the state of New York, not yet in print, which is direct to the point now before us. It is the case of Jckson v. Green, decided by the supreme court of that state in 1831. We  have been favoured with a manuscript copy of the opinion delivered by the court on that occasion. The question in that case was, whether one naturalized citizen could take by descent from another naturalized citizen, who was his cousin; the pedigree being to be made through alien ancestors. It was held that he could not. The court fully recognized the distinction already adverted to between mediate and immediate descents; holding that an alien ancestor, through whom the pedigree must be traced; intercepted  the descent, and produced a fatal bar to the recovery. \n A certificate will be sent tothe circuit court, that the lessors of the plaintiff, Bella Cohen and Rhina Mordecai, were not capable of taking by descent the premises described in the special verdict in the case, whereof the said Philip Jacobs died seised, as therein stated, as heirs at law of the said Philip Jacobs; by reason of the alienage of the mother of the said Philip Jacobs, and his maternal uncle, Leipman Cohen, and their father: the lessors of the plaintiff deriving their pedigree and title by descent through mediate alien ancestors. 3 Certificate accordingly. \n This cause came on to be heard on the transcript of the record from the circuit court of the United States for the southern district of New York, and on the point and question on which the judges of the said circuit court were opposed in opinion, and which was certified to this Court for its opinion agreeably to the act of congress is such cases made and provided, and was argued by counsel; on consideration whereof, it is the opinion of this Court, that the lessors of the plaintiff, Bella Cohen, and Rhina Mordecai, were not capable of taking by descent the premises described in the special verdict in the case, whereof the said Philip Jcobs died seised, as therein stated, as heirs at law of the said Philip Jacobs, by reason of the alienage of the mother of the said Philip Jacobs and his maternal uncle, Leipman Cohen, and his father; the lessors of the plaintiff deriving their pedigree and title by descent through mediate alien ancestors. Whereupon it is ordered and adjudged by this Court, that it be certified to the judges of the said circuit court that the lessors of the plaintiff, Bella Cohen and rhina Mordecai, were not capable of taking by descent  the premises described  in the special verdict in the case, whereof the said Philip Jacobs died seised, as therein stated, as heirs at law of the said Philip Jacobs, by reason of the alienage of the mother of the said Philip Jacobs, and his maternal uncle, Leipman Cohen, and their father; the lessors of the plaintiff deriving their pedigree and title by descent through mediate alie ancestors. \n \n\n ", " \nOpinion \n\n \n \n  Mr Justice STORY delivered the opinion of the Court. \nThis is an appeal from certain decrees of the circuit court of the district of Maryland, rendered in pursuance of the mandate of this court when the same cause was formerly before us; the report of which will be found in 5 Peters's Rep. 675, et seq. \n After the cause was remanded, the circuit court referred it to a commissioner to ascertain and report to the court the sums respectively due to each of the officers and seamen, who were libellants for their wages, and interest thereon. In conformity with this order of reference, the commissioner made  reports of the amount so due to each of the libellants then before the court; and thereupon the court, after confirming the second and final report of the commissioner, proceeded to enter a separate decree for each libellant for the amount so found due to him; and to apportion, pro rata, the payment of the same out of the funds in the hands of Robert Oliver and others, the assignees in whose hands the funds were attached: and to decree the deficit to be paid by the owners of the ship Warren. The sums so decreed to the libellants, respectively, in no case exceeded nine hundred dollars, and most of them fell short of five hundred dollars. From the separate decrees so rendered, the assignees prayed an appeal to this court, and gave a several appeal bond, upon the appeal from each decree; as well as a joint appeal bond for the whole. Under these circumstances a motion has been made to dismiss the appeal, upon the ground that the sum in controversy in each decree is less than two thousand dollars; and as such, is insufficient to give this court appellate jurisdiction. The motion is resisted upon the other side, upon the ground that the aggregate in controversy, under the whole of the  decrees taken together, greatly exceeds that value. \nThe question is one of great practical importance; but, in our judgment, not of any intrinsic difficulty. The present is a case of seamen's wages, in which there is necessarily a several and distinct contract with each seaman, for the voyage, at his own rate of wages; and though all may sign the same shipping paper, no one is understood to contract jointly with, or to incur responsibility for any of the others. The shipping articles constitute a several contract with each seaman to all intends and purposes; and are so contemplated by the act of congress for the government and regulation of seamen in the merchants' service; act of 1790, chap. 29; and have been so practically interpreted by courts of justice, as well as by merchants and mariners, in all commercial nations in modern times. It is well known that every seaman has a right to sue severally  for his own wages in the courts of common law; and that a joint action cannot be maintained in such courts by any number of the seamen, for wages accruing under the same shipping articles for the same voyage. The reason is, that the common law will not tolerate a joint  action, except by persons who have a joint interest, and upon a joint contract. If the cause of action is several, the suit must be several also. But a different course of practice has prevailed for ages in the court of admiralty, in regard to suits for seamen's wages. It is a special favour, and a peculiar privilege allowed to them, and to them only; and is confined strictly to demands for wages. The reason upon which this privilege is founded, is equally wise and humane: it is to save the parties from oppressive costs and expenses, and to enable speedy justice to be administered to all who stand in a similar predicament; in the expressive language of the maritime law, velis levatis. And the benefit is equally as great to the ship owner as to the seamen; though the burthen would otherwise fall upon the latter, from their general improvidence and poverty, with a far heavier weight. A joint libel may therefore always be filed in the admiralty by all the seamen who claim wages for services rendered in the same voyage, under the same shipping articles. But although the libel is thus in form joint, the contract is always treated in the admiralty according to the truth of the case,  as a several and distinct contract with each seaman. Each is to stand or fall by the merits of his own claim, and is unaffected by those of his co-libellants. The defence which is good against one seaman, may be wholly inapplicable to another. One may have been paid; another may not have performed the service; and another may have forfeited in whole or in part his claim to wages. But no decree whatsoever, which is made in regard to such claim, can possibly avail to the prejudice of the merits of others, which do not fall within the same predicament. And wherever, from the nature of the defence, it is inapplicable to the whole crew, the answer invariably contains separate averments; and is applied to each claim according to its own peculiar circumstances. The decree follows the same rule, and assigns to each seaman severally the amount to which he is entitled; and dismisses the libel as to those, and those only, who have maintained no right to the interposition of the  court in their favour. The whole proceeding, therefore, from the beginning to the end of the suit, though it assumes the form of a joint suit; is in reality a mere joinder of distinct causes of action  by distinct parties, growing out of the same contract, and bears some analogy to the known practice at the common law, of consolidating actions against different underwriters, founded upon the same policy of insurance. Be this as it may, it is the established practice of the admiralty. The act of congress already referred to, adopts and sanctions the practice; and it enacts that in proceedings in rem against the ship for mariners' wages, \"all the seamen or mariners, having cause of complaint of the like kind against the  same ship or vessel, shall be joined as complainants.\" Act of 1790, ch. 29, sect. 6. It thus converts what by the admiralty law is a privilege into a positive obligation, where the seamen commence a suit at the same time in the same court, by a proceeding in rem for their wages. And it further directs, that \"the suit shall be proceeded on in the said court, and final judgment be given, according to the course of admiralty courts in such cases used.\" Act of 1790, ch. 29, sect. 6. \nFrom this summary view of the nature and operation of the proceedings in the admiralty in cases of joint libels for wages, it is obvious that the claim of each seaman is distinct  and several; and the decree upon each claim is in like manner distinct and several. One seaman cannot appeal from the decree made in regard to the claim of another; for he has no interest in it, and cannot be aggrieved by it. The controversy, so far as he is concerned, is confined solely to his own claim; and the matter of dispute between him and the owners, or other respondents, is the sum or value of his own claim, without any reference to the claims of others. It is very clear, therefore, that no seaman can appeal from the district court to the circuit court, unless his own claim exceeds fifty dollars; nor from the circuit court to the Supreme Court, unless his claim exceeds two thousand dollars. And the same rule applies to the owners or other respondents, who are not at liberty to consolidate the distinct demands of each seaman into an aggregate, thus making the claims of the whole the matter in dispute; but they can appeal only in regard to the demand of a seaman which exceeds the sum required by law for that purpose, as a distinct  matter in dispute. If the law were otherwise, it would operate in a most unjust and oppressive manner: for then the seamen would  be compellable to file a joint libel; and if any controversy existed as to the claim of a single seaman, all the others would be compellable to be dragged before the appellate tribunals, and incur enormous expenses; even when their own rights and claims were beyond all controversy, and in truth were not controverted. The form of proceeding would thus be made an instrument to subvert the very object for which it was instituted. \nBut it has been argued, that this court formerly entertained jurisdiction of this very cause upon an appeal by the seamen, and passed a decree in their favour; and that the present appeal is to the erroneous proceedings of the circuit court in carrying into effect that decree: and if the seamen may appeal, the original respondents may appeal also. It is true that the appeal was taken by the seamen, and jurisdiction entertained by this court in the manner stated at the bar; but a moment's attention to the state of facts and posture of the case at that time, will show that the conclusion now attempted to be drawn from them is wholly unsupported. There was nothing then upon the record to show what were the amounts respectively claimed by, and due to the seamen.  The decrees, both in the district court, and in the circuit court, were, by the consent of the parties, pro forma, dismissing the libel as to all the libellants, withou any inquiry into or ascertainment of the claim of any one of them: and this dismissal was for the avowed purpose of taking an appeal to this court, in order to settle the only real controversy between the parties to the appeal; viz. whether the funds in the hands of the assignees were liable to the claims of the seamen in point of law. Such a proceeding, assented to by all the parties in interest, necessarily admitted that the sums in controversy between the parties were sufficient to found the appellate jurisdiction of this court. The argument at the bar proceeded upon this implied admission; and there was nothing in the record before the court that contradicted the admission.It was not possible for the courts, therefore, to know what was due or claimed by each seaman; and though consent cannot give jurisdiction to this court by way of appeal, where the matter in dispute is less than two  thousand dollars; yet an admission of a sufficient value by the parties is presumed to be correct, where the record  does not establish the contrary. 5 Peters's Rep. \nIn looking into the original proceedings, which are not, indeed, now before us, except for incidental purposes, but only such as have been consequent upon the mandate, it appears that the original libel was by Shepperd alone; that by subsequent amendments other libellants were added; that in the year 1819 another amended libel was filed, embracing all the libellants, and asserting claims on their part to wages in the aggregate to the amount of thirty-one thousand dollars; and that subsequently, in December 1825, another amended libel or petition was filed in behalf of the libellants, making the assignees parties, and making a positive claim for interest also upon the amount of their wages. It was upon the libels thus amended and filed, that the decree of this court, as well as those of the court below, were founded. And the last asserts, on the part of one of the libellants (Stephen Cassin), a claim for three thousand four hundred and seventy-six dollars and fifty-one cents, leaving the claims of the others in the most general form, with no averments ascertaining the amounts which were then respectively demanded by them. Indeed,  the very loose and inartificial structure of all the libels, could not escape observation; and might, in earlier stages of the cause, have been open to objection for the want of due certainty and precision, if any exceptions had been specially promoted on behalf of the respondents: but as none were made, there was an implied waiver of all imperfections of this sort. This court, in its decree, affirmed the right of the seamen to their wages, and directed a separate and several decree to be entered for the amount due to each libellant respectively; as soon as the same should be ascertained by a commissioner. So that the decree itself severed the claims of the libellants in all future proceedings in the cause; as in truth these claims ought to have been severally propounded in the original libel. It is manifest, then, that each libellant has no joint interest in the claim of any other; and that each is in its nature and character distinct and independent: and the amount in controversy being now ascertained by a several decree, that constitutes, in regard to the respondents, the sole matter in dispute  between them, and the respective libellants. Neither party can, then,  claim an  appeal to this court, in regard to the claim of any libellant, unless that claim exceeds two thousand dollars. The case is not distinguishable in principle from that of an information of seizure, or a libel on a capture as prize, where various claims are interposed for different portions of the property by persons claiming the same by distinct and independent titles. In such a case, though the original libel is against the whole property jointly, yet it is severed by the several claims; and no appeal lies by either party, unless in regard to a claim exceeding the sum of two thousand dollars in value. This has been the long and settled practice in the admiralty courts of our country. \nUpon the whole, it is the opinion of this court, that for the want of jurisdiction the present appeal must be dismissed; no one of the decrees in the circuit court involving a matter in dispute sufficient in value to justify the exercise of the appellate authority of this court. \nThis cause came on to be heard on the transcript of the record from the circuit court of the United States for the district of Maryland, and was argued by counsel; on consideration whereof, it is the opinion  of this Court, that for the want of jurisdiction the present appeal must be dismissed; none of the decrees in the circuit court involving a matter in dispute sufficient in value to justify the exercise of the appellate authority of this Court. Whereupon it is ordered and adjudged by this Court, that this appeal be, and the same is hereby dismissed, for want of jurisdiction as aforesaid. \n \n\n ", " \nOpinion \n\n \n \n  Mr Justice STORY delivered the opinion of the Court. \nThis is a motion for a mandamus  to the district judge for the southern district of New York, directing him to restore to the record a plea of tender, which had been filed, together with a plea of non est factum, by Davenport, in a suit on a custom house bond for the payment of duties, brought against him in that court; and which had been ordered by the court to be struck from the docket as a nullity. As the allowance of double pleas and defences is a matter not of absolute right, but of discretion in the court, and as the courts constantly exercise a control over this privilege, and will disallow incompatible and sham pleas, no mandamus will lie to the court for the exercise of  its authority in such cases; it being a matter of sound discretion, exclusively appertaining to its own practice. We cannot say judicially, that the court did not order the present plea to be struck from the record on this ground, as the record itself furnishes no positive means of information. \nBut it appears from the affidavit of the party, and the opinion of the district court, with a copy of which we have been furnished, that the plea was in fact struck from the record upon the ground that under the sixty-fifth section of  the duty collection act of 1799, chapter 128, the defendant has not a right to make every defence which he would be entitled to make in a suit at common law upon such a bond; but that the statute contemplates a summary proceeding and judgment against him, without preserving to him the same right of a trial by jury upon litigated questions of fact, at least not upon such questions of fact as are not within the issue of non est factum. \n The words of the sixty-fifth section of the act are, \"and where suit shall be instituted on any bond for the recovery of duties due to the United States, it shall be the duty of the court where the same may be pending to grant judgment at the return term, upon motion; unless the defendant shall in open court, &c. make oath or affirmation, that an error hath been committed in the liquidation of the duties demanded upon such bond, specifying the errors, &c. &c; whereupon, if the court be satisfied that a continuance until the next succeeding term is necessary for the attainment of justice, and not otherwise, a continuance may be granted, until the next succeeding term, and no longer.\" In our opinion, upon the true interpretation of this provision, the legislature intended no more than to interdict the party from an imparlance, or any other means or contrivances for mere delay. He should not by sham pleadings, or by other pretended defences, be allowed to avail himself of a postponement of judgment to the injury of the government, and in fraud of his obligation to make a punctual payment of the duties when they had become due. \nBut we perceive no reason to suppose that the legislature meant to bar the party from any good defence against the suit, founded upon real and substantial merits. And certainly we ought not, in common justice, to presume such an intention without the most express declarations. To deprive a citizen of a right of trial by jury, in any case, is a sufficiently harsh exercise of prerogative, not to be raised by implication from any general language in a statute. But to presume that the government meant to shut out the party from all defences against its claims, however well founded in law and justice, without a hearing; would be pressing the doctrine to a still more oppressive extent. We think the language of the sixty-fifth section, neither requires nor justifies any such interpretation. It merely requires  that judgment should be rendered at the return term, unless delay shall be indispensable for the attainment of justice: and there is no impossibility or impracticability in the court's making such rules in relation to the filing of the pleadings, and the joining of issues in this peculiar class of cases, as will enable the causes to be heard and tried upon he merits, and a verdict found at the return term of the court. It is a matter of common practice in all classes of cases  at least in one of the circuits, and no inconvenience or hardship has hitherto grown out of it -- special exceptions, founded upon extraordinary circumstances, are and may be disposed of upon special application for delay. \nWe have thought it right to express this opinion on the present occasion, because it appears that there has been a diversity of judgment among the district judges upon the subject. It is probable that the district judge of the southern district of New York, will, upon this intimation, grant the proper relief. If he should not, we cannot interfere by way of mandamus; unless the objection is put upon the record in a proper form, which it does not appear to be in the present case. \n On consideration of the motion made in this case on a prior day of the present term of this court for a mandamus to be directed to the judge of the district court of the United States for the southern district of New York, \"commanding him to restore to the record of the cause in said named case, the plea of tender pled in the said cause by the defendant, and to proceed to trial and judge thereupon according to law, and to vacate all rules or orders entered in the said court, setting aside such plea as a nullity,\" and of the exhibits filed in the case as well by the said counsel of the defendant as by Mr Attorney-General in behalf of the United States: it is now here ordered and adjudged by this Court, that the mandamus prayed for be, and the same is hereby refused, and that the said motion be, and the same is hereby overruled. \n \n\n ", " \nOpinion \n\n \n \n  Mr Justice STORY delivered the opinion of the Court. \nThis is a writ of error to the circuit court for the district of Pennsylvania. The original action was a feigned issue between the plaintiffs, who are creditors, and the defendant, to try the question, whether he is able to pay the debt due to them; and this depends upon the validity of certain articles of settlement, made in contemplation of a marriage between the defendant and Miss Annis Stockton, daughter of the late Richard  Stockton, Esq. stated  in the case. The verdict in the court below was for the defendant; and judgment having been rendered thereon accordingly,  the present writ of error is brought to revise that judgment, upon a bill of exceptions taken to the charge of the court at the trial. \nThe whole charge of the court is spread upon the record (a practice which this court have uniformly discountenanced, and which, we trust, a rule made at the last term will effectually suppress); and the question now is, whether that charge contains any erroneous statement of the law; for as to the comments of the court upon the evidence, it is almost unnecessary to say, after what was said by this court in Carver v. Jackson, 4 Peters's Reports, 80, 81, that we have nothing to do with them. In examining the charge for the purpose of ascertaining its correctness in point of law, the whole scope and bearing of it must be taken together. It is wholly inadmissible to take up single and detached passages, and to decide upon them without attending to the context, or without incorporating such qualifications and explanations as naturally flow from the language of other parts of the charge. In short, we are to construe the whole as it must have been understood, both by the court and the jury, at the time when it was delivered. \nThe material facts are as  follows: The plaintiffs and the defendant were resident merchants in China; and the defendant left it in March 1825 to visit America. In the summer of that year he paid his addresses to Miss Stockton, then resident with her father in New Jersey, by whom his addresses were accepted; and in contemplation of marriage on the 19th of December of the same year the articles of marriage settlement referred to were executed. They purport to be articles of agreement and covenant between the defendant of the first part, Miss Annis Stockton of the second part, and Richard Stockton, father and trustee of Miss Stockton, of the third arty. By these articles, after reciting the intended marriage, and that Richard Stockton, the father, had promised to give a certain lot of land (described in the articles) to his daughter, upon which the defendant, Thompson, had begun to build a house, it is stated that R. Stockton covenants, in consideration of the  said marriage, and his love and affection for his daughter, that from the time of the marriage he will stand seised of the lot and premises in trust to permit the defendant and Annis his wife to live in and occupy the same; and if they do not  think proper so to do, then to let out the premises on lease, and receive the rents and profits and pay over the same to the said Annis during the joint lives of herself and her husband (the defendant); if the defendant should survive his said wife and have issue by her, then in trust to permit him during his life to inhabit and occupy the premises, if he should elect so to do, and to pay over the rents and profits to him for the support of himself and his family, without his (the defendant's) being accountable therefor; and after his death, in trust for the child or children of the marriage in equal shares as tenants in common; and if no children, then upon the death of either the husband or the wife, to convey the premises to the survivor in fee simple. By the same instrument the defendant covenants, that if the marriage should take effect, and in consideration thereof, he will, with all convenient speed, build and furnish the house in a suitable manner, as he shall judge fit and proper, and that the erections, improvements and furniture shall be subject to and included in the trusts. And further, that he will, in the space of a year from the marriage, place out at good security,  in stock or otherwise, the sum of forty thousand dollars, and hand over and assign the evidences thereof to the trustee, who shall hold the same in trust to receive the interest, profits and dividends thereof for the wife, during the joint lives of herself and her husband. And if she should die before her husband, and there should be issue of the marriage, then in trust to receive the interest, profits and dividends, and pay the same to the husband during his life, for the support and maintenance of himself and children, without any account, and after his death, in trust for the children of the marriage. A similar provision is made in case of the survivorship of the wife; and if no children, then the trustee is to assign and deliver the securities and moneys remaining due to the survivor, to his or her own use. \nSuch are the most material clauses of the marriage articles. Before the execution of them, the defendant made out a written  statement of his pecuniary circumstances, in which he states that he owes no personal debts except to a small amount, in the common course of business; that be is surety for his father in a bottomry bond to Messrs Schott and Lippincott,  in the penal sum of two hundred thousand dollars, upon which there was a pledge of goods, supposed to be sufficient to discharge the bond; and if any loss should accrue, it could not be more than twenty thousand dollars, and that he considered himself worth that amount, if not more, in addition to the sum proposed to be settled. \nFrom the testimony in the case, which is stated in the charge, it appears that the marriage was consummated; that the defendant built the house on the lot mentioned in the articles at an expense of thirteen thousand dollars, and furnished it at the expense of five thousand dollars, but invested no part of the forty thousand dollars during the lief of the trustee. It also appears, that at the time of executing the articles, he was worth about eighty or ninety thousand dollars in money and personal property; that his agent in China, in November and December 1825, borrowed of the plaintiffs sixty-three thousand dollars on the pledge and security of property of the invoice value of eighty-six thousand dollars and upwards, on the credit of the defendant, but entirely for the use of the defendant's father, in order to complete the cargoes of his ships, then at  Canton short of funds. The property arrived at a losing market, and the debt now due to the plaintiffs by the defendant, grew out of their transactions, his father having failed on the 19th of November 1825; but the existence of the loan contracted with the plaintiffs, was not known to the defendant (though fully authorized to be made, if necessary) until the spring of 1826. \nThe marrage articles were never recorded in New Jersey, where the land lies, until May  1830, after the death of the trustee. In September 1289, shortly before the plaintiffs obtained a judgment for either debt against the defendant, the defendant delivered over to captain Robert Stockton, the son of the trustee, who succeeded him in the trust, securities to the amount of nine thousand five hundred dollars on account of the sum to be invested pursuant to the marriage articles. \n Such are the material facts which appeared at the trial; and the question was, whether, under all the circumstances, the marriage articles were void as a fraud upon creditors. With reference to this point, the learned judge who delivered the charge to the jury, made, among others, the following remarks. \"To taint  a transaction with fraud, both parties must concur in the illegal design. It is not enough to prove fraud in the debtor. He may lawfully sell his property, with the direct intention of defrauding his creditors, or prefer one creditor to another. But, unless the purchaser or preferred creditor receives the property with the same fraudulent design, the contract is valid against other creditors or purchasers, who may be injured by the transaction.\" \"Before you can pronounce this marriage agreement void and inoperative on the ground of actual fraud, you must be satisfied, not only that the defendant made it with design to defraud his creditors, but also that Mrs Thompson, and her father and trustee, Mr Richard Stockton, participated and concurred in the fraud intended. If they were innocent of the combination, it would be harsh and cruel in the extreme to visit on her the serious consequences of her intended husband's acts, and as inconsistent with law as justice.\" \"The deeds, gifts, grants or other contracts, which the law avoids, are those made with intent to defraud, hinder, delay or injure creditors; and in order to avoid them, both the party giving and the party receiving must  participate in the fraud.\" \"The words of the law (the statute of 13 Elizabeth, ch. 5), require that both parties must concur in the fraud in order to bring the same within the provisions.\" \nNothing can be clearer, both upon principle and authority, than the doctrine, that to make an antenuptial settlement void, as a fraud upon creditors, it is necessary that both parties should concur in, or have cognizance of the intended fraud. If the settler alone intend a fraud, and the other party have no notice of it, but is innocent of it, she is not, and cannot be affected by it. Marriage, in contemplation of the law, is not only a valuable consideration to support such a settlement, but is a consideration of the highest value; and from motives of the soundest policy is upheld with a steady resolution. The  husband and wife, parties to such a contract, are therefore deemed in the highest sense purchasers for a valuable consideration; and so that it is bona fide, and without notice of fraud, brought home to both sides, it becomes unimpeachable by creditors. Fraud may be imputable to the parties, either by direct co-operation in the original design at the time of its concoction,  or by constructive cooperation from notice of it, and carrying the design, after such notice, into execution. \nThe argument at the bar admits these principles to be incontrovertibel. But it is supposed by the counsel for the plaintiffs in error, that the charge contains a different and broader doctrine; that it requires active co-operation, pre-concert and participation in the original design of fraud; and that notice of it is not sufficient to avoid the settlement, although all the parties, after such notice, proceed to execute it. \nIt appears to us that this is an entirely erroneous view of the scope and reasoning of the charge, even in the passages above cited. But taking them in connexion with other passages in the same charge, it is beyond doubt that no such distinction was in the mind of the court, orwas in fact uttered to the jury. The language of the charge has reference to the actual posture of the case before the court, and not to any other possible state of facts. The case was not of a settlement already made and executed by the settler alone, with a fraudulent intent, to which settlement the wife or her trustee were not contemplated to be executing parties, and which  was, after notice of the intent, accepted by them; in which the effect of notice might have been the very hinge of the cause. But the case was of marriage articles about to be executed by all the parties upon negotiations then had between them for that purpose; and of course, if there was a fraudulent design, known to all the parties at the time, the very execution of the articles made them all equally participators, and parties to the fraud. It necessarily involved combination, and participation, and pre-concert. It was to this posture of facts that the reasoning of the charge was addressed; and it met and stated the law truly, as applicable to them. Notice under such circumstances, necessarily included participation in the fraud. It was not possible that the wife and her trustee, with notice of an intended fraud on  the part of her husband, could execute the instrument without being, in the sense of the law participes delicti. \nBut the charge does, in various other passages, distinctly point out to the jury the very doctrine which the plaintiffs in error assume as the basis of their argument, and for which they contend. Thus, in commenting upon the different classes  of conveyances, to which the statute of 13 Elizabeth is applicable, it is observed, that all conveyances are valid and excepted, which are \"for a valuable consideration, in good faith, without notice by the person receiving the conveyance of any fraud, covin or collusion by the grantor to defraud his creditors.\" Again \"the consideration being valuable, if the contract, whether executed or executory, is made in good faith, with one having no notice or knowledge of any fraud, covin or collusion to defraud creditors, performance may be enforced or voluntarily made, and the contract carried into execution at any time, either in the whole or in part, as is in the power of the party.\" Again, \"it is the opinion of the court, that the evidence in this case brings the marriage contract within the sixth section of the law (the act of 13 Elizabeth), excepting it from the operation of the first section; unless you shall find that it was made, not bona fide, or with notice or knowledge of a fraud in John R. Thompson  in entering into it, brought home to his intended wife, and that Thompson actually entered into it with such fraudulent, covinous and collusive intention.\" And, without  dwelling on other passages equally expressive, it is added in the very close of the charge, \"we conclude, then, with instructing you, that a settlement made before marriage, makes the intended wife a purchaser for a valuable consideration; if agreed to be made, she is a creditor, and protected in the enjoyment of the thing settled, and entitled to the means of enforcing what is executory, if the transaction was bona fide and without notice or fraud.\" That these directions are correct in point of law, cannot admit of doubt; and that they cover the whole ground asserted in the argument for the plaintiffs, seems equally undeniable. We may then dismiss any further commentary on this part of the case. \nThe next objection is, to the charge of the court in regard to the furniture. The court were requested to charge the jury  that the expenditure of five thousand dollars in furnishing the house was, per se, fraudulent. The court refused so to do, stating, \"that furniture is part of the marriage contract, to be provided by Thompson, in a suitable manner, as he should think fit. He had a discretion which he might exercise in a reasonable manner, according to their station and associations  in life, proportioned to the kind of house and extend of income; the trustee or wife could not, in law or equity, compel Thompson to furnish it extravagantly, or at useless and wanton expense; and if he should do it voluntarily, it would not be within the true spirit and meaning of the marriage articles, and might be deemed a legal fraud on creditors as to the excess. But before we can say that it is a fraud in law to expend five thousand dollars in furnishing a house costing thirteen thousand dollars, and the establishment to be supported by the income of an investment of forty thousand dollars in productive funds; we must be satisfied that it is, at the first blush, an extravagant and unwarranted expenditure under all the circumstances in evidence, and to an extent indicating some fraudulent or other motive unconnected with the fair execution of the contract, of which we are not satisfied.\" \nIt is difficult to perceive any error in this direction; and it was going quite as far in favour of the plaintiffs in error as the law would warrant; for the change of circumstances of the defendant made no difference in his obligations to perform the stipulations of the marriage articles. The  court might well have refused to give the instruction without any explanation, for it was asking them to decide, as matter of law, what was clearly matter of fact. The argument at the bar has indeed insisted that the court misunderstood the object and request of the counsel; but there is no evidence of that on the record, and certainly it is not to be presumed. \nThe next objection is to the charge of the court respecting the delivery of the notes to Captain Robert Stockton, in September 1829. The court were requested to charge the jury, that the delivery of these notes to Captain Stockton was a fraud. The court directed the jury that \"if it was done in order to comply, in part, with the agreement, it was not so. If it was colourable, made with the intention of covering and concealing  so much, under pretence of the marriage articles, for Thompson's use, and so received by the trustee, it was legally fraudulent as to creditors; but if delivered with such intention, and not so accepted, then Captain Stockton might not only fairly apply it to the trust fund, but was bound so to do. Though it may have been done on the eve of the judgment confessed in New Jersey, that would  make no difference; it being to carry into effect the agreement of December 1825.\" \nWe cannot perceive any error in this part of the charge. The wife became a purchaser and creditor of her husband, in virtue of the marriage articles; and if the delivery of the notes was made in part performance of these articles, bona fide, and without fraud, it was a discharge of a moral as well as of a legal duty. Among creditors equally meritorious, a debtor may conscientiously prefer one to another; and it can made no difference that the preferred creditor is his wife. \nThe remaining objection is, that the marriage articles are inoperative and void, not having been recorded within the time prescribed by the laws of New Jersey for the registration of conveyances. To this objection several answers may be given, each of which is equally conclusive against the plaintiffs in error. In the first place, marriage articles or settlements, as such, are not required by the laws of New Jersey to be recorded at all, but only conveyances of real estate; and as to conveyances of real estate, the omission to record them, avoids them only as to purchasers and creditors, leaving them in full force between the  parties. This is the express provision of the statute of New Jersey of 1820 1 : so that, notwithstanding the nonregistration, the articles were good between the parties. In the next place, as to the personal estate, covenanted on the part of the defendant to be settled on his wife, whether furniture or money, it is clear that the non-registration of the articles could produce no effect whatever. If the conveyance was free of fraud, it was as to the personal estate completely valid, even against creditors. In the next place, as to the real estate covered by the articles, whether these articles are treated as an actual conveyance, or as an executory contract, it is clear, that  except as to the creditors of the grantor, Mr Stockton, they were completely valid, and operative. Viewed as a conveyance, or as a contract for a conveyance, the husband could not, consistently with the avowed trusts, take any legal estate or executed use in the real estate. The grantor necessarily remained the legal owner, in order to effectuate the trusts of the settlement; and the husband could entitle himself to the benefit of the trusts provided in his favour, only in the events and upon the  contingencies which are therein stated. He had no equitable interest therein capable of a present appropriation by his creditors. In every view of the circumstances, it is therefore clear, that the non-registration of the articles does not touch the plaintiffs'  rights; and the court were correct in their instruction to the jury, \"that the marriage contract is not void for want of being recorded in time.\" \nUpon the whole, it is the unanimous opinion of the court that the judgment of the circuit court ought to be affirmed, with costs. \nJudgment accordingly. \n \n\n ", " \nOpinion \n\n \n \n  Mr Justice STORY delivered the opinion of the Court. \nThis is a libel of seizure instituted in the district court for the southern district of New York, which comes before this court upon an appeal from a decree of the circuit court of that district, condemning the property, viz. eighty-five hogsheads of sugar,  as forfeited to the United States. \nThe charge in the libel is, that the sugars were entered in the office of the collector of the customs for the district of New York for the benefit of drawback or bounty upon the exportation thereof, by a false denomination, with an intent to defraud the revenue. The claimant in his claim admits that he made the entry for the benefit of the drawback on the exportation; but he denies that the entry was made by a false denomination; and he asserts, that the sugars are truly refined sugars, as they are denominated in the entry. \nThe eighty-fourth section of the duty collection act of 1799, ch. 128, upon which the libel is founded, provides, that if any goods, wares, or merchandize, of which entry shall have been made in the office of a collector for the benefit of drawback or bounty upon exportation, shall be entered by a false denomination, or erroneously as to the time when, and the vessel in which they were imported, or shall be found to disagree with the packages, quantities, or qualities, as they were at the time of the original importation, &c. &c., all such goods, wares, and merchandises, &c., shall be forfeited; provided, that the said forfeiture  shall not be incurred, if it shall be made appear to the satisfaction of the collector, &c., or of the court, in which a prosecution for the forfeiture shall be had, that such false denomination, error, or disagreement, happened by mistake or accident, and not from any intention to defraud the revenue. \n The language of this section is certainly sufficient to include the case at bar, if all the material facts are established. The sugars were entered for the benefit of drawback, or bounty, in the office of the collector; and if the entry  was by a false denomination, the forfeiture is incurred; unless the claimant can avail himself of the proviso, or some other matter in defence. \nIt has, however, been contended at the bar, that in the case of refined sugars exported for the benefit of drawback and bounty, no entry is required by law to be made at the office of the collector; but that a system of regulations has been specially provided for such exportations, which supersedes or controls those of the eighty-fourth section. And in support of this argument it has been urged, that the eighty-fourth section applies only to articles which have been previously imported  and subjected to duties. \nIt appears to us upon full consideration, that this argument is not well founded. Sugars have been made subject to duties upon their importation from the first establishment of the government down to the present time in every tariff law; and it is notorious, that until after the acquisition of Louisiana in 1803, no sugars were grown in the United States; and, consequently, all which were used or refined within the United States must have been of foreign growth and importation. So, that if an entry under the eighty-fourth section were required only upon the exportation of dutiable articles which had been imported, all sugars, whether refined or not, might have been within the provisions of that section. This is rendered still more obvious by the terms of the act of the 5th of June 1794, ch. 51, which first gave a drawback upon refined sugars. That act laid a duty of two cents per pound upon all sugar which should be refined in the United States; and declared, that the duties thereby laid upon such sugar, should and might be drawn back upon such sugar refined within the United States after the 30th of September then next, which after that day should be exported  from the United States to any foreign port or power; \"and adding to the drawback upon sugar so exported three cents per pound on account of duties paid upon the importation of raw sugar.\" This act was continued in force until March 1801; and then was permitted to  expire. It contains, however, substantially the same provisions in regard to the proceedings to be had by the exporter upon the exportation of refined sugar, as are contained in the subsequent acts, by which the system of drawbacks upon refined sugar was revived; and especially the act of 24th of July 1813, ch. 21, which still remains in full force. 1 So that it is clear, that the regulations prescribed on the subject of the drawback upon refined sugars by the act of 1794 were not supposed by the legislature to interfere in any manner with the provisions of the eighty-fourth section of the act of 1799; but were deemed auxiliary to the same general object, the prevention of frauds upon the revenue. They are quite compatible with each other, and aim at the same result. The terms, however, of the eighty-fourth section are not confined to cases of drawback upon imported goods (though from what has been already stated  all sugars at that period must have fallen under that predicament); but they apply to any goods, wares and merchandize, of which entry shall be made for the benefit of drawback or bounty. Other provisions of the act of 1799, ch. 128, demonstrate this intent in the fullest manner. The bounty given by the eighty-third section of the same act, on pickled fish and salted provisions, would be strongly in point. But the seventy-sixth section of the same act speaks directly to the purpose; and after prescribing the notice to be given by the exporter to entitle himself to the benefit of the drawback, it provides that he shall make entry of the particulars thereof at the custom house, &c.; and if imported articles, the name of the vessel, &c. and the place from which they were imported. So that the form of the entry contemplated cases of non-imported, as well as of imported articles. The act of 20th of February 1819, ch. 447, manifestly contemplates the same system of entries in such cases as then fully in existence; for it provides, that \"in addition to the forfeitures and penalties heretofore provided by law for making a false entry with the collector of any district of any goods, &c.  for the benefit of drawback or bounty on exportation,  the person making such false entry shall, except in the cases heretofore excepted by law, forfeit and pay to the United States a sum equal to the value of the articles mentioned or described in such entry.\" It is impossible to give any rational interpretation to this enactment, unless by referring it back to the eighty-fourth section of the act of 1799, as one then operative in its fullest extent on all subjects of drawback. And the circumstances of this case abundantly establish, that such has been the practical construction of these acts by the government, as well as of the custom house department. We think, then, that this objection cannot be sustained. \nThe next question is, whether the sugars were in this case entered by a false denomination. They were entered by the name of \"refined sugars.\" They were, in fact, sugars known by the appellation of bastar, or bastard sugards, which are a species of sugars of a very inferior quality, of less value than the raw  material; they are the residuum or refuse of clayed sugars, left in the process of refining, after taking away the loaf and lump sugar, which results from that process. The question is, whether this species of sugar is, in the sense of the acts of congress, \"refined sugar.\" These acts allow a drawback \"on sugar refined within the United States.\" \nIt has been contended in argument, that all sugars which have undergone the full process of refining, after they have arrived at the point of granulation, are properly to be deemed refined sugars, whether they have been clayed or not. In a certain sense, they may certainly be then deemed to be refined; that is, in the sense of being then clarified and freed from their feculence. But the question is, whether this is the sense in which the words are used in the acts of congress. \nThe acts of congress on this subject, are regulations of commerce and revenue; and there is no attempt in any of them to define the distinguishing qualities of any of the commodities which are mentioned therein. Congress must be presumed to use the words in their  known and habitual commercial sense;  not indeed in that of foreign countries,  if it should differ from our own, but in that known in our own trade, foreign and domestic. If in a loose signification among refiners, sugars should sometimes be spoken of as being refined, without having undergone the further process of claying; or if the whole mass resulting from that process should sometimes indiscriminately acquire among them that appellation in a like loose signification; still, if among buyers and sellers generally in the course of trade and business, the appellation \"refined sugars,\" is exclusively limited to the products called lump and loaf sugar, and never includes bastard sugar, the acts of congress ought to be construed in this restrictive sense, as that peculiarly belonging to commerce. This was the doctrine of this court asserted in the case of Two Hundred Chests of Tea, Smith, claimant, 9 Wheaton's Reports, 438, 439; and there is not the slightest inclination on the part of this court to retract it. Now, without minutely sifting the evidence in this case, we think that there is a decisive and unequivocal preponderance of evidence to establish, that bastard sugar is not deemed, in a commercial sense, \"refined sugar.\" The appellation is exclusively limited  to such as have assumed at some time the form of white refined loaf or lump sugars. This is established, not merely by the testimony of merchants and grocers, and persons in the custom house, but by the testimony of sugar refiners. A sale of refined sugars would be deemed by them not complied with by a delivery of bastard sugars. If this be so, it puts an end to the question, whether the sugars in controversy were entered by a false denomination. \nIf they were entered by a false denomination, then they are subject to forfeiture, unless the party can bring himself within the exceptions of the proviso of the eighty-fourth section. And here the onus probandi rests on him to extract the case from the penal consequences of an infraction of the law. Were these sugars entered by a false denomination, happening by mistake or accident, and not from any intention to defraud the revenue? There was no accident in the case; there was no mistake in point of fact; for the party knew what the article was when he entered it. The only mistake, if there has been  any, is a mistake of law. The party in the present case has acted, indeed, with his eyes open; against the known construction  given to the acts by the government and the officers of the customs. He has not been misled; and his conduct in the course of making the shipment, if it be entirely compatible with good faith, is not wholly free from the suspicion of an intention to overreach, and evade the vigilance of the custom house department. He has made every effort in his power to obtain the drawback, by passing off, as refined sugars, what he well knew were not admitted to be such by the higher government officers. \nBut we do not wish to put this case upon any ground of this sort. It presents the broader question, whether a mistake of law will excuse a forfeiture in cases of this description. We think it will not. The whole course of the jurisprudence, criminal as well as civil, of the common law, points to a different conclusion. It is a common maxim, familiar to all minds, that ignorance of the law will not excuse any person, either civilly or criminally; and it results from the extreme difficulty of ascertaining what is, bona fide, the interpretation of the party; and the extreme danger of allowing such excuses to be set up for illegal acts to the detriment of the public. There is scarcely any law  which does not admit of some ingenious doubt; and there would be perpetual temptations to violations of the laws, if men were not put upon extreme vigilance to avoid them. There is not the least reason to suppose that the legislature, in this enactment, had any intention to supersede the common principle. The safety of the revenue, so vital to the government, is essentially dependent upon upholding it. For mistakes of fact, the legislature might properly indulge a benignant policy, as they certainly ought, to accidents. The very association of mistake and accident, in this connexion, furnishes a strong ground to presume that the legislature had the same classes of cases in view; accident, which no prudence could foresee or guard against, and mistakes of fact, consistent with entire innocence of intention. They may both be said, in a correct sense, to happen. Mistakes in the construction of the law, seem as little intended to be excepted  by the proviso, as accidents in the construction of the law. Without going more at large into the circumstances of the case, it is the opinion of the court that the judgment of the circuit court ought to be affirmed, with costs. \nThis  cause came on to be heard on the transcript of the record from the circuit court of the United States for the southern district of New York, and was argued by counsel: on consideration whereof, it is ordered, adjudged and decreed by this court, that the decree of the said circuit court in this cause be, and the same is hereby affirmed, with costs. \n \n\n ", " \nOpinion \n\n \n \n  Mr Justice STORY delivered the opinion of the Court. \nThis cause comes before us upon a writ of error to the circuit court for the district of Columbia, sitting in Alexandria. \nThe original suit is an action of covenant brought by Scott, as assignee, to recover the amount of certain rents alleged to be due and in arrear from the defendant, since the death of his intestate, under an indenture stated in the pleadings. The defendant pleaded in the first place, that he had not broken the covenants in the deed; after which plea, issue was joined. Afterwards,  a general demurrer was put in to the declaration; which being joined by the plaintiff, was, upon the hearing, overruled by the court. Afterwards the plea of plene administravit was put in, which was withdrawn; and the cause was finally tried upon another plea; which, after oyer of the indenture, stated, that \"before the days in the declaration specified for the payment of the rent to the plaintiff under the said deed, that is to say, on, &c. the plaintiff, under and by virtue of the condition of re-entry in the deed contained, did enter into the premises thereby demised, for non payment of certain rent then in arrear and unpaid, and held and occupied the same as vested in him by the said entry as his absolute estate;\" upon which plea issue being joined, the jury found a verdict for the defendant.  A bill of exceptions was taken at the trial, which will presently come under consideration, as matter assigned for error. \nThe indenture referred to was made on the 8th of August 1799, between General George Washington and Martha his wife, of the one part, and Ezra Lunt, the defendant's intestate, of the other part. It purports, on the part of General Washington, to grant to  Lunt, his heirs and assigns for ever, a parcel of land in Alexandria; he, Lunt, his heirs and assigns yielding and paying for the same, on the 8th day of August yearly, unto General Washington, his heirs and assigns, the sum of seventy-three dollars. And Lunt, and his heirs and assigns, covenant with General Washington, his heirs and assigns, that he, his heirs and assigns will yearly and every year for ever, well and truly pay the aforesaid sum of seventy-three dollars to General Washington, his heirs and assigns on the day, and at the time appointed for payment; and that it shall be lawful for General Washington, his heirs and assigns, at all times after the rent shall become due, to enter upon the premises, and distress and sale make of the goods and chattels found thereon, to satisfy the rent in arrear. And Lunt, his heirs and assigns, further covenant with General Washington, his heirs and assigns, that if the yearly rent or any part thereof, be behind or unpaid for the space of thirty days after the same becomes due and payable, and sufficient goods and chattles of Lunt, his heirs and assigns, shall not be found upon the premises to pay and satisfy the same, it shall be lawful  for General Washington, his heirs and assigns, to re-enter and hold the same again, as if the indenture had never been made. And then follows a covenant of general warranty on the part of General Washington, his heirs and assigns. \n The executors of General Washington, by virtue of powers given by his will, on the 25th day of August 1804, by indenture, after reciting the substance of the indenture, assigned and granted unto Henry S. Turner, his heirs and assigns, the said rent by the following descriptive terms: \"the aforesaid annual rent of seventy-three dollars issuing out of and charged on the aforesaid piece or parcel of ground, herein before described.\" There are no words in this indenture assigning over the rights, powers, and remedies, given by the former indenture, by distress and re-entry, or the residuary interest in the premises  resulting from such re-entry. Turner, by another indenture on the 25th of February 1808, assigned and granted the same rent unto the plaintiff (Scott), his heirs and assigns, with the powers of distress and re-entry, and all the covenants and stipulations in the original indenture. But it is manifest, that he could not convey  them, unless he had already taken them under the assignment made to him by the executors. The declaration too is founded solely upon the assignment and transfer of the rent, and contains no allegation of any assignment of the collateral rights and remedies and interests in the estate. \nUnder these circumstances, it is contended, that whatever might be the fate of the bill of exceptions, if the action were otherwise unobjectionable, the plaintiff, upon his own showing, has no title to recover: first, because the rent is a mere chose in action, which cannot be transferred by itself to the assignee, so as to entitle him to sue therefor in his own name: and secondly, because no suit is maintainable against the defendant as administrator, for the rent i narrear, since Lunt's decease, as there is neither privity of estate, nor of contract, between him and the plaintiff. It is added, that Lunt, in fact, in his life-time, assigned over his estate in the premises, and that his administrator is not responsible for any rent subsequently accruing and in arrear. But this fact no where appears upon the pleadings; and if it did, it would not help the defendant: for it is firmly established, that  upon a covenant of this sort, the personal representatives of the covenantor are liable for the non-payment of the rent after assignment, although there may also be a good remedy against the assignee 1 . The laws of Virginia have not, in this respect, narrowed down the responsibility existing by the common law in England, at the emigration of our ancestors. \nWhether the plaintiff as assignee of the rent, not being assignee also of the estate, in the premises, or of the right of re-entry, can maintain the present suit, is quite a different question. If he had been the assignee of the estate, or of the right  of re-entry, as well as of the rent, he would clearly be entitled to maintain it; for the laws of Virginia are in this respect co-extensive with those of England. The common law of England, and all the statutes of parliament made in aid of the common law prior to the fourth year of the reign of king James the first, which are of a general nature, and not local to the kingdom, were expressly adopted by the Virginia  statute of 1776 2 ; and the subsequent revisions of its code have confirmed the general doctrine on this particular subject. The very point was decided in Havergill v. Hare, Cro. Jac. 510. There A. being seised of an estate in fee, by indenture granted to B. his heirs and assigns, a fee farm rent with a clause of distress; and covenanted to levy a fine to uses, for securing the payment of the rent; so that, if the rent should be in arrear, B. his heirs and assigns might enter into the land, and enjoy the rents thereof, until the rent in arrear should be paid to them; and B. assigned, by a bargain and sale to C. the rent, \"with all the penalties, forfeitures, profits and advantages, comprised in the indenture.\" The fine was levied, the rent was in arrear, and C. entered, and brought ejectione firmae; and a special verdict having been found, stating the above facts, one question was, whether this contingent and future use to arise upon non-payment of the rent, was transferable over to C., by the bargain and sale. It was strongly urged by the defendant's counsel, that it is a matter in privity and possibility only, which is not transferable before it falls in esse. But all the justices  resolved, that it being a matter of inheritance, and being for the security for the payment of the rent, and waiting upon the rents, might well be transferred with the rent; and by the grant of the rent, the penalty and advantage well passed. But if it had been a mere possibility, not coupled with any other estate, then it had not passed. This case is full to the purpose that such a right of security is capable of being transferred, with the rent, by apt words; and even so transferred, gives the assignee a legal title both to the rent and the attendant remedies. It leaves, however, the point untouched, whether the mere transfer of the rent, without any transfer of the right of entry (as in the present case), would give the assignee  a right to maintain an action for the rent, seeing it is not knit by any priority of right or estate to the premises. Upon full consideration, however, we are of opinion that the assignee of a fee farm rent, being an estate of inheritance, is upon the principles of the common law entitled to sue therefor in his own name. It is an exception from the general rule, that choses in action cannot be transferred; and stands upon the ground of being,  not a mere personal debt, but a perdurable inheritance. Thus, if an annuity is granted to one in fee, although it be a mere personal charge, yet a writ of annuity lies therefor by the common law; not only in favour of the party and his heirs, but of their grantee. So the doctrine is expressly laid down by Lord Coke, Co. Litt. 144, b., and he is fully borne out by authority 3 : and in like manner for a rent granted in fee and charged on land, a writ of annuity also lies in favour of the assignee, at his election 4 . \n And since the statute of 32 Henry 8, ch. 34, covenants of this sort running with the estate or inheritance, are transferable to the assignee with a full right to the benefit thereof. So that there is no difficulty upon principles of the common law, in giving effect to the present action. Whether the present plaintiff has any right to re-entry is a very different  question, upon which in the present posture of this case it is unnecessary to give any opinion. It is clear, by the common law, that a right of re-entry always supposes an estate in the party; and cannot be reserved to a mere stranger. So the law was laid down by the twelve judges, in Smith v. Packard, 3 Atk. 135, 140; and Lord Chief Justice Willis, on that occasion, in delivering their opinion, said, \"therefore I have always thought, that if an estate is granted to a man reserving rent, and in default of payment a right of entry was granted to a stranger, it was void.\" What effect the statute of 32 Henry 8, ch. 34, or the provisions of the revised code of Virginia, may have upon this point is a question not now before us. \nWe proceed, then, to the consideration of the bill of exceptions.  Two instructions were prayed by the plaintiff, and one by the defendant. The latter was given by the court, and with reference to the state of the pleadings, we see no objections thereto: the difficulty is in the refusal of the second instruction prayed by the plaintiff. It is as follows: \"the plaintiff prayed the court to instruct the jury that the time at which the re-entry ought  to be made, depended upon the lease given in evidence by the plaintiff as aforesaid, and could not be varied by the evidence given as aforesaid by the defendant; and that if they found that a re-entry had been made, that it ought to be such as would conform to the deed; and that a mere occupation of the premises by a landlord or his agent, or the receipt of rents of the premises, did not of themselves amount to a re-entry.\" The court refused to give the instruction, being of opinion that it was competent for the said Schofield, the actual tenant, to waive any of the formalities required by law for his benefit. \nNow, however, correct may be the opinion of the court of this right of waiver upon general principles, still the question is, whether with reference to the actual terms of the pleadings and issue before the jury, the instruction prayed for was not such as ought, upon principles of law, to have been given. It is wholly immaterial, whether the pleadings might not have been so framed upon the facts as to have presented a complete defence to the action. The instruction prayed has reference to the pleadings in the case. The averment there is, that the plaintiff entered on the  premises under and by virtue of the condition of re-entry in the original deed, mentioned, for non-payment of the rent; and upon the issue joined, this was the material inquiry. It is clear, that, upon such an issue, no entry not conforming to that deed, and no evidence of an entry varying from it, would be admissible to support it. The sufficiency of the evidence before the jury to support the issue was properly left for their consideration. But the defendant had a right to the instruction, that the proof must conform to the allegations in the pleadings. For these reasons we are of opinion that the circuit court erred in refusing the above instruction; and the judgment must on this account be reversed and a venire facias de novo be awarded. \n \n\n ", " \nOpinion \n\n \n \n  Mr Justice STORY delivered the opinion of the Court. \nThis cause was formerly before the court upon a writ of error  to the circuit court of the district of Columbia, sitting for the county of Washington. The judgment then rendered was reversed (Magruder v. Union Bank of Georgetown, 3 Peters's Rep. 87); and a venire facias de novo awarded; upon which a new trial having been had, the cause is again before us upon a bill of exceptions taken by the plaintiffs at the last trial. \nThe action is brought by the plaintiffs, as endorsers, to recover the contents of a promissory note made on the 8th of November 1817, by George Magruder, deceased, whereby he promised, seven years after date, to pay to George B. Magruder, the defendant, six hundred and forty-three dollars and twenty-one cents, with interest, for value received, and which was indorsed before it became due by the defendant to the plaintiffs. \n There are several counts in the declaration. The first is founded on the liability of the defendant as indorser, and avers that the maker of the note died before the note became due, and the defendant took administration on his estate; and after the note became due, to wit, on the 11th day of November 1824, due demand of payment was made of the defendant as administrator, who refused to pay  the same, and, having due notice, became liable to pay the same. The second count alleges, that when the note became due, the same not having been demanded of the maker, nor protested for non-payment, and notice not having been given to the defendant (the defendant being before, and when the same became due, the administrator of the maker), and the defendant, well knowing that the same had not been paid, afterwards, on the 15th of November 1824, in consideration thereof, and in further consideration that the plaintiffs would not bring suit on the note against him as indorser, but would give time to him for the payment thereof (not saying for what time, or for a reasonable time), the defendant promised that he would ultimately, and in a reasonable time pay the same to the plaintiffs. Then follow the common money counts. \nThe bill of exceptions is in the following words. \n\"In the trial of this cause the plaintiffs, to support the issues on their part, offered a competent witness, Alexander Ray, who proved, that two or three days after the note fell due, he had a conversation with defendant, asked him if he could arrange the note; that if he did not, probably the officers of the bank  would be blamed; he said no officer should lose any thing by him, and that there was some property on Cherry street, which witness understood that George Magruder in his lifetime owned: that he would repair it, and that it would become valuable. Mr Thompson had had a previous conversation with him; the defendant had not been informed by me that the note was over due, and not demanded. Also James Thompson, who proved that as soon as it was discovered that the note was over, he and the cashier conversed about it; and about three or four days after it was over due, he determined to call on defendant, and request him to arrange it, and state  the circumstances attending the note; that he then called on defendant, and found him from home; left word he wanted him, and a day or two after defendant called at bank; he went aside with him, told him the circumstances attending the neglect in relation to the note, and requested him to take time and determine what he would do as to arranging the note; telling him that he did not wish defendant to say a word to him to commit himself, but to consider whether, if he did not arrange it, the bank might not do him a greater injury than the  amount of the note: that some time after this conversation, he had another with defendant; that the defendant asked him, if the debt was lost, whose loss would it be; would it fall on any of the officers of the bank? Witness replied that he did not know how that would be, that he could not answer that question; that the bank would, perhaps, look to the officers; and the defendant then said, no officer of the Union Bank should lose any thing by him: that he afterwards had another conversation with defendant in Mr Wharton's store; that defendant said \"he meant to pay the note, but would take his own time for it; that he would not put himself in the power of the bank.\" He thinks this last conversation was about three or four months after the note fell due. That just before the suit was brought, the witness was desired by the president of the bank, to call on the defendant, and know what he meant to do with the note; that he did so, and that defendant then said, \"I will pay that note now, if the bank will take the house on Cherry street for what it cost me.\" Witness reported the answer to the president, who said the bank did not want the house, and shortly afterwards suit was brought.  Plaintiffs further proved that the defendant, when the note fell due, and before, was administrator of the drawer of the note, George Magruder: who had died before the note fell due, and who, it is also admitted, was insolvent. \n\"Whereupon, the plaintiffs, on the aforegoing evidence, prayed the court to instruct the jury as follows: \n\"That if the jury believe the defendant held the above conversations as stated by the witnesses, such conversations amount to a waiver of the objection of the want of demand and notice; and the defendant is liable on the note, if the jury should  believe that the defendant made the acknowledgements and declarations stated in the conversations in reference to the claim of the bank upon him as indorser of the note; which the court refused. \n\"And the plaintiffs then prayed the court to instruct the jury as follows: \n\"That if the jury believe, from the evidence  aforesaid, that the defendant, after knowing of his discharge from liability as indorser of the said note, by the neglect to demand and give notice, said, \"that he meant to pay the note, but should take his own time for it, and would not put himself in the power of the bank,\"  and that the bank forbore bringing suit, from the time of said conversation, about three or four months after the note fell due, until the date of the writ issued in this cause, then the plaintiffs are entitled to recover on the second count of the declaration, which also the court refused to give; to which refusal to give the said instructions, the plaintiffs excepted.\" \nThe question s, whether these instructions thus propounded were rightly refused by the court. And we are of opinion that they were. The first requests the court to instruct the jury upon a mere matter of fact, deducible from the evidence; and which it was the proper province of the jury to decide. It asks the court to declare that the conversations stated (sufficiently loose and indeterminate in themselves), amounted to a waiver of the objection of the want of demand and notice. Whether these did amount to such a waiver, was not matter of law, but of fact; and the sufficiency of the proof for this purpose was for the consideration of the jury. \nThe second instruction is open to the same objection. It calls upon the court to decide upon the sufficiency of the proof, to establish that there was a forbearance by  the plaintiffs to sue the defendant upon the note, and of the promise of the defendant, in consideration of the forbearance, to pay the same. That was the very matter upon which the jury were to respond, as matter of fact. It is also open to the additional objection, that it asks the court to decide this point, not upon the whole evidence, but upon a single sentence of the conversations stated, without the slightest reference to the manner in which  the meaning and effect of that sentence was, or might be, controlled by the other points of the conversations, or the attendant circumstances. In either view it was properly refused. \nThe court have also been called upon to review their former decision in this case. (3 Peters's Rep. 87.) To this it might be a sufficient answer to say, that no case is made out upon the record, calling for such a review; and if it were, we are entirely satisfied with that decision. \nThe judgment of the circuit court is therefore affirmed, with costs. \nThis cause came on to be heard on the transcript of the record from the circuit court of the United States for the district of Columbia, holden in and for the county of Washington, and was argued  by counsel: on consideration whereof, it is ordered and adjudged by this court, that the judgment of the said circuit court in this cause be, and the same is hereby affirmed with costs. \n \n\n ", " \nOpinion \n\n \n \n  Mr Justice STORY delivered the opinion of the Court. \nThis is an application to the court to award a writ of habeas corpus to bring up the body of Tobias Watkins, a prisoner, asserted to be illegally confined in the common jail of Washington county in the  district of Columbia, under process of execution issued from the circuit court of the United States for the same district. A rule was served upon the attorney-general, to show cause why the application should not be granted; and the cause has been fully argued upon the return of that  rule. It is admitted that all the facts existing in the case have been laid before the court, exactly as they would appear if the habeas corpus had been duly awarded and returned; so that the judgment which the court are called upon to pronounce, is precisely that which ought to be pronounced upon a full hearing  upon the return to the writ of habeas corpus, and it has accordingly been so argued at the bar. \nThe material facts are as follows. Watkins was tried at the May term of the circuit court 1829, upon three several indictments found against him at that term for certain offences against the United States; and being found guilty, was upon each indictment sentenced to imprisonment for three calendar months, and to pay certain fines, to wit, on one indictment two thousand dollars, on another, seven hundred and fifty dollars, and on a third three hundred dollars, with costs of  prosecution. There is no award in either of the judgments, that the prisoner stand committed until the sentence be performed. Under these sentences Watkins was immediately committed to jail by the then marshal of the district; and upon the expiration of his office, which was after the term of imprisonment was exhausted, and the appointment of a successor, he was delivered over in jail with other prisoners to his successor; and he has ever since been detained in custody. The terms of imprisonment awarded by the judgments expired on the 14th of May 1830. \nOn the 3d day of September 1829, the district attorney sued forth three several writs of fieri facias, to levy the aforesaid fines; upon which due return was made by the marshal of nulla bona. Upon the 16th of February 1830, the district attorney sued forth three several writs of capias ad satisfaciendum against Watkins to levy the same fines, which were all returnable to the then next May term of the circuit court. By these precepts the marshal is commanded to take Watkins, and him safely keep, so that he have his body before the circuit court on the first Monday of May then next, to satisfy unto the United States the fine, costs  and charges. No return was made to the circuit court by the marshal according to the exigency of these writs; and nothing further appears upon the records and proceedings of the court until the 10th day of January 1833, when the late marshal of the district made a return  to each capias ad satisfaciendum as follows. \"Cepi. Delivered over to my successor in office.\" \nUpon this state of the facts several questions have arisen and been argued at the bar; and one, which is preliminary its nature, at the suggestion of the court. This is, whether, under the circumstances of the case, the court possess jurisdiction to award the writ. And upon full consideration we are of opinion that the court do possess jurisdiction. The question turns upon this, whether it is an exercise of original or appellate jurisdiction. If it be the former, then, as the present is not one of the cases in which the constitution allows this court to exercise original jurisdiction, the writ must be denied. Marbury v. Madison, 1 Cranch's Rep. 137, S.C. 1 Peters's Cond. Rep. 267. If the latter, then it may be awarded, since the judiciary act of 1789, ch. 20, sect. 14, has clearly authorized the court  to issue it. This was decided in the case Ex parte Hamilton, 3 Dall. 17; Ex parte Bollman and Swartwout, 4 Cranch, 75; and Ex parte Kearney, 7 Wheat. Rep. 38. The doubt was whether, in the actual case before the court, the jurisdiction sought to be exercised was not original, since it brought into question, not the validity of the original process of capias ad satisfaciendum, but the present right of detainer of the prisoner under it. Upon further reflection, however, the doubt has been removed. \nThe award of the capias ad satisfaciendum must be considered as the act of the circuit court, it being judicial process, issuing under the authority of the court. The party is in custody under that process. He is then in custody, in contemplation of law, under the award of process by the court. Whether he is rightfully so, is the very question now to be decided. If the court should, upon the hearing, decide that the capias ad satisfaciendum justifies the present detainer, and should remand the prisoner, it would clearly be an exercise of appellate jurisdiction; for it would be a revision and confirmation of the act of the court below. But the jurisdiction of the court can never depend  upon its decision upon the merits of a case brought before it; but upon its right to hear and decide it at all. In Marbury v. Madison, 1 Cranch, 137, it was said, that it is the essential criterion of appellate jurisdiction that it  revises and corrects the proceedings in a cause already instituted; and does not create that cause. \nTried by this criterion, the case before us comes in an appellate form, for it seeks to revise the acts of the circuit court. In Ex parte Bollman and Swartwout, 4 Cranch, 75, the prisoners were in custody under an order of commitment of the circuit court; and it was held, that an award of a writ of habeas corpus by the supreme court was an exercise of appellate jurisdiction. On that occasion the court said, so far as the case of Marbury v. Madison had distinguished between original and appellate jurisdiction, that which the court is asked to exercise is clearly appellate. It is the decision of an inferior court, by which a citizen has been committed to jail. Ex parte Hamilton, 3 Dall. 17, was a commitment under a warrant by a district judge; and the supreme court awarded a writ of habeas corpus to revise the decision, and admitted the party  to bail. In Ex parte Burford, 3 Cranch, 448, the prisoner was in custody under a commitment by the circuit court for want of giving a recognizance for his good behaviour, as awarded by the court. The supreme court relieved him on a writ of habeas corpus. In all these cases the issuing of the writ was treated as an exercise of appellate jurisdiction; and it could make no difference in the right of the court to entertain jurisdiction, whether the proceedings of the court below were annulled or confirmed. Considering then, as we do, that we are but revising the effect of the process awarded by the circuit court, under which the prisoner is detained, we cannot say that it is the exercise of an original jurisdiction. \nThe grounds principally relied on to entitle the prisoner to be discharged are: First, that the fines imposed upon him are excessive, and contrary to the eighth amendment of the constitution; which declares, that excessive fines shall not be enforced. Secondly, that the prisoner could not be detained in jail on the capias ad satisfaciendum longer than the return day of the process; and he should then have been  brought into the circuit court, and committed  by order of the court to the custody of the marshal for payment of the fine: otherwise by the laws of Maryland (which is the law of this part of the district), he was entitled to his discharge. \nThe first point may be very shortly disposed of. The  eighth amendment is addressed to courts of the United States exercising criminal jurisdiction, and is doubtless mandatory to them and a limitation upon their discretion. But this court has no appellate jurisdiction to revise the sentences of inferior courts in criminal cases; and cannot, even if the excess of the fine were apparent on the record, reverse the sentence. And it may be added that if this court possessed such a jurisdiction, there is nothing on the record in this case, which establishes that at the time of passing judgment the present fines were in fact, or were shown to the circuit court to be excessive. This objection may therefore be dismissed. \nThe other ground is of far more importance and difficulty. At the common law, whenever a fine and imprisonment constitute a part of the judgment upon a conviction in a criminal case, the judgment, if the party is in court, is that he be committed to jail in execution  of the sentence, and until the fine is paid. If he is not then in court, a special writ of capias pro fine issues against him; the exigency of which is, that his body be taken and committed to jail until the fine is paid 1 . Unless such a committitur be awarded, he cannot be detained in jail in execution of the sentence. It is the warrant of the jailor, authorizing the detention of the prisoner. No capias ad satisfaciendum in the form appropriate to civil cases; where the exigency of the writ is to take the body of the party and him safely keep, so that the sheriff have his body before the court at the return day of the process with the writ; is ever issued or issuable. If, therefore, the present case were to be tried by the common law, the process of capias ad satisfaciendum, under which the prisoner is detained, would be wholly insufficient to justify his detention. \nLet us see, then, how the case stands upon the laws of Maryland, by which, indeed, it is to be governed. The act of Maryland of the 20th of April 1777, ch. 6, which seems specially applicable  to the recovery of pecuniary fines and forfeitures fixed by statute, declares, that if such fines and forfeitures shall be recovered by indictment, the court may either commit the offender to the public jail till payment to the sheriff, or  order execution to levy the same on the offender's lands, goods or chattels. This act is not supposed to have any application to the present case. The act of 20th of April 1777, ch. 13, for the more speedy and effectual recovery of common law fines and forfeited recognizances, provides, that where any fine shall be enforced by any court of record for any common law offence on any person, it shall be lawful for the attorney-general or either of his deputies to order a writ of capias ad satisfaciendum, or a writ of fieri facias, to be issued for the recovery of the sum due thereon, on which writs such proceedings shall and may be had, as in cases where similar writs are issued on judgments obtained in personal suits. It may be here stated, that writs of capias ad satisfaciendum in Maryland are the same in substance in their exigency as those prescribed in the common law. In another section of the act (sect. 4), there is a proviso that  nothing therein contained shall be construed to extend to prevent the several courts, as they might heretofore lawfully do, from committing any person from the non-payment of any fine, if they shall deem it expedient so to do. This proviso completely establishes the antecedent practice in Maryland to have been like that at the common law, to commit the offender for payment of the fine, and leaves it at the discretion of the court to order it in any future case. By necessary implication it affirms, that without such order the offender is not detainable in jail for the fine. \nThen came the act of 24th of December 1795, ch. 74; which, after reciting that doubts had arisen as to the issuing of a capias ad satisfaciendum for the recovery of fines and forfeitures, provides, that it shall be lawful for the attorney-general and his deputies ex officio, and they are hereby directed and required on application of the sheriff of the county, to order writs of capias ad satisfaciendum to be issued for the recovery of all fines and forfeitures. Another section of the act declares it to be the duty of the sheriffs to return the writ of capias ad satisfaciendum to the courts, to which they are  returnable at the term succeeding the issuing of the same; and wherever the sheriff shall make return, that he has taken the body of the party, he shall be obliged either to acknowledge in open court the receipt of the amount of the fine or forfeiture, or to produce  the body of the party to the court, to which the said writ shall be returned; and in default thereof, the court, upon motion of the attorney-general or his deputy, shall order judgment against the sheriff for the amount of costs. \nThere is a prior act of the 25th of December 1789, ch. 42, which after reciting that plaintiffs are often willing to grant indulgence to defendants arrested on writs of capias ad satisfaciendum, but doubts have arisen whether such indulgence can be granted without depriving the plaintiffs of the benefits of any further execution, provides that in case of an arrest of the defendants on any capias ad satisfaciendum, if the plaintiffs with the consent of the defendants shall elect not to call the execution during the term, at which it is returnable, the plaintiff may afterwards proceed against the defendant by a new execution. This statute has reference to the practice then existing  in Maryland, for the sheriff, upon the return day of the capias ad satisfaciendum, to produce the body of the defendant, if arrested, and for the plaintiff then to pray him to be committed. Although in its terms it applies to civil suits only; yet from its recognizing the course of practice in Maryland, it has a material bearing upon the present controversy; for the act of 1777 expressly declares that on writs of capias ad satisfaciendum for fines, such proceedings shall be had as in cases where similar suits of capias ad satisfaciendum are issued in personal suits. And, certainly, it is in entire conformity with the exigency of the  writ of capias ad satisfaciendum; which commands the sheriff at the return day to bring the party, if arrested, into court. Whether the practice under the capias ad satisfaciendum in England is different, so that the party may be detained in jail by the sheriff after the return day without producing his body in court, and a committitur thereon awarded by the court, it is not material to inquire; since if there be any discrepancy, the Maryland practice must govern. The cases of Christie v. Goldsborough, 1 Harr. and M'H. 543, and West v. Hyland,  3 Harr. and John. Rep. 200; go strongly to affirm the practice: and the latter certainly leads to the conclusion, that if a party is arrested and brought into court on the return day, and is not then prayed in commitment, he is no longer to be detained in custody: at least that  case decides that a new capias ad satisfaciendum may issue against him, which presupposes, that he is not then deemed in custody upon the old one 2 . \nBut the terms of the act of 1795, ch. 74 (as has been already seen), expressly require the writ of capias ad satisfaciendum for a fine to be returned into court on the return day; and the fine either acknowledged to be paid, or the body of the party produced; otherwise judgment may be entered up against the sheriff for the amount. It is clearly then his duty to produce the body. It is the very exigency of the writ; and when produced, the sheriff has performed the whole duty required by the precept. If the attorney-general wishes him to be committed, he is entitled to pray a commitment to be made by  the court. If he does not pray it, it is difficult to perceive upon what ground it can be maintained, that the party is any longer to be detained in the custody of the sheriff. The latter has no power to arrest the party, or to detain him except according to the exigency of the writ; and he has discharged himself of his whole duty, when he has produced the body in court. His precept, in its terms, authorizes no detainer beyond the return day. Upon what ground, then, can the court infer it? \nIf resort be had to the practice, as certified to us by the clerks of the Maryland courts, it is in perfect coincidence with the natural construction of the terms of the act. They assert the uniform practice upon writs of capias ad satisfaciendum in criminal cases to be, to bring the party into court, and then to award a committitur. No instance is shown in which a party has ever been held in custody after the return term, upon such a capias ad satisfaciendum, without a committitur. Such a uniform course of practice, is of itself very cogent evidence of the law. The practice in this district is not shown to be different. If it has not invariably conformed to that of Maryland, it seems to  have conformed to it in almost all cases. The only two cases produced to the contrary, are where the return was \"cepi in jail;\" and the circumstances of these particular cases  are unknown. The parties may have been already in jail on execution, or under other sentences. \nAnd independent of the plain import of the writ of capias ad satisfaciendum, there may be sound reasons for requiring the body to be produced in court. The capias ad satisfaciendum may have issued irregularly; the party may have paid the fine; he may have received a pardon subsequently to its award; or he may have other matters to urge against a commitment. The remark of the court in Turner v. Walker, 3 Gill. and Johns. Rep. 377, 385, upon an analogous writ, is very applicable here. \"It is proper and necessary,\" say the court, \"to the security of the defendant, that it should be returned in term time, in order that he may have a day in court to protect his rights.\" Indeed, as the statute and the precept of the process both require this course, it is incumbent upon those who contend that it may be dispensed with, or is unnecessary, to show some ground of authority or principle upon which the argument  can be maintained. We have not been able to find any. \nIt has been said, that where the party convicted is already in custody when the sentence is passed, the party is to be deemed in custody until the fine is paid, without any award of a commitment in the sentence, or the issuing of any capias ad satisfaciendum. We know of no authority justifying this position, either at the common law or under the laws of Maryland. On the contrary, the act of Maryland of 1777, ch. 13, plainly allows a discretion in the court to commit or not to commit, for the fine. The omission to award a commitment, as a part of the sentence, is manifestly an exercise of such a discretion. Unless a committitur be awarded, which can only be when the party is in court 3 , there must, as has been seen, be a capias pro fine by the common law, and by the laws of Maryland a capias ad satisfaciendum, to justify his arrest and detention. \nThe capias ad satisfaciendum then, in this case, was properly awarded. It was a necessary process to recover the fine. The difficulty is, that no return was ever made to the court at the return day by the marshal, nor indeed until  long after the  marshal's office had expired. Watkins was never brought into court, nor committed by the order of the court. He is now held in jail, and has, ever since the return term, been held in jail solely upon the capias ad satisfaciendum, which became functus officio after the return day. He might have been arrested and detained in jail, if he had not been previously in custody, until the return day; but his detention afterwards, was not, in our judgment, justified by the process. In every view which we have been enabled to take of the case, we cannot find any principle or authority to justify his detention. Doubtless the detention has been in entire good faith, under a mistake of the law. But this cannot vary the results. \nWe are accordingly of opinion that the writ of habeas corpus ought to issue, as prayed for. \nOn consideration of the petition filed in this case in behalf of the petitioner, and of the arguments of counsel as well for the United States as for the petitioner thereupon had, it is the opinion of this court that the writ of habeas corpus ought to issue as prayed for. Whereupon, it is considered, ordered and adjudged by this court, that a writ  of habeas corpus be forthwith issued, directed to the marshal of the United States for the district of Columbia, commanding him to have the body of the said Tobias, with the day and cause of his caption and detention, immediately after the receipt of the writ, to do, receive and submit to all and singular those things which the court shall consider concerning him in this behalf, and to have then and there the said writ with his doings thereon. \nTo the writ of habeas corpus the marshal of the district of Columbia made the following return: \nHenry Ashton, Esq. marshal of the United States for the district of Columbia, having read in open court and filed the following writ, together with his return thereon, viz. \"United States of America, ss. The president of the United States, to the marshal of the United States for the district of Columbia, greeting: You are hereby commanded that you have the body of Tobias Watkins, detained under your custody, as it is  said, under a safe and secure conduct, together with the day and cause of his caption and detention, by whatsoever name he shall be called in the same, before the supreme court of the United States, now sitting in the capitol  of the United States in the city of Washington, being the present seat of the national government, immediately after the receipt of this writ, to do, receive and submit to all and singular those things which the said supreme court shall then and there consider concerning him in this behalf, and have then and there this writ with your doings thereon. Witness, &c. \nReturn of the marshal. \"To the honourable the judges of the supreme court of the United States. The marshal of the district of Columbia, in obedience to the writ of habeas corpus issued by the authority of your honours, now produces into your honourable court the body of Tobias Watkins, who has been in his custody ever since he came into office, delivered over to him by his predecessor, Tench Ringgold, in jail; he stating that he had been held in his custody by virtue of three writs of capias ad satisfaciendum at the suit of the United States, and by virtue of a writ of capias ad respondendum, at the suit of one William Cox, upon which said last mentioned writ he the said Watkins had been prayed into commitment by the said Cox, and had been ordered into commitment by the honourable judges of the circuit court of the United  States for the district of Columbia, sitting for Washington county, by whose authority all the said writs had been issued. That being satisfied of the correctness of the representations of his said predecessor, he continued to detain the said Watkins in custody without any complaint or allegation of any illegality or wrong in the said confinement until the rule was moved for in your honourable court, at its present term, at the instance of said Watkins, for cause to be shown by the attorney-general of the United States why a writ of habeas corpus should not be granted to bring the said Watkins before your honours, together with the cause of his detention. He further shows to your honours, that since the said rule was moved for, the writ of Cox, as aforesaid, has been dismissed; and from that time to the time of his receiving the said writ of habeas corpus, he held him in custody by virtue only of the three writs of capias ad satisfaciendum at the suit of the United States, considering it improper to discharge him  pending the deliberations of your honours upon the legality or illegality of his detention under and by virtue of those writs last mentioned.\" \nOn consideration  whereof, and after due deliberation thereupon had, it is now here considered, ordered and adjudged by this court, in this behalf, that the said prisoner, Tobias Watkins, be, and he is hereby discharged from confinement under the said several three writs of capias ad satisfaciendum at the suit of the United States, in the said return of the marshal mentioned. \nAfter the discharge of Mr Watkins, by this order of the court, on the 19th day of February 1833, he was, on the same day, arrested and confined by the marshal of the district of Columbia, under three several writs of capias ad satisfaciendum issued on the same judgments, under which he had been previously detained in prison. These writs were dated on the 19th of February 1833, and were issued by order of the district attorney of the United States for the district of Columbia; and were returnable at the next term of the circuit court of the district. \nA petition for a writ of habeas corpus, setting forth this arrest and his imprisonment under it, was presented by Mr Watkins; and a rule on the attorney-general was, on motion, granted, to show cause why the same should not issue. \nAfter argument of this rule, by Mr Coxe and Mr Brent,  for the relator; and by Mr Taney, the attorney-general of the United States, and Mr Key, the attorney of the United States for the district of Columbia; the rule was discharged: \"the court being equally divided in opinion as to the question whether this court ought to award a writ of habeas corpus, as prayed in the case by the petitioner\" 4 . \n APPENDIX No. II \nTHE defendant having been arrested upon three writs of capias ad satisfaciendum, at the suit of the United States, returnable on the first day of the present term, was brought into court on that day, upon the motion of the attorney of the United States for this district, and by him prayed in commitment. \nThe defendant, at the same time, moved the court to quash the writs, and to discharge him from custody, under the following circumstances: \nOn the 14th of  August 1829, the defendant having been convicted, on three indictments for misdemeanour, at common law, and having been in close custody for three preceding months, was sentenced by this court to three months' imprisonment from that day on each indictment, making nine months in the whole, and to pay certain fines, amounting altogether to three thousand and fifty dollars, being the exact amount of the money of the United States which the jury found he had fraudulently obtained, and for which he had not accounted. The court, however, did not order the defendant to stand committed until those fines and costs should be paid, it not being the general practice of the court to make such an order, unless at the request of the attorney for the United States; and also, knowing that it would be in the power of the United States to issue writs of execution for those fines, if they should deem it proper so to do. \nOn the 3d of September 1829, the United States sued out three writs of fieri facias upon these judgments, returnable to the then next term (December term). These writs were duly returned nulla bona; and on the 16th of February 1830, the United States sued out three writs of capias ad  satisfaciendum on the same judgments, returnable to the then next May term (viz. Monday, the 3d of May 1830). \nThe term of imprisonment under the sentence expired on the 14th of May 1830. \nThese writs of capias ad satisfaciendum were not returned by the marshal at that  term, nor was he called upon to return them; and nothing further appears, upon the records of the court, respecting them, until the 10th of January 1833, when the court being in session, as of November term 1832, they were filed in the clerk's office by the late marshal, with the following indorsement thereon: \"Cepi -- delivered over to my successor in office.\" \nOn the 14th day of January 1833 (being the first day of the term), the defendant applied to the supreme court of the United States for a writ of habeas corpus, and a rule was served on the attorney-general of the United States, to show cause why it should not be granted; and upon that rule the whole merits of the application were fully argued. The writ was issued, and the defendant was discharged from the custody of the marshal. On retiring from the supreme court, however, he was again arrested upon three new writs of capias ad satisfaciendum, issued  upon the same judgments; which writs are the same first before mentioned, and do not purport to be issued as alias writs, nor do they in any manner refer to, or notice the former writs of capias ad satisfaciendum. They are in all respects like the former writs, excepting that they include some additional costs, bear teste on 23d day of January 1833, and are returnable to the first day of the present term (viz. the fourth Monday of March. More than a year and a day had elapsed between the teste of the former writs of capias ad satisfaciendum and that of the present writs. \nUpon these writs the defendant is now held by the marshal in close custody. \nWhen the marshal, upon the return of a capias ad satisfaciendum, brings into court the body of the defendant, and the plaintiff prays him in commitment, the order to commit is made, of course, unless cause to the contrary be shown. The counsel for the defendant were, therefore, called upon to show cause. \nThe questions involved in this discussion have been fully and ably argued, and the court have attentively considered the authorities cited, and traced them to their sources, as far as the means they have had, and the intervals between  the daily sessions of the court would permit. \nThe counsel for the defendant rested their motion to quash the writs of capias ad satisfaciendum and discharge the defendant, upon three grounds: \n1st. That the defendant could not lawfully be arrested and held in custody upon these writs, after having been taken and discharged upon the former writs. \n2dly. That these writs ought not to have been issued without previous scire facias, more than a year and a day having elapsed between the issuing of them and the next preceding writs. \n3dly. That the fines were excessive, and amount to a sentence of perpetual imprisonment. \nThe first question is the most important, as it is one which affects the right of personal liberty, and is that which seems to have been mainly relied upon in the argument. \nThe general principle is, that no man shall be arrested against for the same cause. This principle has been so long and so well established, as to have become a maxim in law -- Nemo debet bis vexari pro eadem causa. \nThis rule, according to the English practice, is extended to mesne process, as well as to execution. Thus, after holding the defendant to bail, the plaintiff shall not discontinue his  action because he does not like the bail, and again hold the defendant to bail for the same cause. ( Belchier v. Gansell, 4 Bur. 2502.) Thus in the case of Imlay v. Ellefsen, 3 East, 309, it was held, that one who was discharged out of custody upon an arrest in a former action, for default of the plaintiff in not declaring against him in time, cannot be holden to special bail under a second writ for the same cause, although the form of action be changed. The language of the judges in that case, is not inapplicable to the present. Lord Ellenborough said, \"it is likely enough that if the defendant, being a foreigner, and not residing in this country, be discharged on filing common bail, the plaintiff will lose his debt; but that ought not to warp our judgment in applying  the law to the facts disclosed to us. There are many cases in the books where the plaintiff has been suffered to hold the defendant to bail a second time for the same cause of action; as, where he has erroneously commenced his action, or mistaken his remedy, and has discontinued it in due time, without oppression or laches. But here the full time elapsed which the law allows for his detaining the defendant  in custody upon the first arrest; and after his discharge he arrested him a second time, and requires the court to aid the former defect in his proceedings or proof, by continuing the defendant in custody for a further period for the same cause of action, which must be sustained by the same proof, and even something more than would have sufficed in the former action. It is harsh enough to deprive men of their liberty, as a security for debt, in the first instance; but after having continued the defendant in custody, until the plaintiff lost the benefit of it by his own default, I should require a very strong case to induce me to consent to a further imprisonment.\" \nGross, J. declared himself of the same opinion. \nLawrence, J. said, \"however ill the defendant may have behaved, we are not to punish him by confining him in prison upon a second arrest, for the same cause as before.\" \nLe Blane, J. said, \"the rule would be nugatory, that a party should not be holden to bail a second time for the same cause of action, if, after a first arrest, on which the defendant was detained in custody as long as the rules of law would admit, and from which he was discharged on account of the delay of  the plaintiff in not declaring against him in time, the defendant should be again liable to suffer, by being holden to bail again in a second action, for the same cause.\" \nSo in the case of Blackburn v. Stupart, 2 East, 243, Mr Justice Gross said, \"that it would be very dangerous to permit the law to be unsettled in this respect; which is, that a person cannot be taken in execution twice on the same judgment, whether he had so agreed or not; and therefore, although the defendant's conduct has been very scandalous, yet the rule must be made absolute to set aside the execution, although the defendant had agreed to be taken again if he did not pay in a given time.\" \nSo in Wright v. Kerswell, Barnes, 376: \"If the defendant be superseded after judgment, for want of being charged in execution within two terms after judgment obtained, his person cannot be afterwards taken in execution. \nThe same point is also decided in Line v. Low, 7 East, 330 -- in Blandford v. Foote, Cowp. 72 -- and Topping v. Ryan, 1 T.R. 227, 273. \nSo, in Da Costa v. Davis, 1 Bos. & Pal. 342, it was held that a condition of a bond to surrender the defendant in execution, after he has once been discharged, is void. \n So also in Vigers v. Aldrich, 4 Bur. 2482, it was decided, that a discharge of the defendant out of custody on a capias ad satisfaciendum by consent of the plaintiff, upon a new agreement, not fulfilled, was a satisfaction of the judgment, so that it would not support an action of debt. \nSo in Jacques v. Withy, 1 T.R. 557, it was held, that the discharge of a debtor from a capias ad satisfaciendum with the consent of the plaintiff, on a new agreement, founded on a consideration which failed by reason of informality in the security given, was so far a discharge of the judgment, that it could not be set off in a cross suit brought by that debtor against his creditor. Whether the particular decision in that case would now be considered as law, is immaterial; the principal, so far as a discharge of the person of the debtor is concerned, has never been denied, and is in accordance with this whole class of cases. \nMr Justice Ashhurst said, \"but at all events, the discharge from the execution, is certainly a discharge at law. I know of only one case where a debtor in execution who obtains his liberty, may afterwards be taken again for the same debt, and that is where he has escaped; but  the reason of that is, that he is not legally  out of custody. But where a prisoner obtains his discharge, with the consent of the party who put him in execution, he cannot be retaken.\" \nMr Justice Buller, after observing that the security was good at the time it was taken, but that it afterwards became void, said, \"that, however, arose from the neglect of the defendant himself, in not complying with the directions of the statute;\" \"and the debt, having been once extinguished, cannot be revived again. This is not a new question. The case of Vigers and Aldrich goes the whole length of this -- for it shows that if the defendant has been once discharged out of execution, upon terms which are not afterwards complied with, the plaintiff cannot resort to the judgment again, or charge the defendant's person in execution. So here, if the defendant has neglected to avail himself of the advantage of the security, it is his own fault, and he must take the consequences.\" \nThe same rule of law is also recognized in Basset v. Salter, 2 Mod. 136; Thompson v. Bristow, Barnes, 205; and Clark v. Clement and English, 6 T.R. 525, where it is also decided that a discharge of one joint defendant  from execution is a discharge of the other; and Lord Kenyon, in delivering the opinion of the court, recognizes the authority of the case of Foster v. Jackson, Hobart, 52, in which it was decided before the statute of 21 Jac. c. 24, that if the debtor died in execution, the judgment could not be revived against his executors. So in Tanner v. Hague, 7 T.R. 420, where the defendant had been discharged from execution on his undertaking to pay the debt at a future day; on non-payment of which the plaintiff sued out a fieri facias against him. Upon a rule to show cause why the writ of fieri facias and proceedings under it should not be set aside, it was contended by Erskjine for the plaintiff, that the release of the defendant was conditional, and that as the condition was not performed, the plaintiff had a right to sue out another writ of execution. \nThe counsel on the other since relied on the cases of Vigers v. Aldrich, Jacques v. Withy, and Clark v. Clement; and contended \"that there is only one case in which the plaintiff can re-take a defendant, who has been once in execution, namely the case of an escape.\" \n\"The court said that the cases cited proceeded on this ground; that it  was considered that the plaintiff received a satisfaction in law by having his debtor once in custody in execution; and on the authority of those cases they made the rule absolute.\" \nSo in Walker v. Alder, Styles, 117, Trin. 24 Car. B.R. (1671). \nWith the plaintiff's consent the defendant, who was in execution, came to the plaintiff out of the prison, thinking to make some agreement with him; but no agreement being made, the defendant was taken again upon the same execution. The defendant brought his audita querela \"and adjudged by the court to be well brought, for the execution was discharged by the prisoner's going at large; and therefore he could not be again taken upon it.\" \nSo in Price v. Goodrich, Styles, 387, Mich. 1653, Banc. Sup. \"it was said by Roll, chief justice, if there be a judgment against three, and one of them is taken in execution, and be afterwards set at large by the plaintiff's consent, if any of the other two be afterwards taken in execution upon the same judgment, he may have an audita querela.\" \nSo also in Sir William Fish's case -- Godbolt, 372 (3 Car. anno 1627). \nMr Justice Doddridge said, \"if the execution be lawful and upon lawful process, and the party  be delivered out of execution, then he shall not be taken again in execution. But if he be taken upon an erroneous process, if he be delivered out, he may be taken again in execution; for the first execution is erroneous, and is no record, being reversed.\" \nSo in the Year Book, 8 Hen. 7, 9, 10, -- (Br. Execution, pl. 92, anno 1491) -- \"error was brought in the rendition of judgment in a writ of debt, and in the proclamation  of outlawry therein; and he found mainpernors, but he did not keep his day, and the plaintiff in the debt prayed a capias for execution. \n\"Mordant. He was in execution by the mainprize, and therefore he shall have no other execution. \n\"The court. He was not in execution, for the recognizance was only to the king. Quod nota,\" says the reporter of the Year Book,\" and here it appears, once executed -- executed for ever, un foits exec'e pro imperpetuo, for he shall not have execution again.\" \nSo in the book of assizes, (Liber assisarum) (which is a report of cases at the assizes in the time of Ed. III. and therefore previous to the year 1372) fol. 22, pl. 43, Br. Execution, pl. 79. \"In trespass; note, that if a man have judgment against another for  debt or damages, and take his body in execution, the plaintiff shall not have elegit, nor fieri facias. Quod nota, for the taking of the body, at his suit or prayer, is full execution. And see elsewhere, that if he die, or escape, the plaintiff shall not have other execution.\" \nThere are several of these old cases in which it is said that if the defendant escape, the plaintiff shall not have other execution, and such was the law held to be in those days. But it is now well settled that escape is an exception to the general rule. \nSo also in 33 H. 6, 47, (anno 1455) Br. Execution, pl. 8. \"In debt it was conceded in argument, that if a man take the body in execution by capias ad satisfaciendum, and the party die in prison, he shall not have other execution; but if he escape the party shall have an action of account against the warden,\" (i.e. the warden of the Fleet-prison) per Prisot and per Davers. \nThe inference from this case is in accordance with the previous cases, and the law as it was then understood, viz. that no person shall be twice in execution for the same cause. \nAnd in 13 H. 7, 1, (anno 1497) -- Br Execution, 151, it is said by Keble, J, \"if the sheriff return cepi  corpus upon a capias ad satisfaciendum, the plaintiff shall not have other execution.\" \nAnd again in Shaw v. Cutteris, Cro. El. 850 -- M. 43, Eliz. B.R. (anno 1601) \"it was moved whether the party in execution dying before satisfaction made, the plaintiff may now have a new execution of this judgment?\" (against the administrator) \"and all the court held that he could not; for although it were said that he had his body in execution, but as a pledge for his debt, and, the party dying, the debt is never the whit the more satisfied; and if the two be taken in execution, and one of them dies, the other shall remain in execution; for the debt is not satisfied by his death, as 33 H. 6, 48, is, and it was so cited to be adjudged 26 Eliz. in the common bench, betwixt Johns and Wilcocks; yet they held that in regard the plaintiff hath elected this execution, (which is the highest execution) and the defendant died therein, the law will adjudge it as a satisfaction, when there is but one taken. But where two be condemned, the taking of one in execution, and his death, is no discharge for the other.\" \nThe same point came before the court of King's Bench again in a more formal manner, and was expressly  adjudged in the case of Williams v. Cutteris, Cro. Jac. 136, 143, p. 4, Jac. (anno 1606). It was a scire facias against an executor to show cause why the plaintiff should not have execution of a judgment against his testator. The defendant pleaded that his testator died in execution upon a capias ad satisfaciendum, issued upon the same judgment. To this plea the plaintiff demurred; because that execution was not satisfaction; \"and it was prayed inasmuch as he did not plead that satisfaction was given, therefore execution might be awarded. But Tanfield and Yelverton (the other judges being absent) held that the bar was good; for when the body of the party is taken in execution, although it be not in itself any satisfaction, yet, as to him, there cannot  be any other execution. But if two had been condemned, although one of them dies in execution, that is not any discharge for the other, because the execution is against both; and it is not satisfaction until the condemnation is satisfied. Yet when execution is against one only, the judgment being against one only; when he dies, no other execution can be against his goods or his land, than was in his life time; wherefore  they held the bar to be good. But because it was a new case, and had not formerly been adjudged, they would be advised,\" and they took time, till the next term, to consider. At Hilary term, the same year, (Cro. Jac. 143) the case was moved again, \"and Popham, Williams and Tanfield held that the plea is good; for when execution is awarded against one person only, and by a capias ad satisfaciendum, his body is taken in execution, and is returned; it is an absolute and perfect execution against him, and no other execution can be had against him, his lands or goods; and although the law saith that it is no satisfaction in itself; yet it is so high that there cannot be any other execution; and when he dies the execution is determined as to him, and there cannot be any other execution of his goods or lands: and not like to the case where two are condemned, and the one is taken in execution and dies, yet execution may be against the other; because it is not any satisfaction, and process is not determined against the other; but where the one only is in execution and dies, the executor is discharged, and there cannot be any new execution. Yelverton doubted thereof, because it is clear that  his body is but a pledge for his debt, and is not any satisfaction in itself; wherefore he said that it was not reasonable that the party plaintiff should be deprived of all his remedy by his death. But notwithstanding, it was adjudged for the defendant.\" \nThe same point was afterwards decided by the court of common pleas in the 12 Jac. (anno. 1614) in Jackson's case, Moore, 857. That was also a scire facias against executors to revive a judgment against their testator. The defendants pleaded in bar, that their testator died in execution upon the same judgment; upon which plea issue was joined and the jury found a special verdict, which the court adjudged for the defendant. The third question argued was, \"whether the death of the defendant in execution, is a discharge of the execution\" -- or as it is stated by Chief Justice Hobart in his Reports, p. 56, \"whether a man taken in execution for debt and dying in execution, the debt be absolutely discharged, by his death, as against him.\" \"And all the justices argued the case, and they all agreed, except Winch, that this was a discharge. And they cited a judgment in point between Williams and Lambe, p. 44, Eliz. Ro. 88, contrary to  Blumfield's case in Coke's 5th Reports, wherefore judgment was given against the plaintiff. Nota, Pash. 43, Eliz. in B.R. Rot. 88, in Williams and Cutheridge's case, it was adjudged a full execution by the death, &c.\" The opinion of Lord Hobart is given at full length in his Reports, p. 52 to 62, where, speaking of executions that have their effect in part, he says, (p. 59) \"but if a capias be executed, that is in law sufficient for the whole debt, for corpus humanum non receipt estimationem, so that if you take it at all, you must take it for the whole debt.\" And again, \"I hold that a capias ad satisfaciendum is against that party, as not only an execution, but a full satisfaction by force, and act, and judgment of law; so as against him he can have no other, nor against his heir, or executor, for these make but one person in law.\" \nSuch was the law previous to the 21st of James; notwithstanding the dictum of Lord Coke in Blumfield's case, that in an action in the common pleas, between Jones and Williams, it was resolved by the whole court that if the defendant in debt dies in execution, the plaintiff may have a new execution by elegit or fieri facias. For that was the case of two  men condemned in debt, and one was taken and died in execution, and yet it was held that the taking of the other was lawful; and such also was Blumfield's case. Neither of them, nor any other of the cases cited by Lord Coke, supports his dictum as a general proposition, \"that if the defendant in debt dies in execution, the plaintiff may have a new execution by elegit or  fieri acias.\" And in Sir Edward Coke's own case, (the great case of preogative) Godbolt, 294, Chief Baron Tanfield said, \"if a common person arrest the body in execution, he shall not resort to the lands, contrary to Blumfield's case, Co. 5th part.\" So also in Foster and Jackson's case, Hob. 60, Lord Chief Justice Hobart says, \"it is a prerogative of the king to have execution of the body, lands, and goods, not communicated to the subject but in case of statute merchant, and staple, and recognizance of that nature, which is by the statute law; and therefore the case put in Blumfield's, that where the party was taken in execution upon a statute, and died, and yet execution was had against goods and lands after, is nothing in this case; for they were all due at the first, and therefore might be taken at once  or severally.\" \nSo also in Cave v. Fleetwood, Littleton's Rep. 325, (5 Car. anno 1629), the plaintiff's counsel having cited Blumfield's case to prove that if the defendant die in execution the plaintiff may have elegit, and that it is satisfaction that the law regards, \"Hutton, J. said, that Blumfield's case is not law, for if the party die in execution by capias, the plaintiff had his execution, and shall not have any execution again, and so was Jackson's case adjudged in this court, and the making of the statute of 21 James shows that so the law was held.\" \nSo universal was the rule held to be, that the plaintiff should not take the body of the defendant twice in execution for the same cause, that it was even doubted whether a member of parliament, discharged temporarily by writ of privilege, could be taken again for the same debt. Thus the preamble to the statute 1 Jac. 13, (anno 1604) recites, \"forasmuch as heretofore doubt hath been made, if any person, being arrested in execution, and by privilege of either of the houses of parliament set at liberty, whether the party at whose suit execution was pursued, be for ever after debarred and disabled to sue forth a new writ of execution  in that case: for avoiding of all further doubt and trouble which in like cases may hereafter ensue, be it enacted, &c. that the party at whose suit, &c. after such time as the privilege of that session of parliament in which such privilege shall be so granted shall cease, may sue forth and execute a new writ or writs of execution in such manner and form as by the laws of this realm he or they might have done if no such former execution had been taken forth or served.\" \nSo also the preamble of the statute 21 Jac. c. 24, (anno 1623), says, \"forasmuch as heretofore it hath been much doubted and questioned if any person being in prison, and charged in execution by reason of any judgment given against him, should happen to die in execution, whether the party at whose suit, or to whom such person stood charged in execution at the time of his death, be for ever after concluded and barred to have execution of the lands and goods of the person so dying; and forasmuch as daily experience doth manifest that divers persons of sufficiency of real and personal estate, minding to deceive others of their just debts, for which they stood charged in execution, have obstinately and wilfully chosen rather  to live and die in prison than to make any satisfaction according to their abilities -- to prevent which deceit, and for the avoiding of such doubts and questions hereafter: be it declared, explained, and enacted, &c. that the party at whose suit any person shall stand charged in execution, &c. may, after the death of the person so charged and dying in execution, lawfully sue forth and have new execution against the lands and tenements, goods and chattels, of the deceased person, as if he had never been taken or charged in execution.\" \nThus stood the law in relation to execution by capias at the time the charter of Maryland was granted, on the 20th of June, 8 Car. (anno 1642). The emigrants under that charter brought that law with them, together with all such other rights of English subjects as they could enjoy in their new situation. These rights were expressly guarantied to them by their charter, and were at the revolution confirmed to their descendants by the constitution and bill of rights of the estate of Maryland. When this part of the district of Columbia was separated from Maryland,  that law and those rights were expressly continued in force here by the act of  congress of the 27th of February 1801; and, as modified by the statutes of Maryland prior to that date, and by acts of congress since, now constitute the law of this part of the district. Maryland continued from time to time to adopt such of the statutes of England as were applicable to her situation, up to the time of the revolution; and kept pace with the judicial tribunals of England in their modification and extension of the rules of the common law. Hence the decisions of those tribunals have been considered as authority in the cases to which they are applicable. \nThe law of execution by capias, therefore, as it existed in England at the time of the revolution was the law of Maryland on the 27th of February 1801, unless altered by the statutes of that state. We are not aware of any such alteration as can affect the present case. \nThe general principle remains as it was at the time of the charter; to wit, that no person shall be twice taken in execution on the same judgment. \nThe case of escape is the only exception recognized by the common law, and the reason of that exception is stated by Ashhurst, J. in 1 T.R. 557, to be, that the defendant is not legally out of custody; and  that exception was for a logn time denied or doubted; and even as late as the 8th and 9th of William 3 (anno 1697), it was thought necessary to pass an act (8 and 9 W. 3, c. 27, sects. 7), authorizing the plaintiff to retake the prisoner by a new capias, or to sue forth any other kind of execution on the judgment, as if the body of such prisoner had never been taken. \nA discharge under the insolvent law is no exception to the rule; for the body of the debtor once discharged by an insolvent law, from execution, cannot be lawfully taken on a new capias. The case of privilege of parliament, which is provided for by the statute of 1 Jac. c. 13, does not apply to this county. \nThe case of West's executors v. Hyland, 3 Harris and Johnson, 200, as there reported, seems to have recognized a new exception to the general rule. The marginal note of that case is thus: \"where a capias ad satisfaciendum is returned cepi, and the plaintiff does not proceed to enforce the writ, by having the defendant committed, defaulting the sheriff, or having it entered 'not called,' it does not preclude the plaintiff from taking out a new capias ad satisfaciendum.\" We have been furnished with a transcript of  the record of that case from the court of appeals; and, although every thing stated in the marginal note is true, yet the printed report of the case does not state the fact, that the defendant had escaped, and that therefore the court refused to quash the second capias ad satisfaciendum and discharge the defendant. By the transcript of the record it appears that upon the return of the first capias ad satisfaciendum (which was returned cepi), the sheriff of Somerset had not the defendant in court, having suffered him to go at large. That the sheriff left the court two days before the close of the session, and that on the day after the sheriff had left the court, the defendant for the first time came in, but there was then no sheriff there, to whom he could be committed; so that the defendant did not appear in court in custody of the sheriff, as stated in the report. This was clearly an escape; for, in the case of Koones v. Maddox, 2 Harris and Gill, 106, it was decided by the court of appeals of Maryland, that \"an action of debt will lie against a sheriff, who, having arrested a defendant on a capias ad satisfaciendum, permitted him to go at large until the return day of the writ,  although the sheriff then brought the defendant into court.\" The case of West and Hyland, therefore, instead of furnishing a new exception to the general rule, is a strong confirmation of it, and shows that the only exception at common law is the case of an escape. No man knew the law and practice of Maryland better than Luther Martin, who had been in full practice nearly half a century, and who was the counsel for the plaintiff in that case; and his affidavit, which was filed in the cause upon the motion of the defendant's counsel to set aside the second capias ad satisfaciendum, shows that in his opinion the return of cepi upon the first, without further proceeding, operated as a discharge of the defendant,  unless the plaintiff could show it to be a case of escape. His reply, therefore, to the motion of the defendant's counsel, was, as appears by the record, that the defendant \"before the last capias ad satisfaciendum was issued against him, and after the first had been served upon him, ascaped from the custody of the said sheriff.\" The fact of the escape having been proved by the affidavit of Mr Martin and Mr Polk, the court refused to set aside the writ, and to discharge  the defendant, and the record then proceeds thus: \"and the said Lambert Hyland, being called, appears, and it being demanded of him whether he be the same person taken in execution at the suit of the said Hannah West, executrix as aforesaid, confesses that he is, and that he hath not the money to satisfy to the said Hannah West, executrix as aforesaid, the debt, damages, costs and charges aforesaid; whereupon, on the prayer of the said Hannah West, executrix as aforesaid, by her attorneys aforesaid, the said Lambert Hyland is by the court now here committed to the custody of the sheriff of Somerset county aforesaid, in execution for the debt, damages, costs and charges aforesaid, at the suit of the said Hannah West, executrix as aforesaid, there to remain, until, &c. and the said sheriff, being here present, takes charge of the said Lambert Hyland accordingly,\" &c. The court of appeals sat at Easton, in Talbot county. The capias ad satisfaciendum was directed to and returned by the sheriff of Somerset county. This record is also proof of the practice in Maryland, to require the defendant who had been arrested on a capias ad satisfaciendum to be brought before the court upon the  return day of the writ, and committed in execution as a justification of the sheriff for holding the defendant in custody after that day. \nThat the general rule, as modified by the statutes of 1st and 21st Jac. and 8 and 9 W. 3, with the single exception of escape, remains as it was at common law, appears in Tidd's Practice (Troubat's edition, Philadelphia, 1828), 196, 1033, 1068, and in Saund. Williams's ed. 35. \nThat it prevails also in other states than Maryland, appears in the case of Yates v. Van Rensselaer and Schemmerhorn, 5 Johnson, 364, where the court said, \"though we may say in the language of Justice Grose (2 East, 244), that the attempt on the part of the defendant to get discharged of the debt is scandalous, yet the rule of law is settled.\" And in Freeman v. Ruston, 4 Dallas, 219, where the court observed, \"the case appears so clear to us, that we do not wish another moment for consideration. The law is settled in England, that a capias ad satisfaciendum operates as a satisfaction of the debt; as an extinguishment of the lien of the judgment. We have no other rule prescribed to us in Pennsylvania; nor can we perceive that there would be any policy or justice in departing  from it.\" \nSuch, therefore, being the general principle so long and so well established, it is incumbent upon the United States to show either that they are not bound by the general rule, or that they are within some exception to it. \nIn the first place, it is said that the rule only applies to civil cases; and that this is a criminal case, and therefore not within the rule. \nThe answer to this objection is, that the United States are only authorized to issue a capias ad satisfaciendum for a fine by the law of Maryland, which they have adopted for this part of the district, and which, in giving the writ, expressly requires that \"such proceeding should be had thereon, as in cases where similar writs are issued on judgments obtained in personal suits.\" The United States must take it as it is given; and when they do take it, they must proceed civiliter, and not criminaliter. The nature of the proceeding is changed; and the state of Maryland, by giving this civil remedy, has in effect agreed that she will so far waive any prerogative attached to her criminal jurisdiction. The United States by adopting the same remedy, must do the same. This point, we think, is decided by the supreme  court of the United States, in Ex parte Watkins at the last term, when they admit that the United States were bound by the Maryland practice in regard to execution by capias ad satisfaciendum in civil cases. \n But if the United States are bound by the general rule, it is said that the general rule is confined to the case of a discharge with the consent of the plaintiff. This position is not supported by the authorities cited. Blumfield's case ( 5 Co. 86, b.) is the strongest; but the authority of that case is denied in several subsequent cases; and in some the dicta, which appear to give some countenance to the position assumed on the part of the United States, are expressly overruled; as has been before noticed. \nThere is no pretence that the defendant escaped. On the contrary he was discharged by the supreme court of the United States upon habeas corpus, because the marshal had not, according to the exigency of the writ, and the practice of Maryland in like cases, any authority to detain him beyond the return term of the writ, unless under a commitment by the court at the prayer of the plaintiff, and in that case the United States did not pray him into commitment. The  United States might have had the full benefit of their judgment and execution, but did not avail themselves of it. \nTo this, however, it is objected, that it was either the neglect of the marshal, in not bringing in the defendant, or of the attorney of the United States in not calling on the marshal to bring him in; and that the United States are not bound by the neglect of their officers. \nThis objection, we think, is also answered by the judgment of the supreme court in the case Ex parte Watkins at the last term. For the objection was as valid then as it is now -- and if the United States were not bound by the neglect of the marshal to bring in the defendant at the return of the first capias ad satisfaciendum; and of the attorney of the United States to pray him in commitment; then the case would have stood before the supreme court as a case in which the marshal had brought in the defendant at the return of the writ, and as if the attorney of the United States had prayed him in commitment; and then that court could not have discharged him on the ground they did; for the only ground upon which he was discharged by that court was, that the United States had neglected to have the defendant  brought into court at the return day of the writ and prayed in commitment. The same answer may be made to the supposition that the omission to have the defendant committed was caused by the mistake of the officer of the United States as to the law or the practice of the court. The objection was as valid in the case before the supreme court as it is here. But if it were not so, the United States having, by taking the writ of capias ad satisfaciendum, under the law of Maryland, placed themselves, so far as the proceedings are to be carried on under that writ, upon the ground of an individual in a personal suit, they are equally liable to lose the benefit of the writ by the neglect of their officers to pursue it to its full effect. \nIt may be proper to notice some expressions in some of the cases cited on the part of the United States, which, from their generality, may be supposed to favour the construction given to the general rule by the counsel for the United States. \nIt may be observed of the cases in which it is said that the taking of the body is good execution, but is not satisfaction, that they are cases where there was judgment against two or more defendants, and one of them  taken in execution. In those cases the taking of one was not satisfaction as to the others. Such was the case 29 H. 8, Br. Execution, pl. 132, and Blumfield's case, 5 Co. 86 (b.), and the anonymous case in Moore, 29, ca. 96, and Cowley v. Lydeot and Bulstrode, 97, and Whitacres v. Hawkins, Cro. Car. 75, and Rosser v. Welch and Kennis, Godbolt, 208; Shaw v. Cutteris, Cro. El. 850; Williams v. Cutteris, Cro. Jac. 136, 143; Price v. Goodrick, Styles, 387, and Clark v. Clement, 6 T.R. 525. \nThe language of Mr Justice Baldwin, in delivering the opinion of the supreme court of the United States in the case Tayloe v. Thompson, 5 Peters, 370, has been cited to show that in every case of the discharge of a defendant from execution upon a capias ad satisfaciendum, without actual payment of the debt, or the consent of the plaintiff, he may have a new capias ad satisfaciendum and arrest the defendant  again upon the same judgment. The only point decided in that case, in relation to the question in this, was, that the arrest and escape of Glover upon a capias ad satisfaciendum did not destroy the lien of the judgment upon Glover's lands; and that was the whole extent to which it was  necessary, in that case, to lay down the law as to the effect of a commitment of the body in execution. The language of the opinion, however, is -- \"the greatest effect which the law gives to a commitment on a capias ad satisfaciendum, is a suspension of the other remedies on the judgment during its continuance: whenever it terminates without the consent of the creditor, the plaintiff is restored to them all as fully as if he had never made use of any.\" Whether the negligence of the creditor in not pursuing his remedy, whereby he lost the benefit of the arrest, would be considered as evidence of his consent to the termination of the commitment, might be doubtful, but it cannot be admitted that the court would have decided that if the plaintiff has once had the body of his debtor in execution, and by his own negligence loses the full benefit thereof, without any fault on the part of the defendant, he may have a new capias ad satisfaciendum, and again take the body in execution on the same judgment. Lord chief justice Hobart, in Foster v. Jackson, (Hob. 57) says \"neither can the body be taken for a time, or for part, as a fieri facias, but it must be totally and finally during his  life.\" And in page 59 he says that if a capias be executed; that is in law sufficient for the whole debt; for the value of the human body cannot be estimated. It is but just and fair in construing the language of a judicial opinion, to consider it in reference to the point of the case, and to consider the court as not intending to extend the doctrine advanced, beyond the limit necessary to support the decision. All beyond that must be considered as a dictum, and of no greater weight than that of the authorities by which it is supported. \nThe case of Codwise and Gelston, (10 Johnson, 517)) has also been mentioned; but in that case the debtor was never charged in execution, and because he had not been so charged, Chancellor Kent decided that the surrender of him, by his bail, to the sheriff, after judgment, and his release from the custody of the sheriff, by the order of the plaintiff, without taking him in execution, did not discharge the lien of the judgment upon the lands of the defendant. \nThese dicta are wholly insufficient to unsettle the long established principle of the common law that a man shall not be twice taken in execution for the same cause. \nBeing of opinion that the  United States, when proceeding under the adopted law of Maryland, are bound by that principle; and that, in the present case, they do not come within any known and established exception to that rule; it being also apparent that the defendant has been twice taken in execution upon the same judgments, and is now held in custody under the second execution, without any fault on his part that can deprive him of the benefit of the rule, we deem it our duty to order him to be discharged. \nThis opinion renders it unnecessary to express any upon the other two points made in the argument. \nThe motion of the attorney of the United States to commit the defendant upon these writs, is overruled; and the writs are ordered to be quashed, and the defendant to be discharged from the custody of the marshal. \nDissent by:", " \nOpinion \n\n \n \n  Mr Justice STORY delivered the opinion of the Court. \nThis is a writ of error to revise the judgment of the circuit court for the district of Ohio, rendered against the plaintiffs in error, who were the original defendants in an action of ejectment, commenced in that court in 1828. \nThe original suit is for a lot of land situate in Cincinnati. The original plaintiffs are the heirs of Gen. Josiah Harmer; and claim title to the premises under a deed executed by John Cleves Symmes, then proprietor of the lands, including the whole city, on the 6th of May 1791, acknowledged on the 28th of November 1804, and recorded on the 30th of the same month. The boundaries stated in the deed are as follows: \"on the south on the front or river street, lying directly in front of fort Washington, being twelve rods wide on the street, including two lots, and extending northerly from the  said front street twenty rods to the south side of the second street from the Ohio, and adjoining the said second street twelve rods from east to west; and on the east bounded by the lands of his excellency governor St Clair.\" These lots were without the original bounds of the city. At the time when this deed was executed, Symmes had not procured a legal title thereto under his contract with the United States for his purchase; but he subsequently obtained it in 1794. \nThe defendants, at the trial, set up title to the premises derived under one Ethan Stone, who purchased the lands mentioned in the deed from Symmes to Harmer, at a sheriff's sale, on an execution by one Lamma against Symmes, and as his property, in March 1803. \nAt the trial there was a good deal of evidence as to the location and boundaries of the lots conveyed by the deed of Symmes to Harmer, and comprehending the premises; and this constituted  one of the points in controversy. The defendants also, to rebut the plaintiffs' title, gave in evidence the record of the proceedings in a suit in chancery, prosecuted by Harmer against Stone in the supreme court of Ohio in 1811; the object of which was to procure  a decree against Stone for a release and surrender of his title to these lots, under the sheriff's sale; upon the ground expressly stated in the bill, that the deed of conveyance from Symmes to Harmer, in 1791 (the former having then acquired no legal title), conveyed only an equitable title to Harmer, and that Stone had full notice thereof at the time of his purchase under the sheriff's sale. Pending the proceedings, Harmer died, and the suit was revived in behalf of the widow and heirs of Harmer; all of whom, except one, were then under age, and prosecuted their suit by their mother as their next friend. Afterwards, in 1817, a decree was made in favour of the plaintiffs, directing Stone to release all his title to the land according to the boundaries contained in the deed from Symmes to Harmer; and to yield up the possession accordingly. The heirs of Harmer did not all arrive at age until 1825. After the rendition of this decree, one George W. Jones was employed by Mrs Harmer to procure a release from Stone pursuant to the decree. He testified that he came to Cincinnati in 1821. That before leaving the city of Philadelphia, Mrs Harmer requested him to take the agency of their  claim in Cincinnati, then in the hands of Jesse Hunt, and to receive a conveyance from Stone of the lands decreed to the heirs of Harmer, and take possession of the same. That, at that time, all the heirs except one were minors, and with her who was of full age, he had no conversation respecting the matter; nor had he any written authority to act as agent for any of them. That after his arrival at Cincinnati he applied to Stone for a conveyance; and after some difficulty and delay, he got him to go upon the ground in company with Mr Este, the attorney at law for Harmer's heirs, and Mr Gest, a surveyor, and the land was set off by Stone, as he (Stone) claimed was correct. The surveyor handed him a plan of survey; and Stone executed a release of the same to Harmer's heirs. That the witness knew nothing of the situation of the town, or the true locality of the lots.  He had no agency in, nor did he ever know of the additional description of the four town lots as mentioned  in the deed of release made by Stone; nor did he know that it conveyed other or different ground than was described in the deed made by Symmes to Harmer. \nIt was also proved on the part of  the plaintiffs, that in 1824 an execution was issued against Stone, and levied upon a triangular piece of ground at the junction of Ludlow and Front streets (part of the premises included in the deed of release of Stone, and contended to be not included in the deed of Symmes to Harmer), as Stone's property, and bought at the sheriff's sale, in February 1825, by one Timothy Kirby, who afterwards, in June 1827, conveyed the same to Jones; and Stone afterwards, in August of the same year, upon a representation that it was bought by Jones for Harmer's heirs, to quiet their title, executed a release thereof to Kirby. \nIt was also proved that Harmer's heirs have always been in the undisturbed possession of the land released by Stone to them, under the decree. That about the year 1821 or 1822, Josiah Harmer, one of the heirs, then a minor, but who came of age in 1823, came to Cincinnati; and wishing to erect a house on the corner of the triangular piece of ground above referred to, contracted for the building of the same, which was erected thereon, and has ever since been in the possession and occupancy of persons holding under Harmer's heirs, and paying rent to them. \nThis statement of  facts is necessary to understand the instructions prayed of the court, which will hereafter come under consideration. Before proceeding to consider them, it will be proper to dispose of some minor exceptions taken to certain evidence, which was admitted at the trial. \nIt has been already stated, that one of the points of controversy at the trial was as to the true location and boundary of the lots conveyed by Symmes to Harmer. One Thomas Henderson, a witness, among other things, testified that \"he had heard a number of the old citizens of Cincinnati, now dead, speak of the situation of the lots sold by Symmes to Harmer; and named particularly Joel Williams, one of the old proprietors of the other part of the town, and David Zeigler, who, he said, was the reputed agent of Gen. Harmer; and in the conversation spoken of, warmly censured Ethan Stone for attempting to take from Harmer his property.\" The defendants objected  to the admission of Zeigler's declaration, as to the location of said lots; which objection was overruled by the court, and the statement of said Zeigler, as testified by said witness, was admitted in evidence to the jury. The defendants excepted to the  admission of this evidence. \nIt is observable that the exception is not general to the declarations of Zeigler, but only to that which respected the location of the lots. Nor does it appear that any declaration of Zeigler was given in evidence, except what is above stated. Now, if Zeigler made no other declaration, or the plaintiffs waived giving any other declaration in evidence, notwithstanding the court ruled it to be admissible, it is difficult to perceive how this exception can be maintained, or how the defendants have been prejudiced. As far as Zeigler's declaration is in evidence, it is merely introductory, that he spoke \"of the situation of the lots;\" and it no where appears that any further declaration, except in this general way, was in evidence. Such a statement, so utterly inconsequential, cannot form any proper matter of exception. It proves nothing; and can be considered in no other light than as the introductory language of the witness himself. \nThe plaintiffs then offered to read from Dr Drake's work, called a picture of Cincinnati, the date of the surveying and laying out lots in that part of Cincinnati which lies east of the garrison reservation. To the admission  of this book in evidence, the defendants objected; the author being (as was agreed) alive, and his deposition, as to other matters, taken in the cause. The court overruled the objection, and admitted the evidence to go to the jury. To this decision, also, the defendants excepted. \nIf this exception were to be considered solely upon the general principles of the law of evidence, we should think that it was well taken. All evidence of this sort must be considered as mere hearsay; and certainly, as hearsay, it is of no very satisfactory character. Historical facts, of general and public notoriety, may indeed be proved by reputation; and that reputation may be established by historical works of known character and accuracy. But evidence of this sort is confined in a great measure to ancient facts, which do not presuppose better evidence in existence; and where, from the nature of the transactions,  or the remoteness of the period, or the public and general reception of the facts, a just foundation is laid for general confidence. See I Starkie's Evid. pl. 1, sect. 40 to 44, p. 60 to 64; 1 Starkie's Evid. pl. 2, sect. 55, p. 180, 181. But the work of a living author, who  is within the reach of process of the court, can hardly be deemed of this nature. He may be called as a witness. He may be examined as to the sources and accuracy of his information; and especially if the facts which he relates are of a recent date, and may be fairly presumed to be within the knowledge of many living persons, from whom he has derived his materials; there would seem to be cogent reasons to say, that his book was not, under such circumstances, the best evidence within the reach of the parties. \nBut we think there are special circumstances in this case which exempt the evidence from the common rule, and justify its admission. Doctor Drake had been already used by the defendants as a witness in the cause, on the point as to location and boundary of the lots. He stated, among other things, that he was present when Joseph Gest, the city surveyor, made a survey of the foundation of old fort Washington, a plat and description of which, by Gest, was then before him, and was in the case: and after stating his belief of its accuracy, and his reasons for so believing, he added, \"finally, in preparing a plat of the town for the picture of Cincinnati in 1814, I took great pains  to lay down the site of the fort correctly, and I find that the plat made by Mr Gest corresponds almost exactly with it.\" And in answer to a  further question of the defendants, what would be the location of four lots, the calls for which were directly in front of fort Washington; he stated, \"they must all lie between Ludlow street and Broadway, that is, west of Ludlow street.\" Now, these answers, which were brought out upon the defendants' own inquiries of their own witness, seem to us to justify the admission of the book of Doctor Drake, for the purpose of explaining, qualifying, or controlling his evidence. The remarks of Dr Drake in his book, as to the date of the surveying and laying out lots in that part of Cincinnati which lies east of the garrison reservation, (and which was comprehended in the scope of his testimony,) might have been important for this purpose: and at all events, the plaintiffs might properly refer to this book to show statements, which  might affect the results of his testimony. In this view we think the evidence was admissible; and its bearing in any other view is not shown to have been in the slightest degree material to the cause. \n The defendants subsequently offered in evidence a map contained in the same book, it being a plan of the town of Cincinnati, exhibiting the same plan of the town as that offered by the plaintiffs, except that the four first lots were not numbered. The plaintiffs then produced another plat marked No. 3, and again called Henderson, who testified that he saw the plat for the first time in 1809, while the depositions in perpetuum used in this cause were taking. That the said plat was shown to him by John C. Symmes, in the presence of Daniel Symmes. That the writing thereon, and the lines, but not the numbers, were then put upon it in the hand writing of J. C. Symmes. That in 1811 the said plat was again shown to him, at which time the figures numbering the lots were upon it, and he recognized these figures as being in the hand writing of Daniel Symmes. That he, then, at the request of the proprietors and several of the old citizens of the town, copied the plat, protracting it on a larger scale, and placed his copy on the records of the county; and that the same has since governed him, and all other surveyors, as far as he has known, in surveys made in that part of the town, now city  of Cincinnati. That this plan was recorded for the purpose of preserving the original plan of that part of the town which was laid out by J. C. Symmes; and the inhabitants of Cincinnati have since recognized it as the true plan of the said part of the town, except Ethan Stone, then in possession of the block in which the land in controversy is situated, who denied its correctness. That this was the only plan of that part of the city known and recognized by the citizens of Cincinnati; that the size and number of the streets and alleys were determined with reference to that plan; that all the surveys of the lots, streets and alleys in that part of the city were made with reference to that plan, so far as he knows; that he never knew of any other plan; and no other was ever adopted as the plan of the upper part of the town. The plaintiffs thereupon offered the said plat in evidence to the jury, for the purpose of showing the original plan of that part of the city. The defendants  objected to its admission. The court overruled the objection, and admitted the plat in evidence; directing the jury to disregard any thing written on it by J. C. Symmes. An exception was taken  to this decision of the court, and the question now is upon its correctness. \nWe are of opinion that the plat, upon this evidence, was rightly admitted. It is to be considered, that J. C. Symmes was the original proprietor of the whole city when it was laid out; and that the plat was in his possession, and held out by him as the original plat. It was traced back to that possession more than twenty-two years before the trial; and was the oldest and only original plat known to be in existence. It was a publicly recognized plat by which the corporate authorities and citizens ascertained, and regulated their surveys, lots, streets, and alleys. And having been so long and so publicly recognized, it was the highest species of evidence of reputation as to the location and boundaries of the lots, streets, and alleys; and not the less so because it was contested by a single individual, whose interests might be affected by it. It was not conclusive upon his rights, but it was admissive as the best proof then known to the plaintiffs of the general laying out and boundaries of the lots and streets of the city, recognized by the original proprietor, and those who had succeeded to his rights,  as well as by the public. But if this were even doubtful (which we do not admit), it would still be admissible; since it is not even pretended, that it differed in any material circumstance from other plats then laid before the jury by both parties, except as to the figures numbering the lots; and these the court directed to be disregarded. The question, therefore, made at the bar as to the admission of hearsay, post litem motam, does not arise, and may well be left for decision, until it constitutes the very point for judgment. It has, indeed, been suggested at the bar, that Symmes produced the plat after Stone had obtained his title to the premises, and therefore had an interest to maintain the title of Harmer, in order to escape from his warranty to the latter under his deed of 1791. But no such interest could exist; for whatever was the true location of the lots conveyed by that deed, Symmes undoubtedly had the title at the time: and Stone, not being a second purchaser by deed from Symmes, but a mere purchaser  at a sheriff's sale on execution, could take only such title as Symmes then possessed in the premises. And the not recording of the deed to Harmer until  after Stone's purchase, will not affect Harmer's title (it being clearly good between the parties), as it might have done if Stone had been a subsequent purchaser from Symmes by deed, without notice. The plat, then, came from Symmes's possession at a time when he had not even a semblance of interest in the controversy. \nWe now come to that which constitutes the main hinge of the present suit, and by which its ultimate merits are to be decided; and that is, the instructions given and refused by the court. \nThe first instruction was prayed for by the plaintiffs, and is as follows. \"The counsel for the plaintiffs move the court to instruct the jury that inasmuch as they claim title to the  premises in dispute under the deed from Symmes to Harmer, and not under the deed of release made by Stone, they cannot be divested of their title to the lots which that deed conveyed to Harmer, by the possession of these premises for the period of five or six years, which they supposed to be a part of these lots, though embraced in the deed of release, but not in the decree;\" which instruction the court accordingly gave. It does not appear upon the record, that this instruction so given  was in express terms excepted to by the defendants; the exception being stated in the following terms, after the instructions asked by the defendants. \"The court charged the jury as requested by the defendants upon the first instruction asked by them; but refuse the residue of the instructions in manner and form as the same were prayed for; to which several opinions of the court in delivering their charge as aforesaid, the defendants except, &c.\" But we think, that the fair import of these last words embraces the instruction asked by the plaintiffs; for that was an opinion delivered by the court in its charge to the jury. \nThat the deed of Symmes to Harmer, in 1791, passed a legal title to Harmer, which became consummated in the latter when Symmes obtained his patent from the United States in 1794, is not controverted. The question is, whether the subsequent proceedings under the bill in equity, in which that title is asserted to be equitable, and the release given by Stone  under that decree, and the subsequent possession of the heirs of Harmer of the lands so released, do, under the circumstances, estop them from setting up their legal title against the defendants. We  are of opinion that they do not. \nIt is very clear that Mrs Harmer could not, as prochein ami, during the minority of the heirs, authorize any release to be taken, which did not conform to the decree, so as to make it binding upon them. In point of fact, if the evidence is to be believed, the agent never intended to take any release which did not conform to the decree; and he received it upon Stone's representation that it did so conform. And it no where appears from the evidence, that the heirs had any knowledge of their rights, and of the mistake in the release, until the present suit was brought. Unless the heirs had full knowledge of their rights, and of the mistake in the release; and with that knowledge held possession of the premises in the release after they arrived of age; they could not be deemed to have confirmed the transaction, or to have accepted the release as full satisfaction and performance of the decree. \nWe give no opinion what under such circumstances would have been the effect of such acquiescence or confirmation upon the rights of the plaintiffs derived from the decree; or whether afterwards they would be permitted to repudiate the whole transaction, and compel  a new execution of the decree. Here, the title, set up by the plaintiffs, is not derived from or under the decree or release; but is a legal title paramount to both. Are the plaintiffs then estopped in law to set up that title? We think not. The bill in equity does not estop them; for that bill stated the derivation of title correctly; and the decree conforms to it. Neither the title set up in the bill, not the decree, asserts any claim repugnant to the present claim. The decree requires Stone to convey the very land in controversy. The only difficulty is, that the bill avers the title of the plaintiffs to be an equitable instead of a legal title. But as all the facts are stated truly in the bill, it is nothing more than a mistake of law. If the defendants could rely upon that bill and decree as an estoppel, it must be because the facts therein stated are repugnant to the present title asserted by them. But such is not the posture of the case. \nThe plaintiffs then, having a legal title to the premises,  which they have never parted with by a proper conveyance, they are entitled to the instruction prayed for; unless their possession of the land under the release,  not included in the decree, amounts in law to an extinguishment of their title. We know of no principle of law, on which this can be maintained. \nThe legal title to land in Ohio can be passed only by a proper conveyance, by deed, according to the laws of that state. The present is an attempt to set up a parol waiver of title by acts in pais; a parol acceptance of other land, in lieu of that belonging to the plaintiffs. As an extinguishment, or an estoppel, it is equally inadmissible. The question is quite a different one, what would be the effect of such an acceptance and acquiescence under it by the parties for a long time, as matter of evidence upon a point of disputed boundary. The instruction given involves no such consideration. It prevents the more general question whether the possession of the released premises, precluded the plaintiffs from asserting their legal title to the land sued for. We concur with the court below in thinking that it did not. \nThe first instruction asked by the defendants, having been given by the court, may be passed over without notice. The second, third, fourth and fifth instructions are as follows: \n2. If, upon the whole evidence, the jury  believes that Mrs Harmer, the next friend of the minors, in prosecuting the bill in chancery, and obtaining the decree given in evidence, authorized George W. Jones to obtain the deed of release, under the decree, and to take possession of the lands, and that George W. Jones, under this authority, as agent for the complainant obtaining the decree, and, in conjunction with the attorney for the complainants that obtained the decree, assented to the location of the ground; and George W. Jones, as such agent, accepted a deed, and took possession of the land according to the boundaries described in the deed: the lessors of the plaintiff are concluded by his acts, and the plaintiffs cannot recover. \n3. If, upon the whole evidence, the jury believe that Mrs Harmer, the next friend of the minors in prosecuting the bill in chancery, and obtaining the decree given in evidence, authorized George W. Jones to obtain the deed of release, under the decree, and to take possession of the lands; and that George  W. Jones, under this authority, as a agent for the complainants obtaining the decree, and, in conjunction with the attorney for the complainants in obtaining the decree, assented  to the location of the ground, and George W. Jones,  as such agent, accepted a deed, and took possession of the land according to the boundaries described in such deed, and continued that possession, exercising acts of ownership as agent after all the lessors of the plaintiff obtained their full age; and the defendants purchased before the lessors of the plaintiffs disavowed the acts of George W. Jones, and without any notice or knowledge of an intention of the lessors of the plaintiffs to disavow the acts of said Jones, public sale of the adjacent lands being made, with the knowledge of said Jones, and no notice given by him that the lessors of the plaintiffs (he continuing their agent) had disavowed, or intended to disavow, his acts in locating the lands, and taking a deed for and possession thereof: the plaintiffs cannot recover. \n4. That the deed of release from E. Stone to T. Kirby, and the decree from the sheriff to T. Kirby, given in evidence in this cause, for part of the lands previously released by E. Stone to the lessors of the plaintiffs, under the decree in execution of a contract paramount to the original title of E. Stone, and decreed to be executed, did  not, in law, divest the title of the lessors of the plaintiffs, previously acquired to the lands so released by E. Stone to Kirby, and conveyed by the sheriff to Kirby, and the continuance of the lessors of the plaintiff in possession of all the land released to them, under the decree, and taken possession of by George W. Jones, and retaining the title thereto, is, in law, a continued affirmance of the acts of George W. Jones as their agent, which cannot be disavowed without releasing to E. Stone, and restoring to him the possession of that fraction of the land, released under the decree which the location claimed in the first does not cover. \n5. That the relation in which the defendants are proved to stand to those under whom they claim title, does not warrant the jury to infer that the defendants had knowledge that the lessors of the plaintiffs had disavowed, or intended to disavow, the location as accepted by George W. Jones. \nThe second instruction proceeds upon the ground, that the authority given by Mrs Harmer to Jones, his assenting to accept  the release of Stone, and taking possession of the land released, concluded the plaintiffs from a right to recover; although  they were minors, and never personally assented thereto. From what has been already said, this instruction was properly refused. Mrs Harmer had no authority to bind the heirs by the acceptance of any release, not conforming to the decree. \nThe third instruction proceeds upon the ground, that the acceptance of the release by Jones, under the authority of Mrs Harmer, and the possession of the land by Jones as agent, and continuing that possession after the plaintiffs attained full age, and until after the defendants had made their purchases of the land, without any disavowal or notice of disavowal by the plaintiffs of the acts of Jones; would preclude the plaintiffs from a right to recover. We think, for reasons already given, the law is otherwise, and therefore the instruction was rightly refused. \nThe fourth instruction affirms, that the release of Stone to Kirby for part of the land included in the prior release of Stone, under the decree, did not divest the legal title of the plaintiffs to the lands so released to them. So far the instruction prayed was undoubtedly correct. But it did not stop here, but proceeded to declare that the continuance of the plaintiff in possession  of the land so released by Stone, under the decree, was a continued affirmance of the acts of Jones as their agent, which could not be disavowed without releasing to Stone, and restoring to him the possession of that fraction of the land released, which the decree did not cover. To this instruction there are two objections. The first is, that if the release to Kirby by Stone, and the conveyance by Kirby to Jones, were for the exclusive benefit of the heirs of Harmer, and to quiet their title to that fraction of land, (as the evidence in the case asserts,) no such release could be now required, since the plaintiffs would be entitled to it by an independent title. But the other is equally decisive. If the plaintiffs possess a legal title to the land in controversy, not founded on that release, it can furnish no bar to their right to recover, that there exists an equitable claim against them to surrender other land taken under that release, to which ex aequo et bono, they are not entitled. The instruction was, therefore, properly refused. \nThe fifth and last instruction proceeds upon the ground, that  knowledge on the part of the defendants, that the plaintiffs had disavowed,  or intended to disavow, the location as accepted by Jones, might vary the right of the plaintiffs to recover; and that the relation in which the defendants are proved to stand to those under whom they claim title, did not warrant the jury to infer, that the defendants had that knowledge. This instruction is open to the objection, that it asks the court to decide upon a matter of fact, as to what the relation was, in which the defendants were proved to stand, to those under whom they claimed title. But the decisive answer is, that it asks an instruction upon a point of law, not shown to have any legal bearing upon the case. It could have no influence upon the cause, if given, and might have had a tendency to mislead the jury. It was, therefore, properly refused by the court. \nThe judgment of the circuit court is affirmed, with costs. \n \n\n ", " \nOpinion \n\n \n \n  Mr Justice STORY delivered the opinion of the Court \nThis case comes before us upon a writ of error to a judgment of the district court of the district of Mississippi, in  which the plaintiffs in error are defendants in the court below. \nThe original action is founded upon a guarantee, given by Douglass and others in favour of one Chester Haring, by the following letter: \n\"Port Gibson, December 1807. \n\"Messrs REYNOLDS, BYRNE & Co. \n\"Gentlemen: -- Our friend, Mr Chester Haring, to assist him in business, may require your aid from time to time, either by acceptance or indorsement of his paper, or advances in cash. In order to save you from harm by so doing, we do hereby bind ourselves, severally and jointly, to be responsible to you at any time for a sum not exceeding eight thousand dollars, should the said Chester Haring fail to do so. \n\"Your obedient servants, \n\"JAMES S. DOUGLASS. \n\"THOMAS G. SINGLETON. \n\"THOMAS GOING.\" \nThe declaration contains two counts. The first alleges that, upon the faith of the letter, the origmal plaintiffs accepted and indorsed drafts or paper of Haring to the amount of eight thousand dollars, which they were obliged to pay, and did pay at  the maturity thereof; and of which they gave due notice to the defendants. The second count is for money lent, and money had and received. But this may be laid entirely out  of the case, since it is very clear, that, upon a collateral undertaking of this sort, no such suit is maintainable. \nAt the trial upon the general issue and the plea of payment, the plaintiffs, who are resident merchants at New Orleans, offered evidence to prove the payment of five promissory notes, dated on the 1st of May 1829, payable to Daniel Greenleaf or order, and indorsed by him, viz.: one note due on the 20th of November 1829 for four thousand dollars; one due on the 20th of December 1829 for four thousand five hundred dollars; one due on the 20th of January 1830 for five thousand five hundred dollars; one due on the 20th of February 1830 for five thousand five hundred dollars; and one due on the 20th of March 1830 for five thousand five hundred dollars, in the whole amounting to twenty-five thousand dollars; and that the notes had been discounted with the plaintiffs' indorsement thereon, and were taken up by them at maturity. \nIt also appeared in evidence, that soon after the letter of guarantee had been received, acceptance had been made of the drafts of Haring by the plaintiffs to the amount of eight thousand dollars; and that other large transactions of debt and credit  took place between them, upon which, on the 1st of May 1829, there was a balance of principal of twenty-two thousand five hundred and seventy-three dollars and twenty-three cents, besides interest, due to the plaintiffs, and credits to a larger amount than eight thousand dollars had come into possession of the plaintiffs. And on that day the foregoing notes were received, and the following receipt written on the account containing the balance. \n\"Received, Port Gibson, May 1, 1829, in part and on account of the above account, and interest that may be due thereon, the following notes, to wit, [enumerating them] amounting in all to twenty-five thousand dollars, which notes, when discounted, the proceeds to go to the credit of this account. \n\"REYNOLDS, BYRNE & Co.\" \nThere was a good deal of other evidence in the cause, but it  does not seem necessary to state it at large, since no part of it becomes important to a just understanding of the merits of the controversy, as it now stands before us. \nIn the progress of the trial the depositions of several witnesses who were clerks in the counting house of the plaintiffs were read, in which they stated, that they knew that the letter  of credit was considered by the plaintiffs as covering any balance due by Chester Haring to the  plaintiffs, for advances from that time to the extent of eight thousand dollars; and that advances were made, and moneys paid by them on account of Haring from the time of receiving the said letter of credit, predicated on the said letter always protecting the plaintiffs to the amount of eight thousand dollars, whenever the said amount or less might be uncovered; and that it was considered in the said counting house of the plaintiffs as a continuing letter of credit, and so acted upon by the plaintiffs. To the admission of this part of the depositions the defendants objected; but the court overruled the objection, and permitted the evidence to be read to the jury as evidence of the reliance of the plaintiffs upon the letter of credit to the amount of the eight thousand dollars, for acceptances, payments, advances and indorsements made to Haring. The defendants excepted to this admission of the evidence; and the propriety of this ruling of the court, constitutes the first question in the case. \nWe are of opinion that the evidence was rightly admitted in the view, and for the  purposes stated by the court below. It was not offered to explain or establish the construction of the letter of credit (See Russell v. Clarke, 3 Dall. 415 S.C. 7 Cranch's Rep. 69), whether it constituted a limited or a continuing guarantee; and was not thus open to the objection which has been relied on at the bar, that it was an attempt by parol evidence to explain a written contract. It was admitted simply to establish that credit had been given to Haring upon the faith of it from time to time, and that it was treated by the plaintiffs as a contmuing guarantee; so that if, in point of law, it was entitled to that character, the plaintiffs' claim might not be open to the suggestion, that no such advances, acceptances or indorsements had in fact been made upon the credit of it; an objection which, if founded in fact, might have been fatal  to their claim. Nothing can be clearer upon principle, than that if a letter of credit is given, but in fact no advances are made upon the faith of it; the party is not entitled to recover for any debts due to him from the debtor, in whose favour it was given, which have been incurred subsequently to the guarantee, and without any  reference ot it. \nThe other exceptions are to certain instructions prayed by the defendants, and refused by the court. \nThey are as follows: \n1. That the said letter of credit sued on is not a continuing guarantee, but is a limited one; and that when an advance or advances, acceptance or acceptances, indorsement or indorsements had been made by the plaintiffs on the faith of said letter of credit to the amount of eight thousand dollars, the guarantee became functus officio, and ceased to operate upon any future advances, acceptances or indorsements, made by said plaintiffs for Chester Haring. And that if the said plaintiffs received from said Haring, in payment of their advances, acceptances or indorsements, made on account of said guarantee, the amount of eight thousand dollars, it was a discharge of said letter of guarantee; and that any future advances, acceptances or indorsements, cannot be charged against and recovered from the defendants, by virtue of said letter of credit. \n2. That to entitle the plaintiffs to recover on said letter of guarantee, they must prove that notice had been given, in a reasonable time after said letter of guarantee had been accepted by them, to the  defendants that the same had been accepted. \n3. That to entitle the plaintiffs to recover on said letter of credit, they must prove that, in a reasonable time atter they had made advances, acceptances or indorsements for said Haring on the faith of said letters of guarantee, they gave notice to said defendants of the amount and extent thereof. \n4. That to entitle the plaintiffs to recover on said letter of credit, they must prove that a demand of payment had been made of Chester Haring, the principal debtor, of the debt sued for; and in case of non-payment by him, that notice of such demand and non-payment should have been given in a reasonable time to the defendants; and in failure of such proof, the defendants are in law discharged. \n 5. That the promissory notes, drawn by C. Haring, the principal debtor, and indorsed by Daniel Greenleaf, and received by the plaintiffs on the 1st of May 1829 as expressed in the said receipt of that date at the end of their said account, and the discounting the same in New Orleans by the plaintiffs after they had indorsed the same for that purpose, the same being discounted before they fell due, and the receipt of the net proceeds arising  from the discounting, carried to the credit of Chester Haring's account on the books of the plaintiffs, was a discharge of the guarantors on said guarantee, provided the debt now sued for was included in the sum total of said account, on account of which said promissory notes were taken and receipted for. \n6. That if the said notes, mentioned in said receipt, were received as conditional payments of said debt, the defendants are discharged, unless it be proved that due diligence has been used to recover the amount called for by said notes from the individuals responsible thereon, and that the same could not be obtained. \n7. That the plaintiffs, by accepting said notes on account of said debt, from C. Haring, the principal debtor, with D. Greenleaf as indorser, on account of said debt, the same being at that time due, and receiving the money on the same by discounting them, and the passing said notes away by indorsement, could not have sued Haring for the original debt, before said notes fell due, dishonoured and returned to the plaintiffs; and that, therefore, they by their own act placed it out of their power to proceed against said Haring, to recover said debt, before said notes  fell due and were returned to the plaintiffs, which, in law, discharge the guarantors. \nThere was another exception, but it was withdrawn from the cause by the defendants; and that, as well as another respecting the refusal of the court to sign the bill of exceptions, without incorporating in it the evidence given at the trial, may be dismissed without commentary. It is proper to add, however, that the conduct of the court in relation to the bill of exceptions constitutes no just matter of error revisable in this form of proceeding; and if it did, we see no reason to question the propriety of its conduct upon the present occasion. It is manifestly   proper for the court to require that all the evidence which is explanatory of the true points of the exceptions should be brought before the appellate court, to assist it in forming a correct judgment. \nThe question involved in the first instruction is, whether the guarantee contained in the letter is a limited or a continuing guarantee; or, in other words, whether it covered advances, acceptances and indorsements, in the first instance to the amount of eight thousand dollars, and terminated when these were discharged;  or whether it covered successive advances, acceptances and indorsements made to the same amount at any future times, toties quoties, whenever the antecedent transactions were discharged. Upon deliberate consideration, we are of opinion, that it is a continuing guarantee; and we found ourselves upon the language, and the apparent intent and object of the letter. Every instrument of this sort ought to receive a fair and reasonable interpretation, according to the true import of its terms. It being an engagement for the debt of another, there is certainly no reason for giving it an expanded signification, or liberal construction beyond the fair import of the terms. It was observed by this court in Russell v. Clarke's Executors, 7 Cranch, 69, S.C. 2 Peters's Cond. Rep. 417, that \"the law will subject a man, having no interest in the transaction, to pay the debt of another only when his undertaking manifests a clear intention to bind himself for that debt. Words of doubtful import ought not, it is conceived, to receive that construction.\" On the other hand, as these instruments are of extensive use in the commercial world, upon the faith of which large credits and advances are made,  care should be taken to hold the party bound to the full extent of what appears to be his engagement; and for this purpose it was recognized by this court in Drummond v. Prestman, 12 Wheat. Rep. 515 as a rule in expounding them, that the words of the guarantee are to be taken as strongly against the guarantor as the sense will admit; Fell on Guarantee, ch. 5, p. 129, &c.: and the same rule was adopted in the king's bench in Mason v. Pritchard, 12 East's Rep. 227. \nIf we examine the language or object of the present letter, we think it is difficult to escape from the conclusion, that it  was intended, and was understood by all the parties as a continuing guarantee. There is no doubt that it was so interpreted by the plaintiffs. The object is to assist Haring in business: \"our friend Mr Chester Haring,\" to assist him \"in business, may require your aid.\" It was not contemplated to be a single transaction, or an unbroken series of transactions for a limited period. The aid required was to be \"from time to time, either by acceptance or indorsement of his paper, or advances in cash.\" The very nature of such negotiations, with reference to the business of the party, unless other  controlling words accompanied them, would seem to indicate a succession of acts at different periods, having no definite termination, or necessary connexion with each other. The language of the letter then proceeds: \"in order to save you from harm in so doing, we do hereby bind ourselves, &c. to be responsible to you at any time, for a sum not exceeding eight thousand dollars, should the said Chester Haring fail so to do.\" It is difficult to satisfy this language without giving to the guarantee a continuing operation. The parties agree to be responsible at any time for a sum not exceeding eight thousand dollars; and if so, is not the natural, nay necessary import, that the acceptances, indorsements and advances are not limited in duration; but that whenever made, and at whatever future times, the same responsibility shall attach upon them, not exceeding eight thousand dollars?We think that it would be difficult to give any other interpretation to the language; without subjecting mercantile papers to refinements and subtleties, which would betray innocent men into the most severe losses, by an unsuspecting confidence in them. That the language fairly admits of, if it does not absolutely  require this coustruction, cannot be doubted. If it does so, it is but common justice that it should receive this construction, in favour of innocent parties, who have made acceptances, indorsements and advances upon the faith of it; according to the rule already stated, that the words shall be taken as strongly against the party using them as the sense will admit. \nIt is rare, that in cases of guarantee the language of the instruments is such as to make the decision upon one an exact authority for that of auther. The whole words and clauses  are to be construed together, and that sense is to be given to each, which best comports with the general scope and intent of the whole. So far as authorities go, however, we think they are decidedly in favour of the interpretation which we have adopted. In Mason v. Pritchard, 12 East's Rep. 227, S.C. 2 Camp. 436, the words of the guarantee were, \"to be responsible for any goods he hath or may supply my brother with to the amount of one hundred pounds;\" and the court were of opinion that it was a continuing or standing guarantee to the extent of one hundred pounds, which might at any time become due for goods supplied until the  credit was recalled. That case was certainly founded upon words less expressive and cogent than those of the case before us. In Merle v. Wells, 2 Camp. Rep. 413, the guarantee was, \"I consider myself bound to you for any debt he (my brother) may contract for his business as a jeweller, not exceeding one hundred pounds, after this date. Lord Ellenborough held it a continuing guarantee for any debt not exceeding one hundred pounds, which the brother might from time to time contract with the plaintiffs in the way of his business; and that the guarantee was not confined to one instance, but applied to debts successively renewed. The case of Sansom v. Bell, 2 Camp. Rep. 39, before the same learned judge, is to the same effect. The case of Barton v. Bennet, 3 Camp. Rep. 220, was upon words far less stringent. There the guarantee was, \"I hereby undertake and engage to be answerable to the extent of three hundred pounds for any tallow or soap supplied by B. to F and B., provided they shall neglect to pay in due time.\" Lord Ellenborough held it a continuing guarantee, principally upon the force of the word any; but the case went off upon another point. \nThe cases cited on the other side  are all distinguishable. Kirby v. The Duke of Marlborough,  2 Maule and Selw. 18, turned upon the ground that the whole recital of the bond showed that a limited guarantee, for advances to a definite amount, when they were made the guarantee, became functus officio. In Melville v. Hayden, 3 Barn. and Ald. 593 the guarantee was, \"I engage to guaranty the payment of A. to the extent of sixty pounds at quarterly account, bill two months,  for goods to be purchased by him of B.;\" and the court held, that it was not a continuing guarantee, as the words \"quarterly account\" imported only the first quarterly account; and relied on the word \"any\" in Mason v. Pritchard, as distinguishing that case from the one before them. The case of Rogers v. Warner, 8 Johns. Rep. 119 was on a guarantee in these words.\"If A. and B., our sons, wish to take goods of you on credit, we are willing to lend our names as security for any amount they may wish;\" and the court held it to be a limited guarantee for a single credit. It is observable, that here no words of continuing credit, such as \"from time to time,\" or \"at any time\" are used; so that the whole language is satisfied by one  transaction. It is, therefore, strongly distinguishable from that before this court. \nWe cannot admit, therefore, as has been contended at the bar, that the courts have inclined to vary the rule of construction of instruments of this nature, and to hold them to be strictissimi juris, as to their interpretation. And we are well satisfied, that the authorities in no degree interfere with the construction which we have given to the terms of the present letter. The court below were, then, right in refusing the first instruction. \nThe second instruction insists, that to entitle the plaintiffs to recover on the guarantee, they must prove that notice had been given to the defendants of that fact in a reasonable time after the guarantee had been accepted. Whether there was not evidence before the jury sufficient to have justified them in drawing the conclusion that there was such notice, we do not inquire. It is sufficient for us to declare, that in point of law, the instruction asked was correct, and ought to have been given. A party giving a letter of guarantee has a right to know whether it is accepted, and whether the person to whom it is addressed means to give credit on the footing  of it, or not. It may be most material, not only as to his responsibility, but as to future rights and proceedings. It may regulate, in a great measure, his course of conduct and his exercise of vigilance in regard to the party in whose service it is given. Especially is it important in the case of a continuing guarantee, since it may guide his judgment in recalling or suspending it. \n The third instruction insists, that to entitle the plaintiffs to recover on the guarantee, they must prove that, in a reasonable time after they had made advances, acceptances or indorsements for Haring on the faith of the guarantee, they gave notice to the defendants of the amount and extent thereof. If this had been the case of a guarantee limited to a single transaction, there is no doubt that it would have been the duty of the plaintiffs to have given notice of the advances, acceptances or indorsements made to Haring, within a reasonable time after they were made. But this being a continuing guarantee, in which the parties contemplated a series of transactions, and as soon as the defendants had received notice of the acceptance, they must necessarily have understood that there would  be successive advances, acceptances and indorsements, which would be renewed and discharged from time to time, we cannot perceive any ground of principle or policy, upon which to rest the doctrine that notice of each successive transaction, as it arose, should be given. All that could be required would be, that when all the transactions between the plaintiffs and Haring under the guarantee were closed, notice of the amount for which the guarantors were held responsible, should, within a reasonable time afterwards, be communicated to them. And if the instruction had asked nothing more than this, we are of opinion, upon principle, as well as upon the authority of Russell v. Clarke's Executors, 7 Cranch, 69, S.C. 2 Peters's Cond. Rep. 417; and Edmondston v. Drake, 5 Peters's Rep. 624, that it ought to have been given. Oxley v. Young, 2 H. Bl. 613; Peel v. Tatlock, 1 Bos. and Pull. 419. But it goes much further, and requires, in the case of a continuing guarantee, that every successive transaction under it should be communicated from time to time. No case has been cited which justifies such a doctrine, and we can perceive no principle of law which requires it. The instruction was  therefore properly refused. \nThe fourth instruction insists, that a demand of payment should have been made of Haring, and, in case of non-payment by him, that notice of such demand and non-payment should have been given in a reasonable time to the defendants, otherwise the defendants would be discharged from their guarantee.  We are of opinion that this instruction ought to have been been given. By the very terms of this guarantee, as well as by the general principles of law, the guarantors are only collaterally liable upon the failure of the principal debtor to pay the debt. A demand upon him, and a failure on his part to perform his engagements are indispensable to constitute a casus foederis. The creditors are not indeed bound to institute any legal proceedings against the debtor, but they are required to use reasonable diligence to make demand, and to give notice of the non-payment. The guarantors are not to be held to any length of indulgence of credit which the creditors may choose; but have a right to insist that the risk of their responsibility shall be fixed, and terminated within a reasonable time after the debt has become due 1 . The case of Allen v. Rightmere,  20 Johns. Rep. 365, is distinguishable. There the note was payable to the defendant himself or order, at a future day, and he indorsed it with a special guarantee of its due payment; and the court held his engagement absolute, and not conditional. \nThe fifth instruction insists that the promissory notes mentioned in the receipt of the 1st of May 1829, when discounted, and the proceeds carried to the account of Haring, operated a discharge of the guarantors, provided the debt sued for was included in the sum  total of the account for which those notes were received.We think that the court were not bound under the circumstances to give this instruction.It proceeds upon the ground, that the notes were necessarily received as an absolute payment, a fact which the court had no right to assume, and that, by indorsing the notes and procuring the same to be discounted and credited in the account, the guarantee was, per se, discharged. This is not correct in point of law; for if the plaintiffs, by their indorsements, were compellable to pay, and did afterwards pay the notes upon their dishonour  by the maker, and these notes fell within the scope of the guarantee, they might, without question, recover the amount from the guarantors. \n The sixth instruction asserts, that if the notes mentioned in the receipt, were received as conditional payments of the said debt, the defendants are discharged, unless it is proved that due diligence had been used to recover the amount of them from the individuals responsible thereon, and that the same could not be obtained. If, by the word \"recover,\" were here intended a recovery by a suit at law, the proposition could not be maintained. But if, as we suppose, it is used in the sense of collect or obtain; its correctness, as a general proposition in cases of conditional payments of debts by notes, is admitted. He who receives any note upon which third persons are responsible, as a conditional payment of a debt due to himself, is bound to use due diligence to collect it of the parties thereto at maturity, otherwise by his laches the debt will be discharged. The difficulty is in applying the doctrine to the circumstances of the present case in the actual form in which it is propounded in the instruction. It assumes, as matter  of fact, what the court cannot intend, that the notes were received as conditional payment. It does not assert what the debt is to which it alludes; though it probably refers to the debt stated in the account connected with the receipt. Now, that account is not in terms sued for; but certain drafts amounting to eight thousand dollars, accepted and indorsed, and paid by the plaintiffs: and whether they were included in the account or not, was matter of evidence and not matter of law. Although then the instruction asserted a proposition generally true in point of law, it is not clear, that, in the very terms in which it is propounded, with reference to the case in judgment, the court were bound to give it, since it involved matters of fact. \nThe seventh instruction is open to a similar objection. It manifestly assumes, as its basis, general questions of fact, upon whichf the court had no right to pronounce judgment. It also supposes that the debt sued for is wholly confined to the account, and that the notes referred to were not within the scope of the guarantee, and, if paid by the plaintiffs, could not be recovered by the defendants; which is far from being admitted. Indeed,  this, and several of the preceding instructions proceed upon the ground, that the guarantee was a limited  and not a continuing guarantee, which construction has been already overturned. \nUpon the whole, we are of opinion that the court below erred in refusing the second and fourth instructions prayed by the defendants, and that for these errors the judgment must be reversed, and the cause remanded to the district court of Mississippi with directions to award a venire facias de novo. \nThis cause came on to be heard on the transcript of the record from the district court of the United States for the district of Mississippi, and was argued by counsel: on consideration whereof, it is the opinion of this court that the court below erred in refusing the second and fourth instructions prayed by the defendants, and that for these errors the judgment must be reversed. Whereupon, it is adjudged and ordered by this court, that the judgment of the said district court in this cause be, and the same is hereby reversed, and that this cause be, and the same is hereby remanded to the said district court with directions to award a venire facias de novo. \n \n\n ", " \nOpinion \n\n \n \n  Mr Justice STORY delivered the opinion of the Court. \nThis cause comes before the court upon a certificate of division of opinion of the judges of the circuit court for the district of North Carolina. The defendant, Abel Turner, was indicted for the forgery of, and an attempt to pass, &c. a certain paper writing in imitation of, and purporting to be a bill or note issued by the president, directors and company of the Bank of the United States. The indictment contained several counts, all founded upon the eighteenth section of the act of the 10th of April 1816, ch. 44, establishing  the Bank of the United States. Upon the trial of the cause it occurred as a question, whether the attempt to pass the counterfeit bill in the indictment mentioned, knowing the same to be counterfeit, the said bill being signed with the name of John Huske, who had not at any time been president of the Bank of the United States, but at the time of the date of the said counterfeit bill was the president of the office of discount and deposit of the Bank of the United States at Fayetteville, and countersigned by the name of John W. Sandford, who at no time was cashier of the Bank of the United States, but was, at the date aforesaid, cashier of the said office of discount and deposit, was an offence within the provisions of the act. Upon this question the court, being divided in opinion, ordered the same to be certified to this court. \n The bill or note itself is not set forth in haec verba, except in the count on which the question arose, and which charges that the defendant, with force and arms, &c. \"feloniously did attempt to pass to one S.E. as and  for a true and good bill or note, a certain false, forged and counterfeit paper writing, the tenor of which, &c.  is as follows, 'the president, directors and company of the Bank of the United States promise to pay twenty dollars on demand, at their office of discount and deposit in Fayetteville, to the order of D. Anderson, cashier thereof, Philadelphia, the 4th of July 1827, John W. Sandford, cashier, John Huske, president,' with intent to defraud the president, directors and company of the Bank of the United States.\" The bill therefore purports on its face to be signed by persons who are respectively president and cashier of the bank. \nOne of the fundamental articles of the charter (sect. 11, art. 12) declares that the bills and notes which may be issued by order of the corporation, signed by the president and countersigned by the cashier, promising the payment of money to any person or persons, his, her or their order, or to bearer, shall be binding and obligatory on the same. So that the present counterfeit bill purports to be signed by officers, who were the proper officers to sign the genuine bills of the bank. \nThe persons named in the counterfeit bill not being in fact the president and cashier, although so called; the question arises, whether the party is liable to indictment for an  attempt to pass it, under the eighteenth section of the act of 1816. \nWe are of opinion, that he is, within the words and true intent and meaning of the act. The words of the act are, \"if any person shall falsely make, &c., or cause or procure to be falsely made, &c., or willingly aid or assist in falsely making, &c., any bill or note in imitation of, or purporting to be a bill or note issued by order of the president, directors and company of the said bank, &c. &c.; or shall pass, utter or publish, or attempt to pass, utter or publish as true any false, &c. bill or note, purporting to be a bill or note issued by the order of the president, directors and company of the said bank, &c., knowing the same to be falsely forged or counterfeited, &c., every such person, &c. &c.\" The case, therefore, falls directly within the terms of the act. It is an attempt to pass a false  bill or note as true, purporting to be a bill or note issued by the order of the president, directors and company; for the word \"purport\" imports what appears on the face of the instrument.Jones's Case, Douglas, 802; 2 Russell on Crimes, b. 4, ch. 32, sec. 1, p. 345, 346, 2d edition; Id. 363 to 367. The  preceding clause of the section very clearly shows this to be the sense of the word in this connexion. It is there said, if any person shall falsely make, &c. any bill \"in imitation of or purporting to be a bill,\" &c. where the words \"in imitation of\" properly refer to counterfeiting a genuine bill, made by the proper, authorized officers of the bank; and the words \"or purporting to be,\" properly refer to a counterfeit bill, which on its face appears to be signed by the proper officers. In the view of the act then, it is wholly immaterial whether the bill attempted to be passed be signed in the name of real or fictitious persons, or whether it would, if genuine, be binding on the bank or not. \nAnd it is equally clear, that the policy of the act extends to the case. The object is to guard the public from false and counterfeit paper, purporting on its face to be issued by the bank. It could not be presumed that persons in general would be cognizant of the fact, who at particular periods were the president and cashier of the bank. They were officers liable to be removed at the pleasure of the directors; and the times of their appointment or removal, or even their names, could not  ordinarily be within the knowledge of the body of the citizens. The public mischief would be equally great, whether the names were those of the genuine officers, or of fictitious or unauthorized persons; and ordinary diligence could not protect them against imposition. 2 East's P.C. ch. 19, sec. 44, p. 950; 2 Russell on Crimes, b. 4, ch. 32, sec. 1, p. 341, 2d edition. \nUpon examining the English authorities upon the subject of forgery and the utterance of counterfeit paper, they appear to us fully to justify and support a similar doctrine. It is, for instance, clearly settled that the making of a false instrument, which is the subject of forgery, with a fraudulent intent, although in the name of a non-existing person, is as much a forgery as if it had been made in the name of a person known to exist, and to whom credit was due. 2 Russell on Crimes.  b. 4, ch. 32, sec. 1, 2d edition, p. 327 to 333, and the cases there cited; Id. 470, 474; 2 East, P. Cr. ch. 19, sec. 38, p. 940. Nor is it material whether a forged instrument be made in such a manner, as that if in truth it were such as it is counterfeited for, it would be of validity or not. This was decided as long  ago as Deakins's case, 1 Siderf. Rep. 142; 1 Hawk. Pl. Cr. ch. 70, sec. 7; 2 East, P.C. ch. 19, sec. 43, p. 948. Nor is it any answer to the charge of forgery, that the instrument is not available, by reason of some collateral objection not appearing upon the face of it. 2 Russell on Crimes, b. 4, ch. 32, sec. 1, 2d edition, p. 337 to 341; Id. 470 to 474. \nSo that upon the words and policy of the act itself, as well as upon the footing of authority, we are of opinion, that the offence stated in the division of opinion is within the act of 1816. And we shall accordingly certify this to the circuit court. \nThis cause came on to be heard on the transcript of the record from the circuit court of the United States for the district of North Carolina, and on the question and point on which the judges of the said circuit court were opposed in opinion, and which was certified to this court for its opinion, agreeably to the act of congress in such case made and provided, and was argued by counsel: on consideration whereof, it is the opinion of this court, that the attempt to pass the counterfeit bill in the indictment in the proceedings mentioned under the circumstances in the said certificate  of division of opinion mentioned, is an offence within the provisions of the act of congress stated in the same certificate: whereupon, it is adjudged and ordered by the court, that it be certified to the said circuit court for the district of North Carolina, that the attempt to pass the counterfeit bill in the indictment in the proceedings mentioned under the circumstances in the said certificate of division of opinion mentioned, is an offence within  the provisions of the act of congress stated in the same certificate. \n \n\n ", " \nOpinion \n\n \n \n  Mr Justice STORY delivered the opinion of the Court. \nThe principal question in the case is, whether the plaintiff, Blake, has entitled himself to a re-conveyance  of the land in controversy against the judgment creditor, Erwin; the same land having been sold upon execution, and being, by the laws of Tennessee, redeemable by the owner at any time within two years after the sale: and that question turns upon this, whether the judgment has been according to those laws duly discharged within the two years by the judgment debtor. It is clear from the evidence, that Fulton, as attorney of Erwin, did give a receipt discharging the whole of the claim under the judgment, amounting, on the last day, when the land was redeemable, to one thousand five hundred and one dollars and seventeen cents: and if he either had an original authority so  to do, or his acts have since been confirmed by Erwin, then Blake is entitled to the relief sought by the bill. \nIt is material, in the first place, to state, that the original demand on which the judgment was rendered, was, before the suit was brought, assigned by Erwin to one M'Connell; and that the suit was commenced and carried on through all its stages by Fulton, for and under the direction of M'Connell, although in the name of Erwin: and the latter never interfered in the suit until after the judgment  had, by the redemption of Brittain's prior judgment, been levied, and fixed as a lien on the land. Now, it cannot be doubted that if the assignment to M'Connell was never rescinded, he alone had a right to control the judgment and the levy, and the subsequent proceedings as to the redemption by Blake. And in point of fact, he was not only connusant of, but party to the arrangement made by Fulton with Blake, by which the judgment claim against the land was discharged. Was then the assignment antecedently rescinded? Erwin in his answer affirms that it was, but the evidence in the cause does not support his averment: on the contrary, it is established by Erwin's own acknowledgement, in his letter of the 6th of September 1826, that M'Connell continued to have an interest in it until long after all these transactions; and M'Connell, in his testimony, asserts his own claim in the most positive manner: so that, at most, the case cannot be judicially treated as one where there had been a total rescision of the assignment; but only subsequent negotiations, out of which other equities connected with it arose between the parties. \nBut, assuming that the assignment had been rescinded, still  it is clear that Erwin adopted the acts of M'Connell in regard to the suit, and recognized Fulton as his attorney in the conduct of it. He never repudiated him as his attorney, and never gave any notice to Blake that he had not as complete authority in the premises as any other attorney in the management of a suit at law. Now it is not denied that an attorney at law, in virtue of his general authority as such, is entitled to take out execution upon a judgment recovered by him for his client, and to procure a satisfaction thereof by a levy on lands or otherwise, and to receive the money due on the execution; and thus to discharge the execution. And if the judgment debtor has a  right to redeem the property sold under the execution within a particular period of time, by payment of the amount to the judgment creditor, who has become the purchaser of the property, there is certainly strong reason to contend that the attorney is impliedly authorized to receive the amount, and thus indirectly to discharge the lien on the land. At least, if (as is asserted at the bar) this be the common course of practice in the state of Tennessee,  it will furnish an unequivocal  sanction for such an act. \nBut it is not necessary in the present case to rely on this ground, if Erwin did in fact give an express general authority to Fulton to act in the premises, or if he has since ratified the acts of Fulton in discharging the judgment. Some of the judges are of opinion, that the evidence in the case establishes that Erwin expressly delegated to Fulton general authority to act in the premises, and to receive the money due under the judgment, according to his own discretion; and that the direction of Erwin to Fulton to demand the payment in specie, was not intended to operate as a positive restriction upon that discretion, but was merely a strong expression of the wishes of Erwin on the subject. Fulton, in his deposition, states, that Erwin \"called upon Kincannon to bear witness that he had appointed me his attorney in the business, and that I was authorized to receive the money upon the claim; and that whatever I should do upon the subject, he would abide by.\" Kincannon fully confirms this statement in his deposition; and says, \"Mr Erwin did call on me to bear witness that Mr Fulton was fully authorized to transact the whole business for him. From all that  was said by Mr Erwin, I did believe that any course taken by Mr Fulton would be sanctioned by him, and that he would be found to all intents and purposes by his acts.\" And he adds, in another place, \"it was my understanding, and I thought from all that was said by Mr. Erwin, that it was so understood by himself and all others present, that Mr Fulton was fully authorized to act for Mr Erwin in relation to the whole matter. Mr Erwin did say, that he would ratify or sanction Mr Fulton's acts, or words of that import.\" The conversation here detailed is a part of the same conversation between the parties, in which the direction was given by Erwin to Fulton to demand specie in payment; and therefore it  may properly be taken into consideration as a qualification of that direction. \nOthers of the judges are of opinion, that, taking the fair scope of the language of Erwin in his letters to Fulton after the transaction, it amounts to a ratification of the acts of Fulton. Thus in his letter of the 8th of September 1826, written after M'Connell (as it admits) had given him information of what had been done, he says, \"this of course is not a compliance with the law, and I am induced  to think they cannot now have even a probable right to claim the land, as the deed is now in my name. They cannot claim any indulgence granted by any one except you and myself, no one else having authority to grant any. whatever you may [have] authorized others to do in your absence, in accordance with my instructions, or yours, of course will be adhered to by me; but nothing more.\" Now, these expressions are very significant as to the extent of the original authority given to Fulton. They show that specie was not absolutely to be insisted upon, or payment at the time absolutely required; for it is admitted, that indulgence might be granted by Fulton; \"no one else having authority to grant any.\" And as to the point of ratification, the language is still more direct, for it is declared that whatever had been done in Fulton's absence, in accordance with his instructions, would be adhered to. Now, at this time, Fulton had ratified all Porterfield's acts, and indeed, except as to the giving time for a small part of the money, Porterfield had not deviated from his original instructions. On the 9th of September Fulton wrote to Erwin, giving him a full account of all the transactions,  and why he had deviated \"from the strict letter of his instructions.\" And he also sent to Erwin the one thousand three hundred and five dollars received by him; and offered to pay him the remaining sum of two hundred dollars then due. In the reply of Erwin to this letter on the 12th of September, he declines receiving the money, for reasons, which (he says) he will explain, when he has the pleasure to see Fulton; and adds, \"my course I am sure, on explanation, will be satisfactory to you, major Porterfield and to M'Connell.\" But he no where in that letter expresses any disapprobation of the conduct of Fulton; and he does not attempt to qualify the language of his former letters, or to disavow the acts of Fulton as a breach of his instructions.  His object seems to have been, without returning the money to Fulton or to Blake, or doing any positive act, to retain the whole affair in its then state, that he might make use of any doubts as to the extinguishment of his claim, for his own advantage in other business. \"The judgment\" (says he) \"is in my name, and I alone can control it. I am fully aware of the hold I now maintain over Garner, or rather over Blake's land, and I  am determined to use it towards the security of my other claims.\" Under these circumstances, the evidence is deemed fairly to establish the conclusion, that the acts of Fulton were ratified by Erwin; and never were intended to be repudiated by him. Upon these grounds, and for these reasons, it is the opinion of the court, that the plaintiff is entitled to the relief sought by his bill. But it ought not to be granted, except upon the terms, that all the money due at the time when the land was redeemed by the plaintiff, should be paid over to the debtor. The balance of two hundred dollars does not appear ever to have been paid by Dickson; and the one thousand three hundred and five dollars and seventeen cents, for aught that appears in the record, is still in the hands of Talbert, and never has been received by Erwin. The decree of the circuit court, granting relief, must therefore be varied, so far as to make it dependent upon the payment of the whole one thousand five hundred and five dollars and seventeen cents to Erwin. \nThis cause came on to be heard on the transcript of the record from the circuit court of the United States for the district of West Tennessee, and was argued  by counsel: on consideration whereof, it is ordered, adjudged and decreed by this court, that upon the full payment by the said Blake, of the sum of one thousand five hundred and five dollars and seventeen cents, due on the judgment of the said Erwin against the said Blake, as in the proceedings mentioned, or so much thereof as has not been already received by the said Erwin in satisfaction thereof -- the said money to be paid to the said Erwin personally, or brought into the circuit court for his use; all the estate,  right, title and interest in the said tract of land, in the proceedings mentioned, which was vested in the said Erwin by the deed executed to him by James Brittain, bearing date the 21st day of August  1826, in the proceedings mentioned, and under and in virtue of the judgment of the said Erwin, levied on the same as in the same proceedings mentioned, ought to be, and hereby is, declared to be restored to, and revested in him, the said Blake, and his heirs and assigns, in the same manner as if the same tract of land had not been sold to satisfy the judgment of the said Brittain in the proceedings mentioned. And it is further ordered, adjudged and  decreed, that the said Erwin, upon the payment of the said money as aforesaid, do forthwith, by a suitable deed and conveyance, convey the same estate, right, title and interest, in and to the same tract of land, to the said Blake and his heirs and assigns accordingly. And it it is further ordered, adjudged and decreed, that upon the payment of the said money as aforesaid, all further proceedings in the action of ejectment brought for the recovery of the said tract of land in the proceedings mentioned be, and the same are hereby perpetually stayed and enjoined; and that in the meantime, and until such payment, no further proceedings be hal in the said action. And it is further ordered, adjudged and decreed, that the decree of the circuit court, so far as it differs from this decree be, and the same is hereby reversed, and that in all other respects it be, and is hereby affirmed: and that this cause be, and the same is hereby remanded to the circuit court for further proceedings, to carry the present decree into effect. \n \n\n ", " \nOpinion \n\n \n \n  Mr Justice STORY delivered the opinion of the Court. \nThis is the case of a libel for a salvage service performed by the libellant, the master and owner of the sloop Liberty, and by his crew; in saving certain goods and merchandises on board of the brig Spark while aground on the bar at Thomas's Point in the Chesapeake Bay. The goods were owned by a number of persons, in several and distinct rights; and a general claim and answer was interposed in behalf of all of them by Jarvis and Brown (the owners of a part of them); without naming who in particular the owners were, or distinguishing their separate  proprietary interests. This proceeding was doubtless  irregular in both respects. Jarvis and Brown had no authority merely as co-shippers to interpose any claim for other shippers with  whom they had no privity of interest or consignment: and several claims should have been interposed by the several owners, or by other persons authorized to act for them in the premises, each intervening, in his own name, for his proprietary interest, and specifying it. If any owner should not appear to claim any particular parcel of the property, the habit of courts of admiralty is, to retain such property, or its proceeds, after deducting the salvage, until a claim is made, or a year and a day have elapsed from the time of the institution of the proceedings. And when separate claims are interposed, although the libel is joint against the whole property, each claim is treated as a distinct and independent proceeding, in the nature of a several suit; upon which there may be a several independent hearing, decree and appeal. This is very familiar in practice in prize causes and seizures in rem for forfeitures; and is equally applicable to all other proceedings in rem, whenever there are distinct and independent claimants. The irregularity (such  as it is) in the present case, is however of no importance; as the parties, by their agreement of record, have agreed that separate appeals should be filed from the decree of the district court for each of the owners, as specified in a list subjoined thereto, and that the cause should be considered and treated as if such separate appeals were filed, and that none of the appellants should have any privileges or advantages which would not appertain to them if such appeal were a separate one. This agreement in legal effect, creates the very severance which the original claim and answer ought to have propounded in due form. \nAt the trial, in the district court, upon the allegations and proofs in the cause, there was no controversy as to the salvage service; and the case was reduced to the mere consideration of the amount to be awarded as salvage. The district court decreed a salvage of one-fifth of the gross proceeds of the sales of the goods and merchandises, and directed the same to be sold accordingly. The salvage thus decreed was afterwards ascertained upon the sales, to b e in the aggregate two thousand seven hundred and twenty-eight dollars and thirty-eight cents; but no formal  apportionment thereof was made. From this decree an appeal was interposed in behalf of all the owners of the goods and merchandises to the circuit court; but no appeal was  interposed by the libellant. The consequence is, that the decree of the district court is conclusive upon him as to the amount of salvage in his favour. He cannot, in the appellate court claim any thing beyond that amount, since he has not, by any appeal on his part controverted its sufficiency. Although no apportionment of the salvage among the various claimants was formally directed to be made by any interlocutory order of the district court, an apportionment appears to have been in fact made under its authority. A schedule is found in the record containing the names of all the owners and claimants, the gross sales of their property, and the amount of salvage apportioned upon each of them respectively. By this schedule the highest salvage chargeable on any distinct claimant is nine hundred and six dollars and seventeen cents, and the lowest forty-seven dollars and sixty cents; the latter sum being below the amount for which an appeal by the act of the 3d of March 1803, ch. 93, is allowed from a  decree of the district court in admiralty and maritime causes. \nUpon an appeal, the circuit court reversed the decree of the district court, and awarded one-twentieth part (instead of one-fifth) of the gross sales as salvage; and from this latter decree the libellant has appealed to this court. \nThe first question is, whether this court has jurisdiction to entertain the appeal, the aggregate amount of the whole salvage exceeding the sum of two thousand dollars; but that which is due or payable by any distinct claimant being very far short of that sum. The argument in favour of the jurisdiction is, that the salvage service is entire, and the decree is for a specified proportion or aliquot part of the whole of the gross sales; and therefore it is chargeable upon the proceeds as an entirety, and not upon the separate parcels thereof, according to the interests of the separate owners. We are of a different opinion. In the appeal here, as in that from the district court, the case of each claimant having a separate interest must be treated as a separate appeal, pro interesse suo, from the decree, so far as it regards that interest; and the salvage chargeable on him constitutes the whole  matter in dispute between him and the libellant: with the fate of the other claims, however disposed of, he has and can have nothing to do. It is true that the salvage service was in one sense entire; but it certainly  cannot be deemed entire for the purpose of founding a right against all the claimants jointly, so as to make them all jointly responsible for the whole salvage. On the contrary, each claimant is responsible only for the salvage properly due, and chargeable on the gross proceeds or sales of his own property pro rata. It would otherwise follow that the property of one claimant might be made chargeable with the payment of the whole salvage, which would be against the clearest principles of law on this subject. The district and circuit courts manifestly acted upon this view of the matter; and their decrees would be utterly unintelligible upon any other. Their decrees, respectively, in giving a certain proportion of the gross sales, must necessarily apportion that amount, pro rata, upon the whole proceeds, according to the distinct interests of each claimant. We are therefore of opinion, that we have no jurisdiction to entertain the present appeal in regard  to any of the claimants; and the cause must for this reason be dismissed. The district court, as a court of original jurisdiction, has general jurisdiction of all causes of admiralty and maritime jurisdiction, without reference to the sum or value of the matter in controversy. But the appellate jurisdiction of this court and of the circuit courts, depends upon the sum or value of the matter in dispute between the parties, having independent interests. \nAppeal dismissed accordingly. \n \n\n ", " \nOpinion \n\n \n \n  Mr Justice STORY delivered the opinion of the Court. \nThis is the case of a libel in rem, upon a bottomry bond, originally instituted in the district court of the district of Maryland, and thence brought by appeal to the circuit court, and thence by appeal to this court. The ship Virgin belonged to Baltimore, and being in Amsterdam, in the kingdom of Holland, in November 1822, bond was there given to the libellant by the master, for the sum of three thousand two hundred dollars, and maritime interest at the rate of ten per cent, for advances asserted to be made by the libellant to supply the necessities of the ship on a voyage from Amsterdam to Baltimore. The voyage was duly performed; and the bottomry loan not being paid by the owners, proceedings were duly commenced for the recovery thereof, and  the suit has been protracted to the present period. The owners interposed a claim and defensive allegation, denying the validity of the bond: and at the hearing in the district court, a decree was entered, affirming its validity, and awarding to the libellants the full amount of the bottomry bond, with interest at the rate of six per cent from the filing of the libel. The circuit court, on the appeal, reversed this decree, pronounced the bottomry bond invalid, and then proceeded to entertain the suit in personam against the owners; holding them liable for the necessary supplies and repairs of the ship, in the same manner as if the suit had been originally commenced in personam against the owners. And after some interlocutory proceedings, the circuit court awarded a final decree against the owners, for the sum of two thousand nine hundred dollars, being the amount ascertained by a report of commissioners, as \"expenditures  and advances absolutely necessary, and made in the course of the usual employment of the ship,\" with interest from the time of the decree, until the payment of the amount thereof. From this decree both parties have appealed to this court, and the cause  now stands upon the argument for a final decision. \nThe first question is, whether the bottomry bond was valid in its origin, and constituted a good lien on the ship. Several objections have been taken to its validity. In the first place, it is said, that the bottomry bond, though taken in the name of the libellant, Vyfhius, was, in fact, taken in trust, and for the benefit of Vanstaphorst and company, who were the consignees of the ship and cargo, and had ample funds of the owners in their hands to meet the necessary expenditures, if any were necessary; and therefore, they cannot now subject the ship to a bottomry lien. But we do not think that this objection is sustained as matter of fact by the evidence in the case. The only testimony to support it is a loose statement of Schimmelpennick, one of the partners of the house of Vanstaphorst and company; who stated to a witness, \"that the expenses of the Virgin had amounted to about eight thousand guilders, and that they would not be so foolish as to make such an expense for Delpat, without securing themselves by a bottomry.\" This language is quite equivocal, and admits of different interpretations; and it does not appear upon what  occasion, or under what circumstances it was used. It may mean, that they had declined to make the advances without a bottomry bond, without meaning to affirm, that one had been actually taken for their benefit. But, what is most important in the case, this declaration cannot be competent evidence against Vyfhius; who is not shown to have had any knowledge of it, or to have been in privity with Schimmelpennick; so that, as to him, it is the mere hearsay of a third person. And on the other hand, the master of the Virgin expressly disclaims any knowledge, that any of the advances were made by Vanstaphorst and company, and affirms that they were made by Vyfhius, at his request, through the instrumentality of a broker. We may then dismiss all further consideration of this objection, since the bottomry bond is not traced home to Vanstaphorst and company. \n The next objection is, that the advances were not necessary for the supplies and  repairs of the ship. This objection is not now fairly open upon the record. The second and last report of the commissioners expressly finds, that the sum of two thousand nine hundred dollars of the advances was absolutely necessary  for the ship, as expenses and repairs in the common course of her employment. No exception was taken to this report by either party, and it was accordingly confirmed by the circuit court; so that it is not now open for review in this court, there not being any thing on its face impeaching its correctness. It is true, that the bottomry bond was taken for a larger amount; but that furnishes no ground of objection to the bond, except for the surplus; for a bottomry bond may be good in part, and bad in part; and it will be upheld by courts of admiralty, as a lien to the extent to which it is valid; as such courts, in the exercise of their jurisdiction, are not governed by the strict rules of the common law, but act upon enlarged principles of equity. There are many authorities to this effect; but it is only necessary to cite the cases of The Augusta, 1 Dodson's R. 283; The Tartar and the Nelson, 1 Hag. Adm. R. 169, 176. And, indeed, except so far as regards the maritime interest of ten per cent, the question would be unimportant; for it is notorious, that in foreign countries, supplies and advances for repairs and necessary expenditures of the ship, constitute, by the general maritime  law, a valid lien on the ship; a lien which might be enforced in rem in our courts of admiralty, even if the bottomry bond were, as it certainly is not, void in toto. \nThe next objection is, that the supplies and advances might have been obtained upon the personal credit of the owners, without an hypothecation. Now, the necessity of the supplies and advances being once made out, it is incumbent upon the owners, who assert that they could have been obtained upon their personal credit, to establish that fact by competent proofs, unless it is apparent from the circumstances of the case. Now, not only is there no proof to this effect upon the record, but it is fairly repelled by the testimony of the master, as well as by the other circumstances of the case. When the ship sailed on her vovage from Baltimore for Amsterdam, she was exclusively owned by Delplat; and she, as well as her cargo, a great part  of which was also owned by Delplat, was consigned to Vanstaphorst and company. Delplat failed during the voyage; and about that time assigned one third of the ship to Graf, and the other two thirds to other persons. The cargo, on the ship's arrival, was delivered, pursuant  to the consignment, to Vanstaphorst and company, and certainly could not be rightfully withheld from them under the bills of lading. Delplat, after deducting all his consignments, remained in debt to Vanstaphorst and company, in about nineteen thousand guilders. And after they were apprised of Delplat's failure, and after a negotiation of some weeks between them and the master for advances, they declined to make any to him; and he was thus compelled to obtain them elsewhere. \nIt is wholly immaterial in this case, whether Vanstaphorst and company had funds in their possession, which ought to have been advanced by them for the relief of the ship. It is sufficient to justify the master, that he could not obtain them; and the non existence of funds, and the non ability to get at them, must, as to the master, be deemed to be precisely equal predicaments of distress. It would not be very easy to convince any lender of money, that he could safely trust to the personal security of an insolvent debtor; and although Graf was not involved in the failure of Delplat, yet his title was acquired on the eve of Delplat's failure, and did not appear on the ship's papers, so that a cautious lender  might well hesitate as to the ability of the master to bind Graf; even if it had appeared, which it does not, that his personal security, given by an acknowledged agent, would have been satisfactory. But the truth is, that the master's testimony negatives any other adequate means of supplying the ship's necessities without resort to a bottomry bond; and there is not the least reason to suppose that he did not act with entire good faith, and from a consciousness that funds could not otherwise be obtained. It is certainly incumbent on the owners, if they assert that such means existed, to give some solid proofs in support of their assertion. \nThen, again, it is objected that the supplies and repairs were in the first instance made upon the master's credit. But how were they made? There is not a tittle of proof that the material men originally trusted to his personal credit exclusively,  waiving the lien which the foreign law would give on the ship for them, or the general responsibility of the owners. On the contrary, they might well trust to his credit, as auxiliary to these sources: and the fact that the master ordered the supplies and repairs before the bottomry bond  was given, can have no legal effect to defeat that security, if they were so ordered by the master, upon the faith and with the intention that a bottomry bond should ultimately be given to secure the payment of them. \nIn truth, in cases of this sort, the bottomry bond is in practice ordinarily given after the whole supplies and repairs have been furnished, for the plain reason that the advances required can rarely be ascertained with exactness until that period. In a case before lord Stowell, 1 an objection of a similar nature was taken, viz that the advances were made before the bottomry bond was taken; but that learned judge overruled it, and said that it was sufficient that it was the understanding of the parties at the time that the money should be secured by means of bottomry; and that it was of no consequence whether the money was advanced at once, and the bond immediately entered into, or whether the master received it from time to time in different sums, and gave a bond for the whole amount. And he added, what is very significant under the circumstances of the present case, that the party who lent the money, had a right, by the maritime law, to detain the ship and cargo  until the debt was repaid; and it was only by the means of the bond, that the owners had the benefit of the liberation of their property. \nIn the next place, it is objected that the advances were for a voyage not authorized by the  owners: that the original orders were for the master to get a freight for Baltimore or New York, and if he could not, then to proceed to New Orleans; whereas the master broke up his voyage and without any freight returned to Baltimore. Now, it may be admitted, that if a bottomry lender, in fraud of the owners, and by connivance with the master for improper purposes, advances his money on a new voyage, not authorized by the instructions of the owner, his bottomry bond may be set aside as invalid.  But there is no pretence to say that if the master does deviate from his instructions, without any participation or co-operation or fraudulent intent of the bottomry lender, the latter is to lose his security for his advances, bona fide made for the relief of the ship's necessities. In the present case there is no proof that Vyfhius ever saw the master's instructions; much less, that he fraudulently  co-operated with him in a wilful disobedience of the orders of the owner. A new and unexpected state of things had arisen. The owner had failed, and new owners had been substituted, with some of whom he had not had any communication. Under these circumstances he applied for advice to the friends of his former owners, and they advised him to return home; as not only prudent and proper, but as required by the change of ownership. His own judgment coincided with theirs; and there is no ground to assert that he did not act with entire good faith, and that under all the circumstances, the course adopted by him was not discreet and fit for such an emergency. To set aside a bottomry bond given under such circumstances, would be to impair in no small degree the general confidence of the commercial community in their security; and would overturn the great maritime policy upon which they have been hitherto held sacred and privileged liens. \nWe have thus considered the principal objections urged against the bottomry bond, and are of opinion that they are unmaintainable. The consequence is, that the bond must be upheld to the extent of the property pledged for the security of it. It has  been said that the seamen have a prior lien on the ship for their wages, and that the amount of the wages ought first to be deducted. Undoubtedly the seamen have such prior lien, but the owners are also personally liable for such wages; and if the bottomry holder is compelled to discharge that lien, he has a resulting right to compensation over against the owners, in the same manner as he would have if they had previously mortgaged the ship. \nBut in strictness, no such question arises on the present record. Graf, one of the owners, has had the ship delivered up to him upon an appraisement, at the value of eighteen hundred dollars; and he has given a stipulation according to the course of admiralty proceedings, to refund that value, together  with damages, interest and costs, to the court. He is not at liberty now to insist that the ship is of less than that value in his hands; or that he has discharged other liens diminishing the value for which the owners were personally liable, in solido, in the first instance. \nTo the extent, then, of the appraised value of the ship, delivered upon the stipulation, the owners are clearly liable; for she was pledged for the redemption  of the debt, and they cannot take the fund, except cum onere. But beyond this there is no personal obligation upon the owners. It has been correctly remarked by lord Stowell, 2 that the form of bottomry bonds is different in different countries, and so is their authority. In some countries they bind the owners; in others not; and where they do not, even though the terms of the bond should affect to bind the owners, that part would be insignificant; but it would not at all touch upon the efficiency of those parts, which have an acknowledged operation. In England and America the established doctrine is, that the owners are not personally bound, except to the extent of the fund pledged which has come into their hands. 3 To this extent, indeed, they may correctly be said to be personally bound; for they cannot subtract the fund, and refuse to apply it to discharge the debt. But in that case the proceeding against them is rather in the character of possessors of the thing pledged, than strictly as owners. In the present case, the value of the ship, the only fund out of which payment can be made, falls far short of a full payment of the amount due upon the bottomry bond. But this  is the misfortune of the lender, and not the fault of the owners. They are not to be made personally responsible for the act of the master, because the fund has turned out to be inadequate; since, by our law, he had no authority by a bottomry bond to pledge the ship, and also the personal responsibility of the owners. The consequence is, that the loss, ultra the amount of the fund pledged, must be borne by the libellant. \nBut as the owners have had the full benefit of the bond under the appraisement and delivery during this protracted  controversy, it is but reasonable that they should be responsible for interest upon the appraised value, from the time when the delivery upon the appraisement took place. \nThe view which has been thus taken of the present case, renders it wholly unnecessary to consider whether a decree in personam could be made by the circuit court upon a libel and proceedings instituted in rem. That and the other questions respecting the exercise of the admiralty powers of the court, may well be left for decision when they shall constitute  the very points in judgment. \nThe decree of the circuit court must be reversed; and a decree will be entered conformable to the opinion of this court, to be carried into effect by that court. \nThis cause came on to be heard on the transcript of the record from the circuit court of the United States for the district of Maryland, and was argued by counsel; on consideration whereof, it is declared by this court, that the bottomry bond in the case stated is, and ought to be held valid for the sum of two thousand and nine hundred dollars, being the amount ascertained by the second and last report of the commissioners to be due to the libellant for expenditures and advances absolutely necessary, and made in the course of the usual employment  of the said ship Virgin, and also for the additional sum of ten per cent, the maritime interest agreed on, and payable by the terms of the said bottomry bond, amounting, in the whole, to the sum of three thousand one hundred and ninety dollars, and that the said libellant is entitled to the said last mentioned sum, with interest thereon, at the rate of six per cent, from the commencement of the present suit to the time when the decree of  this court shall be carried into effect by the circuit court.And it is hereby ordered, adjudged and decreed by this court accordingly. And it is hereby further ordered, adjudged and decreed, that the decrees of the district and circuit courts, so far as they differ from this present decree be, and hereby are, reversed accordingly. And this court, further proceeding to render such decree as the circuit court ought to have rendered in the premises, it is further ordered, adjudged and decreed, that the said claimant, Graf, do forthwith  pay into the said circuit court the sum of eighteen hundred dollars, being the amount of the appraised value of the said ship Virgin, delivered to him on stipulation as in the proceedings mentioned, together with interest thereon, at the rate of six per cent, from the 24th day of March 1824, when the same was delivered to him on stipulation as aforesaid, unto the day when the same sum shall be so paid into the circuit court, together with the costs of the district and circuit courts; and unless he shall do so within ten days after the said circuit court shall require the same to be done, that execution do issue in due form of law upon the  stipulation aforesaid, against all the parties thereto. And upon the payment of such sums, then that the claimants, as owners of the said ship Virgin, be, and hereby are for ever exonerated from all other and further payment in the premises. And it is further ordered, adjudged and decreed, that this cause be remanded to the said circuit court, with directions to carry this decree forthwith into effect. \n \n\n ", " \nOpinion \n\n \n \n  Mr Justice STORY delivered the opinion of the Court. \nThis cause was formerly before the court, and the decision then had is reported in 12 Wheat. R. 169. The bill is now substantially the same with the former bill, except that there is an allegation that the instrument set forth as a testamentary instrument, executed at Paris on the 28th of June 1836, in favour of the plaintiff, \"has been admitted to probate, and duly proved in the orphan's court of Washington county,\" in this district. But the bill does not go on to state that it has been duly established by that as a valid will, according to the law of France, though that is averred to be the place of domicil  of Kosciuszko at the time of its execution. The bill, however, does assert, that the instrument is a last will and testament, to all intents and purposes, and must operate as such, and revoke, pro tanto, the bequests and appropriation in the  prior will, of which Mr Jefferson was named executor. \nThe answer of the administrator (Lear) is substantially the same as his former answer, admitting the execution of the instrument, but submitting to the court (without denying in a formal and direct manner the validity of the will as such, according to the law of France), whether it will decree the defendant to pay the money to the plaintiff \"upon an instrument made under the circumstances, and authenticated in the manner that the aforesaid instrument is, and whether the said instrument shall have effect to revoke or alter any part of said Kosciuszko's will, solemnly executed and left in the hands of his executor in this country,\" &c. &c. This is certainly a very informal and loose mode of putting in issue, if upon the bill such a question can be tried, the validity of a will made in a foreign country, whose laws are not brought before the court, either by averment or evidence. But the answer contains a new allegation, that certain persons residing in Europe have filed a bill in the circuit court of the district of Columbia, against him, the administrator, claiming a large portion of the assets, if not the whole, as creditors  on mortgagees of the said Kosciuszko; and certain persons, also residing in Europe, have filed another bill against him (it was probably meant in the same court), claiming the whole assets, as heirs at law of the said Kosciuszko, and therefore  as distributees of the said assets. None of the parties to either of these latter bills are made parties to the present bill. And we are of opinion, that the persons claiming as heirs of Kosciuszko, should be made parties, that they may have an opportunity to contest the plaintiff's title, as the real parties in interest, the administrator being but a mere stake holder.Indeed, we think that all three of the bills ought (if possible) to be brought to a hearing at the same time in the circuit court, in order that a final disposition may, at the same time, be made of all of the questions arising in all of them. \nWe wish also to attract the attention of counsel to some other considerations, which may become important in future  stages of the cause; and especially, in the aspect under which the present bill and answer are framed. In the first place, if the intention is to put in issue (as it seems to be), not only the construction  and operation of the testamentary instrument in favour of the plaintiff, but its validity and effect as a will, it is material that the law of France, the place of the domicil of Kosciuszko at the time of its execution, should be brought before the court, and established as matter of fact; for the court cannot judicially take notice of foreign laws; but they must be proved by proper evidence. The present allegations of the bill and answer are quite too loose for this purpose; and they should be amended, and made more distinct and direct. We do not mean to express any opinion, whether this court can examine into the point of the validity of the instrument as a will according to the law of France, or whether it belongs exclusively to the orphan's court of the county of Washington. That is a question which it may be fit hereafter to examine, if it should be pressed in argument. \nIn the next place, there may arise some nice questions of international law, in which the fact of the domicil of Kosciuszko at the time of his birth, at the time of his making the will of which Mr Jefferson was named executor, and at the time of his death, may become material. We do not mean to say, what is  the true rule that is to govern in cases of wills of personalty, whether it be the rule of the native domicil, or of the domicil at the time of the execution of the will, or of the domicil at the death of the party, where there have been changes of domicil. These are points, which ought, under the circumstances of this case, to be left open for argument. But the facts on which the argument should rest, ought to be distinctly averred in the bill, and met in the answer. \nThe place of domicil of Kosciuszko at the time of his death, may also become material under another aspect of the case, viz. the question, who are his heirs, entitled to the succession ab intestato, or under the other will or wills executed by him, to which reference is made in some of the papers in the case. The persons claiming as such heirs, must establish their title under, and according to the law of his domicil at the time of his death. So that perhaps it may become material, if Switzerland was the domicil of Kosciuszko at the time of his death,  to bring the law of that country distinctly, as matter of fact, before the court. The court have, in another case 1 expressed their desire to have the  other will or wills made by Kosciuszko, put regularly upon the record to ascertain whether they have any bearing upon the merits of the present case. \nIt is also material to observe, that the answer of the administrator relies on a letter written by Kosciuszko to Mr Jefferson in September 1817, as a revocation of the supposed testamentary paper in favour of Armstrong, and a republication of the first will; and yet that letter is not produced in evidence, nor even the extract verified; so that there is a total deficiency of proof as to this most material fact. This defect ought to be supplied. \nThese observations have been thought fit by the court, to be suggested to the counsel on both sides, on the present occasion. Under the complicated circumstances of the present case, and the important bearings of foreign law upon it, it is very desirable, that if it should come again before us, all the facts, and all the lights necessary for a final decision may be furnished, without submitting it to farther embarrassments. \nThe court decree, that the decree of the circuit court dismissing the bill be reversed, and that the cause be remanded, with leave  to make new parties, and for other proceedings. \nThis cause came on to be heard on the transcript of the record from the circuit court of the United States for the district of Columbia, holden in and for the county of Washington, and was argued by counsel; on consideration whereof, it is ordered, adjudged and decreed by this court, that the decree of the said circuit court, dismissing the bill in this cause be, and the same is hereby reversed, and that this cause be, and the same is hereby remanded to the said circuit court, with leave to make new parties, and for other proceedings to be had therein according to law and justice, and in conformity to the opinion of this court. \n \n\n ", " \nOpinion \n\n \n \n  Mr Justice STORY delivered the opinion of the Court. \nThis is a writ of error to the circuit court of the district of Columbia for the county of Washington. \nThe original suit was brought on a bond given by Orr, and certain persons as his sureties, to the United States, on the 9th of February 1818, for the penal sum of thirty-five thousand dollars, upon condition, well and truly to perform, &c. certain articles of agreement, dated the same day, &c. \"made between John C. Calhoun, secretary of war, and the said Orr, concerning the supply of rations to the troops of the United States within the state of Georgia, including that part of the Creeks' lands within the territorial limits of said state, according to the true intent and purport\" thereof.  The defendant Orr died pending the suit, and it being revived against his administrator,  the latter, after oyer of the bond, and condition, and articles of agreement, pleaded a general performance of the condition by Orr; and the replication assigned for breach, that although the United States did advance and furnish to Orr, divers large sums of money at divers times, on account of, and to enable him to carry into effect the articles of agreement; and although the accounts of Orr, in relation to the articles of agreement, had been finally settled by the accounting officers of the government, and upon the settlement, there was found due to the United States the sum, &c., &c.; yet he had not paid the same, &c. Upon this replication, issue was joined; and the cause being tried, a verdict was found for the administrator, upon which judgment was afterwards given by the court in his favour. \nAt the trial, several bills of exceptions were taken on behalf of the United States; and the validity of these exceptions constitutes the matter now in controversy before this court. \n The first article of the articles of agreement above referred to, is to this effect. \"That  the said Orr, his heirs, &c. shall supply and issue all the rations, to consist of the articles hereinafter specified, that shall be required of him or them, for the use of the United States, at all and every place or places where troops are, or may be stationed, marched, or recruited, within the limits of the state of Georgia, including that part of the Creeks' land lying within the territorial limits of said state, thirty days notice being given of the post or place where rations may be wanted, or the number of troops to be furnished on their march, from the 1st day of June 1818, until the 31st day of May 1819, inclusive, at the following prices, &c.\" The tenth article provides, \"that all such advances of money, as shall be made to the said Orr, &c, for, or on account of the supplies to be furnished, pursuant to this contract, and all such sums of money that the commanding officer of the troops or recruits, &c. may cause to be disbursed, in order to procure supplies, in consequence of any failure on the part of the said Orr, &c. in complying with the requisitions herein contained, shall be accounted for by him or them, by way of offset against the amount of such supplies; and the  surplus, if any, repaid to the United States immediately after the expiration of the term of this contract, together with interest, &c.; and, that if any balance shall, on any settlement of the accounts of Orr, &c. be found due by him or them, &c. the same shall be immediately paid.\" \nAt the trial, the United States, in support of their suit, introduced certain official accounts and statements of the third auditor, duly certified from the treasury department, which were read in evidence, saving to the defendant all exceptions to the competency of these accounts to charge him, otherwise than as the items of charges in the same should be supported by proof. The United States also read in evidence a contract made by Crr in January 1817, for army supplies for the state of South Carolina and Georgia for one year, from the 31st day of May 1817; the terms of which contract are the same as those of the contract of 1818. Besides evidence to other points, not now material to be stated, the United States introduced the testimony of a Mr Abbott, and proved by him, that at the time when contracts were made for the supply of the United States troops, the contractors (as he believed) were then  informed of  the fixed posts within the limits of the contract, and the number of troops there stationed, and that rations were to be regularly supplied by such contractor, according to the number of troops so stationed at such places; and that the contractor was informed he was to continue so to do, without any other notice so to do; and that special requisitions and notice of thirty days would be made and given, for all other supplies at other places or posts, and for any change in the quantity of supplies which might become necessary at the fixed posts, from a change in the number of troops stationed at such fixed posts; and that such was the understanding at the war department, in settling the accounts of contractors. But he did not know of any verbal explanation between the secretary of war and Orr on this subject, specifying any thing more or less, than what the contract specified; and he did not know that there had been any submission or agreement of contractors to such a construction of their contracts; but that such was the rule adopted by the accounting officers in settling the accounts of contractors. \nThe defendant, among other things, introduced evidence to  show, that Orr always insisted on the necessity of requisitions and notices, according to the terms of the contract, for supplies at all posts, before he could be charged with a failure; and also to show the custom of making requisitions, and giving such notices for supplies at all posts where provisions were required, and without regard to their being old established posts, or new ones established after the contract. \nAfter the whole evidence was closed, the attorney for the United States prayed the court to instruct the jury, \"that it was competent for them to infer from the said evidence, that the said Orr, in snpplying the fixed posts, as he had before done under his former contract, and knowing thereby the number of rations there required, dispensed with any special requisition and notice, in relation to such supplies to said posts; and in case of failure to supply such posts, according to usage and knowledge, is liable, under the bond and contract upon which this action is founded.\" The circuit court refused to give this instruction, and the question now is, whether it ought to have been given. \nTo the terms in which this instruction is couched, there is certainly a well founded  objection. The language used is  equivocal, and admits of various interpretations; and it is certainly the duty of the party asking an instruction, to express it with such certainty as may not mislead, either the court or the jury. The court were asked to instruct the jury, \"that it was competent for them to infer from the said evidence, &c.\" Now, if by \"competent,\" as here used, it was intended that there was sufficient evidence from which the jury might infer a waiver or dispensation, &c., the instruction was manifestly wrong, for it required the court to decide upon the weight of evidence, and to take from the jury the right to ascertain that which is peculiarly within their province, for themselves. But if it was only  intended to express, that there was evidence conducing to prove a waiver, the language was ill adapted to the purpose; for it does not ask, whether the evidence introduced on the part of the United States, if believed, conduced to such a purpose, but whether the evidence on both sides conduced to such a purpose, which would require the court to ascertain, in like manner, the weight of the evidence; for it could not be correctly affirmed,  that the evidence conduced to such a purpose, where there was conflicting evidence, unless there was a decided preponderance on that side. \nBut without dwelling more on the phraseology of this instruction, we are of opinion that the court were correct in refusing it upon the substance of the doctrine asserted in it. The court were required to instruct the jury, that it was competent for them to infer that Orr had dispensed with any special requisition and notice, in relation to supplies at fixed posts, not from the evidence generally, but from two special circumstances in the case; first, from having supplied the fixed posts, as he had done, under his former contract (that is the contract of the preceeding year, 1817), and secondly, from thus knowing the number of rations there required. Now, the contract of 1817 entitled him to have requisitions and notices of thirty days, precisely in the same manner as the contract of 1818 did, and it was neither proved nor admitted in the case, that such requisitions and notices had not been given under the former contract. If they had been given, then certainly there could be no legal inference, that they were not to be continued to be given  under the contract of 1818. And if they were not given, then the circumstance  that they had been dispensed with under a former contract, had no legal tendency to establish that they were dispensed with under a new and independent contract. Indeed, the very circumstance, that in some new and independent contract they were stipulated for, would furnish proof, that they were not intended to be dispensed with. Why otherwise should they be again inserted in the contract? Certainly not for the purpose of showing that they were not to be insisted on, but were to be dispensed with. \nBesides, the fact of having supplied the fixed posts under a former contract, and knowing thereby the number of rations then required for them, could have no legal tendency to establish the right or duty of the contractor to supply the same posts with the same number of rations in future years. The number of troops might be varied; the importance of those posts might be diminished or increased; and from the nature of the military service, many other circumstances might occur to render a fixed quantity of supply at those posts, incompatible with the public interests or public necessities. The very  language of the contract demonstrates, that no such fixed quantities could have been contemplated by the parties. The contractor is to supply and issue all rations, which shall be required of him, \"at all, and every place or places where troops are or may be stationed, &c., thirty days' notice being given of the post or place where the rations may be wanted, or the number of troops to be furnished on their march.\" So that the contract not only does not look to any fixed posts in particular, but it carries on its face an implication, that the supply required might or would be varied in all posts and places. \nUpon these grounds, we are of opinion that the circuit court were right in refusing the instruction prayed for. We give no opinion upon the point, whether a parol waiver of the notice stipulated for in the contract would, if proved, have entitled the United States to recover in this suit, it being a suit for a forfeiture for non-fulfilment of the terms of the contract. Even supposing a waiver by parol may discharge the party, so as to save a forfeiture of a bond, it does not follow that a waiver by parol is to be admitted to create a forfeiture of a bond. On neither point do  we mean to express any opinion. \nThe next exception involves the same point relative to the  right of the defendant to have the credits allowed him on the treasury accounts, notwithstanding a rejection of some of the debits, which was involved in another case between the same parties, in which my brother M'LEAN has already delivered the opinion of the court. \nThe next exception is to an instruction of the circuit court, given upon the prayer of the defendant. It is as follows: \"That if the jury find and believe from the evidence aforesaid, that the three several advances from the war department to the said Orr, in the said first account above charged, to the amount of eighty thousand dollars, though appearing in the receipts for the same as made on account of this contract, were, nevertheless, advanced under an arrangement and understanding with the government and said Orr, to which the sureties in the bond now in suit, were in no manner party or privy; that the said sums of money were to be held by the said contractor as a common fund of supplies, as well for the forts and military posts in Florida, including the subsistence of the Indian prisoners there, as of the posts  within the state of Georgia, and the Creek lands within the territorial limits of that state, and to be indiscriminately applied to all or any of both the Georgia and Florida forts nd military posts, upon the terms and conditions of this contract, as if extended to the Florida posts; and that the said contractor was accordingly called on and required, in the execution of that contract, and out of the general fund so advanced, nominally, under this contract, to furnish subsistence as well for the Florida posts, including Indian prisoners there, as for the posts within the proper territorial limits of the contract indiscriminately; and that both branches of supply were blended in debits for alleged failures, &c. and credits for supplies in the same official account of advances and expenditures under this contract, as kept at the proper accounting departments of the treasury and war departments, without there being any specific part or portion of the said advances designated and set apart for the two branches of supply and subsistence in Georgia and Florida respectively: then the obligors in the bond now in suit, nor any of them, are not responsible in this action under the tenth article  of said contract, for the accounting and paying by said Orr of any balance or surplus of the said advances remaining  in his hands, unexpended at the time  of the expiration of the term of said contract, in the execution of the said contract, and in the supplies of subsistence therein stipulated for.\" \nStripped of the complicated circumstances in which this instruction is involved, it presents the simple question whether, under the tenth article of the contract of 1818, the parties to the bond are in the present action responsible for any balance in the hands of Orr, at the expiration of the same contract, of advances made to him; not on account of that particular contract exclusively, but on account of that and other contracts, as a common fund for supplies, where accounts of the supplies, the expenditures and the funds had all been throughout blended indiscriminately by both parties, and no separate portion had been designated or set apart for the contract of 1818. We are of opinion that the question ought to be answered in the negative; and that, therefore, the instruction given by the circuit court was correct. The tenth article of the contract of 1818 declares,  that all advances made \"for and on account of the supplies to be furnished pursuant to this contract,\" shall be duly accounted for. Now, advances made as a common fund for supplies under that and other contracts, without any discrimination or apportionment for either in particular, can, in no just sense, be said to be advances made for supplies \"pursuant to the contract\" of 1818. The whole fund might, if necessary, be rightfully applied for any purpose within the scope of either contract. The unexpended balance is not the balance of any appropriation or advances under any particular contract, but constitutes a common fund for all remaining purposes under any contract. If it were wanted for supplies for the Florida posts, there would be no pretence to say that it was a balance, for which the parties were responsible in the present suit. And if not wanted for such a purpose, still, to fix responsibility upon them according to the terms of their engagement, it must be shown that the balance was a balance, remaining unexpended, of advances under the contract of 1818.But how is that to be shown, when no distinct advances were made, no distinct expenditures required, and no distinct  accounts kept under that contract? To say that the parties to the present bond should be liable for the whole balance, would be to say, that they should be liable for advances  made under any other contracts; and if not liable for the whole, the very case supposed in the instruction precludes the possibility of any legal separation of the items of the balance. Each and all of them are blended, per my et per tout, as a common fund. The case indeed, in the principles which must govern it, ranges itself under that large class of cases, where a party, bound for the fidelity of a clerk or other agent of A, as keeper of his money or accounts, is held not liable for acts done as the keeper of the money or accounts of A and B. And in the present suit there is no difference in point of law between the liability of the principal, and that of the sureties upon the bond. It is the same contract as to both; and binds both or neither. The United States are not, however, without remedy; for there can be no doubt that an action, in another form, would lie against Orr for any balance, however received, which remained unexpended in his hands after the termination of the service, for  which the advances were made. \nThe next exception is to the refusal of the circuit court to instruct the jury \"that the receipts of Benjamin G. Orr, offered in evidence, are prima facie evidence that he received the eighty thousand dollars under the contract, on which this suit is brought; and that it is incumbent on the defendants to satisfy the jury by evidence, that the said advances were not made under the said contract, as stated in the said receipts; but that it was so stated by mistake or design on the part of the government and said Orr, and intended to be applicable to some other contract.\" The court gave the instruction as prayed, omitting only the last clause as to the mistake or design of the parties. And we are of opinion that the instruction, as given, was all that the United States had a legal right to require. If the advances were not made under the contract, as stated in the receipts, the parties to the bond were not responsible therefor, and it was wholly immaterial to them how it occurred; whether it was by mistake, or design, or otherwise. The receipts were prima facie evidence that the money was received under the contract; and it was incumbent on the defendants  to establish the contrary by competent proofs. \nUpon the whole, the opinion of the court is, that the judgment of the circuit court ought to be affirmed. \n \n\n ", " \nOpinion \n\n \n \n  Mr Justice STORY delivered the opinion of the Court. \nAfter stating the case, he proceeded: \nThis is an appeal from a decree of the circuit court of Kentucky district dismissing the bill in equity, brought by the appellants against the appellees. \nThree points have been made at the argument by the appellees, either of which, if established, would be fatal to the bill in its present shape; and two of them would be fatal in any shape. The first is, that the contract of sale was not absolute, but terminated by the non fulfilment of the conditions at the end of the stipulated period: the second is, that the lapse of time is a bar to all equity in the plaintiffs: and the third is, that the proper parties for a decree are not before the court. \nIn the first place then, was the contract such as it is represented to be by the appellees? We are of opinion,  that taking into view the whole transaction, its proper interpretation is such as their argument supposes. It is true, that the bond of Rogers to Dickinson, taken alone, presents only the common case of a contract for a sale of land at a specific price, with an undertaking to make a good and lawful deed of the land, when required by the vendee. But the other bond, executed contemporaneously by Dickinson to Rogers, is to be taken into consideration in ascertaining the true nature of the transaction. That bond, however inaccurate in its phraseology, shows, that the real contract between the parties was, that Rogers should make a fair and indisputable title to Dickinson of the land, on or before the 1st of January 1795; and if no conveyance was then made, then Rogers was to stand indebted to Dickinson in he said sum of forty-five pounds. Now, we think, that no other just interpretation can, under the circumstances, be put upon this language, than that the parties intended, that Rogers should perfect his title to the land by a patent, and should make a conveyance of an indisputable title to Dickinson, on or before the 1st of January 1795; and if not then made, the contract of sale  was to be deemed rescinded, and the forty-five pounds, purchase money, was to be repaid to Dickinson. What strengthens this interpretation is, that the forty-five pounds was not at the time actually paid, but was merely the amount of an antecedent debt due from Rogers to Dickinson; and the bond of the latter contains no stipulation on his part, to pay  the balance of the purchase money, except upon a conveyance made within the prescribed period. If the parties had intended the sale to be absolute, the bond of Dickinson would have contained an absolute agreement to pay that balance, as the other bond did an absolute agreement to make a conveyance, when required.We think too, that the total omission of Dickinson, in his lifetime, to take any step to enforce the sale, furnishes a strong corroboration that he so understood the matter. \nBut in the next place, if this difficulty could be (as we think it cannot be) surmounted, the objection from the lapse of time is equally decisive. Courts of equity are not in the habit of entertaining bills for a specific performance, after a considerable lapse of time, unless upon very special circumstances. Even where time is not of the  essence of the contract, they will not interfere, where there has been long delay and laches on the part of the party seeking a specific performance. And especially will they not interfere, where there has, in the mean time, been a great change of circumstances, and new interests have intervened. In the present case, the bill is brought after a lapse of twenty-nine years. It is true, that the vendor died within the year, and that he had not, at the time of the contract, a complete title to the land; but a complete title was afterwards obtained by his father, who was his heir, in the year 1799; and Dickinson did not die until seven years afterwards. During the period of eleven years after Dickinson had a perfect right (if ever) to demand a strict performance of the contract; he never took a single step to assert his right, or to compel performance. After his death in 1806, no step was taken by his heirs or devisees, for the purpose of asserting any claim, until 1819; and no suit was commenced until 1823. The manner in which this delay is accounted for in the bill, is wholly unsatisfactory. The grounds stated are, the distance of the parties from each other, their intervening  deaths, the difficulty of ascertaining who were the heirs, and the residence of the latter in a different state. But any reasonable diligence would have enabled Dickinson and his legal representatives to have ascertained who the heirs of Rogers were. His father and heir resided in the same state with Dickinson for many years; and the acting executor under the will of the father did not remove into Kentucky until several years after the probate of the  will. There is, therefore, no ground, upon which the gross laches or indifference of the parties can be reasonably excused. And such a long silence does, as we have already intimated, justly lead to the conclusion of a consciousness, that the right, if any, was exceedingly doubtful. In the mean time, the property has materially risen in value, from the general improvement and settlement of the country, and thus furnishes an additional reason for not disturbing the existing rights of property. \nThis view of the case renders it unnecessary to consider the other point, as to the non joinder of proper parties. \nThe bill contains no alternative prayer for a  return of the forty-five pounds, if specific performance  should not be decreed; and, under the circumstances, we are of opinion, that it ought not to be decreed under this bill, upon the prayer for general relief, it not being a case specially made by the bill. The decree of the court below will, therefore, be affirmed. As the general dismissal of the bill will not, in our judgment, under the circumstances, operate as a bar to future proceedings at law, to recover the forty-five pounds, if an action be otherwise maintainable; we do not think it necessary to dismiss the bill without prejudice, thereby throwing the burthen of the costs of the reversal upon the defendant. The plaintiff may, therefore, well be left to his legal remedy, such as it is, for any indemnification under the contract. \nDecree affirmed. \nThis cause came on to be heard on the transcript of the record from the circuit court of the United States for the district of Kentucky, and was argued by counsel; on consideration whereof, it is ordered, adjudged and decreed by this court, that the decree of the said circuit court in this cause be, and the same is hereby affirmed with costs. \n \n\n ", " \nOpinion \n\n \n \n Mr Justice STORY delivered the opinion of the Court. \nAfter stating the case he proceeded: \nThis cause comes before the court upon a certificate of a division of opinion of the judges of the circuit court for the district of Massachusetts. \nUpon the trial of the cause upon the evidence, the parties propounded certain questions, upon which the circuit court (with the assent of the parties), certified a division of opinion, for the purpose of obtaining the final decision of this court in regard to them. \nThe first is, whether a seizure and detention, to come within the exception of the policy relating to contraband and illicit trade, must be  for a legal and justifiable cause. The question here propounded is not whether there must be a legal or justifiable cause for condemnation; but simply, whether there must not be such cause for the seizure and detention. And we are of opinion, that the question ought to be answered in the affirmative. The language of the exception, when properly construed, leads to this conclusion; and it is confirmed by authorities standing upon analogous clauses. The language is, \"the assurers shall not be liable for any charge, damage or loss which may arise in consequence of seizure or detention for or on account of illicit trade, or trade in articles contraband of war.\" It is not, then, every seizure or detention which is excepted; but such only as is made for, and on account of a particular trade. A seizure or detention, which is a mere act of lawless violence, wholly unconnected with any supposed illicit or contraband trade, is not within the terms or spirit of the exception. And as little is a seizure or detention not bona fide made upon a just suspicion of illicit or contraband trade, but the latter used as a mere pretext or colour for an act of lawless violence; for under such circumstances,  it can in no just sense be said to be made for or on account of such trade.  It is a mere fraud to cover a wanton trespass; a pretence and not a cause for the tort. To bring a case, then, within the exception, the seizure or detention must be bona fide, and upon a reasonable ground. If there has not been an actual illicit or contraband trade, there must at least be a well founded suspicion of it, a probable cause to impute guilt, and justify further proceedings and inquiries; and this is what the law deems a legal and justifiable cause for the seizure or detention. The general words of the policy cover the risks of restraints and detainments of all kings, princes and people. The exception withdraws from it such as are bona fide made for, and on account of illicit or contraband trade. So that, upon the mere terms of the exception, there would not seem any real ground for doubt. But if there were, the next succeeding clause associated with it, demonstrates that such must have been the understanding of the parties. It is there said, that the judgment of a foreign consular or colonial court shall not be conclusive upon the parties as to the fact of there having been articles  contraband of war on board, or as to the fact of an attempt to trade in violation of the laws of nations. Now, if a mere lawless seizure or detention, under the pretext of illicit and contraband trade, were within the exception; the inquiry, whether there had been contraband articles on board, or an attempt of illicit trade, would be in most, if not in all cases wholly unimportant and nugatory to the assured, for whose benefit the clause is introduced; since the sentence would alwaysestablish a pretence for the seizure and detention, although not a justifiable cause for it. The reasonable interpretation of the clause must be, that it was introduced to enable the assured to disprove the existence of justifiable cause for the seizure or detention, by showing that the facts did not warrant it. \nWe think that the authorities cited at the bar, lead to the same conclusion. In Church v. Hubbard, 2 Cranch 187, 2 Cond. Rep. 385; where the exception was, \"that the insurers do not take the risk of illicit trade with the Portuguese, and the insurers are not liable for seizure by the Portuguese for illicit trade;\" the main question was, whether an attempt to trade, not consummated by actual  trading, was within the exception. The court held that it was. On that occasion the chief justice said, \"no seizure, not justifiable under the laws and regulations established by the crown of Portugal for the  restriction of foreign commerce with its dependencies, can come within this part of the contract; and every seizure which is justifiable by those laws and regulations must be deemed within it.\" And applying this language to the circumstances of the present case, we may add, that no seizure or detention not justifiale by the law of nations can come within the present exception, and every seizure which is justifiable by the law of nations, must be deemed within the present exception, and every seizure which is justifiable by the law of nations, must be deemed within it. The cases of Smith v. The Delaware Insurance Company, 3 Serg. and Rawle 74; and Faudel v. The Phoenix Insurance Company, 4 Serg. and Rawle 29; Johnson and Weir v. Ludlow, 1 Caines's Cas. in Error 29; S. C. 2 Johns. Cas. 481, 1 adopt a similar doctrine, if they do not proceed beyond it. The case of Higginson v. Pomroy, 11 Mass. R. 104, contained an exception of \"illicit trade with the Spaniards;\" and  the court held, that the exception extended to every seizure and detention suggested by the prohibitions of trade and intercourse, as the means of enforcing them; and whether of prevention or of punishment for infraction; and that, therefore, it extended to cases where the charge of illicit trade with the Spaniards might be ultimately repelled; and where the property seized might be in consequence acquitted under the circumstances of the particular case. But this supposes that there was probable or justifiable cause for the seizure, bona fide existing; and the court explicitly assented to the general doctrine in Church v. Hubbard. It is true, that the learned chief justice, in delivering the opinion of the court, added, that \"perhaps (we may odd), although not necessary to the present decision, even arbitrary acts of the Spanish colonial governments, if assumed to be justified on their parts by the prohibitions of trade and intercourse, are, we think, within the exception of seizure for illicit trade.\" This is professedly a mere dictum of the court; and giving it every reasonable force as authority, it proceeds on the supposition that such arbitrary acts are bona fide done, and are  not mere pretexts to cover an illegal seizure. \nThe second question is, whether, assuming the other facts to be as stated and alleged above, and taking the authority of the seizing vessel to be such as the plaintiffs allege (that is to say, of an armed vessel fitted out and commissioned at Callao  by Rodil), there was a legal and justifiable cause for the seizure of the General Carrington and her cargo. The third is precisely the same in terms, except taking the authority of the armed vessel to be such as the defendants allege (that is to say, to be an armed vessel sailing under the royal Spanish flag, and acting by the royal authority of Spain). \nBoth these questions present the same general point, whether there was, under the circumstances of the case, a legal and justifiable cause for the seizure and detention of the ship and her cargo. The facts material to be taken into consideration in ascertaining this point are, that the ship, when seized, had not landed all her outward cargo, but was still in the progress of the outward voyage originally  designated by the owners; that she sailed on that voyage from Providence with contraband articles on board, belonging, with the other parts of the cargo, to the owners of the ship; with a false destination and false papers, which yet accompanied the vessel; that the contraband articles had been landed, before the policy, which is a policy on time, designating no particular voyage, had attached; that the underwriters, though taking no risks within the exception, were not ignorant of the nature and objects of the voyage; and that the alleged cause of the seizure and detention was, the trade in articles contraband of war by the landing of the powder and muskets already mentioned. \nIf by the principles of the law of nations there existed under these circumstances, a right to seize and detain the ship and her remaining cargo, and to subject them to adjudication for a supposed forfeiture, notwithstanding the prior deposit of the contraband goods; then the questions must be answered in the affirmative, that there was a legal and justifiable cause. \nAccording to the modern law of nations, for there has been some relaxation in practice from the strictness of the ancient rules, the carriage  of contraband goods to the enemy, subjects them, if captured, in delicto, to the penalty of confiscation; but the vessel and the remaining cargo, if they do not belong to the owner of the contraband goods, are not subject to the same penalty. The penalty is applied to the latter, only when there has been some actual co-operation, on their part, in a meditated fraud upon the belligerents; by covering up the voyage under false papers, and with a false destination. This  is the general doctrine when the capture is made in transitu, while the contraband goods are yet on board. But when the contraband goods have been deposited at the port of destination, and the subsequent voyage has thus been disconnected with the noxious articles, it has not been usual to apply the penalty to the ship or cargo upon the return voyage, although the latter may be the proceeds of the contraband. And the same rule would seem by analogy, to apply to cases where the contraband articles have been deposited at an intermediate port on the outward voyage, and before it had terminated; although there is not any authority directly in point. But in the highest prize courts of England, while the distinction  between the outward and homeward voyage is admitted to govern, yet it is established, that it exists only in favour of neutrals who conduct themselves with fairness and good faith in the arrangements of the voyage. If, with a view to practise a fraud upon the belligerent, and to escape from his acknowledged right of capture and detention, the voyage is disguised, and the vessel sails under false papers, and with a false destination, the mere deposit of the contraband in the course of the voyage, is not allowed to purge away the guilt of the fraudulent conduct of the neutral. In the case of the Franklin, in 1801, 3 Rob. 217, lord Stowell said, \"I have deliberated upon this case, and desire it to be considered as the settled rule of law received by this court, that the carriage of contraband with a false destination, will make a condemnation of the ship, as well as the cargo.\" Shortly afterwards, in the case of the Neutralitet, 1801, 3 Rob. R. 295, he added, \"the modern rule of the law of nations is, certainly, that the ship shall not be subject to condemnation for carrying contraband goods. The ancient practice was otherwise; and it cannot be denied that it was perfectly justifiable  in principle. If to supply the enemy with such articles is a noxious act with respect to the owner of the cargo, the vehicle which is instrumental in effecting that illegal purpose, cannot be innocent. The policy of modern times has, however, introduced a relaxation on this point; and the general rule now is, that the vessel does not become confiscated for that act. But this rule is liable to exceptions. Where a ship belongs to the owner of the cargo, or where the ship is going on such service under a false destination or false  papers; these circumstances of aggravation have been held to constitute excepted cases out of the modern rule, and to continue them under the ancient rule.\" The cases in which this language was used, were cases of capture upon the outward voyage. 2 The same doctrine was afterwards held by the same learned judge to apply to cases, where the vessel had sailed with false papers, and a false destination upon the outward voyage, and was captured on the return voyage. 3 And, finally, in the cases of the Rosalia and the Elizabeth, in 1802, 4 Rob. R., note to table of cases, the lords of appeal in prize cases held, that the carriage of contraband outward  with false papers, will affect the return cargo with condemnation. These cases are not reported at large. But in the case of the Baltic, 1 Acton's R. 25, and that of the Margaret, 1 Acton's R. 333, the lords of appeal deliberately reaffirmed the same doctrine. In the latter case, sir William Grant, in pronouncing the judgment of the court said, \"the principle upon which this and other prize courts have general proceeded to adjudication in cases of this nature (that is, where there are false papers), appears simply to be this; that if a vessel carried contraband on the outward voyage, she is liable to condemnation on the homeward voyage. It is by no means necessary that the cargo should have been purchased by the proceeds of this contraband. Hence we must pronounce against this appeal; the sentence (of condemnation) of the court below being perfectly valid and consistent with the acknowledged principles of general law.\" \nWe cannot but consider these decisions as very high evidence of the law of nations, as actually administered: and in their actual application to the circumstances  of the present case, they are not, in our judgment, controlled by any opposing authority. Upon principle, too, we trust, that there is great soundness in the doctrine, as a reasonable interpretation of the law of nations. The belligerent has a right to require a frank and bona fide conduct on the part of neutrals, in the course of their commerce in times of war; and if the latter will make use of fraud, and false papers, to elude the just rights of the belligerents, and to cloak their own illegal purposes, there is  no injustice in applying to them the penalty of confiscation. The taint of the fraud travels with the party and his offending instrument during the whole course of the voyage, and until the enterprise has, in the understanding of the party himself, completely terminated. There are many analogous cases in the prize law, where fraud is followed by similar penalties. Thus, if a neutral will cover up enemy's property under false papers, which also cover his own property, prize courts will not disentangle the one from the other, but condemn the whole as good prize. That doctrine was solemnly affirmed in this court, in the case of the St Nicholas, 1 Wheaton 417,3  Cond. Rep. 614. \nUpon the whole, our opinion is, that the general question involved in the second and third questions, whether there was a legal and justifiable cause of capture under the circumstances of the present case, ought to be answered in the affirmative. The question, as to the authority of the cruiser to seize, so far as it depends upon her commission, can only be answered in a general way. If she had a commission under the royal authority of Spain, she was beyond question entitled to make the seizure. If Rodil had due authority to grant the commission, the same result would arise. If he had no such authority, then she must be treated as a non commissioned cruiser, entitled to seize for the benefit of the crown; whose acts, if adopted and acknowledged by the crown or its competent authorities, become equally binding. Nothing is better settled both in England and America, than the doctrine, that a non commissioned cruiser may seize for the benefit of the government; and if his acts are adopted by the government, the property, when condemned, becomes a droit of the government. 4 \n The fourth and fifth questions involve the point as to the authority of Rodil. The fourth is in the following terms.Whether a general in the military service of Spain, subordinate to La Serna, viceroy of Peru, under the king of Spain, not having the actual and exclusive command at Callao, and no civil authority existing therein, and cut off by the forces of the  enemy by sea or land from all communication with any superior civil or military officer, could lawfully seize and detain neutral property from contraband trade, if just cause existed for a condemnation thereof. The fifth question is whether such officer, so situated, has a right to appoint and constitute a court, of which he himself is one, for the trial and condemnation of such property. These questions are both understood to refer to the supposed authority of Rodil as an officer of the government, to make the seizure in his official capacity. We are of opinion, that no sufficient facts are stated to enable this court to give any opinion as to the nature or extent of the authority of such an officer under the laws of Spain, or his commission from and under the Spanish government. We shall therefore return  an answer to them, declaring that they are too imperfectly stated to admit of any opinion to be given by this court. \nThe sixth and last question is, whether, supposing the ship to have traded in articles contraband of war in the ports of Chili, and to have been seized afterwards in a port of Peru, then under the royal authority, before she had discharged her outward cargo, for an on account of such contraband trade, the underwriters be not discharged, whether the subsequent proceedings for her adjudication were regular or irregular. This question is understood to raise the point, whether, if the seizure and detention be bona fide for and on account of illicit or contraband trade, a sentence of condemnation or acquittal, or other regular proceedings to adjudication, are necessary to discharge the underwriters. We are of opinion that they are not. If the seizure or detention be lawfully made for or on account of illicit or contraband trade, all charges, damages and losses consequent thereon, are within the scope of the exception. They are properly attributable to such seizure and detention as the primary cause, and relate back thereto. If the underwriters be discharged from the  primary hostile act, they are discharged from the consequences of it. The whole reasoning in Church v. Hubbard, 2 Cranch 187, presupposes, that if the underwriters be exempted from the risk of a justifiable seizure for illicit trade, they are not accountable for losses consequent thereon, whether arising from a sentence of condemnation or otherwise. \n This cause came on to be heard on the transcript of the record from the circuit court of the United States for the district of Massachusetts, and on the points and questions on which the judges of the said circuit court were divided in opinion, and which were certified to this court for its opinion, agreeably to the act of congress in such case made and provided, and was argued by counsel; on consideration whereof, it is ordered and adjudged by this court, that upon the question so certified by the circuit court for the district of Massachusetts, upon which the judges of that court were opposed in opinion, the opinions of this court be certified to that court as follows, to wit: -- Upon the first question, \"whether a seizure and detention, to come within the exception of the policy relating to contraband and illicit trade,  must be for a legal and justifiable cause.\" That it is the opinion of this court, that the seizure and detention, to come within the exception of the policy relating to contraband and illicit trade, must be for a legal and justifiable cause. Upon the second question, \"whether, assuming the other facts to be as stated and alleged above, and taking the authority of the seizing vessel to be such as the plaintiffs allege, there was a legal and justifiable cause for the seizure and detention of the General Carrington and her cargo.\" That it is the opinion of this court, that assuming the facts stated in that question, there was a legal and justifiable cause for the seizure and detention of the ship General Carrington and cargo. Upon the third question, \"whether, assuming the other facts to be as stated and alleged above, and taking the authority of the seizing vessel to be such as the defendants allege, there was a legal and justifiable cause for the seizure and detention of the General Carrington and her cargo.\" That it is the opinion of this court, assuming the facts stated in that question, there was a legal and justifiable cause for the seizure of the ship General Carrington and Cargo.  If the armed vessel referred to was lawfully commissioned by Rodil, (upon which this court can pronounce no opinion) then she is to be deemed entitled to make the seizure and detention in the same manner as if she had been commissioned by the royal authority of Spain. But if she was not so commissioned, then the parties making the seizure and detention are to be treated as non commissioned cruisers, seizing for the government of Spain;  and their validity depends upon their adoption and recognition by the competent authorities of Spain, according to the general principles of the law of nations on this subject. Upon the fourth question, \"whether a general in the military service of Spain, subordinate to La Serna, viceroy of Peru, under the king of Spain, but having the actual and exclusive command of Callao, and no civil authority existing therein, and cut off by the forces of the enemy by sea and land from all communication with any superior civil or military officer, could lawfully seize and detain neutral property for contraband trade, if just cause existed for a condemnation thereof.\" And the fifth question, \"whether such officer, so situated, has a right to appoint  and constitute a court, of which he himself is one, for the trial and condemnation of such property.\" That it is the opinion of this court, that the facts are too imperfectly stated to enable this court to ascertain and decide what are the nature and extent of the powers of such an officer, according to the laws of Spain, or his commission from and under the Spanish government. Upon the sixth question, \"whether, supposing the ship to have traded in articles contraband of war in the ports of Chili, and to have been seized afterwards in a port of Peru, then under the royal authority, before she discharged her outward cargo, for and on account of such contraband trade, the underwriters be not discharged, whether the subsequent proceedings for her adjudication were regular or irregular.\" That it is the opinion of this court, that under the circumstances stated in that question, the underwriters are discharged, whether the subsequent proceedings, after the seizure and detention of the ship and cargo for their adjudication, were irregular or not. \n \n\n ", " \nOpinion \n\n \n \n  Mr Justice STORY delivered the opinion of the Court. \nThis is an appeal from a decree of the district court of the United States for the western district of Virginia, in a case, where the appellant was the original defendant, defendant, and the appellees the original plaintiffs in equity. \nThe bill was brought by the plaintiffs, as heirs at law of William King deceased, to obtain a perpetual injunction of a judgment at law, upon an ejectment, in which a recovery was had by the appellant, of certain parcels of land, which he claimed as devisee under the will of the said William King, deceased. The case in which the recovery was had, came before this court upon a special statement of facts, agreed by the parties, at January term 1830, and will be found reported in the third volume of Peters' Reports, p. 346. In that case, all the material facts applicable  to this case are set forth, and, therefore, we content ourselves with a reference to it: and the real question for decision in the present suit is; whether, under the will stated in that case, the present appellant took a beneficial estate in fee in the premises; or an estate in trust only, which trust, in the events which have happened, has been frustrated, and there now remains a resulting trust for the heirs at law of the testator. The bill asserts, that the estate was a mere estate upon a trust, which has failed; and that there is a resulting trust for the heirs at law; that they are consequently entitled to the injunction prayed for; and to other relief, as prayed in the bill. The decree was in favour of this construction of the will, and proceeded to grant the injunction, and to decree a partition accordingly. \nThe main clause of the will, upon which the question arises, is in the following words: \"In case of having no children, I then leave and bequeath all my real estate, at the death of my wife, to William King, (the appellant) son of brother James King, on condition of his marrying a daughter of William Trigg and my niece Rachel his wife, lately Rachel Finlay, in trust  for the eldest son or issue of said marriage; and in case such marriage should not take place, I leave and bequeath said estate to any child, giving preference to age, of said William and Rachel Trigg, that will marry a child of my brother James King's, or of sister Elizabeth's, wife of John Mitchell, and to their issue.\" Upon the construction of the  terms of this clause, it has been already decided by this court in 3 Peters 346, that William King, the devisee, took the estate upon a condition subsequent, and that it vested in him, (so far as not otherwise expressly disposed of by the will) immediately upon the death of the testator. William Trigg having died without ever having had any daughter born of his wife Rachel, the condition became impossible. All the children of William trigg and Rachel his wife, and of James King and Elizabeth Mitchell, are married to other persons; and there has been no marriage between any of them, by which the devise over, upon the default of marriage of William King (the devisee) with a daughter of the Triggs, could take effect. So that the question, what estate William King took under the devise, whether a beneficial estate co-extensive  with the fee, or in trust, necessarily arises; for no rule of law is better settled, than that where lands are devised in trust for objects incapable of taking, there is a resulting trust for the heirs at law. The only difficulty is in the application of the will to particular cases; and to ascertain, whether (as Lord Eldon expressed it in King v. Denison, 1 Ves. and B. 260, 272) the devisee takes subject to a particular trust, or whether he takes it for a particular trust. \nIn consulting the language of this clause, it is difficult to perceive any clear intention that William King is to take, under any circumstances, a beneficial interest in fee. He is no where alluded to in the will as the primary object of the testator's bounty, or as, in any peculiar sense, a favoured devisee.The object of the testator seems to have been, to keep his great estate together, and to pass the inheritance to some one, who should unite in himself the blood of his own family and that of his wife, and thus become the common representative of both. He does not seem to have contemplated any improbability, much less any impossibility in such an event, and therefore he has made no provision for the failure  of offspring from such a union. Now, looking to the the state of the families at the time when the will was made, is there any thing unnatural in his expectations, or extraordinary in his omission to provide for events apparently so remote and speculative. We must construe the will, then according to its terms, and to events within the contemplation of the testator;  and not interpose limitations by conjecture, which he might have interposed, if he could have foreseen, what is now certain, the failure of the first objects of his bounty. He gives to William King all his real estate, on condition of his marrying a daughter of William Trigg and his niece Rachel Trigg. And if the language had stopped here, there could be no doubt, that a beneficial interest in fee could have been perfected in him, upon his compliance with the condition, or upon its becoming  impossible. But the implication of such beneficial estate, is repelled by the succeeding words. It is devised to him, not absolutely, upon fulfilment of the condition, but \"in trust for the eldest son or issue of said marriage.\" It is manifest, then, that the estate was not contemplated to vest in William  King beneficially; for a trust coextensive with the fee, is given to his issue. And it is \"as was remarked by the chief justice in delivering the opinion of the court in the former case, in 3 Peters 346) quite consistent with the general intention of the testator, and his mode of thinking, as manifested in his will, to suppose an intention, that in the mean time the profits should accumulate for the benefit of the issue, for whom the estate was designed. It is as clear, that in the event that the marriage should not take effect, the beneficial estate was not intended to remain with William King. The will goes on to provide for that contingency, and declares, that in case such marriage shall not take effect, the estate shall go to any child, giving preference to age, of William and Rachel Trigg, that will marry a child of his brother James or his sister Elizabeth. So that, in the only alternative event contemplated by him, he strips the devisee of the beneficial estate in favour of another branch of the families, uniting the blood of both by an intermarriage. It is no objection, that this devise over may be too remote to be valid in point of law. Upon that we give no opinion.  It is sufficient for us, that no such objection was contemplated by the testator; and, so far as his intention is expressed, it is coupled with a beneficial interest for others, excluding that of William King. To create such interest in the latter, we must supply an intention, and not construe the language of the testator. We must conjecture what he would have done, and not merely decide what he has done. \nIt is said, that William King was a favourite newphew; and  therefore, an intention to vest a beneficial estate in him, ought to be implied. But, how does that appear in a form so imposing, as to justify such a conclusion? There is, it is true, no legacy given to him by the will; and therefore, it is suggested, that it could not have been the intention of the testator to clothe him with a barren trust. But a man -- to whose issue, in events within the immediate contemplation of the testator, a splendid fortune was to pass, and in whom, in the mean time, the estate was to vest for the benefit of those who must necessarily be most near, as well as most dear to him, the objects of all his affections and all his anxieties -- could hardly be deemed without some adequate  equivalent for his labours in a trust which was to centre in him for the benefit of his offspring. And if no marriage should take place, which could bring such issue into existence, the subsequent devise over demonstrates, that William King was not even then first in the thoughts of the testator; but the future offspring of his relations, doubly connected by the blood of both families. They were second in preference only to the issue of William King by a Trigg, and certainly not to King himself. It has been asked, what would have been the result, if King had married a Trigg, and had had no issue by her? The answer is, that the will does not look to such an event; and as the estate was not beneficially to vest in King in the case of a marriage and issue, it is quite too much to infer, that in all other events, the beneficial estate was to vest in him, simply because it is not declared to be in another. But it would be sufficient to say, that no such marriage did take effect; and upon the non occurrence of that contingency, the estate was to pass over to other persons, by the very terms of the will; thus repelling the notion that King was to take a beneficial estate where there  was neither marriage nor issue. \nThe argument on the part of the appellant is, that the immediate devise was a beneficial estate in fee to William King, with an executory devise over to the issue of his marriage with a Trigg, if there should be any; and as that event has not happened, the prior estate to him has never been divested. But we do not think that this is the natural reading of the words; and the construction is repelled by the devise over on the failure of that marriage. In order to arrive at such a conclsuion,  we should be obliged to add words not found in the will, nor implied in the context. William King is to take a fee in trust for the issue; and the trust is engrafted upon his estate, and is no where said in a given event to displace or supersede it. It is not a devise to him for his own use in fee, until he shall have issued, and then his use to cease, and a trust to arise for such issue. \nIt is also insisted, that the words \"in trust,\" used in the devise, ought not to be considered as creating a mere fiduciary estate for the issue, (if any) but as a legal use, to spring up by way of executory devise; and that if, by reason of the failure of such use,  there is a resulting estate to the heirs at law, it is a legal use, for which their remedy is at law, and not a fiduciary estate for them, for which the present remedy lies in equity. There is no doubt, that the words \"in trust,\" in a will, may be construed to create a use, if the intention of the testator or the nature of the devise requires it. But the ordinary sense of the term is descriptive of a fiduciary estate of technical trust; and this sense ought to be retained, until the other sense is clearly established to be that intended by the testator. Now, we think, that in the present case, there are strong reasons for construing the words to be a technical trust. The devise looked to the issue of a person not then in being; and of course, if such issue should come in esse, a long minority must follow. During this period, it was an object with the testator to uphold the estate in the father for the benefit of his issue; and this could be better accomplished by him, as a trustee, than as a mere guardian. If the estate to the issue were a use, it would vest the legal estate in them, as soon as they came in esse; and if the first born children should be daughters, it would vest  in them, subject to being divested by the subsequent birth of a son. A trust estate would far better provide for first contingencies than a legal estate. There is then no reason for deflecting the words from their ordinary meaning. \nIn cases of this sort, little aid can be gathered from the authorities; as there rarely are such coincidences in the language of wills and the circumstances of the cases, as to lead unequivocally  to the same conclusion. We have examined the authorities, however, and they do not seem to us in any  degree to interfere with the opinion which we entertain on the present devise. Indeed, some of the cases strengthen the reasoning on which we rely. But a critical examination of them would occupy too much time. Our opinion then is, of them would occupy too much time. Our opinion then is, that the estate given to William King of the devise in question, is not a beneficial estate in fee, but an estate in trust for his issue; and that the trust having failed, there remains a resulting trust to the heirs at law of the testator, if the devise over does not take effect. \nThe devise over has not as yet taken effect. There is no person who  now answers the description contemplated in that devise. No child of the Triggs has as yet married a child of James King or of Elizabeth Mitchell; and in the present state of things, such a marriage is impossible. Whether the contingency on which this devise over was to take effect, was or was not originally too remote to be good in point of law, because a marriage might take place between a child of the Triggs then unborn, and a child of James King or Elizabeth Mitchell, at a period more remote than twenty-one years after their respective births, and yet fall within the terms of the devise, is a question upon which (as we have already said) the court will express no opinion. It does, however, create some embarrassment in the case. And the question is, whether, until such event as the contemplated marriage shall happen, the heirs are not entitled to the relief they seek, as a resulting trust, which is at present vested in them, and which can only be displaced (if at all) by the actual occurrence of a marriage, which shall take place upon a future contingency. We think that they are entitled to the relief, leaving the case open for the rights of any person, who may hereafter rightfully  claim title against them under the devise over. \nThe decree of the district court is therefore affirmed with costs, and the cause is remanded for further proceedings. \nThis cause came on to be heard on the transcript of the record from the district court of the United States, for the western district of Virginia, and was argued by counsel; on consideration whereof, it is ordered, adjudged and decreed, by this court, that the decree of the said district court in this  cause be, and the same is hereby affirmed with costs.And it is further ordered and decreed by this court, that this cause be, and the same is hereby remanded to the said district court, with directions that further proceedings be had therein, according to law and justice, and in conformity to the opinion of this court. \n \n\n ", " \nOpinion \n\n \n \n  Mr Justice STORY delivered the opinion of the Court. \nThis is a writ of error to the supreme court of the state of Pennsylvania, brought under the twentieth section of the judiciary act of 1789, chapter 20. \nThe original suit is an ejectment by the defendants in error for certain lands in Lancaster county in the state of Pennsylvania, upon which a final judgment was rendered in their favour. The facts, so far as they are material to the questions over which this court has jurisdiction, are these. On the 8th of May 1785,  James Mercer and Margaret his wife executed a deed of the premises, then being the property of the wife, to Nathan Thompson in fee, who afterwards, on the same day, reconveyed the same to James Mercer the husband, in fee; the object of the deeds being to vest the estate in the husband.  The certificate of the acknowledgement of the deed of Mercer and wife to Thompson by the magistrate who took the same, does not set forth all the particulars as were required by the law of Pennsylvania of the 24th of February 1770, respecting the acknowledgement of deeds of femes covert. The legislature of Pennsylvania, on the 26th of April 1826, passed an act, the object of which was, to cure all defective acknowledgements of this sort, and to give them the same efficacy as if they had been originally taken in the proper form. The plaintiffs in the ejectment claimed title to the premises under James Mercer the husband: and the defendants, as heirs at law of his wife, who died without issue. The ejectment was brought after the passage of the act of 1826. \nIn the case of the lessee of Watson and wife v. Bailey (1 Binney 470), the acknowledgement of this very deed from Mercer and wife to  Thompson was held to be fatally defective to pass her title. But the act of 1826 has been repeatedly held by the supreme court of Pennsylvania, to be constitutional; and to give validity to such defective acknowledgements. It was so held in Barnet v. Barnet (15 Serg. and R. 72), and Tate and wife v. Stooltzfoos (16 Serg. and R. 35): and again, upon solemn deliberation and argument, in the case now before this court. The objection of the present writ of error is, to revise the opinions thus pronounced by the highest state court. \nOur authority to examine into the constitutionality of the act of 1826, extends no farther than to ascertain, whether it violates the constitution of the United States; for the question, whether it violates the constitution of Pennsylvania, is, upon the present writ of error, not before us. \nThe act of 1826 provides, \"that no grant, &c., deed of conveyance, &c., heretofore bona fide made and executed by husband and wife, and acknowledged by them before some judge, &c., authorised by law, &c. to take such acknowledgement as aforesaid, before the 1st day of September next, shall be deemed, held, or adjudged, invalid or defective, or insufficient in law, or  avoided, or prejudiced, by reason of any informality or omission in setting forth the particulars of the acknowledgement made before such officer as aforesaid, in the certificate thereof; but all and every such grant, &c., deed of conveyance, &c., so made, executed and acknowledged as aforesaid, shall be  as good, valid and effectual in law, for transferring, passing and conveying the estate, right and title, and interest of such husband and wife of, in and to the lands, &c., mentioned in the same, as if all the requisites and particulars of such acknowledgment mentioned in the act, to which this is supplementary, were particularly set forth in the certificate thereof, or approved upon the face of the same.\" \nThe argument for the plaintiffs in error is, first, that the act violates the constitution of the United States, because it devests their vested rights as heirs at law of the premises in question: and secondly, that it violates the obligation of a contract, that is, of the patent granted by the proprietaries of Pennsylvania to Samuel Patterson, the ancestor of the original defendants, from whom they trace their title to the premises, by descent through Margaret Mercer. \n As to the first point, it is clear that this court has no right to pronounce and act of the state legislature void, as contrary to the constitution of the United States, from the mere fact that it devests antecedent vested rights of property. The constitution of the United States does not prohibit the states from passing retrospective laws generally; but only ex post facto laws. Now it has been solemnly settled by this court, that the phrase, ex post facto laws, is not applicable to civil laws, out to penal and criminal laws, which punish no party for acts antecedently done which were not punishable at all, or not punishable to the extent or in the manner prescribed. In short, ex post facto laws relate to penal and criminal proceedings which impose punishments or forfeitures, and not to civil proceedings which affect private rights retrospectively. The cases Calder v. Bull, 3 Dall. R. 386, 1 Cond. Rep. 172; Fletcher v.  Peck, 5 Cranch's R. 138, 2 Cond. Rep. 308; Ogden v. Saunders, 12 Wheaton's R. 266, 6 Cond. Rep. 523; and Satterlee v. Matthewson, 2 Peters's R. 380, fully recognize this doctrine. \nIn the next place, does the act of 1826 violate the obligation of any  contract? In our judgment it certainly does not, either in its terms or its principles. It does not even affect to touch any title acquired by a patent or any other grant. It supposes the titles of the femes covert to be good, however acquired; and only provides that deeds of conveyance made by them shall not be void, because there is a defective acknowledgement  of the deeds, by which they have sought to transfer their title. So far then as it has any legal operation, it goes to confirm, and not to impair the contract of the femes covert. It gives the very effect to their acts and contracts which they intended to give; and which, from mistake or accident, has not been effected. This point is so fully settled by the case of Satterlee v. Matthewson, 2 Peters's R. 380, that it is wholly unnecessary to go over the reasoning upon which it is founded. \nUpon the whole, it is the unanimous opinion of the court, there is no error in the judgment of the supreme court of Pennsylvania, so far as it is subject to the revision of this court, and therefore it is affirmed with costs. \nThis cause came on to be heard on the transcript of the record from the supreme court of the commonwealth  of Pennsylvania for the Lancaster district, and was argued by counsel: on consideration whereof, it is ordered and adjudged by this court, that the judgment of the said supreme court in this cause be, and the same is hereby affirmed with costs. \n \n\n ", " \nOpinion \n\n \n \n  Mr Justice STORY delivered the opinion of the Court. \nThis is a writ of error to the circuit court  of the District of Columbia, for the county of Washington. \nThe original suit was an action of covenant, brought by Linthicum against Lutz, upon certain articles of agreement, made between Lutz on the one part, and Linthicum on the other part, on the 22d of October 1828. The declaration, after reciting that Lutz, by these articles, leased certain premises in Georgetown to Linthicum for five years, from the 3d day of May then next ensuing, and a covenant on the part of Linthicum to pay therefor an annual rent of two hundred and fifty dollars, the rent to be paid half yearly, averred, that, by the articles of agreement, Lutz bound himself to Linthicum, that the latter should have peaceable possession of the premises, and retain and keep the same for the said five years; that Linthicum entered into possession of the premises, and held the same until the 3d day of November 1832, when Lutz evicted and dispossessed him, &c. The articles are spread upon the record, by which it appears, that they were made \"by and between John Lutz of, &c., and agent for John M'Pherson of Fredericktown in the state of Maryland, of the one part, and Otho M. Linthicum of Georgetown, &c., of the other part.\"  And it is witnessed, \"that the said John Lutz agent as atoresaid,  has rented and leased, &c.,\" the premises in Linthicum; and on the other hand, Linthicum covenants to pay the rent, &c., as stated in the declaration. But there is no covenant in the lease by Lutz, for quiet enjoyment, as stated in the declaration; but the latter is latter is founded upon the covenant implied by law, in cases of demises. The articles conclude with these words. \"In witness whereof, we, the said John Lutz and O.M. Linthicum, have hereunto interchangeably set our hands and seals, day and date above. John Lutz, agent for John M'Pherson [L.S.]. O.M. Linthicum [L.S.].\" \nThe defendant, Lutz, without praying oyer of the articles (without which they could not constitute a part of the declaration), pleaded general performance of the covenants; upon which an issue was joined to the country. Afterwards, the parties, by consent, agreed to refer the cause; and accordingly, by a rule of court, it was ordered, \"that William S. Nicholls and Francis Dodge be appointed referees between the parties aforesaid, with liberty to choose a third person; and that they, or any two of them, when the whole matters  concerning the premises, between the parties aforesaid in variance, being fairly adjusted, have their award in writing under their hands, and return the same to the court here; and judgment of the court to be rendered according to such award, and be final between the said parties.\" The referees so named, on the 28th of January 1833, chose John Kurtz the third referee; and afterwards, on the same day, made their award in the following words. \"We, the subscribers, appointed arbitrators to settle a dispute between Oho M. Linthicum and John Lutz, in which the executors of the late John M'Pherson  of Frederick are interested, do award the sum of eleven hundred and twenty-nine dollars and ninety-three cents, to be paid to the said Linthicum in full, for all expenses and damages sustained by him, in consequence of not leaving him in quiet possession of the house, at the corner of Bridge and High streets, in Georgetown (the demised premises), for the full term of the lease for five years. Any arrear of rent due from Linthicum, to be paid by him.\" Signed by all the referees. Judgment was given by the circuit court, for the full amount of the award so made, and costs; and the present  writ of error is brought to revise that judgment. \n The question, whether the articles of agreement personall bound Lutz, is not presented by the pleading, in such a man ner, as that there might not be difficulty in deciding it, if it constituted the only point in judgment. But if this difficulty were surmounted, and the articles are to be deemed properly before us, we do not see how they can well be construed not to import a personal liability on the part of Lutz, for the want of any obligations contained in them. The articles purport to be made by Lutz, and to be sealed by him; and not to be made and sealed by his principal. The description of himself, as agent, does not, under such circumstances, exclude his personal responsibility. But this very liability was necessarily submitted to the referees, and came within the scope of their award. \nSeveral objections have been taken to the award. In the first place, it is said, that the award is uncertain and not mutual and final; that it does not state by whom the money awarded is to be paid, whether by Lutz, or by the executors of M'Pherson; and that it does not find the arrears of the rent due, and to whom due; and that  it does not appear to be an award made in this cause. We are of opinion that these objections are ill founded. The award is sufficiently shown to be an award in this cause; for no other cause directly appears to have been pending, or in dispute between the parties; and the subject matter of this very suit, is directly within the terms of the award. The award being made in this suit, and applicable in its terms to it, it is sufficiently certain that the money is to be paid by Lutz, for there is no other person on the record to whom it can be judicially awarded to be paid. The award is also mutual and final, as to all the matters referred. It is not a general arbitration at the common law, of all matters in dispute between the parties; but a specific reference of the matters in dispute in the cause pending in court, under a rule of court. Now, those matters were the damages and losses claimed by Linthicum, for the breach of the covenant; and the sum awarded is expressly declared to be \"in full, for all expenses and damages\" so sustained. As to the arrears of the rent due from Linthicum, they constituted no part of the matters submitted. They were not in controversy in the suit.And  the statement in the award, as to any arrears of rent, was  merely an exclusion of a conclusion, which might possibly have been drawn, that the referees had deducted such arrears in making their award. It is therefore very properly stated, that any arrears of rent due by Linthicum are, notwithstanding the award, to be paid by him. \nAnother objection is, that the submission, the appointment of the third referee, the award itself, and the proceedings thereon, have not been according to the acts of assembly of Maryland, and to the order of the court. It is said that the appointment of the third referee ought not to have been made, until after the two other referees had met and heard the cause, and disagreed thereon: but we are of a different opinion. The submission under the rule of court did not contemplate the third referee to be a mere umpire in the case, upon a difference of opinion of the other two; but an original referee, to be chosen by the other two, and when chosen, to constitute a part of the board authorized to hear and decide the cause.How otherwise are we to understand the language of the rule? \" They (that is the three), or any two of them, are to have their  award in writing,\" &c., which words plainly contemplate the case of a hearing by all of them; and if the case were one in which an umpire was to be chosen, there is no impropriety, and on the contrary it has been thought that there is great propriety, in selecting the umpire before the other arbitrators have disagreed. This doctrine has been repeatedly held in England, 1 and it was affirmed in the court of appeals of Maryland in Rigden v. Martin, 6 Harris and John. 403. It is so reasonable in itself, that if the point were new, it would be difficult to displace it. Then, again, it is said that no notice appears to have been given to Lutz of the appointment of the third referee, or of the making or returning the award, and that these acts appear all to have been done on the same day. There is certainly no objection to these acts being done on the same day, if the parties had due notice and a due hearing before the referees, and the award was made upon due deliberation. Without question due notice should be given to the parties, of  the time and place for hearing the cause; and if the award was made without such notice, it ought, upon the plainest principles of justice,  to be set aside. But it is by no means necessary that it should appear upon the face of the award that such notice was given. There is no statute of Maryland (whose laws govern in this part of the district) which requires such facts to be set forth in the award. The act of 1779, ch. 21, sec. 8, merely authorizes submissions by a rule of court of causes pending in the court; and the act of 1785, ch. 80, sec. 11, provides only for cases where either of the parties dies pending the submission, and before the award. If no notice is in fact given, and no due hearing had, the proper mode is to bring such facts (not appearing on the face of the award) before the court, upon affidavit and motion to set aside the award. But, prima facie the award is to be taken to have been regularly made, where there is nothing on its face to impeach it. This very objection was made and overruled in Rigden v. Martin, 6 Harr. and Johns. Rep. 403. \nAnother objection is, that the same act of Maryland of 1785, ch. 80, sec. 11, requires   that in all cases of awards made under a rule of court, the party in whose favour the award is made, shall cause a copy thereof to be delivered to the adverse party or his attorney, at least three days before judgment is moved for upon the award; and the clerk of the court is not to enter judgment upon any award without a motion to, and direction from the court; and the court shall always have satisfactory proof that a copy of the award hath been so delivered, before judgment shall be so directed to be entered; and it is said that there has not been a compliance with this requisite by a delivery of the copy. How that may have been, we have no means of knowing, for nothing appears upon the record respecting it, and there is no ground to say that it ought to constitute any part of the record, or that it is properly assignable as error. It is matter purely collateral and in pais. If no such copy had been delivered, the proper remedy would have been to take the objection in the court below upon the motion for judgment, or to set aside the judgment for irregularity, if there had been no waiver, or no opportunity to make the objections before judgment. But in the present case sufficient  does appear upon the record to show that the party had full opportunity  to avail himself of all his legal rights in the court below. The cause was referred at November term 1832; pending the term, to wit on the 18th of January 1833, the award was filed in court; the cause was then continued until the next term, viz. the fourth Monday in March 1833; at which time the parties appeared by their attorneys, and upon motion, and after argument of counsel, judgment was entered. We are bound to presume, in the absence of all evidence to the contrary, that all things were rightfully and regularly done by the court, and that the parties were fully heard upon all the matters properly in judgment. \nUpon the whole, our opinion is, that the judgment of the circuit court ought to be affirmed. \nThis cause came on to be heard on the transcript of the record from the circuit court of the United States, for the district of Columbia, holden in and for the county of Washington, and was argued by counsel; on consideration whereof, it is ordered and adjudged by this court, that the judgment of the said circuit court in this cause be, and the same is hereby affirmed, with costs and damages at  the rate of six per centum per annum. \n \n\n ", " \nOpinion \n\n \n \n  Mr Justice STORY delivered the opinion of the Court. \nThis is a writ of error to the circuit court of the District of Columbia, for the county of Washington. The case presented on the record, is shortly this. \nThe plaintiff in error, Mumma, in June 1818, recovered a judgment against the Potomac Company, for the sum of five thousand dollars. No steps were taken to enforce the payment of the judgment, nor any further proceedings had in relation thereto, until the 18th day of April 1828, on which day a writ of scire facias was issued from the clerk's office of said court, against the said Potomac Company to revive said judgment, which case was continued by consent of parties, from term to term, until December term of said court, in the year 1830, at which term the following plea and statement were filed by consent of parties. \"The attorneys upon the record  of the said defendants, now here suggest and show to the court, that since the rendition and record of said judgment, the said Potomac Company, in due pursuance and execution of the provisions of the charter of the Chesapeake and Ohio Canal Company, enacted by the states of Maryland and Virginia, and by the congress of the United States, have duly signified their assent to said charter, &c., and have duly surrendered their charter, and conveyed in due form of law, to the said Chesapeake and Ohio canal company, all the property, rights and privileges by them owned, possessed and enjoyed under the same; which  surrender and transfer from said Potomac Company, have been duly accepted by the Chesapeake and Ohio Canal Company, as appears by the corporate acts and proceedings of said company, and final deed of surrender from the said Potomac Company, dated on the 15th day of August 1828, duly executed and recorded in the several counties of the states of Virginia and Maryland, and the District of Columbia, wherein said Potomac Company held any lands, and wherein the canals and works of said company were situated; which said corporate acts and proceedings, the said attorneys here  bring into court, &c. whereby the said attorneys say, the charter of the said Potomac Company became, and is vacated and annulled, and the company and the corporate franchises of the same are extinct,\" &c. \nWhereupon the following statement and agreement were entered into and signed by the counsel for both parties, and made a part of the record. \n\"The truth of the above suggestion is admitted; and it is agreed to be submitted to the court, whether, under such circumstances, any judgment can be rendered against the Potomac Company upon this scire facias, reviving the judgment in said writ mentioned, and that reference for the said corporate acts and proceedings, and the deed in the above suggestion mentioned, be had to the printed collection of acts, &c. &c., printed and published by authority of the president and directors of the Chesapeake and Ohio Canal Company in 1828.\" \nUpon this statement and agreement the circuit court gave judgment, that the plaintiff take nothing by his writ; and the question now is, whether this judgment is warranted by law. \nTwo points have been made at the bar. 1. That the corporate existence of the Potomac Company was not so totally destroyed by the operation  of the deed of surrender, as to defeat the rights and remedies of the creditors of the company. 2. That the deed of surrender violate the obligation of the contracts of the company, and that the legislative acts of Virginia and Maryland, though confirmed by the congress of the United States, are on this account void; and can have no legal effect. \nWe think the the agreement of the parties completely covers the first point, and precludes any examination of it. That  agreement admits the truth of the suggestions in the plea of the attorneys for the Potomac Company; and by that it is averred, that the charter of the Potomac Company was duly surrendered to the Chesapeake and Ohio Canal Company, and was duly accepted by the latter; and that thereby the charter of the Potomac Company became, and is vacated and annulled. And if we were at liberty to consider the last averment, not as an averment of a fact, but of a conclusion of law, the same result would follow; for the thirteenth section of the act of Virginia of January 1824, incorporating the Chesapeake and Ohio Canal Company, declares, that upon such surrender and acceptance, \"the charter of the Potomac Company shall be,  and the same is hereby vacated and annulled; and all the powers and rights thereby granted to  the Potomac Company, shall be vested in the company hereby incorporated.\" \nUnless, then, the second point can be maintained, there is an end of the cause; for there is no pretence to say that a scire facias can be maintained, and a judgment had thereon, against a dead corporation, any more than against a dead man. We are of opinion that the dissolution of the corporation, under the acts of Virginia and Maryland, (even supposing the act of confirmation of congress out of the way) cannot, in any just sense, be considered, within the clause of the constitution of the United States on this subject, an impairing of the obligation of the contracts of the company by those states, any more than the death of a private person can be said to impair the obligation of his contracts. The obligation of those contracts survives; and the creditors may enforce their claims against any property belonging to the corporation, which has not passed into the hands of bona fide purchasers; but is still held in trust for the company or for the stockholders thereof, at the time of its dissolution, in any  mode permitted by the local laws. Besides, the twelfth section of the act incorporating the Chesapeake and Ohio Canal Company, makes it the duty of the president and directors of that company, so long as there shall be and remain any creditor of the Potomac Company, who shall not have vested his demand against the same in the stock of the Chesapeake and Ohio Canal Company (which the act enables him to do), to pay to such creditor or creditors, annually, such dividend or proportion of the net amount of  the revenues of the Potomac Company, on an average of the last five years preceding th organization of the said Chesapeake and Ohio Canal Company, as the demand of the said creditor or creditors at that time may bear to the whole debt of one hundred and seventy-five thousand eight hundred dollars, (the supposed aggregate amount of the debts of the Potomac Company). So that here is provided an equitable mode of distributing the assets of the company among its creditors, by an apportionment of its revenues, in the only mode in which it could be practically done upon its dissolution; a mode analogous to the distribution of the assets of a deceased insolvent debtor. \nIndependent  of this view of the matter, it would be extremely difficult to maintain the doctrine contended for by the plaintiff in error, upon general principles. A corporation, by the very terms and nature of its political existence, is subject to dissolution, by a surrender of its corporate franchises, and by a forfeiture of them for wilful misuser and nonuser. Every creditor must be presumed to understand the nature and incidents of such a body politic, and to contract with reference to them. And it would be a doctrine new in the law, that the existence of a private contract of the corporation should force upon it a perpetuity of existence contrary to public policy, and the nature and objects of its charter. \nWithout going more at large into the subject, we are of opinion that the judgment of the circuit court ought to be affirmed. But as there is no such corporation in esse as the Potomac Company, there can be no costs awarded to it. \nThis cause came on to be heard on the transcript of the record from the circuit court of the United States for the District of Columbia, holden in and for the county of Washington, and was argued by counsel; on consideration whereof, it is ordered, and adjudged  by this court, that the judgment of the said circuit court in this casue be, and the same is hereby affirmed without costs. \n \n\n ", " \nOpinion \n\n \n \n  Mr Justice STORY delivered the opinion of the Court. \nAfter stating the case, he proceeded: \nSeveral objections have been taken by the appellants to the decree. In the first place, it is said that all the parties to the original decree are not made parties to the bill of review. How this matter is, does not distinctly appear, as the proceedings on the original bill, though made a  part of the bill of review, are not, as they ought to have  been, spread upon the present record. The principle is unquestionable, that all the parties to the original decree ought to join in the bill of review; but, for aught that appears, no decree was ever had against the other defendants. If this constituted the turning point of the cause, we should deem it necessary to award a certiorari, as there is reason, from the answer, to doubt if any decree was had against the other defendants, not made parties to the bill of review. \nIn the next place, it is objected, that, after an appearance and demurrer overruled, it is not necessary to serve the party defendant with a copy of the decree, taking the bill pro confesso, for want of an answer. The answer to the bill of review having expressly denied any error and irregularity in the decree, and not having admitted that the service of any such  copy is necessary, that matter was directly put in controversy; and the cause having been set down for a hearing upon the bill and answer, without a replication, it is difficult to perceive how this court can take judicial notice of what the practice of the circuit court is upon this subject, when that practice is the very hinge of the controversy.  But it is not, in our opinion, necessary to enter upon this point; because, we are of opinion that the decree is perfectly regular without the service of any copy, according to the rules prescribed by this court, in equity causes, to the circuit courts; and no practice of the circuit court, inconsistent with those rules, can be admissible to control them. The twentieth of the rules, made by this court at February term 1822, in equity causes, is as follows. \"If a plea or demurrer be overruled, no other plea or demurrer shall be thereafter received; and the defendant shall proceed to answer the plaintiff's bill; and if he fail to do so within two calendar months, the same, or so much thereof as was covered by the plea or demurrer, may be taken for confessed, and the matter thereof be decreed accordingly.\" \nBy the terms of this bill, no service of any copy of an interlocutory decree, taking the bill pro confesso, is necessary, before the final decree; and, therefore, it cannot be insisted on as a matter of right; or furnish a proper ground for a bill of review. If the circuit court should, as matter of favour and discretion, enlarge the time for an answer, or require the service of  a copy before the final decree; that may furnish a ground why that court should not proceed to a final decree, until such order was complied with. But any omission to comply with it, would be a mere irregularity in its practice; and if the court should afterwards proceed to make a final decree without a compliance with it, it would not be error for which a bill of review lies; but it would be to be redressed, if at all, by an order to set aside the decree for irregularity, while the court retains possession and power over the decree and the cause. \nIn the present case the circuit court did proceed to make a final decree, after taking the bill pro confesso. There is no error on the face of that decree. It conforms to the requisitions of the rules of this court; and we are, therefore, of opinion, that it is not liable to reversal upon the present bill of review. \n The decree of the circuit court is reversed, and the cause remanded to that court, with directions to dismiss the bill of review. \nThis cause came on to be heard on the transcript of the record from the circuit court of the United States for the district of Ohio, and was argued by counsel; on consideration whereof,  it is ordered, adjudged and decreed by this court, that the decree of the said circuit court in this cause be, and the same is hereby reversed, and that this cause be, and the same is hereby remanded to the said circuit court, with directions to to dismiss the bill of review in this cause. \n \n\n ", " \nOpinion \n\n \n \n  Mr Justice STORY delivered the opinion of the Court. \nThis is a writ of error to the district court for the western district of Virginia. \nThe original suit was an action of debt brought by the Bank  of the United States upon a promissory note dated the 26th of June 1822, whereby, sixth days after date, Campbell, Vaught & Co. as principals, and David Campbell, and Steele, Donnally (the defendant) and Steeles, as sureties, promised to pay, jointly and severally, to the order of the president, directors and company of the Bank of the United States, twelve thousand eight hundred and seventy-seven dollars, negotiable and payable at the office of discount and deposit of the said bank at Louisville, Kentucky, value received, with interest thereon, at the rate of six per centum per annum thereafter,  if not paid at maturity. The declaration contained five counts, upon the three first of which it is unnecessary to say any thing, as the judgment thereon is not now in controversy. The fourth count stated, that the principal and sureties \"made their other note in writing.\" &c., and thereby promised, &c. (following the language of the note), and then proceeded to aver \"that the said note in writing, so as aforesaid made, at, &c., was, and is a writing without seal, stipulating for the payment of money; and that the same by the law of Kentucky entitled an act, &c., (reciting the title and annexing the enacting clause) is placed upon the same footing with sealed writings, containing the same stipulations, receiving the same consideration in all courts of justice, and to all intents and purposes having the same force and effect as a writing under seal;\" and then concluded with the usual assignment of the breach, by non-payment of the note. The fifth count differed from the fourth, principally, in alleging that \"the principals and sureties by their certain writing obligatory, duly executed by them without a seal, bearing date, &c., and here shown to the court, did promise, &c.,\" and  contained a like averment with the fourth, of the force and effect of such an instrument by the laws of Kentucky. The defendant having a right, according to the laws of Virginia, to plead as many several matters, whether of law or fact, as he should deem necessary for his defence, pleaded nil debet to the three first counts of the declaration (on which issue was jointed) and the statute of limitations of Virginia to the same counts; to which there was a special replication, and a demurrer to that replication and joinder in demurrer. To the fourth and fifth counts the defendant demurred generally, and there was a joinder in demurrer. He  also pleaded to the same counts nil debet and the statute of limitations of Virginia. The plaintiffs demurred to the plea of the statute of limitations, to these latter counts, and also to the plea of nil debet to the fourth count, and joined issue on the plea of nil debet to the fifth count. The court held the plea of the statute of limitations a good bar to all the counts, and accordingly gave judgment upon all the demurrers in favour of the defendant; with the general conclusion, that the plaintiffs take nothing by their bill. The  present writ of error is brought to revise this judgment. \nAs the contract, upon which the original suit was brought, was made in Kentucky, and is sought to be enforced in the state of Virginia, the decision of the case in favour of the defendant, upon the plea of the statute of limitations, will operate as a bar to a subsequent suit in the same state; but not necessarily as an extinguishment of the contract elsewhere, and especially in Kentucky. But a general judgment in favour of the defendant, upon his demurrer to the declaration, (it is supposed) may, as a judgment upon the merits of the claim, have a very different operation, as a res judicata or final judgment. Hence there arises a very important consideration, as to the correctness of the judgment upon that demurrer. It has accordingly been argued at large, by the counsel for the bank, as vital to the rights, as well as to the remedies of the bank in other states. We are of opinion, that the fourth and fifth counts are, upon general demurrer, good; and that the judgment of the court below, as to  them, was erroneous. They set out a good and sufficient cause of action, in due form of law; and the averments, that  the contract was made in Kentucky, and that, by the laws of that state, it has the force and effect of a sealed instrument, do not vitiate the general structure of those counts, founding a right of action on the note set forth thereon. At most, they are but surplusage; and if they do not add to, they do not impair the legal liability of the defendant, as asserted in the other parts of those counts. \nThe other point, growing out of the statute of limitations, pleaded to the fourth and fifth counts (for as to the three first counts it is conceded to be a good bar) involves questions of a very different character, as to the operation and effect of a conflict of laws in cases governed by the lex loci. The statute  of limitations of Virginia provides, that \"all actions of debt, grounded upon any lending or contract without specialty,\" shall be commenced and sued within five years next after the cause of such action or suit, and not after. This being the language of the act, and confessedly governing the remedy in the courts of Virginia, the bar of five years must apply to all cases of contract, which are without specialty, or, in other words, are not founded on some instrument  acknowledged as a specialty by the law of that state. The common law being adopted in Virginia, and the word \"specialty\" being a term of art of that law, we are led to the consideration, whether the present note is deemed, in the common law, to be a specialty. And certainly it is not so deemed. It is not a sealed contract, nor does it fall under any other description of instruments or contracts or acts known in the common law as specialties. The argument does not deny this conclusion; but it endeavours to escape from its force, by affirming, that the note is a specialty according to the laws of Kentucky; and if so, that this constitutes a part of its nature and obligation; and it ought, every where else, upon principles of international jurisprudence, to be deemed of the like validity and effect. \nThe act of Kentucky of the 4th of February 1812 provides, \"that all writings hereafter executed without a seal or seals, stipulating for the payment of money or property, or for the performance of any act, duty or duties, shall be placed upon the same footing with sealed writings, containing the like stipulations, receiving the same consideration in all courts of justice, and to all intents  and purposes, having the same force and effect, and upon which the same species of action may be founded, as if sealed.\" Now, it is observable, that this statute does not in terms declare, that such writings shall be deemed specialties; nor does it say, that they shall be deemed sealed instruments. All that it affirms is, that they shall be put upon the same footing as sealed instruments, and have the same consideration, force, effect and remedy as sealed instruments. So that it is perfectly consistent with the whole scope and object of the act, to give them the same dignity and obligation as specialties, without intending to make them such. A state legislature may certainly provide, that the same remedy shall be had in a promissory note, as on a bond or sealed instrument;  but it will not thereby make the note a bond or sealed instrument. It may declare that its obligation and force shall be the same as if it were sealed; but that will still leave it an unsealed contract. 1 \nBut whatever may be the legislation of a state, as to the obligation or remedy on contracts,  its acts can have no binding authority beyond its own territorial jurisdiction. Whatever authority they have in other states, depends upon principles of international comity, and a sense of justice. The general principle adopted by civilized nations is, that the nature, validity and interpretation of contracts, are to be governed by the law of the country where the contracts are made, or are to be performed. But the remedies are to be governed by the laws of the country where the suit is brought; or, as it is compendiously expressed, by the lex fori. No one will pretend, that because an action of covenant will lie in Kentucky, on an unsealed contract made in that state; therefore, a like action will lie in another state, where covenant can be brought only on a contract under seal. It is an appropriate part of the remedy, which every state prescribes to its own tribunals, in the same manner in which it prescribes the times within which all suits must be brought. The nature, validity and interpretation of the contract may be admitted to be the same in both states; but the mode by which the remedy is to be pursued, and the time within which it is to be brought, may essentially differ.  The remedy, in virginia, must be sought within the time, and in the mode and according to the descriptive characters of the instrument, known to the laws of Virginia, and not by the description and characters of it, prescribed in another state. An instrument may be negotiable in one state, which yet may be incapable of negotiability by the laws of another state; and the remedy must be in the courts of the latter on such instrument, according to its own laws. \nIf, then, it were admitted, that the promissory note now in controversy, were a specialty by the laws of Kentucky, still it would not help the case, unless it were also a specialty, and recognised as such, by the laws of Virginia; for the laws of the  latter must govern as to the limitation of suits in its own courts, and as to the interpretation of the meaning of the words used in its own statutes. \nIt may be added, that neither the fourth count, nor the fifth count of this declaration, aver the note to be a specialty; nor does either assert it to be a sealed writing; but the contrary: so that the court are called upon to make an intendment as to the operation of a foreign law, which, if essential to the case, should  have been directly stated, and not left to mere inference. \nThe case, however, is not without authority, even if it were not clear upon principle. In Warren v. Lynch, 5 Johns. R. 239, where a promissory note was made in Virginia, payable in New York, and the maker signed it with a scrawl, which, in Virginia, is deemed to be a seal; on a suit in New York, it was held to be an unsealed instrument (the laws of New York  recognising no instrument as sealed, unless such as are with a wax or wafer seal), and, therefore, that the proper form of action was assumpsit, and not debt. In Andrews v. Herriot, 4 Cowen 508, it was held, that an action of covenant will not lie in New York, on a contract to be performed in Pennsylvania, where there was a scrawl instead of a seal in the locus signilli; although, by the law of Pennsylvania, a scrawl is deemed a seal. In Trasher v. Everhart, 3 Gill and Johns. R. 234, it was held, that in case of a single bill made in Virginia (where it is not deemed a specialty), sued in Maryland, an action of assumpsit is not maintainable as upon a simple contract, but must be debt; because, in Maryland, such single bill is deemed a specialty. The doctrine  of these cases seems directly in point; and a very close analogy may be found in the case of Jones v. Hook's Administrator, 2 Randolph 303, where the court of appeals of Virginia held, in an action of debt, upon a judgment of North Carolina, brought in Virginia, that the statute of limitations of North Carolina was no bar, but that of Virginia, if applicable, governed the remedy. \nUpon the whole, our opinion is, that the judgment upon the demurrer by the defendant, to the fourth and fifth counts, ought to be reversed; and that in all other respects, it ought to be affirmed. But, as the plea of the statute of limitations is a good bar to all the counts, the judgment of the court below,  that the plaintiffs take nothing by their writ, is right, and ought to be affirmed with costs. \nThis cause came on to be heard on the transcript of the record from the district court of the United States for the western district of Virginia, and was argued by counsel; on consideration whereof, it is considered by the court here, that the judgment of the district court of the western district of Virginia is erroneous in this, that upon the demurrer of the said Donnally, to the said fourth  and fifth counts in the said declaration, the judgment ought not to have been as is set forth in the record, but ought to have been, that the fourth and fifth counts aforesaid are good and sufficient in law, to have and maintain the action aforesaid, of the plaintiffs aforesaid, for the matters contained therein; and it is further considered by the court here, that the special pleas pleaded by the said Donnally, of the statute of limitations, to the first, second and third counts of the said declaration, are good and sufficient in law, to preclude the said plaintiffs from having and maintaining their action aforesaid thereon, notwithstanding the matters set up by the said plaintiffs, in their replication to the said special pleas; and it is further considered by the court here, that the special pleas pleaded by the said Donnally, to the said fourth and fifth counts of the declaration aforesaid, of the statute of limitations, and also of nil debet to the said fifth count, are good and sufficient in law, to preclude the said plaintiffs from having and maintaining their action aforesaid, against the said Donnally. And, therefore, inasmuch as it appears to the court here, that, upon the  whole record, the pleas aforesaid, so as aforesaid pleaded by the said Donnally, and adjudged in his favour are, in law, a good and sufficient bar to the action aforesaid, upon all the counts contained in the declaration aforesaid, notwithstanding the fourth and fifth counts thereof are otherwise good and sufficient in law: it is therefore considered by the court here, that the judgment aforesaid of the district court of the western district of Virginia, that the said plaintiffs take nothing by their bill aforesaid, be, and the same is hereby, for this cause, affirmed with costs. \n \n\n ", " \nOpinion \n\n \n \n  Mr Justice STORY delivered the opinion of the Court. \nThis is a criminal case, certified from the circuit court of the district of Kentucky upon a division of opinion of the judges of that court. \nThe defendant, John Bailey, was indicted for false swearing under the third section of the act of congress of the 1st day of March 1823, ch. 165, which provides \"that if any person shall swear or affirm falsely touching the expenditure of public money, or in support of any claim against the United States, he or she shall, upon conviction thereof, suffer as for wilful and corrupt perjury.\" The indictment chartes the false swearing to be in an affidavit made by the defendant, before a justice of the peace of the commonwealth of Kentucky, in support of a claim against the United States, under the act of congress of the 5th day of July 1832, ch.  173, to provide for liquidating and paying certain claims of the state of Virginia: and there are various counts in the indictment, stating the charge in different manners. It appears from the record, that at the trial \"the attorney for the United States read in evidence the papers set out in the indictment, purporting to be the affidavit of the prisoner, with the certificates of the said Josiah Reed and William  Suddeth, and gave evidence  to the jury, conducing to prove that the prisoner did, at the time and place charged in the indictment, take oath as charged, and subscribe the paper set out in the indictment as his affidavit, before the said Reed; and that the said Reed was then and there a justice of the peace of the commonwealth of Kentucky, in and for the said county of Bath, duly commissioned, qualified and acting as such; and also gave evidence conducing to prove, that immediately after the passage of the said act of congress of the 5th day of July 1832, entitled \"an act for liquidating and paying certain claims of the state of Virginia,\" the secretary of the treasury did establish, as a regulation for the government of the department and its officers,  in their action upon the claims in said act mentioned, that affidavits made and subscribed before any justice of the peace, of any of the states of the United States, would be received and considered, to prove the persons making claims under said act, or the deceased whom they represented, were the persons entitled under the provisions thereof, and that the said regulations had been ever since acted under at the department, and numerous claims heard, allowed and paid on such affidavits; and also gave evidence conducing to prove that the prisener, acting as the executor of his father, John Bailey, had, before the time of making and subscribing said affidavit, asserted the claim therein mentioned, and employed Thomas Triplett to prosecute the same, and receive the money thereon; that the said Triplett did afterwards present the said affidavit and certificates, in support of said claim at the said department, on which, together with other affidavits, the same was allowed and the money paid, and a part thereof paid to the prisoner. The above being all the evidence conducing to prove the authority or jurisdiction of said Josiah Reed, to administer said oath and take said affidavit, the  counsel for the prisoner moved the court to instruct the jury, that the said Josiah Reed had no authority or jurisdiction to administer said oath or take said affidavit; and that whatever other facts they might find on the evidence, the prisoner could not have committed the crime of perjury, denounced by the thirteenth section of the act of congress, more effectually to provide for the punishment of certain claims against the United States and for other purposes, \"approved on the 3d of March 1825,\" nor of false swearing denounced  by the third section of the act \"in addition to the act\" entitled \"an act for the prompt settlement of public accounts, and for the punishment of the crime of perjury,\" approved on the 1st of March 1823, and their verdict ought to be for the prisoner; which motion the attorney for the United States opposed. \nOn this question, the judges were divided and opposed in opinion, whereupon, on the motion of the attorney of the United States, the said question and disagreement were stated, and ordered to be certified to the supreme court. \nIt is admitted that there is no statute of the United States which expressly authorizes any justice of the peace of  a state, or indeed any officer of the national government, judicial or otherwise, to administer an oath in support of any claim against the United States under the act of 1832, ch. 173. And the question is, whether, under these circumstances, the oath actually administered in this case was an oath upon which there would be a false swearing, within the true intent and meaning of the act of 1823, ch. 165. \nIt is unnecessary to consider in this case, whether an oath taken before a mere private or official person, not authorized to administer an oath generally, or in special cases, or not specially authorized,recognised or allowed by the regulations or practice of the treasury department, as competent to administer an oath, in support of any claim against the United States; would, though the claim should be admitted or acted upon in the treasury department, under such a supposed sanction, be within the provision of the act of 1823, ch. 165. These questions may well be reserved for consideration until they shall arise directly in judgment. In the present case, the oath was administered by a state magistrate, having an admitted authority under the state laws to administer oaths, virtute  officii, in many cases, if not in the present case; and it is further found in the case, that there was evidence at the trial conducing to prove, (and for the purposes of the present argument it must be taken as proved) that the secretary of the treasury did establish a regulation, authorizing affidavits made before any justice of the peace, of a state, to be received and considered in proof of claims under the act of 1832; so that the solution of the question, now before us, depends upon this; whether the oath, so  administered under the sanction of the treasury department, is within the true intent and meaning of the act of 1823. \nAdmitting, for the sake of argument, that it is true (on which, however, we express no opinion) that a state magistrate is not compellable to administer an oath, virtute officii, under a law of the United States which expressly confers power on him for that purpose; still, if he should choose to administer an oath under such a law, there can be no doubt, that it would be a lawful oath, by one having competent authority; and as much so, as if he had been specially appointed a commissioner under a law of the United States, for that purpose. And  we think, that such an oath administered under such circumstances, would clearly be within the provision of the act of 1823. That act does not create or punish the crime of perjury, technically considered. But it creates a new and substantive offence of false swearing, and punishes it in the same manner as perjury. The oath, therefore, need not be administered in a judicial proceeding, or in a case of which the state magistrate, under the state laws, had judicial jurisdiction, so as to make the false swearing perjury. It would be sufficient that it might be lawfully administered by the magistrate, and was not in violation of this official duty. \nThere being no express authority given by any law of the United States, to any state magistrate, to administer an oath in the present case, the next inquiry naturally presented is, whether the secretary of the treasury had an implied power to require, authorize, allow or admit any affidavits sworn before state magistrates, in proof or in support of any claim under the act of 1832; for if he had, it would be very difficult to show that such an affidavit is  not within the true intent and meaning of the act of 1823, as it certainly  is within the very words of the enactment. The policy of the act clearly extends to such a case; and the public mischief to be remedied is precisely the same, as if the affidavit had been taken under the express and direct authority of a statute of the United States. \nAnd we are of opinion, that the secretary of the treasury did, by implication, possess the power to make such a regulation, and to allow such affidavits in proof of claims, under the act of 1832. It was incident to his duty and authority, in settling claims, under that act. The third section provides \"that the  secretary of the treasury be, and he is hereby directed and required to adjust and settle those claims for half pay of the officers of the aforesaid regiment and corps, which have not been paid, &c.; which several sums of money herein directed to be settled or paid, shall be paid out of any money in the treasury not otherwise appropriated by law.\" It is a general principle of law, in the construction of all powers of this sort, that where the end is required, the appropriate means are given. It is the duty of the secretary to adjust and settle these claims, and in order to do so he must have authority  to require suitable vouchers and evidence of the facts, which are to establish the claim. No one can well doubt the propriety of requiring the facts which are to support a claim, and rest on testimony, to be established under the sanction of an oath; and especially in cases of the nature of those which are referred to in the act, where the facts are so remote in point of time, and must be so various in point of force and bearing. It cannot be presumed that congress were insensible of these considerations, or intended to deprive the secretary of the treasury of the fullest use of the best means to accomplish the end, viz. to suppress frauds, and to ascertain, and allow just claims. It is certain, that the laws of the United States have, in various cases of a similar nature, from the earliest existence of the government down to the present time, required the proof of claims against the government to be by affidavit. In some of these laws authority has been given to judicial officers of the United States to administer the oaths for this purpose; and at least as early as 1818, a similar authority was confided to state magistrates. The citations from the laws, made at the argument,  are direct to this point, and establish in the clearest manner a habit of legislation to this effect. 1 It may be added, that it has been stated by the attorney-general, and is of public notoriety, that there has been a constant practice and usage in the treasury department in claims against the United States, and especially of a nature like the present, to require evidence by affidavits in support of the claim, whether the same has been expressly  required by statute or not; and that, occasionally, general regulations have been adopted in the treasury department for this purpose. \nCongress must be presumed to have legislated under this known state of the laws and usage of the treasury department. The very circumstance that the treasury department had, for a long period, required solemn verifications of claims against the United States, under oath, as an appropriate means to secure the government against frauds, without objection; is decisive to show  that it was not deemed an usurpation of authority. \nThe language of the act of 1823 should, then, be construed with reference to this usage. The false swearing and false affirmation, referred to in the act, ought to be construed to include all cases of swearing and affirmation required by the practice of the department in regard to the expenditure of public money, or in support of any claims against the United States. The language of the act is sufficiently broad to include all such cases; and we can perceive no reason for excepting them from the words, as they are within the policy of the act, and the mischief to be remedied. The act does no more than change a common law offence into a statute offence. \nThere is nothing new in this doctrine. It is clear, by the common law, that the taking of a false oath, with a view to cheat the government, or to defeat the administration of public justice, though not taken within the realm, or wholly dependent upon usage and practice, is punishable as a misdemeanour. The case of O'Mealy v. Newell, 8 East's Rep. 364, affords an illustration of this doctrine. In that case it was held, that a person making, or knowingly using a false affidavit  of debt, sworn before a foreign magistrate, in a foreign country, for the purpose of holding a party to bail in England; although such affidavit was not authorized by any statute, but was solely dependent upon the practice and usage of the courts of England; was punishable as a misdemeanour at the common law, as an attempt to pervert public justice. Upon this occasion Lord Ellenborough, after alluding to the practice of receiving such affidavits made in Ireland and Scotland, as well as in foreign countries, said, the practice in both cases must be equally warranted or unwarranted. In none of these cases  can the party making a false affidavit be indicted specifically for the crime of perjury, in the courts of this country. But in all of them, as far as he is punishable at all, he is punishable for a misdemeanour, in procuring the court to make an order to hold to bail, by means and upon the credit of a false and fraudulent voucher of a fact produced and published by him for that purpose. And the court held the practice perfectly justifiable. \nUpon the whole, we are of opinion that where the oath is taken before a state or national magistrate, authorized to administer  oaths, in pursuance of any regulations prescribed by the treasury department, or in conformity with the practice and usage of the treasury department, so that the affidavit would be admissible evidence at the department in support of any claim against the United States, and the party swears falsely, the case is within the purview of the act of 1823, ch. 165. It will be accordingly certified to the circuit court, that the said Josiah Reed, named in the certificate of division of the judges of the circuit court, being a justice  of the peace of the commonwealth of Kentucky, authorized by the laws of that state to administer oaths, had authority and jurisdiction to administer the oath, and take the affidavit in the said certificate of division mentioned; and that if the facts stated therein were falsely sworn to, the case is within the act of congress of the 1st day of March 1823, referred to in the same certificate. \n[*266contd] [EDITOR'S NOTE: The page numbers of this document may appear to be out of sequence; however, this pagination accurately reflects the pagination of the original published document.] \nThis cause came on to be heard on the transcript  of the record from the circuit court of the United States for the district of Kentucky; and on the point on which the judges of the said circuit court were opposed in opinion, and which was certified to this court for its opinion, agreeably to the act of congress in such case made and provided; and was argued by counsel: on consideration whereof, it is ordered and adjudged by this court, that it be certified to the said circuit court, as the opinion of this court, that the said Josiah Reed, named in the certificate of division, being a justice of the peace of the common-wealth of Kentucky, authorized by the laws of that state to administer oaths, had authority and jurisdiction to administer the oath and take the affidavit in the said certificate of division mentioned, and that if the facts stated therein were falsely sworn to, the case is within the act of congress of the 1st day of March 1823, referred to in the same certificate. \nDissent by:", " \nOpinion \n\n \n \n  Mr Justice STORY delivered the opinion of the Court. \nThis is the case of an appeal from a decree of the circuit court of the district of Pennsylvania, in a suit in equity. The bill was filed by Samuel Packer, and asserts, that one Matthias Aspden, a citizen of Pennsylvania, made his will, dated in Philadelphia, on the 6th of December 1791; and thereby bequeathed all his estate, real and personal, to his  heir at law, and afterwards died in August 1824, and his will was proved and letters testamentary were taken out in Pennsylvania by the appellee, under which he has received large sums of money; and the bill then asks for a decree in favour of Packer, who asserts himself to be the true and only heir at law of Matthias Aspden, and that he is solely entitled under the bequest. The answer of the executor states, from information and belief, that the testator was born in Philadelphia, which was the residence of his parents, about 1756; that he continued to reside there, doing business as a merchant, with some success, before he was twenty-one years of age; that before the breaking out of the war between Great Britain and America in 1776, being still a minor, he went to England, with what view, the executor is not, from his own knowledge, able to say -- but he believes that he went with an  impression, that the power of Great Britain must soon prevail in putting down resistance in America; that the testator subsequently came several times to the United States, and invested large sums in government stocks and other securities; but whether after so returning to the United States,  the testator went back to England as his home, or only for the purpose of superintending his property, and whether the testator did in fact change his domicil, the executor (save and except as appears from the facts) doth not know, and is unable to answer; but he believes that the testator, when in England, considered himself as an alien, &c.; and he died in King street, Holborn, London. The answer also states, that the executor proved the will, and took out letters testamentary in England; and states certain proceedings had upon a bill in chancery in England, against him, by one John Aspden there, claiming to be the heir at law of the testator; and annexes to his answer a copy of the bill. He also alleges, that several other persons have made claims to the same property, as next of kin of the testator, of whose names, &c. he annexes a schedule. \nVarious proceedings were had in the circuit court of Pennsylvania; and a reference was made to a master to examine and state who were all the heirs, and next of kin, of the testator. The master made a report, which was afterwards confirmed; and thereupon a final decree was made by the court, in favour of John Aspden of Lancashire in England,  one of the persons who made claim before the master, as entitled, as heir at law, to the personal estate in the hands of the executor; and the claims of the other persons claiming as heirs at law, were dismissed; and the present appeal has been taken by several of these claimants. \nThe cause having come before this court for argument upon the merits; a question occurred whether the frame of the bill, taken by itself, or taken in connexion with the answer, contained sufficient matter upon which the court could proceed to dispose of the merits of the cause, and make a final decision. The bill contains no averment of the actual domicil of the testator at the time of the making of his will, or at the time of his death, or at any intermediate period. Nor does the answer contain any averments of domicil, which supply these  defects in the bill, even if it could so do; as we are of opinion, in point of law, it could not. Every bill must contain in itself sufficient matters of fact, per se, to maintain the case of the plaintiff; so that the same may be put in issue by the answer, and established by the proofs. The proofs must be according to the allegations of the parties: and  if the proofs go to matters not within the allegations, the court cannot judicially act upon them as a ground for its decision: for the pleadings do not put them in contestation. The allegata and the probata must reciprocally meet and conform to each other. The case cited at the bar, of Matthew v. Hanbury, 1 Vern. Rep. 187, does not in any manner contradict this doctrine. The proofs there offered were founded upon allegations in the bill, and went directly to overthrow the consideration of the bonds, set up in the answer, in opposition to the allegations of the bill; the latter having asserted that the  bonds were obtained by threats and undue means, and not for any real debt, or other good consideration. Is, then, any averment of the actual domicil of the testator, under the circumstances of the present case, proper and necessary to be made in the bill, in order to enable the court to come to a final decision upon the merits? We think that it is, for the reasons which will be presently stated. \nThe point was never brought before the circuit court for consideration; and, consequently, was not acted on by that court. It did not attract attention, (at least as far as  we know) on either side, in the argument there made; and it was probably passed over, (as we all know matters of a similar nature are every where else) from the mutual understanding that the merits were to be tried, and without any minute inquiry whether the merits were fully spread upon the record. It is undoubtedly an inconvenience, that the mistake has occurred; but we do not see how the court can, on this account, dispense with what, in their judgment, the law will otherwise require. \nThe present is the case of a will, and so far at least as the matter of the bill is concerned, is exclusively confined to personalty bequeathed by that will. And the court are called upon to give a construction to the terms of the will; and in an especial manner to ascertain, who is meant by the words \"heir at law,\" in the leading bequest in the will. The language of wills is  not of universal interpretation, having the same precise import in all countries, and under all circumstances. They are supposed to speak the sense of the testator, according to the received laws or usages of the country where he is domiciled, by a sort of tacit refernece; unless there is something in the language  which repels or controls such a conclusion. In regard to personalty in an especial manner, the law of the place of the testator's domicil governs in the distribution thereof, and will govern in the interpretation of wills thereof; unless it is manifest that the testator had the laws of some other country in his own view. \nNo one can doubt, if a testator born and domiciled in England during his whole life, should, by his will, give his personal estate to his heir at law; that the descriptio personae would have reference to and be governed by the import of the terms in the sense of the laws of England. The import of them might be very different, if the testator were born and domiciled in France, in Louisiana, in Pennsylvania, or in Massachusetts. In short, a will of personalty speaks according to the laws of the testator's domicil, where there are no other circumstances to control their application; and to riase the question, what the testator means, we must first ascertain what was his domicil, and whether he had refernece to the laws of that place, or to the laws of any foreign country. Now, the very gist of the present controversy turns upon the point who were the person, or persons,  intended to be designated by the testator, under the appellation of \"heir at law.\" If, at the time of making his will, and at his death, he was domiciled in England, and had a reference to its laws, the designation might indicate a very different person, or persons, from what might be the case, (we do not say what is the case) if, at the time of making his will, and of his death, he was domiciled in Pennsylvania. In order to raise the question of the true interpretation and designation, it seems to us indispensable that the country, by whose laws his will is to be interpreted, should be first ascertained; and then the inquiry is naturally presented, what the provisions of those laws are. \nIf this be the true posture of the present case, then the bill should allege all the material facts upon which the plaintiff's title depends; and the final judgment of the court must be given, so as to put them in contestation in a proper and regular  manner. And we do not perceive how the court can dispose of this cause without ascertaining where the testator's domicil was, at the time of his making his will, and at the time of his death; and if so, then there ought to be suitable averments  in the bill to put these matters in issue. \nIn order to avoid any misconception, it is proper to state, that we do not mean, in this stage of the cause, to express any opinion, what would be the effect upon the interpretation of the will, if the domicil of the testator was in one country at the time of his making his will, and in another country at the time of his death. This point may well be left open for future consideration. But being of opinion, that an averment of the testator's domicil is indispensable in the bill, we think the case ought to be remanded to the circuit court, for the purpose of having suitable amendments made in this particular; and that it will be proper to aver the domicil at the time of making the will, and at the time of the death of the testator, and during the intermediate period (if there by any change), so that the elements of a full decision may be finally brought before the court. The petitions of the claimants should contain similar averments. \nIt appears, from the motions which have been made to this court, as well as from certain proceedings in the court below, which have been laid before us in support thereof; that there are certain claimants  of this bequest, asserting themselves to be heirs at law; whose claims have not been adjudicated upon in the court below, on account of their having been presented at too late a period. As the cause is to go back again for further proceedings, and must be again opened there for new allegations and proofs, these claimants will have a full opportunity of presenting and proving their claims in the cause: and we are of opinion, that they ought to be let into the cause for this purpose. In drawing up the decree, remanding the cause, leave will be given to them, accordingly. The decree of the circuit court is, therefore, reversed; and the cause is remanded to the circuit court, for further proceedings, in conformity to this opinion. \nThis cause came on to be heard on the transcript of the record from the circuit court of the United States for the district of Pennsylvania, and was argued by counsel; on consideration whereof, it is ordered, adjudged and decreed, that the decree of the said circuit court in the premises be, and hereby is reversed and annulled, and that the cause be remanded to the said circuit court for further proceedings; with directions to the said court to allow the  bill and the petitions of the claimants to be amended, and the answers and pleadings so to be amended to conform thereto, and proofs to the new matter also to be taken; and with further directions to allow any other person or persons, not now parties to the proceedings, who shall claim title to the funds in controversy as heir or heirs at law or representatives of the testator, to present their claims respectively before the said court, and to make due proofs thereof, and to become parties to the proceedings, for the due establishment and adjudication thereof. But the proofs already taken in the cause are to be deemed admissible evidence in regard to all such persons, not now parties, who shall claim title as aforesaid, and become parties in the cause under this order; and such other proceedings are to be had in the said cause by the said court, as to law, equity and justice shall appertain. \nDissent by:", " \nOpinion \n\n \n \n  Mr Justice STORY delivered the opinion of the Court. \nThis is a writ of error to the circuit court of the district of Kentucky, to revise a judgment of that court, in a case where the plaintiffs in error were original plaintiffs in the suit. \nThe suit was an action of debt brought upon a promissory note, dated the 7th of February 1822, whereby the defendants, on or before the 7th of February 1825,  jointly and severally promised to pay the President, &c. of the Bank of the United States, at their office of discount and deposit, at Lexington, 5000 dollars with interest thereon, after the rate of six per cent per annum, until paid, for value received. And by a memorandum on the back of the note, the interest was to be charged only from the 21st of May 1822; that being the day on which the money was actually received by the makers of the note. \nThe plea of payment was put in, upon which issue was joined; and it was agreed between the parties, that either party under the issue might give in evidence any special matter which could be specially pleaded. At the trial a verdict was rendered for the defendants, upon which, judgment passed in their favour; and the cause is now brought before us for revision, upon a bill of exceptions taken at the trial, and for matters of law therein stated. \n From the evidence at the trial, it appears that prior to the time when the note was given, viz. in 1819, the bank of Kentucky, which had previously been in high credit, suspended specie payments; and at that time the institution was indebted to the plaintiffs, the Bank of the United  States, in a large sum of money, for notes of the Bank of Kentucky, taken at par, in the usual course of business, and for government deposits transferred to the office at Lexington, from the Bank of Kentucky and its branches. The accounts had been settled between the two institutions, the balance ascertained and placed to the credit of the plaintiffs, on the books of the Bank of Kentucky as a deposit; upon which the Bank of Kentucky agreed, in consideration of forbearance, to pay interest at the rate of six per cent per annum; and the interest, as it accrued, was carried, at stated intervals, to the credit of the plaintiffs, on the books of the bank. This agreement was punctually performed by the Bank of Kentucky, and the balance which remained due to the plaintiffs was finally settled and discharged in specie, or its equivalent; in about seven months after the negotiation, which will be inmediately noticed. \nIn this state of things, Owens, one of the defendants, made repeated applications to the Lexington office of the Bank of the United States, for an accommodation of 5000 dollars, in Kentucky Bank notes; of which the office had a considerable sum on hand; stating that such notes  would answer his purpose as well as gold or silver, and agreeing to receive them at their nominal amounts. These applications were rejected; and finally, at his urgent suggestions, an application was made to the parent bank at Philadelphia, to permit the Lexington office to grant the application; and the parent bank accordingly gave the permission. The note now in suit was accordingly given, with a mortgage of real estate as collateral security; and 1100 dollars were received in Kentucky Bank notes, and the remaining 3900 dollars were paid by a check  drawn on the Bank of Kentucky, which was duly honoured; and the amount of the check was deducted from the balance due to the plaintiffs, and interest thereon immediately ceased. \nIt further appeared, at the trial, that the Bank of Kentucky was never insolvent, but had always sufficient effects to pay its debts; that it has been several times sued for its debts, which  had been always paid in specie, or other arrangements had been made satisfactory to the creditors; it had discharged the greater part of its debts, and had distributed among its stockholders 10 dollars in specie and 70 dollars in notes of the Commonwealth  Bank of Kentucky, (which were at a great depreciation), and that all its funds had not yet been distributed. \nThe Bank of Kentucky never resumed specie payments, and at the time of the negotiation above stated, the notes were depreciated from thirty-three to forty per cent, and were current as a circulating medium at this rate of depreciation. They were, however, by law, receivable for state taxes and county levies at par, and had accordingly been so received. \nUpon this evidence the plaintiffs moved the court to instruct the jury as follows. \n\"1. That, if they believe from the evidence, that the consideration of the note sued on was 3900 dollars paid in check on the Bank of Kentucky, and 1100 in Kentucky Bank notes; and that the contract was fairly made, without any intention to evade the laws against usury, but that the parties making the contract intended to exchange credits for the accommodation of Owens; that the Bank of Kentucky was solvent, and so understood to be, and able to pay all its debts by coercion: that the contract is not void for usury, nor contrary to the fundamental law or charter of the bank, notwithstanding it was known to the parties that said bank did not pay  specie for its notes without coercion; and that the difference in exchange between bank notes of the Bank of Kentucky, and gold and silver, was from thirty-three to forty per cent against the notes of the Bank of Kentucky. \n\"2. To instruct the jury that, if they believe from the evidence that the contract was made on the part of the bank fairly, and with no intention to avoid the prohibition of their charter, by taking a greater rate of interest than six per cent, or the statutes against usury, but at the instance, and for the accommodation and benefit of the defendant Owens; and that at the time of the negotiation and contract for the check on the bank, and the 1500 dollars in bank notes of the Bank of Kentucky, the Bank of Kentucky was indebted to the Bank of the United States, at their office aforesaid, the sum of 10,000 dollars or more, bearing an interest of six per cent; which sum,  it was unerstood and believed by the parties to the contract, at and before its execution, the Bank of Kentucky, with interest, was well able to pay, and which sum it did pay, after deducting the 3900 dollars paid to the defendant OWens, with interest in gold or silver, or its equivalent:  that the contract was not usurious, unless they believe that the contract was a shift or device entered into to avoid the statute against usury, and the prohibition of the charter, notwithstanding the jury should find that the check and notes aforesaid were, in point of fact, of less value than gold and silver. \n\"3. If the jury find from the evidence in the cause, that the defendants applied to the plaintiffs to obtain from them 5000 dollars of the notes of the President, Directors and Company of the Bank of Kentucky; and in consideration of their delivering, or causing to be delivered to the defendants 5000 dollars of such notes; and the said Bank of Kentucky was then solvent and able to pay the said notes, and has so continued up to this time; and that the holders thereof could, by reasonable diligence, have recovered the amount thereof, with six per centum per annum interest thereon, from the time of the delivery of them by plaintiffs to defendants, up to the time of such recovery; and that said arrangement and contract was not made under a device, or with the intent to evade the statutes against usury, or to evade the law inhibiting the plaintiffs from receiving or reserving upon  loans interest at a greater rate than six per centum per annum: then the transaction was not in law usurious or unlawful, and the jury should find for the plaintiffs. \n\"4. That unless the jury find, from the evidence in the cause, that the advance sale or loan of the notes on the Bank of Kentucky, made by plaintiffs to defendants, was so made as a shift or device to avoid the statute against usury, or in avoidance of the clause of the act of congress which inhibits the plaintiffs from taking or reserving more than at the rate of six per centum per annum for the loan, forbearance, or giving day of payment of money: the law is for the plaintiffs, and the jury would find accordingly. \n\"5. That unless they believe, from the evidence in this cause, that there was a lending of money, and a reservation of a greater rate of interest than at the rate of six per centum per  annum, stipulated to be paid by defendants to plaintiffs, the law is for the plaintiffs, and the jury should find for them. Unless they further find that there was a shift or device resorted by the parties with the intent and for the purpose of avoiding the law, by which something other than money was advaned,  and by which a greater rate of interest than six per cent was allowed. \n\"6. That if the defendants applied to the plaintiffs for a loan of 5000 dollars of the notes of the Bank of Kentucky, and agreed to give therefor their note for 5000 dollars, payable three years thereafter, with interest, and the Bank of Kentucky was then, and continued thereafter to be solvent, and the said Bank of Kentucky did thereafter pay and discharge to the holders thereof the said notes: the said contract was not unlawful, although the notes of the Bank of Kentucky would not then command, in gold or silver, their nominal amount when offered for sale or exchange as a commodity or money. \n\"7. That if they find from the evidence that the defendants obtained from the plaintiffs 5000 dollars of the notes of the Bank of Kentucky, or 3900 dollars in a check upon said bank, and 1100 of its notes, and in consideration thereof, made the note sued upon: the said transaction was not therefore unlawful or usurious, although the notes of the Bank of Kentucky were then at a depreciation in value of thirty-three per cent in exchange for gold and silver. \n \"8. That there is no evidence in this cause conducing  to prove that there was a loan by the plaintiffs to the defendants of notes on the President, Directors and Company of the Bank of Kentucky.\" \nThe court refused to give any of these instructions; and upon the prayer of the defendants, instructed the jury as follows: \n\"That if they find from the evidence that the only consideration for the obligation declared upon was a loan made by the plaintiffs to Owens of 5000 dollars, in notes of the Bank of Kentucky, estimated at their nominal amounts, part paid in the notes themselves, and the residue in a check drawn by the plaintiffs on the Bank of Kentucky, on the understanding and agreement that the said Owens was to receive the notes on said bank in payment thereof, and he accordingly did so; that  the Bank of Kentucky had, before that time, suspended specie payments, and did not then pay its notes in lawful money; that the said notes then constituted a general currency in the state of Kentucky, commonly passing in business and in exchange at a discount of between thirty and forty per cent below their nominal amounts, and could not have been sold or passed at a higher price; that the said facts were known to the plaintiffs and  said Owens, yet the plaintiffs passed the said notes to the said Owens, the borrower, at their nominal amounts: then the transaction was in violation of the act of congress incorporating the plaintiffs, the obligation declared on is void, and the verdict ought to be for the defendants.\" \nThe statute of usury of Kentucky of 1798, declares, that no person shall hereafter contract, directly or indirectly, for the loan of any money, wares, merchandize or other commodity, above the value of six pounds for the forbearance of one hundred pounds for a year; and after that rate, for a greater or a lesser sum, or for a longer or shorter time; and all bonds, contracts, &c., thereafter made for payment or delivery of any money or goods so lent, on which a higher interest is reserved or taken than is hereby allowed, shall be utterly void. This clause of the act is substantially a transcript of the statute of 12 Ann, stat. 2, ch. 16, sect. 1; and, therefore, the same construction will apply to each. In the present case, no interest at all has been taken by the plaintiffs on the 5000 dollars. There was no discount of the accruing interest from the face of the note, and the interest was payable  only with the principal, at the termination of the three years mentioned in the note. If the case, therefore, can be brought within the statute, it must be, not as a taking, but as a reservation, of illegal interest. \nThe ninth article of the fundamental articles of the charter of the Bank of the United States, (act of 1816, ch. 44, sect. 11) declares, among other things, that the bank \"shall not be at liberty to purchase any public debt whatsoever; nor shall it take more than at the rate of six per centum per annum for or upon its loans or discounts.\" It is clear that the present transaction does not fall within the prohibition of dealing or trading, in the preceding part of the same article, according to the interpretation thereof given by this court in  Fleckner v. The Bank of the United States, 8 Wheat. Rep. 338, 351, to which we deliberately adhere. \nIt is observable that the words of the article are, that the Bank shall not take (not shall not reserve or take) more than at the rate of six per cent. In the construction of the statutes of usury, this distinction between the reservation, and taking of usurious interest, has been deemed very material: for the reservation  of usurious interest, makes the contract utterly void; but if usurious interest be not stipulated for, but only taken afterwards, there the contract is not void, but the party is only liable to the penalty for the excess. So it was held in Floyer v. Edwards, Cowp. Rep. 112. But in the case of the Bank of the United States v. Owens, 2 Peters 527, 538, it was said, that in the charter, \"rreserving\" must be implied in the word \"taking.\" This expression of opinion was not called for by the certified question which arose out of the plea; for it was expressly averred in the plea, that in pursuance of the corrupt and unlawful agreement therein stated, the Bank advanced and loaned the whole consideration of the note, after deducting a large sum for discount, in the notes of the Bank of Kentucky, at their nominal value. \nIt is in reference to the usury act of Kentucky, and this article of the Bank charter, that the various instructions asked or given are to be examined. But before proceeding to consider them severally, it may be proper to remark, that in construing the usury laws, the uniform construction in England has been, (and it is equally applicable here) that to constitute usury with  the prohibitions of the law, there must be an intention knowingly to contract for or to take usurious interest; for if neither party intend it, but act bona fide and innocently, the law will not infer a corrupt agreement. Where, indeed, and contract upon its very face imports usury, as by an express reservation of more than legal interest, there is no room for presumption; for the intent is apparent; res ipsa loquitur. But where the contract on its face is for legal interest only, there it must be proved that there was some corrupt agreement or device, or shift, to cover usury; and that it was in the full contemplation of the parties.These distinction are laid own and recognized so early as the cases of Button v. Downham, Cro. Eliz. 642; Bedingfield v. Ashley, Cro Eliz. 741; Roberts  v. Tremayne, Cro. Jac. 507. The same doctrine has been acted upon in modern times, as in Murray v. Harding, 2 B. Bl. 859; where Gould, justice, said that the ground and foundation of all usurious contracts, is the corrupt agreement; in Floyer v. Edwards, Cowp. 112; in Hammett v. Yea, 1 Bos. and Pull. 144; in Doe v. Gooch, 3 Barn. and Ald. 664; and in Solarte v. Melville, 7 B. and Cres. 431. \n The same principle would seem to apply to the prohibition in the charter of the bank. There must be an intent to take illegal interest, or, in the language of the law, a corrupt agreement to take it, in violation of the charter; and so it was stated in the plea in the case of the Bank of the United States v. Owens, 2 Peters 527. The quo animo is, therefore, an essential ingredient in all cases of this sort. \nNow, it distinctly appears in the evidence, as has been already stated, that no interest or discount whatsoever was actually taken on the  note; and on the face of the note, there was no reservation of any interest but legal interest. So that there has been no taking of usury, and no reservation of usury on the face of the transaction. The case then resolves itself into this inquiry: whether, upon the evidence, there was any corrupt agreement, or device, or shift, to reserve or take usury; and in this spect of the case, the quo animo, as well as the acts of the parties, is most important. \nWith these principles in view, let us now proceed to the examination of the instructions prayed by the plaintiffs. The substance of the first instruction is, that if the contract  was fairly made by the parties, without any intention to evade the laws against usury, but that the parties, making the contract, intended to exchange credits for the accommodation of Owens; that the Bank of Kentucky was solvent, and able to pay its debts by coercion: then the contract was not void for usury, nor contrary to the charter of the bank, notwithstanding the parties knew that the Bank of Kentucky did not pay specie for its notes without coercion; and that these notes were in exchange at a depreciation of from thirty-three to forty per cent below par. We are of opinion, that this instruction ought to have been given. It excludes any intention of violating the laws against usury; and it puts the case as a bona fide exchange of credits for the accommodation of Owens. Such an exchange is not  per se illegal; though it may be so, if it is a mere shift or device to cover usury. If the application be not for a loan of money, but for an exhange of credits or commodities, which the parties bona fide estimate at equivalent values; it seems difficult to find any ground, on which to rest a legal objection to the transaction. Because an article is depreciated in the market,  it does not follow that the owner is not entitled to demand or require a higher price for it, before he consents to part with it. He may possess bank notes, which to him are of par value, because he can enforce payment thereof, and for many purposes they may pass current at par, in payments of his own debts, or in payment of public taxes; and yet their marketable value may be far less. If he uses no disguise; if he seeks not to cover a loan of money under the pretence of a sale or exchange of them; but the transaction is, bona fide, what it purports to be; the law will not set aside the contract, for it is no violation of any public policy against usury. \nWe are also of opinion, that the second instruction ought for similar reasons to have been given; and indeed it stands upon stronger grounds. It puts the case, that there was no intention to violate the charter or the statute against usury; that the contract was for the accommodation of Owens; that the Bank of Kentucky was indebted to the plaintiffs in a sum exceeding 10,000 dollars, bearing an interest of six per cent (which the check would reduce pro tanto); that the Bank of Kentucky was able to pay the amount with interest in  gold or silver, and did pay it, after deducing the check of 3900 dollars; and then asserts that, under such circumstances, the contract was not usurious, unless the jury believe that the contract was a shift or device entered into to avoid the statute against usury; notwithstanding the check and the bank notes were in point of fact of less value than gold and silver. So that in fact, it puts the instruction upon the very point, upon which the law itself puts transactions of this sort -- the quo animo of the parties. Did they intend usury, and make use of any shift or device to cover a loan of money? Or did they, bona fide, intend a loan of bank notes, which to the lender were of the full value of their numerical amount, and were so treated bona fide by the borrower? Unless the court were prepared to say, (which we certainly are not) that all negotiations for  the sale or exchange of bank notes, under any circumstances, must, to escape the imputation of usury, or the prohibition of the charter, be merely at their marketable value at the time, though worth more to both parties; the instruction was in its terms unexceptionable. \nThe third instruction is governed by the  same reasoning. It puts the case, that the application was made for a loan, not of money, but for notes of the Kentucky Bank, to the amount of 5000 dollars, in consideration of the note sued on; that the Bank of Kentucky was solvent and able to pay its notes; that the holders thereof could, by reasonable diligence, have recovered the amount thereof, with interest at the rate of six per cent per annum; and that there was no device or intent to evade the statute against usury, or the prohibition of th charter; and then asserts that under such circumstances the transaction was not, in law, usurious. And here, it may be added, that if the case was as stated, (and the evidence manifestly conduced to establish it) it is clear that the plaintiffs could not, by the regulation, entitle themselves to more interest than they were already entitled to against the Bank of Kentucky. It would be a mere exchange of securities, by which the plaintiffs did not reserve and could not obtain more than the legal rate of interest. If A holds the note of B for 100 dollars and legal interest, and he exchange it with C for his note for the same sum and legal interest, and B and C are both solvent, the transaction  in no manner tranches upon the statute against usury. \nThe fourth instruction puts the case in a more general form; but the same principles apply to it. \nThe fifth instruction puts the case in the most pointed manner, whether there was an intended loan of money and a reservation of illegal interest, and a shift or device to cover it, and evade the law by advancing something other than money on the loan. If there was not, then it asserts (and in our judgment correctly) that the jury ought to find for the plaintiffs. \nThe sixth and seventh instructions fall under the same considerations, and are equally unexceptionable. \nThe eighth instruction was properly refused, and ought not to have been given. The court could not judicially say, that there was no evidence conducing to prove that there was a  loan by the plaintiffs to the defendants of the notes of the Bank of Kentucky. There was evidence proper for the consideration of the jury; and the intent was to be gathered by them from the whole circumstances of the transaction. \nIn regard to the instruction given by the  court upon the prayer of the defendants, it was probably given under the impression, that the  case was governed by the decision of this court, in the Bank of the United States v. Owens, 2 Peters 527. That case, however, in our opinion, turned upon considerations essentially different from those presented by the present record. The questions certified in that case arose upon a demurrer to a plea of usury, and the demurrer in terms admitted, that the agreement was unlawfully, usuriously and corruptly entered into; so that no question as to the intention of the parties, or the nature of the transaction was put. The transaction was usurious, and the agreement corrupt; and the question then was, whether, if so, it was contrary to the prohibitions of the charter, and the contract was void. In the present case, the questions are very different.Whether the agreement was corrupt and usurious; or bona fide, and without any intent to commit usury or to violate the charter; are the very points which the jury were called upon, under the instructions asked of the court, to decide. The decision in 2 Peters 527, cannot, therefore, be admitted to govern this; for the quo animo of the act, as well as the act itself, constitute the gist of the controversy. \nIn our opinion, the instruction  asked by the defendants, ought not to have been given. It excludes altogether any consideration of the bona fides of the transaction, and the intention of the parties, whether innocent or usurious; and puts the bar to the recovery, (after selecting a few facts) substantially upon the ground, that the bank notes loaned were a known depreciated currency, passing in exchange and business at a discount of from thirty to forty per cent, and were passed at their nominal amounts by the plaintiffs to the defendants; without any reference to the fact, whether there was any design to commit usury, or whether the notes were in reality of a higher intrinsic value, or of their full nominal value to the parties; or whether there was in the transaction either a taking or a reservation of more than six per cent  interest contemplated by the parties. From what has been already stated, these constituted the turning points of the case; and the instruction could not properly be given without making them a part of the inquiries before the jury, upon which their verdict was to turn. \nUpon the whole, we are of opinion, that the first seven instructions prayed by the plaintiffs, ought to have  been given to the jury; and the instruction given by the court at the request of the defendants, ought to have been refused; and therefore, for these errors, the judgment ought to be reversed, and the cause remanded to the circuit court, with directions to award a venire facias de novo. \nThis cause came on to be heard on the transcript of the record from the circuit court of the United States for the district of Kentucky, and was argued by counsel; on consideration whereof, it is the opinion of this court, that there is error in the opinion of the circuit court of the district of Kentucky, in refusing to give the instructions prayed for by the plaintiffs in their first, second, third, fourth, fifth, sixth and seventh instructions, prayed for in the bill of exceptions stated; and there is also error in the opinion of the court in giving the instruction prayed for by the defendants in the same bill of exceptions stated. It is, therefore, considered by the court that, for the errors aforesaid, the judgment of the said circuit court be, and the same is hereby reversed and annulled, and that the cause be remanded to the circuit court with directions to award a venire facias de novo. \n \n\n ", " \nOpinion \n\n \n \n  Mr Justice STORY delivered the opinion of the Court. \nThis is an appeal from the decree of the circuit court of the district of Ohio, in a suit in equity, in which the present appellant was original plaintiff. \nIn June 1827, the plaintiff purchased of John Bartle the lot of land in controversy, (which is asserted to be worth from 50,000 dollars to 70,000 dollars) for the consideration, as stated in the deed of conveyance, of 3000 dollars; and the present suit was brought in December of the same year. the bill states, that when the city of Cincinnati was laid out, in 1789, the country being then a wilderness, certain lots of the city were allotted as donations to those who should make certain improvements, and that the evidence of ownership of such lots was a certificate of the proprietors, which was transferable from one to another, by delivery. That lot, number one, on the plat of the city (the lot in controversy), was allotted to Samuel Blackburn, who transferred his right to one James Campbell, who transferred it to Bartle in 1790, and the latter completed the improvements required by the terms of the donation.  That Bartle continued to occupy the lot under this certificate of title forseveral years; when, becoming embarrassed, he mortgaged the lot to one Robert Barr of Lexington, Kentucky; of whom, the bill states, and his heirs, if deceased, the plaintiff knows nothing; for the sum of 700 dollars; for the payment of which the rents received by Bartle, from the tenants  in possession, were to be appropriated and paid. The bill then alleges the Bartle afterwards lost the certificate in crossing the Ohio river; that Charles Vattier, one of the defendants, fraudulently purchased the mortgage of Barr, and obtained possession of the lot from the tenants, in the absence of Bartle from the country, and acquired the legal title from John C. Symmes, in whom it was vested. That Vattier afterwards sold the same to one John smith, who is since deceased; and his heirs, if any are alive, are unknown to the plaintiff; and who had full notice of Bartle's title. That Smith afterwards sold the same to one John H. Piatt, since deceased, whose heirs are made defendants, who also had notice of Bartle's title; that Piatt, in his life time, mortgaged the same to the Bank of the United   States, which has obtained possession and complete title, with the like notice. The bill further charges that Bartle asserted his right to the premises to Vattier, Smith and Piatt at various times, but from poverty was unable to attempt enforcing the same in a court of equity, or elsewhere; and that the plaintiff has recently, in December 1827, purchased Bartle's right, and obtained a conveyance thereof. The bill then states that the plaintiff had hoped that the bank would have surrendered the possession, or in case it refused so to do, that Vattier would have accounted with the plaintiff for the value thereof, taking an account of the mortgage money paid to Barr, of the improvements, rents, profits, &c. But that the bank has refused to surrender the possession, and Vattier has refused to account. And it then prays a decree against the bank to surrender the possession, and account for the rents and profits, and to execute a quiet claim; or, if the bank is protected in the possession, that Vattier shall be decreed to account, and for general relief. \nIn their answers, Vattier and the Bank of the United States assert themselves to be bona fide purchasers, for a valuable consideration,  of an absolute title to the premises, without notice of Bartle's title, and they rely on the lapse of time also as a defence. The bill, as to the heirs of J. H. Piatt, was taken pro confesso, they not having appeared in the cause. \nFrom the evidence in the cause it appears, that Vattier and those claiming title under him, have been in possession of the premises, claiming an absolute title thereto, adverse to the title  of Bartle, ever since the 20th of March 1797, the day of the date of the conveyance from Symmes to Vattier. At the hearing, in the circuit court, the bill was dismissed; and the cause now stands before this court upon an appeal taken from that decision. \nVarious questions have been made at the argument before us, as to the nature and character of Bartle's title; and, if he had any valid title, whether the purchasers under Barr had notice of it. With these and some other questions, we do not intermeddle; because in our view of the cause, they are not necessary to a correct decision of it. \nThe important question is, whether the laintiff is barred by the lapse of time: for we do not understand, that the adverse possession presents, under the laws of Ohio,  any objection to the transfer of Bartle's title to the plaintiff; if Bartle himself could assert it in a court of equity. This question has been argued at the bar under a double aspect: first, upon the ground of the statute of limitations of Ohio; and secondly, upon the ground of an equitable bar, by mere lapse of time, independently of that statute. \nIn regard to the statute of limitations, it is clear that the full time has elapsed to give effect to that bar, upon the known analogy adopted by courts of equity, in regard to trusts of real estate, unless Bartle is within one of the exceptions of the statute by his non residence and absence from the state. It is said that there is complete proof in the cause, to establish such non residence and absence. But the difficulty is, that the non residence and absence are not charged in the bill, and of course are not denied or put in issue by the answer; and unless they are so put in issue, the court can take no notice of the proofs; for the proofs to be admissible must be founded upon some allegations in the bill and answer. It has been supposed that a different doctrine was held by lord Hardwicke in Aggas v. Pickerell, 3 Atk. 228, and  Gregor v. Molesworth, 2 Ves. 109, and by lord Thurlow in Deloraine v. Browne, 3Bro. Ch. Rep. 632. But these cases did not proceed upon the ground, that proofs were admissible to show the party, plaintiff, to be within the exception of the statute of limitations, when relied on by way of plea or answer; and the exception was not stated in the bill, or specially replied; but upon the ground that the omission  in the bill to allege such exception could not be taken by way of demurrer. And even this doctrine is contrary to former decisions of the court; 1 and it has since been explicitly overruled, and particularly in Beckford v. Close, 4 Ves. 476; Foster v. Hodgson, 19 Ves. 180; and Hovenden v. Lord Annesley, 2 Sch. and Lefr. 637, 638. And the doctrine is now clearly established, that if the statute of limitations is relied on as a bar, the plaintiff, if he would avoid it, by any exception in the statute, must explicitly allege it in his bill, or specially reply it; or, what is the modern practice, amend his bill, if it contains no suitable allegation to meet the bar. 2 In the present case, if the merits were otherwise clear, the court might remand the cause for the purpose  of amending the pleadings, and supplying this defect. But, in truth, the answers, though they rely generally on the lapse of time, do not specially rely on the statute of limitations, as a bar: and the case may, therefore, well be decided upon the mere lapse of time, independently of the statute. \nAnd we are of opinion that the lapse of time is, upon the principles of a court of equity, a clear bar to the present suit, independently of the statute. There has been a clear adverse possession of thirty years without the acknowledgement of any equity or trust estate in Bartle; and no circumstances are stated in the bill, or shown in the evidence, which overcome the decisive influence of such an adverse possession. The established doctrine, -- or as Lord Redesdale phrased it, in Hovenden v. Annesley, 2 Sch. and Lef. 637, 638, \"the law of courts of equity\" -- from its being a rule adopted by those courts, independently  of any positive legislative limitations, is, that it will not entertain stale demands. Lord Camden, in Smith v. Clay, 3Brown's Ch. Rep. 640, note, stated it in a very pointed manner. \"A court of equity,\" said he, \"which is never active in relief against conscience or public convenience, has always refused its aid to stale demands, where the party has slept upon his rights, or acquiesced for a great length of time. Nothing  can call forth this court into activity but conscience, good faith and reasonable diligence. Where these are wanting, the court is passive and does nothing;  laches and neglect are always discountenanced; and therefore from the beginning of this jurisdiction there was always a limitation of suit in this court.\" The same doctrine has been repeatedly recognized in the British courts, as will abundantly appear from the cases already cited, as well as from the great case of Cholmondeley v. Clinton, 2 Jac. and Walk. 3 It has also repeatedly received the sanction of the American courts, and was largely discussed in Kane v. Bloodgood, 7 Johns. Ch. Rep. 93, and Decouche v. Saratiere, 3 Johns. Ch. Rep. 190. And it has been acted on in the fullest  manner by this court; especially in the case of Prevost v. Gratz, 6 Wheat. 481, 5 Cond. Rep. 142; Hughes v. Edwards, 9 Wheat. 489, 5 Cond. rep. 648; and Willison v. Matthews, 3 Peters 44; and Miller v. M'Intire, 6 Peters 61, 66. \nWithout, therefore, going at large into the grounds upon which this doctrine is established, though it admits of the most ample vindication and support; we are all of opinion that the lapse of time in the present case is a complete bar to the relief sought, and that the decree of the circuit court dismissing the bill, ought to be affirmed with costs. \nThis cause came on to be heard on the transcript of the record from the circuit court of the United States for the district of Ohio, and was argued by counsel; on consideration whereof, it is decreed and ordered by this court, that the decree of the said circuit court in this cause be, and the same is hereby affirmed  with costs. \n \n\n ", " \nOpinion \n\n \n \n  Mr Justice STORY delivered the opinion of the Court. \nThis is a writ  of error to the district court of the eastern district of Louisiana. The plaintiff in error was surety in an appeal bond given upon a writ of error to a judgment of the district court of Louisiana, rendered in 1830, in the suit of Jean Gassies Ballon v. Pierre Gassies; which judgment was affirmed in the supreme court of the United States in 1832. Upon the cause coming back to the district court, upon the mandate of the supreme court, execution issued against the judgment debtor, Pierre Gassies, and was returned satisfied in part. Upon motion afterwards made, and due notice to Hiriart, a summary judgment was entered against him upon the appeal bond; in pursuance of a rule of the district court. The rule is in the following words: \"in all cases of affirmance of judgment, on writs of error, from judgments pronounced in this court; a rule may be taken on the principal, and his sureties in the appeal bond, returnable ten days after recording the mandate of the supreme court, to show cause why execution should not issue against them; and no cause being shown, judgment shall be entered against them and the principal, and execution issue accordingly.\" Hiriart showed for cause, (among other  things not necessary to be stated, as they are not cognizable on a writ of error) that the proceeding was irregular, and that if liable on the bond, his liability must be established by an ordinary action, before a competent tribunal. The district court, notwithstanding, entered the summary judgment; and the writ of error is taken to this judgment. \nThe principal point relied on seems to be that the party was entitled to a trial by jury, and that no such summary judgment is authorized by law. Whether this objection is well founded depends upon the act of congress of the 26th of May 1824, for the regulation of the practice of the district court of Louisiana. That act declares, that the mode of proceeding in civil causes in the courts of the United States in Louisiana, shall be conformable lto the laws directing the mode of practice in the district courts of the states; with a power in the judgment, to make rules to adapt such laws of procedure to the organization of the courts of the United States. The laws of Louisiana allow appeals from the district courts of the state, to the supreme court, upon giving an appeal bond with security;  and authorize a summary judgment  upon such appeal bond, upon mere motion in the court from whence the appeal was taken, in execution of the judgment of the appellate court. 2 The rule of the district court of Louisiana, therefore, follows the analogy of the laws of Louisiana, being modified only so far as is proper to suit the organization of the courts of the United States, and to conform to the laws thereof. The summary judgment, therefore, was strictly authorized; and the party appellant had no right to a trial by jury. In becoming a security he submitted himself to be governed by the fixed rules which regulate the practice of the court. The judgment is affirmed with damages at the rate of six per cent, and costs. \nIt may be added, to prevent misapprehension, that there is also in the same record, an appeal taken to a decree of the district court, dissolving an injunction to the judgment granted upon a petition in the nature of a bill in equity. This appeal is not before us: and the decree being only interlocutory, and not a final decree, it is not the subject of an appeal. \nThis cause came on to be heard on the transcript of the  record from the district court of the United States, for the eastern district of Louisiana, and was argued by counsel; on consideration whereof, it is adjudged and ordered by this court, that the judgment of the said district court in this cause be, and the same is hereby affirmed with costs and damages at the rate of six per centum per annum. \n \n\n ", " \nOpinion \n\n \n \n  Mr Justice STORY delivered the opinion of the Court. \nThis is a writ of error to the circuit court of the district of Georgia. The  cause, which is an ejectment, has been twice before this court, and the decisions then had, will be found reported in 11 Wheat. Rep. 380, and 5 Peters's Rep. 233; to which we may therefore refer, as containing a statement of many of the material facts. \nAt the new trial had in November term 1833, in pursuance of the mandate of this court. The plaintiff, to maintain the issue on his part, gave in evidence a copy of a grant from the state of Georgia to Basil Jones, for seven thousand three hundred acres, including the lands in controversy, dated the 24th of May 1787, with a plat of survey thereto annexed. He then offered a copy of a power of attorney from Basil Jones to Thomas Smyth, Junior, purporting to be dated the 6th of August 1793, and to authorize Smyth among other things, to sell and convey the tract of seven thousand three hundred acres, so granted, which power purported to be signed and sealed in the  presence of \"Abram Jones, J. P., and Thomas Harwood, Jun.;\" and the copy was certified to be a true copy from the records of Richmond county, Georgia, and recorded therein, on the 11th day of July 1795. And to account for the loss of the original power of attorney,  of which the copy was offered, and of the use of due diligence and search to find the same, the plaintiff read the affidavit of William Patterson, the lessor of the plaintiff, which in substance stated, that he had not in his possession, power or custody, the original grant; and  that he verily believed the original power of attorney and grant have been lost or destroyed. He also read, for the same purpose, the deposition of Andrew Fleming, which stated in substance, the searches made by him among Thomas Smyth's papers, and the information received by him, leading to the conclusion, that the same has been lost or destroyed. Also, the deposition of Mrs Smyth, the widow of Thomas Smyth, for the same purpose. Also, the deposition of Richard H. Wilde, which stated several searches made by him for the original power, in the office of the clerk of Richmond county, and in other places, and an application to the wife of Basil Jones, and to the son of Thomas Smyth, for the like purpose; and an advertisement in two Georgia newspapers, for information respecting the same, all of which proved ineffectual. The same witness also stated, that Abram Jones, the supposed subscribing witness,  was, by public reputation, long since dead. It was admitted that Abram Jones was, at the time of the supposed execution of the power, a justice of the peace. \nThe plaintiff also read in evidence the deposition of William Robertson, who stated that he was deputy clerk of the court of Richmond county in 1794, and clerk in 1795, and continued in office until 1808 or 1809; that he was well acquainted with Abram Jones, and his handwriting, during the years 1793, 1794 and 1795, and before and afterwards. That the record of the power of attorney from B. Jones to Thomas Smyth, Jun., made by himself while clerk of the court, is a copy of an original power of attorney, which he believes to have been genuine, for that the official signature of Abram Jones must have induced him to commit the same to record; and that the copy of the said power of attorney transmitted with the deponent's depositions (the copy before the court),  had been compared with the record of the original made by himself in Richmond county, and is a true copy. \nThe plaintiff also gave in evidence a deed executed by Thomas Smyth, Jun., as attorney in fact of Basil Jones, dated on the 18th of November 1793, conveying,  as such attorney, to William Patterson, the lessor of the plaintiff, certain tracts of land, and among others, the tract of seven thousand three hundred acres; which heed contained a recital that Basil Jones, by his certain writing or letter of attorney, dated the 6th of August 1793, did empower and authorise his said attorney in his, Basil Jones, name, to sell and dispose of the tracts mentioned in the deed; which deed was recorded in the records of Franklin county, on the 25th of July 1795. \nUpon this evidence the plaintiff offered the copy as evidence in the cause. It was objected to by the defendants, and the objection was overruled by the court; and the copy was admitted in evidence to the jury. And this ruling of the court constitutes the first ground in the bill of exceptions, upon which the defendants now rely for a reversal of the judgment of the circuit court, which was in favour of the plaintiff. \nIn the consideration of the admissibility of the copy, two questions are involved. In the first place, whether there was sufficient evidence of the genuineness and due execution of the original power of attorney. In the next place, if its genuineness and due execution are established,  whether the copy was, by the principles of law under all the circumstances, admissible proof. \nIn regard to the first question, we are to consider, that the original instrument (supposing it to be genuine) is of an ancient date, having been executed in the year 1793, and recorded in the public records as a genuine instrument in 1795; so that at the time of the trial, it was forty years of age. Abram Jones, one of the subscribing witnesses, was long since dead; and it does not appear that Thomas Harwood, the other subscribing witness, was alive, or that the plaintiff had any means of identifying him ortracing out his residence. The original power did not exist, so that the plaintiff could not, by an inspection of his handwriting, ascertain who he was, or where he lived. \nAfter the lapse of thirty years from the time of the execution of a deed, the witnesses are presumed to be dead; and this is  the common ground, it such cases, for dispensing with the production of them, without any search for them, or proof of their death, when the original deed is before the court for proof. It is a rule adopted for common convenience, and founded upon the great difficulty of proving  the due execution of a deed after an interval of many years. And the rule applies not only to grants of land, but to all other deeds, where the instrument comes from the custody of the proper party claiming under it, or entitled to its custody. 1 Phillips on Evidence, ch. 8, sect. 2, p. 406, and cases there cited; 1 Starkie on Evidence, part 2, sect. 143, 144, 145, and cases there cited. If, therefore, the original power were now produced from the custody of the plaintiff, it would not be necessary to establish its due execution by the production of the subscribing witnesses. It would be sufficient to establish it by other proofs. This view of the matter disposes of that part of the argument which denies that the proof of the original instrument can be made without the production of the subscribing witness, Harwood, or accounting for his non production. \nTne what is the proof of the genuineness and due execution of the original power of attorney? Mr Robertson swears that he was acquainted with the handwriting of Abram Jones. (one of the subscribing witnesses), at the time of its date, as well as before, and afterwards; that he recorded it in the county records; that the record  is a copy of an original power of attorney, which he believed to have been genuine, for that the official signature of Abram Jones must have induced him to commit the same to record. Now, what is to be understood by the \"official signature\" in the language of the witness? Clearly, his genuine handwriting, and the annexation of his official title, J. P., that is, Justice of the Peace, establishing that he verifies the instrument, not merely as an individual, but as a public officer. It is impossible that it could be his official signature, unless it was also a genuine, and not forged signature of his name. So that here we have from Mr Robertson, direct proof of his belief of the genuineness of the signature of a subscribing witness, from his knowledge of his  handwriting, his examination of the original instrument, and his having recorded it upon the faith of such belief. It seems to us perfectly clear, upon the received principles of the  law of evidence, that this was sufficient prima facie proof of the genuineness and due execution of the original power, to be left to the jury for their consideration of its weight and effect. \nThe next question is, whether  sufficient ground was laid in the evidence to establish the loss or destruction of the original power, so as to let in secondary proof of its contents. We think there was, considering the lapse of time since the original transaction, the diligence which had been used, the searches which had been made, and the other attendant circumstances stated in the depositions, to fortify the presumption of such loss or destruction. This was the view of this point taken by this court in the former decision, in 5 Peters 233, 242, though it was not then so directly before us; and having heard the new argument addressed to us on the present occasion, we see no reason for departing from our former opinion. \nThe remaining question then, is, whether the copy now produced was proper secondary proof, entitled by law to be admitted in evidence. The argument is, that it is a copy of a copy, and so not admissible; and that the original record might have been produced in evidence. By the laws of Georgia, act of 1785, deeds of bargain and sale of lands are required to be recorded in the county where the lands lie. Prince's Dig. 112. Powers of attorney to convey lands, are not required by law to be recorded  in the same county, though there seems to be a common practice so to do. The act of 1785 provides, that all bonds, specialties, letters of attorney and powers in writing, the execution whereof shall be proved by one or more of the witnesses thereto, before certain magistrates of either of the United States, where the same were executed, and duly certified in the manner stated in the act, shall be sufficient evidence to the court and jury of the due execution thereof. Prince's Dig. 113. The present power was not recorded in the county of Franklin where the lands lie, but in Richmond county; and therefore, a copy from the record is not strictly admissible in evidence, as it would have been if powers of attorney were by law to be recorded in the county where the lands lie, and the present power had been so duly recorded. It is certainly a common practice to produce, in the custody of the clerk, under a subpoena  duces tecum, the original records of deeds duly recorded. But in point of law a copy from such record is admissible in evidence, upon the ground stated in Lynch v. Clark, 3 Salk. Rep. 154; that where an original document of a public nature would be evidence if  produced, an immediate sworn copy thereof is admissible in evidence; for as all persons have a right to the evidence which documents of a public nature afford, they might otherwise be required to be exhibited at different places at the same time. See Mr Leach's note to 11 Mod. Rep. 134; Brt v. Barlow, 1 Doug. Rep. 171; 1 Starkie on Evidence, sec. 36, 37. If, therefore, the record itself would be evidence of a recorded deed, a duly attested copy thereof would also be evidence. The present copy does not, however, (as is admitted) fall within the reach of this rule. But the question does arise, whether the defendant can insist upon the production of the record books of the county of Richmond, in court, in this case; as higher and more authentic evidence of the power of attorney not properly recorded there, to the exclusion of any other copy duly established in proof. We think he cannot. It is not required by any rule of evidence with which we are acquainted. \nWe admit that the rule, that a copy of a copy is not admissible evidence, is correct in itself, when properly understood and limited to its true sense. The rule properly applies to cases where the copy is taken from a copy,  the original being still in existence and capable of being compared with it; for then it is a second remove from the original: or where it is a copy of a copy of a record, the record being in existence, by law deemed as high evidence as the original; for then it is also a second remove from the record. But it is quite a different question whether it applies to cases of secondary evidence where the original is lost, or the record of it is not in law deemed as high evidence as the original; or, where the copy of a copy is the highest proof in existence. On these points we give no opinion, because this is not, in our judgment, the case of a mere copy of a copy verified as such; but it is the case of a second copy verified as a true copy of the original. Mr Robertson expressly asserts that the record was a copy of the original power made by himself, and that the present copy is a true copy which has been compared by himself with the  record. In effect, therefore, he swears that both are true copies of the original power. In point of evidence then, the case stands precisely in the same predicament as if the witness had made two copies at the same time of the original, and  had then compared one of them with the original, and the other with the first copy, which he had found correct. The mode by which he had arrived at the result, that the second is a true copy of the original, may be more circuitous than that by which he has ascertained the first to be correct; but that only furnishes matter of observation as to the strength of the proof, and not as to its dignity or degree. In each case his testimony amounts to the same result, as a matter of personal knowledge, that each is a true copy of the original. We are therefore of opinion, that there was no error in the court in admitting the copy in evidence under these circumstances. \nIn the further progress of the trial, additional evidence was offered; and thereupon the defendants prayed the court to instruct the jury, 1. That if the jury believed that Basil Jones, the deputy surveyor and grantee under whom the lessor of the plaintiff claimed -- by designating the stream marked on the original plat as the Branch of the South Fork of the Oconee river, instead of the South Fork of the Oconee river, and by stating that the land was situate in the county of Franklin, when a large part of it lay without  the county of Franklin, and without the temporary boundary line of the state of Georgia -- practised a deception upon the governor of Georgia, and thereby induced him to issue the grant; that such grant is fraudulent and void, and cannot entitle the plaintiff to recover.  2. That a grant of land is an entirety, and that a grant void in part is void for the whole.3. That a concealment or misrepresentation of material facts, calculated to deceive the governor issuing the grant, renders the grant null and void in law. The court refused to give either of these instructions; and the question now is, whether all or either of them ought to have been given. \nThe first instruction is couched in language not wholly unobjectionable or free from ambiguity. It assumes certain facts to be established in the case, without referring them to the decision of the jury, and on them founds the instruction; which is certainly not a correct practice. It also uses the words  \"practised a deception,\" without adding any qualifying words, whether the deception was knowingly and wilfully practised for the purposes of fraud, or whether it was by mistake of law or fact, or by misplaced  confidence in the representations of other persons. And it is certainly the duty of a party asking an instruction to use language of such a definite and legal interpretation, as may not mislead either the court or jury in regard to the precise nature of the application. \nBut waiving this consideration, the instruction asked makes no distinction between the case of a fraudulent grantee and the case of a bona fide purchaser from such grantee, without notice; a distinction most important in itself, and in many cases decisive in favour of the purchaser, whatever may have been the fraud of the original grantee. \nIt is unnecessary, however, to rely on this circumstance; for, stripping the instruction of its technical form, it comes to this, that if any part of the land included in the grant lay within the Indian boundary, and the governor was deceived as to that fact, the grant is void for the whole land; not only for that within the Indian boundary, but for all that lying within the limits of the state. This proposition is attempted to be maintained by the doctrine, that a grant void in part is void as to the whole. And certain authorities at the common law have been cited at the bar  in support of the doctrine. We have examined those authorities, and are of opinion that they do not apply to cases like the present. There are doubtless case where grants and securities, made contrary to the prohibitions of a statute in part, are, upon the true construction of the intent of the statute, void in toto. But Lord Hobart informs us, that it is very different in cases standing merely upon the common law. For (to use his quaint but expressive language) \"the statute is like a tyrant; where he comes, he makes all void: but the common law is like a nursing father, and makes void only that part where the fault is, and preserves the rest.\" See also Norton v. Simmes, Hob. Rep. 14; Maleverer v. Redshaw, 1 Mod. Rep. 35; Collins v. Blantern, 2 Wilson's Rep. 351. And, therefore, at the common law, in order to make a grant void in toto for fraud or covin, the fraud or covin must infect the whole transaction, or be so mixed up in it as not to be capable of a distinct and separate consideration.  The case of Hyslop v. Clarke, 14 Johns. Rep. 458, was a case of fraud, where both the grantors and grantees and assignees were privy to a meditated fraud a gainst creditors, and  therefore it was held void in toto. The case of Butler v. Dorant, 3 Taunt. Rep. 229, which is very shortly reported, seems to have proceeded upon the ground, that the statute avoided the security in toto. If it did not, it seems questionable in its doctrine. \nIn the present case, there is no statute of Georgia, which declares all grants of land lying partly within, and partly without the Indian boundaries, to be void in toto. And the policy of the legislature of Georgia, on this subject, is sufficiently vindicated by holding such grants void as to the part within the Indian boundary, leaving the grant good as to the residue. This very point was, in fact, decided by this court in Patterson v. Jenks, 2 Peters 216, 235. One question there was, whether the whole grant (a similar grant) was a nullity, because it contains some land not grantable. In answer to the question, Mr Chief Justice Marshall, in delivering the opinion of the court, said, \"In the nature of the thing, we perceive no reason why the grant should not be good for land which it might law fully pass, and void as to that part of the tract, for the granting of which the office had not been opened. It is every day's practice  to make grants for lands, which have, in fact, been granted to others. It has never been suggested that the whole grant is void, because a part of the land was not grantable.\" We are entirely satisfied with this doctrine, as equally founded in law and reason. The land in controversy in the present suit is within the acknowledged boundary of Georgia, and without the Indian boundary; and admitting the grant to be void as to the part within the Indian boundary, it is, in our judgment, valid as to the residue, notwithstanding the supposed deception stated in the instruction: for that deception did not affect with fraud any part of the transaction, except as to the land within the Indian boundary. The instruction, therefore, was rightly refused by the court. \nThe second instruction may be disposed of in a few words. It contains a proposition absolutely universal in its terms; that a grant of lands is an entirety, and that a grant void in part, is void for the whole. If this proposition were true, then a grant  of ten thousand acres, which was void for any cause whatever as a conveyance of one acre, although it might be for want of title in the grantor, would be void for  the remaining nine thousand nine hundred and ninety-nine acres. It is sufficient to say, that the instruction so generally framed, ought not to have been given. \nThe third instruction admits of a similar answer. It is universal in its terms; and states, \"that a concealment or misrepresentation of material facts\" (not stating whether innocently or designedly and fraudulently made), \"calculated to deceive the governor, issuing the grant\" (not stating whether he was actually deceived or not), \"renders the grant null and void in law,\" as to all persons whatever, no stating whether the party is the original grantee, or a bona fide purchaser under him, without notice. For the reasons already stated, such an instruction, so generally stated, ought not to have been given. \nUpon the whole, we are all of opinion, that the judgment of the circuit court ought to be affirmed, with costs. \n \n\n ", " \nOpinion \n\n \n \n  Mr Justice STORY delivered the opinion of the Court. \nThis is an appeal from a decree of the circuit court for the district of west Tennessee, rendered upon a mandate directing that court to  execute a former decree of this court. The case, when formerly before this court, will be found reported in 3 Peters 210; to which reference may, therefore, be had for a full statement of the facts. \nThe material facts are, that the original plaintiff, Mr Grundy, in 1823 brought his bill against Robert Boyce and Richard Boyce, as executors of James Boyce deceased, for the rescrision of a contract for the sale of lands in the state of Mississippi, stated in the bill; and for the repayment of the sums of money paid by the plaintiff on the contract; and for a perpetual injunction of a judgment obtained on the same contract. It appeared from the bill and answer, that Robert Boyce alone was qualified as executor under this will; and the answer alleged that another and later will had been subsequently discovered, by which the whole proceeds of the land in controversy were devised to Richard Boyce, who was appointed sole executor thereof; but he renounced the executorship, and Robert Boyce was appointed administrator, with the will annexed. Upon the hearing of the cause in the circuit court, in August 1826, it was among other things decreed, that the contract stated in the bill be in all  things rescinded and annulled; and \"that the defendant, Robert, administrator of the goods, &c. of James Boyce, deceased, do pay the sum of 1250 dollars, with legal interest thereon at the rate of eight per centum per annum, which appears to be the legal rate of interest in said state of Mississippi, from the said 5th day of July 1818 until this day, making the sum of 2065 dollars and 28 cents, to be levied of the goods, &c. of the said James in his hands, to be administered and execution issue therefor, as at law.\" From this decree the defendants appealed to this (the supreme) court; and at the January term thereof 1830, the decree of the circuit court was affirmed with costs; nothing being  said as to any allowance of damages or interest. A mandate in the usual form was issued to the circuit court, to carry the same into effect. At the September term of the circuit court 1830, in obedience to the mandate, the circuit court ordered the cause to be set down for further directions, and it was referred to the clerk, as master, to take an account of the assets of James Boyce in the hands of the defendant, Robert Boyce, to be administered, and to report thereon. The master  made a report at the same term, stating, in substance, that it did not appear that any personal assets of James Boyce came to the hands of the defendants, as his executors; but that it did appear from the agreement between the plaintiff and the defendant, Robert Boyce, admitted to have been dated on the 23d of May 1823, and returned with the report, and from certain depositions in the case, that Robert Boyce had received for rents, previous to the 1st of January 1824, the sum of 2100 dollars, and that the interest thereon, from the 1st day of January 1824 to the 1st day of September 1830, at the rate of eight per cent, will amount to 1120 dollars, making in all 3220 dollars. The report also stated, that the land in controversy was devised by James Boyce to the defendant, Richard Boyce. \nUpon the coming in of the master's report, exceptions were filed by the defendant, Robert Boyce, and upon hearing the same, they were overruled, and the report was confirmed by the circuit court at the same term, except as to the 1120 dollars. And thereupon the court decreed, \"that the plaintiff recover of Robert Boyce the sum of 2100 dollars with interest from this day, to be levied of his own proper  goods and chattels, &c.; and that for the balance due the plaintiff, amounting to 496 dollars and 46 cents, with interest from this time, and also the aforementioned sum of 2100 dollars, in case the same is not paid by the said Robert Boyce on or before the first Monday in March Next, and the costs of suit, the plaintiff has a lien on the tract of land in the state of Mississippi, in the pleadings mentioned, and is entitled to have the same sold to satisfy the above mentioned sums of money.\" And it then proceeded to direct the time, manner, &c. of the sale. \nIt is from this decree that the present appeal is taken; and various objections to it have been insisted upon in the arguments at the bar. Some confusion arises in the case, from the  report of the master: he having stated, in one part thereof, that no assets came to the hands of the defendants as executors; and yet, in another part, having stated that the rents of the land in controversy had come to the hands of Robert Boyce, under an agreement between the plaintiff and Robert Boyce, without stating that they had come to his hands as assets, and were now to be deemed assets of James Boyce. If, under the agreement,  these rents were received by Robert Boyce, as agent of the plaintiff, and not as executor, it is very clear that in the present suit no decree could be had against him therefor; since he is sued only in his representative capacity as administrator, and therefore no decree could be rendered against him in his personal capacity. But if the rents, under the agreement, upon the rescision of the contract stated in the bill, and finally decreed thereon, became virtually the money of James Boyce, then they might be properly deemed assets in the hands of the administrator, and, as such, liable to the execution of the plaintiff. And we are of opinion that, under all the circumstances, the latter is the predicament in which they are to be viewed; and that the master ought to have reported the sum of 2100 dollars, so received, to be assets. And to this extent there is no objection to the decree of the circuit court. \nA more important objection is, that the decree is not rendered against the administrator, as such, payable out of the assets in his hands to be administered, or payable out of the said sum of 2100 dollars (the rents above stated); and if these assets are not sufficient, then out  of the assets of his testator, quando accident; but the decree is personally against Robert Boyce, for the said sum of 2100 dollars, to be levied out of his own proper goods and chattels, &c., although no devastavit is either suggested or proved. We are of opinion that the decree is erroneous in this respect, and that it ought to have been for the amount against the administrator in his representative character, to be levied of the assets of the testator in his hands; and as to the  2100 dollars, if no such assets should be found, then (as upon a devastavit) against the proper goods of the administrator to the same amount, with costs. In no other way can the defendant, Robert Boyce, be protected by the payment, in the course of his administration, of the assets of the testator; for it will not otherwise judicially appear, that the  rents were treated as assets. And, besides, the decree will not otherwise conform to the capacities and rights of the parties, according to the frame of the bill, and the original decree. \nAnother objection is to that part of the decree, which creates a lien upon the land in controversy, lying in another state, and decrees a sale  for the discharge of the lien.We are of opinion, that the decree is erroneous in this respect. In the first place, the court had no jurisdiction to decree a sale to be made of land lying in another state, by a master acting under its own authority. In the next place, the original decree, affirmed by the supreme court, which alone the circuit court was called upon to execute, created no such lien, and authorized no such sale. The decree was therefore, in both respects, not an execution of the former decree, but a new and enlarged decree. In the next place, the proper parties, the heirs at law or devisees, were not properly before the court; for though the master in his report states, that Richard Boyce was, under the will, devisee of the lands in controversy, this was a matter extra official, and not confided to the master by the reference to him; and, if it had been, the bill itself was not framed so as to charge the devisee or seek relief against him personally, but only as representative of the deceased. \nAnother objection to the decree is, that it decrees the sum of 496 dollars and 46 cents, intended, as is understood, (though not so stated in the decree) as interest upon the  original sum decreed in the circuit court, viz. 2065 dollars and 28 cents, in 1826, from the time of the rendition thereof to the affirmance in the supreme court, in January term 1830. We are of opinion that there is error, also, in this part of the decree. By the judiciary act of 1789, ch. 20, s. 23, the supreme court is authorized, in cases of affirmance of any judgment or decree, to award to the respondent just damages for his delay. And by the rules of the supreme court, made in February term 1803 and February term 1807, in cases where the suit is for mere delay, damages are to be awarded at the rate of ten per centum per annum on the amount of the judgment, to the time of the affirmance thereof. And in cases where there is a real controversy, the damages are to be at the rate of six per cent per annum only. And in both cases the interest is to be computed as part of the damages. It is, therefore, solely for the decision  of the supreme court, whether any damages, or interest (as a part thereof), are to be allowed or not in cases of affirmance. If upon the affirmance no allowance of interest or damages is made, it is equivalent to a denial of any interest or damages;  and the circuit court, in carrying into effect the decree of affirmance, cannot enlarge the amount thereby decreed; but is limited to the mere execution of the decree in the terms in which it is expressed. A decree of the circuit court allowing interest in such a case is, to all intents and purposes, quoad hoc, a new decree, extending the former decree. In Rose v. Himely, 5 Cranch 313, it was said, that upon an appeal from a mandate, nothing is before the court but the proceedings subsequent to the mandate; and the court refused to allow interest in the case, which was given by the circuit court in executing the mandate, because it was not awarded by the supreme court upon the first appeal. The same point was fully examined in the case of The Santa Maria, 10 Wheaton's Rep. 431, 442, where the court held that interest or damages could not be given by the circuit court in the execution of a mandate, where the same had not been decreed by the supreme court upon the original appeal. \nFor these reasons, the decree of the circuit court must be reversed; and a new decree will be entered by this court upon the principles stated in this opinion. \nThis cause came on to be heard on the transcript  of the record from the circuit court of the United States for the district of west Tennessee, and was argued by counsel; on consideration whereof, it is ordered, adjudged and decreed, that the decree of the circuit court, rendered upon the mandate aforesaid, be and hereby is reversed and annulled. And this court, proceeding to render such decree as the circuit court ought to have rendered in the premises, do further order, adjudge and decree as follows: that the said sum of 2100 dollars, reported by the master as received for rents by the said Robert Boyce, under the agreement therein mentioned, ought, under all the circumstances of the case, to be deemed assets of the said James Boyce decreased, in his, the said Robert's hands, to be administered according to law; and that the same ought to be  applied, in a due course of administration, to the payment of the debt of 2065 dollars and 28 cents, in the original decree of the circuit court, awarded to the plaintiff, and to the payment of the costs of the present suit; and it is therefore ordered, adjudged and decreed, that the same be so applied and paid by the said Robert, as administrator with the will annexed of the said  James Boyce, accordingly. And it is further ordered, adjudged and decreed, that execution do issue against the said Robert Boyce, administrator as aforesaid, for the said debt of 2065 dollars and 28 cents, and the costs of the present suit, to be levied of the goods and chattels, &c. of the said James Boyce, in the hands of the said Robert, administrator as aforesaid, and if none such shall be found, then to be levied out of the proper goods and chattels, &c. of him, the said Robert. \n \n\n ", " \nOpinion \n\n \n \n  Mr Justice STORY delivered the opinion of the Court. \nThis is a writ of error to the judgment of the circuit court for the district of Ohio. \n The material facts are these. In June 1830, the plaintiffs in error (who are citizens of New York) brought an action of assumpsit in the circuit court of Ohio, against one Joseph Harris and Cornelius V. Harris, and at the December term of the court, recovered judgment for 2818 dollars and 86 cents, and costs. In this action the defendant in error became special bail by recognizance, viz., that the Harris's should pay and satisfy the judgment recovered against them, or render themselves into the custody of the marshal of the district of Ohio. In October 1831, a writ of capias ad satisfaciendum was issued upon the same judgment, directed to the marshal; who, at the December term 1831, returned that the Harris's were not to be found. At the same term the circuit court adopted  the following rule, \"that if a defendant, upon a capias, does not give sufficient appearance bail, he shall be committed to prison, to remain until discharged by due course of law. But under neither mesne nor final process, shall any individual be kept imprisoned, who, under the insolvent law of the state, has for such demand been released from inprisonment.\" In February 1831, Cornelius V. Harris was duly discharged from imprisonment for all his debts, under the insolvent law of Ohio, passed in 1831; and in February 1832, Joseph Harris was in like manner discharged. In December 1832, the plaintiffs in error commenced the present action of debt, upon the recognizance of bail, against the defendant in error; stating, in the declaration, the original judgment, the defendant becoming special bail, and the return of the execution \"Not found.\" The defendant, among other pleas, pleaded the discharge of the Harris's under the insolvent law of Ohio of 1831, and the rule of the circuit court, above mentioned, in bar of the action. The plaintiffs demurred to the plea, and, upon joinder in demurrer, the circuit court gave judgment for the defendant; and the present writ of error is brought  to revise that judgment. \nThe question now before this court is, whether the plea contains a substantial defence to the action of debt brought upon the recognizance of special bail. In order to clear the case of embarrassment from collateral matters, it may be proper to state, that the recognizance of special bail being a part of the proceedings on a suit, and subject to the regulation of the court, the nature, extent and limitations of the responsibility  created thereby, are to be decided, not by a mere examination of the terms of the instrument, but by a reference to the known rules of the court and the principles of law applicable thereto. Whatever in the sense of those rules and principles will constitute a discharge of the liability of the special bail, must be deemed included within the purview of the instrument, as much as if it were expressly stated. Now, by the rules of the circuit court of Ohio, adopted as early as January term 1808, the liability of special bail was provided for and limited; and it was declared, that special bail may surrender their principal at any time before or after judgment against the principal; provided such surrender shall be before  a return of a scire facias executed, or a second scire facias nihil, against the bail. And this in fact constituted a part of the law of Ohio at the time when the present recognizance was given; for in the Revised Laws of 1823, 1824, (22d vol. of Ohio Laws 58) it is enacted that, subsequent to the return of the capias ad respondendum, the defendant may render himself or be rendered in discharge of his bail, either before or after judgment; provided such render be made at or before the appearance day of the first scire facias against the bail returned scire feci, or of the second scire facias returned nihil, or of the capias ad respondendum or summons in an action of debt against the bail or his recognizance returned served; and not after. This act was in force at the time of the passage of the act of congress of the 19th of May 1828, ch. 68, and must, therefore, be deemed as a part of the \"modes of proceeding\" in suits, to have been adopted by it. So that the surrender of the principal by the special bail within the time thus prescribed, is not a mere matter of favour of the court, but is strictly a matter of legal right. \nAnd This constitutes an answer to that part of the argument  at the bar, founded upon the notion, that by the return of the capias ad satisfaciendum, the plaintiffs had acquired a fixed and absolute right against the bail; not to be affected by any rules of the court. So far from the right being absolute, it was vested sub modo only, and liable to be defeated in the events prescribed by the prior rules of the court, and the statute of Ohio above referred to. It is true, that it has been said that by a return of non est inventus on a capias ad satisfaciendum,  the bail are fixed; but this language is not strictly accurate; even in courts acting professedly under the common law, and independently of statute. Lord Ellenborough, in Mannin v. Partridge, 14 East's Rep. 599, remarked that \"bail were to some purposes said to be fixed by the return of non est investus upon the capias ad satisfaciendum; but if they have, by the indulgence of the court, time to render the principal until the appearance day of the last scire facias against them, and which they have the capacity of using, they cannot be considered as completely and definitively fixed till that period. And so much are the proceedings against bail deemed a matter subject to  the regulation and practice of the court, that the court will not hesitate to relieve them in a summary manner, and direct an exoneretur to be entered in such cases of indulgence, as well as in cases of strict right. But there is this distinction: that where the bail were entitled to be discharged, ex debito justitiae, they may not only apply for an exoneretur by way of summary proceeding; but they may plead the matter as a bar to a suit in their defence. But where the discharge is matter of indulgence only, the application is to the discretion of the court, and an exoneretur cannot be insisted on except by way of motion. \nAnd this leads us to the remark, that where the party is, by the practice of the court, entitled to an exoneretur without a positive surrender of the principal, according to the terms of the recognizance, he is, a fortiori, entitled to insist on it by way of defence, where he is entitled, ex debito justitiae, to surrender the principal. Now, the doctrine is clearly established,  that where the principal would be entitled to an immediate and unconditional discharge, if he had been surrendered, there the bail are entitled to relief by entering an exoneretur,  without any surrender. This was decided in Mannin v. Partridge, 14 East 599; Boggs v. Teackle, 5 Binn. Rep. 332; and Olcott v. Lilly, 4 Johns. Rep. 407. And, a fortiori, this doctrine must apply where the law prohibits the party from being imprisoned at all; or where, by the positive operation of law, a surrender is prevented. So that there can be no doubt, that the present plea is a good bar to the suit, notwithstanding there has been no surrender; if by law the principal could not, upon such surrender, have been imprisoned at all. \n This constitutes the turning point of the case, and to the consideration of it we shall now proceed. In the first place, there is no doubt, that the legislature of Ohio possessed full constitutional authority to pass laws whereby insolvent debtors should be released, or protected from arrest or imprisonment of their persons on any action for any debt or demand due by them. The right to imprison constitutes no part of the contract; and a discharge of the person of the party from imprisonment, does not impair the obligation of the contract, but leaves it in full force against his property and effects. This was clearly settled by this court  in the cases of Sturges v. Crowninshield, 4 Wheat. Rep. 200; and Mason v. Haile, 12 Wheat. Rep. 370. In the next place, it is equally clear, that such state laws have no operation, proprio vigore, upon the process or proceedings in the courts of the United States; for the reasons so forcibly stated by Mr Justice Johnson, in delivering the final opinion of the court in Ogden v. Saunders, 12 Wheat. Rep. 213; and by Mr Chief Justice Marshall in delivering the opinion of the court in Wayman v. Southard, 10 Wheat. Rep. 1; and by Mr Justice Thompson in delivering the like opinion in the Bank of the United States v. Halstead, 10 Wheat. Rep. 51. \nState laws cannot control the exercise of the powers of the national government, or in any manner limit or affect the operation of the process or proceedings in the national courts. The whole efficacy of such laws in the courts of the United States, depends upon the enactments of congress. So far as they are adopted by congress they are obligatory. Beyond this, they have no controlling influence. Congress may adopt such state laws directly by a substantive enactment, or they may confide the authority to adopt them to the courts of the United States.  Examples of both sorts exist in the national legislation. The process act of 1789, ch. 21, expressly adopted the forms of writs and modes of process of the state courts, in suits at common law. The act of 1792, ch. 36, permanently continued the forms of writs, executions and other process, and the forms and modes of proceeding in suits at common law, then in use in the courts of the United States, under the process act of 1789; but with this remarkable difference, that they were subject to such alterations and additions as the said  courts respectively should, in their discretion, deem expedient: or to such regulations as the supreme court of the United States should think proper, from time to time, by rule to prescribe to any circuit or district court concerning the same. The constitutional validity and extent of the power thus given to the courts of the United States, to make alterations and additions in the process, as well as in the modes of proceeding in suits, was fully considered by this court in the cases of Wayman v. Southard, 10 Wheat. Rep. 1; and the Bank of the United States v. Halstead, 10 Wheat. Rep. 51. It was there held, that this delegation of power  by congress was perfectly constitutional; that the power to alter and add to the process and modes of proceeding in a suit, embraced the whole progress of such suit, and every transaction in it from its commencement to its termination, and until the judgment should be satisfied; and that it authorized the courts to prescribe and regulation the conduct of the officer in the execution of final process, in giving effect to its judgment. And it was emphatically laid down, that \"a general superintendence over this subject seems to be properly within the judicial province, and has always been so considered;\" and that \"this provision enables the courts of the union to make such improvements in its forms and modes of proceeding as experience may suggest; and especially to adopt such state laws on this subject, as might vary to advantage the forms and modes of proceeding, which prevailed in September 1789.\" The result of this doctrine, as practically expounded or applied in the case of the Bank of the United States v. Halstead, is, that the courts may, by their rules, not only alter the forms, but the effect and operation of the process, whether mesne or final, and the modes of proceeding  under it; so that it may reach property not liable, in 1789, by the state laws to be taken in execution, or may exempt property, which was not then exempted, but has been exempted by subsequent state laws. \nIf, therefore, the present case stood upon the mere ground of the authority conferred on the courts of the United States by the acts of 1789 and 1792, there would seem to be no solid objection to the authority by the circuit court of Ohio to make the rule referred to in the pleadings. It is no more than a regulation of the modes of proceeding in a suit, in order to conform  to the state law of Ohio, passed in 1831, for the relief of insolvent debtors. A regulation of the proceedings upon bail bonds and recognizances, and prescribing the conduct of the marshal in matters touching the same; seems to be as completely within the scope of the authority, as any which could be selected. \nBut in fact the present case does not depend upon the provisions of the acts of 1789 or 1792; but it is directly within and governed by the process act of the 19th of May 1828, ch. 68. That act in the first section declares, that the forms of mesne process, and the forms and modes of proceeding  in suits at common law in the courts of the United States, held in states admitted into the union since 1789, (as the state of Ohio has been) shall be the same in each of the said states, respectively, as were then used in the highest court of original and general jurisdiction in the same; subject to such alterations and additions as the said courts of the United States, respectively, shall, in their discretion, deem expedient, or to such regulations as the supreme court shall think proper from time to time, by rules, to prescribe to  any circuit or district court concerning the same. The third section declares, that writs of execution and other final process issued on judgments and decrees rendered in any courts of the United States, and \"the proceedings thereupon,\" shall be the same in each state, respectively, as are now used in the courts of such state, &c. &c. Provided, however, that it shall be in the power of the courts, if they see fit in their discretion, by rules of court, so far to alter final process in such courts, as to conform the same to any change which may be adopted by the legislature of the respective state, for the state courts. \nThis act was made  after the decisions in Wayman v. Southard, and the Bank of the United States v. Halstead, 10 Wheat. 1 and 51, and was manifestly intended to confirm the construction given in those cases to the acts of 1789 and 1792, and to continue the like powers in the courts to alter and add to the processes whether mesne or final, and to regulate the modes of proceedings in suits and upon processes, as had been held to exist under those acts. The language employed seems to have been designed to put at rest all future doubts upon the subject. But the material consideration now to be taken notice of, is  that the act of 1828 expressly adopts the mesne processes and modes of proceeding in suits at common law, then existing in the highest state courts under the state laws; which of course included all the regulations of the state laws as to bail, and exemptions of the party from arrest and imprisonment. In regard also to writs of execution and other final process, and \"the proceedings thereupon,\" it adopts an equally comprehensive language, and declares that they shall be the same as were then used in the courts of the state. Now, the words \"the proceedings on the writs of execution  and other final process,\" must, from their very import, be construed to include all the laws which regulate the rights, duties and conduct of officers in the service of such process, according to its exigency, upon the person or property of the execution debtor, and also all the exemptions from arrest or imprisonment under such process created by those laws. \nWe are then led to the inquiry, what were the laws of Ohio in regard to insolvent debtors at the time of the passage of the act of 1828. By the insolvent act of Ohio, of the 23d of February 1824 (Laws of Ohio, Revision of 1824, vol. 22, sect. 8, 9, p. 327, 328), which continued in force until it was repealed and superseded by the insolvent act of 1831, it is provided, that the certificate of the commissioner of insolvents, duly obtained, shall entitle the insolvent, if in custody upon mesne or final process in any civil action, to an immediate discharge therefrom, upon his complying with the requisites of the act. And it is further provided, that the final certificate of the court of common pleas, duly obtained, shall protect the insolvent for ever after from imprisonment for any suit or cause of action, debt or demand mentioned  in the schedule given in under the insolvent proceedings; and a penalty is also inflicted upon any sheriff or other officer, who should knowingly or wilfully arrest any person contrary to this provision. The act of 1831 (Laws of Ohio, Revision of 1831, vol. 29, sec. 21, 36, p. 333, 336) contains a similar provision, protecting the insolvent under like circumstances from imprisonment, and making the sheriff or other officer, who shall arrest him contrary to the act, liable to an action of trespass. Now, the repeal of the act of 1824, by the act of 1831, could have no legal effect to change the existing forms of mesne or final process, or the modes of proceeding thereon in the courts  of the United States, as adopted by congress, or to vary the powers of the same courts in relation thereto; but the same remained in full force, as if no such repeal had taken place. The rule of the circuit court is in perfect coincidence with the state laws existing in 1828; and if it were not, the circuit court had authority, by the very provisions of the act of 1828, to make such a rule, as a regulation of the proceedings upon final process, so as to conform the same to those of the state  laws on the same subject. \nUpon these grounds, without going into a more elaborate review of the principles applicable to the case, we are of opinion that the judgment of the circuit court was right; and that it ought to be affirmed with costs. \nThis cause came on to be heard on the transcript of the record from the circuit court of the United States for the district of Ohio, and was argued by counsel; on consideration whereof, it is ordered and adjudged by this court, that the judgment of the said circuit court in this cause be, and the same is hereby affirmed with costs. \nDissent by:", " \nOpinion \n\n \n \n  Mr Justice STORY, after stating the facts, delivered the opinion of the Court. \nThe original suit was brought to recover back the purchase money paid by the defendant in error for the slaves, and other compensation for the defect of title as mentioned in the previous statement of the facts of the case . The jury found a verdict for the original plaintiff, for 2636 dollars and 96 cents, upon which judgment was rendered accordingly; and the present writ of error is brought to revise that judgment upon certain bills of exceptions taken at the trial, on behalf of the plaintiffs in error. \nThe objections taken to the admissibility of the evidence were, in the first place, that the record in the case of the Heirs of  the testatrix v. Hull, in Louisiana, was not evidence against the defendants in the present suit, except as to the judgment of the court in Louisiana. By the judgment, we are to understand, not that part of the record, which in a suit at the common law technically follws, the ideo consideratum est, &c.; for that would be wholly unintelligible, without reference to the preceding pleadings and proceedings; but that which, in common, as well as legal language, is deemed the exemplification of a judgment; that is to say, all the pleadings and proceedings on which the judgment is founded, and to which, as matter of record, it necessarily refers. We are of opinion, that this objection was well taken. The suit was res inter alios acta, and the proceedings, and judgment therein were no further evidence than to show a recovery against Hull, by a paramount title. There was error, therefore, in the circuit court, in refusing to sustain this objection. \nThe next objection was, that the copy of the original bill of sale of the slaves to Hull, on record in the notary's effice, was not evidence, unless the plaintiff accounts for the non production of the original. The validity of this objection  depends upon this consideration, whether the non production of the original was sufficiently accounted for. It was not accounted for by any proofs offered on behalf of the plaintiff; and unless  the circuit court could judicially take notice of the laws of Louisiana, there was nothing before the court to enable it to say that the non production of the original was accounted for. \nWe are of opinion, that the circuit court was bound to take judicial notice of the laws of Louisiana. The circuit courts of the United States are created by congress, not for the purpose of administering the local law of a single  state alone, but to administer the laws of all the state in the union, in cases to which they respectively apply. The judicial power conferred on the general government, by the constitution, extends to many cases arising under the laws of the different states. And this court is called upon, in the exercise of its appellate jurisdiction, constantly to take notice of and administer the jurisprudence of all the states. That jurisprudence is then, in no just sense, a foreign jurisprudence, to be proved, in the courts of the United States, by the ordinary modes  of proof by which the laws of a foreign country are to be established; but it is to be indicially taken notice of in the same manner, as the laws of the United States are taken notice of by these courts. \nUnder these circumstances, we are at liberty to examine the objection above stated, with reference to the known laws of Louisiana. Now, in Louisiana, as indeed, in all countries using the civil law, notaries are officers of high importance and confidence; and the contracts and other acts of parties executed before them and recorded by them, are of high credit and authenticity. Some contracts and conveyances are not valid, except they are executed in a prescribed manner, before a notary; others again, if executed by the parties elsewhere, may be recorded by a notary; and a copy of such record is in many cases evidence. Where a contract or other act is executed in a particular manner, before a notary, the protocol or original remains in his possession apud acta; and the act is deemed, what is technically called, an \"authentic act;\" and a copy of such act, certified as a true copy by the notary, who is the depository of the original, or his successor, is deemed proof of what is contained  in the original, for the plain reason that the original is properly in the custody of a public officer, and not deliverable to the parties. This will abundantly appear, by a reference to the Civil Code of Louisiana, from article 2231 to article 2250. Now, the bill  of sale in the present case, is precisely in that predicament. It was executed before a notary in the manner prescribed by the laws of Louisiana; the original is in his possession, and is an authentic act, apud acta: and therefore, the party is not entitled to the possession of it, but only to a copy of it. So that the absence of the original is sufficiently accounted for; and the copy being duly proved, was properly admissible in evidence. There was no error, therefore, in the circuit court, in admitting this evidence. \nAnd this constitutes an answer to the next objection: viz. \"that to make the act of sale evidence, it must appear, by the laws of Louisiana, properly and legally proved, that the original act of sale, of which it purports to be a copy, is in the custody of a public depository, and cannot be adduced in evidence.\" By the laws of Louisiana, as already stated, the original is in the hands of  such a depository; and, therefore, the objection falls to the ground. \nThe next objection is, that the documents, and documentary proofs contained in the record of the Louisiana suit, above mentioned, are not evidence against the defendants. This has been already disposed of under the first objection; and there was error in the circuit court in not sustaining the objection. \nThe next objection is, that the papers referred to in the testimony of Martin Blache, purporting to be letters testamentary, granted by the court of probates of Louisiana to John K. West, are not legal evidence in the cause against the defendants. We are of opinion that the objection is unfounded, and was rightly overruled by the circuit court. Blache swears that he is the clerk and register of the court of probates; that the copy is a true copy of the original; that he cannot send the original, which is on file in the court of probates. Under such circumstances, the copy is the best evidence which the nature of the case admits of. \nThe next objection is, that the evidence of Mr Winchester, with regard to the letters and the accounts of J. K. West, transmitted by him, is not admissible evidence in the cause.  In our opinion the circuit court was right in overruling this objection. Mr Winchester was the attorney in fact of the defendants, and conducted, in their behalf, the correspondence with J. K. West; and the letters which passed between them  must be presumed to have been brought fully to the knowledge of the defendants, and were important to establish a presumption of the ratification of the acts of West by the defendants, after the communication of them. How far they ought to avail for that purpose, was matter of fact for the consideration of the jury.The only question with which we have to do, is their competency for this purpose. \nThe next and last objection, under this head, which properly should have preceded all the others, but was taken in a subsequent stage of the trial; is to the admissibility in evidence of the record from the parish court of the city of New Orleans, already referred to, for any purpose, on the ground of its not being authenticated according to law. This objection was overruled by the circuit court, and, in our opinion, properly overrulled. The record is authenticated in the precise manner required by the act of congress, of the 26th May 1790,  having the attestation of the clerk, and the seal of the court annexed, together with a certificate of the sole judge of the court that the attestation is in due form of law. \nWe may now proceed to the consideration of the instructions asked of the court in behalf of the defendants, in the farther progress of the cause, and refused by the court. With those asked by the plaintiff, in the actual posture of the cause, upon the present writ of error, we have nothing to do. \nThe first instruction asked was, that there was no evidence in the cause to show that John K. West had any authority from the defendants in the cause, to effect a sale of any property belonging to the estate of their testatrix, in Louisiana, except in conformity with the laws of the said state; and that unless the plaintiff shows a sale to the plaintiff (Hull), by West, in conformity with the said laws, and a subsequent recovery from Hull, he is not entitled to recover. We are of opinion that this instruction ought to have been given as prayed. \nEvery authority given to an agent or attorney, to transact business for his principal, must, in the absence of any counter proofs, be construed to be, to transact it according  to the  laws of the place where it is to be done. A sale of slaves, authorised by an executrix, to be made in Louisiana, must be presumed to be intended to be made in the manner required by the laws of that state to give it validity. And the purchaser, equally with  the seller, is bound under such circumstances to know what these laws are, and to be governed thereby. The law will never presume that parties intend to violate its precepts: and indeed, the very terms of the letter of attorney under which the present sale was made, clearly point out that it was in contemplation of the parties that judicial, as well as extrajudicial acts might be required to be done. The attorney is to execute good and sufficient deeds, &c., for the purpose of transferring all the right and title of the heirs of the testatrix in her real and personal estate, to the purchasers; and generally to do, negotiate and perform all other acts, matters and things in the premises, for the effectual settlement of the estate, &c. Now, there could be no effectual settlement unless a valid title to the slaves and other property sold, was given, according to the laws of Louisiana; and there is  no evidence in the case to show that the defendants ever contemplated any sale, which should not be valid by those laws. The circuit court therefore erred in not giving the instruction. \nThe next instruction asked, was for the court to instruct the jury that, unless they believed that John K. West strictly complied with the special instructions given him by the defendants in the power of attorney of January 1816, and caused such legal proceedings to be instituted, as were necessary to effect a sale of the personal estate, in Louisiana, of which their testatrix died possessed, and under such legal proceedings, made a sale of the slaves, being part of the personal estate, to the plaintiff (Hull), and that the slaves were subsequently recovered from the plaintiff, the plaintiff is not entitled to recover. For the reasons already given, this instruction ought also to have been given. This is not the case of a general agency, but a special agency, created by persons acting in autre droit. The purchaser was therefore bound to see whether the agent acted within the scope of his powers; and, at all events, he was bound to know that the agent could not, in virtue of any general power, do  any act which was not in conformity with the laws of Louisiana. The principals could never be presumed to authorise him to violate those laws; and the purchaser purchasing a title invalid by those laws, must have purchased it with his eyes open. \nThe next instruction asked, was for the court to direct the  jury, that if they should be of opinion, from the evidence, that the defendants did ratify the said sale of the slaves; yet if they should be opinion that West did not, before such ratification, apprise the defendants of the fact that the letters of administration were never taken out by him in Louisiana upon the estate of the testatrix, and of the fact that by the laws of Louisiana, the executrixes, the defendants, never could have claimed any property in the slaves so sold, and that the defendants, in ignorance of the existence of these facts, did ratify the said sale: then such ratification, being made without a full knowledge of all circumstances material for them to know before they made such ratification, is not binding upon them. The court refused to give this instruction, because the prayer did not arise from the facts of the case. But the court did direct the  jury, that if the jury should believe, from the evidence, that the proceedings of their attorney were ratified by them, it was not material whether they did or did not know, that West had taken out letters of administration on the estate of the testatrix. \nIt is wholly unnecessary for us now to consider whether the instruction as prayed, ought to have been given or not; for we are of opinion, that the instruction actually given cannot, in point of law, be supported. No doctrine is better settled, both upon principle and authority, than this; that the ratification of an act of an agent previously unauthorized, must, in order to bind the principal, be with a full knowledge of all the material facts. If the material facts be either suppressed or unknown, the ratification is treated as invalid, because founded in mistake or fraud. Now, by the laws of Louisiana (Civil Code, art. 1681, 1682), testaments made in foreign countries, and other states of the union, cannot be carried into effect on property in that state, without being registered in the court within the jurisdiction of which the property is situated; and the execution thereof is ordered by the judge; which may be doue, if it  be established that the testament has been duly proved before a competent judge of the place where it was received. So that there is no doubt, that the due probate of the will of the testatrix, before the proper court of probate of Louisiana, was an indispensable preliminary to any sale of the property in that state. If West had not taken out letters of  administration on the estate of the testatrix, in Louisiana, it is clear that he could have no authority to sell the slaves, or to bind the executrixes. \nFor these reasons we are of opinion, that the judgment of the circuit court ought to be reversed, and the cause be remanded to the circuit court, with directions to award a venire facias de novo. \nThis cause came on to be heard on the transcript of the record from the circuit court of the United States for the district of Maryland, and was argued by counsel; on consideration whereof, it is the opinion of the court, that there was error in the said circuit court in refusing to sustain the objections made by the original defendants (now plaintiffs in error), contained in their first specification in the record, viz. \"That the record in the case of Donaldson v. Hull, in  the parish court of New Orleans, is not evidence in this cause against the defendants, except as to the judgment of the court in Louisiana.\" And also in their fourth specification, viz. \"That the depositions and documentary proof contained in the record, in the cause of donaldson v. Hull, are not evidence against the defendants in this cause.\" And also that there was error in the said circuit court in refusing to grant the first instruction prayed by the defendants, viz. \"To direct the jury that there is no evidence in the cause to show that John K. West had any authority from the defendants in this cause, to effect a  sale of any property belonging to the estate of their testatrix, in Louisiana, except in conformity with the laws of said state; and that unless the plaintiff shows a sale to the plaintiff Hull, by West, in conformity with said laws, and a subsequent recovery from Hull, he is not entitled to recover.\" And also in refusing the second instruction prayed by the defendants, viz. \"To direct the jury that, unless they believe that John K. West strictly complied with the special instructions given him by the defendants in the power of attorney of January 30th 1816,  and caused such legal proceedings to be instituted as were necessary to effect a sale of the personal estate of which their testatrix died possessed of in Louisiana; and, under such legal proceedings, made sale of certain slaves, being par of the said  personal estate, to J. F. Hull, the plaintiff in this cause; and that the said slaves were subsequently recovered from the said Hull: that the plaintiff is not entitled to recover.\" And also in giving the following instruction to the jury, viz. \"That if the jury should believe from the evidence, that the proceedings of their attorney were ratified by them, it is not material whether they knew, or did not know, that West had not taken out letters of administration on the estate of the testatrix.\" It is therefore considered by the court, that for these errors the judgment of the said circuit court be, and the same is hereby reversed and annulled, and the cause is remanded to the said circuit court, with directions to award a venire facias de novo. \n \n\n ", ", \nOpinion \n\n \n \n   Mr Justice STORY, after stating the facts of the case, delivered the opinion of the Court. \nThe points principally relied on at the argument are, in the first place, that the party is not liable to be arrested to answer the indictment, after having given a recognizance of bail;  although the recognizance has been forfeited, and the party has not appeared and answered, and been tried on the indictment: in the next place, that the discharge upon the habeas corpus before Mr Chief Justice Cranch, is a bar to any subsequent arrest. \nWe are of opinion that neither of these grounds can, in point of law, be maintained. A recognizance of bail, in a criminal case, is taken to secure the due attendance of the party accused, to answer the indictment, and to submit to a trial, and the judgment of the court thereon. It is not designed as a satisfaction for the offence, when it is forfeited and paid; but as a means of compelling the party to submit to the trial and punishment, which the law ordains for his offence. And, a fortiori, it cannot be deemed to apply to a case like the present, of a penitentiary offence; for that would be to suppose that the law allowed  the party to purge away the offence, and the corporeal punishment, by a pecuniary compensation. there  is nothing, in our opinion in the Maryland statute of 1780, ch. 10, to charge this construction of the law. \nthe other ground is also unmaintainable. A discharge of a party under a writ of habeas corpus from the process under which he is imprisoned, discharges him from any further confinement under the process; but not under any other process, which may be issued against him under the same indictment. \nFor these reasons we are of opinion that the party is rightfully in custody under the bench warrant of the circuit court; and therefore, that the petition for the writ of habeas corpus ought to be denied. \nThe rule, therefore, to show cause is discharged; and the motion for the habeas corpus is overruled. \n \n\n ", " \nOpinion \n\n \n \nMr. Justice STORY delivered the opinion of the Court, to the following effect: The rule of the court for docketing and dismissing causes has never been applied to any cases, where, before the motion was made, the cause had been actually placed on the docket. In the present case, the motion to dismiss, and the motion to docket the cause, are contemporaneous. The court are of opinion that, under such circumstances, the motion to docket the cause ought to be allowed; upon the usual bond for the clerk's fees being given. For this purpose time will be given to the plaintiff in error, (as it is asked), until the 1st day of March next. If by that time no bond is given, the cause will then be dismissed according the motion of the defendant in error. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the Court. \nThis is a writ of error to the circuit court for the county of Washington, and District of Columbia. \nThe original action was an ejectment brought by the plaintiff  in error against the defendant in error; and both parties claimed title under Richard N. Barry. At the trial of the cause upon the general issue, it was admitted, that Richard N. Barry, being seized in fee of the premises sued for, on the first day of December 1831, executed a deed thereof to Richard Wallach. The deed, after reciting that Barry and one Bing were indebted to Tucker and Thompson in the sum of three thousand two hundred and thirty-eight dollars, for which they had given their promissory note, payable in six months after date, to secure which the conveyance was to be made, conveyed the premises to Wallach, in trust to sell the same in case the debt should remain unpaid ten days after the first day of December then next. The same were accordingly sold by Wallach, for default of payment of the note, on the 23d of February 1833, and were bought at the sale by Tucker and Thompson, who received a deed of the same, on the 7th of March of the same year. It was admitted, that after the execution of the deed of Barry to Wallach, the former continued in possession of the premises until the 8th of February 1833, when he executed  a deed, including the same and other  parcels of land, to his mother, Eliza G. Moreland, the defendant, in consideration (as recited in the deed) of the sum of one thousand one hundred and thirty-eight dollars and sixty-one cents, which he owed his mother; for the recovery of which she had instituted a suit against him, and of other sums advanced him, a particular account of which had not been kept, and of the further sum of five dollars. At the time of the sale of Wallach, the defendant gave public notice of her title to the premises, and she publicly claimed the same as her absolute right. The defendant further gave evidence at the trial, to prove that at the time of the execution of the deed by Barry to Wallach, he, Barry, was an infant under twenty-one years of age; and at the time of the execution of the deed to the defendant, he was of the full age of twenty-one years. \nUpon this state of the evidence, the counsel for the defendant prayed the court to instruct the jury, that if upon the whole evidence given as aforesaid to the jury, they should believe the facts to be as stated as aforesaid, then the deed from the said Wallach to the plaintiffs, did not convey to the plaintiffs any title, which would enable them  to sustain the action. This instruction the court gave; and this constitutes the exception now relied on by the plaintiff in error in his first bill of exceptions. \nSome criticism has been made upon the language, in which this instruction is couched. But, in substance, it raises the question, which has been so fully argued at the bar, as to the validity of the plaintiffs' title to recover; if Barry was an infant at the time of the execution of his deed to Wallach. If that deed was originally void, by reason of Barry's infancy, then the plaintiff, who must recover upon the strength of his own title, fails in that title. If, on the other hand, that deed was voidable only, and not void, and yet it has been avoided by the subsequent conveyance to the defendant by Barry; then the same conclusion follows. And these, accordingly, are the considerations, which are presented under the present instruction. \nIn regard to the point, whether the deed of lands by an infant is void or voidable at the common law, no inconsiderable diversity of opinion is to be found in the authorities. That  some deeds or instruments under seal of an infant are void, and others voidable, and others  valid and absolutely obligatory, is not doubted. Thus, a single bill under seal given by an infant for necessaries, is absolutely binding upon him; a bond with a penalty for necessaries is void, as apparently to his prejudice; and a lease reserving rent is voidable only. 1 The difficulty is in ascertaining the true principle, upon which these distinctions depend. Lord Mansfield, in Zouch v. Parsons, (3 Burr. 1804,) said, that it was not settled, what is the true ground upon which an infant's deed is voidable only; whether the solemnity of the instrument is sufficient, or it depends upon the semblance of benefit from the matter of the deed upon the face of it. Lord Mansfield, upon a full examination of the authorities on this occasion, came to the conclusion (in which the other judges of the court of King's bench concurred) that it was the solemnity of the instrument, and delivery by the infant himself, and not the semblance of benefit to him, that constituted the true line of distinction between void and voidable deeds of the infant. But he admitted, that there were respectable sayings the other way. The point was held by the court not necessary to the determination of that case;  because in that case the circumstances showed, that there was a semblance of benefit sufficient to make the deed voidable only, upon the matter of the conveyance. There can be little doubt, that the decision in Zouch v. Parsons was perfectly correct; for it was the case of an infant mortgagee, releasing by a lease and release his title to the premises, upon the payment of the mortgage money by a second mortgagee, with the consent of the mortgagor. It was precisely such an act as the infant was bound to do; and would have been compelled to do by a court of equity, as a trustee of the mortgagor. And certainly it was for his interest to do, what a court of equity would by a suit have compelled him to do. 2 \nUpon this occasion, Lord Mansfield and the court approved of  the lave as laid down by Perkins, (Sect. 12,) that \"all such gifts, grants, or deeds made by infants, which do not take effect by delivery of his hand  are void. But  all gifts, grants, or deeds made by infants by matter of deed or in writing, which do take effect by delivery of his hand are voidable by himself, by his heirs, and by those who have his estate.\" And in Lord Mansfield's view, the words \"which do take effect,\" are an essential part of the definition; and exclude letters of attorney, or deeds, which delegate a mere power and convey no interest. 3 So that, according to Lord Mansfield's opinion, there is no difference between a feoffment and any deeds which convey an interest. In each case, if the infant makes no feoffment or delivers no deed in person, it takes effect by such delivery of his hand, and is voidable only. But if either be done by a letter of attorney from the infant, it is void, for it does not take effect by a delivery of his hand. \nThere are other authorities, however, which are at variance with this doctrine of Lord Mansfield, and which put a different interpretation upon the language of Perkins. According to the latter, the semblance of benefit to the infant or not, is the true ground of holding his deed voidable or void. That it makes no difference,  whether the deed be delivered by his own hand or not; but whether it be for his benefit or not. If the former, then it is voidable; if the latter, then it is void. And that Perkins, in the passage above stated, in speaking of gifts and grants taking effect by the delivery of the infant's hand, did not refer to the delivery of the deed, but to the delivery of the thing gramted; as, for instance, in the case of a feoffment to a delivery of seisin by the infant personally; and in case of chattels, by a delivery of the same by his own hand. This is the sense in which the doctrine of Perkins is laid down in Sheppard's Touchstone, 232. Of this latter opinion, also, are some other highly respectable text writers; 4 and, perhaps, the weight of authority,  antecedent to the decision in Zouch v. Parsons, inclined in the same way, Lord Chief Justice Eyre, in Keane v. Boycott, (2 Hen. Black. 515,) alluded to this distinction in the following terms. After having corrected the generality of some expressions in Litt. S. 259, he added: \"We have seen that some contracts of infants, even by deed, shall bind them; some are merely void, namely, such as the court can pronounce to be to  their prejudice; others, and the most numerous class, of a more uncertain nature as to benefit or prejudice, are voidable only; and it is in the election of the infant to affirm them or not. In Roll. Abridg. title Enfants, (1 Roll. Abridg. 728,) and in Com. Dig. under the same title, instances are put of the three different kinds, of good, void, and voidable contracts. Where the contract is by deed, and not apparently to the prejudice of the infant, Comyns states it as a rule, that the infant cannot plead non est factum, but must plead his infancy. It is his deed; but this is a mode of disaffirming it. He, indeed, states the rule generally; but I limit it to that case, in order to reconcile the doctrine of void and voidable contracts.\" A doctrine of the same sort was held by the court in Thompson v. Leach, 3 Mod. 310; in Fisher v. Mowbray, 8 East 330; and Baylis v. Dineley, 3 M. & selw. 477. In the two last cases, the court held, that an infant cannot bind himself in a bond with a penalty, and especially to pay interest. In the case of Baylis v. Dineley, Lord Ellenborough said: \"In the case of the infant lessor, that being a lease, rendering rent, imported on the face of it a  benefit to the infant; and his accepting the rent at full age was conclusive that it was for his benefit. But how do these authorities affect a case, like the present, where it is clear upon the face of the instrument that it is to the prejudice of the infant, for it is an obligation with a penalty, and for the payment of interest? Is there any authority to show, that if, upon looking to the instrument, the court can clearly pronounce, that it is to the infant's prejudice, they will, nevertheless, suffer it to be set up by matter ex post facto after full age?\" And then, after commenting on Keane v. Baycott, and Fisher v. Mowbray, he added: \"In Zouch v. Parsons, where this subject was much considered, I find nothing, which tends to show, that an infant may bind himself  to his prejudice. It is the provilege of the infant, that he shall not; and we should be breaking down the protection, which the law has cast around him, if we were to give effect to a confirmation by parol of a deed, like this, made during his infancy.\" \n It is apparent, then, upon the English authorities, that however true it may be, that an infant may so far bind himself by deed in certain cases, as that in consequence of the solemnity of the instrument it is voidable only, and not void; yet that the instrument, however solemn, is held to be void, if upon its face it is apparent, that it is to the prejudice of the infant. This distinction, if admitted, would go far to reconcile all the cases; for it would decide, that a deed by virtue of its solemnity should be voidable only, unless it appeared on its face to be to his prejudice, in which case it would be void. 5 \nThe same question has undergone no inconsiderable discussion in the American courts. In Oliver v. Hendlet, 13 Mass. Rep. 239, the court seemed to think the true rule to be, that those acts of an infant are void, which not only apparently but necessarily operate to his prejudice. In Whitney v. Dutch, 14 Mass. Rep. 462, the same court said, that whenever the act done may be for the benefit of the infant, it shall not be considered void; but that he shall have his election, when he comes of age, to affirm or avoid  it. and they added, that this was the only clear and definite proposition, which can be extracted from the authorities. 6 In Conroe v. Birdsall, 1 John. Cas. 127, the court approved of the doctrine of Perkins, § 12, as it was interpreted and adopted in Zouch v. Parsons; and in the late case of Roof v. Stafford, 7 Cowen's Rep. 180, 181, the same doctrine was fully recognised. But in an intermediate  case, Jackson v. Burchin, 14 John. Rep. 126, the court doubted, whether a bargain and sale of lands by an infant was a valid deed to pass the land, as it would make him stand seised to the use of another.And that doubt was well warranted by what is laid down in 2 Inst. 673, where it is said, that if an infant bargain and sell lands, which are in the realty, by deed indented and enrolled, he may avoid it when he will, for the deed was of no effect to raise a use. \n The result of the American decisions has been correctly stated by Mr. Chancellor Kent, in his learned Commentaries, (2 Com. Lect. 31,) to be, that they are in favor of construing the acts and contracts of infants generally to be voidable only, and  not void, and subject to their election, when they become of age, either to affirm or disallow them; and that the doctrine of Zouch v. Parsons has been recognised and adopted as law. It may be added, that they seem generally to hold, that the deed of an infant conveying lands is voidable only, and not void; unless, perhaps, the deed should manifestly appear on the face of it to be to the prejudice of the infant; and this upon the nature and solemnity, as well as the operation of the instrument. \nIt is not, however, necessary for us in this case to decide whether the present deed, either from its being a deed of bargain and sale, or from its nature, as creating a trust for a sale of the estate, or from the other circumstances of the case, is to be deemed void, or voidable only. for if it be voidable only, and has been avoided by the infant, then the same result will follow, that the plaintiff's title is gone. \nLet us, then, proceed to the consideration of the other point, whether, supposing the deed to Wallach to be voidable only, it has been avoided by the subsequent deed of Barry to Mrs. Moreland. There is no doubt, that an infant may avoid his act, deed, or contract, by different  means, according to the nature of the act, and the circumstances of the case. He may sometimes avoid it by matter in pais, as in case of a feoffment by an entry, if his entry is not tolled; sometimes by plea, as when he is sued upon his bond or other contract; sometimes by suit, as when he disaffirms a contract made for the sale of his chattels, and sues for the chattels; sometimes by a writ of error, as when he has levied a fine during his nonage; sometimes by a writ of audita querela, as when he has acknowledged a recognizance or statute staple or merchant; 7 sometimes, as in the case of an alienation of his estate during his nonage by a writ of entry, dum suit infra aetatem, after his arrival of age. The general result seems to be that where the act of the infant is by matter of record, he  must avoid it by some act of record, (as for instance, by a writ of error, or an audita querela) during his minority. But if the act of the infant is a matter in pais, it may be avoided by an act in pais of equal solemnity or notority; and this, according to some authorities, either during his nonage or afterwards; and according to others, at all events, after his arrival of age. 8  In Co. Litt. 380, b., it is said, \"Herein a diversity is to be observed between matters of record done or suffered by an infant, and matters in fait; for matters in fait he shall avoid either within age or at full age, as hath been said; but matters of record, as statutes, merchants, and of the staple, recognizances acknowledged by him, or a fine levied by him, recovery against him, &c. must be avoided by him, viz. statutes, &c. by audita querela; and the fine and recovery by a writ of error during his minority, and the like.\" In short, the nature of the original act or conveyance generally governs, as to the nature of the act required to be done in the disaffirmance of it. If the latter be of as high and solemn a nature as the former, it amounts to a valid avoidance of it. We do not mean to say, that in all cases the act of disaffirmance should be of the same, or of as high and solemn a nature as the original act; for a deed may be avoided by a plea. But we mean only to say, that if the act of disaffirmance be of as high and solemn a nature, there is no ground to impeach its sufficiency. Lord Ellenborough in Baylis v. Dineley, (3 Maule and Selw. 481, 482,) held a parol confirmation  of a bond given by an infant after he came of age to be invalid; insisting that it should be by something amounting to an estoppel in law, of as high authority as the deed itself; but that the same deed might be avoided by the plea of infancy. There are cases, however, in which a confirmation may be good without being by deed; as in case of a lease by an infant, and his receiving rent after he came of age. 9 \nThe question then is, whether, in the present case, the deed to Mrs. Moreland, being of as high and solemn a nature as the original deed to Wallach; is not a valid disaffirmance of it. We think it is. If it was a voidable conveyance which had passed  the seisin and possession to Wallach, and he had remained in possession, it might, like a feoffment, have been avoided by an entry by an infant after he came of age. 10 But  in point of fact Barry remained in possession; and therefore he could not enter upon himself. And when he conveyed to Mrs. Moreland, being in possession, he must be deemed to assert his original interest in the land, and to pass it in the same manner as if he had entered upon the land and delivered the deed thereon, if the same had been in an adverse possession. \nThe cases of Jackson v. Carpenter (11 John. R. 539,) and Jackson v. Burchin (14 John. R. 124,) aredirectly in point, and proceed upon principles, which are in perfect coincidence with the common law, and are entirely satisfactory. Indeed, they go farther than the circumstances of the present case require; for they dispense with an entry where the possession was out of the party when he made the second deed. In Jackson v. Burchin the court said, that it would seem not only upon principle but authority, that the infant can manifest his dissent in the same way and manner by which he first assented to convey. If he has given  livery of seisin, he must do an act of equal notoriety to disaffirm the first act; he must  enter on the land and make known his dissent. If he has conveyed by bargain and sale, then a second deed of bargain and sale will be equally solemn and notorious in disaffirmance of the first. 11 We know of no authority or principle, which contradicts this doctrine. It seems founded in good sense, and follows out the principle of notoriety of disaffirmance in the case of a feoffment by an entry; that is, by an act of equal notoriety and solemnity with the original act. The case of Frost v. Wolverton, (1 Strange 94,) seems to have proceeded on this principle. \nUpon these grounds we are of opinion, that the deed of Barry to Mrs. Moreland was a complete disaffirmance and avoidance of his prior deed to Wallach; and consequently, the instruction given by the circuit court was unexceptionable. To give effect to  such disaffirmance, it was not necessary, that the infant should first place the other party in statu quo. \nThe second bill of exceptions, taken by the plaintiff, turns upon the instructions asked upon the evidence stated therein, and scarcely admits of abbreviation. It is as follows: \n\"The plaintiff, further to  maintain and prove the issue on his side, then gave in evidence, by competent witnesses, facts tending to prove that the said Richard N. Barry had attained the full age of twenty-one years on the fourteenth day of september 1831; and that in the month of November 1831, the said defendant, who was the mother of the said Richard, did assert and declare that said Richard was born on the fourteenth day of September 1810; and that she did assert to Dr. McWilliams, a competent and credible witness, who deposed to said facts, and who was the accoucheur attending on her at the period of the birth of her said son, that such birth actually occurred on the said fourteenth of September 1810, and applied to said Dr. McWilliams to give a certificate and deposition that the said day was the true date of the birth; and thereupon the counsel for the plaintiff requested the court to instruct the jury -- \n\"1. That, if the said jury shall believe, from the said evidence, that the said Richard N. Barry was of full age, and above the age of twenty-one years, at the time of the execution of said deed to said Wallach, or if the defendant shall have failed to satisfy the jury from the evidence that said Barry  was, at the said date, an infant under twenty-one years, that then the plaintiff is entitled to recover. \n\"2. Or if the jury shall believe, from the said evidence, that if said Richard was under age at the time of the execution of said deed, that he did, after his arrival at age, voluntarily and deliberately recognise the same as an actual conveyance of his right, or during a period of several months acquiesee in the same without objection, that then the said deed cannot now be impeached on account of the minority of the grantor. \n\"3. That the said deed from the said Richard N. Barry to the defendant, being made to her with full notice of said previous deed to said Wallach, and including other and valuable property, is not so inconsistent with said first deed as to amount to a disaffirmance of the same. \n \"4. That, from the relative position of the parties to said deed to defendant, at and previous to its execution, and from the circumstances attending it, the jury may infer that the same was fraudulent and void. \n\"5. That if the lessors of plaintiff were induced, by the acts and declarations of said defendant, to give a full consideration for said deed to Wallach, and to  accept said deed as a full and only security for the debt bona fide due to them, and property bona fide advanced by them, and to believe that the said security was valid and cffective, that then it is not competent for said defendant in this action to question or deny the title of said plaintiff under said deed, whether the said acts and declarations were made fraudulently, and for the purpose of practising deception, or whether said defendant, from any cause, wilfully misrepresented the truth. \n\"Whereupon, the court gave the first of the said instructions so prayed as aforesaid, and refused to give the others. \n\"To which retusal the counsel for the plaintiff excepted.\" \nThe first instruction, being given by the court, is of course excluded from our consideration on the present writ of error. The second instruction is objectionable on several accounts. In the first place, it assumes, as matter of law, that a voluntary and deliberate recognition by a person after his arrival at age, of an actual conveyance of his right during his non-age, amounts to a confirmation of such conveyance. In the next place, that a mere acquiescence in the saine conveyance, without objection, for several  months after his arrival at age, is also a confirmation of it. In our judgment, neither proposition is maintainable. The mere recognition of the fac that a conveyance has been made, is not, per se, proof of a confirmation of it. Lord Ellenborough, in Baylis v. Dineley (3 M. & Selw. 482,) was of opinion, that an act of as high a solemnity as the original act was necessary to a confirmation. \"We cannot (said he) surrender the interests of the infant into such hands as he may chance to get. It appears to me, that we should be doing so in this case, (that of a deed,) unless we required the act after full age to be of as great a solemnity as the original instrument.\" Without undertaking to apply this doctrine to its full extent, and admitting that acts  in pais may amount to a confirmation of a deed, still we are of opinion, that these acts should be of such a solemn and unequivocal nature as to establish a clear intention to confirm the deed, after a full knowledge, that it was voidable. 12 A fortiori, mere acquiescence, uncoupled with any acts demonstrative of an intent to confirm it, would be insufficient for the purpose. In Jackson v. Carpenter, (11 Johns. R. 542, 543,)  the court held, that an acquiescence by the grantor in a conveyance made during his infancy, for eleven years after he came of age, did not amount to a confirmation of  that conveyance; that some positive act was necessary, evincing his assent to the conveyance. In Austin v. Patton, (11 Serg. & Rawle. 311,) the court held, that to constitute a confirmation of a conveyance or contract by an infant, after he arrives of age, there must be some distinct act, by which he either receives a benefit from the contract after he arrives at age, or does some act of express ratification. There is much good sense in these decisions, and they are indispensable to a just support of the rights of infants according to the common law. Besides; in the present case, as Barry was in possession of the premises during the whole period until the execution of his deed to MRs. Moreland, there was no evidence to justify the jury in drawing any inference of any intenional acquiescence in the validity of the deed to Wallach. \nThe third instruction is, for the reasons already stated, unmaintainable. The deed to Mrs. Moreland contains a conveyance  of the very land in controversy, with a warranty of the title against all persons claiming under him, (Barry,) and a covenant, that he had good right and title to convey the same and, therefore, is a positive disaffirmance of the former deed. \nThe fourth instruction proceeds upon the supposition, that if the deed to Mrs. Moreland was fraudulent betwen the parties to it, it was utterly void, and not merely voidable. But it is clear, that between the parties it would be binding, and available; however, as to the persons whom it was intended to defraud, it might be voidable. Even, if it was made for the very purpose of defeating the conveyance to Wallach, and was a mere contrivance  for this purpose, it was still an act competent to be done by Barry, and amounted to a disaffirmance of the conveyance to Wallach. In many cases, the disaffirmance of a deed made during infancy, is a fraud upon the other party. But this has never been held sufficient to avoid the disaffirmance, for it would otherwise take away the very protection, which the law intends to throw round him to guard him from the effects of his folly, rashness, and misconduct. In Saunderson v. Marr, (1 H. Bl. 75,)  it was held, that a warrant of attorney, given by an infant, although there appeared circumstances of fraud on his part, was utterly void, even though the application was made to the equity side of the court, to set aside a judgment founded on it. So, in Conroe v. Birdsall, (1 John. Cas. 127,) a bond made by an infant, who declared at the time, that he was of age, was held void, notwithstanding his fraudulent declaration; for the court said that a different decision would endanger all the rights of infants. A similar doctrine was held by the court in Austin v. Patton, (11 Serg. & Rawle. 309, 310.) Indeed, the same doctrine is to be found affirmed more than a century and a half ago, in Johnson v. Pie, (1 Lev. 169; S. C. 1 Sid. 258; 1 Kebb. 995, 913. 13 \nBut what are the facts, on which the instruction relies as proof of the deed to Mrs. Moreland being fraudulent and void? They are \"the relative positions of the parties to said deed, at and previous to its execution:\" that is to say, the relation of mother and son; and the fact that she had then instituted a suit against him, and arrested him, and held him to  bail, as stated in the evidence; and \"from the circumstances attending the execution of it;\" that is to say, that Mrs. Moreland was informed by Barry, before his deed to her, that he had so conveyed the said property to Wallach, and that subsequently, and with such knowledge, she prevailed on Barry to execute to her the same conveyance. Now, certainly, these facts, alone, could not justly authorize a conclusion, that the conveyance to Mrs. Moreland was fraudulent and void; for she might be a bona fide creditor of her son. And the consideration averred in that conveyance showed her to be a creditor, if it was truly stated, (and there  was no evidence to contradict it;) and if she was a creditor, then she had a legal right to sue her son, and there was no fraud in prevailing on him to give a deed to satisfy that debt. It is probable, that the instruction was designed to cover all the other facts stated in the bill of exceptions, though in its actual terms it does not seem to comprehend them. But, if it did, we are of opinion, that the jury would not have been justified in inferring, that the deed was fraudulent and void. In the first place, the proceedings in the orphans'  court may, for aught that appears, have been in good faith; and under an innocent mistake of a year of the actual age of Barry. In the next place, if not so, still the mother and the son were not estopped in any other proceeding to set up the nonage of Barry, whatever might have been the case as to the parties and property involved in that proceeding.In the next place, there is not the slighest proof that these proceedings had, at the time, any reference to, or intended operation upon the subsequent deed made to Wallach; or that Mrs. Moreland was party to, or assisted in, the negotiations or declarations on which the deed to Wallach was founded. Certainly, without some proofs of this sort, it would be going too far to assert, that the jury might infer, that the deed to Mrs. Moreland was fraudulent. Fraud is not presumed either as a matter of law or fact, unless under circumstances not fairly susceptible of any other interpretation. \nThe fifth instruction was properly refused by the court, for the plain reason that there was no evidence in the case of any acts or declarations by Mrs. Moreland to the effect therein stated. It was, therefore, the common case of an instruction asked  upon a mere hypothetical statement, ultra the evidence. \nThe third bill of exceptions is as follows: \n\"The court having refused the 2d, 3d, 4th, and 5th instructions prayed by the plaintiffs, and the counsel, in opening his case to the jury, contending that the questions presented by the said instructions were open to the consideration of the jury, the counsel for the defendant thereupon prayed the court to instruct the jury that, if, from the evidence so as aforesaid given to the jury, and stated in the prayers for the said instructions, they should be of opinion, that the said Richard was under  the age of twenty-one years at the time he made his deed as aforesaid to the said Richard Wallach, under whom the plaintiffs claim their title in this case, and that at the time he made his deed as hereinbefore mentioned to the defendant, he was  of full age, that such last mentioned deed was a disaffirmance of his preceding deed to him the said Richard Wallach, and that in that case the jury ought to find their verdict for the defendant, and that the evidence upon which the 2d, 3d, 4th, and 5th instructions were prayed by the plaintiff as aforesaid, which evidence is  set forth in the instructions so prayed, is not competent in law to authorize the jury to find a verdict for the plaintiff upon any of the grounds or for any of the reasons set forth in the said prayers, or to authorize them to find a verdict for the plaintiff, if they should be of opinion, that the said Richard Barry was under the age of twenty-one years at the time he made his deed as aforesaid to the said Richard Wallach. \n\"Which instruction the court gave as prayed, and the counsel for the plaintiff excepted thereto.\" \nIt is unnecessary to do more than to state, that the bill of exceptions is completely disposed of by the considerations already mentioned. IT contains no more than the converse of the propositions stated in the second bill of exceptions, and the reassertion of the instruction given by the court in the first bill of exceptions. \nUpon the whole, it is the opinion of the Court, that the judgment of the circuit court ought to be affirmed with costs. \n \n\n ", " \nOpinion \n\n \n \n  Mr Justice STORY delivered the opinion of the Court. \nThis is a writ of error to the superior court of the state of Delaware, to revise the judgment of the court of errors and appeals of the said state; the record of which judgment had been remanded to the superior court of the same state. \nA motion has been made to dismiss the suit for want of jurisdiction; upon the ground that there is nothing apparent upon the record to bring the case within the revising power of this court under the twenty-fifth section of the judiciary act of 1789, ch. 20. That section confers appellate jurisdiction in this court from final judgments and decrees in any suit in the highest court of law or equity of a state in which a decision in the suit could be had in three classes of cases: first, where is drawn in question the validity of a treaty or statute of, or an authdority exercised under the United States, and the decision is against their validity: secondly, where is drawn in question the validity of a statute of, or an authority exercised under any state, on the ground of their being repugnant to the constitution, treaties or laws of the United States, and the decision is in favour of such their validity: thirdly, where is drawn in question the construction of any clause of the constitution, or of a treaty or statute of, or commission held under the United States, and the decision is against the title, right, privilege or exemption specially set up or claimed by either party, under such clause of the said constitution, treaty, statute  or commission. The section then goes on to provide that no other error shall be assigned or regarded as a ground of reversal in any such case as aforesaid, then such as appears upon the face of  the record; and immediately respects the beforementioned questions of validity or construction of the said constitution, treaties, statutes, commissions or authorities in dispute. \nIn the interpretation of this section of the act of 1789, it has been uniformly held, that to give this court appellate jurisdiction two things should have occurred and be apparent in the record: first, that some one of the questions stated in the section did arise in the court below; and secondly, that a decision was actually made thereon by the same court, in the manner required by the section. If both of these do not appear on the record, the appellate jurisdiction fails. It is not sufficient to show that such a question might have occurred, or such a decision might have been made in the court below. It must be demonstrable that they did exist and were made. The principal, perhaps the only important difficulty which has ever been felt by the court; has been in ascertaining in particular cases whether these matters (the question and decision) were apparent on the record. And here the doctrine of the court has been, that it is not indispensable that it should appear on the record, in totidem verbis,  or by direct and positive statement, that the question was made and the decision given by the court below on the very point; but that it is sufficient, if it is clear, from the facts stated, by just and necessary inference, that the question was made, and that the court below must, in order to have arrived at the judgment pronounced by it, have come to the very decision of that question as indispensable to that judgment. \nAlthough this has been the course of the decisions  in this court, as to the extent and exercise of its appellate jurisdiction over the judgments and decrees of state courts; yet it is apparent from the arguments on the present occasion, as well as from those which have been addressed to us on several other late occasions, that a different impression exists at the bar; and that it has been supposed that a much wider latitude of interpretation of the twenty-fifth section of the judiciary act of 1789 has been adopted by the court. To correct, at least as far as in us lies, this mistaken notion; we shall now proceed to review the various decisions which have heretofore been made on this subject. \nThe earliest case is Owings v. Norwood's Lessee, 5 Cranch 344.   In that case it clearly appeared, that the construction of a treaty was before the state court; and that it was decided that the right of the party was not protected by the treaty. This court affirmed the decision of the state court. The next case was Smith v. The State of Maryland, 6 Cranch. Rep. 281. In that case it was contended that the court had no jurisdiction, because the cause turned exclusively upon the confiscation laws of Maryland; and that no question relative to the construction of the treaty of peace, did or could occur. But upon the facts stated on the record, the only title asserted by the original plaintiffs was founded on the confiscation acts of Maryland; and the only title set up by the original defendant was for a British alien, protected by the treaty of peace. If that title was so protected, then the plaintiffs were not entitled to the relief sought by the bill; if otherwise, then the plaintiffs were entitled to a decree. The state court decided that the plaintiffs were so entitled; and therefore necessarily decided against the treaty as a protection. The jurisdiction was maintained by this court upon this posture of the facts; and the decision  of the state court was afterwards affirmed. But the court said, that in order to decide upon the main question, it was indispensable to ascertain what the nature of the title was, to which the treaty was sought to be applied. \nThe next case was Martin v. Hunter's Lessee, 1 Wheaton's Rep. 305, 355. There the original case came before the court upon an agreed statement of facts, upon which the state court gave judgment against the original defendant. That judgment was upon a writ of error reversed by this court; and when the cause came afterwards before this court upon a second writ of error, the objection was taken that the original case was not within the twenty-fifth section of the judiciary act. Upon this occasion, the court, after stating the material facts in the agreed case, said: \"it is apparent, from this summary explanation, that the title thus set up by the plaintiff, might be open to other objections; but the title of the defendant in error [against which the state court had decided] was perfect and complete, if it was protected by the treaty of 1783. If, therefore, this court had authority to examine into the whole record, and to decide upon the legal validity of  the title of the defendant, as well as its application to the treaty of peace; it would be a case within the express purview of the twenty-fifth section of the act: for there was nothing in the record upon which the court below could have decided but upon the title, as connected with the treaty. And if the  title was otherwise good, its sufficiency must have depended altogether upon its protection under the treaty. Under such circumstances it was strictly a suit, where was drawn in question the construction of a treaty, and the decision was against the title specially set up or claimed by the defendants. It would then fall within the very terms of the act.\" \nThe next case was Inglee v. Coolidge, 2 Wheat. 363, 4 Cond. Rep. 155, where a motion was made to dismiss the writ of error upon the ground, that there was nothing apparent upon the record, which brought the case within the appellate jurisdiction of this court, under the twenty-fifth section of the act of 1789. The court were of this opinion, and accordingly dismissed the writ of error. \nThe next case was Miller v. Nicholls, 4 Wheat. 311, 315, 4 Cond. Rep. 465. Mr Chief Justice Marshall, in delivering the opinion  of the court, said: \"it does not appear from the record, that either the constitutionality of the law of Pennsylvania, or any act of congress was drawn in question. It would not be required that the record should, in terms, state a misconstruction of an act of congress, or that an act of congress was drawn in question. It would have been sufficient to give this court jurisdiction of the cause, that the record should show that an act of congress was applicable to the case. This is not shown by the record.\" The language used in this last sentence, has been often cited: as if it imported, that if an act of congress was shown to be applicable to the case, although it was not in fact applied by the decision of the state court, it would sustain the appellate jurisdiction of this court. That was certainly not the understanding of the chief justice, or of the court.The case of Miller v. Nicholls was decided in the state court, upon an agreed statement of facts; by which it appeared that Nicholls was a debtor both to the United States and to the state of Pennsylvania; and the question raised was, whether the United States, or the state of Pennsylvania, was entitled to certain money of Nicholls,  then in court, as the creditor of Nicholls. The United States claimed it in virtue of the priority given by the act of the 3d of March 1797, ch. 74. But it did not appear in the statement of facts, that Nicholls was then in a state of insolvency: and if he was not, then the priority of the United States did not attach; or in other words, the act of congress was not applicable to it. It is to this state of the facts that the language of the chief justice was addressed. He added, \"had the fact of insolvency appeared upon the record; that would have enabled  this court to revise the judgment of the supreme court of Pennsylvania.\" And why? it may be asked. Because upon the statement of facts, the state court must, under these circumstances, have misconstrued the act of congress or disregarded it: for otherwise they would not have given the judgment which was sought to be revised. \nThat this is the true explanation of this case, does not admit of controversy.In the very next case, Williams v. Norris, 12 Wheat. 117, 124, 6 Cond. Rep. 462; where this very expression,  in Miller v. Nicholls, was relied on in argument to establish the position, that it is sufficient  to give the court jurisdiction, that the record should show that an act of congress was applicable to the case; the chief justice gave the very explanation of it which is now insisted on; and added, \"had the record shown that this was a case of insolvency, so that an act of congress applied to it, that act must have been misconstrued or its obligation denied, when the court decreed the money to Pennsylvania: and the court were of opinion that the act could not be evaded by the omission to refer to it in the judgment, or to spread it on the record.\" In the case of Williams v. Norris, this court dismissed the writ of error, because it was not stated on the record that the constitutionality of the act of Tennessee, set up in that case, was drawn in question. In Fisher v. Cockerill, 5 Peters's Rep. 258, the case of Miller v. Nicholls was again cited, and commented on by the chief justice, and the same explanation of the decision was recognized and enforced: and, because the facts did not appear on the record, which would bring the case within the terms of the twenty-fifth section of the act of 1789, the writ of error, in Fisher v. Cockerill, was also dismissed. \nBut, to proceed with the  other cases in their chronological order: the next case was Hickie v. Starke, 1 Peters's Rep. 98. There a motion was made to dismiss the writ of error for the want of jurisdiction. Mr Chief Justice Marshall, in delivering the opinion of the court dismissing the writ of error, said: \"in the construction of that section, [the twenty-fifth] the court has never required that the treaty or act of congress, under which the party claims, who brings the final judgment of a state court into review before this court; should have been pleaded specially or spready on the record. But it has always been deemed essential to the exercise of jurisdiction in such a case, that the record should show a complete title under the  treaty or act of congress, and that the judgment of the court is in violation of that treaty.\" \nThe next case was Wilson v. The Black Bird Creek Marsh Company, 2 Peters's Rep. 245, 250. In that case, the chief justice, in delivering the opinion of the court sustaining the jurisdiction, said: \"we think it impossible to doubt that the constitutionality of the act [of Delaware] was the question and the only question, which could have been discussed in the state  court. That question must have been discussed and decided. This court has repeatedly decided in favour of its jurisdiction in such a case. Martin v. Hunter's Lessee, Miller v. Nicholls, and Williams v. Norris, are expressly in point. They establish, as far as precedents can establish any thing, that it is not necessary to state in terms on the record, that the constitution or a law of the United States was drawn in question. It is sufficient to bring the case within the provisions of the twenty-fifth section of the judicial act, if the record shows, that the constitution or a law or a treaty of the United States, must have been misconstrued, or the decision could not have been made; or, as in this case, that the constitutionality of a state law was questioned, and the decision was in favour of the party claiming under such law.\" \nThe next case was Satterlee v. Mathewson, 2 Peters's Rep. 380, 410: where Mr Justice Washington, in delivering the opinion of the court sustaining the jurisdiction, after citing prior cases, said: \"if it sufficiently appear from the record itself, that the repugnancy of a statute of a state to the constitution of the United States was drawn into question,  or that that question was applicable to the case; this court has jurisdiction of the cause under the section of the act referred to, although the record should not in terms state a misconstruction of the constitution of the United States, or that the repugnancy of the statute of the state to any part of that constitution was drawn into question.\" But he immediately adds, as explanatory of his remarks, and to correct their generality: \"now, it is manifest from this record, not only that the constitutionality of the statute of the 8th of April 1826 was drawn into question, and was applicable to the case; but that it was so applied by the judge, and formed the basis of his opinion to the jury, that they should find in favour of the plaintiff, if in other respects she was entitled to a verdict. It is equally manifest that the right of the plaintiff to recover in that action depended on that statute.\" \nThe next case was Harris v. Dennie, Peters's Rep. 292, 302;  where the court, in answer to the objection of a want of jurisdiction, because it did not appear upon the record that any question within the twenty-fifth section arose in the state court upon the special verdict, said: \"it has been often decided in this court that it is not necessary that it should appear, in terms, upon the record that any such question was made. It is sufficient, if, from the facts stated, such a question must have arisen, and the judgment of the state court would not have been what it is if there had not been a misconstruction of some act of congress, or a decision against the validity of the right, title, privilege, or exemption set up under it.\" \nThe next case was Craig v. The State of Missouri, 4 Peters's Rep. 410; in which Mr Chief Justice Marshall, in affirming the jurisdiction of the court, said: \"to give jurisdiction to this court it must appear in the record: 1. That the validity of a statute of the state of Missouri was drawn in question, on the ground of its being repugnant to the constitution of the United States. 2. That the decision was in favour of its validity.\" And again: \"there has been a perfect uniformity in the construction given by this court to the twenty-fifth section of the judicial act. That construction is, that it is not necessary to state, in terms, in the record, that the constitution or a treaty or law of the United States has been drawn in question,  or the validity of a state law on the ground of its repugnance to the constitution. It is sufficient if the record shows that the constitution, or a treaty or law of the United States might have been construed, or that the constitutionality of a state law must have been questioned; and the decision has been in favour of the party claiming under such law.\" \nIn Fisher v. Cockerill, 5 Peters's Rep. 255; the cases of Harris v. Dennie, and Craig v. The State of Missouri, were reviewed, and the doctrine stated therein confirmed; and Mr Chief  Justice Marshall, after that review, added: \"we say, with confidence, that this court has never taken jurisdiction unless the case, as stated in the record, was brought within the provisions of the twenty-fifth section of the judicial act.\" \nIn Davis v. Packard, 6 Peters's Rep. 41, 48; Mr Justice Thompson said: \"it has also been settled, that in order to give jurisdiction to this court under the twenty-fifth, section of the judiciary act, it is not necessary that the record should state, in terms, that an act of congress was in point of fact drawn in question. It is sufficient if it appears from the record that an act of congress was applicable  to the  case, and was misconstrued; or the decision in the state court was against the privilege or exemption specially set up under such statute.\" \nIn the Mayor of the City of New Orleans v. De Armas, 9 Peters's Rep. 234; where the suit was dismissed for want of jurisdiction: the chief justice, in delivering the opinion of the court, said: \"we can inquire only, whether the record shows that the constitution, or a treaty or a law of the United States has been violated by the decision of the state court. To sustain the jurisdiction of the court in the case now under consideration, it must be shown that the title set up by the city of New Orleans is protected by the treaty ceding Louisiana to the United States, or by some act of congress applicable to that title.\" \nThese are all the cases, it is believed, in which the construction of the twenty-fifth section of the judiciary act has been made matter of controversy; and they extend over a period of more than twenty-five years. They exhibit an uniformity of interpretation of that section, which has never been broken in upon. They establish, so far as a course of decision can establish, the propositions already stated in the  early part of this opinion. The period seems now to have arrived in which the court should, upon a full review of all the cases; with a view to close, if possible, all future controversy on the point; reaffirm the interpretation which they have constantly maintained. It is, that to bring a case within the twenty-fifth section of the judiciary act, it must appear upon the face of the record: 1st. That some one of the questions stated in that section did arise in the state court. 2d. That the question was decided by the state court, as required in the same section. 3d. That it is not necessary that the question should appear on the record to have been raised, and the decision made in direct and positive terms, ipsissimis verbis; but that it is sufficient if it appears by clear and necessary intendment that the question must have been raised, and must have been decided in order to have induced the judgment. 4th. That it is not sufficient to show that a question might have arisen or been applicable to the case; unless it is farther shown, on the record, that it did arise, and was applied by the state court to the case. \nIf with these principles in view we examine the record before  us, it is very clear that this court has no appellate jurisdiction. No question appears to be raised, or decision made by the state court within the purview of the twenty-fifth section.The statement of  facts upon which the judgment against the garnishee (the plaintiff in error) was given, presents no question as to the constitutionality of the laws of Delaware relative to garnishees; and no right set up by the Chesapeake and Delaware Canal Company, under their charters, which has been infringed, in violation of the constitution of the United States. So far as we can perceive from the record, the judgment had no reference to any constitutional question whatsoever; but proceeded upon general principles of law, applicable to cases of garnishment. If, indeed, we were compelled to draw any conclusion, it would be that the judgment proceeded upon the ground stated at the bar, that the payment of the tolls for which the plaintiff was held liable as garnishee, was a meditated fraud upon the garnishee laws of Delaware, and a violation of the charters and by-laws of the company. But it is unnecessary for us to draw any such conclusion; since there is a total absence from the  record of any question and decision which would give this court jurisdiction. \nThe judgment of the court is, that the suit must be dismissed for want of jurisdiction. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the Court. \nThis is an appeal from a decree of the district  court for the southern district of Alabama, in the case of a libel for salvage, instituted in the court below by the appellees. That decree awarded to the appellees one-third of the appraised value of the brig and cargo as salvage: the appraised value being $15,299 58. \nThe material facts of the case are as follows. The brig Hope, belonging to Charlestown, near Boston, being on a voyage from the Havana to the port of Mobile, on the 24th of January 1832, took a pilot (who was one of the libellants) about ten miles W.S.W. from Mobile point, by whom she was conducted inside of Mobile point, to the place, where the pilots at the outward bar of that point usually leave vessels which they pilot inside of that bar, about half past seven o'clock of the evening of the next day; and he was then discharged by the master of the brig. The brig then proceeded on her course up the bay of Mobile, and came to  anchor about nine o'clock the same evening. About this time the wind changed to the  northwest, and in the course of the night it blew a violent gale; the brig parted both her anchors, and was driven outside of Mobile point about two miles, and then brought up among the east breakers. At this time the gale had increased to a hurricane, the sea broke over the brig in every direction, and forced her on her beam-ends. At five o'clock in the morning the masts and the bowsprit were cut away to relieve and right her, for the safety of the vessel, cargo, and crew, and a signal of distress was hoisted. At noon, the flood tide making the breakers increasing, and the gale continuing, there being two feet of water in the hold, and the pumps being choked with coffee, the master and crew, to save their lives and the ship's papers, left the brig in the long-boat and made for the shore, and were taken up by the custom-house boat. On the evening of the next day the master of the brig made arrangements with the libellants, who are all pilots of the port of Mobile, with their boats and the crew of the brig, to make efforts to extricate the brig and cargo from their perilous condition. Accordingly, the next morning an attempt was made by the libellants and the master (the mate and  the crew of the brig declining to assist) to get on board of the brig; but it still blew so fresh, that it became impossible to board her. The master of the brig then went on shore from the pilot boat, which anchored at Mobile point. About one o'clock of the same day the brig shifted her position, and the libellants diseovered her to be nearly afloat. The pilot boats were then got under weigh, and in about three-quarters of an hour afterwards the libellants, being then on board, and no other persons, the brig floated. At this time the wind was blowing fresh from E.S.E.; and if the brig had not been taken possession of by the libellants she would have been drifted on the west bank, and have become a complete wreck. The brig was then towed by the pilot boats and a steamboat, procured by the libellants, to the port of Mobile, in the course of the two succeeding days. Such are the material facts. \nIn the course of the proceedings in the court below, an agreement was asserted to have been made between the parties, that, in case the vessel and cargo should be saved, the compensation  should be fixed by the chamber of commerce of Mobile. That agreement, however, is denied,  by the libellants, to have been applicable to the actual circumstances of the case; and no compensation was, in fact, awarded by the chamber of commerce. That agreement has not been insisted on here in the argument on either side; and, indeed, being to a mere amicable tribunal, as arbitrators, could not, in a case of this sort, be now insisted upon to bar the jurisdiction of the court. It is wholly unlike the case, where a positive law has fixed the mode of ascertaining the compensation. \nNo objection has been made to the amount of salvage decreed by the court below, if the libellants are entitled to any. And the objection has been properly abandoned; for the amount under the circumstances is certainly not unreasonable. Besides, this court is not in the habit of revising such decrees as to the amount of salvage, unless upon some clear and palpable mistake or gross over-allowance of the court below. It is equally against sound policy and public convenience to encourage appeals of this sort in matters of discretion; unless there has been some violation of the just principles which ought to regulate the subject. \nThree objections have been made to the decree: First, that it was the  duty of the libellants, as pilots, to give every assistance in their power to a vessel in distress within the limits of their pilot gound; and that this, being a service rendered in the discharge of their duty, forms no case for a claim of salvage. Secondly, that the act of congress on this subject, (act of 7th of of August, 1789, ch. 9.) leaves the regulation of pilots to the state laws; and that by the laws of Alabama any extra allowance claimed by these pilots must be fixed by the wardens of the port. Thirdly, that the district court had no jurisdiction of the case. \nIn respect to the last objection, it has been urged in a very limited form, not as an objection to the jurisdiction of the courts of admiralty to entertain suits for pilotage generally; but only for pilotage under circumstances like the present, where a fixed compensation is established, under the authority of congress, by the state laws. We are of opinion that suits for pilotage on the high seas, and on waters navigable from the sea, as far as the  tide ebbs and flows, are within the admiralty and maritime jurisdiction of the United States. The service is strictly maritime, and falls within the principles  already established by this court in the case of the Thomas Jefferson, (10 Wheaton R. 428,) and Peyroux v. Howard. (6 Peters R. 682.) \nThe other part of the objection is not, in our opinion, maintainable. The jurisdiction of the district courts of the United States, in cases of admiralty and maritime jurisdiction, is not ousted by the adoption of the state laws by the act of congress. The only effect is to leave the jurisdiction concurrent in the state courts; and, if the party should sue in the admiralty, to limit his recovery to the same precise sum, to which he would be entitled under the state laws, adopted by congress, if he should sue in the state courts. \nThe second objection has been met at the bar by an argument of a grave cast, viz. that the act of congress, so far as it adopts the  future laws to be passed by the states on the subject of pilotage, is unconstitutional and void; for congress cannot delegate their powers of legislation to the states; and that as Alabama was not admitted into the union as a state until the year 1819, and its laws on this subject have been long since passed, (in 1822) these laws are, ipso facto, nullities. This question was much  discussed in the case of Gibbons v. Ogden, (9 Wheaton, R. 207, 208,) and may not be without difficulties. But we are spared from any discussion of it on the present occasion, because we are of opinion, that the present is not a case of pilotage, but of salvage; and congress have never confided to the states any power to regulate salvage on the sea, or on tide waters; but the same belongs to the district courts, in virtue of the delegation to them of admiralty and maritime jurisdiction. \nWhether, indeed, this be a case of salvage or not, is the point involved in the first objection; and we shall now proceed to state the reasons why we are of opinion, that it is. \nWe agree to the doctrine stated in the cases cited at the bar, that a pilot, while acting in it in the strict line of his duty, however he may entitle himself to extraordinary pilotage compensation for extraordinary services, as contradistinguished from ordinary pilotage for ordinary services, cannot be entitled to claim salvage.  In this respect he is not distinguished from any other officer, public or private, acting within the appropriate shere of his duty. But a pilot, as such, is not disabled, in virtue of  his office, from becoming a salvor. On the contrary, whenever he performs salvage services beyond the line of his appropiate duties, or under circumstances, to which those duties do not justly attach; he stands in the same relation to the property as any other salvor; that, with a title to compensation to the extent of the merit of his services, viewed in the light of a liberal public policy. Sir William Scott, in the case of the Joseph Harvey, (1 Rob. 306,) speaking upon this subject, where pilots were claiming as salvors, said, \"This is a petition praying salvage; and it is said by his majesty's advocate, that it is impossible for these persons to claim salvage, as there is little more than pilotage due; although it is allowed that the court may, in cases of pilotage, as well as of salvage, direct a proper remuneration to be made. It may be in an extraordinary case difficult to distinguish a case of pilotage from a case of salvage properly so called; for it is possible, that the safe conduct of a ship, under circumstances of extreme personal danger and personal exertion, may exalt a pilotage service into something of a salvage service. But, in general, they are distinguishable  enough; and the pilot, though he contributes to the safety of a ship, is not to claim as a legal salvor.\" From this language it is obvious, that the learned judge had in his mind the distinction between extraordinajry pilotage services, and salvage services properly so called; the one clearly going beyond the mere line of duty, and the other going merely to the extreme line of duty. In the case of the Aquilla, (1 Rob. 37,) where a magistrate, acting in discharge of his public duty, demanded to be considered as a salvor, the same learned judge said: \"This, however, is certain, that if a magistrate, acting in his public duty, on such an occasion, should go beyond the limits of his official duty in giving extraordinary assistance, he would have an undeniable right to be considered as a salvor.\" The same prineiple was fully recognised by Mr Justice Washington, in the case of Le Tigre, (3 Wash. Cir. R. 169, 170, 171,) in which, after stating that ordinary official duties were not to be compensated by salvage, he added: \"Of this class of cases is that of a pilot,  who safely conducts into port a vessel in distress at sea. He acts in the performance of his ordinary duty, imposed  upon him by the law and nature of his employment; and he is, therefore, not entited to salvage, unless in a case where he goes beyond the ordinary duties attached to his employment.\" Mr. Justice Thompson in the MS. case of The Wave, cited at the bar, maintained the same doctrine, upon an elaborate review of all the cases. It has been also applied to another very meritorious class of cases, we mean that of seamen, who in the ordinary course of things, in the performance of their duties, are not allowed to be come salvors, whatever may have been the perils or hardships or gallantry of their services in saving the ship and cargo. We say in the ordinary course of things; for extraordinary events may occur, in which their connexion with the ship may be dissolved de facto, or by operation of law, or they may exceed their proper duty, in which cases they may be permitted to claim as salvors. Such was the case of the seaman left on board in the case of the Blaireau (2 Cranch, R. 268,); and such was the exception alluded to in the case of the Neptune (1 Hagg. Adm. R. 236, 237. 1 In this last case, Lord Stowell, after saying that the crew of a ship cannot be considered as salvors, gave what  he deemed the definition of a salvor: \"What (said he) is a salvor? A person, who, without any particular relation to a ship in distress, proffers useful services, and gives it as a volunteer adventurer without any pre-existing covenant, that connected him with the duty of employing himself for the preservation of that ship.\" And it must be admitted, that, however harsh the rule may seem to be in its actual application to particular cases, it is well founded in publicpolicy, and strikes at the root of those temptations, which might otherwise exist to an alarming extent, to seduce pilots and others to abandon their proper daty, that they might profit by the distresses of the ship, which they are bound to navigate. \nSuch, then, being the rule, let us see, whether it has any application to the actual circumstances of the present case. In the first place, none of the libellants were, at the time of the service  performed, at all connected with the Hope in the character of pilots. The pilot had been regularly discharged at the usual place, after  arriving at Mobile point; and he became, therefore, as to her, functus officio, until there was some new call for pilot duty. Now, the subsequent services, asked by the master and proffered by the libellants, as the very agreement  suggested in the proceedings abundantly shows, was not understood by either of the parties to be for mere pilot services, but for services of a far different and more extensive nature and character than belong to such an employment. \nIndeed, in no just sense can the services of these libellants be deemed to fall within the scope of the duties of pilots. Lord Tenterden, in his excellent Treatise on Shipping (part 2, ch. 5, s. 1, p. 148,) has defined a pilot to be \"a person, taken on board at a particular place, for the purpose of conducting a ship through a river, road, or channel, or from or into a port.\" His duty, therefore, is properly the duty to navigate the ship over and through his pilotage limits, or, as it is commonly called, his pilotage ground. The case, therefore, necessarily presupposes, that the ship is in a condition capable of being navigated; distressed, if you please, and laboring under difficulties, but still capable, in point  of crew, equipments, and situation, of being navigated. No one ever heard of its being within the scope of the positive duties of a pilot to go to the rescue of a wrecked vessel, and employ himself in saving her or her cargo, when she was wholly unnavigable. That is a duty entirely distinct in its nature, and no more belonging to a pilot, than it would be to supply such a vessel with masts or sails, or to employ lighters to discharge her cargo, in order to float her. It is properly a salvage service, involving duties and responsibilities, for which his employment may peculiarly fit him; but yet in no sense included in the duty of navigating the ship. Lord Alvanley, in Newman v. Walters, (3 Bos. and Pull. 616,) puts a case far short of that, which is here presented, as a clear case of salvage. \"Suppose (said he) a tempest should arise, while the pilot is on board, and he should go off in a boat to the shore to fetch hands, and should risk his life for the safety of the ship in a manner different from that, which his duty required; in such a case it seems to me, that he would be entitled to a compensation in the nature of salvage;  and I am glad that Sir William Scott  appears to entertain the same opinion.\" Now, in the case here supposed, the pilot had already acquired a relation to the ship by having actually entered upon the service as such; and yet the learned judge holds it upon principle, a clear case of salvage. \nWhat were the circumstances under which the present service was performed? The brig was stranded upon a bank, with the sea rolling over her; her masts, and bowsprit were cut away; her pumps were choked; two feet of water were in her hold; she was deserted by her master and crew, and incapable of navigation by herself; and even when gotten off, she was navigated only by being towed by two pilot boats and a steamboat into port. At this time the libellants had no official connexion whatsoever with her as pilots. Where then was the obligation on them to go on board, and take charge of a wreck, and to hazard their lives and property, and to apply their labor to deliver the brig and cargo from their present imminent perils, any more than on any other persons? We know of none. We think the whole enterprise was an enterprise of salvage, and not of pilotage. It was a case, where they acted as salvors strictly according to the definition  of Sir William Scott. They had at the time no particular relation to the distressed ship; they proffered useful services as volunteers, without any pre-existing covenant, that connected them with the duty of employing themselves for her preservation. The duties they undertook were far beyond any belonging to pilots, and precisely those belonging to salvors. \nFor these reasons, therefore, we are of opinion, that the decree of the district court of Alabama ought to be affirmed with costs. \nThis cause came on to be heard on the transcript of the record from the district court of the United STates for the southern district of Alabama, and was argued by counsel; on consideration whereof, it is adjudged and decreed by this Court, that the decree of the said district court in this cause be, and the same is hereby affirmed, with costs and damages at the rate of six per centum per annum, on the amount decreed by the said district court as salvage. \n \n\n ", " \nOpinion \n\n \n \n  Mr Justice STORY delivered the opinion of the Court. \nThis is a writ of error to the circuit court of the District of Columbia, for the county of Washington. \nThe original suit was debt, on a bond given to the United States by John Hall, Daniel Ott and Nicholas B. Vanzant on the 26th of May 1818, the condition of which, after reciting that Hall was appointed paymaster of the rifle regiment in the army of the United States, was as follows: \"now, if the said John Hall shall well and truly execute, and faithfully discharge according to law, and to instructions received by him from proper authority, his duties as paymaster aforesaid; and he, his heirs, executors or administrators shall regularly account, when thereto required, for all moneys received by him from time to time as paymaster aforesaid, with such person or persons as shall be duly authorized and qualified on the part of the United States for that purpose, and moreover pay into  their treasury such balance as on a final settlement of the said John Hall's accounts shall be found justly due from him to the said United States; then this obligation shall be null and void, and of no effect, otherwise to be and remain in full force and virtue.\" \nIn the court below, the defendant pleaded six several pleas, and issues were joined on the first, second, fourth and six pleas. To the third and fifth pleas the United States replied. The defendant demurred to the replication to the third plea, and rejoined to the replication to the fifth plea; to which the United States demurred.  Upon these demurrers the court below gave judgment in favour of the defendant. \nUpon these pleadings two questions have been made and argued at the bar. 1st. Whether the bond is in conformity to the requirements of the act of the 24th of April 1816, ch. 69, for organizing the general staff, and making further provision for the army of the United States. 2d. If not, whether the bond is wholly void; or void only so far as it is not in conformity to that act. \nThe act (section 6) provides \"that all officers of the pay, commissary and quarter-master's department, shall, previous to  entering on the duties of their respective offices, give good and sufficient bonds to the United States fully to account for all moneys and public property which they may receive, in such sums as the secretary of war shall direct.\" It is plain that the condition of the bond is not, in its very terms, in conformity with this provision. But the argument on the part of the United States is, that though in terms it varies from the act; yet, inasmuch as all the duties required of the paymaster by law begin and terminate in matters of account; that in substance the condition includes no more than what the prescribed terms of the act contemplate. \nIn our view of the case it is wholly unnecessary to decide this question; because the only breach alleged is the non-accounting for, and non-payment of moneys due to the United States by Hall; upon a final settlement of his accounts. So far as the condition of the bond requires Hall to account for moneys received by him, it substantially follows the provisions of the act of 1816: and if the bond be not wholly void, it is clear that the United States are entitled to recover upon the present pleadings in whatever way the first question may be decided. \n The second question, therefore, is that to which the attention of the court will be addressed. Upon the face of the pleadings this must be taken to be a bond voluntarily given by Hall, and his sureties. There is no averment that it was obtained from them by extortion or oppression under colour of office, as there was in the United States v. Tingey, 5 Peters 115. On the contrary, both the third and fifth pleas are wholly barren of any averments on the subject of the giving of the present bond. All they assert in substance is, that Hall never gave any such bond as is required by the act of 1816; and that the act of 1816 was the only law regulating the bonds of paymasters; with some collateral averments not material to be  here mentioned. Now no rule of pleadings is better settled, or upon sounder principles, than that every plea in discharge or avoidance of a bond, should state positively and in direct terms the matters of discharge or avoidance. It is not to be inferred, arguendo; or upon conjectures. Indeed, both these pleas are open to the objection of being merely argumentative; and are wholly destitute in the technical precision necessary for pleas in avoidance  or discharge. The replication of the United States to the third plea does, however, exclude, so far as that plea is concerned, any inference of extortion or oppression, colore officii; for it avers that the bond was given with the intent of complying with the act of congress, and by the direction of the secretary of war. \nIt may be added, that the bond is not only voluntary, but for a lawful purpose; viz. to insure a due and faithful performance of the duties of paymaster, a circumstance which must repel any supposition of an oppressive or unjust design. \nBut passing from these considerations, the question which first arises is, whether a voluntary bond taken by the United States, for a lawful purpose, but not prescribed by any law, is utterly void. This question was elaborately argued in the case of the United States v. Tingey, 5 Peters's Rep. 115; and upon full consideration, it was there held by this court, that the United States being a body politic, as an incident to their general right of sovereignty, have a capacity to enter into contracts, and take bonds in cases within the sphere of their  constitutional powers, and appropriate to the just exercise of those powers;  through the instrumentality of the proper department to which those powers are confined; whenever such contracts or bonds are not prohibited by law; although the making of such contracts, or taking such bonds, may not have been prescribed by any pre-existing legislative act. The court laid down this as a general principle only, without (as was then said) attempting to enumerate the limitations and exceptions, which may arise from the distribution of powers in our government; and from the operation of other provisions in our constitution and laws. \nBut the court, in applying the principle to the case then before them, further added, \"we hold that a voluntary bond taken by authority of the proper officers of the treasury department, to whom the disbursement of public moneys is entrusted, to secure the fidelity in official duties of a receiver, or an agent for the disbursement, of public moneys, is a binding contract between him and his sureties,  and the United States; although such bond may not be prescribed or required by any positive law. The right to take such a bond is, in our view, an incident to the duties belonging to such a department: and the United States having  a political capacity to take it, we see no objection to its validity in a moral or a legal view.\" \nFrom the doctrine here stated, we have not the slightest inclination to depart: on the contrary, from further reflection, we are satisfied that it is founded upon the soundest principles of law, and the just interpretation of the constitution. Upon any other doctrine, it would be incompetent for the government, in many cases, to take any bond or security for debts due to it, or for deposits made of the public money; or even to enter into contracts for the transfer of its funds from one place to another, for the exigences of the public service, by negotiable paper or otherwise; since such an authority is not expressly given by law in a vast variety of cases. Yet, in Dugan v. The United States, 3 Wheat. 172, 4 Cond. Rep. 223, and in the Postmaster-General v. Early, 12 Wheat. 136, 6 Cond. Rep. 480, this right of the government was treated as unquestionable, and belonging to its general functions, as an appropriate incident. \nThe United States, then, having, in our opinion, a capacity to take a voluntary bond in cases within the scope of the powers delegated to the general government, by  the constitution, through the instrumentality of the proper functionaries to whom these powers are confided; this consideration disposes of the whole of that part of the argument, and the cases cited in support of it, which are founded upon the distinction between bonds which are given to parties having a capacity to take; and bonds, which are given to parties, who have no such capacity: the former may be good in part; the latter are wholly void. \nThat bonds and other deeds may, in many cases, be good in part, and void for the residue, where the residue is founded in illegality, but not malum in se; is a doctrine well founded in the common law, and has been recognized from a very early period. Thus, in Pigot's case, 11 Co. Lit. 27 b., it was said, that it was unanimously agreed in 14 Hen. 8, 25, 26, that if some of the covenants of an indenture, or of the conditions indorsed upon a bond are against law, and some are good and lawful, that in this case the covenants or conditions which are against law, are void ab initio; and the others stand good. And, notwithstanding the decision in Lee v Coleshill, Cro. Eliz. 529; which, however, is distinguishable, being founded on a   statute; the doctrine has been maintained, and is settled law at the present day in all cases where the different covenants or conditions are severable, and independent of each other, and do not import malum in se; as will abundantly appear from the case of Newman v. Newman, 4 M. & Selw. 66, and the other cases hereafter stated; and many more might be added. \nBut it has been urged, at the bar, that this doctrine is applicable only to cases where the case stands wholly at the common law, and not where the illegality arises under a statute; and this distinction derives countenance from what was said in Norton v. Simmes, Hob. Rep. where the distinction was taken between a bond made void by statute, and by common law; for (it was there said) upon the statute of 23 Hen. 6, ch. 9, \"if a sheriff will take a bond for a point against that law, and also for a debt due, the whole bond is void; for the letter of the statute is so. For a statute is strict law; but the common law do doth decide according to common reason: and having made that void which is against law, lets the rest stand, as in 14 Hen. 8, 15.\" \nIn the case of Maleverer v. Redshaw, 1 Mod. Rep. 35, which was debt, upon a bail bond,  Mr Justice Twisden said, he had heard lord Hobart say, \"that the statute, i.e. 23 Hen. 6, ch. 9, is like a tyrant; when he comes, he makes all void. But the common law is like a nursing father, makes void only that part where the fault is, and preserves the rest.\" But Mr Justice Twisden added, that lord Hobart put this doctrine upon the ground that the statute of 23 Hen. 6, ch. 9, had expressly declared that if any of the sheriffs, &c., should take any obligation in any other form, by colour of their office, that then it should be void.(a) The case in Hobart's Reports, was put by the court expressly upon this distinction. And it was well remarked by Mr Justice Lawrence, in Kerrison v. Cole, 8 East's Rep. 236, that this case is easily reconcilable with the general principle: for sheriff's bonds are only authorized to be taken with a certain condition: and, therefore, if they are taken with any other condition, they are void in toto, and cannot stand good in part only. But that does not apply to different and independent covenants and conditions, in the same instrument; which may be good in part, and bad in part: and so it was held by the whole court in that case; and notwithstanding  the instrument, (a bill of sale and mortgage  of a ship), was, by statute, declared to be utterly null and void, to all intents and purposes;\" yet it was held, that a covenant in the same instrument, to repay the money lent, was good as a personal covenant. The same doctrine was held in Wigg v. Shuttleworth, 13 East's Rep. 87; How v. Synge, 15 East's Rep. 440; Mouse v. Leake, 8 Term Rep. 411; Greenwood v. The Bishop of London, 5 Taunt. Rep. 727,  S.C. 1 Marsh. Rep. 292. In this last case, the court took notice of the true line of distinction between the cases, viz. between those cases, where the statute had declared the instrument taken in any other form, than that prescribed by the statute, to be utterly void; and those cases, where it had declared the instrument void only as to the illegal act, grant, or conveyance. It was the case of conveyance affected with simony, so far as the next presentation was concerned; but conveying the advowson in fee. On this occasion the court said, \"there can be no doubt, that the conveyance of an advowson in fee, which is of itself legal; if it be made for the purpose of carrying a simoniacal contract into execution, is void  as to so much as goes to effect that purpose; and if the sound part cannot be separated from the corrupt, it is altogether void. It is not, as in the case of usury, and some others, avoided by the positive and inflexible enactment of the statute; but left to the operation of the common law, which will reject the illegal part, and leave the rest untouched, if they can be fairly separated.\" Here, the doctrine was applied directly to the very case of a statute prohibition. \nBut the case of Doe dem. Thomson v. Pitcher (6 Taunt. R. 359; S.C. 2 Marsh R. 61) contains a still more full and exact statement of the doctrine. It was a case supposed to be affected by the prohibitions of the statute of charitable uses; 9 Geo. 2, ch. 36. Lord Chief Justice Gibbs, in delivering the opinion of the court, addressing himself to the argument, that if the deed was void as to part, it must be void as to the whole; said: \"if the objection had been derived from the common law, it is admitted that would not be the consequence. But it is urged that the statute makes the whole deed void. As the counsel for the plaintiff puts it, (a) there is no difference between a transaction void at common law, and void  by statute. If an act be prohibited, the construction to be put on a deed conveying property  illegally is, that the clause which so conveys it is void equally, whether it be by statute or common law. But it may happen that the statute goes further, and says that the whole deed shall be void to all intents and purposes: and when that is so, the court must so pronounce, because the legislature has so enacted; and not because the transaction prohibited is illegal. I cannot find in this act any words which make the entire deed void, &c. I think this grant of that interest in land, which by the terms of the grant is to be applied to a charitable use, is void; and that the deed, so far as it passes other lands not to a chartiable use, is good.\" Such is the clear result of the English authorities. \nIn this court, a similar doctrine has been constantly maintained. It was acted upon in the case of The Postmaster-General v. Early (12 Wheaton's Rep. 136). It was taken for granted in Smith v. The United States (5 Peters' Rep. 293); where the objection, indeed, was not taken: but the bond was not in exact conformity to the statute (act of the 16th of March 1802, ch. 9, sect. 16),  under which it was given by a paymaster. It was also directly before the court in Farrar and Brown v. The United States (5 Peters's Rep. 373); where the bond, taken under the act of the 7th of May 1822, sect. 1, wholly omitted one of the clauses required by the statute to be inserted in the condition. The court there entertained no doubt as to the validity of the bond, and only expressed a doubt whether a breach which was within the direct terms of the omitted clause; and yet which fell within the general words of the inserted clause, could be assigned as a good breach under the latter. But, if the bond, being a statute bond, was totally void, because the condition did not conform to all the requirements of the act; it would have been wholly useless to have discussed the other questions arising in the cause. Upon the whole, upon this point we are of opinion that there is no solid distinction in cases of this sort between bonds, and other deeds containing conditions, covenants or grants, not malum in se, but illegal at the common law; and those containing conditions, covenants or grants, illegal by the express prohibitions of statutes. In each case the bonds or other deeds are  void as to such conditions, covenants or grants, which are illegal; and are good as to all others which are legal and unexceptionable in their purport. The only exception is, when the statute has not confined its prohibitions to the illegal conditions, covenants or grants; but has expressly, or by necessary implication, avoided the whole instrument to all intents and purposes. \n It has been urged, however, in the present case, that the act of 1816, ch. 69, does, by necessary implication, prohibit the taking of any bonds from paymasters other than those in the form prescribed by the sixth section of the act; and therefore that bonds taken in any other form are utterly void. We do not think so. The act merely prescribes the form and purport of the bond to be taken of paymasters by the war department. It is in this respect directory to that department; and doubtless it would be illegal for that department to insist upon a bond containing other provisions and conditions differing from those prescribed or required by law. But the act has no where declared that all other bonds, not taken in the prescribed form, shall be utterly void: nor does such an implication arise from  any of the terms contained in the act, or from any principles of public policy which it is designed to promote. A bond may, by mutual mistake or accident, and wholly without design, be taken in a form not prescribed by the act. It would be a very mischievous interpretation of the act to suppose, that under such circumstances it was the intendment of the act that the bond should be utterly void. Nothing, we think, but very strong and express language, should induce a court of justice to adopt such an interpretation. Where the act speaks out, it would be our duty to follow it: where it is silent, it is a sufficient compliance with the policy of the act, to declare the bond void, as to any conditions which are imposed upon a party beyond what the law requires. This is not only the dictate of the common law, but of common sense. \nWe think, then, that the present bond, so far as it is in conformity to the act of 1816, ch. 69, is good; and for any excess beyond  that act, if there be any (on which we do not decide), it is void, pro tanto. The breach assigned is clearly of a part of the condition (viz. to account for the public moneys), which is in conformity to the act;  and therefore action is well maintainable therefor. The case of The Supervisors of Alleghany county v. Van Campen (3 Wend. Rep. 48), proceeded upon grounds of a similar nature. \nBefore concluding this opinion, it may be proper to take notice of another objection raised by the third plea, and pressed at the argument. It is that Hall was not entitled to act as paymaster until he has given the bond required by the act of 1816, in the form therein prescribed; and that not having given any such bond, he is not accountable as paymaster for any moneys received by him from the government. We are of a different opinion. Hall's appointment, as paymaster, was complete when his appointment was duly made by  the president, and confirmed by the senate. The giving of the bond was a mere ministerial act for the security of the government; and not a condition precedent to his authority to act as paymaster. Having received the public moneys as paymaster, he must account for them as paymaster. Indeed, the condition of the bond having recited that he was appointed paymaster of the rifle regiment, he and his relatives are estopped to deny the fact: and by the terms of their contract they  undertake that \"he shall regularly account, when thereto required, for all moneys received by him as paymaster aforesaid.\" \nThe misdescription of the corporate or politic name of the plaintiffs in the bond, by calling them \"The United States of North America,\" instead of America; is curred by the averment of identity in the declaration: and, indeed, it has not been insisted on at the argument. \nUpon the whole, we are of opinion that the third and fifth pleas, upon which the circuit court gave judgment in favour of the defendant are bad in law; and therefore the judgment ought to be reversed, and judgment thereon be entered in favour of the United States: and the cause remanded to the circuit court for further proceedings. \nThis cause came on to be heard on the transcript of the record from the circuit court of the United States for the District of Columbia, holden in and for the county of Washington, and was argued by counsel; on consideration whereof, it is the opinion of the court that there is error in the judgment of the said circuit court in adjudging that the pleadings by the said defendants, in the same cause pleaded, and the matters and things there contained, are sufficient  in law to bar the said United States from having and maintaining their action aforesaid. And it is thereupon ordered, and adjudged by this court, that the judgment of the said circuit court be, and the same is hereby reversed; and this court proceeding to render such judgment as the said circuit court should have rendered in the premises, it is further considered and adjudged by this court, that the third and fifth pleas, so as aforesaid pleaded by the said defendants, are not sufficient in law to bar the said United States of their action aforesaid, against the said defendants; wherefore the said United States ought, notwithstanding the pleas aforesaid, to recover their debt and damages on occasion of the premises. And it is further ordered and adjudged by this court that the cause by remanded to the said circuit court for further proceedings thereon, according to law. \n \n\n ", " \nOpinion \n\n \n \n  Mr Justice STORY delivered the opinion of the court. \nThis is a writ of error to the judgment of the circuit court for the district of Kentucky, upon a writ of right, sued forth on the 17th of January 1831; in which the plaintiffs in error were the demandants. The proceedings are in the form prescribed by the statute of Kentucky; and the cause was tried upon the issue joined by the parties. There were several  writs of right against other tenants of distinct parcels of the same tract of land, held by the tenants, respectively, under a common title; and all of them were tried at the same time, by consent of the parties; as the same evidence was applicable to each. \nThe demandants claimed title through intermediate conveyances to a tract of land of two thousand acres, lying on the east fork of Rockcastle, in Lincoln county, under a patent granted to James Kincaid, by the commonwealth of Kentucky, dated the 2d day of February 1796, and also another tract of land, containing one thousand acres, on the waters of Rockcastle, on the south side and contiguous to that of two thousand, on a like patent, dated on the same day. \nThe tenants claimed title to the premises under a patent from the commonwealth of Virginia, to Jacob Remey, of twenty thousand acres of land, lying on the waters of Rockcastle, dated on the 15th of July 1789. Remey, on the 20th of November 1799, conveyed thirteen thousand four hundred acres of the same tract to William Edwards:  and Edwards, on the 26th of December 1799, conveyed seven thousand acres of the same tract, by metes and bounds, to William Pearl, the tenant,  under whom all the other tenants claim. The conveyance to Pearl comprehends all the land in controversy; and the same land is also included in the patents to Kincaid. \nAt the trial, evidence was introduced by the tenants to prove that, in 1800, Pearl entered into and settled on the tract of land so conveyed to him, intending to take possession of the whole tract; and that he, and those claiming under him, have had possession of the same land ever since, and have always claimed to hold the land under Remey's patent. Evidence was also introduced to prove, that James M'Cammon (whose name is mentioned, as we shall hereafter see, in the bill of exceptions), moved his family and settled on a part of the land in controversy, either in the year 1800 or 1801, under a purchase from Pearl; but how much land he purchased or held did not appear: and about two years afterwards, by some arrangements between them, M'Cammon took some other part of Pearl's land, in the same tract, and Pearl took the place where M'Cammon had settled. Pearl's original settlement was a little outside of the southern bounds of Kincaid's thousand acre tract; between Sugar Camp branch and Rockcastle: and M'Cammon's original  settlement was within Kincaid's two thousand acres, south of Moore's creek. \nThe demandants then introduced evidence to show that Remey's patent did not cover the lands patented to Kincaid, but that it covered land at or near the mouth of Pond creek; and that the survey of Remey was in fact made on Pond creek, (which was outside of the western boundary of Kincaid's patent), as the beginning corner, under a mistake that it was Raccoon creek. If so made, it was clear, from the plea, that Remey's survey was surveyed off the land in controversy. \nThe foregoing are all the portions of the evidence which seem necessary to be stated in order fully to understand the bearing of the questions made at the trial. \nThe first question was upon the admissibility of the evidence of witnesses, offered by the demandants, to prove that one Moore, whose name was put down as one of the original chain carriers, in making Remey's survey, was dead; and that he attended with the witness, Camp Mullins, about twenty-four or twenty-five years ago, when one Charles Smith run from the mouth of Pond creek to the white oak tree, and also run the line north from the mouth of Pond creek:  and while at the  corner and running the line, he declared that to be the corner made by Kincaid (the surveyor), and the line run by Wilson, by the direction of Kincaid, for Remey's original survey: and also to prove what Moore had said to others relative to the boundary of Remey's patent, and the making of the original survey, since the settlement and possession of Pearl on the land in controversy. This evidence being objected to, was rejected by the court: and this constitutes the matter of the first exception of the demandants. \nWe are of opinion that the evidence was properly rejected. It was not merely hearsay, but hearsay not to matters of general reputation, or common interest among many, but to specific parts, viz. the manner and place of running the boundary lines of Remey's patent. The general rule is, that evidence, to be admissible, shoudl be given under the sanction of an oath, legally administered; and in a judicial proceeding, depending between the parties affected by it, or those who stand in privity of estate, or interest with them. So it was laid down by Lord Kenyon, in his able opinion in the King v. Enswell, 3 T. Rep. 721. Certain exceptions have, however, been allowed, which  perhaps may be as old as the rule itself. But these exceptions stand upon peculiar grounds; and, as was remarked by Lord Ellenborough in Weeks v. Sparke, 1 M. & Selw. 686; the admission of hearing evidence, upon all occasions,  whether in matters of public or private right, is somewhat of an anomaly. Hearsay is admitted in cases of pedigree; of prescriptive rights and customs; and some other cases of a public or quasi public nature. In cases of pedigree, it is admitted upon the ground of necessity, or the great difficulty, and sometimes the impossibility of proving remote facts of this sort by living witnesses. But in these cases it is only admitted, when the tradition comes from persons intimately connected, or in close relation with the family; or from sources of a kindred nature, which, in a general sense, may be said to import verity; there being no lis nota or other interest to affect the credit of their statement. So the law was expounded by Lord Kenyon in The King v. Enswell, 3 Term Rep. 723, and by Lord Eldon in Vowles v. Young, 13 Ves. 143, and in Whitlocke v. Baker, 13 Ves. 514. \nIn cases of prescriptive rights and customs, and other claims of a public nature,  tradition and reputation have been in like manner admitted. They are all cases of a general right, affecting a number of persons, having a common interest. In Morehead v. Wood, 14 East's Rep. 329 (note), Lord Kenyon stated the general ground of  this exception thus: \"Evidence of reputation upon general points is receivable, because all mankind being interested therein, it is natural to suppose, that they may be conversant with the subjects, and that they should discourse together about them, having all the same means of information.\" \"But,\" he says, \"how can this apply to private titles, either with regard to particular customs or private prescriptions? How is it possible for strangers to know any thing that concerns only their private titles?\" Lord Ellenborough, in Weeks v. Sparke, 1 M. & Selw. 686, commenting on this distinction between public and private rights, said, \"I confess myself at a loss fully to understand upon what principle, even in matters of public right, reputation was ever deemed admissible evidence. It is said, indeed, that upon questions of public right all are interested, and must be presumed conversant with them; and that is the distinction taken  between public and private rights. But I must confess I have not been able to see the force of the principle, on which that distinction is founded, so clearly as others have done; though I must admit its existence.\" And in that case, which was the case of the claim of a prescriptive right to common by the defendants, as appurtenant to a messuage; evidence of reputation was admitted on the part of the plaintiff to qualify that right, because the right in some sense partook of the nature of a public right, as it was understood, that there were other persons standing in pari jure with the defendant; and, therefore, it was a question between the plaintiff, and a multitude of persons. And, indeed, the distinction seems now clearly established in England, that hearsay, or reputation, or tradition, is not admissible in cases of mere private rights; but only in cases of public rights, or those quasi publici, involving similar interests by a number of persons. 1 Perhaps a reason may be found which, upon general principles, would well support this distinction. It is, that in regard to private rights, the acts, possession and assertion of title by the parties claiming for themselves are,  in all cases, susceptible of direct proof; but in cases of public rights, the acts, possession and assertion of title by many persons, not in privity with each other, cannot be explained or qualified to be in furtherance of a common public right; unless the evidence of general reputation were admissible to explain the intention and objects of the parties in those acts, or that possession or assertion  of title: that is to say, whether done in furtherance of a common right, or of a private right. \nIt is upon the ground of this same distinction, that general reputation is admitted in England in cases of disputed boundaries between parishes and manors: because the right affects many persons, and is of public notoriety and interest as to all the inhabitants of the parish or manor. 2 And yet, in England, it has been held, at nisi prius, (though the point has not been settled by the highest authority) that general reputation as to the boundaries between private  estates is not admissible evidence. That was so held by Baron Graham, in Clothier v. Chapman; cited in 14 East's Rep. 331, note. 3 The doctrine in America, in respect to boundaries, has gone further; and has admitted evidence of general reputation as to boundaries between contiguous private estates; 4 but there it has stopped. \nThese are the principal, if not the only classes of cases, in which hearsay and reputation have been deemed admissible evidence. The exclusion of it, in other cases, stands upon the general consideration that it is not upon oath; that the party affected by it has no opportunity of cross-examination; that it often supposes between evidence behind; that it is peculiarly liable to be obtained by fraudulent contrivances; and above all, that it is exceedingly  infirm, unsatisfactory and intrinsically weak in its very nature and character. On these accounts judges in modern times have leaned against any extension of it, as being subversive of the security of the titles of parties to property: for upon a strict adherence to the rules of evidence that security must essentially depend. This will be clearly seen by what fell from the court in The King v. Enswell, 3 T.R. 707. In that case Mr Justice Buller, though in favour of the admission of the evidence upon the ground of authority, said: \"the true line for courts to adhere to is, wherever evidence, not on oath, has been repeatedly received and sanctioned by judicial determinations, it shall be allowed; but beyond that, the rule that no evidence shall be admitted but what is upon oath, shall be observed.\" The doctrine of the other judges, on that occassion, went to the same extent. In Doe v.  Thomas, 14 East's Rep. 323, the  court held, evidence of reputation, that the land had belonged to J.S. and was purchased of him by the first testator, though coupled with corroborative parol evidence that the same had belonged to J.S., was inadmissible; upon the ground that reputation  was not admissible to prove the ownership of private property. 5 And Mr Chief Justice Mansfield, in delivering his opinion in the case of the Berkeley Peerage, (4 Campb. Rep. 414, 445), after stating that by the general rule of law, nothing said by any person can be used as evidence between contending parties unless it is delivered on oath, in the presence of those parties; said, \"with two exceptions this is adhered to in all civil cases: first, on the trial of rights of common and other rights claimed by prescription: and secondly, on questions of pedigree.\" Perhaps this enumeration will, upon close examination, be found too narrow; but it shows the strictness with which the exception in favour of hearsay tradition and reputation is constantly construed, as being against the general principles of evidence. \nIn this court a like restricted doctrine has been maintained. In Mima Queen v. Hepburn, 7 Cranch 290, Mr Chief Justice Marshall, in delivering the opinion of the court, said, \"if other cases (of hearsay) standing on similar principles should arise, it may well be doubted, whether justice and the general policy of the law, would  warrant the creation of new exceptions. The danger of admitting hearsay evidence, is sufficient to admonish courts of justice against lightly yielding to the introduction of fresh exceptions to an old and well established rule; the value of which is felt and acknowledged by all.\" \nThese, and other cases also, fully justify the conclusion, (which is indeed stated by elementary writers) that in order to authorize the admission of hearsay evidence, (except in cases of pedigree) three things must generally concur: first, that the fact to which the reputation or tradition applies, must be of a public nature: secondly, if the reputation or tradition relate to the exercise of a right or privilege, it must be supported by acts of enjoyment or privilege within the period of living memory: thirdly, that it must not be reputation or traditionary declarations to a particular fact. 6 \n This last qualification is most important in the present case, as it applies directly to it, and is established by clear and decisive authority.  In Antram v. Wood, 5 Term Rep. 123, lord Kenyon said, \"although a general right may be proved by traditionary evidence, yet a particular fact cannot:\" and Mr Justice Groce (the only other judge then in court) concurred in that opinion. That was a case where hearsay evidence was offered to establish the identity of lands, and thereby a right to the coals in them; and it was held inadmissible. The same doctrine was recognized by lord Ellenborough, in Weeks v. Sparke, 1 M. & Selw. 687; where, referring to evidence of perambulations; he admitted that they were not evidence of a particular act done, as that such a turf was dug, or such a post put down in a particular spot. So Mr Chief Justice Mansfield, in his opinion on the Berkeley Peerage case, 4 Camp. Rep. 415, after alluding to the evidence of what dead men have said, as to the reputation of a right of way, common and the like, said, \"a declaration, with regard to a particular fact, which would support or negative the right, is inadmissible.\" Even in cases nearly approaching to those of pedigree, where hearsay is admissible of particular facts, such as marriages, births and deaths, and their respective times; it has been held,  that hearsay as to the place of birth, is not admissible; for it turns upon a single fact, that of locality, and that ought to be proved by the ordinary course of evidence. Rex v. Erith, 8 East's Rep. 539. In Mima Queen v. Hepburn, 7 Cranch 290, the court decided, that hearsay evidence was not admissible to prove a specific fact, although the witnesses to the fact were dead; and, therefore, evidence of hearsay that the ancestor of a person, suing for freedom, was free, was held inadmissible. The same point was again decided in Davis v. Wood, 1 Wheat. 6, 3 Cond. Rep. 465. \nUpon these doctrines and authorities, we are of opinion, that the evidence in the present exception stated, was rightly rejected. It we evidence not to general reputation as to boundary; but to particular facts and circumstances attendant upon the original making of Remey's survey. \nThe next exception is founded upon the refusal of the court to permit testimony to be given of the declarations of one Kincaid (the surveyor of Remey's survey), under the following circumstances: Kincaid had been examined as a witness for the demandants, (by way of deposition) and the tenants, thereupon, gave in evidence the conversations  and declarations of Kincaid, to certain witnesses, in order  to discredit his (Kincaid's) testimony, and to show that he had stated, that the survey was made by him, at the mouth of Raccoon creek, for Remey, when it was his interest to place it at Pond creek. The demandants then, with a view to sustain Kincaid, and to support the statements going to his interest, offered witnesses to prove the statements and conversations of Kincaid at other times, corresponding with the statements made in his deposition, relative to his making the surveys of Thompson and Remey; and it being suggested by the demandants, upon an inquiry from the court, that these statements and conversations were subsequent to those testified to by the tenants' witnesses; the court, upon an objection taken by the tenants, excluded the evidence. In our opinion, the evidence was rightly excluded. \nWhere witness proof has been offered against the testimony of a witness under oath, in order to impeach his veracity, establishing that he has given a different account at another time, we are of opinion that, in general, evidence is not admissible, in order to confirm his testimony, to prove that at other times  he has given the same account as he has under oath; for it is but his mere declaration of the fact; and that is not evidence. His testimony under oath is better evidence than his confirmatory declarations not under oath; and the repetition  of his assertions does not carry his credibility further, if so far as his oath. We say in general, because there are exceptions; but they are of a peculiar nature, not applicable to the circumstances of the present case: as where the testimony is assailed as a fabrication of a recent date, or a complaint recently made; for there, in order to repel such imputation, proof of the antecedent declaration of the party may be admitted. \nIt is true, that in Lutterel v. Reynell, 1 Mod. Rep. 282, it was held, that though hearsay be not allowed as direct evidence, yet it may be admitted in corroboration of a witness's testimony, to show that he affirmed the same thing upon other occasions, and that he is still constant to himself. Lord Chief Baron Gilbert has asserted the same opinion, in his Treatise on Evidence, page 135. But Mr Justice Buller, in his Nisi Prius Treatise, page 294, says, \"but clearly it is not evidence in chief; and it seems  doubtful whether it is so in reply or not.\" The same question came before the house of lords, in the Berkeley Peerage case; and it was there said by lord Redesdale, that he had always understood that for the purpose of impugning the testimony of a witness, his declarations at another time might be inquired into; but not for the purpose of confirming  his evidence. Lord Eldon expressed his decided opinion, that this was the true rule to be observed by the counsel in the cause. 7 Lord Chief Justice Eyre is also represented to have rejected such evidence; when offered on behalf of the defendant in a prosecution for forgery. 8 We think this is not only the better, but the true opinion; and well founded on the general principles of evidence. There is this additional objection to the admission of the confirmatory evidence in the present case, that it is of subsequent declarations; which would enable the witness at any time to control the effect of the former declarations, which he was concious that he had made, and which he might now have a motive to qualify or weaken, or destroy. \n In the farther progress of the cause, the tenants, in order to prove the boundaries of the demandants' land, as laid down in the plat, and claimed by them; gave in evidence the original plats and certificates of survey of Kincaid's two thousand and one thousand acretracts; and then examined M'Neal, a witness of the demandants, who was first introduced to prove their boundary: who stated that the water courses, as found on the ground, did not correspond with those represented on the said plats: and after being examined by the demandants, for the purpose of proving that the marks on the trees, claimed by them as the corner and lines of their surveys, were as ancient as the said surveys, and also as to the position and otherwise of the lines and corners claimed by them, and represented on the plat made and used at the trial; stated, on the cross examination of the tenants' counsel, that some of the lines, marked to suit the calls of the said surveys, appeared to be younger, and others, from their appearance, might be as old as the date of the said plats. The demandants, to counteract this evidence, and to sustain their claim; offered in evidence a survey, made out by M'Neal, in an action  of ejectment formerly depending between the same parties for the same land, of which survey Pearl had due notice. The tenants objected to the reading of the explanatory report accompanying this survey, and the court refused to allow so much thereof as stated the appearance as to age and otherwise of the lines and corners to go in evidence to the jury; and accordingly caused to be erased from the plat the words following, viz. \"ancient\" (chops); -- \"John Forbes, Jun.,  states he cut the same letters and figures;\" -- \"on the east side, the chops appear to have been marked with a larger axe, than the chops on the beginning tree;\" -- and then permitted the residue of the report and plat to go in evidence. This constitutes the third exception of the demandants. \nWe are of opinion, that there was no error in this refusal of the court.Strictly speaking, the demandants had no right, upon the principles already stated, to give in evidence any other prior statements of M'Neal to confirm his testimony. But, in truth, the evidence was offered to discredit, in part, his present testimony: and certainly the demandants were not at liberty to discredit their own witness by showing his  former declarations on the same subject; though they might show by other witnesses that he was mistaken. But independent of these objections, the evidence was inadmissible upon general principles. It was mere hearsay. The survey, made by a surveyor, being under oath, is evidence as to all things which are properly within the line of his duty. But his duty is confined to describing and marking on the plat, the lines, corners, trees, and other objects on the ground, and to subjoin such remarks as may explain them: but in all other respects, and as to all other facts, he stands, like any other witness, to be examined on oath in the presence of the parties; and subject to cross examination. The reason why a survey, made by a public surveyor in discharge of his public duties, is admitted as evidence in suits between other parties, is, not that it is hearsay; but that the act is officially done under oath, and in discharge of his duties to the government and the public. but it has never been supposed, that if in such a survey the surveyor should go on to state collateral facts, or declarations of the parties, or other matters, not within the scope of his proper official functions;  he could thereby make them evidence as between third persons. \nIn the further progress of the trial, the demandants, after the evidence was closed on both sides, moved the court to instruct the jury that if they believed, from the evidence, that the survey of Remey and the adjoining survey of Thompson, were, in point of fact, made at the mouth of Pond Creek, by beginning at or near the letter L, on the plat, that the law locates the patent on the ground where it was actually surveyed, notwithstanding the call or reference on the said patents, or either of them, to [for] the mouth of Raccoon creek; and if they found that the patent of Remey, as surveyed, does not interere with the claim of the demandants, that they ought to find  for the demandants; unless they find that the defendants have had possession by an actual residence or  fence within the patent of the demandants thirty years or more before the bringing of these [suits]. The court refused to give this instruction, as moved; but gave the instruction as moved after substituing for the word \"fence\" the words \"improvements with the intention of taking possession.\" To which refusal the demandants excepted. \n It is wholly unnecessary for us to consider whether the instruction, as given, is maintainable in point of law or not; and the only question is, whether the refusal to give it as prayed for, was incorrect. But this resolves itself into the point, whether it is absolutely necessary to constitute a possession of land, sufficient to bar an adverse title thereto under the statute of limitations limiting writs of right to thirty years, that there should be an actual residence or fence by the party claiming the benefit of the statute; that is, an actual residence on the land, or a pedis possessio of it by an enclosure. The argument in support of the instruction, as prayed, assumes that there can be no possession to defeat an adverse title, except in one or other of these ways; that is, by an actual residence, or an actual enclosure: a doctrine wholly irreconcilable with principle and authority. Nothing can be more clear, than that a fence is not indispensable to constitute possession of a tract of land. The erection of a fence, is nothing more than an act presumptive of an intention to assert an ownership and possession over the property. But there are many other acts, which are equally  evicive of such an intention of asserting such ownership and possession: such as entering upon land and making improvements thereon; raising a crop of corn; felling and selling the trees thereon, &c.; under colour of title. \nAn entry into possession of a tract of land, under a deed containing specific metes and bounds, gives a constructive possession of the whole tract, if not in any adverse possession; although there may be no fence or enclosure round the ambit of the tract, and an actual residence only on a part of it. o constitute actual possession, it is not necessary that there should be any fence or enclosure of the land. If authority were necessary for so plain a proposition, it will be found in the case of Moss v. Scott, 2 Dana's Kent. Rep. 275; where the court say, that \"it is well settled that there may be a possession in fact of land not actually enclosed by the possessor.\" But this subject will naturally arise and be considered more fully under the next instruction prayed for: and it is only necessary to say, that we perceive  no error in the refusal of the court to give that which was here prayed for. \nThe demandants then prayed the court to instruct the jury  \"that unless they find that Remey's survey covers the patents under which the demandants claim, the settlement of M'Cammon within the two thousand acres does not give a claim to a possession within the one thousand acres patent; nor does the possession within the one thousand acres patent give any possession within the two thousand acres patent. That, as to the two thousand acres, the statute runs as to that from the time a possession was taken by an actual residence, or by fencing; and the same as to the one thousand acres: consequently, that if they [the jury] find that one has been thus possessed adversely for thirty years next before the bringing of this suit, and the other not; that as to the other not so held, they should find against such tenants as were within such patents at the date of the demandants' writ; provided these settlements are not included in Remey's or Thompson's surveys, as originally surveyed.\" \nThe latter part of this instruction as prayed, is disposed of by the considerations already suggested under the preceding head. The other part may require some further explanations, in order to show its bearing and pressure.The tract of seven thousand acres conveyed  by Edwards to Pearl, included, as has been already stated, both of the tracts of two thousand acres and one thousand acres claimed by the demandants, within its boundaries. The house and settlement of Pearl were on the southern side of the one thousand acres tract; and the house and settlement of M'Cammon were within the two thousand acres tract, and near the centre of the eastern line of that tract. Pearl entered into possession of the seven thousand acres tract under his deed from Edwards; and as that deed described the tract by metes and bounds, Pearl must, upon the principles already stated, be deemed to have been in possession of the whole tract; unless some part of it was, which is not shown, in the adverse possession of some other claimant. In short, his entry being under colour of title by deed, his possession is deemed to extend to the bounds of that deed; although his actual settlement and improvements were on a small parcel only of the tract. In such a case, where there is no adverse possession, the law construed the entry to be co-extensive with the grant to the party; upon the ground that it is his clear intention to assert such possession. This doctrine is well settled.  It was affirmed by this court in Barr v. Gratz, 4 Wheat. Rep. 222, 223;  and it has been fully recognized and acted upon by the state courts of Kentucky. In Fox v. Hinton, 4 Bibb's Rep. 559, it was held by the court, that where two patents interfere in part, and before possession is taken under the elder patent, the junior patentee enters upon the land within the interference with an intention to take possession, he shall be construed to be in possession to the extent of his claim. In Thomas v. Harrow, 4 Bibb's Rep. 563, the same court held that a person entering on land under a deed of conveyance specifying the boundaries, is in possession to the extent thereof; although the person making the conveyance had only an entry, which did not appear to cover the land, and which had not been perfected by survey or patent. The cases of Smith's Heirs v. Lockridge, 3 Littell's Rep. 19, 20; Cates v. Loftus, 4 Monroe's Rep. 442; Moss v. Currie, 1 Dana's Kent. Rep. 267; Boyce v. Blake, 2 Dana's Kent. Rep. 127; Smith's Heirs v. Frost's Devisee, 2 Dana's Kent. Rep. 148, 149; and Harrison v. M'Daniel, 2 Dana's Kent. Rep. 354, are to the same effect, and contain a full exposition of  the doctrine. \nM'Cammon having entered under Pearl, his possession must be deemed consistent with the title of Pearl. There is, however, no proof of the nature or extent of his claim in the case. If he entered under a deed from Pearl, then his possession would be coextensive with the  boundaries prescribed in that deed. If he entered without deed, his possession must either be deemed a continuation of that of Pearl, or bounded by his actual occupancy. In Jones v. Chiles, 2 Dana's Rep. 28, it was held by the court, the if a landlord settles a tenant without bounds upon a tract of land, he is in possession to the limits of the claim. But if the tenant is restricted by metes and bounds, to a part only of the land; the landlord's possession is in like manner limited. And upon the same principles the court held, that if the proprietor of a tract sells a portion of it designated by metes and bounds, and the vendee enters into possession, his entry must be deemed of his own land, only; and it has no effect as an entry upon or possession of the rest of the tract. \nIf with these principles in view we examine the instruction asked of the court, it will be found open to much  objection. It assumes certain facts as its basis, which were not in evidence; or, if in evidence, they were for the decision of the jury.The court were asked to instruct the jury, \"that the settlement of M'Cammon within the two thousand acres tract, did not give a claim to a possession within  the one thousand acres tract,\" without ascertaining whether the claim or title of M'Cammon extended into the latter or not. Now, it is plain that if his claim or title did extend into the latter, he would have had a constructive possession to the extent of that claim or title. The other part of the instruction asked is extremely vague. It is, \"nor does the possession within the one thousand acres patent give any possession within the two thousand acres.\" It is not said by whom the possession is supposed to be, whether by M'Cammon or by Pearl, or by any other person. If the possession intended was that of Pearl, as both tracts were within his tract of seven thousand acres; it is clear that his possession would extend over both tracts, upon the principles already stated. If the possession intended was that of M'Cammon, it is open to the objection already stated, that the boundaries  of his claim or title are not ascertained, so as to enable the court to give the instruction as matter of law. In truth, the instruction asked seems to have proceeded upon a ground perfectly untenable in itself; and that is, that as to third persons, who are in under title or colour of title, their possession is to be bounded and limited by the nature and extent and origin of the distinct titles of their adversary; and not by that under which they themselves have entered and taken possession. For these reasons we are of opinion that the instruction was properly refused by the court. \nThe last exception now insisted on, is in the following instruction, given by the court upon the prayer of the tenants. \"That if they [the jury] find, from the evidence, that Remey's patent does not cover the land in contest, yet if they find, from the evidence, that the tenants, or any of them, or those claiming under them, have had possession of the land in contest for thirty years next before the commencement of the demandants' suit, they must find for the tenants.\" It is probable that the actual form in which this instruction was asked, was occasioned by the agreement of the parties, that all  these actions against the different tenants upon the different writs of right \"should be heard at the same time,\" without prejudice to the rights of either party; and that the evidence \"should be heard as to all, and to be applied to each respectively,\" and therefore that the instruction should be construed accordingly, reddendo singula singulis. But we see no objection to it in the form in which it was actually given, under the circumstances of the present case, and the titles set up by the parties respectively. The demandants claimed adversely to all the tenants, upon a title independent and distinct from theirs. The  tenants all claimed under the title of Pearl, by his deed of the seven thousand acres, that is, under a title common to them all. The demandants could not recover any tract in controversy, unless they were seised thereof within thirty years, the period prescribed by the statute of limitations for writs of right. If, therefore, there had been thirty years adverse possession of the particular tract in controversy, by any of the tenants, the demandants had failed in their suit, and were barred from any recovery. This was the whole purport of the instruction  given; and, in our judgment, it was perfectly correct. It has been supposed, at the argument, that the instruction was defective in not stating that the possession was adversary and uninterrupted during the whole thirty years: and the case of Forman v. Ambler, 2 Dana's Kent. Rep. 109, 110, is relied on to sustain the objection. But the court in that case admitted, that the instruction was free from legal exception, as understood by the court and the parties. And whatever ground there might be for the court, int hat case, to come to the conclusion that the jury might have been misled by it, (with which we do not intermeddle), under the peculiar circumstances of the case; we are of opinion that, under the circumstances of the present case, the instruction was definite and unambiguous in its purport and effect, and such as the law justifies. \nUpon the whole, he judgment of the circuit court is affirmed with costs. \nThis cause came on to be heard on the transcript of the record from the circuit court the United States for the district of Kentucky, and was argued by counsel; on consideration whereof, it is ordered and adjudged by this court, that the judgment of the said circuit court  in this cause be, and the same is hereby affirmed, with costs. \n \n\n ", " \nOpinion \n\n \n \n  Mr Justice STORY  delivered the opinion of the Court. \nThis is a writ of error to the circuit court of the District of Columbia, for the county of Alexandria. \nThe original action was assumpsit, brought by the defendant in error against the insurance company, upon a policy of insurance, against fire underwritten by the company, on the 9th of April 1823, whereby the company insured for the defendant in error, and his partner, Poindexter (since deceased), 7000 dollars on their stone mill, called the Elba mill, four stories high,  situated on an island about a mile from Frederickburg, in Virginia. The declaration averred a total loss by fire, on the 14th of February 1824. \nThere was a former suit brought on the same policy, against the  company, in which the plaintiff obtained a verdict and judgment. That judgment was brought before this court on a writ of error, in January term 1829: and the judgment was reversed. The cause will be found fully reported, with the grounds of the reversal, in the second volume of Mr Peters's Reports. (2 Peters's Rep. 26, et seq.) One of the grounds of that reversal was the omission, before the suit was commenced, to procure a certificate from a  magistrate, in compliance with the ninth fundamental article of the rules of the company: upon which the policy was made; and to which those rules were annexed, as a part of the conditions of the contract. On the 14th of February 1829 (after the reversal, and the reason thereof were made known), being five years after the loss; a new certificate was obtained from Mr Hooe, a magistrate of the county in which the mill was situated. The original suit was afterwards discontinued in the circuit court, on the 5th of November 1830. The present suit was afterwards commenced in September 1831. \nIn the court below, various pleas were interposed by the company, upon some of which there were issues to the country; and others, which were special, eventuated in demurrers. Upon the former, a verdict was at the trial found for the plaintiff; and upon the latter, (as well as upon the verdict) judgment was ultimately pronounced in favour of the plaintiff. Bills of exceptions were also taken at the trial upon various points of law raised in argument; and the correctness of the ruling of these points, raised both upon the special pleadings and upon the trial of the issues of fact, are upon the present  writ of error brought before us for revision. All the leading facts of the case, except the new certificate of Hooe beforementioned, and the testimony of Joseph Howard (which will hereafter be a subject of comment, upon the inquiry as to his competency), are precisely the same as were before us upon the writ of error in 1829. And as the testimony of Howard, if admissible, does not in our opinion at all vary the operation and pressure of the point of law in the case; we deem it unnecessary to do more than to refer to the case, as reported in Peters's Reports, for all the material facts. It may be proper, however, to state, that it was then decided that there was no waiver by the company of their right to the preliminary proofs, required by the ninth article of their rules; and that the assured had an insurable interest. \nIn examining the case presented by the present writ of error, we shall endeavour to strip it of the artificial and complicated form in  which it comes before the court: and instead of wandering through the maze of special pleadings and exceptions with which the merits of the case are incumbered, and under which indeed they seem almost buried; we shall  consider the material questions presented by the record: and afterwards briefly apply the decisions on them to the solution of the points raised by the pleadings and exceptions. \nThe first question naturally presented is, whether Joseph Howard was a competent witness in the suit. The original defendants (the insurance company) objected to his competency; and the objection was overruled, and his testimony was admitted by the court. The facts relied on to establish his incompetency were these. Howard and Lawrence (the plaintiffs) had, in September 1813, purchased the premises of W. and G. Winchester; and in the conveyance it was declared, that it was subject to the payment of the annual rent of 80 pounds, and also to the payment of 6695 dollars, the balance of the purchase money due to the grantors, agreeably to certain notes given therefor by Howard and Lawrence; and that the same sum of 6695 dollars, and the accruing interest, should be a lien on the premises, in the same manner as if a mortgage had been executed therefor. Howard and Lawrence, in May 1814, executed a deed of trust to W. J. Roberts, on the premises, to secure certain indorsers upon their notes at the Bank of Virginia,  and the Farmers Bank at Frederickburg. In July 1818, Howard made an agreement with Lawrence to convey the premises to him, at the price of 30,000 dollars; to which amount Lawrence was to procure a release of debts due from Howard and Lawrence, and then Howard was to make a conveyance of his moiety of the premises to Lawrence, subject to the liens given to the banks (hereinafter mentioned), and to Winchester; and also the ground rent, &c. Lawrence, in November 1822, entered into a contract with Poindexter, by which the latter became interested in a moiety of the premises, and became liable to the payment of a moiety of the debts due by Howard and Lawrence to the Bank of Virginia, and the Farmers Bank, at the Frederickburg branches, for which Howard and Lawrence had executed the deed of trust to Roberts; and also for the debt due to Winchester, for which there was a mortgage or lien on the premises. \nLawrence and Poindexter, in February 1824, assigned the present policy on the premises to Roberts, by an instrument which states no purpose, but merely says: \"that for value received, they do assign the policy to Roberts;\" to whom the said property has beenconveyed, in trust, for certain  purposes. It may be inferred that the object  was to subject the rights and interest secured by the policy to the trust. \nIt is admitted, that all these bank debts of Howard and Lawrence have been discharged, and all the liability to all their indorsers, except John Mundell deceased; who, as executor, has, by a release under seal, released Howard from all liability, by reason of the indorsements of his testator. It is suggested that this release is inoperative in point of law; because it is not competent for an executor to release such a liability to his testator. We are of a different opinion, if the transaction was bona fide and for a sufficient consideration; and there is no evidence to disprove either. So that the deed of trust has become completely functus officio: and Howard, as to the bank debts, has no interest whatsoever, to be affected by the assignment of the policy. \nThe debt to the Winchesters of 6695 dollars, yet remains due and unpaid; and as to this, it is insisted that there is a remaining interest in Howard, who is personally liable to the payment  of it; and the proceeds of the policy, if recovered, will go, pro tanto, in discharge of that  debt. Assuming that Howard is personally liable for that debt; still, unless the cerditors have not merely a lien on the premises, but a lien on the policy for it, Howard has no interest which renders him incompetent in this suit. Now, we know of no principle of law or of equity by which a mortgagee has a right to claim the benefit of a policy underwritten for the mortgagor on the mortgaged property, in case of a loss by fire. It is not attached, or an incident to his mortgage. It is strictly a personal contract for the benefit of the mortgagor; to which the mortgagee has no more title than any other creditor. Lord Chancellor King, in Lynch v. Dalzell, 3 Bro. Parl. Cases 497; S.C., 2 Marshall on Insurance, b. 4, ch. 4, p. 803; took notice of this distinction, saying: \"these policies are not insurances of the specific things (goods) mentioned to be insured; nor do such insurances attach to the realty, or in any manner go with the same, as incident, by any conveyance or assignment: but they are only special agreements with the persons insured against such loss or damage as they may sustain.\" So that in this view we are of opinion, that Howard was a competent witness and properly  admitted by the court below. We have already said, that we do not perceive that the testimony given by Howard, changes in any material respect the legal posture of the case. The first exception of the insurance company was, therefore, properly overruled. \n The next question which arises is, as to the proper construction of the ninth article of the fundamental rules of the insurance company. That article is in the following terms: \n9. \"All persons assured by this company, sustaining any loss or damage by fire, are forthwith to give notice to the company; and, as soon as possible thereafter, deliver in as particular an account of their loss or damage, signed with their own hands, as the nature of the case will admit of, and make proof of the same by their oath or affirmation, and by their books of accounts, or proper vouchers, as shall be reasonably required: and shall procure a certificate under the hand of a magistrate or a sworn notary of the town or county in which the fire happened, not concerned in such loss, directly or indirectly, importing that they are acquainted with the character and circumstances of the person or persons insured; and do know, or verily believe,  that he, she, or they, really and by misfortune, without any kind of fraud or evil practice, have sustained by such fire loss or damage to the amount therein mentioned: and, until such affidavit and certificate are produced, the loss claimed shall not be payable: also, if there appears any fraud, the claimant shall forfeit his claim to restitution or payment by virtue of his policy.\" \nIt is contended on the part of the company: first, that the certificate from a magistrate, here provided for, is to be procured \"as soon as possible;\" and that these words in the preceding clause are to be drawn down and construed to belong to the latter clause, as as to read: \"and shall, as soon as possible, procure a certificate, &c.\" And, secondly, if this construction be not adopted, still that the certificate must be procured within a reasonable time; and that the procurement of it after five years from the time of the loss, is not a reasonable time. \nWe are of opinion, that the words \"as soon as possible,\" cannot be drawn down to fix the construction of the clause respecting the certificate. We think the true intent and meaning of it is, that the certificate must be procured within a reasonable  time after the loss. It would be a most inconvenient course to adopt a different construction, not required by the terms of the clause or the context; as it would make the material inquiry, not the production of the certificate, but the possible diligence in proving it. The assured is not entitled to receive or to sue for the loss until the certificate is obtained; for it is a condition precedent to his right of action. The language is: \"and until such affidavit and certificate are produced,  the loss claimed shall not be payable.\" And besides, in the body of the policy it is expressly provided: \"such loss and damage as the assured shall be entitled to receive by virtue of the policy, shall be paid within sixty days after notice and proof thereof made by the assured in conformity to the conditions of the company subjoined to the policy.\" So that it is manifest that the assured would not be entitled to maintain any action, until he had furnished all the preliminary proofs: so that the delay is not injurious to the company, but solely to the assured, by depriving him of his right to judgment until it is procured. \nThe next inquiry is, whether the nex certificate was procured  within a reasonable time. In the ordinary course of things upon a trial before the jury, this would be a mixed question of fact and law: of law, where all the facts and circumstances were admitted or established; of fact, where these circumstances were open for the ascertainment of the jury. In the present case, the question is directly made upon a full display of all the facts and circumstances in the special pleadings. We are of opinion, that under all these facts and circumstances, the non-production of the proper certificate at an earlier period is fully accounted for; and that the proper certificate was procured within a reasonable time. The first certificate was procured shortly after the loss, and presented to the company; which then made no objection to it. The objection to it was first taken at the trial in the circuit court in the former suit. The court were then of opinion, that the previous conduct of the company amounted to evidence, proper to be left to the jury, of a waiver of any objection to the certificate. This court reversed the judgment on that point; and almost contemporaneously with the annunciation of that decision, the new certificate was obtained. The  non-production then of the proper certificate was occasioned, not by any laches properly imputable to the party, but by the omission of the company to give notice of the defect; and of the mistaken confidence placed by the party in the company itself. \nIf the company had contemplated the objection, it would have been but ordinary fair dealing, to have apprised the plaintiff of it; for it is now obvious that the defect might have been immediately supplied. As it was, the company, unintentionally, it may be, by their  silence, misled him. The delay to procure the correct certificate, was not unreasonable. This view of the matter disposes of the fourth plea. \n That plea is substantially defective, in averring that the ninth article of the fundamental rules required the certificate to be procured \"as soon as possible,\" after the loss, and is a legal misconstruction of that article; and is, in other respects, objectionable, as attempting to put double matters in issue. The replication set forth all the circumstances, which establish due diligence in procuring the certificate within a reasonable time; and if it be bad, for the want of a proper traverse, and for  any other cause set forth in the special demurrer, it leads us back to the first error: viz. a bad plea to a good declaration. This view of the matter also disposes of the first, second and third instructions, asked of the court in the second bill of exceptions; founded upon the supposed bar of the statute of limitations, and the certificate not having been procured in a reasonable time. \nThe next question which arises is, whether there has been in the proposal for the insurance, a misrepresentation of the interests of the assured in the property insured; and if there has been, whether if that misrepresentation is material to the risk, and would have enhanced the premium; it avoided the policy. The proposal for insusurance describes the property and interest thus. \"What premium will you ask to insure the following property, belonging to Lawrence and Poindexter, for one year, against loss or damage by fire, on their stone mill, four stories high, covered with wood, situate, &c.\" It was decided by the court, in the former case, in 2 Peters's Rep. 47, &c., that the real interest existing in Lawrence and Poindexter, at the time of the proposal, was not such as is described therein.  It was further decided by the court, in the same case, that a misrepresentation of the interest of the assured, which is material to the risk, would avoid the policy. The language of the court on that occasion was: \"the contract for insurance is one in which the underwriters generally act, on the representation of the assured; and that representation ought, consequently, to be fair, and to omit nothing which it is material for the underwriters to know. It may not be necessary that the person requiring insurance should state every incumbrance on his property, which it might be required of him to state if it was offered for sale. But fair dealing requires that he should state every thing which might influence, and probably would influence the mind of the underwriter in forming or declining the contract, &c. Generally speaking, insurances against fire are made in the confidence that the assured will use all the precautions to avoid the calamity insured against, which would be suggested by his interest.  The extent of this interest must always influence the underwriter in taking or rejecting the risk, or in estimating the premium. So far as it may influence him in these  respects, it ought to be communicated to him. Underwriters do not rely so much upon the principles as on the interest of the assured; and it would seem, therefore, to be always material, that they should know how far this interest is engaged in guarding the property from loss.\" \nWe think this reasoning entirely satisfactory, and founded in the true exposition of the contract of insurance. Whenever the nature of this interest would have, or might have a real influence upon the underwriter, either not to underwrite at all, or not to underwrite except at a higher premium, it must be deemed material to the risk; and if so, the misrepresentation or concealment of it will avoid the policy. One of the tests, and certainly a decisive test, whether a misrepresentation or concealment is material to the risk, is to ascertain whether, if the true state of the property or title had been known, it would have enhanced the premium. If it would, then the misrepresentation or concealment is fatal to the policy. Now, at the trial of the present case, the counsel for the insurance company, in their second bill of exceptions, prayed the court to instruct the jury, that if they \"find from the evidence  that a full disclosure of the actual title of the insured in the premises, as it existed at the time, was material to, and would have considerably increased the estimate and value of the risk and premium; and that no other disclosure of the same was made than as aforesaid i.e. in the offer of insurance , then there was a material concealment, which avoids the policy.\" The court, being divided in opinion, did not give this instruction to the jury; and it was consequently refused. In our opinion, upon the principles already stated, it ought to have been given; and the refusal was an error for which the judgment must be reversed. But the court rightly rejected the instructions upon the same subject asked in the first bill of exceptions; which proceeded upon the ground that if there was any misrepresentation of the interest of the assured, that alone, whether material or not to the risk, would avoid the policy. The instruction asked upon the same subject, in the second bill of exceptions, is still more objectionable: as it called upon the court to declare to the jury, as matter of law, that the non-disclosure of the true nature and extent of the title and interest of the assured in  the premises, was a concealment of circumstances materially affecting the risk, which avoided the policy:  thus taking from the jury the proper examination of the fact, whether it was material to the risk or not. \nThe next question is, whether a loss by fire, occasioned by the fault and negligence of the assured, their servants and agents, but without fraud or design on their part; is a loss for which the underwriters are liable. In regard to marine insurances, this was formerly a question much vexed in the English and American courts. But in England the point was completely settled in Busk v. The Royal Exchange Insurance Company, 2 Barn. & Ald. Rep. 82, upon the general ground that causa proxima, non remota, spectatur; and, therefore, that a loss whose proximate cause is one of the enumerated risks in the policy, is chargeable to the underwriters; although the remote cause may be trace to the negligence of the master and mariners. Although in the policy, in that case, the risk of the barratry was also assumed by the underwriters; yet it is manifest, that the opinion of the court proceeded upon the broad and general ground. The came doctrine was afterwards affirmed in  Walker v. Maitland, 5 B. & Ald. 171,  and Bishop v. Pentland, 7 Barn. & Cres. 219; and is now deemed incontrovertibly established. The same doctrine was fully discussed and adopted by this court in the case of The Patapsco Insurance Company v. Coulter, 3 Peters's Rep. 222. \nIn relation to insurances against fire on land, the doctrine seems to have prevailed, for a great length of time, that they cover losses occasioned by the mere faults and negligence of the assured and his servants, unaffected by any fraud or design. In the arguments of counsel on marine policies, it has constantly been taken for granted, both in England and America: 1 and although there is no case directly on the point decided by the highest authority; yet Lord Chief Justice Gibbs, at nisi prius, held, that if a servant by negligence sets a house on fire, that loss is recoverable on a policy against fire. Indeed, if such losses where not within such policies, the indemnits against such risks would be practically of little importance; since much the larger number of fires of this sort may be traced back to some negligence, slight or otherwise, of the members of families. The language of fire policies,  too, abundantly justifies this conclusion upon the common principles of interpretation. The underwriters agree to pay \"all loss or damage,\" which the assured may sustain by fire  upon the property insured; but they except from this general liability any loss or damage sustained by fire \"that may happen or take place in consequence of any invasion, civil commotion, riot, or any military usurpation:\" and the fundamental rules also exclude losses by earthquakes and hurricaness. The exception, then, may fairly be construed to leave all other losses, except fraudulent losses, within the reach of the policy; upon the known maxim of law, that an exception expressly carved out of a general clause, leaves all other cases within the scope of the clause. Fraudulent losses are necessarily excepted upon principles of general policy and morals; for no man can be permitted, in a court of justice, to allege his own turpitude as a ground of recovery in a suit. And, indeed, the ninth article of the fundamental rules is manifestly intended to secure the company against losses \"by fraud or evil practice.\" We are then of opinion, that a loss by fire, occasioned by the mere fault and negligence  of the assured, or his servants or agents, and without fraud or design, is a loss within the policy, upon the general ground that the fire is the proximate cause of the loss; and also upon the ground that the express exceptions in policies against fire, leave this within the scope of the general terms of such policies. The sixth plea is, therefore, bad in substance. \nThe next question which arises, is upon the supposed misdescription of the premises in the proposal for insurance, and the effect of that misdescription. It was decided by this court, in the former case; in 2 Peters's Rep. 26, 53, 56, that the misdescription of the premises (not fraudulently made), to be such as would vitiate the policy, must, upon the true construction of the fundamental rules of the company, not only be material to and increasing the risk, but such as would occasion the insurance to be made at a lower premium than would otherwise be demanded. If, therefore, the misdescription were material to the risk, and would increase it, but yet would not reduce the premium;  it would not avoid the policy. And that the points as to the misdescription, as well as the effect thereof upon the premium, were matters of fact for the consideration of the jury. We are entirely satisfied that this is the true construction of the terms and intent of the fundamental rules. Upon this ground, we are of opinion, that the fifth plea is bad in substance; for it puts the case wholly upon the materiality of the misdescription to the risk, without any reference to the premium. The last instruction asked by the counsel of the company, in the bill of exceptions; propounds the point in a  somewhat different form. It is, \"that if the jury find, from the evidence, that the construction of the building, &c. was grossly misrepresented in the offer and policy, and instead of being a building with walls of stone, and which a covering or roof only of wood, the walls themselves were partly of wood; and that such actual construction of the building greatly increased the risk beyond what the insurers would have incureed, if the building had truly answered the description in the said offer and policy: then the jury ought to presume that the building was charged in the said  policy at a lower premium than would otherwise have been demanded by the defendants; so as to bring the case within the operation of the last clause of the first of the said fundamental rules.\" If this instruction has merely asked that the jury might presume, or were at liberty to presume, &c. upon the facts and circumstances so stated, there would not have been any just objection to it. But it goes much farther, and insists that the jury \"ought to presume,\" &c.; which, in truth, is removing the whole matter of fact from the jury, and compelling them to decide the point as a conclusive presumption of law. This, we are of opinion, would have been wholly unjustifiable on the part of the court. The instruction called upon the court to decide, not upon a conclusive presumption of law, but upon a mere presumption of fact; a matter which exclusively belonged to the jury to consider and resolve. It is directly in the face of the decision in 2 Peters's Rep. 55, 56, upon this very point. It is obvious, from the very terms of the rules, that cases may exist, in the same class of hazards, of very different degrees of risk, from the nature and qualities of the thing insured; and yet may not  increase or diminish the premium. Whether the misdescription would have any effect upon the premium must, therefore, from the very nature of the inquiry, be a matter of fact upon all the circumstances of each particular case. The instruction prayed was, therefore, properly rejected. \nThe judgment of the circuit court must be reversed for the error already stated; and the cause remanded, with directions to the court to award a venire facias de novo. \nThis cause came on to be heard on the transcript of the record from the circuit court of the United States for the District of Columbia, holden in and for the county of Alexandria,  and was argued by counsel; on consideration whereof, it is the opinion of this court, that  there was error in the circuit court in refusing to give to the jury the following instruction, in the second bill of exceptions mentioned, on the prayer of the counsel for the said insurance company, viz. \"If the jury find, from the evidence, that a full disclosure of the actual title of the insured in the premises, as it existed at the time, was material to and would have considerably increased the estimate and value of the risk and premium,  and that no other disclosure of the same was made than as aforesaid; then there was a material concealment which avoids the policy.\" It is therefore considered and adjudged by this court, that for the error aforesaid the judgment aforesaid be, and hereby is reversed; and that the same be remanded to the circuit court, with directions to award a venire facias de novo. \n \n\n ", " \nOpinion \n\n \n \n  Mr Justice STORY delivered the opinion of the Court. \nThis is a writ of error to the supreme court of Louisiana, brought here under the twenty-fifth  section of the judiciary act of 1789, ch. 20, to revise the judgment of that court. \nThe suit was originally brought by the plaintiff in error, in the state district court, against the defendants in error, as heirs and representatives of Daniel Clark, to recover the purchase money and interest for a certain tract of  land situate near Baton Rouge, between the rivers Perdido and Mississippi, east and west, and the thirty-first degree of north latitude, and the river Iberville, north and south; which Clark sold to the plaintiff in error, in 1807, for 10,000 dollars. The petition states, that Clark derived his title thereto from or through a grant of the same, from the Spanish government, after the treaty of St Ildefonso, in the year 1800, by which it was ceded to France by Spain; and that France afterwards, in 1803, ceded it to the United States as a part of Louisiana; and that in virtue thereof, the United States acquired a just title thereto, and under the acts of congress, have entire possession of the same; and the petitioner refers to certain accompanying documents, marked No. 1 and 2, to prove the sale to him, and the occupation and possession of the United States. The defendants in error pleaded the general issue; and judgment was given in the state district court for them. The plaintiff in error then carried the same, by appeal, to the supreme court of Louisiana: and the only point that appears there to have been raised or decided was, whether the plaintiff in error had been evicted from  the land or not. According to the practice in Louisiana, the opinion of the supreme court is stated on the record. After reciting the state of the pleadings, it proceeds as follows: \"the plaintiff contends, he showed an eviction, as the evidence establishes, that the whole land along the stream, on which the premises are situated, from its source to its mouth, was surveyed by order of the United States. It does not appear to us that the district court erred. It is true, the surveyors must have necessarily passed near the plaintiff's land in effecting the survey. It does not appear to us that it was occupied, or that any person on it was thereby disturbed.\" And then, after adverting to the case of Bessy v. Pintade, the court added: \"the present case differs from that in this, that here the United States have directed an act of ownership over a vast tract of country, some small part of which may well be supposed to have been lawfully possessed and even owned by individuals.  This does not appear to us to amount to a denial of title of any of these individuals; much less an eviction in this particular case.\" \nThis is the whole of the opinion of the court, from which it  is apparent, that the judgment did not turn upon any question within the purview of the twenty-fifth section of the judiciary act of 1789, ch. 20; but wholly upon a collateral matter, independent of and wholly aside from any such question. It was merely a decision that a public survey, under the authoritv of the United States, of a large tract of country, including the premises, was not, per se, an eviction of the plaintiff in error. \nUpon the grounds, therefore, of the doctrine already stated by this court, at this term, in the case of Crowell v. Randel, the cause must be dismissed for want of jurisdiction. \n \n\n ", " \nOpinion \n\n \n \n  Mr Justice STORY delivered the opinion of the Court. \nThis a writ of error to the circuit court for the district of west Tennessee. \nThe plaintiff in error, Gilman, brought an action of debt against the defendant in error, Rives, upon a joint judgment rendered in hisfavour against Rives and one Leonard H. Lyne, in the circuit court for the district of Kentucky. the declaration is in the following terms: \"For that whereas the said Benjamin Ives Gilman, Jun., heretofore, to  wit, at the November term, in the year of our Lord 1829, of the seventh circuit court of the United States, sitting in and for the district of Kentucky, at Frankfort in said state, before, &c., by the consideration and judgment of the said court, recovered against the  said Peter G. Rives and one Leonard H. Lyne the sum of 6860 dollars, then and there adjudged to the said B. I. Gilman, Jun. for his damages, which he had sustained by reason of the non-performance of the defendant and the said Leonard H. Lyne, of certain promises and undertakings then lately made by them to the plaintiff, and also his costs and charges by him about his suit in that behalf expended, whereof the said Peter G. Rives, the present defendant, and the said Leonard H. Lyne were convicted, as by the records, &c., which said judgment still remains in full force and effect, &c.; whereby an action hath accrued to him the said B. L. Gilman, Jun., to demand and have of the defendant the said sum of 6860 dollarsabove demanded; yet the defendant, though often requested, &c.\" \nTo this declaration there was a general demurrer filed; and upon the joinder in demurrer, the circuit court gave judgment in favour  of the defendant, \"that the declaration aforesaid and the matters in the same contained, are not good and sufficient in law to enable the plaintiff to have and maintain his action aforesaid,\" &c. \nThe present writ of error is brought to revise that judgment. \nThe sole question in the case is, whether the action was maintainable against the defendant Rives alone; the judgment appearing on the face of the declaration to be a joint one against him and Lyne, and no reason being assigned in the declaration why Lyne was not made a party thereto. If it had appeared upon the face of the declaration that Lyne was dead, or out of the jurisdiction of the court, or incapable of being made a party to the suit; there is no doubt that the action might well be maintained against the other judgment debtor. The question then is, whether the non-joinder of Lyne, as a co-defendant, and the omission to aver and reason for such nonjoinder, is a fatal defect, upon a general demurrer to a declaration thus framed. The matter might, without doubt, have been pleaded in abatement; and not having been so pleaded, it is contended that it cannot be taken advantage of upon general demurrer. \nThe doctrine which  is to govern in this case, is of a purely technical nature; and turns upon the rules of good pleading. We have certainly no desire to encourage exceptions of thissort, for they are generally of a nature wholly beside the merits of the case. But still, if they are founded in the general rules of pleading, and are supported by authority; it is our duty not to disregard them. \nGenerally speaking, all joint obligors and other persons bound by covenants, contract, or quasi contract, ought to be made parties to the  suit; and the plaintiff may be compelled to join them all, by a plea in abatement for the non-joinder. But such an objection can only be taken advantage of by a plea in abatement:  for if one party only is sued, it is not matter in bar of the suit, or in arrest of judgment, upon the finding of the jury, or of variance in evidence upon the trial. Thus, for instance, if one obligor be sued upon a joint bond, and upon oyer the bond is spread upon the record, and thereby becomes a part of the declaration, by which it appears that another person is named as a joint obligor; the party sued should not demur, but should plead in abatement that the other sealed  and delivered the bond, and was in full life; for non constat, upon the oyer, that the other did seal and deliver the bond. So it was held in Whelpdale's case, 5 Co. Rep. 119; and in Cabell v. Vaughan, 1 Saund. Rep. 291: and that doctrine has been constantly referred to ever since; and was fully confirmed in Rice v. Shute, 5 Burr. Rep. 2611. But if it should appear upon the face of the declaration, or other pleading of the plaintiff, that another jointly sealed the bond with the defendant, and that both are still living; the court will arrest the judgment, and the objection may be taken by demurrer: because the plaintiff himself shows that another ought to be joined; and it would be absured to compel the defendant to plead facts which are already admitted. It is unnecessary to do more to support this distinction than to refer to the learned note of serjeant Williams, to the case of Cabell v. Vaughan, 1 Saund. Rep. 191, note 4; where all the leading authorities are collected and commented on. \nBut the same doctrine does not appear to have been acted upon, to the full extent, in cases of recognisance and judgments, and other matters of record, such as bonds to the crown. If in cases  of this sort it appears by the declaration, or other pleadings, that there is another joint debtor who is not sued, although it is not averred that he is living; the objection need not be pleaded in abatement, but it may be taken advantage of upon demurrer, or in arrest of judgment. Thus, in Blackwell v. Ashton, Alleyn's Rep. 21, a scire facias was brought against three parties, upon a recognisance asknowledged by them and the principal, jointly and severally; and upon a demurrer, the writ abated by good advisement, as the report says, because this being founded upon a record, the plaintiff ought to show forth the cause of the variance from the record. But if an action be brought upon a bond in the like case, there the defendant ought to show that it was made by them and others in full life, not named in the writ:  because the court shall not intended that the bond was sealed and delivered by all that are named in it. There is another report of the same case, or of another cases between the same parties, in the preceding term of the court, in Styles's Rep. 50, in which the points are somewhat differently stated; but it is a very loose note. The case in Alleyn's Rep.  21, has been fully recognixed and acted on in the recent cases in the court of exchequer. In Rex v. Young, 2 Anstr. Rep. 448, there was a scire facias against two joint sureties upon a recognizance to the king; and the declaration stated that four persons became bound by the recognizance, without averring the other to be dead, or outlawed. There was a plea put in by the defendant, to which the crown replied; and upon general demurrer the plea and replication were held to be bad. An exception was taken to the declaration that all the parties were not joined; and it was held a fatal objection by the court. Lord chief baron Macdonald, in declaring the opinion of the court, said: \"the defendant, however, rests on an objection to the declaration, that two of those jointly bound in the recognizance are sued without the rest, and without averring that the others are dead. And it is clear that this is a valid objection to it. But it has been contended that the objection should have been taken by a plea in abatement. That rule holds where the fact does not appear upon the declaration. But where it already appears on the declaration that others ought to have been joined, and are not,  no plea is necessary. It is clear from the cases cited in 5 Burr. 2611, and that in Alleyn, which corresponds very accurately with the present.\" The same point was adjudged in the same way by the same court in the subsequent case of Rex v. Chapman, 3 Anstr. Rep. 811. 1 \nAs a question, therefore, of authority, the doctrine seems well settled; and we cannot say, that upon principle there is not good sense in requiring the plaintiff in his suit to assign some reason why, when he declares upon a joint judgment, he does not join others whom he states in his declaration to be jointly liable. \nThe objection may be urged that the judgment upon a general demurrer, in this case, will be a good bar to any future suit brought against the present defendant upon the same debt, or against him and the other judgment debtor. We are of a different opinion as to both, if the declaration be properly framed; for a judgment that a declaration is bad in substance (which alone, and not matter of form,  is the ground of a general demurrer) can never be pleaded as a bar to a good  declaration for the same cause of action. The judgment is in no just sense a judgment upon the merits.If authority be wanting for this position, it will be found in the case of Lampen v. Kedgewise, 1 Mod. Rep. 207; where to an action in the nature of a conspiracy, the defendant pleaded a bad plea, and judgment was in part rendered against the plaintiff for the insufficiency of his declaration; but by mistake or design the judgment was entered that the plea was good, and ideo consideratum, instead of that the declaration was bad and insufficient, and ideo consideratum. Upon a second suit for the same cause of action, the former judgment was pleaded, and upon demurrer held no bar. And the court held, that not withstanding this mistake in the entry, if the plea was bad it was no estoppel; and the court accordingly took notice of the plea, and said upon that matter, as it falls out to be good or otherwise, the second action in maintainable or not. And Judgment was accordingly given, nisi, for the plaintiff; but if the judgment had been properly rendered, that the declaration was insufficient, &c., there was no doubt that the former judgment was no bar. \nBut to avoid all possible difficulty  on this point, in our onw judgment we shall state the cause for which the declaration is held bad; so that it cannot be a bar to any suit properly brought on the judgment. \n The judgment of the circuit court is therefore affirmed with costs. \nThis cause came on to be heard on the transcript of the record from the circuit court of the United States for the district of West Tennessee, and was argued by counsel; on consideration whereof, inasmuch as it appears to the court that the declaration and the matters therein contained are not sufficient in law for the said Gilman to have or maintain his aforesaid action against the said Rives, because it appears upon the declaration that there is another joint judgment debtor, the said Lyne, who is not sued, nor any reason assigned why he is not joined in the suit; therefore, and for this cause, it is considered by the court that the judgment of the said circuit court be, and hereby is affirmed with costs. \n \n\n ", " \nOpinion \n\n \n \n Mr. Justice STORY delivered the opinion of the court. \nThe court are not satisfied that this cawe is within their appellate jurisdiction. To support that jurisdiction, it is necessary that it should appear upon the face of the record, or upon affidavits to be filed by the parties, that  the sum or value in controversy exceeds $2,000, exclusive of costs. The onis probandi is upon the party seeking to obtain a revision of the case, to establish the jurisdiction. Here the whole matter in controversy is the ownership of one negro woman and two children, who are slaves; and it is not supposed that their value can be equal to $2,000. The bond in the case, in the nature of a forthcoming bond, in a larger penalty, does not vary the result. But the plaintiff in error is at liberty to establish, if necessary, that the value exceeds that sum. But there are other cases on the docket, between the plaintiff in error and other persons, which involved the same points, which have been argued in this case. If any of these cases involved a sum or value which entitles the court to take jurisdiction, we will hereafter give an opinion upon those points. \n \n\n ", " \nOpinion \n\n \n \n Mr Justice STORY delivered the opinion of the Court. \nThis was the case of certificate of division of opinion from the circuit court for the district of Pennsylvania, certified to this court under the act of congress of the 29th of April 1802, ch. 32, sec. 6. \nThe case was formerly before this court, and the decision will be found reported under the name of Harrison and others v. Henry Nixon, in the ninth volume of Mr Peters's Reports (p. 483, &c.). Upon the mandate in that case being returned to the circuit court, further proceedings were had in conformity thereto; and in the course of those proceedings the questions now propounded to this court upon the certificate arose. They are as follows: \n1. Whether it  is necessary that an affidavit be made to the pleas in bar to the petition of John A. Brown, or to any part thereof; and if so, to what part? \n2. Whether the rule moved for by Mr Ingersoll and Mr Sergeant, on the 14th day of November 1835, in the following words: \"Mr Sergeant, for John Aspden of Lancashire, moves for a rule on Mrs Poole, and Mrs Jones, and on John A. Brown, administrator of John Aspden of London, to show cause why they should not be required to elect on which petition or bill they will proceed; and to abide by the election and abandon the other: Mr J. R. Ingersoll, for the executor Mr Nixon, makes the same motion as Mr Sergeant:\" ought to to be granted? \nWe are of opinion that the questions are not of such a nature as are contemplated to be certified to this court, under the act of 1802, ch. 32.They are questions respecting the practice of the court in equity  causes; and depend upon the exercise of the sound discretion of the court, in the application of the rules which regulate the course of equity proceedings to the circumstances of each particular case. But it is to be understood, that in the present case this general discretion is subject to the former  order of this court in regard to the making of parties, and other proceedings contained in the mandate; when the cause was remanded at the last January term of this court, as stated in 9 Peters's Rep. 540. \nWe shall accordingly direct this opinion to be certified to the circuit court. \nThis cause came on to be heard on the transcript of the record from the circuit court of the United States for the district of Pennsylvania; and on a certificate of division in opinion between the judges of the said circuit court upon the following questions: viz. 1st. Whether it is necessary that an affidavit be made to the pleas in bar to the petition of John A. Brown, or to any part thereof; and if so, to what part? 2d. Whether the rule moved for by Mr Ingersoll and Mr Sergeant, on the 14th day of November 1835, in the following words: \"Mr Sergeant, for John Aspden of Lancashire, moves for a rule on Mrs Poole and Mrs Jones, and on John A. Brown, administrator of John Aspden of London, to show cause why they should not be required to elect on which petition or bill they will proceed, and to abide by the one elected and abandon the other: Mr J. R. Ingersoll, for the executor Mr Nixon, makes the same  motion as Mr Sergeant.\" And these questions were argued by counsel; on consideration whereof, it is the opinion of this court that neither of these questions is of such a nature as are contemplated to be certified to this court under the act of the 29th of April 1802, ch. 32. That they are questions respecting the practice of the court in the application of the general rules which regulate the course of equity proceedings to the circumstances of each particular case; and therefore this court have no jurisdiction to answer the same. But it is to be understood, that in the present case this general discretion is subject to the former order of this court in regard to the making of parties, and other proceedings contained in the mandate, when the cause was remanded at the last January term of this court. It is therefore ordered and adjudged that this opinion be certified to the said circuit court; and that the cause be remanded for further proceedings. \n \n\n ", " \nOpinion \n\n \n \n  Mr Justice STORY delivered the opinion of the Court. \nA motion has been made to allow an amendment of the record of this case, by inserting an allegation of the citizenship of the parties; and to reinstate this cause on the docket under the following circumstances: The cause came before this court at the January term 1834; and, as will be found in the eighth volume of Mr Peters's Reports, pp. 148, 149, was then reversed for want of jurisdiction of the circuit court by reason of the omission to allege that the parties were citizens of different states: the appeal to this court was dismissed; and the decree of this court was ordered to be certified to the circuit court. \nWe are of opinion, that under these circumstances, the record cannot be amended, or the cause reinstated in this court. It would, in effect, be a reversal of the former decree of this court. We have no power over the decrees rendered by this court after the term has  passed, and the cause has been dismissed, or otherwise finally disposed  of here. \n But in our opinion, there is no difficulty in making the proposed amendment in the circuit court; if that court shall see fit, in its discretion, to allow it to be done. The cause may then be re-heard there; and upon the decree newly rendered, an appeal can then be taken to this court; or a decree may be there rendered by consent of the parties, in order to enter the cause without any delay to this court. \nThis court, in rendering its former decree, had no authority (not having any jurisdiction, but to reverse for the want of jurisdiction of the circuit court) to send the cause back for further proceedings, with liberty to amend the bill. But the mandate was not understood by us to apply, except to the record in its then state; and we entertain no doubt, that notwithstanding any thing in the former decree of reversal; it is entirely competent for the circuit court, in their discretion, to allow the amendment now proposed to be made, and to reinstate the cause in that court. But we have no authority in the matter. The motion is, therefore, overruled. \n \n\n ", " \nOpinion \n\n \n \n  Mr Justice STORY delivered the opinion of the Court. \nThis is a writ of error to the circuit court of the District of Columbia for the county of Washington. \nKownslar brought the original action in November 1832, against Clarke, upon the following letter of guarantee: \"Mill creek, Virginia. Conrad Kownslar: Dear sir, if you will make James Miles of this city your agent, as you intimated to him, I will see your money paid in due course of sales. He asks five per cent commission; and will take all intended for this market.  He wishes an answer. Your obedient servant, Matthew St Clair Clarke. Washington, the 27th of September 1828.\" Kownslar received the letter; and sent paper accordingly to Miles, between November 1828 and December 1829; amounting (as the declaration avers) to the value of 8396 dollars and 75 cents, part of which paper was afterwards returned: and upon the sales of the residue there remains due and unpaid (as the declaration avers) to Kownslar, the sum of 4238 dollars and 62 1/2 cents, after deducting commissions: to recover which sum the action was brought. \n At the trial, upon the general issue, a verdict was found for the plaintiff, upon which judgment was rendered in his favour; and the present writ of error is brought to revise that judgment. Two bills of exceptions were taken, the second only of which is now before the court for consideration; excepting only so far as the evidence contained in the first is referred to in the latter. It appears from these bills of exceptions, that, at the trial, the plaintiff offered in evidence the letter of guarantee; and then the testimony of Miles, who proved that he was a commission merchant in the city of Washington for the  sale of paper and other articles of stationary; that he received consignments of such articles from several persons, who were not in any manner secured or guarantied by any persons for their consignments; and also, further testified, that after the said letter was written, the plaintiff sent sundry packages of paper to him for sale; and that before he sent the same, he informed Miles that he had received the said letter from the defendant, and should send it. On cross-examination, he further proved a letter (dated November 4th, 1828) accompanying the packages first sent;  and also, certain articles of agreement entered into between Clarke and the witness (dated the 1st of October 1828); both of which papers are in the record; and that, after the said paper was received from the plaintiff by Miles, the defendant (Clarke) knew of it; and was then, and afterwards, in the habit of inspecting the books kept by the witness, in which the paper, as received by the witness from the plaintiff, and the sales made thereof from time to time, as the same was received and sold, were entered. He further testified, that on the 28th of April 1830, he terminated his business as such commission  merchant; made a general assignment of all his stock, books, &c. to the defendant, who took possession under the same of various articles then in the store of Miles; but never did take possession of, or exercise any control over the paper so lying in his said store belonging to the plaintiff; but the same was delivered to, and received by the plaintiff. The assignment was then introduced. \nThese are all the facts stated in the first bill of exceptions. The second proceeded to state, that after the testimony so given, the plaintiff proved, by Miles, that the usage and practice of commission merchants in the city of Washington was to sell either on credit or cash the articles consigned. But that as soon as the proceeds of sales are received by such commission merchant, he at once becomes responsible to the consignor for the proceeds, and is not entitled to any  credit for the same. He further gave in evidence the books of Miles, and two certain drafts for 1000 dollars each, with the indorsements and protests of the same. Each of these drafts was dated at Mill creek, October 31st, 1829, drawn on Miles, and payable to the order of Lewis Hoff, Esq. cashier; one in ten days  after date, the other in thirty days after sight, and were each accepted by Miles on the 5th of November of the same year. \nThe plaintiff further offered to prove by Miles, and he testified, that when he accepted these drafts he had no funds from the collection of sales of the plaintiff's paper; but accepted the same in expectation of making such collections, which, however, he was not able to make. The defendant then gave in evidence certain letters of the plaintiff to Miles, dated on the 13th of May, and the 17th of October 1829. The first letter, after speaking of paper sent, and of other paper of the plaintiff on hand, &c., added: \"you will please to send me a check for the amount you advised I should draw on you for at thirty days. By so doing you will have eight to ten days after date till it will be presented for pay.\" The second, after asking for information by the bearer, how Miles comes on with the sale of his paper, &c. added: \"my draft, I presume, will be presented soon. I hope you will not suffer it to be returned.\" The plaintiff then read to the jury the account between him and Miles, showing the amount claimed in the suit. \nThe defendant's counsel then prayed the  court to instruct the jury as follows: that if they shall believe from the said evidence, that according to the ordinary usage of the business of commission merchants in the city of Washington, in which Miles was engaged and in which he acted in receiving, selling and accounting for the paper consigned to him, no credit was allowed or given to such commission merchant; and that without the knowledge, privity or consent of the said defendant, the plaintiff drew upon Miles for the sums of money which he had received as the proceeds of said sales of his paper, so made by Miles, which drafts were payable at distant days or periods: that then such drafts, so drawn as aforesaid and accepted by Miles, payable according to their tenor, amount to a credit given by the plaintiff to Miles; and that such credit, so given, constitutes a new agreement and discharges the defendant from his liability on his said letter of guarantee. The court refused to give the instruction as prayed; and to this refusal the defendant excepted:  and the propriety of this refusal constitutes the sole point for our consideration. \nWe give no opinion upon the instruction, as matter of law, because we are  of opinion that there was no evidence whatsoever before the jury, which called upon the court to give it; and that upon this account it was properly refused. There was no proof before the jury that Miles, at the time of the acceptance of the drafts, had any money in his hands, which he had received as the proceeds of the sales of the paper of the plaintiff. The drafts, being payable at future times, the mere acceptance of them by Miles, did not establish any such fact; for it is a known and ordinary course of business for such acceptances to be made, not only when the acceptor has funds in his hands, but also when funds are expected to be received by him before the maturity of the drafts; and indeed often, for the accommodation of the drawers when the acceptor, being a commission merchant, has the property on hand, out of the sales of which he expects to reimburse himself for the advance. The theory of the law, which supposes the acceptor to have funds of the drawer in his hands, is a theory mainly intended for the security of third persons, and leaves the transaction to be judged of between the parties themselves, according to the ordinary course of business between them. But  without resorting to these considerations, the fair presumption would seem to be, in cases like the present, that drafts drawn payable at future periods, were designed to reach funds not yet received, but to be received at the maturity of the bills. The present case, however, does not stand upon presumptions. Here is positive proof from Miles (who seems to have been the only witness in the case), that at the time he accepted the bills he had no funds in his hands, but that he expected to make collections, which however he did not make. And the written documents in no shape shake his testimony. Indeed, a part of the very instruction, as framed, seems founded upon the credibility of that testimony. So that we do not perceive how, consistently with the rules of law, the instruction could be given; as there was no evidence before the jury conducing to prove the facts on which it was founded. \nThe judgment is therefore affirmed, with six per cent damages and costs. \nThis cause came on to be heard on the transcript of the record  from the circuit court of the United States for the District of Columbia, holden in and for the county of  Washington, and was argued  by counsel; on consideration whereof, it is adjudged and ordered by this court, that the judgment of the said circuit court in this cause be, and the same is hereby affirmed, with costs and damages at the rate of six per centum per annum. \n \n\n ", "Opinion by:  STORY \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the Court. \nThis is a case certified from the circuit court for the district of Maine, upon a division of opinion of the judges of that court, upon certain questions which arose in the progress of the trial of the cause. These questions were certified to this Court at the last term, upon the motion of the plaintiff. On the 15th of December last, the plaintiff filed in the clerk's office of the circuit court, (it being vacation,) a written declaration, as follows: -- \"I hereby notify you that the action of trespass, which is now pending in said court, to await the decision of certain questions carried up to the Supreme Court, is discontinued by me; and that the same disposition will be made of the case in the Supreme Court at Washington, as soon as it meets at Washington. You will therefore please to file this in the case, and notify the counsel for the defendants of the same, and that their legal costs in the said circuit court may be immediately made up, and the same will be paid.\" Due notice was accordingly given to the counsel of the defendants; and the counsel for the plaintiff have accord ingly,  at the present term, made a motion in this Court, under these circumstances, to discontinue the cause here, and to withdraw the record. The motion is resisted on the other side, upon the ground that the defendants have an interest in having these certified questions decided by this Court; of which they cannot be deprived without their own consent, by the dismissal of the cause. \nThe point is confessedly new, and we have therefore thought it right, after the argument, to give it full consideration, with reference to the future practice of the Court. \n The act of 1802, ch. 31, sec. 6, under which this case has been certified, provides, \"That whenever any question shall occur before a circuit court, upon which the judges shall be opposed, the point upon which the disagreement shall happen, shall, during the same term, upon the request of either party, or their counsel, be stated, under the direction of the judges; and certified, under the seal of the court, to the Supreme Court, at their next session to be held thereafter, and shall, by the said Court, be finally decided. And the decision of the Supreme Court, and their order in the premises, shall be remitted to the circuit  court, and be there entered on record, and shall have effect according to the nature of the said judgment and order; provided, however, that nothing herein contained shall prevent the cause from proceeding, if, in the opinion of the court, further proceedings can be had without prejudice to the merits.\" \nIn construing a statute providing for such a novel mode of obtaining the decision of an appellate court upon the matters of controversy between the parties, it is not surprising that there should be some difficulty in ascertaining the precise rights of the parties; whether the party upon whose motion the questions are brought here, is to be treated like a plaintiff in error, as entitled to dismiss his own certified cause at his pleasure; or whether the other party is entitled to retain the cause for his own benefit, and to insist upon a final adjudication of the questions here. It is clear that the statute does not, upon the certificate of division, remove the original cause into this Court; on the contrary, it is left in the possession of the court below for the purpose of further proceedings, if they can be had without prejudice to the merits; so that, in effect, the certified questions  only, and not the original cause, are removed to this Court. In the next place, looking to the intent and objects of the provision, which are to enable the court below to proceed to a final adjudication of the merits of the cause, it seems equally clear, that if the original cause is entirely withdrawn from the cognisance of the circuit court by discontinuance, or otherwise, there is no ground upon which this Court should be required to proceed to decide the certified questions, since they are thus become mere abstract questions. They are but incidents to the original cause, and ought to follow the fate of their principal. We have no doubt, then, that upon the true construction of the statute, if a discontinuance had been actually entered in the circuit court of Maine, in term, the record here ought not further to be acted upon by us: but a withdrawal or dismissal of the certified questions  ought to be allowed. If it were necessary to accomplish this object in the most formal way, we should order the case to stand continued until the next term of this Court; so that the plaintiff might, in the intermediate time, make an application to the circuit court in term, to enter  a discontinuance thereof in that court. \nThe only point of difficulty is, whether the filing of the above paper in the circuit court, in vacation, constitutes, per se, a discontinuance of the original cause; without any action of the circuit court thereon, upon which this Court ought now to act. According to the practice of some of the courts in the Union, it is understood to be the right of the plaintiff to enter a discontinuance of the cause at any time, either in term or in vacation, upon the payment of costs, before a verdict is given, without any formal assent of, or application to, the court; and that thereupon the cause is deemed, in contemplation of law, to be diseontinued. In Massachusetts and Maine, a different practice is understood to prevail; and the discontinuance can only be in term, and is generally upon application to the court. In many cases, however, in these states, it is a matter of right. In  Haskell v. Whitney, 12 Mass. R. 49, 50, this doctrine was expressly recognised. The court, on that occasion, said: \"The plaintiff or demandant may, in various modes, become nonsuit, or discontinue his cause at his pleasure. At the beginning of every term  at which he is demandable, he may neglect or refuse to appear. If the pleadings are not closed, he may refuse to reply, or to join an issue tendered; or after issue joined, he may decline to open his cause to the jury. The court also may, upon sufficient cause shown, allow him to discontinue, even when it cannot be claimed as a right, or after the cause is opened and submitted to the jury.\" Before trial, then, the plaintiff may, in many cases, as a matter of right, discontinue his cause according to the practice of the state courts; at any time when he is demandable in court. After a trial or verdict, he can do so only by leave of the court, which it may grant or refuse, in its discretion. But, under ordinary circumstances, before verdict, it is almost a mater of course to grant it upon payment of costs, when it is not strictly demandable of right. \nUnder the circumstances of the present case, we have no doubt that the plaintiff is estopped, hereafter, to withdraw his assent to the discontinuance of his suit in the circuit court; and that that court possesses full authority to enter such discontinuance at its next term, upon the mere footing of the paper filed in the clerk's office,  without  any further act of the plaintiff. We think, too, that it would be the duty of that court to allow the entry of such discontinuance, upon the application of the plaintiff; as he certainly has a right, in that or some other form, to decline to proceed further in the suit, or to prosecute it further, subject to the payment of costs to the defendants. In substance, then, we think the original cause in the circuit court ought now to be treated by us as virtually at an end, for all the purposes of requiring our decision upon the certified questions; and that the motion to withdraw the record, and discontinue the case, ought to be granted. \nIn making this decision, we wish to be understood as not meaning to intimate that the party, upon whose motion any questions are certified to this Court under the statute, has a right, generally, to withdraw the record, or discontinue the case here; while the original cause is retained in the circuit court for ulterior proceedings. That is a point of a very different nature from that now before us, and may require very different principles to govern it. It will be sufficient to decide it, when it shall arise directly in judgment. \n On consideration of the motion made in this cause, on a prior day of the present term of this Court, to wit: Thursday, the 12th inst. by Mr. Smith, of counsel for the plaintiff, to dismiss this cause, and of the arguments thereupon had, as well in support of as against the motion, it is now here considered by the Court, that said motion be, and the same is hereby granted. Whereupon it is now here ordered and adjudged by this Court, that this cause be, and the same is hereby dismissed. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the Court. \nThis is the case of a writ of error to the judgment of the circuit court of the United States for the district of West Tennessee. The original writ was an ejectment; brought by Fleeger and others, (th now defendants in error,) against Poole and others, (the now plaintiffs in error,)  to recover a tract of land containing 2,727 acres in Montgomery county, in Tennessee, lying south of Walker's line, so called; which constitutes the present boundary line between the states of Kentucky and Tennessee; and north of Mathew's line, so called, which is exactly now in latitude 36 degrees 30' north; which by the constitution of North  Carolina, is declared to be the true northern boundary line of the state, and is so described in the charter of King Charles the 2d. \nAt the trial, the original plaintiffs proved their title to be as devisees of one Frederick Rohrer, who claimed it by a grant of the state of Kentucky, dated the 24th of February, 1796, in part satisfaction of a Virginia military land warrant, held by Rohrer as assignee  of one John Montgomery. They also read, in evidence, the compact between the states of Kentucky and Tennessee, of the second of February, 1820. The defendants claimed title under certain grants from the state of North Carolina of various tracts comprehending the premises in question, dated in 1786, 1792, and 1797; and also under certain grants from the state of Tennessee in 1809, 1811, 1812 and 1814, from which they deduced  a regular title to themselves; and they proved that the same grants covered their possessions respectively, except that each of the defendants, whom the jury at the trial found guilty of the ejectment, were in possession of portions of land not covered by any grant, older in date than that to Rohrer. The defendants also proved that the different grantees under whom they claimed, took possession of the different tracts of land contained in their grant, on or about the date thereof; and that they and those deriving title under them, have continued in the possession of the same ever since. \nVarious other evidence was introduced by the defendants, the object of which was to establish that Walker's line had been for a long time acted upon as the boundary line between North Carolina and Virginia, before the separation of Kentucky and Tennessee therefrom; and that after that separation Tennessee had continued to exercise exclusive jurisdiction up to that line, with the acquiescence of Kentucky, until the compact of 1820. As our judgment turns upon considerations distinct from the nature and effect of that evidence, it does not seem necessary to repeat it on the present occasion. \nBy the  compact of 1820, between Kentucky and Tennessee, (art. 1,) it was agreed that Walker's line (which was run in 1780) should be the boundary line between those states; and by the sixth article it was further agreed that \"claims to land east of Tennessee river, between Walker's line and the latitude of 36 degrees 30' north, derived from the state of Virginia, in consideration of military services, shall not be prejudiced in any respect, by the establishment of Walker's line; but such claims shall be considered as rightfully entered or granted; and the claimants may enter upon said lands, or assert their rights in the courts of justice without prejudice by lapse of time, of from any statute of limitations for any period prior to the settlement of the boundary between the two states; saving, however, to the holders and occupants of conflicting claims, if any there be, the right of showing such entries or grants to be invalid, and of no effect; or that they have paramount and supericr titles to the land covered by such  Virginia claims.\" By another article (the 4th) it was further agreed that, \"all lands now vacant and unappropriated by any person, claiming to hold under the states  of North Carolina or Tennessee, east of the Tennessee river, and north of the parallel of latitude of 36 degrees 30 minutes north; shall be the property of and subject to the disposition of the state of Kentucky.\" \nUpon the whole evidence in the cause, the court instructed the jury, \"that as by the compact between Kentucky and Tennessee, the boundary line of thirty-six degrees thirty minutes north, was fixed several miles south of Walker's line, and of the land in controversy; the titles of the defendants were subject to the compact, and could only be sustained under it. That the state of Tennessee, by sanctioning the compact, admitted in the most solemn form that the lands in dispute were not within her jurisdiction, nor within the jurisdiction of North Carolina at the time they were granted; and that, consequently, the titles were subject to the conditions of the compact.\" To this opinion of the court the defendants excepted; and the validity of this exception constitutes the main subject of inquiry upon the present writ of error; the jury having found a verdict in favour of the plaintiffs upon this opinion, and judgment having been rendered in conformity thereto in the court below. \n We are of opinion that the instruction given by the court below is entirely correct. It cannot be doubted, that it is a part of the general right of sovereignty, belonging to independent nations, to establish and fix the disputed boundaries between their respective territories; and the boundaries so established and fixed by compact between nations, become conclusive upon all the subjects and citizens thereof, and bind their rights; and are to be treated, to all intents and purposes, as the true and real boundaries. This is a doctrine universally recognised in the law and practice of nations. It is a right equally belonging to the states of this Union; unless it has been surrendered under the constitution of the United States. So far from there being any pretence of such a general surrender of the right, that it is expressly recognised by the constitution, and guarded in its exercise by a single limitation or restriction, requiring the consent of congress. The constitution declares, that \"no state shall; without the consent of congress, enter into any agreement or compact with another state;\" thus plainly admitting that, with such consent, it might be done: and in the present  instance, that consent has been expressly given. The compact, then, has full validity, and all the  terms and conditions of it must be equally obligatory upon the citizens of both states. \nIndependently of this broad and general ground, there are other ingredients in the present case equally decisive of the merits. Although, in the compact, Walker's line is agreed to be in future the boundary between the two states, it is not so established as having been for the past the true and rightful boundary; on the contrary, the compact admits the fact to be the other way. While the compact cedes to Tennessee the jurisdiction up to Walker's line, it cedes to Kentucky all the unappropriated lands north of the latitude of thirty-six degrees thirty minutes north. It thus admits, what is in truth undeniable, that the true and legitimate boundary of North Carolina  is in that parallel of latitude; and this also is declared in the charter of Charles the second, and in the constitution of North Carolina, to be its true and original boundary. It goes farther and admits that all claims under Virginia to lands north of that boundary, shall not be prejudiced by the establishment  of Walker's line; but such claims shall be considered as rightfully entered or granted. The compact does, then, by necessary implication, admit that the boundary between Kentucky and Tennessee, is the latitude of thirty-six degrees thirty minutes; and that Walker's line is to be deemed the true line, only for the purpose of future jurisdiction. \nIn this view of the matter it is perfectly clear that the grants made by North Carolina and Tennessee, under which the defendants claimed, were not rightfully made, because they were originally beyond her territorial boundary; and that the grant, under which the claimants claim, was rightfully made, because it was within the territorial boundary of Virginia. So that upon this narrower ground, if it were necessary, as we think it is not, to prove the case, it is clear that the instruction of the court was correct. \nAnd this disposes of the argument which has been pressed upon us, that it is not competent for a state, by compact, to divest its citizens of their titles to land derived from grants under the state; and that it is within the prohibition of the constitution, that \"no state shall pass any law impairing the obligation of contracts.\"  If the states of North Carolina and Tennessee could not rightfully grant the land in question, and the states of Virginia and Kentucky could, the invalidity of the grants of the former arises, not from any violation of the obligation of the grant, but from an intrinsic defect of title in the states. We give no opinion, because it is unnecessary in  this case, whether this prohibition of the constitution is not to be understood as necessarily subject to the exception of the right of the states, under the same constitution, to make compacts with each other; in order to settle boundaries and other disputed rights of territory and jurisdiction. \nIn the progress of the trial one or two other objections were made, which may require some notice. The defendants objected to the introduction of the will of Frederick Rohrer, under which the plaintiffs claimed as devisees, as evidence; first, because the probate and certificate of that will (it having been made and proved in Pennsylvania) were not such as to authorize its registration in the state of Tennessee; secondly, because the will was not registered in the state of Tennessee, until after the institution of this suit. The court  overruled the objection. But it does not appear that any exception was taken to the opinion of the court upon this point, at the trial. On the contrary, the record states, that \"no exception to the opinion of the court permitting the will to be read was taken in the progress of the trial, nor was it stated that the right to do so was reserved. The practice of the court is, for exceptions to be taken after trial, if deemed necessary.\" Under these circumstances, some difficulty has arisen as to the propriety of taking any notice whatsoever of this objection. In the ordinary course of things at the trial, if an objection is made and overruled as to the admission of evidence, and the party does not take any exception at the trial, he is understood to waive it. The exception need not, indeed, then, be put into form, or written out at large and signed; but it is sufficient that it is taken, and the right reserved to put it into form, within the time prescribed by the practice or rules of the court. We do not find any copy of the will or any probate or certificate thereof in the record, or any registration thereof; and it is, therefore, impossible for us to say, whether the ground assumed  in the first part of the objection is well founded or not. This leads us strongly to the inference, that the objection was intentionally waived at the trial. The second ground is clearly unmaintainable; for, if the registration was rightfully made in Tennessee, it has relation backwards; and the time of the registration is wholly immaterial, whether before or after the institution of the suit. \nAnother objection made by the defendants at the trial was to the evidence of title offered by the lessors of the plaintiff, upon the ground that this title was a tenancy in common, which would not in  law support a joint demise. This objection was overruled, with an intimation that the point would be considered on a motion for a new trial. No exception was taken to this ruling of the court; and the new trial was, upon the motion, afterwards refused. The party not taking any exception, and acquiescing in the intimation of the court, must be understood to waive the point as a matter of error; and to insist upon it only as a matter for a new trial. But it is unnecessary to decide the point upon this ground; for, in the state of Tennessee, the uniform practice has been, for tenants  in common in ejectment, to declare on a joint demise, and to recover a part or the whole of the premises declared for, according to the evidence of title adduced. This was expressly decided by the court in Barrow's Lessee v. Nave, 2 Yerger's Rep. 227, 228; and on that occasion the court added that this practice had never been drawn in question as far as they knew, or could ascertain; and in fact no other probably could be permitted after the act of 1801, ch. 6. sec. 60, which provided, \"that after issue joined in any ejectment on the title only, no exceptions to form or substance shall be taken to the declaration in any court whatever.\" \nThe judgment of the circuit court is therefore affirmed, with costs. \nThis cause came on to be heard on the transcript of the record from the circuit court of the United States for the district of West Tennessee, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this Court, that the judgment of the said circuit court in this cause be, and the same is hereby affirmed, with costs. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the Court. \nThis is a case certified to us from the circuit court for the district of Kentucky upon certain questions upon which the judges of that court were opposed in opinion. \nThe action was brought by Waters, the plaintiff, on a policy of insurance underwritten by the Merchants'  Louisville Insurance Company, whereby they insured and caused to be insured, the plaintiff \"lost or not lost, in the sum of 6000 dollars, on the steamboat Lioness, engine, tackle, and furniture, to navigate the western waters usually navigated by steamboats, particularly from New Orleans to Natchitoches on Red river, or elsewhere, the Missouri and Upper Mississippi excepted; (captain Waters having the privilege of placing competent masters in command at any time, 6000 dollars being insured at New Albany, Indiana) whereof William Waters is at present master; beginning the adventure upon the said steamboat, from the 12th of September, 1832, at twelve o'clock meridian, and to continue and endure until the 12th of September, 1833, at twelve o'clock, meridian (twelve months).\" The policy further  provided, that \"It shall be lawful for the said steamboat, during said time, to proceed to, touch and stay at, any point or points, place or places, if thereunto obliged by stress of weather or other unavoidable accidents, also at the usual landings for wood and refreshments, and for discharging freight and passengers, without prejudice to this insurance. Touching the adventures and  perils, which the aforesaid insurance company is contented to bear; they are, of the rivers, fire, enemies, pirates, assailing thieves, and all other losses and misfortunes, which shall come to the hurt, detriment, or damage of the said steamboat, engine, tackle, and furniture, according to the true intent and meaning of this policy.\" The premium was nine per cent. The declaration avers a total loss; and that the said steamboat and appertenances insured, \"were, by the adventures and perils of fire and the river, exploded, sunk to the bottom of Red river aforesaid, and utterly destroyed.\" \nThe defendants pleaded six several pleas, to which a demurrer was put in by the plaintiff; and in the consideration of the demurrer, the following questions and points occurred: \n1. Does the policy cover a loss of the boat by a fire, caused by the barratry of the master and crew? \n2. Does the policy cover a loss of the boat by fire, caused by the negligence, carelessness, or unskilfulness of the master and crew of the boat, or any of them? \n3. Is the allegation of the defendants in their pleas, or either of them, to the effect that the fire, by which the boat was lost, was caused by the carelessness,  or the neglect, or unskilful conduct of the master and crew, a defence to this action? \n4. Are the said pleas, or either of them, sufficient? \nThese questions constituted the points on which the decision of the judges took place in the court below; and they are those upon which we are now called to deliver our opinion upon the argument had at the bar. \nAs we understand the first question, it assumes  that the fire was directly and immediately caused by the barratry of the master and crew, as the efficient agents; or, in other words, that the fire was communicated and occasioned by the direct act and agency of the master and crew, intentionally done from a barratrous purpose. In this view of it, we have no hesitation to say, that a loss by fire caused by the barratry of the master or crew, is not a loss within the policy. Such a loss is properly a loss attributable to the barratry, as its  proximate cause, as it concurs as the efficient agent, with the element, eo instanti, when the injury is produced. If the master or crew should barratrously bore holes in the bottom of the vessel, and the latter should thereby be filled with water and sink, the loss would  properly be deemed a loss by barratry, and not by a peril of the seas or of rivers, though the flow of the water should co-operate in producing the sinking. \nThe second question raises a different point, whether a loss by fire, remotely caused by the negligence, carelessness, or unskilfulness of the master and crew of the vessel, is a loss within the true intent and meaning of the policy. By unskilfulness, as here stated, we do not understand in this instance, a general unskilfulness, such as would be a breach of the implied warranty of competent skill to navigate and conduct the vessel; but only unskilfulness in the particular circumstances remotely connected with the loss. In this sense, it is equivalent to negligence or carelessness in the execution of duty, and not to incapacity. \nThis question has undergone many discussions in the courts of England and America, and has given rise to opposing judgments in the two countries. As applied to policies against fire on land, the doctrine has for a great length of time prevailed, that losses occasioned by the mere fault or negligence of the assured or his servants, unaffected by fraud or design, are within the protection of the policies;  and as such recoverable from the underwriters. It is not certain upon what precise grounds this doctrine was originally settled. It may have been from the rules of interpretation applied to such policies containing special exceptions, and not excepting this; or it may have been, and more probably was founded upon a more general ground, that as the terms of the policy covered risks by fire generally, no exception ought to be introduced by construction, except that of fraud of the assured, which, upon the principles of public policy and morals, was always to be implied. It is probable, too, that the consideration had great weight, that otherwise such policies would practically be of little importance, since, comparatively speaking, few losses of this sort would occur which could not be traced back to some carelessness, neglect, or inattention of the members of the family. \nBe the origin of it, however, what it may, the doctrine is now firmly established both in England and America. We had occasion to consider and decide the point at the last term, in the case of the  Columbia Insurance Company of Alexandria v. Lawrence, 10 Peters' R. 517, 518; which was a policy against  the risk of fire on land. The argument addressed to us on that occasion, endeavoured to establish the proposition, that there was no real distinction between policies against fire on land and at sea; and that in each case the same risks were included: and that as the risk of loss by fire occasioned by negligence was not included in a marine policy, unless that of barratry was also contained in the same policy, it followed, that as the latter risk was not taken on a land policy, no recovery could be had. In reply to that argument, the court made the comments which have been alluded to at the bar, and the correctness of which it becomes now necessary to decide. \nIt is certainly somewhat remarkable, that the question now before us should never have been directly presented in the American or English courts; viz. whether, in a marine policy, (as this may well enough be called) where the risk of fire is taken, and the risk of barratry is not, (as is the predicament of the present case) a loss by fire, remotely caused by negligence, is a loss within the policy. But it is scarcely a matter of less surprise, considering the great length of time during which policies against both risks have  been in constant use among merchants; that the question of a loss by negligence in a policy against both risks, should not have arisen in either country until a comparatively recent period. \nIf we look to the question upon mere principle, without reference to authority, it is difficult to escape from the conclusion, that a loss by a peril insured against, and occasioned by negligence, is a loss within a marine policy; unless there be some other language in it, which repels that conclusion. Such a loss is within the words, and it is incumbent upon those who seek to make any exception from the words, to show that it is not within the intent of the policy. There is nothing unreasonable, unjust, or inconsistent with public policy, in allowing the insured to insure himself against all losses from any perils not occasioned by his own personal fraud. It was well observed by Mr. Justice Bayley, in delivering the opinion of the court in Bush v. The Royal Exchange Assurance Company, 2 Barn. and Ald. 79; after referring to the general risks in the policy; that \"the object of the assured, certainly, was to protect himself against all the risks incident to a marine adventure. The underwriter  being therefore liable, prima facie, by the express terms of the policy, it lies upon him to discharge himself. Does he do so by showing that the  fire arose from the negligence of the master and mariners?\" \"If, indeed, the negligence of the master would exonerate the underwriter from responsibility, in case of a loss by fire; it would also in cases of a loss by capture, or perils of the sea. And it would, therefore, constitute a good defence in an action upon a policy, to show, that the captain had misconducted himself in the navigation of the ship, or that he had not resisted an enemy to the utmost of his power.\" There is great force in this reasoning, and the practical inconvenience of carving out such an implied exception from the general peril in the policy, furnishes a strong ground against it; and it is to be remembered, that the exception is to be created by construction of the court, and is not found in the terms of the policy. The reasons of public policy, and the presumption of intention  in the parties to make such an exception, ought to be very clear and unequivocal, to justify the court in such a course. So far from any such policy or presumption  being clear and unequivocal, it may be affirmed that they lean the other way. The practical inconvenience of creating such an exception would be very great. Lord Tenterden alluded to it in Walker v. Maitland, 5 Barn. & Ald. 174. \"No decision (said he) can be cited, wherein such a case (the loss by a peril of the sea,) the underwriters have been held to be excused in consequence of the loss having been remotely occasioned by the negligence of the crew. I am afraid of laying down any such rule. It will introduce an infinite number of questions, as to the quantum of care, which, if used, might have prevented the loss. Suppose, for instance, the master were to send a man to the mast head to look out, and he falls asleep, in consequence of which the vessel runs upon a rock, or is taken by the enemy; in that case it might be argued, as here, that the loss was imputable to the negligence of one of the crew, and that the underwriters are not liable. These, and a variety of other such questions, would be introduced, in case our opinion were in favour of the underwriters.\" His lordship might have stated the argument from inconvenience, even in a more general form. If negligence of the  master or crew, were under such circumstances a good defence, it would be perfectly competent and proper to examine on the trial any single transaction of the whole voyage, and every incident of the navigation of the whole voyage, whether there was due diligence in all respects, in hoisting or taking in sail, in steering the course, in trimming the ship, in selecting the route, in stopping in port, in hastening or retarding the operations of the  voyage; for all these might be remotely connected with the loss. If there had been more diligence, or less negligence, the peril might have been avoided or escaped, or never encountered at all. Under such circumstances, the chance of a recovery upon a policy for any loss, from any peril insured against, would of itself be a risk of no inconsiderable hazard. \nThis is not all: we must interpret this instrument according to the known principles of the common law. It is a well established principle of that law, that in all cases of loss we are to attribute it to the proximate cause, and not to any remote cause: causa proxima non remota spectatur: and this has become a maxim, not only to govern other cases; but, (as will be presently  shown) to govern cases arising under policies of insurance. If this maxim is to be applied, it disposes of the whole argument in the present case; and why it should not be so applied we are unable to see any reason. \nLet us now look to the authorities upon the point. In Busk v. The Royal Exchange Assurance Company, 2 Barn. & Ald. R. 73, the very point came before the court. The policy covered the risk by fire, and the question made was, whether the fact that the loss of the ship by fire, occasioned by the negligence of the crew, was a good defence. The court held that it was not. In that case the policy also included the risk of barratry; and it is now said that the decision of the court turned wholly upon that consideration, the court being of opinion, that in a policy, where the underwriter takes the superior risk of barratry, there is no ground to infer that he does not mean to take the inferior risk of negligence: it is certainly true that the court do rely in their judgment upon this circumstance; and it certainly does fortify it. But there is no reason to say, that the court wholly relied upon it, and that it constituted the exclusive ground of the judgment; on the contrary,  Mr. Justice Bayley, in delivering the opinion, takes pains in the earlier part of that opinion to state, and to rely upon the maxim already stated. He said, \"in our law, at least, there is no authority which says that the underwriters are not liable for a loss, the proximate cause of which is one of the enumerated risks; but the remote cause of which may be traced to the misconduct of the master and mariners.\" \"It is certainly a strong argument against the objection now raised for the first time, that in the great variety of cases upon marine policies, which have been the subjects of litigation in courts of justice, (the facts of many of which must have presented a ground for such a defence)  no such point has ever been made.\" In Walker v. Maitland, 5 Barn. and Ald. 173, a similar question was presented, where the maxim was still more strongly indicated, as the general, though not as the exclusive ground of the judgment: the case of Bishop v. Pentland, 7 Barn. and Cresw. 219, turned exclusively upon the very ground of the maxim; and not a single judge relied upon the policy, as containing the risk of barratry. Indeed, it does not appear that the risk of barratry was, in  that case, in the policy. Mr. Justice Bayley, on that occasion, put the former cases as having been expressly decided upon this maxim. His language was, \"the cases of Busk v. The Royal Exchange Assurance Company, and Walker v. Maitland, establish as a principle that the underwriters are liable for a loss, the proximate cause of which is one of the enumerated risks; though the remote cause may be traced to the negligence of the master and mariners.\" \nThen came the case of The Patapsco Insurance Company v. Coulter, 3 Peters' R. 222, where the loss was by fire, and barratry also was insured against. The Court on that occasion held, that in such a policy, a loss which was remotely caused by the master or the crew, was a risk taken in the policy; and the doctrine in the English cases already cited, was approved. It is true that the Court lay great stress on the fact that barratry was insured against; but it may also be stated that this ground was not exclusively relied on, for the Court expressly refer to and adopt the doctrine of the English cases, that the proximate and not the remote cause of a loss is to be looked to.It is known to those of us who constituted a part of the Court  at that time, that a majority of the judges were then of opinion for the plaintiff, upon this last general ground, independently of the other. \nIt was under these circumstances, that the case of The Columbia Insurance Company of Alexandria v. Lawrence, 10 Peters' R. 507, came on for argument: and the Court then thought, that in marine policies, whether containing  the risk of barratry or not, a loss whose proximate cause was a peril insured against, is within the protection of the policy; notwithstanding it might have been occasioned remotely by the negligence of the master and mariners. We see no reason to change that opinion; and on the contrary, upon the present argument, we are confirmed in it. \nThe third and fourth questions are completely answered by the reasoning already stated. Those pleas contain no legal defence to the action, in the form and manner in which they are pleaded; and are not sufficient to bar a recovery by the plaintiff. \n Some suggestion was made at the bar, whether the explosion, as stated in the pleas, was a loss by fire, or by explosion merely. We are of opinion, that as the explosion was caused by fire, the latter was the proximate  cause of the loss. The fifth plea turns upon a different ground. It is that the taking of gunpowder on board was an increase of the risk. If the taking of the gunpowder on board was not justified by the usage of the trade, and therefore was not contemplated as a risk by the policy; there might be great reason to contend, that if it increased the risk, the loss was not covered by the policy. But in our opinion the facts are too defectively stated in the fifth plea, to raise the question. \nOur opinion will be certified to the circuit court accordingly. On the first question, in the negative; on the second question, in the affirmative; and on the third and fourth questions, in the negative. \nThis cause came on to be heard on the transcript of the record from the circuit court of the United States for the district of Kentucky, and on the questions and points on which the judges of the said circuit court were opposed in opinion, and which were certified to this Court for its opinion, agreeably to the act of congress in such case made and provided, and was argued by counsel. On consideration whereof, it is the opinion of this Court, 1st, that the policy does not \"cover a loss of the  boat by a fire, caused by the barratry of the master and crew;\" 2d, that the policy does \"cover a loss of the boat by fire, caused by the negligence, carelessness or unskilfulness of the master and crew of the boat, or any of them;\" 3d, that the allegations of the defendants in their pleas, or either of them to the effect that the fire, by which the boat was lost, was caused by the carelessness, or the neglect, or unskilful conduct of the master and crew of the boat, \"is not a defence to this action; and 4thly, that the said pleas, or either of them,\" are not sufficient in law as a bar to the action of the plaintiff. Whereupon it is now here ordered and adjudged by this Court, that it be so certified to the said circuit court. \n \n\n ", "Opinion by:  STORY \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the Court. \nThis is an appeal from the district court of the district of Louisiana. Thomas Phoebus, who is the owner of one-sixth part of the steamboat Orleans, filed a libel on the admiralty side of that court against Forsyth and others, who are the owners of the other five-sixths parts of the same steamboat; alleging himself to be a part owner and master of the steamboat, and that he had been dispossessed by the other owners, who were navigating, trading with, and  using the boat contrary to his wishes; that he wished to have an amicable sale of the boat, but the other owners refused, and were about to send her up the Mississippi on another trip, against his wishes; that the boat then lay at New Orleans, within the ebb and flow of the tide, and within the admiralty jurisdiction of the court: therefore he prayed admiralty process against the boat, and that the boat might be sold, and one-sixth part of the proceeds be paid to him; and that the other partners might account to him for the earnings of the boat to the day of the sale. \nThe appellants, (the claimants and owners of the five-sixths)  appeared, and in their answer admitted the title of the libellant to the one-sixth part. But they denied the jurisdiction of the court, alleging that the boat did not navigate waters where the tide ebbs and flows; but that she navigated only between New Orleans and the interior towns on the Mississippi river, and its tributary waters. They further alleged, that she was not a maritime boat, and was never intended to navigate the high seas. They further answered; and in case their objection to the jurisdiction should be overruled, they alleged certain matters to the merits, upon which it is unnecessary to dwell, as our present judgment will be confined exclusively to the questions of jurisdiction. \nIt seems, that, subsequently, a libel was filed against the same boat by one of her crew, for wages. In that suit Phoebus also filed a claim for wages as master, and for necessaries advanced by him for the boat, while he acted as master. These charges were by the agreement of the parties allowed to be transferred to the present suit; and of course were to be treated as if they had been alleged in the original libel. \nIt may be here proper to state that it is very irregular and against  the known principles of courts of admiralty to allow in a libel, in rem,  and, quasi, for possession, (as the present libel assumes in some sort to be) the introduction of any other matters of an entirely different character; such as an account of the vessel's earnings, or the claim of the part owner for his wages and advances as master. In the first place the admiralty has no jurisdiction at all in matters of account between part owners. In the next place the master, even in case of maritime services, has no lien upon the vessel for the payment of them. So that, in both respects, these matters belong ad alium examen. \nBut to return to the question of jurisdiction; there is no doubt  that the boat was employed exclusively in trade and navigation upon the waters of the Mississippi, and its tributary streams; and that she was not employed or intended to be employed in navigation and trade on the sea, or on tide waters. And the wages of the master, and the advances made by him, for which he now claims recompense out of the proceeds of the steamboat, are on account of voyages made on such interior waters. Under these circumstances the question arises, whether  the district court had jurisdiction, as a court of admiralty, to entertain either the original libel, or the claims in the supplementary proceedings. We shall shortly give our opinions on both points. \nAnd in the first place, in respect to the original libel. The jurisdiction of courts of admiralty in cases of part owners, having unequal interests and shares, is not, and never has been applied to direct a sale, upon any dispute between them as to the trade and navigation of a ship engaged in maritime voyages, properly so called. The majority of the owners have a right to employ the ship in such voyages as they may please; giving a stipulation to the dissenting owners for the safe return of the ship; if the latter, upon a proper libel filed in the admiralty, require it. And the minority of the owners may employ the ship in the like manner, if the majority decline to employ her at all. So the law is laid down in Lord Tenterden's excellent Treatise on Shipping. Abbot on Ship. part 1, chap. 3, sec. 4 to sec. 7. If, therefore, this were a vessel engaged in maritime navigation, the libel for a sale could not be maintained. \nBut the case is that one of a steamboat engaged in maritime  trade or navigation. Though in her voyages she may have touched at one terminus of them, in tide waters, her employment has been, substantially, on other waters. The admiralty has not any jurisdiction over vessels employed on such voyages, in cases of disputes between part owners. The true test of its jurisdiction in all cases of this sort is, whether the vessel be engaged, substantially, in maritime navigation; or in interior navigation and trade, not on tide waters. In the latter case there is no jurisdiction. So that, in this view, the district court had no jurisdiction over the steamboat involved in the present controversy; as she was wholly engaged in voyages on such interior waters. \nSecondly; in respect to the wages and advances claimed by the libellant. They are for services not maritime, and for disbursements not maritime. Under such circumstances the admiralty has no jurisdiction;  for its jurisdiction is limited in matters of contract, to those, and those only, which are maritime. This was expressly decided by this Court in the case of the steamboat Jefferson; 10 Wheat. R. 429; which, substantially, on this point, decides the present case. \nThere is another  ground equally fatal to the claim of the master for wages, which has been already alluded to. By the maritime law the master has no lien on the ship even for maritime wages. A fortiori, the claim would be inadmissible for services on voyages not maritime. \nBut it is said that the law of Louisiana creates a lien in favour of the master of a vessel engaged in voyages like the present: and if so, it may, upon the principles recognised by this Court, in Peyroux v. Howard, &c., 7 Peters R. 343, be enforced in the admiralty. That decision does not authorize any such conclusion. In that case the repairs of the vessel for which the state laws created a lien, were made at New Orleans, on tide waters. The contract was treated as a maritime contract; and the lien under the state laws was enforced in the admiralty, upon the ground that the court, under such circumstances, had jurisdiction of the contract as maritime; and then the lien, being attached to it, might be enforced according to the mode of administering remedies in the admiralty. The local laws can never confer jurisdiction on the courts of the United States. They can only furnish rules to ascertain the rights of parties; and  thus assist in the administration of the proper remedies, where the jurisdiction is vested by the laws of the United States. \nIn this view of the point of jurisdiction, we do not think it necessary to decide whether by the local law of Louisiana, the master had a lien on the steamboat for his wages or not: nor, whether, if such a lien existed by that law, it could be applied to any steamboats not belonging to citizens of that state, for services not rendered in that state. \nUpon the whole, our judgment is, that the district court had no jurisdiction of the libel or its incidents; and, therefore, that the decree of the district court must, upon this ground, be reversed, and a mandate awarded to the district court to dismiss the suit, for want of jurisdiction. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the Court \nThis is a case, certified upon a division of opinion of the judges of the circuit court, for the southern district of New York. The case, as stated in the record, is as follows: \nLawrence Coombs was indicted under the 9th section of the act, entitled \"An act more effectually to provide for the punishment of certain crimes against the United States, and for other purposes,\" approved the 3d of March, 1825; for having, on the 2ust of November, 1836, feloniously stolen, at Rockaway Beach, in the  southern district of New York, one trunk of the value of five dollars, one package of yarn of the value of five dollars, one package of silk of the value of five dollars, one roll of ribbons of the value of five dollars, one package of muslin of the value of five dollars, and six pairs of hose of the value of five dollars, which said goods, wares and merchandise, belonged to the ship Bristol, the said ship then being in distress, and cast away on a shoal of the sea, on the coast of the state of New York, within the southern district of NEw York. On this indictment the prisoner was arraigned, and plead not guiltyf and put himself upon his country for trial. \nIt was admitted, that the goods mentioned in the indictment, and which belonged to the said ship Bristol, were taken above high water  mark, upon the beach, in the county of Queens; whereupon, the question arose whether the offence committed was within the jurisdiction of the court; and on this point the judges were opposed in opinion. \nWhich said point, upon which the disagreement has happened, is stated above, under the direction of the judges of said court, at the request of the counsel for the United States, and Lawrence  Coombs, parties in the cause, and ordered to be certified upto the Supreme Court at the next session, pursuant to the act in such case made and provided. \nThe ninth section of the act of 1825, ch. 276, on which the indictment in the present case is founded, is in the following words: \" That if any person shall plunder, steal, or destroy any money, goods, merchandise, or other effects from, or belonging to, any ship or vessel, or boat, or raft whch shall be in distress, or which shall be wrecked, lost, stranded, or cast away upon the sea, or upon any reef, shoal, bank, or rocks of the sea, or in any place within the admiralty or maritime jurisdiction of the United States; or if any person or persons shall wilfully obstruct the escape of any person endeavouring to save his or her life from such ship or vessel, boat or raft, or the wreck thereof; or if any person shall hold out or show any false light or lights, or extinguish any true light, with intention to bring any ship or vessel, boat or raft, being or sailing upon the sea, into danger or distress, or shipwreck; every person so offending, his or their counsellors, aiders or abettors, shall be deemed guilty of felony; and shall, on  conviction thereof, be punished by a fine, not exceeding five thousand dollars, and imprisonment and confinement at hard labour, not exceeding ten years, according to the aggravation of the offence.\" 3 Story's Laws of the U.S. 2001. The indictment, as has been already stated, charges the offence to have been committed on Rockaway Beachf and as is admitted, above high water mark. \nBefore we proceed to the direct consideration of the true import and interpretation of this section, it seems highly important, if not indispensable, to say a few words as to the constitutional authority of congress to pass the same. For if, upon a just interpretation of the  terms thereof, congress have exceeded their constitutional authority, it will become our duty to say so; and to certify our opinion on the points submitted to us, in favour of the defendant. On the other hand, if the section admits of two interpretations, each of which is within the constitutional authority of congress, that ought to be adopted,  which best conforms to the terms and the objects manifested in the enactment, and the mischiefs which it was intended to remedy. And again, if the section admits of  two interpretations, one of which brings it within, and the other presses it beyond the constitutional authority of congress, it will become our duty to adopt the former construction; because a presumption never ought to be indulged, that congress meant to exercise or usurp any unconstitutional authority, unless that conclusion is forced upon the Court by language altogether unambiguous. And, accordingly, the point has been presented to us under this aspect, in the argument of the attorney general, on behalf of the government. \nThere are two clauses of the constitution which may properly come under review, in examining the constitutional authority of congress over the subject matter of the section. One is, the delegation of the judicial power, which is declared to extend \"to all cases of admiralty and maritime jurisdiction.\" The other is, the delegation of the power \"to regulate commerce with foreign nations, and among the several states;\" and, as connected with these, the power \"to make all laws which shall be necessary and proper for carrying into execution the foregoing power,\" &c. \nIn regard to the first clause, the question which arises is, what is the true nature and extent  of the admiralty jurisdiction. Does it, in cases where it is dependent upon locality, reach beyond high water mark? Our opinion is, that in cases purely dependent upon the locality of the act done, it is limited to the sea, and to tide waters, as far as the tide flows; and that it does not reach beyond high water mark. It is the doctrine which has been repeatedly asserted by this Courtf and we see no reason to depart from it. Mixed cases may arise, and indeed often do arise, where the acts and services done are of a mixed nature; as where salvage services are performed partly on tide waters, and partly on the shore, for the preservation of the property saved; in which the admiralty jurisdiction has been constantly exercised to the extent of decreeing salvage. That this is a rightful exercise of jurisdiction by our courts of admiralty, was assumed as the basis of much of the reasoning of this Court, in the case of the American Insurance Company v. Canter, 1 Peters' Rep. 511. It has also been asserted and enforced by Lord Stowell, on various occasions; and especially in the case of The August v. Eugenie, 1 Hagg. Adm. Rep. 16; The Jonge Nicholas, 1 Hagg. Adm. Rep. 201; The Ranger,  2 Hagg. Adm. Rep. 42; and The Happy Return,  2 Hagg. Adm. Rep. 198. See also The Henry, of Philadelphia, 1 Hagg. Adm. Rep. 264; The Vesta, 2 Hagg. Adm. Rep. 189; The Salecia, 2 Hagg. Adm. Rep. 262. And this has been done, not only in conformity to the doctrines of the maritime law; but also to what has been held in the courts of common law. For it has been laid down, that if the libel is founded upon one single continued act, which was principally upon the sea, though a part was upon land; as if the mast of a ship be taken upon the sea; though it be afterwards brought ashore, no prohibition lies. Com. Dig. Adm. F.S.; 1 Rolle Adm. 533, C. 13; Com. Dig. Adm. E. 12. It is true, that it has been said that the admiralty has not jurisdiction of the wreck of the sea. 3 Black. Com. 106, 107. But we are to understand by this, not what, in the sense of the maritime and commercial law, is deemed wreck or shipwrecked property; but \"wreck of the sea\" in the purely technical sense of the common law; and constituting a royal franchise, and a part of the revenue of the crown in England; and often granted as such a royal franchise to lords of manors. How narrow and circumscribed this  sort of wreck is, according to the modern doctrines of the courts of common law, may be perceived by the statement of it in Mr. Justice Blackstone's Commentaries. 1 Black. Com. 290 to 317. Who also shows, that it is this, and this only, which is excluded from the admiralty jurisdiction. Lord Stowell manifestly acted upon the same doctrine, in the case of The Augusta v. Eugenie, 1 Hagg. Adm. Rep. 17; 3 Black. Com. 106, 107. \nA passage has been sometimes relied on, in one of the earliest judgments of Lord Stowell -- the case of The Two Friends, 1 Rob. Rep. 271; in which it is intimated, that if the goods, which are subject to salvage, have been landed before the process of the admiralty court has been served upon them, the jurisdiction over them for the purposes of salvage may be gone. But his lordship, so far from deciding the point then, greatly doubted it; and has, as it should seem, since silently overruled the objection. Indeed, the supposed difficulty in that case was not that the instance court had not jurisdiction; but that in cases of salvage on the instance side of the court, no process of the court could be served on land, but only on the water. Now, this is wholly  inapplicable to the courts of the United States, where admiralty process, both in the instance and prize sides of the court, can be served on land as well as on water. These explanations have been made, for the sake of clearing the case from some apparent obscurities and difficulties, as to the nature and extent of the admiralty  jurisdiction, in cases where it is limited by the locality of the acts done. In our judgment, the authority of congress, under this clause of the constitution, does not extend to punish offences committed above and beyond high water mark. \nBut we are of opinion, that, under the clause of the constitution giving power to congress \"to regulate commerce with foreign nations, and among the several states,\" congress possessed the power to punish offences of the sort which are enumerated in the ninth section of the act of 1825, now under consideration. The power to regulate commerce, includes the power to regulate navigation, as connected with the commerce with foreign nations, and among the states. It was so held and decided by this Court, after the most deliberate consideration, in the case of Gibbons v. Ogden, 9 Wheat. 189 to 198. It does not stop  at the mere boundary line of a state; nor is it confined to acts done  on the water, or in the necessary course of the navigation thereof. It extends to such acts, done on land, which interfere with, obstruct, or prevent the due exercise of the power to regulate commerce and navigation with foreign nations, and among the states. Any offence which thus interferes with, obstructs, or prevents such commerce and navigation, though done on land, may be punished by congress, under its general authority to make all laws necessary and proper to execute their delegated constitutional powers. No one can doubt, that the various offences enumerated in the ninth section of the act, are all of a nature which tend essentially to obstruct, prevent, or destroy the due operations of commerce and navigation with foreign nations, and among the several states. Congress have, in a great variety of cases, acted upon this interpretation of the constitution, from the earliest period after the constitution; as will be abundantly seen by the punishment of certain offences on land, connected with piracies and felonies on the high seas, in the act of 1790, ch. 36, sec. 10 and sec. 11; and in the  acts for egulation of commerce and navigation, and for the collection of the revenue, passed from time to time: in which many of the penalties, forfeitures and offences provided for, are such as are, or may be done on land; and yet which arise from the power to regulate commerce and navigation, and to levy and collect duties. The ship registry act of 1792, ch. 45; the act of 1798, ch. 52, for the enrolment and licensing of vessels in the coasting trade and fisheries; the act of 1790, ch. 102, for the regulation and government of seamen n the merchants' service; and the revenue collection act, from the act of 1789, ch. 5, to  that of 1799, ch. 128, afford many pointed illustrations. We do not hesitate, therefore, to say, that in our judgment, the present section is perfectly within the constitutional authority of congress to enact; although the offence provided for may have been committed on land, and above high water mark. \nLet us now proceed to the interpretation of the section under consideration. Does it mean, in the clause in whch this indictment is founded, to prohibit and punish the plundering, stealing, or destroying of any property belonging to any vessel in distress,  or wrecked, Iost, stranded, or cast away; only when the same property is then on board of the vessel, or is then upon the sea, or upon any reef, shoal, bank, or rock of the sea, or in any other place within the admiralty and maritime jurisdiction of the United States? Or does it mean equally to prohibit and punish such plunder, stealing, or destroying of such property; whether the act be done on shore, or in any of the enumerated places below high water mark. In our opinion, the latter is the true interpretation of this clause of the section. \nIn the first place, this is the natural meaning of the words of the clause, taken in their actual import and connection. There is no absolute locality assigned to the offence. It is not said, as it is in every one of the preceding sections, that the offence shall be committed in a particular place; in a fort, dock-yard, navy yard, &c. &c., or upon the high seas, or in an arm of the sea, or in a river, &c., within the admiralty and maritime jurisdiction of the United States, and out of the jurisdiction of any particular state. The language is, \"if any person or person shall plunder, steal, or destroy any money, goods, merchandise, or other  effects, from or belonging to any ship, or vessel, &c.\" The plundering, stealing, or destroying need not, then, be from any ship or vessel. It is sufficient if it be of property \"belonging to any ship or vessle.\" It is not where stated that this property, belonging to any ship or vessel, shall be in any of the enumerated places when the offence is committed; but only that it shall be property belonging to the ship or vessel, which is in distress, or wrecked, lost, stranded, or cast away. Locality, then, is attached to the ship or vessel, and not to the property plundered, stolen, or destroyed. And this qualification is important, because it is manifest congress possess no authority to punish offences of this sort generally, when committed on land; but only to punish them when  connected with foreign trade and navigation, or with trade and navigation among the several states. \nIn the next place, the mischiefs mtended to be suppressed by the section are precisely the same, whether the offence be committed on the shore, or below high water mark. There is, and there can be, no sound reason why congress should punish the offence when committed below high water mark, which  would not apply equally to the offence when committed above high water mark. In such case, the wrong and injury to the owners, and to commerce and navigation, is the same; and the public policy of affording complete protection to property, commerce, and navigation, against lawless and unprincipled freebooters, is also in each case the same. There is, then, no reason, founded in the language or policy of the clause, to insert a restriction and locality which have not been expressed by the legislature.On the contrary, upon general principles of interpretation, where the words are general, the Court are not at liberty to insert limitations not called for by the sense, or the objects, or the mischiefs of the enactment. \nIn the next place, the succeding clauses of the same section greatly aid and fortify this construction; for in neither of them is there any locality given to the offences therein stated; and indeed, any locality would seem inconsistent with the professed objects of these clauses. Thus, in the next clause, it is provided that, \"if any person or persons shall wilfully obstruct the escape of any person endeavouring to save this or her life, from such ship or vessel, &c.,\"  he shall be punished in the manner provided for in the section. Now, it is plain that this obstruction may be as well by an act done on shore, as by an act done below high water mark. It may be by cutting a rope, or hawser, or other thing used as a means of escape, and fastened to the shore; or by removing a plank affixed at one end to the shore; or by striking or wounding a person on his arrival at the shore; or by intimidating him from landing, by threatening to fire on him on landing, or otherwise, by attempting, on shore, to prevent him from saving his life. But the remaining clause is still more direct.It provides for the case of holding out or showing a false light, or extinguishing a true light, with the intention to bring any ship or vessel, &c., sailing  upon the sea, into danger, or distress, or shipwreck. Now, it is most manifest that these acts are such as ordinarily are done, and contemplated to be done on land. We do not say contemplated, exclusively, to be done on land; for they may be done on  the sea. But to suppose that congress could intend to punish these acts only when done on the sea, and not to punish them when committed on shore,  would be to suppose that they were solicitous to punish acts of possible and rare occurrence only; and to leave unpunisheds those which would be of the most frequent and constant occurrence, for such inhuman purposes; and most mischievous in their consequences. \nIf, then, the other clauses of the same section defining offences of a kindred nature, have no reference whatever to any locality, but indifferently apply to the same offence, whether committed on land or on the sea; and if (as is the fact) all these clauses are connected together, and must be read together, in order to arrive at the denunciation of the punishment which is equally applied to all; there does seem to us to be very strong reason to believe that congress, throughout the whole enactment, had the same intent: an intent to punish all the enumerated offences, whether committed on land or on tide waters; because they were equally within the same mischief, and the prohibitions equally necessary to the protection of the commerce and navigation of the United States. \nIt has been suggested, that there is not the same necessity for the interposition of congress in the case of the offence contained in the present indictment,  when committed on land, as when committed on the sea, or in other places within the admiralty and maritime jurisdiction of the United States; because, when committed on land, the offence is, or may be, cognizable by the state judicatories, under the state laws. But this reasoning is equally applicable to the other offences enumerated in the other clauses of the same section; and yet it can hardly be doubted that they were designed to be punished when committed on land. And it may be further suggested, that it could scarcely be deemed prudent or satisfactory wholly to rely upon state legislatures or state laws, for the protection of rights and interests specially confided by the constitution to the authority of congress. \nIndependently, however, of these considerations, there are others, which ought to have great weight; and, in our opinion, decisive influence in a question like the present. In the first place, the act of 1825, ch. 276, manifestly contemplates, that in some of the offences enumerated in it, the state courts would or might have a concurrent jurisdiction; for the 23d section of the act expressly provides, \"that nothing in this act contained shall be construed to deprive  the courts  of the individual states of jurisdiction, under the laws of the several states, over offences made punishable by this act.\" Now, there are no other sections in the act, to which this last section can more pertinently apply than to offences committed on land, within the ninth section. It does, indeed, apply with equal force to the 23d section of the act, (which is also derived from the power to regulate commerce,) which provides for the punishment of conspiracies, combinations, and confederacies, \"on the high seas, or within the United States,\" to cast away, burn, or otherwise destroy any ship or vessel, for the fraudulent purposes stated in the section; and also affixes a like punishment to the building or fitting out, aiding in the building or fitting out, \"within the United States,c of any ship or vessel, with intent that the same shall be cast away, burnt, or destroyed for the like purpose. \nIn the next place, it is a most important consideration, that in cases of shipwreck there must always be great practical difficulties in ascertaining the precise place, whether below or above high water mark, where the property is first plundered, stolen or destroyed;  as well as by direct evidence to identify the particular persons by whom the offence was committed. These dreadful calamities usually occur upon coasts, and in places where the officers and crew are total strangers to all the inhabitants. The personal sufferings of the officers and crew, often disable them from making any efforts, or giving any care or aid in the preservation of the property. The hurry and confusion incident to such events, make them intent upon consulting their own safety, and often absorb all their thoughts. The darkness of the night, as well as the perils of the weather, often compel them to forego all resistance to the depredators; and the latter often assemble in numbers so large as to make opposition hopeless, and identification of individuals and of packages impracticable. While some are on the waves bringing the plunder to the shore; others are or may be on the shore stationed to guard and secure the booty. Under such circumstances, if the jurisdiction of the court of the United States were limited to acts of depredation or destruction, committed below high water mark the enactment would become practically almost a dead letter; for in most cases it would  be impossible to establish, by direct proof, that the property was taken below high water mark. A prosecution in the state court would, in many cases, be equally liable to a failure, from the utter impossibility of establishing whether the act was not committed within the admiralty and maritime jurisdiction of the United  States. The wisdom of the enactment, therefore, which, upon a prosection in the courts of the United States, should cut off any defence founded upon the mere absence of such proof where the offence was committed, would seem to be as clear as its policy is obvious. It could scarcely escape the attention of the legislature as indispensable for the due administration of public justice. And so far from wondering that the section in question does not contain any restriction as to locality of the offence, the surprise would have been great, if it had been found there. We think ourselves justified in saying, that upon the true interpretation of the section, it contains no such restriction: and that there is no ground, in constitutional authority, in public policy, or in the nature or object of the section, which call upon us to insert any. \nUpon the whole  our opinion is, that it be certified to the circuit court for the southern district of New York, that the offence committed was within the jurisdiction of that court. \nThis cause came on to be heard on the transcript  of the record from the circuit court of the United States, for the southern district of New York, and on the question and point on which the judges of the said court were opposed in opinion, and which were certified to this Court for its opinion, agreeably to the act of congress, in such case made and provided, and was argued by counsel. On consideration whereof, it is the opinion of this Court, upon the point which has been certified to this Court, by the said circuit court, that the said offence so committed, was within the jurisdiction of the said circuit court; and it is ordered and adjudged, that this opinion be certified to the said circuit court accordingly. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the Court. \nThis is th ecase of an appeal from the circuit court of the district of Rhode Island. The original cause was a bill in equity brought by Willard W. Wetmore, deceased, a citizen of Connecticut, against the defendants, Henry Mathewson and others, all citizens of Rhode Island; for an account upon certain transactions set forth in the bill, and with a prayer for general relief. After the cause was at issue upon the hearing, it was, by agreement of the parties, ordered by the court to be referred to a master to take an account; and pending the proceedings before the master, the intestate died. Administration  upon his estate was duly taken out by the present plaintiff, John H. Clarke, in the state of Rhode Island; the laws of Rhode Island requiring that no person not a resident of the state, should take out letters of administration; and also making such administration indispensable to the prosecution and defence of any suit in the state, in right of the estate of the intestate. \nClarke filed a bill of revivor in the circuit court, in June, 1834, in which he alleged himself to be a citizen of Rhode Island, and administrator of Wetmore, against the defendants; whom he alleged, also, to be citizens of the same state. So that it was apparent upon the face of the record, that the bill of revivor was between citizens of the same state. Upon motion of the defendants, at the November term of the circuit court, A.D. 1835, the court ordered the will of revivor to be dismissed for want of jurisdiction; and from this deeretal order, the prresent appeal has been taken by the appellant. \n The case, as it was decided in the circuit court, is reported in 2 Sumner's Rep. 262, 268; and the ground of dismissal was, that the bill of revivor was a suit between citizens of the same state. The  judiciary act of 1789, ch. 20, sec. 11, confers original jurisdiction upon the circuit courts, of all suits of a civil nature at common law and in equity; where the matter in dispute exceeds the sum or value of five hundred dollars, and the United States are plaintiffs or petitioners, or an alien is a party; or the suit is between a citizen of the state where the suit is brought and a citizen of another state. If, therefore, the present had been an original bill brought between the present parties, it is clear that it could not have been maintained; for although the plaintiff could sue in autre droit, and as administrator  of a citizen of another state; yet the suit would be deemed a controversy between him and the defendants, and not between his intestate and the defendants. This is the necessary result of the doctrine held by this Court in Chappedelaine v. Decheneaux, 4 Cranch, 306, and Childress v. Emory, 8 Wheat. 642. \nThe circuit court treated the present case as falling within the same predicament. In this, we are of opinion, that the court erred. The bill of revivor was, in no just sense, an original suit; but was a mere continuation of the original suit. The  parties to the original bill were citizens of different states; and the jurisdiction of the court completely attached to the controversy: having so attached, it could not be divested by any subsequent events; and the court had a rightful authority to proceed to a final determination of it. If, after the commencement of the suit, the original plaintiff had removed into, and become a citizen of Rhode Island, the jurisdiction over the cause, would not have been divested by such change of domicil. So it was held by this Court in Morgan's Heirs v. Morgan, 2 Wheat. 290, 297; and Mollan v. Torrance, 9 Wheat. 537; and Dunn v. Clarke, 8 Peters, 1. \nThe death of either party, pending the suit, does not, where the cause of action survives, amount to a determination of the suit. It might in suits at common law, upon the mere principles of that law, have produced an abatement of the suit, which would have destroyed it. But in courts of equity, an abatement of the suit, by the death of a party, has always been held to have a very different effect; for such abatement amounts to a mere suspension, and not to a determination of the suit. It may again be put in motion by a bill of revivor, and  the proceedings being revived, the cause proceeds to its  regular determination as an original bill. The bill of revivor is not the commencement of a new suit; but is the mere continuation of the old suit. It is upon a ground somewhat analogous, that the circuit courts are held to have jurisdiction in cases of cross bills, and injunction bills, touching suits and judgments already in those courts; for such bills are treated not strictly as original bills, but as supplementary or dependent bills, and so properly within the reach of the court; although the defendant, (who was plaintiff in the original suit) lives out of the jurisdiction. A very strong application of the doctrine is to be found in the case of Dunn v. Clarke, 8 Peters, 1; where an injunction bill was sustained, although all the parties were citizens of the same state; the original judgment, under which the defendant in the injunction bill made title as the representative in the realty of the deceased, having been obtained by a citizen of another state, in the same circuit court. \nBut if any doubt could upon general principles be entertained upon this subject, we think it entirely removed by the 31st section  of the judiciary act of 1789, ch. 20. That section provides that where, in any suit pending in the courts of the United States, either of the parties shall die before final judgment, the executor or administrator of such deceased party, who was plaintiff, petitioner or defendant, in case the cause of action doth by law survive, shall have full power to prosecute or defend any such suit or action until final judgment, and that the defendant shall be obliged to answer thereto accordingly; and the court before whom the cause is depending, is empowered and directed to hear and determine the same, and to render judgment for or against the executor or administrator, as the case may require. Other auxiliary provisions are made to carry this enactment into effect. Now, in this section, congress manifestly treat the revivor of the suit, by or against the representative of the deceased, as a matter of right, and as a mere continuation of the original suit; without any distinction as to the citizenship of the representative, whether he belongs to th same state where the cause is depending, or to another state. Of the competency of congress to pass such an enactment under the constitution,  no doubt is entertained. The present case falls directly within its purview; and we are therefore of opinion, that the decree of the circuit court, dismissing the bill of revivor, ought to be reversed; and the cause remanded to the circuit court for further proceedings. \nI take this opportunity of adding, that I fully concur in all the  reasoning of this Court on this subject. After the decision had been made in the circuit court, upon more mature reflection I changed my original opinion; and upon my expressing it in the circuit court, and upon the suggestion of the judges of that court, the case has been brought here for a final determination. I hope that I shall always have the candour to acknowledge my errors, in a public manner; whenever I have become convinced of them. \nThis cause came on to be heard on the transcript of the record from the circuit court of the United States for th edistrict of Rhode Island, and was argued by counsel. On consideration whereof, it is now hereby ordered, adjudged and decreed by this Court, that the decree of the said circuit court, dismissing the bill of revivor in the cause, ought to be, and the same is hereby reversed; and that  this cause be, and the same is hereby remanded to the said circuit court, for further proceedings to be had therein, in conformity to the opinion of this Court, and according to law. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the Court: \nThis cause comes before the Court upon a writ of error to the circuit court of Maryland district. The original action was upon a policy of insurance dated the 22d of November, 1832, whereby the defendants, The Maryland Insurance Company, caused the plaintiffs by their agents, (William Howell & Son,) to be insured, lost or not lost, ten thousand dollars, at a premium of four per cent., on the brig Gracchus,  Snow, master, (valued at that sum,) at and from Baltimore, for six calendar months, commencing that day at noon; and if she be on a passage at the expiration of the time, the risk to continue at the same rate of premium, until her arrival at the port of destination. The declaration alleged a total loss by the casting ashore and stranding of the brig on the 23d of March, 1833, in the river Mississippi. Upon the trial of the cause, it appeared in evidence, that the brig sailed from Baltimore on a voyage to New Orleans, and safely arrived there; and took on board part of her cargo, (pork and sugar) at that port on a voyage for Baltimore; and about the middle of the 23d day of March, 1833, sailed from New Orleans, intending to proceed to Sheppard's plantation, on the river Mississippi, about thirty-three miles below New Orleans, to take in the residue of her  cargo for the same voyage. At the English Turn, about twenty-two miles from New Orleans, the brig attempted to come to anchor, and in so doing lost the small bower anchor; and then dropped the best bower anchor, which brought her up. The next morning, while the brig was proceeding on her voyage, she struck on a log,  broke the rudder pintles, when she fell off and went on shore. A signal was then made for a steamboat in sight; which  came to the assistance of the brig, and in attempting to haul her off the hauser parted. It was then found that the brig was making water very fast. Help was obtained from a neighbouring plantation. They commenced pumping and discharging the cargo on board of the steamboat; and after discharging all the pork, and a part of the sugar, they succeeded in freeing the ship on the afternoon of the same day. She was then got off and proceeded to New Orleans, where she arrived the same night; she continuing to leak, and both pumps being kept going all the time. The next day the master understood that the steamboat claimed a salvage of fifty per cent., and intended to libel for it. On the 27th of the same month the brig was taken across the river for repairs. On the same day the brig was libelled for the salvage in the district court of Louisiana. \nOn the 25th of March, Snow, the master, wrote a letter to one of the owners, containing an account of the loss and state of the brig; and also of the claim by the salvors of fifty per cent., which the underwriters  on the cargo and himself had objected to: adding that they should hold the steamboat liable for any damage that might be incurred on account of the detention. \nOn the 22d of April, Messrs. Howell & Sons addressed a letter to the company, submitting the letter of the 25th of March to the company, and say therein: \"In consequence of the damage, together with the detention that must grow out of a lawsuit, (in which it appears that the vessel is involved,Z) the voyage being broken up; we do hereby abandon to you the brig Gracchus, as insured in your office, per policy No. 13,703, and claim for a total loss.\" On the same day the company returned an answer, saying: \"We cannot accept the abandonment tendered in your letter of this date; but expect you to do what is necessary in the case, for the safety and relief of the vessel.\" \nOn the 9th of the ensuing May, the district court decreed one-quarter of the value of the vessel and cargo (estimated at seven thousand dollars) as salvage; the brig being valued at two thousand five  hundred dollars. On the 14th of the same month the master got possession again of the brig, the salvage having been paid. On the 3d of June, 1833, the  brig was repaired and ready for a freight: and early in July she sailed for Baltimore, with a partial cargo on board on freight; and duly arrived there in the latter part of the same month. The repairs at New Orleans amounted to the sum of one thousand six hundred and ninety dollars and fifteen cents; and the share of the brig, at the general average or salvage, to the sum of one thousand two hundred and forty-five dollars and seven cents; in the whole, amounting to two thousand nine hundred and thirty-five dollars and twenty-two cents. To meet this sum and some other expenses, the master obtained an advance from Messrs. Harrison, Brown & Co., of New Orleans, of three thousand seven hundred and fifteen dollars and forty-one cents; and gave them as security therefor, a bottomry bond on the Gracchus for the principal sum, and five per cent. maritime premium, payable on the safe arrival of the brig at Baltimore. \nOn this bottomry bond the brig was libelled in Baltimore; and no claim being interposed by any person, she was by a decree of the district court of Maryland, on the 5th of September, 1833, ordered to be sold to satisfy the bottomry bond; and she was accordingly sold by the  marshal about the 20th of the same month, to John B. Howell, for four thousand seven hundred and fifty dollars; and on the 24th of the same month there was paid to the attorney of the libellant, the full amount due under the decree of the court.On the same day, the president of the company addressed a letter to Messrs. Howell & Son, in which they say, \"We have examined the statements of general and particular average, and the accounts relating thereto, which you handed us some days ago, respecting the expenses incurred on the brig Gracchus, at New Orleans. Although some of the charges are of a description for which the company is not liable by the terms of their policy; yet, wishing to act liberally in the case, we have agreed to admit every item in the accounts, and the different amounts will be as follows.\" Here follows a statement, deducting from the repairs one-third new for old, and admitting the sum of two thousand four hundred and nine dollars and eleven cents to be due to the plaintiffs; and enclosing the premium note, and a check for the amount. The letter then adds, \"If you find any other charge, &c., has been paid at New Orleans, in order to raise the funds on bottomry,  we will pay our full proportion of the same, upon being made acquainted with the amount.\" On the same day Messrs. Howell &  Son returned an answer, refusing to receive the premium note and check, adding, \"We should do them (the owners) great injustice to make such a settlement. Our opinion is, that in law and equity, they have a claim for a total loss.\" \nThese are the principal facts material to be mentioned, though much other evidence was introduced into the cause upon collateral points, by the parties. \nThe counsel for the defendants, after the evidence on each side was closed, moved the court to instruct the jury as follows: \nDefendants' 1st Prayer -- The defendants, by their counsel, pray the court to instruct the jury that the notice of abandonment of the 22d April, 1833, and the accompanying letter from captain Snow, of the 25th of March, as given in evidence by the plaintiffs, do not show or disclose facts which in law justify the offer to abandon then made; and therefore, that in the absence of all evidence that said abandonment was accepted by the defendants, the plaintiffs are entitled to recover only for a partial loss. \n2. That if the said notice of abandonment  was sufficient, still the jury ought to find a verdict for a partial loss only; unless they shall believe from the evidence, that the Gracchus suffered damage from the accident that befel her on the 24th March, 1833, to more than one-half the sum at which she was valued in the policy; and that in estimating said damage, the jury ought to take the cost of her repairs only, deducting one-third therefrom, as in the case of adjusting a partial loss. \n3. That if the said abandonment was sufficient, as is assumed in the preceding prayer,  still the jury ought to find a verdict for a partial loss only; unless they shall believe, upon the evidence, that the damage so sustained by said brig exceeded in amount one-half the sum at which she was valued in the policy: and that in estimating the cost of her repairs for the purpose of ascertaining the amount of such damage, the jury are bound to deduct one-third therefrom, as in the case of a partial loss. \n4. That if said abandonment was sufficient, still the jury ought to find a partial loss only; unless they shall believe that the damage as aforesaid was more than one-half the value of the said brig at the time the accident happened,  according to the proof of such value as given in evidence: and that in estimating the amount of such damage, the jury are to take the amounts of the general and particular averages  as adjusted at New Orleans, deducting one-third from the actual cost of repairs. \nBet the court refused to give the instruction prayed for, and gave to the jury the following instruction: If the jury find from the evidence, that the Gracchus was so damaged by the disaster mentioned in the letter of captain Snow, of March 25th, 1833, that she could not be got off and repaired without an expenditure of money to an amount exceeding half her value, at the port of New Orleans, after such repairs were made; then the plaintiffs are entitled to recover for a total loss, under the abandonment made on the 22d day of April, 1833: and in ascertaining the amount of such expenditure, the jury must include the sum for which the brig was liable to the salvors, according to the decree of the district court of Louisiana stated in the evidence: but if the jury find that the vessel could have been got off and repaired, without an expenditure of money to the amount of more than half her value, then upon the evidence  offered, the plaintiffs are not entitled to recover for a total loss, on the ground that the voyage was retarded or lost; nor on account of the arrest and detention of the vessel by the admiralty process, issued at the instance of the salvors. \nThe defendants excepted to the refusal of the court to give the instructions prayed: and also to the opinion actually given by the court in their instructions to the jury. The plaintiffs also excepted to the same opinion, given by the court. \nThe plaintiffs also prayed \"the court to direct the jury, that in this cause the insured, by their letter of the 22d April, authorized and required the proper expenditures to be made upon the vessel, for which said underwriters are liable under their policy; that no funds being supplied by them in New Orleans to meet this loss, and the salvage and repairs having been paid for by money raised upon respondentia upon the vessel; if the jury shall find that said vessel, under the lien of this bond, came to Baltimore, and the defendants were then apprized of the existence of such respondentia, and were also informed of the existence of the proceedings thereupon against said vessel, and they neglected to pay  so much thereof as they ought to have paid to relieve said vessel; and omitted to place her in the hands of the owners, discharged of so much of such bottomry as the underwriters were liable for; and in consequence thereof, said vessel was liabelled and condemned and sold, and thereby wholly lost to the  plaintiffs; then the plaintiffs are entitled to recover for the whole value of the vessel.\" \nThe court refused to give this instruction, and the plaintiffs excepted to the refusal; and the court signed a bill of exceptions upon both exceptions. The jury found a verdict for the plaintiffs for three thousand four hundred and eighty-nine dollars and twenty-two cents; upon which judgment passed for the plaintiffs. And the present writ of error is brought by the plaintiffs for the purpose of reviewing the instructions above stated, so far as they excepted thereto. \nAlthough the prayers for the instructions by the defendants are not before the Court for the purpose of direct consideration, as the defendants have brought no writ of error; yet it is impossible completely to understand the nature and extent, and proper construction of the opinion given by the court, without adverting  to the propositions contained in them; for to them, and to them only was the opinion of the court given as a response. \nThe second instruction asked by the defendants, in substance, insisted, that to entitle the plaintiffs to recover for a total loss, the damage to the Gracchus from the accident should be more than one-half the sum to which she was valued in the policy; and that in estimating that damage, the costs of the repairs only were to be taken, deducting one-third new for old. In effect, therefore, it excluded all consideration of the salvage in the ascertainment of the loss. \nThe third instruction was in substance similar to the second, except that it did not insist upon the exclusion of the salvage. In effect, therefore, it insisted upon the valuation in the policy, as the standard by which to ascertain whether the damage was half the value of the Gracchus, or not. \nThe fourth instruction insisted, that to entitle the plaintiffs to recover for a total loss, the damage must exceed one-half the value of the Gracchus at the time of the accident; and that in estimating the damage, the general and particular averages, as adjusted at New Orleans, were to be taken, deducting one-third  new for old. In effect, therefore, it insisted that nothing but these adjustments were to be taken into consideration, in ascertaining the totality of the loss at the time of the abandonment; (admitting the abandonment to be sufficient;) however imminent might be the dangers, or great the losses then actually impending over the Gracchus. And all three of these prayers further insisted, that the deduction of one-third new for old, should be made from the amount of the rapairs, as in the case of a  partial loss, in ascertaining whether there was a right to abandon for a total loss, upon the ground that the damage exceeded a moiety of the value of the vessel. \nThe instructions of the court actually given in these prayers, involve the following propositions. 1. That if the expenditures in repairing the damage exceeded half the value of the brig at the port of New Orleans, after such repairs were made, including therein the salvage awarded to the salvors; the plaintiffs were entitled to  recover for a total loss, under the abandonment made on the 22d of April, 1833. 2. If the expenditures to get off and repair the brig, were less than the half of such value, then  the plaintiffs were not entitled to recover for a total loss, upon the ground that the voyage was retarded or lost; nor on account of the arrest and detention of the brig, under the admiralty process, for the salvage. \nThe question is, whether these instructions were correct. In considering the first, it is material to remark, that by the well settled principles of our law, the state of the facts, and not the state of the information at the time of the abandonment, constitutes the true criterion by which we are to ascertain whether a total loss has occurred or not, for which an abandonment can be made. If the abandonment, when made, is good, the rights of the parties are definitively fixed; and do not become changed by any subsequent events. If, on the other hand, the abandonment, when made, is not good, subsequent circumstances will not affect it, so as, retroactively, to impart to it a validity which it had not at its origin. In some respects, our law on this point differs from that of England; for, by the latter, the right to a total loss vested by an abandonment, may be divested by subsequent events, which change that total loss into a partial loss. It is unnecessary to cite  cases on this subject, as the diversity is well known; and the courts in neither country have shown any disposition of late years to recede from their own doctrine. The cases of Rhinelander v. The Insurance Company of Pennsylvania, 4 Cranch, 29; and Marshall v. The Delaware Insurance Company, 4 Cranch, 202, are direct affirmations of our rule: and those of Bainbridge v. Neilson, 10 East's Rep. 329; Patterson v. Ritchie, 4 M. & Selw. 394; and M'Iver v. Henderson, 4 M. & Selw. 584; of the English rule. \nIn cases where the abandonment is founded upon a supposed technical total loss, by a damage or injury exceeding one-half the value of the vessel, although the fact of such damage or injury must exist  at the time, yet it is necessarily open to proofs, to be derived from subsequent events. Thus, for example, if the repairs, when subsequently made, clearly exceed the half value, it is plain that this affords one of the best proofs of the actual damage or injury. On the other hand, if the subsequent repairs are far below the half value, this, so far as it goes, affords an inference the other way. But it is not, and in many cases cannot be decisive of the right to abandon.  In many cases of stranding, the state of the vessel at the time may be such, from the imminency of the peril, and the apparent extent of expenditures required to deliver her from it, as to justify an abandonment; although, by some fortunate occurrence, she may be delivered from her peril, without an actual expenditure of one-half of her value after she is in safety. Under such circumstances, if, in all human probability, the expenditures which must be incurred to deliver her from her peril, are, at the time, so far as any reasonable calculations can be made, in the highest degree of probability, beyond half value; and if her distress and peril be such as would induce a considerate owner, uninsured, and upon the spot, to withhold any attempt to get the vessel off, because of such apparently great expenditures, the abandonment would doubtless be good. It was to such a case that lord Ellenborough alluded, in Anderson v. Wallis, 2 M. & Selw., when he said: \"There is not any case, nor principle, which authorizes an abandonment, unless where the loss has been actually a total loss, or in the highest degree probable at the time of the abandonment.\" Mr. Chancellor Kent, in his learned Commentaries,  vol. 3, 321, has laid down the true results of the doctrine of law on this subject. \"The right of abandonment (says he,) does not depend upon the certainty, but upon the high probability of a total loss, either of the property or of the voyage, or both. The insured is to act, not upon certainties, but upon probabilites; and if the facts present a case of extreme hazard, and of probable expense, exceeding half the value of the ship, the insured may abandon; though it should happen that she was afterwards recovered at a less expense.\" We have no difficulty, therefore, in acceding to the argument of the counsel for the plaintiffs in error on this point. But its application to the ruling of the court, will be considered hereafter. \nIn respect to the mode of ascertaining the value of the ship, and, of course, whether she is injured to the amount of half her value, it has, upon the fullest consideration, been held by this Court, that the true basis of the valuation is the value of the ship at the time of the  disaster; and that, if after the damage is or might be repaired, the ship is not, or would not be worth, at the place of the repairs, double the cost of the repairs, it  is to be treated as a technical total loss. This was the doctrine asserted in the Patapsco Insurance Company v. Southgate, 5 Peters, 604; in which the court below had instructed the jury, that, if the vessel could not have been repaired without an expenditure exceeding half her value at the port of the repairs, after the repairs were made, it constituted a total loss. This Court held that instruction to be entirely correct. It follows, from this doctrine, that the valuation of the vessel in the policy, or the value at the home port, or in the general market of other ports, constitutes no ingredient in ascertaining whether the injury by the disaster is more than one-half the value of the vessel, or not. For the like reason, the ordinary deduction in cases of a partial loss of one-third new for old, from the repairs, is equally inapplicable to cases of a technical total loss, by an injury exceeding one-half of the value of the vessel. That rule supposes the vessel to be repaired and returned to the owner; who receives a correspondent benefit from the repairs beyond his loss, to the amount of the one-third. But in the case of a total loss, the owner receives no such benefit; the  vessel never returns to him, but is trnasferred to the underwriters. If the actual cost of the repairs exceeds one-half of her value after the repairs are made, then the case falls directly within the predicament of the doctrine asserted in the case of 5 Peters, 604. The same limitations of the rule, and the reasons of it, are very accurately laid down by Mr. Chancellor Kent, in his Commentaries, 3 vol. 330; and in Da Costa v. Newnham, 2 Term Rep. 407. \nIf, with these principles in view, we examine  the first instruction given in this case in the circuit court, it will be found to be perfectly correct. Indeed, that part of the instruction which declares that if the brig \"could not be got off and repaired without an expenditure of money to an amount exceeding half her value at the port of New Orleans, after such repairs were made, then the plaintiffs are entitled to recover for a total loss under the abandonment,\" is precisely in the terms of the instruction given in The Patapsco Insurance Company v. Southgate, 5 Peters, 604. The error, which has been insisted on at the argument by the plaintiffs, is in the additional direction; that \"in ascertaining the amount of such  expenditure, the jury must include the sum for which the brig was liable to the salvors, according to the decree of the district court of Louisiana, stated in  the evidence:\" which, it is contended, removed from the consideration of the jury the right to take into the account the high probability, at the time of the abandonment, of the allowance of a greater salvage, and even to the extent of the fifty per cent. then claimed by the salvors. And in support of the argument, it is insisted that the state of the facts, and the high probabilities at the time of the abandonment, constitute the governing rule; and not the ultimate result in the subsequent events. But it appears to us that the argument is founded upon a total misunderstanding of the true import of this part of the instruction. The court did not undertake to say, and did not say, that the jury might not properly take into consideration the high probability of a larger salvage at the time of the abandonment; but simply, that the jury must include in the half value, the amount of the actual salvage decreed, because that was, in truth, a part of the loss. The instruction was, therefore, not a limitation restrictive  of the rights and claims of the plaintiffs, but, in fact, a direction in favour of their rights and claims, and in support of the abandonment. This is demonstrated by the then actual position of the cause. The defendants had asked an instruction that the costs of the repairs only, exclusive of the salvage, should be taken into consideration in estimating the half value; and also that the one-third new for old, should be deducted from the amount of the cost, in estimating the half value. The court, in effect, negatived both instructions; and in the particulars now objected to, there was a positive direction to the jury not to exclude, but to include the salvage, in the estimate of the loss. In this view of the matter, the instruction was most favourable to the plaintiffs; and, so far from excluding evidence which might show the amount of the actual damage at the time of the abandonment; it resorted, and very properly resorted to the subsequent ascertainment of salvage as positive evidence, that to that extent at least, the actual damage was enhanced beyond the cost of the repairs. We are entirely satisfied with this part of the instruction, in this view, which seems to us to be  the true interpretation of it. \nIn respect to the other part of the instruction there is no substantial difficulty. The mere retardation of the voyage by any of the perils insured against, no amounting to or producing a total incapacity of the ship eventually to perform the voyage, cannot, upon principles well established, be admitted to constitute a technical total loss, which will authorize an abandonment. A retardation for the purpose of repairing damages from the perils insured against, that  damage not exceeding one moiety of the value of the ship, falls directly within this doctrine. Under such circumstances, if the ship can be repaired and is repaired, and is thus capable of performing the voyage, there is no ground of abandonment founded upon the consideration that the voyage may not be worth pursuing for the interest of the ship owner; or that the cargo has been injured, so that it is not worth transporting further on the voyage: for the loss of the cargo for the voyage, has nothing to do with an insurance upon the ship for the voyage. This was expressly held by this Court, in the case of Alexander v. The Baltimore Insurance Company, 4 Cranch R. 370; where it  was decided that an insurance on a ship for a voyage, was not to be treated as an insurance on the ship and the voyage, or as an undertaking that she shall actually perform the voyage: and, only, that notwithstanding any of the perils insured against, she shall be of ability to perform the voyage; and that the underwriters will pay any damage sustained by her, from those perils, during the voyage. The Court farther held, that upon such an insurance, a total loss of the cargo for the voyage, was not a total loss of the ship for the voyage. In respect to the point of retardation for repairs, the more recent authorities contain reasoning altogether satisfactory, and consistent with the true nature and objects of policies of insurance. The subject was a good deal discussed in the case of Anderson v. Wallis, 2 Maule & Selw. 240, which was a policy on cargo; and again in Everth v. Smith, 2 M. & Selw. 278, which was a policy on freight; and again in Falkner v. Ritchie, 2 M. & Selw. 290, which was a policy on ship: and in each of the cases, the court came to the conclusion that a mere retardation of the voyage by any peril insured against, did not entitle the insured to recover for a total  loss; if the thing insured was capable of performing the voyage. Lord Ellenborough, in the first case, said: \"Disappointment of arrival is a new head of abandonment in insurance law.\" \"If the retardation of the voyage be a cause of abandonment, the happening of any marine peril to the ship, by which a delay is caused in her arrival at the earliest market, would also be a cause of abandonment. I am well aware that an insurance upon a cargo, for a particular voyage, contemplates that the voyage shall be performed with that cargo; and any risk which renders the cargo permanently lost to the assured, may be a cause of abandonment. In like manner a total loss of cargo may be effected not merely by the destination of that cargo, but by a permanent incapacity of the ship  to perform the voyage; that is, a destruction of the contemplated adventure. But the case of an interruption of the voyage, does not warrant the assured in totally disengaging himself from the adventure, and throwing this burthen on the underwriters.\" In Falkner v. Ritchie, 2 M. & Selw. 290, his lordship added: \"What has a loss of the voyage to do with a loss of the ship?\" meaning, as the context shows, that  the loss of the voyage is no ground of abandonment, where the ship is not damaged  to an extent which permanently disables her to perform it. The same doctrine was affirmed in Hunt v. Royal Exchange Assurance Company, 5 M. & Selw. 47; and in Naylor v. Taylor, 9 Barn. & Cresw. 718. And it was long ago recognised by this Court, by necessary implication, in the case of Alexander v. Baltimore Insurance Company, 4 Cranch R. 370; and Smith v. The Universal Insurance Company, 6 Wheat. R. 176. In this latter case, the Court said: \"The insurers do not undertake that the voyage shall be performed without delay, or that the perils insured against shall not occur. They undertake only for losses sustained by those perils; and if any peril does act upon the subject, yet if it be removed before any loss takes place, and the voyage be not thereby broken up, but is, or may be resumed, the insured cannot abandon for a total loss.\" Language more explicit upon this point, could scarcely have been used. \nNor is there any, the slightest difference in law, whether the retardation or temporary suspension of the voyage be for the purpose of repairs, or to meet any other exigency which interrupts,  but does not finally defeat the actual resumption of it. The detention of the ship, under the admiralty proceedings, does not, therefore, in any manner change the posture of the case. It is admitted on all sides, and indeed it admits of no legal controversy, that this detention cannot be construed to be a substantive peril within the clause of the policy respecting \"restraints and detainments of all kings, princes or people;\" for the restraints and detainments there alluded to, are the operations of the sovereign power by an exercise of the vis major, in its sovereign capacity, controlling or divesting, for the time, the dominion or authority of the owner over the ship; and not proceedings of a mere civil nature to enforce private rights, claimed under the owner for services actually rendered in the preservation of his property. This, indeed, if it admitted of any doubt, would be disposed of by the reasoning of the court in Nesbitt v. Lushington, 4 Term R. 783; and Thornely v. Hebson, 2 Barn. & Ald. R. 513. See  also 3 Kent's Comm. 304, 326. In truth the detention by the admiralty process was, in this case; as is apparent from the admitted facts, a mere retardation  of the voyage. The brig was delivered from that proceeding; the salvage was paid; and she not only was capable, but did in fact resume and complete her voyage to Baltimore. \nThe considerations already suggested, dispose of the other point raised under this instruction, as to the loss of the voyage. It is apparent that the loss of the voyage spoken of, and necessarily implied in this instruction upon the admitted state of the facts, was the loss of the cargo for the voyage, and not the loss of the vessel by incapacity to perform the voyage. If the vessel could, as the instruction supposes, be got off and repaired without an expenditure exceeding half her value, and be thereby enabled to resume the voyage; it is plain that the loss of the cargo for that voyage, constituted no total loss of the vessel for the voyage. It was absolutely impossible for the court, upon the authorities already cited, to arrive at any other conclusion. \nThe state of things at the time of the abandonment, did not demonstrate any incapacity of the ship to resume her voyage after the repairs; and in point of fact, as has been already suggested, she not only did resume it, but actually performed it. The insurance  was upon time; and the policy actually expired, by its own limitation, upon the 22d of May, 1833, before she had actually resumed her voyage. But that can make no difference. An insurance on time differs as to this point in no essential manner whatsoever from an insurance upon a particular voyage; except in this, that in the latter case the insurance is upon and for a specific voyage described in the policy; whereas a policy on time, insures no specific voyage, but it covers any voyage or voyages whatsoever undertaken within, and not exceeding in point of duration, the limited period for which the insurance is made. But an insurance on time by no means contains any undertaking on the part of the underwriters, that any particular voyage undertaken by the insured within the prescribed period, shall be performed before the expiration of the policy. It warrants nothing as to any retardation or prolongation of the voyage; but only that the ship shall be capable of performing the voyage undertaken, notwithstanding any loss or injury which may accrue to her during the time for which she is insured; and of resuming it, if interrupted. In other words, the undertaking is that the ship shall  not, by the operation of any peril insured against during the time  for which the policy continues, be totally and permanently lost or disabled from performing the voyage then in progress, or any other voyage within the scope of the policy. The case of Pole v. Fitzgerald, Willes' Rep. 641; S.C. Amber's Rep. 214, affords a striking illustration of this doctrine; and whatever doubts may be entertained as to some of the dicta in that case, lord Ellenborough has well said, that it may be of great use to resort to it, in order to purify the mind from these generalities, respecting the loss of the voyage of the ship, constituting, per se, a loss of the ship. Falkner v. Ritchie, 2 Maule & Selw. 293. There is no error, then, in the instructions actually given to the jury in the response of the court to those asked by the defendants. \nIn the next place, as to the instruction asked by the plaintiffs, and refused by the court. In substance, it insisted that if the underwriters had authorized the expenditures to be made for the repairs, and had not supplied the appropriate funds for these repairs, and for the salvage, and the bottomry bond was given to secure them; and the underwriters  were apprized of the admiralty proceedings at Baltimore, and there neglected to pay so much thereof as they ought to have paid to discharge the same; and that the vessel in consequence thereof was sold under those proceedings: then the plaintiffs were entitled to recover for the whole value of the vessel. This instruction, it may be remarked, proceeds upon the supposition that there was not a technical total loss, entitling the plaintiffs to abandon; and that the abandonment of the 22d of April was not available for the plaintiffs. For, if it had been, then the underwriters would have become from that time the owners of the ship; and the subsequent  losses, whatever they might be, would be on their sole account. The case put, then, supposes that, in point of law, in the case of a merely partial loss to the ship, if money is taken up on bottomry for the necessary repairs and expenditures, it becomes the duty of the underwriters to deliver the ship from the bottomry bond to the extent of their liability for the expenditures; and that if they do not, and the vessel is sold under the bottomry bond, they are liable not only for the partial loss, but for all other losses to  the owner from their neglect. We know of no principle of law which justifies any such doctrine. The underwriters engage to pay the amount of the expenditures and losses, directly flowing from the perils insured against; but not any remote or consequential losses to the owners, from their neglect to pay the same. It might be as well contended,  that if by the neglect to pay a partial loss the owners were prevented from undertaking a new and profitable voyage, the underwriters would be responsible to them for such consequential loss. The maxim here, as in many other cases in the law, is, causa proxima non remota spectatur. The underwriters are not bound to supply funds in a foreign port for the repairs of any damage to the ship, occasioned by a peril insured against. They undertake only to pay the amount after due notice and proof of the loss; and, usually, this is to be done, (as was in fact the present case) after a prescribed time from such notice and proof of the loss. If to meet the expenditures for the repairs, the master is compelled to take up money on bottomry, and thereby an additional premium becomes payable, that constitutes a part of the loss, for which  the underwriters are liable. But in cases of a partial loss, the money upon bottomry is not taken up on account of the underwriters, but of the owner; and they become liable to the payment of the loss, whether the bottomry bond ever becomes due and payable or not. In short, with the mode by which the owner obtains the necessary advances, they have nothing to do; except that they must bear their share of the increased expenses to furnish the repairs, as a common sacrifice. Indeed, it seems difficult to understand upon what ground it is, that in case of a partial loss the owner is exonerated from the duty of delivering his own ship from the lien of the bottomry bond, and is at liberty to throw upon the underwriters the whole obligation of discharging it, under the penalty of being otherwise responsible in case of a sale; not for their share of the loss, (assuming that they were at all bound to discharge any part of the bond,) but for the whole loss. Upon what ground can it be said that the loss of the vessel by the sale in this case, is attributable to the neglect of the underwriters, which does not equally apply to the owners. They had at least, upon their own argument, an equal  duty to perform; for the underwriters were not liable for the whole amount of the bottomry bond, but for a part only; and the owners were bound to discharge the residue. How, then, can they call upon the underwriters to pay them a total loss on account of a sale; which upon their own argument was as much attributable to their own neglect as to that of the underwriters. But we wish to be understood as putting this point upon its true ground in point of law; and that is, that in the case of a partial loss, where money is taken up on bottomry bond, to defray the expenditures to repair it, the underwriters have nothing to do with the bottomry  bond, but are simply bound to pay the partial loss, including their share of the extra expenses of obtaining the money in that mode, as a part of the loss. If it were otherwise, any partial loss, however small, might, if money were taken up on bottomry to meet it, be converted, at the will of the owner, into a total loss, if the underwriters should neglect to pay to the owner the amount of such partial loss. The case of Thornely v. Hebson, 2 Barn. & Ald. 513, inculcates a very different doctrine. It was there held, that even in the  case of a libel for salvage, it is the duty of the owner, if he can, to raise the money to pay the salvage; and if he makes no such attempt, but suffers the ship to be sold under the admiralty process, he cannot thereby convert a loss, which is partial, into a total loss. And it was there further said, by Mr. Justice Bayley, (what is entirely applicable to the present case,) that the sale, in order to constitute a total loss in such a case, must be from necessity, and wholly without the fault of the owner. \nThe instruction asked in the present instance seems to have proceeded wholly upon the ground of the doctrine asserted in the case of Da Costa v. Newnham, 2 Term Rep. 407. But assuming that case to have been decided with entire correctness upon its own particular circumstances; it seems difficult, consistently with the principles of law, to apply the doctrine to cases which are not exactly in the same predicament; and it is not the first time that an attempt has been made to press that case into the service of other cases which are essentially different. The whole argument turns upon this, that the brig never came into the hands of the owner free from the lien of the bottomry bond;  and therefore, the total loss by the sale is properly attributable to the neglect of the underwriters. But the same argument would equally have applied if there had been, for the first time, admiralty proceedings in the home port against the brig, (without any bottomry bond having been given,) for the repairs thus made in a foreign port, as well as for the salvage. Yet no doubt could have been entertained that, under such circumstances, the underwriters would not have been bound to deliver the vessel from the liens thus incurred, at the peril of otherwise becoming answerable for a total loss. In what essential particular is the case changed by the substitution of an express lien by bottomry, for an implied lien by the maritime law? In none, that we can perceive. \nBut what were the circumstances of the case of Da Costa v. Newnham? In that case, the insurance was for a voyage from Leghorn  to London. The ship met with an accident in the course of the voyage, and put into Nice for repairs. Upon receiving notice thereof, the assured wished to abandon, and, indeed, was entitled to abandon; but the underwriters insisted upon the ship's being repaired, telling him to pay  the tradesmen's bills. He consented, at last, that the repairs should be done, but refused to advance any money; in consequence of which it became necessary to take up a large  sum of money on a bottomry bond, to defray the expenses. The ship resumed and performed her voyage; and after her arrival, the underwriters were applied to take up the bottomry bond, but they refused.Admiralty proceedings were, as it should seem, accordingly instituted, and the ship was sold for six hundred guineas; the bottomry bond being for six hundred pounds, which, with the interest, amounted to a larger sum, viz. six hundred and seventy-eight pounds. \nThe question under these circumstances was, whether the plaintiff was entitled to recover. Mr. Justice Buller, who tried the cause, was of opinion, under the circumstances, that for all the subsequent injury which had accrued to the owner, in consequence of the refusal of the underwriters to discharge the bottomry bond, and by which the owner was damnified to the full amount of the insurance, the underwriters were liable; because it was their own fault in not taking up the bond for the expenses of those repairs, which had been incurred by their  own express directions; and the only remaining question was, how the average was to be calculated. The jury found a verdict for the owner for sixty-two pounds nineteen shillings, which, together with seventeen pounds ten shillings paid into court by the underwriters, they calculated as the average loss, per cent. which the owner was entitled to. A motion was afterwards made for a new trial, and refused by the court; substantially upon the grounds maintained by the learned judge at the trial. \nFrom this statement of the facts, and the reasoning of the court applicable thereto, in the case of Da Costa v. Newnham, it is apparent, that, in that case, the actual cost of the repairs, (including of necessity the bottomry premium,) exceeded the actual value of the ship; that the underwriters had fully authorized all these repairs, and had expressly promised to pay all the costs of the repairs and the necessary incidents. The owner of the ship, at the termination of the voyage, never came into the possession of the ship free from the lien of the bottomry bond; for the whole amount of which, as it included nothing but the costs and incidents of the repairs, the underwriters  were  liable, and which, by necessary implication, they had promised to pay. The sum claimed by the owner of the underwriters was in fact less than the amount of the cost of the repairs, that cost being six hundred and seventy-eight pounds; whereas the loss claimed was a lotal loss of the ship, which sold for six hundred guineas only; and it seems that the insurance was on an open policy. \nThe question, in effect, therefore, was whether the owner was not entitled to recover the full amount of the insurance, which was the amount of his actual loss, directly arising from the breach of the promise of indemnity made to him by the underwriters. Upon such a point, there should not seem to be much reason for any real juridical doubt. \nNow, there are essential distinctions between that case and the present. In the first place, the repairs in this case were not made under any positive engagement of the underwriters beyond what the policy, by its own terms, necessarily included. The language of the underwriters in their answers, refusing the abandonment, in our judgment imports no more than this.It merely says, \"we expect you to do what is necesary in the case for the safety and relief of the  vessel.\" It was rather an admonition than a contract; a warning that the underwriters would hold the owners to the performance of all the duties imposed upon them by law; and not any promise as to their own obligations. In the next place, in the present case, the loss is to be taken upon the very form of the instruction, prayed to be a partial loss only; and as to the repairs, the underwriters were clearly, in such a case, entitled to the deduction of one-third new for old. In the case of Da Costa v. Newnham, the loss was treated by the court as a technical total loss; on account of the amount required for the necessary repairs. In the next place, in that case, the insured asked only to recover the amount of the costs of the repairs, which in fact exceeded the value of the ship: in the present case, the cost of the repairs, and the salvage, for which the underwriters were liable, fell short of the half value; and yet the plaintiffs insist to recover for a total loss. In the next place, in that case, the underwriters, by their refusal to make any advances, compelled, and indeed authorized the owner to resort to a bottomry bond, to supply the means of repairing the loss; and of course,  as has been already intimated, the underwriters, by necessary implication, undertook to indemnify the owner against the lien and burden of the whole of  that bond, in consideration of his undertaking to cause the repairs to be made. \nThe refusal to make good that promise, was the direct and immediate cause of the loss and sale of the ship. In the present case, the bottomry bond included charges and amounts, for which the underwriters were not liable. How, then, can it be inferred from the facts stated in the instructions, that the underwriters, by implication, and without consideration, undertook to indemnify the plaintiffs against the whole bottomry bond; for the payment of a part of which, only, they were by law responsible? \nSo that, admitting the authority of Da Costa v. Newnham to the fullest extent which its own circumstances warrant, it stands upon grounds entirely distinguishable from those which ought to govern the present case. If the underwriters, in the present case, had authorized the whole expenditures on their sole account, and had promised to save the plaintiffs harmless from the whole amount of the bottomry bond, and the plaintiffs had made the expenditures,  and procured the advances for this purpose, upon the faith of such authority and promise; a very different case would have been presented for our consideration. At present, it is only necessary to say, that the instruction before us states no such case, and calls for no such question; and, therefore, Da Costa v. Newnham cannot be admitted to govern the present case. \nUpon the whole, our opinion is, that there is no error in the instructions given or refused by the circuit court; and the judgment is therefore affirmed, with costs. \nThis cause came on to be heard on the transcript of the record from the circuit court of the United States for the district of Maryland, and was argued by counsel. On consideration  whereof, it is now here or dered and adjudged by this Court, that the judgment of the said circuit court in this cause be, and the same is hereby affirmed, with costs and damages at the rate of six per centum per annum. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Justice STORY said that it had been thought that the decisions of the Court had been misunderstood: and the Court, in the case of Crowell v. Randall, 10 Peters, had revised all the cases; and had laid down the law as they wished it should be universally understood. \nThe motion to dismiss the case was sustained. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the Court. \nThis cause comes before us upon a certificate of division of opinion of the judges of the circuit court of West Tennessee. The plaintiffs, Adams and others, brought an action against the defendant, Jones, for the amount of certain goods supplied by them, upon the credit of the following letter of guaranty: -- \n\"Raleigh, September 25th, 1832. \n\"MR. WILLIAM A. WILLIAMS: \n\"SIR, -- On this sheet you have the list of articles wanted for Miss Betsey Miller's millinery establishment, which you were so very good as to offer to purchase for her. I will be security for the payment, either to you, or to the merchants in New York, of whom you may purchase, and you may leave this in their hands, or otherwise, as may be proper. I hope, to you favour and view, will be added all possible favour by the merchants, to the young lady, in quality and prices of goods, as I have no doubt she merits as much, by her late knowledge of her business, industry,  and pure conduct and principles, as any whatever. \"CALVIN JONES.\" \n\"After the compliment that is paid me above, I should hardly be willing to place my name so near it, was I not told it was necessary and proper the merchants should know my handwriting generally, and particularly my signature. \n\"ELIZABETH A. MILLER.\" \nThe list of the articles was appended to the letter. \nUpon the trial of the cause upon the general issue before the jury, it occurred as a question, \"whether the plaintiffs were bound to give notice to the defendant, that they had accepted or acted upon the guaranty, and given credit on the faith of it.\" Upon which question the opinions of the judges were opposed; and thereupon, according to the act of congress, on motion of the plaintiffs, by their attorney, the point has been certified to this Court. A statement of the pleadings, and also a statement of facts made under the direction of the judges, have been certified as a part of the record. Some diversity of opinion has existed among the judges, as to the true nature and extent of the question certified; whether it meant to ask the opinion of this Court, whether, under all the circumstances disclosed in the evidence,  any personal notice to the defendant, or any other notice than what was  made known to Williams, was necessary to fix the liability of the defendant; or whether it meant only to put the general question of the necessity of notice in cases of guaranty. If the former interpretation were adopted, it would call upon this Court to express an opinion upon the whole facts of the case, instead of particular points of law growing out of the same; a practice which is not deemed by the majority of the Court to be correct, under the act of congress on this subject. Act of 1802, ch. 31, sec. 6. The latter is the interpretation which we are disposed to adopt; and the question, which, under this view, is presented, is, whether upon a letter of guaranty addressed to a particular person, or to persons generally, for a future credit to be given to the party in whose favour the guaranty is drawn, notice is necessary to be given to the guarantor, that the person giving the credit has accepted or acted upon the guaranty, and given the credit on the faith of it. We are all of opinion that it is necessary; and that this is not now an open question in this Court, after the decisions which have  been made in Russell v. Clarke, 7 Cranch, 69; Edmondson v. Drake, 5 Peters' Rep. 624; Douglass v. Reynolds, 7 Peters' Rep. 113; Lee v. Dick, 10 Peters, 482; and again recognised at the present term, in the case of Reynolds v. Douglass. It is in itself areasonable rule, enabling the guarantor to know the nature and extent of his liability; to exercise due vigilance in guarding himself against losses which might otherwise be unknown to him; and to avail himself of the appropriate means in law and equity, to compel the other parties to discharge him from future responsibility. The reason applies with still greater force to cases of a general letter of guaranty; for it might otherwise be impracticable for the guarantor  to know to whom, and under what circumstances the guaranty attached; and to what period it might be protracted. Transactions between the other parties, to a great extent, might from time to time exist, in which credits might be given, and payments might be made, the existence and due appropriation of which might materially affect his own rights and security. If, therefore, the question were entirely new, we should not be disposed to hold a different doctrine;  and we think the English decisions are in entire conformity to our own. \nIt is highly probable, that the real questions intended to be raised before this Court, upon the certificate of division, were, whether, upon the whole evidence, Williams was not to be treated as the agent of the defendant, as well as of Miss Miller, in the procurement  of this credit from the plaintiffs; and if so, whether the knowledge of Williams of the credit by the plaintiffs to Miss Miller, upon the faith of the guaranty, was not full notice also to the defendant, and thus dispensed with any further and other notice to the defendant. These were matters of fact, very proper for the consideration of the jury at the trial; and, if satisfactorily established, would have dispensed with any farther notice: but are by no means matters of law upon which we are called, on the present occasion, to give any opinion. \nA certificate will be sent to the circuit court, in conformity to this opinion. \nMr. Justice BALDWIN dissented. \nThis cause came on to be heard on the transcript of the record from the circuit court of the United States for the district of West Tennessee; and on the point and question on which  the judges of the said circuit court were opposed in opinion, and which was certified to this Court for its opinion, agreeably to the act of congress in such case made and provided; and was argued by counsel. On consideration whereof, it is the opinion of this Court, \"That the plaintiffs were bound to give notice to the defendant that they had accepted or acted upon the guaranty, and given credit on the faith of it.\" Whereupon it is now here adjudged and ordered by this Court, that it be so certified to the said circuit court. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the Court. \nThis cause comes before us on a writ of error to the district court of the district of Mississippi. The original action was  debt; brought by the plaintiffs in error, (Rogers & Sons,) against Abel H. Buckhots, upon the following writing obligatory, -- \"Natchez, Mississippi, $3288 03. On the first day of April next, we promise to pay N. Rogers & Sons, or order, three thousand two hundred and eighty-eight dollars three cents, value received, with interest from date.Witness our hands and seals, this first day of January, 1824. Jno. Richards, [seal.] A. H. Buckholts, [seal.]\" Upon such an instrument, by the laws of Mississippi, one of the parties may be sued alone; and accordingly, Richards was no party to the suit. Upon the plea of payment, issue was joined; and, pending the proceedings, Buckholts died, and his administrators were made parties; and upon the trial, a verdict was found for the defendants, for the  sum of eighteen hundred and twenty-six dollars and seventy-four cents, being the balance due to them upon certain set-offs set up at the trial. A bill of exceptions was taken at the trial by the plaintiffs; and judgment having passed for the defendants, the present writ of error has been brought to revise that judgment. \n By the bill of exceptions, it appears, that the  defendants set up as a set-off, an account headed \"Dr. Messrs. N. Rogers & Sons in account current to first of April, 1830, with John Richards & Co. Cr.,\" on the debit side of which account were the two following items, which constituted the grounds of the objections which have been made at the argument; -- \"To cash, $1450 46.\" \"To our acceptance of your draft, payable at six months, $3000.\" To support their case, the defendants offered the testimony of one Rowan; who testified to a conversation had in his presence, in the year 1830, between Buckholts and one of the plaintiffs, relative to their accounts; that the accounts then before them were accounts made out by Rogers & Sons, between themselves and Richards & Buckholts, and John Richards & Co., and John Richards & Lambert & Brothers in account with John Richards & Co., Richards & Buckholts, and John Richards; and an account made out by Buckholts between Richards & Buckholts, and Rogers & Sons. In the conversation relative to these accounts, Buckholts asked Rogers if the several items charged in his account had not been received; and Rogers admitted they had been. Among other items so admitted, were the above items of fourteen  hundred and fifty dollars forty-six cents, and three thousand dollars. In the conversation about the item of fourteen hundred and fifty dollars forty-six cents, Rogers admitted that sum had been received by Rogers & Sons, from Lambert and Brothers, in New York; and that it was part of the proceeds of seventy-four bales of cotton, shipped by Richards & Buckholts to Lambert & Brothers. Very little was said about the item of three thousand dollars. Something was aid between Buckholts and Rogers, about the right to apply moneys to the payment of John Richards' private debts: Buckholts contending that he had no right so to do, and Rogers that he had; but which particular item of payment the witness did not understand. This was all the evidence of payment introduced by the defendants to support the above two items of fourteen hundred and fifty-six cents; and three thousand dollars. The witness stated, that he had understood that John Richards had once failed, before he went into partnership with Buckholts. It was admitted by the defendants, that the item of three thousand dollars was for a bill of exchange, drawn in 1825 by Rogers & Sons on John Richards alone. \nThe plaintiffs then  introduced a letter written by John Richards to the plaintiffs, dated at Natchez, June 6th, 1825, (and which is in  the record,) containing statements relative to a shipment of seventy-eight bales of cotton, made to Lambert & Co. and to certain payments which, the letter says, \"we have left in the hands of Messrs. Lambert, Brothers & Co., to be divided among you and them.\" It then enumerates eight thousand five hundred and fifty dollars, \"intended to pay my own debts;\" and on account of Richards & Co. three thousand dollars. It them adds, that the sum of six hundred and fifty-four dollars fifty-five cents had been that day sent to New Orleans to purchase exchange on New York, to be forwarded, and go to the payment of John Richards and Co.'s debt to plaintiffs, and Messrs. Lambert, Brothers & Co. \nUpon this evidence, the plaintiffs requested the court to charge the jury, that the defendants were not entitled, upon the evidence before them, to the item of fourteen hundred and fifty dollars forty-six cents, as an offset to the plaintiffs' claim; and also that the defendants were not entitled, upon the evidence before the jury, to the item of the three thousand dollars, as  an offset, which charge the court refused to give, and in our judgment, very properly refused to give, as it involved the determination of matter of fact, properly belonging to the province of the jury. \nThe defendants then requested the court to charge the jury as follows: \"First, that if the jury believe the offset of fourteen hundred and fifty dollars was the proceeds of cotton of Richards & Buckhoits, or John Richards & Co., shipped on their joint accounts, then it is a legal offset to a joint debt, and cannot be applied to an individual debt of John Richards, without proof that Buckholts was himself consulted, and agreed to it. Second, that if the jury believed that the draft of three thousand dollars was paid by Richards & Buckholts or John Richards & Co., or out of the effects of either of those firms, with the knowledge of Rogers & Sons, then in law it is a legal offset to the joint debt of the said Richards & Buckholts, or John Richards & Co., and cannot be applied to the private debt of either partner, without the consent of the other partner. Third, that the letter of John Richards, read in this case, is not evidence against Buckholts, unless the jury believe that Buckholts  knew of the letter, and sanctioned its contents.\" The court gave the charge as requested: and the present bill of exceptions has brought before us, for consideration, the propriety of each of these instructions. \nThe first instruction raises these questions: whether the funds of a partnership can be rightfully applied by one partner to the discharge  of his own separate pre-existing debt, without the assent, express or implied, of the other partner; and whether it makes any difference, in such a case, that the separate creditor had no knowledge at the time of the fact of the fund being partnership property. We are of opinion in the negative, on both questions. The implied authority of each partner to dispose of the partnership funds strictly and rightfully extends only to the business and transactions of the partnership itself; and any disposition of those funds, by any partner, beyond such purposes, is an excess of his authority as partner, and a misappropriation of those funds, for which the partner is responsible to the partnership; though in the case of bona fide purchasers, without notice, for a valuable consideration, the partnership may be bound by such acts. Whatever  acts, therefore, are done by any partner, in regard to partnership property or contracts, beyond the scope and objects of the partnership; must, in general, in order to bind  the partnership, be derived from some further authority, express or implied, conferred upon such partner, beyond that resulting from his character as partner. Such is the general principle; and in our judgment, it is founded in good sense and reason. One man ought not to be permitted to dispose of the property, or to bind the rights of another, unless the latter has authorized the act. In the case of a partner paying his own separate debt out of the partnership funds, it is manifest that it is a violation of his duty and of the right of his partners, unless they have assented to it. The act is an illegal conversion of the funds; and the separate creditor can have no better title to the funds than the partner himself had. \nDoes it make any difference, that the separate creditor had no knowledge at the time, that there was a misappropriation of the partnership funds? We think not. If he had such knowledge, undoubtedly he would be guilty of gross fraud; not only in morals, but in law. That was  expressly decided in Sheriff v. Wilks, 1 East, R. 48: and indeed seems too plain upon principle to admit of any serious doubt. But we do not think that such knowledge is an essential ingredient in such a case. The true question is, whether the title to the property has passed from the partnership to the separate ereditor. If it has not, then the partnership may reassert their claim to it in the hands of such creditor. The case of Ridley v Taylor, 13 East, R. 175, has been supposed to inculcate a different and more modified dotrine. But upon a close examination, it will be found to have turned upon its own peculiar circumstances. Lord Ellenborough, in  that case, admitted that one partner could not pledge the partnership property for is own separate debt; and if he could not do such an act of a limited nature, it is somewhat difficult to see how he could do an act of a higher nature, and sell the property. And his judgment seems to have been greatly influenced by the consideration, that the creditor in that case might fairly presume that the partner was the real owner of the partnership security; and that there was an absence of all the evidence (which existed and  might have been produced) to show that the other partner did not know, and had not authorized the act. If it had appeared from any evidence that the act was unknown to, or unauthorized by the other partners, it is very far from being clear, that the case could have been decided in favour of the separate creditor; for his lordship seems to have put the case upon the ground, that either actual covin in the creditor should be shown, or that there should be pregnant evidence, that the act was unauthorized by the other partners. The case of Green v. Draker, 2 Starkie's Rep. 347, before lord Ellenborough, seems to have proceeded upon the ground, that fraud, or knowledge by the separate creditor was not a necessary ingredient. In the recent case Ex parte Goulding, cited in Collyer on Partnership, 283, 284, the vice-chancellor, (Sir John Leach,) seems to have adopted the broad ground upon which we are disposed to place the doctrine. Upon the appeal, his decision was confirmed by lord Lyndhurst. Upon that occasion his lordship said; \"No principle can be more clear, than that where a partner and a creditor enter into a contract on a separate account, the partner cannot pledge the partnership  funds, or give the partnership acceptances in discharge of this contract, so as to bind the firm.\" There was no pretence in that case, of any fraud on the part of the separate creditor: and lord Lyndhurst seems to have put his judgment upon the bround, that unless the other partner assented to the transaction, he was not bound; and that it was the duty of the creditor to ascertain whether there was such assent or not. \nThe same question has been discussed in the American courts on various occasions. In Dob v Halsey, 16 John. Rep. 34, it was held by the court, that one partner could not apply partnership property to the payment of his own separate debt, without the assent of the other partners. On that occasion, Mr. Chief Justice Spencer stated the difference between the decision in New York, and those in England, to be merely this: that in New York the court required the separate creditor who had obtained the partnership paper for the private  debt of one of the partners, to show the assent of the whole firm to be bound; and that in England, the burthen of proof was on the other partners to show their want of knowledge or dissent. The learned judge added: \"I can perceive  no substantial difference, whe-ther the note of a firm be taken for a private debt of one of the partners by a separate creditor of a partner, pledging the security of the firm; and taking the property of the firm, upon a purchase of one of the partners, to pay his private debt. In both cases, the act is equally injurious to the other partners.It is taking their common property to pay a private debt of one of the partners.\" The same doctrine has been, on various occasions, fully recognised in the supreme court of the same state. And we need do no more than refer to one of the latest: the case of Evernghim v. Ensworth, 7 Wend. Rep. 326.Indeed, it had been fully considered long before, in Livingston v. Roosevelt, 4 John. Rep. 251. \nIt is true, that the precise point now before us, does not appear to have received any direct adjudication; for in all the cases above mentioned, there was a known application of the funds or securities of the partnership to the payment of the separate debt. But we think that the true principle to be extracted from the authorities is, that one partner cannot apply the partnership funds or securities to the discharge of his own private debt without their  consent; and that without their consent their title to the property is not divested in favour of such separate creditor, whether he knew it to be partnership property or not. In short, his right depends, not upon his knowledge that it was partnership property, but upon the fact, whether the other partners had assented to such disposition of it or not. \nIf we are right in the preceding views, they conpletely dispose of the second instruction. The point there put involves the additional ingredient, that the separate debt and draft of Richards, for the three thousand dollars, was, with the knowledge of the plaintiffs, (Rogers & Sons,) paid out of the partnership funds; and if so, then, unless that payment was assented to by the other partner, it was clearly invalid, and not binding upon him. It is true, that the  draft of three thousand dollars was drawn on Richards alone; and, therefore, it cannot be presumed that the plaintiffs had knowledge that it was accepted by the partnership, or paid out of the partnership funds. But the question was left, and properly left to the jury to say whether the plaintiffs had such knowledge; and if they had, unless the other partner consented,  the payment would be a fraud upon the partnership.  With the question, whether the jury have drawn a right conclusion, it is not for us to intermeddle.IT was a matter fairly before them upon the evidence; and the decision upon matters of fact was their peculiar province. \nThe third instruction admits of no real controversy. The letter purports to be written by Richards alone, and not in the name of the firm, or by the orders of the firm. It embraces topics belonging to his own private affairs, as well as to those of the firm. Under such circumstances; not being written in the name of the firm; it cannot be presumed that the other partner had knowledge of its contents, and sanctioned them, unless some proof to that effect was offered to the jury. If the other partner did not know of the letter, or sanction its contents, it is plain that he ought not to be bound by them; and such was the instruction given to the jury. \nUpon the whole, our opinion is, that the judgment of the court below ought to be affirmed, with six per cent. interest, and cost. \nThis cause came on to be heard on the transcript of the record from the district court of the United STates for the district  of Mississippi, and was argued by counsel.On consideration whereof, it is now here adjudged and ordered by this Court, that the judgment of the said district court in this cause be, and the same is hereby affirmed, with costs and damages, at the rate of six per centum per annum. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the Court. \nThis is the case of a bill, purporting to be a bill of review. The substantial facts, as they appear on the record, are as follows: Gabriel J. Johnson being the owner in remainder of a five acre lot,  No. 9, in Louisville, Kentucky, of which his mother, Enfield Johnson, was tenant for life, under the will of his father, and being also the owner in fee, by another title, of another piece of land adjoining the five acre lot, (a part of the slip No. 2,) on the 12th day of November, A. D. 1818, conveyed the same in mortgage  to James D. Breckenridge, to secure the latter for his endorsements of three certain notes of Johnson to Ruggles Whiting, each for four thousand dollars, and for any other notes and contracts which Breckenridge should thereafter make, execute, accept, or endorse, for the benefit of Johnson. Afterwards, on the 9th day of August, A. D. 1820, Johnson, and Breckenridge, as his surety, being indebted to the Bank of the United States in the sum of nine thousand nine hundred and thirty-one dollars and thirty-seven cents, arrangements were made between them and Whiting, by which Whiting assumed the payment of the same debt,and gave his note therefor to the bank accordingly; and as security for the due payment thereof, Johnson and his mother, Enfield Johnson, Breckenridge, and Whiting, on the same day executed a mortgage of the five acre lot and slip of land above mentioned, to the Bank of the United States, reciting, among other things, the foregoing arrangement. \nThe condition of the mortgage, among other things, stated, that it was agreed by the parties, that after the satisfaction of the said demands due by Whiting to the bank, and by Gabriel J. Johnson to Whiting, the estate, or the residue  thereof, or any surplus, if money, by the sale thereof, should be paid or conveyed to Enfield Johnson or her assigns. The mortgage also contained a stipulation for the sale of the premises, to meet the payment of the debt due to the bank. In April, 1823, the debt due and thus secured to the bank remaining unpaid, a bill for a foreclosure and a sale was brought by the bank, in the Circuit Court of the United States for the District of Kentucky; and to that bill, Gabriel J. Johnson, Enfield Johnson, and Whiting were made parties. But Breckenridge was not made a party. At the November term of the Circuit Court, A. D. 1826, a decree of foreclosure of all the equity or right of redemption of the defendants in the mortgaged premises was passed; and a further decree, that the premises should be sold by commissioners. The sale took place accordingly; the bank became the purchasers; and the sale was confirmed by the Circuit Court, at the May Term, 1827. In the intermediate time between the original decree of foreclosure and the sale, viz., on the 26th of February, 1827, Whiting died in Massachusetts, leaving the plaintiffs in the present bill, Paulina Whiting, and Helen B. Whiting, and  one L. R. Whiting (since dead without issue) his children and heirs at law; who were then infants under age; and the youngest, Helen, did not come of age until 1831. \nThe present bill is brought by Paulina Whiting and Helen B. Whting, by James Richardson, administrator of Ruggles Whiting, and by Gabriel J. Johnson and Enfield Johnson, against the Bank of the United States; and after stating the proceedings in the original suit upon the mortgage, and that the sale was made at a great  sacrifice of the property, it relies on the following grounds of error in the proceedings, decree, and sale in the original suit. 1. That it was irregular and erroneous to entertain the bill and pronounce the decree for foreclosure and sale, without Breckenridge being made a party defendant. 2. That it was irregular and erroneous to sell the property mortgaged, without a revival of the suit against the heirs of Whiting. 3. That it was unjust and oppressive to sell in the manner and at the price when the sale took place. \nThe answer of the bank denies all equity in the plaintiffs, and insists that the decree and sale were fair and just. It also denies that Whiting or Breckenridge had any title  to the property; and insists that they joined in the mortgage merely to complete the arrangements made between Johnson and themselves. It also denies that the death of Whiting was known at the time of the sale. It states that the property was, after the purchase by the bank, improved, and parts thereof sold to bona fide  purchasers for valuable considerations; and by reason of the improvements and the extension of the city, parts of the grounds so sold are now among the most beautiful and densely built parts of the city. The answer also states, that Whiting died involvent and deeply indebted to the bank, by certain other judgments and notes. \nSuch are the material facts and statements in the case, and upon them, so far at least as the present bill of review is concerned, there is no controversy between the parties. The prayer of the bill is, that the proceedings may be revived, (as the word stands on the record, probably by mistake, for reviewed;) and that the decrees and sale may be set aside, that the plaintiffs may be permitted to redeem; and for other relief. \nSome suggestions have been made as to the nature and character of the present bill -- whether it is to be  treated as a bill of review, or what other is its appropriate denomination. As the original decree, which it seeks to review, was properly, according to our course of practice, to be deemed recorded and enrolled as of the term in which the final decree was passed, it is certainly a bill of review in contradistinction to a bill in the nature of a bill of review; which latter bill lies only when there has been no enrollment of the decree. Being a bill brought by the original parties and their privies in representation, it is also properly a bill of review in contradistinction to an original bill in the nature of a bill of review; which latter bill brings forward the interests affected by the decree other than those which are founded in privity of representation. The present bill seeks to revive the suit by introducing the heirs of Whiting before the Court; and so far it has the character of a bill of revivor. It seeks also to state a new fact, viz., the death of Whiting, before the sale; and so far it is supplementary. It is, therefore, a compound bill of review, of supplement, and of revivor; and it is entirely mainainable as such, if it presents facts which go to the merits of  the original decree of foreclosure and sale. \nIt has also been suggested at the bar, that no bill of review lies  for errors of law, except where such errors are apparent on the face of the decree of the Court.That is true in the sense in which the language is used in the English practice. In England, the decree always recites the substance of the bill and answer and pleadings, and also the facts on which the Court founds its decree. But in America the decree does not ordinarily recite either the bill, or answer, or pleadings; and generally not the facts, on which the decree is founded. But with us the bill, answer, and other pleadings, together with the decree, constitute what is properly considered as the record. And, therefore, in truth, the rule in each country is precisely the same, in legal effect; although expressed in different language; viz., that the bill of review must be founded on some error apparent upon the bill, answer, and other pleadings, and decree; and that you are not at liberty to go into the evidence at large in order to establish an objection to the decree, founded on the supposed mistake of the Court in its own deductions from the evidence. \n Having made these explanations, which seemed proper with reference to the arguments pressed at the bar, we may now return to the consideration of the direct points presented for the consideration of the Court. The third and last error relied on in the bill, has been abandoned at the argument; and therefore it need not be examined. The other two remain to be disposed of. And first, as to the supposed error in not making Breckenridge a party to the original bill. Assuming that he was a proper party to that bill, still it is to be considered, that it was an objection which ought properly to have been taken by the present parties at the original hearing, or upon the appeal (if any) before the appellate Court. And upon a bill of review it cannot properly be relied on as matter of error, unless it can be shown that the nonjoinder has operated as an injury or mischief to the rights of the present plaintiffs. No such injury or mischief has been shown, or is pretended. Breckenridge is not bound by the original decree, because he was no party thereto; and, therefore, his interests cannot be prejudiced thereby. But if they were, he, and he alone, has a right to complain, and to seek  redress from the Court; and not the plaintiffs, who are not his representatives, or entrusted with the vindication of his rights. Breckenridge has made no complaint and sought no redress. We think, therefore, that this error, if any there be, not being to the prejudice of the plaintiffs, cannot furnish any ground for them to maintain the present bill; for no party to a decree can, by the general principles of equity, claim a reversal of a decree upon a bill of review, unless he has been aggrieved by it; whatever may have been his rights to insist on the error at the original hearing, or on an appeal. \nIn the next place, as to the sale of the mortgaged premises after the death of Whiting, without a revival of the suit against his heirs. It is not even pretended in the bill of review, that there was any fraud in the sale; nor upon the argument has any irregularity even been insisted on. What then is the gravamen? That the land was sold honestly and fairly, but for a less price than its real value.  Now, such an objection, even in the mouth of Whiting himself, if he had been living, would have constituted no valid objection to the sale, or the confirmation thereof; but  at most would have furnished only a motive to induce the Court, in its discretion, to have ordered a resale, or to have opened the biddings. It would be no matter of error whatever. If this be a correct view of the subject, it is plain that the heirs of Whiting cannot be entitled to be put in a better predicament than Whiting himself; and no decree in equity ought to be reversed for matter of mere favour, and not of right. \nBut is the objection itself, in principle, well founded? That depends upon this; whether the decree of foreclosure and sale is to be considered as the final decree in the sense of a Court of Equity, and the proceedings on that decree a mere mode of enforcing the rights of the creditor, and for the benefit of the debtor; or whether the decree is to be deemed final only after the return and confirmation of the sale by a decretal order of the Court. We are of opinion  that the former is the true view of the matter. The original decree of foreclosure and sale was final upon the merits of the controversy. The defendants had a right to appeal from that decree, as final upon those merits, as soon as it was pronounced, in order to prevent an irreparable  mischief to themselves. For, if the sale had been completed under the decree, the title of the purchaser under the decree would not have been overthrown, or invalidated even by a reversal of the decree; and consequently the title of the defendants to the lands would have been extinguished; and their redress upon the reversal would have been of a different sort from that of a restitution of the land sold. In Ray vs. Law, (3 Cranch R. 179,) it was held by this Court, that a decree of sale of mortgaged premises, was a final decree in the sense of the Act of Congress, upon which an appeal would lie to the Supreme Court. This decision must have been made upon the general ground, that a decree, final upon the merits of the controversy between the parties, is a decree upon which a bill of review would lie, without and independent of any ulterior proceedings. Indeed, the ulterior proceedings are but a mode of executing the original decree, like the award of an execution at law. If this be the true view of the present decree, and the proceedings thereon, then it is plain that this bill of review is not maintainable for two reasons, each of which is equally conclusive. The first is, that  no error is shown in the original decree, for the only pretended error is in the sale under the decree.The second is, that this bill of review was that brought within five years after the original decree was rendered in the lifetime of Whiting; and the statute of limitations, having once begun to run, cannot be stopped by any subsequent intervening disabilities. \nIf, then, the original decree was unobjectionable and conclusive; if there has been no fraud in the subsequent sale, pursuant to that decree; that if there has been, in a legal sense, no prejudice to any rights of the plaintiffs in the original decree, or the sale, then,  although there was no revivor before the sale, there is no error upon which a bill of review will lie to entitle the parties to a reversal. We do not say whether the Circuit Court might or might not in its discretion have required a revival of the suit before the sale was confirmed, if the fact of the death of Whiting had been distinctly brought to its knowledge. But we do mean to say, that the nonrevival was not matter of error, for which the proceeding on the sale under the original decree, (for that is all which the present bill seeks to redress,)  can or ought to be reversed. \nThe decree of the Circuit Circuit dismissing the bill, is, therefore, affirmed with costs. \nThis cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Kentucky, and was argued by counsel. On consideration whereof, it is now here ordered and decreed by this Court that the decree of the said Circuit Court in this cause be, and the same is hereby, affirmed with costs. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the Court. -- \nThis is the case of a writ of error to the Circuit Court of the District of Columbia, for the county of Alexandria. There are many irregularities in the proceedings on the record; but as, in our judgment, they are all waived or cured  by the agreement of the counsel spread upon the record, which is, as to the matters in controversy in the suit, conclusive upon the parties, and constituted the basis of the proceedings at the trial and of the special verdict on which the judgment was given for the original plaintiffs in the Court below, it is unnecessary to discuss their intrinsic force or validity. The main question in the case is, whether the voluntary stranding of a ship in a case of imminent peril, for the preservation of the crew, the ship, and cargo, followed by a total loss of the ship, constitutes a general average, for which the property saved is bound to contribution. We say that this is the main question, because the special verdict finds that there was a voluntary running on shore of the brig Hope; that there was no other possible means of preserving the crew, the ship, and the cargo; that the running ashore was for this express object; and that, after the storm was over, the brig was left high and dry, and it was found impracticable to get her off: so that the facts are sufficiently precise and full to present the question of general average in its most simple and comprehensive form. Accordingly our  attention will, in the first instance, be addressed to the consideration of it. \nUpon this question the maritime jurists of continental Europe are not entirely agreed in opinion; and our own jurisprudence presents conflicting adjudications. It becomes the duty of this Court, therefore, to examine and weigh these opposing opinions, and to ascertain, as far as it may, the true principle which ought to govern us on the present occasion. \nIt is admitted on all sides, that the rule as to general average is derived to us from the Rhodian law, as promulgated and adopted in  the Roman jurisprudence. The Digest states it thus. If goods are thrown overboard in order to lighten a ship, the loss incurred for the sake of all shall be made good by the contribution of all. Lege Rhodia cavetur, ut si levande navis gratia jactus mercium factus est, omnium contributione sarciatur, quod pro omnibus datum est. Dig. lib. 14, tit. 2, c. 1. That the case of jettison was here understood to be put as a mere illustration of a more-general principle, is abundantly clear from the context of the Roman law, where a ransom paid to pirates to redeem the ship is declared to be governed by the sme rule.  Si navis a piratis redempta sit -- omnes conferre debere. Dig. lib. 14, tit. 2, c. 2, s. 3. The same rule was applied to the case of cutting away or throwing overboard of the masts or other tackle of the ship to avert the impending calamity; Dig. lib. 14, tit. 2, c. 3, c. 5, s. 2; and the incidental damage occasioned thereby to other things. Without citing the various passages from the Digest which authorize this statement, it may be remarked that the Roman law fully recognised and enforced the leading limitations and conditions to justify a general contribution, which have been ever since steadily adhered to by all maritime nations.First, that the ship and cargo should be placed in a common imminent peril; secondly, that there should be a voluntary sacrifice of property to avert that peril; and, thirdly, that by that sacrifice the safety of the other property should be presently and successfully attained. Hence, if there was no imminent danger or necessity for the sacrifice, as if the jettison was merely to lighten a ship too heavily laden by the fault of the master in a tranquil sea, no contribution was due. See Abbott on Shipp. p. 3, ch. 8, s. 2. 1 Emerig. Assur. ch. 12, s.  39, art. 7. p. 604. Ib. s. 40, p. 605. So, if the ship was injured or disabled in a storm, without any voluntary sacrifice; or if she foundered or was ship wrecked without design, the goods saved were not bound to contribution. Dig. lib. 14, tit. 2, c. 2, s. 1. Ib. c. 7. 1 Emerig. on Assur. ch. 12, s. 39, p. 601-603. On the other hand, if the object of the sacrifice was not attained; as if there was a jettison to prevent shipwreck, or to get the ship off the strand, and in either case it was not attained, as there was no deliverance from the common peril, no contribution was due. Dig. lib. 14, tit. 2, c. 5, c. 7. 1 Emerig. on Assur. ch. 12, s. 41, p. 612, p. 616. The language of the Digest upon this last point is very expressive. Amisse navis damnum collationis consortio non sarcitur per eos, qui merces suas naufragio liberarunt -- nam hujus equitatem tunc admitti placuit, cum jactus remedio ceteris in communi periculo, salva, nave, consultum est. It is this language, which seems in a great measure to have created the only doubt among the commentators as to the extent and operation of the rule; some of them having supposed that the safety of the ship (salva nave) for the voyage,  was in all cases indispensable to found a claim to contribution; whereas others, with far more accuracy and justness of interpretation, have held it to apply as a mere illustration of the general doctrine, to a jettison, made in the particular case, for the very purpose of saving the ship  and the residue of the cargo.  In truth, the Roman law does not proceed upon any distinction as to the property sacrificed, whether it be ship or cargo, a prt or the whole; but solely upon the ground that the sacrifice is voluntary, to avert an imminent peril; and that it is in the event successful by accomplishing that purpose. And, therefore, Bynkershoek has not hesitated to declare the general principle to be, that whatever damage is done for the common benefit of all is to be contributed for by all; and that as this obtains in a variety of cases, so especially by the Rhodian law it obtains in cases of jettison. Generaliter placere potest, damnum pro utilitate communi factum, commune esse, utque in variis speciebus id obtinere aliunde constat, sic ex lege Rhodia, cum maxime obtinet in jactu. Bynker. Quest. Priv. Juri. lib. 4, ch. 24, introd. \nThese remarks seem proper  to be made in order to meet the suggestions thrown out at the argument, with reference to the actual bearings of the Roman law on the question before the Court; and they may also serve in some measure to explain the true principles by wich the question ought to be decided. \nIn examining the foreign jurists, it will be found that there is far less disagreement among them than has been generally suppposed. All of them that have come within our own researches, or those of counsel, admit that a voluntary stranding of the ship constitutes a case of general average, if there is not a total loss of the ship. Emerigon in one passage lays down the doctrine in the following broad language. \"It sometimes happens that, to escape from an enemy or to avoid an absolute shipwreck, the ship is run on shore in a place which appears the least dangerous. The damage suffered on this account is a general average, because it has been done for the common safety.\" 1 Emerigon Assur. ch. 12, s. 13, p. 408. And for this he relies upon the Consolato del Mare, upon Roccus, Targa, Caseregis, and Valin. It is true that in another place he says, \"The damages which happen by stranding are a simple average for  the account of the proprietors;\" citing the French ordinance: and then adds, \"But it will be a general average if the stranding has been voluntarily made for the common safety, provided always that the ship be again set afloat; for if the stranding be followed by shipwreck, then it is, save who can.\" 1 Emerigon Assur. ch. 12, s. 13, p. 614. And he then refers to the case of jettison, where the ship is not saved thereby, in which case there is no contribution. Emerigon Assur. ch. 12, s. 13, p. 616. Now the analogy between the two cases is far from being so clear or so close as Emerigon has supposed. In the case of the jettison to avoid foundering or shipwreck, if the calamity occurs, the object is not attained. But in the case of the stranding, whatever is saved, is saved by the common sacrifice of the ship; although the damage to her may have been greater than was expected. Surely the question of contribution cannot depend upon the amount of the damage sustained by the sacrifice; for that would be to say, that if a man lost all his property for the common benefit, he should receive nothing; but if he  lost a part only he should receive full compensation.No such principle  is applied to the total loss of goods sacrificed for the common safety: why then should it be applied to the total loss of the ship for the like purpose? It may be said that unless the ship is got off the voyage cannot be performed for the cargo; and the safety and prosecution of the voyage are essential to entitle the owner to a contribution. But this principle is nowhere laid down in the foreign authorities; and certainly it has no foundation in the Roman law. It is the deliverance from an immediate impending peril, by a common sacrifice, which constitutes the essence of the claim. The Roman law clearly shows this; for by that law it was expressly declared, that if by a jettison in a tempest, the ship was saved from the impending peril, and afterwards was submerged in another place, still contribution was due from all the property which might be fished up, and saved from the calamity. Sed si navis, que intempestate jactio mercium unius mercatoris, levata est, in alio loco submersa est, et aliquorum merces per urinatores estracte sunt, data mercede, rationem haberi debere ejus, cujus merces in navigatione levande navis causa jacte sunt ab his, qui postea sua per urinatores servaverunt.  Digest, lib. 14, tit. 2, 1, 4, s. 1. Boucher Instit. au Droit Maritime, (1805,) p. 449.Abbott on Shipp. part 3, ch. 8, s. 13. And, besides, in a case like that now before us, the cargo might be transshipped in another vessel, and the voyage be successfully performed. But, in truth, it is the safety of the property, and not of the voyage, which constitutes the true foundation of general average. If the whole cargo were thrown overboard to insure the safety of the ship, the voyage might be lost; but nevertheless the ship must contribute to the jettison. Why, then, if the ship is totally sacrificed for the safety of the cargo, should not the same rule apply? Suppose a ship, with a cargo of cotton on board, is struck by lightning and set on fire, and it becomes indispensable for the salvation of the cargo to sink the ship on a rocky bottom, and she is thereby totally lost -- would not this constitute a case of contribution? Suppose a cargo of lime were accidentally to take fire in port, and it became necessary, in order to save the ship, that she should be submerged, and the cargo was thereby totally lost, but the ship was saved with but a trifling injury; would it not be a case  of contribution? \nAs far as we know, Emerigon stands alone among the foreign jurists, in maintaining the qualification that it is necessary to a general average that the ship should be got afloat again after a voluntary stranding. Valin certainly does not support it; for he only states, that if to avoid a total loss by shipwreck or capture, the master runs his vessel ashore, the damage which he shall suffer on that account, and the expenses and the charge of putting her afloat again, are general average; and he gives the reason, because all has been done for the common safety. 2 Valin, Com. 168. Ib. 205, 207, 209.See, also, 2 Bell. Com p. 589, 5 edit. 1826. Beyond all doubt, Valin is correct in this statement; but then he was merely discussing the  point, whether the expenses of getting the ship afloat was, when she was got off, a subject of general average; and not the point, whether, if the ship was totally lost, the whole  loss was not a general average. His reasoning was diverso intuitu. \nOn the other hand, the Consolato del Mare, one of the earliest and most venerable collections of maritime law, lays down the general rule, without any such qualification.  Consolato del Mare, ch. 192, 193; Boucher, Consult de la Mer, ch. 195, 196, s. 487 -- 494; as also does Roccus, in his Treatise de Navibus et Naut. Roccus de Nav. et Naut. n. 60. indeed, it may be found stated in the same general form in the Roman law, where it is said, without referring to the manner and extent of the damage, that the whole damage voluntarily done to the ship for the common good, must be borne by a common contribution. Sed si voluntate vectorum, vel propter aliquem metum id detrimentum factum sit, hoc ipsum sarciri oportet. Dig. Lib. 14. tit. 2, c. 2, s. 1, c. 3, l. 5, s. 1. And Vinnius in his commentary, after speaking of an involuntary shipwreck, in which case there shall be no contribution, adds; that the damage suffered by a sacrifice made for the good of all, to avoid a common danger, is to be made good by the contribution of all. Vinnius Packium ad Legem Rhodiam, c. 5. Voet, in his commentary on the Digest, is far more explicit, and asserts, that if the ship is voluntarily run on shore for the common safety, and thus has perished, the goods being saved, contribution is due. Voet ad Pand. lib. 14, tit. 2, s. 5. Bynkershoek has treated the very question  in his usual clear and luminous manner. After citing a decision of certain maritime judges of Amsterdam, who held that if a cable of the ship was voluntarily cut to avert a peril, and thereby the anchor as well as the cable was lost, contribution should not be made for the anchor, because there could not be said to be a voluntary jettison; and who, also, for the like reason, held, that if the ship was run on shore and lost, the goods should not contribute, because there could be no contribution unless the ship was saved, (quia nihil contribuitur, nisi salva nave:) he expressed his pointed disapprobation of the decision, saying, that it exhibited very little acuteness, for in all such cases the goods cannot otherwise be saved, and the peril compels us to the act; and the safety of the ship, in case of a jettison, is not otherwise sought than, the ship being saved, the goods may thereby be saved: and, therefore, the goods saved, and the damage occasioned thereby, ought to be subject to contribution. And he accordingly holds, that the loss of the ship, like the loss of her tackle, is to be deemed a general average, wherever she is sacrificed by a voluntary stranding for the general  safety; insisting that this doctrine is fully supported by other authorities cited by him.The doctrine of the Amsterdam judges upon the principal point before them, has been utterly repudiated by all maritime nations in later times, as it seems to have had no foundation in any antecedent adjudications. See Cleirac Us et Coutumes de la Mer, art. 21-23. Indeed, there are early positive ordinances of some of the maritime states, which positively provide  for the very case of a total loss of the ship by a voluntary stranding as a general average; (as, for example, the ordinance of Konigsburg,) and others in which it is not usually, if not necessarily, implied. See 2 Magens, 200, &c. It deserves consideration, also, that the modern maritime writers, Jacobsen, Benecke, and Stevens, all admit this is to be the result of the foreign jurisprudence and ordinances. Jacobsen Sea Laws, by Frick, b. 4, ch. 2, p. 358. Benecke on Insur. 219-221. Stevens on Average, 33, 34, edit. 1824. See 2 Bell's Com. p. 589, 5th edit. 1826.Stevens, also, notwithstanding his own opposition to the rule, admits that it appears to have been the practice at Lloyd's, as far back as the time of Mr. Weskett;  and that recent opinions of eminent counsel in England, taken on the very point, fully admit and confirm it. Stevens on Average, 33-35, edit. 1824. Dr. Browne, in his Treatise on the Civil and Admiralty Law, adopts the same opinion, saying, \"It has been disputed whether, when a ship was voluntarily run ashore and lost, but the cargo saved, it should contribute, because the rule was that no contribution took place when the ship was lost. But it was truly held that the rule would be absurdly applied to a case where the ship was grounded purposely to save the merchandise, and that with success.\" 2 Browne's Civil and Adm. Laws, 199 \nFrom this review of some of the leading opinions in foreign jurisprudence, brief and imperfect as it is, it seems to us that the weight of authority is decidedly in favour of the present claim for general average. \nIn respect to domestic authorities, we have already had occasion to intimate that there are conflicting adjudications. In Bradhurst vs. The Columbian Insurance Company, 9 Johns. Rep. 9, the Supreme Court of New York held that where a ship is voluntarily run ashore for the common good, and she is afterwards recovered, and performs the voyage,  the damages resulting from this sacrifice, are to be borne as a general average.but tht where the ship is totally lost, it is not a general average. The ground of this opinion, as pronounced by Mr. Chief Justice Kent, seems mainly to have been, that this was the just exposition of the Rhodian and Roman law, and that the weight of authority among foreign jurists clearly supported it. With great respect for the learned Court, we have felt ourselves compelled to come to an opposite conclusion as to the true interpretation of the Roman text, and of the continental jurists. We agree with the learned Court, that when a ship is voluntarily run ashore, it does not, of course, follow that she is to be lost. The intention is not to destroy the ship, but to place her in less peril, if practicable, as well as the cargo. The act is hazardous to the ship and cargo, but it is done to escape from a more pressing danger; such as a storm, or the pursuit of an enemy, or pirate.But, then, the act is done for the common safety; and if the salvation of the cargo is accomplished thereby, it is difficult to perceive why, because from inevitable calamity the damage has exceeded the intention or expectation  of the parties, the whole sacrifice should be borne by  the ship owner, when it has thereby accomplished the safety of the cargo. If one mast is cut away, and thereby another mast is unexpectedly and unintentionally also carried away by the falling of the former, it has never been supposed that both did not come into the common contribution. If, in the opening of the hatches, and the jettison of some goods to  lighten the ship, other goods are unexpectedly and unintentionally, but accidentally, injured or destroyed, it has never been doubted that the latter were to be brought into contribution, to the extent of the loss or damage done to them. It is not like the case of saving from a fire, tamquam ex incendio, save who can. But it is like the saving of the cargo from destruction by fire, by the scutling and submersion of the ship. Upon principle, therefore, we cannot say that we are satisfied that the doctrine of the Supreme Court of New York can be maintained; for the general principle certainly is, that whatever is sacrificed voluntarily for the common good, is to be recompensed by the common contribution of the property benefited thereby. \nBut the same  question has come before other American Courts, and has there, with the full authority of the New York decision before them, received a directly opposite adjudication. Our late brother Mr. Justice Washington, than whom few judges had a clearer judgment, or more patient spirit of inquiry, had the very point before him in Caze vs. Reilly, 3 Wash. Cir. C. Rep. 298; and after the fullest argument, and the most extensive research into foreign jurisprudence, he pronounced an opinion that there was no difference between the case of a partial and that of a total loss of the ship, by a voluntary stranding, and that both constituted equally a case of general average. The Supreme Court of Pennsylvania had a short time before, in Sims vs. Gurney, 4 Bin. Rep. 513, adopted the same doctrine; and again in Gray vs. Waln, 2 Serg. and Rawle, 229, upon a re-argument of the whole matter, with all the subsequent lights which could be brought before it, adhered to that opinion: and this has ever since been the established law of that Court. We have examined the reasoning in these opinions, and are bound to say that it has our unqualified assent: and we follow without hesitation the doctrine, as well  founded in authority and supported by principle, that a voluntary stranding of the ship, followed by a total loss of the ship, but with a saving of the cargo, constitute when designed for the common safety a clear case of general average. \nHaving disposed of the main question, it now remains to say a few words as to some minor points suggested at the argument. In the first place, as to the objection, that here the stranding does not appear to have been made after a consultation with the officers and crew, and with their advice. There is no weight in this objection. A consultation with the officers may be highly proper in cases which admit of delay and deliberation, to repel the imputation of rashness and unnecessary stranding by the master. But if the propriety and necessity of the act are otherwise sufficiently made out,  there is an end of the substance of the objection. Indeed, in many if not most of the acts done on these melancholy occasions, there is little time for deliberation or consultation. What is to be done must often, in order to be successful, be done promptly and instantly by the master, upon his own judgment and responsibility. The peril usually calls  for action, and skill, and intrepid personal decision, without discouraging others by timid doubts or hesitating movements. The very point was decided in Sims vs. Gurney, 4 Bin. Rep. 513, upon ground entirely satisfactory. And it has been well remarked by more than one maritime jurist, that too scrupulous an adherence to forms on such occasions, has justly a tendency to excite suspicions of fraud. Targa has stated, that in all his experience of sixty years, he never knew of but five cases of regular jettisons, all of which were suspected of fraud, because the forms had been too well observed. Abbott on Shipp. pt. 3, ch. 8, sec. 3. 1 Emerig. Assur. ch. 12, sec. 40, p. 605. \nThe only other remaining point is, whether freight ought to have been brought into the account, either as a part of the loss, or of the contributory value. The Auditor's Report which was adopted by the Court, allowed the freight as a part of the loss, and also of the contributory value. It is perfectly clear that if a part of the loss, the freight ought also to contribute. And it seems to us, that as by the loss of the ship, the freight was totally lost for the voyage, it was properly included in the loss,  and as a sacrifice by the ship owner for the common benefit. The goods, if reshipped in another vessel must be presumed to be so for a new and correspondent freight to be borne by the ship owner or the shipper, according as the one or the other should seek to perform the entire voyage for his own benefit. The ship owner could only earn the original freight by a transshipment; and if he abandoned that intent, the shipper must enter into a new contract and enterprise with others. In the case of Caze vs. Reilly, 3 Wash. C.C. Rep. 298, although the objection as to freight was saved, it was abandoned at the argument. In the case of Gray vs. Waln, 2 Serg. and Rawle, 229, the freight lost was expressly allowed in the general average. No other objections have been taken to the Auditor's Report, or his adjustment thereof; and therefore upon the other particulars of that adjustment we give no opinion. \nUpon the whole our opinion is that the judgment of the Circuit Court ought to be affirmed, with costs. \nThis cause came on to be heard on the transcript of the record from the Circuit Court of the United States, for the District of Columbia, holden in and for the county of Alexandria, and  was argued by counsel. On consideration whereof, it is ordered and adjudged by this Court, that the judgment of the said Circuit Court in this cause be, and the same is hereby, affirmed with costs and damages at the rate of six per centum per annum. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Justice  STORY delivered the opinion of the Court. \nThis is a writ of error to the Supreme Judicial Court of the state of Maine. The original action was assumpsit on a policy of insurance, dated the 17th of June, 1833, whereby the Ocean Insurance Company insured three thousand dollars on the schooner Mary, owned by Polleys, at sea or in port, for the term of one year, commencing the risk on the 11th of July, 1833, at noon, and ending the 11th of July, 1834, at noon. The schooner was totally lost by the perils of the sea on the 10th of June, 1834, while the policy was in force. At the trial, on the general issue, it appeared in evidence that a sloop was built in 1816, and enrolled by the name of Sophronia, and was again enrolled in the customhouse in Portland, by the same name on the 24th of March, 1822. The schooner Mary was built upon the keel, floor timbers, and naval timbers of the said sloop Sophronia, the size was enlarged nearly twelve tons, and the name of Mary was given to her after being so enlarged; and this was known to the Insurance Company at the time of executing the policy. A certificate of one Mark Leavit was procured by Polleys, and presented to the customhouse to obtain  an enrolment of the schooner Mary, without any fraudulent intent to deceive or defraud, but with  fair and honest intentions, as the jury believed. But the enrolment of the Sophronia was not first surrendered and delivered up at the customhouse before the issuing of the enrolment of the Mary, on the 3d of June, 1833. Upon these facts, which appear upon the bill of exceptions taken at the trial, the counsel for the Insurance Company objected to the admission in evidence of the said enrolment of the Mary of the 3d of June, 1833, as contrary to the laws of the United States; but the Judge who sat at the trial overruled the objection, and the enrolment was admitted. The same counsel further insisted that the said schooner on the voyage on which she was lost, was sailing under circumstances rendering her liable to forfeiture for a violation of the laws of the United States; and that therefore a policy on a vessel pursuing such a voyage, was not valid, or legal and binding. But the said Judge also overruled this objection as insufficient to bar the action. Other points arose at the trial, upon which, however, it is unnecessary for us to dwell; because they are in no shape  cognizable by this Court in the exercise of its appellate jurisdiction over the judgments and decrees of the state Courts, under the 25th section of the judiciary act of 1789, ch. 20. The jury found a verdict for the plaintiff, (Polleys,) which was confirmed by the whole Court; and judgment passed thereon accordingly for him. \nTwo questions have been argued before us. The first is, whether upon the face of the record any case is made out for the exercise of the appellate jurisdiction of this Court under the 25th section of the act of 1789, ch. 20. The next is, whether the state Court has in fact misconstrued the laws of the United States, upon the  points in controversy at the trial to the prejudice of the Insurance Company. \nIn our judgment it is wholly unnecessary to consider the last question, because we are of opinion that upon the face of the record no case is shown for the exercise of the appellate jurisdiction of this Court. The only clause of the 25th section of the judiciary act of 1789, ch. 20, conferring this appellate jurisdiction, which is applicable to the present case, is, that where there is drawn in question in the state Court the construction of a clause  of a statute of the United States, and the decision of the state Court is against the title, right, privilege or exemption set up or claimed by either party, under that clause of the statute; the settled construction of this Court is, that to bring any cause within the reach of the 25th section, it must appear upon the face of the record of the state Court, either by express terms, or by clear and necessary intendment, that the question did actually arise in the state Court, not that it might have arisen, or have been applicable to the case; and that the question was actually decided, not that it might have been decided by the state Court, against the title, right, or privilege, or exemption set up by the party. If therefore the decision made by the state Court is upon the face of this record entirely consistent with the construction of the statute contended for by the party appellant, no case is made out for the exercise of the appellate jurisdiction of this Court. \n Let us now apply this doctrine to the circumstances of the present case. The first objection was to the admission of the enrolment of the Mary as evidence to the jury upon the ground that it was \"contrary  to the laws of the United States;\" meaning, undoubtedly, that it was obtained contrary to the requirements of the act of Congress concerning the registering and recording of ships or vessels, passed on the 31st of December, 1792, ch. 45. That act, in the 14th section, provides, among other things, that when any ship or vessel which shall have been registered pursuant to the act, shall be altered in form or burden by being lengthened or built upon, or from one denomination to another, by the mode or method of riging or fitting, the ship or vessel shall be registered anew by her former name; otherwise she shall cease to be deemed a ship or vessel of the United States: and upon her being registered anew, the former certificate of registry is to be delivered up to the collector: and if not so delivered up, except where it is destroyed or lost or unintentionally mislaid, the owner is made liable to the forfeiture of five hundred dollars. Now, it is observable, that the present policy contains no warranty or representation of the national character of the Mary; and therefore the only assignable reason for offering the new enrolment, (as it is called,) meaning the new certificate of registry,  in evidence was to establish the ownership of the vessel to be in Polleys. For this purpose it was clearly admissible, however, irregularly or wrongfully this enrolment may have been obtained at the customhouse. The Court, might, therefore, very properly have admitted the paper in evidence for this purpose, and, for aught that appears on the record, actually did so, without in the slightest degree contesting that it had been obtained contrary to the laws of the United States. In this view, as a matter of evidence proper for the consideration of the jury on the question of ownership, it is clear, that the decision does not fall within the appellate jurisdiction of this Court, under the 25th section of the act of 1789, already referred to. \nThen as to the other point. The objection made by the counsel for the Insurance Company was, that the schooner (Mary,) on the voyage on which she was lost, was sailing under circumstances rendering her liable to forfeiture for a violation of the laws of the United States; and that therefore a policy on a vessel pursuing such a voyage was not valid, or legal and binding. But the Judge also overruled this objection, as insufficient to bar the action.  The objection was founded on the 27th section of the ship registry act of 1792, ch. 45, above referred to; which declares, that if any certificate of registry or record shall be fraudulently or knowingly used for any ship or vessel not then actually entitled to the benefit thereof, according to the true intent of this act, such ship or vessel shall be forfeited to the United States, with her tackle, apparel, and furniture. The objection then, as insisted on by the counsel for the Insurance Company, involved two distinct propositions. The first was, that the schooner was sailing on the voyage under circumstances which rendered her liable to forfeiture. The second was, that the policy on  her was therefore void. Now, the first might have been most fully admitted by the Court, and yet the second have been denied, upon the ground that the policy was a lawful contract in itself, and only remotely connected with the illegal use of the certificate of registry; and in no respect designed to aid, assist, or advance any such illegal purpose. We all known that there are cases where an contract may be valid, notwithstanding it is remotely connected with an independent illegal  transaction, which, however, it is not designed to aid or promote. The case of Armstrong vs. Toler, 11 Wheat. R. 258, presented a question of this sort, and was decided in favour of such a contract.But cases might easily be put, where the doctrine itself would admit of far more simple and easy illustration. Suppose the mary had been repaired in port, and the shipwrights had known the circumstances under which she had obtained the new certificate of registry; would they in consequence of such knowledge alone, have lost their title to recover for their own work and labour? Suppose a vessel had been actually forfeited by some antecedent illegal act, are all contracts for her future employment void; although there is no illegal object in view, and the forfeiture may never be enforced? \nIn order to bring the present case within the jurisdiction of this Court, it must clearly appear on the face of the record that the state Court did decide against the construction of the laws of the United States, insisted on by the Insurance Company: for if the Court did decide in favour of that construction, and yet held the policy valid upon other grounds consistently with that decision, we have nothing  to do with the latter point, and have no right to inquire, whether it was a just application of the general principles of commercial law, or not. Now, so far is it from appearing on the face of the record,  that the state Court decided against the construction of the laws of the United States, insisted on by the Insurance Company; that the contrary may be fairly inferred from the language of the Court in overruling the objection. The objection was overruled as \"insufficient to bar the action;\" that is, the action on the policy was still maintainable, notwithstanding the Mary \"was sailing under circumstances rendering her liable to forfeiture for a violation of the laws\" of the United States. \nIn the exercise of the appellate jurisdiction of this Court over the decisions of state Courts, we are not at liberty to resort to forced inferences and conjectural reasonings, or possible or even probable suppositions of the points raised and actually decided by those Courts. We must see plainly that the decision was either directly made of some matter within the purview of the 25th section of the act of 1798; or that the decision could not have been what it was without necessarily  involving such matter. In the present case we can arrive upon the record at no such conclusion. The consequence is, that the cause must be dismissed for want of jurisdiction. \nWe have been furnished with a copy of the opinion of the learned Judges in the state Court in this very case; and we are gratified in  finding that it abundantly confirms the deductions which we have drawn from the record. But it is proper to add, that that opinion, if it had been otherwise, could not have had any influence upon our present opinion; since it constitutes no part of the record; and it is to the record, and the record only, that we can resort to ascertain our appellate jurisdiction in cases of this sort. \nThe writ of error is accordingly dismissed for want of jurisdiction. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the Court. \nThis is a case of an appeal from a decree of the Circuit Court of the county of Alexandria, dismissing a bill in equity brought by the appellant, Ann Lupton, the widow and devisee of the testator, David Lupton. The bill was first filed in June, 1833, although a subpoena was issued in November, 1831, and it seeks to open the accounts of the administration, upon the allegation of certain errors and omissions therein, as they were settled in three successive accounts of the executor, rendered ex parte, and allowed in the Orphans Court of Alexandria, in October, 1816, in April, 1818, and in January, 1821. The bill charges, among other things, that the  estate was charged by the executor with the payment of a supposed debt of $4459 43, to one Peter Saunders, without any sufficient or legal evidence that it was in fact due. It also charges that the executor omitted to collect of John M'Pherson and Son a debt due to the estate of $4083 50, upon their note; and also specifies certain credits which have been omitted to be given by the executor; and contains a general allegation that other debts have been lost to the estate by the negligence of the executor. The prayer of the bill is in effect to open the accounts, with general liberty to surcharge and falsify. There is no charge in the bill that the executor has been guilty of any fraud; nor any reason given, nor facts stated, to excuse the long delay and laches in bringing the bill. The answer denies all equity, and insists upon the correctness of the accounts as settled, and contains a full explanation, in reply to the specific charges of the bill. It also relies on the settlement of the accounts in the Orphans Court, and the lapse of time, as a bar to the suit. \nThe opinion which we have formed upon this last point, renders it wholly unnecessary for us to consider several others  which have been discussed at the bar; and especially the objection, that the Orphans Court has exclusive jurisdiction over the matters in controversy. We place this case wholly upon the ground of the lapse of time since the accounts were settled in the Orphans Court, a period, from twelve to sixteen years before the filing of the bill; the total omission of the bill to state any facts or circumstances to account for or excuse this long delay; and the absence of any suggestion of fraud in the settlements. Nothing is more clear than the general rule that ex parte settlements of accounts of this  sort, in the Orphans Court, being matters within the acknowledged jurisdiction of the Court in the administration of estates, are prima facie evidence of their own verity and correctness; and the onus probandi is upon those who seek to impeach them. If they seek to impeach them, it should be by a suit brought recenti facto, within a reasonable time;  and at farthest, within the period prescribed by the statute of limitations for actions at law upon matters of account; or else to assign some ground of exception or disability, within the analogy of the statute, to justify  or excuse the delay. Otherwise it will be imputed to their own voluntary laches; and Courts of equity are never active in lending their aid to stale and neglected claims, for the known maxim of such Courts is, vigilantibus, non dormientibus leges subveniunt. We do not deem it necessary to refer to any authorities on this point, as it has been so long and so fully recognised in this Court; and upon this short ground, we are all of opinion that the decree of the Circuit Court dismissing the bill ought to be affirmed, with costs. \nThis cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Columbia, holden in and for the county of Alexandria, and was argued by counsel. On consideration whereof, it is ordered and decreed by this Court, that the decree of the said Circuit Court in this cause be, and the same is hereby, affirmed, with costs. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the Court. -- \nThis case comes before us upon a certificate of division of opinion of the judges of the Circuit Court of the southern district of New York. The original suit was assumpsit to recover back from the defendant, who is the collector of the port and district of New York, a sum of money paid as duties upon certain imported goods, upon the ground that they were not liable to duty. Upon the trial it appeared, that on the 29th of March, 1837, an entry was made by the plaintiff, as consignee, at the customhouse of New York, of eight cases of cotton gloves, marked B, numbered from 38 to 45, as imported from Liverpool, England. The case, number 43, was designated on the invoice to be examined, and was passed as correct; whereupon the duty was levied upon each of the eight packages  at 25 per centum ad valorem, as being cotton gloves; which duty was secured by a bond, which became due on the 27th of June, 1838. Upon making the entry, the invoice of the goods was produced, and the common oath on such occasions taken and subscribed in the form  prescribed by law. It was proved, that in the year 1838, it was discovered by the plaintiff, that the case numbered 45 did not contain cotton gloves, but actually contained silk hose; and that the plaintiff had paid $127 92 for duties, under the belief that the package contained cotton gloves. On the 25th of April, 1838, the plaintiff addressed a letter to the comptroller of the treasury, requesting to be released from the payment of the duty; to which the comptroller replied on the 27th of  the same month, refusing to do so, upon the ground that whether the goods were composed of silk or of cotton was clearly a matter of fact, and should have been settled before the removal of the goods from the customhouse; and that he did not feel authorized to make the plaintiff's case an exception to the uniform and long established rule of the department, by permitting a revision of the entry. On the 26th of June, 1838, the plaintiff addressed a letter to the defendant, informing him that no duties were payable on the goods; and that in paying the amount he should do it under protest, reserving his legal rights. It was further proved, that the package number 45 never was in the  custody of the collector, nor subjected to the examination of the public appraisers; and that the first intimation that the collector had, that it contained silk hose, was in March or April, 1838. The merchandise contained in the package number 45 was silk hose made of the tow of silk, a coarse quality of silk, but still silk, sometimes called sponged silk; and was well known in commerce under the denomination of hosiery. An affidavit of the plaintiff was read in evidence by the defendant, to show the habitually loose manner in which the plaintiff transacted his business with the customhouse; and in which, among other things, the plaintiff attributed the error in the entry at the customhouse to the ignorance of his own clerk in making the entry, and not being able to understand, from the wording of the invoice, which packages contained gloves, and which hosiery. \nUpon this evidence the following points were presented by the defendant for the opinion of the judges, on each of which the judges were divided in opinion. 1. Whether, assuming that an excess of duties was paid by mistake, under the facts above stated, to the collector, on the before mentioned package number 45, the plaintiff,  under the said facts, is entitled to recover back such excess in a personal action against the collector. 2. Whether the said silk hose was subject to the payment of duty imposed on hosiery by the second clause of the second section of the act of the 14th of July, 1832, ch. 224, entitled, \"An act to alter and amend the several acts imposing duties on imports;\" or whether, as manufactures of silk, not being sewing silk, the same were exempted from the payment of duty by the fourth section of the act of the 2d of March, 1833, entitled, &c., ch. 354, which declares that all manufactures of silk, or  of which silk is the component material of chief value, coming from this side of the Cape of Good Hope, except sewing silk, shall be free. \nAs to the first question, there is no doubt that the collector is generally liable in an action to recover back an excess of duties paid to him as collector, where the duties have been illegally demanded, and a protest of the illegality has been made at the time of the payment, or notice then given that the party means to contest the claim; whether he has paid over the money to the government or not. Nor is there any doubt that a like action  generally lies where the excess of duties has been paid under a mistake of fact, and notice thereof has been given to the collector before he has paid over the money to the government.Both of these propositions are fully discussed and decided in the case of Elliot vs. Swartwout, 10 Peters' R. 137; and if the present point involved nothing more, there would be no substantial ground of controversy. But there are other ingredients in the present case. \nThe goods were actually entered by the plaintiff at the customhouse, by a particular description -- that of cotton goods; and he then swore that the invoice then produced by him was the true invoice received by him, and that the entry contained a just and true account of the same goods; and upon the faith of that entry and oath, the goods were actually delivered to him by the collector without any examination whatsoever. No notice was given to the collector of any mistake until nine or ten months afterwards, when the government was no longer in a condition to ascertain the real state of the facts; and when, of course, it was compelled to rely exclusively upon the evidence furnished by the plaintiff. Now, certainly, it was the duty of  the plaintiff, before making the entry at the customhouse, to have exercised due diligence in examining his papers, and ascertaining the true state of the facts, before he undertook to verify them under the solemnity of an oath. That he was grossly negligent in this particular is plain from his own showing; and that the loss, if any has accrued to him, has accrued from his negligence and inattention to his duty, is equally clear. The question then arises, whether this action is maintainable, not under ordinary circumstances of innocent mistake, but under circumstances of culpable negligence on the part of the plaintiff, and when the government can no longer be replaced in the same situation in which it stood at the time of the original transaction. Upon the best consideration which we can give to the subject, we are of opinion, that the action, under such circumstances, is not maintainable. If a different rule were to prevail, the whole policy of the laws for the collection of duties would be broken in upon; there would be no certainty whatsoever as to the amount or receipt of the revenue; and the grossest evasions and frauds might be practicsed with perfect impunity. Instead  of the invoice or entry, with the accompanying oath of the party, furnishing the just means of ascertaining the nature, and quality, and character of the goods imported, and the amount of duties payable thereon; every thing would be  left loose, and open, in case of contest, to the uncertain evidence to be produced before successive juries. The whole system of guards introduced into the revenue laws, for the purpose of ascertaining the nature, quality, description, and value of imported goods, would in a short time, amount to little more than forms, as vexatious as they would be inefficacious. The act of 1823, ch. 149, in amendment of the former acts for the collection of duties, manifestly lays great stress on the invoice, produced at the time of the entry of the goods at the customhouse, and the accompanying oath of the importer; as the truest and best means of ascertaining the nature, and quality, and values of the goods, and the basis of the duties to be charged thereon; as is apparent from the series of sections from the fourth to the fifteenth sections. Invoices duly verified and authenticated, are deemed a sufficient  title to entry; while others, not  so verified and authenticated, are declared to be deemed to be suspected, and liable to be treated in the same manner as fraudulent invoices. And the 23d section of the act provides, that when goods are admitted to an entry upon invoice, the collector shall certify the same under his official seal; and no other evidence of the value of such goods shall be admitted on the part of the owner in any Court of the United States, except in corroboration of such entry. It seems difficult to resist the conclusion, that though the language of this section is confined in its terms to the invoice value of the goods, because the duties were to be calculated ad valorem thereby, yet that, consistently with its professed objects, it ought to be deemed equally conclusive as evidence of the nature, quality, and description of the goods. At all events, it would seem to be against the whole policy of the act, as well as of the other acts of Congress respecting the collection of the revenue, to permit a man to enter packages of goods by one description, under his solemn oath, and thus to withdraw them from the custody of the collector, without any examination of the contents of the packages; and afterwards  to insist upon another description totally different, and thereby to change the rate of duties, or to claim an exemption from all duties. The public inconveniences attendant upon such a practice, would alone be sufficient to repel any presumption that Congress intended to authorize it, unless there were some explicit provision in favour of it; and the uniform course of the government to disallow it, furnishes strong evidence that the true construction of the act does not justify the practice. The consignee had his choice at the time of the entry, either to rely on his invoice, or to have the contents of each package examined. He chose the former; and the latter is, on the part of the government, no longer practicable -- at least not so far as to be satisfactory or certain in its results. The error, if any there has been, has arisen, as we have already stated, from his own culpable negligence; and Courts of justice do not sit for the purpose of aiding those who seek redress for supposed mischiefs resulting from such negligence. Even Courts of equity will not interfere to assist a party to obtain redress for an injury which he might by ordinary  diligence have avoided;  and, a fortiori, a Court of law ought not, where the other party has, by the very acts or omissions, lost his own proper rights or advantages. \nNo case has been cited, and none has come to our knowledge, where an action has been maintained at law, under circumstances like the present; where money has been sought to be recovered for a mistake of fact occasioned by the culpable negligence of the plaintiff, and where the retaining of it on the other side is not unconscientious. The case here cannot be better than it would have been, if the plaintiff had refused to pay the duty bond; and, to an action on the bond, he had pleaded in his defence the very matters now insisted on. It would certainly have been difficult to have framed a plea to sustain such a defence in point of law. If the objection were to be insisted on, that would seem to have been as proper a mode of meeting it as could have been devised; though, looking to the penal consequences of not paying a duty bond, as it withdraws from the party all future credit at the customhouse while it continues, we do not say that the present mode may not also be appropriate. Lord Mansfield, in Moses vs. Macfarlan, 2 Burr. R. 1005. 1012,  speaking of an action for money had and received, observed that it lies for money paid by mistake, or upon a consideration which happens to fail, or for money got through imposition, (express or implied,) or extortion, or oppression, or an undue advantage taken of the plaintiff's situation, contrary to laws made for the protection of persons under such circumstances. and he added, in one word, the gist of the action is, that the defendant, under the circumstances of the case, is obliged, by the ties of natural justice and equity, to refund the money. In Bize vs. Dickason, 1 Term Rep. 285, he also said: The rule has always been, that if a man has actually paid what the law would not have compelled him to pay, but what in equity and conscience he ought, he cannot recover it back again. But where money is paid under a mistake, which there was no ground to claim in conscience, the party may recover it back again by this kind of action. Now, admitting the entire correctness of this doctrine in its full extent, (and no more than general truth can be imputed to it,) it leaves the whole matter open upon which the present controversy turns; and that is, whether there is any want of conscience  in the collector's retaining this money. And it leaves wholly untouched the ground, what would be the effect if the mistake and the payment consequent thereon, had been the consequence of the culpable negligence or misconduct of the plaintiff himself, without any default on the other side, and where thereby he could not be placed in statu quo. Our opinion is, that, upon principle, under such circumstances, no such action is or ought to be maintainable.In Milnes vs. Duncan, 6 Barn. and Cresw. 671, the party was allowed to recover back money paid under a mistake of fact, there being no laches imputable to him; and that was the very ground of the decision. In that case, Mr. Justice Bayley said: If a party pay money under a mistake of the law, he cannot recover it back. But if he  pay money under a mistake of the real facts, and no laches are imputable to him, in respect of his omission to avail himself of the means of knowledge within his power, he may recover back the money; and he added, in this case, the question is, whether there was, on the part of the plaintiff, at the time when he made the payment, ignorance of the true state of the facts, or any negligence imputable  to him in not availing himself of the means of knowledge within his power So that we here see it admitted that negligence would constitute a good defence to the suit. In Skyring vs. Greenwood, 4 Barn. and Cresw. 281, it was held that money paid by a paymaster to an army officer, could not be recovered back again, or claimed by way of set off, he having been guilty of a breach of duty and of negligence in not communicating to the officer certain information of the disallowance of the claim of the officer, on which the money was paid by the board of ordnance at an earlier period, when his conduct might have  been influenced by it. These cases, although not exactly in point with the present, clearly show that even in cases of money paid under a mistake of facts, if the party has been guilty of negligence, or of a breach of his proper duty in the transaction, he is not entitled to recover back the money, if paid, or to retain it, if unpaid, against the other party, whose rights or conduct have been affected by such negligence or breach of duty. We think the principle a sound one, and should not hesitate to adopt it, even if there were no authority to support it. Its application  to the circumstances of the present case cannot well be questioned. Here, by the conduct and solemn affirmations, under oath, of the plaintiff, the position of the United States has been entirely changed; the property has been delivered up from the custody of the government, without any search or examination, in the perfect confidence that all was right; and we think the plaintiff is now estopped from setting up his own culpable negligence, to excuse him from the payment of the duties, which, by his own entry and oath, he admitted to be due, and thereby obtained a delivery of the goods. \nIn this view of the matter, it might not be necessary for the Court to answer the other question, upon which the Court below was divided, as our answer to the first decides the merits of the plaintiff's case. But as the same question is involved in Hardy vs. Joyt, which has been argued in connexion with the present, we shall now proceed to the consideration of it. The question is, whether silk hose is subject to the payment of the duty imposed on hosiery by the second clause of the second section of the duty act of 1832. ch. 224. That section enacts, that from and after the 3d day of March, 1833,  on the articles therein after mentioned, there shall be levied, collected, and paid, the following duties: First, wool, unmanufactured, certain duties specified in the first clause. Second, (which is the clause in question,) \"On all milled and felled cloth, known by the name of plains, kerseys, or kendal cottons, of which wool shall be the only material, the value whereof shall not exceed thirty-five cents a square yard, five per centum ad valorem; on worsted stuff  goods, shawls, and other manufactures of silk and worsted, ten percentum ad valorem; on worsted yarn, twenty per centum ad valorem; on woollen yarn, four cents per pound, and fifty per centum ad valorem; on mits, gloves, bindings, blankets, hosiery, and carpets and carpetings, twenty-five per cent., except Brussels, Wilton, and treble ingrained carpeting, which shall be at sixty-three cents the square yard, all other ingrained and Venetian carpeting at thirty-five cents the square yard; and except blankets, the value whereof at the place whence exported shall not exceed seventy-five cents each, the duty to be levied upon which shall be five per centum ad valorem; on flannels, bockings, and baizes, sixteen cents  the square yard, on warp laces thirty-five per centum; and upon merino shawls made of wool, all other manufactures of wool, or of which wool is a component part, and on ready made clothing, fifty per centum ad valorem.\" Now, looking to the terms of this clause, and the connexion in which hosiery stands with the other enumerated articles, the natural construction of it would certainly be, that it was restricted to hosiery, ejusdem generis, that is to say, hosiery of wool, or of which wool was a component part. It stands in connexion with mits, gloves, binding, blankets, and carpeting, and the exceptions carved out of it are all articles composed of wool, viz. certain kinds of carpetings and blankets. It is followed by flannels, bockings, and baizes, coach laces, and merino shawls, and then come the sweeping words, \"all other manufactures of wool, or of which wool is a component part;\" which certainly seem to presuppose that all the preceding enumerated articles were of a kindred nature and fabric. The words \"ready made clothing,\" follow this enumeration, and, therefore, are not necessarily governed by the same interpretation since they are not inserted as a qualification of the sweeping  words already referred to, but stand as an independent descriptive specification, capable of being applied to every variety of ready made clothing, whatever may be the fabric. No argument, therefore, can properly be derived from this part of the clause respecting ready made clothing, to control the natural deductions arising from the antecedent language of the same clause. \nBut the case before us does not turn upon the interpretation of the second clause standing alone, but it is materially affected by the fifteenth clause of the same section of the act, which prescribes a rate of duty on manufactures of silk, in the following words: \"On all manufactures of silk or of which silk shall be a component part, coming from beyond the Cape of Good Hope, ten per centum ad valorem, and on all other manufactures of silk, or of which silk is a component part, five per centum ad valorem, except sewing silk, which shall be forty per centum ad valorem.\" Now, this language in its positive import, includes all manufactures of silk except sewing silk; and the very exception of sewing silk, lends additional force to the conclusion, that no other manufactures of silk were intended to be excepted from  the operation of the clause, upon the well known maxim, that an exception in a statute amounts to an  affirmation of the application of its provisions to all other cases not excepted. Upon what ground, then, can this Court say, that silk hose, being a manufacture of silk, is not solely and exclusively liable to the duty imposed by the fifteenth clause of the section? Upon none, unless it manifestly appears to be repugnant to some other provision of the statute. No such repugnancy exists if we construe the word \"hosiery,\" in the second clause of the second section to mean, as in its natural connexion it imports, hosiery of wool, or of which wool is a component part. On the other hand, if we construe \"hosiery\" in this connexion, to include silk hose, then all other manufactures of silk, except sewing silk, are not governed by the fifteenth clause; and thus we create a positive repugnancy between the second and fifteenth clauses. Now, it is the duty of Courts of Justice so to construe all statutes as to give full effect to all the words in their ordinary sense, if this can be properly done; and thus to preserve the harmony of all  the provisions. And besides,  if we are to create an implied exception as to hosiery, the same rule might be applied to silk mits, silk gloves, and silk bindings; and if there are such articles, to carpetings of silk. Indeed, there would be no end to implied exceptions. If the legislature meant specially to except silk hose, or any other particular manufactures of silk from the general language, the natural course would have been to have placed them as exceptions with sewing silk; and the omission is, in our judgment, conclusive to show that none others were intended. \nIf we look back to the duty act of the 19th of May, 1828, ch. 55, which the act of 1832 was designed in a great measure to modify or supersede, and in which, for the first time in our legislature, \"hosiery\" is mentioned, eo nomine; there cannot be a doubt that the legislative intention, then, was confined to woollen hosiery. The second clause of the second section of that act is in the following words: \"On manufactures of wool, or of which wool shall be a component part, except carpeting, blankets, worsted stuff goods, bombazines, hosiery, mits, gloves, caps, and bindings, the actual value of which at the place whence imported shall not exceed  fifty cents the square yard, shall be deemed to have cost fifty cents the square yard, and be charged with a duty of forty per centum ad valorem, &c., &c.\" The third, fourth, fifth, and sixth clauses of the same section lay a particular duty on other manufactures of wool, \"except as aforesaid;\" and then the seventh, taking up the exception, says, \"on woollen blankets, hosiery, mits, gloves, and bindings, twenty-five per cent. ad valorem. On clothing ready made, fifty per centum ad valorem.\" It is impossible, reading these clauses in connexion, not to perceive that the exceptions in the second clause, are wholly of fabrics of wool, or of which wool is a component material; for every exception must be considered in such a case to be of something ejusdem generis. Then follows in the sixth clause, \"On all manufactures of silk, or of which silk is the component material, coming from beyond the Cape of Good  Hope, a duty of twenty per centum ad valorem, &c.; and on all other manufactures of silk, or of which silk shall be a component material, twenty per centum ad valorem.\" Construing, hen, these acts as being in pari materia, if we were at liberty to look beyond the act of  1832, to the antecedent state of the law on this subject, the duty on hosiery, as such, was confined to hosiery of wool, or of which wool is a component part. \nBut if any doubt could be entertained upon the act of 1832, ch. 224, interpreted by itself, or by the antecedent laws, we think none whatsoever can be entertained as to the true intendment and operation of the act of 2d of March, 1833, ch. 354. That act in the fourth section, expressly enacts, that in addition to the articles then exempted from duty by the act of 1832, and other existing laws, from the payment of duties, the following articles, imported from and after the 31st of December, 1833, and until the 30th of June, 1842, shall also be admitted free from duty; \"to wit, bleached and unbleached linens, table linen, linen napkins, and linen cambrics, and worsted stuff goods, shawls, and other manufactures of silk and worsted, manufactures of silk, or of which silk shall be the component material of chief value, coming from this side of the Cape of Good Hope, except sewing silk.\" This section, in express terms, declares that manufactures of silk coming from this side of the Cape of Good Hope, (which is the very predicament  of the silk hose in question,) except sewing silk, shall be free from duty. And it would violate every rule of interpretation to hold, that where the legislature had declared all manufactures of silk, except one, free from duty, the Court should create other exceptions by its own authority, without any express or implied intent on the part of the legislature, manifested in the context to warrant such exceptions. \nUpon the whole, we are of opinion, first, that upon the facts stated, the present action is not maintainable: and, secondly, that silk hose is free of duty under the act of 1833. A certificate will be sent to the Circuit Court, accordingly. \n[*277contd] [EDITOR'S NOTE: The page numbers of this document may appear to be out of sequence; however, this pagination accurately reflects the pagination of the original published document.] \nThis cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the southern district of New York; and on the points and questions on which the judges  of the said Court were opposed in opinion, and which were certified to this Court for its opinion, agreeably to the  act of Congress in such case made and provided; and was argued by counsel. On consideration whereof, it is the opinion of this Court, First, that upon the facts stated in the case, the plaintiff, Bend, is not entitled to recover back the excess of duties paid by him on the package number 45, as mentioned in the case. And, Secondly, that silk hose is entitled to be admitted to entry free of duty, under the act of the 2d of March, 1833, entitled, \"An act to modify the act of the 14th of July, 1832, and all other acts imposing duties on imports;\" which declares that all manufactures of silk, or of which silk is the component material of chief value, coming from this side of the Cape of Good Hope, except sewing silk, shall be free of duty. Whereupon it is ordered and adjudged by this Court, that it be so certified to the said Circuit Court; and that this cause be remanded to the said Court, that further proceedings may be had therein according to law. \nDissent by:", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the Court. -- \nThis is the case of a motion made by the collector of New York for a mandamus to be directed to the district judge of the southern district of New York, under the following circumstances. The collector, on the 26th of December last, made a motion in a certain cause of seizure then depending before the said judge, that the clause of the common monition, issued in that cause, by which (according to the common practice in such cases,) the marshal is directed to detain the goods attached by virtue of the said monition in his custody, until the further order of the Court, be quashed and stricken out; on the ground that the said clause is repugnant to the sixty-ninth section of the act of 1799, ch. 128, entitled, \"An act to regulate the collection of duties on imports and tonnage;\" or that the said monition be so reformed and amended, that the said goods  remain in the custody of the said collector, or such person as he shall appoint for  that purpose, until the proceedings commenced for the forfeiture of the said goods shall be determined, and it be judicially ascertained, whether the same have been forfeited or not, as required by the said sixty ninth section of the act. The district judge after a full hearing pronounced an elaborate opinion, reviewing the whole series of laws on the subject, and refused to grant the motion. The present motion is for a mandamus to compel him to vacate the order denying the original motion of the collector. \nWe are of opinion that this is, in no just sense, a case for a writ of mandamus. This Court has authority given to it by the thirteenth section of the judiciary act of um89, ch. 20 to issue writs of mandamus in cases warranted by the principles and usages of law to any Courts appointed under the authority of the United States. The present application is not warranted by any such principles and usages of law. It is neither more nor less than an application for an order to reverse the solemn judgment of the district judge, in a matter clearly within the jurisdiction of the Court,  and to substitute another judgment in its stead. Now a writ of mandamus is not a proper process to correct an erroneous judgment or decree rendered in an inferior Court. That is properly matter which is examinable upon a writ of error or an appeal, (as the case may require,) to the proper appellate tribunal. Neither can this Court issue the writ upon the ground that it is necessary for the exercise of its own appellate jurisdiction; for the proper appellate jurisdiction, if any in this case, is direct and immediate to the Circuit Court for the southern district of New York. It has been repeatedly declared by this Court that it will not, by mandamus, direct a judge what judgment to enter in a suit; but only will require him to proceed to render judgment. The case of the Life and Fire Insurance of New York vs. Adams in 8 Peters' Rep. 291; and 9 Peters' Rep. 573, is directly in point. \nBut, as there appears to have been some diversity of construction in the different districtsof the United States, of the laws on this subject, and as it is a matter of general concern throughout all the commercial districts, and applicable to the daily pracice of the Courts, and the point has been  fully argued, we think it right to say, that we are of opinion that the construction of the laws of the United States, maintained by the district judge in his opinion, is the correct one, to wit, that by the sixty-ninth section of the collection act of 1799, ch. 128, the goods, wares, and merchandise seized under that act are to be put into and remain in the custody of he collector, or such other persons as he shall appoint for that purpose, no longer than until the proper proceedings are had under the eighty-ninth section of the same act to ascertain whether they are forfeited or not; and that as soon as the marshal seizes the same goods under the proper process of the Court, the marshal is entitled to the sole and exclusive custody thereof, subject to the future orders of the Court. \nThe motion for the mandamus is denied. \n Mr. Justice BALDWIN concurred with the Court, in the opinion that this is not a case for a mandamus. The result of this is that the case is coram non judice. Any opinion which may be given on other points in the case cannot be binding in any case. He was not willing to decide a question, when it was not properly before the Court. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the Court: -- \nThis is the case of a certificate of division of the judges of the Circuit Court,  for the district of Mississippi. The action was assumpsit, founded on the second part of a foreign bill of exchange, by the endorsee against the endorser for non-acceptance. The plaintiffs declared upon the second of the set of exchange, which second of the set was protested for non-acceptance, and the same, with the protest attached thereto, was read to the jury. Whereupon a question arose, whether the plaintiffs could recover upon the said second of exchange without producing the first of the same set, or accounting for its non-production; upon which question the judges were opposed in opinion. And the same has been accordingly certified to this Court under the act of Congress. \nWe are of opinion that the plaintiffs are entitled to recover upon the second of the set without producing the first, or accounting for its non-production. No authority has been referred to which is  exactly in point, nor are we aware that the question has ever been judicially decided. Mr. Starkie, in his work on Evidence, (part iv. p. 228, 1st edit. has said, \"In the case of a foreign bill drawn in sets, both the sets should be produced.\" But for this proposition he has cited no authority.  The question, must, then, be decided upon principle. The object of drawing a foreign bill in sets is for the convenience of the payee, or other holder, to enable him to forward the same for acceptance by different conveyances, and thus to guard against any loss, by accident or otherwise, which might occur if there were but a single bill. But from the very frame of the set, if one is paid or discharged by the acceptor, or other party liable on it, he is ordinarily discharged from the others; since each part contains a condition, that it shall be payable only when the others remain unpaid. Now, when one of the set is protested for non-acceptance, and due notice is given to an endorser, and on the trial of an action brought against him by the endorsee, the same bill of the set on which the protest is made is produced, that is prima facie proof of his being responsible thereon.  Either of the set may be presented for acceptance, and, if not accepted, a right of action presently arises upon due notice against all the antecedent parties to the bill, without any others of the set being presented; for it is by no means necessary that all the parts should be presented for acceptance  before a right of action accrues to the holder. Under such circumstances, it is properly a matter of defence on the other side, to show either that some other bill of the set has been presented and accepted, or paid; or that it has been presented at an earlier time and dishonoured, and due notice has not been given; or that another person is the proper holder, and has given notice of his title to the party sued; or that some other ground of defence exists which displaces the prima facie title made out by the plaintiff. The law will not presume that the other bills of the set have been negotiated to other persons, merely because they are not produced. And the endorser is not put to any hazard or peril by the non-production of them; since, like the acceptor, if he once pay the bill, without notice of any superior adverse claim, by a negotiation of another of the set to another party, he will be completely exonerated. On the other hand, great inconveniences might arise from compelling the plaintiff to produce the other parts of the set, or to account for their non-production; as he might not be able satisfactorily to prove that they had not been negotiated, or that they had been lost.  In short, if the plaintiff, before he could recover, were required to produce or to account for all the parts of the set, he would be obliged, in every case where the bills had been transmitted by different conveyances abroad, to arm himself with proofs of every stage of their route and progress, until they should come back again into his hands, as preliminaries to his right to recover upon their being dishonoured. Such a requirement would create most serious embarrassments in all commercial transactions of this sort; and instead of bills drawn in sets being a public convenience, they would be greatly obstructed  in their negotiability, since the rights and the remedies of the holder might be materially impaired thereby. We are therefore of opinion, that the question upon which the judges of the Circuit Court were opposed, ought to be answered in the affirmative; and we shall send a certificate to the Court accordingly. \nThis cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the district of Mississippi, and on the point and question on which the judges of the said Circuit were opposed in opinion, and which was certified  to this Court for its opinion, agreeably to the acts of Congress in such case made and provided; and was argued by counsel. On consideration whereof, it is the opinion of this Court, that the plaintiffs in this case could recover upon the second of a foreign bill of exchange, which was protested for non-acceptance with the protest thereto attached, without producing the first of the same set, or accounting for its non-production. Whereupon it is ordered and adjudged by this Court, that it be so certified to the said Circuit Court accordingly. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the Court. \nThis is an appeal from a decree in equity of the Circuit Court for the district of Rhode Island, made in a case where the appellant was the original defendant. The facts, so far as they are now before us upon the present record and appeal, are briefly these: -- The original decree was made at the June term of the Circuit Court, 1834; and at the same term, an appeal was taken therefrom to the Supreme Court. The appeal was entered at January term, 1835, of the Supreme Court, and was dismissed for want of due prosecution, at January term, 1837. At the November term of the Circuit Court, 1837, a petition was filed by the original appellant, praying for a new and second appeal from the original decree; which was granted by the Court, upon bonds being given according to law. At the same term, the original plaintiff prayed for further proceedings to enforce the original decree,  whereupon a supplemental decree was passed by the Court for a sale of the premises in controversy, pursuant to the original decree: and from this last decree the original appellant also claimed an appeal, which was granted by the Court upon his giving bonds: and the case now comes before us solely upon this last appeal, the record and proceedings in the original suit not having as yet been brought up and filed in the Court, in pursuance of the second appeal from the original decree already referred to. The question, therefore, whether this second appeal lies to this Court, after the dismissal of the former appeal, is not now before us; and can only arise when the original proceedings shall come before us, upon a due prosecution and entry of the second appeal. The only question now before us is, whether this second appeal is, under the circumstances, a supersedeas to all further proceedings in the Circuit Court to execute the original decree. If it is, then the appeal from the supplemental decree of sale is maintainable; otherwise, it ought to be dismissed. Upon full consideration, we are of opinion that it is no supersedeas: that the Circuit Court is at full liberty, in its discretion,  to proceed to execute the original decree, if it shall deem it advisable: and that the supplemental decree of sale is but a decree in execution of the original decree; and not a final decree in the contemplation of the acts of Congress, from which an appeal like that now before us lies. It must, therefore, be dismissed with costs. But, in order to guard against any misapprehension, it is proper to add, that this dismissal is in no sense to be construed to prevent the original proceedings and decree from being brought before this Court upon the second appeal taken thereto in the Circuit Court, for full consideration, whether it lies or not. \n This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the district of Rhode Island, and was argued by counsel. On consideration whereof, it is the opinion of this Court, that the supplemental decree of sale, in execution of the original decree, in this case, is but an execution of the original decree, and not a final decree from which an appeal lies to this Court. Whereupon it is ordered, adjudged, and decreed by this Court, that this appeal be, and the same is hereby, dismissed  with costs; and that this cause be, and the same is hereby, remanded to the said Circuit Court, with directions that the said Court may, in its discretion, proceed to execute the original decree, if it shall deem it adviseable. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the Court. \nThis is a writ of error to the Circuit court for the district of Maryland. The original action was assumpsit brought by the United States against the plaintiffs in error, who were the original defendants, to recover from them, as assignees under a general assignment of the property of the firm of Smith and Buchanan, the amount of certain duties alleged to be due from the said firm upon certain importations in the brig Unicorn and the ship Brazilian, out of the funds in the hands of the assignees, upon the ground of an asserted right of priority of the United States to payment out of the same funds. \n At the trial, upon the general issue, the material facts appeared as follows. In the years 1818 and 1819 Smith and Buchanan, and Hollins and M'Blair, two separate commercial firms in Baltimore, imported, on their own account as owners, a quantity of goods from Calcutta in the brig Unicorn and ship Brazilian above mentioned,  on which the present duties were claimed. Smith and Buchanan were the importers and owners of two-thirds of the cargo of the ship, and five-ninths of that of the brig; and that proportion went to their possession and use. The remainder of both cargoes belonged to Hollins and M'Blair. The entries of both cargoes were made at the customhouse at Baltimore by John S. Hollins, one of the firm of Hollins and M'Blair, as imported in the vessels, respectively, by Hollins and M'Blair, and Smith and buchanan; and Hollins gave bonds for the duties in the common form in his own name; and James A. Buchanan, of the firm of Smith and Buchanan, and Lemuel Taylor, who is admitted to be a mere surety, also executed the same bonds. The condition of the bonds was for the payment of the duties on the goods \"entered by the above bounden John S. Hollins, for Smith and  Buchanan, and Hollins and M'Blair, as imported\" in the ship and brig respectively. Upon these bonds the United States afterwards instituted actions against each of the obligors, and recovered judgments in the Circuit Court for the District of Maryland. These judgments have been revived, and are now in full force and unreversed. Smith and Buchanan became insolvent; and after  the rendition of the judgments, Taylor also became insolvent under the insolvent laws of Maryland. One Rosewell L. Colt became the trustee of Taylor; and afterwards, under the treaty of indemnity with France, a large sum of money was awarded to him by the commissioners; and a large sum of money was also awarded to Smith and Buchanan, which has been received by the original defendants as their assignees, and is more than sufficient to pay the sums now claimed by the United States, but not enough to pay the partnership debts of the firm of Smith and Buchanan. Taylor applied to the treasury department for the usual certificates granted to claimants by the awards under the treaty; but they were refused by the department upon the ground of Taylor's indebtment to the United States upon the aforesaid bonds  and judgments. Since that period an arrangement has been made between the government and Colt, the trustee, by which a sufficient sum of the moneys so due by Taylor is reserved in the treasury to secure the amount of the judgments on the bonds against Taylor, and the residue has been paid over to the trustee. And the present action has been brought by the United States for the benefit of Taylor's trustee, in order to give to the latter the full rights and remedies of the United States to a priority of payment out of the moneys of Smith and buchanan, in the hands of the defendants as their assignees. To repel the supposed equity in Taylor, as a surety, the defendants offered to prove that at the period of the application of Taylor for the benefit of the insolvent laws, he was largely indebted to Smith and Buchanan, and in a sum more than sufficient to cover the whole amount due upon the duty bonds aforesaid, and still remained so indebted. The Court rejected the evidence, and to this rejection the defendants excepted. And this constitutes the first bill of exceptions.  Upon this we have no more to say than that we think the ruling of the Court was clearly right. Whatever  might be the merits of such an equitable claim in any suit brought by Taylor or his assignee against Smith and Buchanan, or their assignees; it could have no proper place in a suit brought by the United States to recover demands justly due to them for duties. It was, as to them, res inter alios acta; and the United States were not called upon to engage in or to unravel any of the accounts and set-offs existing between those parties, in a suit at law like the present. \nAfterwards the United States asked an instruction to the jury, which was given to the jury, to which the defendants excepted. The defendants then prayed certain instructions to the jury, which the Court refused to give; to which refusal the defendants also excepted. These exceptions are spread at large upon the record, and constitute the second bill of exceptions. It is unnecessary to recite them at large, as they are all resolvable into the leading points which have been so fully argued at the bar; and we shall therefore proceed at once to the consideration of these points. \nThe first question is, whether Smith and buchanan were ever personally indebted for these duties; or, in other words, whether the importers  of goods do, in virtue of the importation thereof, become personally indebted to the United States for the duties due thereon; or the remedy of the United States is exclusively confined to the lien on the goods, and the security of the bond given for the duties. It appears to us clear upon principle, as well as upon the obvious import of the provisions of the various acts of Congress on this subject, that the duties due upon all goods imported constitute a personal debt due to the United States from the importer, (and the consignee for this purpose is treated as the owner and importer,) independently of any lien on the goods, and any bond given for the duties. The language of the duty act of the 27th of April, 1816, ch. 107, under which the present importations were made, declares that \"there shall be levied, collected, and paid,\" the several duties prescribed by the act on goods imported into the United States. And this is a common formulary in other acts laying duties. Now, in the exposition of statutes laying duties, it has been a common rule of interpretation derived from the principles of the common law, that where the duty is charged on the goods, the meaning is that it is  a personal charge on the owner by reason ofthe goods. So it was held in Attorney-general vs. , 2 Anst. R. 558. where a duty was laid on wash in a still; and it was said by the Court that where duties are charged on any articles in a revenue act, the word \"charged\" means that the owner shall be debited with the sum; and that this rule prevailed even when the article was actually lost or destroyed before it became available to the owner. Nor is there any thing new in this doctrine; for it has long been held that in all such cases an action of debt lies in favour of the government against the importer, for the duties, whenever by  accident, mistake, or fraud, no duties, or short duties have been paid. \nThe question has also been asked, at what time the right of the government to the duties accrues in the fiscal sense of the terms. The answer is, at the time when the goods have arrived at the proper port of entry. This is the established rule adopted by the government in all cases where there has been a new act passed, increasing or diminishing the duties to be paid on goods imported after a specified period. The same doctrine was affirmed by this Court in the  cases of The United States vs. Vowell, 5 Cranch, 368; and of Arnold vs. The United States, 9 Cranch, 104. But although the duties thus accrue to the government as a personal debt of the importer, upon the arrival of the goods in the proper port of entry; yet it is but a debitum in presenti solvendum in futuro, according to the requisitions of the revenue collection act of the 2d of March, 1799, ch. 128; and, therefore, if a deposit of the goods is made by the importer, or a bond is given by him for the duties, pursuant to the provisions of that act, the importer is entitled to the full credit allowed by that act. But it is a mistake to suppose that if a deposit is made of the goods, either with or without a bond given for the duties, the rights of the government for the duties are limited to the lien upon the goods; and cannot, if they are lost or destroyed, be made a personal charge against the importer. On the contrary, the revenue collection act of 1799, ch. 128, s. 62, expressly  declares that the goods deposited shall be kept by the collector with due and reasonable care, at the expense and risk of the party on whose account they have been deposited. Our opinion,  therefore, on this point is, that the duties due upon goods imported, constitute a personal debt, and charge upon the importer, as well as a lien on the goods themselves. \nIn the next place, was the debt due for the duties on the goods imported, in the present case extinguished by giving the bond by Hollins, in the manner before stated? We have no doubt that these bonds, being voluntary bonds, are valid; and that hollins and his sureties are estopped to deny their validity. But the question is not whether they are valid; but whether they are the proper statute bonds contemplated by the revenue act of 1799, ch. 128. It is to be observed that the present case is not one where the bonds were given by the sole importer of the goods; so that the sole question would then be, whether the bond of the same party, who was personally liable for the duties, supposing the bond to cover all the duties due and payable on the goods, was an extinguishment of the simple contract debt for those duties. But the present is a case where one of several partners, and one of several joint importers, has given his separate bonds for the duties due by law by all the importers, either as partners or as part  owners; and therefore, where the true question is whether such bonds under such circumstances amount to an extinguishment of the debt due by all the  other importers, as partners or as part owners. It is certainly encumbent upon those who assert the affirmative, to show by some clear and determinate language of the revenue collection act of 1799, ch. 128, that the collector was thus authorized to take the separate bonds of one of the importers for the debt of all; and that it was the legislative intention that such separate bonds, when taken, should operate as an extinguishment of the liability of all the other importers. Now, it is plain, that where the goods are received on deposit, the whole goods, and not merely the share of the partner giving the bonds, are liable for the duties. \nUpon a careful review of the other provisions of the act, we are equally well satisfied that in every case within the act, the bond for the duties is required to be given by all the persons who are the importers, whether they be partners or part owners; and that the collector is not by law authorised to take the separate bond of one of the importers in extinguishment of the joint liability  of all. The language of the 62d section of the act is, \"that all duties on goods, wares, or merchandise imported shall be paid, or secured to be paid, before a permit shall be granted for landing the same; and where the amount of such duty on goods imported in any ship or vessel, on account of one person only, or of several persons jointly interested, shall not exceed fifty dollars, the same shall be immediately paid; and if it exceed that sum, shall, at the option of the importer or importers, be paid, or secured to be paid, by bond.\" Now, construing this language distributively, as in our judgment it ought to be construed, to mean by the importer when there is one only, and by all the importers when there is more than one, there is not the slightest difficulty in giving full effect to every word of the act. Construe it the other way, and the word \"importers\" has no appropriate use, which is not included in the other language. The very form of the bond given in the same section, also, shows that it was the intent of the act that all the importers should be parties to the bond; for it prescribes, \"Know all men by these presents that we (here insert the name of the importer or consignee;  or if by an agent the name of such agent, and of the importers or consignees, and the sureties, their place of abode, and occupation,) &c.\" It is not unimportant, also, to consider what would be the consequence of a different construction of the act; for if it would lead to great insecurity in the collection of the public revenue, and enable importers to substitute almost at their own discretion the liability of one of the firm, or one part owner for the liabilities of all, it would open the way not only to many intentional evasions and frauds upon the just right of the government, but also, in cases of the death or insolvency of the acting partner, or part owner, leave the government without redress against those who had almost exclusively enjoyed all the benefits of the importation. On the other hand, the construction which we put upon the act imposes the burden upon those who have enjoyed the benefits; and creates a common interest in a vigilant and prompt  discharge of that burden. Nor is there any inconvenience in it; for if all the importers are not present, a letter of attorney may readily be executed, which will meet every exigency of commercial business. And  we cannot but think that the 25th section of the act of 1823, ch. 149, which provides that any bond to the United States entered into for the payment of duties by a merchant belonging to a firm, in the name of such firm, shall equally bind the partner or partners in trade of the person or persons by whom such bond shall have been executed, was intended to meet cases of this sort; and that it demonstrates the understanding of Congress, that by the existing law then in force, all the partners were required to join in the bond for the duties. \nThe remaining point is, whether under the circumstances of the present case, the government has actually received payment of the duties in controversy. We think it has not. By the payment of the moneys due under the French treaty, and the awards of the commissioners, there was originally in the hands of the government the sum of sixty thousand dollars awarded to Smith and Buchanan, which was properly and primarily applicable to the discharge of these very duties. But by mere mistake, arising from the circumstance that hollins alone appeared the principal in the bonds, and Smith and Buchanan being unknown to have been the original importers, that  sum was paid over by the government to the present defendants, as assignees. Had the facts been known, the present controversy would have stopped at the threshold, by recouping or retaining the amount from the awards. The government has now in its possession the funds, under the awards due to Taylor, the surety on these bonds; and it certainly had the power, if it pleased, to appropriate the same  in payment of the debt. The question is, whether it has so done. Looking to the whole transactions, we are satisfied that it has not. It retains the funds of Taylor in its hands as security for payment, if the present suit should not be successful; and it has allowed the suit to be brought in the name of the United States, for the benefit of Taylor. It has thus carried out the intent and spirit of the act of 1799, ch. 128, sec. 65, which declares that the surety paying a bond for duties shall have and enjoy the like advantage, priority, or preference for the receipt of the said moneys out of the effects of the insolvent, as are reserved and secured to the United States. We think, then, that no payment has been made; but that Taylor's funds have been held as a mere special  deposit for the indemnity of the government, and to abide the event of the suit; and that to give a different construction to the acts of the officers of the government would defeat their true objects, as well as the purposes of substantial justice. \nUpon the whole, we are of opinion that the judgment of the Circuit Court ought to be affirmed. \nThe case of Nathaniel Williams, and another, vs. The United States, which was submitted to the Court upon the argument in  the present case, is far less stringent in its circumstances in favour of the defendants; and involves far less difficulty. The judgment in that case is also affirmed. \nThis cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the district of Maryland, and was argued by counsel. On consideration whereof, it is ordered and adjudged by this Court, that the judgment of the said Circuit Court in this cause be, and the same is hereby, affirmed. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the Court. \nThis is the case of a motion made on behalf of Myra Clarke Whitney, for a mandamus to the Circuit Court of the eastern district of Louisiana. The petition on which the motion is founded states that a bill in equity is now pending in the said Circuit Court, in which the petitioner is plaintiff, against Richard Relf and others, defendants; that it is understood to be the settled determination of the district judge not to suffer chancery practice to prevail in the Circuit  Court; that her right to proceed in her suit has been denied, until she shall cause copies of her bill in the French language to be served upon the defendants or some of them, and until she shall file documents, which are not made exhibits in the cause; and then that all further proceedings in the cause shall be in conformity with the existing practice of the Court, which existing practice is understood to mean the practice prevailing in the Court in civil cases generally, in disregard of the rules established by the Supreme Court to be observed in chancery cases. The prayer of the petition is for a mandamus in the nature of a writ of procedendo, to compel the  Court to proceed according to chancery practice, to award an attachment, and compel Relf to answer her bill, and to suffer the petitioner in all things to proceed in the cause in such manner as the constitution and laws of the United States, and the principles and usages in equity will authorize. A copy of the bill, and the orders and proceedings of the district judge thereon, are presented with the petition. \nThat it is the duty of the Circuit Court to proceed in this suit according to the rules prescribed by the  Supreme Court for proceedings in equity causes at the February term thereof, A.D. 1822, can admit of no doubt. That the proceedings of the district judge, and the orders made by him in the cause, which are complained of, are not in conformity with those rules, and with chancery practice, can admit of as little doubt. But the question before us is not as to the regularity and propriety of those proceedings, but whether the case before us is one in which a mandamus ought to issue. And we are of opinion that it is not such a case. The district judge is proceeding in the cause, however irregular that proceeding may be deemed; and the appropriate redress, if any, is to be obtained by an appeal after the final decree shall be had in the cause. A writ of mandamus is not the appropriate remedy for any orders which may be made in a cause by a judge in the exercise of his authority; although they may seem to bear harshly or oppressively upon the party. The remedy in such cases must be sought in some other form. \nThe motion for the mandamus is therefore denied. \nOn petition for a mandamus or for a rule to show cause why such writ should not issue requiring the judges of the ninth judicial  circuit to proceed in this cause, according to the rules of equity. On consideration of the motion made in this cause by Mr. Jones, on a prior day of the present term of this Court, to wit, on Saturday, the 26th day of January last, and of the argument of counsel thereupon had, it is now here ordered, adjudged, and decreed by this Court, that the said motion be and the same is hereby overruled. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the Court. \nThis is a writ of error to a judgment of the Circuit Court of the District of  Georgia, rendered in an action in which M'Gran, the defendant in error, was originally plaintiff. \nIn the spring of 1833, M'Gran, a merchant in Georgia, shipped two hundred bales of cotton, consigned to the plaintiffs in error, a house of trade in Liverpool, England, there doing business under the firm of William and James Brown and Company, for sale on  his account. The shipment was made under an arrangement with the house of Brown, Brothers, and Company, of New York, composed (as seems admitted) either wholly or in part of the partners in the Liverpool house, by which the New York house accepted a draft drawn upon them by M'Gran for nine thousand dollars, the invoice value of the cotton being only nine thousand one hundred and fifty-one dollars and seventy-seven cents; and were to reimburse themselves by a draft on the Liverpool house. Accordingly, the New York house on the 12th of March, 1833, addressed a letter to the Liverpool house, in which they state: \"We enclose a bill of lading for two hundred bales of cotton, shipped by M'Loskey, Hagar, and Company, of Mobile, per ship Mary and Harriet, on acount of Mr. Thomas M'Gran of Augusta, on which you will please effect  insurance. This cotton cost, per invoice, nine thousand one hundred and fifty-one dollars and seventy-seven cents. We have accepted Mr. M'Gran's draft against this cotton, for nine thousand dollars, for which we shall draw on you for our reimbursement when it matures. In handing this draft for acceptance, Mr. M'Gran says, he would not have drawn for so large an advance, were it not that there is a balance at his credit with you, which has accumulated within the past two years; so that if this should not produce enough to meet the advance, it will be covered by what is at his credit.\" The existence of any such balance was utterly denied at the trial; and the Liverpool house contended that there was a balance the other way. \nThe cotton duly arrived at Liverpool on or about the 9th of April, 1833.The New York house drew on the Liverpool house for their reimbursement, a bill dated the 7th of May, 1833, for one thousand eight hundred and seventy-one pounds and nine pence, at sixty days' sight, being the amount of the advance; and that bill was accepted by the Liverpool house, on the 3d of June, 1833, and became payable, and was paid on the 5th of August following. On the 3d of June,  1833, the very day of the acceptance, the Liverpool house sold the two hundred bales of cotton, (the market then being on the rise,) on a credit, for the nett sum of two thousand and seventy-three pounds four shillings and sixpence. After deducting the charges (which amounted to nearly twenty-five per cent.) which became due and payable on the 16th of September, 1833; and according to an account current rendered to M'Gran, by the Liverpool house on the 29th of June, 1833, the whole transactions between the parties, including the sale of this cotton, left a balance of three hundred and ninety-two pounds fifteen shillings and eight pence, due to M'Gran. \nAt the time when the shipment was made, and the advance arranged therefor, no instructions were given by M'Gran, touching the sale of the cotton.It accordingly went to the consignees, as factors for sale, the advances having been as above mentioned without any other contract than that implied by law as between a principal and a factor, making advances; that is to say, that the factor is to make  sale of the goods, consigned to him, according to his own judgment, in the exercise of a sound discretion as to the time and mode  of sale, having regard to the usages of trade at the place of sale; and to reimburse himself out of the proceeds for his advances, and other balance due him. \nAfter the shipment and advance were so made, viz., on the 20th of April, 1833, M'Gran addressed a letter to the Liverpool house, in which, after acknowledging the receipt of letters of the 4th and 5th of March, from them, he added: \"If you have any cottons on hand when this reaches you, in which I am interested, I wish you to hold them until you hear from me again.\" The Liverpool house, in a reply to this letter on the 24th of May, 1833, used the following language: \"We are in possession of your esteemed favour of the 20th ultimo, and your wishes in respect to the cotton we now hold on your account, are noted accordingly.\" At this time by advices received from other correspondents, the Liverpool house were in possession of information that, at least as early as the 8th of April, 1833, M'Gran had failed in business. \nOn the 22d of July, 1833, M'Gran wrote a letter to the Liverpool house, acknowledging the receipt of their letter of the 24th of May, in which he says: \"I have your favour of the 31st (the 24th) of May, and note the  contents. You will please sell my two hundred bales of cotton soon after  the receipt of this, unless you are of opinion you can do better by holding a little longer.\" This letter was received by the Liverpool house on or about the 23d day of August, 1833. \nOn the 7th of June, 1833, the Liverpool house informed M'Gran of the sale of the cotton: and in a letter under date of the 30th of July, 1833, in reply thereto, M'Gran expressed his surprise at the sale; and added: \"I beg leave to refer you to my letter of the 20th of April last, the receipt of which you have acknowledged, instructing you not to sell any cottons you had on hand, in which I am interested until you heard from me again. Why did you sacrifice my cottons, as the draft drawn by Brown, Brothers, and Company at sixty days on account of these cottons, could not have been accepted more than a day or two before, as it went forward by the packet of the 8th of May. Therefore, you had sixty days before you had any money to pay for me.\" And after some other remarks in the style of complaint, he adds: \"You will please take notice, that I do not recognise the sale, and do not consider you authorized to sell the cotton  before the time the draft drawn on you by Brown, Brothers, and Company against this cotton, falls due. If the price is higher on that day than the day you sold it, I will expect you to allow the difference; and if it is lower, I will be prepared to pay you any balance I may owe you.\" To this letter the Liverpool house replied by a letter dated the 4th of September, 1833, in which they vindicated their conduct, and among other things, said: \"We beg you to bear in mind, that there was a balance due us from you, on joint transaction from Mr. Clarke; that the two hundred  bales in question were sold after the market had advanced one-half penny per pound, and that it barely squares the account. You had, unfortunately, been obliged to stop payment. We had the opportunity of paying ourselves by selling your cotton in a brisk market to a profit of ten per cent.; and we ask whether it was reasonable, under such circumstances, to expect us to hold the cotton for the chance of further profit, when the loss, if any, was certain to fall on us, and the profit not likely to go to you, but to your creditors, as was supposed, of whom we knew nothing. This would have been the extreme  of injustice toward ourselves and our absent partners, without being any advantage to you.\" And after some other remarks vindicating their conduct, they farther said: \"We think you must admit, that situated as you then were you could not resonably have expected us to hold the cotton, without pointing out in what manner we should be indemnified in event of loss thereby. That Brown, Brothers, and Company's draft was not due, does not aler the case. We had become responsible some months before by Brown, Brothers, and Company's acceptance of the draft of the shippers.\" \nHere the correspondence between the parties seems to have closed. The present action was brought to recover damages against the Liverpool house, for a supposed breach of orders, and of their duty as factors. At the trial there was an account current between the parties, and other evidence before the jury; the whole evidence in the case, however, was introduced by M'Gran. Among other questions before the jury, were the following: whether the advance made by the New York house, was, in effect, an advance by the Liverpool house, either as agents, or as partners in the latter; whether there was any balance due to the Liverpool  house upon the former transactions; whether M'Gran was insolvent or not, according to the advices recived by the Liverpool house; and whether, under the circumstances disclosed in the evidence, the Liverpool house had a right to sell the two hundred bales of cotton for their reimbursement, notwithstanding the wishes or orders contained in the letter of the 20th of April. \nThe jury at the trial found a verdict for the plaintiff, (M'Gran,) for four thousand nine hundred and seventy-eight dollars and fifty-seven cents, under certain instructions given by the Court, upon which verdict judgment was accordingly rendered: and a bill of exceptions having been taken by the original defendants; the cause now comes before us for revision, upon the points made and instructions given at the trial. \nThe counsel for the defendants asked the Court to instruct the jury, 1. That the advance by the house of Brown, in New York, was, in effect, an advance by the house in Liverpool; and after the advance so made, the shipper had no right to alter the instructions which were given at the time of such advance. 2. That the house in Liverpool having advanced so large an amount on this cotton, having a previous  unsettled claim against the shipper, and the  shipper having afterwards and before the sale of the cotton, become insolvent, the house in Liverpool had a right to sell for their reimbursement, notwithstanding the subsequent orders of the shipper. \nThe Court refused to give these instructions; and, in our judgment, with great propriety; as each of them involved matters of fact in controversy before the jury upon which it was exclusively their province to decide. If the defendants meant to draw from the Court an opinion in point of law upon the assumed facts, the proper mode would have been to have asked the Court to instruct the jury, that if they found the facts to be as thus assumed, then that the law was as these instructions states. \nThe Court then proceeded to instruct the jury, that if they found from the evidence in the cause that the plaintiff had given instructions to the defendants, by his lettr of the 20th of April, 1833, not to sell any cottons which the defendants might have on hand when that letter reached them, in which the plaintiff was interested, until the defendants heard from him again; and that such instructions were received and recognised by the defendants,  by the evidence in the cause, and particularly by a letter given in evidence as one from the defendants to the plaintiff, dated the 24th of May, 1833, in reply to the plaintiff's letter to them of the 20th of April, 1833; that then the defendants were not justifiable in law in the sale of the 3d of June, 1833, on account of the defendants having on that day accepted Brown, Brothers, and  Company's draft for one thousand eight hundred and seventy-one pounds and nine pence, dated the 7th of May, 1833, at sixty days' sight. \nIt is observable that this instruction is given in absolute terms, without reference to any other facts in the cause which might be found by the jury upon the evidence before them; and therefore must be deemed to apply to every posture of the facts which the evidence might warrant. It must, therefore, be deemed to apply to the case, although the advance wea originally made by the New Yor house for and on account of the Liverpool house, as agents or partners thereof; or the Liverpool house had entered into engagements prior to the advance, to become responsible for the reimbursement thereof to the New York house, in the manner stated in the evidence; and  although the plaintiff was, before the writing of the letters, actually insolvent, and had failed in business; and that fact was known to the defendants. \nOne objection taken to this instruction is, that it leaves to the jury the construction of the language of the letters of the 20th of April, and 24th of May.It is certainly true, as a general rule, that the interpretation of written instruments properly belongs to the Court, and not to the jury. But there certainly are cases, in which, from the different senses of the words used, or their obscure and indeterminate reference to unexplained circumstances, the true interpretation of the language may be left to the consideration of the jury for the purpose of carrying into effect the real intention of the parties. This is expecially applicable to cases of commercial correspondence,  where the real objects, and intentions, and agreements of the parties, are often to be arrived at only by allusions to circumstances which are but imperfectly developed. The present case sufficiently illustrates the distinction. M'Gran, in the letter of the 20th of April, says, that he wishes the defendants to hold any cottons on hand until  they hear from him again. Now, this language, certainly, ordinarily imports only a desire, and not an order; and yet there can be no reasonable doubt, that under particular circumstances a wish expressed by a consignor to a factor may amount to a positive command. So, in the reply of the 24th of May, the defendants say, \"your wishes in respect to the cotton we now hold on your account, are noted accordingly.\" \nHere again the point is open, whether the language imports that the defendants construed the wishes of the plaintiff to be simply a strong expression of desire or opinion, or a positive order; and also, whether the words \"noted accordingly\" import that the defendants took notice thereof, or took notice of, and assented to obey, the wishes or order of the plaintiff. The language is susceptible of either interpretation, according to circumstances. If the case had been one of simple consignment, without any interest in the consignee, or any advance or liability incurred on account thereof, the wishes might fairly be presumed to be orders; and the noting the wishes, accordingly, an assent to follow them. But very different considerations might apply where the consignment should  be, as the present is, one clothed with a special interest and a special property, founded upon advances and liabilities. We think, therefore, that this objection is not, under the circumstances of the case, maintainable. It would be quite another question, whether the Court might not in its discretion have assumed upon itself the right and duty of construing these letters. There is no novelty in this doctrine. It will be found recognised in Ekins vs. Macklish, Ambler Rep. 184, 185. Lucas vs. Groning, 7 Taunt. Rep. 164; and Rees vs. Warwick, 2 Barn. and Ald. 113. 115. \nBut the main objection to the instruction is of a more broad and comprehensive character. The instruction in effect decides that in the case of a general consignment of goods to a factor for sale, in the exercise of his own discretion, as to the time and manner of sale, the consignor has a right, by subsequent orders, to suspend or postpone the sale at his pleasure; notwithstanding the factor has, in consideration of such general consignment, already made advances, or incurred liabilities of the consignor, at his request, trusting to the fund for his due reimbursement. We are of opinion that this doctrine is not  maintainable in point of law. We understand the true doctrine on this subject to be this: Wherever a consignment is made to a factor for sale, the consignor has a right, generally, to control the sale thereof, according to his own pleasure, from time to time, if no advances have been made or liabilities incurred on account thereof; and the factor is bound to obey his orders. This arises from the ordinary relation of principal and agent. If, however, the factor  makes advances, or incurs liabilities on account of the consignment, by which he acquires a special property therein; then the factor has a reight to sell so much of the consignment as may be necessary to reimburse such advances or meet such liabilities; unless there is some existing agreement between himself and the consignor, which controls or varies this right.Thus, for example, if contemporaneous with the consignment and advances or liabilities there are orders given by the consignor which are assented to by the factor, that the goods shall not be sold until a fixed time, in such a case, the consignment is presumed to be received by the factor subject to such orders; and he is not at liberty to sell the goods  to reimburse his advances or liabilities, until after that time has elapsed. The same rule will apply to orders not to sell below a fixed price; unless, indeed, the consignor shall, after due notice and request, refuse to provide any other means to reimburse the factors. And in no case will the factor be at liberty to sell the consignment contrary to the orders of the consignor, although he has made advances, or incurred liabilities thereon; if the consignor stands ready, and offers to reimburse and discharge such advances and liabilities. \nOn the other hand, where the consignment is made generally, without any specific orders as to the time or mode of sale, and the factor makes advances or incurs liabilities on the footing of such consignment, there the legal presumption is, that the factor is intended to be clothed with the ordinary rights of factors to sell in the exercise of a sound discretion, at such time and in such mode as the usage of trade and his general duty require; and to reimburse himself for his advances and liabilities,  out of the proceeds of the sale: and the consignor has no right, by any subsequent orders, given after advances have been made or liabilities  incurred by the factor, to suspend or control this right of sale, except so far as respects the surplus of the consignment, not necessary for the reimbursement of such advances or liabilities. Of course, this right of the factor to sell to reimburse himself for his advances and liabilities, applies with stronger force to cases where the consignor is insolvent, and where, therefore, the consignment constitutes the only fund for indemnity. \nSuch then being the relative rights and duties of the parties, we are of opinion that the instruction given to the jury by the learned judge in the Circuit Court, is not maintainable in point of law. The consignment was general to the Liverpool house, for sale; the advances and liabilities were contemporaneous with the consignment; there were no contemporaneous orders limiting or qualifying the general rights of the factors resulting from these circumstances; the consignor, subsequently, either failed in business, or was believed to have failed; the wishes subsequently expressed by the letter of the 20th of April, even admitting them to have the force of orders, were unaccompanied with any other means of indemnity, or even with any offer of reimbursement  of the advances or liabilities. Unless, then, upon the established principles of law, the consignor had a  clear right to control the sale of the consignment, by any orders which he might in his discretion choose to give, notwithstanding such advances and liabilities; which we are of opinion he had not; the instruction was erroneous. \nWe have not thought it necessary to enter upon any general examination of the authorities which support the doctrines which have been thus stated by us. But the opinion of Lord Chief Justice Gibbs, in Pothonier vs. Dawson, 1 Holt's Rep. 383, and the opinions of the judges in Graham vs. Dyster, 6 Maule and Selw. 1. 4,5, will be found fully to recognise some of the leading principles. \nAnother instruction was given by the Court to the jury upon the question of damages, supposing the Liverpool house, by the sale, had violated their proper duty. It was, that if the jury found, from the evidence in the cause, that cottons were selling for a higher price from the 3d of June, 1833, when the draft was accepted, and when the cotton was sold, until the time when the said draft was mature and payable, and if the evidence in the cause ascertain at any  time before the maturity of the draft, what such higher price was, and that the cotton belonging to the plaintiff could have been sold for such higher price; then the plaintiff was entitled to recover from the defendants the difference in price between the sum for which the defendants sold the cotton, and the sum at which it might have been sold before or at the maturity of the draft. This instruction was doubtless framed upon the ground that this was the claim of damages which the plaintiff asserted by his letter of the 30th of July, 1833. But as that letter was not assented to, or the claim recognised by the defendants, this claim could, in no just sense, be obligatory upon them; and as a general rule of law, applicable to damages under like circumstances, we think that it cannot be maintained. \nSupposing the sale made by the defendants on the 3d of June to have been tortious, and in violation of orders, the plaintiff had his election either to claim damages for the value of the cotton on that day, as a case of tortious conversion, or for the the value of the cotton on the 23d of August following, when the letter of the plaintiff of the 22d of July was received, which authorized  a sale. If the price of cotton was higher on that day than at any intermediate period, he was entitled to the benefit thereof. If, on the other hand, the price was then lower, he could not justly be said to be demnified to any extent beyond what he would lose by the difference of the price of cotton on the 3d of June, and the price on the 23d of August. \nFor these reasons, we are of opinion, that both the instructions given by the Circuit Court to the jury were erroneous; and therefore the judgment ought to be reversed, and the cause remanded, with instructions to that Court to award a venire facias de novo. \nMr. Justice WAYNE, and Mr. Justice CATRON dissented. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the Court. \nThis is an appeal from a decree of the Circuit Court of Ohio, in a suit in equity, brought by Longworth, the appellee, against Taylor, the appellant, for a specific performance of a contract for the purchase of land. \n The facts, so far as they are important, to be considered upon the present appeal, are as follow: On the 5th of April, 1814, by a sealed contract between the parties, Longworth purchased of Taylor part of a lot in Cincinnati, No. 81, for the price of one hundred and twenty-five dollars per foot in front, whatever measurement it should hold out, one-third payable on signing the contract, one-third in six months, and the remaining third in twelve months. A deed of general warranty was to be given by Taylor, in the course of three months; and a mortgage was to be given on the premises by Longworth, to secure the remaining payments. On the same day, by a written endorsement on the contract, Taylor acknowledged the receipt of the sum of two thousand four hundred and fifty-eight dollars and thiry-three cents, \"supposed to be about the first payment.\" The whole purchase money upon the admeasurement of the lot, amounted to seven thousand four hundred and six dollars and twenty-five cents. No deed was executed by  Taylor according to the contract, or at any time subsequent: but Longworth was put in immediate possession of the lot. When the second instalment of the purchase money  became due, it was not paid; but by an arrangement between the parties, it was postponed upon Longworth's agreeing to pay the same interest annually thereon, as was received for dividends upon stock in the Miami bank, which was nine or ten per cent. This interest was accordingly paid up to near the close of the year 1819; and in the intermediate time Longworth caused four houses to be built, for stores, in the lot, at the cost of about four thousand four hundred and sixty-four dollars. In the year 1819, or the beginning of 1820, Longworth was informed that the Chambers and his wife had a claim on the lot, which was deemed valid by the counsel employed to investigate it; and that a suit would be commenced on it. A suit was accordingly commenced in equity, against Taylor, Longworth, and others, in November, 1823, which was not determined until after 1829. In September, 1822, no interest on the purchase money having been paid by Longworth after 1819, Taylor commenced an action of ejectment against Longworth, for the lot; and recovered possession thereof in August, 1824. \nIn June, 1825, the present bill in equity was brought by Longworth,  for a specific performance of the  original contract for the purchase of the lot. In the progress of the cause, several supplementary and amended bill were filed; and after the answers were put in, and the evidence taken, the cause came on to be heard; and the Court being of opinion that one Carneal, a citizen of Ohio, who was assignee of one Canby, a subpurchaser of a part of the lot from Longworth, ought to be made a party to the suit, the cause was directed to stand over: and he was accordingly made a party plaintiff, and came in and submitted to such decree as might be made by the Court on the case, as it then stood between the original parties. The cause was afterwards fully argued, and a decree for a specific performance was pronounced; from which the present appeal has been taken. \nSome question has been suggested in respect to the propriety of making Carneal a party at so late a stage of the cause; and of the right of Taylor, in virtue thereof, to insist by way of plea upon his exemption from being used, except in the District of Kentucky, where he resided. But we do not think that there is any valid objection to the proceedings on this account. By his general appearance to the suit in the prior proceedings,  Taylor necessarily waived any objection to the suit founded on his residence in another district; and he became, like every other party properly before a Court of Equity, subject to all the orders of the Court. Whether Carneal, as a sub-purchaser, was an indispensable party under all the circumstances of the case, may admit of doubt; but, as his being made a party in no respect changed the actual posture of the case as to the other parties, he merely submitting to be bound by the proceedings, we see no objection to his joinder in that stage of the cause, which in any degree touches either the propriety or the validity of the decree. \nThe only substantial question in the cause is, whether, under all the circumstances, the plaintiff, Longworth, is entitled to a specific performance of the contract for the purchase: and upon the fullest consideration we are of opinion that he is, and that the decree is therefore right. We shall now proceed to state, in a brief manner, the grounds upon which we hold this opinion. \nIn the first place, there is no doubt that time may be of the essence of a contract for the sale of property. It may be made so by the express stipulations of the parties,  or it may arise by implication from the very nature of the property, or the avowed objects of the seller or the purchaser. And even when time is not thus either expressly or impliedly of the essence of the contract, if the party seeking a specific performance has been guilty of gross laches, or has been inexcusably negligent in performing the contract on his part; or if there has, in the intermediate period, been a material change of circumstances, affecting the rights, interests, or obligations of the parties; in all such cases, Courts of Equity will refuses to decree any specific performance, upon the plain ground that it would be inequitable and unjust. \nBut except under circumstances of this sort, or of an analogous  nature, time is not treated by Courts of Equity as of the essence of the contract: and relief will be decreed to the party who seeks it, if he has not been grossly negligent, and comes within a reasonable time, although he has not comlied with the strict terms of the contract. But in all such cases, the Court expects the party to make out a case free from all doubt; and to show that the relief which he asks is, under all the circumstances, equitable; and  to account in a reasonable manner for his delay, and apparent omission of his duty. \nIt does not seem necessary to cite particular authorities in support of these doctrines, although they are very numerous. It will be sufficient to refer to the cases of Pratt vs. Carroll, 8 Cranch, 471. Pratt vs. Law, 9 Cranch, 456. 493, 494, and Brashier vs Gratz, 6 Wheat. 528, in this Court; and to Seton vs. Slade, 7 vesey, 265. Halsey vs. Grant, 13 Vesey, 73. Alley, vs. Deschamps, 13 Vesey, 225. Hearn vs. Tenant, 13 Vesey, 289, and Hepwill vs. Knight, 1 Younge and Coll. 415, in England, as affording illustrations in point. \nIn applying the doctrines above stated to the facts and circumstances of the present case, the first remark that occurs, is, that the first default was on the part of Taylor. By his contract he undertook to make a deed of general warranty of the premises in the course of three months after the date of the contract; the second instalment not being payable until a long time afterwards. He never made any such deed, or offered to make it; and if he had, it is obvious, that isntead of his being placed in the situation of a defendant in equity, as he now is, he would have been  compelled to be a plaintiff either to enforce a specific performance, or to rescind the contract. Now, the plain import of the words of his contract is, that he will make the deed. The excuse for the  omission is, that it was the duty of the other side to prepare and tender a formal deed to him for execution. And authorities are relied on, principally from the English Courts, to show, that in all cases of this sort, the established rule is, that the vendee shall prepare and tender the conveyance. This is certainly the rule in England, founded, doubtless, upon the general understanding and practice among conveyancers, as well as upon the peculiar circumstances attendant upon conveyances in that country. The same rule does not seem to have been adopted generally in America, although it may be adopted in some states. In Ohio, the rule is stated by the learned judge who decided the present case, not to prevail; and the local practice, in a case of this sort, ought certainly to constitute the proper guide in the interpretation of the terms of the contract. But waiving this consideration, let us proceed to others presented by the case. \nUp to the close of the year 1819,  there is no pretence to say that there had been any violation of the contract on the part of Longworth; and no step whatever was taken by Taylor, until he brought the ejectment in 1822, to enforce the contract. That ejectment he asserts in his answer to have been brought in order to compel  Longworth to complete the contract, or to put an end to it. In the mean time, Longworth had been left in the possession of the premises under the contract, had made improvements upon them, and had received the rents and profits with the acquiescence of Taylor. Under such circumstances, where there had been a part performance, and large expenditures on one side, under the contract, and acquiescence on the other side; it would be incompatible with established doctrines, to hold that one party could, at his own election, by a suit at law, put an end to the contract. It could be rescinded by Taylor only, by the decree of the Court of Equity; which decree would, of course, require full equity to be done to the other party, under all the circumstances. Pending the ejectment, Longworth made several propositions for payment, varying from the original conditions, all of which were declined  by Taylor; although it seems that Longworth supposed that some of them would have been satisfactory. The recovery in the ejectment was, of course, successful, as the legal title was in Taylor; and the equities of Longworth could not be matters of defence to that suit. \nThe present bill was brought in the succeeding year; and the question is, whether, under all the circumstances of the case, Longworth is now entitled to a specific performance of the contract, upon his paying all the arrears of the purchase money. Undoubtedly, if there were no grounds of excuse shown accounting for the delay on his part to fulfil the contract, between September, 1822, when the ejectment was brought, and June, 1825, when the present bill was filed; there might be strong reason to contend that he was not entitled to a specific performance of the contract, even if some other relief on account of his improvements might be deemed equitable. But in point of fact, the adverse claim of Chambers and wife to the property, was made known as early as the year 1820; and was asserted by counsel, who were consulted on that occasion, to be valid. The claim was prosecuted (as has been already stated) by a suit in  equity, brought in 1823, against Taylor, Longworth, and others; and remained undecided until the close of the year, 1829. There is no pretence to say, that this claim was not bona fide asserted, or that Longworth brought it forward to cover his own default. While it was known and pending, there is as little pretence to say, that Longworth could be compelled to complete the contract on his side; or that he had not a right to lie by, and await the decision of the title, which thus hung, as a cloud, upon that of Taylor. It is one thing to say, that he might waive the objection, and require a conveyance on the part of Taylor; and quite another thing to say, that he was compellable, at once, to elect at his peril, either to proceed on the contract, or to surrender it. There is no ground to assert that from the commencement of the present suit, Longworth has not always been ready and willing to pay up the arrears of the purchase money, and to complete the contract. The proofs in the case are entirely satisfactory on this head. In our opinion,  the lapse of time is fairly accounted for by the state of the title; and therefore, Longworth has not been guilty of any delay, which  is unreasonable or inexcusable. \nThere is another view of this subject, which seems equally decisive of the merits of this controversy. If the contract had been strictly performed on the part of Taylor, by a conveyance, he would now have stood in the mere character of a mortgagee; for in that event Longworth stipulated to give him a mortgage for the security of the unpaid purchase money. Now, in the view of a Court of Equity, that may well be deemed the true posture of this case; upon the known principle, that equity will, for the purposes of justice, treat that to have been done, which ought to have been done. As mortgagee, which would be his character according to the real intention of both parties, Taylor could have no right to complain of the lapse of time; and could have no claim to the improvements made by Longworth, except as security for his debt. In this view of the matter it is wholly unimportant for us to consider whether the amount of the rents and profits received by Longworth, was equal to, or a set off to his expenditures and improvements, as affirmed in the answer. \nUpon the whole, we are entirely satisfied with the decree of the Circuit Court, and it is affirmed,  with costs. \nThis cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Ohio, and was argued by counsel. On consideration whereof, it is now here ordered and decreed by this Court, that the decree of the said Circuit Court in this cause be, and the same is hereby, affirmed, with costs. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the Court. \nThis is the case of a division of opinion, certified to this Court by the judges of the Circuit Court for the District of Massachusetts. \nThe defendant, by a policy of insurance, dated the 1st of April, 1836, insured the plaintiffs, for whom it may concern, payable to them, eight thousand dollars, on the ship Paragon, for the term of one year, commencing the risk on the 13th of March, 1836, at noon, at five per cent. The policy contained the usual risks, and among others, that of perils of the sea. The declaration alleged a loss, by collision with another vessel, without any fault of the master or crew of the Paragon; and also insisted on a general average and contribution. The parties at the trial agreed upon a statement of facts; by which it appeared that the Paragon was owned by the plaintiffs, and was in part insured by the defendants, by the policy above mentioned. On the  10th of November, 1836, the Paragon sailed from Hamburgh, in ballast, for Gottenburgh, to procure a cargo of iron for the United States. While proceeding down the Elbe, with a pilot on board, she came in contact with a galliot, called the Frau Anna, and sunk her. By this accident, the Paragon lost her bowsprit, jib-boom, and anchor, and sustained  other damage, which obliged her to put into Cuxhaven, a port at the mouth of the Elbe, and subject to the jurisdiction of Hamburgh, for repairs. Whilst lying there, the captain of the galliot libelled the Paragon in the Marine Court, alleging that the loss of the vessel was caused by the carelessness or fault of those on board of the Paragon. The ship was arrested; but was subsequently released on security being given by the agents of the owners, to respond to such damages as should be awarded by the Court. Upon the hearing of the cause, the Court decided that the collision was not the result of fault or carelessness on either side, and that therefore, according to the marine law of Hamburgh, the loss was a general average loss, and to be borne equally by each party: that is to say, that the Paragon was to bear one-half of  the expense of her own repairs, and to pay one-half of the value of the galliot; and that the galliot was to bear the loss of one-half of her own value, and to pay one-half of the repairs of the  Paragon: the result of which was, that the Paragon was to pay the sum of two thousand six hundred dollars, being one-half of the value of the galliot, (three thousand dollars,) after deducting one-half of her own repairs, (four hundred dollars.) The owners of the Paragon having no funds in Hamburgh, the captain was obliged to raise the money on bottomry. There being no cargo on board of the Paragon, and no freight earned, the Paragon was obliged to bear the whole loss. \nUpon this state of facts the question arose, whether in this case the contributory amount paid by the Paragon on account of the collision, was a direct, positive, and proximate effect from the accident, in such sense as to render the defendants liable therefor. Upon this question the judges were opposed in opinion; and it has accordingly been certified to this Court for a final decision. \nThat a loss by collision, without any fault on either side, is a loss by the perils of the sea, within the protection of the  policy of insurance, is not doubted. So far as the injury and repairs done to the Paragon itself extend, it is admitted that the underwriters are liable for all the damages. The only point is, whether the underwriters are liable for the contribution actually paid on account of the loss of the galliot. \nThis point does not appear ever to have been decided in any of the American Courts. It is proper, therefore, to examine it upon principle; and to ascertain what is the true bearing of the foreign authorities upon it. \nAnd first upon principle: That the owners of the Paragon have been compelled to pay this contribution without any fault on their side, is admitted; that it constituted a proper subject of cognisance by the Marine Court of Hamburgh, the collision having occurred within the territorial jurisdiction of that city, is also admitted; and that the claim constituted a charge or lien upon the Paragon, according to the local law, capable of being enfored by a proceeding in rem, is equally clear. Why, then, should not the loss be borne by the underwriters, since it was an unavoidable incident or consequence resulting from the collision? \nThe argument is, that in the law of insurance,  which governs the present contract, it is a settled rule that underwriters are liable only for losses arising from the proximate cause of the loss, and not for losses arising from a remote cause, not immediately connected with the peril.Causa proxima non remota spectatur. The rule is correct, when it is understood and applied in its true sense; and, as such, it has been repeatedly recognised in this Court. But the question, in all cases of this sort, is, what, in a just sense, is the proximate cause of the loss? \nThe argument in the present case, on the part of the defendants, is, that the law of Hamburgh is the immediate or proximate cause of the loss now claimed, and the collision is but the remote cause. But surely this is an over-refinement, and savours more of metaphysical than of legal reasoning. If the argument were to be followed  out, it might be said, with more exactness, that the decree of the Court was the proximate cause, and the law of Hamburgh the remote cause of this loss. But law, as a practical science, does not indulge in such niceties. It seeks to administer justice according to the fair interpretation of the intention of the parties; and deems  that to be a loss within the policy, which is a natural or necessary consequence of the peril insured against. In a just view of the matter, the collision was the sole proximate cause of the loss; and the decree of the Court did but ascertain and fix the amount, chargeable upon the Paragon, and attached thereto at the very moment of the collision. The contribution was a consequence of the collision, and not a cause. It was an incident inseparably connected, in contemplation of law, with the sinking of the galliot; and a damage immediate direct, and positive, from the collision. In the common case of an action for damages for a tort done by the defendant, no one is accustomed to call the verdict of the jury, and the judgment of the Court thereon, the cause of the loss to the defendant. It is properly attributed to the original tort, which gave the right to damages consequent thereon; which damages the verdict and judgment ascertained; but did not cause. \nBut let us see how the doctrine is applied in other analogous cases of insurance, to which, as much as to the present case, the same maxim ought to apply, if there is any just foundation for it here. If ther be any commercial  contract which, more than any other, requires the application of sound common sense and practical reasoning in the exposition of it, and in the uniformity of the application of rules to it, it is certainly a policy of insurance; for its deals with the business and interests of common men, who are unused to deal with abstractions and refined distinctions. Take the case of a jettison at sea, to avoid a peril insured against. It is a voluntary sacrifice, and may be caused by the perils of the sea; but it is ascertained long afterwards, and that ascertainment, whether made by a Court of justice, or by an agreement of the parties, would, in the sense of the maxim contended for in the argument, be the immediate cause of the contribution, and the jettison but a remote cause; and the violence of the winds and waves a still more remote cause of the jettison.  Yet all such niceties are disregarded, and the underwriters are held liable for the loss thus sustained by the jettison, as a general average. It is no answer to say, that this is now the admitted doctrine of the law; and therefore it is treated as a loss within the policy. The true question to be asked is, why is it so  treated?General average, as such, is not, eo nomine, insured against in our policies. It is only payable when it is a consequence, or result, or incident (call it which we may) of some peril positively insured against; as, for example, of the perils of the sea. The case of a ransom after capture stands upon similar grounds. The ransom is, in a strict metaphysical sense, no natural consequence of the capture. It may be agreed upon long afterwards: and if we were to look to the immediate cause, it might be said that the voluntary act of the party  in the payment was the cause of the loss. But the law treats it as far otherwise; and deems the ransom a necessary means of deliverance from a peril insured against, the acting directly upon the property. The expenses consequent upon a capture, where restitution is decreed by a Court of Admiralty upon the payment of all the costs and expenses of the captors, fall under a similar consideration. In such cases, the decree of the Court allowing the costs and expenses may be truly said to be the immediate cause of the loss; but Courts of justice treat it also as the natural consequence of the capture. \nA still more striking illustration  will be found in the case of salvage decreed by a Court of Admiralty for services rendered to a vessel in distress. The vessel may have been long before dismasted or otherwise injured, or abandoned by her crew in consequence of the perils of the winds and waves; and the salvage decreed in such a case, would seem, at the first view, far removed from the original peril, and disconnected from it: and yet, in the law of insurance, it is constantly attributed to the original peril, as the direct and proximate cause; and the underwriters are held responsible therefor, although salvage is not specifically, and in terms, insured against. \nThese are by no means the only illustrations of the danger of introducing such an application of the maxim into the law of insurance, as is now contended for. Suppose a perishable cargo is greatly damaged by the perils of the sea, and it should, in consequence thereof, long afterwards, and before arrival at the port of destination, become gradually so putrescent as to be required to be thrown overboard for the safety of the crew; the immediate cause of the loss would be the act of the master and crew; but there is no doubt that the underwriters would be  liable for a total loss, upon the ground that the operative cause was the perils of the sea. Suppose a vessel which is insured against fire only, is struck by lightning, and takes fire; and in order to save her from utter destruction, she is scuttled and sunk in shoal water, and she cannot afterwards be raised; it might be said that the immediate cause of the loss was the scuttling: but in a jurisdical sense, it would be attributed to the fire; and the underwriters would be held liable therefor. Suppose another case, that of a vessel insured against all perils but fire; and she is shipwrecked by a storm on a barbarous coast, and is there burnt by the natives: it might to said that the proximate cause of the loss was the fire; and yet there is no doubt that the underwriters would be held liable on the policy, upon the ground that the vessel had never been delivered from the original peril of shipwreck. \nIllustrations of this sort might be pursued much farther, but it seems unnecessary. Those which have been already suggested sufficiently establish, that the maxim, causa proxima non remota spectatur, is not without limitations; and has never been applied in matters of insurance to  the extent contended for: but that it has been constantly qualified, and constantly applied only in a modified practical sense, to the perils insured against. In truth, in the present  case, the loss occasioned by the contribution is (as has been already suggested) properly a consequence of the collision; and in no just sense a substantive independent loss. \nIn the next plea, how stand the authorities on this subject? The only authority which has been cited by the counsel for the defendants, to sustain their argument, is the case of De Vaux vs. Salvador, 4 Adolphus and Ellis' Rep. 420. That case is certainly direct to the very point now in judgment. It was a case of collision, where the assured had been compelled to pay for an injury done to another vessel by the mutual fault of both vessels, according to the rule of the English Court of Admiralty; which, in a case of mutual fault, apportions the loss between them. Lord Denman, in delivering the opinion of the Court, admitted that the point was entirely new; and after referring to the above maxim, said, \"It turns out that the ship (insured) has done more damage than she has received, and is obliged to pay the owners  of the other ship to some amount, under the rule of the Court of Admiralty. But this is neither a necessary nor a proximate effect of the perils of the sea. It grows out of an arbitrary provision in the law of nations; from views of general expediency, not as dictated by natural justice, nor (possibly) quite consistent with it: and can no more be charged on the underwriters than a penalty incurred by contravention of the revenue laws of any particular state, which was rendered inevitable by perils insured against.\" This is the whole reasoning of the learned judge upon the point; and with great respect, if the views already suggested are well founded, it is not supported by the analogies of the law, or by the principles generally applied to policies of insurance. The case of a penalty, put by the learned judge, does not strike us with the same force as it does his lordship. If any nation should be so regardless of the principles of natural justice, as to declare that a vessel driven on shore by a storm should be forfeited because its revenue laws were thereby violated; it would then deserve consideration whether the underwriters would not be liable for the loss, as an inevitable  incident to the shipwreck. At all events, the point is too doubtful in itself to justify us in adopting it as the basis of any reasoning in the present case. \nThe case before the King's Bench was confessedly new, and does not appear upon this point to have been much argued at the bar.It  seems to have been decided, principally, upon the ground of the absence of any authority in favour of the assured; and as it appears to us, in opposition to the analogies furnished by the other acknowledged doctrines in the law of insurance. \nThe same question, however, has undergone the deliberate consideration of some of the greatest maritime jurists of continental Europe; and the result at which they have arrived is directly opposite to that of the King's Bench. Pothier lays it down as, in his opinion, that clear result of the contract of insurance, that the underwriters are bound to pay not only the direct loss occasioned by any peril insured against, but all the expenses which follow as a consequence  therefrom. Pothier, Traite d'Assurance, n. 49.Estrangin, a very excellent modern commentator upon Pothier, (Estrangin's note,) asserts that there is not the slightest doubt  on the subject. Emergon, whose reputation as a writer on the law of insurance is second to no one, unequivocally adopts the same opinion. Emerig. Assur. ch. 12, s. 14, p. 414 -- 417. In short, all those learned foreigners hold the doctrine that whenever the thing insured becomes by law directly chargeable with any expense, contribution, or loss, in consequence of a particular peril, the law treats that peril, for all practical purposes, as the proximate cause of such expense, contribution, or loss. And this they hold, not upon any peculiar provisions of the French ordinance, but upon the general principles of law applicable to the contract of insurance. In our opinion this is the just sense and true interpretation of the contract. \nIt has been suggested that there is a difference between our policies and the French policies; the latter containing an express enumeration of fortuitous collision, or running foul, (abordage fortuit,) as a peril insured against; while in our policies it fall only under the more general head of \"perils of the sea.\" But this furnishes no just ground for any distinction in principle.The reasoning, if any, to be derived from this circumstance, would seem  rather to apply with more force in favour of the plaintiff, since, even when the risk of collision is specifically enumerated, the expenses and contribution attendant upon it are treated as inseparable from the direct damage to the vessel itself, as a part of the loss. In short, whether a particular risk is specified in terms, or is comprehended in the general words of the policy, the same result must arise, viz. that the underwriters are to bear all losses properly attributable to that peril; and no other losses. \nIt may be proper to remark, that the rule which we here adopt, is just as likely, in actual practice, to operate favourably as unfavourably to the underwriters. If by the collision the Paragon had been sunk, and the galliot saved, te underwriters would have had the entire benefit of the reciprocity of the rule. It would sound odd that in such a case the underwriters should be entitled to receive the full benefit of the Hamburgh law for their own indemnity; and yet in the opposite case, that they should escape from the burden imposed by that law. \nIn all foreign voyages, the underwriters necessarily have it in contemplation that the vessel insured must, or at least may  be, subjected to the operation of the laws of the foreign ports which are visited. Those very laws may in some cases impose burdens, and in some cases give benefits, different from our laws; and yet there are cases under policies of insurance, where it is admitted that the foreign law will govern the rights of the parties, and not the domestic law. Such is the known case of a general average, settled in a foreign port according to the local law; although it may differ from our own. Simonds vs. White, 2 Barn. and Cresw. 805. In the present case, the policy was on time, and the vessel had, as it were,  a roving commission to visit any foreign port; and of course might well be presumed at different periods to come under the dominion of various codes of laws, which might subject her to various expenditures and burdens. The underwriters have no right to complain, that when those expenditures and burdens arise from a peril insured against, they are compelled to pay them; for they were bound to have foreseen the ordinary incidents of the voyage. Suppose a vessel injured by the perils of the sea puts into a foreign port the repair, and the license to repair, or the repairs  themselves, are burdened with a heavy revenue duty; no one will doubt that the charge must be borne by the underwriters, as an expense incident to the repair: and yet it might truly be said not to be the natural result of the peril, but only a charge imposed by law, consequent thereon. \nUpon the whole, we are of opinion that it be certified to the Circuit Court, that in this case the contributory amount paid by the Paragon, on account of the collision, was a direct, positive, and proximate effect from the accident, in such sense as to render the defendants liable therefor upon this policy. \nThis cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the district of Massachusetts, and on the point and question on which the judges of the said Circuit Court were opposed in opinion, and which was certified to this Court for its opinion, agreeably to the act of Congress in such cases made and provided; and was argued by counsel. On consideration whereof, it is the opinion of this Court that, \"in this case, the contributory amount paid by the Paragon, on account of the collision, was a direct, positive, and proximate effect from the accident,  in such sense as to render the defendants liable therefor upon this policy.\" Whereupon it is ordered and adjudged by this Court, that it be so certified to the said Circuit Court. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the Court. \nThis is a writ of error to the judgment of the Circuit Court for the Eastern District of Pennsylvania, rendered in an action brought by Stimpson, the defendant in error, against the plaintiffs in error, for a violation of a patent right granted to him for a new and useful improvement in the mode of turning short curves on railroads. \nA patent was originally granted to Stimpson, for the same invention, on the 23d day of August, 1831; and the renewed patent, upon which the present suit is brought, was granted  on the 26th of  September, 1835, upon the former letters patent \"being cancelled on account of a defective specification;\" and the renewed patent was for the term of fourteen years from the date of the original patent. With the exception of the recital of the fact that the former letters patent were cancelled \"on account of a defective specification,\" and the statement of the prior date from which the renewed patent was to begin to run, the renewed patent is in the precise from in which original patents are granted. \nAt the trial upon the general issue, a bill of exceptions was taken to certain rulings of the Court upon points of evidence, to the consideration of which we shall at once proceed without any further preface. \nThe first exception taken is to the admission of the renewed patent as evidence in the cause to the jury. The patent act of 1832, ch. 162, sec. 3, under which this patent was obtained, provides, that whenever any patent shall be inoperative or invalid, by reason that any of the terms or conditions prescribed by the prior acts of Congress, have not, by inadvertence, accident, or mistake, and without any fraudulent or deceptive intention, been complied  with on the part of the inventor; it shall be lawful for the Secretary of State, upon the surrender to him of such patent, to cause a new patent to be granted to the inventor, for the same invention, for the residue of the period then unexpired for which the original patent was ranted, upon his compliance with the terms and conditions prescribed by the third section of the act of the 21st of February, 1793, ch. 55. \nNow, the objection is, that the present patent  does not contain any recitals that the prerequisities thus stated in the act have been complied with, viz. that the error in the former patent has arisen by inadvertency, accident, or mistake, and without any fraudulent or deceptive intention; and that without such recitals, as it is the case of a special authority, the patent is a mere nullity, and inoperative. We are of opinion that the objection cannot, in point of law, be maintained. The patent was issued under the great seal of the United States, and is signed by the President, and countersigned by the Secretary of State. It is a presumption of law, that all public officers, and especially such high functionaries, perform their proper official duties until  the contrary is proved. And where, as in the present case, an act is to be done, or patent granted upon evidence and proofs to be laid before a public officer, upon which he is to decide, the fact that he has done the act or granted the patent, is prima facie evidence that the proofs have been regularly made, and were satisfactory. No other tribunal is at liberty to re-examine or controvert the sufficiency of such proofs, if laid before him, when the law has made such officer the proper judge of their sufficiency and competency. It is not, then, necessary for the patent to contain any recitals that the prerequisites to the grant of it have been duly complied with, for the law makes the presumption; and if, indeed, it were otherwise, the recitals would not help the case without the  auxiliary proof that these prerequisites had been, de facto, complied with. This has been the uniform construction, as far as we know in all our Courts of justice upon matters of this sort. Patents for lands, equally with patents for inventions, have been deemed prima facie evidence that they were regularly granted, whenever they have been produced under the great seal of the government;  without any recitals or proofs that the prerequisities of the acts under which they have been issued have been duly observed. In cases of patents, the Courts of the United States have gone one step further, and as the patentee is required to make oath that he is the true inventor, before he can obtain a patent, the patent has been deemed prima facie evidence that he has made the invention. This objection, then, is overruled; and there was no error in the Circuit Court in the admission of the patent. \nThe next exception is to the refusal of the Court to allow a witness, Josiah White, to give a description of an invention which he had seen on the Mauch Chunk railroad, in 1827, which had a groove on one side, and run on the other on a flange for crossing, for the purpose of showing that the supposed invention of the plaintiff was known and in use by others, before the date of his patent. By the patent act of 1836, (which was applicable to the present point,) it is provided in the fifteenth section, that whenever the defendant relies in his defence on the fact of a previous invention, knowledge, or use of the thing patented, he shall state in his notice of special matter to be used  in his defence, the names and places of residence of those, whom he intends to prove to have possessed a prior knowledge of the thing, and where the same had been used. The object of this most salutary provision is to prevent patentees being surprised at the trial of the cause, by evidence of a nature which they could not be presumed to know, or be prepared to meet, and thereby to subject them either to most expensive delays, ot to a loss of their cause. It is incumbent on those who seek to show that the examination of a witness has been improperly rejected, to establish their right to have the evidence admitted; for the Court will be presumed to have acted correctly, until the contrary is established. \nIn the present case, there is no proof on the record that notice had been given according to the requirements of the statute, that White was to be a witness for the purpose above stated. Unless such notice was given, it is plain that the examination could not be rightfully had. The onus probandi is on the defendants to show it, and unless they produce the notice, the objection must fail. In point of fact, it was admitted by counsel, at the argument, that no such notice was given.  In either view, then, from the admission, or from the defect of the preliminary proof of notice in the record, the exception is not maintainable. \nThe next exception is to the refusal of the Court to allow certain questions to be put by the defendants to John H. B. Latrobe, a witness introduced by the defendants to maintain the issue on their part. Latrobe, on his examination, stated, \"I know Mr. Stimpson  by sight and character. He granted to the Baltimore and Ohio Railroad Company the privilege of using the curved ways on their railroad, and all lateral roads connected therewith. I fix the date of the contract in the early part of October, 1834, because I have then a receipt of Mr. Stimpson's counsel, for two thousand five hundred dollars. Mr. Stimpson laid his claim against the Baltimore Company for an infringement of his patent, in 1832. It was referred to me by the Company, and I advised them.\" The counsel for the defendants then offered to prove by the same witness, the declarations of the plaintiff and his agent, to the witness, that the settlement made with the Baltimore and Ohio Railroad Company with the plaintiff, was not an admission by the said company  of the plaintiff's right in the alleged invention, but a mere compromise of a pending suit, disconnected with a grant, in writing, made by the plaintiff to the said company; and to that end proposed to put the following questions, respectively, and in order, to the witness: \"1. Do you know who was the agent of attorney of James Stimpson, in negotiating the arrangement and settlement between him and the company referred to? Who was he? 2. State if any conversations occurred between James Stimpson, or his agent or counsel, at any time, during the negotiations, regarding the rights claimed by him in the patent for curved ways, without reference to the existence of a written contract, or it contracts? 3. What were they?\" The Court refused to allow these questions to be put, for the purpose aforesaid. \nNow, (as has been already intimated,) it is incumbent upon those who insist upon the right to put particular questions to a witness, to establish that right beyond any reasonable doubt, for the very purpose stated by them; and they are not afterwards at liberty to desert that purpose, and to show the pertinency  or relevancy of the evidence for any other purpose, not hen  suggested to the Court. It as not pretended at the argument, that the evidence so offered was good evidence in chief, in behalf of the defendants upon the issue in the cause. It was res inter alios acta, and had no tendency to disprove the defendant's title to the invention, or to support any title set up by the defendants; for no privity was shown between the defendants and the Baltimore Company. As evidence in chief, therefore, it was irrelevant and inadmissible. The sole purpose for which it was offered, so far as it was then declared to the Court, was to show, that the compromise with the Baltimore Company was not founded on any admission of the plaintiff's right in the invention. Be it so; it was then inconsequential; for it certainly had no just tendency to disprove his right. If the compromise had been offered on the part of the plaintiff, for the purpose of establishing his right to the invention, there is no pretence to say that it would have been admissible against the defendants. In the converse case, it is equally inadmissible for the defendants. \nBut it is now said that the evidence was in fact offered for the purpose of rebutting or explaining certain statement's  made by one  Ross Winans, a witness called by the defendants, in his answers upon his cross-examination by the plaintiff's counsel. Now, this purpose is not necessarily, or even naturally, suggested by the purpose avowed in the record. Upon his cross-examination, Winans stated: \"I understood there were arrangements made with the Baltimore Company. I heard the Company paid five thousand dollars.\" Now, certainly these statements, if objected to by the defendants, would have been inadmissible upon two distinct grounds. 1. First, as mere hearsay; 2. And, secondly, upon the broader principle, now well established, although sometimes lost sight of in our loose practice at trials, that a party has no right to cross-examine any witness except as to facts and circumstances connected with the matters stated in his direct examination. If he wishes to examine him to other matters, he must do so by making the witness his own, and calling him, as such, in the subsequent progress of the cause. The question then is presented, whether a party can, by his own omission to take an objecton to the admission of improper evidence brought out on a cross-examination, found a right to introduce  testimony in chief to rebut it or explain it. If upon the cross-examination, Winans' answer had been such as was unfavourable to the plaintiff, upon the collateral matters thus asked, which were not founded in the issue, he would have been bound by it, and not permitted to introduce evidence to contradict it. There is great difficulty in saying that the defendants ought to be in a more favoured predicament, and to acquire rights founded upon the like evidence to which they did not choose to make any objection, although otherwise it could not have been in the cause. But waiving this consideration, the grounds on which we think the refusal of the Court was right, are; first, that it was not distinctly propounded to the Court, that the evidence was offered to rebut or explain Winans' testimony; and, secondly, that in the form in which it was put, it proposed to separate the written contract of compromise from the conversations and negotiations which led to it, and to introduce the latter without the former, although it might turn out that the written paper might most materially affect or control the presumptions deducible from those conversations, and negotiations. We think, that  upon the settled principles of law, parol evidence bearing upon written contracts and papers, ought not to be admitted without the production of such written contracts or papers, so as to enable both the Court and the jury to see whether or not the admission of the parol evidence in any manner will trench upon the rule, that parol evidence is not admissible to vary or contradicts or papers. \nThe next exception is to the admission of the evidence of William A. Stimpson, Richard Caton, and George Neilson, as to certain declarations, and statements, and conversations of the plaintiff, as to his invention prior to the date of his original patent; in order to rebut the evidence of the defendants, as to the invention or use by other persons of the same contrivance, before that date. The objection  is, that, upon general principles, the declarations and conversations of a plaintiff, are not admissible evidence in favour of his own rights. As a general rule, this is undoubtedly true. It is, however, but a general rule, and admits, and requires various exceptions. There are many cases in which a party may show his declarations conflict with acts in his own favour, as a part of  the res gestae. There are other cases, again, in whcih his material declarations have been admitted. Thus, for example, in the case of an action for an assault and battery, and wounding, it has been held, that the declarations of the plaintiff, as to his internal pains, aches, injuries, and symptoms, to the physician called to prescribe for him, are admissible for the purpose of showing the nature and extent of the injuries done to him. See 1 Phillips on Evidence, ch. 12, sec. 1, p. 200 -- 202, eighth ed., 1838. In many cases of inventions, it is hardly possible in any other manner to ascertain the precise time and exact origin of the particular invention. The invention itself is an intellectual process or operation; and, like all other expressions of thought, can in many cases scarcely be made known, except by speech. The invention may be consummated and perfect, and may be susceptible of complete description in words, a month, or even a year before it can be embodied in any visible form, machine, or composition of matter. It might take a year to construct a steamboat, after the inventor had completely mastered all the details of his invention, and had fully explained them  to all the various artisans whom he might employ to construct the different parts of the machinery. And yet from those very details and explanations, another ingenious mechanic might be able to construct the whole apparatus, and assume to himself the priority of the invention. The conversations and declarations of a patentee, merely affirming that at some former period he invented that particular machine, might well be objected to. But his conversations and declarations, stating that he had made an invention, and describing its details and explaining its operations, are properly to be deemed an assertion of his right, at that time, as an  inventor to the extent of the facts and details which he then makes known; although not of their existence at an antecedent time. In short, such conversations and declarations, coupled with a description of the nature and objects of the invention, are to be deemed a part of the res gestae; and legitimate evidence that the invention was then known to and claimed by him, and thus its origin may be fixed at least as early as that period. This view of the subject covers all the parts of the testimony of the witnesses objected to in the  Circuit Court; and we are of opinion, that the Court were right in admitting the evidence. \nThe next and was exception is, to the rejection of the evidence of Dr. Jones, who was offered to prove that there were material differences between the patent of 1831, and the renewed patent of 1835, and to explain these differences. No doubt can be entertained that the testimony thus offered was, or might be, more material to  the merits of the defence. And the question is not as to the competency or relevancy of the evidence, but as to the propriety of its being admitted at the time when it was offered. It appears that the testimony was not offered by the defendants, or stated by them as a matter of defence, in the stage of the cause when it is usually introduced according to the practice of the Court. It was offered after the defendants' counsel had stated in open Court, that they had closed their evidence, and after the plaintiff, in consequence of that declaration, had discharged his own witnesses. The question, then, is, whether it was at that time admissible on the part of the defendants as a matter of right; or whether its admission was a matter resting in the sound discretion  of the Court. If the latter, then it is manifest that the rejection of it cannot be assigned as error. \nthe mode of conducting trials, the order of introducing evidence, and the times when it is to be introduced, are, properly, matters belonging to the practice of the Circuit Courts, with which this Court ought not to interfere; unless it shall choose to prescribe some fixed, general rules on the subject, under the authority of the act of Congress. probably the practice in no two states of the Union is exactly the same; and therefore, in each state, the Circuit Courts must necessarily be vested with a large discretion, in the regulation of their practice. If every party had a right to introduce evidence at any time, at his own election, without reference to the stage of the trial in which it is offered, it is obvious that the proceedings of the Court would often be greatly embarrassed, the purposes of justice be obstructed, and the parties themselves be surprised by evidence destructive of their rights, which they could not have foreseen, or in any manner have guarded against. It seems to us, therefore, that all Courts ought to be, as indeed they generally are, invested with a  large discretion on this subject, to prevent the most mischievous consequences in the administration of justice to suitors; and we think that the Circuit Courts possess this discretion in as ample a manner as other judicial tribunals. We do not feel at liberty, therefore, to interfere with the exercise of this discretion; and, indeed, if we were called upon to say upon the present record, whether this discretion was, in fact, misapplied or not, we should be prepared to say, that we see no reason to doubt that it was, under all the circumstances, wisely and properly exercised. It is sufficient for us, however, that it was a matter of discretion and practice, in respect to which we possess no authority to revise the decision of the Circuit Court. \nUpon the whole, we are of opinion, that the judgment of the Circuit Court ought to be affirmed with costs. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the Court. \nThis is an appeal from a decree of the Circuit Court of the District of Columbia, sitting for the county of Washington, dismissing  a bill in equity, brought by the appellants against the appellees. \nThe facts, so far as they are necessary to be stated upon the present occasion, are, that one James Moody, an inhabitant of Kentucky, died in that state about the year 1802, intestate, without  leaving any children; that in May or June, 1833, the defendant, Northup, obtained letters of administration upon his estate from the proper Court of Jefferson county, in Kentucky; and afterwards under and in virtue of those letters of administration, he received from the treasury of the United States the sum of five thousand two hundred and fifteen dollars and fifty-six cents, for money due to the intestate, or his representatives, for military services rendered during the revolutionary war. The present bill was brought by the appellants, claiming to be the next of kin, and heirs of the intestate, for their distributive shares of the said money, against Northup as administrator; and the other defendants, who are made parties, are asserted to be adverse claimants, as next of kin and distributees. At the hearing of the cause in the Court below; the same having been set down for argument upon the answer of Northup, denying the jurisdiction of the Court; the bill was ordered to be dismissed for want of jurisdiction; and from that decree the present appeal has been taken. \nUnder these circumstances the question is broadly presented whether an administrator, appointed and deriving his  authority from another state, is liable to be sued here, in his official character, for assets lawfully received by him under and in virtue of his original letters of administration. We are of opinion, both upon principle and authority, that he is not. Every grant of administration is strictly confined in its authority and operation to the limits of the territory of the government which grants it; and does not, de jure, extend to other countries. It cannot confer, as a  matter of right, any authority to collect assets of the deceased in any other state; and whatever operation is allowed to it beyond the original territory of the grant is a mere matter of comity, which every nation is at liberty to yield or to withhold, according to its own policy and pleasure, with reference to its own institutions and the interests of its own citizens. On the other hand, the administrator is exclusively bound to account for all  the assets which he receives under and in virtue of his administration to the proper tribunals of the government from which he derives his authority; and the tribunals of other states have no right to interfere with or to control the application of  those assets, according to the lex loci. Hence it has become an established doctrine that an administrator, appointed in one state, cannot, in his official canacity, sue for any debts due to his intestate in the courts of another state; and that he is not liable to be sued in that capacity in the Courts of the latter, by any creditor, for any debts due there by his intestate. The authorities to this effect are exceedingly numerous, both in England and America; but it seems to us unnecessary, in the present state of the law, to do more than to refer to the leading principle as recognised by this Court in Fenwick v. Sears, 1 Cranch, 259; Dixon's Executors v. Ramsay's Executors, 3 Cranch, 319; and Kerz v. Moon, 9 Wheat. 565. \nBut it has been suggested that the present case is distinguishable, because the assets sought to be distributed were not collected in Kentucky, but were received as a debt due from the government at the treasury department at Washington, and so constituted local assets within this District. We cannot yield our assent to the correctness of this argument. The debts due from the government of the United States have no locality at the seat of government. The United  States, in their sovereign capacity, have no particular place of domicile, but possess, in contemplation of law, an ubiquity throughout the Union; and the debts due by them are not to be treated like the debts of a private debtor, which constitute local assets in his own domicile. On the contrary, the administrator of a creditor of the government, duly appointed in the state where he was domiciled at his death, has full authority to receive payment, and give a full discharge of the debt due to his intestate, in any place where the government may choose to pay it; whether it be at the seat of government, or at any other place where the public funds are deposited. If any other doctrine were to be recognised, the consequence would be, that before the personal representative of any deceased creditor, belonging to any state in the Union, would be entitled to receive payment of any debt due by the government, he would be compellable to take out letters of administration in this District  for the due administration of such assets. Such a doctrine has never yet been sanctioned by any practice of the government; and would be full of public as well as private inconvenience. It has  not, in our judgment, any just foundation in the principles of law. We think that Northup, under the letters of administration taken out in Kentucky, was fully authorized to receive the debt due from the government to his intestate; but the moneys so received constituted assets under that administration, for which he was accountable to the proper tribunals in Kentucky; and that distribution thereof might have been, and should have been, sought there in the same manner as of any other debts due to the intestate in Kentucky. \nIt has also been supposed, that the act of Congress of the 24th of June, 1812, may well entitle the appellants to maintain the present suit; since it places a foreign administrator upon the footing of a domestic administrator, in the District of Columbia. That act provides that it shall be lawful for any person to whom letters testamentary or of administration hath been or may hereafter be granted by the proper authority, in any of the United States or the territories thereof, to maintain any suit or action, or to prosecute and recover any claim in the District of Columbia, in the same manner as if the letters testamentary or of administration had been granted  to such person by the proper authority, in the said District.It is observable, that this provision is limited by its terms to the maintenance of suits, and the prosecution and recovery of claims in the District, by any executor or administrator appointed under the authority of any state. It does not authorize any suits or actions in the District, against any such executor or administrator. Its obvious design was, therefore, to enable foreign executors and administrators to maintain suits, and to prosecute and recover claims in the District, not against the government alone, but against any persons whatever, resident within the District, who were indebted to the deceased, and to discharge the debtor therefrom, without the grant of any local letters of administration. In effect, it made all debts due from persons within the District, not local assets, for which a personal representative would be liable to account in the Courts of the District; but general assets, which he had full authority to receive, and for which he was bound to account in  the Courts of the state from which he derived his original letters of administration. Indeed, the very silence of the act as to any  liability of the personal representative to be sued in the Courts of the District for such assets, so received, would seem equivalent to a declaration that he was not to be subjected to any such liability. It fortifies, therefore, rather than weakens the conclusion which is derivable from the general principles of law, upon this subject. The same view of the purport and objects of the act was taken by this Court, at the last term, in the case of Kane v. Paul, 14 Peters, 33. \nUpon the whole, we are of opinion that the Circuit Court was right in dismissing the bill for the want of jurisdiction; and, therefore, the decree is affirmed with costs. \nThis case came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Columbia, holden in and for the county of Washington, and was argued by counsel. \nOn consideration whereof, it is ordered and decreed by this Court, that the decree of the said Circuit Court in this cause be, and the same is hereby, affirmed, with costs. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the Court. \nIn this case a motion has been made on behalf of the defendant in error, to docket and dismiss this suit, under the forty-third rule of the Court. That rule allows the suit to be docketed  and dismissed, upon the production of a certificate from the clerk of the Court below, certifying that the writ of error had been duly sued out and allowed. In the present case no such certificate is produced. But the original writ of error, (signed by the clerk of the Court below,) and also a citation signed by the judge of the Court, is produced by the defendant in error, and is now before us.Under these circumstances, we are of opinion that the substance  of the rule is complied with. The certificate of the clerk is but prima facie evidence of the issuing and allowance of the writ of error: whereas, the production of the writ of error, with the citation, is the highest evidence of the fact, that the writ of error has been duly sued out and allowed. Under these circumstances, the Court are of opinion that the motion ought to be granted. In point of fact, this same question came before this Court, in the case of Ward and others v. The Common wealth Bank of Kentucky, at January  term, 1838, under circumstances less cogent; and the same decision was then made. In that case, certified copies of the writ and citation, were filed, and not the originals; and  the Court ordered the case to be docketed and dismissed. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the Court. \nThis is a case of a writ of error to the Circuit Court, for the Southern District of Mississippi. \nThe defendant in error, Samuel W. Dickson, was duly appointed a Receiver of Public Moneys, for the Choctaw district, in Mississippi, and entered upon the duties of his office, on the 22d of November, 1833. He continued to hold the office until the 26th of July, 1836, when he  resigned it. In May, 1839, a suit was instituted upon his official bond, against him and his sureties, to recover certain sums of public moneys received by him, and not paid over. At the trial of the cause, Dickson insisted upon certain credits to be allowed to him, and proved the receipt by him, while Receiver, into his office, as Receiver of public money, amounting to more than two hundred and fifty thousand dollars, in each year, during the two years of his continuance in office: and also of more than two hundred and fifty thousand dollars for the fraction of a year, commencing on the 22d of November, 1835, and ending on the 26th of July, 1836, when he resigned  his office; and he also proved the depositing of sufficient amounts in Natchez, to entitle him to credit for the disputed items of his account. Upon this evidence, the Court below charged the jury that Dickson was entitled to credit for three thousand dollars, as compensation, including his salary of five hundred dollars, for the year commencing on the 22d of November, 1833, and ending on the 22d of November, 1834; and to the like compensation for the year commencing on the 22d of November, 1834; and ending  on the 22d of November, 1835: and that for the fraction of a year between the 22d of November, 1835, and the 26th of July, 1836, he was entitled to two thousand five hundred dollars for commissions. To this opinion, and charge of the Court, a bill of exceptions was taken by the United States; and a verdict having been found accordingly by the jury, and judgment rendered thereon; the present writ of error has been brought to revise that judgment. \nUpon the argument in this Court, two points have been made, on behalf of the United States: First, That the charge of the Court below was erroneous, in allowing the Receiver to calculate his yearly commission on the amount of public moneys received by him, during a year, commencing from the date of his appointment; instead of calculating it by the fiscal year, which commences with the calendar year, or on the first day of January of every year. Secondly, That the charge of the Court below was erroneous, in allowing the Receiver to charge the whole yearly maximum of commissions for the fractional portion of the year in which he resigned. \nThe validity of these objections to the charge of the Circuit Court, must essentially depend upon the  true interpretation of the act of the 20th of April, 1818, ch. 118. Originally, the Receivers of Public Moneys in the land officers, were paid a commission of one per cent. on the moneys received by them, as a compensation for clerk hire, receiving, and keeping, and transmitting the public moneys to the Treasury of the United States. This was originally provided by the act of the 10th of May, 1800, ch 55. § 6. By the act of the 26th of March, 1804, ch. 35. § 14, the compensation was increased by an addition of onehalf per cent. to the former commission, and also of an annual salary of five hundred dollars, with the exception of the land  office of Marietta, where the annual salary was two hundred dollars, only. Then came the act of the 20th of April, 1818, ch. 118, which provided \"that instead of the compensation now allowed by law  to the Receivers of the Public Moneys, for the lands of the United States, they shall receive an annual salary of five hundred dollars each, and a commission of one per cent. on the moneys received, as a compensation for clerk hire, receiving, safe keeping, and transmitting such moneys to the Treasury of the United States: provided  always, that the whole amount which any Receiver of Public Moneys shall receive, under the provisions of this act, shall not exceed for any one year, the sum of three thousand dollars.\" \nThe main controversy in the present case, turns upon the meaning of the phrase, \"any one year,\" in the foregoing section. Does it mean \"any one year\" calculated from the date of the commission of the Receiver? or does it mean \"any one year\" commencing with the calendar year, that is, with the 1st of January of each year; which is commonly called, in matters connected with the Treasury Department, the fiscal year? \nThe argument addressed to us on behalf of the government, is, that it means the latter. It is said that all accounting officers (with some unimportant exceptions) are required by law, and the regulations of the Treasury Department, to render quarterly accounts of the moneys received by them, and of the disbursements made by them, at the end of each quarter of the calendar year; (see act of 10th of May, 1800, ch. 55;) and that all the accounts kept at the Treasury Department are governed by this mode of the proceeding: and that if any other mode of keeping the accounts were adopted, it  would introduce endless embarrassment and confusion into the Department, and take away the only adequate means of ascertaining from time to time the exact financial state thereof, as to debts, and credits, and disbursements, which is so essential to the public security, and regular operations of the government. And hence, in order to give full effect to this system, it is contended that it is necessary, in all laws of this character, to construe the year to mean the fiscal year. \nAdmitting the argument in its full force, (and we are not disposed to controvert the propriety of the present mode of keeping the public accounts, as being founded as well in law, as in public  convenience,) still it does not appear to us to justify the conclusion attempted to be drawn from it. In short, we do not perceive what connexion the mode of keeping the accounts in the Treasury Department, has with the compensation allowed by law to any public officer. That compensation is to be ascertained from the terms of the law allowing it; and whenever the amount is once ascertained, according to those terms, it is to be allowed and credited to the officer, whatever may be the form in which the  public accounts are kept, or the particular times at which they are required to be rendered and settled. Nor are we able to understand why the accounts of any public officer may not be made up regularly at the end of every fiscal quarter, allowing such compensation as he has then earned and is entitled to by law, where his precedent term of service has been less than a full quarter, in consequence of an intermediate appointment to office. The allowance for the fraction of a quarter may just as readily be made at the commencement of his term of service, by reason of such an intermediate appointment, as it may be where his office terminates in the midst of a quarter; in which case, (as is admitted,) from necessity, the fraction is brought into his closing official account. \nIt has been also argued, that the uniform construction given to the act of 1818, ever since its passage, by the Treasury Department, has been that the act has reference to the fiscal year. The construction so given by the Treasury Department to any law affecting its arrangements and concerns, is certainly entitled to great respect. Still however, if it is not in conformity to the true intendment and provisions  of the law, it cannot be permitted to conclude the judgment of a Court of justice. The construction given to the laws by any department of the executive government, is necessarily ex parte, without the benefit of an opposing argument, in a suit where the very matter is in controversy; and when the construction is once given, there is no opportunity to question or revise it by those who are most interested in it as officers, deriving their salary and emoluments therefrom, for they cannot bring the case to the test of a judicial decision. It is only when they are sued by the government for some supposed default or balance, that they can assert their rights. Their acquiescence, therefore, is almost from a moral necessity, when  there is no choice but obedience, as a matter of policy or duty. But, it is not to be forgotten, that ours is a government of laws, and not of men; and that the Judicial Department has imposed upon it, by the Constitution, the solemn duty to interpret the laws, in the last resort; and however disagreeable that duty may be, in cases where its own judgment shall differ from that of other high functionaries, it is not at liberty to surrender, or to  waive it. \nThe present question, then, must be decided upon the same principles by which we ascertain the interpretation of all other laws; by the intention of the legislature as it is to be deduced from the language and the apparent object of the enactment. \nThe object of the act of 1818, manifestly is to provide a suitable compensation for the Receivers and Registers of Public Moneys for the public lands. The compensation is for services to be rendered by them, officially, during their continuance in office; and up to a certain point, at least, it is in exact proportion to the extent and duration of those services, and the responsibility incurred thereby. The compensation is measured by years. It is to be by an annual salary, and by a commission not exceeding an annual amount. The words are, that \"they shall receive an annual salary of five hundred dollars each.\" The natural interpretation of these words, certainly is, that the salary is to commence at the time when the service is to commence; and that they are to be contemporaneous with each other. We believe this to be the uniform interpretation of all laws of this sort; and that when any person takes office in an intermediate  time between one quarter and another, the practice is to pay him a proportion of the quarter's salary, accordingly; and if he leaves office before the end of his official year, to pay him for the like proportion of the last quarter. Indeed it was admitted  at the argument, that this is the rule adopted at the Treasury Department itself, in relation to the salaries of officers, viz.; that it is begun and ended with the official year; and not with the fiscal year. Nor was it suggested that, in this particular, any difficulty arose, as to the mode of keeping and settling the official accounts at the Treasury, at the end of each quarter, or of the fiscal year. \nIf, then, the natural interpretation of the words of the act, as  to the salary, has reference to the official year, and not to the fiscal year; what ground is there to presume that Congress, in the subsequent words regulating the commission, did not use the word year in the like sense? There is nothing in the language or in the nature of the compensation, which leads us to the conclusion that Congress had in view the fiscal year, or the mode of keeping the accounts in the Treasury Department, as guides  to fix the interpretation of the word year. For aught that appears, it was used in its ordinary sense. The words are, \"and a commission of one per cent. on the moneys received, as a compensation for clerk-hire, receiving, safe keeping, and transmitting such moneys of the United States; provided always, that the whole amount which any Receiver of Public Moneys shall receive under the provisions of this act, shall not exceed, for any one year, the sum of three thousand dollars.\" The commission is on the moneys received by any one officer, not by one or more officers, during any one year of his services; not during any one calendar year, for the services of one or more officers in that year. It is his compensation for clerk-hire, paid by him, and for his responsibilities in receiving, keeping, and transmitting the public moneys; and not for his services and responsibility in connexion with other officers. The commission is a compensation attached to the particular officer for his yearly service, and not to the office itself for a fiscal year. If the intention of the legislature had been what the argument for the United States supposes, the language of the proviso would have been  different; it would have been, provided that the United States shall not, in any one calendar year, pay more than one per centum upon all the moneys received during that year; and that the commission for any one year to whomsoever paid, shall not, in the whole, exceed the sum of twenty-five hundred dollars. It need not be said, how entirely different in its scope and legal intendment such language is from that of the present proviso; and yet the argument is, that the Court should give them precisely the same interpretation. We cannot but think that this is to call upon the Court, not to expound the act as it, but to frame its provisions anew, upon a conjecture of what might have been the original intention and object of Congress. \nIt is further urged, that unless we interpret the words to refer  to the fiscal year, great inconveniences may arise; and the government may, by there being several Receivers in office during one and the same fiscal year, each of whom may have received more public moneys than would entitle him to the maximum of commissions, be compellable to pay more than twenty-five hundred dollars in one year; nay, may actually pay twice or thrice that amount.  Suppose it might be so, it would be a case of very rare occurrence; and to put an extreme case is not a good test of the fair and just interpretation of any statute. In such a case each successive Receiver would only receive his just proportion of the year's salary, and no more commission than Congress itself had established to be a reasonable compensation for his expenditures and responsibilities in receiving, safe keeping, and transmitting the public moneys. There is nothing in the reason of the case, why each successive officer, who has incurred the full responsibility, by the receipt of two hundred and fifty thousand dollars, should not receive the whole commission up to that extent. The argument ab inconvenienti, therefore, under such circumstances, does not address itself to this Court with the force which it has been supposed to possess. It amounts merely to this, that the act is defective in some of its details; and does not reach all the cases which ought to be provided for. \nBut there would be inconveniences, not to say apparent hardships, upon the Receivers, in adopting the construction contended for on behalf of the government. Thus, suppose a Receiver should die,  or be removed from office without any default on his own part, during the fiscal year, and after he had received and become responsible for public moneys exceeding two hundred dred and fifty thousand dollars; in such a case, the extent of the act would seem fairly to entitle him to the full commission of two thousand five hundred dollars; and yet, according to the argument, he would be compelled to submit to an apportionment, which might reduce it to a quarter part thereof. \nThere is another consideration not unimportant in the construction of the act; it is, that the limitation of the compensation which any Receiver is to receive for any one year, is not, including his salary, to exceed the sum of three thousand dollars. So that here we have both salary and commissions united together in the ascertainment of the amount; and, of course, the year,  with reference to each, must have the same period of commencement and termination. If, therefore, the salary is to be ascertained by the official year, as has been already suggested, it would seem to be an irresistible conclusion, that the same period must be assigned for the commissions. \nPassing from these considerations to  another, which necessarily brings under review the second point of objection to the charge of the Court below; we are led to the general rule of law which has always prevailed, and become consecrated almost as a maxim in the interpretation of statutes, that where the enacting clause is general in its language and objects, and a proviso is afterwards introduced, that proviso is construed strictly, and takes no case out of the enacting clause which does not fall fairly within its terms. In short, a proviso carves special exceptions only out of the enacting clause; and those who set up any such exception, must establish it as being within the words as well as within the reason thereof. Applying this rule to the circumstances of the present case, how does it stand? The enacting clause gives to each Receiver a commission of one per cent. upon all the public moneys received by him. This was precisely in  conformity to the antecedent laws. The proviso limits that per centage to an amount not exceeding two thousand five hundred dollars; for any one year. Until, then, the per centage of the particular Receiver has reached that amount, in whatever period of the year it may arrive,  the proviso, according to its very terms, has no operation: and when that maximum is reached, the per centage ceases, whether any more public moneys are received by that officer or not. The case, then, of the present Receiver falls directly within the enacting clause. He seeks only the maximum commissions upon the moneys actually received by him during his continuance in office; and the proviso either does not touch his case, or it only operates to cut off all subsequent commissions from him, for other moneys received during his continuance in office. The proviso contains no limitations of his per centage, by connecting it with, or making it dependent upon the commissions, or the receipt of public moneys by his successor in office. The proviso is, that he shall receive no more for any one year; not that any other Receiver may not receive a like compensation accruing from his subsequent appointment and  receipts in office, for the portion of any year which is them unexpired. \nUpon the whole, we are of opinion, that there is no error in the charge and opinion of the Court below; and, therefore, the judgment is affirmed. \nThis cause came on to be heard on the transcript  of the record from the Circuit Court of the United States for the Southern District of Mississippi, and was argued by counsel. On consideration whereof, it is ordered and adjudged by this Court, that the judgment of the said Circuit Court in this cause be, and the same is hereby, affirmed. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the Court. \nThis is an appeal from the decree of the Circuit  Court of the Southern Disrict of Alabama, in a suit in equity; and the only question now submitted for our consideration is whether the decree in the case is a final decree, in the sense of the acts of Congress of the 24th of September, 1789, ch. 20, sec. 22; and the act of 3d of March, 1803, ch. 93; from which an appeal lies to this Court. \nThe original bill was brought by the plaintiffs, (now appellants,)  against the appellees, as executors of John Parks, to recover their respective proportions as residuary legatees of the personal estate of the testator under his will, and for an account and due administration of the assets. Upon the coming in of the answer, it was referred to a master to take an account; the master  afterwards made a report, to which exceptions were filed; and it was thereupon ordered by the Court that the sum of seven thousand seven hundred and ninety-five dollars and twenty-seven cents, admitted to be in the hands of the executors, be paid into Court, subject to the order of the Court, which was accordingly paid; and the report was, thereupon, referred back to the master: and after several intermediate proceedings and reports, the master made his final report on the 2d of March, 1840, by which he found a balance then in the hands of the executors, of eleven thousand three hundred and fifty-five dollars and twenty-three cents, inclusive of the said sum of seven thousand seven hundred and ninety-five dollars and twenty-seven cents, and exclusive of sundry uncollected debts, then outstanding, some of which were good, some doubtful, and some bad. To this report the plaintiffs filed certain exceptions, on the 27th of the same month; which exceptions were disallowed by the Court as not having been taken before the master, or filed in the proper time. And thereupon the Court proceeded to decree that the report be accepted, that the plaintiffs should have execution for the said sum  of eleven thousand three hundred and fifty-five dollars and twenty-three cents; and \"that as to the residue of the debts due to the estate of John Parks, deceased, and not collected, it is ordered and adjudged by the Court, that as soon as the said executors shall succeed in the collection of the same, or any part thereof, that they do pay the amount into Court for distribution, to be made under the direction of this Court.\" The plaintiffs having received the said sum of seven thousand seven hundred and ninety-five dollars and twenty-seven cents, acknowledged the receipt thereof; which was to be credited on the decree as a payment made on the 18th of November, 1838: to the above decree the appeal is taken. \nWe are of opinion that the decree is an interlocutory and not a final decree, in the sense of the act of Congress. It is plain that it does not dispose of the whole matter in controversy between  the parties. And if an appeal could now lie upon the decree already rendered, an appeal could also lie from time to time, from any future decree of distribution of any assets which may be collected after the former decree, toties quoties; without any final decision being made  of all the matters in controversy. In our judgment this would be against the clear import and intention of the acts of Congress; which were designed to give an appeal only from a decree final, upon the whole matters and merits of the controversy. \nThe consequence is, that the appeal must be dismissed with costs. \nThis cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the Southern District of Alabama, and was argued by counsel. On consideration whereof, it is the opinion of this Court that the decree in this case is an interlocutory and not a final decree in the sense of the act of Congress; whereupon, it is now here ordered and decreed, that this appeal be, and the same is hereby, dismissed with costs, and that this cause be, and the same is hereby, remanded to the said Circuit Court to be proceeded in according to law and justice. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the Court. \nThis is the case of a writ of error to the Circuit Court of the District of Missouri. The original action was assumpsit, brought by the United States against General Gratiot, the plaintiff in error, as Chief Engineer, for fifty thousand dollars alleged in the declaration to be money had and received by him as Chief Engineer, to the use of the United States. At the trial, the controversy turned mainly as to the merits of three items of set-off, or credit, which  were claimed by the defendant in the reduction or extinguishment of the supposed debt  due to the United States. \nThere items were as follows: \n \n \n1. For disbursing $ 603,727 42, on account of Fort Calhoun, from the 13th of November, 1821, to the 30th of September, 1829, being 2879 days, at $ 2 per day, being less than two and a half per cent. on the amount disbursed, as allowed by the regulations of the army to an officer disbursing at a fortification, \n$5,758 00 \n \n2. For disbursing $ 33,447,36 on account of contingencies of fortifications, at 2 1/2 per cent., as authorized by the regulations above referred to, \n816 18 \n \n3. For extra services in conducting the affairs connected with the civil works of internal improvement carried on by the United States, and referred to the Engineer Department for execution: and which did not constitute any part of his duties as a military officer; from the 1st day of August, 1828, to the 6th day of December, 1838, inclusive, ten years and one hundred and twenty-eight days, at 3000 dollars per annum, \n37,262 46 \nThese items had all been disallowed by the Treasury Department, for reasons stated by the proper accounting officers, and spread upon the record; and were insisted upon as just and proper allowances by the defendant. \n The jury at the trial found a verdict for the United States, upon which judgment was entered; and from that judgment the present writ of error has been brought to this Court. \nFour several bills of exceptions were taken at the tiral on  behalf of the defendant. The first was taken to the refusal of the Court to allow any evidence to be given in support of either of these items of claim. The third was to a like refusal of the Court to allow certain depositions and documents, offered by the defendant, to be given in evidence to prove that he had rendered services to the United States, over and above the ordinary and regular duties of his office, and the value of such services; and the established usage and practice of the government in allowing to engineers and other officers their claims for extra compensation for like services. The second and fourth exceptions proceeded upon minor points in the case. The second asked the instruction of the Court that the United States were not entitled to recover for any public money received by the defendant in any other capacity of office than that of Chief Engineer; and that certain requisitions, stated in the exception, on account  of Fort Grand Terre, and Fort Columbus, and Castle Williams, and the Fort at Throg's Neck, were not evidence of money had and received by the defendant to the use of the United States. The Court refused these instructions, because there was no subject matter growing out of the evidence for the United States, to which the instructions could apply, if given; inasmuch as it appeared from the Treasury transcript, given in evidence, that the balance sued for was of sums placed in the hands of the defendant, as Chief Engineer, in 1835, to be expended on the works at Grand Terre; and therefore, in effect, the money sued for was received by him in his capacity of Engineer. We are of opinion that these instructions were rightly refused by the Court, for the reasons given by the Circuit Court; and for the additional reason, that the first was afterwards virtually given upon the prayer of the defendant on the fourth exception, so far as it was applicable to the case; and the second asked the opinion of the Court upon a matter of fact proper for the cognisance of the jury. \nThe fourth exception, so far as it has not been already disposed of, asked the Court to instruct the jury, that the items  charged against the defendant, as Chief Engineer, in the Treasury transcript, marked A, which was given in evidence, consisting of certain balances charged in gross without the items going to show the said balances, were not competent evidence to charge  the defendant in the action. This instruction the Court refused to give, and in our judgment, rightly; for taking the whole transcript together, and examining its details, as a mere matter of account, it is plain that all the items on which these balances are struck, are there to be found regularly entered and brought forward. The supposed objection, then, which was stated by this Court in the case of The United States v. Jones, 8 Peters, 375. 383, as to mere naked balances on the transcript, did not apply. \nThere is another instruction asked under this exception, in a complicated form, but which mainly turns the consideration whether the Treasury Department had a right to deduct the pay and emoluments of the defendant, as a General of the army, and while he was Chief Engineer, by setting them off against the balance reported against him, on account of his superintendency of Forts Monroe and Calhoun. In our judgment,  the point involves no serious difficulty. The United States possess the general right to apply all sums due for such pay and emoluments, to the extinguishment of any balances due to them by the defendant on any other account, whether owed by him asa private individual, or as Chief Engineer. It is but the exercise of the common right, which belongs to every creditor, to apply the unappropriated moneys of his debtor, in his hands, in extinguishment of the debts due to him. \nHaving disposed of these minor points, we now come to those arising under the first and third exceptions, and which constitute the only real difficulty in the case. \nThe first exception, under which the Court excluded all evidence in support of the three items of credit disallowed by the Treasury Department, is certainly well founded; unless it is clear in point of law that neither of these items constituted a legal or equitable claim against the United States. It is wholly immaterial whether the claim be a legal or an equitable claim, as in either view, under the act of 1797, ch. 74, as was decided by this Court in the case of The United States v. Wilkins, 6 Wheat. 135, it constitutes a good ground of set-off,  or deduction. It is not sufficient to establish that these items ought to be rejected, that there is no positive law which expressly provides for, or fixes such allowances. There are many authorities conferred on the different  departments of the government, which for their  due execution, require services and duties to be performed, which are not strictly appertaining to, or devolved upon any particular officers, or which require agencies of a special discretionary nature. In such cases the department charged with the execution of the particular authority, business, or duty, has always been deemed, incidentally, to possess the right to employ the proper persons to perform the same, as the appropriate means to carry into effect the required end; and also the right, when the service or duty is an extra service or duty, to allow the persons so employed a suitable compensation. This doctrine is not new in this Court; but it was fully expounded in the cases of The United States v. M'Daniel, 7 Peters, 1; The United States v. Ripley, 7 Peters, 18; and The United States v. Fillebrown, 7 Peters, 28. \nTo sustain the refusal of the Court in the present case, it is,  therefore, indispensable to show that there is some law which positively prohibits, or by just implication denies any allowance of the disputed items, or of any part thereof. We know of no law which has such an effect, or which contains any such prohibition or denial. It is true that the act of the 16th of March, 1802, ch. 9, which provided for the organization and establishment of the corps of engineers, in one of its sections (sec. 27) declares, \"That the said corps, when so organized, shall be stationed at West Point, in the state of New York, and shall constitute a military academy; and the engineers, assistant engineers, and cadets, of the said corps, shall be subject, at all times, to do duty in such places, and on such service as the President of the United States shall direct.\" But, however broad this enactment is in its language, it never has been supposed to authorize the President to employ the corps of engineers upon any other duty, except such as belongs either to military engineering, or to civil engineering. It is apparent, also, from the whole history of the legislation of Congress on this subject, that, for many years after the enactment, works of internal improvement  and mere civil engineering, were not, ordinarily, devolved upon the corps of engineers. But, assuming the President possessed the fullest power, under this enactment, from time to time to employ any officers of the corps in the business of civil engineering, still it must be obvious, that as their pay and emoluments were, or  would be regulated with reference to their ordinary military and other duties, the power of the President to detach them upon other civil services, would not preclude him from contracting to allow such detached officers a proper compensation for any extra Such a contract may not only be established by proof of some positive regulation, but may also be inferred from the known practice and usage of the War Department in similar cases, acting in obedience to the presumed orders of the President. Now it is perfectly consistent with the record in this case, that the defendant might have offered direct or presumptive evidence of such a contract, either express or implied, from the practice and usage of the War Department, applicable to the very services stated in some, at least, of the disallowed items.We do not say that he could, in point of fact, have  established any such contract, or any legal or equitable right to such allowances. That is a point on which we have no right to pass judgment, since he was stopped from offering any proof whatsoever at the very threshold of the inquiry. In short, unless some law could be shown establishing clearly and unequivocally the illegality of each of these items; which, as we have said, has not been shown; the refusal of the Court to admit the evidence cannot be supported; and we are, therefore, of opinion that this exception was well taken; and that there was error in the refusal of the Circuit Court. \nThe third exception opens this matter still more fully and exactly; for there the defendant offered certain depositions and documents, as proofs to establish that he had rendered services over and above the regular duties of his office, and the value of such extra services, and the established usage and practice of the government in allowing to engineers and other officers their claims for extra compensation for the like services. This evidence the Court also rejected, as the record asserts, as incompetent and irrelevant; but, undoubtedly, upon the more board ground on which the evidence offered  under the first exception, was rejected, that the claims had no just foundation in law. That the evidence so offered would, in point of fact, have maintained the asserted statements, we have no right, absolutely, to affirm. That it was competent and relevant for the purpose for which it was offered, and proper for the cinsideration of the jury,  as conducing to the establishment of the facts, has not been denied at the argument, and, indeed, seems not to admit of any well founded doubt. A very elaborate examination and analysis of this evidence, and of its supposed bearing and agency on the merits of each of the claims has been gone into at the bar; but, in the view which we take of the case, it is matter of fact, belonging, in a great measure, if not altogether, to the consideration of the jury, and with which, as a Court of Error, we are not at liberty to intermeddle. Without, therefore, taking up more time upon this point, it is only necessary for us to say that, for the reasons already stated, we are of opinion there was error also in the Circuit Court in excluding the depositions and documents so offered, from the jury. \nBut as the merits of these claims have been  fully argued before us, upon several points of law, as well as upon certain admitted conclusions of fact, as if the evidence had been admitted, and both parties desire our opinion in respect to the matters of law connected with these facts; we have deemed it right, for the purpose of bringing this protracted controversy within narrower limits, upon the new trial in the Circuit Court, to state some of the views now entertained by the Court upon these points. \nI. As to the first item. It purports to be founded on certain Regulations of the Army, which are spread upon the record, and which received the sanction of the President in 1821 and 1825. The 67th article of the Regulations of 1821, provides as follows. \n1. \"The chief of the corps of engineers shall be stationed at the seat of Government, and shall be charged with the superintendence of the corps of engineers, to which that of the  topographical engineers is attached; he shall also be inspector of the military academy, and be charged with its correspondence. \n2. \"The duties of the engineer department will comprise the construction and repairs of fortifications, and a general superintendence and inspection of the  same, military reconnoitrings, embracing general surveys and examinations of particular sites for fortifications, and the formation of plains and estimates in detail for fortifications for the defence of the same, with such descriptive and military memoirs as may be necessary to establish the importance and capabilities of the position intended to be occupied; the general direction of the disbursements on fortifications,  including purchases of sites and materials; hiring workmen, purchases of books, maps, and instruments; and contracts for the supplies of materials, and for workmanship. \n14. \"Where there is no agent for fortifications, the superintending officer shall perform the duties of agent, and while performing such duties, the rules and regulations for the government of the agents shall be applicable to him; and as a compensation for the performance of that extra duty, he will be allowed, for moneys expended by him in the construction of fortifications at the rate of two dollars per diem, during the continuance of such disbursements; provided the whole amount of emolument shall not exceed two and a half per cent. on the sum expended.\" \nThe 67th article of the Regulations  of 1825, provides as follows: \n888. \"The duties of the engineer department comprise reconnoitring and surveying for military purposes, and for internal improvements, together with the collection and preservation of topographical and geographical memoirs, and drawings referring to those objects; the selection of sites, the formation of plans and estimates, the construction, repair, and inspection of fortifications, and the disbursements of the sums appropriated for the fulfilment of those objects severally, comprising those of the military academy; also the superintendence of the execution of the acts of Congress, in relation to internal improvement, by roads, canals, the navigation of rivers, and the repairs and improvements connected with the harbours of the United States, or the entrance into the same, which may be authorized by acts of Congress, with the execution of which the War Department may be charged.\" \n893. \"The engineer superintending the construction of a fortification, will disburse the moneys applied to the same, and as compensation for the performance of that extra duty, will be allowed at the rate of two dollars per diem during the continuance of such disbursements,  provided the whole amount of emolument shall not exceed two and a half per cent. on the sum disbursed.\" \nSo far as the present item is concerned, these regulations do not differ in substance. They both raise the question as to the proper interpretation of them whether the allowance of two  dollars per diem, not exceeding two and a half per cent., is intended to be limited to a single per diem allowance; notwithstanding the engineer superintending the construction , and disbursing the moneys, as agent for fortifications, is employed at the time upon several fortifications, each requiring separate accounts of the disbursements to be kept, on account of there being distinct and independent appropriations therefor; or whether the per diem allowance is cumulative, that is to say, two dollars a day for every fortification, for which there is a distinct and independent appropriation, of which separate accounts are required to be kept, and the disbursements are confided to one and the same engineer, as superintendent and agent of disbursements. The Court are of opinion that the latter is the true construction of the Regulations; upon the ground, that it would be unreasonable to  suppose that these Regulations intended to give the same xact amount of compensation to a person disbursing moneys upon two or more distinct fortifications, that he would be entitled to if he were disbursing agent for one only, although his duties might be thus doubled, and even trebled; and that the natural import of the language is, that the compensation is to be given to each agent of a separate fortification, for his disbursements about that particular fortification, without any reference to the consideration whether his agency was limited to that, or extended to other fortifications. Under such circumstances, as the defendant was the disbursing agent, both at Fort Monroe and Fort Calhoun, under distinct and independent appropriations, there does not seem to be any reason why he may not be entitled to the per diem allowance which he claims for each of those forts. \n2. As to the second item. The right to the commissions charged for disbursing thirty-three thousand four hundred and forty-seven dollars and twenty-six cents, on account of contingencies on fortifications, must, essentially, depend upon the evidence which may be adduced in support of the claim. There is nothing in  the character of the item which precludes the defendant from showing that he is entitled to the commissions of two and a half per cent., or of a less amount, if he can prove that the disbursements were other than those on Forts Monroe and Calhoun; and that it has been the usage of the Department to make the like compensation for disbursements under the like circumstances, or that the  allowance is just and equitable in itself. The Court are of opinion that evidence ought to have been admitted to establish it. \n3. As to the third item, constituting a charge of thirty-seven thousand two hundred and sixty-two dollars and forty-six cents, for extra services in conducting the affairs connected with the civil works of internal improvements, very different considerations may apply. The Court are of opinion that, upon its face, this item has no just foundation in law; and, therefore, that the evidence which was offered in support of it, if admitted, would not have maintained it. The ground of this opinion is, that upon a review of the laws and regulations of the government, applicable to the subject, it is apparent that the services therein alleged to be performed were the ordinary  special duties appertaining to the office of Chief Engineer; and such as the defendant was bound to perform, as Chief Engineer, without any extra compensation over and above his salary and emoluments as Brigadier General of the army of the United States, on account of such services. In this view of  the matter the Circuit Court acted correctly in rejecting the evidence applicable to this item. \nUpon the whole, upon the other grounds already stated, the judgment of the Circuit Court must be reversed; and the cause remanded with directions to that Court to award a venire facias de novo. \nThis cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Missouri, and was argued by counsel. On consideration whereof, it is the opinion of this Court, that there was error in the said Circuit Court in rejecting the evidence offered by the defendant, (Gratiot,) in support of his claims set forth in the first bill of exceptions; and, also, error in refusing to allow the depositions and documents to be given in evidence stated in the third bill of exceptions, for the purposes for which the same was offered by the said defendant.  It is thereupon now ordered and adjudged by this Court, that the judgment of the said Circuit Court in this cause be, and the same is hereby, reversed, and that this cause be, and the same is hereby, remanded to the said Circuir Court, with directions to award a venire facias de novo. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the Court \nThis is the case of a writ of error to the Circuit Court for the District of Georgia. The original suit was brought by the United States against Doctor Philip Minis, (the plaintiff in error,) to recover the balance of thirteen thousand five hundred and eighty-nine dollars and five  cents, due from him to the United States. At the trial of the cause upon the general issue, a transcript of the account from the Treasury Department establishing the balance was given in evidence; and the sole question in controversy between the parties was, whether Doctor Minis was entitled to credit for certain items which had been disallowed by the Treasury Department. The principal item, and the only one now in controversy, was a claim by Doctor Minis, who was a surgeon in the army, and was appointed military disbursing agent for removing and subsisting the Cherokee Indians, of two and a half per cent. commissions on the sum of five hundred and fourteen thousand two hundred and thirty-seven dollars and sixty-one cents, actually disbursed by him in the course of his agency in 1836 and 1837. No evidence was offered on the part of Doctor Minis of any contract or of any usage of the government for the allowance of any such commission, in cases of this sort. The counsel for Doctor Minis, among other things, (not material in the present state of the case,) prayed the Court to instruct the jury, 1. That the clause  in the act of Congress of the 3d of March, 1835, ch. 303,  which was relied upon as the authority by which the defendant's claim for commissions was rejected, did not apply to the defendant's case; because it expressly refers to moneys appropriated during that session of Congress, and,  therefore, that the Second Auditor erred in disallowing the charge for commissions. 2. That the defendant was entitled to the commissions charged by him, as well from the long established practice of the government, as from the law of the land; there being no law prior to the act of the 3d of March, 1839, disallowing commissions or moneys disbursed for the government. 3. That the charge for commissions should be allowed, because the charge is made for the disbursement of moneys appropriated during the sessions of Congress of 1836 and 1837; and, therefore, that neither the act of 1835 nor of 1839 was applicable. \nThese instructions the Court refused to give; but instructed the jury \"that in the relations which the defendant had stood to the United States, as an officer in the army, he had to claim by law for commissions on the sum disbursed by him, whatever interpretation might be given to the concluding proviso of the act of the 3d of March,  1835, ch. 303; and admitting that such proviso was limited to a prohibition per cent., additional pay, extra allowance or compensation, on account of disbursing any public money appropriated by law during the session of Congress when the act was passed containing the proviso; that said proviso could not be interpreted to give commissions or per cent. upon disbursements of antecedent or subsequence appropriations of money by Congress, unless the same were authorized by law; and that no law authorized the defendant to charge commissions; and therefore that the Second Auditor had not erred in disallowing commissions to the defendant.\" To this opinion of the Court the defendant excepted. The jury found a verdict for the United States, after deducting certain other disallowed items; and judgment was rendered, accordingly, for the United States; and the present writ of error is brought to revise that judgment. \nIt is certainly true, as has been suggested at the bar, that the case is, as to the evidence necessary to raise some of the questions very imperfectly and defectively stated; and therefore some of the instructions might on this account have been well refused. It is, however, much more  satisfactory to us to be able to dispose of the case upon its true merits. \nthe first instruction asked embraces the question, what is the true construction of the first section of the act of the 3d of  March, 1835, ch. 303, entitled \"An act making certain additional appropriations for the Delaware Breakwater, and for certain harbours, and removing obstructions in and at the mouth of certain rivers, for the year 1835.\" That act, after making the specific appropriations, contains the following proviso: \"Provided, that no officers of the army shall receive any per cent. or additional pay, extra allowance or compensation, in any form whatsoever, on account of the disbursing any public money appropriated by law during the present session for fortifications, execution of surveys, works of internal improvement, building of arsenals, purchase of public supplies of any description, or for any other service of duty whatsoever, unless authorized by law.\" The argument on behalf of the United States is, that this proviso, although found in a mere appropriation law of a limited nature, is to be construed, by reason of the words \"or for any other service or duty whatsoever, unless authorized  by law,\" to be permanent in its operation, and applicable to all future appropriations, where officers of the army are employed in such service or duty; and that it appears from the record, that this was the very ground on which the Treasury Department rejected the claim of Doctor Minis for commissions. The same question has been made and fully argued in the case of Gratiot v. The United States, at the present term; and we have given it our deliberate consideration. We are of opinion that such is not the true interpretation of the terms of the proviso; and that it is limited exclusively to appropriations made at the session of 1835. \nIt would be somewhat unusual to find engrafted upon an act making special and temporary appropriation, any provision which was to have a general and permanent application to all future appropriations. Nor ought such an intention on the part of the legislature to be presumed, unless it is expressed in the most clear and positive terms, and where the language admits of no other reasonable interpretation. The office of a proviso, generally, is either to except something from the enacting clause, or to qualify or restrain its generality, or to exclude  some possible ground of misinterpretation of it, as extending to cases not intended by the legislature to be brought within its purview. A general rule, applicable to all future cases, would most naturally  by expected to find its proper place in some distinct and independent enactment. \nNow, the language of the present proviso is perfectly satisfied by confining its operation to appropriations to be made during the then existing session. It seems clear that the words of the proviso ought to receive this interpretation, if the last clause, \"or for any other service or duty whatsoever, unless authorized by law,\" were left out. The proviso would then in legal effect read: that no officer of the army shall receive any per cent. or additional pay, extra allowance, or compensation, in any form whatever, on account of the disbursing any public money appropriated by law during the present session, for fortifications, for execution of surveys, for works of internal improvement, for building of arsenals, for the purchase of public supplies of every description. What difficulty, then, is created by the addition of the subsequent clause? In our judgment none whatsoever. The preceding  enumeration is of special services in disbursing public money on account of particular appropriations for fortifications, &c. But it was foreseen by Congress that other appropriations might be made during the same session for other objects not comprehended in the preceding enumeration; and therefore, ex industria, the subsequent clause was added to supply any defect of this nature, and to cut off all claims for extra pay,  allowance, or compensation for disbursements connected with such objects. The whole clause in this view would read precisely as if it had been introduced immediately after the words \"for fortifications.\" It would then be, that no officer of the army shall receive any per cent., &c., on account of disbursing any public money appropriated by law during the present session, for fortifications, or for any other service or duty whatsoever. This, too, is the grammatical sense of the words of the whole proviso, in the order in which they stand. On the other hand, the interpretation put upon the proviso on behalf of the United States, requires the Court to read it as if the last clause were wholly independent of the preceding enumeration, and permanently prohibited  any extra allowance or compensation \"for any other service or duty\" than disbursements, but prohibited it for disbursements only, under appropriations made during that session. This would seem obviously to be inconsistent with the policy  upon which the supposed permanency of the proviso is made to rest. The prohibition would then be utterly inapplicable to disbursements of future appropriations, which in most cases is the leading item of charge, and would be confined to \"any other service or duty.\" Such an interpretation certainly ought not to be adopted in a proviso to an act making appropriations for certain specified objects, unless it be unavoidable. And to make the proviso apply to disbursements under future appropriations generally, the Court would be driven to interpolate into it the words \"or at any future session;\" a liberty which, consistently with the known limits of judicial duty, could never be properly assumed. \nthe subsequent legislation of Congress, even if it could be brouhgt in aid of the argument, rather tends to confirm, than to impugn the interpretation which we have given to the proviso. It was not until the act of 3d March, 1839, ch. 82, that  Congress made a general provision on the subject, and enacted, by a distinct section, that no officer, in any branch of the public service, or any other person, whose salaries, or whose pay or emolument is, or are fixed by law, shall receive any extra allowance or compensation in any form whatever, for the disbursement of public money, or the performance of any other service, unless the said extra allowance or compensation be allowed by law. The generality of this section would seem to show that, until that period, no law existed on the subject which was permanently applicable to any branch of the public service. \nWe think, then, that according to the natural meaning of the words, and the order in which they stand, the true interpretation of the whole proviso is, that it is limited to appropriations made during the session of 1835. If, therefore, the disallowance of Dr. Minis's claim to commissions depended upon the act of 1835, (as was the construction of the Treasury Department,) the instruction asked on this point ought to have been given by the Circuit Court. \nbut we are of opinion that his claim was properly disallowed upon another and distinct ground. No evidence of any contract  or usage was offered to sustain it; and the case appears to us to fall directly within the provisions of the act of 30th of June, 1834, ch. 162, for the organization of the Department of Indian Affairs. The 4th section of that act provides that \"it shall be competent  for the President to require any military officer of the United States to execute the duties of an Indian agent.\" The 13th section further provides, that \"the duties required by any section of this act, of military officers, shall be performed without any other compensation than their actual travelling expenses.\" Dr. Minis being a surgeon in the army, was appointed disbursing agent for removing and subsisting the Cherokee Indians, and has been allowed a compensation for his travelling expenses, under the agency, of five dollars per diem, amounting, in the whole, to the sum of one thousand four hundred and twenty dollars. It is not pretended that this sum was not a reasonable compensation. \nIt has been suggested at the argument, that no other agents are within the purview of the act of 1834, than such Indian agents as are to be appointed under that act as general Indian agents; and that Dr. Minis was not in  that predicament. But looking to the whole scope and object of that act, contemplating, as it does, that military officers might be called upon to perform duties in connection with the general Indian agents, by the direction of the President, we cannot but entertain the opinion, that the terms of the act were designed to exclude such military officers from any other compensation than their travelling expenses; as, in truth, when detached upon such special service, they were still entitled to their ordinary military pay and emoluments. \nIt has also been suggested, that the disbursements in the present case were not properly of public money, because it was money stipulated by treaty to be paid to the Cherokees, upon their removal, and the cession of their lands. But we think this objection is unmaintainable. The payments made were properly public money, and the disbursements thereof were on account of the United States, and for their use and benefit, in fulfilment of the obligations of the treaty. \nUpon the whole, therefore, we are of opinion that the Circuit Court rightfully, under all the circumstances of the case, refused the instructions prayed for; and gave the very instruction  which was required by law. \nThe judgment is, therefore, affirmed. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the Court. \nThis is the case of an appeal from the decree of the Circuit Court of the District of Connecticut, sitting in admiralty. The leading facts, as they appear upon the transcript of the proceedings,  are as follows: On the 27th of June, 1839, the schooner L'Amistad, being the property of Spanish subjects, cleared out from the port of Havana, in the island of Cuba, for Puerto Principe, in the same island. On board of the schooner were the captain, Ransom Ferrer, and Jose Ruiz, and Pedro Montez, all Spanish subjects. The former had with him a negro boy, named Antonio, claimed to be his slave. Jose Ruiz had with him forty-nine negroes, claimed by him as his slaves, and stated to be his property, in a certain pass or document, signed by the Governor General of Cuba. Pedro Montez had with him four other negroes, also claimed by him as his slaves, and stated to be his property, in a similar pass or document, also signed by the Governor General  of Cuba. On the voyage, and before the arrival of the vessel at her port of destination, the negroes rose, killed the captain, and took possession of her. On the 26th of August, the vessel was discovered by Lieutenant Gedney, of the United States brig Washington, at anchor on the high seas, at the distance of half a mile from the shore of Long Island. A part of the negroes were then on shore at Culloden Point, Long Island; who  were seized by Lieutenant Gedney, and brought on board. The vessel, with the negroes and other persons on board, was brought by Lieutenant Gedney into the district of Connecticut, and there libeled for  salvage in the District Court of the United States. A libel for salvage was also filed by Henry Green and Pelatiah Fordham, of Sag Harbour, Long Island. On the 18th of September, Ruiz and Montez filed claims and libels, in which they asserted their ownership of the negroes as their slaves, and of certain parts of the cargo, and prayed that the same might be \"delivered to them, or to the representatives of her Catholic majesty, as might be most proper.\" On the 19th of September, the Attorney of the United states, for the district of Connecticut, filed an information or libel, setting forth, that the Spanish minister had officially presented to the proper department of the government of the United States, a claim for the restoration of the vessel, cargo, and slaves, as the property of Spanish subjects, which had arrived within the jurisdictional limits of the United States, and were taken possession of by the said public armed brig of the United States; under such circumstances  as made it the duty of the United States to cause the same to be restored to the true proprietors, pursuant to the treaty between the United States and Spain: and praying the Court, on its being made legally to appear that the claim of the Spanish minister was well founded, to make such order for the disposal of the vessel, cargo, and slaves, as would best enable the United States to comply with their treaty stipulations. But if it should appear, that the negroes were persons transported from Africa, in violation of the laws of the United States, and brought within the United States contrary to the same laws; he then prayed the Court to make such order for their removal to the coast of Africa, pursuant to the laws of the United States, as it should deem fit. \n On the 19th of November, the Attorney of the United States filed a second information or libel, similar to the first, with the exception of the second prayer above set forth in his former one. On the same day, Antonio G. Vega, the vice-consul of Spain, for the state of Connecticut, filed his libel, alleging that Antonio was a slave, the property of the representatives of Ramon Ferrer, and praying the Court to cause  him to be delivered to the said vice-consul, that he might be returned by him to his lawful owner in the island of Cuba. \nOn the 7th of January, 1840, the negroes, Cinque and others, with the exception of Antonio, by their counsel, filed an answer, denying that they were slaves, or the property of Ruiz and Montez, or that the Court could, under the Constitution or laws of the United States, or under any treaty, exercise any jurisdiction over their persons, by reason of the premises; and praying that they might be dismissed. They specially set forth and insist in this answer, that they were native born Africans; born free, and still of right ought to be free and not slaves; that they were, on or about the 15th of April, 1839, unlawfully kidnapped, and forcibly and wrongfully carried on board a certain vessel on the coast of Africa, which was unlawfully engaged in the slave trade, and were unlawfully transported in the same vessel to the island of Cuba, for the purpose of being there unlawfully sold as slaves; that Ruiz and Montez, well knowing the premises, made a pretended purchase of them: that afterwards, on or about the 28th of June, 1839, Ruiz and Montez, confederating with Ferrer,  (captain of the Amistad,) caused them, without law or right, to be placed on board of the Amistad, to be transported to some place unknown to them, and there to be enslaved for life; that, on the voyage, they rose on the master, and took possession of the vessel, intending to return therewith to their native country, or to seek an asylum in some free state; and the vessel arrived, about the 26th of August, 1839, off Montauk Point, near Long Island; a part of them were sent on shore, and were seized by Lieutenant Gedney, and carried on board; and all of them were afterwards brought by him into the district of Connecticut. \nOn the 7th of January, 1840, Jose Antonio Tellincas, and Messrs. Aspe and Laca, all Spanish subjects, residing in Cuba, filed their  claims, as owners to certain portions of the goods found on board of the schooner L'Amistad. \nOn the same day, all the libellants and claimants, by their counsel, except Jose Ruiz and Pedro Montez, (whose libels and claims, as stated of record, respectively, were pursued by the Spanish minister, the same being merged in his claims,) appeared, and the negroes also appeared by their counsel; and the case was heard on the libels,  claims, answers, and testimony of witnesses. \nOn the 23d day of January, 1840, the District Court made a decree. By that decree, the Court rejected the claim of Green and Fordham for salvage, but allowed salvage to Lieutenant Gedney and others, on the vessel and cargo, of one-third of the value thereof, but not on the negroes, Cinque and others; it allowed the claim of Tellincas, and Aspe and Laca with the exception of the above-mentioned salvage; it dismissed the libels and claims of Ruiz and Montez, with costs, as being included under the claim of the Spanish minister; it allowed the claim of the Spanish vice-consul for Antonio, on behalf of Ferrer's representatives; it rejected the claims of Ruiz and Montez for the delivery of the negroes, but admitted them for the cargo, with the exception of the above-mentioned salvage; it rejected the claim made by the Attorney of the United States on behalf of the Spanish minister, for the restoration of the negroes under the treaty; but it decreed that they should be delivered to the President of the United States, to be transported to Africa, pursuant to the act of 3d March, 1819. \nFrom this decree the District Attorney, on behalf of the  United States, appealed to the Circuit Court, except so far as related to the restoration of the slave Antonio. The claimants, Tellincas, and Aspe and Laca, also appealed from that part of the decree which awarded salvage on the property respectively claimed by them. No appeal was interposed by Ruiz or Montez, or on behalf of the representatives of the owners of the Amistad. The Circuit Court, by a mere pro forma decree, affirmed the decree of the District Court, reserving the question of salvage upon the claims of Tellincas, and Aspe and Laca. And from that decree the present appeal has been brought to this Court. \nThe cause has been very elaborately argued, as well upon the  merits, as upon a  motion on behalf of the appellees to dismiss the appeal. On the part of the United States, it has been contended, 1. That due and sufficient proof concerning the property has been made to authorize the restitution of the vessel, cargo, and negroes to the Spanish subjects on whose behalf they are claimed pursuant to the treaty with Spain, of the 27th of October, 1795. 2. That the United States had a right to intervene in the manner in which they have done, to obtain  a decree for the restitution of the property, upon the application of the Spanish minister. These propositions have been strenuously denied on the other side. Other collateral and incidental points have been stated, upon which it is not necessary at this moment to dwell. \nBefore entering upon the discussion of the main points involved in this interesting and important controversy, it may be necessary to say a few words as to the actual posture of the case as it now stands before us. In the first place, then, the only parties now before the Court on one side, are the United States, intervening for the sole purpose of procuring restitution of the property as Spanish property, pursuant to the treaty, upon the grounds stated by the other parties claiming the property in their respective libels. The United States do not assert any property in themselves, or any violation of their own rights, or sovereignty, or laws, by the acts complained of. They do not insist that these negroes have been imported into the United States, in contravention of our own slave trade acts. They do not seek to have these negroes delivered up for the purpose of being transported to Cuba as pirates or robbers,  or as fugitive criminals against the laws of Spain. They do not assert that the seizure, and bringing the vessel, and cargo, and negroes into port, by Lieutenant Gedney, for the purpose of adjudication, is a tortious act. They simply confine themselves to the right of the Spanish claimants to the restitution of their property, upon the facts asserted in their respective allegations. \nIn the next place, the parties before the Court on the other side as appellees, are Lieutenant Gedney, on his libel for salvage, and the negroes, (Cinque, and others,) asserting themselves, in their answer, not to be slaves, but free native Africans, kidnapped  in their own country, and illegally transported by force from that country; and now entitled to maintain their freedom. \nNo question has been here made, as to the proprietary interests in the vessel and cargo. It is admitted that they belong to Spanish subjects, and that they ought to be restored. The only point on this head is, whether the restitution ought to be upon the payment of salvage or not? The main controversy is, whether these negroes are the property of Ruiz and Montez, and ought to be delivered up; and to this, accordingly,  we shall first direct our attention. \nIt has been argued on behalf of the United States, that the Court are bound to deliver them up, according to the treaty of 1795, with Spain, which has in this particular been continued in full force, by the treaty of 1819, ratified in 1821. The sixth article of that treaty, seems to have had, principally, in view cases where the property of the subjects of either state had been taken possession of within the territorial jurisdiction of the other, during war. The eighth article provides for cases where the shipping of the inhabitants of either state are forced, through stress of weather, pursuit of pirates, or enemies, or any other urgent necessity, to seek shelter in the ports of the other. There may well be some doubt entertained, whether the present case, in its actual circumstances, falls within the purview of this article. But it does not seem necessary, for reasons hereafter stated, absolutely to decide it. The ninth article provides, \"that all ships and merchandise, of what nature soever, which shall be rescued out of the hands of any pirates or robbers, on the high seas, shall be brought into some port of either state, and shall be  delivered to the custody of the officers of that port, in order to be taken care of and restored entire to the true proprietor, as soon as due and sufficient proof shall be made concerning the property thereof.\" This is the article on which the main reliance is placed on behalf of the United States, for the restitution of these negroes. To bring the case within the article, it is essential to establish, First, That these negroes, under all the circumstances, fall within the description of merchandise, in the sense of the treaty. Secondly, That there has been a rescue of them on the high seas, out of the hands of the pirates and robbers; which, in the present case, can only be, by showing that they  themselves are pirates and robbers; and, Thirdly, That Ruiz and Montez, the asserted proprietors, are the true proprietors, and have established their title by competent proof. \nIf these negroes were, at the time, lawfully held as slaves under the laws of Spain, and recognised by those laws as property capable of being lawfully bought and sold; we see no reason why they may not justly be deemed within the intent of the treaty, to be included under the denomination of merchandise,  and, as such, ought to be restored to the claimants: for, upon that point, the laws of Spain would seem to furnish the proper rule of interpretation. But, admitting this, it is clear, in our opinion, that neither of the other essential facts and requisites has been established in proof; and the onus probandi of both lies upon the claimants to give rise to the causes foederis. It is plain beyond controversy, if we examine the evidence, that these negroes never were the lawful slaves of Ruiz or Montez, or of any other Spanish subjects. They are natives of Africa, and were kidnapped there, and were unlawfully transported to Cuba, in violation of the laws and treaties of Spain, and the most solemn edicts and declarations of that government. By those laws, and treaties, and edicts, the African slave trade is utterly abolished; the dealing in that trade is deemed a heinous crime; and the negroes thereby introduced into the dominions of Spain, are declared to be free. Ruiz and Montez are proved to have made the pretended purchase of these negroes, with a full knowledge of all the circumstances. And so cogent and irresistible is the evidence in this respect, that the District Attorney  has admitted in open Court, upon the record, that these negroes were native Africans, and recently imported into Cuba, as alleged in their answers to the libels  in the case. The supposed proprietary interest of Ruiz and Montez, is completely displaced, if we are at liberty to look at the evidence of the admissions of the District Attorney. \nIf, then, these negroes are not slaves, but are kidnapped Africans, who, by the laws of Spain itself, are entitled to their freedom, and were kidnapped and illegally carried to Cuba, and illegally detained and restrained on board of the Amistad; there is no pretence to say, that they are pirates or robbers. We may lament the dreadful acts, by which they asserted their liberty, and took possession of the Amistad, and endeavoured to regain their native  country; but they cannot be deemed pirates or robbers in the sense of the law of nations, or the treaty with Spain, or the laws of Spain itself; at least so far as those laws have been brought to our knowledge. Nor do the libels of Ruiz or Montez assert them to be such. \nThis posture of the facts would seem, of itself, to put an end to the Whole inquiry upon the merits. But  it is argued, on behalf of the United States, that the ship, and cargo, and negroes were duly documented as belonging to Spanish subjects, and this Court have no right to look behind these documents; that full faith and credit is to be given to them; and that they are to be held conclusive evidence in this cause, even although it should be established by the most satisfactory proofs, that they have been obtained by the grossest frauds and impositions upon the constituted authorities of Spain. To this argument we can, in no wise, assent. There is nothing in the treaty which justifies or sustains the argument. We do not here meddle with the point, whether there has been any connivance in this illegal traffic, on the part of any of the colonial authorities or subordinate officers of Cuba; because, in our view, such an examination is unnecessary, and ought not to be pursued, unless it were indispensable to public justice, although it has been strongly pressed at the bar. What we proceed upon is this, that although public documents of the government, accompanying property found on board of the private ships of a foreign nation, certainly are to be deemed prima facie evidence of the facts  which they purport to state, yet they are always open to be impugned for fraud; and whether that fraud be in the original obtaining of these documents, or in the subsequent fraudulent and illegal use of them, when once it is satisfactorily established, it overthrows all their sanctity, and destroys them as proof. Fraud will vitiate any, even the most solemn transactions; and an asserted title to property, founded upon it, is utterly void. The very language of the ninth article of the treaty of 1795, requires the proprietor to make due and sufficient proof of his property. And how can that proof be deemed either due or sufficient, which is but a connected, and stained tissue of fraud? This is not a mere rule of municipal jurisprudence. Nothing is more clear in the law of nations, as an established rule to regulate their rights, and duties,  and intercourse, than the doctrine, that the ship's papers are but prima facie evidence, and that, if they are shown to be fraudulent, they are not to be held proof of any valid title. This rule is familiarly applied, and, indeed, is of every-days occurrence in cases of prize, in the contests between belligerents and neutrals, as  is apparent from numerous cases to be found in the Reports of this Court; and it is just as applicable to the transactions of civil intercourse between nations in times of peace. If a private ship, clothed with Spanish papers, should enter the ports of the United States, claiming the privileges, and immunities, and rights belonging to bona fide subjects of Spain, under our treaties or laws, and she should, in reality, belong to the subjects of another nation, which was not entitled to any such privileges, immunities, or rights, and the proprietors were seeking, by fraud, to cover their own illegal acts, under the flag of Spain; there can be no doubt, that it would be the duty of our Courts to strip off the disguise, and to look at the case according to its naked realities. In the solemn treaties between nations, it can never be presumed that either state intends to provide the means of perpetrating or protecting frauds; but all the provisions are to be construed as intended to be applied to bona fide transactions. The seventeenth article of the treaty with Spain, which provides for certain passports and certificates, as evidence of property on board of the ships of both states,  is, in its terms, applicable only to cases where either of the parties is engaged in a war. This article required a certain form of passport to be agreed upon by the parties, and annexed to the treaty. It never was annexed; and, therefore, in the case of the Amiable Isabella, 6 Wheaton, 1, it was held inoperative. \nIt is also a most important consideration in the present case, which ought not to be lost sight of, that, supposing these African negroes not to be slaves, but kidnapped, and free negroes, the treaty with Spain cannot be obligatory upon them; and the United States are bound to respect their rights as much as those of Spanish subjects. The conflict of rights between the parties under such circumstances, becomes positive and inevitable, and must be decided upon the eternal principles of justice and international law. If the contest were about any goods on board of this ship, to which American citizens asserted a title, which was  denied by the Spanish claimants, there could be no doubt of the right of such American citizens to litigate their claims before any competent American tribunal, notwithstanding the treaty with Spain. A fortiori, the doctrine must apply  where human life and human liberty are in issue; and constitute the very essence of the controversy. The treaty with Spain never could have intended to take away the equal rights of all foreigners, who should contest their claims before any of our Courts, to equal justice; or to deprive such foreigners of the protection given them by other treaties, or by the general law of nations. Upon the merits of the case, then, there does not seem to us to be any ground for doubt, that these negroes ought to be deemed free; and that the Spanish treaty interposes no obstacle to the just assertion of their rights. \nThere is another consideration growing out of this part of the case, which necessarily rises in judgment. It is observable, that the United States, in their original claim, filed it in the alternative, to have the negroes, if slaves and Spanish property, restored to the proprietors;  or, if not slaves, but negroes who had been transported from Africa, in violation of the laws of the United States, and brought into the United States contrary to the same laws, then the Court to pass an order to enable the United States to remove such persons to the coast of Africa, to be  delivered there to such agent as may be authorized to receive and provide for them. At a subsequent period, this last alternative claim was not insisted on, and another claim was interposed, omitting it; from which the conclusion naturally arises that it was abandoned. The decree of the District Court, however, contained an order for the delivery of the negroes to the United States, to be transported to the coast of Africa, under the act of the 3d of March, 1819, ch. 224. The United States do not now insist upon any affirmance of this part of the decree; and, in our judgment, upon the admitted facts, there is no ground to assert that the case comes within the purview of the act of 1819, or of any other of our prohibitory slave trade acts. These negroes were never taken from Africa, or brought to the United States in contravention of those acts. When the Amistad arrived she was in possession of the negroes, asserting their freedom; and in no sense could they possibly intend to import themselves here, as  slaves, or for sale as slaves. In this view of the matter, that part of the decree of the District Court is unmaintainable, and must be reversed. \nThe view which has  been thus taken of this case, upon the merits, under the first point, renders it wholly unnecessary for us to give any opinion upon the other point, as to the right of the United States to intervene in this case in the manner already stated. We dismiss this, therefore, as well as several minor points made at the argument. \nAs to the claim of Lieutenant Gedney for the salvage service, it is understood that the United States do not now desire to interpose any obstacle to the allowance of it, if it is deemed reasonable by the Court. It was a highly meritorious and useful service to the proprietors of the ship and cargo; and such as, by the general principles of maritime law, is always deemed a just foundation for salvage. The rate allowed by the Court, does not seem to us to have been beyond the exercise of a sound discretion, under the very peculiar and embarrassing circumstances of the case. \nUpon the whole, our opinion is, that the decree of the Circuit Court, affirming that of the District Court, ought to be affirmed, except so far as it directs the negroes to be delivered to the President, to be transported to Africa, in pursuance of the act of the 3d of March, 1819; and, as to  this, it ought to be reversed: and that the said negroes be declared to be free, and be dismissed from the custody of the Court, and go without day. \nDissent by:", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the Court. \nThis cause comes before us from the Circuit Court of the southern district of New York, upon a certificate of division of the judges of that Court. \nThe action was brought by the plaintiff, Swift, as endorsee, against the defendant, Tyson, as acceptor, upon a bill of exchange dated at Portland, Maine, on the first day of May,  1836, for the sum of one thousand five hundred and forty dollars, thirty cents, payable six months after date and grace, drawn by one Nathaniel Norton and one Jairus S. Keith upon and accepted by Tyson, at the city of New York, in favour of the order of Nathaniel Norton, at the city of New York, in favour of the order of Nathaniel Norton, and by Norton endorsed to the plaintiff. The bill was dishonoured at maturity. \nAt the trial the acceptance and endorsement of the bill were admitted, and the plaintiff there rested his case. The defendant then introduced in evidence the answer of Swift to a bill of discovery, by which it appeared that Swift took the bill before it  became due, in payment of a promissory note due to him by Norton and Keith; that he understood that the bill was accepted in part payment of some lands sold by Norton to a company in New York; that Swift was a bona fide holder of the bill, not having any notice of any thing in the sale or title to the lands, or otherwise, impeaching the transaction, and with the full belief that the bill was justly due. The particular circumstances are fully set forth in the answer in the record; but it does not seem necessary  farther to state them. The defendant then offered to prove, that the bill was accepted by the defendant as part consideration for the purchase of certain lands in the state of Maine, which Norton and Keith represented themselves to be the owners of, and also represented to be of great value, and contracted to convey a good title thereto; and that the representations were in every respect fraudulent and false, and Norton and Keith had no title to the lands, and that the same were of little or no value. The plaintiff objected to the admission of such testimony, or of any testimony, as against him, impeaching or showing a failure of the consideration, on which the bill was accepted, under the facts admitted by the defendant, and those proved by him, by reading the answer of the plaintiff to the bill of discovery. The judges of the Circuit Court thereupon divided in opinion upon the following point or question of law; Whether, under the facts last mentioned, the defendant was entitled to the same defence to the action as if the suit was between the original parties to the bill, that is to say, Norton, or Norton and Keith, and the defendant; and whether the evidence so offered was admissible  as against the plaintiff in the action. And this is the question certified to us for our decision. \nThere is no doubt, that a bona fide holder of a negotiable instrument for a valuable consideration, without any notice of facts which impeach its validity as between the antecedent parties, if he takes it under an endorsement made before the same becomes due, holds the title unaffected by these facts, and may recover thereon, although as between the antecedent parties the transaction may be without any legal validity. This is a doctrine so long and so well established, and so essential to the security of negotiable paper, that it is laid up among the fundamentals of the law, and requires no authority or reasoning to be now brought  in its support. As little doubt is there, that the holder of any negotiable paper, before it is due, is not bound to prove that he is a bona fide holder for a valuable consideration, without notice; for the law will presume that, in the absence of all rebutting proofs, and therefore it is incumbent upon the defendant to establish by way of defence satisfactory proofs of the contrary, and thus to overcome the prima facie title of the plaintiff. \n In the present case, the plaintiff is a bona fide holder without notice for what the law deems a good and valid consideration, that is, for a pre-existing debt; and the only real question in the cause is, whether, under the circumstances of the present case, such a pre-existing debt constitutes a valuable consideration in the sense of the general rule applicable to negotiable instruments. We say, under the circumstances of the present case, for the acceptance having been made in New York, the argument on behalf of the defendant is, that the contract is to be treated as a New York contract, and therefore to be governed by the laws of New York, as expounded by its Courts, as well upon general principles, as by the express provisions of the thirty-fourth section of the judiciary act of 1789, ch. 20. And then it is further contended, that by the law of New York, as thus expounded by its Courts, a pre-existing debt does not constitute, in the sense of the general rule, a valuable consideration applicable to negotiable instruments. \nIn the first place, then, let us examine into the decisions of the Courts of New York upon this subject. In the earliest case, Warren v. Lynch, 5 Johns.  R. 289, the Supreme Court of New York appear to have held, that a pre-existing debt was a sufficient consideration to entitle a bona fide holder without notice to recover the amount of a note endorsed to him, which might not, as between the original parties, be valid. The same doctrine was affirmed by Mr. Chancellor Kent in Bay v. Coddington, 5 Johns. Chan. Rep. 54. Upon that occasion he said, that negotiable paper can be assigned or transferred by an agent or factor or by any other person, fraudulently, so as to bind the true owner as against the holder, provided it be taken in the usual course of trade, and for a  fair and valuable consideration without notice of the fraud. But he added, that the holders in that case were not entitled to the benefit of the rule, because it was not negotiated to  them in the usual course of business or trade, nor in payment of any antecedent and existing debt, nor for cash, or property advanced, debt created, or responsibility incurred, on the strength and credit of the notes; thus directly affirming, that a pre-existing debt was a fair and valuable consideration within the protection of the general rule. And he has since  affirmed the same doctrine, upon a full review of it, in his Commentaries, 3 Kent. Comm. sect. 44, p. 81. The decision in the case of Bay v. Coddington was afterwards affirmed in the Court of Errors, 20 Johns. R. 637, and the general reasoning of the chancellor was fully sustained. There were indeed peculiar circumstances in that case, which the Court seem to have considered as entitling it to be treated as an exception to the general rule, upon the ground either because the receipt of the notes was under suspicious circumstances, the transfer having been made after the known insolvency of the endorser, or because the holder had received it as a mere security for contingent responsibilities, with which the holders had not then become charged. There was, however, a considerable diversity of opinion among the members of the Court upon that occasion, several of them holding that the decree ought to be reversed, others affirming that a pre-existing debt was a valuable consideration, sufficient to protect the holders, and others again insisting, that a pre-existent debt was not sufficient. From that period, however, for a series of years, it seems to have been held by the Supreme Court  of the state, that a pre-existing debt was not a sufficient consideration to shut out the equities of the original parties in favour of the holders. But no case to that effect has ever been decided in the Court of Errors. The cases cited at the bar, and especially Roosa v. Brotherson, 10 Wend. R. 85; The Ontario Bank v. Worthington, 12 Wend. R. 593; and Payne v. Cutler, 13 Wend. R. 605, are directly in point. But the more recent cases, the Bank of Salina v. Babcock, 21 Wend. R. 490, and The Bank of Sandusky v. Scoville, 24 Wend. R. 115, have greatly shaken, if they have not entirely overthrown those decisions, and seem to have brought back the doctrine to that promulgated in the earliest cases. So that, to say the least of it, it admits of serious doubt, whether any doctrine upon this question can at the present time be treated as finally established; and it is certain,  that the Court of Errors have not pronounced any positive opinion upon it. \nBut, admitting the doctrine to be fully settled in New York, it remains to be considered, whether it is obligatory upon this Court, if it differs from the principles established in the general commercial law. It is observable  that the Courts of New York do not found their decisions upon this point upon any local statute, or positive, fixed, or ancient local usage: but they deduce the doctrine from the general principles of commercial law. It is, however, contended, that the thirty-fourth section of the judiciary act of 1789, ch. 20, furnishes a rule obligatory upon this Court to follow the decisions of the state tribunals in all cases to which they apply. That section provides \"that the laws of the several states, except where the Constitution, treaties, or statutes of the United States shall otherwise require or provide, shall be regarded as rules of decision in trials at common law in the Courts of the United States, in cases where they apply.\" In order to maintain the argument, it is essential, therefore, to hold, that the word \"laws,\" in this section, includes within the scope of its meaning the decisions of the local tribunals. In the ordinary use of language it will hardly be contended that the decisions of Courts constitute laws. They are, at most, only evidence of what the laws are; and are not of themselves laws. They are often reexamined, reversed, and qualified by the Courts themselves,  whenever they are found to be either defective, or ill-founded, or otherwise incorrect. The laws of a state are more usually understood to mean the rules and enactments promulgated by the legislative authority thereof, or long established local customs having the force of laws. In all the various cases which have hitherto come before us for decision, this Court have uniformly supposed, that the true interpretation of the thirty-fourth section limited its application to state laws strictly local, that is to say, to the positive statutes of the state, and the construction thereof adopted by the local tribunals, and to rights and titles to things having a permanent locality, such as the rights and titles to real estate, and other matters immovable and intraterritorial in their nature and character. It never has been supposed by us, that the section did apply, or was designed to apply, to questions of a more general nature, not at all dependent upon local statutes or  local usages of a fixed and permanent operation, as, for example, to the construction of ordinary contracts or other written instruments, and especially to questions of general commercial law, where the state  tribunals are called upon to perform the like functions as ourselves, that is, to ascertain upon general reasoning and legal analogies, what is the true exposition of the contract or instrument, or what is the just rule furnished by the principles of commercial law to govern the case. And we have not now the slightest difficulty in holding, that this section, upon its true intendment and construction, is strictly limited to local statutes and local usages of the character before stated, and does not extend to contracts and other instruments of a commercial nature, the true interpretation and effect whereof are to be sought, not in the decisions of the local tribunals, but in the general principles and doctrines of commercial jurisprudence. Undoubtedly, the decisions of the local tribunals upon such subjects are entitled to, and will receive, the most deliberate attention and respect of this Court; but they cannot furnish positive rules, or conclusive authority, by which our own judgments are to be bound up and governed. The law respecting negotiable instruments may be truly declared in the language of Cicero, adopted by Lord Mansfield in Luke v. Lyde, 2 Burr. R. 883, 887, to be  in a great measure, not the law of a single country only, but of the commercial world. Non erit alia lex Romae, alia Athenis, alia nunc, alia posthac, sed et apud omnes gentes, et omni tempore, una eademque lex obtenebit. \n It becomes necessary for us, therefore, upon the present occasion to express our own opinion of the true result of the commercial law upon the question now before us. And we have no hesitation in saying, that a pre-existing debt does constitute a valuable consideration in the sense of the general rule already stated, as applicable to negotiable instruments. Assuming it to be true, (which, however, may well admit of some doubt from the generality of the language,) that the holder of a negotiable instrument is unaffected with the equities between the antecedent parties, of which he has no notice, only where he receives it in the usual course of trade and business for a valuable consideration, before it becomes due; we are prepared to say, that receiving it in payment of, or as security for a pre-existing debt,  is according to the known usual course of trade and business. And why upon principle should not a pre-existing debt be deemed such a  valuable consideration? It is for the benefit and convenience of the commercial world to give as wide an extent as practicable to the credit and circulation of negotiable paper, that it may pass not only as security for new purchases and advances, made upon the transfer thereof, but also in payment of and as security for pre-existing debts. The creditor is thereby enabled to realize or to secure his debt, and thus may safely give a prolonged credit, or forbear from taking any legal steps to enforce his rights. The debtor also has the advantage of making his negotiable securities of equivalent value to cash. But establish the opposite conclusion, that negotiable paper cannot be applied in payment of or as security for pre-existing debts, without letting in all the equities between the original and antecedent parties, and the value and circulation of such securities must be essentially diminished, and the debtor driven to the embarrassment of making a sale thereof, often at a ruinous discount, to some third person, and then by circuity to apply the proceeds to the payment of his debts. What, indeed, upon such a doctrine would become of that large class of cases, where new notes  are given by the same or by other parties, by way of renewal or security to banks, in lieu of old securities discounted by them, which have arrived at maturity? Probably more than one-half of all bank transactions in our country, as well as those of other countries, are of this nature. The doctrine would strike a fatal blow at all discounts of negotiable securities for pre-existing debts. \nThis question has been several times before this Court, and it has been uniformly held, that it makes no difference whatsoever as to the rights of the holder, whether the debt for which the negotiable instrument is transferred to him is a pre-existing debt, or is contracted at the time of the transfer. In each case he equally gives credit to the instrument. The cases of Coolidge v. Payson, 2 Wheaton R. 66, 70, 73, and Townsley v. Sumrall, 2 Peters R. 170, 182, are directly in point. \nIn England the same doctrine has been uniformly acted upon. As long ago as the case of Pillans and Rose v. Van Meirop and Hopkins, 3 Burr. 1664, the very point was made and the objection was overruled. That, indeed, was a case of far more stringency  than the one now before us; for the bill of exchange,  there drawn in discharge of a pre-existing debt, was held to bind the party as acceptor, upon a mere promise made by him to accept before the bill was actually drawn. Upon that occasion Lord Mansfield, likening the case to that of a letter of credit, said, that a letter of credit may be given for money already advanced, as well as for money to be advanced in future: and the whole Court held the plaintiff entitled to recover. From that period downward there is not a single case to be found in England in which it has ever been held by the Court, that a pre-existing debt was not a valuable consideration, sufficient to protect the holder, within the meaning of the general rule, although incidental dicta have been sometimes relied on to establish the contrary, such as the dictum of Lord Chief Justice Abbott in Smith v. De Witt, 6 Dowl. & Ryland, 120, and De la Chaumette v. The Bank of England, 9 Barn. & Cres. 209, where, however, the decision turned upon very different considerations. \nMr. Justice Bayley, in his valuable work on bills of exchange and promissory notes, lays down the rule in the most general terms. \"The want of consideration,\" says he, \"in toto or in part, cannot be insisted  on, if the plaintiff or any intermediate party between him and the defendant took the bill or note bona fide and upon a valid consideration.\" Bayley on Bills, p. 499, 500, 5th London edition, 1830. It is observable that he here uses the words \"valid consideration,\" obviously intending to make the distinction, that it is not intended to apply solely to cases, where a present consideration for advances of money on goods or otherwise takes place at the time of the transfer and upon the credit thereof. And in this he is fully borne out by the authorities. They go farther, and establish, that a transfer as security for past, and even for future responsibilities, will, for this purpose, be a sufficient, valid, and valuable consideration. Thus, in the case of Bosanquet v. Dudman, 1 Starkie, R. 1, it was held by Lord Ellenborough, that if a banker be under acceptances to an amount beyond the cash balance in his hands, every bill he holds of that customer's, bona fide, he is to be considered as holding for value; and it makes no difference though he hold other collateral securities, more than sufficient to cover the excess of his acceptances.  The same doctrine was affirmed by  Lord Eldon in Ex parte Bloxham, 8 Ves. 531, as equally applicable to past and to future acceptances. The subsequent cases of Heywood v. Watson, 4 Bing. R. 496, and Bramah v. Roberts, 1 Bing. New Ca. 469, and Percival v. Frampton, 2 Cromp. Mees. & Rose, 180, are to the same effect. They directly establish that a bona fide holder, taking a negotiable note in payment of or as security for a preexisting debt, is a holder for a valuable consideration, entitled to protection against all the equities between the antecedent parties. And these are the latest decisions, which our researches have enabled us to ascertain to have been made in the English Courts upon this subject. \nIn the American Courts, so far as we have been able to trace the decisions, the same doctrine seems generally but not universally to prevail. In Brush v. Scribner, 11 Conn. R. 388,  the Supreme Court of Connecticut, after an elaborate review of the English and New York adjudications, held, upon general principles of commercial law, that a pre-existing debt was a valuable consideration, sufficient to convey a valid title to a bona fide holder against all the antecedent parties to a negotiable note. There  is no reason to doubt, that the same rule has been adopted and constantly adhered to in Massachusetts; and certainly there is no trace to be found to the contrary. In truth, in the silence of any adjudications upon the subject, in a case of such frequent and almost daily occurrence in the commercial states, it may fairly be presumed, that whatever constitutes a valid and valuable consideration in other cases of contract to support titles of the most solemn nature, is held a fortiori to be sufficient in cases of negotiable instruments, as indispensable to the security of holders, and the facility and safety of their circulation. Be this as it may, we entertain no doubt, that a bona fide holder, for a pre-existing debt, of a negotiable instrument, is not affected by any equities between the antecedent parties, where he has received the same before it became due, without notice of any such equities. We are all, therefore, of opinion, that the question on this point, propounded by the Circuit Court for our consideration, ought to be answered in the negative; and we shall accordingly direct it so to be certified to the Circuit Court. \n This cause came on to be heard on the  transcript of the record from the Circuit Court of the United States, for the southern district of New York, and on the point and question on which the judges of the said Circuit Court were opposed in opinion, and which were certified to this Court for its opinion, agreeably to the act of Congress in such case made and provided, and was argued by counsel. On consideration whereof, it is the opinion of this Court, that the defendant was not, under the facts stated, entitled to the same defence to the action as if the suit was between the original parties to the bill; that is to say, the said Norton, or the said Norton and Keith and the defendant: and that the evidence  offered in defence and objected to, was not admissible as against the plaintiff in this action, Whereupon it is now here ordered and adjudged by this Court, that an answer in the negative be certified to the said Circuit Court. \nConcur by:", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the Court. \nThis is a writ of error to the Circuit Court of the district of Mississippi. The original action is assumpsit upon a promissory note, signed by Hugh M. Keary and Patrick F. Keary, dated at Pinkneyville, in the state of Mississippi, on the 18th of February, 1838, whereby (as  the declaration alleges) the makers promised twelve months after date, to pay to Charles A. Lacoste, by the name and description of Briggs, Lacoste, and Company, or order, four thousand eight hundred and sixty-three dollars and fifty-five cents, payable and negotiable at the Planters Bank in Natchez, and which note was endorsed by Lacoste, by the name and description of Briggs, Lacoste, and Company, to the plaintiffs, The Farmers and Merchants Bank of Memphis. The declaration avers that the plaintiffs are citizens of Tennessee, and that the defendants are citizens of Mississippi; the makers and the endorser being joined in the suit. This joinder was in pursuance of a statute of Mississippi, of the 13th of May, 1837, (Laws of Mississippi, edit. 1838, p. 717,) whereby it is enacted, \"That in all actions founded upon bills of exchange and promissory notes, the plaintiffs shall be compelled to sue the drawers and endorsers, living and resident in this state, in a joint action; and such suit shall be commenced in the county where the drawer or drawers reside, if living in the state; and if the drawer or drawers be dead, or reside out of the state, the suit shall be brought in the county  where the first endorser resides.\" It seems that this statute had been adopted by the district judge of the district of Mississippi, in the absence of the judge of this Court, assigned to that circuit by a rule of Court; and upon the footing of that rule the present suit was brought. \nThe makers of the note pleaded a plea to the jurisdiction of the  Court, averring that the cause of action accrued to the plaintiffs by virtue of the promissory note made payable to and endorsed by Lacoste to them; and that they, the makers, at the time of making the note and at the time of the commencement of the action, were citizens and residents of the state of Mississippi. To this plea there was a demurrer, which upon the hearing was overruled, and the makers assigned to plead over; which, having failed to do; and Lacoste, the other defendant, having failed to appear, judgment was finally rendered against all the defendants; and from that judgment the present writ of error has been brought to this Court. \nThe first and main question presented to us for consideration is, whether the present action is sustainable in the Circuit Court jointly against the makers and the endorser, under the  circumstances disclosed in the record. In our judgment it is not. The statute of Mississippi, proprio vigore, is of no force or effect in the Courts of the United States, it not being competent for any state legislature to regulate the forms of suits or modes of proceeding or pleadings in the Courts of the United States; but the sole authority for this purpose belongs to the Congress of the United States. So far as the acts of Congress have adopted the forms of process, and modes of proceeding and pleadings in the State Courts, or have authorized the Courts thereof to adopt them, and they have been actually adopted, they are obligatory; but no farther. But no Court of the United States is authorized to adopt by rule any provisions of state laws which are repugnant to or incompatible with the positive enactments of Congress upon the subject of the jurisdiction, or practice, or proceedings in such Court. \nIt is obvious that the latter clause of the statute of Mississippi already cited, which provides for the bringing of suits upon bills of exchange or promissory notes, in the county where the drawers live, or, under certain circumstances, in the county where the first endorser lives,  is utterly incompatible with and repugnant to the known organization and jurisdiction of the Courts of the United States. Suits in these Courts are, by the judiciary act of 1789, ch. 20, sect. 11, to be brought in the district whereof the defendant (being a citizen of the United States) is an inhabitant, or in which he shall be found at the time of serving the writ; and the  suits are cognisable in no other places than those assigned for the regular holding of the terms of the Courts. There is no pretence therefore to say, that the Circuit Court could by any rule adopt the state law upon this subject. \nAs little real ground is there for maintaining, that the Court had authority to adopt the other part of the state statute requiring that the drawers and endorsers of bills of exchange and promissory notes should be compellable to be joined by the plaintiff in a joint action. The judiciary act of 1789, ch. 20, in the eleventh section, gives jurisdiction to the Circuit Court of suits between a citizen of the state where the suit is brought, and a citizen of another state; and, among other exceptions, not applicable to the present suit, it excepts \"any suit to recover the contents  of any promissory note or other chose in action in favour of an assignee, unless the suit might have been prosecuted in such Court to recover the contents, if no assignment had been made; except in cases of foreign bills of exchange.\" It is plain upon the language of this clause, that as the makers and the payee of the promissory note in this case, were all citizens of Mississippi, no suit could have been maintained between them, (the original parties,) in the Circuit Court. But the same objection does not apply to a suit on the same note by the plaintiffs as endorsees against their immediate endorser, Lacoste; for there is an immediate privity of contract between them, and they are citizens of different states. This was long since settled by the decision of this Court in Young v. Bryan, 6 Wheat. 146. So that it is manifest, that as between the makers and the plaintiffs the present suit is not maintainable; and as between the endorser and the plaintiffs as endorsees, it is maintainable by the laws of the United States. The result therefore of giving effect to the statute of Mississippi, and the rule of the Court adopting the same, would be, either that the Circuit Court, in contravention  of the express terms of the judiciary act of 1789, ch. 20,  would be obliged to maintain jurisdiction over the makers, which is prohibited by that act, or else would be compellable to surrender jurisdiction over the endorser, which the same act confers on it. Certainly such a doctrine cannot be asserted to be well founded in law. If it were admitted, it would enable the state legislatures, by merely changing the modes of remedial justice, or requiring different parties under different and  distinct contracts to be joined in one and the same suit, to oust the Courts of the United States of all the legitimate jurisdiction conferred upon them by the Constitution and the acts of Congress. \nFor these reasons we are of opinion that the present suit, so far as it respects the jurisdiction of the Circuit Court over the makers of this note, is ill founded; and that the plea of the makers to the jurisdiction is good in point of law; and that the suit being a joint action, found upon distinct and independent contracts, is incapable of being sustained in the Courts of the United States against any of the defendants. The consequence is, that the judgment must be reversed,  and the cause remanded to the Circuit Court, with directions that the plaintiffs take nothing by their writ. \nThis cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the southern district of Mississippi, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this Court, that the judgment of the said Circuit Court in this cause be, and the same is hereby, reversed and annulled; and that this cause be, and the same is hereby, remanded to the said Circuit Court, with directions to enter judgment for the defendants, in conformity to the opinion of this Court. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the Court. \nThis is the case of a writ of error to the Circuit Court of the eastern district of Louisiana. The original suit was brought conformably to the Louisiana practice by petition, in which Booraem and Company, the original petitioners, state, that two of the original defendants, Hyde and Gleises, merchants of New Orleans, being indebted  to the petitioners in a considerable sum, did, in April, 1837, deliver to the petitioners certain promissory notes, to wit, three notes drawn by Hyde and Gleises to the order of, and endorsed by, T. R. Hyde and Brothers, dated the 6th of April, 1837, at six, twelve, and eighteen months, amounting to five thousand dollars; and three notes drawn by the same drawers to the order of, and endorsed by William T. Hepp, dated on the 6th of April, 1837, at seven, eleven, and fifteen months, amounting to five  thousand dollars; and three notes drawn by the same drawers, to the order of Booraem and Company, dated the 6th of April, 1837, at nine, thirteen, and seventeen months, amounting to two thousand seven hundred and fifty dollars and sixty-four cents. The petitioners then state that on receipt of the notes, they, the petitioners, agreed to extinguish any and all demands which they had against Hyde and Gleises, or for which the petitioners had become responsible by account, note, or acceptance, previous to the 6th of April, 1837; and which, including interest and exchange, amounted to eleven thousand seven hundred and ninety-eight dollars and sixty-four cents. The petitioners  then aver that they did pay and extinguish the said demands, with the exception of a draft for two thousand dollars, and a note for one thousand five hundred and sixty-eight dollars and seventy-four cents, which they were unable to provide the means of taking up, and which have since been taken up by Hyde and Gleises. The petition then goes on to state that these notes were left in the hands of  H. Locket, Esq., the other defendant, at New Orleans, who had been notified not to dispose of them to the prejudice of the rights of the petitioners; that they had demanded the delivery of five of the notes, to wit, three endorsed by Hepp, (the others drawn to the order of, and endorsed by Hyde and Brothers, being omitted in this part of the petition by mistake,) and a balance in cash of four hundred and sixty-nine dollars and twelve cents, according to the account annexed; that they had also demanded a delivery of the same five notes from Locket; but he had refused to deliver the same. The petitioners therefore prayed, that they might have a judgment of the Court decreeing a delivery to them by Locket of the three notes drawn by Hyde and Gleises to the order of T. R. Hyde and  Brothers, and two of the three notes drawn to the order of William T. Hepp, one at eleven months for fifteen hundred dollars, and the other for two thousand dollars at fifteen months; and decreeing Hyde and Gleises to pay the said balance of four hundred and sixty-nine dollars and twelve cents; and they also prayed for further relief. \nSuch is the substance of the petition, which does not seem to be drawn with entire accuracy and precision. Annexed to the petition is a receipt, signed by Booraem and Company, acknowledging the receipt of the nine notes described in the petition, and  that they are given for the purpose of extinguishing the demands against Hyde and Gleises, before the 6th of April, 1837, as stated in the petition; and then adding the following clause: \"Should Joshua B. Hyde, of the firm of Hyde and Gleises, now in New York, have settled for the draft of two thousand dollars, paid by Booraem and Company, on the 15th of March, 1837, or for the sum of two thousand one hundred and twenty-eight dollars and thirty-six cents, by notes or otherwise, the said Booraem and Company are bound to take them up at maturity, and are included in said arrangement herein first  specified.\" \nHyde and Gleises in their answer admit the drawing and endorsing of the notes, and aver that they were prepared for delivery to the petitioners according to the receipt, which contains stipulations binding upon the petitioners, and forming conditions precedent to the delivery of the notes; that to secure a compliance with the agreement, it was mutually agreed that the notes and receipts should be deposited in the hands of Locket, to be delivered to the petitioners when the several conditions mentioned in the receipt were performed, and only in that event were to be delivered; that the petitioners totally neglected and refused to perform the conditions; and in consequence of such omission and neglect the defendants, Hyde and Gleises, were forced to pay and did pay a note of one thousand five hundred and sixty-four dollars and seventy-four cents, and an acceptance of two thousand dollars, with costs and damages, both of which the petitioners had assumed to pay. That the friends of the defendants, Hyde and Gleises, were induced to endorse the notes by the reasonable expectation that the defendants would be enabled to meet the notes from the profits of their business, and  save their endorsers from loss, if the extensions stipulated in the receipt were granted upon all the demands of the petitioners: that by reason of the failure of the petitioners to comply with the agreement, and the pay ments they were forced to make, they exhausted their resources and credit, and their business was destroyed, and their ability to protect their endorsers was utterly at an end; and they conclude by denying their indebtment in the manner stated in the petition, and pray that the petitioners may be cited to answer in reconvention, and be condemned to pay the amount of five thousand dollars to the defendants as damages. \n The defendant, Locket, by his answer, asserted that the notes were deposited in his hands by the joint consent of the petitioners and Hyde and Gleises, to be delivered to the petitioners by him when all the conditions in the receipt were fulfilled by the petitioners; and he avers that the agreement never was fulfilled on the part of the petitioners, and that they are not entitled to the notes. \nThe endorsers also filed a petition of intervention in the cause; which, however was afterwards withdrawn. The petitioners replied to the plea of  reconvention, denying their indebtment. \nUpon this state of the pleadings, the cause came before the Circuit Court for decision, without the intervention of a jury, by the consent of the parties, and the final decision was made by the district judge, upon an examination of the evidence offered by the parties. The decree was, in effect, that the defendants ought to pay to the petitioners out of the notes the balance of eleven thousand seven hundred and eighty-nine dollars and sixty-four cents, after deducting the amount of the note of one thousand five hundred and sixty-seven dollars and seventy-four cents, and of the acceptance of two thousand dollars paid by the defendants, and the interest thereon; and that for this purpose four of the notes in the possession of Locket, to wit: two drawn by Hyde and Gleises to the order of T. R. Hyde and Brothers, of the 6th of April, 1837, one for two thousand dollars, payable in eighteen months, and the other for one thousand five hundred dollars, payable in twelve months, and two other notes drawn by Hyde and Gleises to the order of W. T. Hepp, dated 6th of April, 1837, one for two thousand dollars, payable in eighteen months, and the other for  one thousand five hundred dollars, payable in eleven months, amounting in all to seven thousand dollars, to be delivered by Locket to the petitioners or their attorney; and that the remaining five notes be delivered to Hyde and Gleises; and that judgment be for the petitioners against Hyde and Gleises for the remaining unsatisfied sum due to the petitioners, of seven hundred and seventy-six dollars and ninety cents. with interest from the decree. \nIt is from this judgment that the present writ of error is brought; the district judge having, at the request of the defendants' counsel, made a statement of the facts on which he relied;  and the record containing, at large, the whole evidence at the hearing. \nOne of the embarrassments attendant upon the examination of this cause, in this Court, is from the manner in which the proceedings were had in the Court below. We have no authority, as an appellate Court, upon a writ of error, to revise the evidence in the Court below, in order to ascertain whether the judge rightly interpreted  the evidence or drew right conclusions from it. That is the proper province of the jury; or of the judge himself, if the trial by jury  is waived, and it is submitted to his personal decision. We can only re-examine the law, so far as he has pronounced it, upon a statement of facts, and not merely a statement of the evidence of facts, found in the record in the nature of a special verdict on an agreed case. If either party in the Court below is dissatisfied with the ruling of the judge in a matter of law, that ruling should be brought before this Court, by an appropriate exception in the nature of a bill of exceptions, and should not be mixed up with his supposed conclusions in matters of fact; unless this is done, it will be found extremely difficult for this Court to maintain any appellate jurisdiction in mixed cases of the nature of the present. The same embarrassment occurred in the case of Parsons v. Armor, 3 Peters, 413; and was there rather avoided by the pressure of the circumstances; than overcome by the decision of the Court. Taking this case, then, as that was taken, to be one where there is no conflict of evidence, and all the facts are admitted to stated on the record, without any controversy as to their force and bearing in the nature of a statement of facts, and looking to the allegations and prayer  of the petition, and the facts stated by the judge, the question which we are to dispose of is, whether, in point of law, upon these facts, the judgment can be maintained. We are of opinion that it cannot be, and shall now proceed to assign our reasons. \nIn the first place, it is a material circumstance, that the petition is not to recover pecuniary compensation or damages for any supposed benefit conferred upon Hyde and Gleises under the agreement; but it is in the nature of a bill for a specific performance of that agreement by a delivery up of a part of the notes deposited in the hands of Locket, not upon the ground of an entire performance of the agreement on the part of the petitioners;  but confessedly upon the admission, that they have not performed it, except in part; and therefore seeking a part performance only, pro tanto, from the other side. Now, the present being that in the French law, which constitutes the basis of that of Louisiana, (Code of Louisiana, art. 1760 to art. 1763,) is called a commutative contract, involving mutual and reciprocal obligations, where the acts to be done on one side form the consideration for those to be done on the other; it would  seem to follow, upon principles of general justice, that if they are to be done at the same time, neither party could claim a fulfilment thereof unless he had first performed or was ready to perform all the acts required on his own part. And this accordingly will be found to be the rule of the Civil Code of Louisiana, (art. 1907,) where it is declared that, in commutative contracts, where the reciprocal obligations are to be performed at the same time, or the one immediately after the other; the party who wishes to put the other in default, must, at the time and place expressed in or implied in the agreement, offer, or perform as the contract requires that which on his part was to be performed, or the opposite party will not be legally put in default. And again, (art. 1920 and art. 2041,) on the breach of any obligation to do or not to do, the other party in whose favour the obligation is contracted, is entitled either to damages, or, in cases which permit it, to a specific performance of the contract, at his option; or he may require the dissolution of the contract. But it is nowhere provided, that the party who has omitted to perform the acts which he has contracted to perform,  can entitle himself, if the other party has been in no default, either to a specific performance, or to damages, or to a dissolution of the contract; that would be to enable the party committing the default to avail himself of his own wrong, to get rid of the contract. \nBut it is supposed that where a party has performed his contract only in part, he may, nevertheless, be entitled to a performance, pro tanto, from the other side; although it has been by his own default, that there has not been an entire performance. And certain cases in the Louisiana Reports have been relied on to establish this doctrine. But these cases, when examined, will not be found to justify any such broad and general conclusion. They establish no more than this: that where, in a commutative contract, there has been a part performance on one side, from  which a benefit has been derived by the other side, the other party is compellable to make compensation in pecuniary damages to the extent of the benefit which he has received, deducting therefrom all the damages which he has sustained by the want of an entire performance thereof. There is nothing unreasonable in this doctrine; and although it  may not be in many cases recognised and acted upon in the common law, it is often enforced in equity. But this doctrine is not applicable to all cases of commutative contracts, generally, but only to cases where the contract is susceptible, from its nature and objects, of divisibility; and where, not a specific performance, but a mere pecuniary claim in the nature of a quantum meruit is sought to be enforced. Thus, in the case of Loxeau v. Declonat, (3 Louis. R. 1,) where A. agreed to build a sugar-house for B., for a certain price, and B. was to pay for it, when the work was completed, and to furnish materials; it was held that if A. failed to complete the work in the manner stipulated, yet, if B. used the sugar-house, he was bound to pay for it in money, the value of the labor he had expended upon it; that is to say, the value of the benefit he had derived from the labour; for the Civil Code of Louisiana (art. 2740) contemplates that B., in such a case, is entitled to, damages for the losses sustained by him from the want of a due fulfilment of the contract. The same decision was made under similar circumstances in the case of Etre v. Sparks, (4 Louis. R. 463.) \nBut, where the  entire fulfilment of the contract is contemplated by the parties as the basis of the arrangement, the contract is treated as indivisible; and neither party can compel the other to a specific performance, unless he complies with it in toto. Thus, if A. should agree to sell B. a ship for ten thousand dollars, or a horse for five hundred dollars, and B. should pay a part only of the purchase money, as, for example, a fifth or tenth part thereof; it would hardly be pretended that he would be entitled to a specific performance, pro tanto, by a conveyance of a fifth or tenth part of the  ship or hose.And, on the other hand, the vendor would have no pretence to require that, if he had a good title only to an undivided fifth or tenth of the ship or horse, that the purchaser should be compellable to take that part and pay him, pro tanto -- the purchase money. In every such case it would be manifest that the contract of sale would be indivisible; and that  each party would have a right to insist upon an entirety of performance. Now, that is precisely the ground applicable to the present case. The contract between the parties, was, from its very character and object,  entire and indivisible. Hyde and Gleises, and their endorsers, entered into the new agreement, and gave the new notes upon the faith and confidence that the petitioners would punctiliously perform the whole of it on their side. The object was to procure a prolonged credit and delay of payment to Hyde and Gleises for all their debts contracted with the petitioners; and thus to enable them to retrieve their affairs, rescue themselves from impending ruin, and to make their endorsers safe. This could be, only, by the petitioners taking up all the notes and acceptances already given by Hyde and Gleises, according to the stipulations of the petitioners, and thus enabling them to carry on their operations in business: and it seems to have been contemplated on all sides, that, by the omission, Hyde and Gleises might be compelled to stop, and their endorsers be brought into peril; and, indeed, the record shows that the event actually occurred. If then Hyde and Gleises have failed to realize the benefits contemplated by the arrangement, by the default of the petitioners, what ground is there to assert that they, or their endorsers, ought to be compelled to a specific performance of a contract  pro tanto, when the consideration was a punctilious performance of the entirety? The most that could, under such circumstances, be contended for, would be to say, not that Hyde and Gleises should be compelled to give up any part of the endorsed notes; but that they should be bound to repay to the petitioners, in money, the amount paid by them for Hyde and Gleises, deducting all damages sustained by the latter by reason of the nonperformance of the contract, as in the cases already cited. But that is not the object or the prayer of the allegations in the present petition. \nIn the next place, there is another view of the case still more striking and conclusive. It is not true, as the petition supposes, that there was any actual delivery of the notes to the petitioners; (which might have presented another questio;) but in point of fact, as the evidence fully establishes, the notes were deposited in the hands of Locket, to be delivered over to the petitioners, only upon their full performance of the stipulations on which they were  to have effect. It is admitted that those stipulations have never been performed. Upon what ground, then, can the petitioners now demand a delivery  of any of the notes, they not having fulfilled the conditions of the deposit? It has been said that here, by the giving up of the new notes, the old debts due by Hyde and Gleises have been extinguished by novation; and, therefore, their sole remedy lies upon the new contract and notes given in pursuance thereof. But that doctrine is by no means true, as it is attempted to be applied to the circumstances of the present case. A novation will, indeed, if it be absolute and unconditional, amount to a direct extinguishment of the original debt by substituting the new contract in its place. This is sufficiently apparent from the language of the Civil Code of Louisiana, art. 2181 to 2194. But no extinguishment is wrought if the arrangement is conditional, and the conditions are not fully complied with. Pothier (Pothier on Obligations, 550, 551) states this in the most clear and explicit terms. \"It follows,\" says he, \"that if the debt of which it is proposed to make a novation by another engagement is conditional, the novation cannot take effect, until the condition is accomplished:\" therefore, if there is a failure in the accomplishment of the condition, there can be no novation, because  there is no original debt to which the new one can be substituted. Vice versa, if the first debt does not depend on any condition but the second engagement, intended as a novation, is conditional, the novation can only take effect by the accomplishment of the condition of the new engagement, before the first debt is extinct. \nNow, that the giving of these new notes, by way of novation for the old debts, was conditional, is apparent from the fact that they were not delivered to the petitioners, but were deposited in the hands of Locket, \"subject to the provisions of the receipt,\" and to be delivered over by him, only when these conditions were complied with by the petitioners. So all parties must have understood the transaction; and the deposit in any other view would be as unaccountable as it would be unmeaning. The petitioners have never, as they admit by their petition, complied with these conditions. How, then, can they, consistently with all rules of law, insist upon the transactions being a complete and absolute novation, entitling them to the delivery of the substituted securities in lieu of the old debts? \n Nor is the consideration to be lost sight of, that the  arrangement does not merely limit itself to the immediate interests of the debtors and the creditors. The endorsers have rights also, which must have been intended to be provided for and secured by the deposit; to which, in reason, they must be presumed to have been parties, and given their assent. We have no right to presume that they would have endorsed these notes without the entire confidence that the new arrangement would be carried out and fulfilled with the most scrupulous punctuality. Their own recourse over against Hyde and Gleises might otherwise be most materially and injuriously affected. Their object must have been by securing to Hyde and Gleises the prolonged credit, to have enabled them to meet the new payments, and thereby exonerate themselves from ulterior responsibility. If, therefore, we were to give effect to the present suit, the conditions of the novation not having been fulfilled, we should either deprive the endorsers of all the benefits and securities contemplated in the arrangement; or, at all events, leave them exposed to a responsibility, as endorsers, from which by the very deposit they meant to guard themselves. \nThere are other embarrassing difficulties  in  the frame of the decree, as to the manner in which it disposes of the notes, and divides the responsibilities of the respective endorsers without their consent, and proceeding to adjudge money to the petitioners for the balance. But it is unnecessary to dwell on them, for, upon the grounds already stated, we are of opinion that the judgment ought to be reversed, and the cause remanded with directions to the Court below to dismiss the suit with costs for the original defendants. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the Court. \nThis is a writ of error to the Supreme Court of Pennsylvania, brought under the 25th section of the judiciary act of 1789, ch. 20, for the purpose of revising the judgment of that Court, in a case involving the construction of the Constitution and laws of the United States. \nThe facts are briefly these: The plaintiff in error was indicted in the Court of Oyer and Terminer for York county, for having, with force and violence, taken and carried away from that county to the state of Maryland, a certain negro woman, named Margaret Morgan, with a design and intention of selling and disposing of, and keeping her as a slave or servant for life, contrary to a statute of Pennsylvania, passed on the 26th of March, 1826. That statute in the first section, in substance, provides, that if any person or persons shall from and after the passing of the act, by force and violence take and carry away, or cause to be taken and carried away, and shall by fraud or false pretence, seduce, or cause to be seduced, or shall attempt to take, carry away, or seduce any negro or mulatto  from any part of that commonwealth, with a design and intention of selling and disposing of, or causing to be sold, or of keeping and detaining, or of causing to be kept and detained, such negro or mulatto as a slave or servant for life, or for any term whatsoever; every such person or persons, his or their aiders or abettors, shall, on conviction thereof, be deemed guilty of a felony, and shall forfeit and pay a sum not less than five hundred, nor more than one thousand dollars; and moreover, shall be sentenced to undergo a servitude for any term or terms of years, not less than seven years nor exceeding twenty-one years; and shall be confined and kept to hard labour, &c. There are many other provisions in the statute which is recited at large in the record, but to which it is in our view unnecessary to advert upon the present occasion. \nThe plaintiff in error pleaded not guilty to the indictment; and at the trial the jury found a special verdict, which, in substance, states, that the negro woman, Margaret Morgan, was a slave for life, and held to labour and service under and according to the  laws of Maryland, to a certain Margaret Ashmore, a citizen of Maryland; that  the slave escaped and fled from Maryland into Pennsylvania in 1832; that the plaintiff in error, being legally constituted the agent and attorney of the said Margaret Ashmore, in 1837, caused the said negro woman to be taken and apprehended as a fugitive from labour by a state constable, under a warrant from a Pennsylvania magistrate; that the said negro woman was thereupon brought before the said magistrate, who refused to take further cognisance of the case; and thereupon the plaintiff in error did remove, take, and carry away the said negro woman and her children out of Pennsvlvania into Maryland, and did deliver the said negro woman and her  children into the custody and possession of the said Margaret Ashmore. The special verdict further finds, that one of the children was born in Pennsylvania, more than a year after the said negro woman had fled and escaped from Maryland. \nUpon this special verdict, the Court of Oyer and Terminer of York county, adjudged that the plaintiff in error was guilty of the offence charged in the indictment. A writ of error was brought from that judgment to the Supreme Court of Pennsylvania, where the judgment was, pro forma, affirmed.  From this latter judgment, the present writ of error has been brought to this Court. \nBefore proceeding to discuss the very important and interesting questions involved in this record, it is fit to say, that the cause has been conducted in the Court below, and has been brought here by the co-operation and sanction, both of the state of Maryland, and the state of Pennsylvania, in the most friendly and courteous spirit, with a view to have those questions finally disposed of by the adjudication of this Court; so that the agitations on this subject in both states, which have had a tendency to interrupt the harmony between them, may subside, and the conflict of opinion be put at rest. It should also be added, that the statute of Pennsylvania of 1826, was (as has been suggested at the bar) passed with a view of meeting the supposed wishes of Maryland on the subject of fugitive slaves; and that, although it has failed to produce the good effects intended in its practical construction, the result was unforeseen and undesigned. \n1. The question arising in the case, as to the constitutionality of the statute of Pennsylvania, has been most elaborately argued at  the bar. The counsel  for the plaintiff in error have contended that the statute of Pennsylvania is unconstitutional; first, because Congress has the exclusive power of legislation upon the subject-matter under the Constitution of the United States, and under the act of the 12th of February, 1793, ch. 51, (7), which was passed in pursuance thereof; secondly, that if this power is not exclusive in Congress, still the concurrent power of the state legislatures is suspended by the actual exercise of the power by Congress; and thirdly, that if not suspended, still the statute of Pennsylvania, in all its provisions applicable to this case, is in direct collision with the act of Congress, and therefore is unconstitutional and void. The counsel for Pennsylvania maintain the negative of all these points. \nFew questions which have ever come before this Court involve more delicate and important considerations; and few upon which the public at large may be presumed to feel a more profound and pervading interest. We have accordingly given them our most deliberate examination; and it has become my duty to state the result to which we have arrived, and the reasoning by which it is supported. \nBefore, however, we proceed  to the points more immediately before us, it may be well -- in order to clear the case of difficulty -- to say, that in the exposition of this part of the Constitution, we shall limit ourselves to those considerations which appropriately and exclusively belong to it, without laving down any rules of interpretation of a more general nature. It will, indeed, probably, be found, when we look to the character of the Constitution itself, the objects which it seeks to attain, the powers which it confers, the duties which it enjoins, and the rights which it secures, as well as the known historical fact that many of its provisions were matters of compromise of opposing interests and opinions; that no uniform rule of interpretation can be applied to it which may not allow, even if it does not positively demand, many modifications in its actual application to particular clauses. And, perhaps, the safest rule of interpretation after all will be found to be to look to the nature and objects of the particular powers, duties, and rights, with all the lights and aids of contemporary history; and to give to the words of each just such operation  and force, consistent with their legitimate  meaning, as may fairly secure and attain the ends proposed. \nThere are two clauses in the Constitution upon the subject of fugitives, which stand in juxtaposition with each other, and have been thought mutually to illustrate each other. They are both contained in the second section of the fourth article, and are in the following words: \" A person charged in any state with treason, felony, or other crime, who shall flee from justice, and be found in another state, shall, on demand of the executive authority of the state from which he fled, be delivered up, to be removed to the state having jurisdiction of the crime.\" \n\" No person held to service or labour in one state under the laws thereof, escaping into another, shall in consequence of any law or regulation therein, be discharged from such service or labour; but shall be delivered up, on claim of the party to whom such service or labour may be due.\" \nThe last clause is that, the true interpretation whereof is directly in judgment before us. Historically, it is well known, that the object of this clause was to secure to the citizens of the slaveholding states the complete right and title of ownership in their slaves, as property, in  every state in the Union into which they might escape from the state where they were held in servitude. The full recognition of this right and title was indispensable to the security of this species of property in all the slaveholding states; and, indeed, was so vital to the preservation of their domestic interests and institutions, that it cannot be doubted that it constituted a fundamental article, without the adoption of which the Union could not have been formed. Its true design was to guard against the doctrines and principles prevalent in the non-slaveholding states, by preventing them from intermeddling with, or obstructing, or abolishing the rights of the owners of slaves. \nBy the general law of nations, no nation is bound to recognise the state of slavery, as to foreign slaves found within its territorial dominions, when it is in opposition to its own policy and institutions, in favour of the subjects of other nations where slavery is recognised. If it does it, it is as a matter of comity, and not as a matter of international right. The state of slavery is deemed to be a mere municipal regulation, founded upon and limited to the range of the territorial laws. This was  fully  recognised in Somerset's  Case, Lofft's Rep. 1; S.C., 11 State Trials by Harg. 340; S.C., 20 Howell's State Trials, 79; which was decided before the American revolution. It is manifest from this consideration, that if the Constitution had not contained this clause, every non-slave-holding state in the Union would have been at liberty to have declared free all runaway slaves coming within its limits, and to have given them entire immunity and protection against the claims of their masters; a course which would have created the most bitter animosities, and engendered perpetual strife between the different states. The clause was, therefore, of the last importance to the safety and security of the southern states; and could not have been surrendered by them without endangering their whole property in slaves. The clause was accordingly adopted into the Constitution by the unanimous consent of the framers of it; a proof at once of its intrinsic and practical necessity. \nHow, then, are we to interpret the language of the clause? The true answer is, in such a manner, as, consistently with the words, shall fully and completely effectuate the whole objects of  it. If by one mode of interpretation the right must become shadowy and unsubstantial, and without any remedial power adequate to the end; and by another mode it will attain its just end and secure its manifest purpose; it would seem, upon principles of reasoning, absolutely irresistible, that the latter ought to prevail: No Court of justice can be authorized so to construe any clause of the Constitution as to defeat its obvious ends, when another construction, equally accordant with the words and sense thereof, will enforce and protect them. \nThe clause manifestly contemplates the existence of a positive, unqualified right on the part of the owner of the slave, which no state law or regulation can in any way qualify, regulate, control, or restrain. The slave is not to be discharged from service or labour, in consequence of any state law or regulation. Now, certainly, without indulging in any nicety of criticism upon words, it may fairly and reasonably be said, that any state law or state regulation, which interrupts, limits, delays, or postpones the right of the owner to the immediate possession of the slave, and the immediate command of his service and labour, operates, protanto,  a discharge of the slave therefrom. The question can never be, how much the slave is discharged from; but whether he is  discharged from any, by the natural or necessary operation of state laws or state regulations. The question is not one of quantity or degree, but of withholding, or controlling the incidents of a positive and absolute right. \nWe have said that the clause contains a positive and unqualified recognition of the right of the owner in the slave, unaffected by any state law or regulation whatsoever, because there is no qualification or restriction of it to be found therein; and we have no right to insert any which is not expressed, and cannot be fairly implied; especially are we estopped from so doing, when the clause puts the right to the service or labour upon the same ground and to the same extent in every other state as in the state from which the slave escaped, and in which he was held to the service or labour. If this be so, then all the incidents to that right attach also; the owner must, therefore, have the right to seize and repossess the slave, which the local laws of his own state confer upon him as property; and we all know that this right of  seizure and recaption is universally acknowledged in all the slaveholding states. Indeed, this is no more than a mere affirmance of the principles of the common law applicable to this very subject. Mr. Justice Blackstone (3 Bl. Comm. 4) lays it down as unquestionable doctrine. \"Recaption or reprisal (says he) is another species of remedy by the mere act of the party injured. This happens when any one hath deprived another of his property in goods or chattels personal, or wrongfully detains one's wife, child, or servant; in which case the owner of the goods, and the husband, parent, or master may lawfully claim and retake them, wherever he happens to find them, so it be not in a riotous manner, or attended with a breach of the peace.\" Upon this ground we have not the slightest hesitation in holding, that, under and in virtue of the Constitution, the owner of a slave is clothed with entire authority, in every state in the Union, to seize and recapture his slave, whenever he can do it without any breach of the peace, or any illegal violence. In this sense, and to this extent this clause of the Constitution may properly be said to execute itself; and to require no aid from legislation,  state or national. \nBut the clause of the Constitution does not stop here; nor indeed, consistently with its professed objects, could it do so. Many  cases must arise in which, if the remedy of the owner were confined to the mere right of seizure and recaption, he would be utterly without any adequate redress. He may not be able to lay his hands upon the slave. He may not be able to enforce his rights against persons who either secrete or conceal, or withhold the slave. He may be restricted by local legislation as to the mode of proofs of his ownership; as to the Courts in which he shall sue, and as to the actions which he may bring; or the process he may use to compel the delivery of the slave. Nay, the local legislation may be utterly inadequate to furnish the appropriate redress, by authorizing no process in rem, or no specific mode of repossessing the slave, leaving the owner, at best, not that right which the Constitution designed to secure -- a specific delivery and repossession of the slave, but a mere remedy in damages; and that perhaps against persons utterly insolvent or worthless. The state legislation may be entirely silent on the whole subject, and its  ordinary remedial process framed with different views and objects; and this may be innocently as well as designedly done, since every state is perfectly competent, and has the exclusive right to prescribe the remedies in its own judicial tribunals, to limit the time as well as the mode of redress, and to deny jurisdiction over cases, which its own policy and its own institutions either prohibit or discountenance. \nIf, therefore, the clause of the Constitution had stopped at the mere recognition of the right, without providing or contemplating any means by which it might be established and enforced  in cases where it did not execute itself, it is plain that it would have, in a great variety of cases, a delusive and empty annunciation. If it did not contemplate any action either through state or national legislation, as auxiliaries to its more perfect enforcement in the form of remedy, or of protection, then, as there would be no duty on either to aid the right, it would be left to the mere comity of the states to act as they should please; and would depend for its security upon the changing course of public opinion, the mutations of public policy, and the general adaptations  of remedies for purposes strictly according to the lex fori. \nAnd this leads us to the consideration of the other part of the clause, which implies at once a guaranty and duty. It says, \"But he (the slave) shall be delivered up on claim of the party to  whom such service or labour may be due.\" Now, we think it exceedingly difficult, if not impracticable, to read this language and not to feel that it contemplated some farther remedial redress than that which might be administered at the hands of the owner himself. A claim is to be made. What is a claim? It is, in a just juridical sense, a demand of some matter as of right made by one person upon another, to do or to forbear to do some act or thing as a matter of duty. A more limited, but at the same time an equally expressive definition was given by Lord Dyer, as cited in Stowell v. Zouch, Plowden, 359; and it is equally applicable to the present case: that \"a claim is a challenge by a man of the propriety or ownership of a thing, which he has not in possession, but which is wrongfully detained from him.\" The slave is to be delivered up on the claim. By whom to be delivered up? In what mode to be delivered up? How,  if a refusal takes place, is the right of delivery to be enforced? Upon what proofs? What shall be the evidence of a rightful recaption or delivery? When and under what circumstances shall the possession of the owner, after it is obtained, be conclusive of his right, so as to preclude any further inquiry or examination into it by local tribunals or otherwise, while the slave, in possession of the owner, is in transitu to the state from which he fled? \nThese, and many other questions, will readily occur upon the slightest attention to the clause; and it is obvious that they can receive but one satisfactory answer. They require the aid of legislation to protect the right, to enforce the delivery, and to secure the subsequent possession of the slave. If, indeed, the Constitution guarantees the right, and if it requires the delivery upon the claim of the owner, (as cannot well be doubted,) the natural inference certainly is, that the national government is clothed with the appropriate authority and functions to enforce it. The fundamental principle applicable to all cases of this sort, would seem to be, that where the end is required, the means are given; and where the duty is enjoined,  the ability to perform it is contemplated to exist on the part of the functionaries to whom it is entrusted. The clause is found in the national Constitution, and not in that of any state. It does not point out any state functionaries, or any state action to carry its provisions into effect. The states cannot, therefore, be compelled to enforce them; and  it might well be deemed an unconstitutional exercise of the power of interpretation, to insist that the states are bound to provide means to carry into effect the duties of the national government, nowhere delegated or intrusted to them by the Constitution. On the contrary, the natural, if not the necessary conclusion is, that the national government, in the absence of all positive provisions to the contrary, is bound, through its own proper departments, legislative, judicial, or executive, as the case may require, to carry into effect all the rights and duties imposed upon it by the Constitution. The remark of Mr. Madison, in the Federalist, (No. 43,) would seem in such cases to apply with peculiar force. \"A right (says he) implies a remedy; and where else would the remedy be deposited, than where it is deposited  by the Constitution?\" meaning, as the context shows, in the government of the United States. \nIt is plain, then, that where a claim is made by the owner, out of possession, for the delivery of a slave, it must be made, if at all, against some other person; and inasmuch as the right is a right of property capable of being recognised and asserted by proceedings before a Court of justice, between parties adverse to each other, it constitutes, in the strictest sense, a controversy between the parties, and a case \"arising under the Constitution\" of the United States; within the express delegation of judicial power given by that instrument.Congress, then, may call that power into activity for the very purpose of giving effect to that right; and if so, then it may prescribe the mode and extent in which it shall be applied, and how, and under what circumstances the proceedings shall afford a complete protection and guaranty to the right. \nCongress has taken this very view of the power and duty of the national government. As early as the year 1791, the attention of Congress was drawn to it, (as we shall hereafter more fully see,) in consequence of some practical difficulties arising under  the other clause, respecting fugitives from justice escaping into other states. The result of their deliberations, was the passage of the act of the 12th of February, 1793, ch. 51, (7,) which, after having, in the first and second sections, provided for the case of fugitives from justice by a demand to be made of the delivery through the executive authority of the state where they are found  proceeds, in the third section, to provide, that when a person held to labour or service in any of the United States, shall escape into any other of the states or territories, the person to whom such labour or service may be due, his agent or attorney, is hereby empowered to seize or arrest such fugitive from labour, and take him or her before any judge of the Circuit or District Courts of the United States, residing or being within the state, or before any magistrate of a county, city, or town corporate, wherein such seizure or arrest shall be made; and upon proof to the satisfaction of such judge or magistrate, either by oral evidence or affidavit, &c., that the person so seized or arrested, doth, under the laws of the state or territory from which he or she fled, owe service or labour  to the person claiming him or her, it shall be the duty of such judge or  magistrate, to give a certificate thereof o such claimant, his agent or attorney, which shall be sufficient warrant for removing the said fugitive from labour, to the state or territory from which he or she fled. The fourth section provides a penalty against any person who shall knowingly and willingly obstruct or hinder such claimant, his agent, or attorney, in so seizing or arresting such fugitive from labour, or rescue such fugitive from the claimant, or his agent, or attorney when so arrested, or who shall harbour or conceal such fugitive after notice that he is such; and it also saves to the person claiming such labour or service, his right of action for or on account of such injuries. \nIn a general sense, this act may be truly said to cover the whole ground of the Constitution, both as to fugitives from justice, and fugitive slaves; that is, it covers both the subjects, in its enactments; not because it exhausts the remedies which may be applied by Congress to enforce the rights, if the provisions of the act shall in practice be found not to attain the object of the Constitution; but because  it points out fully all the modes of attaining those objects, which Congress, in their discretion, have as yet deemed expedient or proper to meet the exigencies of the Constitution. If this be so, then it would seem, upon just principles of construction, that the legislation of Congress, if constitutional, must supersede all state legislation upon the same subject; and by necessary implication prohibit it. For if Congress have a constitutional power to regulate a particular subject, and they do actually regulate it in a given manner, and in a certain form, it cannot  be that the state legislatures have a right to interfere; and, as it were, by way of complement to the legislation of Congress, to prescribe additional regulations, and what they may deem auxiliary provisions for the same purpose. In such a case, the legislation of Congress, in what it does prescribe, manifestly indicates that it does not intend that there shall be any farther legislation to act upon the subject-matter. Its silence as to what it does not do, is as expressive of what its intention is as the direct provisions made by it. This doctrine was fully recognised by this Court, in the case of Houston  v. Moore, 5 Wheat. Rep. 1, 21, 22; where it was expressly held, that where Congress have exercised a power over a particular subject given them by the Constitution, it is not competent for state legislation to add to the provisions of Congress upon that subject; for that the will of Congress upon the whole subject is as clearly established by what it had not declared, as by what it has expressed. \nBut it has been argued, that the act of Congress is unconstitutional, because it does not fall within the scope of any of the enumerated powers of legislation confided to that body; and therefore it is void. Stripped of its artificial and technical structure, the argument comes to this, that although rights are exclusively secured by, or duties are exclusively imposed upon the national government, yet, unless the power to enforce these rights, or to execute these duties can be found among the express powers of legislation enumerated in the Constitution, they remain without any means of giving them effect by any act of Congress; and they must operate solely proprio vigore, however, defective may be their operation; nay, even although, in a practical sense, they may become a nullity from the  want of a proper remedy to enforce them, or to provide against their violation. If this be the true interpretation of the Constitution, it must, in a great measure, fail to attain many of its avowed and positive objects as a security of rights, and a recognition of duties. Such a limited construction of the Constitution has never yet been adopted as correct, either in theory or practice. No one has ever supposed that Congress could, constitutionally, by its legislation, exercise powers, or enact laws beyond the powers delegated to it by the Constitution; but it has, on various occasions, exercised powers which were necessary an dproper as means to carry into effect rights expressly  given, and outies expressly enjoined thereby. The end being required, it has been deemed a just and necessary implication, that the means to accomplish it are given also; or, in other words, that the power flows as a necessary means to accomplish the end. \nThus, for example, although the Constitution has declared that representatives shall be apportioned among the states according to their respective federal numbers; and, for this purpose, it has expressly authorized Congress, by law, to  provide for an enumeration of the population every ten years; yet the power to apportion representatives after this enumeration is made, is nowhere found among the express powers given to Congress, but it has always been acted upon as irresistibly flowing from the duty positively enjoined by the Constitution. Treaties made between the United States and foreign powers, often contain special provisions, which do not execute themselves, but require the interposition of Congress to carry them into effect, and Congress has constantly, in such cases, legislated on the subject; yet, although the power is given to the executive, with the consent of the senate, to make treaties, the power is nowhere in positive terms conferred upon Congress to make laws to carry the stipulations of treaties into effect. It has been supposed to result from the duty of the national government to fulfil all the obligations of treaties. The senators and representatives in Congress are, in all cases, except treason, felony, and breach of the peace, exempted from arrest during their attendance at the sessions thereof, and in going to and returning from the same. May not Congress enforce this right by authorizing  a writ of habeas corpus, to free them from an illegal arrest in violation of this clause of the Constitution? If it may not, then the specific remedy to enforce it must exclusively depend upon the local legislation of the states; and may be granted or refused according to their own varying policy, or pleasure. The Constitution also declares that the privilege of the writ of habeas corpus shall not be suspended, unless, when in cases of rebellion or invasion, the public safety may require it. No express power is given to Congress to secure this invaluable right in the non-enumerated cases, or to suspend the writ in cases of rebellion or invasion. And yet it would be difficult to say, since this great writ of liberty is usually provided for by the ordinary functions of legislation, and can be effectually   provided for only in this way, that it ought not to be deemed by necessary implication within the scope of the legislative power of Congress. \nThese cases are put merely by way of illustration, to show that the rule of interpretation, insisted upon at the argument, is quite too narrow to provide for the ordinary exigencies of the national government, in cases  where rights are intended to be absolutely secured, and duties are positively enjoined by the Constitution. \nThe very act of 1793, now under consideration, affords the most conclusive proof that Congress has acted upon a very different rule of interpretation, and has supposed that the right as well as the duty of legislation on the subject of fugitives from justice, and fugitive slaves was within the scope of the constitutional authority conferred on the national legislature. In respect to fugitives from justice, the Constitution, although it expressly provides that the demand shall be made by the executive authority of the state from which the fugitive has fled, is silent as to the party upon whom the demand is to be made, and as to the mode in which it shall be made. This very silence occasioned embarrasments in enforcing the right and duty at an early period after the adoption of the Constitution; and produced a hesitation on the part of the executive authority of Virginia to deliver up a fugitive from justice, upon the demand of the executive of Pennsylvania, in the year 1791; and as we historically know from the message of President Washington and the public documents of that  period, it was the immediate cause of the passing of the act of 1793, which designated the person (the state executive) upon whom the demand should be made, and the mode and proofs upon and in which it should be made. From that time down to the present hour, not a doubt has been breathed upon the constitutionality of this part of the act; and every executive in the Union has constantly acted upon and admitted its validity. Yet the right and the duty are dependent, as to their mode of execution, solely on the act of Congress; and but for that, they would remain a nominal right and passive duty; the execution of which being intrusted to and required of no one in particular, all persons might be at liberty to disregard it. This very acquiescence, under such circumstances, of the highest state functionaries, is a most decisive proof of the universality of the opinion that the  act is founded in a just construction of the Constitution; independent of the vast influence which it ought to have as a contemporaneous exposition of the provisions, by those who were its immediate framers, or intimately connected with its adoption. \nThe same uniformity of acquiescence in the validity  of the act of 1793, upon the other part of the subject-matter, that of fugitive slaves, has prevailed throughout the whole Union until a comparatively recent period. Nay; being from its nature and character more readily suceptible of being brought into controversy, in Courts of justice, than the former, and of enlisting in opposition to it the feelings, and it may be the prejudices of some portions of the non-slaveholding states; it has naturally been brought under adjudication in several states in the Union, and particularly in Massachusetts, New York, and Pennsylvania, and on all these occasions its validity has been affirmed.The cases cited at the bar, of Wright v. Deacon, 5 Serg. and Rawle, 62; Glen v. Hodges, 9 Johns. Rep. 67; Jack v. Martin, 12 Wend. Rep. 311; S.C., 12 Wend. Rep. 507; and Com. v. Griffin, 2 Pick. Rep. 11; are directly in point. So far as the judges of the Courts of the United States have been called upon to enforce it, and to grant the certificate required by it, it is believed that it has been uniformly recognised as a binding and valid law; and as imposing a constitutional duty. Under such circumstances, if the question were one of doubtful construction,  such long acquiescence in it, such contemporaneous expositions of it, and such extensive and uniform recognition of its validity, would in our judgment entitle the question to be considered at rest; unless indeed the interpretation of the Constitution is to be delivered over to interminable doubt throughout the whole progress of legislation, and of national operations. Congress, the executive, and the judiciary have, upon various occasions, acted upon this as a sound and reasonable doctrine. Especially did this Court in the cases of Stuart v. Laird, 1 Cranch Rep. 299; and Martin v. Hunter, 1 Wheat. Rep. 304; and in Cohen v. The Common-wealth of Virginia, 6 Wheat. Rep. 264; rely upon contemporaneous expositions of the Constitution, and long acquiescence in it, with great confidence, in the discussion of questions of a highly interesting and important nature. \nBut we do not wish to rest our present opinion upon the ground  either of contemporaneous exposition, or long acquiescence, or even practical action; neither do we mean to admit the question to be of a doubtful nature, and therefore as properly calling for the aid of such considerations.On the contrary, our judgment  would be the same if the question were entirely new, and the act of Congress were of recent enactment. We hold the act to be clearly constitutional in all its leading provisions, and, indeed, with the exception of that part which confers authority upon state magistrates, to be free from reasonable doubt and difficulty upon the grounds already stated. As to the authority so conferred upon state magistrates, while a difference of opinion has existed, and may exist still on the point, in different states, whether state magistrates are bound to act under it; none is entertained by this Court that state magistrates may, if they choose, exercise that authority, unless prohibited by state legislation. \nThe remaining question is, whether the power of legislation upon this subject is exclusive in the national government, or concurrent in the states, until it is exercised by Congress. In our opinion it is exclusive; and we shall now proceed briefly to state our reasons for that opinion. The doctrine stated by this Court, in Sturgis v. Crowninshield, 4 Wheat. Rep. 122, 193, contains the true, although not the sole rule or consideration, which is applicable to this particular subject. \"Wherever,\"  said Mr. Chief Justice Marshall, in delivering the opinion of the Court, \"the terms in which a power is granted to Congress, or the nature of the power require that it should be exercised exclusively by Congress, the subject is as completely taken  from the state legislatures, as if they had been forbidden to act.\" The nature of the power, and the true objects to be attained by it, are then as important to be weighed, in considering the question of its exclusiveness, as the words in which it is granted. \nIn the first place, it is material to state, (what has been already incidentally hinted at,) that the right to seize and retake fugitive slaves, and the duty to deliver them up, in whatever state of the Union they may be found, and of course the corresponding power in Congress to use the appropriate means to enforce the right and duty, derive their whole validity and obligation exclusively from the Constitution of the United States; and are there, for the first time, recognised and established in that peculiar character.  Before the adoption of the Constitution, no state had any power whatsoever over the subject, except within its own territorial limits, and  could not bind the sovereignty or the legislation of other states. Whenever the right was acknowledged or the duty enforced in any state, it was as a matter of comity and favour, and not as a matter of strict moral, political, or international obligation or duty. Under the Constitution it is recognised as an absolute, positive, right and duty, pervading the whole Union with an equal and supreme force, uncontrolled and uncontrollable by state sovereignty or state legislation. It is, therefore, in a just sense a new and positive right, independent of comity, confined to no territorial limits, and bounded by no state institutions or policy. The natural inference deducible from this consideration certainly is, in the absence of any positive delegation of power to the state legislatures, that it belongs to the legislative department of the national government, to which it owes its origin and establishment. It would be a strange anomaly, and forced construction, to suppose that the national government meant to rely for the due fulfilment of its own proper duties and the rights which it intended to secure, upon state legislation; and not upon that of the Union. A fortiori, it would  be more objectionable to suppose that a power, which was to be the same throughout the Union, should be confided to state sovereignty, which could not rightfully act beyond its own territorial limits. \nIn the next place, the nature of the provision and the objects to be attained by it, require that it should be controlled by one and the same will, and act uniformly by the same system of regulations throughout the Union. If, then, the states have a right, in the absence of legislation by Congress, to act upon the subject, each state is at liberty to prescribe just such regulations as suit its own policy, local convenience, and local feelings. The legislation of one state may not only be different from, but utterly repugnant to and incompatible with that of another. The time, and mode, and limitation of the remedy; the proofs of the title, and all other incidents applicable thereto, may be prescribed in one state, which are rejected or disclaimed in another. One state may require the owner to sue in one mode, another in a different mode.One state may make a statute of limitations as to the remedy, in its own tribunals, short and summary; another  may prolong the period,  and yet restrict the proofs: nay, some states may utterly refuse to act upon the subject at all; and others may refuse to open its Courts to any remedies in rem, because they would interfere with their own domestic policy, institutions, or habits. The right, therefore, would never, in a practical sense be the same in all the states. It would have no unity of purpose, or uniformity of operation. The duty might be enforced in some states; retarded, or limited in others; and denied, as compulsory in many, if not in all. Consequences like these must have been foreseen as very likely to occur in the non-slaveholding states; where legislation, if not silent on the subject, and purely voluntary, could scarcely be presumed to be favourable to the exercise of the rights of the owner. \nIt is scarcely conceivable that the slaveholding states would have been satisfied with leaving to the legislation of the non-slaveholding states, a power of regulation, in the absence of that of Congress, which would or might practically amount to a power to destroy the rights of the owner. If the argument, therefore, of a concurrent power in the states to act upon the subject-matter in the absence of legislation  by Congress, be well founded; then, if Congress had never acted at all; or if the act of Congress should be repealed without providing a substitute, there would be a resulting authority in each of the states to regulate the whole subject at its pleasure; and to dole out its own remedial justice, or withhold it at its pleasure and according to its own views of policy and expediency. Surely such a state of things never could have been intended, under such a solemn guarantee of right and duty. On the other hand, construe the right of legislation as exclusive in Congress, and every evil, and every danger vanishes. The right and the duty are then co-extensive and uniform in remedy and operation throughout the whole Union. The owner has the same security, and the same remedial justice, and the same exemption from state regulation and control, through however many states he may pass with his fugitive slave in his possession, in transmitu, to his own domicile. But, upon the other supposition, the moment he passes the state line, he becomes amenable to the laws of another sovereignty, whose regulations may greatly embarrass or delay the exercise of his rights; and even be repugnant to  those of the state where he first arrested the fugitive. Consequences like these show that  the nature and objects of the provision imperiously require, that, to make it effectual, it should be construed to be exclusive of state authority. We adopt the language of this Court in Sturgis v. Crowninshield, 4 Wheat. Rep. 193, and say, that \"it has never been supposed that the concurrent power of legislation extended to every possible case in which its exercise by the states has not been expressly prohibited. The confusion of such a practice would be endless.\" And we know no case in which the confusion and public inconvenience and mischiefs thereof, could be more completely exemplified than the present. \nThese are some of the reasons, but by no means all, upon which we hold the power of legislation on this subject to be exclusive in Congress. To guard, however, against any  possible misconstruction of our views, it is proper to state, that we are by no means to be understood in any manner whatsoever to doubt or to interfere with the police power belonging to the states in virtue of their general sovereignty. That police power extends over all subjects within  the territorial limits of the states; and has never been conceded to the United States. It is wholly distinguishable from the right and duty secured by the provision now under consideration; which is exclusively derived from and secured by the Constitution of the United States, and owes its whole efficacy thereto. We entertain no doubt whatsoever, that the states, in virtue of their general police power, possess full jurisdiction to arrest and restrain runaway slaves, and remove them from their borders, and otherwise to secure themselves against their depredations and evil example, as they certainly may do in cases of idlers, vagabonds, and paupers. The rights of the owners of fugitive slaves are in no just sense interfered with, or egulated by such a course; and in many cases, the operations of this police power, although designed essentially for other purposes, for the protection, safety, and peace of the state, may essentially promote and aid the interests of the owners.But such regulations can never be permitted to interfere with or to obstruct the just rights of the owner to reclaim his slave, derived from the Constitution of the United States; or with the remedies prescribed  by Congress to aid and enforce the same. \nUpon these grounds, we are of opinion that the act of Pennsylvania upon which this indictment is founded, is unconstitutional  and void. It purports to punish as a public offence against that state, the very act of seizing and removing a slave by his master, which the Constitution of the United States was designed to justify and uphold.The special verdict finds this fact, and the State Courts have rendered judgment against the plaintiff in error upon that verdict. That judgmen must, therefore, be reversed, and the cause remanded to the Supreme Court of Pennsylvania; with directions to carry into effect the judgment of this Court rendered upon the special verdict in favour of the plaintiff in error. \n[*673contd] [EDITOR'S NOTE: The page numbers of this document may appear to be out of sequence; however, this pagination accurately reflects the pagination of the original published document.] \nThis cause came on to be heard on the transcript of the record from the Supreme Court of Pennsylvania, and was argued by counsel; on consideration whereof, It is the opinion of this Court, that the act of the Commonwealth  of Pennsylvania, upon which the indictment in this case is founded, is repugnant to the Constitution and laws of the United States, and, therefore, void; and that the judgment of the Supreme Court of Pennsylvania upon the special verdict found in the case, ought to have been that the said Edward Prigg was not guilty. It is, therefore, ordered and adjudged by this Court, that the judgment of the said Supreme Court of Pennsylvania be, and the same is, hereby, reversed.  And this Court, proceeding to render such judgment in the premises as the said Supreme Court of Pennsylvania ought to have rendered, do hereby order and adjudge that judgment upon the special verdict aforesaid be here entered, that the said Edward Prigg is not guilty in manner and form as is charged against him in the said indictment, and that he go thereof quit without day; and that this cause be remanded to the Supreme Court of Pennsylvania with directions accordingly, so that such other proceeding may be had therein as to law and justice shall appertain. \nConcur by:", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the Court. \nThis case comes before us upon a certificate of division of opinion of the judges of the Circuit Court of the southern district of New York, under the following circumstances: \nThe defendants, William Murphy and William Morgan, were indicted under the sixteenth section of the act entitled, \"an act for the punishment of certain crimes against the United States,\" approved on the 30th of April, 1790, for taking and carrying away with an intent to steal and purloin, on board of an American vessel on the high seas, one hundred and two gold coins, called  sovereigns, each of the value of five dollars, of the personal goods of Francis M'Mahon. \nThe defendants having pleaded not guilty, and the case being brought to trial, Francis M'Mahon, the owner of the property described in the indictment, was called as a witness on the part of the United States, to prove the ownership of the said property, and that it had been stolen from him in June, 1840, in his passage on board the ship Carroll of Carrolton, from Liverpool to the city of New York; and  also to prove facts and circumstances tending to show that the defendants were guilty of the said offence; to the competency of which witness, as to either of the said matters, the counsel for the defendants objected, on the ground that he was interested in the event of the suit; and so interested that he would not be rendered competent by any release to be executed by him. \nAnd hereupon the judges were divided in opinion upon the following questions, which were presented for their decision. \n1. Whether the said Francis M'Mahon, the owner of the property alleged to have been stolen, was a competent witness to be examined on the part of the United States, as to all the matters above mentioned? \n2. If not competent to testify as to the guilt of the defendants, whether he was competent to prove the ownership of the property described in the indictment; and that it had been taken and carried away with intent to steal and purloin? \n3. If not competent for both or either of the above purposes, without having released his interest in the fine to be imposed on the defendants, in case of their conviction; wnether by releasing to the United States all his right to and interest in such fine,  his competency would be restored? \nWe have considered these questions: and I am now directed to deliver the opinion of this Court upon them. The first question presents, in its most general form, the consideration of the competency of M'Mahon, the owner of the goods alleged to have been stolen; and it must be admitted to involve no small difficulty, whether viewed in relation to principle or authority. The act of Congress (act of 30th of April, 1790, ch. 36, sec. 16) upon which this prosecution is founded, provides, \"that if any person within any of the places under the sole and exclusive jurisdiction  of the United States, or upon the high seas, shall take and carry away, with an intent to steal or purloin, the personal goods of another; or if any person or persons having at any time hereafter the charge or custody of any arms, ordnance, munitions, &c., &c., belonging to the United States, shall, for any lucre or gain, or wittingly, advisely, and of purpose to hinder or impede the service of the United States, embezzle, purloin, or convey away any of the said arms, ordance, munitions, &c., &c., the person or persons so offending, their counsellors, &c., &c., shall, on  conviction, be fined not exceeding the fourfold value of the property so stolen, embezzled, or purlomed; the one moiety to be paid to the owner of the goods or the United States, as the case may be, and the other moiety to the informer and prosecutor; and be publicly whipped not exceeding thirty-nine stripes.\" \nIt is not unimportant to observe, in the construction of this section of the act, that the fine is, as to its amount, purely in the discretion of the Court; that, whatever it may be, it rests on a mere contingency, even after conviction, whether it will ever be paid or not, depending  upon the ability of the convict: and that if the fine is to be awarded as a part of the sentence of the Court upon the indictment, (as it seems properly to be,) then it must be taken to be a part of the punishment in furtherance of public justice, rather than an indemnity or compensation to the owner, since it may bear no proportion to his loss or injury. Besides, from the very nature of an indictment and the sentence thereon, the government alone has the right to control the whole proceedings and execution of the sentence. Even after verdict, the government may not choose to bring  the party up for sentence; and if sentence is pronounced, and the fine is imposed, the owner has no authority to interfere in the collection of it, any more than the informer or prosecutor; and the fine therefore must be deemed receivable solely by the government; and then it is distributable by the government, and by the government only. It would indeed require strong language in any statute, where the proceedings were by indictment, to construe that indictment, or the sentence thereon, to be controllable by other parties who might have an interest in or under the sentence. In this respect there is a great difference between an information or action qui tam, where a part of the penalty or forfeiture belongs to the informer  or prosecutor, and an indictment, the conviction upon which may entitle the informer or prosecutor to a part of the penalty or forfeiture. In the former case, the informer or prosecutor may not be a good witness; at least not unless under special circumstances; in the latter case he may be: for notwithstanding a conviction upon the indictment, he must still sue for the penalty or forfeiture by action or information, and cannot receive it under the  sentence upon the indictment. This distinction was adverted to by Mr. Justice Bayley, in delivering the opinion of the Court in The King v. Williams, (9 Barn. and Cress. 549,) upon which we shall have occasion to comment more at large hereafter. \nThe rules as to the competency of witnesses in criminal cases are not exactly and throughout the same in America as in England, although in most cases they concur. Thus, for example, in cases of forgery, the party whose name is supposed to have been forged is not a competent witness in England. But a different course has generally, although perhaps not universally, prevailed in America. So the owner of stolen goods has been universally admitted as a competent witness, in America, at least to prove the identify of his property and the fact of the theft, if not to prove all other facts, although, independently of the statute of 21 Hen. 8, ch. 11, his competency seems to have been a matter of doubt in England. \nThe general rule undoubtedly is, in criminal cases as well as in civil cases, that a person interested in the event of the suit or prosecution is not a competent witness. But there are many exceptions which are as old as the rule  itself. Thus, it is stated by Lord Chief Baron Gilbert as a clear exception, that where a statute can receive no execution unless a party interested be a witness, there he must be allowed; for the statute must not be rendered ineffectual by the impossibility of proof. Gilb on Evid. 114; 1 Phillipps on Evid. ch. 8, sec. 7, p. 125, edit. 1839 by Cowen. So cases of necessity, where no other evidence can be reasonably expected, have been from the earliest period admitted as another exception.Thus, for example, upon indictments for robbery, the person robbed is constantly admitted as a competent witness, although he will be entitled to a restitution of his goods upon conviction of the offender. 1 Phillipps on Evid. ch. 5, sec. 6, p. 120, edit. 1839, by cowen. So in an action against  the hundred by the party robbed brought under the statute of Winton, he is admitted as a competent witness to prove the robbery and the amount of the loss; upon the acknowledged ground that it is from necessity in default of other proof. 2 Rolle Abr. 686; 1 Phillipps on Evid. ch. 5, sec. 2, p. 70, edit. 1839, by Cowen. Another exception, quite as remarkable, and standing upon a ground applicable  to the present case, is that of a person who is to receive a reward for or upon the conviction of the offender; for he is universally recognised as a competent witness, whether the reward be offered by the public or by private persons. The ground of this exception is forcibly stated by Mr. Justice Bayley, in The King v. Williams, 9 Barn. and Cress. 549, 556, where he says: \"The case of reward is clear on the grounds of public policy, with a view to the public interest; and because of the principle upon which such rewards are given. The public has an interest in the suppression of crime and the conviction of guilty criminals. It is with a view to stir up greater vigilance in apprehending, that rewards are given; and it would defeat the object of the legislature by means of those rewards, to narrow the means of conviction and to exclude testimony, which would otherwise be admissible. Another exception is, in cases where, although the statute giving the party or the informer a part of the penalty or forfeiture, contains no direct affirmation, that he shall nevertheless be a competent witness; yet the Court will infer it by implication from the language of the statute or its professed  objects. \nSeveral cases of this sort are collected and commented upon, by Mr. Justice Bayley, in the case of The King v. Williams, and they fully support the exception. Mr. Phillipps also, in his work on Evidence, has given a summary of the leading decisions, (1 Phillipps on Evid. ch. 3, sec. 7, p. 125, edit. 1839, by Cowen.) Indeed, Mr. Justice Bayley puts the exception, founded upon statute provisions, upon a very broad and comprehensive ground, which is fully in point in the present case. He says; \"Where it is plain that the detection and conviction of the offender, are the objects of the legislature, the case will be within the exception; and the person benefited by the conviction, will, notwithstanding his interest, be competent.\" And in the very case then in judgment, which was a case for a forcible entry into a dwelling-house, on  the statute of 21 Jac. ch. 15, where the prosecutor would, upon conviction, be entitled to judgment of restitution of the premises, he was held incompetent, solely because (to use the language of the learned judge) \"the public interest will still have the protection of a common law indictment; and there is nothing from which an inference  can be drawn, that it was with a view to the public interest, and not for the sake of the benefit of the party grieved, that the provision for restitution  was introduced into the statute.\" Now, every ord of this passage shows, that in the case now before us, the party ought to be held competent. No common law indictment will lie for the offence, but only the statute remedy, and the statute is obviously drawn with a view to the public interest, and the suppression of public crimes; and not for the interest of the party aggrieved, since the fine is in the discretion of the Court, and may be purely nominal. \nLooking to the objects of the present section, the promotion of public justice, and the suppression of public crimes, in which the government have a deep interest; and looking to the ordinary means by which the ends can be accomplished; it is difficult not to perceive, that if the owner of the stolen goods be incompetent, it will be found utterly impracticable, in most cases falling within the purview of the section, to procure any conviction, however frequent, or however flagrant may be the offence. The places on land where the offence may be committed are such, as  being within the exclusive jurisdiction of the United States contain but few inhabitants, or few whose residence is not transitory and changing. Take the case of a lighthouse establishment, where scarcely any other inhabitants are found but the keeper and his family; if he and is wife are excluded as witnesses from incompetency, how will it be practicable to establish the identity of the property stolen, or of the person of the thief, however, atrocious and premeditated may be the circumstances under which the offence is committed? It may be in the night time; it may be in the broad day, even by a company of conspirators. But take the very case now in judgment, that of a theft committed on the high seas, where money is stolen from a passenger or an officer of the ship, or from one of the crew; who else besides himself can be expected to establish the identity of the property, or the circumstances of the theft? It is scarcely possible that it could be  done in one case in one hundred. Can Congress reasonably be supposed, in cases of offences committed upon the high seas, thus to have intended to shut out all the ordinary means and ordinary proofs of the offence; and  thus to have given new encouragement, and new motives to theft, and embezzlement, and plunderage? We think not. Upon all the grounds of exception already stated; upon the ground of necessity, and of public policy, and of attaining the manifest objects of the statute, and the ends of justice; we think that the witness was admissible for all the purposes stated in the first question. \nThis decision is not new in America. On the contrary, the doctrine has been recognised, at least to an equal extent, in Connecticut and Massachussetts.In the case of Salisbury v. The state of Connecticut, (6 Conn. R. 101,) the judges of the Supreme Court of that state, held, that the owner of goods stolen, was a competent witness for all the matters in issue upon an indictment for the theft; although the statute declared that the thief, upon being convicted, should forfeit and pay treble the value of the property stolen to the owner thereof. It is true, that one main ground of this decision, by a majority of the judges, was, that there must be another action, qui tam, by the owner to enforce the forfeiture. But the same judges held, that in such an action qui tam, brought by the owner, he would be  a competent witness to prove the loss and identity of his property, for the like reasons as, under the statute of Winton, the party robbed is admitted. In The Commonwealth v. Moulton, 9 Mass. R. 29, upon an indictment for theft, it was held, that the owner of the goods was a competent witness as to all the facts in the case; notwithstanding the witness would, by the statute, upon the conviction of the offender, be entitled to restitution of his goods; and, if they were not restored, to satisfaction out of the future earnings of the convict, and to recompense out of the county treasury for his labour and expense in the prosecution. Upon that occasion the Court said, that when (under a former statute) the party from whom goods were stolen, was by law entitled to treble the value, he was always received as a competent witness as to all pertinent facts. \nAs to the second and third questions, they do not require any particular examination, after what has been already stated. We have only to say, that if we had not been of opinion, upon the  first question, that the witness was a general witness, we should have entertained no doubt that he was a competent witness for the purposes  stated in the second question, upon the ground of necessity, and the analogy to the case of the party robbed under the statute of Winton. And as to the third question, we should have no doubt, that if the witness had such an interest in the fine as would have rendered him incompetent, his competency might have been restored by a release. If, as the argument for the defendant seems to assume, the release is of a mere possibility, no release would be necessary; for a possibility of interest is no objection to the competency of a witness. If it is, on the other hand, a fixed interest in the event of the prosecution, then it is clearly releasable. \nUpon the whole, we are of opinion, that all the questions ought to be answered in the affirmative. But, at the same time, we desire to say, that although a competent witness, the credibility of his testimony is a matter for the consideration of the jury, under all the weight of circumstances connected with the case, and his interest in the result. \nWe shall direct a certificate to be sent to the Circuit Court of the southern district of New York,  accordingly. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the Court. \nThis is a writ of error to the Circuit Court for the district of  Rhode Island. The original action was brought by Carpenter, the plaintiff in error, against the Providence Washington Insurance Company, the defendants in error, upon a policy of insurance underwritten by the insurance company of fifteen thousand dollars, \"on the Glenco Cotton Factory in the state of New York,\"  owned by Carpenter, against loss or damage by fire. The policy was dated on the 27th of September, 1838, and was to endure for one year. Among other clauses in the policy are the following: \"And provided further, that in case the insured shall have already any other insurance on the property hereby insured, not notified to this corporation, and mentioned in or endorsed upon this policy, then this insurance shall be void and of no effect.\" \"And if the said insured or his assigns shall hereafter make any other insurance on the same property, and shall not with all reasonable diligence give notice thereof to this corporation, and have the same endorsed on this instrument, or otherwise acknowledged by them in writing, this policy shall cease and be of no further effect. And in case of any other insurance upon the property hereby insured, whether prior or subsequent  to the date of this policy, the insured shall not in case of loss or damage be entitled to demand or recover on this policy any greater portion of the loss or damage sustained than the amount hereby insured shall bear to the whole amount insured on the said property.\" \"The interest of the insured in this policy is not assignable, unless by consent of this corporation, manifested in writing; and in case of any transfer or termination of the interest of the insured, either by sale or otherwise, without such consent, this policy shall henceforth be void and of no effect.\" Annexed to the policy are the proposals and conditions on which the policy is asserted to be made, and among them is the following: \"Notice of all previous insurances upon property insured by this company shall be given to them, and endorsed on the policy, or otherwise acknowledged by the company in writing, at or before the time of their making insurance thereon, otherwise the policy made by this company shall be of no effect.\" \nThe declaration averred that during the continuance of the policy he, Carpenter, was the owner of the property by the policy insured, and was interested in said property to the whole amount  so insured by the company; and that on the 9th of April, 1839, the factory was totally destroyed by fire, of which the company had due notice and proof. The cause came on for trial upon the general issue, and a verdict was found for the defendants. The plaintiff took a bill of exceptions to certain instructions refused, and other instructions given by the  Court in certain matters of law arising out of the facts in proof at the trial; and judgment having been given upon the verdict for the defendants, the present writ of error has been brought to ascertain the validity of these exceptions. \nThe facts which were in proof at the trial were very complicated; but those which are material to the present mquiry will be, as briefly as they may be, here stated. The premises  were originally owned in equal moieties by Egbert and Epenetus Reed. In June, 1835, Epenetus Reed conveyed his moiety to H. M. Wheeler, who gave a bond and mortgage on the premises to secure eight thousand dollars of the purchase-money to Epenetus Reed. On the 17th of October, 1836, Egbert Reed sold his moiety of the premises to Samuel G. Wheeler, and the latter thereupon gave a bond and mortgage  for the sum of ten thousand dollars (the purchase-money) to Epenetus Reed; and on the same day, he, Wheeler, made an additional agreement under seal with Epenetus Reed, by which he covenanted that he would effect a policy of insurance upon the property in the name of himself, or of himself and Henry M. Wheeler, for the sum of at least ten thousand dollars, and assign the same to him, Reed, as collateral security to the said last bond and mortgage, and would annually renew the policy, or effect a new one, and keep each assigned to Reed as security, in such way and manner as that the said property shall be insured for at least the sum of ten thousand dollars, and the policy held by him as collateral security as aforesaid; and if he neglected so to insure and assign for the space of ten days, then, that Reed might do the same at the expense of Wheeler, and add the premium which he might be compelled to pay with interest thereon to his said bond and mortgage, and to collect the same therewith, or that Wheeler would pay the same to him in such other way as he might desire. \nFrom the 17th of October, 1836, to the 6th of December, 1837, Henry M. Wheeler, and Samuel G. Wheeler continued to  own the factory in equal moieties, and transacted business under the firm of Henry M. Wheeler and Company. On that day Samuel G. Wheeler sold his moiety to Jeremiah Carpenter. On the 18th of April, 1838, Henry M. Wheeler sold and conveyed his moiety to Carpenter, who thus became the sole owner of the entire property. The last conveyance declared the property subject to a  mortgage on the premises from Henry M. Wheeler and wife, dated in June, 1835, to Epenetus Reed, on which there was then due six thousand dollars, which Carpenter assumed to pay. There had been a prior policy on the premises in the Washington Insurance office, which, upon Carpenter's becoming the sole owner, the company agreed to continue for account of Carpenter, and in case of loss, the amount to be paid to him. That policy expired on the 27th of September, 1838, the day on which the policy, upon which the present suit is brought, was effected. \nIt is proper farther to state, that other policies on the same factory had been effected and renewed from time to time, from December 12th, 1836, for the benefit of the successive owners thereof, by another insurance company in Providence called the American  Insurance Company; and among these was a policy effected by way of renewal, on the 14th of December, 1837, in the name of Henry M. Wheeler and Company, for six thousand dollars, for the benefit of Henry M. Wheeler and Carpenter, (who were then the joint owners thereof) payable in case of loss to Epenetus Reed. The sale by Henry M. Wheeler to Carpenter, on the 18th of April, 1838, of his moiety having been notified to the American Insurance Company, the latter agreed to the assignment; and the policy thenceforth became a policy for Carpenter, payable in case of loss to Epenetus Reed. And on the 23d of May, 1838, Carpenter transferred all his interest in the policy to Epenetus Reed. The policy thus effected on the 14th of December, 1837, was (as the Washington Insurance Company assert) not notified to them at the time of effecting the policy made on the 27th of September following, and declared upon in the present suit; nor was the same ever mentioned in, or endorsed upon the same policy; and upon this account, the company insist that the present policy is, pursuant to the stipulations contained therein, utterly void. \nSubsequently, viz., on the 11th of December, 1838, the American  Insurance Company renewed the policy of 14th of December, 1837, for Carpenter; and at his request, for one year. This renewed policy was never notified to the Washington Insurance Company, nor acknowledged by them in writing; nor does it appear ever to have been actually assigned to Epenetus Reed, down to the period of the loss of the factory by fire. On this account also the Washington Insurance Company insist that their  policy of the previous 27th of September, 1838, is, according to the stipulations therein contained, utterly void. \nIt seems to have been admitted, although not directly proved, that a suit was brought upon the policy of the 14th of December, 1837, at  the American Insurance office, after the loss, by Carpenter, as trustee of or for the benefit of Reed, for the amount of the six thousand dollars insured thereby; and that at the November term, 1839, of the Circuit Court, the company set up as a defence, that there was a material misrepresentation of the cost and value of the property in the factory insured made to them at the time of the original insurance; and it being intimated by the Court, that if such was the fact it would avoid the policy;  the plaintiff acquiesced in that decision, and discontinued or withdrew the action before verdict. \nThe instructions prayed and refused, and also the instructions actually given by the Court, are fully set forth in the record. It does not seem important to the opinion, which we are to pronounce, to recite them at large, in totidem verbis; since the points on which they turn admit of a simple and exact exposition. \nThe first instruction asked the Court, in effect, to say that the original policy of the American Insurance Company, made in December, 1836, and the several renewals thereof, although made in the name of the Wheelers, (the mortgagors,) being in fact for the use and benefit of Epenetus Reed, the mortgagee, were for all substantial purposes the policy of Reed, and could never inure to the benefit of the Wheelers, or of Carpenter; and that neither the Wheelers nor Carpenter had any such interest therein as rendered it incumbent on them to give any notice of its existence to the Washington Insurance Company; and that it was to all intents and purposes as if Reed had effected the said policy in his own name upon his specific interest as mortgagee. This instruction the Court  refused to give; and on the contrary, instructed the jury, that as by the memorandum made on that policy on the 14th of December, 1837, the policy was by the consent of all the parties interested therein, and of Carpenter, to be for the benefit of Carpenter, he, Carpenter, became interested therein legally or equitably; and that notwithstanding the assignment thereof by the Wheelers to Carpenter, and of Carpenter to Reed, the policy and the renewals thereof ought to have been notified to the  Washington Insurance Company, at the time when the policy declared on was underwritten, if the policy was then a subsisting policy, and was so treated by Carpenter and the American Insurance Company; and Carpenter had a legal or equitable interest therein, and was entitled to the benefit thereof. \nThe question then is here broadly presented, whether the policy of the American Insurance Company is, under all the circumstances, to be treated as a policy exclusively for Reed, the mortgagee, or whether it is to be treated as a policy on the property of, and for the benefit of, the mortgagors. No doubt can exist, that the mortgagor and the mortgagee may each separately insure his own distinct  interest in the property. But there is this important distinction between the cases, that where the mortgagee insures solely on his own account, it is but an insurance of his debt; and if his debt is afterwards paid or extinguished, the policy ceases from that time to have any operation; and even if the premises insured are subsequently destroyed by fire, he has no right to recover for the loss, for he sustains no damage thereby; neither can the mortgagor take advantage of the policy, for he has no interest whatsoever therein. On the other hand, if the premises are destroyed by fire before any payment or extinguishment of the mortgage, the underwriters are bound to pay the amount of the debt to the mortgagee, if it does not exceed the insurance. But, then, upon such payment, the underwriters are entitled to an assignment of the debt from the mortgagee, and may recover the same amount from the mortgagor, either at law or in equity, according to circumstances; for the payment of the insurance by the underwriters does not, in such a case, discharge the mortgagor from the debt but only changes the creditor. \nFar different is the case where an insurance is made by the mortgagor on the  premises on his own account; for, notwithstanding any mortgage or other encumbrance upon the premises, he will be entitled to recover the full amount of his loss, not exceeding the insurance; since the whole loss is his own, and he remains personally liable to the mortgagee or other encumbrancer, for the full amount of the debt or encumbrance. \nThese principles we take to be unquestionable, and the necessary result of the doctrines of law applicable to insurances by the mortgagor and the mortgagee. If, then, a mortgagor procures  a policy on the property against fire, and he afterwards assigns the policy to the mortgagee with the consent of the underwriters, (if that is required by the contract to give it validity,) as collateral security, that assignment operates solely as an equitable transfer of the policy so as to enable the mortgagee to recover the amount due in case of loss; but it does not displace the interest of the mortgagor in the premises insured. On the contrary, the insurance is still his insurance, and on his property, and for his account. And so essential is this, that if the mortgagor should transfer the property to a third person, without the consent  of the underwriters, so as to divest all his interest therein; and then a loss should occur, no recovery can be had therefore against the underwriters, because the assured has ceased to have any interest therein, and the purchaser has no right or interest in the policy. Another essential difference between the case of a mortgagor and that of a mortgagee (which has been already hinted at) is, that the latter can insure for himself at most only to the extent of his debt, whereas the mortgagor can insure to the full value of the property, notwithstanding any encumbrances thereon for the reasons aiready stated. \nSome of these principles are completely illustrated by the terms of this very policy of the American Insurance Company; and the like clauses are to be found in the policies of the Washington Insurance Company, now under consideration. Thus, although it is expressly provided, \"that the assured may assign this policy to Epenetus Reed;\" yet it is at the same time provided, that \"the interest of the assured in this policy is not assignable unless by the consent of this corporation, manifested in writing; and in case of any transfer or termination of the interest of the insured, either  by sale or otherwise,  without such consent, this policy shall from thenceforth be void and of no effect.\" Now, the interest here last spoken of, manifestly, is the interest of the owner in the premises insured, and not merely his interest in the policy. \nBut independently of any special clauses of this sort, it is clear, both upon principle and authority, that an assignment of a policy by the insured only covers such interest in the premises as he may have at the time of the insurance, and at the time of the loss. It is the property of the insured, and his alone that is designed to be covered; and when he parts with his title to the  property, he can sustain no future loss or damage by fire, but the loss, if any, must be that of his grantee. The rights of the assignee cannot be more extensive under the policy than the rights of the assignor; and as to the grantee of the property, he can take nothing by the grant in the policy, since it is not in any just or legal sense attached to the property, or an incident thereto. This doctrine was laid down in very expressive terms by Lord Chancellor King, so long ago as in the case of Lynch v. Danzell, 4 Bro. Parl.  Rep. 432, edit. Turb. 2 Marsh. Insur. b. 4, ch. 4, 803, which was an insurance against fire. \"These policies,\" said he, \"are not insurances of the specific things mentioned to be insured, nor do such insurances attach on the realty, or in any manner go with the same as incident thereto by any conveyance or assignment, but they are only special agreements with the persons insuring against such loss or damage as they may sustain. The party insured must have a property at the time of the loss or he can sustain no loss, and consequently can be entitled to no satisfaction.\" \"These policies are not in their nature assignable, nor is the interest in them ever intended to be transferrable from one to another, without the express consent of the office.\" Now, this case is the stronger because it was a case where not only the policy but the premises had been assigned to the very parties who sought the benefit of the insurance. The same doctrine was asserted by Lord Hardwicke, in the case of The Sadlers' Company v. Badcock, 2 Atk. 554, where there had been an assignment of the policy, after the insured ceased to have any interest in the premises; upon that occasion Lord Hardwicke said, \"I  am of opinion [that] the insured should have an interest or property at the time of the insuring and at the time the fire happens.\" \"The society are to make satisfaction in case of any loss by fire. To whom or for what loss are they to make satisfaction? Why, to the person insured, and for the loss he may have sustained; for it cannot properly be called insuring the thing, for there is no possibility of doing it, and therefore must mean insuring the person from damage;\" and he cited with approbation the very language of Lord King, already stated in Lynch v. Danzell. The authority of these cases was fully recognised and acted upon by this Court in the case of The Columbia Insurance Company of Alexandria v. Lawrence, 10 Peters, 507, 512, where the  Court said, \"We know of no principle of law or of equity, by which a mortgagee has a right to claim the benefit of a policy underwritten for the mortgagor, on the mortgaged premises, in case of a loss by fire. It is not attached or an incident to his mortgage. It is strictly a personal contract for the benefit of the mortgagor, to which the mortgagee has no more title than any other creditor.\" \nFor these reasons it is apparent  that Epenetus Reed, as mortgagee, and merely in that character, can have no interest in or right to the policy in the American office, now under consideration. The insurance is not made by him, or in his name, or upon his account. The policy was originally made in December, 1836, for Henry M. Wheeler and Company who were then the owners of the factory; and by its very terms it is an insurance for them against loss or damage by fire. When the policy was renewed in December, 1837, it was so renewed for the benefit of Henry M. Wheeler and Jeremiah Carpenter, who had then become the joint owners thereof. When subsequently, in April, 1838, Carpenter became the sole owner of the premises, the company agreed to the transfer and assignment of the entirety to Carpenter, so that henceforth it became a policy upon his sole property, for his account and benefit; in the same manner and with the same legal effect as if the policy had been renewed in his own name. \nBut it is said that there is a clause in the original policy, and it is equally applicable to the renewals, \"that the assured may assign this policy to Epenetus Reed.\" And the argument is, that this liberty to assign, when the assignment  to Reed was actually executed, transferred the whole interest in the property insured, as well as in the policy, to Reed, and made the policy to all intents and purposes a policy for the sole benefit of Reed as mortgagee, as much as if the insurance had been made in his own name. \nTo this suggestion several answers may be made, each of which is equally fatal to the construction contended for. In the first place, although/an assignment to Reed was authorized by the policy, it was never disclosed to the American Insurance Company for what purposes or objects the assignment was to be made, whether to Reed as trustee, or agent of the insured, or for  fugitive and temporary purposes, or as a security for debts, or whether it was designed to be absolute and unconditional. Neither was it disclosed to the company that Reed was in point of fact a mortgagee; nor were the company requested to insure his interest, as mortgagee, or to make the insurance exclusively upon his interest and for his account. Now, as has been already seen, an insurance for a mortgagor, and one for a mortgagee, involve very different considerations, responsibilities, rights, and duties; and the company might  well be willing to make an insurance upon the property on account of the mortgagors, when they might be unwilling to make any on account of the mortgagee; and it is clear, upon principle, that no policy can or ought to be deemed a policy exclusively upon the interest of the mortgagee, unless the company have notice that it is so designed, and they assent to it. A mortgage interest is without doubt an insurable interest; but then it is a special interest, and should be made known to the underwriters. Mr. Marshall, in his Treatise on Insurance against Fire, says, \"It is not necessary,  however, in all cases, in order to constitute an insurable interest, that the insured shall in every instance have the absolute and unqualified property of the effects insured. A trustee, a mortgagee, a reversioner, a factor, an agent, with the custody of goods to be sold upon commission, may insure; but with this caution, that the nature of the property be distinctly specified.\" 2 Marsh. Insur. b. 4, ch, 2, p. 789. This language was quoted with approbation by this Court in the case of The Columbia Insurance Company v. Lawrence, 2 Peters, 25, 49, and the reason for it is there given by  the Court. \"Generally speaking,\" said the Court, \"insurances against fire are made in the confidence that the assured will use all the precautions to avoid the calamity insured against, which would be suggested by his interest. The extent of his interest must always influence the underwriter in taking or rejecting the risk, and in estimating the premium. So far as it may influence him in these respects it ought to be communicated to him. Underwriters do not rely so much upon the principles, as on the interest of the assured; and it would seem, therefore, to be always material that they should know how far this interest is engaged in guarding the property from loss.\" Now, since there is no pretence to say, that the interest of Reed as mortgagee was disclosed  to the company, or that the company agreed to insure his interest as mortgagee, and that only; it would seem to follow, that the policy cannot be construed to operate in the manner propounded by the instruction prayed by the plaintiff. \nIn the next place the policy itself upon its very terms admits of no such interpretation; and indeed requires a different interpretation to give due effect to those terms. The policy,  as has been already stated, is in the name of the owners, and for their account, and on their property. If it was designed solely for Reed, why was he not named, and he alone named as the insured? How can any Court be at liberty, without other explanatory words, to construe a policy made by A. in his own name, on his property, to be not a policy on his own interest, but on the interest of B. who is a stranger to the policy? The language of Lord King, and Lord Hardwicke, and of this Court, in the cases already cited, show conclusively that policies of this sort are not deemed in their nature incidents to the property insured, but that they are mere special agreements with the persons insuring against such loss or damage as they may sustain, and not the loss or damage that any other person having an interest, as grantee, or mortgagee, or creditor, or otherwise, may sustain, by reason of a subsequent destruction thereof by fire. It would seem, then, repugnant to the terms of this policy to construe it to be not what it purports to be, an insurance for the owner of the property, but an insurance for an undisclosed creditor or mortgagee. It would materially change the language, the  objects, and the obligations of the parties thereto. \nIn the next place, it would, in our judgment, be inconsistent with the manifest intention, as well of the insured, as of Reed, to give it such an interpretation. The agreement between Samuel G. Wheeler and Reed, of the 17th of October, 1836, demonstrates, in the clearest manner, that the policy was to be effected by the Wheelers as owners, and to be assigned after it was effected by them to Reed, as collateral security for his bond and mortgage; and it was only upon their neglect to procure such insurance and assign the policy, that Reed was to be at liberty to do the same at their expense. The language of the instrument is, \"I do hereby agree with Epenetus Reed, &c., that I will effect a policy of insurance upon the said property in the name of myself, or of myself  and Henry M. Wheeler, for the sum of at least ten thousand dollars, and assign the same to him as collateral security to said bond and mortgage; and that I will annually renew the said policy, or effect a new one, and keep each assigned to him as security, &c., and the policy held by him as collateral security; and if I neglect so to insure and assign for  the space of ten days, then, that said Reed may do the same at my expense,\" &c. Now, language more direct than this can scarcely be imagined to express the intentions of the parties, that the insurance was to be made in the name of the owners, upon their interest in the property, and for their account, and the policy to be assigned as collateral security to Reed. Not one word is said that the insurance was to be solely and exclusively for Reed, as mortgagee; for in such a case he would hold the policy as a principal, and not as a collateral security. It is obvious from the language also that Reed was not to be the absolute owner of the policy, as he would be if made for him exclusively as mortgagee, but he was to hold it as collateral security. If, then, the debt of Reed should be paid or extinguished in the whole or in part, would not the right of the owners correspondently attach to the policy? If the whole debt was paid, would they not be entitled to a re-assignment thereof? Yet, unless in such a case the policy attached to the property for their own account and benefit, the re-assignment would be a mere nullity. To us it seems beyond all reasonable doubt, that the policy  under this agreement was designed by the parties to be on account of the owners and for their benefit, and that it was to be only collateral security to Reed to the extent of any interest he might have therein in case of loss by fire. In this view it operated as a security to the owners against the entire loss. In any other view, they would only change their creditors upon any loss, from Reed to the underwriters. \nBesides, in point of fact, the policy must have its effect and operation from the time of its execution, and not otherwise. The language of the policy is, \"that the assured may assign this policy to Epenetus Reed;\" not that this policy shall now be for Epenetus Reed or on his interest. The owners, then, had an option, whether to assign or not. If they never had assigned the policy to Reed at all, and a loss had occurred, would not the loss have been payable to the owners? In point of fact, the policy, although  made on the 12th of December, 1836, was not assigned to Reed until the 21st of January, 1837. In whom did the interest then originally, and in the intermediate time, vest, under the policy? Clearly in the owners; for they and they only had any interest  in the property or the policy until the assignment was made. The authorities all hold  that the party insured must have an interest at the time of the making of the policy, as well as at the time of the loss; and if Reed had no interest upon which the policy would attach by its terms when the insurance was made, but acquired it afterwards, and the policy had been made upon his sole account, it would have been a mere nullity. The subsequent renewals were to the same effect, and for the same purposes and parties as the original policy. Carpenter, after he become sole owner, did not assign the policy to Reed until the 23d of May, 1838, more than five months after the renewal, and more than one month after the conveyance of the whole property to himself. Now, the question may be here again asked, whether if the loss had occurred before these assignments, a recovery upon the policy might not have been had by Carpenter, in his own name, and for his own account? We think that the question must be answered in the affirmative; and if so, then it demonstrates that the policy made in the name of the owners, was for their account and benefit; and payment only was, in case of loss,  to be made to Reed. \nFor these reasons we are of opinion that the first instruction asked of the Court was rightly refused; and that the instruction given was entirely correct. \nThe second instruction asked, proceeds upon the ground that although the policy of the American Insurance Company, of the 6th of December, 1836, was good upon its face, yet if, in point of fact, it was procured by a material misrepresentation by the owners of the cost and value of the premises insured, it was to be deemed utterly null and void, and therefore as a null and void policy, notice thereof need not have been given to the Washington Insurance Company at the time of underwriting the policy declared on.The Court refused to give the instruction; and, on the contrary, instructed the jury that if the policy of the American Insurance Company was, at the time when that at the Washington Insurance office was made, treated by all the parties thereto as a subsisting  and valid policy, and had never, in fact, been avoided; but was still held by the assured as valid; then that notice thereof ought to have been given to the Washington Insurance Company, and if it was not, the policy declared on was void. \n We are of opinion that the instruction, as asked, was properly refused; and that given was correct. It is not true, that because a policy is procured by misrepresentation of material facts, it is therefore to be treated, in the sense of the law, as utterly void ab initio. It is merely voidable, and may be avoided by the underwritters upon due proof of the facts; but until so avoided, it must be treated for all practical purposes as a subsisting policy. In this very case the policy has never, to this very day, been avoided, or surrendered to the company. It is still held by the assured; and he may, if he pleases, bring an action thereon to-morrow; and unless the underwriters should at the trial prove the misrepresentation, he will be entitled to recover. But the question is not how the policy may now be treated by the parties, but how was it treated by them at the time when the policy declared on was made. It was then a subsisting policy, treated by all parties as valid, and supposed by the underwriters to be so. The misrepresentation does not then seem to have been known to the American Insurance Company. It was an extrinsic fact; and if known to the American Insurance Company,  it certainly was not known to the Washington Insurance Company. How were the latter to arrive at any knowledge of the facts of misrepresentation; and how were they to avail themselves of the fact, if the American Insurance Company should not choose to insist upon it? Nor is it immaterial in the present case, as was suggested at the bar, that the present plaintiff now seeks to avail himself of his own misrepresentation, or that of those under whom he claims, to protect himself against his own laches in not giving notice of the policy to the underwriters. And it may well be doubted whether a party to a policy can be allowed to set up his own misrepresentations to avoid the obligations deducible from his own contract. Be this as it may, it is in our judgment free from all reasonable doubt, that notice of a voidable policy must be given to the underwriters; for such a case falls within the words and the meaning of the stipulations in the policy.It is a prior policy, and it has a legal existence until avoided. \n Indeed, we are not prepared to say that the Court might not have gone farther, and have held that a policy -- existing and in the hands of the insured, and not utterly  void upon its very face, without any reference whatever to any extrinsic facts -- should have been notified to the underwriters; even although by proofs, afforded by such extrinsic facts, it might be held in its very origin and concoction a nullity. And this leads us to say a few words upon the nature and importance and sound policy of the clauses in fire policies, respecting notice of prior and subsequent policies. They are designed to enable the underwriters, who are almost necessarily ignorant of many facts which might materially affect their rights and interests, to judge whether they ought to insure at all, or for what premium; and to ascertain whether there still remains any such substantial interest of the insured in the premises insured, as will guaranty on his part, vigilance, care, and strenuous exertions to preserve the property. To quoe the language of this Court in the passage already cited, the underwriters does not rely so much upon the principles as upon the interest of the assured. Besides, in these policies there is an express provision that in cases of any prior or subsequent insurances, the underwriters are to be liable only for a rateable proportion of the loss  or damage as the amount insured by them bears to the whole amount insured thereon. So that it constitutes a very important ingredient in ascertaining the amount which they are liable to contribute to wards any loss; and whether there be any other insurance or not upon the property, is a fact perfectly known to the insured, and not easily or ordinarily within the means of knowledge of the underwriters. The public, too, have an interest in maintaining the validity of these clauses, and giving them full effect and operation. They have a tendency to keep premiums down to the lowest rates, and to uphold  institutions of this sort, so essential in the present state of our country for the protection of the vast interests embarked in manufactures, and on consignments of goods in warehouses. If these clauses are to be construed with a close and scrutinizing jealousy, when they may be complied with in all cases by ordinary good faith, and ordinary diligence on the part of the insured, the effect will be to discourage the establishment of fire insurance companies, or to restrict their operations to cases where the parties and the premises are  within the personal observation  and knowledge of the underwriters. Such a course would necessarily have a tendency to enhance premiums; and to make it difficult to obtain insurances where the parties live, or the property is situate, at a distance from the place where the insurance is sought. \nBut be these considerations as they may, we see no reason why, as they clauses are a known part of the stipulations of the policy, they ought not to receive a fair and reasonable interpretation according to their terms and obvious import. The insured has no right to complain, for he assents to comply with all the stipulations on his side, in order to entitle himself to the benefit of the contract, which upon reason or principle, he has no right to ask the Court to dispense with the performance of his own part of the agreement, and yet to bind the other party to obligations, which, but for those stipulations, would not have been entered into. We are then of opinion that there is no error in the second instruction. On the contrary, there is strong ground to contend that the stipulations in the policy as to notice of any prior and subsequent policies, were designed to apply to all cases of policies then existing in point of  fact; without any inquiry into their original validity and effect, or whether they might be void or voidable. \nWe have not thought it necessary upon this occasion to go into an examination of the cases cited from the New York and Massachusetts Reports, either upon this last point, or upon the former point. The decisions in those cases are certainly open to some of the grave doubts and difficulties suggested at the bar, as to their true bearing and results. The circumstances, however, attending them, are distinguishable from those of the case now before us, and they certainly cannot be admitted to govern it. The questions under our consideration, are questions of general commercial law, and depend upon the construction of a contract of insurance, which is by no means local in its character, or regulated by any local policy or cutoms. Whatever respect, therefore, the decisions of state tribunals may have on such a subject, and they certainly are entitled to great respect, they cannot conclude the judgment of this Court. On the contrary, we are bound to interpret this instrument according to our own opinion of its true intent and objects, aided by all the lights which can be obtained  from all external  sources whatsoever; and if the result to which we have arrived differs from that of these learned state Courts, we may regret it, but it cannot be permitted to alter our judgment. \nThe third instruction prayed the Court to instruct the jury that if the Washington Insurance Company had notice, in fact, of the existence of the policy in the American office, that \"was, in law, a compliance with the terms of the policy.\" The Court refused to give the instruction as prayed; but instructed the jury that, at law, whatever might be the case in equity, mere parol notice of such insurance was not, of itself, sufficient to comply with the requirements of the policy declared on; but that it was necessary, in case of nay such prior policy, that the same should not only be notified to the company, but should be mentioned in or endorsed upon the policy; otherwise the insurance was to be void and of no effect. We think this instruction was perfectly correct. It merely expresses the very language and sense of the stipulation of the policy; and it can never be properly said that the stipulation in the policy is complied with, when there has been no such mention or endorsement  as it positively requires; and without which it declares the policy shall henceforth be void and of no effect. \nThe fourth and last instruction given by the Court, stands upon the same considerations, as those already mentioned; and it would be a useless task to repeat them. If the other instructions given by the Court were correct, it is admitted that this cannot be deemed erroneous. \nUpon the whole, our opinion is, that the judgment of the Circuit Court ought to be affirmed with costs. \n \n\n ", " \nOpinion \n\n \n \n   Mr. Justice STORY delivered the opinion of the Court. \nThis is a writ of error from the judgment of the Circuit Court of the district of Maryland, affirming, pro forma, a judgment of the District Court of the same district. \nThe original suit was a libel of information, in rem, upon a seizure, upon land, in the said district, of twenty pieces of cloths imported into the United States, and alleged to be forfeited. The libel contained a number of counts; but that alone which is necessary to be here stated, is the count founded upon the sixty-sixth section of the revenue collection act of 1799, chapter 128, which declares, \"That if any goods, wares, or merchandise, of which entry shall have been made in the office of a collector, shall not be invoiced according to the actual cost thereof at the place of exportation, with design to evade the duties thereupon, or any part thereof, all such goods, wares, and merchandise, or the value thereof, to be recovered of the person making the entry, shall be forfeited.\" The count stated that the goods in controversy were not invoiced according to the actual cost thereof at the place of exportation, with design to evade the duties.Various pleas were  put in, to some of which there were demurrers, and upon others issue was joined, upon which a trial was had by a jury. The jury found a verdict for the United States. The claimant (as well as the United States) prayed certain instructions to the jury which were refused, and the Court gave certain instructions to which the claimant excepted; and the cause came before the Circuit Court upon the bill of exceptions, filed by the claimant, as well to the refusal as to the instructions of the Court. At the trial it appeared that the goods in question had been originally imported into the port of New York, and were there duly entered and landed, and the duties paid upon the invoices produced by the claimant at the custom-house. They were afterwards transmitted to Baltimore, and there seized in the stores of certain persons having the custody thereof for the claimant, under a search warrant of a magistrate, procured for that purpose. The validity of the original seizure is contested in some of the pleadings and  this seems to have been insisted upon before the jury as one of the grounds of defence. \nAt the trial, to establish the fraud in the invoices, beside other evidence,  the counsel for the United States offered in evidence sundry other invoices of cloths and cassimeres, twenty-nine in number imported into the port of New York by the complainant, or consigned to him, for the purpose of showing the fraudulent intention of the claimant in those importations, as well as in the present. An objection was taken to the admissibility of this evidence, which was overruled by the Court; and the evidence was admitted: and this constitutes one of the exceptions in the cause. \nThe District Judge, after the whole evidence was gone through, gave the following instructions to the jury, which involve the whole merits of the controversy: \n1. That the issues formed, and which the jury are sworn to try, involve no question except upon the causes of forfeiture alleged in the information and traversed, and therefore no question relating to the mere seizure of the goods is in issue or material under the pleadings in this cause. \n2. If the jury shall find from the evidence in the cause, that the invoices of the goods in question were made up with intent, by a false valuation to evade or defraud the revenue, the plaintiffs are entitled to recover, although the   jury should also find from the evidence that the said goods have been passed through the custom-house at New York, by the collector thereof, and the duties calculated by him on said invoices shall have been paid or secured to be paid, and the said goods delivered by said collector to the importer. \n3. That there has been shown on the part of the United States, probable cause for the present prosecution under the third count, and the sixth, seventh, eighth, and ninth counts in the information, and that the burden of proof lies under the seventy-first section of the act of the 2d of March, 1799, upon Thomas Wood, Jr., the claimant, and that it is incumbent upon him to prove to the jury that the charges in the said five counts are untrue; that is, to prove that the goods in question were invoiced according to their actual cost at the port of exportation, and that the invoices and packages were not made up with intent to evade or defraud the revenue. \n 4. That the burden of proof being upon the said Thomas Wood, Jr., under the seventy-first section of the act of 1799, and the fifteenth section of the act of the 14th of July, 1832, it is incumbent upon him to prove to the jury  the actual cost of the twenty-two pieces of cloth in the invoices and entries stated to have been purchased by him, and that the value of the goods at the times or dates of the seizure or of any other subsequent times are not material, except so far as they may assist or tend to enable the jury to ascertain the prices at the respective periods of purchase or shipment. \n5. That the burden of proof being upon the claimant to prove that the invoices were not made up with intent to defraud the revenue, it is not sufficient for him to rely upon the invoices themselves merely as proving their own truth and fairness. \nIn respect to the point made at the bar, as to the validity of the original seizure, or of the causes thereof, we are of opinion that the first instruction of the District Judge was entirely correct. It is of no consequence, whatsoever, what were the original grounds of the seizure, whether they were well founded or not, if in point of fact the goods are by law subjected to forfeiture; for the United States are not bound down by the acts of the seizors to the causes which influenced them in making the seizure, nor by any irregularity on their part in conducting it, if in point  of fact the seizure can now be maintained as founded upon an actual forfeiture thereof at the time of the seizure; and therefore it was rightly held by the judge, that no question arose upon the issues which the jury were to try, except upon the causes of forfeiture alleged in the information. \nThe remarks just made constitute an answer to the argument upon the demurrers to the two first pleas of the claimant; for, as has been already suggested, if a seizure has been actually made, and is a continuing seizure; it is no bar to proceedings thereon that the cause of forfeiture relied on is not the same upon which the seizure was originally made. It is sufficient for the United States that it adopts the seizure and now proceeds for a good cause of forfeiture, although utterly unknown to the original seizors. \nPassing from this, the next point presented for consideration is, whether there was an error in the admission of the evidence of  fraud deducible from the other invoices offered in the case. We are of opinion that there was none. The question was one of fraudulent intent or not; and upon questions of that sort, where the intent of the party is matter in issue, it has  always been deemed allowable, as well in criminal as in civil cases, to introduce evidence of other acts and doings of the party of a kindred character, in order to illustrate or establish his intent, or motive in the particular act, directly in judgment. Indeed, in no other way would it be practicable, in many cases, to establish such intent or motive, for the single act taken by itself may not be decisive either way; but when taken in connection with others of the like character and nature, the intent and motive may be demonstrated almost with a conclusive certainty. The treatise on evidence by Mr. Phillipps and Mr. Starkie contain many illustrations to this effect. See Starkie on Evidence, vol. 1, p. 64, vol. 2, p. 220, 221, second London edit., 1833; Phillipps on Evidence, by Cowen, vol. 1, Ch. 7, s. 7, p. 179, 180, vol. 2. p. 452, note 333, p. 465, note 352, edit. 1839. \nThey constitute exceptions to the general rule, excluding evidence not directly comprehended within the issue; or rather, perhaps, it may with more certainty be said, the exception is necessarily imbodied in the very substance of the rule: for whatever does legally conduce to establish the points in issue is  necessarily embraced in it, and therefore a proper subject of proof; whether it be direct, or only presumptive. This doctrine was held in a most solemn manner in the case of the King v. Wylee, 4 Bos. and Pull. 92, where upon an indictment for disposing and putting away a forged bank note, knowing it to be forged, evidence was admitted of other forged notes having been uttered by the prisoner, in order to prove his knowledge of the forgery. The same doctrine has been held in cases of the uttering of bad money and spurious notes; and also in cases of conspiracy. The same doctrine was affirmed and acted upon by this Court in the case of the United States v. Wood, 14 Peters' Rep. 430, in the case of a prosecution for perjury. \nCases of fraud present a still more stringent necessity for the application of the same principle; for fraud being essentially a matter of motive and intention, is often deducible only from a great variety of circumstances, no one of which is absolutely  decisive; but all combined together may become almost irresistible as to the true nature and character of the transaction in controversy. The case of Irving v. Motley, 7 Bing. Rep. 543, turned upon  this very point. There the action was trover to recover back goods which had been purchased by an agent for his principal by means of a fraud. In order to establish the plaintiff's case, it became necessary to show that other purchases had been made by the same agent for the same principal, under circumstances strongly presumptive of a like fraud; no doubt was entertained by the Court of the admissibility of the evidence; and the main point urged at the bar was that the agent should himself have been called to establish the purchases, but this objection was overruled, and the jury, having found  a verdict for the plaintiff, the Court gave judgment in his favour. \nIndeed, it is admitted by the counsel for the plaintiff in error in the case before us, that it is a general principle of law that whenever a fraudulent intention is to be established, collateral facts tending to show such intention are admissible proof; but the objections taken are, first, that when the proof was offered no suitable foundation had been laid for its admission, and that the cause was launched with this proof; and secondly, that the proof related to importations after, as well as before the particular  importation in question. We do not think either of these objections maintainable. The fraud being to be made out in evidence, the order in which the proof should be brought to establish it, was rather a matter in the discretion of the Court, than of strict right in the parties. It is impossible to lay-down any universal rule upon such a subject. Much must depend upon the posture and circumstances of the particular case; and at all events, if the proof be pertinent and competent, the admission of it cannot be matter of error. The other objection has as little foundation: for fraud in the first importation may be as fairly deducible from other subsequent fraudulent importations by the same party, as fraud would be in the last importation from prior frautdulent importations. In each case the quo animo is in question, and the presumption of fraudulent intention may equally arise and equally prevail. \nThe second instruction of the Court is, in effect, that if the invoices of the goods now in question were fraudulently made,  by a false valuation to evade or defraud the revenue, the fact that they had been entered and the duties paid or secured at the custom-house at New  York, upon those invoices, was no bar to the present information. This instruction was certainly correct, if the sixty-sixth section of the revenue collection act of 1799, ch. 128, now remains in full force and unrepealed: for it can never be permitted that a party who perpetrates a fraud upon the custom-house, and thereby enters his goods upon false invoices and false valuations, and gets a regular delivery thereof upon the mere payment of such duties as such false involces and false valuations require, can avail himself of that very fraud to defeat the purposes of justice. It is but an aggravation of his guilt that he has practised imposition upon the public officers, as well as perpetrated such a deliberate fraud. The language of the sixty-sixth section completely covers such a case. It supposes an entry at the custom-house upon false invoices with intent to evade the payment of the proper duties, and the forfeiture attaches immediately upon such an entry upon such invoices with such intent. The success of the fraud in evading the vigilance of the public officers, so that it is not discovered until after the goods have passed from their custody does not purge away the forfeiture;  although it may render the detection of the offence more difficult and more uncertain. The whole argument turns upon this, that if the custom-house officers have not pursued the steps authorized by law to be pursued by them, by directing an appraisement of the goods in cases where they have a suspicion of illegality, or fraud, or no invoices are produced, but their suspicions are lulled to rest; the goods are untainted by the forfeiture the moment they pass from the custom-house. We cannot admit that such an interpretation of the objects of language of the sixty-sixth section is either sound or satisfactory. The same reasoning governs the ruling of the Court, upon the demurrer to the third plea. \nThe question then arises whether the sixty-sixth section of the act of 1799, ch. 128, has been repealed, or whether it remains in full force. That it has not been expressly or by direct terms repealed is admitted; and the question resolves itself into the more narrow inquiry, whether it has been repealed by necessary implication. We say by necessary implication, for it is not sufficient  to establish that subsequent laws cover some or even all of the cases provided for by it;  for they may be merely affirmative, or cumulative, or auxiliary. But there must be a positive repugnancy between the provisions of the new laws, and those of the old; and even then the old law is repealed by implication only pro tanto, to the extent of the repugnancy. And it may be added, that in the interpretation of all laws for the collection of revenue, whose provisions are often very complicated and numerous to guard against frauds by importers, it would be a strong ground to assert that the main provisions of any such laws sedulously introduced to meet the case of a palpable fraud, should be deemed repealed, merely because in subsequent laws other powers and authorities are given to the custom-house officers, and other modes of proceeding are allowed to be had by them before the goods have passed from their custody, in order to ascertain whether there has been any fraud attempted upon the government. The more natural, if not the necessary inference in all such cases is, that the legislature intend the new laws to be auxiliary to and in aid of the purposes of the old law, even when some of the cases provided for may equally be within the reach of each. There certainly, under  such circumstances, ought to be a manifest and total repugnancy in the provisions to lead to the conclusion that the latter laws abrogated, and were designed to abrogate the former. \nDown to the act of the 28th of May, 1830, ch. 147, it does not appear to us that any act of Congress whatsoever has been cited at the argument which can, upon a reasonable construction, be deemed to repeal the sixty-sixth section of the act of 1799. The act of 1830, in the fourth section, provides that the collectors of the customs shall cause at least one package out of every invoice, and one package at least out of every twenty packages of each invoice, and a greater number, should he deem it necessary, of goods imported, to be opened and examined; \"and if the same be not found to correspond with the invoice, or to be falsely charged in such invoice, the collector shall order, forthwith, all the goods contained in the same entry to be inspected; and if such goods be subject to an ad valorem duty, the same shall be appraised; and if any package shall be found to contain any article not described in the invoice, or if such package or invoice be made up  with intent, by a false valuation or  extension, or otherwise, to evade or defraud  the revenue, the same shall be forfeited.\" The section then proceeds to repeal the thirteenth section of the act of the 1st of March, 1823, ch. 149, without saying one word as to any repeal of any section of the act of 1799, ch. 128. Now, if here the rule be properly applicable, that \"Expressio unius est exclusio alterius,\" the presumption of any repeal by implication of the sixty-sixth section of the act of 1799, would seem to be completely repelled. \nBesides, the fourth section of the act of 1830, is not pointed at the same class of cases as the sixty-sixth section of the act of 1799. It obviously and naturally, in its whole provisions, applies solely to cases where the packages have been opened and examined by order of the collector, and upon such examination if any article is found not contained in the invoice, or the package or invoice is found to be made up with an intent by a false valuation, or extension, or otherwise, to evade or defraud the revenue, and then the same are declared to be forfeited. It would be a strong doctrine to affirm that where no such examination or detection had taken place at the custom-house,  but the same had passed from the public custody unopened, the forfeiture under this provision did apply, or was designed to apply. The fourteenth section of the act of the 14th of July, 1832, ch. 224, has in some measure qualified and mitigated the effect of the fourth section of the act of 1830; by providing, that whenever upon opening and examination of any package or packages of imported goods, composed wholly or in part of wool or cotton, (under which predicament the present goods fall) the goods shall be found not to correspond with the entry thereof at the custom-house, and if any package shall be found to contain any article not entered, such article shall be forfeited; or if the packages shall be made up with intent to evade or defraud the revenue, the package shall be forfeited; and so much of the fourth section of the act of 1830, as prescribes a forfeiture of goods found not to correspond with the invoice thereof, is thereby expressly repealed. \nIn truth, however, there is not the slightest repugnancy between these sections of the act of 1830 and 1832, and the sixty-sixth section of the act of 1799. The former apply only to cases where there has been an opening and examination  of the packages imported, before they have passed from the custody of the  custom-house; and in the course of such examination, the fraudulent intent in the making up of the package or invoice has been detected; and, thereupon, it declares the same to be forfeited. Now, the sixty-sixth section of the act of 1799, may cover the same cases, but the forfeiture is the same; and, therefore, the provisions in such a case may well be deemed merely cumulative, and auxiliary to each other.But the sixty-sixth section is not confined to such cases; on the contrary, it covers all cases where the goods have been entered, and have passed from the custom-house without any examination or detection of the false invoices; it is, therefore, much more broad in its reach. To enforce a forfeiture under the sections of the acts of 1830 and 1832, it would be necessary to allege, in the information or libel, all the special circumstances of the examination and detection of the fraud, under the authority of the collector; for they constitute a part of the res gestae, to which the forfeiture is attached. But under the sixty-sixth section no such allegations would be necessary or proper, as the  forfeiture immediately attaches to every entry of goods falsely and fraudulently invoiced; without any reference whatever to the mode, or the circumstances under, or by which, it is ascertained. \nBesides, the sixty-sixth section not only provides for a forfeiture of the goods, but in the alternative, for a forfeiture of the value thereof, to be recovered of the person making the false entry. No such provision exists in the acts of 1830 or 1832. It is impossible, therefore, successfully to contend that the sixty-sixth section is repealed in toto, since no subsequent act covers all the cases provided for by it. It is, indeed, not a little singular that the argument that it is repealed by implication must found self upon the very ground that the present case is not covered by the other acts. It must in effect assert, that the repeal ought to be implied in all cases where the goods have passed from the custom-house without detection of the fraud, simply because if they had been examined, and the fraud detected there, they might, in that case, and in that case only, have been subjected to forfeiture, which would at most only establish a repeal pro tanto.In our opinion, there is no just  foundation for the argument, under any aspect. The provision in the sixty-sixth section is intended to suppress frauds upon the revenue. The other acts are designed  to be autiliary to the same important purpose -- there is no repugancy between the provisions; and to construe the latter as repealing the former, would be to construe provisions to aid in the detection of fraud, in such a manner as to promote fraud, by cutting down provisions of a far more general and important character, and essential to the security of the revenue.It seems to us that no Court of justice is at liberty to adopt such a mode of interpretation of the revenue laws, unless driven to it by a stern and irresistible necessity. \nThis reasoning might be expanded by a more minute comparison of the various acts of Congress with each other, and of the particular language used in each with reference to this subject. But, in our judgment, it is wholly unnecessary, because, after all, the whole question must rest upon the broad grounds already stated.We think the second instruction given by the District Judges entirely correct. \nThe three remaining instructions turn upon the point whether, under the circumstances,  the onus probandi as to the facts stated in those instructions was upon the claimant. Upon this we do not entertain the slightest doubt. The seventy-first section of the act of 1799, declares that, \"in actions, suits, or informations to be brought, where any seizure shall be made pursuant to this act, if the property be claimed by any person, in every such case, the onus probandi shall lie upon such claimant:; and it is afterwards added, \"but the onus probandi shall lie on the claimant only where probable cause is shown for the prosecution, to be judged of by the Court before whom the prosecution is had.\" \nProbable cause must, in this connection, mean  reasonable ground of presumption that the charge is, or may be, well founded; and we think, in this case, that there was abundance of proof not only to justify such a reasonable presumption, but to give it solid weight; and, in the absence of all countervailing evidence, which was completely within the reach of the claimant if the invoices were bona fide, to give it a force difficult to be resisted. Upon the whole, our opinion is, that there is no error in the judgment of the Circuit Court, affirming the judgment of the  District Court, and therefore it will be affirmed by this Court. \n \n\n ", " \nOpinion \n\n \n \n   Mr. Justice STORY delivered the opinion of the Court. \nThis is an appeal from the decree of the Circuit Court for the district of Maine, in a suit in equity, in which the appellants were the original defendants. After the decree was made, an appeal was claimed by all the defendants, and allowed by the Court. A part of the defendants who originally claimed the appeal before any further proceedings, abandoned their appeal; and the residue of them, excepting Todd, have, since the session of this Court, abandoned their appeal, and Todd only has entered his appearance. But the record stands in the names of all the defendants as parties appellant. Under these circumstances, the counsel for the appellee has moved the Court to dismiss the appeal for irregularity and want of jurisdiction, upon the ground that it cannot be maintained on behalf of Todd alone. \nThere is no doubt that the appeal having been deserted by all  the original defendants except Todd, it must be dismissed with costs as to them. But as to Todd, very different considerations must arise. He seeks to reverse the decree in the Court below, as erroneous in regard to himself; and the  question is, whether he is not entitled to maintain the appeal separately, for his own interest, although it is deserted by all the other defendants. We think that he is, otherwise an irreparable injury might be inflicted upon him by an erroneous decree, for which the law would not afford him any redress. The decree in this case is in fact against him as principal, and against the other defendants in aid of him, for distinct portions of the purchase-money received by them under the contract of sale made by Todd, and stated in the bill and answer. The decree may be entirely right in regard to the other defendants, and yet it may be erroneous as to Todd. He has, or at least may have, a distinct and independent interest in the controversy in respect to which he is entitled to be heard in this Court. \nThe proper rule in cases of this sort, where there are various defendants, seems to be that all the defendants affected by a joint decree, (although it may be otherwise, where the defendants have separate and distinct interests, and the decree is several, and does not jointly affect all,) should be joined in the appeal; and if any of them refuse or decline upon notice and process (in  the nature of a summons, and severance in a writ of error) to be issued in the Court below, to become parties to the appeal, then that the other defendants should be at liberty to prosecute the appeal for themselves and upon their own account; and the appeal as to the others be pronounced to be deserted, and the decree of the Court below as to them be proceeded in and executed. In the present case, what has occurred is equivalent to such proceedings. All the defendants originally claimed an appeal; some of them have declined to pursue it at all; others have deserted it since it was pending in this Court; and therefore, there is no pretence to say that any practical inconvenience can occur from Todd's now prosecuting it alone, and since the other defendants have all had notice and declined to interfere, and are content to abide by the original decree. \nIn the case of Coxe and Dick v. The United States, 6 Peters, 172, no doubt was entertained by this Court, that a writ of error might  be entertained by the defendants severally, where the judgment operated under the laws of Louisiana as a several as well as joint judgment, although they might have united in the writ of error;  and if any one choose not to prosecute it, the others might, upon a summons and severance, proceed alone. \nThe case of Owings v. Kincannon, 7 Peters, 399, seems to have been misunderstood at the bar. The objection in that case was not that one or more of the defendants might not pursue an appeal for their own interest, if the others refused to join in it upon due notice, and process for that purpose from the Circuit Court; but that it did not appear that all the defendants were not ready and willing to join in the appeal, and that the appeal was brought by some of the appellants without giving the others an opportunity of joining in it, for the protection of their own interests; not only against the appellee, but against the appellants, as their own interests might be distinct from, or even adverse to that of the appellants; and it was right and proper that all the parties should have an opportunity of appearing before the Court, so that one final decree, binding upon all the parties having a common interest, might be pronounced. \nUpon the whole, therefore, our opinion is, that the appeal must be dismissed with costs against all the defendants except Todd, and as to him it is to be  retained for a hearing upon the merits. \n \n\n ", " \nOpinion \n\n \n \n MR. JUSTICE STORY delivered the opinion of the court. \nThis is a petition filed in this court for a writ of habeas corpus to be awarded to bring up the body of the infant daughter of the petitioner, alleged to be now unlawfully debarred from him, and in the custody of Mrs. Mary Mercein, the grandmother of the said child, in the district of New York. The petitioner is a subject of the queen of Great Britain; and the application in effect seeks the exercise of original jurisdiction in the matter upon which it is founded.No application has been made to the Circuit Court of the United States for the district of New York, for relief in the premises, either by a writ of habeas corpus or de homine replegiando, or otherwise; and, or course, no case is presented for the exercise of the appellate jurisdiction of this court by any review of the final decision and award of the Circuit Court upon any such proceedings. Nor is any case presented for the  exercise of the appellate jurisdiction of this court upon a writ of error to the decision of the highest court of law and equity in the state of New York, upon the ground of any question arising under the 25th section of the Judiciary act of 1789, ch. 20. \nThe case, then, is one avowedly and nakedly for the exercise of original jurisdiction by this court. Now the Constitution of the United States has not confided any original jurisdiction to this court, except \"in all cases affecting ambassadors, other public ministers, and consuls, and those in which a state shall be a party.\" The present case falls not within either predicament. It is the case of a private individual who is an alien seeking redress for a supposed wrong done him by another private individual, who is a citizen of New York. It is plain, therefore, that this court has no original jurisdiction to entertain the present petition; and we cannot issue any writ of habeas corpus, except when it is necessary for the exercise of the jurisdiction, original or appellate, given to it by the Constitution or laws of the United States. Without, therefore, entering into the merits of the present application, we are compelled, by  our duty, to dismiss the petition, leaving the petitioner to seek redress  in such other tribunal of the United States as may be entitled to grant it. If the petitioner has any title to redress in those tribunals, the vacancy in the office of the judge of this court assigned to that circuit and district creates no legal obstruction to the pursuit thereof. \n \n\n ", " \nOpinion \n\n \n \n Mr. Justice STORY delivered the opinion of the court. \nWe entertain no doubt whatsoever upon this question. The amount in controversy is to be decided by the sum in controversy at the time of the judgment, and not by any subsequent additions thereto, such as interest. The distinction constantly maintained is this: Where the plaintiff sues  for an amount exceeding $2000, and the ad damnum exceeds $2000, if by reason of any erroneous ruling of the court below, the plaintiff recovers nothing, or less than $2000, there, the sum claimed by the plaintiff is the sum in controversy for which a writ of error will lie. But if a verdict is given against the defendant for a less sum than $2000, and judgment passes against him accordingly, there it is obvious that there is, on the part of the defendant, nothing in controversy beyond the sum for which the judgment is given; and consequently he is not entitled to any writ of error. We cannot look beyond the time of the judgment in order to ascertain whether a writ of error lies or not. \nORDER. \nMr. Ogden, of counsel for the defendant in error, moved the court to dismiss this writ of error for the want of jurisdiction, because the matters or sum in controversy, exclusive of costs, did not exceed $2000; which was opposed by Mr. Benedict, of counsel for the plaintiff in error, who contended that although the judgment of the Circuit  Court was only for $1720, yet that the interest on that sum added thereto would make it exceed $2000. To which Mr. Odgen rejoined, that the right  of the party to writ of error, was controlled by the amount at the rendition of the judgment and could not be enlarged by time. On consideration whereof, It is the opinion of this court that where the plaintiff in the court below claims $2000 or more, and the ruling of the court is for a less sum, that he is entitled to a writ of error: but that the defendant in the court below is not entitled to such writ where the judgment against him is for a less sum than $2000 at the time of the rendition thereof -- that this is the settled practice of this court. Whereupon it is now here ordered and adjudged by this court that this writ of error be and the same is hereby dismissed for the want of jurisdiction \nFebruary 3d. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the court. \nThis cause has been argued with great learning and ability. Many topics have been discussed in the arguments, as illustrative of the principal grounds of controversy, with elaborate care, upon which, however, in the view which we have taken of the merits of the cause, it is not necessary for us to express any opinion, nor even to allude to their bearing or application. We shall, therefore, confine ourselves to the exposition of those questions and principles which, in our judgment, dispose of the whole matters in litigation; so far at least as they are proper for the final adjudication of the present suit. \nThe late Stephen Girard, by his will dated the 25th day of December, A.D.  1830, after making sundry bequests to his relatives and friends, to the city of New Orleans, and to certain specified charities, proceeded in the 20th clause of that will to make the following bequest, on which the present controversy mainly hinges. \"XX. And whereas I have been for a long time impressed,\" &c. [See the statement prepared by the reporter.] \nThe testator then proceeded to give a minute detail of the plan and structure of the college, and certain rules and regulations for the due management and government thereof, and the studies to be pursued therein, \"comprehending reading, writing, grammar, arithmetic, geography, navigation, surveying, practical mathematics, astronomy, natural, chemical, and experimental philosophy, the  French and Spanish languages,\" (not forbidding but not recommending the Greek and Latin languages,) \"and such other learning and science as the capacities of the several scholars may merit or warrant.\" He then added, \"I would have them taught facts and things rather than words or signs; and especially I desire that by every proper means a pure attachment to our republican institutions, and to the sacred rights of conscience as guarantied  by our happy constitutions shall be formed and fostered in the minds of the scholars.\" \nThe persons who are to receive the benefits of the institution he declared to be, \"poor white male orphans between the ages of six and ten years; and no orphan should be admitted until the guardians or directors of the poor, or other proper guardian, or other competent authority, have given by indenture, relinquishment or otherwise, adequate power to the mayor, aldermen, and citizens of Philadelphia, or to directors or others by them appointed, to enforce in relation to each orphan every proper restraint, and to prevent relatives or others from interfering with, or withdrawing such orphan from the institution.\" The testator then provided for a preference, \"first, to orphans born in the city of Philadelphia; secondly, to those born in any other part of Pennsylvania; thirdly, to those born in the city of New York; and lastly, to those born in the city of New Orleans.\" The testator further provided that the orphan \"scholars who shall merit is, shall remain in the college until they shall respectively arrive at between fourteen and eighteen years of age.\" \nThe testator then, after suggesting that in  relation to the organization of the college and its appendages, he leaves necessarily many details to the mayor, aldermen, and citizens of Philadelphia, and their successors, proceeded to say: \"there are, however, some restrictions which I consider it may duty to prescribe, and to be, amongst others, conditions on which my bequest for said college is made and to be enjoyed, namely: First, I enjoin and require,\" &c. [See statement of the reporter.] This second injunction and requirement is that which has been so elaborately commented on at the bar, as derogatory to the Christian religion, and upon which something will be hereafter suggested in the course of this opinion. \nThe testator then bequeathed the sum of $500,000 to be invested, and the income thereof applied to lay out, regulate, and light and pave a passage or street in the east part of the city of Philadelphia, fronting the river Delaware, not less than twenty-one feet wide and to be called Delaware Avenue, &c.; and to this intent to obtain such  acts of Assembly,  and to make such purchases or agreements as will enable the mayor, aldermen, and citizens of Philadelphia to remove or pull down all the  buildings, fences, and obstructions, which may be in the way, and to prohibit all buildings, fences, or erections of any kind to the eastward of said avenue, &c., &c.; and he proceeded to give other minute directions touching the same. \nThe testator then bequeathed to the commonwealth of Pennsylvania the sum of $300,000 for the purpose of internal improvement by canal navigation, to be paid into the state treasury as soon as such laws shall be enacted by the legislature to carry into effect the several improvements before specified, and certain other improvements. \nThe testator then bequeathed the remainder of the residue of his personal estate in trust to invest the same in good securities, &c., so that the whole shall form a permanent fund, and to apply the income thereof to certain specified purposes, which he proceeds to name; and then said: \"To all which objects,\" &c. [See statement of the reporter.] \nThese are the material clauses of the will which seem necessary to be brought under our review in the present controversy. By a codicil dated the 20th of June, A.D. 1831, the testator made the following provision: \"Whereas I, Stephen Girard, the testator named in the foregoing  will and testament, dated February 16th, 1830, have since the execution thereof, purchased several parcels and pieces of land and real estate, and have built sundry messuages, all of which, as well as any real estate that I may hereafter purchase, it is my intention to pass by said will; and whereas, in particular, I have recently purchased from Mr. William Parker, the mansion-house, out-buildings, and forty-five acres and some perches of land, called Peel Hall, on the Ridge road, in Penn Township: Now, I declare it to be my intention, and I direct, that the orphan establishment, provided for in my said will, instead of being built as therein directed upon my square of ground between High and Chestnut and Eleventh and Twelfth streets, in the city of Philadelphia, shall be built upon the estate so purchased from Mr. W. Parker, and I hereby devote the said estate to that purpose, exclusively, in the same manner as I had devoted the said square, hereby directing that all the improvements and arrangements for the said orphan establishment, prescribed by my said will, as to said square, shall be made and executed upon the said estate, just as if I had in my will devoted the said estate  to said purpose -- consequently, the said square of ground is to constitute,  and I declare it to be a part of the residue and remainder of my real and personal estate, and given and devised for the same uses and purposes as are declared in section twenty of my will, it being my intention, that the said square of ground shall be built upon, and improved in such a manner as to secure a safe and nermanent income for the purposes stated in said twentieth section.\" The testator died in the same year; and his will and codicil were duly admitted to probate on the 31st of December of the same year. \nThe legislature of Pennsylvania passed the requisite laws to carry into effect the will, so far as respected the bequests of the $500,000 for the Delaware Avenue and the $300,000 for internal improvement by canal navigation, according to the request of the testator. \nThe present bill is brought by the heirs at law of the testator, to have the devise of the residue and remainder of the real estate to the mayor, aldermen, and citizens of Philadelphia in trust as aforesaid to be declared void, for the want of capacity of the supposed devisees to take lands by devise, or if capable of taking  generally by devise for their own use and benefit, for want of capacity to take such lands as devisees in trust; and because the objects of the charity for which the lands are so devised in trust are altogether vague, indefinite, and uncertain, and so no trust is created by the said will which is capable of being executed or of being cognisable at law or in equity, nor any trust-estate devised that can vest at law or in equity in any existing or possible cestui que trust; and therefore the bill insists that as the trust is void, there is a resulting trust thereof for the heirs at law of the testator; and the bill accordingly seeks a declaration to that effect and the relief consequent thereon, and for a discovery and account, and for other relief. \nThe principal questions, to which the arguments at the bar have been mainly addressed, are; First, whether the corporation of the city of Philadelphia is capable of taking the bequest of the real and personal estate for the erection and support of a college upon the trusts and for the uses designated in the will: Secondly, whether these uses are charitable uses valid in their nature and capable of being carried into effect consistently with  the laws of Pennsylvania: Thirdly, if not, whether, being void, the fund falls into the residue of the testator's estate, and belongs to the corporation of the city, in virtue of the residuary clause in the will; or it belongs, as a resulting or implied trust to the heirs and next of kin of the testator. \nAs to the first question, so far as it respects the capacity of the  corporation to take the real and personal estate, independently of the trusts and uses connected therewith, there would not seem to be any reasonable ground for doubt. The act of 32 and 34 Henry 8, respecting wills, excepts corporations from taking by devise; but this provision has never been adopted into the laws of Pennsylvania or in force there. The act of 11th of March, 1789, incorporating the city of Philadelphia, expressly provides that the corporation, thereby constituted by the name and style of the Mayor, Aldermen, and Citizens of Philadelphia, shall have perpetual succession, \"and they and their successors shall at all times for ever be capable in law to have, purchase, take, receive, possess, and enjoy lands, tenements and hereditaments, liberties, franchises and jurisdictions, goods, chattels,  and effects to them and their successors for ever, or for any other on less estate,\" &c., without any limitation whatsoever as to the value or amount thereof, or as to the purposes to which the same were to be applied, except so far as may be gathered from the preamble of the act, which recites that the then administration of government within the city of Philadelphia was in its form \"inadequate to the suppression of vice  and immorality, to the advancement of the public health and order, and to the promotion of trade, industry, and happiness, and in order to provide against the evils occasioned thereby, it is necessary to invest the inhabitants thereof with more speedy, rigorous, and effective powers of government than at present established.\" Some, at least, of these objects might certainly be promoted by the application of the city property or its income to them -- and especially the suppression of vice and immorality, and the promotion of trade, industry, and happiness. And if a devise of real estate had been made to the city directly for such objects, it would be difficult to perceive why such trusts should not be deemed within the true scope of the city charter and  protected thereby. \nBut without doing more at present than merely to glance at this consideration, let us proceed to the inquiry whether the corporation of the city can take real and personal property in trust. Now, although it was in early times held that a corporation could not take and hold real or personal estate in trust upon the ground that there was a defect of one of the requisites to create a good trustee, viz., the want of confidence in the person; yet that doctrine has been long since exploded as unsound, and too artificial; and it is now held, that where the corporation has a legal capacity to take real or personal estate, there it may take and hold it upon trust, in the same  manner and to the same extent as a private person may do. It is true that, if the trust be repugnant to, or inconsistent with the proper purposes for which the corporation was created, that may furnish a ground why it may not be compellable to execute it. But that will furnish no ground to declare the trust itself void, if otherwise unexceptionable; but it will simply require a new trustee to be substituted by the proper court, possessing equity jurisdiction, to enforce and perfect the  objects of the trust. This will be sufficiently obvious upon an examination of the authorities; but a single case may suffice. In Sonley v. The Clockmaker's Company, 1Bro. Ch. R. 81, there was a devise of freehold estate to the testator's wife for life, with remainder to his brother C. in tail male, with remainder to the Clockmaker's Company, in trust to sell for the benefit of the testator's nephews and nieces. The devise being to a corporation, was, by the English statute of wills, void, that statute prohibiting devises to corporations, and the question was, whether the devise being so void, the heir at law took beneficially or subject to the trust. Mr. Baron Eyre, in his judgment, said, that although the devise to the corporation be void at law, yet the trust is sufficiently created to fasten itself upon any estate the law may raise. This is the ground upon which courts of equity have decreed, in cases where no trustee is named. Now, this was a case not of a charitable devise, but a trust created for nephews and nieces; so that it steers wide from the doctrines which have been established as to devises to corporations for charities as appointments under the statute of 43 Elizabeth:  a fortiori, the doctrine of this case must apply with increased stringency to a case where the corporation is capable at law to take the estate devised, but the trusts are utterly dehors the purposes of the incorporation. In such a case, the trust itself being good, will be executed by and under the authority of a court of equity. Neither is there any positive objection in point of law to a corporation taking property upon a trust not strictly within the scope of the direct purposes of its institution, but collateral to them; nay, for the benefit of a stranger or of another corporation. In the case of Green v. Rutherforth, 1 Ves. R. 462, a devise was made to St. John's College in Cambridge of the perpetual advowson of a rectory in trust, that whenever the church should be void and his nephew be capable of being presented thereto, they should present him; and on the next avoidance should present one of his name and kindred, if there should be any one capable thereof in the college; if none such, they should present the  senior divine then fellow of the college, and on his refusal the next senior divine, and so downward; and, if all refused, they should present any other  person they should think fit. Upon the argument of the cause, an objection was taken that the case was not cognisable in a court of equity, but fell within the jurisdiction of the visitor. Sir John Strange (the Master of the Rolls) who assisted Lord Hardwicke at the hearing of the cause, on that occasion said: \"A private person would, undoubtedly, be compellabel to execute it (the trust;) and, considered as a trust, it makes do difference who are the trustees, the power of this court operating on them in the capacity of trustees. And though they are a collegiate body whose founder has given a visitor to superintend his own foundation and bounty; yet as between one claiming under a separate benefactor and these trustees for special purposes, the court will look on them as trustees only, and oblige them to execute it under direction of the court.\" Lord Hardwicke, after expressing his concurrence in the judgment of the Master of the Rolls, put the case of the like trust being to present no member of another college, and held that the court would have jurisdiction to enforce it. \nBut if the purposes of the trust be germane to the objects of the incorporation; if they relate to matters  which will promote, and aid, and perfect those objects; if they tend (as the charter of the city of Philadelphia expresses it) \"to the suppression of vice !iand immorality, to the advancement of the public health and order, and to the promotion of trade, industry, and happiness,\" where is the law to be found which prohibits the corporation from taking the devise upon such trusts, in a state where the statutes of mortmain do not exist, (as they do not in Pennsylvania,) the corporation itself having a legal capacity to take the estate as well by devise as otherwise? We know of no authorities which inclucate such a doctrine or prohibit the execution of such trusts, even though the act of incorporation may have for its main objects mere civil and municipal government and regulations and powers. If, for example, the testator by his present will had devised certain estate of the value of $1,000,000 for the purpose of applying the income thereof to supplying the city of Philadelphia with good and wholesome water for the use of the citizens, from the river Schuylkill, (an object which some thirty or forty years ago would have been thought to transcendant benefit,) why, although   not specifically enumerated among the objects of the charter, would not such a devise upon such a trust have been valid,  and within the scope of the legitimate purposes of the corporation, and the corporation capable of executing it as trustees? We profess ourselves unable to perceive any sound objection to the validity of such a trust; and we know of no authority to sustain any objection to it. Yet, in substance, the trust would be as remote from the express provisions of the charter as are the objects (supposing them otherwise maintainable) now under our consideration. In short, it appears to us that any attempt to narrow down the powers given to the corporation so as to exclude it from taking property upon trusts for purposes confessedly charitable and beneficial to the city or the public, would be to introduce a doctrine inconsistent with sound principles, and defeat instead of promoting the true policy of the state. We think, then, that the charter of the city does invest the corporation with powers and rights to take property upon trust for charitable purposes, which are not otherwise obnoxious to legal animadversion; and, therefore, the objection that it is incompetent  to take or administer a trust is unfounded in principle or authority, under the law of Pennsylvania. \nIt is manifest that the legislature of Pennsylvania acted upon this interpretation of the charter of the city, in passing the acts of the 24th of March, and the 4th of April, 1832, to carry into effect certain improvements and execute certain trusts, under the will of Mr. Girard. The preamble to the trust act, expressly states that it is passed \"to effect the improvements contemplated by the said testator, and to execute, in all other respects, the trusts created by his will,\" as to which, the testator had desired the legislature to pass the necessary laws. The tenth section of the same act, provides \"That it shall be lawful for the mayor, aldermen, and citizens of Philadelphia, to exercise all such jurisdiction, enact all such ordinances, and to do and execute all such acts and things whatsoever, as may be necessary and convenient for the full and entire acceptance, execution, and prosecution of any and all the devises, bequests, trusts, and provisions contained in the said will, &c., &c.; to carry which into effect,\" the testator had desired the legislature to enact the necessary  laws. But what is more direct to the present purpose, because it imports a full recognition of the validity of the devise for the erection of the college, is the provision of the 11th section of the same act, which declares \"That no road or street shall be laid out, or passed through the land in the county of Philadelphia, bequeathed by the late Stephen Girard for the erection of a college, unless the same shall be recommended by  the trustees or directors of the said college, and approved by a majority of the select and common councils of the city of Philadelphia.\" The other act is also full and direct to the same purpose, and provides \"That the select and common councils of the city of Philadelphia, shall be and they are hereby authorized to provide, by ordinance or otherwise, for the election or appointment of such officers and agents as they may deem essential to the due execution of the duties and trusts enjoined and created by the will of the late Stephen Girard.\" Here then, there is a positive authority conferred upon the city authorities to act upon the trusts under the will, and to administer the same through the instrumentality of agents appointed by them. No  doubt can then be entertained, that the legislature meant to affirm the entire validity of those trusts, and the entire competency of the corporation to take and hold the property devised upon the trusts named in the will. \nIt is true tha this is not a judicial decision, and entitled to full weight and confidence as such. But it is a legislative exposition and confirmation of the competency of the corporation to take the property and execute the trusts; and if those trusts were valid in point of law, the legislature would be estopped thereafter to contest the competency of the corporation to take the property and execute the trusts, either upon a quo warranto or any other proceeding, by which it should seek to devest the property, and invest other trustees with the execution of the trusts, upon the ground of any supposed incompetency of the corporation. And if the trusts were in themselves valid in point of law, it is plain that neither the heirs of the testator, nor any other private persons, could have any right to inquire into, or contest the right of the corporation to take the property, or to execute the trusts; but this right would exclusively belong to the state in its sovereign  capacity, and in its sole discretion, to inquire into and contest the same by a quo warranto, or other proper judicial proceeding. In this view of the matter, the recognition and confirmation of the devises and trusts of the will by the legislature, are of the highest importance and potency. \nWe are, then, led directly to the consideration of the question which has been so elaborately argued at the bar, as to the validity of the trusts for the erection of the college, according to the requirements and regulations of the will of the testator. That the trusts are of an eleemosynary nature, and charitable uses in a judicial sense, we entertain no doubt. Not only are charities for the maintenance  and relief of the poor, sick, and impotent, charities in the sense of the common law, but also donations given for the establishment of colleges, schools, and seminaries of learning, and especially such as are for the education of orphans and poor scholars. \nThe statute of the 43 of Elizabeth, ch. 4, has been adjudged by the Supreme Court of Pennsylvania not to be in force in that state.But then it has been solemnly and recently adjudged by the same court, in the case of Zimmerman  v. Andres, (January term, 1844,) that \"it is so considered rather on account of the inapplicability of its regulations as to the modes of proceeding, than in reference to its conservative provisions.\" \"These have been in force here by common usage and constitutional recognition; and not only these, but the more extensive range of charitable uses which chancery supported before that statute and beyond it.\" Nor is this any new doctrine in that court; for it was formally promulgated in the case of Witman v. Lex, 17 Serg. and Rawle, 88, at a much earlier period, (1827.) \nSeveral objections have been taken to the present bequest to extract is from the reach of  these decisions. In the first place, that the corporation of the city is incapable by law of taking the donation for such trusts.This objection has been already sufficiently considered. In the next place, it is said, that the beneficiaries who are to receive the benefit of the charity are too uncertain and indefinite to allow the bequest to have any legal effect, and hence the donation is void, and the property results to the heirs. And in support of this argument we are pressed by the argument that charities of such  an indefinite nature are not good at the common law, (which is admitted on all sides to be the law of Pennsylvania, so far as it is applicable to its institutions and constitutional organization and civil rights and privileges) and hence the charity fails; and the decision of this court in the case of the trustees of the Philadelphia Baptist Association v. Hart's Executors, 4 Wheat. R. 1, is strongly relied on as fully in point. There are two circumstances which materially distinguish that case from the one now before the court. The first is, that that case arose under the law of Virginia, in which state the statute of 43 Elizabeth, ch. 4, had been expressly and entirely abolished by the legislature, so that no aid whatsoever could be derived from its provisions to sustain the bequest.The second is, that the donees (the trustees) were an unincorporated association, which had no legal cpacity to take and hold the donation in succession for the purposes of the trust, and the beneficiaries also were uncertain and indefinite.  Both circumstances, therefore, concurred; a donation to trustees incapable of taking, and beneficiaries uncertain and indefinite. The court, upon  that occasion, went into an elaborate examination of the doctrine of the common law on the subject of charities, antecedent to and independent of the statute of 43 Elizabeth, ch. 4, for that was still the common law of Virginia. Upon a through examination of all the authorities and all the lights, (certainly in no small degree shadowy, obscure, and flickering,) the court came to the conclusion that, at the common law, no donation to charity could be enforced in chancery, where both of these circumstances, or rather, where both of these defects occurred. The court said: \"We find no dictum that charities could be established on such an information (by the attorney-general) where the conveyance was defective or the donation was so vaguely expressed that the donee, if not a charity, would be incapable of taking.\" In reviewing the authorities upon that occasion, much reliance was placed upon Collison's case, Hobart's Rep. 136; (S.C. cited Duke on Charities, by Bridgman, 368, Moore, R. 888,) and Platt v. St. John's College, Cambridge, Finch. Rep. 221; (S.C. 1 Cas. in Chan. R. 267, Duke on Charities, by Bridgman, 379,) and the case reported in 1 Chancery Cases, 134. But these cases, as  also Flood's case, Hob. R. 136, (S.C. 1 Equity Abridg. 95, pl. 6,) turned upon peculiar circumstances. Collison's case was upon a devise in 15 Henry 8, and was before the statute of wills. The other cases were cases where the donees could not take at law, not being properly described, or not having a competent capacity to take, so that there was no legal trustee; and yet the devises were held good as valid appointments under the statute of 43 Elizabeth. The dictum of Lord Loughborough in Attorney-General v. Bowyer, 3 Ves. 714, 726, was greatly relied on, where he says: \"It does not appear that this court at that period (that is before the statute of wills) had cognisance upon information for the establishment of charities. Prior to the time of Lord Ellesmere, as far as tradition in times immediately following goes, there were no such informations as this on which I am now sitting, (an information to establish a college under a devise before the statute of mortmain of 9 Geo. 2, ch. 36;) but they made out their case as well as they could at law.\" In this suggestion Lord Loughborough had under his consideration Porter's case, 1 Co. Rep. 16. But there a devise was made in 32 Henry  8, to the testator's wife, upon condition for her to grant the lands, &c., in all convenient speed after his decease  for the maintenance and continuance of a certain free-school, and almsmen and almswomen for ever. The heir entered for and after condition broken, and then conveyed the same lands to Queen Elizabeth in 34 of her reign; and the queen brought an information of intrusion against Porter for the land in the same year. One question was, whether the devise was not to a superstitious use, and therefore void under the act of 23 Henry 8, ch. 2, or whether it was good as a charitable use. And it was resolved by the court that the use was a good charitable use, and that the statute did not extend to it. So that here we have a plain case of a charity held good, before the statute of Elizabeth, upon the ground of the common law, there being a good devisee originally, although the condition was broken and the use was for charitable purposes in some respects indefinite. Now is there was a good devisee to take as trustee, and the charity was good at the common law, it seems somewhat difficult to say, why, if no legal remedy was adequate to redress it, the Court of Chancery  might not enforce the trust, since trusts for other specific purposes, were then, at least when there were designated trustees, within the jurisdiction of chancery. \nThere are, however, dicta of eminent judges, (some of which were commented upon in the case of 4 Wheat. R. 1,) which do certainly support the doctrine that charitable uses might be enforced in chancery upon the general jurisdiction of the court, independently of the statute of 43 of Elizabeth; and that the jurisdiction had been acted upon not only subsequent but antecedent to that statute. Such was the opinion of Sir Joseph Jekyll in Eyre v. Countess of Shaftsbury, (2 P. Will. R. 102, 2 Equity Abirdg. 710, pl. 2,) and that of Lord Northington in Attorney-General v. Tancred, 1 Eden, R. 10, (S. C. Ambler, R. 351, 1 Wm. Black. R. 90,) and that of Lord Chief Justice Wilmot in his elaborate judgment in Attorney-General v. Lady Downing, Wilmot's Notes, p. 1, 26, given after an examination of all the leading authorities. Lord Eldon, in the Attorney-General v. The Skinner's Company, 2 Russ. R. 407, intimates in clear terms his doubts whether the jurisdiction of chancery over charities arose solely under the statute of Elizabeth;  suggesting that the statute has perhaps been construed with reference to a supposed antecedent  jurisdiction of the court, by which void devises to charitable purposes were sustained. Sir John Leach, in the case of a charitable use before the statute of Elizabeth, (Attorney-General v. The Master of Brentwood School, 1 Mylne and Keen, 376,) said: \"Although at  his time no legal devise could be made to a corporation for a charitable use, yet lands so devised were in equity bound by a trust for the charity, which a court of equity would then execute.\" In point of fact the charity was so decreed in that very case, in the 12th year of Elizabeth. But what is still more important is the declaration of Lord Redesdale, a great judge in equity, in the Attorney-General v. The Mayor of Dublin, 1 Bligh R. 312, 347, (1827,) where he says: \"We are referred to the statute of Elizabeth with respect to charitable uses, as creating a new law upon the subject of charitable uses. That statute only created a new jurisdiction; it created no new law. It created a new and ancillary jurisdiction, a jurisdiction created by commission, &c.; but the proceedings of that commission were  made subject to appeal to the Lord Chancellor, and he might reverse or affirm what they had done, or make such order as he might think fit for reserving the controlling jurisdication of the Court of Chancery as is existed before the passing of that statute; and there can be no doubt that by information by the attorney-general the same thing might be done.\" He then adds, \"the right which the attorney-general has to file an information, is a right of prerogative. The king, as parens patriae, has a right, by his proper officer, to call upon the several courts of justice, according to the nature of their several jurisdictions, to see that right is done to his subjects who are incompetent to act for themselves, as in the case of charities and other cases.\" So that Lord Redesdale maintains the jurisdiction in the broadest terms, as founded in the inherent jurisdiction of chancery independently of the statute of 43 Elizabeth. In addition to these dicta and doctrines, there is the very recent case of the Incorporated Society v. Richards, 1 Drury and Warren R. 258, where Lord Chancellor Sugden, in a very masterly judgment, upon a full survey of all the authorities, and where the point was  directly before him, held the same doctrine as Lord Redesdale, and expressly decided that there is an inherent jurisdiction in equity in cases of charity, and that charity is one of those objects for which a court of equity has at all times interfered to make good that, which at law was an illegal or informal gift; and that cases of charity in courts of equity in England were valid independently of an previous to the statute of Elizabeth. \nMr. Justice Baldwin, in the case of the will of Sarah Zane, which was cited at the bar and pronounced at April term of the Circuit Court, in 1833, after very extensive and learned researches into the ancient English authorities and statutes, arrived at the same conclusion  in which the district judge, the late lamented Judge Hopkinson, concurred; and that opinion has a more pointed bearing upon the present case, since it included a full review of the Pennsylvania laws and doctrines on the subject of charities. \nBut very strong additional light has been thrown upon this subject by the recent publications of the Commissioners on the public Records in England, which contain a very curious and interesting collection of the chancery records  in the reign of Queen Elizabeth, and in the earlier reigns. Among these are found many cases in which the Court of Chancery entertained jurisdiction over charities long before the statute of 43 Elizabeth; and some fifty of these cases, extracted from the printed calendars, have been laid before us. They establish in the most satisfactory and conclusive manner that cases of charities where there were trustees appointed for general and indefinite charities, as well as for specific charities, were familiary known to, and acted upon, and enforced in the Court of Chancery. In some of these cases the charities were not only of an uncertain and indefinite nature, but, as far as we can gather from the imperfect statement in the printed records, they were also cases where there were either no trustees appointed, or the trustees were not competent to take. These records, therefore, do in a remarkable manner, confirm the opinions of Sir Joseph Jekyll, Lord Nothington, Lord Chief Justice Wilmot, Lord Redesdale, and Lord Chancellor Sugden. Whatever doubts, therefore, might properly be entertained upon the subject when the case of the Trustees of the Philadelphia Baptist Association v. Hart's  Executors, 4 Wheat. 1, was before this court, (1819,) those doubts are entirely removed by the late and more satisfactory sources of information to which we have alluded. \nIf, then, this be the true state of the common law on the subject of charities, it would, upon the general principle already suggested, be a part of the common law of Pennsylvania. It would be no answer to say, that if so it was dormant, and that no court prossessing equity powers now exists, or has existed in Pennsylvania, capable of enforcing such trusts. The tursts would nevertheless be valid in point of law; and remedies may from time to time be pplied by the legislature to supply the defects. It is no proof of the non-existence of equitable rights, that there exists no adequate legal remedy to enforce them. They may during the time slumber, but they are not dead. \nBut the very point of the positive existence of the law of charities in Pennsylvania, has been (as already stated) fully recognised and  enforced in the state courts of Pennsylvania, as far as their remedial process would enable these courts to act. This is abundantly established in the cases cited at the bar, and especially by the  case of Witman v. Lex, 17 Serg. and Rawle, 88, and that of Sarah Zane's will, before Mr. Justice Baldwin and Judge Hopkinson. In the former case, the court said \"that it is immaterial whether the person to take be in esse or not, whether the legatee were at the time of the bequest a corporation capable of taking or not, or how uncertain the objects may be, provided there be a discretionary power vested anywhere over the application of the testator's bounty to those objects; or whether their corporate designation be mistaken. If the intention sufficiently appears in the bequest, it would be valid.\" In the latter  case certain bequests given by the will of Mrs. Zane to the Yearly Meeting of Friends in Philadelphia, and unincorporated association, for purposes of general and indefinite charity, were, as well as other bequests of a kindred nature, held to be good and valid; and were enforced accordingly. The case then, according to our judgment, is completely closed in by the principles and authorities already mentioned, and is that of a valid charity in Pennsylvania, unless it is rendered void by the remaining objection which has been taken to it. \nThis objection is that  the foundation of the college upon the principles and exclusions prescribed by the testator, is derogatory and hostile to the Christian religion, and so is void, as being against the common law and public policy of Pennsylvania; and this for two reasons: First, because of the exclusion of all ecclesiastics, missionaries, and ministers of any sect from holding or exercising any station or duty in the college, or even visiting the same: and Secondly, because it limits the instruction to be given to the scholars to pure morality, and general benevolence, and a love of truth, sobriety, and industry, thereby excluding, by implication, all instruction in the Christian religion. \nIn considering this objection, the court are not at liberty to travel out of the record in order to ascertain what were the private religious opinions of the testator, (of which indeed we can know nothing,) nor to consider whether the scheme of education by him prescribed, is such as we ourselves should approve, or as is best adapted to accomplish the great aims and ends of education. Nor are we at liberty to look at general considerations of the supposed public interests and policy of Pennsylvania upon this subject,  beyond what its constitution and laws and judicial decisions make known to us. The question, what  is the public policy of a state, and what is contrary to it, if inquired into beyond these limits, will be found to be one of great vagueness and uncertainty, and to involve discussions which scarcely come within the range of judicial duty and functions, and upon which men may and will complexionally differ; above all, when that topic is connected with religious polity, in a country composed of such a variety of religious sects as our country, it is impossible not to feel that it would be attended with almost insuperable difficulties, and involve differences of opinion almost endless in their variety. We disclaim any right to enter upon such examinations, beyond what the state constitutions, and laws, and decisions necessarily bring before us. \nIt if also said, and truly, that the Christian religion is a part of the common law of Pennsylvania. But this proposition is to be received with its appropriate qualifications, and in connection with the bill of rights of that state, as found in its constitution of government. The constitution of 1790, (and the like provision will,  in substance, be found in the constitution of 1776, and in the existing constitution of 1838,) expressly declares, \"That all men have a natural and indefasible right to worship Almighty God according to the dictates of their own consciences; no man can of right be compelled to attend, erect, or support any place of worship, or to maintain any ministry against his consent; no human authority can, in any case whatever, control or interfere with the rights of conscience; and no preference shall ever be given by law to any religious establishments or modes of worship.\" Language more comprehensive for the complete protection of every variety of religious opinion could scarcely be used; and it must have been intended to extend equally to all sects, whether they believed in Christianity or not, and whether they were Jews or infidels. So that we are compelled to admit that although Christianity be a part of the common law of the state, yet it is so in this qualified sense, that its divine origin and truth are admitted, and therefore it is not to be maliciously and openly reviled and blasphemed against, to the annoyance of believers or the injury of the public. Such was the doctrine of the  Supreme Court of Pennsylvania in Updegraff v. The Commonwealth, 11 Serg. and Rawle, 394. \nIt is unnecessary for us, however, to consider what would be the legal effect of a devise in Pennsylvania for the establishment of a school or college, for the propagation of Judaism, or Deism, or any other form of infidelity. Such a case is not to be presumed to exist in a Christian country; and therefore it must be made out by clear  and indisputable proof. Remote inferences, or possible results, or speculative tendencies, are not to be drawn or adopted for such purposes. There must be plain, positive, and express provisions, demonstrating not only that Christinanity is not to be taught; but that it is to be impugned or repudiated. \nNow, in the present case, there is no pretence to say that any such positive or express provisions exist, or are even shadowed forth in the will. The testator does not say that Christianity shall not be taught in the college.But only that no ecclesiastic of any sect shall hold or exercise any station or duty in the college. Suppose, instead of this, he had said that no person but a layman shall be an instructor or officer or visitor in the college,  what legal objection could have been made to such a restriction? And yet the actual prohibition is in effect the same in substance. But it is asked; why are ecclesiastics excluded, if it is not because they are the stated and appropriate preachers of Christianity? The answer may be given in the very words of the testator. \"In making this restriction,\" says he, \"I do not mean to cast any reflection upon any sect or person whatsoever. But as there is such a multitude of sects and such a diversity of opinion amongst them, I desire to keep the tender minds of the orphans, who are to derive advantage from this bequest, free from the excitement which clashing doctrines and sectarian controversy are so apt to produce.\" Here, then, we have the reason given; and the question is not, whether it is satisfactory to us or not; nor whether the history of religion does or does not justify such a sweeping statement; but the question is, whether the exclusion be not such as the testator had a right, consistently with the laws of Pennsylvania, to maintain, upon his own notions of religious instruction. Suppose the testator had excluded all religious  instructors but Catholics, or Quakers,  or Swedenborgians; or, to put a stronger case, he had excluded by religious instructors but Jews, would the bequest have been void on that account? Suppose he had excluded all lawyers, or all physicians, or all merchants from being instructors or visitors, would the prohibition have been fatal to the bequest? The truth is,that in cases of this sort, it is extremely difficult to draw any just and satisfactory line of distinction in a free country as to the qualifications or disqualifications which may be insisted upon by the donor of a charity as to those who shall administer or partake of his bounty. \nBut the objection itself assumes the proposition that Christianity  is not to be taught, because ecclesiastics are not to be instructors or officers. But this is by no means a necessary or legitimate inference from the premises. Why may not laymen instruct in the general principles of Christianity as well as ecclesiastics. There is no restriction as to the religious opinions of the instructors and officers. They may be, and doubtless, under the auspices of the city government, they will always be, men, not only distinguished for learning and talent, but for piety and elevated  virtue, and holy lives and characters. And we cannot overlook the blessings, which such men by their conduct, as well as their instructions, may, nay must impart to their youthful pupils. Why may not the Bible, and especially the New Testament, without note or comment, be read and taught as a divine revelation in the college -- its general precepts expounded, its evidences explained, and its glorious principles of morality inculcated? What is there to prevent a work, not sectarian, upon the general evidences of Christianity, from being read and taught in the college by lay-teachers? Certainly there is nothing in the will, that proscribes such studies. Above all, the testator positively enjoins, \"that all the instructors and teachers in the college shall take pains to instil into the minds of the scholars the purest principles of morality, so that on their entrance into active life they may from inclination and habit evince benevolence towards their fellow-creatures, and a love of truth, sobriety, and industry, adopting at the same time such religious tenets as their matured reason may enable them to prefer.\" Now, it may well be asked, what is there in all this, which is positively  enjoined, inconsistent with the spirit or truths of Christianity? Are not these truths all taught by Christianity, although it teaches much more? Where can the purest principles of morality be learned so clearly or so perfectly as from the New Testament? Where are benevolence, the love of truth, sobriety, and industry, so powerfully and irresistibly inculcated as in the sacred volume? The testator has not said how these great principles are to be taught, or by whom, except it be by laymen, nor what books are to be used to explain or enforce them. All that we can gather from his language is, that he desired to exclude sectarians and sectarianism from the college, leaving the instructors and officers free to teach the purest morality, the love of truth, sobriety, and industry, by all apropriate means; and of course including the best, the surest, and the most impressive. The objection, then, in this view, goes to this, -- either that the testator has totally omitted to provide for religious instruction in his  scheme of education, (which, from what has been already said, is an inadmissible interpretation,) or that it includes but partial and imperfect instruction in those  truths. In either view can it be truly said that it contravenes the known law of Pennsylvania upon the subject of charities, or is not allowable under the article of the bill of rights already cited? Is an omission to provide for instruction in Christinanity in any scheme of school or college education a fatal defect, which avoids it assording to the law of Pennsylvania? If the instruction provided for is incomplete and imperfect, is it equally fatal? These questions are propounded, because we are not aware that any thing exists in the constitution or laws of Pennsylvania, or the judicial decisions of its tribunals, which would justify us in pronouncing that such defects would be so fatal. Let us take the case of a charitable donation to teach poor orphans reading, writing, arithmetic, geography, and navigation, and excluding all other studies and instruction; would the donation be void, as a charity in Pennsylvania, as being deemed derogatory to Christianity? Hitherto it has been supposed, that a charity for the instruction of the poor might be good and valid in England even if it did not go beyond the establishment of a grammar-school. And in America, it has been thought, in  the absence of any express legal prohibitions, that the donor might select the studies, as well as the classes of persons, who were to receive his bounty without being compellable to make religious instruction a necessary part of those studies. It has hitherto been thought sufficient, if he does not require any thing to be taught inconsistent with Christianity. \nLooking to the objection therefore in a mere juridical view, which is the only one in which we are at liberty to consider it, we are satisfied that there is nothing in the devise establishing the college, or in the regulations and restrictions contained therein, which are inconsistent with the Christian religion, or are opposed to any known policy of the state of Pennsylvania. \nThis view of the whole matter renders it unnecessary for us to examine the other and remaining question, to whom, if the devise were void, the property would belong, whether it would fall into the residue of the estate devised to the city, or become a resulting trust for the heirs at law. \nUpon the whole, it is the unanimous opinion of the court, that the decree of the Circuit Court of Pennsylvania dismissing the bill, ought to be affirmed, and it is  accordingly affirmed with costs. \n ORDER. \nThis cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the eastern district of Pennsylvania, and was argued by counsel.On consideration whereof, If is now here ordered, adjudged, and decreed by this court, that the decree of the said Circuit Court, in this cause be, and the same is hereby affirmed with costs. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the court. \nThis is a writ of error to the Circuit Court of the United States for the southern district of Mississippi. \n The original action was brought by the bank of Memphis, alleging the stockholders to be citizens of Tennessee, against the plaintiffs in error, (the original defendants,) alleging them to be citizens of Mississippi; and it was founded upon a promissory note made by Dromgoole and Turnbull, (two of the defendants,) dated at Princeton, Washington county, Mississippi, May 17th, 1838, whereby on the 1st of January, 1839, they, or either of them promised to pay to the order of Briggs, Lacoste and Co., $2899 50, for value recived, payable and negotiable at the Planters' Bank of Mississippi, at Natchez. The declaration alleged title in the bank to the note by the endorsement of the payees, Lacoste using the name and description of Briggs, Lacoste and Co. to them; and the suit was brought jointly against both the maker and  the payee, in conformity to a statute of Mississippi, authorizing such a proceeding. The defendants pleaded that they are citizens of Mississippi, and that the persons composing the firm of Briggs, Lacoste and Co. were, and yet are citizens and residents of Mississippi, and were so at the time of the supposed transfer and delivery of the promissoary note to the bank. To this plea there was a demurrer and joinder, on which the Circuit Court gave judgment for the bank; and the present writ of error is brought to revise that judgment. \nThe 11th section of the Judiciary act of 1789, ch. 20, provides, \"Nor shall any district or circuit court have cognisance of any suit to recover the contents of any promissory note, or alter those in action in favour of an assignee, unless the suit might have been prosecuted in such court to recover the said contents, if no assignment had been made, except in cases of foreign bills of exchange.\" Now, the present case falls directly within the prohibition of this clause. The suit is brought by the plaintiffs to recover the contents of a promissory note of which they are the endorsees of the payee, and the payee and the makers are all citizens of Mississippi.  The ground on which the original judgment was given, probably, was that the statute of Mississippi required all the parties to the note to be joined in the suit; and as all the plaintiffs were citizens of Tennessee, and all the defendants citizens of Mississippi, it was a case falling directly within the general provisions of the 11th section of the Judiciary act of 1789, ch. 20, which gives jurisdiction to the Circuit Court in cases where \"the suit is between a citizen of the state where the suit is brought, and a citizen of another state.\" But it has been already decided by this court, that the statute of Mississippi is of no force or effect in the  courts of the United States, and that independently of that statute no such joint action is by law maintainable. This was decided in Keary v. The Farmers' and Merchants' Bank of Memphis, 16 Peters, 89. The other point, that the case falls within the prohibition of the 11th section of the Judiciary act of 1789, ch. 20, was as fully recognised by this court in Gibson and Martin v. Chew, 16 Peters, 315. \nThere is nothing then in the present case which is open for argument. The judgment of the Circuit Court of the southern district  of Mississippi is, therefore, reversed, and the cause remanded to that court with directions to enter a judgment for the defendants. \nORDER. \nThis cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the southern district of Mississippi, and was argued by counsel. On consideration whereof, It is now here ordered and adjudged by this court, that the judgment of the said Circuit Court, in this cause be, and the same is hereby reversed with costs, and that this cause be, and the same is hereby remanded to the said Circuit Court, with directions to that court to enter judgment for the defendants. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the court. \nThis is the case of a writ of error to the Circuit Court of the United States for the southern district of Alabama. \nThe original action was assumpsit brought by Stewart (the defendant in error) as administrator of Alexander Grant, who was the surviving partner of the firm of Grant and McGuffie, against Murphy and Darrington as administrators of Matheson upon a certain note and due-bill made and signed by Matheson in his lifetime. The note was as follows: \"Charleston, 30th Sept., 1818. Four months after date I promise to pay Grant and McGuffie, or order, three thousand four hundred  and twenty-eight dollars, eighteen cents, value received.\" The due-bill was as follows: \"Charleston, 25th February, 1820. Due to Grant and McGuffie or bearer, on demand, three hundred and forty-four dollars sixty-six cents, with interest from date.\" The note was endorsed in blank, \"Grant and McGuffie.\" \nThe declaration contained two counts. The first count is by Stewart as administrator upon both instruments, and upon promises made by Matheson in his lifetime, and by his administrators since his decease, to pay him (Stewart) as administrator. The second is upon both instruments, stating the note to have been endorsed  by Grant and McGuffie to him, (Stewart,) and the due-bill to have been transferred  to him by delivery. So that in legal effect he claimed in the first count as administrator, and in the second in his own personal right. At the trial (for it is unnecessary to state the pleadings) the jury found a general verdict for the plaintiff, upon both counts, at the November term of the court, 1840. And at the same term a motion was made in arrest of judgment for the misjoinder of the counts, which motion was sustained, and thereupon it was ordered by  the court that the judgment be arrested. At the November term of the court, 1841, a motion was made to set aside the order in arrest of judgment, and for leave to amend the verdict so that the same might be entered upon the first count, and a nolle prosequi entered upon the other count. In support of this motion, an affidavit was made by the plaintiff's counsel, that the only evidence effered at the trial by the plaintiff was the deposition of Chapman Levy, Jacob Axon, and McKenzie, and the note and due-bill which were on the files of the court; and that no evidence was offered by the defendants; and that the cause went to the jury upon the above depositions of the plaintiff alone. Upon this evidence after notice to and hearing the counsel for the defendants, who offered no evidence in opposition to the motion, the court made an order, vacating the order in arrest of judgment, and allowing the verdict to be amended by entering the same on the first count, and that judgment be entered upon that count nunc pro tunc for the plaintiff. Judgment was accordingly entered thereon; and from that judgment the present writ of error has been brought. \nThe main question which has been  argued is, whether the court had authority to make the amendment at the time and under the circumstances stated in the record. It is observable that there was no judgment in the present case originally entered, that the plaintiff takes nothing by his writ, non obstante veredicto; but a simple order passed arresting the judgment, which suspended all further proceedings until the court should put them again in motion, but still left the cause pending in the court. It is a case, therefore, in a far more favourable position for the exercise of the power of amendment, than it would have been if final judgment had passed against the plaintiff, or if judgment had passed for the plaintiff, and a writ of error had been brought to reverse it; for in the latter case not only is the writ of error deemed in law a new action; 1 but in contemplation of law the record itself is supposed to be removed from the court below. \n And first, as to the time of making the amendment. It i said that it should have been either at the term when the order for the arrest of judgment was made, or at the farthest at the next succeeding May term of  the court; and it was too late to make it a whole year afterwards. But there is no time absolutely fixed, within which such an amendment should be moved. All that the court requires is that is should be done within a reasoanble time; and when no such change of circumstances shall have occurred as to render it inconvenient or inexpedient. Nothing is more common than motions to amend the record after a writ of error has been brought; nay after a writ of error has been argued in the court above, and sometimes even after judgment in the court of error, pending its session. Especially in cases of misjoinder of counts, which are incompatible with each other, as well as in cases where there are several counts, some of which are bad and some good, and a general veredict allowed to be plaintiff, such applications, when made within a reasoanble time, are usually granted after error brought and the verdict allowed to be amended so as to be entered upon the good counts, or upon the counts no incompatible with each other. This is most usually done upon the judge's notes of the evidence at the trial, establishing upon what counts the evidence was in fact given or to which it was properly addressed  or limited. But it may be done upon any other evidence equally clear and satisfactory, which may be submitted to the consideration of the court. In the present case we know from the most authentic sources contained in the record itself, and not disputed by any one, the whole evidence which was given at the trial. The case, therefore, falls directly within the range of the principles above stated. The practice is a most salutary one, and is in furtherance of justice and to prevent the manifest mischiefs from mere slips of counsel at the trial, having nothing to do with the real merits of the case. The authority to allow such amendments is very broadly given to the courts of the United States by the 32d section of the Judiciary act of 1789, ch. 20, and quite as broadly, to say the least, as it is possessed by any other courts in England or America; and it is upheld upon principles of the soundest protective public policy. \nWithout citing the authorities at large, which are very numerous upon this point, it will be sufficient to state a few only which are the most full and direct to the purpose. In Eddowes v. Hopkins, 1 Doug. R. 376, there was a general verdict on a declaration  consisting  of different counts, some of which were inconsistent in point of law, it was held that as evidence had only been given upon the consistent counts, the verdict might be amended by the judge's notes at the trial. The same point was decided in Harris v. Davis, 1 Chitty, Rep. 625. In William's Exec. v. Breedon, 1 Bos. and Pull. 329, where a general verdict was given on two counts, one of which was bad, and it appeared by the judge's notes that the jury calculated the damages in evidence applicable to the good count only, the court allowed the verdict to be amended and entered on the good count only, though evidence was given applicable to the bad count also. In Doe v. Perkins, 3 Term R. 749, the court allowed the verdcit to be amended after error brought and joinder in error by striking out certain words from the postea. An objection was on that occasion taken that the amendment could not be made after the expiration of one term after the trial. But the court said that there was no foundation for this objection; for that according to the pratice of amending by the judge's notes, which was of infinite utility to suitors, and was as ancient as the time of Charles  the First, the amendment might be made at any time. In Henry v. The Mayor, &c. of Lyme Regis, 6 Bing. R. 100,  a verdict had been taken by consent on two counts, and upon application the court amended the postea, by entering it in one count to which the evidence applied, there being in fact but one cause of action, although the judge, who presided at the trial, declined to interfere. In Richardson v. Mellish, 3 Bing. R. 334, S.C. in error, 7 Barn. and Cress. 819, where a general verdict was given on ad eclaration, some of the counts of which were bad, the court allowed the postea to be amended, and entered up judgment upon single count after argument in error; and the court in error sanctioned the proceeding. In Harrison v. King, 3 Barn. and Ald. 161, there was a general verdict for the plaintiff, and an application was made to the court to amend the verdict on the judge's notes after the lapse of eight years, and after the judgment had been reversed upon error; but the court refused it upon the ground of the long delay. In Clarke v. Lamb, 8 Pick. R. 415, the Supreme Court of Massachusetts, after a general review of the authorities, allowed the verdict to be amended  upon the judge's notes. 2 \nWe think then that the objection taken at the bar to the amendment and entry of the judgment is not maintainable, and that the  court acted within its rightful authority and jurisdiction in the allowance thereof. \nAnother objection, rather suggested than insisted on, it, that there is no profect of the letters of administration. Whether that would constitute any objection whatsoever, in the state of Alabama, is a matter purely of local practice and proceedings. It is well known that in many states of the union no profert of such letters is ever made, as, for example, in Massachusetts and other New England states. But the objection, if it has any foundation, is undoubtedly cured by the veridct. \nAnother objection is, that the first count does not sufficiently allege a partnership between Grant and McGuffie, nor that Grant was the survivor of them. We think otherwise. The first count in the amended record brought upon the certiorari is by Stewart as administrator of Grant, and it states in the introductory part that he was the survivor of McGuffie, late merchants trading under the firm of Grant  and McGuffie; and alleges promises by Matheson to them in their lifetime, and by Matheson in his lifetime and by his administrators to the plaintiff to pay the sums of money stated in the count, and alleges as a breach the non-payment thereof, either to Grant and McGuffie in their lifetime or to the plaintiff since their decease. The count certainly is not drawn with entire technical precision and accuracy; but after verdict it must be taken to be sufficient for all the purposes of substantial justice. \nBut then it is said, that if the first count is good, still the evidence offered at the trial was not sufficient to establish any partnership between Grant and McGuffie; and if the evidence did establish any case, it was a case within the scope of the second count and not of the first. We think neither branch of the objection is maintainable.There was certainly evidence enough to go to the jury on this point, and the very instrument on which the suit was brought, prima facie, imported a partnership at least in these transactions; and the jury, by their verdict, must be presumed to have found the fact in the affirmative. In the next place, although the note was endorsed in blank by  Grant and McGuffie, that endorsement was no proof that the interest on the same had passed to Stewart, as alleged in the second count, and the possession of the due-bill by Stewart was no necessary proof that he held it as owner in his own right. For aught that appears, he may have held them both solely in his capacity as administrator; and he had a right, and the sole right, to say in which  capacity he elected to hold, as owner, or as administrator. He has elected the latter; and the evidence is sufficient to establish that right, prima facie. Besides, it can be of no concern to the plaintiff in error on which count the verdict is taken, for in either case it is equally a good foundation for a valid judgment against him, to the extent of the sums due thereon. \nThere is yet another view of this matter. The question of the amendment was a question of discretion in the court below upon its own review of the facts in evidence; and we know of no right or authority in this court upon a writ of error to examine such a question, or the conclusion to which the court below arrived upon a survey of the facts, which seem to us to have belonged appropriately and exclusively to that  court. \nUpon the whole, in our opinion there is no error of the court below in the amendment and proceedings complained of, and the judgment is therefore affirmed with costs. \nORDER. \nThis cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the southern district of Alabama, and was argued by counsel. On consideration whereof, It is now here ordered and adjudged by this court, that the judgment of the said Circuit Court, in this cause be, and the same is hereby affirmed with costs and damages at the rate of six per cent. per annum. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the  court. \nThis is an appeal from a decree of the Circuit Court of the United States for the district of Maryland, sitting in admiralty, and affirming a decree of the District. Court rendered upon an information in rem, upon a seizure brought for a supposed violation of the act of the 3d of March, 1819, ch. 75, (ch. 200,) to protect the commerce of the United States, and to punish the crime of piracy. The information originally contained five counts, each asserting a piratical aggression and restraint on the high seas upon a different vessel: one, the Madras, belonging to British subjects; another, the Sullivan, belonging to American citizens; another, the Emily Wilder, belonging to American citizens; another, the Albert, belonging to British subjects; and another upon a vessel whose name was unknown, belonging to Portuguese subjects; and this last count contained also an allegation of a piratical depredation. The Malek Adhel and cargo were claimed by the firm of Peter Harmony and Co., of New York, as their property, and the answer denied the whole gravamen of the information. At the hearing in the District Court, the vessel was condemned and the cargo acquitted, and the costs were  directed to be a charge upon the property condemned.An appeal was taken by both parties to the Circuit Court; and upon leave obtained, two additional counts were there filed, one alleging a piratical aggression, restraint, and depredation upon a vessel belonging to Portuguese subjects, whose name was unknown, in a hostile manner and with intent to destroy  and plunder the vessel, in vilation of the law of nations; and another alleging an aggression by discharge of cannon and restraint upon a British vessel called the Alert, or the Albert, in a hostile manner, and with intent to sink and destroy the same vessel, in violation of the law of nations. Upon the hearing of the cause in the Circuit Court, the decree of the District Court was affirmed; and from that decree an appeal has been taken by both parties to this court. \nIt was fully admitted in the court below, that the owners of the brig and cargo never contemplated or authorized the acts complained of; that the brig was bound on an innocent commercial voyage from New York to Guayamas, in California; and that the equipments on board were the usual equipments for such a voyage. It appears from the evidence that the brig  sailed from the port of New York  on the 30th of June, 1840, under the command of one Joseph Nunez, armed with a cannon and ammunition, and with pistols and daggers on board. The acts of aggression complained of, were committed at different times under false pretences, and wantonly and wilfully without provocation or justification, between the 6th of July, 1840, and the 20th of August, 1840, when the brig arrived at Bahia; where, in consequence of the information given to the American consul by the crew, the brig was seized by the United States ship Enterprize, then at that port, and carried to Rio Janeiro, and from thence brought to the United States. \nThe general facts are fully stated in a deposition of one John Myers, the first mate of the Malek Adhel; and his testimony is corroborated by the other evidence in the cause, in its main outlines and details. The narrative, although long, cannot be better given than in his own words. He says, among other things, \"On Tuesday, the 30th of June,\" [Here the judge read a part of the evidence of Myers, which is set forth in the statement of the case by the reporter.] \nNow upon this posture of the case, it has been contended,  1st. That the brig was not an armed vessel in the sense of the act of Congress of 1819, ch. 75, (ch. 200.) 2. That the aggressions, restraints, and depredations disclosed in the evidence were not piratical within the sense of the act. 3. That if the case in both respects is brought within the scope of the act, still neither the brig nor the cargo are liable to condemnation, because the owners neither participated in nor authorized the piratical acts, but are entirely innocent thereof. 4. That if the brig is so liable to condemnation, the cargo is not, either under the act of Congress or by the law of nations. \n We shall address ourselves accordingly to the consideration of each of these grounds of defence. The act of 1819, ch. 75, (ch. 200,) provides, in the first section, that the President is authorized and requested to employ the public armed ships of the United States with suitable instructions \"in protecting the merchant ships of the United States and their crews from piratical aggressions and depredations.\" By the second section the commanders of such armed vessels are authorized \"to subdue, seize, take, and send into any port of the United States any vessel  or boat, or any vessel or boat the crew whereof shall be armed, and which shall have attempted or committed any piratical aggression, search, restraint, depredation, or seizure upon any vessel of the United States, or of the citizens of the United States, or upon any other vessel,\" &c. By the third section it is provided \"that the commander and crew of any merchant vessel owned wholly or in part by a citizen thereof, may oppose and defend against any aggression, search, restraint, depredation, or seizure, which shall be attempted upon such vessel, or upon any other vessel owned as aforesaid by the commander or crew of any other armed vessel whatsoever, not being a public armed vessel of some nation in amity with the United States, and may subdue and capture the same,\" &c. Then comes the fourth section, (upon which the five counts of the original information are founded,) which is as follows, \"That whenever any vessel or boat from which any piratical aggression, search, restraint, depredation, or seizure shall have been first attempted or made, shall be captured and brought into any port of the United States, the same shall and may be adjudged and condemned to their use and that of  the captors, after due process and trial in any court having admiralty jurisdiction, and which shall be holden for the district into which such captured vessel shall be brought; and the same court shall thereupon order a sale and distribution thereof accordingly, and at their discretion.\" The fifth section declares, that any person who shall on the high seas commit the crime of piracy as defined by the law of nations, shall, upon conviction thereof, be punished with death. \nSuch are the provisions of the act of 1819, ch. 75, (ch. 200.) And it appears to us exceedingly clear, that the Malek Adhel is an \"armed vessel\" within the true intent and meaning of the act. No distinction is taken, or even suggested in the act, as to the objects, or purposes, or character of the armament, whether it be for offence or defence, legitimate or illegitimate. The policy as well as the words  of the act equally extend to all armed vessels which commit the unlawful acts specified therein. And there is no ground, either of principle or authority, upon which we are at liberty to extract the present case from the operation of the act. \nThe next question is whether the acts complained of are  piratical within the sense and purview of the act. The argument for the claimants seems to suppose, that the act does not intend to punish any aggression, which, if carried into complete execution, would not amount to positive piracy in contemplation of law. That it must be mainly, if not exclusively, done animo furandi, or lucri causa; and that it must unequivocally demonstrate that the aggression is with a view to plunder, and not for any other purpose, however hostile or atrocious or indispensable such purpose may be. We cannot adopt any such narrow and limited interpretation of the words of the act; and in our judgment it would manifestly defeat the objects and policy of the act, which seems designed to carry into effect the general law of nations on the same subject in a just and appropriate manner. Where the act uses the word \"piratical,\" it does so in a general sense; importing that the aggression is unauthorized by the law of nations, hostile in its character, wanton and criminal in its commission, and utterly without any sanction from any public authority or sovereign power. In short, it means that the act belongs to the class of offences which pirates are in the habit  of perpetrating, whether they do it for purposes of plunder, or for purposes of hatred, revenge, or wanton abuse of power. A pirate is deemed, and properly deemed, hostis humani generis. But why is he so deemed? Because he commits hostilities upon the subjects and property of any or all nations, without any regard to right or duty, or any pretence of public authority. If he wilfully sinks or destroys an innocent merchant ship, without any other object than to gratify his lawless appetite for  mischief, it is just as much a piratical aggression, in the sense of the law of nations, and of the act of Congress, as if he did it solely and exclusively for the sake of plunder, lucri causa. The law looks to it as an act of hostility, and being committed by a vessel not commissioned and engaged in lawful warfare, it treats it as the act of a pirate, and of one who is emphatically hostis humani generis. We think that the aggressions established by the evidence bring the case completely within the prohibitions of the act; and if an intent to plunder were necessary to be established, (as we think it is not,) the acts of aggression and hostility and plunder committed on the   Portuguese vessel are sufficient to establish the fact of an open although petty plunderage. \nBesides, the argument interprets the act of Congress as though it contained only the word \"depredation,\" or at least coupled aggression and depredation as concurrent and essential circumstances to bring the case within the penal enactment of the law. But the act has no such limitations or qualifications. It punishes any piratical aggression or piratical search, or piratical restraint, or piratical seizure, as well as a piratical depredation. Either is sufficient. The search or restraint may be piratical although no plunder follows, or is found worth carrying away. What Captain Nunez designed under his false and hollow pretences and excuses it may not be easy to say, with exact confidence or certainty. It may have been to train his crew to acts of wanton and piratical mischief, or to seduce them into piratical enterprises. It may have been from a reckless and wanton abuse of power, to gratify his own lawless passions. It could scarcely have been from mental hallucinations; for there was too much method in his mad projects to leave any doubt that there was cunning and craft and worldly  wisdom in his course, and that he meditated more than he chose to explain to his crew. They never suspected or accused him of insanity, although they did of purposes of fraud. \nThe next question is, whether the innocence of the owners can withdraw the ship from the penalty of confiscation under the act of Congress. Here, again, it may be remarked that the act makes no exception whatsoever, whether the aggression be with or without the co-operation of the owners. The vessel which commits the aggression is treated as the offender, as the guilty instrument or thing to which the forfeiture attaches, without any reference whatsoever to the character or conduct of the owner. The vessel or boat (says the act of Congress) from which such piratical aggression, &c., shall have been first attempted or made shall be condemned. Nor is there any thing new in a provision of this sort. It is not an uncommon course in the admiralty, acting under the law of nations, to treat the vessel in which or by which, or by the master or crew thereof, a wrong or offence has been done as the offender, without any regard whatsoever to the personal misconduct or responsibility of the owner thereof. And this  is done from the necessity of the case, as the only adequate means of suppressing the offence or wrong, or insuring an indemnity to the injured party. The doctrine also is familiarly applied to cases of smuggling and other misconduct under our revenue laws; and has  been applied to other kindred cases, such as cases arising on embargo and non-intercourse acts. In short, the acts of the master and crew, in cases of this sort, bind the interest of the owner of the ship, whether he be innocent or guilty; and he impliedly submits to whatever the law denounces as a forfeiture attached to the ship by reason of their unlawful or wanton wrongs. In the case of the United States v. The Schooner Little Charles, 1 Brock. Rep. 347, 354, a case arising under the embargo laws, the same argument which has been addressed to us, was upon that occasion addressed to Mr. Chief Justice Marshall.The learned judge, in reply, said: \"This is not a proceedings against the owner; it is a proceeding against the vessel for an offence committed by the vessel; which is not the less an offence, and does not the less subject her to forfeiture because it was committed without the authority and against  the will of the owner. It is true that inanimate matter can commit no offence. But this body is animated and put in action by the crew, who are guided by the master. The vessel acts and speaks by the master. She reports herself by the master. It is therefore not unreasonable that the vessel should be affected by this report.\" The same doctrine was held by this court in the case of the Palmyra, 12 Wheat. R. 1, 14, where referring to seizures in revenue causes, it was said: \"The thing is here primarily considered as the offender, or rather the offence is primarily attached to the thing; and this whether the offence be malum prohibitum or malum in re. The same thing applies to proceeding in rem or seizures in the Admiralty.\" The same doctrine has been fully recognised in the High Court of Admiralty in England, as is sufficiently apparent from the Vrow Judith, 1 Rob. R. 150; the Adonis, 5 Rob. R. 256; the Mars, 6 Rob. R. 87, and indeed in many other cases, where the owner of the ship has been held bound by the acts of the master, whether he was ignorant thereof or not. 1 \nThe ship is also by the general maritime law held responsible  for the torts and misconduct of the master and crew thereof, whether arising from negligence or a wilful disregard of duty; as for example, in cases of collision and other wrongs done upon the high seas or elsewhere within the admiralty and maritime jurisdiction, upon the general policy of that law, which looks to the instrument itself, used as the means of the mischief, as the best and surest pledge for the compensation and indemnity to the injured party. \n The act of Congress has therefore done nothing more on this point than to affirm and enforce the general principles of the maritime law and of the law of nations. \nThe remaining question is, whether the cargo is involved in the same fate as the ship. In respect to the forfeiture under the act of 1819, it is plain that the cargo stands upon a very different ground from that of the ship. Nothing  is said in relation to the condemnation of the cargo in the fourth section of the act; and in the silence of any expression of the legislature, in the case of provisions confessedly penal, it ought not to be presumed that their intention exceeded their language. We have no right to presume that the policy of the  act reached beyond the condemnation of the offending vessel. \nThe argument, then, which seeks condemnation of the cargo, must rely solely and exclusively for its support upon the sixth and seventh counts, founded upon the law of nations and the general maritime law. So far as the general maritime law applies to torts or injuries committed on the high seas and within the admiralty jurisdiction, the general rule is, not forfeiture of the offending property; but compensation to the full extent of all damages sustained or reasonably allowable, to be enforced by a proceeding therefor in rem or in personam. It is true that the law of nations goes in many cases much farther, and inflicts the penalty of confiscation for very gross and wanton violations of duty. But, then, it limits the penalty to cases of extraordinary turpitude or violence. For petty misconduct, or petty plunderage, or petty neglect of duty, it contents itself with the mitigated rule of compensation in damages. Such was the doctrine recognised by this court in the case of the Marianna Flora, 11 Wheat. R. 1, 40, where an attempt was made to inflict the penalty of confiscation for an asserted (but not proved) piratical  or hostile aggression. Upon that occasion, the court said: \"The other count\" (which was similar to those now under our consideration) \"which seeks condemnation on the ground of an asserted hostile aggression, admits of a similar answer. It proceeds upon the principle that, for gross violations of the law of nations on the high seas, the penalty of confiscation may be properly inflicted upon the offending property. Supposing the general rule to be so in ordinary cases of property taken in delicto, it is not, therefore, to be admitted, that every offence, however small, however done under a mistake of rights, or for purposes wholly defensive, is to be visited with such harsh punishments. Whatever  may be the case, where a gross, fraudulent, and unprovoked attack is made by one vessel upon another the sea, which is attended with grievous loss or injury, such effects are not to be attributed to lighter faults or common negligence. It may be just in such cases to award to the injured party full compensation for his actual loss and damage; but the infliction of any forfeiture beyond this does not seem to be pressed by any considerations derived from public law.\" And the court  afterwards added: \"And a piratical aggression by an armed vessel sailing under the regular flag of any nation, may be justly subjected to the penalty of confiscation for such a gross breach of the law of nations. But every hostile attack in a time of peace is not necessarily piratical. It may be by mistake or in necessary self-defence, or to repel a supposed meditated attack by pirates. It may be justifiable, and then no blame attaches to the act; or it may be without any just excuse, and then it carries responsibility in damages. If it proceed farther, if it be an attack from revenge or malignity, from a gross abuse of power, and a settled purpose of mischief, then it assumes the character of a private unauthorized war, and may be punished by all the penalties which the law of nations can properly administer;\" that is, (as the context shows,) confiscation and forfeiture of the offending vessel. \nNow, it is impossible to read this language and not to feel that it directly applies to the present case. In the first place, it shows, that the offending vessel may by the law of nations, in the case supposed of an attack from malignity, from a gross abuse of power, and a settled purpose  of mischief, be justly subjected to forfeiture. But it is as clear that the language is solely addressed to the offending vessel and was not intended as of course to embrace the cargo, even if it belonged to the same owner, and he did not participate in or authorize the offensive aggression. For the court afterwards, in another part of the case, where the subject of the cargo was directly under consideration said, \"But the second count\" (founded on the law of nations) \"embraces a wider range; and if it had been proved in its aggravated extent, it does not necessarily follow that the cargo ought to be exempted. That is a question which would required grave deliberation. It is in general true that the act of the master does not bind the innocent owner of the cargo; but the rule is not of universal application. And where the master is also agent and the owner of the cargo, or both ship and cargo belong to the same person, a distinction may, perhaps, arise in the principle of decision.\" So that the  court studiously avoided giving a conclusive opinion upon this point. Looking to the authorities upon this subject, we shall find that the cargo is not generally deemed to  be involved in the same confiscation as the ship, unless the owner thereof co-operates in or authorizes the unlawful act. There are exceptions founded in the policy of nations, and as it were the necessities of enforcing belligerent rights against fraudulent evasions, where a more strict rule is enforced and the cargo follows the fate of the ship. But these exceptions stand upon peculiar grounds, and will be found, upon a close examination, to be consistent with, and distinguishable from, the general principle above suggested. Many of the authorities upon this subject have been cited at the bar, and others will be found copiously collected in a note in the appendix to the 2d vol. of Wheat. Rep. p. 37 -- 40. \nThe present case seems to us fairly to fall within the general principle of exempting the cargo. The owners are confessedly innocent of all intentional or meditated wrong. They are free from any imputation of guilt, and every suspicion of connivance with the master in his hostile acts and wanton misconduct. Unless, then, there were some stubborn rule, which, upon clear grounds of public policy, required the penalty of confiscation to extend to the cargo, we should be unwilling  to enforce it. We know of no such rule. On the contrary, the act of Congress, pointing out, as it does, in this very case, a limitation of the penalty of confiscation to the vessel alone, satisfies our minds that the public policy of our government in cases of this nature is not intended to embrace the cargo. It is satisfied by attaching the penalty to the offending vessel, as all that public  justice and a just regard to private rights require. For these reasons, we are of opinion that the decrees condemning the vessel and restoring the cargo, rendered in both the courts below, ought to be affirmed. \nThere remains then, only the consideration of the costs, whether the courts below did right in making them exclusively a charge upon the proceeds of the condemned property. Costs in the admiralty are in the sound discretion of the court; and no appellate court should ordinarily interfere with that discretion, unless under peculiar circumstances. Here, no such circumstances occur. The matter of costs is not per se the proper subject of an appeal; but it can be taken notice of only incidentally as connected with the principal decree, when the correctness of the latter  is directly before the court. In the present case the cargo was acquitted, and there is no ground to impute  any fault to it. If it had been owned by a third person, there would have been no reason for mulcting the owner in costs, under circumstances like the present, where it was impracticable to separate the cargo from the vessel by any delivery thereof, unless in a foreign port, and no peculiar cause of suspicion attached thereto. Its belonging to the same owner might justify its being brought in and subjected to judicial examination and inquiry, as a case where there was probable cause for the seizure and detention. But there it stopped. The innocence of the owner has been fully established; the vessel had been subjected to condemnation, and the fund is amply sufficient to indemnify the captors for all their costs and charges. We see no reason why the innocent cargo, under such circumstances, should be loaded with any cumulative burdens. \nUpon the whole, we are all of opinion that the decree of the Circuit Court ought to be, and it is affirmed, without costs. \nORDER. \nThis cause came on to be heard on the transcript of the record from the Circuit Court of the United  States for the District of Maryland, and was argued by counsel. On consideration whereof, It is now here ordered, adjudged, and decreed by this court, that the decree of the said Circuit Court in this cause be, and the same is hereby affirmed, without costs. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the Court. \nOn consideration of the petition filed in the above cause, it is the opinion of this court that it has no power to grant the relief prayed.  Whereupon, it is now here ordered and adjudged by this court, that this petition be and the same is hereby dismissed. \n \n\n ", " \nOpinion \n\n \n \n Mr. Justice STORY delivered the opinion of the court. \n Upon the facts stated in the application, there is no doubt that the writ of error, bond, and citation, having been given in due season according to law, operated as a stay of execution, and that a supersedeas to the feri facias ought to issue from this court, to supersede and quash the same, as prayed for in the motion. Indeed, the issuing of the execution was wholly irregular, and it might have been quashed by an application to the court below. But it is equally competent for this court to do the same thing in furtherance of the purposes of justice. The motion is, therefore, granted, and a supersedeas will be issued accordingly. \nORDER. \nUNITED STATES OF AMERICA, SS.: \nThe President of the United States of America \nTo the Honourable the Judges of the Circuit Court of the United States for the western district of Pennsylvania, and to the Marshal of the United States for the said district, greeting: \nWHEREAS, lately in the said Circuit Court, before you, or some of you, in a cause between Harriet Bishop, plaintiff, and Lucius W. Stockton and Daniel Moore, defendants, judgment was rendered by the said Circuit Court on the 7th December, 1843, in favour of the said plaintiff  and against the said defendants, for the sum of $6500 and costs of suit, and on the 15th December, 1843, the aforesaid defendants, with sufficient security, filed their bond in error, which was approved by the judge of the District Court, so as to operate as a supersedeas, the defendants having sued out a writ of error in due from and time, and a citation having been regularly taken out, served upon the defendant in error and duly returned, as by the inspection of the transcript of the record of the said Circuit Court, which was brought into the Supreme Court of the United States, by virtue of a writ of error, agreeably to the act of Congress in such case made and provided, fully and at large appears. And whereas, in the present term of January, in the year of our Lord one thousand eight hundred and forty-four, it is made to appear on affidavit to the said Supreme Court of the United States, that, notwithstanding the premises, the aforesaid plaintiff in the said Circuit Court caused a writ of fieri facias to be issued on the 11th day of January, 1844, upon the judgment obtained in said cause, and to be placed  in the hands of the aforesaid marshal for service and satisfaction  thereof: On consideration whereof, it is not here ordered by this court that a writ of supersedeas be, and the same is hereby awarded to be directed to the aforesaid marshal, commanding and enjoining him and his deputies, to stay every and all proceedings upon the said writ of fieri facias, and that he return the said execution with the writ of supersedeas to the said Circuit Court, and that the judges of the said Circuit Court do cause the said writ of execution to be quashed, the same having been unjustly, improvidently, and erroneously issued out of the said court, at the instance of the said plaintiff. You, therefore, the marshal of the United States for the western district of Pennsylvania, are hereby commanded that, from every and all proceedings on the said fieri facias or in any wise molesting the said defendants on the account aforesaid, you entirely surcease, as being superseded, and that you do forthwith return the said fieri facias, together with this supersedeas to the said Circuit Court, as you will answer the contrary at your peril.And you the judges of the said Circuit Court are hereby commanded that such further proceedings be had in the premises, in conformity to  the order of this court, and as according to right and justice, and the laws of the United States ought to be had, the said execution notwithstanding. \nWITNESS the Honourable Roger B. Taney, Chief Justice of the said Supreme Court, the 13th day of March, in the year of our Lord one thousand eight hundred and forty-four. \nWM. THOS. CARROLL, \nClerk of the Supreme Court of the United States. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the court. \nA motion has been made to dismiss this appeal upon several grounds. The first is, that although all the defendants have appealed from the decree of the court below, yet a part of them, only, have signed the appeal bond. This objection is not maintainable. It is not necessary that all the defendants should join in the appeal  bond, although all must join in the appeal. It is sufficient if the appeal bond is approved by the court, as satisfactory and complete security by whomsoever it may be executed. \nThe next ground is, that an appeal has been taken from the refusal of the court below to open the former decree, rendered for the appellant. It is plain that no appeal lies to this court in such a matter, as it rests merely in the sound discretion of the court below. And if this had been the sole appeal in the case, the appeal must have been dismissed. But an appeal has also been taken to the first decree (which was a final decree) rendered by the court. That decree  was rendered on the 10th of May, 1843. During the same term, a petition was filed by the defendants on the 26th day of the some month, to have the final decree opened for certain purposes; and the court took cognisance of the petition and referred it to a master commissioner. His report was made on the 9th of June following, the same term still continuign; and the court then refused to open the final decree; and from this refusal as well as from the final decree, the defendants took an appeal, and gave bond with sufficient sureties,  on the 15th day of the same month, and the appeal was then allowed by the court. Before that time the court had not fixed the penalty of the bond. \nNow, the argument is, that as the original final decree was rendered more than one month before the appeal, it could not operate under the laws of the United States as a supersedeas, or to stay execution on the decree; because to have such an effect the appeal should be made and the bond should be given within ten days after the final decree.But the short and conclusive answer to this objection is, that the final decree of the 10th of May was suspended by the subsequent action of the court; and it did not take effect until the 9th of June, and that the appeal was duly taken and the appeal bond given within ten days from this last period. \nAnother and the last ground of exception is to the want of proper parties to the writ of error and citation. No writ of error lies in this case, but an appeal only; and the appeal having been made in open court, no citation was necessary. \nUpon the whole, we are of opinion that the motion to dismiss the appeal ought to be overruled, and it is accordingly overruled. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the court. \nThe court have had this case under consideration, and are of opinion that it is completely governed by the decision made in the same case at the last term of this court, which is reproted in 1 Howard's Rep. 282. An attempt has been made at the bar to distinguish the former decision from that now sought, by suggesting that the former proceeded mainly upon the ground that the appeal was irregularly made, and did not directly involve the question now argued. We think otherwise; and that the ground of that decision completely covers all that has been urged upon the present occasion; not as mere incidental suggestions, but as the very hinge on which the case turned. Notwithstanding the opinion of this court then expressed, that the case might be remanded to the District Court, for the purpose of making the proper parties, the appellants have neglected, during a whole year, to take a single step for the remanding of the  case,  or instituting any proceedigns in the court below; which Iaches certainly ought not to produce any result in their favour. \nThe appeal is, therefore, dismissed, and the cause is remanded to the District Court of the northern district of Alabama, with leave to the appellants to make the proper parties, and to the new administrator, Benham, to become a party to the suit; and that such other proceedings be had as to law and justice shall appertain. \nORDER. \nThis cause came on to be heard on the transcript of the record from the District Court of the United States for the northern district of Alabama, and was argued by counsel. On consideration whereof, It is ordered and decreed by this court, that this appeal be, and the same is hereby dismissed, and that this cause be, and the same is hereby remanded to the said District Court, with leave to the appellants to make the proper parties, and to the new administrator, Beneham, to become a party to the suit; and that such other proceedings be had therein as to law and justice shall appertain. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the court. \nThis is an appeal from a decree of the Circuit Court of the United States for the District of Columbia, sitting in equity in the county of Alexandria. \nOn the 9th of July, 1836, Joseph Mandeville, deceased, by certain articles then executed, entered into partnership with Daniel Cawood, one of the defendants, for the term of three years from the 1st of September, 1835, under the firm of Daniel Cawood and Company. On the 3d of June, 1837, Mandeville made his last will, by which in the introductory clause he said: \"I do hereby direct the disposal which I desire of my earthly remains after my decease, and of such real and personal property as I may possess when called hence to a future state.\" He then proceeded to make sundry bequests of his real and personal estate to different persons; and then added: \"If my personal property should not cover  the entire amount of legacies I have or may give, my executors will dispose of so much of my real state as will fully pay the same.\" He immediately added: \"John West, one of the defendants, formerly of Alexandria, now of Mobile, I hereby make my residuary legatee, recommending him to consult  with and follow the advice of my executors in all concerning what I leave to him.\" The testator on the 11th of July, 1837, made the following codicial to his will. \"It is may will that my interest in the copartnership subsisting between Daniel Cawood and myself, under the firm of Daniel Cawood and Company, shall be continued thereon until the expiration of the term limited by the articles between us; the business to be continued by the said Daniel Cawood, and the profit or loss to be distributed in the manner the said articles provide,\" The testor appointed Robert J. Taylor and William C. Gardner (one of the defendants) executors of his will, and died in July, 1837. His will and codicil were duly proved after his death, and Taylor having renounced the executorship, Gardner took upon himself the administration of the estate under letters testamentary granted to him by the Orphans'  Court of Alexandria county. \nCawood, after the testator's death, carried on the copartnership in the name of the firm, and failed in business before the regular expiration thereof, according to the articles. \n The present bill was originally brought against Cawood and Gardner, as executors of Mandeville, by the plaintiff, Burwell, alleging himself to be a creditor of the firm upon debts contracted with him by Cawood, on behalf of the firm, after Mandeville's death, viz. on a promissory note, dated the 28th of July, 1838, for $800, and on an acceptance of a bill of exchange drawn by Burwell on the same day for $1000, in favour of one William H. Mount, both of which remained unpaid. The bill charged the failure of Cawood in trade, and his inability to pay the debts due from the firm. It also charged that gardner, the executor, had assets sufficient to satisfy all the debts of the testator, and all the debts of Cawood and Company; and it sought payment of the debt due to the plaintiff out of those assets. \nThe defendant, Gardner, put in an answer denying that he had such accurate information as to enable him to say whether the partnership funds in the hands of Cawood were  sufficient to pay the debts of the firm or not; and not admitting that the assets of the testator in his hands were liable to the payment of the debts of the firm, and requiring proof of such liability, and alleging that he had not assets of the testator in his hands sufficient to satisfy the plaintiff's claims, after satisfying two specified judgments. \nThe defendant, Cawood, not having made any answer at this stage of the cause, the bill was thereupon taken against him pro confesso -- subsequently he put in an answer; and thereupon it was, by consent of the plaintiff, and Cawood, and Gardner the executor, referred to a master to take an account of the assets of the testator, of the debts due to him, of the value of his real estate, and to settle the accounts and transactions of the firm of Cawood and Company until its termination, and of the individual partners with the firm, to take an account of the assets of the firm, and the outstanding debts of the firm, and the debts due thereto, &c.; and also to ascertain whether the debt due to the plaintiff arose in the partnership transactions, and is now due. \nCawood, by his answer, admitted generally the facts stated in the bill; but  he also alleged that he neither admitted nor denied the insolvency of the firm, averring that he had satisfied claims against the firm since it terminated to the amount of about $14,000 from the firm funds, and was engaged in the collection of the outstanding debts due thereto, and that the firm still owed debts to the amount of about $7000. \nThe master made his report in May, 1841; the details of which it  is not necessary to mention. In November, of the same year, is was referred to another commissioner to take an account of the assets of Mandeville in the hands of his executor, who afterwards made a report accordingly. At this stage of the proceedings, John West (the residuary legatee, so called in the will) claiming to be interested in the subject-matter, the bill was amended by making West a party; and he filed a demurrer to the bill. The demurrer was afterwards set down for argument, and the court being of opinion that the assets of Mandeville in the hands of his executor (Gardner) were not chargeable with any debt contracted by Cawood in the name of the firm, after the death of Mandeville, sustained the demurrer, and dismissed the bill with costs.From this decree  of dismissal the present appeal has been taken to this court. \nThe argument has spread itself over several topics, which are not in our judgment now properly before us; whatever may have been their relevancy in the court below. The real question, arising before us upon the record, is, whether the general assets of the testator, Mandeville, in the hands of his executor, are liable for the payment of the debt due to the plaintiff, which was contracted after Mandeville's death. If they are not, the bill was properly dismissed, whatever might be the remedy of the plaintiff against Cawood, if the suit had been brought against him alone, for equitable relief, upon which we give no opinion. In general the surviving partner is liable at law only; and no decree can be made against him, although he may be a proper party to the suit in equity, as being interested to contest the plaintiff's demand, unless some other equity intervenes; and so it was held in Wilkinson v. Henderson, 1 Mylne and Keene, 582, 589. \nThe bill, as framed, states the insolvency of Cawood, and seeks no separate relief against him, and therefore, if it is maintainable at all, it is so solely upon the ground of the liability  of the general assets of Mandeville to pay the plaintiff jointly with the partnership funds in the hands Cawood. In respect to another suggestion, that West was not a necessary party to the bill, in his character of residuary legatee of the personalty, that may be admitted; at the same time it is as clear, that as he had an interest in that residue, if Mandeville's general assets were liable for the plaintiff's debt; and therefore, the plaintiff might at his opinion join him in the suit, and if West did not object, no other person would avail himself of the objection of his misjoinder. \nThen, as to the liability of the general assets of Mandeville in the hands of his executor for the payment of the plaintiff's debt -- we are  of opinion that they are not so liable; and shall now proceed to state the reasons for this opinion. \n By the general rule of law, every partnership is dissolved by the death of one of the partners. 1 It is true that it is competent for the partners to provide by agreement for the continuance of the partnership after such death; but then it takes place in virtue of such agreement only, as the act of the parties, and not by mere operation  of law. A partner too may be his will provide that the partnership shall continue notwithstanding his death; and if it is consented to by the surviving partner, it becomes obligatory, just as it would, if the testator, being a sole trader, had provided for the continuance of his trade by his executor, after his death. But, then, in each case the agreement or authority must be clearly made out; and third persons, having notice of the death, are bound to inquire how far the agreement or authority to continue it extends, and what funds it binds, and if they trust the surviving party beyond the reach of such agreement, or authority, of fund, it is their own fault, and they have no right to complain that the law does not afford them any satisfactory redress. \nA testator, too, directing the continuance of a partnership, may, if he so choose, bind his general assets for all the debts of the partnership contracted after his death.But he may also limit his responsibility, either to the funds already embarked in the trade, or to any specific amount to be invested therein for that purpose; and then the creditors can resort to that fund  or amount only, and not to the general assets of the testator's estate, although the partner, or executor, or other person carrying on the trade may be personally responsible for all the debts contracted. This is clearly established by the case Ex parte Garland, 10 Ves. 110, where the subject was very fully discussed by Lord Eldon, and Ex parte Richardson, 3 Madd. 138, 157, where the like doctrine was affirmed by Sir John Leach, (then Vicechancellor,) and by the same learned judge, when Master of the Rolls, in Thompson v. Andrews, 1 Mylne and Keene, 116. The case of Hankey v. Hammock, before Lord Kenyon, when Master of the Rolls, reported in Cooke's Bankrupt Law, 67, 5th ed., and more fully in a note to 3 Madd. Rep. 148; so far as may be thought to decide that the testator's assets are generally liable under all circumstances, where the trade is directed to be carried on after his death, has been completely overturned by other later cases, and expressly overruled by Lord Eldon in 10 Ves. 110, 121, 122, where he stated that it stood  alone, and he felt compelled to decide against it authority. The case of Pitkin v. Pitkin, 7 Conn. Rep. 307, is fully in point to the same  effect, and indeed, as we shall presently see, runs quatuor pedibus with the present. \nAnd this leads us to remark, that nothing but the most clear and unambiguous language, demonstrating in the most positive manner that the testator intends to make his general assets liable for all debts contracted in the continued trade after his death, and not merely to limit it to the funds embarked in that trade, would justify the court in arriving at such a conclusion from the manifest inconvenience thereof, and the utter impossibility of paying off the legacies bequeathed by the testator's will, or distributing the residue of his estate, without in effect saying at the same time that the payments may all be re-called, if the trade should become unsuccessful or ruinous. Such a result would ordinarily be at war with the testator's intention in bequeathing such legacies and residue, and would, or might postpone the settlement of the estate for a half-century, or until long after the trade or continued partnership should terminate. Lord Eldon, in 10 Ves. 110, 121, 122, put the inconvenience in a strong light, by suggesting several cases where the doctrine would create the most manifest embarrassments,  if not utter injustice; and he said, that the convenience of mankind required him to hold, that the creditors of the trade, as such, have not a claim against the distributed assets in the hands of third persons, under the directions in the same will, which has authorized the trade to be carried on for the benefit of other persons. This, also, was manifestly the opinion of Sir John Leach in the cases 3 Madd. Rep. 128; 1 Mylne and Keene, 116, and was expressly held in the case in 7 Conn. Rep. 307. \nKeeping these principles in view, let us now proceed to the examination of the will and codicil in the present case. There can, we think be no doubt, that the testator intended by his will to dispose of the while of his estate, real and personal. The introductory words to his will already cited, show such an intention in a clear and explicit manner. The testator there says: \"I do hereby direct the disposal which I desire of my earthly remains after my decease, and of such real and personal estate as I may possess, when called hence to a future state.\" He, therefore, looks to the disposal of all the estate he shall die possessed of. It if said that, admitting such to be his intention,  the testator has not carried it into effect; because the residuary clause declares John West his \"residuary legatee\" only, and  not his residuary devisee also; and that we are to interpret the words of the will according to their legal import as confined altogether to the residue of the personal estate. This is, in our judgment, a very narrow and technical interpretation of the words of the will. The language used by the testator shows him to have been an unskilful man and not versed in legal phraseology. The cardinal rule in the interpretation of wills is, that the language is to be interpreted in subordination to the intention of the testator, and is not to control that intention, when it is clear and determinate. Thus, for example, the word \"legacy\" may be construed to apply to real estate where the context of the will shows such to be the intention of the testator. Thus in Hope v. Taylor, 1 Burr. Rep. 269, the word \"legacy\" was held to include lands, from the intention of the testator deduced from the context. The same doctrine was fully recognised in Hardacre v. Nash, 5 Term Rep. 716. So, in Doe dem. Tofield v. Tofield, 11 East, 246, a bequest of \"all my personal  estates\" was construed upon the like intention to include real estate. But a case more directly in point to the present, and differing from it in no essential circumstances, is Pitman v. Stevens, 15 East, 505. There the testator, in the introductory clause of his will, said: \"I give and bequeath all that I shall die  possessed of, real and personal, of what nature and kind soever, after my just debts is paid. I hereby appoint Capt. Robert Preston my residuary legatee and executor.\" The testator then proceeded to give certain pecuniary legacies, and finally recommended his legatee and executor to be kind and friendly to his brother-in-law J.C., &c., and begs him to do something handsome for him at his death, &c., The question was, whether Preston was entitled to the real estate of the testator, under the will; and the court held that he was; and that the words \"residuary legatee and executor,\" coupled with the introductory clause and the recommendation clearly established it. Upon that occasion, Lord Ellenborough, after referring to the words of the introductory clause, said: \"Then he appoints Capt. P. his residuary legatee and executor -- residuary legatee and executor  of what? of all that he should die possessed of, real and personal, of what nature and kind soever; that is, of all he should not otherwise dispose of. The word 'legatee,' according to the cases, particularly Hardacre v. Nash, may be applied to real estate, if the context requires, it, as was said by Lord Kenyon upon the word 'legacy.' Then, in the subsequent parts of the will, he contemplates that his residuary legatee and executor will have the disposition  of his whole funds, but after some legacies and annuities, he recommends him to be kind and friendly to his brother-in-law, &c.\" \nIn the present case it is plain that the the testator contemplated some positive benefit to West, when he designated him as his residuary legatee; and yet, at the same time, he contemplated that his personal property might not be sufficient to cover the amount of legacies given by his will; and in that event he directs his executors to dispose of so much of his real estate as will fully pay his legacies; so that, if we restrain the words \"residuary legatee\" to the mere personalty, we shall defeat the very intention of the testator, apparent upon the face of the will, to give some beneficial  interest to West, in an event which he yet contemplated as not improbable. On the other hand, if we give an enlarged and liberal meaning to the residuary clause as extending to the real estate, it will at once satisfy the introductory clause, and upon a deficiency of the personal assets will still leave an ample amount to the beneficiary, who appears to have been an object of the testator's bounty. But if this interpretation should be (as we think it is not) questionable; one thing is certain, and that is, that the testator did not contemplate that his personal assets would not be more than sufficient to pay all his debts; for he does not charge his real estate with his debts, but only with his legacies, in case of any deficiency of personal assets; and the residuary clause, if it were limited to the mere residue of his personal assets would also show that the testator did not provide for any debts which should arise from any subsequent transactions after his death. \nIf this be so, then we are to look to the codicil to see whether any different intention is there disclosed in clear and unambiguous terms.In the first place, the language of the codicil is just such as the testator  might properly have used, if he intended no more than to pledge his funds already embarked in the partnership for the payment of the partnership debts. The codicil says, \"It is my will that my 'interest' in the copartnership, &c., shall be continued therein until the expiration of the term limited by the articles.\" Now, his interest in the firm then was his share of the capital stock and profits, after the payment of all debts and liabilities due by the firm. It is this interest, and not any new capital which he authorizes to be embarked in the firm. He does not propose to add any thing to his existing interest, but simply to continue it as it then was. How, then, can this court say, that he meant to embark all his personal assets in the hands of his executor as a pledge for the future debts,  or future responsibilities or future capital of the firm? That would be to enlarge the meaning of the words used beyond their ordinary and reasonable signification. And besides, it is plain that the testator did not mean to have the payment of his legacies indefinitely postponed, until the expiration of the articles, and the ascertainment and final adjustment of the concerns  of the firm, which might perhaps extend to ten or twenty years. So that to give such an enlarged interpretation to the terms of the codicil, (as is contended for,) for the codicil must be construed as if it were incorporated into the will, would be to subject the legatees to all the fluctuations and uncertainties growing out of the future trade, and might deprive the residuary legatee of every dollar intended for his benefit. There is another consideration of the matter, which deserves notice. Would the real estate of the testator, upon a deficiency of his personal assets, be liable for the debts of the firm contracted after his death, by mere operation of law, as it would be for such debts as were contracted in his lifetime? If it would, then it is apparent, that all the legatees and devisees might in the event of the irretrievable and ruinous insolvency of the firm be deprived of all their legacies and devises, although the legacies were charged upon the real estate. If it would not, then it is equally apparent that the testator did not contemplate any liability of his general assets, real and personal, for the payment of any debts, excepting those which were subsisting at the  time of his death. There is yet another consideration, not unimportant to be brought under review. It is, that the whole business of the firm is to be conducted by Cawood alone, and that neither the executor nor the legatees are authorized to interfere with or to scrutinize his transactions. Such an unlimited power over his whole assets by a person wholly unconnected with the administration of his estate could scarcely be presumed to be within the intention of any prudent testator. If to all these we add the manifest inconveniences of such an interpretation of the codicil, thus suspending for an indefinite time the settlement of the estate and the payment of the legacies, it is not too much to say, that no court of justice ought upon principle to favour, much less to adopt it. \nAnd, certainly, there is no authority to support it; at least none, except Hankey v. Hammock, which cannot now, for the reasons already stated be deemed any authority whatsoever. On the other hand, the case Ex parte Garland, 10 Ves. 110, and Ex parte Richardson, 3 Madd. Rep. 138,  although distinguishable from the present in  some of their circumstances, were reasoned out and supported  upon the broad and general principle that the assets of the testator were in no case bound for the debts contracted after his death by the persons whom he had authorized to continue his trade, but the rights of such new creditors were exclusively confined to the funds embarked in the trade and to the personal responsibility of the party who continued it, whether as trustee, or as executor, or as partner -- unless, indeed, the testator had otherwise positively and expressly bound his general assets. The case of Pitkin v. Pitkin, 7 Conn. Rep. 307, is, however, (as has been already suggested,) directly in point. There, the testator, by his will directed, \"that all his interest and concern in the hat manufacturing business, &c., as then conducted under said firm, should be continued to operate in the same connection for the term of four years after his decease, &c.\" The court there held, after referring to the cases in 10 Ves. 110, and 3 Madd. Rep. 138, that the general assets of the testator were not liable to the claims of any creditors of the firm who became such after the testator's death; and that such creditors had no lien on the estate in the hands of the devisees under the will,  although they might eventually participate in the profits of the trade. There was another point decided in that case, upon which we wish to be understood as expressing no opinion. \nUpon the whole, our opinion is, that the decree of the Circuit Court dismissing the bill ought to be affirmed with costs. \nORDER. \nThis cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Columbia, holden in and for the county of Alexandria, and was argued by counsel. On consideration whereof, It is now here ordered and decreed by this court, that the decree of the said Circuit Court in this cause be, and the same is hereby affirmed with costs. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the court. \nThis is an appeal from the Circuit Court of the District of Columbia, sitting in Alexandria. \nIn the year 1824, the appellant, Jane Dade, became indebted to Thomas Irwin, the testator, and executed two deeds of trust for the security of the debt. At the November term of the Circuit Court of Alexandria county, 1830,  Irwin, the executor, filed his bill to obtain a decree of the sale of the estate so conveyed in trust; and a decree was made without objection for the sale, the appellant admitting the justice of the claim; and the original trustee having become insane, William L. Hodgson was appointed trustee to make the sale. After sundry delays, the trustee advertised the estate for sale on the 28th of November, 1834; and on the day preceding the intended sale the present bill was filed by the appellant for an injunction against the sale. The bill made no objection to the original debt or decree, but simply set up a claim, by way of set-off or discount, of a totally distinct nature, and unconnected with the original debt, as due by the testator to her, and for which she alleged in her bill that she ought to receive a credit, to which in equity and strict justice she was entitled. The claim thus set up had its origin in this manner. In May, 1821, James Irwin gave his note for $826 63 to John Adam or order, for Mrs. Dade, for money borrowed of her, which note was endorsed by Adam, and on the same day James Irwin, as collateral security therefor, assigned to Adam a debt due to him by Alexander  Henderson for cordage sold him by Thomas Irwin (the testator) as his agent, and for which the assignment alleged Thomas Irwin was liable, having received Henderson's note without the consent of James Irwin. Upon the back of this assignment there now purports to be the following endorsement, \"If the within debt cannot be recovered from Alexander Henderson, I am liable for the same, provided full time be allowed for the prosecution of the suit.\" The supposed note referred to in the assignment was dated in January, 1804, and was for the payment of $901 83 to the order of Thomas Irwin, and was signed by Alexander Henderson and Co. This note the bill alleged to include the debt due to James Irwin. Judgment was obtained upon this note in 1805. Afterwards Henderson, in 1806, became insolvent, and in 1816 a bill in equity was filed for the satisfaction of the judgment out of supposed effects in the hands of certain garnishees, which suit was not finally disposed of until October, 1835, and was then abated by Henderson's death. \n The answer to the present bill by Thomas Irwin, the executor, denied the whole equity thereof. It denied that James Irwin ever executed the supposed  assignment. But he admitted the origin of the debt due by Henderson and Co., and that the note taken by the testator included it; but that Henderson having become insolvent he was not liable for that amount, and charged it in his accounts against James Irwin and Co. He also denied the supposed endorsement on the assignment to be genuine, but alleged the same to be a sheer fabrication. \nThe injunction prayed for by the bill was granted, and afterwards the court directed an issue to be tried by a jury to ascertain whether the testator's signature to the endorsement was genuine or not. That issue was tried by a jury, who were unable to agree upon a verdict. The order for an issue was then rescinded, and the cause came on for a final hearing in 1839, when the bill was dismissed with costs. There is a great deal of evidence on both sides as to the genuineness of the signature of the testator, and also as to the appearance of the ink of the endorsement being that of recent writing. It is also remarkable that in the long interval between the time when the deed of trust was given in 1824, and the time when the sale was advertised and the bill filed, no demand was ever suggested by or  on behalf of Mrs. Dade for the present supposed debt due her as a set-off or otherwise. On the contrary, although repeated and earnest applications were made for delay of the sale, from the time of the decree in 1830 until the advertisement in 1834, and some correspondence took place on the subject, no allusion whatsoever was made to any such supposed claim or set-off; but an entire silence existed on the subject. It is also somewhat singular, that when the bill upon the trust deed was filed and the decree therein of this supposed claim, was made by Mrs. Dade in answer thereto of this supposed claim, nor any postponement of the decree of sale asked upon this account. \nNow, upon this posture of the case, several objections arise as to the maintenance of the suit. In the first place, the present bill is of an entirely novel character. It is not a bill of review, or in the nature of a bill of review, founded upon any mistake of facts, or the discovery of any new evidence. It admits in the most unambiguous terms that the decree was right. Then, it sets up merely a cross-claim or set-off of a debt arising under wholly independent and unconnected transactions. Now it is clear that  courts of equity do not act upon the subject of set-off in respect to distinct and unconconnected  debts, unless some other peculiar equity has intervened, calling for relief; as, for example, in cases where there has been a mutual credit given by each upon the footing of the debt of the other, so that a just presumption arises that the one is understood by the  parties to go in liquidation or set-off of the other. 1 In the next place, the remedy for Mrs. Dade, if any such debt as she has alleged exists, is at law against the executor; and there is no suggestion that the estate of the testator is insolvent, and that his assets cannot be reached at law. So that the bill steers aside of the assertion of any equity upon the foundation of which it can rest for its support. \nIn the next place, the nature and character of the claim itself, now for the first time made, long after the decease of both the Irwins, and thirteen years at least after its supposed origin. To put the case in the least unfavourable light, it is a matter of grave doubt whether the endorsement of the testator's name on the assignment is genuine  or not. That very doubt would be sufficient to justify this court in affirming the decree of the court below, and leaving Mrs. Dade to her remedy at law, if any she have. But connecting this with such a protracted silence for thirteen years, without presenting or making any application for the recognition or allowance of the claim to the testator or his executor, it is impossible not to feel that the merits of the claim at such a distance of time can scarcely be made out in favour of the appellant. It is stale, and clouded with presumptions unfavourable to its original foundation, or present validity. Besides, in cases of this sort, in the examination and weighing of matters of fact, a court of equity performs the like functions as a jury; and we should not incline, as an appellate court, to review the decision to which the court below arrived, unless under circumstances of a peculiar and urgent nature. \nThe decree of the Circuit Court is, therefore, affirmed with costs. \nORDER. \nThis cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Columbia, holden in and for the county of Alexandria, and was argued by counsel.  On consideration whereof, It is now here ordered and decreed by this court, that the decree of the said Circuit Court in this cause be, and the same is hereby affirmed with costs. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the court. \nThis is a writ of error to the Circuit Court for the southern district of New York. \nOn the 21st of November, 1838, J. and A. Lawrence obtained from the agents (Messrs. Gihon and Co.) at New York, of McCalmont, Brothers and Co., of London, the following letter of credit: \nNew York, 21st Nov., 1838. \nMessrs. McCalmont, Brothers and Co., London: \nGent.: -- We have granted to Messrs. J. and A. Lawrence of this city, a credit with you of £ 10,000, say ten thousand pounds sterling, to be availed of within six months from this time, in such drafts as they may direct, at four months' date, against actual shipments of goods for their account, and coming to their address; said goods to be forwarded through you or your agents. \nThe above credit is granted under their engagement to cover your acceptances before maturity, by direct remittances from this country of approved sixty day bills -- seconds of exchange to be handed to us for transmission to you. You are to charge one per cent. commission on the amount accepted, and to keep the account at five per cent.  interest per annum. We are, gents., your ob. st., \nJOHN GIHON and Co. \nThe letter of credit was delivered on Mr. Lawrence's proposal of his mother's (the plaintiff in error's) security for the credit. On the 17th of December, 1838, Mrs. Lawrence gave the following guarantee: Messrs. McCalmont, Brothers and Co., London: \nGent.: -- In consideration of Messrs. J. and A. Lawrence having a credit with your house, and in further consideration of one dollar  paid me by yourselves, receipt of which I hereby acknowledge, I engage to you that they shall fulfil the engagements they have made and shall make with you, for meeting and reimbursing the payments which you may assume under such credit at their request; together with your charges, and I guaranty you from all payments and damages by reason of their default. \nYou are to consider this a standing and continuing guarantee without the necessity of your apprizing me, from time to time, of your engagements and advances for their house; and in case of a change of partners in your firm or theirs, the guarantee is to apply and continue to transactions afterwards between the firms as changed, until notified by me to the contrary. \n Yours, respectfully, SUSAN LAWRENCE. \nUnder these documents, McCalmont, Brothers and Co. made the stipulated advances, which were repaid; and on the transactions included within the six months from 21st of November, 1838, nothing has been claimed by the London house. About the expiration of the six months, Mr. Lawrence (one of the firm of J. and A. Lawrence) at New York called on the agents of McCalmont, Brothers and Co., and asked it if was agreeable for the agents to continue the credit for £ 10,000. The reply of one of the agents was, that there was no objection to continue it on the same terms as before, stating that it was to be on the mother's guarantee attached to the previous credit. Mr. Lawrence then answered, that he did not expect it on any other terms, or without the guarantee. The agent then wished time to examine whether the guarantee was for a particular credit, or was a continuing guarantee; and having referred to the letter of guarantee, they drew up and delivered to Mr. Lawrence a second letter of credit, (Mr. Lawrence and the agents both agreeing that it was a continuing guarantee, and as such no new letter was needed from the mother.) The second letter of  credit, dated on 12th of June, 1839, was as follows: \nNew York, June 12th, 1839. Messrs. McCalmont, Brothers and Co., London: \nGent.: -- With reference to our letter of 21st November last, opening a credit on your good selves, favour Messrs. J. and A. Lawrence for £ 10,000, to be drawn within six months from that date, and which expired by limitation last month.We hereby renew the same for a like period from the date hereof, and under the same stipulations,  with this proviso, that the bills be drawn by, or in favour of parties permanently resident in Europe; and if made from the continent, they be made at the customary date, say three months. \nWe remain, &c., \nJOHN GIHON and Co. \nUnder this second letter of credit bills were drawn and paid by McCalmont, Brothers and Co.,  to an amount exceeding in the whole the £ 10,000 stipulated for. The bills being all drawn at four months. The firm of J. and A. Lawrence not having made any remittances to pay the new advances, and firm having failed, the agents of the London house on the 29th day of May, 1840, addressed the following letter to Mrs. Susan Lawrence, giving her notice of the non-payment of the advances. \n New York, May 29th, 1840. Mrs. Susan Lawrence: \nMadam: -- We enclose on behalf of Messrs. McCalmont, Bros. and Co., a copy of the account of Messrs. J. and A. Lawrence with them, showing a balance due of £ 10,349 8s. 5d. -- say ten thousand three hundred and forty-nine pounds eight shillings and five pence sterling, on first January last, with interest. These gentlemen not having fulfilled their engagements to reimburse this account, we claim payment of you under your guarantee to Messrs. McCalmont, Bros. and Company. \nRespectfully, yours, J. GIHON and Co., \nAgents of McCalmont, Bros. and Co., of London. \nShe declining to pay the deficit, the present action of assumpsit was brought against her to enforce the payment. At the trial upon the general issue, in addition to the facts already stated, it was in evidence that during the whole period of these transactions, Mrs. Lawrence resided at Brooklyn, (New York,) in the same house with her sons, J. and A. Lawrence. There was also evidence in the cause to show that McCalmont, Brothers and Co., had by their agents, certain notes belonging to the firm of J. and A. Lawrence, and endorsed by the firm for collection, and the proceeds when  received were to be applied towards the liquidation of the debt due to the London house, subject to their encashment on being paid at maturity, under which the sum of £ 1309, 16s. 6d. had been realized. The notes thus deposited for collection, which were dishonoured at maturity, were protested accordingly, and the original plaintiffs offered the protests and notices to J. and A. Lawrence of the dishonour in evidence, but the evidence as to some of the notices was  not full. Much other evidence was given at the trial, which, however, it is not necessary to state. \nThe counsel for Mrs. Lawrence then asked the court to charge the jury as follows: \n1st. That the said credit of 21st November, 1838, is a standing and continuing credit during the six months. \n2d. That defendant's guarantee of 17th December, 1838, is confined to the said credit, both as to time and amount. \n3d. That the acceptances and claims of the plaintiffs demanded in their declaration in this suit, are not covered by the guarantee of the defendant aforesaid. \n4th. That the new credit aforesaid of the 12th of June, 1839, is not a continuance or repetition of the first credit, but a departure from it,  and is not covered by or embraced in the defendant's said guarantee. \n5th. That the nominal consideration of one dollar, and the past consideration stated in defendant's said guarantee, are not, nor is either of them, sufficient to sustain the said guarantee. \n6th. That the evidence that the said J. and A. Lawrence agreed to give a guarantee at the time said credit of 21st November, 1838, was given, is not sufficient in law to render valid the consideration expressed in defendant's said guarantee, or to sustain the said guarantee. \n7th. The facts being ascertained, the question whether the notice given to the defendant by the plaintiffs of the failure of the said J. and A. Lawrence to remit to cover the plaintiff's acceptances was reasonable, is a question of law, and no notice, sufficient in law, was given of such failure to the defendant. \n8th. If the sufficiency of such notice be a question exclusively of fact, a reasonable and sufficient notice was not given to her of such failure of J. and A. Lawrence to remit as aforesaid. \n9th. The notes received by the plaintiffs, through their agents to collect, ought, when there was a failure of payment, to have been regularly protested,  and due notice thereof served on the defendant and J. and A. Lawrence; and, on failure thereof, a credit should be allowed for the same. \nThe judge thereupon charged the jury, that the plaintiffs were not precluded from recovering under the guarantee in evidence by reason of any supposed want of consideration therefor; and the same was not without sufficient consideration. \n That the said guarantee of the 17th December, 1838, was not limited to the credit of November 21, 1838, but was a standing and continuing guarantee, and did apply to, and was sufficient to embrace, transactions arising after the said credit of November, 1838, was expired. \nThat the new credit of June, 12, 1839, and the advances and transactions under it, were not in law without the scope of the guarantee of December 17, 1838, and that the plaintiffs were, under the evidence, entitled to recover for the same under the said guarantee. \nThat the defendant was entitled to a reasonable notice of the default of the principal debtors, to enable her to take measures for her indemnity; that it was for the jury to consider, whether under all the circumstances in evidence, the defendant had not had such notice. \n That as to the notes turned over by the principal debtors to J. Gihon and Co., as the same were merely lodged with the latter, on their engagement that the proceeds of them, when received, were to be passed to their credit, the want of protest of any such notes as were dishonoured, or of notice thereof to the said J. and A. Lawrence would not entitle the defendant to charge the plaintiffs with the amount of such notes, or to claim a deduction for that amount. \nAnd with that charge left the said cause to the jury: unto which charge, and to the refusal of the judge to charge otherwise, and as requested by defendant as aforesaid, the defendant's counsel then and there excepted. \nThe jury found a verdict for the plaintiffs for $47,105 97 cents; upon which judgment was rendered for the plaintiffs; and upon that judgment and the exceptions taken at the trial the present writ of error has been brought. \nSome remarks have been made on the argument here upon the point in what manner letters  of guarantee are to be construed; whether they are to receive a strict or a liberal interpretation. We have no difficulty whatsoever in saying, that instruments of this sort ought to receive  a liberal interpretation. By a liberal interpretation, we do not mean, that the words should be forced out of their natural meaning; but simply that the words should receive a fair and reasonable interpretation, so as to attain the objects for which the instrument is designed and the purposes to which it is applied. We should never forget that letters of guarantee are commercial instruments -- generally drawn up by merchants in brief language -- sometimes inartificial, and often loose in their structure and form; and to construe the words  of such instruments with a nice and technical care would not only defeat the intentions of the parties, but render them too unsafe a basis to rely on for extensive credits, so often sought in the present active business of commerce throughout the world. The remarks made by this court in the case of Bell v. Bruen, 1 How. R. 169, 186, meet our entire approbation. The same doctrine was asserted in Mason v. Pritchard, 12 East R. 227, where a guarantee was given for any goods he hath or may supply W. P. with, to the amount of £ 100; and it was held by the court to be a continuing guarantee for goods supplied at any time to W. P. until  the credit was recalled, although goods to more than £ 100 had been first supplied and paid for; and the court on that occasion distinctly stated that the words were to be taken as strongly against the guarantor as the sense of them would admit of. The same doctrine was fully recognised in Haigh v. Brooks, 10 Adol. and El. 309, and in Mayer v. Isaac, 6 Mees. and Wels. 605, and especially expounded in the opinion of Mr. Baron Alderson. It was the very ground, in connection with the accompanying circumstances, upon which this court acted in Lee v. Dick, 10 Peters, 482, and in Mauran v. Bullus, 16 Peters, 528.Indeed, if the language used be ambiguous and admits of two fair interpretations, and the guarantee has advanced his money upon the faith of the interpretation most favourable to his rights, that interpretation will prevail in his favour; for it does not lie in the mouth of the guarantor to say that he may, without peril, scatter ambiguous words, by which the other party is misled to his injury. \nPassing from these general considerations, let us now address ourselves to the points made at the argument. The first point is, that the second advance was made upon terms and under  an agreement materially variant from that on which the guarantee was given, without any communication with the guarantor or her consent thereto. The variances insisted on are two; first, in requiring the bills to be drawn by or in favour of parties permanently resident in Europe; secondly, that if the bills were drawn from the continent of Europe, they should be made at the customary date, say three months. We think that there is no variance whatsoever, which is not fairly within the scope of the original guarantee, and was so contemplated by J. and A. Lawrence, as well as by the agents of the London house. This is explicitly proved by the evidence; for, upon the question arising, both the Lawrences and the agents agreed that it was a continuing guarantee, and as such no new letter of guarantee was needed. It is  true that Mrs. Lawrence was no party to this interpretation of the instrument; but then it is strong evidence to establish that it was neither a forced nor unnatural interpretation of the words. And the agents of the London house agreed to make the second advance upon the faith of it. \nNow, looking to the very words of the guarantee, we see that it contemplated  -- not a single advance and then it was to end -- but a continuing guarantee, and the very words are found in it. It also contemplated not only agreements which had been already made between J. and A. Lawrence and the agents, but also future agreements. The guarantor says: \"I engage that they shall fulfil the agreements they have made, and shall make with you for meeting and reimbursing the payments which you may assume.\" And again: \"You are to consider this a standing and continuing guarantee without the necessity of apprizing me from time to time of your engagements and advances for the house.\" \"So that new engagements and new advances were contemplated to be made to which the guarantee should attach without notice thereof.\" And this is not all -- for the guarantee goes on to provide for its continuance in case of a change in the partners of either firm, (a change which would ordinarily be fatal to a guarantee;) and that the guarantee should apply to and continue upon transactions afterwards between the firms so changed, until notified by her to the contrary. It seems plain from all this language, that a series of new transactions, new agreements, and new engagements were within  the contemplation of the parties; not advances for six months alone, but advances from time to time, for an indefinite period, until notice to the contrary should be given by the guarantor. It is difficult to conceive of any language more definite and more full to express the real intention of the parties. The original advance was, indeed, agreed to be made in the manner stated in the first letter of credit; and if there be any variance between the terms of the first and the second letter of credit, that was left solely and exclusively for the immediate parties J. and A. Lawrence and the agents to adjust and consider. They might enter into any new engagements as to the mode of drawing the bill, and the time which they were to run at their pleasure, without breaking in upon the true intention of the guarantee. All the stipulations of the first letter of credit were retained in the second, and an additional provision made, that if bills were drawn from the continent of Europe they should be made at the customary date and by a permanent resident. But this  left J. and A. Lawrence at full liberty to draw direct on London at four months, if they chose; and in point of fact  no bills were ever drawn by them except direct on London, and not from the continent. The additional liberty given, or condition imposed, was not availed of; and, if it had been, it would not have in any manner exonerated the guarantor from her responsibility. Without, therefore, looking to the question whether these variances might or might not have been material, if new  arrangements and engagements had not been within the scope of the guarantee, we are of opinion, that the objection is, in the present case, not maintainable. \nThis view of the matter disposes also of the second, third, and fourth points made at the argument. \nThe fifth point is, that there is no valid consideration to support the guarantee. This is pressed under two aspects; the first is, that the consideration was past and not present; for the letter of credit had been already delivered to J. and A. Lawrence by the agents of the London house. The second is, that the payment of the one dollar is merely nominal and not sufficient to sustain the guarantee, if it had been received; and it is urged that it was not received. As to this last point, we feel no difficulty. The guarantor acknowledged the  receipt of the one dollar, and is now estopped to deny it. If she has not received it, she would now be entitled to recover it. A valuable consideration, however small or nominal, if given or stipulated for in good faith, is, in the absence of fraud, sufficient to support an action on any parol contract; and this is equally true as to contracts of guarantee as to other contracts. A stipulation in consideration of one dollar is just as effectual and valuable a consideration as a larger sum stipulated for or paid. The very point arose in Dutchman v. Tooth, 5 Bingham's New Cases, 577, where the guarantor gave a guarantee for the payment of the proceeds of the goods the guarantee had consigned to his brother, and also all future shipments the guarantee might make in consideration of two shillings and six-pence paid him, the guarantor. And the court held the guarantee good and the consideration sufficient. In Brooks v. Haigh, 10 Adol. and El. 309, 323, the court held that a surrender by the guarantee of a former guarantee, even if it was not of itself binding upon the guarantor, was a sufficient consideration to take the case out of the statute of fraud and to sustain a promise made  on the footing thereof. But, independently of all authority, we should arrive at the same conclusion. The receipt of the one dollar is acknowledged; no  fraud is pretended or shown; and the consideration, if standing alone in a bona fide transaction would sustain the present suit. \nAs to the other point, that the consideration was past, it admits of several answers, each of which is equally decisive. In the first place, although the Messrs. Lawrence had received the letter of credit before the guarantee was given, yet it was a part of the original agreement contemporaneous with the letter of credit, that it should be given; and if the guarantee had not been given, the whole advance might have been recalled as a fraud upon the London house. In the next place, it does not appear that all the bills for the £ 10,000, under the first letter of credit, were drawn before the guarantee was actually given; and if they were not, certainly it would attach upon the bills drawn under the first credit after it was actually given. The contract was then a continuing contract on both, and partially performed only by one. In the next place, the guarantee itself uses language susceptible  of being treated as a present continuing consideration in fieri. It is \"in consideration of Messrs. J. and A. Lawrence having a credit with your house;\" now, the word \"having\" imports a present or future advance, just as much as a past. The word \"having\" is in the present tense; and if the parties then understood the letter of credit to be in fieri, and to be absolute only upon a condition subsequent, viz.: the giving of the guarantee, the word is the most appropriate which could be used.The case of Hight v. Brooks, 10 Adol. and El. 309, approaches very near to the present. There the guarantee was \"in consideration of being in advance to L. &c., I guaranty, &c.\" The Court of King's Bench thought that the words \"being in advance\" did not necessarily import a past advance, but might be applied to a present or future advance. \nBut that which puts the whole matter in the clearest light and beyond the reach of legal controversy, is that the advances now sued for were all made after the second letter of credit was given; and if the guarantee applied (as we hold it did) to those subsequent advances under the new engagements, then the consideration was complete as upon a present and not  as upon a past consideration. In every view, therefore, in which we can contemplate the objection it has no just foundation in law. \nAs to the sixth point on the question, whether due notice of the failure of Messrs. J. and A. Lawrence to repay the advances had been given; it was a mere question of fact for the consideration of the jury, as to whether the guarantor had reasonable notice or not.  They have found a verdict for the plaintiffs, and we are not at liberty to disturb it in a court of error. \nAs to the seventh point, the notes having been left or collection only with the agents of the London house, although endorsed by the Messrs. Lawrence, they do not fall within the strict rules of commercial law applicable to negotiable paper. Admitting for the sake of the argument, that notice was not punctiliously given by the agents, still it resolves itself into a mere question of due diligence on the part of the agents to collect the notes, and falls under the general law of agency. No evidence was shown at the trial to establish any loss or damage on the part of Mrs. Lawrence for want of due protest and notice, (if they were not made;) and in the absence of such proof  we are not at liberty to presume that the agents did not do their duty. \nThe case of Swift v. Tyson, 16 Peters, 1, is entirely distinguishable from the present in its leading circumstances.There, the question was, not whether a person receiving a note as collateral security or for an antecedent debt was not bound to due diligence in its collection, otherwise he made it his own, which was not doubted; but, whether taking it as collateral security or in payment of an antecedent debt, he was not to be treated as a bona fide holder for a valuable consideration, unaffected by any unknown equities between the original parties. This court held that he was. \nUpon the whole we are all of opinion that there was no error in the rulings of the court, and the judgment is, therefore, affirmed with costs. \nORDER. \nThis cause came on to be heard on the transcript of the record from the Circuit Court of  the United States, for the southern district of New York, and was argued by counsel. On consideration whereof, It is now here ordered and adjudged by this court, that the judgment of the said Circuit Court in this cause be, and the same is hereby affirmed with costs and damages at the  rate of six per cent. per annum. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the court. \nThis is the case of an application on behalf of the City Bank of New Orleans to this court for a prohibition to be issued to the District Court of the United States for the district of Louisiana, to prohibit it from further proceedings in a certain case in bankruptcy pending in the said court upon the petition of William Christy, assignee of Daniel T. Walden, a bankrupt. The suggestions for the writ state at large the whole proceedings before the District Court, and contain allegations of some other facts, which either do not appear at all upon the face of those proceedings, or  qualify or contradict some of the statements contained therein.So far as respects these allegations of facts, not so found in the proceedings of the District Court, we are not upon the present occasion at liberty to entertain any consideration thereof for the purpose of examination or decision, as it would be an exercise of original jurisdiction on the part of this court not confided to us by law. The application for the prohibition is made upon the ground that the District Court has transcended its jurisdiction in entertaining those proceedings; and whether it has or not must depend, not upon facts stated dehors the record, but upon those stated in the record, upon which the District Court was called to act, and by which alone it could regulate its judgment. Other matters, whether going to oust the jurisdiction of the court, or to establish the want of merits in the case of the plaintiff, constitute properly a defense to the suit, to be propounded for the consideration of the District Court by suitable pleadings, supported by suitable  proofs, and cannot be admitted here to displace the right of the District Court to entertain the suit. \nLet us then see what is the nature  of the case originally presented to the District Court. It  is founded upon a petition of William Christy, as assignee of Daniel T. Walden, a bankrupt, in which he states, that the bankrupt, at the time of his filing his schedule of property and surrendering it to his creditors, was in possession of a large amount of real estate, described in the petition, situate in the city of New Orleans, which was to be administered and disposed of in bankruptcy; the bankrupt having applied to the court for the benefit of the Bankrupt Act. It further states, that the City Bank of New Orleans, claiming to be a creditor of the bankrupt and to have a mortgage on the aforesaid property, the said corporation being a schedule creditor, being a party to the proceedings in bankruptcy, and being fully aware of the pendency of the same proceedings, did proceed to the seizure of the said property, and did prosecute the said seizure to a sale of the same property, the same being put up and offered for sale at public auction by the sheriff of the state District Court, on or about the 27th of June, 1842; and it was by the said sheriff declared to be struck off to the said City Bank, notwithstanding  the remonstrances of the said assignee and his demands to have the same delivered up to him for the benefit of all the creditors of the bankrupt. It further avers, that the same property was illegally offered for sale, and that it is itself a nullity, and conferred no title on the said City Bank; that the sale was a fraud upon the Bankrupt Act; that the City Bank attempted thereby to obtain an illegal preference and priority over the other creditors of the bankrupt, and that the propert was sold at two-thirds only of its estimated value; that the City Bank had never delegated to any person the authority to bid off the same ot the said bank at the sale; and that the previous formalities required by law for the sale were not complied with, and that the property had been illegally advertised and appraised. It further avers, that the bankrupt, long prior to his bankruptcy, was contesting the debt claimed by the said bank; and contending that the said debt was not owing by him, and the said property was not bound thereby. It further avers, that the said debt is void for usury on the part of the said bank in making the loan, the same not having been made in money, but that it was received  as at par in bonds of the Municipality No. 2, which were then at depreciation at from twenty to twenty-five per cent., at their real current market value; and that the said bank had no authority to make the said contract or to accept or execute the mortgage given by the bankrupt, and that the contract and mortgage are utterly void, and should be so decreed by the court. \nThe prayer of the petition is, that the sheriff's adjudication of the said property may be declared null and void, and that the said property may be adjudged to form part of the bankruptcy and given up  to the petitioner to be by him administered and disposed of in the said bankruptcy and according to law; that the said debt and mortgage may be decreed to be null and void, and the estate of the said bankrupt discharged from the payment thereof; and that if the said adjudication shall be held valid, and the debt and mortgage maintained by the court, then that the amount of the said adjudication may be ordered to be paid over by the said bank to the petitioner, to be accounted for and distributed by him according to law in the course of the settlement of the bankrupt's estate, and for all general and equitable  relief in the premises. \nTo this petition the bank, by way of answer, pleaded various pleas -- (1) That the District Court had no jurisdiction to decide upon the premises in the petition; (2) That the subject had already become res judicata in two suits of D. T. Walden v. The City Bank, and The City Bank v. D. T. Walden, in the state courts, and by the District Court upon the petition of D. T. Walden for an injunction, (not stating the nature or subject-matters of such suits, so as to ascertain the exact matters therein in controversy;) (3) That the petition contained inconsistent demands, viz.: that the sale be set aside, and that the proceeds of the sale be decreed to the petitioner; and (4) That the mortgages to the bank were valid upon adequate considerations; that the order of seizure and sale were duly granted, and the sale duly made with all legal formalities, and the property adjudicated to the bank; that the price of the adjudication was retained by the bank to satisfy the said mortgages, and that the bank became and were the lawful owners of the property. The pleas concluded with a denial of all the allegations in the petition, and prayed that the issues in fact involved  in the petition be tried by a jury. It is unnecessary for us to consider whether such a mode of pleading is allowable in any proceedings in equity, whether they are summary or plenary. \nUpon this state of the pleadings the petitioner took exceptions to the answer of the bank, and three questions were adjourned into the Circuit Court for its decision. To these questions the Circuit Court returned the following answers. (See them quoted in the statement of the Reporter.) \nSubsequently the assignee filed a supplemental or amended petition in the District Court, stating the matters contained in the original petition more fully and at large, with more precise averments, and mainly relying thereon; and alleging, among other things, that the City Bank became a party to the proceedings in bankruptcy; and by a subsequent amendment or supplemental allegation the assignee averred, that the bank became a party to the proceedings in bankruptcy, first, by operation of law, the bank being at the time of the bankruptcy mortgage creditors of the bankrupt and named in his schedule; secondly, by their own act, having filed a petition in the court, in September, 1842, praying that the demand of the  assignee  for the postponement of the sale of certain property be disregarded, that their privileges be recognised, and that the property be sold under an order of the court for cash; and that the court had since refused leave to the bank to withdraw and discontinue the latter application and petition. \nTo the supplemental and amended petition the bank put in an answer or plea, denying the jurisdiction of the District Court to take cognisance thereof, and insisting that they had never proved their debt in bankruptcy, but had prosecuted their remedy in the state courts against the mortgaged property, relying upon their mortgage as a lien wholly exempted from  the operation of the bankruptcy by the express terms of the Bankrupt Act; that the District Court, sitting as a bankrupt court, and holding summary jurisdiction in matters of bankruptcy under the act of Congress, ought not to take cognisance of the petition and supplemental petition, inasmuch as all jurisdiction over the premises is by law vested in and of right belongs to the Circuit Court of the United States for the eastern district of Louisiana, holding jurisdiction in equity, and proceeding according  to the forms and principles of chancery as prescribed by law, or to the District Court of the United States, proceeding in the same manner, and vested with concurrent jurisdiction over all suits at law or in equity brought by an assignee against any person claiming an adverse interest, which courts are competent to entertain the suit of the petitioner and grant him the relief prayed for, if by law entitled to the same, and not this court; and the bank, therefore, prayed the said petition and supplemental petition to be dismissed for want of jurisdiction. \nThe District Court affirmed its jurisdiction, considering that the matters of the plea had been already determined by the decree of the Circuit Court already referred to, and overruled the plea, and ordered the bank to answer to the merits of the cause. \nIt is at this stage of the proceedings, so far as the record before us enables us to see, that the motion for the prohibition has been brought before this court for consideration and decision. Upon the argument the principal questions which have been discussed are, first, what is the true nature and extent of the jurisdiction of the District Court sitting in bankruptcy? secondly,  whether if the District Court has exceeded its jurisdiction in the present case, a writ of prohibition lies fromthis court to that court to stay farther proceedings? Each of these questions is of great importance, and the first in an especial manner having given rise to some diversity of opinion in the different circuits, and lying at the foundation of all the proceedings in bankruptcy, is essential to be decided in order to a safe and just administration of justice under the Bankrupt Act. \nIn the first place, then, as to the jurisdiction of the District Court in matters of bankruptcy. Independent of the Bankrupt Act of 1841, chap. 9, the District Courts of the United States possess no  equity jurisdiction whatsoever; for the previous legislation of Congress conferred no such authority upon them. Whatever jurisdiction, therefore, they now possess is wholly derived from the act. And, as we shall presently see, the jurisdiction thus conferred is to be exercised by that court summarily in the nature of summary proceedings in equity. \nThe obvious design of the Bankrupt Act of 1841, chap. 9, was to secure a prompt and effectual administration and settlement of the estate  of all bankrupts within a limited period. For this purpose it was indispensable that an entire system adequate to that end should be provided by Congress, capable of being worked out through the instrumentality of its own courts, independently of all aid and assistance from any other tribunals over which it could exercise no effectual control. The 10th section of the act declares, that in order to ensure a speedy settlement and close of the proceedings in each case in bankruptcy, it shall be the duty of the court to order and direct a collection of the assets, and a reduction of the same to money, and a distribution thereof at as early periods as practicable, consistently with a due regard to the interests of the creditors, and that such distribution of the assets so far as can be done consistently with the rights of third persons having adverse claims thereto, shall be made as often as once in six months; and that all the proceedings in bankruptcy in each case, if practicable, shall be finally adjusted, settled, and brought to a close by the court, within two years after the decree declaring the bankruptcy. By another section of the act, (§ 3,) the assignee is vested with all  the rights, titles, powers, and authorities, to sell, manage, and dispose of the estate and property of the bankrupt, of every name and nature, and to sue for and defend the same, subject to the orders and directions of the court, as fully as the bankrupt might before his bankruptcy. By another section, (§ 9,) all sales, transfers, and other conveyances of the bankrupt's property, and rights of property, are required to be made by the assignee at such times and in such manner as shall be ordered and appointed by the court in bankruptcy. By another section, (§ 11,) the assignee is clothed with full authority, by and under the order and direction of the proper court in bankruptcy, to redeem and discharge any mortgage, or other pledge, or deposit, or lien upon any property, real or personal, and to tender a due performance thereof, and to compound any debts or other claims or securities due or belonging to the estate of the bankrupt. \nFrom this brief review of these enactments it is manifest that the purposes so essential to the just operation of the bankrupt system, could scarcely e accomplished except by clothing the courts of the United States sitting in bankruptcy with the most  ample powers and jurisdiction to accomplish them; and it would be a matter of extreme surprise if, when Congress had thus required the end,  they should at the same time have withheld the means by which alone it could be successfully reached. Accordingly we find that by the 6th section of the act it is expressly provided, \"that the District Court in every district shall have jurisdiction in all matters and proceedings in bankruptcy arising under this act, and any other act which may hereafter be passed on the subject of bankruptcy, the said jurisdiction to be exercised summarily in the nature of summary proceedings in equity; and for this purpose the said District Court shall be deemed always open. And the district judge may adjourn any point or question arising in any case in bankruptcy into the Circuit Court for the district, in his discretion, to be there heard and determined; and for this purpose the Circuit Court of such district shall also be deemed always open.\" If the section had stopped here, there could have been no reasonable ground to doubt that it reached all cases where the rights, claims, and property of the bankrupt, or those of his assignee, are concerned,  since they are matters arising under the act, and are necessarily involved in the due administration and settlement of the bankrupt's estate. In this respect  the language of the act seems to have been borrowed from the language of the Constitution, in which the judicial power is declared to extend to cases arising under the Constitution, laws, or treaties of the United States. But the section does not stop here, but in order to avoid all doubt it goes on to enumerate certain specific classes of cases to which the jurisdiction shall be deemed to extend, not by way of limitation, but in explanation and illustration of the generality of the preceding language. The section further declares: \"And the jurisdiction hereby conferred on the District Court shall extend to all cases and controversies in bankruptcy arising between the bankrupt and any creditor or creditors, who shall claim any debt or demand under the bankruptcy; to all cases all controversies between such creditor or creditors and the assignee of the estate, whether in office or removed; and to all acts, matters, and things, to be done under and in virtue of the bankruptcy until the final distribution and settlement  of the estate of the bankrupt, and the close of the proceedings in bankruptcy.\" This last clause is manifestly added in order to prevent the force of any argument that the specific enumeration of the particular classes of cases ought to be construed as excluding all others not enumerated, upon the known maxim, often incorrectly applied, expressio unius est exclusio alterius. The 8th section of the act further illustrates this subject. It is there provided, \"that the Circuit Court within and for the district where the decree of bankruptcy is passed, shall have concurrent jurisdiction with the District Court of the same district, of all suits at law and in equity which may and shall be brought by any assignee of the bankrupt against any person or persons claiming an adverse interest, or by such person against such assignee touching any property or rights of property of such bankrupt transferrable to or vested in such  assignee.\" Now, this clause certainly supposes either that the District Court, in virtue of the 6th section above cited, is already in full possession of the jurisdiction, in the class of cases here mentioned, at least so far as they are of an equitable nature,  and then confers the like concurrent jurisdiction on the Circuit Court, or it intends to confer on both courts a coextensive authority over that very class of cases, and thereby demonstrate that Congress did not intend to limit the jurisdiction of the District Court to the classes of cases specifically enumerated in the 6th section, but to bring within its reach all adverse claims. Of course, in whichever court such adverse suit should be first brought, that would give such court full jurisdiction thereof, to the exclusion of the other, but in no shape whatsoever can this clause be construed otherwise to abridge the exclusive jurisdiction of the District Court over all other \"matters and proceedings in bankruptcy arising under the act,\" or over \"all acts, and matters and things to be done under and in virtue of the bankruptcy.\" \nOne ground urged in the declinatory plea of the bank to the supplemental petition, and also in the argument here, is, that the District Court would have had jurisdiction in equity over the present case, if the suit had been by a formal bill and other plenary proceedings according to the common course of such suits in the Circuit Court, but that it has no right  to sustain the suit in its present form of a summary proceeding in equity. Now, without stopping to consider whether the p etition of the assignee in the present case is not in substance, and for all useful purposes, a bill in equity, it is clear that the suggestion has no foundation whatsoever in the language or objects of the 6th or 8th sections of the Bankrupt Act. There is no provision in the former section authorizing or requiring the District Court to proceed in equity otherwise than \"summarily in the nature of summary proceedings in equity;\" and that court is by the same section clothed with full power and authority, and indeed it is made its duty, \"from time to time to prescribe suitable rules, and regulations, and forms of proceedings, in all matters in bankruptcy,\" subject to the revision of the Circuit Court; and it is added: \"And in all such rules, and regulations, and forms, it shall be the duty of the said courts to make them as simple and brief as practicable, to the end to avoid all unnecessary expenses, and to facilitate the use thereof by \"the public at large.\" If any inference is to be drawn from this language, it is, not that the District Court should in any case  proceed by plenary proceedings in equity in cases of bankruptcy, but that the Circuit Court should, by the interposition of its revising power, aid in the suppression of any such plenary proceedings if they should be attempted therein. The manifest object of the act was to provide speedy proceedings, and the ascertainment and adjustment of all claims and rights in favour of or against the bankrupt's estate, in the most expeditious manner,  consistent with justice and equity, without being retarded or obstructed by formal proceedings, according to the general course of equity practice, which had nothing to do with the merits. \nAnother ground of objection insisted on in the argument is, that the language of the 6th section, where it refers to \"any creditor, or creditors, who shall claim any debt or demand under the bandruptcy,\" is exclusively limited to such creditors as come in and prove their debts under the bankruptcy, and does not apply to creditors who claim adversely thereto. If this argument were well founded, it would be sufficient to say, that the case would then fall within the concurrent jurisdiction given by the 8th section already cited, and therefore not avail  for the City Bank. But we do not so interpret the language. When creditors are spoken of \"who claim a debt or demand under the bankruptcy,\" we understand the meaning to be that they are creditors of the bankrupt, and that their debts constitute present subsisting claims upon the bankrupt's estate, unextinguished in fact or in law, and capable of being asserted under the bankruptcy in any manner and form which the creditors might elect, whether they have a security by way of pledge or mortgage therefor or not. If they have a pledge or mortgage therefor, they may apply to the court to have the same sold, and the proceeds thereof applied towards the payment of their debts pro tanto, and to prove for the residue; or, on the other hand, the assignee may contest their claims in the court, or seek to ascertain the true amount thereof, and have the residue of the property, after satisfying their claims, applied  for the benefit of the other creditors. Still, the debts on demands are in either view debts or demands under the bankruptcy, and they are required by the Bankrupt Act to be included by the bankrupt in the list of the debts due to his creditors when he applies for the  benefit of the act; so that there is nothing in the language or intent of the 6th section to justify the conclusion which the argument seeks to arrive at. The 5th section of the Bankrupt Act is framed diverso intuitu. It does not speak of creditors who shall claim any debt or demand under the bankruptcy, but it uses other qualifying language. The words are: \"All creditors coming in and proving their debts under such bankruptcy in the manner hereinafter prescribed, the same being bona fide debts, shall be entitled to share in the bankrupt's property and effects pro rata, &c.; and no creditor or other person coming in or proving his debt or other claim, shall be allowed to maintain any suit at law or in equity therefor, but shall be deemed thereby to have waived all right of action and suit against such bankrupt.\" But this provision by no means interferes with the right of any creditor to proceed against the assignee under the bankruptcy to have the benefit of any mortgage, pledge, or other security, pro tanto for his debt, if he elects so to do, or with the rights of the assignee to redeem the  same, or otherwise to contest the validity of the debt or security under the  bankruptcy. \nIt is also suggested that the proviso of the 2d section of the act declares, \"That nothing in this act shall be construed to annul, destroy, or impair any lawful rights of married women or minors, or any liens, mortgages, or other securities on property, real or personal, which may be valid by the laws of the states respectively, and which may not be inconsistent with the provisions of the 2d and 5th sections of this act;\" and that thereby such liens, mortgages, and other securities are saved from the operation of the Bankrupt Act, and by inference from the jurisdiction of the District Court. But we are of opinion that the inference thus attempted to be drawn, is not justified by the premises. There is no doubt that the liens, mortgages, and other securities within the purview of this proviso, so far as they are valid by the state laws, are not to be annulled, destroyed, or impaired under the proceedings in bankruptcy; but they are to be held of equal obligation and validity in the courts of the United States as they would be in the state courts. The District Court, sitting in bankruptcy, is bound to respect and protect them. But this does not and cannot interfere  with the jurisdiction and right of the District Court to inquire into and ascertain the validity and extent of such liens, mortgages, and other securities, and to grant the same remedial justice and relief to all the parties interested therein as the state courts might or ought to grant. If the argument has any force, it would go equally to establish, that no court of the United States, neither the Circuit Court, nor the District Court, could entertain any jurisdiction over any such cases, but that they exclusively belong to the jurisdiction of the state courts. Such a conclusion would be at war with the whole theory and practice under the judicial power given by the Constitution and laws of the United States. The rights and the remedies in such cases are entirely distinct. While the former are to be fully recognised in all courts, the latter belong to the lex fori, and are within the competency of the national courts equally with the state courts. \nLet us sift this argument a little more in detail. The 8th section of the Bankrupt Act (as we have already seen) confers on the Circuit Court concurrent jurisdiction with the District Court of all suits at law and in equity brought  by the assignee against any person claiming an adverse interest, and e converso by such person against the assignee. Now, the argument at the bar supposes, that a creditor having any lien, mortgage, or other security, falls within the category here described as having an adverse interest. Assuming this to be true, (on which we give no opinion; and the clause certainly does include persons claiming by titles paramount and not under the bankrupt,) still it must be admitted that, under the 8th section, a bill in equity may be brought by or against such creditor in the Circuit Court to redeem or foreclose, or to enforce, or to set  aside such a lien, mortgage, or other security? If it can be, then the lien, mortgage, or other security, is not saved from the cognisance of the Circuit Court having jurisdiction in bankruptcy, but the most ample remedies lie there; and although the rights of such creditors are to be protected, they are subject to the entire examination and decision of the court as much as they would be, if brought before the court in the exercise of its ordinary jurisdiction. If, then, the jurisdiction over such liens, mortgages, and securities exists in the  Circuit Court, it follows from the very words of the Bankrupt Act, that the District Court has a concurrent jurisdiction to the same extent and with the same powers. \nBut it is objected, that the jurisdiction of the District Court is summary in equity and without appeal to any higher court. This we readily admit. But this was a matter for the consideration of Congress in framing the act. Congress possess the sole right to say what shall be the forms of proceedings, either in equity or at law, in the courts of the United States; and in what cases an appeal shall be allowed or not. It is a matter of sound discretion, and to be exercised by Congress in such a manner as shall in their judgment best promote the public convenience and the true interests of the citizens. Because the proceedings are to be in the nature of summary proceedings in equity, it by no means follows, that they are not entirely consistent with the principles of justice and adapted to promote the interest as well as the convenience of all suitors. Because there is no appeal given, it by no means follows, that the jurisdiction is either oppressive or dangerous. No appeal lies from the judgments either of the District  or Circuit Court in criminal cases; and yet within the cognisance of one or both of those courts are all crimes and offences against the United States, from those which are capital down to the lowest misdemeanors, affecting the liberty and the property of the citizens. And yet there can be no doubt that this denial of appellate jurisdiction is founded in a wise protective public policy. The same reasoning would apply to the appellate jurisdiction from the decrees and judgments of the Circuit Court,  which are limited to cases above $2000, and cases below that sum embrace a large proportion of the business of that court. \nBut, in the present instance, the public policy of confiding the whole jurisdiction to the District Court without appeal in ordinary cases requires no elaborate argument for its vindication. The district judges are presumed to be entirely competent to all the duties imposed upon them by the Bankrupt Act. In cases of doubt or difficulty, the judges have full authority given to them to adjourn any questions into the Circuit Court for a final decision. That very course was adopted i n the present case. In the next place, in one class of cases, that of  adverse interests between the assignee and third persons, either party is at liberty to institute original proceedings in the Circuit Court, if a prior suit has not been brought therefor,  in the District Court. So that here the act has afforded effectual means to have the aid and assistance of the judge of the Circuit Court, wherever it may seem to be either expedient or necessary to resolve any questions of importance or difficulty, and it has also secured to parties having an adverse interest a right at their election to proceed in the District or the Circuit Court for any remedial justice which their case may require. On the other hand, the avowed policy of the Bankrupt Act, that of ensuring a speedy administration and distribution of the bankrupt's effects, would (as has been already suggested) be greatly retarded, if not utterly defeated by the delays necessarily incident to regular and plenary proceedings in equity in the District Court, or by allowing appeals from the District Court to the Circuit Court in all matters arising under the Bankruptcy. \nIt is farther objected that, if the jurisdiction of the District Court is as broad and comprehensive as the terms  of the act justify according to the interpretation here insisted on, it operates or may operate to suspend or control all proceedings in the state courts either then pending or thereafter to be brought by any creditor or person having any adverse interest to enforce his rights or obtain remedial redress against the bankrupt or his assets after the bankruptcy. We entertain no doubt that, under the provisions of the 6th section of the act, the District Court does possess full jurisdiction to suspend or control such proceedings in the state courts, not by acting on the courts, over which it possesses no authority; but by acting on the parties through the instrumentality of an injunction or other remedial proceedings in equity upon due application made by the assignee and a proper case being laid before the court requiring such interference. Such a course is very familiar in courts of chancery, in cases where a creditors' bill is filed for the administration of the estate of a deceased person, and it becomes necessary or proper to take the whole assets into the hands of the courts for the purpose of collecting and marshalling the assets, ascertaining and adjusting conflicting priorities  and claims, and accomplishing a due and equitable distribution among all the parties in interest in the estate. Similar proceedings have been instituted in England in cases of bankruptcy; and they were without doubt in the contemplation of Congress as indispensable to the practical working of the bankrupt system. But because the District Court does possess such a jurisdiction under the act, there is nothing in the act which requires that it should in all cases be absolutely exercised. On the contrary, where suits are pending in the state courts, and there is nothing in them which requires the equitable interference of the District Court to prevent any mischief or wrong to other creditors under the bankruptcy, or any waste or misapplication of the assets, the parties may well be permitted to proceed in such suits and consummate them by proper decrees and judgments, especially where there is no suggestion of any fraud or injustice on the part of the plaintiffs in those  suits. The act itself contemplates that such suits may be prosecuted and further proceedings had in the state courts; for the assignee is by the 3d section authorized to sue for and defend the property  vested in him under the bankruptcy, \"subject to the orders and directions of the District Court,\" \"and all suits at law and in equity then pending in which such bankrupt is a party, may be prosecuted and defended by such assignee to its final conclusion in the same way and manner and with the same effect as they might have been by the bankrupt.\" So that here the prosecution or defence of any such suits in the state courts is obviously intended to be place under the discretionary authority of the District Court. And in point of fact, as we all know, very few, comparatively speaking, of the numerous suits pending in the state courts at the time of the bankruptcy ever have been interfered with, and never, unless some equity intervened which required the interposition of the District Court to sustain or protect it. \nIt would be easy to put cases in which the exercise of this authority may be indispensable on the part of the District Court, to prevent irreparable injury, or loss, or waste, of the assets, without adverting to the case at bar, where, upon the allegations in the petition and supplemental petition, the creditors of the bankrupt are attempting on enforce a mortgage asserted  to be illegal and invalid, and to procure a forced sale of the property by the sheriff, in an illegal and irregular manner, thereby sacrificing the interest of the other creditors under the bankruptcy. Let us put the case of numerous suits pending, or to be brought in the state courts, upon different mortgages, by the mortgagees, upon various tracts of land and other property, some of the mortgages being upon the whole of the tracts of land or other property; some upon a part only thereof; some of them involving a conflict of independent title; some of them involving questions as to the extinguishment, or satisfaction, or validity, of the debts; and some of them involving very doubtful questions as to the construction of the terms and extent of the conveyances. If all such suits may be brought by the separate mortgagees, in the different state tribunals, and the mortgagees cannot be compelled to join in, or to be made parties defendant to one single bill, (as is certainly the case in those states where general equity jurisdiction is not given to the state courts,) it is most obvious that, as each of the state tribunals may or must proceed upon the single case only before it,   the most conflicting decisions may be made, and gross and irreparable injustice may be done to the other mortgagees, as well as to the general creditors under the bankruptcy. All this, however, is completely avoided, by bringing the whole matters in controversy between all the mortgagees before the District or Circuit Court, making them all parties to the summary proceedings in equity, and thus enabling the court to marshal the rights, and priorities, and claims, of all the parties, and by a sale and other proper proceedings, after satisfying  the just claims of all the mortgagees, applying the residue of the assets, if any, for the benefit of the general creditors. Similar considerations would apply to other liens and securities, held by different parties in the same property, or furnishing grounds of conflict and controversy as to their respective rights and claims. \nBesides, how is the bankrupt court or the assignee, in a great variety of cases of liens, mortgages, and other securities, to ascertain the just and full amount thereof after the deduction of all payments and equitable set-offs, unless it can entertain a suit in equity, for a discovery of the debts, and payments,  and set-offs, and grant suitable relief in the premises? The bankrupt is not, in his schedule, bound to specify them; and if he did, non constat that the other parties would admit their correctness, or that the general creditors would admit their validity and amount. The 11th section of the act gives the assignee full power and authority, by and under the order and direction of the proper court in bankruptcy, to redeem and discharge any mortgage or other pledge, or deposit, or lien, upon any property, and to tender a due performance of the conditions thereof. But how can this be effectually done, unless the bankrupt court and assignee can, by proceedings in that very court, ascertain what is the amount of such mortgage, or pledge, or deposit, or lien, and what acts are to be done as a performance of the mortgage, or pledge, or deposit, through the instrumentality of a suit in the nature of a summary proceeding in equity for a discovery and relief? If we are told that resort may be had to the state courts for redress, one answer is, that in some of the states no adequate jurisdiction exists in the state courts, since they are not clothed with general jurisdiction in equity. But  a stronger and more conclusive answer is, that Congress did not intend to trust the working of the bankrupt system solely to the state courts of twenty-six states, which were independent of any control by the general government, and were under no obligations to carry the system into effect. The judicial power of the United States is, by the Constitution, competent to all such purposes; and Congress, by the act, intended to secure to complete administration of the whole system in its own courts, as it constitutionally might do. \nLet us look at another provision of the act already referred to, which declares, \"that in order to insure a speedy settlement and close of the proceedings in each case in bankruptcy, it shall be the duty of the court to order and direct a collection of the assets, and a reduction of the same to money, and a distribution thereof, at as early periods as practicable.\" Now here again, it may be repeated, that the end is required, and can it be doubted that adequate means to accomplish the end are intended to be given? Construing the language of the 6th section as we construe it, adequate means are given; construing it the other way, and it excludes the jurisdiction,  if not of the whole subject, at least of the most important parts of  the system, and they are left solely to the cognisance of the tribunals of twenty-six different states, no one of which is bound by the acts of the others, or is under the control of the national courts. If it be admitted, (what cannot well be denied,) that the District Court may order a sale of the property of the bankrupt, under this section, how can that sale be made safe to the purchasers, until all claims thereon have been ascertained and adjusted? How can any distribution of the assets be made, until all such claims are definitively liquidated? How can the proceedings be brought to a close at all, far less within the two years, unless all parties claiming an interest, adverse or otherwise, can be brought before the bankrupt court, to assert and maintain them? Besides, independently of the delays which must necessarily be incident to a resort to state tribunals to adjust the matters and rights affected by or arising in bankruptcy, considering the vast number of cases pending in those courts, in the due administration of their own jurisprudence and laws, there could hardly fail to be a conflict  in the decisions, as to the priority and extent of the various claims of the creditors, pursuing their remedies therein in distinct and independent suits, and perhaps, also, in different state tribunals of co-ordinate jurisdiction.These are but a few of the cases which may be put to show the propriety, nay, the necessity, of the jurisdiction of the District Court to the full extent of reaching all cases arising out of the bankrupt act. \nThe truth is, (as has been already asserted,) that in no other way could the bankrupt system be put into operation, without interminable doubts, controversies, embarrassments, and difficulties, or in such a manner as to achieve the true end and design thereof.Its success was dependent upon the national machinery being made adequate to all the exigencies of the act. Prompt and ready action, without heavy charges or expenses, could be safely relied on, when the whole jurisdiction was confided to a single court, in the collection of the assets; in the ascertainment and liquidation of the liens and other specific claims thereon; in adjusting the various priorities and conflicting interests; in marshalling the different funds and assets; in directing the  sales at such times and in such a manner as should best subserve the interests of all concerned; in preventing, by injunction or otherwise, any particular creditor or person, having an adverse interest, from obtaining an unjust and inequitable preference over the general creditors, by an improper use of his rights or his remedies in the state tribunals; and finally, in making a due distribution of the assets, and bringing to a close, within a reasonable time, the whole proceedings in bankruptcy. Sound policy, therefore, and a just regard to public as well as private interests, manifestly dictated to Congress the propriety of vesting in the District Court full and complete jurisdiction over all cases arising, or acts done, or matters  involved, in the due administration and final settlement of the bankrupt's estate; and it is accordingly, in our judgment,  designedly given by the 6th section of the act. In this view of the matter, the District Court has not exceeded its jurisdiction in entertaining the present suit, but it has full power and authority to proceed to the due adjudication thereof upon its merits. \nThis view of the subject disposes also of the other  question made at the bar, whether this court has jurisdiction to issue a writ of prohibition to the District Court in cases in bankruptcy, if it has exceeded its proper jurisdiction. As the District Court has not exceeded its jurisdiction in the present case, the question is not absolutely necessary to be decided. But it may be proper to say, as the point has been fully argued, that we possess no revising power over the decrees of the District Court sitting in bankruptcy; that the District Court, in the present case, has not interfered with, or in any manner evaded or obstructed, the appellate authority of this court, by entertaining the present writ; and that we know of no case where this court is authorized to issue a writ of prohibition to the District Court, except in the cases expressly provided for by the 13th section of the Judiciary Act of 1789, chap. 20, that is to say, where the District Courts are \"proceeding as courts of admiralty and maritime jurisdiction.\" \nUpon the whole, the motion for a writ of prohibition is overruled. \nDissent by:", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the court. \nThis is a writ of error to the judgment of the Circuit Court of the eastern district of Pennsylvania, affirming the judgment of the District Court founded upon an information in rem against certain cases of cloths and cassimeres seized on land in the said district. The cause was tried by a jury, who returned a verdict for the United States, upon which the judgment was rendered. \nThe information contained thirteen counts. The first and second counts were founded on the 50th section of the Duty-Collection Act of 1799, chap. 128; the third count was founded on the 68th section  of the same act; the fourth, fifth, and tenth counts were founded on the 66th section of the same act; the sixth, seventh, eighth, eleventh, and twelfth counts were founded on the 4th section of the act of the 28th of May, 1830, chap. 147; and the ninth and thirteenth counts were founded on the 14th section of the act of the 14th of July, 1832, chap. 224. The claimants put in a plea or answer denying the allegations in the information,  upon which an issue was tendered and joined, and tried by the jury. \nAt the trial, certain exceptions were taken to the matters ruled, and to the charge given by the learned judge who presided at the trial, the form and frame of which exceptions, as propounded by the counsel, we do not propose to examine; and the questions submitted to us arise from the matters of law thus ruled and contained in his charge. With the comments of the learned judge upon the evidence, except so far as they involved matters of law, we have nothing to do, as they were submitted solely for the consideration of the jury in weighing the evidence, of which they were the proper and final judges. \nIn the course of the argument in this court, an objection was insisted on, that the seizure itself upon which the information is founded, was irregularly and improperly made, it having been made by the collector of the customs of the port of Philadelphia, when it should have been made by the collector of the customs of the port of New York. And some reliance in support of this objection seems to have been placed upon the supposed intention of the 68th section of the Duty-Collection Act of 1799, chap. 128. But if any  reliance could be placed thereon, (as we think it could not,) it would be completely removed by the 70th section of the same act, which makes it the duty of the several officers of the customs to make seizure of all vessels and goods liable to seizure by virtue of that act or any other act respecting the revenue, as well without as within their respective districts. So that it is plain from this provision that a seizure made by any officer of the customs of any district would be good, although made within any other district. And the whole structure of the act shows that any officer of the  customs had a perfect right to seize goods found in his own district, and indeed that it was his appropriate duty. \nBut the objection itself has no just foundation in law. At the common law any person may, at his peril, seize for a forfeiture to the government, and, if the government adopts his seizure, and institutes proceedings to enforce the forfeiture, and the property is condemned, he will be completely justified. So that it is wholly immaterial in such a case who makes the seizure, or whether it is irregularly made or not, or whether the cause assigned originally for the seizure  be that for which the condemnation takes place, provided the adjudication is for a sufficient cause. This doctrine was fully recognised by this court in Hoyt v. Gelston, 3 Wheat. 247,  310, and in Wood v. United States, 16 Peters, 342, 358, 359. And from these decisions we feel not the slightest inclination to depart. \nIndeed, if the objection could under any circumstances be maintainable, it was matter that should have been propounded as preliminary matter in the nature of a plea in abatement of the information, and could constitute no point before the jury upon pleadings addressed to the merits of the case, and involving the direct question of forfeiture or not. \nIn the course of the trial several objections to the competency of certain witnesses, and to the admissibility of certain evidence, offered on behalf of the United States, were taken by the claimants. In the first place an objection was taken to the competency of John J. Logue, George Gideon, and William Cairns, called to support the issue on behalf of the United States, they being officers of the customs and the persons who made the seizure of the goods in controversy. By the 71st section of the Duty-Collection  Act of 1799, chap. 128, the onus probandi to establish the innocence of the property is thrown upon the claimant in all cases where probable cause is shown for the seizure and prosecution. And by the 89th section of the same act it is provided, that when in any prosecution on account of a seizure judgment shall be given for the claimant, if it shall appear to the court before whom such prosecution shall be tried, that there was a reasonable cause of seizure, the court shall cause a certificate and entry to be made thereof; and in such case the person making the seizure, or the prosecutor, shall not be liable to any action, suit, or judgment, on account of such seizure and prosecution. The argument, therefore, on behalf of the claimant is, that these witnesses are incompetent, they being interested in the event of the suit, and being liable to an action at the suit of the claimants, if reasonable cause for the seizure was not established, and that their testimony in effect would conduce to establish such reasonable cause. \nSeveral answers may be given to this objection. In the first place, it is not true, that the mere liability of a party to an action in one event of a suit will  constitute of itself an absolute or universal objection to his competency.There are many exceptions to the rule on this subject, founded upon necessity, or public policy, or the remoteness, the uncertainty, or the contingent nature of the liability. The present case falls directly within these exceptions. The witnesses were acting as the agents of the government in making the search and seizure; they alone could give testimony as to the facts attending such search and seizure, and were, therefore, witnesses from necessity; and their acts being adopted or authorized by the government, public policy requires that the government should have the means of enforcing its own rights through the instrumentality of their testimony. Their competency for such purposes falls directly within the reasoning of the Court of King's Bench in the case of The King v. Williams, 9 Barn. & Cres. 549, and the case of United States v.  Murphy, 16 Peters, 203, where the subject was considered very much at large. \nIn the next place, the witnesses were not objectionable in point of competency on account of any interest in the event of the cause. Their interest, if any they had, as informers or otherwise,  in the forfeiture, was completely removed by the provision of the 91st section of the Duty-Collection Act of 1799, chap. 128, which, when they are used as witnesses, takes away from them the share of the forfeiture to which they would otherwise be entitled. In the event of the suit, therefore, they had no interest, for the suti was solely to enforce the forfeiture. The question, whether there was probable or reasonable cause for the seizure, constittuted no part of the issue to be tried by the jury. So far as it respected throwing the onus probandi upon the claimants it was a matter solely for the consideration of the court in the progress of the trial, and collateral to the main inquiry, although of great importance in regulating the nature and extent and sufficiency of the evidence. And so far as respected the certificate and entry of reasonable cause to protect the seizors from future liability for the seizure, it was no part of the issue, and, indeed, was an act to be done by the court before whom the prosecution was tried, only in case judgment upon the verdict should pass for the claimants; and it, therefore, was plainly an act to be done and inquiry to be had posterior to  the trial. \nIn the next place, the objection taken was to the competency of the witnesses, as such, for any purposes in the cause. They were not called by the government as witnesses to give evidence of matters showing reasonable or probable cause for the seizure, but as witnesses generally \"to support the issue on the part\" of the government. If competent for any purpose upon the trial, they could not be rejected generally; and that they were competent to prove \"the facts attending the seizure of the goods, and that certain original marks on packages containing the said goods had been erased, and among them the mark [B]F, which was originally upon one of the said packages,\" cannot, in our judgment, admit of any just doubt. It could make no difference as to their admissibility for these purposes, that collaterally these facts might bear upon the question of probable or reasonable cause or not. \nIn the next place, there was another and independent ground upon which their competency is clear.It is, that they were acting under a search-warrant in making the search and seizure, which would undoubtedly, under the 68th section of the same act, be a complete protection to them against  all liability to any suit therefor,  unless indeed in a case where the witnesses acted from malice, and also without probable cause; and the absence of either would exonerate them from all liability.So that in this view their liability was remote, contingent, and uncertain. \n Upon all these grounds we are of opinion, that the witnesses were clearly admissible. \nAnother objection was to the admissibility of a bill of lading, entry, and owner's oath, taken on the 16th of July, 1839, in the moth preceding the seizure of the goods in question, of nineteen cases of goods (not part of the goods seized) marked [B]F, 1 a 19. Although this evidence was objected to, ans it was admitted, yet it does not appear upon the record, that any exception was taken to the ruling. But, without dwelling upon this, which was perhaps in accidental omission, it is proper to say, that this evidence was no offered as a single, isolated document, (for in that view it might be deemed at most as irrelevant and inconsequential for any purpose,) but it was offered in connection with other documents and evidence to establish a privity between Taylor and Blackburne & Co. in other importations  of a kindred character, and under a scheme of meditated fraud upon the revenue of the United States, of which these documents were a link in the chain. For this purpose they might be important and necessary; and although the whole evidence is not set forth in the record, yet it is apparent, from what is there found in reference to the next objection, that the evidence had an intimate connection and bearing upon that which is there stated. \nThe objection here alluded to is in the record stated in the following words: \"The counsel of the United States\" -- [see the paragraph in the statement of the Reporter which is included within brackets.] Now, we think the exception to this evidence was properly over ruled, and the evidence admissible to establish the connection between Taylor and Blackburne in other importations as well as in the importation of the goods now in controversy, and also to displace any presumption that the acts of the one were not properly to be deemed attributable to any connivance with the other, or that they were not jointly interested in the same scheme of importations, and mutually cognisant of the designs of each other. What effec this evidence ought to have  after its admission in the cause, taken in connection with the other evidence, was a matter for the consideration of the jury alone; but of its admissibility for the purposes abovestated we entertain no doubt. It is, indeed, a strange omission in the record, that the other evidence in the case is not therein fully stated, nor the points, to which it was adduced, suggested, so that we are left to conjecture from very imperfect materials what was the true extent and bearing of the various matters excepted to as improper evidence. \nAnother objection is to a question put to Abraham J. Lewis, a witness on behalf of the United States, who, having stated that his firm were importers of cloths and kerseymeres, and that he had thereby a knowledge of their quality, was asked, on cross-examination, to state the extent of the importations of his firm; and in reply he said, \"Formerly we imported large quantities of woollens; for  three or four years past we have imported but a few packages annually.\" Whereupon the counsel for the United States, on re-examination, proposed the following question, viz.: \"Was there any thing in the state of the market, which caused the alteration which  you have mentioned in the amount imported by you within four or five years last past?\" to which question the claimants objected; but the judge allowed the question to be put, saying it might have some bearing on the case, and that it was but following out the question put on the cross-examination. We think the decision of the court was perfectly correct, for the reason stated by the judge. The answer might show that the witness had ceased to import so largely, not form want of skill or capital, but for reasons which might connect themselves with the importations of the claimants. What the answer was we do not know; and certainly it could be no just ground of exception, that the answer was such as had no bearing either way upon the merits of the case, and a fortiori not, if favourable to the claimants. \nAnother objection was to the admissibility of the evidence of David Gardner, who was offered to prove that certain goods, marked [B]F, which had been imported into New York, in the ship Eutaw, being the same on which Francis Blackburne was alleged to have paid the freight, were still in the custom-house at New York. We think that this evidence was properly admissible, for the same  reasons as those which have been already stated It was a part of the res gesta. If the other parts of the evidence were favourable to the innocence of the claimants in their various importations, then no conclusion against them could fairly be drawn from this fact. But if, on the other hand, strong circumstances of suspicion of fraud attached to other importations, then the circumstance, so contrary to the usual course of mercantile transactions in cases of perishable articles, or articles liable to depreciation or decay, of their remaining long in the custom-house, might fairly be deemed to inflame those suspecions, especially if in the interval the government was on the alert to detect supposed frauds in other importations. \nAnother objection was to the admission of the evidence of an invoice of merinoes, (not part of the goods mentioned in the information,) entered in Philadelphia, by Blackburne & Co., and marked [B]F, 35 to 53, offered as strengthening the evidence of the ownership of packages with this mark. In this view we can perceive no possible question as to the competency or propriety of the evidence. \nAnother objection was to the admissibility in evidence of certain  invoices of Blackburne, Taylor, Okie & Robinson, to show the absence of any such usage as to the allowance of five per cent. for measurement, as had been testified to by the witnesses on the part of the claimants. We see no just ground of exception to the admissibility of such evidence. The usage set up was of a general  nature, and all evidence which went to establish the want of such generality, by proof of the non-existence of such a deduction ininvoices of a similar nature -- where, if it was general and well known, it ought to be found -- was certainly admissible to  rebut the presumptions derived from the adverse proof. The same answer may be given, and indeed applies more forcibly, to the evidence given by Robert Walker, a witness for the claimants, who, upon his crossexamination, verified several invoices of his own importations into the port of New York; and also a letter of one Waite, annexed to one of the invoices. The introduction of this letter was objected to; but it was an accompaniment of the invoice introduced without objection, and it was offered not in chief, but as qualifying and repelling the evidence offered by the claimants as to the  five per cent. usage -- founded, among that of others, upon the very testimony of Walker. The other invoices verified by Walker were, for the same reason, in our judgment, equally admissible. \nWe have thus gone over the various objections taken to the competency and admissibility of the testimony in this case; some of which, considering all the circumstances of the case, can scarcely be treated otherwise than as being inter apices juris; and shall now proceed to examine the exceptions taken to the charge of the court. Of many of these it is unnecessary to take any special notice, since they have been already disposed of in the case of Wood v. United States, 16 Peters, 342, or have incidentally fallen under notice in the preceding parts of this opinion. Upon the point that the revenue laws, on which the information was founded, were not, as the judge in the court below suggested, to be deemed penal laws in the sense in which that phrase is sometimes used, it may be proper to say a very few words. He treated the point as not of great importance in the case, as we think it was not, since it had no tendency to change the interpretation of the provisions of the revenue laws then under  his consideration. In one sense, every law imposing a penalty or forfeiture may be deemed a penal law; in another sense, such laws are often deemed, and truly deserve to be called, remedial. The judge was therefore strictly accurate, when he stated that \"It must not be understood that every law which imposes a penalty is, therefore, legally speaking, a penal law, that is, a law which is to be construed with great strictness in favour of the defendant. Laws enacted for the prevention of fraud, for the suppression of a public wrong, or to effect a public good, are not, in the strict sense, penal acts, although they may inflict a penalty for violating them.\" And he added, \"It is in this light I viwew the revenue laws, and I would construe them so as most effectually to accomplish the intention of the legislature in passing them.\" The same distinction will be found recognised in the elementary writers, as, for example, in Blackstone's Commentaries, (1 Black. Comm. 88;) and Bacon's Abridgment, (statute I. 7, 8;) and Comyns' Digest, (Parliament R.  13, R. 19, R. 20;) and it is also abundantly supported by the anthorities. \nThe main exception however to the charge is as to the  ruling of the judge that there was probable cause of seizure, and that, therefore, the onus probandi to establish the innocence of the importation, and to repel the supposed forfeiture, was upon the claimants. We entirely concur in the opinion of the judge, in his views of the evidence as applicable to this point. He, and not the jury, was to judge whether there was probable cause or not to throw the onus probandi on the claimants; for the 71st section of the act of 1799, chap. 128, expressly declares that \"the onus probandi shall lie on the claimant only where probable cause is shown for such prosecution, to be judged of by the court before whom such prosecution is to be had.\" In our judgment, the circumstances were abundantly sufficient to justify him, nay, to require him to throw the onus probandi on the claimants. The extraordinary circumstances connected with the concealment of the goods, the prevariactions and false statements of Blackburne, and the undervaluation of the goods, all required the most plenary proofs on the part of the claimants, to deliver the property from the perils by which it was surrounded. The original cost of the purchases could have been fully proved  by the claimants, if the transactions were bona fide purchases; and they had the most ample means within their power to establish it. Taylor and Blackburne were so completely mixed up in these transactions, as principals and agents, or as joint principlas, that the acts of the one might most justly be attributed to the other; and in fact they admit of no reasonable separation as to design or privity of co-operation. \nThere is but one other exception remaining, which requires any special notce. It is whether the 68th section of the act of 1799, chap. 128, was intended to reach, or does reach cases where, by a false and fraudulent undervaluation, less than the amount of duties yequired by law has been paid, or whether it applies only to cases where no duties at all have been paid upon the goods.In our opinion, the section was designed to apply equally to both cases. In the sense of that section all goods are forfeited on which, by fraud, all the duties shall not have been paid, or secured to be paid, which are by law required to be paid or secured thereon. \nUpon the whole, the judgment of the Circuit Court is affirmed. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the court. \nThis is a writ of error to the Circuit Court of the United States for the eastern district of Louisiana. The original suit was brought in the state court, against Black alone, upon an attachment issued by Zacharie & Company against him, he being a citizen of South Carolina, and not resident in Louisiana; and upon this  attachment certain shares of Black, in the Carrollton Bank, and the Gas Light and Banking Company, in Louisiana, were attached, to answer the exigency of the writ. Black appeared in the suit, and caused it to be removed into the Circuit Court. Black, upon his appearance, pleaded that prior to the attachment he had assigned the attached stock to James Chapman, of South Carolina, by a trust-deed, for the benefit of all his creditors. After the removal of the suit into the Circuit Court, Chapman filed an intervention, according to the Louisiana practice, and became a party to the suit to protect his interest under the trust-deed. In his petition of intervention he asserted his title, and that he had given due notice thereof to the Carrollton Bank, and the Gas Light and Banking Company; and that Zacharie & Co. had due notice thereof before their attachment. \nThe cause was tried by a jury upon the pleadings in the case; and upon the trial it was proved that the assignment was made by the trust-deed in South Carolina, by Black to Chapman, on the 28th of April, 1841. The attachment of Zacharie & Co. was made on the 4th of May, 1841, with a full knowledge of the assignment. Long before  the attachment, the stock in the Carrollton Bank had been transferred and pledged to the Carrollton Bank, for a stock loan, and was then held by that bank, under that transfer, the equity of redeeming  the same only remaining in Black. On the 15th of April, 1841, Black had executed a letter of attorney to the cashier of the Gas Light and Banking Company, to transfer the same to the Bank of South Carolina, of which notice was sent on the next day to the Gas Light and Banking Company, and notice was received by the latter on the 22d of April; but owing to some informality in the letter of attorney, the transfer was not then made, but the paper was sent back to be corrected, the company then agreeing to transfer in when the informality was corrected. The Bank of South Carolina was a holder of the stock, under this power, for value; and of this transaction also Zacharie & Co. had notice before their attachment. \nAt the trial, the jury found a verdict for the original plaintiffs, and judgment thereupon passed for them. Two bills of exceptions were taken to the ruling of the court at the trial, and upon these exceptions the cause has been brought before this court. \nIt does  not seem necessary to recite at large the matters contained in these exceptions. They give rise to two questions, which have been fully argued at the bar, although very inartificially presented in the record: First,  whether at the time of the commencement of the suit of Zacharie & Co. there was any debt due to them, upon which the attachment could, under the circumstances, be maintained? Secondly, whether the assignment to Chapman, being made in South Carolina, and known to Zacharie & Co. at the time of their attachment, and being, by the laws of South Carolina, a good and valid assignment, is entitled to a priority over the attachment. The latter question, so far as it respected the notice to Zacharie & Co., and the equity of the assignee, is not so precisely put as it is obvious it was intended to be, in the instructions asked by the intervenor. But it is plain, from the qualifications of those instructions suggested by the court, that the court held that the delivery of the stock was not complete, and that the assignment did not pass the right to the stock to the assignee, unless the transfer was entered upon the books of the bank, notwithstanding the notice; and  that the law of Louisiana upon the point was different from that of South Carolina. In this way only is the verdict at all reconcileable with the admitted state of facts. \nIn respect to the first question, it is plain to us that there was no debt due to Zacharie & Co., at the time when the attachment was made. The supposed debt was for the proceeds of a cargo of sugar and molasses, sold by Black on account of Zacharie & Co. Assuming those proceeds to be due and payable, Zacharie & Co. had drawn certain bills of exchange upon Black, which had been accepted by the latter, for the full amount of those proceeds; and all of these bills had been negotiated to third persons, and were then outstanding, and three of them were not yet due. It is clear, upon principles of law, that this was a suspension of all right of action in Zacharie & Co., until after those bills had become due and dishonoured, and  were taken up by Zacharie & Co. It amounted to a new credwt to Black for the amount of those acceptances, during the running of the bills, and gave Black a complete lien upon those proceeds, for his indemnity against those acceptances, until they were no longer outstanding after  they had been dishonoured. \nWhether the transfactions by the drawing and acceptance of these bills amounted to a novation of the debt, which might otherwise be due under the account current for the sales of the sugar and molasses, it is not necessary to decide; for, assuming that these transactions might be treated as a conditional novation only and not as an absolute novation, it would make no difference in the conclusion to which we should arrive under the circumstances of this case. \nIt is true that the statute law of Louisiana allows, in certain cases, an attachment to be maintained upon debts not yet due. But it is only under very special circumstances; and that law. The statute does not apply to debts resting in mere contingency, whether they will ever become due to the attaching creditor or not; nor to any case except of absconding debtors; and this, therefore, is a case not governed by it. We think, then, the there was error in the ruling of the court in admitting, that there was a sufficient debt established by the evidence to maintain the attachment. \nThe other point is one of much greater importance, although in our judgment not attended with any intrinsic difficulty.  We admit, that the validity of this assignment to pass the right to Black in the stock attached depends upon the law of Louisiana and not upon that of South Carolina. From the nature of the stock of a corporation, which is created by and under the authority of a state, it is necessarily, like every other attribute of the corporation, to be governed by the local law of that state, and not by the local law of any foreign state. And in the present case, if the local law of Louisiana had prohibited (as we think it had not) any assignment of an equitable interest in the stock attached, we should not have scrupled to have followed that law. The question is not here, whether the legal interest in the stock passed by the assignment before a transfer of the stock upon the books of the corporations; but whether the equitable interest therein, as contradistinguished from the legal interest, did not pass to and vest in the assignee by the law of Louisiana, so as to oust the right of any creditor with full notice of the assignment from divesting the title of the assignee by a subsequent attachment thereof as the property of the debtor. In respect to the Carrollton Bank it is clear that nothing  but an equitable interest could be conveyed or was intended to be conveyed by the assignment; for the bank already held the legal title as a pledge for a stock loan. In respect to the Gas Light and Banking Company, the interest in the stock had been transferred to the Bank of South Carolina as a pledge, and the letter of attorney was given to perfect the equitable  title into a legal title by an actual transfer on the books of the corporation. But, subject to that pledge, the equity was with the consent of the Bank of South Carolina vested in the assignee under the assignment. So that each case presented the same general question as to the validity of the equitable title by the law of Louisiana against attaching creditors, having full knowledge of that equity. Out of Louisiana, we believe, that no such question could possibly arise; for courts of law, as well as courts of equity, are constantly, in all states where the common law prevails, in the habit of holding a prior assignment of the equitable interest in stock as superseding the rights of attaching creditors, who attach the same with a full knowledge of the assignment. \nUpon full examination of the laws of Louisiana  and the decisions of its courts, we see no reason to believe that a different doctrine on this subject prevails in that state. It is true that the same distinctions between legal and equitable rights may not as to the mode of remedy exist in that state, which are recognised in states governed by the common law; but the same purposes of substantial justice are attained there under similar circumstances as the courts in other states are accustomed to administer in a different form. \nThere is a marked distinction in the Louisiana law between the transfer of corporeal things movable, and things incorporeal. In the former a manual tradition of the thing is ordinarily  but not universally required to perfect the title. In the case of incorporeal things no such tradition can take place, and therefore such a delivery as the thing admits of -- a sort of symbolical delivery -- is admitted by the law as a substitute. There are several articles of the Civil Code of Louisiana bearing directly on this point; but it will be sufficient only to cite a few of those which have been relied on by counsel. Art. 2612 declares, \"In the transfer of debts, rights, or claims, to a third person,  the delivery takes place between the transferrer and transferree by the giving of the title.\" Art. 2613 declares, \"The transferree is only possessed, as it regards third persons, after notice has been given to the debtor of the transfer having taken place.\" Art. 2456 declares, \"The tradition of the incorporeal rights is to be made either by the delivery of the titles and of the act of transfer, or by the use made by the purchaser with the consent of the seller.\" In Bainbridge v. Clay, 16 Martin R. 56, the Supreme Court of Louisiana said, \"A debt due [by] the defendant on a fieri facias cannot as to third persons completely pass to the assignee unless there be what in sales of tangible property is called a tradition or delivery; and this is effected as to choses in action by notice of the assignment to the debtor.\" Again, in Babcock v. Maltbie, 19 Martin R. 137, the same learned court said that the true test, in cases of assignment, is, \"That where the owner of the property has lost all power over it and cannot change its destination, the creditors cannot attach.\" The same doctrine was directly  affirmed in the recent case of Urie v. Stevens, 2 Rob. Louis. Rep. 251. The  principles announced in these decisions seem completely to cover the present suit. In the case of the Carrollton Bank the shares had actually passed to the bank itself as a pledge, and nothing but an equity remained in Black, capable of being transferred, and that was assigned by the deed of assignment to the assignee before the attachment, and was known to Zacharie & Co. at the time when they made their attachment; and at least as early as the next day it was made known to the bank. So that the creditors had full notice and the bank had full notwce; and the creditors could not make a valid attachment when to their knowledge the property no longer belonged to their debtor. The case as to the Carrollton Bank falls, then, directly within the principles just stated. The owner had parted with all his property in the stock; he had lost all power over it; and he could not change its destination. The same principles apply, a fortiori, to the Gas Light and banking Company; for there, not only had the creditors notice of the assignment before their attachment; but the company also had notice thereof before that theriod. \nIt is true that the charters of the Carrollton Bank and of the Gas  Light and Banking Company provide that no transfer of the stock of these corporations shall be valid or effectual until such transfers shall be entered or registered in a book or books to be kept for that purpose by the corporation. But this is manifestly a regulation designed for the security of the bank itself, and of third persons taking transfers of the stock without notice of any prior equitable transfer. It relates to the transfer of the legal title, and not of any equitable interest in the stock subordinate to that title. In the case of the Union Bank of Georgetown v. Laird, 2 Wheat. 390, this court took notice of the distinction between the legal and equitable title in cases of bank-stock, where the charter of the bank had provided for the mode of transfer. The general construction which has been put upon the charters of other banks containing similar provisions as to the transfer of their stock, is, that the provisions are designed solely for the safety and security of the bank itself, and of purchasers without notice; and that as between vendor and vendee a transfer, not in conformity to such provisions, is good to pass the equitable title and divest the vendor of all  interest in the stock. Such are the decisions in the cases of the Bank of Utica v. Smalley, 2 Cowen, 777, 778; Gilbert v. Manchester Iron Co., 11 Wend. 628; Commercial Bank of Buffalo v. Kortwright, 22 Wend. 362; Quiner v. The Marblehead Insurance Co., 10 Mass. R. 476; and Sergeant v. Franklin Insurance Co., 8 Pick. R. 90. \nWe see no reason to doubt that the jurisprudence of Louisiana adopts a similar interpretation for the purpose of protecting equitable title against the claims of creditors of the transferrer, who have notice of such equitable titles. If it will protect an assignment of  a chose in action against attaching creditors after notice of the assignment given to the debtor, because no title remains in the transferrer, (as we have seen it will,) a fortiori, it ought to protect it where the attaching creditor himself has notice, since, in justice, he is entitled only to take under his attachment what rightfully remains in the transferrer. In the absence of any positive controlling statute or direct adjudication of the courts of Louisiana upon the very point, in contradiction to the doctrine maintained in other states, as one founded ex aequo et bono in general  justice, we may well presume, that a state deriving its jurisprudence from the Roman Law, has not failed to act upon it. \nThere is another ground, auxiliary to this last view, which is entitled to great consideration. It is well settled as a doctrine of international jurisprudence, that personal property has no locality, and that the law of the owner's domicil is to determine the validity of the transfer or alienation thereof, unless there is some positive or customary law of the country where it is found to the contrary. This doctrine has, in the very late case of the United States v. The United States Bank, (in June, 1844,) been fully and directly recognised and affirmed by the Supreme Court of Louisiana, as a part of its own international jurisprudence; and it was applied in that very case to support an assignment made in Pennsylvania, by the Bank of the United States, to certain assignees, who were intervenors of goods, debts, credits, and effects, in Louisiana. The court held that the assignment, being proved to be valid and effectual by the law of Pennsylvania, was to be deemed equally valid and effectual to pass the goods, debts, credits, and effects, of the bank, to the  assignees in Louisiana, against the attaching creditors, who had notice of the assignment  at the time of their attachment. The decision turned upon the very doctrine of international jurisprudence just referred to. So that here we have the high authority of the state court in this very matter, that there is nothing in the jurisprudence of Louisiana, which forbids giving full effect and validity to an assignment of debts, credits, and equities, situate in that state, where the assignment is valid and effectual by the law of the state where it is made, so as to oust the rights of attaching creditors who have due notice thereof. Now, in the case before us, there is plenary evwdence that the assignment was valid and effectual by the laws of South Carolina, when and where it was made, to pass the right to the property in controversy; and that the attaching creditors had notice thereof before their attachment was made; so that its validity and effect are the same in Louisiana as in South Carolina. It is true that the legal title could not pass without a regular transfer of the stocks upon the books of the corporation; but it ws equally true, that the title to the property,  subject to the pledge thereof, was complete in the assignee, so as to bind the banks as well as the attaching creditors, after due notice to them respectively. We are,  therefore, of opinion, that the district judge erred in directing the jury that the delivery of the stock was not complete unless the transfer was entered upon the books of the banks. That was true as to the absolute legal title, but it did not prevent the equitable title from passing to and becoming completely vested in the assignee under and in virtue of the assignment, so as to bind the attaching creditors, as soon as they had notice thereof, and in like manner the banks, as soon as they had notice thereof. \nUpon both grounds, therefore, stated in the exceptions, the judgment of the Circuit Court is reversed, and the cause remanded to that court with directions to award a venire facias de novo. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the court. \nThis is the case of a writ of error to the Circuit Court of the district of Kentucky. The original suit was an ejectment for a certain tract of land, in Kentucky, containing eleven thousand acres; and upon the trial, upon the general issue, a verdict was found for the defendants, upon which judgment passed for them. A bill of exceptions was taken by the plaintiff, to the opinions of the court at the trial; and to revise those opinions, the present writ of error is brought by the plaintiff. \n On the 24th of December, 1806, a patent for the tract of eleven thousand acres of land was granted by the commonwealth of Kentucky, unto George Clymer, (under whose will the lessors of the plaintiff make claim,) one-third, and unto Charles Lynch and John Blanton,  (under whom the defendants make claim,) two-thirds. In the year 1810, if not at an earlier period, (for there is some repugnancy in the various dates stated in the record,) Lynch and Blanton procured a partition of the tract to be made, by the authority of the County Court of Henry, by certain commissioners, appointed pursuant to the Kentucky statute of 1792, by which one-third was assigned in severalty to Clymer, (he being then a non-resident,) by certain metes and bounds; and the remaining two-thirds were assigned to Lynch and Blanton, by certain other metes and bounds. The return of the commissioners was filed, acknowledged, and admitted to record in the clerk's office of the county of Henry, in 1810; but the court of that county do not seem to have ordered the return to be received and recorded until 1827. How this delay took place, has not been satisfactorily explained; and the omission has been insisted upon as an objection to the validity of the partition. \nAll the defendants appear, from the evidence, to have derived title to the lands in their respective occupation, and to have entered into possession of the same, after the partition was made, and by titles in severalty,  derived exclusively from or under Lynch and Blanton; and the lands held by them are situate exclusively within the tract assigned by the partition to Lynch and Blanton. The main defence relied upon by the defendants, at the trial, was an adverse possession to the title of Clymer, during the period prescribed by the Statute of Limitations of Kentucky. To rebut this defence, the plaintiff insisted that the partition was void, and being void, the defendants having entered into the land under the patent to Clymer, Lynch and Blanton, who still, notwithstanding the partition, in point of law, remained tenants in common of the land, were not at liberty to set up an adverse possession against that title; nor at liberty to set up  any outstanding superior title in any third person, under any elder patent offered in evidence, to defeat the plaintiff in the action. \nThe plaintiff, upon the evidence, (which need not be here particularly recited,) moved the court to instruct the jury as follows: [See the statement of the reporter.] \nThe defendants also moved the court to give certain instructions to the jury; which instructions the court refused to give, but gave the following instruction  in substitution thereof: [See statement.] \nTo the instructions so refused as propounded by the plaintiff, and to the several instructions so given by the court, the plaintiff excepted; and the cause stands before us for consideration upon the validity of these exceptions. \nThe first point made at the argument for the plaintiff, is as to the validity of the partition under the proceedings in the county of Henry. In our judgment, it is wholly unnecessary to decide whether those proceedings were absolutely void or not; for, assuming them to have been defective or invalid, still, as they were matter of public notoriety, of which Clymer was bound, at his peril, to take notice; and as Lynch and Blanton, under those proceedings, claimed an exclusive title to the land assigned to them, advesely to Clymer; if the defendants entered under that exclusive title, the possession must be deemed adverse, in point of law, to that of Clymer. \nAnd this leads us to the consideration of the instructions actually given by the court, which cover the whole ground in controversy, and, if correct in point of law, show, that the court rightly refused to give the instructions asked by the plaintiff, so far  as they were not consistent with the instructions actually given. It is very clear that the court are not bound to give instructions in the terms required by either party; but it is sufficient if so much thereof are given as are applicable to the evidence before the jury, and the merits of the case, as presented by the parties. \nThe first instruction given by the court is as favourable to the plaintiff, in all its bearings, as the law either justifies or requires, and is in direct response to the substance of some of the instructions asked by the plaintiff. It in substance states that if the defendants entered under the title of Clymer, Lynch and Blanton, as tenants in common, and did not claim any title except to two-thirds of the parcels of land respectively held by them, and not to the entirety thereof, then their entry into the possession did not oust either Clymer or his devisees of his or their undivided third part, and was not adverse thereto; and that the defendants so entering could not avail themselves of the defence of the Statute of Limitations; and they could not avail themselves of the outstanding legal title of third persons by any elder patent. So far as this instruction  goes, it is manifest that it was favourable to the plaintiff; and indeed it is not now per se object to, but the objection is, that it does not go far enough, and thus was to the prejudice of the plaintiff. \n The real point in controversy turns upon the second instruction given by the court, in answer to the prayer of the defendants. That instruction, in substance, states, that if any of the defendants entered into possession of the lands respectively claimed by them, and held the same for more than twenty years before the commencement of the suit, by a purchase and claim thereof in entirety and severalty, and not for an undivided part thereof, in co-tenancy with Clymer or his devisees, but adversely to them, then such defendant was entitled to a verdict in his favour, whether he held by a purchase from Lynch, or Blanton, or any other person who had ever afterwards, up to the commencement of the suit, continued thus to hold the possession. We see no objection to this instruction, which ought to prevail in favour of the plaintiff: on the contrary, we deem it entirely correct, and consonant to the principles of law upon this subject. It is true, that the entry and possession  of one tenant in common of and into the land held in common, is ordinarily deemed the entry and possession of all the tenants; and this presumption will prevail in favour of all, until some notorious act of ouster or adverse possession by the party so entering into possession, is brought home to the knowledge or notice of the others. When this  occurs, the possession is from that period treated as adverse to the other tenants, and it will afterwards be as operative against them, as if the party had entered under an adverse title. Now such a notorious ouster or adverse possession may be by any overt act in pais, of which the other tenants have due notice, or by the assertion, in any proceeding at law, of a several and distinct claim or title to an entirety of the whole land, or, as in the present case, of a several and distinct title to the entirety of the whole of the tenant's purparty under a partition, which, in contemplation of law, is known to the other tenants. Upon so familiar a doctrine it scarcely seems necessary to cite any authorities. So early as Townsend and Pastor's case, 4 Leon. Rep. 52, it was holden in the Common Pleas, by all the justices, that where  there are two co-parceners of a manor, if one enters and makes a feoffment in fee of the whole manor, this feoffment not only passes the moiety of such coparcener, which she might lawfully part with, but also the other moiety of the other coparcener, by disseisin. This decision was fully confirmed and acted on, in the recent case of Doe d. of Reed v. Taylor, 5 Barn. & Adolph. Rep. 575, where the true distinction was stated, that although the general rule is, that where several persons have a right, and one of them enters generally, it shall be an entry for all; for the entry generally shall always be taken according to right; yet that any overt act or conveyance, by which the party entering or conveying asserted a title to the entirety, would amount to a disseisin of the other parties, whether joint-tenants, or tenants in common, or parceners. Upon the same ground, it was held, in New York, in the case of Jackson v. Smith, 13 Johns. Rep. 406, that a conveyance made by one tenant in common, of the entire  fee of the land, and an entry and possession by the purchaser, under that deed, is an adverse possession to all the other tenants in common. To the same effect is the  case of Bigelow v. Jones, 10 Pick. Rep. 161. The reason of both of these latter cases is precisely the same as in the case of a feoffment, the notoriety of the entry and possession, under an adverse title, to the entirety of the land. \nSimilar principles have been repeatedly recognised in this court. In McClung v. Ross, 5 Wheat. Rep. 116, 124, the court said, \"That one tenant in common may oust another, and hold in severalty, is not to be questioned. But a silent possession, accompanied with no act which can amount to an ouster, or give notice to his co-tenant, that his possession is adverse, ought not, we think, to be construed into an adverse possession.\" In the case of the Lessee of Clarke v. Courtney, 5 Peters, 319, 354, this court also held, that where a person enters into land under a deed or title, his possession (in the absence of all other qualifying or controlling circumstances) is construed to be co-extensive with his deed or title; and although the deed or title may turn out to be defective or void, yet the true owner will be deemed disseised to the extent of the boundaries of such deed or title. This doctrine is strongly applicable to the possession under the partition  in the present case. There are several other cases affirming the same doctrine, and especially Green v. Liter, 8 Cranch, 229, 230; Barr v. Gratz, 4 Wheat. Rep. 213, 223; and The Society for Propagating the Gospel v. The Town of Pawlet, 4 Peters, 480, 504, 506. The doctrine has been carried by this court one step farther; but at the same time one which is entirely consistent with the principles on which the general rule, and the exceptions to it, are founded. In Blight's Lessee v. Rochester, 7 Wheat. Rep. 535, 549 -- 550, it was held, that in cases of vendor and purchaser, although the latter claimed his title under or through the former, yet as between themselves, the possession of the purchaser under the sale, where it was absolute ant unconditional, was adverse to that of the vendor, and he might protect that possession by the purchase of any other title, or by insisting upon the invalidity of the title of the vendor, as the foundation of any suit against him. Now, upon this last ground, the defendants were certainly at full liberty as absolute purchasers in fee to maintain their adverse possession to the land, and the bar of the Statute of Limitations against Lynch and Blanton,  and a fortiori against Clymer. \nUpon the whole, we are entirely satisfied that the second instruction given by the court was correct in point of law; and, therefore, the judgment of the Circuit Court ought to be affirmed with costs. \n \n\n ", "Opinion by:  STORY \nOpinion \n\n \n \n  Mr. Justice STORY delivered the opinion of the court. \nThis is the case of an appeal in admiralty, from a decree of the Court of Appeals of the territory of Florida, affirming the decree of the judge of the Superior Court of the southern judicial district of Florida. It appears from the proceedings, that upon a libel filed in the Superior Court of the territory, in behalf of the owners and crew of the sloop Globe, salvage had been awarded in their favour, against the ship Mississippi; that a part of the salvage so decreed remained in the registry of the court; and that the present petition was filed by Wall and Geiger, on behalf of the owners of the schooner George Washington, for the share of the salvage due to them, as consorting with the Globe in the business of salvage. It seems to be a not uncommon course among the owners of a certain class of vessels, commonly called Wreckers, on the Florida coast, with a view to prevent mischievous competitions and collisions in the performance of salvage services on that coast, to enter into stipulations with each other, that the vessels owned by them respectively shall act as consorts with each other  in salvage services, and share mutually with each other in the moneys awarded as salvage, whether earned by one vessel or by both. It is admitted in the answer of the appellant, who was the master and part owner of the Globe, and the original respondent in the court below, That such an agreement or stipulation was entered into, for an indefinite time, between himself, as the master of the Globe, and the master of the George Washington, before the salvage service in question; but he insists that it was to remain in force only so long as both remained masters of their respective  vessels, and earned salvage; and that at the time of the salvage services in question, one Thomas Greene, mate of the Globe, acted as master thereof. He also insists, that the libellants have no right to come into the court, in a summary way, to obtain a share of the salvage; and lastly, he insists that the agreement or stipulation was not made between him and the libellants. \nThe courts below overruled all these matters of defence; and upon the present appeal the same are brought before us for consideration and decision. In the first place, then, as to the original agreement or stipulation for  consortship, it must, although made by the masters of the vessels, be deemed to be made on behalf of the owners and crews, and to be obligatory on both sides, until formally dissolved by the owners. The mere change of the masters would not dissolve it, since in its nature it is not a contract for the personal benefit of themselves, or for any peculiar personal services. It falls precisely within the same rule, as to its obligatory force, as the contract of the master of a ship for seamen's wages, or for a charter-party for the voyage, which, if within the scope of his authority, binds the owner, and is not dissolved by the death or removal of the master. Besides, in the present case, the agreement or stipulation for consortship was for an indefinite period, and, consequently, could be broken up or dissolved only upon due rotice to the adverse party; and the mere removal of the master of one of the vessels, by the owner thereof, for his own benefit or at his own option, could in no manner operate, without such notice, to the injury of the other. In the next place, there is not a particle of evidence in the case, that at the time of the agreement or stipulation for consortship, it  was agreed between the parties, that a change of the masters should be treated as a dissolution thereof. The answer is not of itself evidence to establish such a fact, but it must be made out by due and suitable proofs; for in the admiralty the same rule does not prevail as in equity, that the answer to matters directly responsive to the allegations of the bill, is to be treated as sufficient proof of the facts, in favour of the respondent, unless overcome by the testimony of two witnesses, or of one witness and other circumstances of equivalent force. The answer may be evidence, but it is not conclusive; and in the present case, the dissolution of the agreement or stipulation for consortship, by the change of the master of the Globe, seems to be relied on as a mere matter of law, and not as a positive ingredient in the original contract. \nThe material and important question, therefore, is, whether the agreement or stipulation of consortship is a contract capable of being enforced in the admiralty against property or proceeds in the custody of the court? We are of opinion that it is a case within the jurisdietion of the court. It is a maritime contract for services to be rendered  on the sea, and an apportionment of the salvage earned therein. Over maritime contracts the admiralty possesses a clear and established  jurisdiction, capable of being enforced in personam, as well as in rem; as is familiarly seen in cases of mariners' wages, bottomry bonds, pilotage services, supplies by material-men to foreign ships, and other cases of a kindred nature, which it is not necessary here to enumerate. The case of Ramsay v. allegre, 12 Wheat. 611, contains no doctrine, sanctioned by the court, to the contrary. It is within my own personal knowledge, having been present at the decision thereof, that all the judges of the court, except one, at that time concurred in the opinion that the case was one of a maritime nature, within the jurisdiction of the admiralty, but that the claim was extinguished by a promissory note having been given for the amount, which note was still outstanding and unsurrendered. It became, therefore, unnecessary to decide the other point. The general doctrine had been previously asserted in the case of the General Smith, 4 Wheat. 438, and it was subsequently fully recognised and acted upon by this court, in Peroux v. Howard, 7 Peters,  324. Upon general principles, therefore, there would be no difficulty in maintaining the present suit, as well founded in the jurisdiction of the admiralty. \nThere is another view of the matter, which does not displace but adds great weight to the preceding considerations. This is a case of proceeds rightfully in the possession and custody of the admiralty; and it would seem to be, and we are of opinion that it is, an inherent incident to the jurisdiction of that court, to entertain supplemental suits by the parties in interest, to ascertain to whom those proceeds rightfully belong, and to deliver them over to the parties who establish the lawful ownership thereof.  This is familiarly known and exercised in cases of the sales of ships to satisfy claims for seamen's wages, for bottomry bonds, for salvage services, and for supplies of material-men, where, after satisfaction thereof, there remain what are technically called \"remnants and surplusses,\" in the registry of the admiralty. But a more striking example is that of supplemental libels and petitions, by persons asserting themselves to be joint captors, and entitled to share in prize proceeds, and of custom-house officers,  for their distributive shares of the proceeds of property seized and condemned for breaches of the revenue laws, where the jurisdiction is habitually acted upon in all cases of difficulty or controversy. \nUpon the whole, without going more at large into the subject, we are of opinion that the decree of the Court of Appeals of Florida ought to be affirmed, with costs. \n \n\n ", " \nOpinion \n\n \n \n  Mr. Justice  STORY delivered the opinion of the court. \nThis is the case of an appeal from the decree of the Circuit Court of the district of Ohio, sitting in equity, -- rendered in favour of the original plaintiff, and it is brought to this court by the original defendants, who are now the  appellants. The record is exceedingly voluminous, and the facts and proceedings complicated and perplexed by a variety of details. A general outline of the leading facts is given in the printed opinion of the court below, with which we have been favoured; and those facts cannot be more succinctly stated than they are in that summary -- we shall therefore avail ourselves of it upon the present occasion. It is as follows: \"In the summer of 1817, the complainant, in connection with John H. Piatt, William M. Worthington and Gorham A. Worth, formed an association to purchase lands of the United States, at a public sale, which was shortly to take place at Wooster, in this state -- and the complainant was appointed the agent of the company, to attend the sale for that purpose. \n\"Another association consisting of Martin Baum, Jesse Hunt, Jacob Burnet, William C. Schenck, William Barr, William Oliver,   and Andrew Mack, was formed for the same object -- and William Oliver and William C. Schenck were appointed its agents to attend the sale. \n\"Before the sale took place, it was discovered that both companies were desirous of purchasing the same tracts of land, and the agents agreed that they would purchase tracts 1, 2, 3, and 4, at, and including the mouth of Swan creek, in the United States reserve, at the foot of the rapids of the Miami; and also Nos. 86 and 87 on the other side of the river, opposite the mouth of Swan creek, for the joint benefit of both companies; each company to have onehalf of the lands purchased, and to pay at the same rate. Nos. 86 and 87 were bid off by Oliver, and the certificates of purchase issued to him. The other tracts were bid off by the complainant, and the certificates of purchase were issued in the names of the association represented by him. \n\"At the same sale, the complainant, in behalf of his company, purchased the north-west quarter of section 2, township 3, the south-west quarter of the same section, the north-west quarter of section 3, township 3, and also the south-east and south-west quarters of the same section, in said reserve;  and one-fourth of the purchase money on each tract being paid, certificates of purchase were made out in the names of the company. And the other agents purchased for their company, at the same sale, other tracts of land. \n\"On the return of the agents to Cincinnati, their acts were ratified by both companies. One company was designated the Piatt Company, the other the Baum Company; and the union of both, in regard to the lands jointly purchased, was called the Port Lawrence Company. The joint, or Port Lawrence Company, having made their purchase with the view of laying out a town, to be called Port Lawrence, appointed Baum a trustee, and authorized him to sell lots, and do other things in relation to his agency, for the benefit of the company. \n\"On the 14th August, 1817, Baum appointed Oliver his attorney, to sell lots in the town to be laid out, receive the money, and give certificates of sale, in the nature of title-bonds, to the purchasers; and he, in association with William C. Schenk, was authorized to lay out the town. Baum, and also the proprietors, gave to oliver a letter of instructions in relation to the plan of the town, the sale of the lots, &c. By the conditions of  sale, one-fourth of the purchase money was to be paid down, and the residue in three equal annual payments. \n\"At the sale of lots, the sum of $ 855 33 was received by Schenck, for which he was to be accountable to Baum. \n\"At the sale, Oliver purchased lots 223 and 224, an undivided half of which he afterwards conveyed to Baum, and they erected a warehouse and other improvements on them. \n \"In August, 1818, he sold one-half of his interest in the Port Lawrence Company to William Steele and William Lytle; and in March, 1819, he sold the residue of his interest to Micajah T. Williams, one of the defendants, and his partner Embre. \n\"By the reduction of the price of the public lands, and the pressure of the times, the Port Lawrence Company were under the necessity of relinquishing to the United States tracts 1 and 2, having agreed to pay foir the same about $ 20,000; and of appropriating the money paid on them to the payment in full of the residue of the tracts purchased by them, and by the Baum and Piatt Companies respectively. In pursuance of this object, the five quarter-sections purchased by the Piatt Company were assigned to Baum, the 17th September, 1821; and on the same  day, tracts numbered 1, 2, 86, and 87, purchased in the name of the Piatt Company for the Port Lawrence Company; and also tracts 3 and 4, purchased by Oliver for the same company, were assigned to Baum. It is alleged that these tracts had been previously assigned to Baum, of which there is no evidence. \n\"On the 27th September, 1821, Baum, through his agent, Micajah T. Williams, one of the defendants, relinquished, to the United States, tracts 1 and 2. On these tracts there had been paid the sum of $ 4817 55. $ 1372 34 of this sum were applied to complete the payments on tracts 3, 4, 86, and 87, the residue of the tracts purchased at the sale by the Port Lawrence Company. From the relinquished tracts, there still remained $ 3445 21. Of this sum, one-half belonged to the Piatt Company. $ 1248 were applied to complete the payment on the five quarter-sections, which left a balance of $ 474 60 still due to the Piatt Company; but which was applied in payment of lands held by the Baum Company. \n\"After the relinquishment of the tracts on which the town had been laid out, the purchasers of town lots claimed a return of the money paid by them, with interest, and also damages for their  improvements. \n\"On the 10th September, 1822, Baum gave to Oliver a certificate, which stated there was due him, by the Port Lawrence Company, the sum of $ 213 02, which he refunded to purchasers of lots, by the request of the company, 'it being the amount due on the shares originally owned by John H. Piatt, Robert Piatt, G. A. Worth, and William M. Worthington.' \n\"And on the 27th August, 1823, Oliver having made out an account against the Port Lawrence Company, for money paid by him to purchasers of lots, and services rendered as agent, Baum admitted his account, amounting to the sum of $ 1835 47; to secure the payment  of which, Baum executed to him a mortgage on tracts 3, 4, 86, and 87. The payment was to be made, with interest, on or before the 1st of January, 1824. \n\"The 7th October, 1825 Oliver caused an attachment to be  issued by the clerk of Monroe county, in the Michigan Territory, against Baum and the members of the Piatt Company, on the certificate of indebtment given by Baum. This attachment was levied on four of the five quarter-sections owned by the Piatt Company, and such proceedings were had on the attachment, as to obtain an order of sale of  the property attached; three of the quarters were sold, by the auditors appointed, for the sum of $ 241 60, to Noble, the agent of Oliver. Noble, shortly afterwards, conveyed these tracts to his principal. \n\"A bill to foreclose the mortgage given to Oliver was filed by him in the Supreme Court of michigan, the 13th of October, 1825. And a final decree having been obtained, the mortgaged premises were sold, by the assistant register of the chancery court, to Oliver, the 1st September, 1828, for $ 618 56. \n\"By the act of 20th May, 1826, the secretary of the Treasury was authorized to select, for the benefit of the University of the Michigan Territory, a certain number of acres of the public lands within the territory, and he selected tracts 1 and 2, which had been relinquished. \n\"In the summer of 1828, as appears from the report of the committee of the trustees of the university, Oliver, as the agent of Baum and others, proposed to exchange certain lands owned by Baum, in the vicinity of Port Lawrence, or any of the public lands subject to entry, for tracts 1 and 2, on which the town of Port Lawrence had been laid out. \n\"A law of Congress was passed, authorizing the exchange, the 13th  January, 1830. Previous to this Baum assigned to Oliver the final certificates for the tracts he purchased under the attachment, and also under the decree of foreclosure; and one of the quarter-sections levied on by the attachment, but not sold under it, in payment of the balance of the judgment on the attachment, which enabled Oliver to obtain patents for the same in his own name. And on his conveying to the university tracts numbered 3 and 4, except ten acres reserved of number 3, and the north-west quarter of section 2, township 3, and also the north-west and south-west quarters of section 3, township 3, he received an assignment from the university of their right of tracts 1 and 2, for which patents were issued in the name of Oliver. \n\"After the exchange was effected, Baum, and the defendant Williams, each purchased an interest of one-third in tracts 1 and 2, 86 and 87. After Baum's death, in 1832, Oliver purchased his interest from his heirs. And the 1st December, 1832, Oliver conveyed to Williams and undivided half of the ten acres reserved in number 3. On the 23d May, 1834, he conveyed to him an undivided half of tracts 86 and 87, except sixty acres which had been sold  to Prentiss and Tromley; and on the -- day of November, he conveyed to him 'one undivided half of lots 1 and 2, on which Port Lawrence  was laid out,' together 'with a like interest in all sales and improvements thereunto belonging.' \n\"Oliver, Baum, and Williams, agreed to lay out the town of Toledo on the site of Port Lawrence, and to make titles to the Port Lawrence purchasers of lots, on their complying with their contracts. \n\"Some years after this, Oliver purchased from the Michigan University the tracts of land he conveyed to it in exchange for tracts 1 and 2. \n\"Of the Piatt Company, John H. Piatt is deceased, and his administrators and heirs are made parties to this suit. William M. Worthington assigned one-half his interest in the Port Lawrence Company, and it is claimed and represented by John E. Worthington. The interest of Worth has been assigned to the defendant Ewing, who also claims the entire interest of Baum, Mack, barr, Burnett, and half the interest of the complainant. \n\"Of the Baum Company, Martin Baum, Jesse Hunt, William C. Schenck, and William Barr, are deceased.\" \nSuch is a general outline of the leading facts. There are others which may be required  to be adverted to in the progress of this opinion; but there are many details which must necessarily be passed over in silence, as they would tend to embarrass the discussion of the main questions in the cause, and obscure rather than illustrate the merits thereof. \nThe object of the bill is to subject the tracts No. 1 and No. 2, now constituting the site of the town of Toledo, formerly known as Port Lawrence, to the rights of the Port Lawrence Company, composed, as we have seen, of the Piatt Company and the Baum Company, and those who claim under them, now in the possession of Oliver and Williams, under a title derived from the grant of the Michigan University, upon the ground that a trust has attached to those tracts in favour of the Piatt and Port Lawrence Companies, under the circumstances which will be presently stated. These circumstances are, that the lands given in exchange to the Michigan University, for tracts No. 1 and No. 2, under the negotiation with the university, were, at the time, the property of the Piatt and Port Lawrence Companies, as cestuis que trust thereof; that the facts were at the time well known to Baum, and Oliver, and Williams, and consequently that the  trust by operation of law attached thereto in the hands of those parties. To this conclusion several objections have been taken by the counsel for the appellants. In the first place, that no such trust attached to the lands so given in exchange to the Michigan University, at the time of the transfer, and consequently none to tracts Nos. 1 and 2, taken in the exchange. In the second place, that if it did, as Oliver afterwards repurchased the exchanged lands from the university, and Oliver and Williams under him now hold some parts thereof, the trust is revived, and has re-attached  to these lands, and thus has displaced any supposed trust upon tracts No. 1 and No. 2, at least pro tanto. In the next place, that Oliver and Williams are purchasers without notice of the trust, or of any misapplication of the trust property by the trustee. \nBefore proceeding to the considerations applicable to the first and third points, it may be well to dispose of that which grows out of the  second point, as it involves a most important principle in equity jurisprudence. It is a clearly established principle in that jurisprudence, that whenever the trustee has been guilty of  a breach of the trust, and has transferred the property, by sale or otherwise, to any third person, the cestui que trust has a full right to follow such property into the hands of such third person, unless he stands in the predicament of a bona fide purchaser, for a valuable consideration, without notice. And if the trustee has invested he trust property, or its proceeds, in any other property into which it can be distinctly traced, the cestui que trust has his election either to follow the same into the new investment, or to hold the trustee personally liable for the breach of the trust. This right or option of the cestui que trust is one which positively and exclusively belongs to him, and it is not in the power of the trustee to deprive him of it by any subsequent repurchase of the trust property, although in the latter case the cestui que trust may, if he pleases, avail himself of his own right, and take back and hold the trust property upon the original trust; but he is not compellable so to do. The reason is, that this would enable the trustee to avail himself of his own wrong; and if he had made a profitable investment of the trust fund, to appropriate the profit to his own  benefit, and by a repurchase of the trust fund to charge the loss or deterioration in value if any such there had been, in the mean time, to the account of the cestui que trust -- whereas the rule in equity is, that all the gain made by the trustee, by a wrongful appropriation of the trust fund, shall go to the cestui que trust, and all the losses shall be borne by the trustee himself. The option, on such case, to take the new or the original fund is, therefore, (as has been already suggested,) exclusively given to the cestui que trust, and is given to him for the wisest purposes and upon the soundest public policy. It is to aid in the maintenance of right and in the suppression of mediated wrong. Many cases on this subject will be found collected in the elementary writers. (See 2 Sugden on Vendors, chap. 14, sect. 3, p. 148, &c., 9th edit.; 2 Story Eq. Jurisp. sect. 1258 to sect. 1265, 3d edit.; Com. Dig. Chancery, 4W. 25, to 4W. 28;) and the rule will be found fully discussed and recognised in Ryall v. Ryall, 1 Atk. 59; Lane v. Dighton, Ambler, 409; Lench v. Lench, 10 Ves. 511; and Docker v. Somes, 2 Mylne & Keen, 655; in many of its important bearings. Lord Ellenborough, in  the case of Taylor v. Plumer, 3 Maule & Selw. 562, examined and confirmed the doctrine in its application to cases at law, and cited and approved the decisions in equity; so that it is plain upon authority, and the  same would be equally true upon principle, that if the tracts Nos and 2 were purchased with the trust fund belonging to the Piatt a Port Lawrence Companies, the latter are at full liberty to follow the same into the hands of any persons not being bona fide purchasers for a valuable consideration without notice, and the circumstances that there has since been a repurchase of the original trust property by Oliver, does not in any manner affect, or control, or vary, the right or option of the cestuis que trust. The case is not like that put at the bar, where a part of the funds of the cestuis que trust have been mixed up with other funds exclusively belonging to the trustee in the new purchase or investment. In such a case there may be ground to hold the trust funds in charge pro tanto therein. Here, the whole consideration of the purchase was a fund wholly and exclusively belonging to the cestuis que trust, if they have made out any title at all, which we shall  hereafter consider. \nLet us then proceed to the consideration of the other questions above stated. And the first is, whether at the time of the exchange with the Michigan University, the lands given in exchange for tracts Nos. 1 and 2, were, in the hands of the party or parties making that exchange, affected with any trust such as has been already suggested? And this leads us to the consideration of the antecedent state of facts between the parties to this record. \nWe have seen that the original purchase of tracts Nos. 1, 2, 3, and 4, and Nos. 86 and 87, was made for the account and benefit of the Port Lawrence Company; and the object of the purchase was to lay out a town thereon, and to sell the lots to purchasers. Baum was appointed a trustee and agent for this purpose, and he was to make sale of the lots and conduct the other affairs of the agency. With the consent of the company, in August, 1817, he employed Oliver as a sub-agent, who received instructions from the company in relation to the plan of the town (which he was to lay out in conjunction with Wm. C. Schenck) and the sale of the lots. This agency of Oliver, under Baum, was originally (as it should seem) limited to  one year, but it was certainly continued, if not for all, at least for some purposes, to a much later period. In August, 1818, Oliver sold one-half of his interest in the Port Lawrence Company to Steele and Lytle, and in march, 1819, he sold the residue to the defendant Williams, and his partner Embra. And these facts are most important to be borne in mind, since they clearly establish that Oliver, as an original proprietor, and Williams, as a derivative proprietor, under Oliver, in the Port Lawrence Company, had full and complete notice of the nature and objects of the original purchase by that company, and of the trust and agency of Baum in accomplishing those objects. In truth, the laying out of a town on those tracts, and the sale of the lots, seems to have been an enterprise always cherished by some of the company with uncommon solicitude and sanguine expectations of profit. \n In consequence of the reduction of the price of the public lands by Congress, and the pressure of the times, the Port Lawrence Company found themselves compelled, in 1821, to relinquish a part of their tracts to the government. For this purpose they assigned all the four tracts to Baum, in  September, 1821; and the Piatt Company at the same time assigned to Baum their five quarter-sections; and he, through the defendant, Williams thereupon relinquished tracts Nos. 1 and 2, to the United States, and the return purchase money was applied pro tanto to complete the payments due on the other tracts, (Nos. 3 and 4, and Nos. 86 and 87,) and the residue was applied partly to pay the balance due on the five quarter-sections, purchase by the Piatt Company, and partly to  pay a balance due on other lands purchased by the Baum Company. \nPausing here, for a moment, it is apparent that the original trust created in tracts Nos. 1 and 2, under the agency and assignment to Baum, for the benefit of the Port Lawrence Company, was, by this relinquishment to the government, entirely displaced and extinguished. These tracts afterwards, in the summer of 1828, under the act of 2 th of May, 1826, were selected by the secretary of the Treasury for the Michigan University, and certainly came into the possession of the latter discharged of the trust. Still, however, it is obvious from the papers in the cause, that in the intermediate time between the relinquishment of these tracts and  the grant thereof to the university, the original plan of establishing a town on the site, remained a favourite project of Baum as agent of the Port Lawrence Company, and he made strenuous efforts by applications to Congress, and to the General Land-office, to reacquire the title thereof, not for himself alone, but, as his applications and letters show, on behalf of himself and his associates. He constantly held himself out as acting for the benefit of the concern; and there is every reason to suppose, that some, if not all, of his associates were lulled into security, and contemplated, if he should be successful, the resume the original plan. This may serve in some measure to explain their inactivity, and to show that they continued to place unlimited confidence in Baum, that all his proceedings would be for their benefit, and not for his own sole advantage. Baum petitioned Congress on the subject as early as January, 1822, and in his letter to Mr. Brown, (a senator in Congress,) of the 25th of December, 1822, enclosing a duplicate of his petition, he says: \"Enclosed is the petition signed by myself only still others have an interest in it;\" and he names in the letter, and its  postscript, Williams, Piatt, and others. In another letter to the same senator, dated the 6th of February, 1823, he says: \"The tracts purchased by myself and associates in that quarter; those retained and relinquished can be ascertained in the Land-office.\" In another letter addressed to the commissioner of the General Land-office, as late as the 27th of July, 1827, he says: \"In consequence of the President's proclamation, announcing  the sales of lands, I attended, at Delaware, on the 9th instant, but was much disappointed to find there instructions of the General Land-office, to withhold from sale all lands situate north of the line which divided the state of Ohio and the Michigan Territory, for I went there for the express purpose of repurchasing tracts No. 1 and 2, in the Maumee reservation, which I formerly owned and which I have relinquished.\" He adds: \"These lands, though bought in sundry persons' names, were afterwards transferred to me as agent for the purpose of managing and conveying them in case of sales.\" In the same letter he protests against the trustees of the Michigan University having a grant of these tracts as they have no claim to the same, and that  he has a strong claim upon the government. \nTo repel the inferences deducible from these facts, it is said, that the testimony of Carneal establishes that Piatt attended that very sale at Delaware for the purpose of buying these tracts, not for the Port Lawrence Company, but for another company consisting of Colston, Carneal, and himself; and that Baum also attended on his own account, and not for the Port Lawrence Company. Of transactions of this nature, after such a lapse of time, it is perhaps not easy to ascertain all the facts which then regulated the conduct of the parties, when they depend upon the frail recollections of witnesses. It is quite possible that the circumstances might have been explained, and nothing have been intended by either party really injurious to the interests of the Port Lawrence Company. But as no sale took place of these tracts upon that occasion, the only effect which can be properly attributed to the testimony, admitting it in its fullest latitude, is, that it weakens our confidence in Piatt's own conduct, and diminishes the force of the inference as to Baum's then acting as an agent for the Port Lawrence Company. But the written statements of Baum  in the letters above cited are evidence of his intentions and acts, of a far higher character, which the lapse of time has not obscured or varied, and those letters are, as to himself, most conclusive to show, that he did not deem himself as acting for his own interest alone, but for that of his associates also, in his whole proceedings to re-acquire those tracts. \nAs soon as the Michigan University had obtained a title to tracts Nos. 1 and 2, (in the summer of 1828,) Oliver, avowedly on behalf of Baum, made an application to the trustees of that university for an exchange of those tracts for other tracts in the vicinity. These negotiations were begun as early as the 12t of August, 1828, and various propositions were made and negotiations were had by the trustees and Oliver, as agent of Baum, between that time and the 4th of January, 1831, when the consent of Congress having been obtained for the exchange, by an act approved on the 13th of January, 1830, the university agreed to make the exchange; and accordingly, by their deed, dated the 7th day of February, 1830, did  convey their right and title to tracts Nos. 1 and 2 to Oliver in feesimple, in consideration of receiving  a deed from Oliver of certain tracts, containing seven hundred and sixty-seven and a half acres, viz.: the whole of tracts Nos. 3 and 4, the south-west quarter of section 2, and the west half of section 3; the tracts being part of the purchase of the Port Lawrence Company, and the quarter and half sections being part of the purchase of the Piatt Company, in 1817. We thus tract the trust property home to the michigan University, as obtained by a conveyance from and under Baum and Olver in pursuance of a negotiation, avowedly made by Oliver on behalf and as agent of Baum, as the sole consideration of the grant of Nos. 1 and 2 to Oliver by the university. \nAnd this conducts us to the consideration of that which is the main hinge on which the present case turns; that is, whether the tracts, so conveyed by Oliver to the university, were at the time affected with the trust in favour of the Piatt and Port Lawrence Companies, with which they were originally chargeable in the hands of Baum. This necessarily involves a review of the title of Oliver to the tracts (the  three quarter-sections) belonging to the Piatt Company under the attachment proceedings in michigan, and also of  his title under the mortgage of tracts Nos. 3 and 4, and Nos. 86 and 87, belonging to the Port Lawrence Company, and the foreclosure thereof, -- in connection with the subsequent acts of Baum and Oliver in the premises. Unless the title thus derived is beyond all legal exception (omni exceptione major) as an adverse and unimpeachable title, it is plain, that the original trust attached at the time of the exchange to the tracts so conveyed, and consequently (as has been already suggested) it was, at the option of the cestuis que trust, transferable and transferred to tracts Nos. 1 and 2. For it is in our judgment beyond all question, that Oliver at the time of the exchange had full notice of the trust and title originally invested in Baum, and that his acts in making the exchange are to be deemed the acts of Baum, and affected by the same considerations as if personally transacted by Baum himself, and were designed by mutual consent to promote the contemplated objects and interests of both. \nAnd, first, let us review the proceedings under the attachment. In September, 1822, Baum gave a certificate to Oliver, stating that a debt of $ 213 02 was due to him from the Port Lawrence Company  for money refunded to purchasers of ots at the request of the company \"it being the amount due on the shares originally owned by John H. Piatt, Robert Piatt, G. A. Worth, and Wm. M. Worthington.\" These persons constituted the Piatt Company; and consequently the claim thus asserted was a sub-division of a debt confessedly due from the Port Lawrence Company, in which the Piatt Company had a moiety of the interest only. Whether Baum had, in virtue of his general agency, the right to give such a certificate, thus severing a joint debt, soi as to be binding upon the Piatt Company  alone, without their consent, and whether this certificate was bona fide given under justifiable circumstances, it is unnecessary to consider, although the transaction is certainly open to some observation in point of authority as well as propriety in the then unliquidated concerns of the Port Lawrence Company. Assuming, however, the transaction to have been perfectly correct and binding in all respects, let us examine the subsequent proceedings consequent thereon. Upon this certificate Oliver, in October, 1823, instituted a suit by attachment in Monroe county, in the territory of michigan, against  Baum, Robert Piatt, G. A. Worth, and William Worthington, (John H. Piatt being then deceased,) alleging them to be joint partners and survivors, and all residing out of the territor -- upon which four of the quarter-sections of land owned by the Piatt Company in that county were attached. At the October term, 1826, of the same court, judgment was obtained by default against all the defendants, no appearance having been entered for them; and upon the execution issuing thereon, three of the four sections (those which were afterwards conveyed to the Michigan University) were sold, and bid off by an agent of Oliver, and were afterwards conveyed by him to Oliver. Of this suit there is no pretence to say, that any of the defendants, except Baum, had any notice, if indeed he had any, although some of them resided in the same state where Oliver resided, and one of them in a neighbouring state, at no great distance, who was known to be a man of large property. The other members of the Port Lawrence Company were not made parties to the suit. It was brought in a distant territory, almost then a wilderness, more than two hundred miles from the residence of the defendants; and if it had been  the design of Oliver to procure a judgment against the parties, without any notice to them, which should be obligatory upon them, and to give Oliver a good title to the lands at a comparatively trivial price, better means could scarcely have been devised to accomplish the purpose. For the institution and consummation of this suit behind the backs and without the knowledge of the parties in interest, no better excuse can now be found than that Oliver did not choose to institute a suit against them at home, as it might give them offence and break up some former ties of acquaintance. How far such an excuse is admissible we do not stop to inquire. It rather tends to cast a shade upon the transaction than to vindicate it. But what was the title thus acquired, supposing all the proceedings to be bona fide? It was a mere naked title in equity to the tracts, the title to which still remained in the United States; and the legal title could ot be consummated, unless the certificates of the purchase and payments for the tracts were first surrendered to the United States. Those certificates were then in the hands of Baum, as trustee of the Piatt Company; and he had no right under the circumstances  to assign or surrender those certificates to Oliver to enable him to make his title available at law, without the express consent  of the Piatt Company. If he had refused, Oliver could not have obtained them, unless upon a bill in equity to which all the proprietors should be made parties, and in which they would have been at full liberty to examine into the validity and merits of the original claim of Oliver, on which his attachment was founded, and also into the regularity and bona fides of the transactions in and under the suit. Yet Baum, in December, 1828, assigned and surrendered up these certificates to Oliver, and thus enabled him to consummate his title and reduce it to a legal title, by obtaining a patent, without any such consent; and in so doing he was guilty of a manifest breach of trust, of which Oliver cannot now be permitted to pretend ignorance. It is also a fact of no small significant, that the surrender of these certificates was contemporaneous with the surrender to Oliver of the certificates of tracts Nos. 3 and 4; and subsequently, in December, 1829, a like surrender of Nos. 86 and 87, belonging to the Port Lawrence Company, under the foreclosure  of the mortgage, which we shall have occasion to review; and that all this was done pending the negotiations with the Michigan University by Oliver on behalf of Baum for the exchange. \nThis view of the matter releases us from no small doubt and difficulty in relation to an argument pressed at the bar with great earnestness; and that is, whether such an equity was attachable and vendible under the attachment law of Michigan. There is great difficulty in maintaining the affirmative, for the reasons  stated in the opinion of the learned judge in the court below; and especially if, as has been suggested, the act is but a transcript of an act of New Jersey, and the courts of that state have, as has been asserted at the bar, held no such equity attachable. \nThen, as to the mortgage and the proceedings under it. The mortgage was given upon tracts Nos. 3 and 4, and Nos. 86 and 87, by Baum to Oliver, in August, 1823, upon an account them adjusted between him and Oliver against the Port Lawrence Company (and which does not appear ever to have been examined or sanctioned by the company itself) for a balance of $ 1835 47, then supposed to be due to him for money paid and services  rendered by him as agent of the company. In October, 1825, a bill was filed in the Supreme Court of michigan (within which these tracts were situate) to foreclose the mortgage; and such proceedings were had upon this suit, that, in September, 1828, the tracts were sold, and at the sale bought by Oliver for the sum of $ 618 56, and a deed of conveyance thereof was accordingly made to him. To this suit Baum alone was made a party; none of the other proprietors of the Port Lawrence Company being made parties, although Oliver knew perfectly well who they were, and that Baum was merely their trustee, and that they were the cestuis que trust, possessing the beneficial interest in the premises. Under such circumstances, to allow the foreclosure to stand, so as to conclude the rights of the cestuis que trust, would be a violation of  all the doctrines of courts of equity upon this subject. The decree must be treated, as to them, as wholly inoperative and void. \nBut there is another view of the matter, which is conclusive. The mortgage was of a mere equity the legal title being still outstanding in the United States; and supposing that this equity could have been foreclosed  in such a suit, (which, considering the defect of the real parties in interest, it clearly could not,) still it was a naked equity, which could be made available to obtain a legal title from the United States, only by an assignment and surrender of the certificates of the purchase and payments, then held by Baum for the benefit and use of the Port Lawrence Company. And here, again, the same considerations apply, which have been already suggested. Oliver could not obtain an assignment and surrender of those certificates, except by a bill in equity against Baum, to which the other proprietors in the Port Lawrence Company must have been made parties, as they were necessary parties; and thus the whole merit of the mortgage and foreclosure must have been brought directly before the court for adjudiction. Yet Baum, without any consultation with or assent of those proprietors, assigned and surrendered the certificates of those tracts also to Oliver, and thus enabled him to obtain a patent therefor from the United States, in subversion of their rights and his duty. This was a gross breach of trust, and was done (let it is repeated) in December, 1828 and 1829, pending the negotiations with  the Michigan University, obviously for the purpose of enabling Oliver in his, Baum's, name, and on his behalf, to consummate the exchange. And, finally, when the negotiation was consummated by means of these very certificates, Oliver, with the consent of Baum, was enabled to obtain a patent therefor, on the 4th of March, 1831. \nVery soon after the patent was so obtained, viz., on the 16th of May, 1831, we find that Baum, Oliver, and Williams, entered into a written agreement, by which Oliver purported to sell, in fee-simple, to Baum and Williams, each one-third part of the tracts nos. 1 and 2, and Nos. 86 and 87, with the exception of sixty acres out of No. 86; and they were to receive a quit-claim deed therefor from him accordingly, for the sum of $ 1555 for each third part. The parties farther agreed to lay out a town upon the old site, with some change of the plan, and to bring the lots into the market for sale; and they were to contribute to the charges and expenses according to their respective interests. After the death of Baum, Oliver purchased his share of the tracts from his heirs; and by certain deeds of quit-claim, executed in December, 1832, in May, 1834, and in November,  1834, Oliver conveyed one-half of the premises to Williams. \nNow, looking at these transactions together, it seems almost impossible to escape from the conclusion, that Baum and Oliver had a mutual interest in the negotiation with the Michigan University; that it was not only carried on in the name of Baum, and apparently for his account but that Oliver acted as his agent throughout; that the  deed from the University was made directly to Oliver, with the consent of baum; that the assignment and surrender of all the certificates by Baum, to Oliver, was for the express purpose of enabling Oliver to complete the bargain with the university; and that the agreement between Baum, oliver, and Williams, which followed almost immediately upon the grant of the patent, was made in pursuance of a prior understanding between all the parties, and was but a consummation of the objects originally contemplated by Baum and Oliver, from the period of their first negotiation with the University down to the time of the execution of that agreement. And all this was done by Baum and Oliver, without the knowledge, or consent, or approbation, of the Piatt and Port Lawrence Companies, and was never  sanctioned by them. Under such circumstances, what is the true duty of a court of equity? It is, to hold the parties engaged in these transactions, with full notice of the title and the trust in Baum, bound by that trust, and to enforce that trust against the tracts Nos. 1 and 2, so far as they remain in their hands unaffected by the rights of purchasers under them, bona fide for a valuable consideration, without notice. In our judgment, no reasoning can make the proposition more clear than a simple recital of the facts, and the statement of the general doctrine of equity jurisprudence that the cestuis que trust have an option to follow their property, or its proceeds, into any other property into which it has been converted by a breach of the trust, subject only to the rights of such purchasers as have been just referred to. Indeed, the question, as against Baum and Oliver, seems absolutely closed by the state of the evidence; and their intimate knowledge of the whole concern requires neither illustration nor commentary. \n Let us, then, proceed to the consideration of the case as to Williams. It is said that he stands in the predicament of a bona fide purchaser for  a valuable consideration, without notice; and if he does, he is certainly entitled to protection. Williams, in his answer, asserts himself to be such a purchaser, but it is difficult to maintain that averment in its just legal sense, looking to all the circumstances of the case. In 1819, he became a purchaser of one-half of the interest of oliver in the Port Lawrence Company, and, as such, he could not fail to know that tracts Nos. 1 and 2, 3 and 4, and Nos. 86 and 87, belonged to that company; and he has never ceased to be a member of that company. In 1821, he was employed by Baum, the acknowledged trustee and agent of the company, to surrender tracts Nos. 1 and 2 to the government of the United States; and through him the relinquishment took place. He says that he did not know of the negotiation between Oliver and the University, for an exchange of the lands, until after its consummation, and never heard of the details of said negotiations, nor what lands were givenin exchange, except parts of tracts Nos. 3 and 4. Now, these very tracts belonged to the Port Lawrence Company, so that he was necessarily  put upon the inquiry by what means Baum had parted with them,  and Oliver had become possessed of them. Besides, in his negotiation and surrender of tracts nos. 1 and 2 to the government, and the apportionment of the funds arising from the relinquished lands, first to the remaining lands of the Port Lawrence Company, and then to the lands respectively purchased by the Piatt and Baum Companies, he necessarily became acquainted with the relative interests of all these companies therein. The origin and title of the Michigan University to the tracts Nos. 1 and 2, and the exchange thereof with Oliver, were matters of public notoriety, and proclaimed in the acts of Congress under which the exchange was made. The deed from the University to Oliver recited the material facts respecting the lands given in exchange, and referred to the records of the antecedent negotiations; and the patent itself, from the government, of tracts Nos. 1 and 2, referred to the deed of Oliver to the University of the lands given in exchange; so that it is most manifest that Williams, as a proprietor in the Port Lawrence Company, and as agent thereof in the relinquishment above referred to, and as a purchaser under Oliver, not only had the most ample means of knowing the  nature and character and extent of the title of Oliver to the lands under consideration, but he was positively put upon inquiry in relation to the whole matter. If, under such circumstances, he chose to remain in indolent ignorance or indifference to the title, it was a voluntary ignorance and indifference, which ought not to be permitted to avail him against the rights of the cestuis que trust. If we add to this the fact that within two months after the patent was obtained by Oliver, he and Baum united in an agreement with Oliver, by which each was to take a third part in the tracts Nos. 1 and 2, and Nos. 86 and 87, (these tracts never having been relinquished by the Port Lawrence Company to the government,) to be laid out as a town, and the lots sold on joint account, it would seem almost incredible that he should not have made some inquiries on the subject. And the only reasonable conclusion seems to be, that he was in as full possession of all the facts as were his partners Oliver and Baum. Another significant circumstance is, that this very agreement contained a stipulation that Oliver should give a quit-claim deed only for the tracts; and the subsequent deeds given by Oliver  to him accordingly were drawn up without any covenants of warranty, except against persons claiming under Oliver, or his heirs and assigns. In legal effect, therefore, they did convey no more than Oliver's right, title, and interest, in the property; and under such circumstances, it is difficult to conceive how he can claim protection as a bona fide purchaser, for a valuable consideration, without notice, against any title paramount to that of Oliver, which attached itself as an unextinguished trust to the tracts. \nAnd here, in our judgment, the merits of the case would seem to be brought to a close. But certain objections have been made to  the right of the plaintiff to maintain the bill upon other collateral grounds. In the court below an objection was taken, by way of plea, that the original agreement of the Piatt and Baum companies, in regard to the purchases of these tracts at the public sale in 1817, was an illegal combination in fraud of the rights of the United States, and therefore it makes the whole purchase an utter nullity. This objection was fully answered in the opinion of the Circuit Court, in which, on this point, we fully concur. It has been abandoned  by the learned counsel here; and, indeed, in our opinion, properly abandoned, as unmaintainable in point of fact as well as law. \nAnother orjbection is to the lapse of time. The mere lapse of time constitutes of itself no bar to the enforcement of a subsisting trust; and time begins to run against a trust only from the time when it is openly disavowed by the trustee, who insists upon an adverse right and interest, which is fully and unequivocally made known to the cestui que trust. Now, until 1831, no final overt act was done by Baum in violation of his duty as trustee; and the first and great breach of that duty, on his part, was the surrender of the certificates of the tracts to Oliver at different periods between 1828 and 1831. at what particular period the subsequent acts of Baum, Oliver, and Williams, became first known to the plaintiff and the other proprietors of the Piatt and Port Lawrence companies having the same interest, does not distinctly appear; but the facts could not have been fully known or understood until within a few years before the filing of the bill, and at most probably not exceeding eight or ten. That period, upon admitted principles, is far too short to  interpose any positive bar to relief in equity. There may have been an unjustifiable delay, and gross inattention on the part of some of the proprietors. But as against persons perfectly conusant of the trust it can furnish no ground for any denial of the relief which the case otherwise requires. \nAnother objection urged at the argument is, that the bill is multifarious in uniting the trust property owned by the Piatt Company and the Port Lawrence Company in one bill, as the interests  of each are separate and distinct in the tracts conveyed by Oliver to the Michigan University. We are of opinion that the bill is in no just sense multifarious. It is true that it embraces the claims of both the companies; but their interests are so mixed up in all these transactions, that entire justice could scarcely be done, at least not conveniently done, without a union of the proprietors of both companies; and if they had not been joined, the bill would have been open to the opposite objection that all the proper parties were not before the court, so as to enable it to make a final and conclusive decree touching all their interests, several as well as joint. It was well observed  by Lord Cottenham in Campbell v. Mackay, 1 mylne & Craig, 603, and the same doctrine was affirmed in this court in Gaines and wife v. Relf and Chew, 2 How. 619, 642, that it is  impracticable to lay down any rule, as to what constitutes multifariousness, as an abstract proposition; that each case must depend upon its own circumstances; and much must necessarily be left, where the authorities leave it, to the sound discretion of the court. 1 But, if the objection were tenable, (as we are of opinion it is not,) it would be quite too late to insist upon it. The objection of multifariousness cannot, as a matter of right, be taken by the parties, except by demurrer, or plea or answer; and if not so taken, it is deemed to be waived. It cannot be insisted upon by the parties even at the hearing in the court below, although it may at any time be taken by the court sua sponte, wherever it is deemed by the court to be necessary or proper to assist it in the due administration of justice. And at so late a period as the hearing, so reluctant is the court to countenance the objection, that, if it can get on in the cause to a final decree without serious embarrassment, it will do  so, disregarding the fault or error, when it has been acquiesced in by the parties up to that time. A fortiori an appellate court would scarcely entertain the objection, if it was not forced upon it by a moral necessity. There is no pretence to say, that such is the predicament of the present cause in this court. \nAnother objection taken at the argument is, that Baum's heirs cannot insist upon any title to the property in question, because they are bound by the warranty of their ancestor in the conveyance thereof to Oliver. But this objection has no foundation whatsoever in law, whether the warranty be lineal or collateral; for the heirs here do not claim any title to the property by descent, but simply by purchase; and it is only to cases of descent that the doctrine of warranty applies. For this it is sufficient to cite Litt. sect. 735; Co. Litt. 365; Com. Dig. Guaranty, I. 2, and Bac. Abridgment, Warranty, G, H, I, L. The fact, therefore, that assets descended upon Mary P. Ewing, one of the children and heirs of Baum, can have no influence  upon the right of her husband or herself to enter the land in controversy by purchase, however it might repel their right to take it by descent. \nAnother objection suggested at the argument was the difficulty of apportioning the respective interests of the cestuis que trust in the tracts Nos. 1 and 2. But this difficulty has been overcome; and it constitutes no matter of difference between the Piatt and the Port Lawrence Companies, so far as their own interests are concerned, as distinguished from that of Oliver and Williams. \nAs to the report of the master and the exceptions thereto in the court below, although those exceptions were not formally overruled or allowed; yet it is plain that in the final decree they were all disposed of, some being allowed and others disallowed; and no argument  has been addressed to us upon the present occasion, which points out any specific errors, which require correction beyond those which have been already incidentally hinted at. \nWe pass over some other objections, which were suggested at the argument, without remark, as this opinion has already been protracted to an unusual length. We need only say, that we see nothing in those objections  which requires us to reform the decree of the court below. \nUpon the whole, the decree of the Circuit Court is affirmed, with costs. \n \n\n "}|>